T.S.Manoj Kumar Embrandiri vs Cochin Devaswom Board
2021 Latest Caselaw 2536 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                      WP(C).No.35004 OF 2019(A)


PETITIONER:

               T.S.MANOJ KUMAR EMBRANDIRI,
               AGED 43 YEARS
               S/O.S.SANKARANARAYANAN EMBRANDIRI,
               SREEBHADRA VILASOM,CHOTTANIKKARA.P.O,
               ERNAKULAM DISTRICT.

               BY ADVS.
               SRI.A.MUHAMMED MUSTHAFA
               SRI.M.P.SREEKRISHNAN

RESPONDENTS:

      1        COCHIN DEVASWOM BOARD,
               THRISSUR,REPRESENTED BY ITS SECRETARY,
               OFFICE OF THE COCHIN DEVASWOM BOARD,
               THRISSUR-680001.

      2        THE ASSISTANT COMMISSIONER,
               CHOTTANIKKARA DEVASWOM,
               CHOTTANIKKARA,ERNAKULAM DISTRICT,PIN-682312.

      3        DEVASWOM MANAGER,
               CHOTTANIKKARA DEVASWOM,
               CHOTTANIKKARA,ERNAKULAM DISTRICT,PIN-682312.

      4        JAYARAJ,
               THEERTHAPANI,CHOTTANIKKARA DEVASWOM,CHOTTANIKKARA,
               ERNAKULAM DISTRICT,PIN-682312.

               R1 BY K.P.SUDHEER, SC, COCHIN DEVASWOM BOARD

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.35004 OF 2019               2

                              JUDGMENT

The petitioner impugns Ext.P6 alleging

that, though it is framed as a transfer order,

it contains certain allegations against him,

which will cast a stigma upon him for rest of

his life. He says that Ext.P6 is egregiously

improper, since even without a proper enquiry,

he has been branded guilty and has been

transferred as a punishment. The petitioner,

therefore, prays that Ext.P6 be set aside.

2. Shri.M.P.Sreekrishnan, learned counsel

for the petitioner, added to the above by

saying that none of the materials available on

record, including Exts.R1(b) and R1(d) - which

are stated to be reports of various officers

with respect to the incident in question -

mulcts any liability on his client nor has he

been found culpable for any guilt; but that,

in spite of this, it has been stated in Ext.P6

that his client is guilty and he has been

consequently transferred.

3. Shri.M.P.Sreekrishnan submitted that

Ext.P6 certainly, therefore, can only be

construed to be punitive in nature and that it

is now well settled, through various judgments

of this Court and that of the Hon'ble Supreme

Court, that a stigmatic order of transfer

cannot obtain favour in law and that this is

more so in this case, because the applicable

Regulations and Rules does not provide for

transfer as a method of punishment. He,

therefore, reiteratingly prayed that this writ

petition be dismissed.

4. In response, the learned Standing

Counsel for the Devaswom Board -

Shri.K.P.Sudheer, submitted that a counter

affidavit has been filed on record, to which,

Exts.R1(b) and R1(d) enquiry reports have been

appended, in which the petitioner's

involvement in the alleged incident has been

found credible and therefore, that action has

been recommended by the Chief Vigilance

Officer of the Board.

5. The learned Standing Counsel submitted

that in spite of this, the Board decided to

take a very lenient view and that the

petitioner has been transferred, not merely on

account of being found guilty, but in

administrative exigency also. He, therefore,

prayed that Ext.P6 be not interdicted and that

this writ petition be dismissed.

6. I have considered the afore

submissions and have examined very carefully

the materials available on record.

7. Indubitably, Ext.P6 order only

transfers the petitioner, but it also says

that he has been found guilty of dereliction

of duty and disciplinary breach. However, it

is apodictic, even going by the counter

affidavit of the respondent - Board, that no

formal enquiry has been conducted or concluded

against the petitioner, but that they have

acted upon Ext.R1(d) report preferred before

the Special Devaswom Commissioner by the Chief

Vigilance Officer of the Board.

8. The Chief Vigilance Officer has

recommended some action against the petitioner

and the Board now says that Ext.P6 was issued

so that the petitioner will not have to face a

disciplinary action thereupon.

9. That said, however, Shri.M.P.

Sreekrishnan submits that his client is

completely innocent of all the allegations

against him and that he has already explained

how he is neither guilty of any of the

allegations made against him, nor deserving of

being found guilty of dereliction of duty.

Therefore, I am of the certain opinion that

the allegations against the petitioner,

mentioned in Ext.P6, cannot be treated as

having been established, until such time as

they are properly proved through a competent

enquiry.

In the afore circumstances, I order this

writ petition and set aside Ext.P6; with a

consequential liberty being left to the Board

to conduct a proper enquiry against the

petitioner, and needless to say, if he is

found guilty thereafter, to impose such

punishment as may be warranted in law, in

terms of the applicable Rules and Regulations.

I close this writ petition by directing

the petitioner to implicitly co-operate with

any enquiry that may be initiated by the Board

in terms of these directions and leaving

further liberty to the latter to complete the

same even in the event he does not do so, as

per the applicable law.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/25.1.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE TRANSFER ORDER DATED 25/10/2018 FROM THE 1ST RESPONDENT THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE MEMO DATED 4/3/2019 FROM 3RD RESPONDENT TO PETITIONER.

EXHIBIT P3 TRUE COPY OF REPLY TO EXT.P2 MEMO DATED 5/3/2019

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 28/3/2019 FROM 1ST RESPONDENT TO THE PETITIONER

EXHIBIT P5 TRUE COPY OF THE REPLY DATED 30/3/2019 TO EXT.P4

EXHIBIT P6 TRUE COPY OF THE TRANSFER ORDER DATED 12/12/2019 FROM THE 1ST RESPONDENT TO THE PETITIONER.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(a) TRUE COPY OF COMMUNICATION DATED 04.03.2019 SUBMITTED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT AND ITS ENCLOSURE.

EXHIBIT R1(b) TRUE COPY OF REPORT DATED 04.03.2019 SUBMITTED BY THE VIGILANCE ASSISTANT TO THE CHIEF VIGILANCE OFFICER.

EXHIBIT R1(c) TRUE COPY OF COMMUNICATION DATED 05.03.2019 ISSUED BY THE 1ST RESPONDENT TO THE CHIEF VIGILANCE OFFICER.

EXHIBIT R1(d) TRUE COPY OF REPORT DATED 12.3.2019 SUBMITTED BY THE CHIEF VIGILANCE OFFICER.

EXHIBIT R1(e) TRUE COPY OF JUDGMENT DATED 16.3.2020 IN DBP NO.16/2020 PASSED BY THIS HON'BLE COURT.