Vimal V vs State Of Kerala
2021 Latest Caselaw 3706 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                &

             THE HONOURABLE MR. JUSTICE T.R.RAVI

 TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                    OP(KAT).No.33 OF 2021

AGAINST THE ORDER IN OA (EKM) 1719/2020 DATED 22-01-2021 OF
 KERALA ADMINISTRATIVE TRIBUNAL,ADDITIONAL BENCH ERNAKULAM


PETITIONER/APPLICANT IN OA:

            VIMAL V
            AGED 34 YEARS
            SON OF VELAYUDHAN,
            FIRE RESCUE OFFICER (DRIVER),
            FIRE AND RESCUE STATION, AALATHUR,
            PALAKKAD-678 541, RESIDING AT MANGATTITHODI
            HOUSE, VARODE P.O.KOTTAYI, PALAKKAD-678 572.

            BY ADVS.
            DR.K.P.PRADEEP
            SHRI.HAREESH M.R.

RESPONDENTS/RESPONDENT IN OA:

     1      STATE OF KERALA
            REPRESENTED BY ITS CHIEF SECRETARY,
            GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

     2      ADDITIONAL CHIEF SECRETARY,
            HOME DEPARTMENT, GOVERNMENT SECRETARIATE,
            THIRUVANANTHAPURAM-695 001.

     3      DIRECTOR GENERAL,
            DEPARTMENT OF FIRE AND RESCUE SERVICES,
            KERALA FIRE AND RESCUE SERVICES, HEAD QUARTERS,
            FIRE FORCE JUNCTION,
            PULIMOODU P.O.
            THIRUVANANTHAPURAM-695 033.
 O.P(KAT) No.33/2021

                                2


        4       REGIONAL FIRE OFFICER,
                KANNUR, KERALA FIRE AND RESCUE SERVICES,
                HEADQUARTERS HOSPITAL P.O.KANNUR-6700017




                BY ADVS.
                SRI.ANTONY MUKKATH, SR.GP

     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME
UP FOR ADMISSION ON 02.02.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 O.P(KAT) No.33/2021

                                   3




            ALEXANDER THOMAS & T.R.RAVI, JJ.
                 ------------------------------------
                    O.P (KAT) No. 33 of 2021
              (Arising out of the order dated 22-01-2021
        in OA(Ekm) No.1719 of 2020 of KAT, Addl. Bench Ekm.)
                    ------------------------------------
                Dated this the 2nd day of February, 2021

                            JUDGMENT

ALEXANDER THOMAS, J.

The Original Applicant in Ext.P1 Original Application O.A

(Ekm) No.1719/2020 filed before the Administrative Tribunal,

Ernakulam, is before us in this proceedings so as to impugn the

interlocutory order at Ext.P4 rendered by the Tribunal on

22-01-2021, whereby the interim relief sought for by the original

applicant for stay of the impugned Anx.A3 transfer order dated

12-11-2020 has been refused.

2. Heard Dr.K.P.Pradeep, learned counsel appearing for the

petitioner in the O.P/sole applicant in the O.A before the Tribunal

and Sri.Antony Mukkath, learned Senior Government Pleader

appearing for the respondents in O.P/respondents in O.A. The

original applicant has been holding the post of Fire and Rescue O.P(KAT) No.33/2021

Officer (Driver) in the Fire and Rescue Services Department of the

State Government. The applicant has been working in the Station

at Alathur in Palakkad District. The applicant has been confronted

with the impugned Anx.A3 order dated 12-11-2020 issued by the

3rd respondent Director General of the Fire and Rescue Services

Department, whereby he has been ordered to be transferred from

the present station at Alathur in Palakkad District to the far away

place at Peringome in Kannur District and according to the

applicant, the distance between these two stations is more than

320 Kms. The ground of the transfer made out in Anx.A3 is that,

the petitioner has been implicated as the sole accused in Anx.R3(a)

FIR in Crime No.57/2020 of Kottayi Police Station for offences

punishable under Secs.341, 323, 294(b) of the IPC. According to

the applicant, the allegation raised against him in Anx.R3(a) FIR

and FIS are false and motivated and that as a matter of fact, the

defacto complainant in Anx.R3(a) FIR, who is a member of the

local Grama Panchayath concerned and who is an activist of the

ruling party and that the applicant's father had contested against

the said complainant and out of political differences, the O.P(KAT) No.33/2021

complainant had animosity against the applicant's father and

consequently against the applicant as well.

3. According to the applicant, the said complainant had

created some problems on the day in question and that the

complainant had tried to assault the applicant, upon which the

applicant's mother had tried to protect him and that the

complainant had then manhandled the applicant's mother and

though she had filed a petition in the police, the same was not

acted upon by the police authority on account of the political clout

of the complainant. On the other hand, the complaint given by the

said complainant was immediately acted upon by the police

authorities with all expedition and which led to the registration of

Annexure.R3(a) FIR in Crime No.57/2020 of Kottayi Police Station

for the abovesaid offences. Further that even going by the admitted

allegations in Anx.R3(a), the offence as per Section 294(b) will not

lie as going by the dictum well settled in that regard by series of

rulings of this Court as in Latheef v. State of Kerala [2014 (2)

KLT 987], P.T.Chacko v. Nainan Chacko [1967 KLT 799]

Sangeetha Lakshmana v. State of Kerala [2008 (2) KLT O.P(KAT) No.33/2021

745]. Further that the other offences are only Sec.341 relating to

wrongful restrain and Section 323 is only simple hurt which is a

non cognizable offence etc, and that flimsy allegations are raised

against the petitioner only to destroy his career etc.

4. Per contra, Sri. Antony Mukkath, learned Senior

Government Pleader appearing for the respondents would submit

that, the original applicant was previously included as a history

sheeter and he has been involved in at least 4 criminal cases, some

of which has been resulted in compounding out of settlement and

in one case he has been acquitted etc, and that on account of the

errant behaviour of the applicant he has already been imposed

with penalties by the department as per Anx.R3(b) & R3(c), which

has resulted in penalty of censure etc. That it is only on account of

the nature of the allegations raised in Anx.R3(a) that the

department authorities were constrained to transfer the petitioner

as per the impugned Anx.A3 order. The Tribunal has now refused

the pray for interim stay as per the impugned Ext.P4 order dated

22-01-2021.

5. Dr.K.P.Pradeep, learned counsel appearing for the original O.P(KAT) No.33/2021

applicant would submit that, during the course of the hearing of

the application, the Tribunal after consideration of all relevant

aspects of the matter had suggested to the respondents therein that

the extreme step of the transferring of the petitioner to all the way

from Alathur in Palakkad District to far away place at Peringome in

Kannur District may be reconsidered and that the applicant may be

transferred to some other stations, which is not far away from his

residence etc,. That in defer to the said views expressed by the

Tribunal, the respondents therein had furnished instructions that

vacancies are available in Thrissur as well as in Perinthalmmanna

at Malappuram District to accommodate the petitioner. Further

that due to reasons which are totally unknown to the applicant the

respondents have taken a very rigid and stiff stand that they are

not prepared to even reconsider the transfer of the petitioner to

place other than Peringome.

6. The learned counsel for the applicant would also point

out that the other criminal cases are all for petty offences,

which has been either compounded, settled or even acquitted

and the disciplinary proceedings have only resulted in O.P(KAT) No.33/2021

the minor penal measure of censure as can be seen from

Anxs.R3(b) & R3(c) etc.

7. After hearing both sides, We are of the considered view

that, there is no necessity for us to interdict in the interlocutory

order passed by the Tribunal as per Ext.P4. The impugned order

was rendered only in the interlocutory stay application and it is for

the Tribunal to take a decision on the main prayers in the main

matter in the O.A. While doing so, the Tribunal may also consider

the alternate plea of the original applicant that he may be

accommodated at least in the vacancies which are available in

Palakkad District or to other nearby places in the nearby districts

like Thrissur, Malappuram etc. It is pointed out, as of now about

20 vacancies are available in Palakkad district to accommodate the

applicant and that vacancies are also available in Thrissur as well

as in Perinthalmanna at Malappuram District. The learned Senior

Government Pleader will ensure that meticulous and detailed

factual instructions are immediately furnished by respondent No.3

about the existence of vacancies in Palakkad District and other

nearby districts like Malappuram & Thrissur and the Tribunal shall O.P(KAT) No.33/2021

be apprised about the actual availability of vacancies to

accommodate the incumbent like the applicant. The Tribunal may

consider various aspects of the matter and may render final order

in the main matter in the O.A and while considering the main

prayers in the O.A, the present alternate pleas made by the

applicant may also be duly taken into account by the Tribunal and

it may be considered that in the event of the main prayer in the O.A

not being granted at least the alternate plea of the petitioner for

being accommodated in nearby places or nearby districts may also

be duly considered. The 3rd respondent herein will ensure that an

additional statement is duly filed before the Tribunal on the

abovesaid aspects regarding the availability of vacancies in

Palakkad district, Malappuram district & Thrissur District. The

Tribunal may consider facilitation of the early final disposal of the

main matter in O.A (Ekm) No.1719/2020 without much delay,

preferably within a period of one month from the date of receipt of

a certified copy of this judgment or within any time limit that may

be appropriately found fit and proper by the Tribunal.

8. The Registry will forward a copy of this judgment to the O.P(KAT) No.33/2021

Kerala Administrative Tribunal, Ernakulam Bench, which is

dealing with O.A (Ekm) No.1719/2020 for necessary information.

The Registry will also forward a copy of this judgment to the 3 rd

respondent Director General of Fire and Rescue Services

Department, Thiruvananthapuram, at the cost of the petitioner, for

necessary information and immediate compliance.

With these observations and directions the above Original

Petition will stand disposed of .

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

T.R.RAVI, JUDGE KAS O.P(KAT) No.33/2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION IN OA (EKM) 1719 OF 2020, WITH ANNEXURES, PENDING BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL

ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED ON 4.11.2020 BEFORE THE JFCM COURT, PALAKKAD BY MRS.SULOCHANA

ANNEXURE A2 TRUE COPY OF THE FIR IN CRIME NO 57/2020 DATED 25.2.2020 OF KOTTAYI POLICE STATION

ANNEXURE A3 TRUE COPY OF THE ORDER NO E2-5496/2020 DATED 12.11.2020 OF THE 3RD RESPONDENT

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 3.12.2020 WITH ANNEXURES FILED BY THE 3RD RESPONDENT IN OA (EKM) NO 1719 OF 2020, BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL

ANNEXURE R3(A) TRUE COPY OF THE FIR

ANNEXURE R3(B) TRUE COPY OF THE ORDER NO B-6923/2017 DATED 31.1.2019

ANNEXURE R3(C) TRUE COPY OF ORDER NO B-4717/2017 DATED 1.6.2018

ANNEXURE R3(D) TRUE COPY OF PASSPORT

EXHIBIT P3 TRUE COPY OF THE REJOINDER OF THE PETITIONER WITH ANNEXURES TO THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN OA (EKM) NO 1719 OF 2020, BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL.

O.P(KAT) No.33/2021

ANNEXURE A4 TRUE COPY OF THE RELEVANT PAGES OF THE COMMUNICATION NO G-1000/2019 DATED 20.2.2019 OF THE DISTRICT FIRE OFFICER, PALAKKAD

ANNEXURE A5 TRUE COPY OF THE LETTER NO E 1934/2020 DATED 29.7.2020 OF DISTRICT FIRE OFFICER, PALAKKAD WITH ANNEXURE DOCUMENTS

ANNEXURE A6 TRUE COPY OF THE COMMUNICATION NO 3813/2017 DATED 8.3.2018 TO THE 3RD RESPONDENT

ANNEXURE A7 TRUE COPY OF THE COMMUNICATION NUMBER E2/11429/2016 DATED 6.4.2018 OF THE 3RD RESPONDENT

ANNEXURE A8 TRUE COPY OF THE ORDER NO M3-

13514/2017 DATED 26.9.2019 OF THE 3RD RESPONDENT

ANNEXURE A9 TRUE COPY OF THE APPEAL DATED 29.11.2019 BEFORE THE 2ND RESPONDENT

ANNEXURE A10 TRUE COPY OF THE APPEAL DATED 2.8.2018 FILED BEFORE THE 3RD RESPONDENT

ANNEXURE A11 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 2ND RESPONDENT ON 19.9.2017

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 22.1.2021 IN OA (EKM) NO 1719 OF 2020 OF THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL

RESPONDENT'S/S EXHIBITS:

//TRUE COPY// PA TO JUDGE