Kerala High Court
Samuel Joseph vs Food Corporation Of India on 17 December, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 14TH DAY OF AUGUST 2013/23RD SRAVANA, 1935
WP(C).No. 16129 of 2013 (M)
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PETITIONER(S):
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SAMUEL JOSEPH,
ASSISTANT GRADE-III (D), FOOD CORPORATION OF INDIA,
DISTRICT OFFICE, THRISSUR-680 581.
BY ADV. SRI.P.SANKARANKUTTY NAIR
RESPONDENT(S):
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1. FOOD CORPORATION OF INDIA,
REPRESENTED BY THE EXECUTIVE DIRECTOR,
ZONAL OFFICE (SOUTH), NO.3, HADDOWS ROAD,
CHENNAI-600 006.
2. GENERAL MANAGER,
FOOD CORPORATION OF INDIA, REGIONAL OFFICE,
KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004.
3. AREA MNANAGER,
FOOD CORPORATION OF INDIA, DISTRICT OFFICE,
MULAMKUNNATHUKAVU, THRISSUR-680 581.
4. GENERAL MANAGER,
FOOD CORPORATION OF INDIA,
REGIONAL OFFICE (KARNATAKA REGION), BANGLORE.
R1-R4 BY ADV. SRI.M.R.ANISON
R1-R4 BY ADV. SRI.T.P.M.IBRAHIM KHAN, SC, FCI
R1-R4 BY ADV. SRI.K.M.ABDUL MAJEED
BY SMT.S.KARTHIKA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-08-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 16129 of 2013 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1.TRUE COPY OF THE RELEVANT PAGES OF THE NEWS PAPER DATED
17/12/2012 OF VEEKSHANAM DAILY.
EXHIBIT P2.TRUE COPY OF THE RELEVANT PAGES OF THE MALAYALA MANORAMA
NEWS PAPER DATED 16/12/2012.
EXHIBIT P3.TRUE COPY OF THE RELEVANT PAGES OF THE MATHRUBHUMI NEWS
PAPER DATED 16/12/2012.
EXHIBIT P4.TRUE COPY OF THE REPORT NO.ESTT-MGK-DEPOT/2012-13 DATED
9/12/2012 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4(A).TRUE COPY OF THE INVESTIGATION REPORT OF THE ABOVE SAID
COMMITTEE DATED 10/12/2012.
EXHIBIT P5.TRUE COPY OF THE REPORT NO.QC/21/2012 OF THE 2ND RESPONDENT
DATED 21/12/2012.
EXHIBIT P6.TRUE COPY OF THE ORDER NO.381/2012/ESTT. DATED 24/12/2012 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P7.TRUE COPY OF THE REPORT NO.180/ESTT1/2012 DATED 26/12/2012
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8.TRUE COPY OF THE REPROT NO.ESTT3(1)/2012 DATED 26/12/2012
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P9.TRUE COPY OF THE REPRESENTATION DATED 1/1/2013.
EXHIBIT P9(A).TRUE COPY OF THE FPORWARDING LETTER DATED 21/1/2013 TO THE
2ND RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT P10.TRUE COPY OF THE LETTER NO.E1/3(10)/2013 DATED 13/2/2013 ISSED
BY THE 1ST RESPONDENT.
EXHIBIT P11.TRUE COPY OF THE LETTER NO.ESTT/3(3)/2011 DATED 4/3/2013 ISSUED
BY THE 2ND RESPONDENT TO THE 1ST RESPONENT.
EXHIBIT P12.TRUE COPY OF THE INTERIM ORDER DATED 11/1/2013 INWPC
NO.1131/2013.
EXHIBIT P13.TRUE COPY OF THE LETTER NO.ESTT/3(3)/2011DATED24/6/2013 ISSUED
TO THE PETITIONER
RESPONDENT(S)' EXHIBITS: NIL
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/TRUE COPY/
P.A TO JUDGE
LSN
C.T.RAVIKUMAR.J.
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W.P.C.NO.16129 OF 2013
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Dated this the 14th day of August 2013.
JUDGMENT
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The petitioner is an Assistant Grade-III, (Depot) under the Food Corporation of India. While working as such at District Office, Mulankunnathukavu he was ordered to be transferred to Karnataka Region with immediate effect on administrative grounds, as per Ext.P6. Exts.P7 and P8 are the consequential orders of postings. This writ petition has been filed seeking quashment of Exts.P4, P5, P7, P8 and P13 and issuance of a writ of mandamus commanding the respondents to allow the petitioner to continue in the post of Assistant Grade-III, (Depot) in the District Office, Mulankunnathukavu with effect from 28.12.2012 with consequential benefits. Ext.P6 order is dated 24.12.2012. Subsequently the petitioner filed Ext.P9 representation against the same before the 1st respondent, the Executive Director of Food Corporation of India seeking cancellation of Ext.P6 order and permission to continue in Kerala region itself. Thereupon, the 1st respondent, the Executive Director sought remarks from the 2nd respondent through Ext.P10. As per Ext.P12 remarks thereon were forwarded to the Executive Director by the 2nd respondent. It is stated therein that another employee was transferred along W.P.C.NO.16129 OF 2013 2 with the petitioner viz., one E.N.Peethambaran challenged the order of transfer before this Court and an order of stay of his transfer was granted. Despite the receipt of Ext.P11 no final order has been passed so far on Ext.P9. Subsequently, the petitioner has served Ext.P13 notice requiring to report for duty in Karnataka region. He was directed to join at the transferred place on 28.06.2013. He was also informed that in case of his failure to do so disciplinary action would be initiated against him for non-reporting at Karnataka region pursuant to Ext.P6 order. Evidently, it is long later that the petitioner approached this Court. Though Ext.P12 order is dated 24.12.2012 this writ petition was filed only on 26.06.2013. When this matter is came up before this Court on 28.06.2013 this Court admitted this writ petition and passed an interim order whereby a week's time was granted to the petitioner to join at the transferred place making it clear that the transfer and posting would be subject to the result of this writ petition. In complying with the interim order the petitioner joined at the transferred place.
2. The contention of the petitioner is that the order of transfer is tainted with malice in law. According to him, telecast of a news in Asianet News Channel at 4 p.m on 08.12.2012 regarding the dumping and burning of huge quantity of rice and the subsequent publication of the said news item in dailies such as Malayala Manorama, Veekshanam and Mathrubhumi that ultimately W.P.C.NO.16129 OF 2013 3 resulted in his transfer. It is the further contention of the petitioner that, subsequent to such reports the Assistant General Manager conducted an inquiry on the issue on 10.10.2012 and as part of it he visited the District Office, Food Corporation of India, Thrissur along with the Manager (GRVS), Food Corporation of India, District Office, Calicut. Later, Ext.P4(a) report was submitted . It is the contention of the petitioner that Ext.P4(a) report carries no finding/allegation against him. In other words, according to him it is not reported that he had any involvement in the telecasting of the said news items and or that it was he who passed information with respect to such aspects to any visual or print Media. That apart, it is the contention that a perusal of Ext.P1 would reveal that after the appearance of such a news in the visual and prinit media certain political leaders came to the depot and before them he defended the Food Corporation of India stating that no such incident, as published, had occurred there. In the counter affidavit it is stated that the petitioner was not authorised to make any such statement to any Media or persons and therefore, the action on the part of the petitioner in giving statement to the media that too, in a distorted manner to the effect that only decayed rice was burnt is a misconduct. In paragraph 6 of the counter affidavit it is further stated that the petitioner gave such a statement to the media after the lapse of about a week since the incident and therefore, it is W.P.C.NO.16129 OF 2013 4 suspected that he might have made such a statement to the media in a bid to create proof to convince his innocence in case his role in the incident is suspected by the management. A scanning of the said contentions raised in the counter affidavit and the tenor of the rest of the contentions therein would reveal that though Ext.P6 transfer was issued on administrative grounds the real reason that prompted the respondents to effect such a transfer is ostensibly the incident that allegedly took place on 08.12.2012 and about which such news items as mentioned hereinbefore, appeared in the Asianet TV channel on 08.12.2012 and thereafter on certain dailies, it is contended by the learned counsel for the petitioner. Thus, according to the petitioner, in the circumstances, the contentions in the counter affidavit would virtually substantiate his specific case. However, the stand of the respondents is that the Food Corporation of India got its own measures and weapons to contest against controversial news and the petitioner was never been authorised to speak on its behalf. It is stated therein that though Ext.P6 order dated 24.12.2012 was served on the petitioner he failed to comply with the same and the said such action on his part is also a misconduct. At the same time, it is to be noted that it is only long later to Ext.P6 that Ext.P13 notice requiring him to join at the transferred place in compliance with Ext.P6 and warning him of initiation of disciplinary proceedings in case of his failure, was W.P.C.NO.16129 OF 2013 5 issued. Obviously, within a couple of days since the issuance of Ext.P13 the petitioner moved this Court by filing the captioned writ petition. This Court granted a weeks time for the petitioner to join at the transferred place taking note of the fact that the time stipulated in Ext.P13 had expired by the time he moved this Court. Admittedly the petitioner joined at the transferred place pursuant to interim order dated 28.06.2013. Admittedly, no action was taken against the petitioner on the ground of his failure to comply with Ext.P6 till the issuance of Ext.P13 and no issue relating the said aspects have been raised in this case for consideration. In the said circumstances, there is no need for this Court to consider such aspects in this proceedings.
3. The question is whether Ext.P6 and the consequential orders are liable to be interfered with. True that, in Ext.P6 it is stated that the transfer of the petitioner was ordered on administrative grounds. An authority competent to transfer an employee is not under an obligation to disclose the administrative grounds for the transfer in the order of transfer. At the same time, when the transfer is called in question before this Court and when this Court admitted the matter the respondent authorities are called upon to resist the challenge they are bound to disclose the administrative ground which is the basis of the order of transfer. As noticed hereinbefore, a counter affidavit has been filed in this case W.P.C.NO.16129 OF 2013 6 and at the same, it would not reflect the administrative ground that necessitated the transfer of the petitioner from Thrissur Bangalaru. At the same time, the tenor of the counter affidavit would undoubtedly indicate that the allegation of the petitioner that the issue relating the telecasting mentioned hereinbefore, is the motive behind his transfer is not untrue to facts. True that transfer is an incident of service and that the employer is entitled to pass an order on administrative exigencies. At the same time, there can also be no doubt with respect to the position that the said power could not exercised to pass an order as a substitute to disciplinary proceedings simply for the reason that initiation of any disciplinary proceedings on the same set of facts would definitely give an opportunity to the concerned employee to defend himself/herself. If an order of transfer is not an outcome of a bona fide exercise of power it certainly, is liable to be set aside. As stated hereinbefore, a scanning of the contentions in the counter affidavit filed on behalf of the respondents would undoubtedly make that the incident referred hereinbefore, was the foundation for the transfer and no administrative ground was either claimed or shown for his untimely transfer from Thrissur to Bangaluru. Admittedly, after the alleged incident a competent authority under the Food Corporation of India conducted investigation and submitted a report. That apart, it is not the case of the respondents that the aforesaid incidents were not W.P.C.NO.16129 OF 2013 7 the real reasons for the transfer. As noticed hereinbefore, the respondents suspect that the petitioner had played a role in the publication of such a news item. At the same time, there is nothing on record to show that the petitioner had played any role in the matter. Ext.P4(a) and the statements in the counter affidavit would reveal that the petitioner attempted to defend the Food Corporation of India. True that, the respondents have a case that the petitioner was not authorised to make any such statements to the media. At the same time, there is no case for the respondents that they have initiated against any action against the petitioner for giving such statements to the media. Even according to the respondents the petitioner gave a statement denying the said alleged incident but according to them, the petitioner had given a statement regarding the destruction of decayed rice. In paragraph 5 of the counter affidavit what is stated is that the petitioner had given a distorted version to the media by stating that only decayed rice was burnt and according to the respondents no incident of burning rice had occurred in the food storage depot at Mulakunnathukavu and only a meagre quantity of the damaged rice was dumped after following all the required formalities of the control procedure. The learned counsel appearing for the petitioner submitted that a perusal of Exts.P1 to P3 would not reveal the existence of any statement by the petitioner to the media regarding the burning of any particular W.P.C.NO.16129 OF 2013 8 quantity of rice whilst they would reveal that he had only given a statement that some quantity of decade rice was dumped, that too, after following the prescribed procedure and that exactly is the contention of the respondents in the counter affidavit. The said contention cannot be said to be bereft of basis and in fact, a conjoint reading of the writ petition particularly, Exts.P1 to P3 and the counter affidavit lends support to the said contention. The order of transfer can be said to be one based on non-existent fact on another Court as well. Evidently, as per Ext.P6 order the transfer was ordered on administrative grounds. As stated earlier, the counter affidavit does not reveal the administrative ground that necessitated the transfer of the petitioner though the respondents were bound to disclose the same. At the same time, the counter affidavit undoubtedly reveal the fact that it was the aforementioned alleged incident that ultimately led to his transfer. In short, no administrative ground was existing for his transfer and it was solely relatable to the aforementioned incident. If that be so, it can be said that the order of transfer was effected based on a non-existent fact. In the totality of circumstances it is evident that the petitioner was transferred as per Ext.P6 based on a non-existent fact. The Hon'ble Apex Court in Somesh Tiwari V. Union of India and Others reported in (2009) 2 SCC 592 held that if an employee's transfer was issued on the basis of non-existent facts it would W.P.C.NO.16129 OF 2013 9 tantamount to malice in law and in which event the order of transfer is liable to be interfered with. The long and short of these discussions is that the transfer of the petitioner as per Ext.P6 is one actuated by malice in law and therefore, liable to be interfered with. Consequently Ext.P6 order is set aside. Exts.P7 and P8 are consequential orders of postings. When the basic order falls the dependent order also must fall and therefore, they are also set aside. The respondents shall issue a fresh order of transfer and posting to the petitioner posting him in the Kerala region itself. Evidently, there is a delay in reporting for duty pursuant to Ext.P6 order. The petitioner had joined duty only pursuant to an interim order passed by this Court on 28.06.2013. In the said circumstances, in the light of the decision in Somesh Tiwari's case (supra) there will be a further direction to the respondents to pass appropriate orders as to the manner in which the period from 26.12.2012 to till his joining duty pursuant to the order dated 28.06.2013 of this Court, taking into account the relevant leave rules applicable in the case.
The writ petition is disposed of accordingly.
sd/-
C.T.RAVIKUMAR, JUDGE R.AV