Madras High Court
M.Kanmani vs The Secretary To Government on 20 September, 2022
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.02.2022
Pronounced on : 20.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P.(MD)No.15273 of 2020
and
Cont.P(MD)No.1098 of 2020
and
W.M.P.(MD)Nos.12826, 12829 of 2020 & 293 of 2021
W.P.(MD)No.15273 of 2020:-
M.Kanmani : Petitioner
Vs.
1.The Secretary to Government,
Department of Tamil Development and Information,
110, Anna Salai,
Chennai – 600 002.
2.The Commissioner,
Commissionarate of Stationary and Printing,
110, Anna Salai,
Chennai – 600 002.
3.The Deputy Works Manager,
Government Branch Press,
Madurai – 7.
4.C.Mennakshi
1/34
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W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
5.A.Joseph : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records pertaining to the
impugned transfer order passed by the second respondent in
Se.Mu.Aa.No.R2/6877/2020 dated 22.10.2020 and quash the same and
consequently direct the respondents 2 & 3 to permit the petitioner to continue her
service in the Government Branch Press, Madurai.
For Petitioner : Mr.N.Dilipkumar
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by,
Mr.S.Saji Bino,
Special Government Pleader
for R.1 to R.3
*****
Cont.P.(MD)No.1098 of 2020:-
M.Kanmani : Petitioner
Vs.
1.Tmt.A.Suganthi, I.A.S.,
Commissioner,
Commissionarate of Stationary and Printing,
110, Anna Salai,
Chennai – 600 002.
2/34
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W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
2.Thiru Kannan,
Deputy Works Manager,
Government Branch Press,
Madurai – 7. : Respondents
PRAYER: Petition filed under Section 11 of the Contempt of Courts Act, 1971, to
punish the respondents / contemnors for the wilful disobedience of the order
passed in WMP(MD)No.12826 of 2020 in WP(MD)No.15273 of 2020, dated
03.11.2020.
For Petitioner : Mr.G.R.Sathish
For Respondents : Mr.Veera Kathiravan,
Additional Advocate General
Assisted by,
Mr.S.Saji Bino,
Special Government Pleader
*****
COMMON ORDER
The petitioner, who is working as Assistant Works Manager, Department of Stationary and Printing, has filed this writ petition as against the impugned order dated 22.10.2020, in and by which, she was transferred from Government Branch Press, Madurai to the Government Branch Press at the Madras High Court, Chennai.
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2.According to the petitioner, she was appointed as Assistant Works Manager, Department of Stationary and Printing, in the year 2015 and was posted at the Government Central Press, Chennai. She got married to one Rajesh in the year 2016, who is working as Deputy Superintendent of Police, Vigilance (Judicial) in the Madurai Bench of Madras High Court, Madurai. Ever since the marriage, the petitioner was staying at Chennai and her husband is staying at Madurai. They are not having any children. She made several requests for transfer on the ground that her spouse is working at Madurai. Her request was considered positively and by order dated 17.02.2020, she was transferred and posted at the Government Branch Press, Madurai and accordingly, she joined duty at Madurai on 28.02.2020. While so, within a period of eight months, she has been slapped with the impugned order dated 22.10.2020, transferring her back to Chennai, in order to accommodate the fourth respondent, as against the transfer policy.
3.The arguments advanced by the learned Counsel appearing for the petitioner, in brief, are as follows:-
3.1.As per the transfer guidelines issued by the Government of Tamil Nadu, the normal course of transfer is three years in a Station, ie., a Government Servant can be transferred from a Station after the completion of three years period.4/34
https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 Clauses (6) & (7) of the guidelines refer to transfer on request, which can be made only in the vacant post. Clause (6)(H) of the guidelines states that the persons, who are not due for transfer in the normal course, should not be disturbed to accommodate the request of others.
3.2.The petitioner joined duty at Madurai in the month of February, 2020. The fourth respondent, who is a native of Sankarankovil, made a request for transfer and in order to accommodate her at Madurai, which is nearby to Sankarankovil, the petitioner has been transferred to Chennai within eight months.
3.3.Though the impugned transfer order was passed on 22.10.2020, the petitioner was informed about the same through her office staff only on 27.10.2020. She requested the respondents 1 & 2 for retention at Madurai, citing her family circumstances. However, the said request was not considered and she received the transfer order officially on 31.10.2020 and thereafter, filed this writ petition on 02.11.2020. On coming to know that the petitioner has preferred this writ petition, the fourth respondent was forced to relieve on 02.11.2020 at Virudhachalam Press and she is stated to have joined at the Madurai Press in the petitioner's place on 02.11.2020 itself.
5/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 3.4.This Court vide order dated 03.11.2020, stayed the impugned transfer order. Along with the order of interim stay, the petitioner approached the Deputy Works Manager at Madurai Press on 06.11.2020. The Deputy Works Manager, on the instructions of the Commissioner, refused to allow the petitioner to enter into the office. On the same day, the Deputy Works Manager was transferred to Chennai and one Rajkumar, Deputy Works Manager of High Court Press, Madurai, was appointed as Head of the Stock Verification Committee.
3.5.The said Rajkumar, Deputy Works Manager, attempted to convince the petitioner to withdraw this writ petition and to take long leave, as suggested by the Commissioner, in order to avoid further consequences. However, the petitioner refused to withdraw the case. Thereafter, the Deputy Works Manager issued an office order placing the petitioner under waiting list. This office order, which was served on her in the office, was then collected back and destroyed.
3.6.On the next day, on 07.11.2020, one Kannan, Deputy Works Manager was transferred from Chennai to Madurai and the said Rajkumar was relieved from the in-charge. The efforts taken by the petitioner for joining the duty, by 6/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 approaching one Deputy Works Manager after the another and making representations to the higher officials, along with the order of interim stay passed by this Court, ended in vain. Hence, she filed the contempt petition in Cont.P(MD)No.1098 of 2020, for the wilful disobedience of the interim order passed by this Court dated 03.11.2020.
3.7.After the filing of the contempt petition, the fourth respondent, who was transferred to the petitioner's place, was transferred from Madurai to Trichy Government Press as Branch Manager and one M.Gunasekharan, Assistant Works Manager (Binding and Despatch in-charge) was transferred from Madurai to Chennai.
4.Per contra, learned Additional Advocate General appearing for the official respondents made his submissions, based on the counter affidavit filed by the second respondent, as follows:-
4.1.The impugned order of transfer was issued in the interest of administration. The fourth respondent has joined duty in the Government Press, Madurai on 02.11.2020 and that this petitioner was relieved from the Government Press, Madurai, on 31.10.2020 itself.7/34
https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 4.2.Due to the slackness on the part of the petitioner in executing the works entrusted to her and the failure on the part of the petitioner in despatching the printed forms resulted in stagnation of the printed forms, which ought to have reached the respective Departments in time.
4.3.One Velmurugan working in the Government Press, Madurai, has sent a complaint to the Chief Minister's Special Cell, based on that, the second respondent formed a Committee to conduct an enquiry. During the preliminary enquiry, it was found that due to the inadvertence, the Department suffered a loss to the tune of Rs.1,20,62,587/-, as follows:-
Loss due to keeping the printed items weighing about 85 Rs.54,97,830/- M.T idle and the consequent deterioration in quality Loss due to non execution of binding works of printed Rs.31,26,740/-
items in binding section Loss due to non execution of jobs related to the year 2019 Rs.11,52,926/- and 2020 after the completing of printing works in Cream Wove Paper measuring 1247 reams Loss due to non execution of jobs related to the year 2020 Rs.21,58,091/- after the completing of printing works in Green Wove Paper measuring 793 reams Loss due to discarding the paper reels as waste when the Rs.1,27,000/- paper left in the reels could be used for printing normally Total loss Rs.1,20,62,587/-8/34
https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 4.4.Since the preliminary enquiry disclosed the omission and commission of offence by the staff of the Government Branch Press, Madurai, with a view to conduct a detailed enquiry, all the officers were transferred to facilitate fair enquiry on the following dates:-
S.No. Name of the Officer Order No. & Date Date of Relief 1 Tmt.M.Kanmani, No.R2/6877/2020, 31.10.2020 Asst. Works Manager dt.22.10.2020 2 Thiru S.Sethuram, No.R2/24271/2020, 06.11.2020 Deputy Works Manager dt.05.11.2020 3 Thiru M.Gunasekaran, No.R2/10347/19, 16.12.2020 Asst. Works Manager dt.11.12.2020 4 Selvi C.Meenakshi, No.R2/10347/19, 16.12.2020 Asst. Works Manager dt.11.12.2020 5 Thiru D.Prakash, No.R2/10347/19, 16.12.2020 Asst. Works Manager dt.11.12.2020
5.The Committee appointed by the second respondent visited the Government Branch Press, Madurai, for two days, verified the stock and submitted their report. Based on the report of the Committee, a charge memo under Section 17(b) was also issued to the petitioner and therefore, she was transferred. 9/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
6.The issue of transfer and posting has been considered time and again by the Hon'ble Supreme Court and the entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time, a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee, holding a transferable post, does not have any vested right to be posted at a particular place.
7.Therefore, this Court, in view of the specific stand taken by the official respondents in their counter affidavit, has passed an order dismissing the writ petition. But, before the order could be typed and signed, on the next day, it was pleaded by the petitioner and her Counsel that a wrong representation has been made before this Court that on account of this petitioner, a huge loss to the tune of Rs.1.20 Crore was caused to the Government and that this averment was made only with an intention to defeat this writ petition.
8.In view of the aforesaid submission, the matter was once again listed before this Court under the caption 'for clarification'. 10/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
9.The petitioner and her Counsel were firm in their stand that the averment made by the second respondent in the counter affidavit is false and that it was made only to defeat the petitioner's claim in this writ petition. The petitioner is not the authority to despatch the printed forms. The printing has been undertaken only in pursuance to the directions of the higher officials, ie., the Commissioner or the concerned Manager of the Branch. The petitioner, who is the Assistant Manager, is not the authority to take a decision regarding printing. The pleas taken by the official respondents that they received a complaint; a Committee was formed; the allegation is not only against the petitioner, but also against all the officers in the Government Press, Madurai, who worked during the period 2017-2020; charges have also been initiated as against them, were subsequent developments, which were created for the purpose of defeating the petitioner's claim in this writ petition. In fact, neither in the Committee report nor in the charge memo issued against the petitioner, there was any whisper about the 186 metric tones of paper loss or the loss of Rs.1 Crore to the Government Exchequer. In any event, the printed papers, which were initially not despatched due to the COVID-19 lock-down, have later been despatched to the respective Departments. In fact, no papers are available in the office and that there cannot be any damage as claimed by the official respondents.
11/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
10.In view of the specific stand taken by the petitioner, this Court, by order dated 19.11.2021, appointed two senior members of the Bar, viz., Mr.E.V.N.Siva and Mr.S.Louis, as Advocate Commissioners, to visit the Government Branch Press, Madurai, and to submit a report, after ascertaining as to whether the papers have been printed as per the indent received from the concerned authority; the condition of the stock; whether the printed papers have been despatched in time; and the date of despatch.
11.Accordingly, the learned Advocate Commissioners have visited the Government Branch Press, Madurai, from 01.15 pm to 02.30 pm on 19.11.2021 and filed a report as follows:-
“We first entered the Despatch Section and perused the available records and the stocks there. The Despatch Register for the period from 20.02.2020 to 31.10.2020 was not available to us. However on queries based on other Registers, it was reported by the Despatcher, having control over the Despatch Section, that all the stocks are kept intact and are despatched on time as per indent. The stocks are also preserved so well to the effect that there is no damage to the stocks kept there for 10 years and accordingly we were shown some of the stocks maintained there for several years. As to the wastage of stocks, we could not find 12/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 wasted stocks there. To our pertinent queries on wastage of stocks as reported by the Complaints Committee, it was informed that a few bundles kept under the staircase due to lack of space inside the hall were noted by the Complaints Committee and such wasted stocks were not available there on that day of inspection.
We next visited the Binding Section, Store Room and the Printing Section and noted that the printing is done only based on the indent from the Commissioner by issuing Job Order Docket, duly signed by the Oversear, Assistant Works Manager and Deputy Works Manager.
Further it is pertinent to mention that the Assistant Works Manager who is looking after the Printing Section has no say in the Despatch Section. The Despatch Section is fully handled by the Despatcher there. Printing Section, Binding Section and Despatch Section all operate independently with separate Heads under the control of the Deputy Works Manager.
In all fairness, we expected the present officers in all the sections to report to us about the alleged wastage or shortage of stocks by the transferred employees. But they were not aware of such a thing and they were even surprised by our repeated questions on wastage and shortage of stocks, if any, in the entire Branch Office.
In Nutshell,
1. The papers have been printed as per the indent received from the concerned authority.
2. The condition of stock is perfect as on date of our visit and on further queries from the staff available therein it was reported that 13/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 it was always the same, even in the past.
3. The printed papers have been despatched in time to the Binding Section and from the Binding Section to the Despatch Section. To that effect, all records were shown to us by the present officers therein in the presence of all by the present Assistant Works Manager.
4. The date of despatch pertaining the stock in concern could not be noted down by us, as the Despatch Register for the period from 20.02.2020 to 31.10.2020 was not shown to us.”
12.It was projected by the official respondents that due to the dereliction of duty by the petitioner, a huge loss was caused to the Department. But the learned Advocate Commissioners claim there is no papers available in the office and that the printed materials have been despatched. If the printed materials have been despatched, this Court is unable to understand as to how the second respondent has filed a counter affidavit claiming that there occurred a loss of Rs.1.20 Crore. If the papers printed are not in usable condition as claimed by the authorities, it is now known as to how the printed forms have been despatched.
13.According to the learned Advocate Commissioners, even the forms which were printed ten years back are kept idle in the office of the Government Press, 14/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 Madurai, in good condition. In fact, this Court is also handling cases from the year 1980 onwards and old records are being perused regularly in civil matters. Therefore, this Court, with the prima facie opinion that the second respondent has committed perjury by making a false statement before the Court, called upon the second respondent to offer her explanation as to why a High Level Committee shall not be appointed to enquire into the entire episode and to take appropriate action against those responsible, including the members of the earlier Enquiry Committee.
14.In reply, the second respondent has made her submissions as follows:-
“At the time of visit of the Advocate Commission on 19.11.2021, it is no doubt that the papers have been printed as per indent.
As per the Press Office Manual para no.192, 168 and 171, the Assistant Works Manager in-charge of Production Planning Wing, the senior most Assistant Works Manager has to ensure over all execution of job as planned and to watch accounting of printing forms and to arrange for the early despatch of printed forms, review of acknowledgments from the intending officers by correspondence if needed.
All the employees and supervisors are working under the direct control of the Assistant Works Manager. So it is understandable that they will not come out in the open about the omission and commission of the 15/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 Officers who were working. Secondly, the staff were not involved in the process of stock verification except to provide registers. The Advocate Commission as ordered by this Court visited the Branch Press only on 19.11.2021, whereas, the cause of action arose in the month of November, 2020. Video-graph and photographs taken on 07.11.2020 on the condition of stock pending in printing and binding which explicitly bring-forth the bad state of affairs prevailed in the Branch Press and that only due to the ingenious attempt on the part of an in-charge officer to send the records.
The despatch registers could not be made available to them since they were sent to Head Office in connection with the disciplinary proceedings initiated against the officials.
The deterioration time of white papers as per the norms are 2 years and the 'azurelaid' papers are 5 years and that the loss of value of paper due to keeping in the printed paper idle for long time in open place. Due to open place wear and tear, climatic conditions which affect the papers, termite and torning of paper.
Disciplinary proceedings have been initiated against the petitioner and three others and based on their explanation, an Accounts Officer will be exclusively appointed to assess the loss if really and and the officers will be given fair chance of defend.
I have already received communication from the Deputy Works Manager, Government Branch Press, Madurai – 7, regarding the termite damaged paper of Judicial Department Forms (Criminal Miscellaneous Forms) and had sought permission to dispose them treating as waste 16/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 paper and in regard to Pol B-62 (Police General Diary), I have already deputed an Assistant Director (Stock Verification) to study and send me a report.”
15.The petitioner is working as Assistant Works Manager, in-charge of printing. According to the counter affidavit filed by the second respondent, the petitioner is liable to monitor the following works:-
i) Overseer Wing and Time Office;
ii) Planning Wing;
iii) Pre-printing Wing;
iv) Machine Printing Wing;
v) Mechanic and Electrical Wing; and
vi) Security, Sanitary Workers and Daily Wage Workers.
16.Paragraph no.385 of the Press Office Manual reads as follows:-
“The Assistant Works Manager (Shop-Floor Officer) in each shift shall be in over all charge of the Machine Department and shall be directly responsible to the Production Officer in-charge. It shall be his ultimate responsibility to ensure that the department is managed efficiently and all urgent works executed promptly during his shift. He shall also be responsible for the care of all printing machines and hand 17/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 presses and see that they are kept in a clean and serviceable condition, immediately reporting cases of breakdowns to the Production Officer in- charge.”
17.It is seen that the Printing Section, Binding and Despatch Section, Store Room Section are all headed by independent Assistant Works Managers, under the control of a Deputy Works Manager. Above the Deputy Works Manager, there is an Additional Commissioner and then the Commissioner and then the Secretary. The allegations levelled against the petitioner, even according to the counter affidavit, is that the petitioner has failed to despatch the printed forms in time and therefore, caused a huge loss to the Department to the tune of Rs.1.2 Crore. But, when the Advocate Commissioners visited the Government Press, they do not notice any printed forms lying there without despatch. The despatch register was not shown to the Advocate Commissioners, despite their request. The official respondents, in their reply to the Advocate Commissioners' report, have taken a stand that the despatch register could not be made available to the Advocate Commissioners, since it was sent to the Head Office in connection with the disciplinary proceedings initiated as against the officials. Though such a stand was taken by the official respondents, the despatch registers were not produced before this Court even thereafter, nor any explanation was offered by the second respondent with 18/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 regard to the period of delay caused by the petitioner in despatching the printed forms. To be noted, the petitioner is responsible for the planning and printing of forms and not for the binding and despatching of the printed forms.
18.The petitioner was transferred from Madurai to Chennai by the order dated 22.10.2020, which was despatched on 27.10.2020. The Stock Verification Committee headed by the Deputy Works Manager, Madurai Branch, was formed by the order dated 12.11.2020. The Committee, said to have inspected the Press from 16.11.2020 to 30.11.2020, submitted a report that the petitioner has caused a loss of Rs.1.20 Crore. Even before the Committee was formed and even before the report of the Committee, the petitioner was transferred by the order dated 22.10.2020, which means that the order impugned has been passed on administrative grounds and not on public grounds.
19.However, after the order of interim stay and after the filing of the contempt petition, it was projected as if a huge loss to the tune of Rs.1.2 Crore has been caused to the Department and that the transfer has been made on public grounds. When the second respondent is taking a stand that the petitioner was transferred on public grounds and on allegations, it is not known as to why the 19/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 order of transfer dated 22.10.2020 was despatched only on 27.10.2020. Be that as it may, the main allegation levelled by the official respondents is that a huge loss has been caused because of the delay in despatch. A separate Assistant Works Manager is in-charge of despatch section. The petitioner is the Assistant Works Manager in-charge of printing section. She was transferred, but, the Assistant Works Manager (Despatch) was not transferred. In fact, after the filing of the contempt petition, the other Assistant Works Managers, viz., Gunasekaran, Meenakshi and Prakash were transferred on 16.12.2020.
20.The petitioner filed the above writ petition on 02.11.2020 and on 03.11.2020, this Court has granted an order of interim stay of the transfer order. Even then, she was not allowed to join duty. After the order of interim stay, the Deputy Works Manager, Madurai was transferred on 06.11.2020. A Stock Verification Committee was formed by order dated 12.11.2020. The Committee, said to have inspected the Press from 16.11.2020 to 30.11.2020, submitted a report that the petitioner has caused a loss of Rs.1.20 Crore, by not despatching the printed materials. The petitioner filed the contempt petition on 02.12.2020. Then the other Assistant Works Managers were transferred on 16.12.2020. The Advocate Commissioners, after their inspection, filed a report that the printed materials have 20/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 already been despatched. The sequence of events would lead to an inference that after the stay order passed by this Court, an attempt has been made to project that there is some mischief in the administration and that therefore, all the officers were transferred.
21.If the allegations are as against all officers warranting the transfer of all them, it is not known as to why this petitioner / Assistant Works Manager (Printing) alone was transferred by fixing responsibility for the delay in despatch on 22.10.2020 and why the other Assistant Works Manager in-charge of despatch section was not transferred by then.
22.The Department is having Printing Press in six districts, viz., Chennai, Madurai, Salem, Trichy, Virudhachalam and Pudukottai. The petitioner previously worked at Chennai and was transferred and posted at Madurai on 17.02.2020. Within a period of eight months, vide the order impugned, the petitioner was again transferred to Chennai. By this order, the fourth respondent who was working at Trichy was transferred and posted in the place of the petitioner. To be noted, the fourth respondent previously worked at Madurai from the year 2017 to 2019 and she is a native of Sankarankovil, which is nearby to Madurai. 21/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
23.The Government of Tamil Nadu has issued certain guidelines regarding transfer policy to be followed. The general policy of transfer shall be once in three years and that transfer shall be made during the transferable period between the 1 st April and the 31st May of every year. Of course, there are certain exceptions to the aforesaid general guidelines. Transfer shall not be effected on the basis of allegations, unless the allegations are found to be prima facie true by a preliminary enquiry. There has to be a prima facie substance by the transferring authority that the continuance of the officer in the same station is injurious to public interest. When such transfers on complaints / allegations are made after some preliminary enquiry, it should be followed up by a detailed enquiry and disciplinary action instituted on allegations finally found to be substantiated, as per the Government Letter in No.86456/P & AR (Per.S)/93-7, dated 09.08.1994.
24.A request transfer shall be considered only on seniority basis and depending upon the vacancies. Persons who are not due for transfer in the normal course or on their own request should not be disturbed to accommodate the requests of others. Request for transfer / mutual transfer shall not be registered if the applicant has worked in the requested station earlier for more than two years in the last four years.
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25.The materials placed before this Court lead to an inference that the petitioner has been disturbed within eight months without following the guidelines of transfer policy issued by the Government to accommodate the fourth respondent, who also served in the same station previously from 2017 to 2019. As per the transfer policy, the fourth respondent is not entitled to seek a request transfer for the same place where she already served for more than two years in the last four years. Therefore, this Court comes to the conclusion that the transfer was neither made on administrative grounds nor on public grounds.
26.This Court is aware that transfer is an incident of service and also a condition of service and an employee has no choice in the matter of transfer or place of posting. That is the reason why this Court was initially about to dismiss the writ petition. However, the case took a turn after the visit of the learned Advocate Commissioners and their report.
27.It is a settled position of law that the power of transfer cannot be abused and frequent transfers without sufficient reasons to justify such transfers cannot, but be held as mala fide. The Allahabad High Court in the case of Akash Sharma 23/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 v. State of U.P., [2007 (4) AWC 3899], has held as follows:-
“However this power must be exercised honestly, bonafide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to malafide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as malafide. A transfer is malafide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purposes, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.”
28.In Somesh Tiwari v. Union of India [AIR 2009 SC 1399], the Hon'ble Supreme Court, while pointing out that the Court can interfere in transfer if it is mala fide in nature, has held as follows:-
“19. 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.
20. The order in question would attract the principle of malice in 24/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground ie., 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.”
29.The impugned order states that the transfer is on administrative grounds and the counter affidavit states that it is on public grounds. But the sequence of events, as discussed supra, shows that the petitioner, who was transferred from Chennai to Madurai in the month of February, 2020, was disturbed again within eight months for accommodating the fourth respondent. If the order of transfer is passed to accommodate another person for undisclosed reasons, it can be treated as a mala fide transfer order, as per the dictum laid down in Varudha Rao's case.
30.In Bank of India v. Jagit Singh Mehta [(1992) 1 SCC 306], the Hon'ble Supreme Court has held as follows:-
“5.There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the 25/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs.
... ... ...
No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees.”
31.In S.K.Naushad Rahman and Others v. Union of India [Civil Appeal No.1243 of 2022], the Hon'ble Supreme Court has held as follows:-
“48. This Court has spoken about the systemic discrimination of account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman's being from the outset, including reproduction, sexuality and private choices, within an unjust structure. The Oms which have been issued by DoPT from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the 26/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace. Women are subject to a patriarchal mind set that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the work place. The DoPT OMs dated 3 April 1986, 23 August 2004, 8 July 2009 and 30 September 2009 recognized the impact of underlying social structures which bear upon the lives of women in the work place and produce disparate outcomes coupled with or even without an intent to discriminate. The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to 27/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 substantive equality when it crafts the policy even for its own employees.
... ... ...
51. ... The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy.
How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article
21.”
32.The fact remains we have not utilized the women folks for several decades. Women are constrained to take care of their family, children and therefore, even educated women are opting out of employments. The necessity in the present world bring them in the main field and they have also proved their worth. The Government of Tamil Nadu is extending several benefits to the working women, viz., providing 12 months maternity leave, etc., to ensure that their services are utilized for the welfare of the State without any hindrance.
33.In the case on hand, the petitioner has got married in the year 2016. Ever since her marriage, she is working at Chennai and her spouse is working at 28/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 Madurai. They are not having any children. The Government must be a model employer. The employer shall ensure a conducive atmosphere for the employee to discharge their duty diligently. Therefore, the Government of Tamil Nadu has framed the transfer guidelines that there shall not be any transfer within a period of three years and the transfer shall be effected during the transferable period, etc. The transfer policy also suggest for preference on spouse quota, mutual transfer, etc. Considering all these aspects, the petitioner was given transfer to Madurai in the month of February, 2020, but, it was overturned in view of the impugned order.
34.As discussed supra, as on the date of inspection by the Advocate Commissioners, no printed forms were lying idle in the press and that all the forms were despatched to the respective Departments. If the printed forms were not in usable condition, it would not have been received by the respective Departments. Though the official respondents claim that the despatch register was forwarded to the Head Office with regard to the disciplinary proceedings initiated at the time of inspection by the Advocate Commissioners, no steps were taken to produce the same before this Court even thereafter and there is no averment as to the actual date on which the printed forms were despatched.
29/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
35.The petitioner has initially challenged the transfer order only on the ground that she was transferred within eight months, as against the transfer policy, to accommodate the fourth respondent. After the order of interim stay, the second respondent has attempted to project the case as if the petitioner has caused a very big loss to the Department and the second respondent has created records, by constituting a Committee. On the Advocate Commissioners' report, this Court reached the conclusion that the petitioner was transferred neither on administrative grounds nor on any public grounds, but to accommodate the fourth respondent and on account of the interim stay granted, the second respondent went on to creating records as against the petitioner and has put the petitioner into distress. It is also reported that the petitioner has not been paid with any salary from December, 2020, despite the interim order granted by this Court and cognizance taken in the contempt petition. Therefore, this Court is of the view that there is no loss as claimed and that the second respondent has constituted the Committee to create a record to defeat the claim of the petitioner in this writ petition, which requires a proper enquiry. Such an attitude on the part of the second respondent needs to be deprecated. It is to be noted at this stage that if any person gives a false information before the Court, it is an offence and he is liable to be prosecuted as per Section 340 Cr.P.C., for committing perjury.
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36.This Court is fully satisfied that the impugned order of transfer is passed with mala fideness to accommodate the fourth respondent. Therefore, the order impugned is liable to be set aside. Accordingly, the order impugned dated 22.10.2020 is hereby set aside and the official respondents are directed to reinstate the petitioner in the same place, immediately, without any delay. Since this Court has stayed the impugned order as early as on 03.11.2020, the official respondents are directed to disburse the salary benefits for the interregnum period, to the petitioner immediately, if not disbursed already.
37.During the course of arguments, it was represented before this Court that since the petitioner has obtained an order of interim stay as against the order of transfer, she was slapped with a charge memo. This Court is not expressing anything on the merits of the charges, which are pending as against the petitioner, however, expects the Secretary to the Government / first respondent to ensure that the enquiry contemplated as against the petitioner is conducted in a fair and proper manner. The first respondent shall appoint an Enquiry Officer of his choice and shall also ensure that the enquiry is conducted without the influence of the second respondent. The first respondent shall also ensure that the petitioner is not victimized for having approached the Court of law.
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38.This Court is not happy with the way in which the counter affidavit has been filed by the second respondent. The second respondent has attempted to project that at the instance of this petitioner, a huge loss was caused to the Department. This projection appears to be false. With the available materials, this Court can proceed further as against the second respondent under Section 340 Cr.P.C. But, this Court refrains from doing so and directs the Secretary to the Government, Human Resource Management Department, Fort St.George, Chennai, to constitute a High Level Committee to probe into this issue and to proceed further, in the manner known to law, as against those responsible for placing wrong facts and materials before this Court.
39.This Court places on record its appreciation to Mr.E.V.N.Siva and Mr.S.Louis, learned Advocate Commissioners, for their valuable service in inspecting the Press and also filing their report immediately, without any remuneration. Their report threw light on this issue to render justice to a victim, who knocked the doors of this temple of justice.
40.In fine, this writ petition is allowed in the above terms. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 32/34 https://www.mhc.tn.gov.in/judis W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020
41.In view of the order passed in the main writ petition, the contempt petition in Cont.P(MD)No.1098 of 2020, which was filed for the alleged disobedience of the interim order passed by this Court in WMP(MD)No.12826 of 2020 in WP(MD)No.15273 of 2020, dated 03.11.2020, shall stand closed. In the event of non-compliance of the order passed in the main writ petition, it is always open to the petitioner to agitate the same, in the manner known to law.
Index : Yes / No 20.09.2022
Internet : Yes
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Note :
Registry is to mark a copy of this order to
The Secretary to Government,
Human Resource Management Department,
Secretariat, Fort St.George,
Chennai.
To
1.The Secretary to Government,
Department of Tamil Development and Information,
110, Anna Salai,
Chennai – 600 002.
2.The Commissioner,
Commissionarate of Stationary and Printing,
110, Anna Salai,
Chennai – 600 002.
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https://www.mhc.tn.gov.in/judis
W.P.(MD)No.15273 of 2020 & Cont.P(MD)No.1098 of 2020 B.PUGALENDHI, J.
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3.The Deputy Works Manager, Government Branch Press, Madurai – 7.
W.P.(MD)No.15273 of 2020
and Cont.P(MD)No.1098 of 2020 20.09.2022 34/34 https://www.mhc.tn.gov.in/judis