IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 WP(C).No. 32710 of 2008(R) ------------------------------------- PETITIONER(S): -------------------------- AMBILY MOL.S, UPPER DIVISION CLERK, JUDICIAL FIRST CLASS MAGISTRATE'S COURT,VAIKOM, KOTTAYAM RESIDING AT SREENILAYAM, PERUMTHURUTHU.PO KALLARA, KOTTAYAM. BY ADV.MR. K.RAMAKUMAR, SENIOR ADVOCATE MR.J.R.PREM NAVAZ SMT.SMITHA GEORGE RESPONDENT(S): ------------------------- 1. THE CHIEF JUDICIAL MAGISTRATE, CHIEF JUDICIAL MAGISTRATE'S COURT, KOTTAYAM. **2. THE JUDICIAL MAGISTRATE OF FIRST CLASS, KOTTAYAM.(CORRECTED) * ADDRESS OF THE SECOND RESPONDENT CORRECTED AS ''JUDICIAL MAGISTRATE OF FIRST CLASS, VAIKOM, KOTTAYAM DISTRICT. AS PER ORDER DT. 6.11.08 IN IA. 14217/08. *ADDL. R3 IS IMPLEADED *3. VAIKOM BAR ASSOCIATION VAIKOM, KOTTAYAM DISTRICT, REP.BY ITS SECRETARY IS IMPLEADED AS ADDL. R3 AS PER ORDER DT. 6.11.08 IN IA. 14216/08. ***ADDL. R4 IS IMPLEADED ***4 THE REGISTRAR GENERAL , HIGH COURT OF KERALA ERNAKULAM. ADDL. R4 IS IMPLEADED AS PER ORDER DT. 11.11.08 IN IA. 14269/08. W.P.(C) NO.32710/2008 ****ADDL. R5 IS IMPLEADED 5. MS. SANJU S GOPI, LOWER DIVISION CLERK, JUDICIAL FIRST CLASS MAGISTRATE COURT-I, VAIKOM. IS IMPLEADED AS ADDL. R5 VIDE ORDER DT. 21.1.06 IN IA. 870/09. GOVERNMENT PLEADER FOR R1 & R2 BY ADV.MR.DILIP MOHAN FOR R3 MR.KRB.KAIMAL, SENIOR ADVOCATE FOR R 4 BY ADV. MR.B.UNNIKRISHNA KAIMAL FOR R 4 MR.SIJU RAJAN FOR ADDL.R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON 20/02/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.32710/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.E-5171/08 DT. 3.11.08 ISSUED BY R1. P2:- COPY OF THE PETITION DT. NIL SUBMITTED BY A MEMBER OF THE BAR BEFORE R2. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE OFFICIAL MEMORANDUM NO.S.41/2003 DT. 25.4.03 ISSUED BY THE IST RESPONDENT. R3A:- COPY OF THE REQUEST BY 34 MEMBERS OF THE ASSOCIATION DT. 5.11.08. R3B:- COPY OF THE RESOLUTION PASSED BY THE MEMBERS OF THE BAR ASSOCIATION DT. 6.11.08. R3C:- COPY OF THE COVERING LETTER DT. 7.11.08. R5(a):- COPY OF THE ORDER NO.E-5171/08 DT. 16.1.09. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 32710 of 2008-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2009. JUDGMENT The short question that arises in this writ petition is as to the validity of Ext.P1 order of transfer, by which the petitioner has been transferred to Kanjirappally, in an existing vacancy, on administrative grounds. 2. The petitioner who is working as Bench Clerk in the Court of Judicial Magistrate of First Class, Vaikom is thus transferred and posted as such in the Court of Judicial First Class Magistrate II, Kanjirappally against an existing vacancy. 3. Heard learned Senior Counsel Shri K. Ramakumar, for the petitioner, learned Senior Counsel Shri K.R.B. Kaimal for respondents 1, 2 and 4, Shri Dilip Mohan, learned counsel appearing for the third respondent and Shri Siju Rajan, learned counsel appearing for the fifth respondent. 4. The order of transfer is challenged mainly on the ground that it is punitive. Secondly, it is submitted that she had completed only 9 months of service in Vaikom and was not due for transfer. It is further pointed out that going by the order of transfer, there is a reference therein to a petition put by a member of the Bar Association, Vaikom which was only an anonymous WPC 32710/08 2 petition (produced herein as Ext.P2). Without enquiring into the veracity of the matters stated in Ext.P2, the first respondent straight away ordered the petitioner to be transferred out which is clearly illegal. It is pointed out that going by the affidavit filed by the Secretary, Bar Association, the very source of the said complaint said to have been sent by a Member of it, has been disowned and on the basis of such an anonymous petition, the order of transfer could not have been issued. It is further argued that the first respondent has not filed any counter affidavit in support of the order of transfer and the counter affidavit is sworn to by the additional fourth respondent being the Registrar (Subordinate Judiciary) and as such the contentions raised by the petitioner cannot be said to have been disputed at all. 5. Learned Senior Counsel appearing for respondents 1, 2 and 4 submitted that the first respondent Chief Judicial Magistrate conducted a personal inspection of the office of the Judicial Magistrate of First Class, Vaikom and based on that, a report has been submitted explaining the circumstances and the reasons for issuing the impugned order of transfer. It is pointed out that the report contains various factors which will justify the order of transfer, as the petitioner had not been conducting the duties of the office of Bench Clerk in an orderly manner which affected the functioning WPC 32710/08 3 of the court itself. Therefore, an order of transfer had to be issued on administrative exigencies. 6. Pending the writ petition, this court passed an order on 7.11.2008 directing that the vacancy arising as a result of Ext.P1 shall not be filled up and it will be open to the petitioner to join at Kanjirappally, if she so desires, without prejudice to her contentions and subject to further orders of this court in the writ petition. This order was modified by a later order dated 19.12.2008 making it clear that it will be open to the authority concerned to fill up the vacancy at Vaikom, subject to the result of the writ petition. Accordingly, the additional 5th respondent has been transferred to Vaikom from the Judicial Magistrate of First Class, Kanjirappally. 7. In the counter affidavit filed by the additional 5th respondent, it is prayed that the fifth respondent may be transferred back to Kanjirappally. 8. Ext.P2 is the anonymous complaint which was received by the learned Chief Judicial Magistrate. Ext.P2 purports to be a complaint from a member of the Bar Association, Vaikom. So many irregularities have been alleged in Ext.P2 regarding the handling of cases in the Court of Judicial Magistrate of First Class, Vaikom especially with regard to the posting of cases and allied matters. Some personal allegations are also seen raised against her. The contents of Ext.P2 are to the effect that the that the WPC 32710/08 4 petitioner is not having any dedication to do the work of a Bench Clerk; hundreds of cases are remaining without getting any posting and there is no particular order by which the cases are being posted and called in the Bench. It is also alleged that nobody is prepared to take any action against her since she is protected by others. It is also stated that even though a list showing the cases to be called every day is being published, the same is only an eye wash and the posting of the cases and the roll call is not in accordance with the said list. 9. Learned Senior Counsel appearing for the petitioner vehemently contended that nobody has owned the responsibility for sending the said complaint which is evidenced by the affidavit filed by the Secretary of the Bar Association. Therefore, a reference to the counter affidavit filed by the third respondent will be profitable here. In the counter affidavit it is stated that after receipt of the transfer order, she approached some of the members of the Bar Association and told that she was transferred on the basis of a complaint submitted by a member of the Bar Association to the Judicial First Class Magistrate, Vaikom. By Ext.R3(a) 34 members of the Bar Association requested the Secretary of the Association to convene an extra ordinary general body meeting so as to know about the veracity of the allegations. In the meeting a unanimous resolution was passed as per WPC 32710/08 5 Ext.R3(b) requesting the Hon’ble Chief Justice of India to conduct a vigilance enquiry to find out the truth regarding the anonymous letter. It was also forwarded to the Registrar, High Court of Kerala, District Judge, Kottayam, Chief Judicial Magistrate, Kottayam and Judicial Magistrate of First Class, Vaikkom. Ext.R3(c) is the covering letter. It is also averred that to the knowledge of the deponent none of the members belonging to the Association had forwarded Ext.P2 to the Judicial Magistrate of First Class, Vaikom. Finally, it is averred that to their knowledge, the petitioner is a dedicated and dutiful person in relation to her work. 10. Therefore, the question is whether the order of transfer is justified or not and whether there are any administrative grounds to justify the order. Learned Senior Counsel for the petitioner vehemently contended that in the light of the above developments, the only conclusion possible is that the first respondent has acted hastily and illegally in accepting the allegations contained in Ext.P2 in its face value to order the petitioner to be transferred out. Learned Senior Counsel further contended that any subsequent inspection or a report made thereon will not improve the situation and will not justify the illegality attached to the order of transfer. It is also pointed out that if at all it is now sought to be justified, the petitioner is being harassed without even putting the allegations to her WPC 32710/08 6 notice and thus the order is vitiated. 11. In the counter affidavit filed by the additional 4th respondent, the details of the report submitted by the learned Chief Judicial Magistrate has been reiterated. Learned Senior Counsel appearing for respondents 1, 2 and 4 is right in submitting that what is contained in the affidavit is only a reproduction of the report and the additional 4th respondent who has filed the counter affidavit on behalf of respondents 1, 2 and 4, has not attempted anything more than that. It is therefore submitted that the argument of the learned Senior Counsel for the petitioner that in the absence of a counter affidavit filed by the first respondent, the writ petition has to be allowed, is not correct. Going by the counter affidavit filed on behalf of respondents 1, 2 and 4, the averments are only by way of giving details of the report forwarded by the first respondent. Therefore, it cannot be said that the affidavit is not in accordance with the rules and it cannot be accepted on its face value. The copy of the report has also been made available for perusal. 12. The averments in the counter affidavit and the facts stated in the report shows that the petitioner joined at Vaikom on 21.1.2008. She was practicing as an Advocate at Vaikom before her appointment as a Lower Division Clerk. While she was working as U.D. Clerk as per Office Order of the learned Magistrate on 6.5.2008, she was put in charge of Bench Clerk WPC 32710/08 7 until further orders. She was directed to maintain 'A' Diary, Court Fee Register, C.M.P. Register, prepare periodical statements and maintain posting book in her section. Another L.D. Clerk, one Anish Jose was also put in the Bench Section to assist the petitioner. It is stated that on 14.11.2008 the first respondent conducted a personal inspection of the office of the Court of the Judicial First Class Magistrate I, Vaikom. The inspection revealed the following: “i) From the date of taking charge as Bench Clerk, the petitioner stopped the posting of cases in the Posting Book. ii) There is no Posting Book in the Bench Section from 30.5.2008 onwards. iii) Verification of the Notice Board revealed that notices were not published by the petitioner regarding the cases to be called on the concerned dates. Office copies of the Notices are not available in the Section. iv) Under rule 72(2) of the Criminal Rules of Practice a Bench Clerk has to maintain a posting book. In the absence of posting book no bench clerk will be able to know how many cases are posted for a day and how many cases are to be published in the list for a particular day. The non-keeping of posting book itself clearly show that the allegation of not calling cases on a particular day can be true and many of the litigants will find it difficult to ascertain to which day the case was posted. The A Diary was prepared in a very haphazard manner so that nobody can clearly understand what is the WPC 32710/08 8 order passed by the court. On enquiry with the Magistrate and other staff, it is understood that there is no proper system available to ascertain how many cases are posted on a particular day by the Court and how it is published. According to the Magistrate the cases which are kept for a particular day in the almirah will be called in the Court. It is not clear how the work was being carried over by the Bench Clerk without the aid of a posting book in this court. It is clear that it will create many problems like the one alleged in the petition. The way in which A Diary was prepared can also lead to many difficulties to the litigant public. The Advocate or his Clerk cannot know what is the order passed on a particular day. The removal of notices published by this Bench Clerk within a few days also create doubt regarding the plea of innocence raised by the petitioner in this case.” In para 5 it is further stated that the copy of the complaint was forwarded by the first respondent to the Judicial First Class Magistrate, Vaikom for an early report. In the report received from the said Court, it was stated that the petitioner was not keeping Posting Book and has also not been maintaining a pending register of cases and that there are omissions in the 'A' Diary. There was a complaint by the office bearers of the Advocates' Clerks Association that the petitioner's behaviour towards them was unpleasant. Ext.R1(a) is produced to show that when she was working at Ettumanoor, pursuant to allegations against her, an office order was issued directing her not to give any room for complaint against her in future and WPC 32710/08 9 that she will strictly obey the direction of her superiors including the Junior Superintendent of that court. 13. It is maintained that the order of transfer is not a punitive one but it is only issued in the exigencies of service. Learned Senior Counsel for the petitioner submitted that the facts made mention of in the counter affidavit to the effect that the petitioner is not maintaining a Posting Book, etc. cannot be supported. It is submitted that going by Rule 72 of the Criminal Rules of Practice, there is no particular provision to maintain a Posting Book. Learned Senior Counsel appearing for respondents 1, 2 and 4 submitted that she was bound to maintain the registers as provided therein and as directed by the learned Magistrate. It is submitted that since she was functioning as a Bench Clerk, she was bound to follow a proper procedure in regard to the posting of cases. Rule 72 of the Criminal Rules of Practice provides that “every court shall maintain a diary in Administrative Form No.10. The entries shall be signed by the Presiding Officer on the day to which they relate.” Sub-rule (2) of Rule 72 provides that “every court shall maintain a hearing book in Administrative Form No.11.” The Form shows that the number of the proceedings have to be recorded in the left hand column and the date on which it is adjourned, has to be given in the right hand column. Going by the averments in the counter affidavit, it can be WPC 32710/08 10 seen that the learned Magistrate had directed the petitioner to maintain various registers, periodical statements and a Posting Book. It is revealed from the counter affidavit that there was no register in compliance with Rule 72(2) and 'A' Diary was prepared in a very haphazard manner. It is also stated that there was no proper system to ascertain as to how many cases are posted on a particular day and how it is published. It is also stated that the way in which 'A' Diary was prepared, can also lead to many difficulties to the litigant public. The Advocate or his clerk cannot know what is the order passed on a particular day. The notice board shows that notices were not published by the petitioner regarding the cases to be called on the concerned dates and office copies of the Notices are not available in the section. 14. At any rate, the above facts reveal a state of affairs which cannot be appreciated and cannot be taken as conducive for a proper functioning of the Court of the Judicial First Class Magistrate, Vaikom. The Bench Clerk is expected to function efficiently and without complaint from any quarters. All the proceedings in the court are bound to be maintained in a proper, correct and orderly manner. The absence of various registers, statements, etc. as pointed out by the report and restated in the counter affidavit reveals a sorry state of affairs. The same cannot be appreciated at all as it will WPC 32710/08 11 ultimately affect the functioning of the entire system in the court itself. Hence, by transferring the petitioner, what is involved is only toning up the administration, and to free it from any complaints. Hence, it cannot be said that the first respondent has not considered relevant aspects in exercising the power. The majesty of the system should prevail especially since public interest is involved. 15. Herein, I may advert to the principles relevant to consider whether there is any violation of legal right available to the petitioner or whether the transfer is punitive. This court while examining the scope of interference under Article 226 of the Constitution of India, with an order of transfer, held in Vasu v. High Court of Kerala (1989 (1) KLT 16) thus: “Transfer is an incidence of service and the employee has no legal right in this behalf. The word 'natural justice' is not capable of static or precise definition. It cannot be imprisoned in the strait-jacket of a cast iron formula. It only means “fairness” in action. It will vary with varying situations. It is common knowledge that in administration, the persons concerned will necessarily have to attend to a variety of matters. It will be unreal and impractical to expect a rigid adherence to a fixed formula in all situations. Exigencies of administration will require elasticity and free play in the joints. This is all, the more so, in matters relating to 'transfer'. Greater latitude will have to be allowed to the administration in such matters than in WPC 32710/08 12 other cases. “Policy decisions”, decisions on ground of “expediency” etc., in the overall interest of the administration cannot be excluded. Viewed in such background, the court may not, in all cases, be in a position to effectively evaluate and come to grips with particular problems or situations facing the administration and to arrive at a satisfactory solution. Except in cases where the power is exercised “mala fide” or otherwise “abused” or in similar grave cases, judicial wisdom will deter interference. And in the final analysis, in the light of imponderables, the court will be extremely circumspect and will act, with restraint and may not entertain hair- splitting or technical arguments to scan the decision, as in other 'administrative' Orders or decisions. And, so considered, in matters of transfer, natural justice, in the sense that the party must be heard or must have an opportunity to represent, need not be observed since the employee has no legal right to that behalf. The rules of natural justice applicable in other situations cannot be applied in the case of transfer.” Hence, the contention raised by the petitioner that the allegations raised against her were not put to her notice, cannot be sustained. In matters of transfer, the administration is entitled to take its own decision and it is not conditioned by a pre-decisional hearing. 16. The next question is whether the transfer is punitive. The test to determine whether the order of transfer can be said to be punitive or as a punishment, was laid down by this court in Dinamony v. Dt. Supdt. Of WPC 32710/08 13 Police, Kollam (1994 (1) KLT 326). After examining the question in detail, it was held thus: “To punish means to impose a penalty upon some person for a fault, offence, or violation. Ordinary meaning of the word punish is to cause the offender to suffer for the offence or to inflict penalty for the offence. The word “punishment” necessarily denotes or signifies some offence or wrong committed by the person who is punished. A action of the employer to the detriment of the employees' interest would not be punishment as long as the action is not motivated by a desire to punish him for the alleged fault or wrong. Mere act of causing inconvenience or suffering incidental to the transfer, by itself does not mean punishment. Punishment involves the idea that penalty is inflicted because of commission of a wrong. In ordinary parlance punishment means any kind of suffering. But when an employee is transferred because his presence is harmful to the smooth running of the organisation, the element of punishment is absent. The idea is to keep the organisation clear of internal obstruction. In every case of errant behaviour of a subordinate, the superior is not bound to hold a department enquiry and seek punishment. He is free to resort to other ways of running his department smoothly. Therefore, the infliction of inconvenience or suffering is not necessarily punitive.” Therefore, it cannot be said that merely because the employer has taken an action even though on the basis of certain allegations to transfer a person to WPC 32710/08 14 a different station, that cannot be termed as a punitive measure. At any rate, the employee concerned cannot have any legal right to enforce the guidelines also which is a settled principle. There is nothing to show that here the transfer was effected by way of punishment. No such desire or motive is clear from the records also. 17. Therefore, it cannot be said that the order of transfer is punitive in nature. It is clear that administrative exigency warranted the transfer of the petitioner. It cannot be said that the first respondent has acted illegally and in an arbitrary manner while passing the order. Even though Ext.P2 was only an anonymous petition, when such complaints are received, the authorities are bound to act. Pursuant to the inspection conducted into the matter, all these allegations were found to be substantially correct. There is nothing to show that the findings contained in the report are without any justification. 18. As already noticed, even though the Bar Association has passed a resolution disclaiming involvement of any member of it for the anonymous complaint, that cannot be a reason to quash Ext.P1 order itself. This court in exercise of the jurisdiction under Article 226 of the Constitution of India, can only see whether there is any abuse of powers or there are extraneous reasons in passing an order of transfer. It is well settled that transfer is an WPC 32710/08 15 incident of service and employee has no legal right in the matter. There are no allegations of malafides also. The action taken by the first respondent cannot therefore be found as faulty and vitiated. It cannot be termed as arbitrary also. In that view of the matter, the challenge against Ext.P1 fails. The writ petition is dismissed. (T.R. Ramachandran Nair, Judge.) kav/