{"id":98399,"date":"2009-12-22T00:00:00","date_gmt":"2009-12-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-r-neelakandan-namboodiri-vs-state-of-kerala-on-22-december-2009"},"modified":"2017-05-15T12:07:27","modified_gmt":"2017-05-15T06:37:27","slug":"c-r-neelakandan-namboodiri-vs-state-of-kerala-on-22-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-r-neelakandan-namboodiri-vs-state-of-kerala-on-22-december-2009","title":{"rendered":"C.R.Neelakandan Namboodiri vs State Of Kerala on 22 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
C.R.Neelakandan Namboodiri vs State Of Kerala on 22 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 21597 of 2009(T)\n\n\n1. C.R.NEELAKANDAN NAMBOODIRI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n2. THE MANAGING DIRECTOR,\n\n3. KERALA STATE ELECTRONICS DEVELOPMENT\n\n                For Petitioner  :SRI.KALEESWARAM RAJ\n\n                For Respondent  :SRI.T.P.KELU NAMBIAR (SR.)\n\nThe Hon'ble MR. Justice ANTONY DOMINIC\n\n Dated :22\/12\/2009\n\n O R D E R\n                      ANTONY DOMINIC, J.\n                    ================\n                W.P.(C) NO. 21597 OF 2009 (T)\n                =====================\n\n          Dated this the 22nd day of December, 2009\n\n                          J U D G M E N T\n<\/pre>\n
      Prayers in this writ petition are to quash Ext.P1 order to the<\/p>\n
extent the petitioner is transferred from Aroor in Alappuzha<\/p>\n
District to Hyderabad and a direction to respondents 2 and 3 to<\/p>\n
retransfer him to Keltron Controls, Aroor is also sought for.<\/p>\n
      2.   Petitioner is an Engineering Graduate. He was initially<\/p>\n
appointed as a Development Engineer II in the 3rd respondent<\/p>\n
Company in the year 1981. He was given promotions and finally,<\/p>\n
by Ext.P23 order dated 03.06.2009, the petitioner was promoted<\/p>\n
as Deputy General Manager in the scale of pay of Rs.3600-5000<\/p>\n
with effect from 01.01.2009. By Ext.P1 order dated 23.07.2009,<\/p>\n
along with two others who were also working at Keltron Controls,<\/p>\n
Aroor, one of the units of the 3rd respondent, petitioner was<\/p>\n
transferred and posted to Hyderabad Marketing Office of the<\/p>\n
company. This order is under challenge in this writ petition.<\/p>\n
      3.   An important aspect of this case, which is required to<\/p>\n
be stated at the outset is that, although along with the writ<\/p>\n
petition as amended, only 8 documents have been produced,<\/p>\n
WPC 21597\/09
\n                                :2 :<\/span><\/p>\n
subsequently, along with IA Nos.11027 of 2009, Exts.P9 to P14<\/p>\n
were produced. Thereafter, along with reply affidavit dated<\/p>\n
20.09.2009, Exts.P15 to P23, and with IA No.12810 of 2009,<\/p>\n
Ext.P24, were produced. Still later, IA No.13248 of 2009 was filed<\/p>\n
praying for receiving Exts.P25 to P34. When the counsel for the<\/p>\n
petitioner, Sri. Kaleeswaram Raj placed reliance on these<\/p>\n
documents, learned Senior Counsel Sri.T.P. Kelu Nambiar, who<\/p>\n
appeared for respondents 2 and 3, objected contending that, in<\/p>\n
the absence of amendment to the petition, the affidavits<\/p>\n
enclosing the documents or the documents themselves, cannot<\/p>\n
be referred to. Though the counsel for the petitioner attempted to<\/p>\n
expatiate that the affidavits and the documents only substantiate<\/p>\n
the contentions already raised in the writ petition, in my<\/p>\n
considered opinion, there is substance in the objection raised by<\/p>\n
the learned Senior Counsel.\n<\/p>\n
      4.   By virtue of the provisions conferred under Article 225<\/p>\n
of the Constitution of India, and other enabling powers, the Rules<\/p>\n
of the High Court of Kerala have been framed by this Court.<\/p>\n
Chapter XI of the Rules govern proceedings under Articles 226<\/p>\n
and 227 of the Constitution. Rule 155 of the High Court Rules<\/p>\n
provides that no ground shall be relied upon and no relief sought<\/p>\n
WPC 21597\/09
\n                                 :3 :<\/span><\/p>\n
at the hearing except the grounds taken and reliefs sought in the<\/p>\n
Original Petition and the accompanying affidavit. The proviso to<\/p>\n
the Rule states that the court may, at the hearing allow the<\/p>\n
petition and affidavit to be amended upon such terms as to costs<\/p>\n
or otherwise, as the court thinks fit.\n<\/p>\n
      5.   Dealing with a similar situation, in Narayanan vs.<\/p>\n
State of Kerala<\/a> (1993 (1) KLT 461), it was held that if<\/p>\n
documents produced subsequently along with interlocutory<\/p>\n
application are to be treated as exhibits in the main petition, it<\/p>\n
should be followed up by an appropriate amendment to the<\/p>\n
petition and that one of the problems that arise is that the<\/p>\n
documents in question will remain unexplained and unanswered<\/p>\n
in any counter affidavit filed by the respondents. It was held that<\/p>\n
it is necessary that all amendments to petition either in the<\/p>\n
pleadings or the prayers, or by way of production of new<\/p>\n
documents should be carried out, besides producing copies of<\/p>\n
amended petition for use of the court and for service on the<\/p>\n
contesting respondents.     In this case, this is precisely what has<\/p>\n
happened. In view of the statutory provision noticed above and<\/p>\n
the principles laid down in the aforesaid judgment, the objection<\/p>\n
raised deserves to be upheld.    However, to avoid injustice, I shall<\/p>\n
WPC 21597\/09
\n                                  :4 :<\/span><\/p>\n
make reference to the documents produced, to the extent it is<\/p>\n
necessary.\n<\/p>\n
     6.    It has been held by the Apex Court, in the judgments in<\/p>\n
State of U.P. and Others v. Gobardhan Lal<\/a> (2004 (11) SCC<\/p>\n
402) and Mohd. Masood Ahmad v. State of U.P. and Others<\/a><\/p>\n
(2007 (8) SCC 150), that an order of transfer can be successfully<\/p>\n
impugned , if it is vitiated for established malafides or if the order<\/p>\n
is against the service rules governing the employee or where the<\/p>\n
authority who issued the order is incompetent to issue the same.<\/p>\n
However, in this case, it was only on the ground of malafides that<\/p>\n
Ext.P1 order of transfer is sought to be challenged.<\/p>\n
     7.    I shall now proceed to narrate the facts pleaded by the<\/p>\n
parties.\n<\/p>\n
     8.    According to the petitioner, he is an Engineering<\/p>\n
graduate with an unblemished track record. It is stated that he<\/p>\n
has published Ext.P24 book with the title “LAVALIN THE REAL<\/p>\n
PICTURE”, where he made an attempt to make a factual analysis<\/p>\n
of the deal entered into between the Kerala State Electricity<\/p>\n
Board and M\/s.SNC Lavalin, Canada. It is stated that pursuant to<\/p>\n
the directions of this court, in WPC No. 32298 of 2006, CBI<\/p>\n
conducted an investigation about the deal and that the Addl. 4th<\/p>\n
WPC 21597\/09
\n                                :5 :<\/span><\/p>\n
respondent, the former Minister for Electricity and the present<\/p>\n
State Secretary of CPI (M) has been arrayed as one of the accused<\/p>\n
in the case.   After obtaining sanction from His Excellency The<\/p>\n
Governor, chargesheet has been filed before the CBI Court and<\/p>\n
the court has taken cognizance of the offences. It is stated that<\/p>\n
he being an Engineer conversant with the technical and other<\/p>\n
aspects of the matter, his book has technical authenticity as it<\/p>\n
contains valuable documents, throwing light into various aspects<\/p>\n
of the deal and therefore the book had enormous impact on the<\/p>\n
reading community, resulting in serious political repercussions.<\/p>\n
     9.    Reference has been made to certain chapters of the<\/p>\n
book where the petitioner has stated that the additional 5th<\/p>\n
respondent was a member of the personal staff of the addl. 4th<\/p>\n
respondent when he was a Minister and that the additional 5th<\/p>\n
respondent was also in charge of Special Officer of Malabar<\/p>\n
Cancer Centre, which is stated to be involved in the deal worth<\/p>\n
Rs.98 crores, out of which Rs.86 crores were allegedly<\/p>\n
misappropriated and that his residential house was raided by the<\/p>\n
CBI during the course of investigation. It is stated that the<\/p>\n
additional 5th respondent is presently the Special Secretary to the<\/p>\n
WPC 21597\/09
\n                                :6 :<\/span><\/p>\n
Minister for Industries, who also belongs to the political party of<\/p>\n
which the additional 4th respondent is the State Secretary.<\/p>\n
     10. It is stated that the 3rd respondent Corporation is fully<\/p>\n
owned by the Government of Kerala under its Department of<\/p>\n
Industries and that therefore, the additional 5th respondent and<\/p>\n
the Minister for Industries have direct control over respondents 2<\/p>\n
and 3.    Petitioner alleges that very often appointment of<\/p>\n
Managing Director is ordered by the Industries Department on<\/p>\n
adhoc basis, depending upon the decision of the Minister, Cabinet<\/p>\n
and the Leaders of the ruling party. According to the petitioner,<\/p>\n
the factual and technical aspects of the deal brought out by him,<\/p>\n
would have annoyed the persons in power, and therefore they<\/p>\n
wanted to see that the petitioner is sent out to a distant station<\/p>\n
and thus prevented from expressing his opinions. It is stated that<\/p>\n
at the instance of addl. Respondents 4 and 5 and the Minister for<\/p>\n
Industries, respondents 2 and 3 transferred the petitioner.<\/p>\n
     11. It is also averred that during past 28 years of his<\/p>\n
service, the petitioner was involved in projects related to control<\/p>\n
instrumentation with expertise in system instrumentation. Ext.P3,<\/p>\n
documents have been produced to show the nature of works done<\/p>\n
by him, and on the basis of these documents, it was contended<\/p>\n
WPC 21597\/09
\n                                :7 :<\/span><\/p>\n
that the highly skilled jobs in which he was involved, cannot be<\/p>\n
done by anybody else in the Company. It was stated that his<\/p>\n
abrupt transfer will cause enormous loss to the 3rd respondent<\/p>\n
since the projects in which he was involved were in the midway.<\/p>\n
Exts.P4 and P5, are produced to show that the employees<\/p>\n
themselves have expressed concern about his transfer. On these<\/p>\n
grounds,    petitioner  submitted    that   political compulsions<\/p>\n
outweighed     administrative   exigencies    and  that  the    2nd<\/p>\n
respondent was dictated by the 1st respondent as well as leaders<\/p>\n
of the ruling front. Therefore the petitioner contended that Ext.P1<\/p>\n
order of transfer was issued with a malicious intention and that it<\/p>\n
violates his fundamental rights. It was also pointed out that his<\/p>\n
father is bedridden for last 5 years due to prostate cancer, that<\/p>\n
his mother is aged and sickly and that there is nobody else to look<\/p>\n
after them. It was also stated that he has to look after his wife<\/p>\n
and two children and that the transfer will cause extreme<\/p>\n
hardships and miseries. Pointing out all these, he had filed<\/p>\n
Exst.P6 representation to the 2nd respondent and his parents had<\/p>\n
filed Ext.P7 representation to the Chief Minister, pleading for<\/p>\n
cancellation of the transfer order.\n<\/p>\n
WPC 21597\/09
\n                                   :8 :<\/span><\/p>\n
       12. I shall first refer to the counter affidavit filed by<\/p>\n
respondents 2 and 3. It is stated that in 1981, the petitioner<\/p>\n
joined the service of the 3rd respondent as Engineer II, that he<\/p>\n
was given all promotions in accordance with the promotion policy<\/p>\n
of the Company and that since 01.01.2009, he was working as<\/p>\n
Deputy General Manager at Keltron Controls, Aroor, one of the<\/p>\n
units of the Company. It is stated that during the period from<\/p>\n
20.03.1992 to 07.01.1997, petitioner was on leave for taking up<\/p>\n
employment abroad and that thereafter, he was on deputation for<\/p>\n
1= years working in the `People Plan Campaign”. It is stated that<\/p>\n
for the last few years, the petitioner was involved in Control and<\/p>\n
Instrumentation Group, involving marketing, job execution and<\/p>\n
payment collection. It is stated that the 3rd respondent is having<\/p>\n
a Marketing Office at Hyderabad and that the officers at the<\/p>\n
marketing office consist of Engineers and other professionally<\/p>\n
qualified persons. Justifying the order transferring the petitioner,<\/p>\n
it is stated that;\n<\/p>\n
           “In the recent past, many opportunities have come up
\n           with    Defence      Research    and    Development
\n           Organisations at Hyderabad. Some of the projects
\n           required   high   level  of professional   standards,
\n           therefore the 3rd respondent, in Ext.P1 order, decided
\n           to transfer the petitioner, who is an experienced
\n           engineer, to the Marketing Office at Hyderabad as he<\/p>\n
WPC 21597\/09
\n                                 :9 :<\/span><\/p>\n
         was identified as the fit and suitable person to
\n         interact   with   various   Defence    Research   and
\n         Development     Organisations     in Hyderabad    and
\n         strengthen the business operations of the Company.
\n         It is submitted that the petitioner was transferred to
\n         Hyderabad to make use the services of the petitioner
\n         in a better way to strengthen the business operation
\n         of the Company”.\n<\/p><\/blockquote>\n
Respondents 2 and 3 have denied the averments that Ext.P1 has<\/p>\n
been issued to hush up the petitioner’s voice or to victimise the<\/p>\n
petitioner who claims to have studied the SNC Lavelin deal. It is<\/p>\n
stated that these respondents have nothing to do with the deal or<\/p>\n
the publication of the petitioner’s book and that there is<\/p>\n
absolutely no reason to connect the Lavelin issue with the<\/p>\n
company or its officers. The averment that leaders of CPI (M)<\/p>\n
have exerted pressure on the Cabinet to see that the petitioner is<\/p>\n
sent to a distant place, disregarding the interests of the company<\/p>\n
is also denied. According to respondents 2 and 3, Ext.P1 was<\/p>\n
issued only on administrative grounds. It is stated that the<\/p>\n
additional 5th respondent or the Minister for Industries do not<\/p>\n
have any direct control over the Corporation. The averment that<\/p>\n
the Managing Director would act under the dictates of the Minister<\/p>\n
or the leader of any political party is also denied.<\/p>\n
      13. The averment of the petitioner that with his transfer<\/p>\n
there is nobody else to look after the duties discharged by him, is<\/p>\n
WPC 21597\/09
\n                                 :10 :<\/span><\/p>\n
answered stating that the 3rd respondent is having equally<\/p>\n
qualified or better qualified Engineers, capable of handling works<\/p>\n
referred to in Ext.P3 and that on relieving the petitioner, Sri.<\/p>\n
Mathukutty, Deputy General Manager, a M.Tech Degree holder in<\/p>\n
Electrical Engineering, has been handed over charge of the works<\/p>\n
referred to in Ext.P3 and that all those works are going on<\/p>\n
smoothly at an accelerated speed. It is also alleged that Exts.P4<\/p>\n
and P5 have been submitted at the instance of the petitioner.<\/p>\n
 Dealing with the averments of the petitioner that the publication<\/p>\n
of his book has caused annoyance in the minds of the people who<\/p>\n
are in power, it is stated that the company has nothing to do with<\/p>\n
the SNC Lavelin issue. It is further stated that the promotion of<\/p>\n
petitioner to the post of Deputy General Manger after the<\/p>\n
publication of the book itself is an indication that they have no<\/p>\n
malafides in the matter. It is also stated that the allegation of<\/p>\n
malafides is not made directly against respondents 2 and 3 and<\/p>\n
that the petitioner has no case that the 2nd respondent issued the<\/p>\n
order, because of the 2nd respondent took exception to his book<\/p>\n
on Lavelin issue.\n<\/p>\n
      14. Counter affidavit has been filed by the 1st respondent<\/p>\n
WPC 21597\/09
\n                                  :11 :<\/span><\/p>\n
where they say that the company is a Sick Industrial Company in<\/p>\n
respect of which a reference is pending before the Board for<\/p>\n
Industrial and Financial Reconstruction. It is stated that as part of<\/p>\n
restructuring\/ revival, one time settlement has been concluded<\/p>\n
with the consortium of banks for an amount of Rs.55.85 crores to<\/p>\n
be paid in 5 instalments, out of which 4 instalments have already<\/p>\n
been paid.     It is stated that recently, company has made<\/p>\n
substantial progress and that as part of the qualitative<\/p>\n
arrangements, several senior officers have been transferred to<\/p>\n
different places and that none of them have raised any objection<\/p>\n
or resisted their transfer, realising the positive measures taken by<\/p>\n
the company and the Government. It is stated that the transfer in<\/p>\n
question was ordered by the company with all bonafides and that<\/p>\n
the government has no malafide intention at all. They have also<\/p>\n
stated about the new opportunities from the Defence Research<\/p>\n
and Development Organisation necessitating the transfer of the<\/p>\n
petitioner. It is stated that the Cabinet or the Government do not<\/p>\n
intervene in the day to day affairs of the Companies and the<\/p>\n
Corporations, the management of which is vested in the Board of<\/p>\n
Directors. All other allegations against the government are also<\/p>\n
denied in this affidavit.\n<\/p>\n
WPC 21597\/09
\n                                :12 :<\/span><\/p>\n
      15. The additional 4th respondent, the State Secretary of<\/p>\n
CPI(M) has filed his counter affidavit, denying the allegations that<\/p>\n
the leaders of the CPI(M) have exerted pressure on the Cabinet to<\/p>\n
see that the petitioner is transferred to a distant place. It is<\/p>\n
stated that at no point of time has he or any of the other leaders<\/p>\n
of the party, have exerted influence or pressure of any kind over<\/p>\n
respondents 2 and 3 to transfer the petitioner. According to him<\/p>\n
the writ petition has been filed to malign the government and the<\/p>\n
political party leading the ruling coalition. It is stated that the<\/p>\n
filing of the writ petition and the allegations against the 4th<\/p>\n
respondent and the Minister for Industries were widely reported in<\/p>\n
the media even before the writ petition came up for<\/p>\n
consideration. He has also explained the context in which he had<\/p>\n
to make certain comments about the petitioner to the media<\/p>\n
persons.\n<\/p>\n
      16. The Addl. 5th respondent has filed his counter affidavit<\/p>\n
denying the allegations against him as well as the Minister for<\/p>\n
Industries. It is stated that the members of the personal staff of<\/p>\n
Ministers have no authority or power to intervene in the affairs of<\/p>\n
government companies which are managed by the Board of<\/p>\n
Directors consisting of senior bureaucrats, technocrats and<\/p>\n
WPC 21597\/09
\n                                   :13 :<\/span><\/p>\n
managerial persons. According to him, he has no knowledge<\/p>\n
about the orders passed by respondents 2 and 3 regarding the<\/p>\n
petitioner’s transfer to Hyderabad.\n<\/p>\n
      17. Petitioner     has    filed   reply affidavit dated   28th<\/p>\n
September 2009, in answer to the counter affidavit filed by<\/p>\n
respondents 2 and 3. It is stated that the petitioner was always<\/p>\n
connected with control and instrumentation of Naval and other<\/p>\n
Ships and that for the last 7 years, his area of operation has been<\/p>\n
the marine wing and that he has been transferred even in spite of<\/p>\n
the absence of an experienced person to look after the works<\/p>\n
done by him. According to him, Sri. Mathukutty, his successor,<\/p>\n
 has no exposure to the marine wing and that he is a physically<\/p>\n
challenged person, who has his limitations in executing the<\/p>\n
works. It is stated that the work in Control and Instrumentation<\/p>\n
group, involved job execution and marketing, but not payment<\/p>\n
collection. It is stated that it is not product marketing but system<\/p>\n
marketing, which is always done from the head office for the<\/p>\n
reason   that     system   marketing      is possible   only   where<\/p>\n
infrastructure necessary for system assimilation, preliminary<\/p>\n
design, technical aspects, making of drawings etc., is available<\/p>\n
and that not only that such infrastructure is not available at<\/p>\n
WPC 21597\/09
\n                                :14 :<\/span><\/p>\n
Hyderabad, but even an attempt is not made for creating such<\/p>\n
infrastructure. Petitioner submits that the work he has been<\/p>\n
doing are executed on lump sum turnkey basis and that offers are<\/p>\n
made not by a person but by a team consisting of Engineers from<\/p>\n
different disciplines, which alone can provide the technical back<\/p>\n
up. It is stated that the team requires Engineers as also<\/p>\n
supporting staff including draftsman, supervisors, ministerial staff,<\/p>\n
financial experts, accountant etc.<\/p>\n
      18. According to him, there is only a marketing office at<\/p>\n
Hyderabad without any infrastructure or supporting staff and that<\/p>\n
he will not be able to do any worthwhile work in the new station.<\/p>\n
Reference has been made to an advertisement issued by the<\/p>\n
Company     (Ext.P15)   inviting  applications   for  a   Business<\/p>\n
Development Manager, which according to the petitioner is to<\/p>\n
continue his work. It was contended that Ext.P15 showed his<\/p>\n
requirement at Aroor and that inspite of the requirement of the<\/p>\n
company to have an officer of his expertise, he has been<\/p>\n
transferred to a place where there is no facility to work and that<\/p>\n
therefore, the intention is only to keep him away at a distant<\/p>\n
place. According to him, the other persons who were transferred<\/p>\n
along with him have been promised to be retransferred soon and<\/p>\n
WPC 21597\/09
\n                                 :15 :<\/span><\/p>\n
that their names have been included in the order only to make it<\/p>\n
appear that the petitioner alone was not transferred. It is stated<\/p>\n
that after joining at Chennai, Sri.K.A. Rajeev has taken long leave<\/p>\n
and that pursuant to Ext.P17, Mr. Jest John Lewis, has already<\/p>\n
been called back to Aroor.\n<\/p>\n
     19. Another reply affidavit has been filed by the petitioner<\/p>\n
answering the counter affidavit filed by the other respondents, in<\/p>\n
which also the endeavour is to drive home the point that his<\/p>\n
transfer is vitiated for malafides.\n<\/p>\n
     20. Counsel for the petitioner relied on the judgments in<\/p>\n
Dr. Sethumadhavan v. State of Kerala and Others<\/a> (1991<\/p>\n
KHC 616), Mohanan Nair v. State of Kerala<\/a> (1993 (2) KLT<\/p>\n
930) and Sarvesh Kumar Awasthi v. U.P. Jal Nigam and<\/p>\n
Others (2003 (11) SCC 740), to support the contention that<\/p>\n
malafides will vitiate administrative orders. Counsel also made<\/p>\n
reference to the judgment in the case of Rajendra Roy v. Union<\/p>\n
of India and another (AIR 1993 SC 1236) to contend that it<\/p>\n
may not be possible in all cases to adduce straight proof of<\/p>\n
malafides. The Learned Government Pleader referred to the Apex<\/p>\n
Court judgment in State of U.P. and Others v. Gobardhan Lal<\/a><\/p>\n
(2004 (11) SCC 402) to contend that the petitioner has not<\/p>\n
WPC 21597\/09
\n                                  :16 :<\/span><\/p>\n
succeeded in establishing a case of malafides warranting<\/p>\n
interference. Learned Sr. Counsel for respondents 2 and 3 made<\/p>\n
reference to Gujarat Electricity Board v. Atmaram Sungomal<\/p>\n
Poshani<\/a> (1989 (2) SCC 602), S.C. Saxena v. Union of India<\/p>\n
(2006 (9) SCC 583), Govt. of A.P. v. G. Venkata Ratnam<\/a><\/p>\n
(2008 (9) SCC 345), Dhampur Sugar (Kashipur) Ltd. v.<\/p>\n
State of Uttaranchal (2007 (8) SCC 418) and Chandra<\/p>\n
Prakash Singh v. Purvanchal Gramin Bank<\/a> (2008 (12) SCC<\/p>\n
292) and contended that the petitioner has miserably failed to<\/p>\n
establish a case of malafides and that if an order of transfer is<\/p>\n
issued ,the duty of the employee is first to obey the order and<\/p>\n
then to represent his personal inconveniences.<\/p>\n
      21. I have considered the submissions made.\n<\/p>\n
      22. The circumstances which were pointed out by the<\/p>\n
counsel for the petitioner to substantiate his plea that Ext.P1<\/p>\n
order of transfer is vitiated for malafides are;<\/p>\n
    (1) That the petitioner was involved in skilled works<\/p>\n
         connected mainly with defence related projects of Indian<\/p>\n
         Navy. Ext.P3 series of documents produced concern<\/p>\n
         these works.      According to him it was during the<\/p>\n
         execution stage of most of these works that he was<\/p>\n
WPC 21597\/09
\n                               :17 :<\/span><\/p>\n
       transferred, which shows that the interest of the<\/p>\n
       organisation was sacrificed for political considerations.\n<\/p><\/blockquote>\n
       Reference was made to Ext.P9 and Ext.P10, concerning<\/p>\n
       repair works of naval ships and Ext.P13 and P14 entry<\/p>\n
       passes issued by the Cochin Shipyard Ltd., in connection<\/p>\n
       with these works.\n<\/p><\/blockquote>\n
   (2) It   was   pointed   that   the  justification offered  by<\/p>\n
       respondents 1 to 3 for transferring the petitioner was the<\/p>\n
       possibility of getting more orders from DRDO, which<\/p>\n
       according to the petitioner, was only ruse to get rid of<\/p>\n
       him. He referred to Ext.P15, advertisement issued by the<\/p>\n
       Company       for  the    appointment     of  a   Business<\/p>\n
       Development Manager in Marine Field, which according<\/p>\n
       to him shows the requirement of the company to have an<\/p>\n
       officer of his expertise. Reference was made to Exts.P25<\/p>\n
       to P28 to contend that the orders were being canvassed<\/p>\n
       from Aroor and were executed from Aroor, for the reason<\/p>\n
       that the orders could be executed only by a team of<\/p>\n
       technocrats and not by any individual.           Petitioner<\/p>\n
       contended that the purpose of the transfer was not to<\/p>\n
       utilise the opportunities offered by DRDO but to silence<\/p>\n
WPC 21597\/09
\n                               :18 :<\/span><\/p>\n
       him by transferring to a distant place.\n<\/p>\n
   (3) It was argued that in Hyderabad the company has only a<\/p>\n
       marketing office which did not have any infrastructure for<\/p>\n
       him to do any worthwhile job. According to the petitioner<\/p>\n
       there is not even any budgetary allocation to improve<\/p>\n
       facilities at Hyderabad.\n<\/p>\n
   (4) It was submitted that his book on Lavelin was published<\/p>\n
       on 15.06.2009, Ext.P1 order of transfer was issued on<\/p>\n
       23.07.2009 and that Ext.P33 Article was published in<\/p>\n
       Desabhimani Daily dated 24.07.2009 mentioning about<\/p>\n
       the transfer of the petitioner. It was stated that if an<\/p>\n
       article is to be published in a newspaper on 24.07.2009 it<\/p>\n
       must have been drafted much earlier and that this<\/p>\n
       indicated that the CPI(M) had already decided on his<\/p>\n
       transfer, much prior to 23.07.2009, when Ext.P1 order<\/p>\n
       was issued.\n<\/p>\n
   (5) Petitioner contended that the other officers were<\/p>\n
       included in Ext.P1 only to create an impression that he<\/p>\n
       alone was not transferred. It was pointed out that others<\/p>\n
       mentioned in Ext.P1 were already promised convenient<\/p>\n
       postings. Reference was made to Ext.P17, by which<\/p>\n
WPC 21597\/09
\n                                 :19 :<\/span><\/p>\n
         Serial No.1 of Ext.P1 posted to Mumbai, was called back<\/p>\n
         to Aroor. (It should be noted here that the learned senior<\/p>\n
         counsel appearing for respondents 2 and 3 submitted<\/p>\n
         before court that Sri.Jest John Lewis was called to Aroor<\/p>\n
         for certain urgent works and that he has been returned to<\/p>\n
         his place of posting, viz., Mumbai on 26.09.2009).<\/p>\n
    (6) Petitioner further submitted that the statement in the<\/p>\n
         counter affidavit filed by the 1st respondent that the<\/p>\n
         government have no role in the day to day management<\/p>\n
         of the company was incorrect. Petitioner referred to<\/p>\n
         Ext.P21 notice calling upon him to show cause for<\/p>\n
         criticising the Government of Kerala and the Minister<\/p>\n
         concerned.\n<\/p>\n
    23.    On the aforesaid grounds, learned counsel for the<\/p>\n
petitioner contended that Ext.P1 order of transfer is vitiated for<\/p>\n
malafides and therefore should be interfered with.<\/p>\n
    24.    While appreciating the aforesaid contentions raised by<\/p>\n
the petitioner, it should be borne in mind that the petitioner has<\/p>\n
no case that he is not holding a transferable post. If transfer is a<\/p>\n
condition of service, it is upto the employer concerned to decide<\/p>\n
in what best manner they want to make use of the services of the<\/p>\n
WPC 21597\/09
\n                                :20 :<\/span><\/p>\n
employees. If such a decision has been taken, this court will keep<\/p>\n
its hands off provided the decision is not against the conditions of<\/p>\n
service of the employee concerned, that the order has been<\/p>\n
issued by an authority competent for the same and where the<\/p>\n
order is not vitiated for malafides. That an order of transfer can<\/p>\n
be interfered with only on aforesaid grounds has been upheld by<\/p>\n
the Apex Court in its judgments in State of U.P. and Others v.<\/p>\n
Gobardhan Lal<\/a> (2004 (11) SCC 402) and Mohd. Masoon<\/p>\n
Ahmad v. State of U.P. and Others (2007 (8) SCC 150).<\/p>\n
     25.   In this case, as already stated the only ground on<\/p>\n
which the order of transfer is impugned is that it is vitiated for<\/p>\n
malafides. The allegation of malafides is a serious charge made<\/p>\n
by an employee against his employer and courts have<\/p>\n
consistently held that the burden is heavily upon the employee to<\/p>\n
plead and prove his allegation with particulars, the facts<\/p>\n
constituting malafides. Where any administrative act or order is<\/p>\n
challenged, he who seeks to invalidate or nullify any act or order<\/p>\n
must establish the charge of bad faith, an abuse or a misuse by<\/p>\n
the authority of its powers. Though it is difficult to establish the<\/p>\n
state of a man’s mind, the difficulty is not lessened when one has<\/p>\n
to establish that a person apparently acting on the legitimate<\/p>\n
WPC 21597\/09
\n                                  :21 :<\/span><\/p>\n
exercise of power has, in fact, been acting malafide by pursuing<\/p>\n
an illegitimate aim, which must be discernible from the order<\/p>\n
impugned or must be shown from the established surrounding<\/p>\n
factors, which preceded the order. I do not think that in this<\/p>\n
context it is necessary to burden this judgment with all the<\/p>\n
precedents that were cited at the Bar except to refer to the<\/p>\n
following judgments of the Apex Court.\n<\/p>\n
     26.    In Dhampur Sugar (Kashipur) Ltd. v. State of<\/p>\n
Uttaranchal (2007 (8) SCC 418), it has been held that;<\/p>\n
         “81. Now, it is well settled and needs no authority
\n         for holding that every power must be exercised
\n         bona fide and in good faith. Before more than
\n         hundred years, Lord Lindley said in General
\n         Assembly of Free Church of Scotland v. Overtoun:\n<\/p><\/blockquote>\n
         “I take it to be clear that there is a condition
\n         implied in this as well as in other instruments which
\n         create power, namely, that the powers shall be
\n         used bona fide for the purpose for which they are
\n         conferred.”\n<\/p><\/blockquote>\n
         In other words, every action of a public authority
\n         must be based on utmost good faith, genuine
\n         satisfaction and ought to be supported by reason
\n         and rationale. It is, therefore, not only the power
\n         but the duty of the court to ensure that all
\n         authorities exercise their powers properly, lawfully
\n         and in good faith. If powers are exercised with
\n         oblique motive, bad faith or for extraneous or
\n         irrelevant considerations, there is no exercise of
\n         power known to law and the action cannot be
\n         termed as action in accordance with law.<\/p><\/blockquote>\n
         82. But as already discussed earlier, a court of law
\n         is not expected to propel into “the unchartered
\n         ocean” of government policies. Once it is held that<\/p>\n
WPC 21597\/09
\n                                  :22 :<\/span><\/p>\n
        the Government has power to frame and reframe,
\n        change and rechange, adjust and readjust policy,
\n        the said action cannot be declared illegal, arbitrary
\n        or ultra vires the provisions of the Constitution only
\n        on the ground that the earlier policy had been given
\n        up, changed or not adhered to. It also cannot be
\n        attacked on the plea that the earlier policy was
\n        better and suited to the prevailing situation.<\/p>\n
        83. Allegations of mala fide are serious in nature
\n        and they essentially raise a question of fact. It is,
\n        therefore, necessary for the person making such
\n        allegations to supply full particulars in the petition.
\n        If sufficient averments and requisite materials are
\n        not on record, the court would not make “fishing” or
\n        roving inquiry. Mere assertion, vague averment or
\n        bald statement is not enough to hold the action to
\n        be mala fide. It must be demonstrated by facts.
\n        Moreover, the burden of proving mala fide is on the
\n        person levelling such allegations and the burden is
\n        “very heavy” (vide E.P. Royappa v. State of T.N.).
\n        The charge of mala fide is more easily made than
\n        made out. As stated by Krishna Iyer, J. in Gulam
\n        Mustafa v. State of Maharashtra<\/a> it is the last refuge
\n        of a losing litigant (see also Ajit Kumar Nag v. GM
\n        (PJ), Indian Oil Corpn.). In the case on hand, except
\n        alleging that the policy was altered by the
\n        Government, to extend the benefit to Respondent
\n        4, no material whatsoever has been placed on
\n        record by the appellant. We are, therefore, unable
\n        to uphold the contention of the learned counsel that
\n        the impugned action is mala fide or malicious”.<\/p>\n
  27.     Again in Chandra Prakash Singh v. Purvanchal<\/p>\n
Gramin Bank<\/a> (2008 (12) SCC 292), it was held;\n<\/p>\n<\/p>\n
       “31. In addition to the decisions referred to above, this
\n       Court in Tara Chand Khatri v. MCD, E.P. Royappa v.<\/p><\/blockquote>\n
       State of T.N. and Sukhwinder Pal Bipan Kumar v. State
\n       of Punjab held that the burden of establishing mala
\n       fides is very heavy on the person who alleges it. The
\n       court, would, therefore, be slow to draw dubious
\n       inferences from incomplete facts placed before it by a<\/p>\n
WPC 21597\/09
\n                                  :23 :<\/span><\/p>\n
        party, particularly when the imputations are grave and
\n        they are made against the holder of an office which
\n        has a high responsibility in administration. Such is the
\n        judicial perspective in evaluating charges of unworthy
\n        conduct against ministers and others, not because of
\n        any   special   status   … but   because   otherwise,
\n        functioning effectively would become difficult in a
\n        democracy.\n<\/p>\n
        32. In M. Sankaranarayanan v. State of Karnataka this
\n        Court observed that the Court may: (SCC p. 69, para\n<\/p>\n
        12)<\/p>\n
        “draw reasonable inference of mala fide from the facts
\n        pleaded and established. But such inference must be
\n        based on factual matrix and such factual matrix
\n        cannot remain in the realm of insinuation, surmise or
\n        conjecture.”\n<\/p>\n
        33. In N.K. Singh v. Union of India this Court held that
\n        the inference of mala fides be drawn by reading in
\n        between the lines and taking into account the
\n        attendant circumstances.\n<\/p>\n
        34. Thus, as a proposition of law, the burden of
\n        proving mala fides is very heavy on the person who
\n        alleges it. Mere allegation is not enough. Party making
\n        such allegations is under the legal obligation to place
\n        specific materials before the court to substantiate the
\n        said allegations. There has to be very strong and
\n        convincing evidence to establish the allegations of
\n        mala fides specifically and definitely alleged in the
\n        petition as the same cannot merely be presumed. The
\n        presumption under law is in favour of the bona fides of
\n        the order unless contradicted by acceptable material.”<\/p>\n
    28.    Appreciated in the above back ground, the question to<\/p>\n
be considered is whether the petitioner has succeeded in<\/p>\n
establishing his case of malafides. What has been pleaded is that<\/p>\n
he had published a book on the Lavelin issue, which embarrassed<\/p>\n
the leadership of the CPI(M), and in particular additional<\/p>\n
respondents 4 and 5 and that they have influenced respondents 2<\/p>\n
WPC 21597\/09
\n                                 :24 :<\/span><\/p>\n
and 3, through the Minister for Industries, Government of Kerala<\/p>\n
and that accordingly Ext.P1 order of transfer was issued. First of<\/p>\n
all, petitioner has no case that the company has any connection<\/p>\n
with the Lavelin issue. He has also no case that anybody in the<\/p>\n
company had any malafides against him. Therefore, unless the<\/p>\n
petitioner is able to establish, either directly or from the attending<\/p>\n
circumstances, that pressure was exerted on respondents 2 and 3<\/p>\n
to transfer him to Hyderabad, he cannot succeed in the writ<\/p>\n
petition. This vital link is totally absent in this case and on the<\/p>\n
other hand the petitioner wants this court to assume that<\/p>\n
respondents 4 and 5 or the Minister concerned had influenced<\/p>\n
respondents 2 and 3 and that therefore he was transferred. In the<\/p>\n
absence of such a link, this court will not be justified in inferring<\/p>\n
that Ext.P1 order issued by the company is vitiated for malafides.<\/p>\n
     29.    The reason stated in the counter affidavit to transfer<\/p>\n
the petitioner is that being an experienced Engineer, he was<\/p>\n
identified as the fit and suitable person to interact with various<\/p>\n
Defence Research and Development Organisations in Hyderabad<\/p>\n
and strengthen the business operations of the company. The new<\/p>\n
assignment of the petitioner is neither research nor execution of<\/p>\n
projects, but is for the purpose of marketing the products of the<\/p>\n
WPC 21597\/09
\n                                :25 :<\/span><\/p>\n
company and to interact with the customer organisations.<\/p>\n
Therefore, even if it is assumed that there is no infrastructure in<\/p>\n
Hyderabad for the petitioner to carry on the work he is now doing,<\/p>\n
absence of such infrastructure can be no reason to invalidate<\/p>\n
Ext.P1 order of transfer for the reason that the petitioner is not<\/p>\n
assigned to continue the research or technical works. The case of<\/p>\n
the petitioner that in his absence, there is nobody else at Aroor to<\/p>\n
continue the works also do not merit acceptance. The company<\/p>\n
has sworn to an affidavit stating that there are equally, if not<\/p>\n
better, qualified technical personal available with it to look after<\/p>\n
such duties. It is also stated that the duties have already been<\/p>\n
assigned to yet another officer who has a post graduation in<\/p>\n
Engineering. In any case, if the company has taken a decision to<\/p>\n
transfer the petitioner, it is responsibility of the company to<\/p>\n
identify and post a suitable substitute, which has already been<\/p>\n
done in this case. Even otherwise, as already seen, petitioner is<\/p>\n
holding a transferable post and if his argument in this respect is<\/p>\n
accepted, the result will be that he can never be transferred<\/p>\n
which cannot be the situation nor is it in the interest of the<\/p>\n
organisation. It may have been an unwise decision of the<\/p>\n
company to transfer the petitioner and it may also be true that in<\/p>\n
WPC 21597\/09
\n                                  :26 :<\/span><\/p>\n
the given circumstances, the company could have taken a better<\/p>\n
decision.       So long as this court is not concerned with the<\/p>\n
wisdom of such decisions, these are not grounds for interference<\/p>\n
with a decision taken by an administrator who is competent for<\/p>\n
the same. Ext.P15 advertisement issued by the company for<\/p>\n
appointing a Business Development Manager shows that<\/p>\n
appointment is proposed to be made on contractual basis and of a<\/p>\n
non-engineering graduate. Therefore, Ext.P15 does not by itself<\/p>\n
show that requirement of an officer like the petitioner is sought to<\/p>\n
be met by resorting to recruitment from outside. In regard to<\/p>\n
contention that he has been issued Ext.P21 show cause notice for<\/p>\n
criticising the Government of Kerala and Minister concerned, it<\/p>\n
should be held that the 3rd respondent is a company incorporated<\/p>\n
under the Companies Act, 1956. Even if it is a government<\/p>\n
company as defined in Section 617 of the Companies Act, being a<\/p>\n
juristic entity, having all the privileges provided in the Companies<\/p>\n
Act, the company has its own rights and liberties. Ext.P21 is a<\/p>\n
show cause notice for initiating disciplinary proceedings against<\/p>\n
the petitioner on allegation of misconducts.           Criticising the<\/p>\n
Government or the Minister may be a misconduct under the<\/p>\n
Conduct Rules, but that does not mean that government has any<\/p>\n
WPC 21597\/09
\n                                   :27 :<\/span><\/p>\n
role in the daily management of the company. Therefore, the fact<\/p>\n
that the company is a government company or the misconducts<\/p>\n
alleged in Ext.P21, do not by itself lead to the inference that the<\/p>\n
government is interfering with its daily management.<\/p>\n
     30.    For the aforesaid reasons, I am not persuaded to<\/p>\n
conclude that the circumstances pointed out by the petitioner<\/p>\n
leads to the only inference that Ext.P1 order of transfer is vitiated<\/p>\n
for malafides.\n<\/p>\n
     31.    I am not satisfied that the petitioner has made out a<\/p>\n
case for interference.\n<\/p>\n
       However, it is clarified that in case the petitioner submits<\/p>\n
any application\/representation for leave or for retransfer to Aroor,<\/p>\n
it will be open to the company to deal with the same untramelled<\/p>\n
by the findings in this judgment.\n<\/p>\n
       Writ Petition fails and is dismissed.\n<\/p>\n<\/p>\n
                                         ANTONY DOMINIC, JUDGE
\nRp<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court C.R.Neelakandan Namboodiri vs State Of Kerala on 22 December, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-98399","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nC.R.Neelakandan Namboodiri vs State Of Kerala on 22 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-r-neelakandan-namboodiri-vs-state-of-kerala-on-22-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.R.Neelakandan Namboodiri vs State Of Kerala on 22 December, 2009 - 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