Kerala State Road Transport ... vs Lissy R
2022 Latest Caselaw 9564 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

         THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                  &

            THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

       THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944

                       WA NO. 927 OF 2022
AGAINST THE JUDGMENT DATED 25.03.2022 IN WP(C) 3324/2022 OF HIGH
                         COURT OF KERALA

APPELLANTS/RESPONDENTS:

   1     KERALA STATE ROAD TRANSPORT CORPORATION
         REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
         TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-695 023.


   2     CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN,
         FORT P.O., THIRUVANANTHAPURAM - 695 023.


   3     THE EXECUTIVE DIRECTOR
         (ADMINISTRATION), KERALA STATE ROAD TRANSPORT
         CORPORATION, TRANSPORT BHAVAN, FORT P.O.,
         THIRUVANANTHAPURAM - 695 023.


   4     THE ASSISTANT TRANSPORT OFFICER
         KERALA STATE ROAD TRANSPORT CORPORATION, CHADAYAMANGALAM
         DEPOT, PIN - 691 534.


   5     THE STATION MASTER
         KERALA STATE ROAD TRANSPORT CORPORATION, CHADAYAMANGALAM
         DEPOT, PIN - 691 534.


            BY ADV SHRI.DEEPU THANKAN, SC, KSRTC

RESPONDENT/PETITIONER:

            LISSY R., AGED 41 YEARS, CONDUCTOR, II GRADE,
            CHADAYAMANGALAM DEPOT, KOLLAM - 691 534.


            BY ADV SRI.V PREMCHAND


      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                     :2:
W.A.No.927 of 2022




                              JUDGMENT

A.K.Jayasankaran Nambiar, J.

The Kerala State Road Transport Corporation is the appellant

herein aggrieved by the judgment dated 25.03.2022 of a learned Single

Judge in W.P(C).No.3324 of 2022 .

2. The brief facts necessary for the disposal of this Writ Appeal

are as follows:

The writ petitioner is working as a Conductor, Grade-II at the

Chadayamangalam Depot of the appellant Corporation. She approached

this Court through the Writ Petition aforementioned, aggrieved by

Ext.P7 transfer order dated 27.01.2022, whereby she was transferred

to the Thiruvananthapuram Depot of the appellant Corporation in

connection with an incident that occurred on 12.10.2021 for which she

was separately charge sheeted through Ext.P6 charge memo dated

13.10.2021. The challenge in the Writ Petition was premised on the

contention that the transfer order was punitive in nature, and therefore,

illegal.

3. The learned Single Judge who considered the matter found

force in the contention of the writ petitioner and, after taking note of

W.A.No.927 of 2022

the leave applications and supporting medical certificates that were

produced by the writ petitioner along with the Writ Petition, opined that

the impugned transfer order was, in fact, punitive in nature and could

not be legally sustained. Thereafter, the learned Judge also took note of

the same material to observe that the appellant Corporation had

necessarily to re-consider the issue of initiation of disciplinary

proceedings against the writ petitioner taking note of the medical

reports/certificates produced by her. It was also made clear that till

such time as the appellant Corporation took a fresh decision in the

matter, the writ petitioner would be retained at the Chadayamangalam

Depot.

4. Before us, it is the contention of Sri.Deepu Thankan, the

learned Standing counsel appearing for the appellant Corporation that

the transfer order impugned in the Writ Petition was issued in

accordance with Ext.R1(a) guidelines which permitted the appellant

Corporation to transfer employees on administrative grounds due to

disciplinary proceedings, so long as the said fact was mentioned in the

transfer order. It is his further contention that at any rate it was not

proper for the learned Single Judge to have made observations

regarding the genuineness of the medical reports furnished by the writ

petitioner in support of the leave applications submitted by her more so

when the leave applications were not accepted by the appellant

Corporation.

W.A.No.927 of 2022

5. On a consideration of the rival submissions, we are of the view

that while it is well settled in service jurisprudence that an employer

can either suspend or transfer an employee in connection with

disciplinary proceedings initiated against the said employee, it is

equally well settled that in the event of a transfer of an employee in

connection with disciplinary proceedings, the order of transfer, like an

order of suspension, must be passed either before the issuance of a

charge memo or within a reasonable time thereafter. The order of

suspension /transfer in such circumstances has to be proximate in point

of time to the initiation of disciplinary proceedings. In the instant case,

we find that the incident that led to the charge memo occurred in the

early hours of 12.10.2021 and the charge memo itself was issued on

13.10.2021. The writ petitioner rejoined duty after availing the alleged

unauthorised leave on 23.10.2021. It was much thereafter that the

transfer order was issued on 27.01.2022. The delay in issuing the

transfer order, in our view, vitiates the transfer order for it then

assumes a punitive nature. We are in agreement with the findings of the

learned Single Judge that holds so, and we refrain from interfering with

that portion of the judgment which interdicts the appellant Corporation

from transferring the writ petitioner to Thiruvananthapuram and

directs her retention at Chadayamangalam Depot.

6. That being said, we find that the further observations of the

W.A.No.927 of 2022

learned Single Judge with regard to the genuineness/correctness of the

medical records produced by the writ petitioner in support of her leave

application, as also the direction to the appellant Corporation requiring

the appellant Corporation to reexamine the issue as to whether or not

disciplinary proceedings had to be initiated against the writ petitioner,

were uncalled for. We, therefore, vacate the said observations and

directions issued by the learned Single Judge in the impugned

judgment.

Resultantly, we partly allow this appeal and make it clear that the

appellant Corporation will be free to continue with the disciplinary

proceedings against the respondent/writ petitioner. The treatment to be

accorded to the period of the writ petitioner's absence from duty shall

be determined at the time of finalising the disciplinary proceedings

against the respondent/writ petitioner.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

MOHAMMED NIAS C.P.

JUDGE mns