A.K. Jawaharlal vs The Secretary to Government, Taxes (E) Department

Thottathil B. Radhakrishnan, J.—In the light of the order of the Kerala Administrative Tribunal, which is challenged in this original petition, we have heard the learned counsel for the petitioner and the learned Senior Government Pleader, quite in extenso.

We may recall that as per order dated 05.02.2014, status quo as obtained on that day was directed to be maintained regarding the posting and discharge of duties and responsibilities of the petitioner.

On 10.07.2013, as part of general transfer, the petitioner, a Sub Registrar, was shifted from Nellayi to Ayyanthole. It appears that even before that general transfer order, there was a surprise check of Sub Registrar''s Office, Nellayi at 4.00 p.m. on 19.04.2013. That was initiated on the allegation that staff of SRO, Nellayi consume alcohol near the premises of that Office during office hours and after consuming alcohol, they are creating nuisance to the public who are coming in the Office for registration and certificate. The surprise inspection did not unearth any unaccounted cash, but some empty liquor bottles were found near the premises of the SRO and no staff seemed to have consumed alcohol. Going by that report of surprise check, irregularities noticed were (1) unauthorised absence of a lower division clerk and (2) there is a practice in that SRO that document writers are engaged in perusal of office files and they interfere in office work. Therefore, the surprise check concluded saying that such activities show illegal nexus between the officials and document writers and, further, the availability of empty liquor bottles having smell of alcohol near the premises of the office shows that there is a practice of the office staff consuming alcohol in the office. We are not sitting in judgment on the correctness, probability or otherwise, of that surprise check inspection report. Suffice it to say that on receipt of the aforesaid check report of the Vigilance and Anti Corruption Bureau, the Government issued letter dated 18.12.2013 requiring that the petitioner be transferred and posted from SRO, Nellayi to a non-sensitive post, such as Chitty Inspector/Chitty Auditor.

As already noted, the fact of the matter remains that, long before the Government issued direction to transfer the petitioner out of SRO, Nellayi, he stood transferred on 10.07.2013 to SRO, Ayyanthole, and he is working as such in Ayyanthole. If the check report has further led the Government to conclude that the petitioner should not be permitted to work as an SRO, even in Ayyanthole, that is an issue where there should be specific and converged application of mind on that point, by the concerned authority and that issue should be dealt with after giving the petitioner an opportunity of hearing, since, at best, what the check report discloses is only an allegation regarding supervisory lapse.

Under the aforesaid circumstances, we are of the view that ends of justice require that the petitioner is given an opportunity of pre-decisional hearing on the question whether he should be shunted off to a non-sensitive post.

We also wonder for ourselves as to whether the posts of Chitty Inspector and Chitty Auditor are non-sensitive posts because sensitivity is primarily a matter with varied relevance, including the susceptibility of an officer to be corrupt and also the nexus with the public in discharge of official duties. We can envision the critical matter. We dissuade ourselves from speaking as to what posts are, or should be, treated as, sensitive, or otherwise.

For the aforesaid reasons, the impugned decision of the learned Tribunal is vacated and it is ordered that the petitioner will continue at SRO, Ayyanthole following the general transfer order dated 10.07.2013, and the Government would be free to decide as to whether any further action is required as against the petitioner, he having been shifted from Nellayi to Ayyanthol. If there is a tentative decision in that regard, the petitioner will be given a pre-decisional hearing, having regard to the contents of the surprise inspection report, which was placed before the Tribunal as Annexure-A2. This original petition is ordered accordingly.