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Judgment
These batch of writ petitions are filed by several employees of the Kerala State Road Transport Corporation ("KSRTC" for short) challenging the annual transfer orders issued by the corporation. Most of the writ petitions are filed by the drivers and conductors with varying periods of service, who are attached to different depots of the KSRTC. W.P(C).Nos.5372/2021, 5642/2021, 5444/2021 and 5302/2021 are filed by the mechanics employed in the KSRTC.
The common case of the writ petitioners is that the service conditions of the employees of the KSRTC are governed by a bipartite long term settlement entered in 2012, between the management and recognized trade unions functioning in the KSRTC. Appendix IV of that long term settlement relates to the transfer of the staff. Clause 12 of Appendix IV covers the general transfer. According to the above clause, every transfer will be effected in April of every year. Only those employees who have completed the incumbency period as on 28th February of that year alone will be considered for transfer. Incumbents who are desirous of transfer are required to submit options in the prescribed format well in advance. This will be forwarded by the Unit Inspector to the Chairman and Managing Director. On the basis of such applications, final list of transfer will be prepared. According to the petitioners, this year, options were not called from employees. The draft list of drivers, conductors and mechanics were published on 30.01.2021. Aggrieved by the above, most of the staff gave objections. Common allegation in the writ petitions is that, their objections were not considered and the final transfer lists of drivers and conductors were published on 15.02.2021. The transfer list of mechanics was published later.
The above transfers are challenged by the employees on various grounds. The common ground is that the transfer list is published in total violation of the long term settlement of 2012 especially, Appendix-IV, which related to the transfer. The petitioners have several other grievances as follows;
Option of the employees were not called as per annexure-IV.
Objections which were submitted were not considered.
All the employees were transferred to distant places.
Individual grievances, inconveniences and extreme personal difficulties were not considered in effecting the transfer.
Even those names who were not in the draft list were included in the final list.
Those who were not recommended by the Unit Inspector were included in the final transfer list.
SC/ST employees, inter caste marrige employees, employees with less than two years service and other protected groups who are exempted from the transfer are included in the transfer list.
Counter affidavits have been filed by the Corporation as well as the Chairman and the Managing Director, traversing the various allegations and challenging the sustainability of the writ petitions.
Heard the learned senior counsel for the writ petitioners, other counsel for other writ petitioners and both the Standing Counsel for the corporation.
It was vehemently contended by the learned counsel for the KSRTC, relying on authorities, that transfer is an incident of employment. It was contended that, management is the ultimate authority to evaluate the ground realities and the right of the employer to deploy the staff to suit the requirements, is unassailable. The discretion of the management in choosing the employees and the place of their posting cannot be interfered by this Court in exercise of its writ jurisdiction. Relying on the decision reported in Union of India and Another v. Deepak Niranjan Nath Pandit ((2020)3 SCC 404), it was contended that the employee cannot claim posting at a place of his choice as of right and the Courts cannot interfere in transfers effected bonafide. To support it, learned counsel further relied on the decision in Gujarat Electricity Board and Another v. Atmaram Sungomal Poshani ((1989)2 SCC 602) wherein, it was held that, transfer was an incident of service and the employee has no right to insist that, he shall be posted at a particular place. The Division Bench of this Court in Babu v. State of Kerala (1988(2) KLT 258) had held that, orders of transfer made in exercise of administrative discretion should not ordinarily be interfered with Article 226 of the Constitution. It was held that, guidelines for transfer are not statutory and they are only meant for guidance in the matter of transfer. They are also not exhaustive. In Nirmalanandan v. Divakaran (1989 KHC 30 (DB)), it was reiterated that the guidelines for transfers are not statutory and are only meant for guidance of the transferring authority. The employer had unfettered discretion of effecting transfer by taking into consideration the relevant factors and the Court will not justified in interfering, it was held. Right of the employer in effecting transfer and the limits of the jurisdiction of the High Court in interfering in such transfers were reiterated in Gopinathan and Another v. State of Kerala and Others (ILR 2014(4) KHC Ker.573), Ramakrishnan P. v. Union of India and Others (2017(1) KHC 801), Rajendran Nair P. v. Pavithran and Others (2008 KHC 6947) and State of U.P and Others v. Gobardhan Lal (2004(11) SCC 402).
Projecting their grievances, learned counsel for the petitioners vehemently contended that, since the Corporation itself has now understood that there were several objections, it may be appropriate to transfer orders may be kept in abeyance for atleast three months.
Answering the above, it was contended by both the Standing Counsel that the long term transfer entered into between the parties was only to operate as general guidelines and did not confer any vested rights on the employees. It was contended that, normally, general transfer is effected every year. It was also true that, Corporation usually effects transfer during April. However, in the year 2019, since the election to the parliament was declared, election code of conduct come into force and transfer could not be effected. In 2020, due to COVID pandemic corporation could not effect general transfer. Hence, for the last three years, transfers have not taken place.
Due to the appointment of the staff on a state wide basis, the proportion of geographical requirement and staff availability was not uniformally distributed. Hence the staff was unevenly distributed at different depots without having regard to the necessity. Hence, often the Corporation used to deploy the employees on work arrangement basis to those units where there was a shortage of employees. It was contended that due to various reasons, there occurred a heave imbalance in the deployment of staff in various depots. In some depots, there were excess staff whereas in some other, there were acute shortage of staff. According to the Corporation, to contain the shortage of staff in case of emergency, the KSRTC had a system of appointing badalies or reserves. In the changed circumstance, that system has now been stopped. Since these type of arrangements gave rise to various complaints from the employees and recognized trade unions, in order to rectify the grievances, discussions were held, pursuant to which, general transfer was proposed in 2019. However, in the month of April 2019 due to the declaration of the election and in 2020, due to the COVID-19 pandemic, transfers could not be effected. Having regard to the entire facts and circumstances of the case, a discussion was held with the management and trade unions on 18.01.2021 wherein it was resolved to give effect to general transfer immediately. The present transfer is effected pursuant to that. Hence, unions cannot now take up a contention that the transfer was made unilaterally without following the transfer norms.
It was also contended that a three tier grievance system was introduced for redressing the grievance of the employees at union level, zonal level and chief office level. The objections were considered and decision taken on merits. All the objections filed against the draft transfer order was considered by the redressal mechanism provided in the said order itself and it was only after exhaustion of such procedure, final transfer orders were issued. If the petitioners have any grievance that their objections have been not considered, they can approach the Managing Director or file an application as provided in the draft transfer order. It was stated that, with a view to redress the grievance of the employees regarding the above general transfer, Corporation had discussion with several trade unions on 22.02.2021 and circular has been issued to each unit to collect the details of the employees who underwent working arrangements for transfer and also other details for enabling them to continue in the home unit, as far as possible. A copy of the circular dated 22.02.2021 was produced by the Corporation. It seems that, a committee has now been constituted by order dated 01.02.2021 for scrutinizing the representations received from the employees with respect to general transfer. The committee consists of (i) Executive Director, Administration and Chairman and (ii) one member and a convener. Along with the counter, circular memorandum was issued by the KSRTC dated 22.02.2021 regarding certain objections raised by the staff. Since persons who had worked on working arrangement and distant places are not available, it was required to be considered while finalizing the transfer. A software is proposed to be prepared and to complete the entire process, it may require 3 months time.
Essentially, the primacy of the Corporation to effect transfers and the limited role of Courts in interfering with such transfer is well settled and is only to be accepted. On the basis of Judicial Precedents and factual premises, I find no reason to interfere in the transfer order. However, it is also clear that, transfers are not effected on ground of any exigency, but it seems to have been issued after due consultation and having regard to the interest of the KSRTC. Of course, the petitioners have a definite case that, long term settlement was not considered and several objections have been varied. It seems to be correct also.
Available materials indicate that, there are substantial number of complaints against the transfer on various other grounds, as mentioned above. It seems that the KSRTC has fairly agreed to look into individual cases on merits and to redress the grievance of the petitioners on merits and strictly in accordance with the interest of the KSRTC as well as the long term settlement.
Having considered this, I feel that, it is essential that the present situation shall not be unsettled, till a final decision is taken on the representations. Even in the circular memorandum dated 22.02.2021, it has been revealed that, three months time may be required to ascertain the details of the general transfer and to effect corrective measures. In this peculiar circumstances, directing the employees to report to the transferred post while their objections are pending consideration and thereafter, if the objection is accepted, to return, which will cause irreparable inconvenience to the petitioners and aggrieved persons. Hence, I feel that a via media is liable to be evolved. I feel that, it would be better in the interest of justice, if the transfer orders of all the three categories, namely drivers, conductors and mechanics, are kept in abeyance for a period of three months from today on the following conditions
(i) Those who have accepted the transfer or are ready and willing to join the transferred vacancy or have already taken charge, shall continue to remain at the transferred place.
(ii) Those who have raised objection but have already shifted to the transferred vacancy, shall also remain to be there, subject to decision on the representation.
(iii) The objections/representations submitted, shall be considered by the committee constituted by the Managing Director on the basis of the settled legal procedure, rules, regulations and guidelines and shall take appropriate decision on individual merit basis.
(iv) Pending the above, the status quo as mentioned above will follow on a firm belief that the entire process will be completed by the committee and the Corporation within three months period from today. The revised transfer list on the basis of the decisions of the committee of all the above three categories shall come into operation after three months on the date to be specified by KSRTC.