Boban.A.S vs The Kerala State Road Transport ...
2023 Latest Caselaw 13109 Ker

Kerala High Court

Boban.A.S vs The Kerala State Road Transport ... on 15 December, 2023

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945
                   WP(C) NO. 38130 OF 2023
PETITIONER/S:

            BOBAN.A.S
            AGED 48 YEARS
            S/O STEPHAN, DRIVER GRADE - I, THE KERALA STATE ROAD
            TRANSPORT CORPORATION, ERNAKULAM DEPOT, ERNAKULUM
            DISTRICT, (NOW UNDER ORDERS OF TRANSFER TO
            PAPPANAMCODE) RESIDING AT JEEN COTTAGE, ANAPUZHA HOUSE,
            VENNALA.P.O. ERNAKUALM DISTRICT,, PIN - 682028
            BY ADV O.D.SIVADAS

RESPONDENT/S:

    1       THE KERALA STATE ROAD TRANSPORT CORPORATION,
            TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY
            ITS MANAGING DIRECTOR., PIN - 695001
    2       THE CHAIRMAN AND MANAGING DIRECTOR,
            THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT
            BHAVAN, THIRUVANANTHAPURAM,, PIN - 695001
    3       THE DISTRICT TRANSPORT OFFICER,
            KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM
            DEPOT, ERNAKULAM,, PIN - 682001
            BY ADV Deepu Thankan


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) NO. 38130 OF 2023

                                         2


                                   JUDGMENT

The petitioner is presently employed as a driver in the Kerala Road

Transport Corporation (hereinafter referred to as 'the KSRTC'). He has

approached this Court impugning the transfer order issued by the

respondents transferring him from his present station at Ernakulam to

Pappanamkode.

2. He asserts that he commenced his service with the KSRTC and

was initially stationed at the Central Depot, Thiruvananthapuram.

Subsequently, he was transferred to Ernakulam Depot in the year 2011.

While continuing as such, he was transferred to North Paravur in the year

2014, and in the year next year itself, he was transferred back to Ernakulam

Depot, where he worked till 2021.

3. While so, the petitioner was transferred to Pappanamcode on

14.10.2021. The petitioner asserts that Exhibit P2 transfer guidelines provide

protection to employees who have entered into inter-caste marriages. It is

contended that the petitioner, by birth, belongs to the Christian faith, and he

entered into an inter-caste marriage with a Hindu woman in the year 2000.

As the transfer order was passed without reckoning the above aspect, he

approached the respondents and highlighted his grievance. The request

made by the petitioner was considered, and Exhibit P5 order was issued, WP(C) NO. 38130 OF 2023

transferring the petitioner back to Ernakulam. The petitioner asserts that

Exhibit P4 would reveal that he had not claimed the protection from transfer

on grounds of inter-caste marriage, until then. According to the petitioner,

as the respondents have granted him protection from inter-caste transfer by

Exhibit P5 order, he is entitled to remain in the same unit for a period of 5

years in terms of the transfer guidelines. It is contended that, ignoring the

protection granted to the petitioner, he has now been transferred to

Pappanamcode. He asserts that he had completed the incumbency period,

and there exists no justifiable reason for the respondents to transfer him to

Pappanamcode. It is further contended that certain individuals who have not

yet satisfied the incumbency period continue to be retained in their positions

in the Ernakulam unit. It is based on these assertions and grievances that

the petitioner has approached this Court seeking to quash Ext.P11 and for a

further direction to the respondents to continue with Ext.P12 and take a

decision.

4. A counter affidavit has been filed by the respondents,

controverting the contentions advanced by the petitioner. It is stated that

the petitioner has been working at Ernakulam Depot continuously from 2011

onwards, except for a few months when he was transferred to North

Paravur and a few months to Pappanamkode on working arrangement basis.

It is stated that the petitioner is not entitled to the protection on the ground WP(C) NO. 38130 OF 2023

of inter-caste marriage as his marriage had taken place on 13.2.2000, much

prior to the petitioner joining the KSRTC. It is contended that the benefits

can be enjoyed only for a period of five years calculated from the time of

solemnization of the marriage. It is further stated that the Government

Order issued with respect to inter-caste marriage also states that the benefit

can be availed only during the first five years of marriage and not later. It

is further stated that Ext.P5 order, revoking the earlier transfer order, was

passed by invoking Clause 10 of Ext.P2 guidelines, which deals with the

revocation of transfer of compassionate grounds. According to the

respondents, it is settled by now that the KSEBL, a company incorporated

under the Companies Act, is functioning autonomously, and they have the

right to make a decision either to adopt or not to adopt the Government

Order with due application of mind. It is stated that the transfer and

posting of each employee is done as per the prevailing guidelines in the

exigency of service and public interest.

5. Sri. O.D.Sivadas, the learned counsel appearing for the

petitioner, reiterated the contentions in the writ petition.

6. Sri. Deepu Thankan, the learned counsel appearing for the

respondents submitted that there are almost 18,000 employees and it is on

account of administrative exigencies and to streamline the operations that a

general transfer order has been issued, which affects almost 4000 WP(C) NO. 38130 OF 2023

personnel. According to the learned counsel, the majority of Conductors

who are working in the KSRTC are from the northern part of Kerala, and the

majority of drivers are from the southern part. It is submitted that for

administrative exigencies and to accede to the long pending request of

various employees who are working out of their home unit, that the general

transfer order was issued. Reliance is placed on the judgment rendered by

the Division Bench of this Court in Babu V State of Kerala1, and it is

argued that the orders of transfer made in the exercise of administrative

discretion may not be interfered with under Art.226 of the Constitution.

Reliance is also placed on Nixy James v. Kerala State Road Transport

Corporation2 to substantiate his contention.

7. I have considered the submissions advanced and have gone

through the records.

8. The grievance of the petitioner in the instant case concerns the

inclusion of the petitioner in the general order of transfer. By the above

order, he has been transferred from Ernakulam to Pappanamcode. It is

apparent from the petition that he entered into service in the year 2009. His

prime contention is that the persons who enter into inter-caste marriages

are granted exemption for a period of five years, and the said benefit was

extended to him by Ext.P5 order. I find from the submissions that the

[1988 (2) KLT 258]

[2023 (3) KLT 893] WP(C) NO. 38130 OF 2023

petitioner got married in the year 2000 whereas he joined service only in

the year 2009. As rightly submitted by the learned Standing Counsel, the

guidelines are in tune with the Government orders, which provide a

five-year transfer exemption for individuals who enter into intercaste

marriages, effective from the marriage date. Furthermore, a lenient view

was taken in favour of the petitioner by Ext.P5 order on compassionate

grounds and not on the ground of inter-caste marriage. In that view of the

matter, the contention of the petitioner that he has to be granted an

exemption from transfer cannot be accepted.

9. The next contention of the learned counsel is that the seniority

of the petitioner was not reckoned while the transfer order was effected. I

find from the records that the petitioner has been substantially working

from Ernakulam unit from 2011 onwards. He also contends that employees

who have not yet completed the incumbency period are still retained in the

same unit.

10. In Nixy James v. Kerala State Road Transport

Corporation3, a learned Single Judge of this Court had occasion to

encapsulate the law relating to the transfer of employee by referring to the

earlier precedents. It would be appropriate to extract paragraph Nos. 6 to

9, which I feel applies to the facts of the instant case.

[2023 (3) KLT 893] WP(C) NO. 38130 OF 2023

"6. Law is too well settled that, transfer is an incidence of service and the employee has no legal right in this behalf. It is also well settled that, unless the orders of transfer is vitiated by statutory violations or mala fides, Courts should be loathe in interfering with the same. Courts will be extremely circumspect, will act with restraint and may not ponder into hairsplitting arguments, to scan the decisions in orders of transfer. The Corporation cannot effectually work when the employees act intolerably or spitefully amongst themselves or is engaged in activities which go against the best interests of the Corporation. Transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to sub-serve internal discipline.

7. When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or in appropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity. 8. The question whether an employee is to be transferred to a different division etc., are matters for the employer to consider depending upon the administrative necessities. The power to transfer an employee in a transferable service is within the prerogative of the employer. It is he who knows best, where an employee should be deployed for an effective discharge of his/her duties for the establishment. The inconvenience caused to the employee and his family consequent on the transfer are not sufficient to interfere with the orders of transfer. A transfer can always be done in public interest. (Babu v. State of Kerala (1988 (2) KLT 258), Vasu v. High Court of Kerala (1989 (1) KLT 16), Dinamony v. Dt. Superintendent of Police, Kollam (1994 (1) KLT

326), P.Pushpakaran v. Chairman, Coir Board (Ker.) (1978 KLT 539 ), Rajan v. Director General of Police (1999 (2) KLT 673), Shilpi Bose v. State of Bihar (1991 Supp. (2) SCC 659), Union of India v. S.L.Abbas (1993) 4 SCC 357), National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001) 8 SCC 574), Union of India & Ors. v. Sri Janardhan Debanath & Anr. (2004) 4 SCC 245), Divyamol R.S. v. Director General Central Industrial Security Force, New Delhi & Ors. (2022 (4) KLT OnLine 1093).

9. In addition to the law on transfers as noticed supra, it is appropriate to refer to clause 11 of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012 of the Corporation. A copy of the same has been produced along with the counter affidavit as Annexure-R1(a). Clause 11 thereof deals with "Transfer on Administrative ground due to disciplinary issues". Therefore, the Corporation is enabled even under the Transfer Guidelines to effect transfers of its employees on administrative grounds, to maintain a harmonious and working atmosphere at its offices."

WP(C) NO. 38130 OF 2023

11. This Court has held that the transfer is an incidence of service,

and the employee has no legal right to interdict the same unless there

are materials to suggest that the order of transfer is vitiated by statutory

violations or mala fides. Transfer can be effected on administrative

grounds as long as it is intended to aid proper administration and to

sub-serve internal discipline. The question of whether an employee is to

be transferred to a different division, etc., is a matter for the employer to

consider, depending upon the administrative necessities. The power to

transfer an employee in a transferable service is within the prerogative of

the employer. The inconvenience caused to the employee and his family

consequent to the transfer is not sufficient to interfere with the orders of

transfer. A transfer can always be done in the public interest.

Furthermore, as per the relevant clause of the Transfer Guidelines in

Appendix-IV of the Long-Term Settlement Agreement, 2012, the

Corporation is entitled to effect transfers of its employees on

administrative grounds to maintain a harmonious working atmosphere at

its offices. 1Furthermore, in Babu (supra), it has been held by a Division

Bench of this Court that guidelines for transfer are not statutory, and they

are meant for guidance in the matter of transfer. They are not

exhaustive. In administration, a variety of situations not contemplated by

the guidelines may arise, which have to be taken into account. Merely

because a guideline has been violated in the matter of transfer, that WP(C) NO. 38130 OF 2023

would not by itself be a sufficient ground for interference. In view of the

discussion above, I do not think any cause for interference is made out.

12. At this stage, Sri. O.D. Sivadas, the learned counsel

appearing for the petitioner submitted that the petitioner has preferred

Ext.P2 representation before the 2nd respondent highlighting his

grievances and the same is pending consideration.

In that view of the matter, while dismissing the writ petition,

there will be a direction to the 2nd respondent to take up Ext.P2 and pass

appropriate orders on its merits within six weeks from the date of receipt of

a copy of this judgment.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE SJ WP(C) NO. 38130 OF 2023

APPENDIX OF WP(C) 38130/2023

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE CERTIFICATE OF INTER CASTE MARRIAGE DATED 22.04.2015 ISSUED BY THE VILLAGE OFFICER, VAZHAKKALA Exhibit P2 TRUE COPY OF THE TRANSFER NORMS ISSUED BY THE 2ND RESPONDENT.

Exhibit P3 TRUE COPY OF THE REQUEST DATED 17.09.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH PROPER CHANNEL.

Exhibit P4 TRUE COPY OF THE LETTER DATED 15.01.2022 ISSUED BY THE STATE INFORMATION OFFICER, PAPPANAMCODE TO THE PETITIONER.

Exhibit P5          TRUE COPY OF THE MEMORANDUM DATED
                    10.02.2022 ISSUED BY THE ASSISTANT
                    TRANSPORT OFFICER, PAPPANAMCODE RELIEVING
                    THE PETITIONER TO ERNAKULAM.
Exhibit P6          TRUE COPY OF THE REQUEST DATED 6.06.2022
                    SUBMITTED BY THE PETITIONER TO THE 3RD
                    RESPONDENT THROUGH PROPER CHANNEL.
Exhibit P7          TRUE COPY OF THE OBJECTION DATED
                    22.05,2023 SUBMITTED BY THE PETITIONER TO
                    THE CORPORATION
Exhibit P8          TRUE COPY OF THE RELEVANT PORTION OF THE
                    TRANSFER LIST ISSUED BY THE 2ND
                    RESPONDENT AS PER PROCEEDING NO.
                    700/CMD(SPC)2023/RTC DATED 15.07.2023
Exhibit P9          TRUE COPY OF THE PROCEEDING DATED
                    2.08.2023 ISSUED BY 2ND RESPONDENT.
Exhibit P10         TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
                    COURT IN WP (C) NO. 24652/2023 DATED
                    17.08.2023.
Exhibit P11         TRUE COPY OF THE RELEVANT PORTION OF THE
                    TRANSFER ORDER ISSUED BY THE 2ND
                    RESPONDENT AS PER PROCEEDING NO.
                    700/CMD(SPC)2023/RTC DATED 4.11.2023
Exhibit P12         TRUE COPY OF THE REQUEST DATED 6.11.2023
                    SUBMITTED BY THE PETITIONER BEFORE THE
                    2ND RESPONDENT.