IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 2101 of 2008(A) ------------------------------------ PETITIONER: ----------------- CAPT. HARIDAS C.NAIR, PORT OFFICER, KOZHIKODE,(UNDER ORDERS OF TRANSFER) RESIDING AT "NIDHI", CHEMBAKA HOUSING COLONY, CHALAPURAM, CALICUT-673002. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENTS: ---------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FISHERIES AND PORTS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PORTS, 5TH FLOOR, NEW CORPORATION BUILDING, LMS JUNCTION, THIRUVANANTHAPURAM. 3. CAPT. HARI ACHUTHA VARRIER, WORKING PRESENTLY AS PORT OFFICER, KOZHIKODE, PORT AND SHIPPING OFFICE, BEYPORE, KOZHIKODE. BY GOVERNMENT PLEADER SRI. P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 2101/2008 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE ORDER NO. GO RT NO. 292/2006/F&PD DT. 21/06/06 BY THE R1. EXT.P2. COPY OF THE ORDER GO RT NO. 11/2008/F&PD DT. 3/1/2008 BY THE R1. EXT.P3. COPY OF THE GO RT NO. 24/2008/F & PD DT. 8/1/2008 BY THE R1. EXT.P4. COPY OF THE REPORT OF TRANSFER OF CHARGE DT. 09/01/2008 OF THE PORT OFFICER, KOZHIKODE. EXT.P5. COPY OF THE ORDER DT. 19/12/07 BY THE R2. EXT.P6. COPY OF THE REPORT OF COMPLAINTS COMMITTEE DT. 13/11/2006. EXT.P7. COPY OF THE COMPLAINT DT. 29/07/2006 MADE AGAINST THE PETITIONER BEFORE THE R2. EXT.P8. COPY OF THE LETTER DT. 3/2/07 SENT TO THE R2 BY THE COMPLAINANT IN EXT.P6 WITHDRAWING EXT.P6 COMPLAINT AGAINST THE PETITIONER. EXT.P9. COPY OF THE LETTER DT. 4/12/2006 SENT BY THE PETITIONER TO THE R2. EXT.P10. COPY OF THE REQUEST DT. 23/1/07 MADE BY THE PETITIONER BEFORE THE R2 UNDER THE RIGHT TO INFORMATION ACT. EXT.P11. COPY OF THE ORDER DT. 11/1/08 BY THE R1 TO THE PETITIONER. EXT.P12. COPY OF THE GOVT. ORDER DT. 5/08/2003 DEPUTING THE PETITIONER FOR UNDERGOING TRAINING IN PILOTAGE. EXT.P12. COPY OF THE ORDER NO. B2/555/2008 DT. 7/2/2008 BY THE DIRECTOR OF PORTS. (EXHIBIT IN I.A NO. 3579/2008) RESPONDENT'S EXHIBITS NIL. True copy tga V.GIRI, J. ------------------------- W.P.(C).No.2101 of 2008 ------------------------- Dated this the 2nd day of April, 2008. JUDGMENT The petitioner, who is a Port Officer in the Department of Ports, challenges Ext.P2 order of transfer dated 3.1.2008 by which he has been transferred from Kozhikode and posted as Port Officer at Kollam. Ext.P2 reads as follows: “Sri.Haridas C.Nair, Port Officer, Kozhikode is transferred and posted as Port Officer, Kollam with immediate effect in the existing vacancy of Port Officer, Kollam.” 2. It is contended that the 3rd respondent was posted as Port Officer, Kollam as on 3.1.2006. Therefore, there was no vacancy in the post of Port Officer as on the date of Ext.P2. It is submitted that a reference to Ext.P3 will show that the 3rd respondent was on leave on the date of Ext.P2 and had reported for duty on 7.1.2008 by cancelling the unavailed portion of the earned leave. 3. The petitioner has alleged that Ext.P2 order of transfer is vitiated by mala fides. According to him, he W.P.(C).NO.2101/08 :: 2 :: was transferred for oblique reasons. He contends that the attempt apparently was to remove him from Kozhikode and then to post the 3rd respondent in his place. It is contended by him that one of the reasons for removing the petitioner from Kozhikode was that he was instrumental in introducing trainee pilots for pilotage at the Beypore Port, Kozhikode. This was earlier done as a monopoly by a former employee of the Department, who continued to do pilotage duty even after retirement from service in 2002. The petitioner, apparently, trained departmental staff for pilotage work and this resulted in a reduction of the pilotage charges being paid to outsiders. He contends that this caused inconvenience to persons from outside and officials in the Port office itself. It ultimately resulted in the transfer of the petitioner as per Ext.P2. Specific reference is made to the fact that there was no existing vacancy as on the date of Ext.P2. In fact, the 3rd respondent was actually in occupation of the post at Kollam, but was only on leave. There was no vacancy on the date of Ext.P2. Consequently, this is an W.P.(C).NO.2101/08 :: 3 :: indication that the order of transfer is vitiated by mala fides. 4. A statement was filed by the respondents and this writ petition was heard on 14.2.2008. Going by the nature of the pleadings, I thought it appropriate that an affidavit by the competent authority be placed on record. Accordingly a direction was issued. Thereafter, the Under Secretary to Government has filed a counter affidavit on behalf of the 1st respondent. The petitioner has filed a reply affidavit also. The Government produced a file titled “as one relating to the transfer of the petitioner” and I have gone through the same. 5. I heard Sri.Mohammed Nias, learned counsel for the petitioner and learned Senior Government Pleader Sri.Nandakumar. 6. If Ext.P2 is taken as a pure and simple transfer on administrative exigencies, it warrants no interference. It will have to be treated as one passed on administrative reasons which the Government is competent to take into account in effecting a transfer. W.P.(C).NO.2101/08 :: 4 :: But the petitioner has challenged the order of transfer, inter alia, on the ground that it is vitiated by mala fides. 7. A detailed counter affidavit has been filed by the first respondent. Apart from justifying the order of transfer on grounds of administrative exigencies, it is stated by the first respondent that there were allegations of sexual harassment against the petitioner. This had been enquired into at more than one level and then ultimately, in the fitness of things, it was deemed better that the petitioner be shifted. It is in this context that I called for the files and have perused the same. The file comprises of three segments; dealing with the same allegations, at three different levels. The first report is by an Administrative Officer attached to the Port Office and though not categorically, the report suggests that there is some substance in the allegation by one Molly, Upper Division Clerk attached to the office of the Port Office at Kozhikode. A further enquiry was conducted by a committee constituted for the purpose of enquiring into the allegations of sexual harassment. This resulted in W.P.(C).NO.2101/08 :: 5 :: Ext.P6 which not only exonerates the petitioner, but suggests a further enquiry into the very events which apparently triggered an enquiry against the petitioner. 8. The matters did not end with Ext.P6. Subsequent to Ext.P6, it seems that there was an attempt by some trade unions to effect an amicable settlement of the issue. By Ext.P7 letter Smt.Molly withdrew the complaint against the petitioner. A further enquiry came to be conducted by the Additional Secretary to Government, Ports Department. A copy of the said report is also made available in the files. It seems that one of the aspects, which was enquired into related to the reasons which persuaded Smt.Molly addressing Ext.P8 letter. I have gone through the said report and the Annexures thereto. 9. Though there is no conclusive finding as to the correctness of the allegations, there are certain recommendations made by the Additional Secretary to Government. Such recommendations are seen to have been made on 20.6.2007. It is not known whether there W.P.(C).NO.2101/08 :: 6 :: has been any follow up action on such recommendations. But there ends the enquiry into the allegations levelled against the petitioner. 10. I find it difficult to consider Ext.P2 order as stigmatic for more than one reason. Firstly, the order does not seem to say so and secondly the order of transfer Ext.P2 is dated 3.1.2008. Though in the final report, the Additional Secretary to Government, had made certain recommendations and one of them was to transfer both the individuals viz., the petitioner and Smt.Molly, it would be difficult to treat Ext.P2 as a direct consequence of the report given by the Additional Secretary to Government, which is as early as 20.6.2007. Moreover, by a reading of the files in its entirety, I am of the view that it may not be completely fair and reasonable to arrive at a conclusion as to the veracity of the complaint levelled against the petitioner or the acceptability of the stand taken by the complainant as such. The allegations of sexual harassment have the potential of considerable consequence for the person W.P.(C).NO.2101/08 :: 7 :: against whom such allegations are made. No doubt, they require serious attention. Going by the inconsistency in the findings and recommendations made at three different levels made at three different stages, I do not think that the order of transfer, as such, should be linked to the allegations levelled against the petitioner. It was the subject matter of three enquiries including the enquiry leading to Ext.P6 as such. There is no conclusive finding against the petitioner, nevertheless. 11. In the result, I am of the view that Ext.P2 need only be considered as an order of transfer based on administrative exigencies. It need not be treated as one resultant upon any action that the Government has decided to take against the petitioner in the matter of the enquiry conducted against him on allegations of sexual harassment raised by a staff in the office of the Port Officer. It is so declared. 12. Once it is held that Ext.P2 order is one based on administrative exigencies as such, the further question is whether there are grounds to interfere with W.P.(C).NO.2101/08 :: 8 :: the said order. Learned Senior Government Pleader Mr.Nandakumar submits that the petitioner has been in Kozhikode for 4 years and 11 months and therefore, undue hardship cannot be pleaded by him in relation to the transfer as such. Learned counsel for the petitioner points out that the petitioner's tenure at Kozhikode which ended in Ext.P2 commenced only as per Ext.P1 and therefore, the total period during which the petitioner had been stationed at Kozhikode cannot be taken as 4 years as such. It may be correct. But nevertheless, I am not able to discern any extraordinary grounds under which I should interfere with the order of transfer, Ext.P2. I reiterate that I am constrained to consider Ext.P2 as one based on administrative exigencies and not one vitiated by mala fides. 13. Mr.Nias further contends that the statement in Ext.P2 to the effect that the petitioner is transferred and posted as Preventive Officer in the existing vacancy at Kollam is not correct and this mistake seems to have been repeated in Ext.P6, though in relation to the 3rd W.P.(C).NO.2101/08 :: 9 :: respondent. This submission is factually correct. But, treating Ext.P2 as an order of transfer simplicitor, all that was required was to effect the transfer of a Port Officer from Kozhikode to Kollam and vice versa. In such circumstances, the factual mistake in Ext.P2 does not, by itself, make it otherwise an order to be interfered with by this court. I hold that Ext.P2 was passed on administrative exigencies and in such circumstances, it does not warrant interference at the hands of this court under Article 226 of the Constitution of India. The writ petition is disposed of subject to the above observations. I Sd/- (V.GIRI) JUDGE sk/ //true copy//