IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 21597 of 2009(T) -------------------------------------- PETITIONER: ------------------- C.R.NEELAKANDAN NAMBOODIRI, DEPUTY GENERAL MANAGER, KELTRON CONTROL, AROOR, ALAPPUZHA DISTRICT - 688 534. BY ADV. MR.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF INDUSTRIES, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION, KELTRON HOUSE, THIRUVANANTHAPURAM. 3. KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION, KELTRON HOUSE, THIRUVANANTHAPURAM. *ADDL. RESPONDENTS 4 TO 6 IMPLEADED: 4. PINARAYI VIJAYAN, STATE SECRETARY, CPI(M), A.K.G. CENTRE, THIRUVANANTHAPURAM. W.P.(C). NO.21597/2009-T: 5. N. SASIDHARAN NAIR, ADDITIONAL PRIVATE SECRETARY FOR HON'BLE MINISTER FOR INDUSTRIES, THIRUVANANTHAPURAM. *ADDL.R4 & ADDL.R5 IMPLEADED AS PER ORDER DATED 22/09/09 IN I.A. NO. 11586/09. R1 BY GOVT. PLEADER SMT. ANU SIVARAMAN, R2 & R3 BY MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE, ADV.MR.M.GOPIKRISHNAN NAMBIAR, ADDL.R4 BY MR.M.K.DAMODARAN, SENIOR ADVOCATE, ADVS.MR. P.K.VIJAYAMOHANAN, MR.ALAN PAPALI, MR.GILBERT GEORGE CORREYA, MR.NISHIL.P.S, SMT.ANITHA MATHAI MUTHIRENTHY, R5 BY ADV. MR.K.GOPALAKRISHNA KURUP. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON 22/12/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.21597/2009-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 23/07/2009. EXT.P.2: COPY OF THE OPENING PAGES OF THE BOOK ALONG WITH SOME OTHER RELEVANT PAGES. EXT.P.3: COPY OF THE DETAILS REGARDING THE PROJECT WORKS FOR THE LAST FEW MONTHS. EXT.P.4: COPY OF THE REPRESENTATION DTD. 24/07/2009. EXT.P.5: COPY OF THE REPRESENTATION DTD. 25/07/2009. EXT.P.6: COPY OF THE REPRESENTATION DTD. 24/07/2009 FILED BY THE PETITIONER ALONG WITH ENCLOSURES. EXT.P.7: COPY OF THE REPRESENTATION DTD. 25/07/2009 FILED BY PETITIONER'S FATHER AND MOTHER ALONG WITH ENCLOSURES. EXT.P.8: COPY OF THE LEAVE APPLICATION DULY COUNTER SIGNED BY THE HEAD OF THE OFFICE. EXT.P.9: COPY OF THE COMMUNICATIONS WITH RESPECT TO REPAIR WORKS OF INS NIREEKSHAK. EXT.P.10: COPY OF THE ORDER DATED 11/06/2009 AND 29/05/2009. EXT.P.11: COPY OF THE ORDER DATED 31/07/2009. EXT.P.12: COPY OF THE PROSPECTIVE BUSINESS POSITION. EXT.P.13: COPY OF THE PETITIONER'S PASS WITH RESPECT TO INS VIRAAT. EXT.P.14: COPY OF THE ACCESS CARD WITH RESPECT TO COCHIN SHIPYARD. EXT.P.15: COPY OF THE ADVERTISEMENT WHICH APPEARED IN THE HINDU DAILY DATED 16/09/2009. EXT.P.16: COPY OF THE MONTHLY PERFORMANCE REPORT FOR AUGUST, 2009 OF KELTRON, HYDERABAD. EXT.P.17: COPY OF THE NOTE DATED 29/08/2009. EXT.P.18: COPY OF THE NEWS REPORTS CONTAINING THE STATEMENTS MADE BY SRI. PINARAYI VIJAYAN. EXT.P.19: COPY OF THE JOINING REPORT DATED 14/09/2009. W.P.(C). NO.21597/2009-T: EXT.P.20: COPY OF THE APPLICATION FOR LEAVE TOGETHER WITH ENDORSEMENT. EXT.P.21: COPY OF THE NOTICE DATED 22/09/2007. EXT.P.22: COPY OF THE REPLY DATED 29/09/2007 SUBMITTED BY THE PETITIONER. EXT.P.23: COPY OF THE ORDER OF PROMOTION DATED 03/06/2009. EXT.P.24: COPY OF THE BOOK “S.N.C. LAVLIN REKHAKALILOODE” AUTHORIZED BY THE PETITIONER AND PUBLISHED BY OLIVE PUBLICATIONS. EXT.P.25: COPY OF THE PARTIAL LIST OF CUSTOMERS AND SYSTEMS AND INSTRUMENTS SUPPLIED FROM KELTRON CONTROLS, AROOR. EXT.P.26: COPY OF THE COMMUNICATION DATED 14/10/2008. EXT.P.27: COPY OF THE COMMUNICATION DATED 24/06/2008. EXT.P.28: COPY OF THE OFFICE MEMO DATED 21/04/2005. EXT.P.29: COPY OF THE MINUTES OF THE REVIEW MEETING HELD AT KELTRON HOUSE ON 19/03/2005. EXT.P.30: COPY OF THE LETTER DATED 05/10/2009 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER, KELTRON TO ONE MR. SHERFUDEEN. EXT.P.31: COPY OF THE COMMUNICATION DATED 02/08/2008. EXT.P.32: COPY OF THE COMMUNICATION DATED 17/10/2008. EXT.P.33: COPY OF THE ARTICLE WHICH APPEARED IN DESABHIMANI DAILY DATED 24/07/2009. EXT.P.34: COPY OF THE NEWS ITEM IN MARKTHAB DAILY DATED 25/07/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ================ W.P.(C) NO. 21597 OF 2009 (T) ===================== Dated this the 22nd day of December, 2009 J U D G M E N T Prayers in this writ petition are to quash Ext.P1 order to the extent the petitioner is transferred from Aroor in Alappuzha District to Hyderabad and a direction to respondents 2 and 3 to retransfer him to Keltron Controls, Aroor is also sought for. 2. Petitioner is an Engineering Graduate. He was initially appointed as a Development Engineer II in the 3rd respondent Company in the year 1981. He was given promotions and finally, by Ext.P23 order dated 03.06.2009, the petitioner was promoted as Deputy General Manager in the scale of pay of Rs.3600-5000 with effect from 01.01.2009. By Ext.P1 order dated 23.07.2009, along with two others who were also working at Keltron Controls, Aroor, one of the units of the 3rd respondent, petitioner was transferred and posted to Hyderabad Marketing Office of the company. This order is under challenge in this writ petition. 3. An important aspect of this case, which is required to be stated at the outset is that, although along with the writ petition as amended, only 8 documents have been produced, WPC 21597/09 :2 : subsequently, along with IA Nos.11027 of 2009, Exts.P9 to P14 were produced. Thereafter, along with reply affidavit dated 20.09.2009, Exts.P15 to P23, and with IA No.12810 of 2009, Ext.P24, were produced. Still later, IA No.13248 of 2009 was filed praying for receiving Exts.P25 to P34. When the counsel for the petitioner, Sri. Kaleeswaram Raj placed reliance on these documents, learned Senior Counsel Sri.T.P. Kelu Nambiar, who appeared for respondents 2 and 3, objected contending that, in the absence of amendment to the petition, the affidavits enclosing the documents or the documents themselves, cannot be referred to. Though the counsel for the petitioner attempted to expatiate that the affidavits and the documents only substantiate the contentions already raised in the writ petition, in my considered opinion, there is substance in the objection raised by the learned Senior Counsel. 4. By virtue of the provisions conferred under Article 225 of the Constitution of India, and other enabling powers, the Rules of the High Court of Kerala have been framed by this Court. Chapter XI of the Rules govern proceedings under Articles 226 and 227 of the Constitution. Rule 155 of the High Court Rules provides that no ground shall be relied upon and no relief sought WPC 21597/09 :3 : at the hearing except the grounds taken and reliefs sought in the Original Petition and the accompanying affidavit. The proviso to the Rule states that the court may, at the hearing allow the petition and affidavit to be amended upon such terms as to costs or otherwise, as the court thinks fit. 5. Dealing with a similar situation, in Narayanan vs. State of Kerala (1993 (1) KLT 461), it was held that if documents produced subsequently along with interlocutory application are to be treated as exhibits in the main petition, it should be followed up by an appropriate amendment to the petition and that one of the problems that arise is that the documents in question will remain unexplained and unanswered in any counter affidavit filed by the respondents. It was held that it is necessary that all amendments to petition either in the pleadings or the prayers, or by way of production of new documents should be carried out, besides producing copies of amended petition for use of the court and for service on the contesting respondents. In this case, this is precisely what has happened. In view of the statutory provision noticed above and the principles laid down in the aforesaid judgment, the objection raised deserves to be upheld. However, to avoid injustice, I shall WPC 21597/09 :4 : make reference to the documents produced, to the extent it is necessary. 6. It has been held by the Apex Court, in the judgments in State of U.P. and Others v. Gobardhan Lal (2004 (11) SCC 402) and Mohd. Masood Ahmad v. State of U.P. and Others (2007 (8) SCC 150), that an order of transfer can be successfully impugned , if it is vitiated for established malafides or if the order is against the service rules governing the employee or where the authority who issued the order is incompetent to issue the same. However, in this case, it was only on the ground of malafides that Ext.P1 order of transfer is sought to be challenged. 7. I shall now proceed to narrate the facts pleaded by the parties. 8. According to the petitioner, he is an Engineering graduate with an unblemished track record. It is stated that he has published Ext.P24 book with the title “LAVALIN THE REAL PICTURE”, where he made an attempt to make a factual analysis of the deal entered into between the Kerala State Electricity Board and M/s.SNC Lavalin, Canada. It is stated that pursuant to the directions of this court, in WPC No. 32298 of 2006, CBI conducted an investigation about the deal and that the Addl. 4th WPC 21597/09 :5 : respondent, the former Minister for Electricity and the present State Secretary of CPI (M) has been arrayed as one of the accused in the case. After obtaining sanction from His Excellency The Governor, chargesheet has been filed before the CBI Court and the court has taken cognizance of the offences. It is stated that he being an Engineer conversant with the technical and other aspects of the matter, his book has technical authenticity as it contains valuable documents, throwing light into various aspects of the deal and therefore the book had enormous impact on the reading community, resulting in serious political repercussions. 9. Reference has been made to certain chapters of the book where the petitioner has stated that the additional 5th respondent was a member of the personal staff of the addl. 4th respondent when he was a Minister and that the additional 5th respondent was also in charge of Special Officer of Malabar Cancer Centre, which is stated to be involved in the deal worth Rs.98 crores, out of which Rs.86 crores were allegedly misappropriated and that his residential house was raided by the CBI during the course of investigation. It is stated that the additional 5th respondent is presently the Special Secretary to the WPC 21597/09 :6 : Minister for Industries, who also belongs to the political party of which the additional 4th respondent is the State Secretary. 10. It is stated that the 3rd respondent Corporation is fully owned by the Government of Kerala under its Department of Industries and that therefore, the additional 5th respondent and the Minister for Industries have direct control over respondents 2 and 3. Petitioner alleges that very often appointment of Managing Director is ordered by the Industries Department on adhoc basis, depending upon the decision of the Minister, Cabinet and the Leaders of the ruling party. According to the petitioner, the factual and technical aspects of the deal brought out by him, would have annoyed the persons in power, and therefore they wanted to see that the petitioner is sent out to a distant station and thus prevented from expressing his opinions. It is stated that at the instance of addl. Respondents 4 and 5 and the Minister for Industries, respondents 2 and 3 transferred the petitioner. 11. It is also averred that during past 28 years of his service, the petitioner was involved in projects related to control instrumentation with expertise in system instrumentation. Ext.P3, documents have been produced to show the nature of works done by him, and on the basis of these documents, it was contended WPC 21597/09 :7 : that the highly skilled jobs in which he was involved, cannot be done by anybody else in the Company. It was stated that his abrupt transfer will cause enormous loss to the 3rd respondent since the projects in which he was involved were in the midway. Exts.P4 and P5, are produced to show that the employees themselves have expressed concern about his transfer. On these grounds, petitioner submitted that political compulsions outweighed administrative exigencies and that the 2nd respondent was dictated by the 1st respondent as well as leaders of the ruling front. Therefore the petitioner contended that Ext.P1 order of transfer was issued with a malicious intention and that it violates his fundamental rights. It was also pointed out that his father is bedridden for last 5 years due to prostate cancer, that his mother is aged and sickly and that there is nobody else to look after them. It was also stated that he has to look after his wife and two children and that the transfer will cause extreme hardships and miseries. Pointing out all these, he had filed Exst.P6 representation to the 2nd respondent and his parents had filed Ext.P7 representation to the Chief Minister, pleading for cancellation of the transfer order. WPC 21597/09 :8 : 12. I shall first refer to the counter affidavit filed by respondents 2 and 3. It is stated that in 1981, the petitioner joined the service of the 3rd respondent as Engineer II, that he was given all promotions in accordance with the promotion policy of the Company and that since 01.01.2009, he was working as Deputy General Manager at Keltron Controls, Aroor, one of the units of the Company. It is stated that during the period from 20.03.1992 to 07.01.1997, petitioner was on leave for taking up employment abroad and that thereafter, he was on deputation for 1½ years working in the ‘People Plan Campaign”. It is stated that for the last few years, the petitioner was involved in Control and Instrumentation Group, involving marketing, job execution and payment collection. It is stated that the 3rd respondent is having a Marketing Office at Hyderabad and that the officers at the marketing office consist of Engineers and other professionally qualified persons. Justifying the order transferring the petitioner, it is stated that; “In the recent past, many opportunities have come up with Defence Research and Development Organisations at Hyderabad. Some of the projects required high level of professional standards, therefore the 3rd respondent, in Ext.P1 order, decided to transfer the petitioner, who is an experienced engineer, to the Marketing Office at Hyderabad as he WPC 21597/09 :9 : was identified as the fit and suitable person to interact with various Defence Research and Development Organisations in Hyderabad and strengthen the business operations of the Company. It is submitted that the petitioner was transferred to Hyderabad to make use the services of the petitioner in a better way to strengthen the business operation of the Company”. Respondents 2 and 3 have denied the averments that Ext.P1 has been issued to hush up the petitioner’s voice or to victimise the petitioner who claims to have studied the SNC Lavelin deal. It is stated that these respondents have nothing to do with the deal or the publication of the petitioner’s book and that there is absolutely no reason to connect the Lavelin issue with the company or its officers. The averment that leaders of CPI (M) have exerted pressure on the Cabinet to see that the petitioner is sent to a distant place, disregarding the interests of the company is also denied. According to respondents 2 and 3, Ext.P1 was issued only on administrative grounds. It is stated that the additional 5th respondent or the Minister for Industries do not have any direct control over the Corporation. The averment that the Managing Director would act under the dictates of the Minister or the leader of any political party is also denied. 13. The averment of the petitioner that with his transfer there is nobody else to look after the duties discharged by him, is WPC 21597/09 :10 : answered stating that the 3rd respondent is having equally qualified or better qualified Engineers, capable of handling works referred to in Ext.P3 and that on relieving the petitioner, Sri. Mathukutty, Deputy General Manager, a M.Tech Degree holder in Electrical Engineering, has been handed over charge of the works referred to in Ext.P3 and that all those works are going on smoothly at an accelerated speed. It is also alleged that Exts.P4 and P5 have been submitted at the instance of the petitioner. Dealing with the averments of the petitioner that the publication of his book has caused annoyance in the minds of the people who are in power, it is stated that the company has nothing to do with the SNC Lavelin issue. It is further stated that the promotion of petitioner to the post of Deputy General Manger after the publication of the book itself is an indication that they have no malafides in the matter. It is also stated that the allegation of malafides is not made directly against respondents 2 and 3 and that the petitioner has no case that the 2nd respondent issued the order, because of the 2nd respondent took exception to his book on Lavelin issue. 14. Counter affidavit has been filed by the 1st respondent WPC 21597/09 :11 : where they say that the company is a Sick Industrial Company in respect of which a reference is pending before the Board for Industrial and Financial Reconstruction. It is stated that as part of restructuring/ revival, one time settlement has been concluded with the consortium of banks for an amount of Rs.55.85 crores to be paid in 5 instalments, out of which 4 instalments have already been paid. It is stated that recently, company has made substantial progress and that as part of the qualitative arrangements, several senior officers have been transferred to different places and that none of them have raised any objection or resisted their transfer, realising the positive measures taken by the company and the Government. It is stated that the transfer in question was ordered by the company with all bonafides and that the government has no malafide intention at all. They have also stated about the new opportunities from the Defence Research and Development Organisation necessitating the transfer of the petitioner. It is stated that the Cabinet or the Government do not intervene in the day to day affairs of the Companies and the Corporations, the management of which is vested in the Board of Directors. All other allegations against the government are also denied in this affidavit. WPC 21597/09 :12 : 15. The additional 4th respondent, the State Secretary of CPI(M) has filed his counter affidavit, denying the allegations that the leaders of the CPI(M) have exerted pressure on the Cabinet to see that the petitioner is transferred to a distant place. It is stated that at no point of time has he or any of the other leaders of the party, have exerted influence or pressure of any kind over respondents 2 and 3 to transfer the petitioner. According to him the writ petition has been filed to malign the government and the political party leading the ruling coalition. It is stated that the filing of the writ petition and the allegations against the 4th respondent and the Minister for Industries were widely reported in the media even before the writ petition came up for consideration. He has also explained the context in which he had to make certain comments about the petitioner to the media persons. 16. The Addl. 5th respondent has filed his counter affidavit denying the allegations against him as well as the Minister for Industries. It is stated that the members of the personal staff of Ministers have no authority or power to intervene in the affairs of government companies which are managed by the Board of Directors consisting of senior bureaucrats, technocrats and WPC 21597/09 :13 : managerial persons. According to him, he has no knowledge about the orders passed by respondents 2 and 3 regarding the petitioner's transfer to Hyderabad. 17. Petitioner has filed reply affidavit dated 28th September 2009, in answer to the counter affidavit filed by respondents 2 and 3. It is stated that the petitioner was always connected with control and instrumentation of Naval and other Ships and that for the last 7 years, his area of operation has been the marine wing and that he has been transferred even in spite of the absence of an experienced person to look after the works done by him. According to him, Sri. Mathukutty, his successor, has no exposure to the marine wing and that he is a physically challenged person, who has his limitations in executing the works. It is stated that the work in Control and Instrumentation group, involved job execution and marketing, but not payment collection. It is stated that it is not product marketing but system marketing, which is always done from the head office for the reason that system marketing is possible only where infrastructure necessary for system assimilation, preliminary design, technical aspects, making of drawings etc., is available and that not only that such infrastructure is not available at WPC 21597/09 :14 : Hyderabad, but even an attempt is not made for creating such infrastructure. Petitioner submits that the work he has been doing are executed on lump sum turnkey basis and that offers are made not by a person but by a team consisting of Engineers from different disciplines, which alone can provide the technical back up. It is stated that the team requires Engineers as also supporting staff including draftsman, supervisors, ministerial staff, financial experts, accountant etc. 18. According to him, there is only a marketing office at Hyderabad without any infrastructure or supporting staff and that he will not be able to do any worthwhile work in the new station. Reference has been made to an advertisement issued by the Company (Ext.P15) inviting applications for a Business Development Manager, which according to the petitioner is to continue his work. It was contended that Ext.P15 showed his requirement at Aroor and that inspite of the requirement of the company to have an officer of his expertise, he has been transferred to a place where there is no facility to work and that therefore, the intention is only to keep him away at a distant place. According to him, the other persons who were transferred along with him have been promised to be retransferred soon and WPC 21597/09 :15 : that their names have been included in the order only to make it appear that the petitioner alone was not transferred. It is stated that after joining at Chennai, Sri.K.A. Rajeev has taken long leave and that pursuant to Ext.P17, Mr. Jest John Lewis, has already been called back to Aroor. 19. Another reply affidavit has been filed by the petitioner answering the counter affidavit filed by the other respondents, in which also the endeavour is to drive home the point that his transfer is vitiated for malafides. 20. Counsel for the petitioner relied on the judgments in Dr. Sethumadhavan v. State of Kerala and Others (1991 KHC 616), Mohanan Nair v. State of Kerala (1993 (2) KLT 930) and Sarvesh Kumar Awasthi v. U.P. Jal Nigam and Others (2003 (11) SCC 740), to support the contention that malafides will vitiate administrative orders. Counsel also made reference to the judgment in the case of Rajendra Roy v. Union of India and another (AIR 1993 SC 1236) to contend that it may not be possible in all cases to adduce straight proof of malafides. The Learned Government Pleader referred to the Apex Court judgment in State of U.P. and Others v. Gobardhan Lal (2004 (11) SCC 402) to contend that the petitioner has not WPC 21597/09 :16 : succeeded in establishing a case of malafides warranting interference. Learned Sr. Counsel for respondents 2 and 3 made reference to Gujarat Electricity Board v. Atmaram Sungomal Poshani (1989 (2) SCC 602), S.C. Saxena v. Union of India (2006 (9) SCC 583), Govt. of A.P. v. G. Venkata Ratnam (2008 (9) SCC 345), Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal (2007 (8) SCC 418) and Chandra Prakash Singh v. Purvanchal Gramin Bank (2008 (12) SCC 292) and contended that the petitioner has miserably failed to establish a case of malafides and that if an order of transfer is issued ,the duty of the employee is first to obey the order and then to represent his personal inconveniences. 21. I have considered the submissions made. 22. The circumstances which were pointed out by the counsel for the petitioner to substantiate his plea that Ext.P1 order