Kerala High Court
T.Prasnna vs State Of Kerala on 27 March, 2012
Author: K. Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
TUESDAY, THE 27TH DAY OF MARCH 2012/7TH CHAITHRA 1934
WP(C).No. 29538 of 2011 (N)
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PETITIONER:
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T.PRASNNA, ASSISTANT ENGINEER
PUBLIC HEALTH SECTION
KERALA WATER AUTHORITY
KAYAMKULAM - 690 507
BY ADVS.SRI.ELVIN PETER P.J.
SRI.T.G.SUNIL (PRANAVAM)
SRI.K.R.GANESH
RESPONDENTS:
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1. STATE OF KERALA, REP. BY SECRETARY TO
GOVT., WATER RESOURCES DEPARTMENT
GOVT.SECRETARIATE, THIRUVANANTHAPURAM - 695 001
2. KERALA WATER AUTHORITY, REP. BY ITS
MANAGING DIRECTOR, JALA BHAVAN
VELAYAMBALAM, THIRUVANANTHAPURAM - 695 003
3. THE DEPUTY CHIEF ENGINEER (GENERAL)
KERALA WATER AUTHORITY JALA BHAVAN
VELAYAMBALAM, THIRUVANANTHAPURAM - 695 003
4. SHRI.BABURAJ R, ASSISTANT ENGINEER
PUBLIC HEALTH SECTION, KERALA WATER AUTHORITY
CHENGANNUR - 689 121
5. SHRI.N.SATHYAN, PRESIDENT
KERALA CONGRESS (M) NIYOJAKA MANDALAM COMMITTEE
KAYAMKULAM - 690 502
BY ADV. SMT.AMBIKA DEVI, SC, KWA
BY ADV. STATE ATTORNEY
BY ADV. SRI.T.KRISHNAN UNNI (SR.)
BY ADV. SRI.SAJU.S.A
BY ADV. SRI.ROY CHACKO
BY ADV. SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY
BY GOVERNMENT PLEADER SHRI. ABDUL RAHIM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER's EXTS:
EXT.P1: TRUE COPY OF ORDER NO:KWA/JB/E4/11751/08 DT.6.5.09 ISSUED BY
THE 3RD RESPONDENT
EXT.P2: -DO- NO:E-52/87 DT.1.6.2010 ISSUED BY THE ASST.EXECUTIVE
ENGINEER, IPD SUB DIVISION, KOCHI
EXT.P3: -DO- NO: E1.618/93 VOL.II DT.21.6.2010 ISSUED BY THE
ASST.EX.ENGINEER, WSP SUB DIVISION, KWA, HARIPAD
EXT.P4: -DO- OF LIST DT.6.7.2011 GIVEN TO THE PETITIONER BY THE 5TH
RESPONDENT
EXT.P5: -DO- OF ORDER NO: KWA/JB/E4(A)/3621/2000 DT.24.10.2011 ISSUED
BY THE 3RD RESPONDENT
EXT.P6: -DO- OF LIST PRODUCED BY THE 4TH RESPONDENT IN EXT.P4
EXT.P7: -DO- OF REPORT DT.4.5.2011 ISSUED BY THE PETITIONER
EXT.P7A: DESCRIPTIVE REPORT REGARDING THE REMEDIAL MEASURES SUGGESTED
TO RECTIFY THE WATER SUPPLY SUBMITTED BY PETITIONER
EXT.P7B: TRUE COPY OF COMPILATION REPORT OF THE ASST. ENGINEER AND
ASST.ENGINEER AND ASST.EXE.ENGINEER
EXT.P8: -DO- OF REPORT DT.25.5.2011
EXT.P9: -DO- DT.6.7.2011 SUBMITTED BY THE PETITIONER
EXT.P10: -DO- DT.12.8.2011 SUBMITTED BY PETITIONER WITH PROPOSAL
EXT.P11: -DO- DT.25.8.2011 ISSUED BY PETITIONER
EXT.P12: -DO- DT. SUBMITTED BY PETITIONER
EXT.P12A: -DO- DT.12.10.2011 SUBMITTED BY THE PETITIONER
EXT.P12B: -DO- DT.25.10.2011 -DO-
EXT.P12C: COPY OF REPORT DT.12.10.2011 SUBMITTED BY THE PETITIONER
EXT.P13: TRUE COPY OF LETTER DT.4.11.2011 ISSUED BY E.E. TO A.E.E.
EXT.P14: C.D.CONTAINING NEWS ITEM APPEARED IN TV CHANNEL
EXT.P15: TRUE COPY OF LAWYER NOTICE DT.29.11.2011
EXT.P16: -DO- OF THE LEAVE APPLICATGION FILED BY THE PETITIONER
EXT.P16A: -DO- OF MEDICAL CERTIFICATE
EXT.P17: -DO- OF CERTIFICATE TO REJOIN DUTY
EXT.P18: -DO- OF THE MINUTES OF THE KARTHIKAPPILLYTALUK VIKASANA
SAMITHY HELD ON 4-6-2011
EXT.P19: -DO- OF THE MINUTES OF THE KARTHIKAPPILLY TALUK VIKASANA
SAMITHY HELD ON 2-7-2011
EXT.P20: -DO- 6-8-2011
EXT.P21: -DO- 3-9-2011
RESPONDENTS' EXTS:
EXT.R2A: TRUE COPY OF REPORT PUBLISHED IN MATHRUBHUMI DAILY
DT.4.10.2011
EXT.R2B: -DO- DT.11.10.2011
EXT.R2C: -DO- 11.10.2011
EXT.R2D: -DO- REPORT PUBLISHED IN MATHRUBHUMI DT.12.10.2011
EXT.R2E: PETITION FILED BY B.CHANDRABABU TO MINISTER FOR WATER
RESOURCES DT.12.10.2011
EXT.R2F: PETITION SUBMITTED BY G.LAL MALAVYA TO MINISTER FOR WATER
RESOURCES DT.7-10-2011
EXT.R2G: -DO- P.K.KOCHU KUNJU TO MINISTER FOR WATER RESOURCES
DT.7-10-2011
EXT.R2H: -DO- K.V.LAATHA BAI TO MINISTER FOR WATER RESOURCES
DT.5-10-2011
EXT.R2I: -DO- R.SUMITHRAN TO MINISTER FOR WATER RESOURCES DT.2-10-2011
EXT.R2J: MASS PETITION SUBMITTED BY PUBLIC OF WARD NO:IX OF KAYAMKULAM
MUNICIPALITY TO MINISTER FOR WATER RESOURCES DT.4-10-2011
JJ /TRUE COPY/
P.S.TO JUDGE
K. SURENDRA MOHAN, J.
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W.P(C) NO: 29538 OF 2011
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Dated this the 27th March, 2012.
JUDGMENT
The petitioner has filed this writ petition challenging Ext.P5 order by which she has been transferred from Kayamkulam to Chengannur. According to the petitioner, Ext.P5 order is vitiated by extraneous consideration and malafides.
2. The petitioner was appointed as an Assistant Engineer as per Ext.P1 dated 6-5-2009. As per the said order, she was posted at Kochi. Thereafter, on 1-6-2010 she was transferred to Haripad on her request. Her husband is working abroad. Therefore, she got admission for her children at the Schools in Haripad. However, shortly thereafter, as per Ext.P3 order dated 21-6-2010 she was transferred to Kayamkulam. Thereupon, she secured admission for her children at the Schools there. It was in the above circumstances she was transferred on 25-10-2011 from Kayamkulam and posted to Chengannur. According to the petitioner Ext.P5 does not mention any reason for her transfer. The petitioner also places reliance on Exts.P4 and P6 which according to her are requests made by the fifth respondent to post persons belonging to his WPC 29538/2011 2 political party or his supporters as pump operators. However, the petitioner declined to accede to his request. The fifth respondent was furious at the conduct of the petitioner. Therefore, it is alleged that he has by exerting his influence caused the issue of Ext.P5 transferring the petitioner from Kayamkulam. Therefore, it is contended that Ext.P5 transfer is arbitrary and liable to be set aside.
3. Separate counter affidavits have been filed on behalf of respondents 2 and 3 as well as the fifth respondent. Respondents 2 and 3 have denied the allegations of malafides. According to respondents 2 and 3, the petitioner was transferred since there were serious complaints and allegations about her performance. The local people had conducted agitations against her inability to solve the shortage of drinking water faced by them. There were mass complaints also as evident from the newspaper reports produced as Exts.R2(a), R2(b), R2(c) and R2(d) respectively. When complaints were received about the manner of functioning of the petitioner, the petitioner was directed to take immediate steps to redress the said grievances but, she took leave for 22 days on medical grounds. Since the petitioner was on leave, it is contended that she was relieved of her duties by sending the order to her WPC 29538/2011 3 residential address.
4. According to the fifth respondent who has filed a counter affidavit, he has neither met nor served Ext.P4 on the petitioner. According to him no request has been made to post pump operators as alleged by the petitioner. The allegation is according to him far fetched and without any basis. It is also contended by the fifth respondent that the petitioner's transfer was ordered in view of the various complaints that were pending against her.
5. The petitioner filed a reply affidavit, refuting the allegations contained in the counter affidavits of respondents 2, 3 and 5. The petitioner has also produced documents evidencing the fact that she had initiated remedial measures to redress the complaints of the public. With regard to Ext.R2(a) paper report, the petitioner has pointed out that the said incident does not refer to any locality that falls within her jurisdiction. It is also contended that the two MLA's of Kayamkulam had conducted discussions in order to find a solution to the water supply problems of the Kayamkulam area. No complaint against the petitioner was ever made at any such meetings. The petitioner relies on Exts.P7, P7(a) and P7(b) to contend that she had suggested methods to mitigate the water scarcity problems in the area. Exts. P8 to P13 are copies WPC 29538/2011 4 of communications addressed by the petitioner to her superiors suggesting measures to be taken to solve the problems of the area. The petitioner has also produced a compact disc (CD) wherein she has recorded a news item that came in a local TV channel by name CD net, airing a news that the Kerala Congress (M) Committee of which the fifth respondent is a leader had demanded the transfer of the petitioner alleging corruption against her. The petitioner has already issued Ext.P15 lawyer's notice demanding compensation from the said CD channel. The petitioner has further explained that she had taken leave on medical grounds for the reason that she had met with an accident and due to injuries suffered in the accident, she had developed a condition called 'Rhumatoid Arthritis Exacerbation' . She was advised rest on medical grounds for a period of three weeks that necessitated her taking the leave. Exts.P16 and P16(a) are certificates issued by the doctor who treated her. To the contention of the fifth respondent questioning the genuineness of Ext.P4, it is pointed out that the letterhead on which Ext.P4 has been written, is that of the political party of the fifth respondent. The petitioner has reiterated that it was fifth respondent himself who has handed over Ext.P4 together with Ext.P6 list to the petitioner.
WPC 29538/2011 5
6. Along with I.A.3444/2012 respondents 2 and 3 have produced additional documents Exts.R2(e) to Ext.R2(j) to evidence the existence of complaints from various functionaries against the petitioner and her manner of functioning. Ext.R2(k) is the copy of a mass petition. The petitioner has filed an additional reply affidavit in answer to the statements made on behalf of respondents 2 and 3 in the affidavit filed in support of the said petition. Additional documents Exts.P18 to P21 are also produced. According to the petitioner, Exts.R2(a) to Ext.R2(j) are all complaints obtained from the said functionaries using the influence of the fifth respondent, to support the impugned action initiated by respondents 2 and 3 to transfer the petitioner from Kayamkulam. Allegations have also been levelled against some of the persons who have submitted the said complaints. According to the petitioner, on the first Saturday of every English calendar month a meeting is being convened in the presence of the local MLA, known as the 'Taluk Vikasana Samithi' to deal with the problems of the locality and the grievances of the people. The minutes of such meetings of different dates are produced as Exts.P18, P19, P20 and P21 respectively. It is pointed out by the petitioner that none of the persons who have made the complaints evidenced by Exts.R2(a) to R2(j) were present at any of WPC 29538/2011 6 the said meetings. It is also pointed out that none of the peoples' representatives present there have made any complaints against the petitioner or her manner of functioning. For the above reasons, it is contended that the present attempt of respondents 2 and 3 as well as 5 is only to find some ground to support Ext.P5 order of transfer that has been passed without any justification.
7. I have heard Adv. Elvin Peter who appears for the petitioner, Adv. Joseph John who appears for respondents 2 and 3 as well as Adv.Roy Chacko who appears for the fifth respondent. I have considered the rival contentions anxiously.
8. It is true that the petitioner was transferred and posted to Haripad on her request only on 1-6-2010. However, as per Ext.P3 on 21-6-2010 itself she was transferred from Haripad to Kayamkulam. Ext.P5 order dated 24-10-2011 has been passed just after an year of Ext.P3. It is contended that as per the guidelines of transfer applicable, the petitioner had a right to be stationed at Kayamkulam for a period of three years. However, she has been transferred just after a period of one year, at the instance of the fifth respondent. The main contention of the petitioner is that Ext.P5 has been issued at the behest of the fifth respondent who was nursing a grudge against her for the reason that she had not WPC 29538/2011 7 posted the persons suggested by him as operators. The counsel for respondents 2 and 3 submits that pump operators are to be posted not by the petitioner but by the Executive Engineer. There was therefore no necessity for the fifth respondent to have submitted Exts.P4 or P6 to the petitioner. It is contended that such allegations are made only to set up a case of malafides against fifth respondent.
9. According to respondents 2 and 3 there were a number of complaints against the petitioner from the local public as well as Panchayat members and other functionaries of the local bodies. Exts.R2(a) to R2(j) are some of the complaints so submitted. The counsel for the petitioner takes serious exception to the above documents by pointing out that they are all addressed to the Minister concerned and not to her superiors and further points out that no such complaints had arisen at any time in the meetings of the Taluk Vikasana Samithi or other forums where the public had ample opportunity to complain. However, it is to be noted that the reports carried by the various newspapers produced by respondents 2 and 3 as Exts.R2(a) to Ext.R2(d) along with the complaints Exts.R2(e) to R2(j) give a reasonable indication that there were some complaints against the petitioner from the local WPC 29538/2011 8 public. Though it is true that no such complaints are reflected in Exts.P18 to P21 minutes produced by the petitioner, it cannot be denied that there in fact existed some complaints against the petitioner. In view of the existence of such complaints, it is only natural for the authorities to have decided to remove the petitioner from the scene of such complaints to a different place. Though Ext.P5 does not mention any particular reason for the transfer, the reason now put forth by respondents 2 and 3 cannot be dismissed lightly as part of the manipulations of the fifth respondent and others to justify Ext.P5 order of transfer. In view of the fact that there were complaints against the petitioner and the manner of her functioning at least from some quarters in the locality, I find that Ext.P5 is justified. Though allegations of malafides have been raised against the fifth respondent, I am not satisfied that the documents produced are sufficient to warrant a conclusion that the fifth respondent being antagonised by the refusal of the petitioner to accede to his request was instrumental in causing the issue of Ext.P5 transferring the petitioner. That would be stretching the presumption too far. At best Exts.P4 and P6 can only show that some names were submitted by the fifth respondent or by someone else on his behalf to the petitioner. It does not follow therefrom WPC 29538/2011 9 that he was antagonised against her or that he was instrumental in getting her transferred. The news item alleged to have been aired by a local TV channel reporting that the Kerala Congress (M) Committee of which the fifth respondent is a leader had demanded the transfer of the petitioner also is not sufficient to prove any animosity on the part of the fifth respondent. On the contrary, the said news item also shows that there were complaints against the petitioner. In view of the above, I am not satisfied that the allegations of malafides against Ext.P5 are substantiated. For the above reasons I do not find any grounds to interfere with Ext.P5 order of transfer. This writ petition is accordingly dismissed.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
P.S.to Judge
WPC 29538/2011 10