Vinod Cherian vs State of Kerala

K.M. Joseph, J.—This petition under Article 226 of the Constitution is directed against the order of the Kerala Administrative Tribunal (hereinafter referred to as ''the Tribunal'' for short). The Original Application filed by the petitioner, impugning the order transferring him from Neyyattinkara General Hospital, wherein he was working as RMO, to Konny Taluk Hospital, as Casualty Medical Officer, was rejected by the Tribunal.

We heard the learned counsel appearing for the petitioner as well as the learned Government Pleader appearing for the respondents.

Annexure A3 is the transfer order dated 21/1/2014 by which the petitioner stood transferred. Perusal of Annexure A3 would show that the basis for transfer is that while working as RMO at Neyyattinkara General Hospital, there was an omission on the part of the petitioner which resulted in the death of a patient. The allegation against the petitioner is that, as a RMO, he should have procured the injection named ''ceftazidime''. It was a life saving medicine and absence of the said medicine resulted in the death of a patient. According to the petitioner, he is not at all at fault. At first, the petitioner would contend that actually the medicine is not a life saving medicine. It is an antibiotic. The learned counsel for the petitioner further submits that the petitioner was on casual leave on that day and upon being informed about the condition of the patient, he did whatever he could possibly do and there is no basis for the transfer. Counsel also submits that the petitioner was awarded good service entry and there is no basis at all for transfer. Learned counsel draws our attention to the judgment of the Apex Court in the decision in Somesh Tiwari Vs. Union of India (UOI) and Others, wherein the Apex Court, inter alia, held as follows:

An order of transfer is an administrative order. Transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved. Mala fides are of two kinds.-first, malice in fact and second, malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane to passing of an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in an anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of, on in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. No vigilance enquiry was initiated against appellant. Transfer order was passed on material which was non-existent. The order suffers not only from non-application of mind but also suffers from malice in law.

Second transfer order, transferring appellant to Ahmedabad station, suffered from non-application of mind insofar as it proceeded on the premise that the appellant had already joined his post at Shillong. It was not even stated that the said transfer order was being passed in modification of the earlier transfer order or upon reconsideration of the matter afresh on humanitarian grounds or otherwise. It is quite clear that Shilong was considered to be a harsh posting.

When this fact was put to the learned Government Pleader, the Government Pleader made an attempt to distinguish the facts of the above mentioned case from the facts of the present case by pointing out paragraph 17 of the judgment in Somesh Tiwari''s case (cited supra), which reads as follows:

An enquiry was initiated against the appellant in terms of the allegations contained in an anonymous letter. Having regard to the directives of the Central Vigilance Commission, no enquiry could have been initiated against him but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue. Despite the same not only an order of transfer was passed but to a station, which, according to the respondents themselves was "harsh".

The Apex Court found that the original order of transfer itself was not supported by the findings in the enquiry and the enquiry was conducted without notice, whereas in this case preliminary enquiry was held, which resulted in the authority coming to the conclusion that enquiry is necessary and it is not proper to retain the petitioner at Neyyattinkara. We also notice another judgment of the learned Single Judge of this Court in K. Vijayan Vs. State of Kerala, . In that case, in the order of transfer reference is made to the person being guilty. But, there was no enquiry held. In that case, this court set aside the observations against the petitioner, but sustained the order of transfer. The learned Government Pleader would submit that in the present case an enquiry was held and more importantly, it is pointed out that, somebody has already taken charge at Neyyattinkara. It is also submitted on instructions that disciplinary proceedings were initiated against the petitioner for imposition of a minor penalty.

We find that this is a case where a statement was taken from the petitioner and thereafter the authority decided to initiate disciplinary action against the petitioner and it was in such circumstances that the order of transfer came to be passed. We also take note of the fact that somebody else has been appointed in the petitioner''s place at Neyyattinkara. The petitioner has already preferred Annexure A7 representation before the 2nd respondent requesting to reconsider Annexure A3 order. The Tribunal in its order has directed the 2nd respondent to consider Annexure A7. Subsequently, the 2nd respondent passed an order transferring the petitioner to the Casualty Medical Office at Varkala.

We would think that, in the interest of justice, this original petition can be disposed of as follows:

To protect the petitioner against being prejudiced by the presence of the observations in Annexure A3, which according to the learned Government Pleader are only tentative and prima facie and made on the strength of the preliminary enquiry, we make it clear that nothing contained in Annexure A3 will be used against the petitioner in the enquiry which is proposed. We also leave it open to the petitioner, if he is so advised, to impugn Ext. P8 order. We are not interfering with the order of transfer as such.

The Original Petition is disposed of as above.