IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2296 of 2010(J)
1. M.V.GOPALAN, GODOWN KEEPER,
... Petitioner
Vs
1. THE KERALA STATE WAREHOUSING CORPORATION
... Respondent
2. A.RAJENDRA PANICKER,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.MAJNU KOMATH, SC, K.S.W.C.
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :16/02/2010
O R D E R
C.T. RAVIKUMAR, J.
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W.P. (C) No. 2296 OF 2010
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Dated this the 16th day of February, 2010
J U D G M E N T
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 2nd
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
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.
2. 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
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
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 2nd 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 = 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.
3. 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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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 = years in his native District itself.
4. The petitioner did not dispute the competence of the
2nd respondent to effect transfer and posting of employees of
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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:-
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.
6. 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.
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.
Sd/-
(C.T. RAVIKUMAR, JUDGE)
jma
//true copy//
P.A. To Judge