IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 19629 of 2008(J) ------------------------------------- PETITIONER(S): ----------------------- SURENDRAN A., S/O.LATE K.GOVINDAN, PEON, KERALA HEAD LOAD WORKERS WELFARE BOARD, LOCAL COMMITTEE SUB OFFICE, MANNUTHY, TRICHUR DISTRICT. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): ------------------------- 1. THE CHEIF EXECUTIVE, KERALA HEAD LOAD WORKERS WELFARE BOARD, SRM ROAD, ERNAKULAM. 2. SUCHI.S., PEON, HEAD LOAD WORKERS WELFARE BOARD, LOCAL COMMITTEE SUB OFFICE, KADAKKAL, KOLLAM DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LABOUR, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. COMMISSIONER, STATE COMMISSIONERATE FOR PHYSICALLY HANDICAPPED, SECRETARIAT ANEX, THIRUVANANTHAPURAM. ADV. MR.RENIL ANTO KANDAMKULATHY,SC,KHLWWB FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.19629/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE MEDICAL BOARD CERTIFICATE DT. 15.12.04. P2:- COPY OF THE ORDER NO.E3-3432/08 DT. 4.4.08 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE ORDER NO.E1-144/96 DT. 11.4.2008 ISSEUD BY THE 2ND RESPONDENT. P4:- COPY OF THE REPRESENTATION DT. 8.5.08 SUBMITTED BY THE PETITIONER BEFORE THE SIT RESPONDENT. P5:- COPY OF THE LETTER DT. 4.6.08 ISSUED BY THE COMMISSIONER TO THE IST RESPONDENT. P6:- COPY OF THE GOT. CIRCULAR NO.110736/SDI/77/GAD DT. 3.9.77. P7:- COPY OF THE GO(MS) NO.459/80/GAD DT. 3.10.80. P8:- COPY OF THE ORDER NO.E3-3432/09 DT. 26.7.08. /TRUE COPY/ P.A . TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.19629/2008-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of January, 2009 J U D G M E N T Aggrieved by Ext.P2 order of transfer, the petitioner has filed this writ petition. 2. The petitioner was appointed as peon in the office of the Secretary, Head Load Workers Welfare Board. Initially, he was appointed on provisional basis from the Employment Exchange. He was regularised in service with effect from 01/02/1996. He is a native of Kadakkal. In 1997 he was transferred to Kadakkal. While working as such, as per Ext.P2 dated 04/04/2008, he has been ordered to be transferred to Ollurkara in Thrissur District. Going by Ext.P2 there was no replacement. But when the relieving order was issued as per Ext.P3, it is seen that the second respondent has been transferred from Thrissur to the place where the petitioner was working. Accordingly, the second respondent joined there on 12/04/2008. 3. The petitioner is relying upon the circulars issued by the Government, Exts.P6 and P7, in support of the plea that being a physically handicapped person and being a scheduled caste, he is entitled for a posting to a place of his choice/native district. W.P.(C) No.19629/2008 -:2:- 4. This Court while admitting the writ petition, passed an interim order on 11/07/2008 directing the first respondent to consider whether the petitioner can be posted in a station proximate to Kadakkal as far as possible. Thereafter, Ext.P8 order was passed by which he was ordered to be posted to the Cochin Port Trust Area Committee. This order stands stayed by this Court as per Interim order dated 06/08/2008 in I.A No.3634/2008. 5. The counter affidavit shows that the apparent reason for transfer is that the petitioner is keeping grudge with some of the union leaders and the petitioner always used to have difference of opinion with them, which affected the day today functioning of the Board Office at Kadakkal, and if the petitioner was retained at that office, the smooth functioning of the Board would be affected and moreover it would affect the reputation of the Board. It was in those circumstances that he was considered for transfer. 6. The averments made in paragraph (3) of the counter affidavit have no legal backing. While considering the same it can be seen that the details of the union leaders or others who had grudge against the petitioner or difference of opinion with him have been omitted to be stated. However, there are no details as to the action taken, if any, by the officer of the said office, if at all, the said W.P.(C) No.19629/2008 -:3:- allegation was true, to have a peaceful atmosphere in the office. Apparently, such alleged incidents with third parties could not have been weighed against the petitioner. The petitioner being a lowly paid employee in the office cannot be said to be the controlling factor as far as the peaceful situation of the office is concerned. These averments without any supporting materials cannot be accepted in its face value. The contention that he was transferred to avoid a law and order problem in the functioning of the Kadakkal Board office will not therefore hold good. If that be so, Ext.P2 order amounts to an abuse of the power. 7. The learned counsel appearing for the Board submitted that even though this Court directed the Board to consider whether he could be posted in Thiruvananthapuram District, at the relevant time the only vacancy available proximate to Kadakkal was in the Cochin Port Trust Area Committee, and that is why he is ordered to be posted as per Ext.P8 to Cochin Port Trust Area Committee. The learned counsel supported the averments in the counter affidavit. 8. It is clear from the facts pointed out above that the power to transfer employee has been exercised without any justification at all. He being a physically handicapped person and a member of scheduled caste is entitled for the benefits provided under Exts.P6 W.P.(C) No.19629/2008 -:4:- and P7. If that be so, he is entitled to be posted in Thiruvananthapuram District itself. Being a person who was newly appointed, the second respondent cannot have any claim at all to have a posting at Kadakkal and it is submitted at the bar that he had only two months service after his first appointment itself. Therefore, if at all it was necessary, the petitioner could have been accommodated in the district itself rather transferring him to a far away District. When the power of transfer is abused for extraneous reasons, it could be concluded that the action is vitiated by mala fides. If that be so, this Court sitting in jurisdiction can interfere with the order of transfer, Ext.P2. Ext.P8 is not one issued in accordance with the direction in the interim order. Therefore, the writ petition is allowed. Exts.P2 and P8 are quashed. The petitioner will be transferred back to Kadakkal by issuing appropriate orders in that regard within a period of two weeks from the date of receipt of the copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms