IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 4629 of 2010(C) ------------------------- PETITIONER(S): --------------- M.VENUGOPALAN ASSARI, CLASS IV (HIGHER GRADE), STATE WAREHOUSE, KERALA STATE WAREHOUSING CORPORATION, THIRUVANANTHAPURAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.RAMESH. C.R. SRI.K.V.VIMAL RESPONDENT(S): --------------- 1. KERALA STATE WAREHOUSING CORPORATION, PB NO.1727, ERNAKULAM, KOCHI-682016, REP. BY ITS MANAGING DIRECTOR. 2. A.RAJENDRA PANICKER, MANAGING DIRECTOR IN CHARGE, KERALA STATE WAREHOUSING CORPORATION, PB NO.1727, ERNAKULAM, KOCHI-682 016. ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.4629/2010 APPENDIX PETITIONER'S EXHIBITS: P1: True copy of order No.KSWC/T & P/2009-10 dated 8.2.2010. P2: True copy of order dated 22.12.2009 on I.A 695/09 in complaint No.1589/09 C. P3: True copy of the Circular No.KSWC/Est./Transfer Norms/90-91 dated 25.2.1991. RESPONDENTS' EXHIBITS: Annexure R1(A): True copy of the relevant portion of the Staff Regulation. Annexure R1(B): True copy of the order dated 5.2.2010 in W.P.(C). NO.3616/2010 B. Annexure R1(C): True copy of request dt.15.1.2010 of the Warehouse Manager Mavelikkara to post one Class IV employee there and the recommendation of the Regional Manager. Annexure R1(D-1), (D-2), (D-3), (D-4), (D-5) & (D-6): True copies of the requests for posting of additional class IV employees received from Warehouse Managers Alappuzha, Thakazhy, Thiruvalla, Payyannur, Nilambur, Pathanamthitta Warehouses. Annexure R1(E): True copy of the relieving order dated 09.02.2010. Annexure R1(F): True copy of report dt. 10.2.2010 of the Warehouse Manager in this regard with the remarks of the Regional Manager. Annexure R1(G): True copy of the Divisional Officer, State Warehouse, Trivandrum to the Managing Director of the 1st respondent Corporation dated 12.4.84. Annexure R1 (H): True copy of the order No.KSWC/EST/T & P/Class IV Gr II/2009-10, dt 16.7.2009. Annexure R1(I): True copy of the order No.KSWC/EST/T & T P/Class IV Gr II/2009-10, dt 27.7.2009. Annexure R1(J): True copy of the circular No.17507/B.P.E/09/Planning dt 31.12.2009. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 4629 OF 2010 -------------------------------------------- Dated this the 22nd day of February, 2010 JUDGMENT The petitioner is a a Class IV employee under the Kerala State Warehousing Corporation (for short 'the Corporation). He is the President of Kerala State Warehousing Corporation Employees Union (CITU). He challenges Ext.P1 order whereby he was transferred from State Warehouse, Thiruvananthapuram and posted at State Warehouse, Mavelikkara. 2. The petitioner assails the said order on various grounds. Firstly, it is contended that it is vitiated by mala fides. The specific contention of the petitioner is that in his capacity as the President of the Kerala State Warehousing Corporation Employees Union, he has approached the Lok Ayukta by filing complaint No.1589/2009 and obtained Ext.P2 order restraining the second respondent herein from taking administrative decision including policy matters in the Corporation as its Managing Director except day to day administration until further orders. According to the petitioner, it is the said action on his part that provoked the second respondent to issue Ext.P1 order. He further contends that if a W.P.(C) NO.4629/2010 2 Class IV employee is transferred and posted in a particular place, normally he could continue in that station for a period of 6 years as per the transfer norms. The petitioner has been transferred and posted at State Warehouse, Thiruvananthapuram only on 6.10.2006. According to him, going by the aforesaid transfer norms, he would be able to retire from the said station as he is due to retire on 30.11.2012. It is further contended that Ext.P1 is silent about the reasons for effecting the transfer of the petitioner. The usage of the expression 'exigency' is only a cover to the mala fide exercise of power to transfer the petitioner, vested with the second respondent by virtue of holding the post of Managing Director (in-charge). Admittedly, the petitioner is the senior most Class IV employee in the State Warehouse, Thiruvananthapuram. It is his further contention that several of his juniors are working in Alappuzha district who can be conveniently posted to State Warehouse, Mavelikkara. Lastly, it is contended that general transfers are being effected during April-May and therefore, there is no reason for effecting transfer of the petitioner in the middle of the calender year and that if Ext.P1 order is implemented, it would definitely disrupt the studies of his daughter. 3. A statement has been filed by the first respondent in this Writ Petition. The allegations of mala fides and absence of exigencies have W.P.(C) NO.4629/2010 3 been refuted therein. It is stated therein that the order in Ext.P2 has been taken up before this Court by filing W.P.(C).No.3616/2010 and this Court granted stay of Ext.P2 as per Ext.R1(B). It is further submitted that the said Writ Petition was later, allowed and Ext.P2 order therein was quashed. The Lok Ayukta was directed to consider the complaint of the petitioner in accordance with law. The first respondent supported the reasons stated in Ext.P1 viz., one regarding the existence of exigency of service. It is further stated therein that Exts.R1(C) and R1(D) series would reveal the existence of exigency of service that constrained the respondents to transfer the petitioner from State Warehouse, Thiruvananthapuram to State Warehouse, Mavelikkara. Relying on Ext.R1(A), it is submitted that such order of transfer and posting are well within the powers of the Managing Director of the first respondent. The contention of the petitioner that the Class IV employee transferred at a particular station should be allowed to continue for a period of 6 years is also refuted thereunder contending that there is no such provision in the transfer norms. The transfer norms contain only guidelines to the effect that normally a Class IV employee who completes 6 years is liable to be transferred. In the wake of the contentions, it is submitted that the Writ Petition is devoid of any merit and it is liable to be dismissed. W.P.(C) NO.4629/2010 4 4. In Ext.P1, it is stated that the petitioner was transferred on account of exigency of service. Letter No.SW-MVK/Misc./09-10/385 dated 15.1.2010 has been referred to therein for that purpose. As per the said letter, the Asssistant Manager of State Warehouse, Mavelikkara informed that shortage of Class IV employee is affecting the smooth functioning of the Warehouse and he requested to post one more Class IV employee/ Class IV Gr.II in addition to the sole Class IV employee available there. Ext.P1 would further show that the Regional Manager, Alappuzha had recommended for the posting of one more Class IV employee at State Warehouse, Mavelikkara. Pursuant to the direction of this court, the said letter carrying the request made by the Regional Manager, Alappuzha has been produced as Ext.R1(C). 5. Refuting the statement made by the first respondent, the petitioner has filed a reply affidavit to bring out the circumstances which made him to allege that Ext.P1 is actuated by mala fides. According to the petitioner, he was picked and chosen for transfer not on account of non- availability of Class IV employee but for wreaking vengeance on account of his filing the complaint against the second respondent before the Lok Ayukta. As noticed earlier, the order in Ext.P2 was subsequently interfered by this Court and the Lok Ayukta was directed to consider the W.P.(C) NO.4629/2010 5 complaint in accordance with law. In the context of the rival contentions, a document which was made available based on a direction of this Court ie., the Minutes of the meeting held on 23.12.2009 assumes relevance. It is a document that was produced and came up for the consideration of this Court while considering the orders of transfer of certain other employees. It would reveal the fact that the staff requirements of various Warehouses under the first respondent was assessed in the said meeting held on 23.12.2009. It would further reveal that the concerned Assistant Manager of State Warehouse, Mavelikkara had no complaint at all at any point of time with respect to the shortage of Class IV employees whereas the complaint was only pertaining to the shortage of staff to be engaged for watch and ward duty of the godown. Of course this document alone cannot be relied on for the purpose of deciding this case. It is a document dealing with the various subjects of discussion at the meeting held in the chambers of the Managing Director. This was referred to only for the purpose to consider whether there is any substance in the contention of the petitioner regarding mala fides alleged in the action in ordering Ext.P1. 6. In response to the reply affidavit filed by the petitioner, the first respondent has filed a reply statement. It is stated therein that no excess employees are available, in the circumstances mentioned therein, W.P.(C) NO.4629/2010 6 who could be posted as class IV employee at the State Warehouse, Mavelikkara based on the request made as per Ext.R1(C) the recommendation made thereon by the Regional Manager, Alappuzha. It is only stated therein that on earlier occasions persons were being engaged to meet such contingencies on daily wage basis. It is further stated that in view of Ext.R1(J) circular issued by the Government of Kerala, there is no scope for such engagement and all the Heads of Public Undertakings are instructed to fill up vacancies on temporary basis only through employment exchange. 7. In the wake of such facts obtained in this Writ Petition, the question to be decided is whether Ext.P1 is actuated by mala fides. There is no case for the respondents that taking into account the request made as per Ext.R1(C) and recommended by the Regional Manager, Alappuzha an additional post of class IV employee was sanctioned at Warehouse, Mavelikkara. If that be so, it can only be a working arrangement. The reasons stated in Ext.R1(C) regarding the inconveniences caused on account of the continuous engagement of the sole class IV employee available in the said station cannot be taken as a contingency that has arisen all of a sudden. At any rate, the very fact that no additional post of Class IV employee was sanctioned therein would suggest that what was W.P.(C) NO.4629/2010 7 done was nothing but a working arrangement. Normally, in such contingencies, working arrangement alone would be effected and in this case, unusually, instead of resorting to such arrangement, a class IV employee working in Thiruvananthapuram Warehouse, that too, the senior most in that particular office, had been transferred and posted at Warehouse Mavelikkara despite the availability of three of his juniors. In the context of the said circumstances, the contention of the petitioner that action on his part in obtaining Ext.P2 is the actual provocation for ordering transfer as per Ext.P1 and that on account of the same, Ext.P1 is vitiated by mala fides cannot be said to be a hollow contention. When such a firm foundation of facts is pleaded and established by the petitioner, definitely, the respondents are bound to explain the situation. It is a fact that on 22.12.2009, the petitioner approached the Kerala Lok Ayukta and obtained Ext.P2 order. On 15.1.2010, as per ExtR1(C) a request has been made by the Senior Assistant Manager, Warehouse, Mavelikkara through the Regional Manager Alappuzha to post one Class IV/ Class IV Gr.II employee. There is no explanation forthcoming in any of the statements filed by the respondents as to why the petitioner who is the senior most Class IV employee at Thiruvananthapuram Warehouse and that too, the president of a recognised association has been chosen as the W.P.(C) NO.4629/2010 8 person for being posted at Warehouse, Mavelikkara. Admittedly, even if the number of class IV employees in Thiruvanvanthapuram are in surplus, there are three juniors to the petitioner available in Alappuzha to be posted at Warehouse, Mavelikkara in Alappuzha District. The petitioner is due to retire on 30.11.2012 and, normally, he could continue by virtue of his posting to the said station with effect from 6.10.2006 for a period of 6 years at the said station. As noticed hereinbefore, the contention of the respondents is that there is no norm which permits continuance of class IV employees for a period of 6 years in a station and, in fact, the norms governing transfers under the Corporation would make a Class IV employee who stayed in a particular station for a period of 6 years liable to be transferred. The corollary of the said norms can only be that, normally, a Class IV employee would be permitted to continue in a particular station on his transfer and posting to that station for a period of 6 years. Therefore, taking into account the totality of the circumstances and the absence of a plausible explanation as to why the petitioner was picked and chosen for a posting based on the request by the Assistant Senior Manager, State Warehouse, Mavelikkara in Alappuzha District coupled with the admitted position that based on the said request and recommendation no additional post has been created or sanctioned at State W.P.(C) NO.4629/2010 9 Warehouse Mavelikkara, I am of the view that it is an eminently fit case wherein as inference of mala fides can be drawn. The petitioner was not relieved pursuant to Ext.P1 order and no substitute has been posted in his place. The petitioner is a native of Thiruvananthapuram District and not much period is left in his career. Normally, as far as possible, a Class IV employee will not be transferred to a far-off place. For all these reasons, I have no hesitation to uphold the contentions of the petitioner. Accordingly, Ext.P1 is set aside. Consequently, the respondents shall permit the petitioner to continue in State Warehouse, Thiruvananthapuram. The Writ Petition is allowed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.4629/2010 10 C.T. RAVIKUMAR, J. W.P.(C). NO. /2010 JUDGMENT June, 2010 W.P.(C) NO.4629/2010 11