Dismissed

M.v.Gopalan v. State of Kerala & Others

Kerala HC16 Feb 2010WP(C)/2296/2010

Case brief

AI extract

What is this about?

This writ petition challenged the transfer order of an employee posted as Godown Keeper from Kannur to Aluva, alleging malafides due to a Lok Ayukta complaint against the transferring authority. The court held the transfer order valid but granted liberty to the petitioner to approach the corporation for a convenient transfer considering his son is a serving soldier.

What did the court decide?

Writ petition dismissed. Liberty granted to file a representation for convenient transfer in Kannur District; petitioner allowed to remain at State Warehouse Kannur till decision.

M.v.Gopalan Vs State of Kerala & Others — Service and Employment | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931

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WP(C).No. 2296 of 2010(J)

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PETITIONER(S):

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M.V.GOPALAN, GODOWN KEEPER, STATE WAREHOUSE, KERALA STATE WAREHOUSING CORPORATION, KANNUR.

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BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.PETER JOSE CHRISTO, MR.S.A.ANAND, MR.JOVY GEORGE VARGHESE MR.RAMESH. C.R.

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RESPONDENT(S):

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1. THE KERALA STATE WAREHOUSING CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, KOCHI-16.

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2. A.RAJENDRA PANICKER, GENERAL MANAGER (CONSTRUCTION), IN CHARGE OF MANAGING DIRECTOR, HEAD OFFICE, KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, KOCHI-16.

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R1 & R2 BY ADV. MR.MAJNU KOMATH, SC, K.S.W.C.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.2296/2010 J

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE ORDER NO.KSWC/T&P/2009-10 DTD. 20/01/2010 OF THE MANAGING DIRECTOR.

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P2: COPY OF THE ORDER NO.KSWC/ADMN/T&P/2007-2008 DTD.31/07/2007 OF THE MANAGING DIRECTOR OF THE CORPORATION.

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P3: COPY OF THE ORDER DTD. 22/12/2009 ON I.A.695/09 IN COMPLAINT NO. 1589/09 C.

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RESPONDENT'S EXHIBITS:

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R1(A): COPY OF THE MINUTES DTD. 23/12/2009.

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R1(B): COPY OF THE LETTER SENT BY THE WAREHOUSE MANAGER, THALIPARAMBU TO THE REGIONAL MANAGER, KANNUR DTD.18/01/10 AND COPY OF THE REPORT TO THE MANAGING DIRECTOR DTD. 27/01/10.

/TRUE COPY/

P.A.TO JUDGE

Kss

C.T. RAVIKUMAR, J.

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- - - - W.P. (C) No. 2296 OF 2010

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Dated this the 16^th day of February, 2010

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The petitioner who is a Godown Keeper attached to the State Warehouse, Kannur was transferred as per Ext.P1 and posted to the Regional Office, Ernakulam at Aluva. He assails the said order of transfer on several grounds. The main contention is that the said order is actuated by malafides. He is a member of the executive committee of the Kerala State Warehousing Corporation Employees Union (CITU) the president of which, approached the Kerala Lok Ayukta by filing complaint No.1589/09 against the second respondent and obtained Ext.P3. As per Ext.P3, the 2^nd respondent was injuncted from taking administrative decision including policy matters in the Corporation as Managing Director except day to day administration until further orders. The said action of the Union is the provocation for issuing Ext.P1 order, it is contended. The petitioner also contends that he was transferred to the State Warehouse, Kannur as per Ext.P2 dated 31.7.2007 only based on the representation

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WPC.No.2296 of 2010

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of his son who is a serving army personnel that was routed through proper channel. It is further contended that going by the norms of the first respondent, the petitioner could have stayed at State Warehouse, Kannur normally for a period of 6 years on the strength of Ext.P2 transfer order. Yet another contention taken is that there is no post of Godown Keeper at Regional Office, Ernakulam at Aluva. Lastly, it is contended that the respondent cannot be heard to contend that there was no requirement of Godownkeepers at all in the State Warehouse at Kannur, on account of the fact that recently a Godown Keeper by name Shukur was transferred and posted as such at State Warehouse, Kannur as per Ext.P4 Order dated 16.12.2009.

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Resisting the claims and contentions of the petitioner, the first respondent has filed a counter affidavit in this writ petition. The contention of the petitioner that Ext.P1 is actuated by malafides has been strongly refuted therein. It is stated that as early as on 23.12.2009, a meeting of the officers under the first respondent was convened in the chamber of the Managing Director in the presence of the Chairman and Ext.R1(a) is its minutes. It would reveal that the staff requirement of various Warehouses was assessed on that day

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WPC.No.2296 of 2010

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and as per the same two of the three Godown Keepers could be spared from the State Warehouse at Kannur. It is stated in the counter affidavit that the Managing Director is competent to effect the transfer and posting of employees under the first respondent. Regulation 2(iii) of the Kerala State Warehousing Corporation General and Staff Regulations, 1963empowers the Managing Director to allocate duties to the staff and make such other arrangements as may be necessary for the efficient discharge of the functions of the Corporation. That apart according to the Learned Standing Counsel, Regulation 20(1) makes it obligatory on the part of the employees to serve the Corporation in such capacity and in such place as may be directed by the Corporation from time to time. It is also contended that there is shortage of Godown Staff in various Warehouses under the Ernakulam Region and therefore, the mere absence of the post of Godown Keeper in the Regional Office cannot be a reason to assail Ext.P1. Further, it is stated that according to the necessity the petitioner would be posted in any of such Warehouses where the service of Godown Keeper is required. The mere silence of reason in Ext.P1 cannot be taken as crucial because there is no invariable rule that an order of transfer should contain the

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WPC.No.2296 of 2010

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reason. The contention is that the petitioner is an executive member of the Union, the president of which filed a complaint before the Kerala Lok Ayukta and obtained Ext.P3 is the provocation for issuing Ext.P1 order is too short a contention to presume malafides against the 2^nd respondent, it is further contended. The learned Counsel for the respondents further contended that it is after the transfer of Shukur as per Ext.P4, that the meeting was held as is obvious from Ext.R1(a) and that the petitioner during his entire service of 30 years under the first respondent served in Kannur Region itself for about 23 ½ years. Since the unit of transfer is state the petitioner cannot always claim for retention in Kannur region itself, it is further contended. As a reply to the claim of the petitioner for a posting at Pariyaram Medical College for DES work it is contended that in the light of Ext.R1(b), he cannot be transferred and posted there. Ext.R1(B) would reveal that earlier, he was posted there once, and at that time he left the place at 3.15 p.m. without obtaining permission.

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Generally, the transfer and posting of employees in a corporation like the first respondent fall within the realm of power and administrative prerogative of the competent authority. Violation of statutory provisions or vitiated by

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WPC.No.2296 of 2010

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malafides are the grounds normally, available to attack an order passed by the competent authority. Only when a firm foundation of facts is pleaded and established an order of transfer can be interfered with on the ground of being vitiated by malafides. The reason that the president of the Union to which the petitioner belongs and holds membership in the executive committee, obtained Ext.P3 order against the second respondent is not sufficient to draw an inference of malafides. The petitioner do not have a case that he is the one and the only member of that committee. I cannot, therefore, uphold the contention of the petitioner that Ext.P1 is vitiated by malafides. There is no contention for the petitioner that any of the statutory provisions have been violated while issuing Ext.P1 order. The only contention is that normally going by the norms the petitioner could have continued in the State Warehouse, Kannur normally, for a period of six years. That cannot be a reason to interfere with Ext.P1. That apart, the petitioner is not refuting the fact that out of the total service of 30 years with the first respondent he had worked about 23 ½ years in his native District itself.

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The petitioner did not dispute the competence of the

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2^nd respondent to effect transfer and posting of employees of

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WPC.No.2296 of 2010

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the Corporation and also his obligation to serve the corporation in such place as directed by the corporation in terms of Regulation 20(1). In the circumstances, I am of the view that there is no reason to interfere with Ext.P1 order of transfer. The writ petition is liable to fail. However, I think, the same shall not stand in the way of the respondent considering the following:-

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The serving Jawans are guarding us day in and day out and hence, Governmental Departments and Public undertakings cannot wriggle out of their moral obligation to protect their families and in that regard, invariably in all transfer norms provisions have been incorporated.

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The first respondent virtually honoured that moral obligations by transferring the petitioner from State Warehouse, Iritty to State Warehouse, Kannur as per Ext.P2 based on the application of his son routed through proper channel. Since this fact is not disputed it is only appropriate for the first respondent to consider for a convenient transfer and posting of the petitioner expeditiously, preferably in Kannur District itself. In this context it is apposite to consider certain aspects: The petitioner who is the father of a serving Jawan is now aged 56 years. Besides the said son who is

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serving the Indian Army the petitioner and his wife got only two daughters and they were given in marriage. Thus, on account of the transfer, according to the petitioner his wife alone would be there at Kannur which is far away from Aluva.

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In the said peculiar circumstances, I am inclined to grant the petitioner the liberty to file a representation before the first respondent within one week from the date of receipt of a copy of this judgment. If such a representation is received the same shall be considered by the first respondent within three weeks thereafter. Considering the fact that the petitioner has not so far been relieved pursuant to Ext.P1 and that no other substitute is posted there it is only appropriate to permit the petitioner to continue at State Warehouse, Kannur, itself till a decision is taken on such a representation. It is made clear in the event of the petitioner failing to make a representation within the stipulated time then Ext.P1 order of transfer would take its effect automatically.

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Sd/- (C.T. RAVIKUMAR, JUDGE)

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jma

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//true copy//

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P.A. To Judge

M.v.Gopalan v. State of Kerala & Others

Case brief

What is this about?

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M.v.Gopalan v. State of Kerala & Others

Case brief

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