Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. TUESDAY, THE 13TH DAY OF FEBRUARY 2024 / 24TH MAGHA, 1945 WP(C) NO. 34279 OF 2023 PETITIONER: ABDUL VARI C.V [*CORRECTED] AGED 45 YEARS, SENIOR CLERK, MES HSS IRUMPILIYAM UNDER ORDERS OF TRANSFER TO MES HSS MAMPADU, RESIDING AT CHUNDAL VEETTIL, BARIC NIVAS, PONNANI SOUTH, MALAPPURAM, PIN - 679586 [*THE ADDRESS OF THE PETITIONER IS CORRECTED AS PER
ORDER DATED 17/10/2023 IN I.A. NO.1/2023]
BY ADVS. T.T.MUHAMOOD RIYA MERIN BENCYKUTTY NIKHILA.P NAZEER HUZAIN.H GOKUL R.NAIR RESPONDENTS:
1 CORPORATE MANAGER MES SCHOOLS, MES FATHIMA GAFOOR MEMORIAL WOMEN'S COLLEGE CAMPUS, IMA HALL ROAD, NADAKKAVU P.O., CALICUT, PIN - 673021 2 DISTRICT EDUCATIONAL OFFICER OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, NEAR MINI CIVIL STATION, TIRUR, PIN - 676101 3 ADDL.R3: HAMEED, CLERK, MES HSS, IRUMPILIYAM - 676552. (IS IMPLEADED AS PER ORDER DATED 01/11/2023 IN IA 2/2023 OF WP(C)) BY ADVS. M.A.VAHEEDA BABU BABU KARUKAPADATH(B-13) P.U.VINOD KUMAR(K/647/2002) ARYA RAGHUNATH(K/000474/2018) T.M.MUHAMMED MUSTHAQ(K/000261/2018) VAISAKHI V.(K/860/2013) AJWIN P LALSON(K/001394/2018) KARUKAPADATH WAZIM BABU(MAH/8319/2019) P.LAKSHMI(K/001868/2021) AYSHA E.M.(K/001130/2022) SHIFANA KAISE(K/001171/2023) DENNIS BIJU(K/002709/2023) STIYA SIVAN SRI.PREMCHAND R.NAIR, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
MOHAMMED NIAS C.P., J.
--------------------- W.P.(C) No. 34279 of 2023 --------------------------- Dated this the 13th day of February, 2024
JUDGMENT
The petitioner entered service in the aided schools under the management of the first respondent and had worked in various schools under the management. By Ext.P1, the petitioner was transferred from a school in Ponnani to a school in Irumpiliyam by proceedings dated from Irumpiliyam, where he started working from 30/05/2023 under Ext.P1 order to Mampad Higher Secondary School, which the petitioner states to be about 85 km apart, purportedly invoking power under Rule 10(4) of Chapter XIVA of KER on the ground that certain complaints were raised against the petitioner. The main contention of the writ petitioner is that the transfer order under Rule 10(4) of Chapter XIVA of KER could have been passed only after conducting an enquiry by the management, giving the fullest opportunity to the teacher to rebut the allegations raised against him. Learned counsel for the petitioner relies on the judgment of this Court in 2023 (7) KHC 489 (DB) [Corporate ..3.. Manager vs. Beena Hilkushi S.R.].
2. The management has filed a counter stating that a complaint
was received from a teacher that when she approached the petitioner for clarification of some doubts relating to her appointment, the petitioner had given incorrect information misrepresenting that she was continuing in a post that was not sanctioned and the same caused mental agony to her. The counter also states that there was another complaint against the petitioner that he was misusing the computer kept in the school office and doing work for a computer institution functioning under him at his native place, Ponnani. Though the petitioner was served with two communications containing the above allegations, the petitioner had filed replies totally denying the charges raised against him. In spite of the denial of the charges, no enquiry was conducted before passing Ext.P2
order of transfer. Learned counsel for the petitioner submits that he has
yet to complete one year after the transfer pursuant to Ext.P1 when a second transfer was passed as per Ext.P2.
3. This Court, on admission, passed an order that if no
substitute had joined in the place of the petitioner, he shall be allowed to continue in the current station for a period of two weeks. The ..4.. management, as well as the Government, filed counter affidavits stating that another person had already taken charge on 16/10/2023 before this Court passed the interim order.
4. As held by the Division Bench of this Court in the decision
reported above, if a transfer is effected with reference to sub-rule (4) of Rule 10 of Chapter XIVA of KER, the same results in civil consequences stigmatising a staff and therefore, it demands compliance of principles of natural justice by initiating an enquiry and giving fullest opportunity to rebut the allegations raised. Going by the records of the case, no such enquiry has been conducted.
5. Under such circumstances, I am inclined to allow the writ
petition. Ext.P2 will stand quashed. There will be a direction to the first respondent to permit the petitioner to work at MES HSS, Irumpiliyam where he was working as per Ext.P1. Further decisions of the management will be subject to the enquiry, if any, to be conducted as stipulated under sub-rule (4) of Rule 10 of Chapter XIVA of KER. The petitioner also seeks permission to treat the period during which he could not join despite the interim orders of this court as eligible leave. In the
facts of the case, there will be a direction to the respondents to regularize
..5.. the said period as eligible leave to which the petitioner is entitled. The salary of the petitioner for the month of October shall also be disbursed within a period of one month from the date of receipt of a copy of this
judgment.
The writ petition is allowed as above. Sd/- MOHAMMED NIAS C.P. JUDGE APA ..6.. APPENDIX OF WP(C) 34279/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER NO. HS/147/2023 DATED 30.05.2023 ISSUED BY THE CORPORATE MANAGER, MES SCHOOLS Exhibit P2 TRUE COPY OF ORDER NO. HS/2079/2023 ISSUED BY THE 1ST RESPONDENT Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 11-10-2023 ISSUED BY THE JUNIOR CONSULTANT, GOVERNMENT TALUK HOSPITAL, PONNANI Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 10-10-2023 Exhibit P5 TRUE COPY OF THE ORDER NO. HS2079/2023 DATED ---10-2023 Exhibit P6 TRUE COPY OF THE REPLY DATED 06-10-2023 SUBMITTED BY THE PETITIONER TO THE HM IN THE MATTER Exhibit P7 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE HM ON 06-10-2023 RESPONDENT EXHIBITS EXHIBIT R1(a) TRUE COPY OF THE REQUEST DATED 07/10/2023 RECEIVED FROM THE HEAD MASTER OF MES HSS IRIMBILIYAM.