Suresh Kumar.G v. Kerala Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** ## **WP(C).No.16969 of 2019** ## **PETITIONER/S:** **SURESH KUMAR.G, AGED 45 YEARS REMYA BHAVANAM, KUZHIYAM NORTH, CHEMACADU P.O, PERINAD, KOLLAM DISTRICT.** **BY ADV. SRI.V.PREMCHAND** ## **RESPONDENTS:** |**1**|**KERALA ROAD TRANSPORT CORPORATION**| |---|---| ||**REPRESENTED BY ITS MANAGING DIRECTOR,**| ||**TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM,**| ||**PIN-695 023**| |**2**|**CHAIRMAN AND MANAGING DIRECTOR,**| ||**KERALA ROAD TRANSPORT CORPORATION, REPRESENTED**| ||**BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN,**| ||**FORT, THIRUVANANTHAPURAM, PIN-695 023**| |**3**|**DISTRICT TRANSPORT OFFICER,**| ||**KOLLAM DEPOT, KOLLAM DISTRICT, PIN-691 013.**| |**4**|**ASSISTANT TRANSPORT OFFICER,**| ||**CHADAYAMANGALAM, KOLLAM DISTRICT-691 534**| ||**BY ADV. SRI.T.P.SAJAN**| ||**STANDING COUNSEL, KERALA STATE ROAD TRANSPORT**| ||**CORPORATION**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- W.P.(C). No. 16969 of 2019 ## **JUDGMENT** The petitioner, who is working as Upholsterer in KSRTC, whose elder son aged twelve years is a mentally challenged person with a permanent disability of 55%, as certified in Ext.P1 disability certificate dated 17.03.2017 issued by the Standing Disability Assessment Board at A.A.Rahim Memorial District Hospital, Kollam, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 12.06.2019 issued by the third respondent District Transport Officer, Kollam, whereby the petitioner has been ordered to be transferred from Kollam Depot to Chadayamangalam Depot. The petitioner has also sought for a declaration that Ext.P7 order is illegal and violates Ext.P2 bipartite agreement-2012 and the directions contained in Ext.P4 order dated 16.08.2018; and a writ of mandamus commanding the respondent to retain the petitioner in Kollam Depot itself in view of Ext.P2 agreement. 2. On 21.06.2019, when this writ petition came up for -3- W.P.(C). No. 16969 of 2019 admission, the learned Standing Counsel for KSRTC was directed to get instructions. 3. A statement has been filed by the respondents, opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSRTC, representing the respondents. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P7 order of transfer dated 12.06.2019, whereby the petitioner has been transferred from Kollam Depot to Chadayamangalam Depot, on working arrangement, for a period three months. 6. During the course of arguments, the learned counsel for the petitioner would submit that in terms of Ext.P7 order, the petitioner has already been relieved from Kollam Ddepot and he joined Chadayamangalam Depot, with effect from 12.06.2019. 7. So far as the challenge made in this writ petition -4- W.P.(C). No. 16969 of 2019 against Ext.P7 order of transfer is concerned, the learned counsel for the petitioner would place reliance on Clause 9.12 of Ext.P2 bipartite settlement-2012. Clause 9.12 reads thus: “9.12 ബദ�മ�ന�മള കട�കളട� മ�ത�പ�ത�കള�യ ജ�വനക�ര�യ� ബദ�മ�ന�മള ഭ���/ഭർത�വ! ഉള ജ�വനക�ര�യ� ബനട%ട ജ�ല� ടമഡ�കൽ രബ�ർഡ�ട) സ�ക�പതത�ട) അ��സ�നത�ൽ സല� മ�റത�ൽന�ന! ഒഴ�വ�ക�.” 8. The petitioner had earlier approached this Court in W.P.(C).No.18953 of 2018 challenging an order of transfer from Kollam Depot to Thiruvananthapuram Central Depot and that writ petition was disposed of by Ext.P3 judgment dated 08.06.2018, whereby direction was issued for consideration of a representation dated 28.05.2018 made by the petitioner, taking note of the specific reasons stated therein, within a period of two weeks from the date of receipt of a copy of that judgment. Pursuant to the direction contained in Ext.P3 judgment, the first respondent issued Ext.P4 memorandum dated 16.08.2018, whereby the order of transfer was cancelled and the petitioner was ordered to be retained at Kollam Depot. Paragraphs 2 to 4 of the said order read thus: -5- W.P.(C). No. 16969 of 2019 “2. In the view of the judgment the matter has been examined in detail. The Corporation invited transfer applications from the employees as a part of General Transfer. While considering the applications of such employees for transfer, the vacancies arising out of it should be filled up as per transfer norms. As such the petitioner and other similar Upholsterers from among the district seniors were transferred as a part of strength adjustment. The petitioner was transferred to Thiruvananthapuram Central unit solely because he is one of the seniors in the district where he belongs to. It is to be noted that for outside district transfer the norms are as such that senior most will be considered and the juniors will be considered for within the circle/district transfer. The petitioner being one of the seniors in Kollam unit, his transfer to Thiruvananthapuram Central unit is not against the norms. 3. Further the ill health of the petitioner's mentally retarded son is very unfortunate. Entertainment of his application will affect the essence of general transfer; the Corporation is giving an exemption to Petitioner alone considering the exemption guaranteed under the prevailing bilateral agreement. 4. In the view of the aforesaid facts and circumstances, Ext.P6 representation of the petitioner to cancel his transfer to Thiruvananthapuram Central is hereby -6- W.P.(C). No. 16969 of 2019 considered (sic: cancelled) and he is retained at Kollam unit. The Ext.P6 representation of the petitioner is disposed of accordingly.” (Underline supplied) 9. It is thereafter that the petitioner has been issued with Ext.P7 order dated 12.06.2019, whereby he is transferred to Chadayamangalam Depot, on working arrangement, for a period of three months. In the statement filed by the respondents, it is contended that Ext.P7 order of transfer is on administrative exigencies and that order was issued only to provide sufficient operating staff in that Depot where there is dearth of staff. The respondents would also contend that the grievance of the petitioner on account of the ailment of his son was mitigated as per Ext.P4 memorandum dated 16.08.2019, by cancelling the earlier order of transfer. 10. In **Som Prakash Rekhi v. Union of India [(1981) 1 SCC 449]** a Three-Judge Bench of the Apex Court held that, social justice is the conscience of out Constitution, the State is the promoter of economic justice, the founding faith which sustains the Constitution and the country is Indian -7- ## W.P.(C). No. 16969 of 2019 humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be demned or body to be burnt. Later, in **Gurmail Singh and others v. State of Punjab and others, [(1991) 1 SCC 189]** the Apex Court reiterated that, the State as a model employer is expected to show fairness in action. 11. In **Sini Ben and another v. Union of India and others [ILR 2016 (1) Ker 798]** this Court held that, viewed in the light of the law laid down by the Apex Court in **Som Prakash Rekhi's case and Gurmail Singh's case** referred to supra, the Indian Railways, which is one of the biggest employers in India with more than 14 lakhs employees, should act as a model employer and show fairness in its action. 12. In **Vijayappan v. The Chairman Cum Managing Director, KSRTC and another** [judgment dated 05.03.2019 in W.P.(C).No.6537 of 2019], this Court held that the principle laid down in the decisions referred to supra is equally applicable in the case of KSRTC, which is a Road Transport -8- W.P.(C). No. 16969 of 2019 Corporation established under Section 3 of the Road Transport Corporation Act, 1950. KSRTC is a 'State' within the meaning of Article 12 of the Constitution of India, which is presently having more than 40,000 employees. 13. Having considered the submissions made by the learned counsel on both sides, this Court finds that, in Ext.P4 memorandum dated 16.08.2018 the first respondent had accepted the claim made by the petitioner under Clause 9.12 of Ext.P2 bipartite settlement - 2012 and he was permitted to be retained at Kollam Depot. Considering the peculiar facts of the case on hand, as borne out from Ext.P1 disability certificate of the petitioner's minor son aged 12 years, who is mentally challenged with 55% permanent disability, and taking note of the law laid down in the decisions referred to supra, this Court finds no reason to sustain Ext.P7 memorandum dated 12.06.2019, whereby the petitioner has been transferred from Kollam Depot to Chadayamangalam Depot, on working arrangement for a period of three months. In the result, this writ petition is disposed of by setting -9- W.P.(C). No. 16969 of 2019 aside Ext.P7 memorandum dated 12.06.2019 and by directing the respondents to permit the petitioner to work as Upholsterer in Kollam Depot, for the time being. **Sd/-** **ANIL K.NARENDRAN JUDGE** das -10- W.P.(C). No. 16969 of 2019 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE DISABILITY CERTIFICATE DATED 17.03.2017. EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE AGREEMENT IN RESPECT OF THE EMPLOYEES OF THE KERALA ROAD TRANSPORT CORPORATION.** **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 08.06.2018 IN W.P.(C) NO.18953/2018 EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.08.2018 OF THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 23.02.2019 BEFORE THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE RECEIPT DATED 23.02.2019. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 12.06.2019 BY 3RD RESPONDENT.**