RETNAKUMAR A. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is working as Mechanical Marine Engineer in the Kerala Maritime Board, has approached this Court challenging Ext. P1 order, by which he has been transferred and posted at the Engineering workshop in the Port of Kollam. The learned counsel for the petitioner challenges Ext. P1 on the ground that the order issued by the Chief Executive Officer and Director of Ports lacks jurisdiction in the absence of regulations framed by the Board in terms of the Kerala Maritime Board Act, 2017 (for short 'the Act'). It is submitted that the order of transfer is vitiated by malafides and it is arbitrary in nature. It is contended that the 6th respondent, who was the Chief Operative Officer of the Board and against whom the petitioner had raised a service dispute was a party to the Board meeting, in which the decision was taken to transfer the petitioner out. It is submitted that the petitioner had been appointed as Marine Mechanical Engineer pursuant to Ext. P2 proceedings dated 12.10.1990 by which the post of Mechanical Marine Engineer had been created by the Government. It is submitted that the petitioner was an employee of the Ports Directorate and that the takeover by the Board had occurred only in pursuance to a 2017 enactment, which was notified only in April, 2019. It is contended that the enactment specifically provides that there can be no change in the service conditions of the employees taken over by the Board and that in the petitioner's case, the act by which he has been transferred to a workshop in the Kollam Port is an act of demotion, which is vitiated by malafides.

(2.) The learned counsel for the petitioner submits that the actions of the petitioner had been considered by the Board meeting in Ext. P3 and there was an attempt to state that the petitioner was attempting to facilitate release of amounts to particular contractors in undue haste. It is stated that the matter had been referred to the Government and by Ext. P4, the Maritime Board had to reverse its earlier decision and release payments immediately to the contractors. It is stated that this had resulted in animosity against the petitioner and that the order of transfer is vitiated on that account. It is also contended that the 6th respondent's attendance in the Board meeting, in which the decision is taken to transfer the petitioner out vitiates the decision.

(3.) A counter affidavit has been placed on record by the respondents. It is specifically stated that the transfer is ordered only in an administrative exigencies and that the 6th respondent had attended the meeting of the Board as required by the Board and specifically for the purposes mentioned in the minutes itself. It is stated that the issue with regard to the transfer of the petitioner was not discussed with the 6th respondent and that the 6th respondent had absolutely no role in the said decision. It is further submitted that going by the provisions of the 2017 Act, the employees who are serving under the Government immediately before the appointed date would become employees of the Board. They would hold office by the same tenure and upon the same terms and conditions as they would have held, if the board had not been established. It is therefore contended that the petitioner is entitled to protection of tenure and terms of appointment including remuneration and that none of such rights of the petitioner are affected by Ext. P1. It is stated that being a Marine Mechanical Engineer, the petitioner's services are to be utilised in the workshops of the Board. It is stated the Board has two workshops one at Kozhikode and another at Kollam and that it is in the exigencies of the services, the petitioner has been appointed at Kollam.