Kerala High Court
B. Vijayan Pillai vs The Managing Director on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 4442 OF 2024
PETITIONER/S:
B. VIJAYAN PILLAI
AGED 52 YEARS, S/O BALAN PILLAI, R/O MEENETHEL,
PUTHIYAVILA NORTH, PUTHIYAVILA, ALAPPUZHA., PIN - 690531
BY ADVS. NAVANEETH.N.NATH GAUTHAM KRISHNA E.J. MAHESH
CHANDRAN MEGHA BIJU
RESPONDENT/S:
1 THE MANAGING DIRECTOR, KSRTC, TRANSPORT BHAVAN, FORT,
TRIVANDRUM- 695023., PIN - 695023
2 THE EXECUTIVE DIRECTOR, (ADMINISTRATION) KSRTC,
TRANSPORT BHAVAN, FORT, TRIVANDRUM- 695023., PIN -
695023
3 INVESTIGATING OFFICER, OFFICE OF THE DISTRICT OFFICER,
KERALA STATE ROAD TRANSPORT CORPORATION,
PATHANAMTHITTA- 689645, PIN - 689645
4 EXECUTIVE DIRECTOR, (VIGILANCE) KSRTC, PMG, VIKAS BHAVAN
P.O, OPPOSITE KSRTC DEPOT, THIRUVANANTHAPURAM, KERALA-
695033, PIN - 695033
5 V.D. MANOJ, AGED 52 YEARS, VELIKKAKATHA HOUSE,
CHANDIROOR, ALAPPUZHA., PIN - 688537
BY ADV DEEPU THANKAN
OTHER PRESENT:
SC SRI. DEEPU THANKAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 4442/2024
-2-
JUDGMENT
(Dated this the 12th day of April 2024) The petitioner, while working as a conductor in KSRTC, was issued with Ext.P2 suspension order, based on Ext.P1 complaint. Thereafter, enquiry proceedings were initiated, and Ext.P9 enquiry report was submitted on 10.01.2024 by the Enquiry Officer. Pursuant to which, Ext.P8 order was passed, reinducting the petitioner back to service, cancelling the suspension with liberty to proceed with the enquiry proceedings, and transferring him to Irinjalakkurda Depot.
2. The petitioner challenges Exts.P8 and P9 before this Court. Meanwhile, the complainant in Ext.P1 had submitted a letter to the 1st respondent, stating that he did not wish to proceed with the complaint.
3. A counter-affidavit is filed on behalf of respondents WPC 4442/2024 -3- 1 to 4, wherein the averments raised in the writ petition are countered, and it is stated that Ext.P8 was issued on administrative exigencies after cancelling the suspension of the petitioner and reinducting him back in service. It cannot be said that based on a punishment, he has been transferred.
4. At the time of admission, an order was passed by this Court on 06.02.2024, wherein it was ordered that "if the petitioner was not relieved as per Ext.P8 till today, he can be allowed to continue in the Haripad Depot for three weeks".
5. In view of the fact that, as per Ext.P8, the petitioner's suspension was cancelled and he was reinducted into service, the petitioner could not join the Haripad Depot and did not join the Irinjalakkurda Depot either. So the petitioner is actually out of service, from the date of Ext.P8 till today.
WPC 4442/2024-4-
6. To the pointed question as to whether Ext.P9 is accepted or not, the Standing Counsel replied that the respondent has not taken any decision whether to accept Ext.P9 or not, and the said proceedings are before the Board. Unless and until, Ext.P9 report is accepted, the petitioner cannot have a reason to challenge Ext.P9 at this point of time. It is seen from Ext.P8 that the transfer is after reinducting the petitioner into service to Irinjalakkuda on administrative grounds.
7. The counsel for the petitioner relies on the judgment of the Apex Court in Somesh Tiwari v. Union of India [(2009) 2 SCC 592] and points out that if there is malice, or malice in law, the transfer, even though it is stated as on administrative grounds, it will be wholly unjustifiable as the transfer is in view of the punishment. He also relied on WPC 4442/2024 -5- the judgment of this Court in W.P.(C) No.26925/2021, in which another employee of the same Corporation who was transferred based on a complaint, challenged the same before this Court, and this Court, by judgment dated 16.12.2021 quashed the transfer order. But on appeal in W.A No.243/2022, a Division Bench of this Court did not interfere with the transfer order, but on a concession made by the Corporation that he would be accommodated in a place nearer to the place from which he was transferred, the Writ Appeal was closed.
8. On going through Ext.P8, I do not find that it is based on any malafides to transfer the petitioner to Irinjalakkuda Depot. The said order was passed, giving him reinduction back to service with a transfer. So the petitioner ought to have joined the Depot in which he has been WPC 4442/2024 -6- transferred, and seek a transfer request if he is not satisfied in continuing in the Irinjalakkuda Depot.
9. The counsel for the petitioner submits that the period from the date of Ext.P8 till date will be treated as unauthorised absence by the respondents, since, he could not join either the Haripad Depot or the Irinjalakkuda Depot.
10. Therefore, taking into consideration the facts and circumstances of the case, I deem it appropriate to direct the 1st respondent to not treat the period as unauthorised absence and not to initiate any coercive or disciplinary proceedings against him for that reason, and if the petitioner is having any eligible leave to his credit, the same shall be granted to him as eligible leave for the period of absence. As far as Ext.P9 is concerned, it is premature, and the petitioner is at liberty to challenge the proceedings or orders issued after the WPC 4442/2024 -7- respondent takes a decision on Ext.P9 enquiry report. The petitioner is also at liberty to move the 1 st respondent with a proper representation to get a posting near to the place of his residence, and if such representation is filed, the respondent shall consider the same, in accordance with law, taking into consideration the situation that the petitioner is an unmarried man, with an aged mother.
With these observations, the writ petition is disposed of.
Sd/-
BASANT BALAJI JUDGE JS WPC 4442/2024 -8- APPENDIX OF WP(C) 4442/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE COMPLAINT DATED 22.09.2023 SUBMITTED BY THE RESPONDENT NO. 5 BEFORE THE RESPONDENT NO. 2 Exhibit P2 THE TRUE COPY OF THE SUSPENSION ORDER BEARING NO. A & V3-044890/2023 DATED 13.11.2023 ISSUED BY THE RESPONDENT NO. 1 TO THE PETITIONER Exhibit P3 THE TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.
N & V3/044890/2023 DATED 17.11. 2023 ISSUED BY THE RESPONDENT NO.2 TO THE PETITIONER Exhibit P4 THE TRUE COPY OF THE REPLY OF THE PETITIONER DATED 27.11.2023 ISSUED TO THE RESPONDENT NO. 2 Exhibit P5 THE TRUE COPY OF THE STATEMENT OF THE BUS DRIVER BEFORE THE RESPONDENT NO. 2 Exhibit P6 THE TRUE COPY OF THE WITHDRAWAL OF COMPLAINT LETTER DATED 12.12.2023 INITIATED BY THE RESPONDENT NO. 5 Exhibit P7 THE TRUE COPY OF THE REPRESENTATION LETTER DATED 09.01.2024 ISSUED BY THE PETITIONER TO THE RESPONDENT NO. 1 Exhibit P8 THE TRUE COPY OF THE MEMORANDUM BEARING NO.
A&VA5/000362/2024, DATED 18.01.2024 ISSUED BY THE RESPONDENT NO. 2 Exhibit P9 A TRUE COPY OF THE REPORT BEARING NO. A4/PH-
1/298/23/DO PTA DATED 10.1.2024 ISSUED BY THE RESPONDENT NO. 3 Exhibit P10 THE TRUE COPY OF THE RELEVANT PORTION OF THE GOVERNMENT ORDER BEARING NO. G.O.(P) NO. 12/04/P & ARD DATED 10.09.2004 Exhibit P11 EXHIBIT P11 IS STATEMENT OF THE PETITIONER AND OTHER WITNESSES DATED 17.11.2023 Exhibit P12 AND EXHIBIT P12 IS THE INVESTIGATING REPORT BEARING NO. A4/PH-1/298/23/DO PTA DATED 10.01.2024 WPC 4442/2024 -9- RESPONDENT EXHIBITS EXHIBIT R1- A true copy of the translation of the relevant pages of the (A) guidelines for transfer EXHIBIT R1-(b) A true copy of the judgment of this Hon'ble Court in WPC NO.
21307/2023 dated 11/07/2023 EXHIBIT R1-(c) A true copy of the relieving order dated 19/01/2024