Madras High Court
P.Karunakaran vs The Union Of India on 4 October, 2013
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 04 - 10-2013 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.No.12812 of 2013 and M.P.Nos. 1 to 3 of 2013 P.Karunakaran ... Petitioner Versus 1. The Union of India Southern Railway rep. by the Divisional Railway Manager/P/MAS O/o. Divisional Railway Manager Personnel Branch MAS Division, Chennai 3. 2. The Senior Divisional Commercial Manager, Commercial Branch Chennai Division, Chennai 3. 3. The Presiding Officer The Central Administrative Tribunal Madras Bench, Chennai. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorari to call for the records relating to the order dated 9.4.2013 in O.A.No. 296/2013 on the file of the learned Central Administrative Tribunal, Madras Bench and quash the same. For Petitioner :- Mr.M.Shreedhar for M/s.M.Shreedhar Associates For Respondents :- Mr.R.Thiagarajan Senior Counsel for for Mr.P.T.Ramkumar O R D E R
K.RAVICHANDRABAABU,J.
The petitioner is aggrieved against the order of transfer . His challenge against the said order of transfer before the Tribunal was rejected in O.A.No. 296 of 2013 dated 9.4.2013.
2. The case of the petitioner is as follows:-
He is working as Deputy Chief Ticket Inspector at Chennai Central Railway Station for the past 29 years. On 10.6.2012, he boarded the train bearing No.12601 starting from Chennai Central Railway Station by 8.25 p.m for the purpose of checking . He got down at Arakonam. On the very next day he boarded the train No.12674, Cheran Express from Arakonam by 4.45 a.m. and came to Chennai Perambur Railway Station at 5.50 a.m. On alighting at Perambur Railway Station, he was taken to police station by a Sub- Inspector of Police viz., Palaniyandi by making a false allegation as if he robbed a sum of Rs. 2,300/- from a person with mobile phone. No complaint whatsoever was filed by such person. However, the petitioner was dragged to the police station and his house was also searched without any warrant. Pursuant to the above incident, he immediately lodged a complaint on 12.6.2012 against the police personnel to the Inspector General of Railway Police. He also lodged another complaint on 13.6.2012 to the Director General of Police, Chennai, State Human Rights Commission as well as to other authorities. As no action was taken the petitioner sought leave through his request dated 9.7.2012 from his department to file a private complaint against the Railway Police.
3. The petitioner also made an application under the RTI Act to various authorities. The Tamil Nadu State Human Rights Commission has also through communication dated 21.6.2012 informed the petitioner that the Inspector General of Police (Railways) was directed to enquire into the matter and take necessary action. In the interregnum period, the petitioner was harassed by the Perambur Railway Police and hence he approached this Court by filing Crl.O.P.No. 23049 of 2012 seeking for a direction to the police officials not to harass him and the same was also ordered on 23.11.2012. On 14.12.2012 , while he was discharging his duty, he caught six persons travelling without ticket. While he was enquiring them, five other persons came and sought release of those six persons. The petitioner did not oblige which had resulted in filing a complaint by the petitioner to the Inspector of Railway Police on 14.12.2012. The same was registered in Crime No. 798 of 2012.
4. While that being so, he was served with an order of suspension on 14.12.2012 under the guise of contemplating disciplinary proceedings. The petitioner was granted anticipatory bail in Cr.O.P.No. 31162 of 2012. Subsequently, by an order dated 23.1.2013, the suspension was revoked. However, the petitioner was served with an order of transfer dated 21.1.2013 transferring him to Northeast Frontier Railway, Guwahati from the present place. The said impugned order was challenged in the O.A. stating that the order of transfer is purely punitive in nature and issued in lieu of punishment pursuant to the disciplinary proceedings contemplated. Hence, the order of transfer having been passed as a punitive measure is liable to be set aside.
5. The respondents filed a counter affidavit wherein it is stated as follows:-
The petitioner's past history reveals that he was antagonistic towards the Vigilance Inspectors and is in the habit of preventing them from doing their lawful duty. A preventive check was conducted on 14.12.2012 based on a source of information that the petitioner was collecting money from the passengers travelling in the coach for the disabled and not issuing any receipt thereby misappropriating the amount due to the Railways. During the course of check on the petitioner on 14.12.2012, he assaulted all the four Vigilance Inspectors and ran away. The petitioner, a professional Boxer, appointed under the Sports quota had a dubious history of various minor and major misconducts and was imposed with penalties. In view of the gravity of the incident that took place on 14.12.2012 and also to boost the morale of the public servants on duty, a proposal was sent to the Raiwlay Board to transfer the petitioner out of Southern Railway with immediate effect in the interest of the administration. The allegations made against the petitioner are serious in nature and the conduct attributed against him is unbecoming and it strikes at the root of the functioning of the Administration. The impugned order of transfer is not a punishment but it was issued only on administrative grounds and therefore there is no legal infirmity.
6. The Tribunal rejected the petitioner's application by holding that it is not in all cases of transfer, whenever the employees came in for such adverse notice, the employees are bound to conduct a roving enquiry by way of disciplinary proceedings and an order of punishment should be issued.
7. It is the contention of the learned counsel for the petitioner that the impugned order of transfer is punitive in nature and therefore without giving an opportunity of hearing, the transfer should not have been made. He further contended that the transfer order came to be passed during the period of suspension and therefore it is crystal clear that the same was made as a punishment. In support of his submissions, the learned counsel relied on the following decisions :-
1. C.Ramanthan Vs. Acting Zonal Manager, Food Corporatin of India ( 1980 I LLJ 1)
2. S.Sevugan Vs. The Chief Educational Officer, Virudhunagar District (2006 (2) CTC 468)
3. Somesh Tiward Vs. Union of India and others ( 2009 (2) SCC 592)
4. Registrar General, High Court of Judicature of Madras Vs. R. Perachi and Others (2012 (1) MLJ 289 (SC) = 2011 (12) SCC 137 and
5. An unreported decision made in W.P.Nos. 11352 and 17393 of 2009 (K.M.Elumalai Vs. The Superintendent of Prisons, Central Prison II, Puzhal)
8. Per contra, the learned Senior Counsel Mr.R.Thiagarajan, appearing for the respondents would submit as follows:-
9. The order of transfer was made on administrative grounds and therefore the same cannot be questioned. Before issuing the order of transfer, the suspension order issued on the petitioner was revoked and therefore it is not correct to contend that during the period of suspension, the petitioner was transferred . The department is entitled to transfer the petitioner, if it is found that the petitioner's behaviour or conduct is adverse to the interest of the department. In support of his contentions, the learned Senior Counsel relied on the following decisions:-
1. Union of India and Others Vs. Janardhan Debanath and Another ( 2004 (4) SCC 245)
2. Registrar General, High Court of Judicature of Madras Vs. R. Perachi and Others (2011 (12) SCC 137)
3. National Hydroelectric Power Corporation Ltd., Vs. Shri Bhagwan ( 2001 (8) SCC 574)
4. State of U.P. and another Vs.Siya Ram and Another (2004 (7) SCC 405
5. State of M.P. and another Vs. S.S.Kourav and Others (1995 (3) SCC 270)
6. Shilpi Bose (Mrs) and Others Vs. State of Bihar and Others (1991 Supp (2) SCC 659)
10. Heard Mr.M.Shreedhar, learned counsel for the petitioner and Mr.R.Thiagarajan, learned Senior Counsel for the respondents.
11. The issue that arises for consideration in this writ petition is as to whether the impugned order of transfer is a routine order made on administrative grounds or an order that has been made on collateral purpose as a punitive measure ?
12. Based on the pleadings of the respective parties and based on the admitted position of certain dates and events, we consider that this writ petition can be disposed of without going so deep into the facts and circumstances as such exercise also is not warranted in view of certain admitted position of fact. A perusal of the affidavit filed in support of the writ petition would show that the petitioner made several complaints against the railway police officials before various authorities including this Court by filing Crl.O.P. The petitioner was also subjected to departmental proceedings by placing him under suspension through an order of suspension issued on 14.12.2012. The order passed by this Court in Crl.O.P.No. 23049 of 2012 dated 23.11.2012 reads as follows:-
"2. The learned counsel for the petitioner would submit that the petitioner is working as TTR in the Southern Railway and under the guise of investigation, the petitioner has been harassed by the respondent police.
3. The learned Government Advocate (Crl.Side) submits that only for the purpose of investigation, the petitioner's presence is required and he has not been harassed by the respondent police in any manner. The said statement is recorded.
4. In view of the above, the Criminal Original Petition is allowed with a direction to the respondent police not to harass the petitioner under the guise of investigation in any manner and at the same time, it is the duty of the petitioner as TTR to appear for enquiry as and when required by the respondent police. "
13. Admittedly, the transfer order came to be issued on 21.1.2013. A perusal of the said order would show that the petitioner was transferred to Northeast Frontier Railways on administrative grounds with immediate effect. On the date when the order of transfer was made on 21.1.2013 the suspension order issued on the petitioner on 14.12.2012 was in force and it was revoked with effect from 23.1.2013 by an order dated 26.1.2013 i.e. two days after passing the transfer order though served on the petitioner on 26.1.2013. The impugned proposal was mooted on 16.1.2013 as per the transfer order. The reason behind the suspension order stated by the petitioner in his affidavit at paragraph 12 reads as follows:-
" 12. ... On 14.12.2012, while I was discharging my duty by checking the tickets in Cauvery Express bearing Train No. 16221 by 5.15 A.M. I caught six persons travelled without tickets and while enquiring them, five persons came and contact me and sought release of a particular person out of the six caught. Being I have not obliged to their words, the above five persons manhandled me and in the pursuit, the above six person who were caught fled from the scene. Then the above five persons stated that they are from Vigilance office and I cannot touch them. I lodged a complaint to the Inspector of Railway Police, Chennai Central Rly. Police, Chennai on 14.12.2012 after taking treatment at the Stanely Govt. Hospital, Chennai and very same complaints were also addressed to Commissioner of Police, Chennai and I.G. Railways. My complaint was registered against above such five persons for the offences u/sec. 147, 323, 353 and 506 Part I IPC in Cr.No.53/2013 on the file of Central Railway Police Station, Chennai. Whereas, I learnt that a case has been registered for the alleged offences u/sec. 294(b),323, 353 and 506 Part I IPC in Cr.No.798/2012 on the file of the Railway Govt. Railway Police Station, Chennai Central Railway Station, Chennai with respect to the very same above incident happened on 14.12.2012."
14. Thus, it is crystal clear that on the date when the transfer order was issued, the suspension order was in force and therefore, there cannot be any doubt to hold that the transfer order, even though styled as an administrative measure, in fact came to be passed only on collateral purpose as a punitive measure. If the affected person challenges the transfer order by contending that it was made as a punitive measure by raising various grounds, the Court can lift the veil to find out as to whether it was made on administrative grounds as stated in the transfer order or as a punitive measure as contended by the affected party. But in this case such exercise of lifting the veil is also not warranted and the respondents have not given scope for such exercise, when they have specifically admitted in their counter that the transfer order came to be made taking note of the gravity of the incident that took place on 14.12.2012 and also to boost the morale of the public servants on duty. At this juncture, it is useful to extract the relevant averments made at paragraphs 10 of the counter affidavit as follows:-
"10. I submit that the petitioner, a professional Boxer appointed under the Sports Quota had a dubious history of various minor and major misconducts and imposed with penalties. The same had not improved his conduct and further, he had gone to the extent of assaulting the public servants on duty. In view of the gravity of the incident that took place on 14.12.12 and also to boost the morale of the public servants on duty, a proposal was sent to the Railway Board to transfer the petitioner out of Southern Railway with immediate effect in the interest of the administration. "
Therefore, it is an admitted case of the respondents that the petitioner was transferred only because of the incident that took place on 14.12.2012 and also to boost the morale of the public servants on duty. If that is the contention of the respondents, then there can be no doubt that the order of transfer was made only for collateral purpose to punish the petitioner. In our considered view, a punishment cannot be imposed on a person without affording an opportunity of hearing, conducting an enquiry and giving a finding that such person was guilty of charges levelled against him.
15. Admittedly, in this case, no charge memo was issued to the petitioner and on the other hand, the suspension order issued on him was also revoked on 23.1.2013. No doubt, the transfer is not a punishment and it is only an incident of service. There is no quarrel about the said proposition. At the same time, if it is admitted that the employee was transferred as a punitive measure or preventive measure, then such transfer takes a different colour and shape in the eye of the employee not as an incident of service but as a punishment out of an untold charge levelled against him.
16. Once it is admitted by the authorities that transfer was made based on certain reasons of unbecoming attitude of the employee , more particularly, based on certain incident said to have taken place on a particular date, then the authorities cannot exercise the power of transfer on that ground without affording an opportunity of hearing and allowing the employee to defend his case. Administrative grounds can be put as the reason for transfer, so long as such administrative grounds do not affect the interest of the employee personally with civil consequences or such grounds do not attribute imputation on the character of the employee. If any of these elements are apparent based on admitted facts, then such grounds can no longer be termed as administrative grounds. Therefore, we are of the firm view that the order of transfer in this case was passed only as punitive measure to achieve the collateral purpose and therefore the same cannot be sustained in the eye of law as the same has been made in violation of principles of natural justice.
17. In C.Ramanthan Vs. Acting Zonal Manager, Food Corporatin of India ( 1980 I LLJ 1) , the Hon'ble Division Bench of this Court held at paragraph 7 as follows:-
"7. Courts are chary to interfere with an order of transfer made for administrative reasons . An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interests of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power by the concerned authority, is generally upheld by civil courts, as courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. But if in a given case, an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reasons but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer. No doubt, a normal order of transfer can be misunderstood as a punitive measure. But, if the circumstances surrounding such an order leads to a reasonable inference by a well -instructed mind, that such an order was made in the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the Court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive or circumventing disciplinary action and particularly when civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Article 311 (2) of the Constitution of India. "
(emphasis supplied)
18. In S.Sevugan Vs. The Chief Educational Officer, Virudhunagar District (2006 (2) CTC 468) , a learned single Judge of this Court held at paragraphs 7 and 8 as follows:-
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7. It is seen from the impugned order of transfer that it is passed on administrative ground, but it appears that the order was passed by way of punishment and based on the complaint against the conduct of the petitioner. If that be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaints against him by the Public or by the Headmaster is proper or not by way of an enquiry.
8. In these, circumstances, this Court is of the view that the transfer order passed by way of punishment is without any opportunity to the petitioner and on the face of it, the order of transfer is illegal and the same is liable to be set aside. Accordingly, the impugned order is set aside."
19. In Somesh Tiward Vs. Union of India and others ( 2009 (2) SCC 592), the Apex Court has held at paragraph 16 as follows:-
" 16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the 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 for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the 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 or 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."
(emphasis supplied)
20. In W.A.No. 1138 of 2008 dated 24.4.2009, the Division Bench considered a similar issue and the relevant paragraphs 8 to 13 are extracted hereunder:-
"8.Learned counsel for the appellant submitted that though the order of transfer is stated to be passed on administrative grounds in the counter affidavit filed by the respondents in the writ petition it has been specifically stated that the transfer was effected since the appellant came to adverse notice. He further submitted that before the learned Single Judge some confidential files were shown and based on the averments in the counter affidavit as well as in the confidential files, the learned Judge has declined to interfere with the order of transfer. He further submitted that the respondents cannot resort to an order of transfer if there are complaints against the petitioner but it is open to the Department to proceed against the appellant under the relevant Rules if there is any evidence to prove his alleged misconduct. He in support of his aforesaid contentions based reliance on a decision of Mr.Justice P.Jyothimani reported in 2006(2) CTC 468 (S.Sevugan v. The Chief Educational Officer, Virudhunagar District) wherein in paragraph 8 it is held as under:- "8.In these, circumstances, this Court is of the view that the transfer order passed by way of punishment is without any opportunity to the petitioner and on the face of it, the order of transfer is illegal and the same is liable to be set aside. Accordingly, the impugned order is set aside.
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9.Learned counsel for the appellant submitted that the said decision has been followed by Mr.Justice N.Paul Vasanthakumar in the order dated 29.11.2006 passed in W.P. (M.D) No.9401 of 2006. He further submitted that the said order passed in W.P.(M.D.) No.9401 of 2006 has been confirmed by an order dated 09.01.2007 passed by a Division Bench of this Court in W.A.(M.D.) Nos.5 and 7 of 2007. Learned counsel has produced the copies of those judgments also.
10.Countering the said submissions the learned Special Government Pleader submitted that the order of transfer as pointed out by the learned Single Judge can be challenged only when such order of transfer is actuated by malafied or that it is made against any statutory provision of Service Rules. He further submitted that the learned Single Judge has taken note off of the report of the Director General of Police addressed to the Inspector General of Police, West Zone, Coimbatore and has come to the conclusion that there are materials in the hands of the Police to transfer the petitioner to some other range to save the image of the police.
11.We have carefully considered the said submissions made by the learned counsel on either side.
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12.Though in the impugned order of transfer it is stated as if the transfer has been effected on administrative grounds, the same has been given a go-by in the counter affidavit filed by the respondents as stated above. As per the averments contained in the counter affidavit the transfer was passed on some adverse remarks/complaints received against the appellant and also on the basis of the report sent by the Director General of Police to the Inspector General of Police, West Zone, and in such circumstances we are of the considered view that the order of transfer passed against the appellant is by way of punishment and that too without giving any opportunity of hearing to the petitioner.
13.To the facts of this case, the aforesaid three decisions squarely apply. But this aspect has not been considered by the learned Single Judge. May be that these points were not argued before the learned Single Judge. But being a question of law the same can be argued before the Division Bench. We are in full agreement with the decisions referred to above. Hence applying the principles laid down therein, we are constrained to interfere with the order passed by the learned Single Judge. Hence the order dated 10.09.2008 passed in W.P.No.4564 of 2008 is hereby set aside and the writ appeal is allowed. However there will be no order as to costs. Consequently the connected MP is closed."
21. A careful perusal of the decisions referred to by the learned counsel for the petitioner would show that the transfer order passed in lieu of the punishment without conducting enquiry cannot be sustained.
22. The learned Senior Counsel for the respondents relied on a decision made in the case of Union of India and Others Vs. Janardhan Debanath and Another (2004 (4) SCC 245), to contend that no elaborate enquiry is to be insisted upon if the transfer is made on public interest or administrative ground in order to enforce discipline. The Apex Court has held at paragraph 14 of the said decision as follows:-
"14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no orders as to costs."
23. However, in the very same decision, the Apex Court also observed at paragraph Nos.9 and 12 as follows:-
9. ".... Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd., V.Shri Baghwan (2001 (8) SCC 574).
12. ..." Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
Therefore, when the transfer involves an adverse impact or visit the person concerned with any penal consequences, the authorities cannot impose such order of transfer without there being any opportunity of hearing given to the person concerned.
24. The learned Senior Counsel appearing for the respondents further relied on the following decisions :-
25. In National Hydroelectric Power Corporation Ltd., Vs. Shri Bhagwan ( 2001 (8) SCC 574), at paragraph 5, the Apex Court held as follows:-
"No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned." (emphasis supplied)
26. In State of U.P. and another Vs.Siya Ram and Another (2004 (7) SCC 405 , the Apex Court held at paragraphs 3 and 6 as follows:-
" 3. The said order of transfer of respondent No.1 having been quashed by a Division Bench of the Allahabad High Court, State of U.P. is in appeal. The respondent filed a writ petition in the Allahabad High Court questioning the order of transfer. The primary stand taken in the writ application was that the order of transfer was as a measure of punishment. An enquiry in a departmental proceedings had been initiated. Without affording him an opportunity of being heard, the transfer was done as a measure of punishment. The disciplinary action which was taken against respondent No.1 pursuant to the enquiry conducted was referred to the Uttar Pradesh Public Service Commission for approval. But it was not approved. The present appellant-State filed a counter affidavit taking the stand that the transfer of the writ petitioner was on administrative grounds and merely because the writ petitioner was transferred to a non-working post that did not in any way vitiate the order of transfer.
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6. The above position was recently highlighted in Union of India and others v. Janardhan Debanath and another (2004 (4) SCC 243). It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest."
(emphasis supplied)
27. In State of M.P. and another Vs. S.S.Kourav and Others (1995 (3) SCC 270), it has been held by the Apex Court as follows:-
"The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court. (emphasis supplied)
28. In Shilpi Bose (Mrs) and Others Vs. State of Bihar and Others (1991 Supp (2) SCC 659), the Apex Court has held thus:
"The courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order; instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
(emphasis supplied)
29. A careful perusal of the above four decisions of the Apex Court would show that if an order of transfer was found to be an outcome of malafide exercise of power or if the transfer was made in connection with the departmental proceedings or for extraneous considerations or for collateral purpose, the Court can interfere as against such transfer order, if the same was made in violation of the principles of natural justice. All these decisions commencing from 1991 to 2004 have, no doubt, observed that the authorities are entitled to transfer on administrative grounds/ public interest. But a perusal of the subsequent decision made by the Apex Court in Somesh Tiward Vs. Union of India and others ( 2009 (2) SCC 592 para 16) would show that no such transfer can be made when the same was passed in lieu of punishment or on extraneous reasons.
30. Both the counsels also relied on the decision reported in 2012 (1) MLJ 289 (SC) (Registrar General, High Court of Judicature of Madras Vs. R. Perachi and Others ). A careful perusal of the above said decision would show that the transfer can be interfered with if it was not made on administrative grounds or if it attaches any stigma or on malafide reasons. The relevant paragraph 21 is extracted hereunder:-
"21. We have considered the submissions of both the counsel. As far as the action of transfer against the first respondent was concerned, the same was on the basis of the report of the Registrar (Vigilance). Besides, the District Judge had also opined that retention of the appellant in his district was undesirable from the point of view of administration. Thus, it involved inter-district transfer. The respondent no.1 had not disputed the power of the High Court to transfer him outside the district, nor did the division bench interfere therein on that ground. This is apart from the fact that transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma which was so done in the present case."
In the said case, the writ petition was filed principally on the jurisdiction of the Hon'ble the Chief Justice for transfer of a court staff in the subordinate court. No malafide against the Hon'ble the Chief Justice was alleged and the grievance of the staff was that his promotional right was affected. Hence the facts in that case are distinguishable.
31. It is to be noted at this juncture that this Court is not substituting its own decision in this matter. On the other hand, it is admitted by the respondents that the transfer order came be to be passed only on the reason which has been stated in paragraph 10 of the counter affidavit viz., an incident alleged to have been taken place on 14.12.2012 and also to boost the moral of the public servants on duty.
32. In fact, the Hon'ble Division Bench of this Court in an unreported decision made in W.A.No.1138 of 2008 dated 24.4.2009 (cited supra) has observed that though the transfer order had been effected on administrative grounds, the same has been given a go-by in the counter affidavit filed by the respondents by stating that the transfer was passed on some adverse remarks/complaint received against the appellant. Under such circumstances, the Hon'ble Division Bench took the view that the order of transfer passed against the appellant therein was by way of punishment without giving an opportunity of hearing to him. Accordingly, the Division Bench set aside the order as the same was in violation of principles of natural justice.
33. Thus, by considering all the facts and circumstances of this case and considering the admitted position that the transfer order came to be passed only in pursuant to the incident that took place on 14.12.2012, which undoubtedly causes some allegations against the petitioner for which disciplinary proceeding is already initiated, we are of the view that the order of transfer cannot be sustained and accordingly, the transfer order dated 21.1.2013 as well as the order of the Central Administrative Tribunal dated 9.4.2013 are liable to be set aside and the same are accordingly set aside. The writ petition is allowed. We make it clear that this order will not stand in the way of proceeding with the disciplinary proceedings initiated against the petitioner. Consequently, the connected M.Ps. are closed. No costs.
(N.P.V.,J) (K.R.C.B,.J)
04.10.2013
Index:Yes/No
Internet:Yes/No
krr/
To
1. The Union of India
Southern Railway rep. by
the Divisional Railway Manager/P/MAS
O/o. Divisional Railway Manager
Personnel Branch
MAS Division, Chennai 3.
2. Senior Divisional Commercial Manager
Commercial Branch
Chennai Division,
Chennai 3.
3. The Presiding Officer
The Central Administrative Tribunal
Madras Bench,
Chennai.
N.PAUL VASANTHAKUMAR,J.
AND
K.RAVICHANDRABAABU,J.
krr/
Pre-Delivery Order in W.P.No.12812 of 2013
Dated:- 04 .10.2013