IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21597 of 2009(T)
1. C.R.NEELAKANDAN NAMBOODIRI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE MANAGING DIRECTOR,
3. KERALA STATE ELECTRONICS DEVELOPMENT
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.T.P.KELU NAMBIAR (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/12/2009
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NO. 21597 OF 2009 (T)
=====================
Dated this the 22nd day of December, 2009
J U D G M E N T
Prayers in this writ petition are to quash Ext.P1 order to the
extent the petitioner is transferred from Aroor in Alappuzha
District to Hyderabad and a direction to respondents 2 and 3 to
retransfer him to Keltron Controls, Aroor is also sought for.
2. Petitioner is an Engineering Graduate. He was initially
appointed as a Development Engineer II in the 3rd respondent
Company in the year 1981. He was given promotions and finally,
by Ext.P23 order dated 03.06.2009, the petitioner was promoted
as Deputy General Manager in the scale of pay of Rs.3600-5000
with effect from 01.01.2009. By Ext.P1 order dated 23.07.2009,
along with two others who were also working at Keltron Controls,
Aroor, one of the units of the 3rd respondent, petitioner was
transferred and posted to Hyderabad Marketing Office of the
company. This order is under challenge in this writ petition.
3. An important aspect of this case, which is required to
be stated at the outset is that, although along with the writ
petition as amended, only 8 documents have been produced,
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subsequently, along with IA Nos.11027 of 2009, Exts.P9 to P14
were produced. Thereafter, along with reply affidavit dated
20.09.2009, Exts.P15 to P23, and with IA No.12810 of 2009,
Ext.P24, were produced. Still later, IA No.13248 of 2009 was filed
praying for receiving Exts.P25 to P34. When the counsel for the
petitioner, Sri. Kaleeswaram Raj placed reliance on these
documents, learned Senior Counsel Sri.T.P. Kelu Nambiar, who
appeared for respondents 2 and 3, objected contending that, in
the absence of amendment to the petition, the affidavits
enclosing the documents or the documents themselves, cannot
be referred to. Though the counsel for the petitioner attempted to
expatiate that the affidavits and the documents only substantiate
the contentions already raised in the writ petition, in my
considered opinion, there is substance in the objection raised by
the learned Senior Counsel.
4. By virtue of the provisions conferred under Article 225
of the Constitution of India, and other enabling powers, the Rules
of the High Court of Kerala have been framed by this Court.
Chapter XI of the Rules govern proceedings under Articles 226
and 227 of the Constitution. Rule 155 of the High Court Rules
provides that no ground shall be relied upon and no relief sought
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at the hearing except the grounds taken and reliefs sought in the
Original Petition and the accompanying affidavit. The proviso to
the Rule states that the court may, at the hearing allow the
petition and affidavit to be amended upon such terms as to costs
or otherwise, as the court thinks fit.
5. Dealing with a similar situation, in Narayanan vs.
State of Kerala (1993 (1) KLT 461), it was held that if
documents produced subsequently along with interlocutory
application are to be treated as exhibits in the main petition, it
should be followed up by an appropriate amendment to the
petition and that one of the problems that arise is that the
documents in question will remain unexplained and unanswered
in any counter affidavit filed by the respondents. It was held that
it is necessary that all amendments to petition either in the
pleadings or the prayers, or by way of production of new
documents should be carried out, besides producing copies of
amended petition for use of the court and for service on the
contesting respondents. In this case, this is precisely what has
happened. In view of the statutory provision noticed above and
the principles laid down in the aforesaid judgment, the objection
raised deserves to be upheld. However, to avoid injustice, I shall
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make reference to the documents produced, to the extent it is
necessary.
6. It has been held by the Apex Court, in the judgments in
State of U.P. and Others v. Gobardhan Lal (2004 (11) SCC
402) and Mohd. Masood Ahmad v. State of U.P. and Others
(2007 (8) SCC 150), that an order of transfer can be successfully
impugned , if it is vitiated for established malafides or if the order
is against the service rules governing the employee or where the
authority who issued the order is incompetent to issue the same.
However, in this case, it was only on the ground of malafides that
Ext.P1 order of transfer is sought to be challenged.
7. I shall now proceed to narrate the facts pleaded by the
parties.
8. According to the petitioner, he is an Engineering
graduate with an unblemished track record. It is stated that he
has published Ext.P24 book with the title “LAVALIN THE REAL
PICTURE”, where he made an attempt to make a factual analysis
of the deal entered into between the Kerala State Electricity
Board and M/s.SNC Lavalin, Canada. It is stated that pursuant to
the directions of this court, in WPC No. 32298 of 2006, CBI
conducted an investigation about the deal and that the Addl. 4th
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respondent, the former Minister for Electricity and the present
State Secretary of CPI (M) has been arrayed as one of the accused
in the case. After obtaining sanction from His Excellency The
Governor, chargesheet has been filed before the CBI Court and
the court has taken cognizance of the offences. It is stated that
he being an Engineer conversant with the technical and other
aspects of the matter, his book has technical authenticity as it
contains valuable documents, throwing light into various aspects
of the deal and therefore the book had enormous impact on the
reading community, resulting in serious political repercussions.
9. Reference has been made to certain chapters of the
book where the petitioner has stated that the additional 5th
respondent was a member of the personal staff of the addl. 4th
respondent when he was a Minister and that the additional 5th
respondent was also in charge of Special Officer of Malabar
Cancer Centre, which is stated to be involved in the deal worth
Rs.98 crores, out of which Rs.86 crores were allegedly
misappropriated and that his residential house was raided by the
CBI during the course of investigation. It is stated that the
additional 5th respondent is presently the Special Secretary to the
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Minister for Industries, who also belongs to the political party of
which the additional 4th respondent is the State Secretary.
10. It is stated that the 3rd respondent Corporation is fully
owned by the Government of Kerala under its Department of
Industries and that therefore, the additional 5th respondent and
the Minister for Industries have direct control over respondents 2
and 3. Petitioner alleges that very often appointment of
Managing Director is ordered by the Industries Department on
adhoc basis, depending upon the decision of the Minister, Cabinet
and the Leaders of the ruling party. According to the petitioner,
the factual and technical aspects of the deal brought out by him,
would have annoyed the persons in power, and therefore they
wanted to see that the petitioner is sent out to a distant station
and thus prevented from expressing his opinions. It is stated that
at the instance of addl. Respondents 4 and 5 and the Minister for
Industries, respondents 2 and 3 transferred the petitioner.
11. It is also averred that during past 28 years of his
service, the petitioner was involved in projects related to control
instrumentation with expertise in system instrumentation. Ext.P3,
documents have been produced to show the nature of works done
by him, and on the basis of these documents, it was contended
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that the highly skilled jobs in which he was involved, cannot be
done by anybody else in the Company. It was stated that his
abrupt transfer will cause enormous loss to the 3rd respondent
since the projects in which he was involved were in the midway.
Exts.P4 and P5, are produced to show that the employees
themselves have expressed concern about his transfer. On these
grounds, petitioner submitted that political compulsions
outweighed administrative exigencies and that the 2nd
respondent was dictated by the 1st respondent as well as leaders
of the ruling front. Therefore the petitioner contended that Ext.P1
order of transfer was issued with a malicious intention and that it
violates his fundamental rights. It was also pointed out that his
father is bedridden for last 5 years due to prostate cancer, that
his mother is aged and sickly and that there is nobody else to look
after them. It was also stated that he has to look after his wife
and two children and that the transfer will cause extreme
hardships and miseries. Pointing out all these, he had filed
Exst.P6 representation to the 2nd respondent and his parents had
filed Ext.P7 representation to the Chief Minister, pleading for
cancellation of the transfer order.
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12. I shall first refer to the counter affidavit filed by
respondents 2 and 3. It is stated that in 1981, the petitioner
joined the service of the 3rd respondent as Engineer II, that he
was given all promotions in accordance with the promotion policy
of the Company and that since 01.01.2009, he was working as
Deputy General Manager at Keltron Controls, Aroor, one of the
units of the Company. It is stated that during the period from
20.03.1992 to 07.01.1997, petitioner was on leave for taking up
employment abroad and that thereafter, he was on deputation for
1= years working in the `People Plan Campaign”. It is stated that
for the last few years, the petitioner was involved in Control and
Instrumentation Group, involving marketing, job execution and
payment collection. It is stated that the 3rd respondent is having
a Marketing Office at Hyderabad and that the officers at the
marketing office consist of Engineers and other professionally
qualified persons. Justifying the order transferring the petitioner,
it is stated that;
“In the recent past, many opportunities have come up
with Defence Research and Development
Organisations at Hyderabad. Some of the projects
required high level of professional standards,
therefore the 3rd respondent, in Ext.P1 order, decided
to transfer the petitioner, who is an experienced
engineer, to the Marketing Office at Hyderabad as heWPC 21597/09
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interact with various Defence Research and
Development Organisations in Hyderabad and
strengthen the business operations of the Company.
It is submitted that the petitioner was transferred to
Hyderabad to make use the services of the petitioner
in a better way to strengthen the business operation
of the Company”.
Respondents 2 and 3 have denied the averments that Ext.P1 has
been issued to hush up the petitioner’s voice or to victimise the
petitioner who claims to have studied the SNC Lavelin deal. It is
stated that these respondents have nothing to do with the deal or
the publication of the petitioner’s book and that there is
absolutely no reason to connect the Lavelin issue with the
company or its officers. The averment that leaders of CPI (M)
have exerted pressure on the Cabinet to see that the petitioner is
sent to a distant place, disregarding the interests of the company
is also denied. According to respondents 2 and 3, Ext.P1 was
issued only on administrative grounds. It is stated that the
additional 5th respondent or the Minister for Industries do not
have any direct control over the Corporation. The averment that
the Managing Director would act under the dictates of the Minister
or the leader of any political party is also denied.
13. The averment of the petitioner that with his transfer
there is nobody else to look after the duties discharged by him, is
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answered stating that the 3rd respondent is having equally
qualified or better qualified Engineers, capable of handling works
referred to in Ext.P3 and that on relieving the petitioner, Sri.
Mathukutty, Deputy General Manager, a M.Tech Degree holder in
Electrical Engineering, has been handed over charge of the works
referred to in Ext.P3 and that all those works are going on
smoothly at an accelerated speed. It is also alleged that Exts.P4
and P5 have been submitted at the instance of the petitioner.
Dealing with the averments of the petitioner that the publication
of his book has caused annoyance in the minds of the people who
are in power, it is stated that the company has nothing to do with
the SNC Lavelin issue. It is further stated that the promotion of
petitioner to the post of Deputy General Manger after the
publication of the book itself is an indication that they have no
malafides in the matter. It is also stated that the allegation of
malafides is not made directly against respondents 2 and 3 and
that the petitioner has no case that the 2nd respondent issued the
order, because of the 2nd respondent took exception to his book
on Lavelin issue.
14. Counter affidavit has been filed by the 1st respondent
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where they say that the company is a Sick Industrial Company in
respect of which a reference is pending before the Board for
Industrial and Financial Reconstruction. It is stated that as part of
restructuring/ revival, one time settlement has been concluded
with the consortium of banks for an amount of Rs.55.85 crores to
be paid in 5 instalments, out of which 4 instalments have already
been paid. It is stated that recently, company has made
substantial progress and that as part of the qualitative
arrangements, several senior officers have been transferred to
different places and that none of them have raised any objection
or resisted their transfer, realising the positive measures taken by
the company and the Government. It is stated that the transfer in
question was ordered by the company with all bonafides and that
the government has no malafide intention at all. They have also
stated about the new opportunities from the Defence Research
and Development Organisation necessitating the transfer of the
petitioner. It is stated that the Cabinet or the Government do not
intervene in the day to day affairs of the Companies and the
Corporations, the management of which is vested in the Board of
Directors. All other allegations against the government are also
denied in this affidavit.
WPC 21597/09
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15. The additional 4th respondent, the State Secretary of
CPI(M) has filed his counter affidavit, denying the allegations that
the leaders of the CPI(M) have exerted pressure on the Cabinet to
see that the petitioner is transferred to a distant place. It is
stated that at no point of time has he or any of the other leaders
of the party, have exerted influence or pressure of any kind over
respondents 2 and 3 to transfer the petitioner. According to him
the writ petition has been filed to malign the government and the
political party leading the ruling coalition. It is stated that the
filing of the writ petition and the allegations against the 4th
respondent and the Minister for Industries were widely reported in
the media even before the writ petition came up for
consideration. He has also explained the context in which he had
to make certain comments about the petitioner to the media
persons.
16. The Addl. 5th respondent has filed his counter affidavit
denying the allegations against him as well as the Minister for
Industries. It is stated that the members of the personal staff of
Ministers have no authority or power to intervene in the affairs of
government companies which are managed by the Board of
Directors consisting of senior bureaucrats, technocrats and
WPC 21597/09
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managerial persons. According to him, he has no knowledge
about the orders passed by respondents 2 and 3 regarding the
petitioner’s transfer to Hyderabad.
17. Petitioner has filed reply affidavit dated 28th
September 2009, in answer to the counter affidavit filed by
respondents 2 and 3. It is stated that the petitioner was always
connected with control and instrumentation of Naval and other
Ships and that for the last 7 years, his area of operation has been
the marine wing and that he has been transferred even in spite of
the absence of an experienced person to look after the works
done by him. According to him, Sri. Mathukutty, his successor,
has no exposure to the marine wing and that he is a physically
challenged person, who has his limitations in executing the
works. It is stated that the work in Control and Instrumentation
group, involved job execution and marketing, but not payment
collection. It is stated that it is not product marketing but system
marketing, which is always done from the head office for the
reason that system marketing is possible only where
infrastructure necessary for system assimilation, preliminary
design, technical aspects, making of drawings etc., is available
and that not only that such infrastructure is not available at
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Hyderabad, but even an attempt is not made for creating such
infrastructure. Petitioner submits that the work he has been
doing are executed on lump sum turnkey basis and that offers are
made not by a person but by a team consisting of Engineers from
different disciplines, which alone can provide the technical back
up. It is stated that the team requires Engineers as also
supporting staff including draftsman, supervisors, ministerial staff,
financial experts, accountant etc.
18. According to him, there is only a marketing office at
Hyderabad without any infrastructure or supporting staff and that
he will not be able to do any worthwhile work in the new station.
Reference has been made to an advertisement issued by the
Company (Ext.P15) inviting applications for a Business
Development Manager, which according to the petitioner is to
continue his work. It was contended that Ext.P15 showed his
requirement at Aroor and that inspite of the requirement of the
company to have an officer of his expertise, he has been
transferred to a place where there is no facility to work and that
therefore, the intention is only to keep him away at a distant
place. According to him, the other persons who were transferred
along with him have been promised to be retransferred soon and
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that their names have been included in the order only to make it
appear that the petitioner alone was not transferred. It is stated
that after joining at Chennai, Sri.K.A. Rajeev has taken long leave
and that pursuant to Ext.P17, Mr. Jest John Lewis, has already
been called back to Aroor.
19. Another reply affidavit has been filed by the petitioner
answering the counter affidavit filed by the other respondents, in
which also the endeavour is to drive home the point that his
transfer is vitiated for malafides.
20. Counsel for the petitioner relied on the judgments in
Dr. Sethumadhavan v. State of Kerala and Others (1991
KHC 616), Mohanan Nair v. State of Kerala (1993 (2) KLT
930) and Sarvesh Kumar Awasthi v. U.P. Jal Nigam and
Others (2003 (11) SCC 740), to support the contention that
malafides will vitiate administrative orders. Counsel also made
reference to the judgment in the case of Rajendra Roy v. Union
of India and another (AIR 1993 SC 1236) to contend that it
may not be possible in all cases to adduce straight proof of
malafides. The Learned Government Pleader referred to the Apex
Court judgment in State of U.P. and Others v. Gobardhan Lal
(2004 (11) SCC 402) to contend that the petitioner has not
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succeeded in establishing a case of malafides warranting
interference. Learned Sr. Counsel for respondents 2 and 3 made
reference to Gujarat Electricity Board v. Atmaram Sungomal
Poshani (1989 (2) SCC 602), S.C. Saxena v. Union of India
(2006 (9) SCC 583), Govt. of A.P. v. G. Venkata Ratnam
(2008 (9) SCC 345), Dhampur Sugar (Kashipur) Ltd. v.
State of Uttaranchal (2007 (8) SCC 418) and Chandra
Prakash Singh v. Purvanchal Gramin Bank (2008 (12) SCC
292) and contended that the petitioner has miserably failed to
establish a case of malafides and that if an order of transfer is
issued ,the duty of the employee is first to obey the order and
then to represent his personal inconveniences.
21. I have considered the submissions made.
22. The circumstances which were pointed out by the
counsel for the petitioner to substantiate his plea that Ext.P1
order of transfer is vitiated for malafides are;
(1) That the petitioner was involved in skilled works
connected mainly with defence related projects of Indian
Navy. Ext.P3 series of documents produced concern
these works. According to him it was during the
execution stage of most of these works that he was
WPC 21597/09
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organisation was sacrificed for political considerations.
Reference was made to Ext.P9 and Ext.P10, concerning
repair works of naval ships and Ext.P13 and P14 entry
passes issued by the Cochin Shipyard Ltd., in connection
with these works.
(2) It was pointed that the justification offered by
respondents 1 to 3 for transferring the petitioner was the
possibility of getting more orders from DRDO, which
according to the petitioner, was only ruse to get rid of
him. He referred to Ext.P15, advertisement issued by the
Company for the appointment of a Business
Development Manager in Marine Field, which according
to him shows the requirement of the company to have an
officer of his expertise. Reference was made to Exts.P25
to P28 to contend that the orders were being canvassed
from Aroor and were executed from Aroor, for the reason
that the orders could be executed only by a team of
technocrats and not by any individual. Petitioner
contended that the purpose of the transfer was not to
utilise the opportunities offered by DRDO but to silence
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him by transferring to a distant place.
(3) It was argued that in Hyderabad the company has only a
marketing office which did not have any infrastructure for
him to do any worthwhile job. According to the petitioner
there is not even any budgetary allocation to improve
facilities at Hyderabad.
(4) It was submitted that his book on Lavelin was published
on 15.06.2009, Ext.P1 order of transfer was issued on
23.07.2009 and that Ext.P33 Article was published in
Desabhimani Daily dated 24.07.2009 mentioning about
the transfer of the petitioner. It was stated that if an
article is to be published in a newspaper on 24.07.2009 it
must have been drafted much earlier and that this
indicated that the CPI(M) had already decided on his
transfer, much prior to 23.07.2009, when Ext.P1 order
was issued.
(5) Petitioner contended that the other officers were
included in Ext.P1 only to create an impression that he
alone was not transferred. It was pointed out that others
mentioned in Ext.P1 were already promised convenient
postings. Reference was made to Ext.P17, by which
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Serial No.1 of Ext.P1 posted to Mumbai, was called back
to Aroor. (It should be noted here that the learned senior
counsel appearing for respondents 2 and 3 submitted
before court that Sri.Jest John Lewis was called to Aroor
for certain urgent works and that he has been returned to
his place of posting, viz., Mumbai on 26.09.2009).
(6) Petitioner further submitted that the statement in the
counter affidavit filed by the 1st respondent that the
government have no role in the day to day management
of the company was incorrect. Petitioner referred to
Ext.P21 notice calling upon him to show cause for
criticising the Government of Kerala and the Minister
concerned.
23. On the aforesaid grounds, learned counsel for the
petitioner contended that Ext.P1 order of transfer is vitiated for
malafides and therefore should be interfered with.
24. While appreciating the aforesaid contentions raised by
the petitioner, it should be borne in mind that the petitioner has
no case that he is not holding a transferable post. If transfer is a
condition of service, it is upto the employer concerned to decide
in what best manner they want to make use of the services of the
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employees. If such a decision has been taken, this court will keep
its hands off provided the decision is not against the conditions of
service of the employee concerned, that the order has been
issued by an authority competent for the same and where the
order is not vitiated for malafides. That an order of transfer can
be interfered with only on aforesaid grounds has been upheld by
the Apex Court in its judgments in State of U.P. and Others v.
Gobardhan Lal (2004 (11) SCC 402) and Mohd. Masoon
Ahmad v. State of U.P. and Others (2007 (8) SCC 150).
25. In this case, as already stated the only ground on
which the order of transfer is impugned is that it is vitiated for
malafides. The allegation of malafides is a serious charge made
by an employee against his employer and courts have
consistently held that the burden is heavily upon the employee to
plead and prove his allegation with particulars, the facts
constituting malafides. Where any administrative act or order is
challenged, he who seeks to invalidate or nullify any act or order
must establish the charge of bad faith, an abuse or a misuse by
the authority of its powers. Though it is difficult to establish the
state of a man’s mind, the difficulty is not lessened when one has
to establish that a person apparently acting on the legitimate
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exercise of power has, in fact, been acting malafide by pursuing
an illegitimate aim, which must be discernible from the order
impugned or must be shown from the established surrounding
factors, which preceded the order. I do not think that in this
context it is necessary to burden this judgment with all the
precedents that were cited at the Bar except to refer to the
following judgments of the Apex Court.
26. In Dhampur Sugar (Kashipur) Ltd. v. State of
Uttaranchal (2007 (8) SCC 418), it has been held that;
“81. Now, it is well settled and needs no authority
for holding that every power must be exercised
bona fide and in good faith. Before more than
hundred years, Lord Lindley said in General
Assembly of Free Church of Scotland v. Overtoun:
“I take it to be clear that there is a condition
implied in this as well as in other instruments which
create power, namely, that the powers shall be
used bona fide for the purpose for which they are
conferred.”
In other words, every action of a public authority
must be based on utmost good faith, genuine
satisfaction and ought to be supported by reason
and rationale. It is, therefore, not only the power
but the duty of the court to ensure that all
authorities exercise their powers properly, lawfully
and in good faith. If powers are exercised with
oblique motive, bad faith or for extraneous or
irrelevant considerations, there is no exercise of
power known to law and the action cannot be
termed as action in accordance with law.
82. But as already discussed earlier, a court of law
is not expected to propel into “the unchartered
ocean” of government policies. Once it is held that
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the Government has power to frame and reframe,
change and rechange, adjust and readjust policy,
the said action cannot be declared illegal, arbitrary
or ultra vires the provisions of the Constitution only
on the ground that the earlier policy had been given
up, changed or not adhered to. It also cannot be
attacked on the plea that the earlier policy was
better and suited to the prevailing situation.
83. Allegations of mala fide are serious in nature
and they essentially raise a question of fact. It is,
therefore, necessary for the person making such
allegations to supply full particulars in the petition.
If sufficient averments and requisite materials are
not on record, the court would not make “fishing” or
roving inquiry. Mere assertion, vague averment or
bald statement is not enough to hold the action to
be mala fide. It must be demonstrated by facts.
Moreover, the burden of proving mala fide is on the
person levelling such allegations and the burden is
“very heavy” (vide E.P. Royappa v. State of T.N.).
The charge of mala fide is more easily made than
made out. As stated by Krishna Iyer, J. in Gulam
Mustafa v. State of Maharashtra it is the last refuge
of a losing litigant (see also Ajit Kumar Nag v. GM
(PJ), Indian Oil Corpn.). In the case on hand, except
alleging that the policy was altered by the
Government, to extend the benefit to Respondent
4, no material whatsoever has been placed on
record by the appellant. We are, therefore, unable
to uphold the contention of the learned counsel that
the impugned action is mala fide or malicious”.
27. Again in Chandra Prakash Singh v. Purvanchal
Gramin Bank (2008 (12) SCC 292), it was held;
“31. In addition to the decisions referred to above, this
Court in Tara Chand Khatri v. MCD, E.P. Royappa v.
State of T.N. and Sukhwinder Pal Bipan Kumar v. State
of Punjab held that the burden of establishing mala
fides is very heavy on the person who alleges it. The
court, would, therefore, be slow to draw dubious
inferences from incomplete facts placed before it by a
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party, particularly when the imputations are grave and
they are made against the holder of an office which
has a high responsibility in administration. Such is the
judicial perspective in evaluating charges of unworthy
conduct against ministers and others, not because of
any special status … but because otherwise,
functioning effectively would become difficult in a
democracy.
32. In M. Sankaranarayanan v. State of Karnataka this
Court observed that the Court may: (SCC p. 69, para
12)
“draw reasonable inference of mala fide from the facts
pleaded and established. But such inference must be
based on factual matrix and such factual matrix
cannot remain in the realm of insinuation, surmise or
conjecture.”
33. In N.K. Singh v. Union of India this Court held that
the inference of mala fides be drawn by reading in
between the lines and taking into account the
attendant circumstances.
34. Thus, as a proposition of law, the burden of
proving mala fides is very heavy on the person who
alleges it. Mere allegation is not enough. Party making
such allegations is under the legal obligation to place
specific materials before the court to substantiate the
said allegations. There has to be very strong and
convincing evidence to establish the allegations of
mala fides specifically and definitely alleged in the
petition as the same cannot merely be presumed. The
presumption under law is in favour of the bona fides of
the order unless contradicted by acceptable material.”
28. Appreciated in the above back ground, the question to
be considered is whether the petitioner has succeeded in
establishing his case of malafides. What has been pleaded is that
he had published a book on the Lavelin issue, which embarrassed
the leadership of the CPI(M), and in particular additional
respondents 4 and 5 and that they have influenced respondents 2
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and 3, through the Minister for Industries, Government of Kerala
and that accordingly Ext.P1 order of transfer was issued. First of
all, petitioner has no case that the company has any connection
with the Lavelin issue. He has also no case that anybody in the
company had any malafides against him. Therefore, unless the
petitioner is able to establish, either directly or from the attending
circumstances, that pressure was exerted on respondents 2 and 3
to transfer him to Hyderabad, he cannot succeed in the writ
petition. This vital link is totally absent in this case and on the
other hand the petitioner wants this court to assume that
respondents 4 and 5 or the Minister concerned had influenced
respondents 2 and 3 and that therefore he was transferred. In the
absence of such a link, this court will not be justified in inferring
that Ext.P1 order issued by the company is vitiated for malafides.
29. The reason stated in the counter affidavit to transfer
the petitioner is that being an experienced Engineer, he was
identified as the fit and suitable person to interact with various
Defence Research and Development Organisations in Hyderabad
and strengthen the business operations of the company. The new
assignment of the petitioner is neither research nor execution of
projects, but is for the purpose of marketing the products of the
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company and to interact with the customer organisations.
Therefore, even if it is assumed that there is no infrastructure in
Hyderabad for the petitioner to carry on the work he is now doing,
absence of such infrastructure can be no reason to invalidate
Ext.P1 order of transfer for the reason that the petitioner is not
assigned to continue the research or technical works. The case of
the petitioner that in his absence, there is nobody else at Aroor to
continue the works also do not merit acceptance. The company
has sworn to an affidavit stating that there are equally, if not
better, qualified technical personal available with it to look after
such duties. It is also stated that the duties have already been
assigned to yet another officer who has a post graduation in
Engineering. In any case, if the company has taken a decision to
transfer the petitioner, it is responsibility of the company to
identify and post a suitable substitute, which has already been
done in this case. Even otherwise, as already seen, petitioner is
holding a transferable post and if his argument in this respect is
accepted, the result will be that he can never be transferred
which cannot be the situation nor is it in the interest of the
organisation. It may have been an unwise decision of the
company to transfer the petitioner and it may also be true that in
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:26 :
the given circumstances, the company could have taken a better
decision. So long as this court is not concerned with the
wisdom of such decisions, these are not grounds for interference
with a decision taken by an administrator who is competent for
the same. Ext.P15 advertisement issued by the company for
appointing a Business Development Manager shows that
appointment is proposed to be made on contractual basis and of a
non-engineering graduate. Therefore, Ext.P15 does not by itself
show that requirement of an officer like the petitioner is sought to
be met by resorting to recruitment from outside. In regard to
contention that he has been issued Ext.P21 show cause notice for
criticising the Government of Kerala and Minister concerned, it
should be held that the 3rd respondent is a company incorporated
under the Companies Act, 1956. Even if it is a government
company as defined in Section 617 of the Companies Act, being a
juristic entity, having all the privileges provided in the Companies
Act, the company has its own rights and liberties. Ext.P21 is a
show cause notice for initiating disciplinary proceedings against
the petitioner on allegation of misconducts. Criticising the
Government or the Minister may be a misconduct under the
Conduct Rules, but that does not mean that government has any
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:27 :
role in the daily management of the company. Therefore, the fact
that the company is a government company or the misconducts
alleged in Ext.P21, do not by itself lead to the inference that the
government is interfering with its daily management.
30. For the aforesaid reasons, I am not persuaded to
conclude that the circumstances pointed out by the petitioner
leads to the only inference that Ext.P1 order of transfer is vitiated
for malafides.
31. I am not satisfied that the petitioner has made out a
case for interference.
However, it is clarified that in case the petitioner submits
any application/representation for leave or for retransfer to Aroor,
it will be open to the company to deal with the same untramelled
by the findings in this judgment.
Writ Petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
Rp