Disposed

K.Santhoshkumar v. Kerala Stae Financial Enterprises Ltd.

Kerala HC9 Sept 2016WP(C)/29938/2016

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging a transfer order. The court directed the respondent authority to reconsider the petitioner's request for alternative posting in Calicut based on new representations and medical evidence after the petitioner joins the new station.

What did the court decide?

Directing the respondent to reconsider the petitioner's representation regarding posting in Calicut after joining the new station and submitting further documents.

K.Santhoshkumar Vs Kerala Stae Financial… — Pension and Retirement Benefits | Kerala HC (2016)

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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 ALEXANDER THOMAS

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FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938 WP(C).No. 29938 of 2016 (N)

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PETITIONER:

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K.SANTHOSHKUMAR,

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AGED 46 YEARS, S/O.BALAKRISHNAN NAIR, MANAVEETIL HOUSE, ERANBICKAL P.O, KOZHIKODE 673 303, [OFFICE ATTENDANT, KERALA STATE FINANCIAL ENTERPRISES LTD, WEST HILL BRANCH, CALICUT 673 005].

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BY ADV. SMT.BIMALA BABY

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RESPONDENTS:

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1. KERALA STATE FINANCIAL ENTERPRISES LTD. BHADRATHA, THRISSUR 680 020,

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REPRESENTED BY ITS MANAGING DIRECTOR.

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2. THE BRANCH MANAGER, KERALA STATE FINANCIAL ENTERPRISES LTD,

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WEST HILL BRANCH, CALICUT 673 005.

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BY ADVS.SRI.BENNY P.THOMAS, SC, KERALA STAE FINANCIAL ENTERPRISES LTD SRI.M.GOPIKRISHNAN NAMBIAR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/22/9/16

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WP(C).No. 29938 of 2016 (N) ----------------------------

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APPENDIX

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PETITIONER’S EXHIBITS :

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EXHIBIT P1. COPY OF THE JUDGMENT DATED 20.7.16 PASSED BY THIS HONOURABLE COURT IN WPC 24210/16 [A].

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EXHIBIT P2. COPY OF THE LETTER DATED 31.7.16 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

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EXHIBIT P3. COPY OF THE MINUTES OF THE HEARING CONDUCTED BY THE IST RESPONDENT ON 18.8.16.

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EXHIBIT P4. COPY OF THE ORDER DATED 25.8.16 PASSED BY THE IST RESPONDENT REJECTING THE REPRESENTATION OF THE PETITIONER.

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EXHIBIT P5. COPY OF THE REPRESENTATION DATED 30.8.16 TO THE IST RESPONDENT.

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EXHIBIT P6. COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.P.BEHIRSHAN, GOVERNMENT HOSPITAL, KOZHIKODE.

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EXHIBIT P7. COPY OF THE ORDER OF APPOINTMENT MADE TO ANOTHER JUNIOR ASSISTANT IN THE NADAKAVU BRANCH NAMELY SHAFEEK J.S.

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EXHIBIT P8. COPY OF THE ARTICLE TAKEN DOWN FROM WIKIPEDIA ABOUT INTERVERTEBRAL DISC DISORDER.

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EXHIBIT P9. COPY OF THE APPLICATION SUBMITTED UNDER RIGHT TO INFORMATION ACT CALLING FOR THE VACANCIES EXISTING IN KOZHIKODE CITY.

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EXHIBIT P10. COPY OF THE LIST OF POSTING UNDER THE RESPONDENTS IN CALICUT DISTRICT.

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RESPONDENTS’ EXHIBITS :

NIL

// True Copy //

P.A. To Judge

DSV/22/9/16

ALEXANDER THOMAS, J.

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W.P.(C).No. 29938 of 2016

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==================

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Dated this the 9^th day of September, 2016 J U D G M E N T

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The grievance of the petitioner, who is working as Office Assistant in the office of the 2^nd respondent, is in regard to his transfer and posting as per the proceedings dated 28.5.2016 issued by the respondent KSFE, whereby he was ordered to be transferred from Calicut Branch to Keezhpally Branch, in Kannur district, which is more than 130 kilometers away, consequent to his promotion. The ground on which the said transfer order is sought to be impugned is that the petitioner is undergoing treatment for IVDP (pain in the right hip and in the left part of the upper thoracic area) from 2002 onwards and that he had been advised to avoid tedious journeys. This Court as per Ext.P-1 judgment dated 20.7.2016 rendered in W.P.(C).No. 24210/2016 filed by the petitioner herein had disposed of that petition by directing the competent authority of the respondents to consider the representation made by the petitioner (Ext.P-11 therein) in the matter of the request of the

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W.P.(C).No. 29938/16 - : 2 :-

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petitioner for retention in Calicut and pass orders thereon, etc. Now in compliance with the said judgment, the respondent authority had conducted hearing in the matter of as revealed by Ext.P-3 and had passed Ext.P-4 order dated 25.8.2016, rejecting the request of the petitioner. It is this order that is under challenge in this Writ Petition. The prayers made in this Writ Petition are as follows:

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“i) To issue a writ of certiorari or other appropriate writ or order quashing Ext.P-4 issued by the 1^st respondent.

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ii) To issue a writ of mandamus or other appropriate writ or order directing the 1^st respondent to consider to post the petitioner in and around Calicut City on any existing vacancy within such time as this Hon'ble Court may deem just and proper in the interest of justice.

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iii) To issue a writ of mandamus or other appropriate writ order directing the 1^st respondent to disburse salary and allowances to the petitioner from 1/6/2016 onwards forthwith or within such time as this Hon'ble Court may deem just and proper in the interest of justice;”

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Heard Smt.Bimala Baby, learned counsel appearing for

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the writ petitioner and Sri.Benny.P.Thomas, learned Standing Counsel appearing for the respondents.

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The learned Standing Counsel for the respondent KSFE points out that the petitioner was ordered to be transferred as per the proceedings dated 28.5.2016 consequent to his promotion and that as per the norms, no illegality was committed by the employer in transferring and posting the incumbent consequent to his

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W.P.(C).No. 29938/16 - : 3 :-

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promotion. One of the grounds stated in Ext.P-4 is that the petitioner has been working in Kozhikode West Hill branch for the last seven years and that the transfer to Keezhpally is only to a branch which is only in the nearby district and that the promotion posting to Keezhpally branch is to satisfy requirement of the company. Further it is stated that the medical certificate produced by the petitioner does not prove that he is having disabilities which

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prevents him from long journey and that the medical certificate had only shown that the petitioner needs only 3 weeks' rest etc. More importantly, it is also stated therein that the petitioner's request to post him in any of the branches in Kozhikode district can be considered only when there is sufficient number of candidates, vacancies, requirement in Kozhikode district. The learned counsel for the petitioner has submitted that the petitioner has now secured Ext.P-6 medical certificate dated 7.9.2016, which shows that the ailment of IVDP suffered by him requires avoidance of strenuous work long train journey, etc. for the restoration of his health. Further the learned counsel would submit that the specific ground stated in Ext.P-4 so as to justify the rejection of the petitioner's request for posting in any of the branches in Kozhikode district is

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W.P.(C).No. 29938/16 - : 4 :-

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that the same could be considered only when there are sufficient number of candidates, vacancies and requirement in Kozhikode district. Accordingly, it is submitted by the petitioner that the respondents have clearly admitted therein that as of now there are no sufficient number of candidates, who opt for Kozhikode district and that there are no vacancies or requirement in Kozhikode district so as to accommodate the claim of the petitioner. The petitioner

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would point out that there are several vacancies in and around Kozhikode district and that therefore the factual premise of the said ground that there are no adequate vacancies is wrong and that as long as there are vacant positions in sanctioned posts, it cannot be said that there are no requirements in Kozhikode district, so long as those posts are not validly abolished. The petitioner submits that these crucial aspects have not been properly considered in its proper perspective. It is further pointed out that Ext.P-7 would reveal that yet another candidate was posted in the Nadakkavu branch and that the said candidate has not so far joined within the time permitted and that the same clearly shows that vacancies are available in respect of posting covered by Ext.P-7, etc.

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In the light of these aspects, the petitioner submits that

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W.P.(C).No. 29938/16 - : 5 :-

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this Court may issue appropriate directions to the respondents to reconsider the matter on the petitioner submitting a representation in that regard. It is seen that in spite of the fact that transfer order was issued as early as on 28.5.2016, the petitioner has not so far cared to join the station to which he has been posted consequent to the transfer. The petitioner is bound to obey the orders of the superiors unless those have been altered in the manner known to

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law. The petitioner's counsel submits on the basis of the instructions from the petitioner that the petitioner would join in the new station pursuant to the transfer order dated 28.5.2016, without any further delay. After joining the new station, the petitioner will be at liberty to submit a representation pointing out the grievances and may also urge out the grounds in support of his claim before the Managing Director of the 1^st respondent. The said representation should contain a letter from the head of office of the new station that the petitioner has joined there. The petitioner will also be at liberty to produce necessary documents like Ext.P-7

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medical certificate and any other documents, along with the representation in support of his submissions and contentions. On receipt of such a representation and on fulfilling of the abovesaid

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W.P.(C).No. 29938/16 - : 6 :-

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conditions, the Managing Director of the 1^st respondent shall take up such representation without much delay and will take a considered decision thereon, after granting an opportunity of being heard to the petitioner, within a period of 1 week from the date on which the hearing is conducted. The specific contentions urged by the petitioner regarding the tenability of the aforementioned ground of rejection as raised in Ext.P-4 and all other contentions should be specifically examined and considered by the respondent while taking the decision as directed above.

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With these observations and directions, the Writ Petition (Civil) stands finally disposed of.

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Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

K.Santhoshkumar v. Kerala Stae Financial Enterprises Ltd.

Case brief

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K.Santhoshkumar v. Kerala Stae Financial Enterprises Ltd.

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