IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 35533 of 2009(J) --------------------------------------- PETITIONER(S): ------------------------ V. CHANDRAKANTH, PERSONAL ASSISTANT TO MANAGING DIRECTOR, KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM. BY ADV. SMT.AYSHA YOUSEFF, SMT.MOLLY JACOB, SMT.RABIA BEEGAM T.K., SMT.M.KABANI DINESH, SMT.BOBY M.SEKHAR, SMT.FASHIYA YOUSEFF, SMT.U.M.FOUSIA. RESPONDENT(S): ------------------------- 1. KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.1727, ERNAKULAM, KOCHI - 682 016 2. BOARD OF DIRECTORS OF THE KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS CHAIRMAN, P.B.NO.1727, ERNAKULAM, KOCHI - 682 016. *ADDL. R3 & R4 IMPLEADED ADDL. R3: SMT.P.G. USHA DEVI, SENIOR ASSISTANT MANAGER, KERALA STATE WAREHOUSING CORPORATION, REGIONAL OFFICE, PALAKKAD. WP(C).No. 35533 of 2009(J) ADDL. R4: SRI.A. RAJENDRA PANICKER, GENERAL MANAGER (CONSTRUCTION), NOW HOLDING THE ADDITIONAL CHARGE OF MANAGING DIRECTOR (IN-CHARGE), KERALA STATE WAREHOUSING CORPORATION, P.B.NO.1727, ERNAKULAM, KOCHI-682 016. *ARE IMPLEADED AS PER ORDER DATED 25/01/2010 IN I.A.1097/2010. R1 & R2 BY ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. ADDL. R3 BY ADV. SRI.M.S.UNNIKRISHNAN. ADDL. R4 BY ADV. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.V.J.ANAND. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING: WP(C).No. 35533 of 2009(J). APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DATED 03/06/2008 IN WP(C) NO. 2008/08. EXT.P2: COPY OF THE REPORT DATED 04/04/2009 OF THE COMPLAINT COMMITTEE. EXT.P3: COPY OF THE RELEVANT PAGE OF LOG BOOK. EXT.P4: COPY OF THE INTERIM ORDER DATED 12/02/2007 IN WP(C) NO. 4479/2007. EXT.P5: COPY OF THE PROCEEDINGS NO.KSWC/ADMN./CC236/2009-2010 DATED 13/05/2009 OF THE MANAGING DIRECTOR. EXT.P6: COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE BOARD MEETING HELD ON 28/11/2009. EXT.P7: COPY OF THE ORDER DATED 01/12/2009 TRANFERRING THE PETITIONER TO THE STATE WAREHOUSE AT PATHANAMTHITTA. EXT.P8: COPY OF THE REPRESENTATION DATED 02/12/2009 OF THE PETITIONER BEFORE THE MANAGING DIRECTOR. EXT.P9: COPY OF THE NOTE DATED 02/03/2009 OF THE HONOURABLE MINISTER FOR AGRICULTURE. EXT.P9(a): COPY OF THE INTERIM ORDER DATED 22/07/2009 IN WP(C) NO. 20569/2009(M). EXT.P9(b): COPY OF THE INTERIM ORDER DATED 28/07/2009 IN WP(C) NO. 21244/2009(A). EXT.P9(c): COPY OF THE INTERIM ORDER DATED 25/08/2009 IN WP(C) NO. 21244/2009 (A). EXT.P10: COPY OF THE ORDER NO.G.O.(RT) NO.1758/09/AD DATED 20/10/2009. EXT.P11: COPY OF THE GOVERNMENT LETTER NO.2418/PO2/08/AD DATED 14/03/2008. EXT.P12: COPY OF THE JUDGMENT DATED 21/05/2008 IN WP(C) NO. 12223/08 FILED BY THE 4TH RESPONDENT. EXT.P13: COPY OF THE BOARD RESOLUTION NO.2662 IN THE 248TH MEETING OF THE BOARD OF DIRECTORS OF THE CORPORATION. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PROCEEDING DATED 06/12/2006 OF THE MANAGING DIRECTOR 1ST CORPORATION. WP(C).No. 35533 of 2009(J). EXT.R1(B): COPY OF THE BOARD RESOLUTION NO.2662 IN THE 248TH MEETING OF THE BOARD OF DIRECTORS HELD ON 07/07/2008. EXT.R1(C): COPY OF THE SMT.P.G. USHADEVI HAS SENT A SUBMISSION BY FAX ON 04/11/2009. EXT.R4(a): COPY OF THE COMPLAINT DATED 15/02/2007 SUBMITTED BY THIS RESPONDENT TO THE MANAGING DIRECTOR. EXT.R4(b): COPY OF THE COMPLAINT DATED 10/08/2007 SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT BY THIS RESPONDENT. EXT.R4(c): COPY OF THE FIR LODGED BY THE POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ERNAKULAM AS CRIME NO.1222 OF 2007. EXT.R4(d): COPY OF THE CHARGE SHEET WAS FILED AS C.C.685/2007 AGAINST THE PETITIONER. EXT.R4(e): COPY OF THE MEMO DATED 12/11/2007 ISSUED BY THE MANAGING DIRECTOR TO THIS RESPONDENT. EXT.R4(f): COPY OF THE REPLY TO EXHIBIT R4(e) SUBMITTED BY THIS RESPONDENT ON 17/11/2007. EXT.R4(g): COPY OF THE NEWS ITEM IN MATHRUBHUMI DAILY DATED 07/08/2007. EXT.R4(h): COPY OF THE PETITION DATED 06/11/2008 SUBMITTED BY THIS RESPONDENT BEFORE THE ENQUIRY COMMITTEE. EXT.R4(i): COPY OF THE PETITION DATED 18/11/2008 SUBMITTED BY THIS RESPONDENT BEFORE THE ENQUIRY COMMITTEE. EXT.R4(j): COPY OF THE PETITION DATED 03/12/2008 SUBMITTED BY THIS RESPONDENT BEFORE THE ENQUIRY COMMITTEE. EXT.R4(k): COPY OF THE PETITION DATED 12/12/2008 SUBMITTED BY THIS RESPONDENT BEFORE THE ENQUIRY COMMITTEE. EXT.R4(a) (IN C.M.A.923/2010): COPY OF THE GO(RT)NO.2064/09/AD DATED 11/12/2009. //TRUE COPY// P.S. TO JUDGE rs. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.35533 OF 2009 -------------------------------------------- Dated this the 1st day of October, 2010 JUDGMENT The petitioner is a Senior Assistant Manager in the Kerala State Warehousing Corporation. He was transferred and posted to State Warehouse, Pathanamthitta as per Ext.P7 order dated 1.12.2009 while he was working as Personal Assistant to the Managing Director of the Kerala State Warehousing Corporation (hereinafter referred to as 'the Corporation'), Ernakulam. He has been holding the said post from 6.10.2006 onwards. According to the petitioner, Ext.P7 order is punitive in nature and vitiated by mala fides. The contention of the petitioner is that it is evident from Ext.P7 that Resolution No.2740 passed in the meeting of the Board of Directors held on 28.11.2009 is the reason for his transfer. The minutes of the said meeting is produced as Ext.P6. It is the further case of the petitioner that the meeting in which the said resolution was passed was convened pursuant to Ext.R1(c) complaint filed by the third respondent that was sent through fax. This Writ Petition is filed by W.P.(C) NO.35533/2009 2 the petitioner challenging Exts.P6 and P7 and seeking a writ of mandamus commanding the respondents to consider the grievance raised by him in Ext.P8 representation before relieving him from the post of Personal Assistant to the Managing Director or in the alternative to give him a convenient posting in any of the offices of the first respondent in Ernakulam District. According to the petitioner, it is an incident alleged to have taken place on 12.2.2007 at 8.30 A.M in the Head Office of the Corporation that led to the lodging of Ext.R1(c) complaint. It is the contention of the petitioner that first of such kind of complaint was made by her on 17.4.2004 in respect of an alleged harassment by the petitioner during the year 2000. Thereupon, he was charge sheeted on 24.5.2004 and later, on culmination of the enquiry, a report was submitted on 10.1.2005 finding him not guilty of the charge of harassment. Later, the third respondent made another complaint dated 15.5.2007 and he came to know about it only on receipt of copy of W.P.(C).NO.2008/08. The said Writ Petition was disposed of as per Ext.P1 judgment directing the committee constituted in terms of Visaka & others v. State of Rajasthan reported in AIR 1997 SC 3011 to conduct an enquiry and to submit a report to the Managing Director. The Managing Director was further directed to W.P.(C) NO.35533/2009 3 consider the same and then, to take a decision regarding the continuance of the disciplinary action initiated as per memo dated 12.11.2007 against the third respondent. The said committee, thereupon, submitted its report dated 4.4.2009 viz., Ext.P2, finding the complaint against the petitioner as baseless and fabricated and accordingly, decided to continue the disciplinary action initiated against the third respondent as per Ext.P5. According to the petitioner, despite the receipt of Ext.P5, the petitioner did not challenge the same. Later, the Additional Chief Secretary and Agricultural Production Commissioner was appointed as the Managing Director. The next day of his assumption of charge viz., on 4.11.2009, the third respondent faxed Ext.R1(c) complaint against the petitioner raising false allegations against the complaint committee and its findings. The further contention of the petitioner is that the fourth respondent, who got an axe to grind against the petitioner, made use of the situation and as per his instruction, the same was included as an additional agenda in the Board meeting held on 28.11.2009 and accordingly, Resolution No.2740 was passed. Ext.P6 is the true relevant portion of the minutes of the Board Meeting obtained by the petitioner under the Right to Information Act. Pursuant to Ext.P6, the first respondent issued Ext.P7 order of transfer W.P.(C) NO.35533/2009 4 dated 1.12.2009 posting him as Senior Assistant Manager, State Warehouse, Pathanamthitta and posting one Smt.R.Bijimol working in the office of the Managing Director in place of the petitioner as Personal Assistant to the Managing Director. On the next day, the petitioner had submitted Ext.P8 representation. No action was taken thereon. It is with these contentions and alleging hasty steps for relieving him pursuant to Ext.P7 that this Writ Petition has been filed. 2. Respondents 1 and 2 have, jointly, filed a counter affidavit. Respondents 3 and 4 have filed separate counter affidavits. In the counter affidavit filed on behalf of the first and second respondents, the factual contentions made by the petitioner with respect to the findings in the earlier enquiry and its outcome are admitted. The facts that the third respondent faxed Ext.R1(c) complaint and thereupon, it was placed before the Board of Directors and further, in the meeting, it was decided to transfer the petitioner from the Head Office of the first respondent Corporation are also admitted. However, it has been specifically stated therein that such a decision was taken after evaluating the long history and the sensitiveness of the issue involved. The reasons therefor, are elaborately explained in the counter affidavit. The third respondent in her W.P.(C) NO.35533/2009 5 counter affidavit explained the situations that made her to fax Ext.R1(c) with a view to support and sustain the impugned orders. According to her, on account of her bitter experiences, she lost her faith in the higher authorities and thereupon, decided to rest her hopes on the proceedings before the Judicial First Class Magistrate Court, Ernakulam in C.C.No.685 of 2007. However, on coming to know about the appointment of the new Managing Director, she faxed Ext.R1(c) complaint with the bona fide belief that she would get justice at the hands of the new Manging Director. She has candidly denied the allegation of mala fide intention. 3. The fourth respondent in his counter affidavit refuted all the allegations against him. It is to be noted that by the time he filed the counter affidavit, the Additional Chief Secretary (Home & Vigilance) & Agricultural Production Commissioner was relieved from the charge of the Managing Director of the Corporation and he was assigned the full additional charge of the Managing Director of the Corporation till the appointment of a regular Managing Director. According to the fourth respondent, he never had any ill-feeling towards the petitioner and stated that all the proceedings were initiated against the petitioner prior to his assumption of charge as the Managing Director. Further, it is categorically W.P.(C) NO.35533/2009 6 stated that the sole reason for the petitioner's transfer was to ensure a fair/unbiased enquiry taking note of the influential position he is holding. That apart, it is stated that the only other alternative was to suspend the petitioner pending enquiry. 4. There cannot be any doubt with respect to the position that in the absence of a firm foundation of facts pleaded and established, inference of mala fides cannot be drawn to interfere with an order of transfer. A scanning of the contentions of the petitioner would undoubtedly reveal that they are founded on the allegations against the third and fourth respondents. Conspicuously, no specific allegation of mala fide has been made against the then Managing Director who was the Additional Chief Secretary and Agricultural Production Commissioner. Admittedly, he assumed charge as M.D only on 3.11.2009 and Ext.P6 would not reflect anything even to suggest any kind of mala fide on him. Obviously, Ext.R1(c) would reveal that the third respondent had appended copies of the F.I.R in Crime No.1222 of 2007 of Ernakulam Central Police Station, F.I statement etc., along with Ext.R1(c) complaint. Ext.P6 is the extract of the minutes of the meeting held on 28.11.2009. It would reveal that the Board of Directors have considered Ext.R1(c) and the Report on W.P.(C) NO.35533/2009 7 the detailed enquiry conducted by the complaints committee dated 4.4.2009 and the various documents annexed to Ext.R1(c). It was after such evaluation, the Board took the decision as hereunder:- 1. The fairness of any enquiry will be questioned as long as the person complained against is occupying the influential position of PA to managing Director. Therefore in the interest of natural justice, it is decided to transfer Shri.V.Chandrakanth, Senior Assistant Manager & PA to Managing Director to State Warehouse, Pathanamthitta with immediate effect. 2. In view of this development, the complaints committee will look into the whole episode afresh and submit a report within a period of two months after hearing the parties. 3. The disciplinary action initiated against Smt.P.G.Ushadevi on the basis of the Report of the Complaints Committee will be kept in abeyance until further orders. W.P.(C) NO.35533/2009 8 5. In this context, it is relevant to note that it was after perusing the copy of the petition dated 15.2.07, copy of the F.I.R in Crime No.1222/07 etc., that this Court as per Ext.P2 judgment directed to place the complaint of the third respondent herein before the committee constituted in terms of Visakha's case (supra) for the employees of the Warehousing Corporation and directed the Committee to conduct an enquiry. It is also to be noted that Crime No.1222/2007 was registered and after investigation, charge sheet was laid before the Judicial First Class Magistrate Court, Ernakulam and now, it is pending before that Court as C.C.No.685/2007. If after evaluating all circumstances, the Board took a decision to have a fresh look on the whole issue such a decision cannot be lightly interfered with. Evidently, it is only to ensure a fair and unbiased enquirybased on the conclusion that continuance of the petitioner in a key position viz., PA to M.D would not be conducive to such a fair enquiry that Ext.P7 has been issued. A transfer effected during pendency of an enquiry, even if to the detriment of an employee's interest, by itself, would not constitute a punishment as long as the action was not motivated by a desire to punish him for an alleged fault or wrong (see the decision of this Court in Dinamony v.D.S.P reported in 1994(1) KLT 326. Having regard W.P.(C) NO.35533/2009 9 to the various contentions raised in the Writ Petition alleging mala fides in Exts.P6 and P7 orders of transfer, I am of the considered view that they are not sufficient to establish mala fides or even capable of making this Court to draw an inference of mala fides. In that context, it is to be noticed that there is absolutely no allegation of mala fides against the then M.D and, in fact, he is not in the party array in his personal capacity. In the absence of a firm foundation of facts pleaded and established inference of mala fides could not be drawn. I am also of the view that the mere inconvenience to a transferee shall not be a reason for interference with an order of transfer especially, in a case of this nature. For the foregoing reasons, I am of the view that Exts.P6 and P7 call for no judicial review and therefore, this Writ Petition is liable to fail. Accordingly, it is dismissed. However, it is made clear that the findings and observations in this judgment are made solely for the purpose of deciding this case and they shall not be worked out in any other proceedings to the prejudice of any of the parties. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.35533/2009 10 W.P.(C) NO.35533/2009 11 W.P.(C) NO.35533/2009 12 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.35533/2009 13