Allowed

Kerala State Co-Operative Agriculture and Rural Development v. the Co-Operative Tribunal

Kerala HC29 Oct 2013WP(C)/2438/2013

Case brief

AI extract

What is this about?

The High Court exercised judicial review over orders subjecting a driver to transfer from Thiruvananthapuram to Kozhikode. The Court rejected the claim that the transfer was vitiated by alleged mala fides and held that the transfer norms cited by lower bodies were directory, not mandatory, allowing the employer administrative discretion.

What did the court decide?

The orders of the Co-operative Arbitration Court and the Co-operative Tribunal setting aside the transfer were set aside.

Kerala State Co-Operative Agriculture and… — Labour and Industrial Disputes | Kerala HC (2013)

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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 K.VINOD CHANDRAN

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TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935

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W.P.(C).No.2438 of 2013 (D)

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PETITIONER:-

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KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LIMITED, STATUE JUNCTION THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY STANDING COUNSEL SRI.GEORGE POONTHOTTAM.

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RESPONDENTS:-

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THE CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM- 695 001, REPRESENTED BY ITS SECRETARY.

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SRI. SUDARSANA KUMARAN NAIR, DRIVER,

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THE KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., REGIONAL OFFICE, KOZHIKODE - 689 001.

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R1 BY SENIOR GOVERNMENT PLEADER SRI.P.M.SAMEER. R2 BY ADVS. SRI.R.T.PRADEEP,

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SRI.P.BIJIMON.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2013, ALONG WITH W.P(C).NO.3572 OF 2013-V, THE COURT ON 29-10-2013 DELIVERED THE FOLLOWING:-

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W.P.(C).NO.2438/2013-D

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT-P1 - TRUE COPY OF THE PROCEEDINGS OF THE MANAGING DIRECTOR NO.E1/T&P/2011-2012 DATED 12-10-11.

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EXHIBIT-P2 - TRUE COPY OF THE A.R.C.NO.49 OF 2011 FILED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM.

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EXHIBIT-P3 - TRUE COPY OF THE ORDER NO. CLT(2)13227/96 DATED 22-5-1998 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES.

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EXHIBIT-P4 - TRUE COPY OF THE ORDER DATED 18-10-2011 IN I.A.NO.49/2011 IN ARC.49/11.

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EXHIBIT-P5 - TRUE COPY OF THE ORDER DATED 30-1-2012 IN IA.NO.1420/12 IN WPC. NO.1125/2012.

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EXHIBIT-P6 - TRUE COPY OF THE JUDGMENT IN WPC. 1125/2012 DATED 14-3-2012.

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EXHIBIT-P7 - TRUE COPY OF THE STATEMENT FILED ON BEHALF OF THE PETITIONER IN ARC NO.49/2011 DATED 18-1-2012.

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EXHIBIT-P8 - TRUE COPY OF THE AWARD DATED 17-7-2012 IN ARC NO.49/2011 PASSED BY THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM.

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EXHIBIT-P9 - TRUE COPY OF THE MEMORANDUM OF APPEAL A.P.NO.79/2012 FILED BEFORE THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM.

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EXHIBIT-P10 - TRUE COPY OF THE AFFIDAVIT FILED IN A.P.79/2012 DATED 29.11.2012.

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EXHIBIT-P11 - TRUE COPY OF THE JUDGMENT OF THE TRIBUNAL DATED 21-12-2012 IN APPEAL NO.79/2012.

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EXHIBIT-P12 - TRUE COPY OF THE COMMUNICATION NO.RO/KOZ/E1/12-13/12-13 DATED 8-1-2013 ISSUED BY THE REGIONAL MANAGER, KOZHIKODE TO THE MANAGER DIRECTOR OF THE PETITIONER BANK.

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RESPONDENTS' EXHIBITS:-

NIL.

vku/-

( true copy )

K.Vinod Chandran, J.

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W.P.(C).Nos.2438 of 2013-D & 3572 of 2013-V

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Dated this the 29^th day of October, 2013

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JUDGMENT

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The subject matter of the writ petitions is the transfer of a driver from Thiruvananthapuram to Kozhikode. W.P.(C). No.2438 of 2013 is filed by the employer, State Co-operative Bank, challenging Exhibit P8 award of the Co-operative Arbitration Court (hereinafter referred to as “the Arbitration Court”), confirmed in appeal by Exhibit P11 by the Kerala Co-operative Tribunal (hereinafter referred to as “the Co-operative Tribunal”). W.P.(C). No.3572 of 2013 is filed by the employee, seeking implementation of the aforementioned orders.

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The parties and the documents are referred to as produced in W.P.(C).No2438 of 2013. The 2^nd respondent admittedly was one of the three drivers posted at the Head Office of the Bank at Thiruvananthapuram; when he and another driver were transferred by order dated 12.10.2011 (Exhibit P1). The 2^nd respondent was transferred to Regional Office, Kozhikode and the other driver to the Regional Office, Wayanad. Aggrieved by the transfer, the 2^nd respondent filed Exhibit P2 before the Arbitration Court.

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WP(C).Nos.2438 of 2013-D & - 2 - 3572 of 2013-V

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The contention of the 2^nd respondent was that the Regional Office of the Bank at Kozhikode does not need a regular driver and the sole vehicle at Kozhikode was operated by a daily wage driver, since the requirement in the said office is minimal. It was contended that the administrative convenience and exigency of service was a mere ruse to effect transfer and the petitioner, the senior-most driver, on transfer to the Regional Office, Kozhikode would have to remain idle almost 20 days without any work. The service of the 2^nd respondent at its Head Office at Thiruvananthapuram derives business benefits to the Head Office. The 2^nd respondent also contended that as per the norms of transfer applicable to the petitioner-Bank, Last Grade employees are to be posted in their native districts as far as possible and employees who have only two years shall not be disturbed by orders of transfer. The 2^nd respondent claimed that

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his status as a Last Grade employee, a native of Thiruvananthapuram and due to retire on 31.12.2013 entitles him to be retained at Thiruvananthapuram. To further buttress the challenge against his transfer, he also relied on yet another provision in the norms, which required compassionate treatment of employees whose dependants require expert treatment and

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WP(C).Nos.2438 of 2013-D & - 3 - 3572 of 2013-V

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attendance; restricting the transfer of such employees. According to him, his wife had been suffering from mental illness for long and requires constant care and attention and, hence, his stationing at Thiruvananthapuram is imperative. There was also a bland allegation of mala fides and that the transfer is under political instigation. These were the essential averments in Exhibit P2 complaint.

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The proceedings before the Arbitration Court and this Court are not relevant for the consideration of the dispute raised herein. Suffice it to say that while the petitioner-Bank contends that Exhibit P8 was passed without hearing the counsel for the petitioner-Bank for reason only of his absence on a particular day; the order Exhibit P8 reveals that the matter was posted on various dates and the petitioner and their counsel were consistently absent. Be that as it may, the Arbitration Court considered the norms and found that though the 2^nd respondent's contentions with respect to the petitioner's nativity, status as Last Grade employee and liability to retire within two years are established, it is up to the discretion of the Bank to reject a request made, if the request is found to be not genuine. Specifically Clauses 12, 13 and 18 were referred to

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WP(C).Nos.2438 of 2013-D & - 4 - 3572 of 2013-V

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and the 2^nd respondent was held to be entitled to get the benefit of the said provisions. The norms having been found to be regulating the transfer of employees in the petitioner-Bank, it was found that the Bank had violated the same. Exhibit P1 order was found to be against such transfer norms. The medical certificate of the wife of the 2^nd respondent produced was relied on to find that the 2^nd respondent's case requires a humanitarian consideration from the authorities. On the above findings, the petitioner-Bank was directed to repost the 2^nd respondent to the Head Office at Thiruvananthapuram within one month and to “retain him in the Head Office till his retirement” ( sic ).

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The Bank was in appeal before the Co-operative Tribunal. The Tribunal directed the Bank to substantiate their contention of exigencies of service, which were projected to support the transfer. The petitioner-Bank filed an affidavit contending that they had a sanctioned strength of 19 drivers, out of which 10 were available in service. As against 3 vehicles at the Head Office, there were 3 drivers and the Regional Office at Kozhikode did not have any permanent driver posted there. The sole vehicle at the Regional Office at Kozhikode, according to the petitioner-Bank, was also to be garaged for certain

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WP(C).Nos.2438 of 2013-D & - 5 - 3572 of 2013-V

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repairs, for supervision of which a permanent driver was found inevitable. Out of the 3 vehicles, it was also contended that the vehicle of the President of the petitioner-Bank was operated by engaging a daily wage driver at the expense of the Bank.

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The Tribunal found that it is not justified in making

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any comments about the work arrangement made by the petitioner-Bank. However, the Tribunal found that the Head Office of the Bank had only 2 permanent drivers and the 3^rd one was posted there on transfer by order dated 07.10.2011. Since Exhibit A1 (Exhibit P1 herein) order transferred both the other drivers, one to Kozhikode and the one to Wayanad, there was only one permanent driver available in the Head Office, in addition to the Vehicle Supervisor and found this to be anomalous, since admittedly there were two vehicles at Thiruvananthapuram, excluding that of the President. The contention of the Managing Director was that the Managing Director had been undergoing training outside India and when required the Vehicle Supervisor would be engaged as driver in his vehicle. Such averments were found to be intended at covering up the illegality in making the transfers. The transfer of the 3^rd driver from Kollam to Thiruvananthapuram when there

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WP(C).Nos.2438 of 2013-D & - 6 - 3572 of 2013-V

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was in existence 2 permanent drivers in Thiruvananthapuram was relied on to find that the transfer and posting in the service of the Bank is not a necessity or exigency of service. Again Exhibit P3 transfer norms were relied on to confirm the findings of the Arbitration Court. The Tribunal found that as on the date of the transfer order, there was no necessity to transfer 2 drivers

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from the Head Office at Thiruvananthapuram and the transfer order was found to be tainted with mala fides and, hence, found to be unjustified.

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I have heard the learned counsel for the petitioner-Bank and the 2^nd respondent and I have given anxious consideration to the disputes raised, especially keeping in mind that two authorities below have found the transfer to be bad, placing reliance on the norms and this Court is exercising judicial review, the contours of which is very limited.

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At the outset, the allegation of mala fides and the

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finding entered into by the Tribunal terming the transfer order as vitiated for reason of mala fides has to be examined. It is trite that a mala fide action cannot be easily found and has to be supported by pleadings and definitely not inferred on assumed circumstances. As was noticed, in the beginning, the plea of

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WP(C).Nos.2438 of 2013-D & - 7 - 3572 of 2013-V

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mala fides was a bland one, coupled with the allegation of political interference. No particular person was named; nor was

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it attempted to plead any ill-will of any officer of the petitioner-Bank against the 2^nd respondent . The Tribunal's findings are based on the fact that while there were 2 vehicles available in the Head Office, there was no administrative exigency in transferring 2 out of 3 drivers to the Regional Offices. The Tribunal also relied on an earlier action of the petitioner-Bank in October, 2011, when another permanent driver in Kollam was transferred to Thiruvananthapuram to join the 2 permanent drivers already available there. Administrative exigencies could not have been found against, merely on the play of numbers and it is for the employer to adjust the work amongst the permanent employees and the part-time employees as the situation warrants. Going by the records, it is an accepted practice that daily wage employees are appointed, since all the sanctioned posts are not filled up. The Regional Offices at Kozhikode and Wayanad were admittedly without permanent hands. Though 2 vehicles were available at the Head Office, one driver was there and the Managing Director, who was out of station, had specifically averred that he uses the

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WP(C).Nos.2438 of 2013-D & - 8 - 3572 of 2013-V

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services of the Vehicle Supervisor to run his vehicle when he is in station. It is also pertinent that the petitioner-Bank had a contention that the vehicle at Kozhikode was garaged for repairs, the supervision of which could only be carried on by a permanent driver. Needless to say, there cannot be a daily wage appointment for idling in the workshop and no daily wage worker could be entrusted with the supervision of the repairs. It is clear that on the facts available, the Tribunal had misdirected itself to enter a finding of mala fides , especially when there was no specific pleading to that effect and when the Arbitration Court had not found anything on the bland allegation made in the complaint.

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The transfer order was set aside for the further reason of it having violated the norms, on which both the Arbitration Court and the Tribunal spoke in the same voice. Clauses 12, 13 and 18 are extracted hereunder:

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“12. Last Grade employees will be posted in their native districts or districts of their choice as far as possible, however, if necessity so arisen, they shall be transferred outside their native districts.

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Employees who have two years of service to retire may be posted as far as possible to the station of their choice. Preference being given to those who retire earlier.

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WP(C).Nos.2438 of 2013-D & - 9 - 3572 of 2013-V

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In the case of employees, where they themselves, or their dependants require expert medical treatment and the physical presence of the employee at a particular place, their request transfer shall be considered. However, it is upto the discretion of the Bank to reject such request if the genuineness of the request is found not satisfactory (Dependent means the dependents as defined in KGS Medical Attendance Rules)”.

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The status of the 2^nd respondent as a Last Grade employee is seriously challenged by the petitioner-Bank. It is contended that the post of driver does not come within the meaning of Last Grade Service under Rule 12(16A) of Part I of Kerala Service Rules, which is applicable to the petitioner-Bank also. Looking at Appendix III of the Co-operative Societies Act, 1969, the only possible inference is that the posts of Life Operator and Peon/Watcher alone come under the category of Last Grade Service, since those are the posts carrying the lowest scale of pay in the schedule of pay scales applicable to State Co-operative Banks. In any event, the only prescription is that as far as possible, the Last Grade employee should be posted in the native district or in the district of his choice. However, it is admitted that the post is transferable and it is so specified in

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WP(C).Nos.2438 of 2013-D & - 10 - 3572 of 2013-V

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Clause-12 itself, of course only when necessity arises. Administrative exigencies is the necessity contemplated under the provision. Clause-13 with respect to restriction in transferring employees who have less than 2 years also is not a clear mandate, going by the words employed in the said clause.

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What remains is the contention of the 2^nd respondent that his wife is afflicted by mental illness and requires constant attention. Clause-18 speaks of favourable consideration of requests of employees to be retained at a particular place when they themselves or their dependants require expert medical treatment and the physical presence of the employee at a particular place . The 2^nd respondent does not have a contention that his wife's treatment can be carried on only at Thiruvananthapuram or that his physical presence at Thiruvananthapuram is imperative; which physical presence, used in the said clause, has to take colour from the medical treatment referred to in the said clause. This Court is of the opinion that though the norms, Exhibit P3, are made applicable

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to the petitioner-Bank, as has been found in instances of challenge against transfers; the transfer norms does not have the force of a rule or regulation from which the employer cannot

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WP(C).Nos.2438 of 2013-D & - 11 - 3572 of 2013-V

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at all deviate and sufficient elbow room has to be necessarily conceded to the employer to make adjustments in work arrangement.

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It is also trite that transfer orders can be successfully challenged only when it is shown that the post occupied is not transferable, the authority who issued the order is not competent to issue such orders and when the transfer is vitiated by mala fides . Admittedly the first two contentions are not there in the instant case. The contention of mala fide , though raised, has been found to be not substantiated by sufficient pleadings and the findings of the Tribunal on that count have been found to be mere inference on surmises. The findings of the Arbitration Court, as confirmed by the Tribunal, in the opinion of this Court, are based on irrelevant considerations and the conclusions, on the facts disclosed, is not reasonable or prudent. In such circumstance, Exhibits P8 and P11 orders are set aside and W.P.(C).No.2438 of 2013 stands allowed and as a consequence, W.P.(C).No.3572 of 2013 stands dismissed. The parties are directed to suffer their respective costs.

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Before leaving the matter, it has to be noticed

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that though humanitarian considerations relied on by the

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WP(C).Nos.2438 of 2013-D & - 12 - 3572 of 2013-V

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Arbitration Court, should definitely inspire the action of authorities, it is not for an adjudicatory body to provide such inspiration by directory orders. The Arbitration Court, it cannot but be noticed, goes one step ahead in directing retention of the 2^nd respondent in the Head Office till his retirement. These are all matters which should be ideally left to the discretion of the authorities, which discretion should be exercised fairly and reasonably. Hence, though this Court has rejected the challenge

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made by the 2^nd respondent against the transfer orders, it is still open for the 2^nd respondent to approach the authorities with a request for compassionate transfer back to the Head Office, in which event this Court is definite that the authorities would consider it fairly and reasonably.

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vku/-

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Sd/K.Vinod Chandran, Judge

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( true copy )

Kerala State Co-Operative Agriculture and Rural Development v. the Co-Operative Tribunal

Case brief

What is this about?

What did the court decide?

Kerala State Co-Operative Agriculture and Rural Development v. the Co-Operative Tribunal

Case brief

What is this about?

What did the court decide?

What the court decided

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