STATE OF KERALA Vs. P U PAILEE

JUDGEMENT

(1.) HEARD learned Government Pleader and also learned counsel representing the party respondent.

(2.) IT is not in dispute that the entire controversy arose, when the respondent-writ petitioner was transferred to Kaduthuruthy Grama Panchayat in 2002, directing him to report for duty on 30.1.2002. It is also not in dispute that on 30.1.2002, though he reported for duty, he was not allowed to report for duty by the officer concerned at Kaduthuruthy Grama Panchayat and the same was repeated on 31.1.2002. The proceedings and the materials on record placed by the Government and also the first respondent-writ petitioner indicate, subsequently, he was transferred and posted to Koottikkal Grama Panchayat. 2. The crucial question is whether the respondent-writ petitioner was aware of his posting to Koottikkal from Kaduthuruthy; when he became aware; and when he was required to approach the Koottikkal Grama Panchayat to report for duty.

(3.) THE question is whether he was served with a copy of the order of transfer. When we go through the contents of Exhibit P4, it says, when he was not allowed to report for duty on 30/31.1.2002, he approached this Court in O.P.No.3761 of 2002, which was heard on 11.2.2002 and he learnt from the Court that the order of transfer was issued on 4.2.2002 transferring him to Koottikkal Grama Panchayat, cancelling the transfer order dated 17.1.2002. He also submits in the present Writ Petition that he was directed by this Court to apply again to the Director of Panchayats and he has sent his application on 12.2.2002 seeking his transfer to Mulakulam Grama Panchayat, instead of Koottikkal Grama Panchayat. Apparently, O.P.No.3761 of 2002 is not before us. The contents of Exhibit P4 indicate that he was permitted to seek for further transfer from Koottikkal to any other place, especially to Mulakulam Grama Panchayat. But, there is nothing on record to positively indicate that this Court permitted him not to report for duty till a place of his choice was given to him. As per paragraph 2 of Exhibit P3 judgment, the respondent-writ petitioner's categorical stand was that the transfer order was not served on him and therefore, he remained without a posting. Contrary to this stand of the respondent-writ petitioner, his representation, Exhibit P4, goes to show that he had already submitted his representation for change of posting to Mulakulam Grama Panchayat. Therefore, he did not report at Koottikkal Grama Panchayat. After reporting at Koottikkal Grama Panchayat, he could have sought for further change from Koottikkal to Mulakulam. But the writ petitioner did not choose to do so and he took advantage of the time spent in considering his representation etc. for change of his posting place from Koottikkal to Mulakulam. Ultimately, he had reported to Koottikkal Grama Panchayat only. This would go to show, his representations were not considered and he was wandering from one place to another place seeking for cancellation of his transfer to Koottikkal and getting a posting to Mulakulam Grama Panchayat. On technical grounds he raises a defence that as the transfer order to Koottikkal was not served on him, he was prevented from joining the duty. Once he knew in February, 2002 itself that he was transferred to Koottikkal, as indicated at the reply affidavit, he himself went and took the order of transfer from Trivandrum. After disposal of O.P.No.1543 of 2002, nothing prevented him to collect such order, if he wanted to join duty at Koottikkal Grama Panchayat as early as February, 2002. Atleast by 11.2.2002 he was aware of his transfer to Koottikkal Grama Panchayat from Kaduthuruthy Grama Panchayat. Therefore, we are of the opinion, the period between 30.1.2002 and 10.2.2002 alone will be treated as leave and the rest of the period deserves to be treated as leave without allowance, as non-reporting to duty at Koottikkal was the choice of the respondent-writ petitioner as stated above. In that view of the matter, we are of the opinion, the judgment of the learned Single Judge has to be set aside. Accordingly, the Writ Appeal is allowed in the above terms.