IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 WP(C).No. 313 of 2010(L) ------------------------ PETITIONER(S): --------------- SALIN JOSEPH, PHYSICAL EDUCATION TEACHER, ST.JOSEPH'S HIGH SCHOOL, PERAVOOR, (S/O. JOSEPH, THATTIADU, VELLERVALLY POST, PERAVOOR, KANNUR DISTRICT. BY ADV. SMT.T.D.RAJALAKSHMI RESPONDENT(S): --------------- 1. THE CORPORATE MANAGER, THE CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THALASSERY, SANDESABHAVAN, THALASSERY - 670 101. 2. THE HEADMASTER, ST. JOSEPH'S HIGH SCHOOL, PERAVOOR. 3. THE DISTRICT EDUCATION OFFICER, OFFICE OF THE DIST. EDL. OFFICE, THALASSERY. 4. MR. JOSEPH.V.D, MARYGIRI HIGH SCHOOL, THERTHALLY. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 & R2 SRI.B.UNNIKRISHNA KAIMAL FOR R1 & R2 SRI.ANTONY MUKKATH, GP FOR R3 SRI.V.C.JAMES FOR R4 SRI.GEORGE MECHERIL FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.3.2011, THE COURT ON 18/08/2011 DELIVERED THE FOLLOWING: WP(C).No. 313 of 2010(L) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: PHOTO COPY OF THE NOTICE DT. 19-12-2009 ISSUED BY THE 1ST RESPONDENT. EXT.P2: PHOTO COPY OF THE EXPLANATION DT. 23.12.2009 SUBMITTED BY THE PETITIONER. EXT.P3: PHOTO COPY OF THE STATEMENT DT. 23-12-09 OF THE ASST. EDL. OFFICER, IRRITTY. EXT.P4: PHOTO COPY OF THE STATEMENT OF THE STUDENTS. EXT.P5: PHOTO COPY OF PROCEEDINGS NO.528/2009 DT. 31.12.2009 OF THE IST RESPONDENT. EXT.P6: PHOTO COPY OF THE REPRESENTATION FILED BEFORE THE THALASSERY ARCH BISHOP BY THE RESIDENCE OF THONDIYIL. EXT.P7: PHOTO COPY OF THE NOTICE OF RECEPTION ISSUED BY THE VYAPARI VYAVASAI EKOPANA SAMITHI, THONDIYIL UNIT. EXT.P8: PHOTOGRAPH SHOWING THE WINNERS OF SUB DIST. LEVEL SPORTS MEET 2009-10. EXT.P9: PHOTOGRAPH SHOWING THE STUDENTS WHO PARTICIPATED THE ATHLETIC MEET OF SUB DIST. LEVEL 2009-10. EXT.P10: PHOTOGRAPH OF BASKET BALL RUNNER - JUNIOR BOYS 2009-2010. EXT.P11: CERTIFICATE DT. 28.1.2010 ISSUED BY PRESIDENT, PERAVOOR BLOCK PANCHAYAT. EXT.P12: PHOTO COPY OF THE PETITION SENT BY KERALA VYAPARI VYAVASAI EKOPANA SAMITHI, THONDIYIL UNIT. RESPONDENTS' EXHIBITS: EXT.R1(a): TRUE COPY OF THE COMPLAINT DATED 7.12.2009 FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.R1(b): TRUE COPY OF THE COMPLAINT DATED 1.12.2009 FROM THE P.T.A. PRESIDENT OF ST.JOSEPHS H.S., PERAVOOR TO THE 1ST RESPONDENT. EXT.R1(c): TRUE COPY OF THE REPORT OF SECRETARY OF THE HEADMASTERS FORUM. WP(C).No. 313 of 2010(L) EXT.R1(d): TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PARENTS AND LOCAL PEOPLES OF ST.JOSEPHS HIGH SCHOOL, PERAVOOR TO THE 1ST RESPONDENT. EXT.R1(e): TRUE COPY OF THE REPORT DATED 17.12.2009 SUBMITTED BY THE LOCAL MANAGER, ST.JOSEPHS HS PERAVOOR TO 1ST RESPONDENT. EXT.R1(f): TRUE COPY OF THE PROCEEDINGS NO.528/2009-A DATED 31.12.2009 ISSUED BY THE 1ST RESPONDENT. EXT.R1(g): TRUE COPY OF THE JOINING REPORT DATED 1.1.2010 OF THE 4TH RESPONDENT. EXT.R1(h): TRUE COPY OF THE RELIEVING ORDER DATED 1.1.2010 OF THE PETITIONER. EXT.R1(i): TRUE COPY OF THE PETITION DATED 30-12-2009 SUBMITTED BY THE SECRETARY OF THE HEADMASTERS FORUM, IRITTY, TO THE A.E.O IRITTY, TOGETHER WITH THE ENDORSEMENT NO.B/103/2010 DATED 2.1.2010 OF THE A.E.O IRITTY. EXT.R1(J): TRUE COPY OF THE ORDER DATED 11.1.2010 ISSUED BY THE 1ST RESPONDENT. // TRUE COPY // TKS P.S. TO JUDGE C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.313 of 2010 ---------------------------- Dated 18th August, 2011 JUDGMENT The challenge in this writ petition is directed against Ext.P5 order of the first respondent. While working as Physical Education Teacher in St.Joseph's High School, Peravoor in the Thalasery Educational District the petitioner was transferred to Marygiri High School, Therthally in Kannur Educational District and from there the 4th respondent was transferred and posted in his place, as per Ext.P5. 2. Manifold contentions have been raised by the petitioner to assail Ext.P5. According to the petitioner, an incident that occurred during the preparation of a recent athletic meet led to his transfer as per Ext.P5. Curiously, the petitioner has not given details such as the date, month or year of the alleged incident in the writ petition. Nonetheless, his case is as follows:- During the preparation of a recent athletic meet the petitioner was helped by two boys viz., Mansur and Abhilash who were in the athletic group. While the said students were on their way to the staff room to get clarification the 2nd respondent met them and enquired why they were loitering outside the class room and thereafter, gave each of them two thrashings. On revealing that they were sent by the WP(C).No.313/2010 2 petitioner they were given two more beatings. Since the thrashing resulted in bleeding they protested against it. Later, without assigning any good reason they were dismissed from the school. Subsequently, the petitioner was given Ext.P1 notice alleging that he had not heeded the direction of the 2nd respondent and he had also behaved improperly towards the Assistant Educational Officer and teachers besides failing in coaching the students regularly. The further allegation is that he had instigated the students to conduct strike. The petitioner refuted all the allegations vide Ext.P2 reply. It is his contention that when he enquired with the Assistant Educational Officer whether he had behaved improperly as alleged the Assistant Educational Officer gave Ext.P3 statement. It is further contended that the above named students viz., Mansur and Abhilash gave Ext.P4 statement to the petitioner. Exts.P2 and P3 would reveal his innocence and despite the submission of reply with such evidence, the impugned order Ext.P5 was passed, it is contended. 3. A counter affidavit has been filed in this writ petition by the first respondent. In the counter affidavit it has been specifically contended that the recent athletic meet was held in November- December, 2009. The contention of the petitioner that he was helped by two boys by name, Mansur and Abhilash for its preparation is not true to WP(C).No.313/2010 3 facts as the said students had left the school after getting transfer certificates at the end of the academic year 2008-2009 itself, it is further stated therein. The present incumbent in the post of Corporate Manager has specifically stated in the counter affidavit that even much prior to his assumption of charge as Corporate Manager the said students left the school. Paragraph 3 of the writ petition assumes relevance in the context of the said contentions. It is stated therein:- “It is further submits that the petitioner called the students and asked to go before the 1st respondent and express their regret, but that was not recognised.” In short, according to the first respondent, the contention of the petitioner that it is the incident as alleged by the petitioner that ultimately culminated in his transfer is absolute bereft of any basis. The aforesaid contentions were not refuted by the petitioner by producing any material or evidence to the contrary. As already noticed hereinbefore, the statement with respect to the alleged incident in this writ petition is too vague. The petitioner had only stated that such an incident had occurred during the preparation of a recent athletic meet. According to the first respondent, the recent athletic meet of the Educational Sub-District, Thalassery was held in November-December, 2009. At that point of time the aforesaid students were not in the school. In view of the said factual position obtained in this case it is WP(C).No.313/2010 4 absolutely unsafe to rely on such a vague version of the petitioner regarding the said incident to presume malafides in the action on the part of the first respondent in issuing Ext.P5. That part, a scanning of the contentions raised by the petitioner would reveal that no firm factual foundation has been made to attribute malafides as also to contend that the order of transfer is effected as a punishment, in this writ petition. In paragraph 4 of the writ petition it is stated as follows:- “This transfer is an express order of Vengeance and malafide in nature.” In ground `A' what is stated is as follows:- “The order Ext.P5 passed by the 1st respondent is opposed to law, facts of the case, illegal, arbitrary and malafide in nature and is liable to be quashed.” I am of the view that such averments are insufficient to assail an order of transfer on the ground that it is tainted with malafides or to say that it is punitive in nature. In view of the incongruity and ambiguity with respect to the description of the alleged incident and also on account of its vagueness I am of the view that the contentions raised by the petitioner to assail Ext.P5 raising such allegations cannot be gone into in this writ petition. For the reasons already explained the statement alleged to have been given by the students whose names have been mentioned in paragraph 2 of the writ petition also cannot be taken on its face value. Ext.P3 is a statement alleged to have been given by the WP(C).No.313/2010 5 Assistant Educational Officer, Iritty. It did not contain the seal of the office. In the absence of satisfactory explanation regarding the circumstances and purpose for which it was given, if at all was given by the Assistant Educational Officer, Iritty, it cannot be given any weight in this proceedings. At any rate, a document like Ext.P3 cannot be acted upon by this Court. In short, the challenge against Ext.P5 relying on Exts.P3 and P4 cannot be considered by this Court as a fact finding enquiry cannot be undertaken in a proceedings under Article 226 of the Constitution of India. The said conclusion persuades me to consider whether Ext.P5 invites interference on any other ground. As already noticed hereinbefore, the averments made by the petitioner in this writ petition are insufficient to assail an order of transfer on the ground that it is tainted with malafides or to say that it is punitive in nature. At the same time, the petitioner is also not disputing the fact that the first respondent is the competent transferring authority. 4. The first respondent issued Ext.P5 transfer order invoking the power under clause (4) of Rule 10 of Chapter XIV A of the Kerala Education Rules (for short `KER'). Ext.R1(f) dated 31.12.2009 would reveal that certain complaints were received against the petitioner and thereafter a memo of charges was issued to him. Taking into account such circumstances, as per Ext.R1(f), he was let off with a warning. WP(C).No.313/2010 6 Merely because such an instance preceded the issuance of Ext.P5 order cannot be a reason to interfere with Ext.P5. It would not reveal any desire on the part of the transferring authority to impose a punishment on the petitioner. 5. Certain other grounds have also been raised by the petitioner for assailing Ext.P5. Usually, orders of transfer invoking powers under Rules 10 and 11 of Chapter XIV A of the KER would normally be effected only at the beginning of the school year or at the fag end of the school year and that apart, normally such transfers would be effected only in such a manner to facilitate the husband and wife to serve at the same station, to the extent it is possible, it is contended. The wife of the petitioner is a teacher working in St.Joseph's Upper Primary School, Peravoor and that the petitioner was working in its high school section. However, such reasons are insufficient to invite interference with Ext.P5. If for the smooth functioning of a school the Manager of the school effected transfer of an employee from that school to another school belonging to the same management, it did not call for interference unless and until legally sustainable reasons are pleaded and established. Evidently, in this case, no reasons whatsoever, calling for interference with Ext.P5 have been established by the petitioner. As already noticed hereinbefore, no firm factual foundation has been made WP(C).No.313/2010 7 to attribute malafides as also to contend that the order of transfer is effected as a punishment, in this writ petition. In such circumstances, I do not find any reason to interfere with Ext.P5. The learned senior counsel appearing for the first respondent submitted that in case the petitioner prefers an appropriate representation before the first respondent seeking for a suitable posting to any other nearby schools under the same management, it would be considered. In view of the said submission, it will be open to the petitioner to make appropriate representation before the first respondent seeking such a prayer. Subject to the said observation, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS