Kerala High Court
Sreejith Bappuji vs The Indian Railway Catering And Tourism ... on 17 August, 2020
Equivalent citations: AIRONLINE 2020 KER 547
Author: C.S.Dias
Bench: C.S.Dias
1
WPC 14524 OF 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942
WP(C).No.14524 OF 2020(M)
PETITIONER/S:
SREEJITH BAPPUJI
AGED 41 YEARS
EMPLOYEE NO.2486, JT.GENERAL MANAGER/CATERING,
IRCTC, AREA OFFICE, THIRUVANANTHAPURAM.
BY ADVS.
SRI.P.RAMAKRISHNAN
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.T.C.KRISHNA
SRI.C.ANIL KUMAR
SMT.ASHA K.SHENOY
SRI.PRATAP ABRAHAM VARGHESE
RESPONDENT/S:
1 THE INDIAN RAILWAY CATERING AND TOURISM CORPORATION
LIMITED
REGISTERED AND CORPORATE OFFICE, 11TH FLOOR,
STATEMAN HOUSE, B-148, BARAKHAMBA ROAD, NEW DELHI-
110001, REPRESENTED BY ITS CHAIRMAN AND MANAGING
DIRECTOR.
2 JOINT GENERAL MANAGER(HRD)
INDIAN RAILWAY CATERING AND TOURISM CORPORATION
LIMITED, REGISTERED AND CORPORATE OFFICE, 11TH
FLOOR, STATEMAN HOUSE, B-148, BARAKHAMBA ROAD, NEW
DELHI-110001,
3 THE DEPUTY GENERAL MANAGER,
SOUTH ZONE, INDIAN, RAILWAY CATERING AND TOURISM
CORPORATION LIMITED, 6A, THE RAIN TREE PLACE, NO.9
MC.NICHOLS ROAD, CHENNAI, 600031.
R1-3 BY SMT.ASHA CHERIAN, SC, IRCTC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.08.2020, THE COURT ON 17.8.2020 DELIVERED THE FOLLOWING:
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WPC 14524 OF 2020
C.S.DIAS, J.
======================
WP(C) No. 14524 of 2020
======================
Dated this the 17th day of August, 2020.
JUDGMENT
This writ petition is filed to quash Exts P7 and P9 orders, whereby the petitioner stands transfered from the area office of the first respondent Corporation (in short 'Corporation') in Thiruvananthapuram to its zonal office in Chennai.
2. The petitioner is working as Joint General Manager/Catering at the area office of the Corporation in Thiruvananthapuram. The petitioner had joined the Corporation as an Assistant Manager at its corporate office in New Delhi, in November, 2005. He was transferred to Thiruvananthapuram on 25.6.2008, and, thereafter, to Ernakulam on 13.3.2009. While working as Manager in Ernakulam, the petitioner was transferred and posted to Chennai on 29.5.2014. Thereafter, he was 3 WPC 14524 OF 2020 transferred back to Thiruvananthapuram on 13.4.2016 as per Ext P1 order.
3. The petitioner has averred that he was promoted as Joint General Manager and designated as Regional Manager, Thiruvananthapuram, with the responsibility of the entire Ernakulam region. Subsequently, another officer was transferred and posted as Regional Manager, without assigning any reasons, though the petitioner was carrying out the said duties. The petitioner was transferred to Thiruvananthapuram by Ext P1, on account of the serious medical conditions of his wife, who is an employee of the Kerala Tourism Development Corporation. While the petitioner was posted in Chennai, his wife was wrongly advised to undergo a surgery. Subsequently, she was diagnosed with renal failure and had to undergo kidney transplant. The petitioner was the donor. Accordingly, the petitioner sought for a transfer, and was posted as Deputy General Manager at the area office, Thiruvananthapuram on 18.7.2016. The petitioner's wife is susceptible to 4 WPC 14524 OF 2020 infections on account of reduced immunity. Recently, she underwent treatment at Aster Medicity, Kochi. The petitioner has also been diagnosed with urethral stricture. The petitioner has the risk of urinary infection as he has only one kidney. The petitioner had a relapse, three months after the surgery. The petitioner is under medication. Despite the petitioner's health issues and the serious medical condition of his wife, the petitioner has achieved the targets assigned to him by obtaining two awards for outstanding performance. The petitioner's presence with his family is of utmost importance. To the surprise of the petitioner, he has been served with Ext P7 order, transferring and posting him at the zonal office of the Corporation in Chennai.
4. Immediately on receipt of Ext P7 order, the petitioner had submitted Ext P8 representation before the first respondent, seeking his retention in Thiruvananthapuram. He had highlighted the health issues of his wife and himself. Thereafter, the Director/H.M of the Corporation asked the petitioner to 5 WPC 14524 OF 2020 attend the video conferencing. The petitioner submitted all his grievances. Nevertheless, the petitioner has been served with Ext P9 order, transferring him to Chennai. According to the petitioner, Exts P7 and P9 orders are illegal, arbitrary and unsustainable. The order of transfer is not to meet the administrative exigencies, as there are two Joint General Managers in the catering service of the Corporation in Chennai. The petitioner has worked for more than ten years from his home town and his request for retention at the present station is only account of medical exigencies. Therefore, Exts P7 and P9 orders may be quashed.
5. The learned Standing Counsel appearing for the respondents has filed a statement, inter alia, refuting the allegations in this writ petition. According to the respondents, the petitioner had joined the Corporation as an Assistant Manager/Catering in New Delhi on 28.11.2005. On the request of the petitioner, he was transferred and posted as Assistant Manager in Thiruvananthapuram, as evidenced by Annexure R1(A). 6 WPC 14524 OF 2020 The petitioner was promoted as Deputy General Manager (DGM) as per order dated 25.4.2014. Again, while working in Chennai, on 29.5.2014, the petitioner was transferred to Thiruvananthapuram , on his own request as per Ext P1 order. The petitioner was specifically accommodated as Deputy General Manager, Thiruvananthapuram, due to his medical condition. Later, the petitioner was promoted as Joint General Manager (Catering/E5) as per Annexure R1(B) order. Consequent to the joining as Regional Manager in Ernakulam, on 22.3.2019, though there was no requirement of a Senior Officer in Thiruvananthapuram, the petitioner was not disturbed and his post as Regional Manager was redesignated as Area Manager. Thus, despite the condition in Annexure R1(B), the petitioner was allowed to continue in Thiruvananthapuram till the end of June, 2020. Out of the petitioner's service in the Corporation, he has worked at his native place in Thiruvananthapuram and in the Ernakulam region for about ten years.
7WPC 14524 OF 2020
6. The respondents have further contended that as per Annexure R1(C), the sanctioned strength in the zonal office at Chennai is an Additional General Manager in catering, i.e., coordinating E6 and three Joint General Managers in catering, i.e., Mobile, Static and Procurement and Quality. In the office of the Corporation in Thiruvananthapuram, the sanctioned strength is only one officer. Annexure R1(C) catering circular substantiates the above staff strength. Though three Joint General Managers/Deputy General Mangers in the catering wing of the Corporation are required at its zonal office in Chennai, only one Joint General Manager is working there. The other two Joint General Managers working in the zonal office are in the Tourism cadre. Facts being so, the petitioner was transferred to the zonal office only on administrative exigencies. Moreover, even though the presence of E5 level officer was not required in Thiruvananthapuram area office, the petitioner was allowed to continue there on medical grounds.
8WPC 14524 OF 2020
7. The respondents have also contended that the Corporation is a self generating public sector undertaking. As there is no grant or subsidy from the Government of India, revenue has to be generated by the Corporation. The Corporation has to place its executives and manpower on need based requirement. Some accommodation has been given to petitioner and other employees on medical grounds. But it cannot be claimed as of right for eternity. The allegation made by the petitioner that there is no administrative exigencies in Chennai is incorrect. The business activities in Thiruvananthapuram can be managed by the Regional Office in Ernakulam. The Corporation has taken a lenient view in the case of the petitioner and some other personnels on their request, on medical grounds. Pursuant to Ext P9 order, the petitioner sought for two days leave and the same was granted. Thereafter, the writ petition was filed and the interim order of status- quo was passed. The respondents have prayed that the writ petition be dismissed.
9WPC 14524 OF 2020
8. Heard Sri.P.Ramakrishnan, the learned counsel appearing for the petitioner and Smt.Asha Cherian, the learned Standing Counsel appearing for the respondents.
9. The learned counsel appearing for the petitioner reiterated the contentions in the writ petition. He argued that Exts P7 and P9 orders have been passed disregarding the medical condition of the petitioner. Due to COVID-19 pandemic, and the comorbidities that are existent in the petitioner, it would be life threatening for the petitioner to face a transfer from Thiruvananthapuram to Chennai at this juncture. Despite the petitioner's medical condition, he has always achieved outstanding grades. The petitioner has to undergo another surgery, which has been postponed due to the pandemic. There are other two officers of the same rank as that of the petitioner, who are working at Palakkad and Tiruchirappalli. The Corporation can very well transfer either of the officers to Chennai and retain the petitioner in Thiruvananthapuram. The administrative exigencies projected by the respondents 10 WPC 14524 OF 2020 is not correct. There is no requirement for transferring the petitioner from Thiruvananthapuram to Chennai at this stage. Hence, the writ petition may be allowed.
10. The learned Standing Counsel appearing for the respondents, on the other hand, contended that Ext P7 transfer order was passed to meet the administrative exigencies of the Corporation. Immediately on receipt of Ext P7 order, the petitioner had submitted Ext P8 representation, to recall Ext P7 transfer order. Ext P8 representation was considered by the Joint General Manager/HRD of the Head office of the Corporation in New Delhi. The competent authority, after hearing the petitioner, found that the petitioner is due for periodic transfer; that there is shortage of officers at the zonal office in Chennai; that the petitioner is in his domicile district for the last four years; transfer is an integral part of service; that Senior Officers like the petitioner cannot be retained at one place; and that the petitioner's expertise is required to be utilized at the location of requirement, i.e., the zonal office in Chennai. Hence, 11 WPC 14524 OF 2020 there is no ground to modify Ext P7 order. The above order is self explanatory and justifies the stand of the Corporation and that the petitioner's transfer is to meet the administrative exigencies of the Corporation.
11. During the course of the hearing of the writ petition, on the submission made by the learned counsel for the petitioner, that the petitioner is apprehensive of moving to Chennai due to his comorbidities, this Court had put a suggestion to the Corporation to grant the petitioner some time to join in Chennai. The Corporation through its Standing Counsel had filed a statement stating that the petitioner can be granted a breathing time of four months to physically join the office in Chennai, but he has to discharge the duties of the zonal office in Chennai, through the online facility from Thiruvananthapuram office and has to physically join the office in Chennai on 4.12.2020. The learned counsel for the petitioner on getting instructions from the petitioner submitted that the petitioner needs at least three years time to join the office in Chennai. Thus, this Court 12 WPC 14524 OF 2020 proceeded to decide the case on its merits.
12. The scope of judicial review in matters relating to transfer and posting of employees, under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court.
13. The Hon'ble Supreme Court in Shilpi Bose and Others v. State of Bihar and Others [(1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows:
" 4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day trasnfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
14. Again, in Somesh Tiwari v. Union of India and 13 WPC 14524 OF 2020 Others [(2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows:
"20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds
- one malice in fact and the second malice in law."
15. In a recent decision reported in Union of India and another vs Deepak Niranjan Nath Pandit [(2020) 3 SCC 404] the Hon'ble Supreme Court held thus:
"3. x x x xxx xxx xxx In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view.
(emphasis given) 14 WPC 14524 OF 2020
16. On an evaluation of the ratio decidendi in the above cited precedents, it can be seen that the Hon'ble Supreme Court has delineated the two cardinal ingredients to be pleaded and proved in a challenge against an order of transfer, namely, malice and/or infraction of a statutory provision.
17. A reading of the averments in the writ petition substantiates that, other than for a bald assertion that Exts P7 and P9 are arbitrary and illegal and passed with total non-application of mind, there is no proof that Exts P7 and P9 orders are vitiated by malafides or passed in infraction of any statutory provision.
18. The trump-card of the petitioner's case is the medical condition of his wife and himself. Undisputedly, on receipt of Ext P7 order of transfer, the petitioner ventilated his grievances through Ext P8 representation. The competent authority of the Corporation considered the matter in detail, after affording the petitioner an opportunity of being heard. The competent authority by Ext P9 order has found that the petitioner is posted at 15 WPC 14524 OF 2020 the area office of the Corporation in Thiruvananthapuram for the last four years and that he is due for periodic transfer. It is also held that there is shortage of catering officers at the zonal office in Chennai, where the petitioner's expertise is required.
19. As there is no pleadings or proof with regard to the two ingredients to assail an order of transfer, the challenge in the writ petition has to necessarily fail. Again, as held in Deepak Niranjan Nath Pandit (cited supra), it is not for this Court to consider the hardships of the petitioner, but for the Corporation. So far as this Court is concerned sympathy cannot override law, and displace administrative exigencies. The competent authority of the Corporation by Ext P9 has exhaustively considered Ext P8 representation and given cogent reasons in confirming Ext P7 order. The petitioner who has been working at his domicile District for the last four years, cannot aspire to continue there for another three years, especially while working in a managerial post in a public sector company. Furthermore, it is found that the 16 WPC 14524 OF 2020 petitioner's expertise is required in Chennai. This Court does not find any ground to interfere with Exts P7 and P9 orders, in exercise of its powers under Article 226 of the Constitution of India.
20. On an overall appreciation of the facts of the case and the law declared by the Hon'ble Supreme Court in the aforecited precedents, I am of the considered opinion that there is no illegality in Exts P7 and P9 orders passed by the Corporation, which are passed to meet an incident of service. The writ petition fails and is hence dismissed.
Sd/-
C.S.DIAS
Sks/12.8.2020 JUDGE
17
WPC 14524 OF 2020
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF TRANSFER ORDER DATED
13.04.2016.
EXHIBIT P2 TRUE COPY OF DISCHARGE CERTIFICATE DATED
21.11.2016 ISSUED EVINCING THE
PETITIONERS DISCHARGE FROM ASTER
MEDICITY.
EXHIBIT P3 TRUE COPY OF THE DISCHARGE CERTIFICATE
DATED 28.12.2016 ISSUED EVINCING THE
DISCHARGE OF PETITIONERS WIFE FROM ASTER MEDICITY.
EXHIBIT P4 TRUE COPY OF CERTIFICATE DATED 27.06.2020 ISSUED BY ASTER MEDICITY EXHIBIT P5 TRUE COPY OF DISCHARGE CERTIFICATE ISSUED BY VEDANAYAGAM HOSPITAL, COIMBATORE.
EXHIBIT P6 TRUE COPY OF THE CONFIDENTIAL REPORT FOR THE YEAR 2018-19 OF THE PETITIONER.
EXHIBIT P7 TRUE COPY OF ORDER DATED 30.06.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF REPRESENTATION DATED 2.7.2020 FROM THE PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF ORDER DATED 15.07.2020 REJECTING THE PETITIONERS REPRESENTATION DATED 2.7.2020.