JUDGMENT
F.M. Ibrahim Kalifulla, J.
1. This writ petition has been preferred against the award of the first respondent, dated August 24, 1994, made in ID. No. 498 of 1989 holding that the order of transfer issued by the petitioner under Exhibit M5 transferring the
workman Kannaiyan from the job of driver to that of field worker was not justified and therefore he should be provided with the job of driver in the Woodlands Division with 50 per cent back wages for the period of his non-employment. Aggrieved against the said award, the petitioner has come forward with this writ petition.
2. The contention of the second and third respondents before the first respondent was that having regard to the previous conduct of the petitioner as against the third respondent, the present order of transfer under Exhibit M5 cannot be taken to have been issued on administrative grounds, but only by way of punishment. Whereas, according to the petitioner, the third respondent was found driving the vehicle belonging to the estate under the influence of alcohol and having regard to the risk involved in allowing him to continue to perform the job of the driver, it was thought fit to transfer the third respondent to some other job without affecting his salary, status, categorization, etc. The petitioner also contended that the third respondent did not report in the transferred place after the receipt of the order of transfer.
3. Dealing with the respective contentions of the parties, the first respondent came to the conclusion that there was no dispute about the power of transfer vested with the petitioner-management. According to the first respondent, the grievance of the third respondent that while transferring him from the job of driver to that of field worker, the third respondent’s status was affected, which according to the first respondent was illegal. According to the first respondent if the transfer of the third respondent was necessitated for certain reasons, he should have been given an opportunity and only after establishing such allegations against him, the petitioner should have resorted to the order of transfer issued under Exhibit M5.
4. I am unable to accept the said reasoning of the first respondent in holding that an employee could be transferred in the event of any charge having been found proved against him, on the other hand, the relevant clause in the Standing Order disclose that there should not be a transfer by way of punishment. However, eschewing that part of the award from consideration, I find that though the claim of the third respondent was that by virtue of the order of transfer under Exhibit M5, there was a reduction in his status, I find that there was no material either oral or documentary placed before the Court to substantiate the said contention except the mere assertion on the side of the third respondent that his status was affected and a general statement made by MW 1 in his evidence to the effect that the status of the driver is different from that of a field worker. It is also relevant to note that MW. 1 has also stated in his evidence that the third respondent is kept in the role of skilled worker, that apart there is no other material with reference to the stand of either parties about the status of the third respondent. In such circumstances, I am of the view that inasmuch as the whole controversy is with regard to the justification of the order of transfer in the light of the power exercised by the petitioner under Exhibit M4, an opportunity should be given to both the parties to substantiate their respective contentions about the status of the third respondent, vis-a-vis the order of the transfer under Exhibit M5.
5. Be that as if may, while the petitioner relied upon Exhibits M1, M2 and certain other materials to contend that the petitioner’s habit of consuming alcohol weighed with the concerned authorities for transferring the third respondent and thereby changing his nature of job from that of a driver to that of a field worker, the learned counsel for the second and third respondent would contend that having regard to the fact that there is a change of father’s name as found in Exhibit Ml as compared with the evidence of WW1 recorded by the first respondent, it is doubtful as to whether Exhibit M1 was relatable to the third respondent. The learned counsel also submitted that such a question looms large when the second respondent took a categoric stand before the first respondent that he was never involved in any criminal case as alleged by the petitioner. Therefore while remitting the matter back to the first respondent for consideration,I feel that the second respondent and third respondents should also be permitted to pursue their contentions about applicability about the relevancy of Exhibits M1 and M2 to the third respondent by adducing such evidence that may be available to them. It is also equally open to the petitioner to counter any such approach by adducing such evidence that may be available with the petitioner.
6. On other aspect which was also raised at the instance of the third respondent was that under Exhibit M4, it is specifically provided that a transfer should not be effected by way of punishment and that a transfer should always be for administrative reasons only. According to the learned counsel for the third respondent, inasmuch as the petitioner has averred in its counter to the effect that the third respondent was alleged to have stolen firewood belonging to the petitioner on November 28, 1988 from the Estate premises and that the same was reported to the higher authorities. There is every scope to construe that the order of the transfer issued under Exhibit M5 was not by way of administrative exigency, but by way of punishment. The learned counsel for the petitioner would however, contend that the averments contained in Para. 3 of the petitioner’s counter in I.D. No.498 of 1989 though contains a narration of whatever events that took place on November 23, 1988, the only
reason which weighed with the petitioner was the habit of the third respondent consuming alcohol and therefore he should not be permitted to drive a vehicle while he could be assigned some other job befitting his status without making any reduction in his salary, status or categorization.
7. Inasmuch as, I have decided to remit the matter back to the first respondent for consideration on the two aspects referred to above with a view to give a fair opportunity to the third respondent, I am of the view that without prejudice to the respective contentions of the parties on the last aspect, the parties can also be permitted to agitate the said question namely as to whether the order of the transfer under Exhibit M5 could be construed as one by way of punishment as has been stated in the relevant Standing Order namely Exhibit M4. Therefore, while setting aside the award of the first respondent, dated August 24, 1994, the dispute is remitted back to it for disposal on the above three aspects after giving due opportunity to the petitioner as well as the second and third respondents on the relative aspects by permitting them to let in such evidence both oral as well as documentary and dispose of the dispute within a period of three months from the date of receipt of copy of this order. No costs. Consequently, connected W.M.P. is closed.