Jharkhand High Court
Ram Bihari Prasad Singh vs The State Of Jharkhand on 7 March, 2019
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 329 of 2019
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Ram Bihari Prasad Singh ... Petitioner
-versus-
1. The State of Jharkhand.
2. The Principal Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Ranchi, at Nepal House, P.O. & P.S. Doranda, District Ranchi.
3. The Director-in-Chief, Health Services, Jharkhand, Ranchi at Directorate of Health Services, at Nepal House, P.O. & P.S. Doranda, District Ranchi.
4. The Secretary-cum-Commissioner, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Ranchi, at Nepal House, P.O. & P.S. Doranda, District Ranchi.
5. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand, Ranchi, at Nepal House, P.O. & P.S. Doranda, District Ranchi.
6. The Civil Surgeon-cum-Chief Medical Officer, Bokaro, at P.O. + P.S. City Bokaro, District Bokaro.
7. The Deputy Commissioner, Bokaro, at P.O. + P.S. & District Bokaro.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Petitioner : Mr. Ramit Satender, Advocate
For the Respondents: A.C. to Sr. S.C.III
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3/ 07.03.2019 The short point involved in this writ application is whether
petitioner has been transferred on administrative exigency or by way of punitive measure.
2. Petitioner has challenged his transfer order dated 02.01.2019 by which petitioner has been transferred from Sub Divisional Hospital, Chas, Bokaro to Referral Hospital, Thakurgangti, Godda.
3. Counsel for the petitioner submits that the petitioner was an X- ray Technician in the Sub Divisional Hospital, Chas, Bokaro. He was transferred by the impugned order to Referral Hospital, Thakurgangti, Godda. He submits that the transfer is punitive in nature and thus, cannot be sustained. Though from the face of the transfer order, one cannot say that the same is punitive in nature, but, if the veil is lifted, it will be quite clear that the same is punitive. He submits that at paragraph 17 and 18 of the writ application, petitioner has categorically stated that transfer is -: 2 :- punitive in nature, but, the respondents have not controverted the statements made in paragraphs 17 and 18 of the counter affidavit. He submits that since the transfer order is punitive, same is liable to be set aside.
4. Counsel appearing for the State, on the basis of the counter affidavit, submits that an inspection was made in the Sub Divisional Hospital, Chas, Bokaro and thereafter a report was furnished. The said report is Annexure 'B' to the counter affidavit. He submits that during inspection, it was found that the X-ray machine was not functional in the said hospital and the petitioner was drawing salary without doing any work. He submits that the report further stated that the petitioner was in the habit of filing cases against his superiors and there was complaint against him, also the Member of the Legislative Assembly of that area has written to the Director-in-Chief, Health Services, Namkum to transfer the petitioner to some other place. It has also been found that the acts of the petitioner are detrimental to the work culture of the State. He submits that on this basis, petitioner has been transferred.
5. I have heard counsel for the parties and perused the pleadings and the documents.
6. Admittedly, the petitioner is working as X-ray Technician in Sub Divisional Hospital, Chas, Bokaro. By order dated 02.01.2019, petitioner has been transferred to Referral Hospital, Thakurgangti, Godda. The petitioner has specifically alleged that this order, though on the face of it, is innocent, but, smacks malice as the same has been passed by way of punishment and is punitive in nature. Petitioner has categorically mentioned at paragraphs 17 and 18 of this writ application that this transfer order is punitive and by way of punishment and is not on administrative ground. He has given instance of the same in support of his statement. While going through the counter affidavit, I find that these paragraphs 17 and 18 have not been specifically denied by the respondents. Reply to paragraphs 17 and 18 of the writ application is at paragraph 22 of the counter affidavit filed by the respondents, wherein it has been simply mentioned that statement made in paragraphs 14-22 are matters of record and hence, requires no comments. This clearly suggests that statement made in paragraphs 17 and 18 of the writ application are not denied by the respondents. Further, Annexure 'B' to the counter affidavit is the Enquiry -: 3 :- Report, which clearly suggests that there was complain against the petitioner and the Member of the Legislative Assembly has given a letter to the Director-in-Chief, Health Services to transfer the petitioner from Bokaro and place him in some other district. Further, the report mentions that work culture of the petitioner is against the work ethics of the Government. Further, the respondents have relied upon Annexure C, which is letter dated 30.11.2018 issued by the Under Secretary, Government of Jharkhand to the Director-in-Chief, Health Services, Namkum wherein it has been requested to transfer the petitioner, taking into consideration the allegation against the petitioner as the same stood proved. Further, the said letter requests the Director-in-Chief to transfer the petitioner to a far off place, like Pakur, Sahebganj, Godda etc. The tenor of this letter clearly suggests that the petitioner has been transferred by way of punishment. Further, the report also suggests that the petitioner was subjected to transfer because of some complains. This clearly suggests that the transfer of the petitioner is not on administrative ground, but, is punitive though from the face of the transfer order, the punitive side is not reflected. Admittedly, there was no notice to show cause for initiation of any proceeding.
6. It is well settled that the transfer order cannot be interfered with, if there are no compelling reasons. Further, it is also well settled that a transfer has to be read on the face of it. The case would be little different when there is an allegation that the transfer order is punitive. In this case, I find that there is allegation that transfer order is punitive and the petitioner has brought sufficient prima facie proof. Since prima facie proof was given, this Court went on to lift the veil and found that the transfer order has been passed relying on Annexure 'B' and 'C' to the counter affidavit, which is punitive in nature.
7. Hon'ble Supreme Court in Somesh Tiwari versus Union of India & Others, reported in (2009) 2 SCC 592 has held that transfer order in administrative exigencies should not be interfered by the Court, but, if there is malice and the employee is transferred on the basis of non- existent facts and if the same is punitive in nature or shows non-application of mind, transfer order can be interfered with.
8. In this case, I find that no departmental proceeding was initiated or any show cause notice was ever issued to the petitioner for any -: 4 :- alleged misconduct, but, by holding the petitioner to be guilty of some misconduct, which is evident from Annexure 'C', petitioner has been transferred. Thus, this transfer order is punitive in nature, which cannot be allowed to be sustained. Thus, this Court has no other option than to set aside the transfer order, which is not a simplicitor transfer but is a punitive. Impugned order of transfer dated 02.01.2019 as contained in memo No. 11(23) issued by the Director-in-Chief, Health Services, Jharkhand, Ranchi, is hereby quashed.
9. This writ application, thus, stands allowed.
( Ananda Sen, J.) Kumar/Cp-02