Kerala High Court
P.V.Dhanalakshmi vs The Kerala State Co-Operative on 17 December, 2010
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
WEDNESDAY, THE 11TH DAY OF APRIL 2012/22ND CHAITHRA 1934
WP(C).No. 6809 of 2012 (A)
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PETITIONER:
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P.V.DHANALAKSHMI,
MANAGER, MATSYAFED DISTRICT OFFICE,
KANNUR- 670 001 ON TRANSFER TO THE DISTRICT OFFICE,
MALAPPURAM.
BY ADVS.SRI.P.K.VIJAYAMOHANAN,
SRI.ALAN PAPALI,
SRI.GILBERT GEORGE CORREYA,
SRI.NISHIL.P.S.
RESPONDENTS:
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1. THE KERALA STATE CO-OPERATIVE
FEDERATION FOR FISHERIES DEVELOPMENT LIMITED
(MATSYAFED), KAMALESWARAM. THIRUVANANTHAPURAM- 695 009,
REPRESENTED BY ITS MANAGING DIRECTOR.
2. SRI.K.P ADAMKUTTY,
MATSYAFED PRAWN HATCHERY,
MOPLA BAY, KANNUR- 670 001
R1 BY SRI.GEORGE POONTHOTTAM, S.C,
SRI.RAKESH ROSHAN, S.C.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 11-04-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).NO.6809/2012-A:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: TRUE COPY OF THE MEDICAL CERTIFICATE NO.7706 DATED 17.12.2010
ISSUED BY SREE GOKULAM MEDICAL COLLEGE & RESEARCH
FOUNDATION,VENJARAMOOD.
EXT.P2: TRUE COPY OF THE DISCHARGE SUMMARY DATED 28.12.2010 ISSUED BY
SREE GOKULAM MEDICAL COLLEGE & RESEARCH FOUNDATION,
VENJARAMOOD.
EXT.P3: TRUE COPY OF THE DISCHARGE BILL DATED 23.01.2011 ISSUED FROM
SANTHIGIRI SIDDA MEDICAL COLLEGE HOSPITAL.
EXT.P4: TRUE COPY OF THE DISCHARGE SUMMARY DATED 25.01.2011 ISSUED
FROM THE SPECIALISTS HOSPITAL,ERNAKULAM.
EXT.P5: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 15.09.2011 ISSUED
FROM THE SPECIALISTS HOSPITAL, ERNAKULAM.
EXT.P6: TRUE COPY OF THE DISCHARGE SUMMARY DATED 05.09.2011 ISSUED
FROM THE SPECIALISTS HOSPITAL ERNAKULAM.
EXT.P7: TRUE COPY OF THE ORDER NO.M.FED E1/1083/10 DATED 30.09.2011 OF
THE 1ST RESPONDENT.
EXT.P8: TRUE COPY OF OFFICE ORDER NO.M.FED/E1/1083/10 DATED 17.03.2012
OF THE 1ST RESPONDENT.
EXT.P.9: TRUE COPY OF THE MEDICAL CERTIFICATE DTD. 31/03/2012 ISSUED
FROM THE TELLICHERRY CO-OPERATIVE HOSPITAL.
EXT.P.10: TRUE COPY OF THE EXPLANATION NO.M'FED/KNR/OM/2011-12 DTD.
28/11/2011 SUBMITTED BY THIS DEPONENT TO EXT.R1.(E) MEMO.
EXT.P.11: TRUE COPY OF THE ORDER NO.M'FED/KNR/D/DR/159/09 DTD. 05/08/2010
ISSUED BY THE DISTRICT MANAGER.
EXT.P.12: TRUE COPY OF THE COMMUNICATION NOM'FED/KNRC/3861/02 DTD.
03/03/2012 ISSUED TO THE MEMBER SOCIETIES.
EXT.P.13: TRUE COPY OF THE COMMUNICATION NO. M'FED/KNR/D/DR/159/09 DTD.
08/03/2012 ISSUED BY THIS DEPONENT.
RESPONDENTS' EXHIBITS:
EXT.R1.A: TRUE COPY OF THE OFFICE ORDER NO.MFED/E1/481/09 DTD. 29/12/2010.
EXT.R1.B: TRUE COPY OF THE OFFICE ORDER NO. MFED/E1/481/09 DTD. 13/10/11.
W.P.(C).NO.6809/2012-A:
EXT.R1.C: TRUE COPY OF THE FITNESS CERTIFICATE DTD. 20/09/2011.
EXT.R1.D: TRUE COPY OF REPORT SUBMITTED TO MANAGING DIRECTOR.
EXT.R1.E: TRUE COPY OF THE DIRECTION NO.MFED/E1/4534/11 DTD. 17/11/2011
ISSUED TO THE PETITIONER.
EXT.R1.F: TRUE COPY OF THE REPORT PREPARED BY THE DEPUTY GENERAL
MANAGER (E&MC) DTD. 14/03/12.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
P.N.RAVINDRAN, J.
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WP(C)No. 6809 of 2012
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Dated this the 11th day of April, 2012
J U D G M E N T
The petitioner who is presently working as Manager in the Kerala State Co-operative Federation for Fisheries Development Ltd., otherwise known as the MATSYAFED, has filed this writ petition challenging Ext.P8 order issued by the Managing Director of the MATSYAFED on 17.3.2012, transferring her from the District Office of the MATSYAFED at Kannur to the District Office of the MATSYAFED at Malappuram, against an existing vacancy. The brief facts of the case are as follows:
2. The petitioner entered service as Project Officer in the MATSYAFED on 1.2.1986. In course of time she was promoted to the category of Assistant Manager, Deputy Manger and as Manager with effect from 3.3.2003. Upon promotion to the category of Manager, she was posted in the District Office of the MATSYAFED at Kozhikode where she was then working. She continued in the District Office at Kozhikode till 1.11.2004. She was thereafter posted as Manager in the District Office at Kannur where she worked for three years. With effect from 1.6.2007, she was transferred to the Head Office of the MATSYAFED at Thiruvanathapuram where she worked till 23.2.2011, WP(C)No. 6809 of 2012 -2- when she was tranferred to the Net Factory at Kannur. While the petitioner was working as Manager in the Net Factory at Kannur, she was transferred and posted as Manager in the District Office at Kannur by Ext.P7 order dated 30.9.2011, when the incumbent holding the post was transferred and posted as Manager in the District Office of the MATSYAFED at Malappuram. It was while the petitioner was working as Manager in the District Office of the MATSYAFED at Kannur that the impugned order was passed, transferring her to the District Office of the MATSYAFED at Malappuram. The second respondent who was working as Manager in the MATSYAFED Prawn Hatchery at Mopla Bay in Kannur was transferred and posted in the petitioner's place. He was also directed to hold full additional charge of Manager, MATSYAFED Prawn Hatchery, Kannur until further orders. In this writ petition the petitioner challenges Ext.P8 and seeks the following reliefs:
(i) To issue a writ of certiorari quashing Ext.P8 to the extent it orders for the transfer of the petitioner from Kannur to Malappuram;
(ii) To issue an interim direction directing the respondents to allow the petitioner to continue as the District Manager, Kannur;
(iii) To declare that the transfer of the petitioner is not in the interest of service and therefore liable to be set aside.
3. It is stated that while the petitioner was working as Manger in the Head Office of the MATSYAFED at Thiruvananthapuram, she had a fall which resulted in the dislocation of her left shoulder and fracture of WP(C)No. 6809 of 2012 -3- the right patella and thereupon, she underwent treatment as an inpatient in Sree Gokulam Medical College and Research Foundation, Venjaramoodu, Thiruvananthapuram during the period from 17.12.2010 to 28.12.2010 and was discharged on 28.12.2010. It is stated that at the time of discharge, Ext.P1 medical certificate was issued to the effect that absence from duty for a period of 90 days is absolutely essential for restoration of her health and that the treatment undergone by the petitioner as an inpatient in Sree Gokulam Medical College and Research Foundation is set out in Ext.P2 discharge certificate. The petitioner states that after she was discharged from Sree Gokulam Medical College and Research Foundation she had undergone treatment in Santhigiri Siddha Medical College Hospital during the period from 28.12.2010 to 23.1.2011 as can be seen from Ext.P3 discharge certificate and later in Specialist Hospital, Ernakulam during the period from 24.1.2011 to 29.1.2011 as can be seen from Ext.P4 discharge certificate, that she again underwent another course of treatment at Specialist Hospital, Ernakulam during the period from 2.9.2011 to 5.9.2011 as can be seen from Ext.P6 discharge certificate and was on leave for a period of 18 days from 2.9.2011 on that ground, that she thereafter rejoined duty on 21.9.2011, that shortly thereafter, by Ext.P7 order passed on 30.9.2011 she was transferred from the Net Factory at Kannur to the District Office of the MATSYAFED at Kannur and the impugned order was thereafter passed on WP(C)No. 6809 of 2012 -4- 17.3.2012 transferring her from Kannur to Malappuram. The principal contention raised by the petitioner is that the order of transfer has been passed with ulterior motives and with a view to victimize her, for her association with the MATSYAFED Employees Federation of which she is the Vice President, since October 2011. It is stated that she has been transferred on extraneous considerations and irrelevant grounds ignoring the fact that she had undergone extensive medical treatment for fracture of the left shoulder and the right knee and that as a result of the said injuries, notwithstanding the extensive treatment she is not able to move about freely and has to depend on private transport for her travel. It is contended that as she was transferred back to Kannur only in February 2011, the order of transfer passed within one year thereafter, is liable to be set aside. It is stated that the petitioner's husband is employed in the Kannur branch of the Canara Bank, that she and her husband are residing at Thalassery which is 21 kilometres away from Kannur and in such circumstances, having regard to her medical condition, she ought to have been retained at Kannur.
4. The Managing Director of the MATSYAFED has sworn to a counter affidavit dated 27.3.2012. In paragraph 2 thereof it is contended that if the petitioner is aggrieved by the order of transfer she ought to have moved the Co-operative Arbitration Court constituted under the Kerala Co-operative Societies Act, instead of filing a writ petition in this Court and that in view of the alternate WP(C)No. 6809 of 2012 -5- remedy available to her, the writ petition is liable to be dismissed as not maintainable. On the merits it is contended that the petitioner has except for a brief period of three years when she was posted in the Head Office of the MATSYAFED at Thiruvanathapuram, worked only at Kannur. Relying on Ext.R1(d) report submitted by the Deputy General Manager (Finance), it is contended that notwithstanding the injuries sustained by the petitioner in December 2010, she was on tour during March 2011, April 2011, May 2011, June 2011 and July 2011 for a period of 20 days, that she is travelling daily to Kannur from her residence at Thalassery and back and therefore she cannot be heard to contend that she is not fit to travel to Malappuram. It is also stated that upon receipt of Ext.R1(d) report, Ext.R1(e) letter dated 17.11.2011 was sent calling for the petitioner's explanation in respect of the matters enumerated therein, that on the basis of the report an order of suspension should have been passed and an enquiry held, but taking a lenient view, the petitioner was transferred to Malappuram. It is also stated that though the petitioner assumed charge as Manager in the District Office at Kannur on 18.10.2011, she has not taken any effective action to disburse debt relief to fishermen, that the Deputy General Manager (E&MC) had submitted Ext.R(1)(f) report dated 14.3.2012 to that effect and therefore, for that reason also, it was felt that the continuance of the petitioner at Kannur will adversely affect implementation of schemes for welfare of fishermen. Various other WP(C)No. 6809 of 2012 -6- contentions are also raised in the counter affidavit. The petitioner has filed a reply affidavit dated 1.4.2012 wherein, interalia it is contended that the petitioner had submitted Ext.P10 reply denying and refuting the allegations in Ext.R1(d) report and Ext.R1(e) show cause notice and that she had undertaken tours pursuant to the oral directions issued by the Managing Director.
5. I heard Sri.P.K.Vijayamohanan, learned counsel appearing for the petitioner and Sri. George Poonthottam, learned counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. Though the second respondent has been served, he has not entered appearance or filed a counter affidavit. Ext.P8 order of transfer discloses that it was passed upon receipt of a tour report dated 13.3.2012 submitted by Sri.G.D.Rajiv, Additional General Manager. Though a copy of the report is not placed on record, a copy was made available to me for perusal by the learned standing counsel appearing for the MATSYAFED. In that report Sri.G.D.Rajiv, Additional General Manager has reported that there appears to be serious internal problems in Malappuram District Office and that there is need to bring in certain changes. He had also suggested that a senior person may be posted at Malappuram and the present Manager may be posted elsewhere, where there may not be much need for team work and he may also be sent for training on inter personal relationship. The said report was submitted after a review of the WP(C)No. 6809 of 2012 -7- performance of the District Office of the MATSYAFED at Malappuram. As on the date of the submission of the report, Sri.P.A Sasikumar was holding charge of Manager of the MATSYAFED District Office at Malappuram. By the impugned order, he was transferred and posted as Assistant Manager in the MATSYAFED District Office at Kannur and the petitioner was posted as Manager in the MATSYAFED District Office at Malappuram against the existing vacancy.
6. Sri.P.K.Vijayamohanan, learned counsel appearing for the petitioner contended that the Additional General Manager had not in his report dated 13.3.2012 recommended that the petitioner should be transferred and posted at Malappuram, that he had only recommended that a senior person should be posted at Malappuram, that there are persons who are senior to the petitioner in the category of Manager and therefore no reliance can be placed on the report dated 13.3.2012 to justify the order of transfer. The learned counsel appearing for the petitioner contended that the fact that the petitioner had sustained serious injuries as a result of a fall in December 2010, that she had undergone extensive treatment in three different hospitals that she was also granted medical leave for the purpose are not disputed, that the petitioner had undertaken tours only pursuant to the oral directions issued by the Managing Director and therefore, the mere fact that she had under taken tours pursuant to the oral directions issued by the Managing Director, cannot be a reason to transfer her WP(C)No. 6809 of 2012 -8- from Kannur to Malappuram ignoring her medical condition. Per contra, Sri.George Poonthottam, learned counsel appearing for MATSYAFED contended that as the petitioner is a senior Manager having more than 7 years of experience as Manager, the decision taken by the Managing Director to transfer the petitioner from Kannur to Malappuram in the light of the suggestions made by the Additional General Manager in his report dated 13.3.2012, cannot be taken exception to. The learned counsel for the MATSYAFED also contended that apart from the said fact, the Managing Director had also taken into account various facts set out in Ext.R1(d) report submitted by the Deputy General Manager (Finance) while ordering the petitioner's transfer, that the transfer order was passed with a view to ensure efficiency in administration and to maintain discipline and therefore, the order of transfer is not liable to be interfered with. Reliance was placed on the decision of a learned single Judge of this Court in C.Ramachandran Nair v. Director of Training and another (ILR 1992 (3) Kerala 149). Relying on the decision of the Apex Court in State of U.P and others v. Gobardhan Lal ((2004) 11 SCC 402), the learned counsel appearing for the MATSYAFED contended that an order of transfer can be interfered with only if the order is shown to be vitiated by malafides, or in violation of any statutory provision or has passed by an incompetent authority; that in the instant case, none of the said conditions have been satisfied and therefore the order of transfer is WP(C)No. 6809 of 2012 -9- not liable to be interfered with. The learned counsel appearing for the respondents also contended relying on Ext.R1(d) report that the petitioner who had undertaken journeys on tour cannot be heard to contend that she is not medically fit to travel that she has travelled every day from Thalassery to Kannur to attend office and back and therefore, there is no merit in the contention that she is not in a position to travel long distances.
7. I have considered the submissions made at the Bar by learned counsel appearing on either side. Ext.R(1)(d) report discloses that during the 170 working days from 1.3.2011 to 10.10.2011, the petitioner had attended office on 106 days, was on leave for 41 days and on tour for 20 days. The petitioner has in Ext.P10 reply submitted by her stated that she was on tour mainly for the purpose of meeting various officers for the purpose of setting up the Net Factory at Kannur and that besides undertaking journeys within Kannur she had travelled to Kochi to visit the Net Factory on 30.3.2011, 31.3.2011, 12.5.2011, 13.5.2011, 23.5.2011, 30.6.2011, 1.7.2011, 2.7.2011, 23.7.2011 and 27.7.2011 pursuant to the instructions issued by the Managing Director and the Deputy Managing Director (CM), and that she had travelled to Ernakulam to attend the year ending review meeting held on 27.4.2011 to 30.4.2011 pursuant to order dated 19.4.2011 and that she was not on tour on any of the other days. It is evident from the materials on record that the petitioner was on tour only for a WP(C)No. 6809 of 2012 -10- period of 20 days during a period of 170 days. Except for 14 days when she was required to come over to Cochin pursuant to the directions issued by the superior officers, she was on tour in Kannur itself. In other words, she had gone on tour out of Kannur district only for a period of 14 days during the period from 1.3.2011 to 10.10.2011. Therefore, the stand taken by the first respondent that as she was touring extensively, she cannot complain about the transfer to Malappuram and that she is medically fit to travel cannot be accepted. The first respondent also justifies the order of transfer on the ground that though Ext.R(1)(d) report warranted suspension of the petitioner and initiation of disciplinary action, taking a lenient view she was transferred out. The first respondent has also taken the stand that as the petitioner had rejoined duty after undergoing treatment by producing a medical certificate to the effect that she is fit to rejoin duty, it is implied that she is fit to be posted at any place. In my opinion, the stand taken by the first respondent that notwithstanding the serious injuries sustained by the petitioner as a result of a fall which necessitated surgical intervention and prolonged treatment, she is fit to be posted to any place and that her medical condition need not be looked into cannot bear scrutiny. It is evident from the stand taken by the first respondent in the coutner affidavit that the first respondent has not taken note of the medical condtion of the petitioner, especially the seriousness of the injuries she sustained in the fall. The Managing WP(C)No. 6809 of 2012 -11- Director while ordering her transfer from Kannur to Malappuram did not also take note of the fact that the petitioner's husband is employed in the Kannur branch of the Canara bank and that if the petitioner is transferred to Malappuram district, she will have to travel to Malappuram from Thalassery where she is permanently residing with her husband, notwithstanding the serious injuries which she suffered in December, 2010 and the difficulties experienced by her as a result thereof. In other words, the Managing Director was insensitive to the medical condition of the petitioner that necessitated her continuance at Kannur. That apart it is evident from the impugned order itself that a vacancy of Manager had arisen in the MATSYAFED Prawn Hatchery at Kannur when the second respondent was transferred from the Prawn Hatchery and posted as Manager in the District Office of the MATSYAFED at Kannur. The said vacancy has not so far been filled up and the second respondent has been given only additional charge. If as contended by the respondents, it was necessary to post another person as Manager at Malappuram, in the place of Sri.P.A.Sasikumar who was holding charge of Manager, the second respondent could have been posted at Malappuram. In such circumstances, even assuming that it was necessary to shift the petitioner from the District Office of the MATSYAFED at Kannur to another place, she could have been transferred and posted in the Prawn Hatchery at Mopla Bay, instead of giving full additional charge to the second respondent. Even WP(C)No. 6809 of 2012 -12- going by the version of the first respondent there was some deficiency in the functioning of the MATSYAFED District office at Kannur, which if true will require the second respondent to be left free to attend to the MATSYAFED District Office, instead of attending to the affairs of the Prawn Hatchery also. On the facts and materials available, I am persuaded to agree with the petitioner that she has been transferred out for no justifiable reason, citing administrative convenience as a reason. I accordingly hold that the petitoenr is entitled to succeeed.
I accordingly allow the writ petition, set aside the Ext.P8 and direct the first respondent to post the petitioner as Manager in the Prawn Factory at Kannur forthwith. The parties shall bear their respective costs.
Sd/-
P.N.RAVINDRAN, JUDGE.
Rkc // true copy// PA to Judge