Vimal V vs State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942** **OP(KAT).No.33 OF 2021** **AGAINST THE ORDER IN OA (EKM) 1719/2020 DATED 22-01-2021 OF KERALA ADMINISTRATIVE TRIBUNAL,ADDITIONAL BENCH ERNAKULAM** ## **PETITIONER/APPLICANT IN OA:** **VIMAL V AGED 34 YEARS SON OF VELAYUDHAN, FIRE RESCUE OFFICER (DRIVER), FIRE AND RESCUE STATION, AALATHUR, PALAKKAD-678 541, RESIDING AT MANGATTITHODI HOUSE, VARODE P.O.KOTTAYI, PALAKKAD-678 572.** **BY ADVS. DR.K.P.PRADEEP SHRI.HAREESH M.R.** ## **RESPONDENTS/RESPONDENT IN OA:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS CHIEF SECRETARY,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**ADDITIONAL CHIEF SECRETARY,**| ||**HOME DEPARTMENT, GOVERNMENT SECRETARIATE,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**DIRECTOR GENERAL,**| ||**DEPARTMENT OF FIRE AND RESCUE SERVICES,**| ||**KERALA FIRE AND RESCUE SERVICES, HEAD QUARTERS,**| ||**FIRE FORCE JUNCTION,**| ||**PULIMOODU P.O.**| ||**THIRUVANANTHAPURAM-695 033.**| O.P(KAT) No.33/2021 2 **4 REGIONAL FIRE OFFICER, KANNUR, KERALA FIRE AND RESCUE SERVICES, HEADQUARTERS HOSPITAL P.O.KANNUR-6700017** **BY ADVS. SRI.ANTONY MUKKATH, SR.GP** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.33/2021 3 ## **ALEXANDER THOMAS & T.R.RAVI, JJ.** ------------------------------------ O.P (KAT) No. 33 of 2021 (A _rising out of the order dated 22-01-2021 in OA(Ekm) No.1719 of 2020 of KAT, Addl. Bench Ekm._ ) ------------------------------------ Dated this the 2[nd] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The Original Applicant in Ext.P1 Original Application O.A (Ekm) No.1719/2020 filed before the Administrative Tribunal, Ernakulam, is before us in this proceedings so as to impugn the interlocutory order at Ext.P4 rendered by the Tribunal on 22-01-2021, whereby the interim relief sought for by the original applicant for stay of the impugned Anx.A3 transfer order dated 12-11-2020 has been refused. 2. Heard Dr.K.P.Pradeep, learned counsel appearing for the petitioner in the O.P/sole applicant in the O.A before the Tribunal and Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondents in O.P/respondents in O.A. The original applicant has been holding the post of Fire and Rescue O.P(KAT) No.33/2021 4 Officer (Driver) in the Fire and Rescue Services Department of the State Government. The applicant has been working in the Station at Alathur in Palakkad District. The applicant has been confronted with the impugned Anx.A3 order dated 12-11-2020 issued by the 3[rd] respondent Director General of the Fire and Rescue Services Department, whereby he has been ordered to be transferred from the present station at Alathur in Palakkad District to the far away place at Peringome in Kannur District and according to the applicant, the distance between these two stations is more than 320 Kms. The ground of the transfer made out in Anx.A3 is that, the petitioner has been implicated as the sole accused in Anx.R3(a) FIR in Crime No.57/2020 of Kottayi Police Station for offences punishable under Secs.341, 323, 294(b) of the IPC. According to the applicant, the allegation raised against him in Anx.R3(a) FIR and FIS are false and motivated and that as a matter of fact, the defacto complainant in Anx.R3(a) FIR, who is a member of the local Grama Panchayath concerned and who is an activist of the ruling party and that the applicant's father had contested against the said complainant and out of political differences, the 5 O.P(KAT) No.33/2021 complainant had animosity against the applicant's father and consequently against the applicant as well. 3. According to the applicant, the said complainant had created some problems on the day in question and that the complainant had tried to assault the applicant, upon which the applicant's mother had tried to protect him and that the complainant had then manhandled the applicant's mother and though she had filed a petition in the police, the same was not acted upon by the police authority on account of the political clout of the complainant. On the other hand, the complaint given by the said complainant was immediately acted upon by the police authorities with all expedition and which led to the registration of Annexure.R3(a) FIR in Crime No.57/2020 of Kottayi Police Station for the abovesaid offences. Further that even going by the admitted allegations in Anx.R3(a), the offence as per Section 294(b) will not lie as going by the dictum well settled in that regard by series of rulings of this Court as in _**Latheef v. State of Kerala [2014 (2) KLT 987], P.T.Chacko v. Nainan Chacko [1967 KLT 799] Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT**_ O.P(KAT) No.33/2021 6 _**745].**_ Further that the other offences are only Sec.341 relating to wrongful restrain and Section 323 is only simple hurt which is a non cognizable offence etc, and that flimsy allegations are raised against the petitioner only to destroy his career etc. 4. Per contra, Sri. Antony Mukkath, learned Senior Government Pleader appearing for the respondents would submit that, the original applicant was previously included as a history sheeter and he has been involved in at least 4 criminal cases, some of which has been resulted in compounding out of settlement and in one case he has been acquitted etc, and that on account of the errant behaviour of the applicant he has already been imposed with penalties by the department as per Anx.R3(b) & R3(c), which has resulted in penalty of censure etc. That it is only on account of the nature of the allegations raised in Anx.R3(a) that the department authorities were constrained to transfer the petitioner as per the impugned Anx.A3 order. The Tribunal has now refused the pray for interim stay as per the impugned Ext.P4 order dated 22-01-2021. 5. Dr.K.P.Pradeep, learned counsel appearing for the original O.P(KAT) No.33/2021 7 applicant would submit that, during the course of the hearing of the application, the Tribunal after consideration of all relevant aspects of the matter had suggested to the respondents therein that the extreme step of the transferring of the petitioner to all the way from Alathur in Palakkad District to far away place at Peringome in Kannur District may be reconsidered and that the applicant may be transferred to some other stations, which is not far away from his residence etc,. That in defer to the said views expressed by the Tribunal, the respondents therein had furnished instructions that vacancies are available in Thrissur as well as in Perinthalmmanna at Malappuram District to accommodate the petitioner. Further that due to reasons which are totally unknown to the applicant the respondents have taken a very rigid and stiff stand that they are not prepared to even reconsider the transfer of the petitioner to place other than Peringome. 6. The learned counsel for the applicant would also point out that the other criminal cases are all for petty offences, which has been either compounded, settled or even acquitted and the disciplinary proceedings have only resulted in O.P(KAT) No.33/2021 8 the minor penal measure of censure as can be seen from Anxs.R3(b) & R3(c) etc. 7. After hearing both sides, We are of the considered view that, there is no necessity for us to interdict in the interlocutory order passed by the Tribunal as per Ext.P4. The impugned order was rendered only in the interlocutory stay application and it is for the Tribunal to take a decision on the main prayers in the main matter in the O.A. While doing so, the Tribunal may also consider the alternate plea of the original applicant that he may be accommodated at least in the vacancies which are available in Palakkad District or to other nearby places in the nearby districts like Thrissur, Malappuram etc. It is pointed out, as of now about 20 vacancies are available in Palakkad district to accommodate the applicant and that vacancies are also available in Thrissur as well as in Perinthalmanna at Malappuram District. The learned Senior Government Pleader will ensure that meticulous and detailed factual instructions are immediately furnished by respondent No.3 about the existence of vacancies in Palakkad District and other nearby districts like Malappuram & Thrissur and the Tribunal shall 9 O.P(KAT) No.33/2021 be apprised about the actual availability of vacancies to accommodate the incumbent like the applicant. The Tribunal may consider various aspects of the matter and may render final order in the main matter in the O.A and while considering the main prayers in the O.A, the present alternate pleas made by the applicant may also be duly taken into account by the Tribunal and it may be considered that in the event of the main prayer in the O.A not being granted at least the alternate plea of the petitioner for being accommodated in nearby places or nearby districts may also be duly considered. The 3[rd] respondent herein will ensure that an additional statement is duly filed before the Tribunal on the abovesaid aspects regarding the availability of vacancies in Palakkad district, Malappuram district & Thrissur District. The Tribunal may consider facilitation of the early final disposal of the main matter in O.A (Ekm) No.1719/2020 without much delay, preferably within a period of one month from the date of receipt of a certified copy of this judgment or within any time limit that may be appropriately found fit and proper by the Tribunal. 8. The Registry will forward a copy of this judgment to the 10 O.P(KAT) No.33/2021 Kerala Administrative Tribunal, Ernakulam Bench, which is dealing with O.A (Ekm) No.1719/2020 for necessary information. The Registry will also forward a copy of this judgment to the 3[rd] respondent Director General of Fire and Rescue Services Department, Thiruvananthapuram, at the cost of the petitioner, for necessary information and immediate compliance. With these observations and directions the above Original Petition will stand disposed of . **Sd/ALEXANDER THOMAS, JUDGE** **Sd/T.R.RAVI, JUDGE** KAS O.P(KAT) No.33/2021 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION IN OA (EKM) 1719 OF 2020, WITH ANNEXURES, PENDING BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL** - **ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED ON 4.11.2020 BEFORE THE JFCM COURT, PALAKKAD BY MRS.SULOCHANA** - **ANNEXURE A2 TRUE COPY OF THE FIR IN CRIME NO 57/2020 DATED 25.2.2020 OF KOTTAYI POLICE STATION** - **ANNEXURE A3 TRUE COPY OF THE ORDER NO E2-5496/2020 DATED 12.11.2020 OF THE 3RD RESPONDENT** - **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 3.12.2020 WITH ANNEXURES FILED BY THE 3RD RESPONDENT IN OA (EKM) NO 1719 OF 2020, BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL** - **ANNEXURE R3(A) TRUE COPY OF THE FIR** - **ANNEXURE R3(B) TRUE COPY OF THE ORDER NO B-6923/2017 DATED 31.1.2019** - **ANNEXURE R3(C) TRUE COPY OF ORDER NO B-4717/2017 DATED 1.6.2018** **ANNEXURE R3(D) TRUE COPY OF PASSPORT EXHIBIT P3 TRUE COPY OF THE REJOINDER OF THE PETITIONER WITH ANNEXURES TO THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN OA (EKM) NO 1719 OF 2020, BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL.** O.P(KAT) No.33/2021 12 - **ANNEXURE A4 TRUE COPY OF THE RELEVANT PAGES OF THE COMMUNICATION NO G-1000/2019 DATED 20.2.2019 OF THE DISTRICT FIRE OFFICER, PALAKKAD** - **ANNEXURE A5 TRUE COPY OF THE LETTER NO E 1934/2020 DATED 29.7.2020 OF DISTRICT FIRE OFFICER, PALAKKAD WITH ANNEXURE DOCUMENTS** - **ANNEXURE A6 TRUE COPY OF THE COMMUNICATION NO 3813/2017 DATED 8.3.2018 TO THE 3RD RESPONDENT** - **ANNEXURE A7 TRUE COPY OF THE COMMUNICATION NUMBER E2/11429/2016 DATED 6.4.2018 OF THE 3RD RESPONDENT** - **ANNEXURE A8 TRUE COPY OF THE ORDER NO M313514/2017 DATED 26.9.2019 OF THE 3RD RESPONDENT** - **ANNEXURE A9 TRUE COPY OF THE APPEAL DATED 29.11.2019 BEFORE THE 2ND RESPONDENT** - **ANNEXURE A10 TRUE COPY OF THE APPEAL DATED 2.8.2018 FILED BEFORE THE 3RD RESPONDENT** - **ANNEXURE A11 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 2ND RESPONDENT ON 19.9.2017** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.1.2021 IN OA (EKM) NO 1719 OF 2020 OF THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL** ## **RESPONDENT'S/S EXHIBITS:** //TRUE COPY// PA TO JUDGE