Kerala High Court
P.K.Unnikrishnan vs Kerala State Co-Operative Federation on 9 December, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933
WP(C).No. 34209 of 2011 (A)
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PETITIONER:
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P.K.UNNIKRISHNAN,ASSISTANT MANAGER,
MATSYAFED, OBM DIVISION,(OUT BOARD MOTOR DIVISION)
WILLINGDON ISLAND,KOCHI-3(UNDER ORDERS OF
TRANSFER TO MATSYAFED DISTRICT OFFICE,KASARAGOD).
BY ADVS.SRI.P.LEELAKRISHNAN
SRI.SHYAM KRISHNAN
RESPONDENT(S):
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1. KERALA STATE CO-OPERATIVE FEDERATION
FOR FISHERIES DEVELOPMENT,(MATSYAFED),REPRESENTED
BY ITS MANAGING DIRECTOR, KAMALESWARAM,MANACAUD PO
THIRUVANANTHAPURAM 695 009.
2. MANAGING DIRECTOR,KERALA STATE
CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT
(MATSYAFED),KAMALESWARAM,MANACAUD PO
THIRUVANANTHAPURAM 695 009.
3. K.SOMARAJAN,MANAGING DIRECTOR,
KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES
DEVELOPMENT,(MATSYAFED),KAMALESWARAM
MANACAUD PO, THIRUVANANTHAPURAM 695 009.
4. T.V.REMESHAN,MANAGER,MATSYAFED,
KOZHIKODE DISTRICT OFFICE, WEST HILL, KOZHIKODE-5
(FORMER MANAGER,MATSYAFED OBM DIVISION(OUTBOARD
MOTOR DIVISION) WILLINGDON ISLAND,KOCHI-3).
5. MANAGER,OBM DIVISION(OUTBOARD
MOTOR DIVISION) WILLINGDON ISLAND,KOCHI-3.
6. P.G.UNNIKRISHNAN, NOW WORKING AS
ASSISTANT MANAGER,MATSYAFED OBM DIVISION
(OUTBOARD MOTOR DIVISION), WILLINGDON ISLAND
KOCHI-3).
R1,2 & 5 BY SRI.GEORGE POONTHOTTAM, SC,MATSYAFED
R3, R4 BY SRI.GEORGE POONTHOTTAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VK
WP(C).No. 34209 of 2011 (A)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXHIBIT P1 THE TRUE COPY OF THE ORDER NO.MFED/E1/1083/10 DATED
9/12/2011 TRANSFERRING THE PETITIONER FROM MATSYAFED OBM DIVISION ,
WELLINGDON ISLAND ,KOCHI TO MATSYAFED DISTRICT OFFICE,KASARAGOD.
EXHIBIT P2 THE TRUE COPY OF THE ORDER SANCTIONING COMMUTATION OF HALF
DAY LEAVE FOR 8 DAYS FROM 25/4/2011 TO 2/5/2011 TO THE PETITIONER.
EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK OF
THE PETITIONER SHOWING COMMUTATION OF HALF DAY LEAVE FOR 8 DAYS FROM
25/4/2011 TO 2/5/2011
EXHIBIT P4 THE TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S
SERVICE BOOK SHOWING DETAILS OF HIS EARNED LEAVE AND HALF PAY LEAVE.
EXHIBIT P5 THE TRUE COPY OF THE DETAILS OF THE COUNTERFOILS OF THE
CHEQUES OPERATED DURING THE PERIOD FROM 25/4/2011 TO 2//5/2011 WHEN THE
PETITIONER WAS ON LEAVE
EXHIBIT P6 THE TRUE COPY OF THE REPORT OF THE INSPECTION CONDUCTED ON
17//7/2010 AT OBM SERVICE CENTRE,VIZHINJAM.
EXHIBIT P7 THE TRUE COPY OF THE REPORT OF THE INSPECTION CONDUCTED ON
29/10/2010 AT OBM SERVICE CENTRE,NEENDAKARA.
EXHIBIT P8 THE TRUE COPY OF THE TA BILL RELATING TO THE INSPECTION
CONDUCTED BY THE PETITIONER AT OBM SERVICE CENTRE,TANUR.
EXHIBIT P9 THE TRUE COPY OF THE TA BILL RELATING TO THE INSPECTION
CONDUCTED BY THE PETITIONER AT OBM SERVICE CENTRE ,VIZHINJAM.
EXHIBIT P10 THE TRUE COPY OF THE TA BILL RELATING TO THE INSPECTION
CONDUCTED BY THE PETITIONER AT OBM SERVICE CENTRE ,NEENDAKARA.
EXHIBIT P11 THE TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE
MEETING OF THE DIRECTOR BOARD OF THE MATSYAFED ON 16/12/2011 RELATING
TO THE REVOCATION OF ALL TRANSFER ORDERS MADE AFTER 7/9/2011
EXHIBIT P12. PHOTOSTAT COPIES OF THE RELEVANT PAGES OF THE MINUTES BOOK
OF THE MEETING DATED 16.12.2011 OF THE DIRECTOR BOARD OF MATSYAFED
EXHIBIT.P13 PHTOSTAT COPIES OF THE ATTENDANCE REGISTER OF MATSYAFED OBM
DIVISION (OUTBOARD MOTOR DIVISION), WELLINGDON ISLAND, COCHIN 3 FOR THE
PERIOD FROM JANUARY 2011 O OCTOBER 2011.
VK
WP(C).No. 34209 of 2011 (A)
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EXHIBIT.P14 PHOTOSTAT COPIES OF THE COUNTERFOILS OF THE CEQUES SIGNED
AND OPERATED DURING THE PERIOD FROM 25.02.2010 TO 20.12.2011.
EXHIBIT P15. PHOTOTAT COPIES OF THE DESPATCH REGISTER OF MATSYAFED OBM
DIVISION (OUTBOAD MOTOR DIVISION), WELLINGDON ISLAND, COCHIN 3 DURING
THE PERIOD FROM 17.08.2011 TO 14.09.2011
RESPONDENTS' EXHIBITS :
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EXHIBIT R4 (A). COPY OF THE ORDER NO.MFED/MKTG/M1/1960/06
DATED 5.2.2010.
EXHIBIT R4 (B). COPY OF THE ORDER NO.MFED/MKTG/M1/1960/2006
DATED 18.9.2010.
EXHIBIT R4 (C). COPY OF THE REPORT OF THE MATSYAFED VYASA STORE
AMBALAPUZHA
EXHIBIT R4 (D). COPY OF THE REPORT OF THE MATSYAFED VYASA STORE
AMBALAPUZHA.
EXHIBIT R4(E). COPY OF THE REPORT NO.OBMD/ESTT/11-12 DATED 29.8.2011.
EXHIBIT R4(F). COPY OF THE APPLICATION FOR LEAVE DATED 3.5.2011 GIVEN
BY THE PETITIONER.
/ TRUE COPY /
P.A. TO JUDGE
VK
P.N.RAVINDRAN, J.
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W.P.(C) No. 34209 OF 2011
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Dated this the 31st day of January, 2012
J U D G M E N T
The petitioner, an Assistant Manager in the service of the Kerala State Co-operative Federation for Fisheries Development, otherwise known as the Matsyafed, has filed this writ petition challenging Ext.P1 order dated 9.12.2011 passed by the second respondent, transferring him from the office of the Matsyafed at Willington Island in Kochi to the district office of Matsyafed in Kasaragod district. By that order, the sixth respondent who was working in the Kasaragod district office was transferred and posted as the petitioner's substitute at Kochi.
2. The petitioner challenges the order of transfer on many grounds. The first ground is that the Managing Director who issued the order of transfer is not competent to transfer the petitioner and therefore the order is liable to be set aside as an order passed by an incompetent authority. Relying on Ext.P11 minutes of the meeting of the Board of Directors of the Matsyafed that met on 16.12.2011 it is contended that the Board of Directors resolved to cancel all orders of transfer issued after 7.9.2011 and therefore the order of transfer stands revoked. The next contention raised is that Ext.P1 order of transfer is the outcome of a concerted attempt by the Managing Director, who is impleaded in his personal capacity as the third WPC No.34209/2011 2 respondent in the writ petition and the Manager in the Kochi office, where the petitioner was working at the time of transfer, who is impleaded as the fourth respondent herein. It is stated that the report dated 29.8.2011 referred to in Ext.P1, a copy of which is produced as Ext.R4 (e) along with the counter affidavit filed by the fourth respondent, was sent by the fourth respondent through unofficial channels to the Managing Director raising untenable allegations with a view to transfer the petitioner. Yet another contention raised is that the order of transfer is punitive in nature and therefore on that score also it is liable to be set aside. The petitioner has also raised the contention that an order of transfer towards the end of the academic year would cause serious prejudice to his daughter, a final year B.Com student and his son, a 10th standard student, as he would have to shift his residence from Kochi to Kasargod along with his family members.
3. The second respondent Managing Director has sworn to a counter affidavit dated 13.1.2012 on his own behalf and on behalf of respondents 1 and 5. In paragraph 5 thereof he has stated that Ext.P1 order is not punitive in nature, that on receipt of the report referred to in Ext.P1, the Matsyafed decided to initiate an enquiry into the allegations leveled therein and therefore in such circumstances he thought it fit to keep the petitioner as well as the Manager who WPC No.34209/2011 3 submitted that report; the fourth respondent herein, away from Kochi office and transferred the petitioner to Kasargod and the Manager to Calicut. It is stated that as a result of the petitioner availing leave frequently, cheques could be issued to parties supplying goods only after the petitioner signed the cheques on the expiry of the leave. The counter affidavit proceeds to state that the Managing Director is competent to transfer employees of the Matsyafed and therefore there is no merit in the contention that the order of transfer is one issued by an incompetent person. As regards Ext.P11 resolution it is contended that the meeting of the Managing Committee held on 16.12.2011 was not convened after a notice in terms of the bye-laws was given to the ex-officio members of the Board of Directors and therefore the decision evidenced by Ext.P11 can have no effect.
4. The petitioner has filed a reply affidavit dated 22.1.2012 reiterating the contentions raised in the writ petition and contending that his absence on leave did not cause any inconvenience to the functioning of the office and that the signing and issuance of cheques was never delayed due to any fault of his. The fourth respondent has filed a counter affidavit dated 16.1.2012 stating inter alia that the absence of the petitioner resulted in delay in effecting payment for goods and every time when payments had to be made by cheques, WPC No.34209/2011 4 which have to be signed by the Manager as well as the petitioner, phone calls had to be made to ascertain his whereabouts and to get his signature. The fourth respondent has along with the counter affidavit produced as Ext.R4(e), the report dated 29.8.2011 sent by him to the Managing Director which in turn is referred to in Ext.P1 order of transfer. The petitioner has filed a reply affidavit disputing the averments made by the fourth respondent in his counter affidavit.
5. I heard Sri.Shyam Krishnan, learned counsel appearing for the petitioner and Sri.George Poonthottom, learned counsel appearing for respondents 1, 2, 4 and 5. Sri.Shyam Krishnan, learned counsel appearing for the petitioner contended relying on clause 17(XIII) of the bye laws of the Matsyafed that the Board of Directors alone is competent to appoint officers and staff of the Matsyafed, to punish them and to dismiss them from service and therefore the Managing Director, an officer appointed by the Board of Directors is not empowered to transfer employees of the Matsyafed. The learned counsel also contended that the report referred to in Ext.P1 order was not sent through official channels, that it was not produced by respondents 1, 2 and 5 along with their counter affidavit but only by the fourth respondent and that in the light of the facts set out in the writ petition and in the reply affidavit, the petitioner is justified in WPC No.34209/2011 5 contending that the report referred to in Ext.P1 order was created with a view to transfer the petitioner. The learned counsel also contended that the petitioner was not absent unauthorisedly, as alleged in Ext.P1 order, that he had not failed to carry out his duties as alleged therein and that the issuance of cheques and payment for goods supplied were never delayed on account of the fact that he had availed leave. The learned counsel for the petitioner contended that the leave applied for was always sanctioned and as and when inspection was ordered, it was carried out and therefore no reliance can be placed on the contents of Ext.R4(e) report to justify the order of transfer. The learned counsel lastly contended that order of transfer which is rested on allegations of mis-conduct, which has not been established or proved in an enquiry, is punitive in nature and therefore on that score also the order is liable to be set aside. Reliance was placed on the decisions of this Court in Balan v. District Panchayat Officer, Malappuram (1975 KLT 375), Pushpakaran v. Chairman, Coir Board (1978 KLT 539) and the decision of the Apex Court in G.Sadanandan v. State of Kerala (1966 (3) SCR 590) more particularly paragraph 19 thereof, to contend for the position that the order of transfer in the instant case being one founded on a report maliciously submitted by the fifth respondent, it is liable to be set aside. It is contended that even WPC No.34209/2011 6 assuming that the Managing Director is competent to order transfer, he ought to have decided whether the allegations therein are true or tenable before ordering the transfer.
6. Per contra, Sri.George Poonthottom, learned counsel appearing for respondents 1, 2, 4 and 5 contended relying on the staff regulations of the Matsyafed which were approved by the Government as per G.O.(Ms) No.23/2000/F&PD dated 7.11.2000, that the Managing Director is competent to transfer employees and to post them at such place as he deems fit and that the order of transfer is within the competence of the Managing Director. The learned counsel for the respondents contended that the order of transfer was passed transferring the petitioner and the fourth respondent herein so as to keep them away from the office at Kochi for the purpose of holding an enquiry into the allegations leveled against the petitioner. The learned counsel for the respondents contended that the petitioner who entered service in the Matsyafed on 27.6.1988 and has completed 26 years of service has worked in Ernakulam District except for a short span of five months, that on receipt of the report referred to in Ext.P1, the Managing Director thought it fit that some changes should be brought about in the office at Kochi and therefore he decided to transfer the petitioner as well as the complainant.
WPC No.34209/2011 7
7. I have considered the submissions made at the Bar by the learned counsel on either side. It is now well settled by a series of decisions of the Apex Court including the decision in State of U.P. v. Gobardhan Lal (2004 (11) SCC 402) that an order of transfer can be interfered with only if it is passed by an incompetent authority or is passed in violation of any statutory provisions or is proved to be vitiated by mala fides. In the instant case, the petitioner challenges the order of transfer inter alia on the ground that the Managing Director of Matsyafed is incompetent to transfer him. Reliance is placed on clause 17(XIII) of the bye laws of the Matsyafed in support of the said contention. The stand taken by the respondents on the other hand is that as per the staff regulations of the Matsyafed which were approved by the Government on 7.11.2000, the Managing Director is competent to transfer employees.
Regulation 1 in Chapter II of the Staff Regulations of the Matsyafed reads as follows:
1. General Conditions of Service i. The Board shall have the absolute right to classify the posts fix or change their designations, scales of pay, grades or qualifications, with prior approval of Registrar/Government.
ii. The Managing Director/General Manager will be competent to regulate the working hours of the employees of the Federation.
Iii. Every employee shall serve the Federation in its business in such capacity and `at such place' and such manner as directed by the Managing Director/ General Manager or an Officer authorized by him WPC No.34209/2011 8 and shall devote his whole time attention to promote the interest of the Federation in the case of the Managing Director/General manager, he shall abide by the decisions of the Board."
8. Regulation 1(iii) stipulates that every employee shall serve the Federation in its business in such capacity and at such place and such manner as directed by the Managing Director/ General Manager or an Officer authorised by him and shall devote his whole time attention to promote the interest of the Federation. Though the learned counsel for the petitioner contended this provision in the regulations does not empower the Managing Director to transfer an employee, I am of the opinion that the said contention is without any merit. Bye-law 23(iv)(e) of the byelaws empowers the Managing Director to supervise and control the employees of the Matsyafed subject to the laws. Bye-law 23(iv)(e) reads as follows:
"
."
9. Bye-law 23(iv)(e) empowers the Managing Director to supervise and control the employees of the Matsyafed subject to the laws which in the context will include the staff regulations also. From Regulation 1(iii) extracted above, it is crystal clear that every employee of the Matsyafed is bound to serve at such place as directed by the Managing Director meaning thereby that the Managing Director is empowered to transfer and post employees at such place as he WPC No.34209/2011 9 deems fit. I therefore find no merit in the contention that the Managing Director is not competent to transfer the petitioner.
10. I shall now consider whether the order of transfer is bad for the reason that it is punitive in nature. Ext.R4(e) report referred to in Ext.P1 refers to various acts of commission and omission on the part of the petitioner. It is a report submitted by the petitioner's immediate superior officer to the Managing Director of the Matsyafed. The Managing Director has in his affidavit stated that in view of the contents of the report dated 29.8.2011 a decision was taken to bring about changes in the office at Kochi and to conduct a detailed enquiry and for that purpose it was decided to transfer the petitioner and the complainant concerned namely the fifth respondent. Ext.P1 order of transfer also states that the petitioner is being transferred out for the smooth functioning of the office and to maintain discipline. A learned single Judge of this Court has in Ramachandran Nair v. Director of Training (ILR 1992 (3) Kerala 149) held that a transfer intended to ensure efficiency in administration and maintenance of discipline cannot be interfered with merely for the reason that the transfer was necessitated on account of the misbehavior of the employee or on the ground that the dominant motive is to punish the employee. From the materials placed on record by the respondents and even going by the WPC No.34209/2011 10 statements in Ext.P1, I am of the opinion that if the Managing Director of Matsyafed thought it fit and proper that the petitioner who has been working continuously for long number of years in the office at Kochi should be transferred out with a view to increase the efficiency in administration and maintenance of discipline, it cannot be said that merely because some allegations were raised against him, the order is punitive in nature. The Managing Director has in paragraph 5 of the counter affidavit filed by him stated that it was decided to conduct an enquiry into various aspects of the report. Such being the situation, merely because of the fact that before he was transferred out certain complaints had been raised against him, is not a reason to hold that until and unless the charges are proved he should not be transferred out to another office.
11. That takes me to the question whether the order of transfer is mala fide. Apart from stating that Ext.P1 order is the outcome of a concerted effort by the Managing Director and the Manager who are impleaded in their personal capacity as respondents 3 and 4 in the writ petition, the petitioner has not given any reason why they should entertain a grudge against him or raise false allegations against him. The only reason stated by the petitioner in respect of the allegations of mala fides is that though the report WPC No.34209/2011 11 submitted by the fourth respondent is dated 29.8.2011, the order of transfer was issued on 9.12.2011, after waiting for the supersession of the Board of Directors and without enquiring into the correctness of the allegations referred to in the report. It is also contended that the order of transfer was issued after a long interval of four months. But at the same time the petitioner has also alleged that the Managing Director did not apply his mind and examine whether the allegations are true and without such an exercise, transferred out the petitioner. As stated earlier, the Managing Director has in the counter affidavit stated that a decision has been taken to conduct an enquiry into the allegations levelled against the petitioner in Ext.P1 and to streamline the administration of the Kochi office and to maintain discipline. It is evident from the interval of time that lapsed between the submission of the report and the order of transfer, that the Managing Director did not act with haste but had considered the report and was satisfied that an enquiry should be conducted into the allegations levelled against him. The Managing Director has also stated that the complainant was also transfered out from Kochi. In such circumstances, I find no reason to hold that Ext.P1 is the outcome of a concerted effort by respondents 3 and 4 to transfer the petitioner from Kochi.
12. That takes me to the question whether in view of Ext.P11 WPC No.34209/2011 12 decision the order of transfer has ceased to be effective. It is relevant in this context to note that the Managing Committee of Matsyafed was superseded by the Registrar of Fisheries Co-operative Societies on 7.9.2011. That order was challenged in this Court by filing W.P.(C) No. 24401 of 2011. The term of the Managing Committee that was superseded was to expire on 16.12.2011. By judgment delivered on 12.12.2011, this Court allowed the writ petition, quashed the order of supersession and directed the respondents therein to handover the administration of Matsyafed to the Board of Directors. It was thereafter that Ext.P11 decision was taken to revoke and cancel all transfer orders issued after 7.9.2011. The Board of Directors of Matsyafed consists of 15 elected members and 7 ex-officio members including the Registrar of Fisheries Co-operative Societies. As per bye- law 15(h) at least seven days notice should be given to the members of the Managing Committee before a meeting of the Managing Committee is held. Under bye-law 15(d) in the event of an emergency, the meeting can be convened after complying with the stipulations in bye-law 15(b), but before convening such a meeting the Managing Director will have to circulate the agenda among the members of the Managing Committee and the decision taken in that meeting will have to be placed in the next meeting of the Managing WPC No.34209/2011 13 Committee. The petitioner has not produced any material to show that the notice of the meeting held on 16.12.2011 was served on all the members of the Managing Committee including the ex-officio members. The petitioner has also not produced any material to show that the Managing Director had circulated the agenda among the members including the ex-officio members for the purpose of holding a meeting on 16.12.2011, waiving the stipulation regarding seven days notice in bye-law 15(h). In such circumstances, I am of the opinion that no reliance can be placed on the decision taken by the elected members of the Managing Committee who met on 16.12.2011 without notice to the ex-officio members of the Managing Committee, to cancel all orders of transfer issued after 7.9.2011. That apart, the petitioner has no case that pursuant to Ext.P11 resolution the fourth respondent was brought back to Kochi or that other employees of the Matsyafed who were transferred out in the interregnum have been transferred back.
For the reasons stated above, I hold that there is no merit in the challenge to Ext.P1. The writ petition fails and is accordingly dismissed. No costs.
P.N.RAVINDRAN, (JUDGE) vps WPC No.34209/2011 14 WPC No.34209/2011 15