S.P. Shibu v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 OP(KAT) NO. 149 OF 2022** **AGAINST THE ORDER IN OA 167/2022 OF KERALA ADMINISTRATIVE** **TRIBUNAL, THIRUVANANTHAPURAM** **OA 167/2022 OF KERALA ADMINISTRATIVE TRIBUNAL,** **THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** S.P.SHIBU,AGED 52 YEARS S/O SUKUMARAN, GRADE SUB INSPECTOR OF POLICE, (GEN.NO.1283), TRAFFIC UNIT, NEDUMANGAD, THIRUVNVANANTHAPURAM, RURAL POLICE DISTRICT-695541, RESIDING AT EDAVILAKATTUVEEDU, IRINCHAYAM P.O., NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT, KERALA,, PIN - 695561 BY ADVS. THOMAS ABRAHAM MERCIAMMA MATHEW ASWIN.P.JOHN R.ANANTHAPADMANABAN THAYYIB SHA P.S. PAUL BABY ## **RESPONDENTS:** 1 STATE POLICE CHIEF STATE POLICE CHIEF, POLICE HEADQUARTERS, VELLAYAMBALAM, THIRUVANANTHAPURAM, KERALA-695010, PIN - 695010 2 INSPECTOR GENERAL OF POLICE, SOUTH ZONE, THIRUVANANTHAPURAM, OFFICE OF THE INSPECTOR GENERAL OF POLICE, SOUTH ZONE, NANDAVANAM, THIRUVANANTHAPURAM, KERALA-695033, PIN - 695033 3 DISTRICT POLICE CHIEF THIRUVANANTHAPURAM RURAL DISTRICT, OP((KAT)No.149 of 2022 2 OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM RURAL DISTRICT, PMG LAW COLLEGE ROAD, VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA-695033, PIN - 695033 4 DEPUTY SUPERINTENDENT OF POLICE NEDUMANGAD OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE NEDUMANGAD, NEDUMANGAD, KERALA-695561, PIN - 695561 5 INSPECTOR STATION HOUSE OFFICER (ISHO) NEDUMANGAD POLICE STATION, NEDUMANGAD POLICE SUB DIVISION, THIRUVANANTHAPURAM RURAL POLICE, THIRUVANANTHAPURAM, KERALA-695541, PIN – 695541 BY SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP((KAT)No.149 of 2022 3 ## **A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **…................................................... OP((KAT)No.149 of 2022 ….............................................................. Dated this the 20[th] day of October, 2022.** ## **JUDGMENT** ## Muhammed Nias.C.P., J. The order of the Kerala Administrative Tribunal dismissing the original application filed by the petitioner challenging Annexures A6 and A7 orders of transfer and posting is challenged in this original petition. 2. The petitioner contends that the 'transfer on public ground' was a ruse to mete out punishment to him without any disciplinary proceedings and this aspect was lost sight of by the Tribunal while refusing to interfere with the orders of transfer. 3. The petitioner entered the Special Armed Police unit as a Police Constable in the year 1996. He, on completion of 25 years of unblemished service was designated as Grade Sub Inspector of Police. He is also honoured with the Chief Minister's Police Medal in the year 2010 and states that he has all along served the force without any complaint from any quarter. The petitioner was slapped with an order of transfer, Annexure A6 transferring him, from Nedumangad Police Station to Idukki OP((KAT)No.149 of 2022 4 Police Station. The reasons mentioned in Annexure A6 and A7 for transfer and posting was shown as 'public ground'. These orders were challenged before the Tribunal. 4. No reply statement was filed by the respondents before the Tribunal excepting a memo producing documents. The petitioner states that he was the President of the Kerala Police Association of the Thiruvananthapuram District from August 2018 to November 2021 and thereafter the General Secretary of Kerala Police Officer's Association at Thiruvananthapuram Rural Police District. He alleges that he has incurred the ire of some of his colleagues while functioning in the above capacities and various dubious methods have been adopted to displace the petitioner from Thiruvananthapuram. The petitioner also understand that the real reason for his transfer are false allegations raised against them that he maintained an illicit relationship with a woman police constable stating that a complaint raising such an allegation was received from the husband of the said woman police constable. He further alleges that the 4[th] respondent had conducted an enquiry into the same and had obtained statements from both the woman police constable as well as her husband. Neither the woman police constable nor her husband had raised any such complaint before any authority and the author of the complaint had made such allegation to discredit the petitioner and to prejudice the minds of the superior officers. Annexure A8 enquiry report dated 10.07.2021 from the Deputy Police Superintendent to District Police Chief also suggested that the allegation of the illicit relationship was false. OP((KAT)No.149 of 2022 5 The petitioner submits that in wake of such a finding, a crime should have been registered to find out the persons behind the conspiracy, but no steps were taken. It is also alleged that the petitioner had links with 'sand quarry mafia'. A highly insinuating document by the Assistant Superintendent of Police to the District Police Chief led him to be transferred under the guise of transferring on 'public interest.' 5. The Tribunal by the order impugned found that it was convinced that there existed a real public interest in issuing the impugned orders of transfer, accordingly dismissed the application, making it clear that it has not expressed any opinion or findings on the genuineness or correctness of the allegations contained in the report, which is taken as the ground for the transfer. It is challenging this order, the above original petition is filed. 6. We have heard Sri.Thomas Abraham, the learned counsel for the petitioner and Sri.Bijoy Chandran, the learned Government Pleader. 7. After hearing the learned counsel on either side, we are not in a position to hold that the ultimate decision of the Tribunal in not interfering with the order of transfer is one to be interfered with. There is no reason mentioned in Annnexure A6 as it only states that the transfer is on 'public ground'. Annexure A7 order relieving the petitioner also proceeds on the same ground. We hold so in the light of the principles of law applicable while considering the legality of the orders of transfers as OP((KAT)No.149 of 2022 6 regards the members of the uniform force. We have culled out the principles in our judgment reported in **Divyamol.R.S. v. The Director General, Central Industrial Security Force and others** [2022(5) KHC 732]. The scope for interference of such transfers made in public interest are limited. The employer in a given case can transfer an employee even without casting any aspersion on the character or conduct of the employee and the intention behind such a transfer may not be to punish an employee, but to re-locate him in the larger interest of the force. Such transfers in our view do not call for interference in Courts because they are merely measures taken by an employer in the exigencies of the service and for an efficient administration thereof. No prejudice can be caused to an employee in such cases because there is no stigma cast on him through the orders of transfer which would affect his future prospects in the particular service. Likewise, for the purpose of effecting a transfer there need not be any enquiry conducted to first ascertain whether there has been any misbehaviour or conduct unbecoming of an employee. The question whether an employee could be transferred to a different station is a matter for the employer to consider depending upon the administrative necessity and the extent of solution for the problems faced by the administration. Under such circumstances, we are not interfering with the ultimate decision of the KAT not interfering with Annexure A6 and A7 orders, more so as the petitioner has joined the new station following the dismissal of his original application. 8. That said, we are disturbed by some of the documents produced by the respondents before the Tribunal, particularly, Ext.P5, which reads OP((KAT)No.149 of 2022 7 thus: “On perusing the Call Data Records of Sri.Shibu, GSI and WPCO Smt.Savitha Rani. There have been total 933 Calls (Outgoing 265 and incoming 668) from 20.10.2020 to 16.09.2021. Many of these calls are more than half to one hour duration and many calls were made at after 10 PM in the night. **It is anybody's guess that what is happening.** ## xxxxxx So post investigation it can be said that the allegations against Mr.Shibu for having illegal relation with Savitha Rani (WCPO) and illegal relation with sand mining mafia holds substance.“ 9. These unwarranted conclusions are drawn on the basis of the alleged phone calls made by the petitioner. The irresponsible and insensitive statements in Ext.P5 are rejected with the contempt it deserves. It does not augur well for a police officer of the rank of Assistant Superintendent of Police, who is under law charged with the duty of protecting the life, limb and dignity of the citizenry as also to conduct lawful investigation to display such an attitude. There is so much that is so wrong about the statements referred above. The State Police Chief would do well to ensure the prevention of such instances from the police officers in future. Since those allegations are not made the basis of the transfer and no action has been initiated against the petitioner based on such allegations, we leave it at that by directing that such allegations/materials collected cannot be used for taking any action against the petitioner in future. Annexure A6 and A7 can only be seen as made on public grounds as stated therein and for no other. The Tribunal has observed that it is not going into the genuineness or OP((KAT)No.149 of 2022 8 correctness of the allegations contained in the report, which is taken as a ground for transfer. Since those statements/allegations are not the basis of the orders impugned, we vacate the said observation. We also reiterate that the petitioner will be free to challenge those allegations which he alleges as baseless in any appropriate proceedings. We also permit the petitioner to make a request to the State Police Chief seeking for a re-transfer from the place where he is working now, which will be considered by the State Police Chief independently and on its merits also taking into account the fact that the petitioner has been meted out a raw deal by some of the reports of his subordinates which contained statements which are totally unwarranted. Those allegations should not be considered while considering the request of the petitioner for retransfer. The petitioner will make a representation within two weeks from today and the State Police Chief will take a decision on the same after affording an opportunity of hearing to the petitioner within a period of two months from the date of receipt of representation from the petitioner. The OP(KAT) is disposed as above. Sd/- **A.K. JAYASANKARAN NAMBIAR, JUDGE** Sd/- ## **MOHAMMED NIAS C.P. JUDGE** dlk/20.10.22 OP((KAT)No.149 of 2022 9 ## **APPENDIX OF OP(KAT) 149/2022** - PETITIONER'S ANNEXURES - Annexure A1 TRUE COPY OF THE COMMENDATION DATED 29TH DAY OF JANUARY 2011 ISSUED BY THE 1ST RESPONDENT IN FILE NO.C3-84958/2009 - Exhibit P1 THE TRUE COPY OF THE ORIGINAL APPLICATION NUMBERED AS O.A.NO.167 OF 2022 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM - Exhibit P2 THE TRUE COPY OF THE MEMO FILED BY THE RESPONDENTS ALONG WITH APPENDED DOCUMENTS Annexure A2 TRUE COPY OF THE ANTIGEN TEST REPORT DATED 14/01/2022 CONFIRMING THAT THE APPLICANT IS COVID POSITIVE ISSUED BY THE CONSULTANT MICRO BIOLOGIST DR. LESLIE JOSE SELVARAJ,MD OF MDC SCANS AND LABS, THIRUVANANTHAPURAM - Annexure A3 TRUE COPY OF THE OP TICKET IN NO. 15805 DATED 29/01/2022 ISSUED TO THE APPLICANT BY THE OP WING OF DISTRICT HOSPITAL NEDUMANGADU - Exhibit P3 THE TRUE COPY OF M.A.NO.245 OF 2022 IN O.A.NO.167 OF 2022 PRODUCING ADDITIONAL DOCUMENTS - Exhibit P4 THE TRUE COPY OF THE FIR IN CRIME NO.253 OF 2022 OF VATTAPPARA POLICE STATION - Annexure A4 TRUE COPY OF THE REQUEST DATED 29/01/2022 TO THE 5TH RESPONDENT REQUESTING MEDICAL PASSPORT - Annexure A5 TRUE COPY OF THE 'CASE RECORDS' PERTAINING TO THE APPLICANT OPENED BY TREATING MEDICAL OFFICER OF DISTRICT HOSPITAL NEDUMANGADU ON 30.01.2022 Exhibit P5 THE TRUE COPY OF THE LETTER DATED 6/11/2021 SENT BY THE ASSISTANT SUPERINTENDENT OF POLICE TO THE DISTRICT POLICE CHIEF OP((KAT)No.149 of 2022 10 Exhibit P6 THE TRUE COPY OF THE DOCUMENT ISSUED BY THE SRTO, CHADAYAMANGALAM EVIDENCING VEHICLE PARTICULARS OF KL 24 K 3553 Annexure A6 TRUE COPY OF THE IGO NO. 07/2022/SZ DATED 27/01/2022 ISSUED BY THE 2ND RESPONDENT Annexure A7 TRUE COPY OF THE DO NO. 87/2022/T DATED 28/01/2022 ISSUED BY THE 3RD RESPONDENT Exhibit P7 THE TRUE COPY OF THE DOCUMENT ISSUED BY THE SRTO, CHADAYAMANGALAM EVIDENCING VEHICLE PARTICULARS OF KL 25 E 3222 Exhibit P8 THE CERTIFIED COPY OF THE ORDER DATED 18.2.2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A.NO.167 OF 2022 Annexure A8 TRUE COPY OF THE ENQUIRY REPORT DATED 10/07/2021 VIDE LAPS NO. 1996096/2021 4TH RESPONDENT BEFORE THE 3RD RESPONDENT SUBMITTED BY THE 3RD RESPONDENT Annexure A9 TRUE COPY OF THE ABSTRACT OF THE GO (P) NO.3/2017/P&ARD DATED 25/02/2017 ISSUED BY THE GOVERNMENT Annexure A10 TRUE COPY OF THE MEDICAL RECORDS SHOWING THE TREATMENT OF HIS MOTHER SMT. PADMAKSHI AGED 82 YEARS Annexure A10(a) TRUE COPY OF THE MEDICAL RECORDS SHOWING THE TREATMENT OF HIS WIFE SMT. PREETHA AGED 46 YEARS Annexure A11 TRUE COPY OF THE ORDER DATED 22/08/2013 IN OA NO. 16/2013 OF THIS HON'BLE TRIBUNAL Annexure A12 TRUE COPY OF THE IGO NO. 12/2021SZ DATED 08/09/2021 ISSUED BY THE 2ND RESPONDENT TRANSFERRING 28 POLICE PERSONAL FROM KOLLAM DISTRICT TO IDUKKI Annexure A12(a) TRUE COPY OF THE IGO NO. 06/22 DATED 18/01/2022 CANCELLING ANNEXURE A12 BY THE 2ND RESPONDENT Annexure A12(b) TRUE COPY OF THE INTERIM ORDER DATED 01.11.2021 ON MA 2143/2021 IN OA 1729/2021 ISSUED BY KERALA ADMINISTRATIVE TRIBUNAL OP((KAT)No.149 of 2022 11 - Annexure A13 THE TRUE COPY OF THE DO NO.403/2017T DATED 21.5.2017 ISSUED BY THE 3RD RESPONDENT - Annexure A14 THE TRUE COPY OF DO NO.74/2018/T DATED 27.1.2018 ISSUED BY THE 3RD RESPONDENT - Annexure A15 THE TRUE COPY OF DO NO.302/2018T DATED 3.5.2018 ISSUED BY THE 3RD RESPONDENT - Annexure A16 THE TRUE COPY OF THE ABSTRACT DO NO.991/2021/T DATED 22.7.2021 ISSUED BY THE 3RD RESPONDENT - Exhibit P4 THE TRUE COPY OF THE FIR IN CRIME NO.253 OF 2022 OF VATTAPPARA POLICE STATION - Exhibit P9 THE TRUE COPY OF THE COMMUNICATION DATED 17.9.21. - Exhibit P10 THE TRUE COPY OF THE PROCEEDINGS DATED 27.7.2018 OF DISTRICT POLICE CHIEF. - Exhibit P11 THE TRUE COPY OF THE COMPLAINT. - Exhibit P12 THE TRUE COPY OF THE COMPLAINT BY SRI.SATHEESHKUMAR TO THE SHO OF VATTAPPARA POLICE STATION DATED 7.3.22. - Exhibit P13 THE TRUE COPY OF THE REPRESENTATION TO THE 3RD RESPONDENT DATED 11.3.22. - Exhibit P14 TRUE COPY THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE I, NEDUMANGAD WHICH WAS NUMBERED AS CMP NO.442 OF 2022. - Exhibit P15 THE TRUE COPY THE LETTER DATED 9.7.22 OBTAINED UNDER RTI ACT. - Exhibit P16 TRUE COPY OF THE COMMUNICATION DATED 8.7.22 OBTAINED FROM ARUVIKKARA POLICE STATION REGARDING THE VEHICLE. - Exhibit P17 THE DETAILS OF THE VEHICLE FURNISHED BY MOTOR VEHICLE DEPARTMENT ISSUED ON 5.3.22.