P.K.UNNIKRISHNAN v. KERALA STATE CO-OPERATIVE FEDERATION FOR FISHERIES DEVELOPMENT,(MATSYAFED)

P.N.RAVINDRAN, J.---------------------------W.P.(C) No. 34209 OF 2011--------------------------Dated this the 31st day of January, 2012J U D G M E N TThe petitioner, an Assistant Manager in the service of the KeralaState Co-operative Federation for Fisheries Development, otherwiseknown as the Matsyafed, has filed this writ petition challenging Ext.P1order dated 9.12.2011 passed by the second respondent, transferringhim from the office of the Matsyafed at Willington Island in Kochi tothe district office of Matsyafed in Kasaragod district. By that order,the sixth respondent who was working in the Kasaragod district officewas transferred and posted as the petitioner's substitute at Kochi. 2. The petitioner challenges the order of transfer on manygrounds. The first ground is that the Managing Director who issuedthe order of transfer is not competent to transfer the petitioner andtherefore the order is liable to be set aside as an order passed by anincompetent authority. Relying on Ext.P11 minutes of the meeting ofthe Board of Directors of the Matsyafed that met on 16.12.2011 it iscontended that the Board of Directors resolved to cancel all orders oftransfer issued after 7.9.2011 and therefore the order of transferstands revoked. The next contention raised is that Ext.P1 order oftransfer is the outcome of a concerted attempt by the ManagingDirector, who is impleaded in his personal capacity as the third WPC No.34209/20112respondent in the writ petition and the Manager in the Kochi office,where the petitioner was working at the time of transfer, who isimpleaded as the fourth respondent herein. It is stated that the reportdated 29.8.2011 referred to in Ext.P1, a copy of which is produced asExt.R4 (e) along with the counter affidavit filed by the fourthrespondent, was sent by the fourth respondent through unofficialchannels to the Managing Director raising untenable allegations with aview to transfer the petitioner. Yet another contention raised is thatthe order of transfer is punitive in nature and therefore on that scorealso it is liable to be set aside. The petitioner has also raised thecontention that an order of transfer towards the end of the academicyear would cause serious prejudice to his daughter, a final year B.Comstudent and his son, a 10th standard student, as he would have to shifthis residence from Kochi to Kasargod along with his family members.3. The second respondent Managing Director has sworn to acounter affidavit dated 13.1.2012 on his own behalf and on behalf ofrespondents 1 and 5. In paragraph 5 thereof he has stated that Ext.P1order is not punitive in nature, that on receipt of the report referred toin Ext.P1, the Matsyafed decided to initiate an enquiry into theallegations leveled therein and therefore in such circumstances hethought it fit to keep the petitioner as well as the Manager who WPC No.34209/20113submitted that report; the fourth respondent herein, away from Kochioffice and transferred the petitioner to Kasargod and the Manager toCalicut. It is stated that as a result of the petitioner availing leavefrequently, cheques could be issued to parties supplying goods onlyafter the petitioner signed the cheques on the expiry of the leave. Thecounter affidavit proceeds to state that the Managing Director iscompetent to transfer employees of the Matsyafed and therefore thereis no merit in the contention that the order of transfer is one issued byan incompetent person. As regards Ext.P11 resolution it is contendedthat the meeting of the Managing Committee held on 16.12.2011 wasnot convened after a notice in terms of the bye-laws was given to theex-officio members of the Board of Directors and therefore thedecision evidenced by Ext.P11 can have no effect. 4. The petitioner has filed a reply affidavit dated 22.1.2012reiterating the contentions raised in the writ petition and contendingthat his absence on leave did not cause any inconvenience to thefunctioning of the office and that the signing and issuance of chequeswas never delayed due to any fault of his. The fourth respondent hasfiled a counter affidavit dated 16.1.2012 stating inter alia that theabsence of the petitioner resulted in delay in effecting payment forgoods and every time when payments had to be made by cheques, WPC No.34209/20114which 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 hissignature. The fourth respondent has along with the counter affidavitproduced as Ext.R4(e), the report dated 29.8.2011 sent by him to theManaging Director which in turn is referred to in Ext.P1 order oftransfer. The petitioner has filed a reply affidavit disputing theaverments made by the fourth respondent in his counter affidavit. 5. I heard Sri.Shyam Krishnan, learned counsel appearing forthe petitioner and Sri.George Poonthottom, learned counsel appearingfor respondents 1, 2, 4 and 5. Sri.Shyam Krishnan, learned counselappearing for the petitioner contended relying on clause 17(XIII) ofthe bye laws of the Matsyafed that the Board of Directors alone iscompetent to appoint officers and staff of the Matsyafed, to punishthem and to dismiss them from service and therefore the ManagingDirector, an officer appointed by the Board of Directors is notempowered to transfer employees of the Matsyafed. The learnedcounsel also contended that the report referred to in Ext.P1 order wasnot sent through official channels, that it was not produced byrespondents 1, 2 and 5 along with their counter affidavit but only bythe fourth respondent and that in the light of the facts set out in thewrit petition and in the reply affidavit, the petitioner is justified in WPC No.34209/20115contending that the report referred to in Ext.P1 order was created witha view to transfer the petitioner. The learned counsel also contendedthat the petitioner was not absent unauthorisedly, as alleged in Ext.P1order, that he had not failed to carry out his duties as alleged thereinand that the issuance of cheques and payment for goods supplied werenever delayed on account of the fact that he had availed leave. Thelearned counsel for the petitioner contended that the leave applied forwas always sanctioned and as and when inspection was ordered, it wascarried out and therefore no reliance can be placed on the contents ofExt.R4(e) report to justify the order of transfer. The learned counsellastly contended that order of transfer which is rested on allegations ofmis-conduct, which has not been established or proved in an enquiry,is punitive in nature and therefore on that score also the order is liableto be set aside. Reliance was placed on the decisions of this Court inBalan v. District Panchayat Officer, Malappuram (1975 KLT 375),Pushpakaran v. Chairman, Coir Board (1978 KLT 539) and thedecision of the Apex Court in G.Sadanandan v. State of Kerala(1966 (3) SCR 590) more particularly paragraph 19 thereof, tocontend for the position that the order of transfer in the instant casebeing one founded on a report maliciously submitted by the fifthrespondent, it is liable to be set aside. It is contended that even WPC No.34209/20116assuming that the Managing Director is competent to order transfer,he ought to have decided whether the allegations therein are true ortenable before ordering the transfer.6. Per contra, Sri.George Poonthottom, learned counselappearing for respondents 1, 2, 4 and 5 contended relying on the staffregulations of the Matsyafed which were approved by the Governmentas per G.O.(Ms) No.23/2000/F&PD dated 7.11.2000, that theManaging Director is competent to transfer employees and to postthem at such place as he deems fit and that the order of transfer iswithin the competence of the Managing Director. The learned counselfor the respondents contended that the order of transfer was passedtransferring the petitioner and the fourth respondent herein so as tokeep them away from the office at Kochi for the purpose of holding anenquiry into the allegations leveled against the petitioner. The learnedcounsel for the respondents contended that the petitioner who enteredservice in the Matsyafed on 27.6.1988 and has completed 26 years ofservice has worked in Ernakulam District except for a short span of fivemonths, that on receipt of the report referred to in Ext.P1, theManaging Director thought it fit that some changes should be broughtabout in the office at Kochi and therefore he decided to transfer thepetitioner as well as the complainant. WPC No.34209/201177. I have considered the submissions made at the Bar by thelearned counsel on either side. It is now well settled by a series ofdecisions 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 beinterfered with only if it is passed by an incompetent authority or ispassed in violation of any statutory provisions or is proved to bevitiated by mala fides. In the instant case, the petitioner challengesthe order of transfer inter alia on the ground that the ManagingDirector of Matsyafed is incompetent to transfer him. Reliance isplaced on clause 17(XIII) of the bye laws of the Matsyafed in supportof the said contention. The stand taken by the respondents on theother hand is that as per the staff regulations of the Matsyafed whichwere approved by the Government on 7.11.2000, the ManagingDirector is competent to transfer employees. Regulation 1 in Chapter II of the Staff Regulations of theMatsyafed reads as follows:1. General Conditions of Servicei. The Board shall have the absolute right to classify the postsfix or change their designations, scales of pay, grades orqualifications, with prior approval of Registrar/Government.ii. The Managing Director/General Manager will be competentto regulate the working hours of the employees of the Federation.Iii. Every employee shall serve the Federation in its business insuch capacity and ‘at such place’ and such manner as directed by theManaging Director/ General Manager or an Officer authorized by him WPC No.34209/20118and shall devote his whole time attention to promote the interest ofthe 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 servethe Federation in its business in such capacity and at such place andsuch manner as directed by the Managing Director/ General Manageror an Officer authorised by him and shall devote his whole timeattention to promote the interest of the Federation. Though thelearned counsel for the petitioner contended this provision in theregulations does not empower the Managing Director to transfer anemployee, I am of the opinion that the said contention is without anymerit. Bye-law 23(iv)(e) of the byelaws empowers the ManagingDirector to supervise and control the employees of the Matsyafedsubject to the laws. Bye-law 23(iv)(e) reads as follows:ന(cid:2)യമത(cid:2)ന(cid:6) വ(cid:2)ധ(cid:10)യമ(cid:11)യ(cid:2) ജ(cid:13)വനക(cid:11)രക(cid:6) ധമല(cid:6)ള ധമലധന(cid:11)ട(cid:20)“ന(cid:2)യന(cid:22)ണ(cid:20) എന(cid:2)വ ഏര(cid:27)(cid:28)ട(cid:6)ത(cid:6)ക.”9. Bye-law 23(iv)(e) empowers the Managing Director tosupervise and control the employees of the Matsyafed subject to thelaws which in the context will include the staff regulations also.From Regulation 1(iii) extracted above, it is crystal clear that everyemployee of the Matsyafed is bound to serve at such place as directedby the Managing Director meaning thereby that the Managing Directoris empowered to transfer and post employees at such place as he WPC No.34209/20119deems fit. I therefore find no merit in the contention that theManaging Director is not competent to transfer the petitioner. 10. I shall now consider whether the order of transfer is bad forthe reason that it is punitive in nature. Ext.R4(e) report referred to inExt.P1 refers to various acts of commission and omission on the part ofthe petitioner. It is a report submitted by the petitioner’s immediatesuperior officer to the Managing Director of the Matsyafed. TheManaging Director has in his affidavit stated that in view of thecontents of the report dated 29.8.2011 a decision was taken to bringabout changes in the office at Kochi and to conduct a detailed enquiryand for that purpose it was decided to transfer the petitioner and thecomplainant concerned namely the fifth respondent. Ext.P1 order oftransfer also states that the petitioner is being transferred out for thesmooth functioning of the office and to maintain discipline. A learnedsingle Judge of this Court has in Ramachandran Nair v. Director ofTraining (ILR 1992 (3) Kerala 149) held that a transfer intended toensure efficiency in administration and maintenance of disciplinecannot be interfered with merely for the reason that the transfer wasnecessitated on account of the misbehavior of the employee or on theground that the dominant motive is to punish the employee. From thematerials placed on record by the respondents and even going by the WPC No.34209/201110statements in Ext.P1, I am of the opinion that if the Managing Directorof Matsyafed thought it fit and proper that the petitioner who has beenworking continuously for long number of years in the office at Kochishould be transferred out with a view to increase the efficiency inadministration and maintenance of discipline, it cannot be said thatmerely because some allegations were raised against him, the order ispunitive in nature. The Managing Director has in paragraph 5 of thecounter affidavit filed by him stated that it was decided to conduct anenquiry into various aspects of the report. Such being the situation,merely because of the fact that before he was transferred out certaincomplaints had been raised against him, is not a reason to hold thatuntil and unless the charges are proved he should not be transferredout to another office. 11. That takes me to the question whether the order oftransfer is mala fide. Apart from stating that Ext.P1 order is theoutcome of a concerted effort by the Managing Director and theManager who are impleaded in their personal capacity as respondents3 and 4 in the writ petition, the petitioner has not given any reasonwhy they should entertain a grudge against him or raise falseallegations against him. The only reason stated by the petitioner inrespect of the allegations of mala fides is that though the report WPC No.34209/201111submitted by the fourth respondent is dated 29.8.2011, the order oftransfer was issued on 9.12.2011, after waiting for the supersession ofthe Board of Directors and without enquiring into the correctness ofthe allegations referred to in the report. It is also contended that theorder of transfer was issued after a long interval of four months. Butat the same time the petitioner has also alleged that the ManagingDirector did not apply his mind and examine whether the allegationsare true and without such an exercise, transferred out the petitioner.As stated earlier, the Managing Director has in the counter affidavitstated that a decision has been taken to conduct an enquiry into theallegations levelled against the petitioner in Ext.P1 and to streamlinethe administration of the Kochi office and to maintain discipline. It isevident from the interval of time that lapsed between the submissionof the report and the order of transfer, that the Managing Director didnot act with haste but had considered the report and was satisfied thatan enquiry should be conducted into the allegations levelled againsthim. The Managing Director has also stated that the complainant wasalso transfered out from Kochi. In such circumstances, I find noreason to hold that Ext.P1 is the outcome of a concerted effort byrespondents 3 and 4 to transfer the petitioner from Kochi. 12. That takes me to the question whether in view of Ext.P11 WPC No.34209/201112decision the order of transfer has ceased to be effective. It is relevantin this context to note that the Managing Committee of Matsyafed wassuperseded by the Registrar of Fisheries Co-operative Societies on7.9.2011. That order was challenged in this Court by filing W.P.(C)No. 24401 of 2011. The term of the Managing Committee that wassuperseded was to expire on 16.12.2011. By judgment delivered on12.12.2011, this Court allowed the writ petition, quashed the order ofsupersession and directed the respondents therein to handover theadministration of Matsyafed to the Board of Directors. It wasthereafter that Ext.P11 decision was taken to revoke and cancel alltransfer orders issued after 7.9.2011. The Board of Directors ofMatsyafed consists of 15 elected members and 7 ex-officio membersincluding the Registrar of Fisheries Co-operative Societies. As per bye-law 15(h) at least seven days notice should be given to the membersof the Managing Committee before a meeting of the ManagingCommittee is held. Under bye-law 15(d) in the event of anemergency, the meeting can be convened after complying with thestipulations in bye-law 15(b), but before convening such a meeting theManaging Director will have to circulate the agenda among themembers of the Managing Committee and the decision taken in thatmeeting will have to be placed in the next meeting of the Managing WPC No.34209/201113Committee. The petitioner has not produced any material to show thatthe notice of the meeting held on 16.12.2011 was served on all themembers of the Managing Committee including the ex-officiomembers. The petitioner has also not produced any material to showthat the Managing Director had circulated the agenda among themembers including the ex-officio members for the purpose of holding ameeting on 16.12.2011, waiving the stipulation regarding seven daysnotice in bye-law 15(h). In such circumstances, I am of the opinionthat no reliance can be placed on the decision taken by the electedmembers of the Managing Committee who met on 16.12.2011 withoutnotice to the ex-officio members of the Managing Committee, to cancelall orders of transfer issued after 7.9.2011. That apart, the petitionerhas no case that pursuant to Ext.P11 resolution the fourth respondentwas brought back to Kochi or that other employees of the Matsyafedwho were transferred out in the interregnum have been transferredback.For the reasons stated above, I hold that there is no merit inthe challenge to Ext.P1. The writ petition fails and is accordinglydismissed. No costs. P.N.RAVINDRAN, (JUDGE)vps WPC No.34209/201114 WPC No.34209/201115