Madhya Pradesh High Court
Aslam Shaikh vs Madhya Pradesh Paschim Kshetra Vidyut ... on 13 March, 2020
Equivalent citations: AIRONLINE 2020 MP 231
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Petition No.12814 of 2019
(Aslam Shaikh vs. Madhya Pradesh, Paschim Kshetra Vidyut Vitran Company
Ltd. and others)
Coram:
Hon'ble Ms. Justice Vandana Kasrekar
Shri Manoj Manav, learned counsel for the petitioner.
Shri Anshumaan Shrivastava, learned counsel for the
petitioners.
O R D ER
(Passed on 13.03.2020)
The petitioner has filed the present petition challenging
the orders of dated 17.06.2019 & 18.06.2019 passed by the
respondents No.2 & 3, whereby his service has been transferred.
The petitioner is working as Assistant Engineer (TBPS) and presently posted as Assistant Engineer in Simlavda Distribution Centre of Ratlam District-Ratlam.
Vide order dated 06.09.2016, the petitioner was transferred from S.T.M. Division Ratlam to Neemuch but, later on his transfer order was modified and instead of Neemuch he was transferred in S.T.C. Sub Division Ratlam. Thereafter, again vide order dated 10.01.2017, he was transferred from S.T.C. Ratlam to Dharad Distribution Centre Ratlam. Later on within one and half year he has been again transferred from Dharad Distribution Centre Ratlam to Tarana.
Vide order dated 12.06.2018, the transfer order dated 23.05.2018 was modified and he was ordered to be posted in Simlavada Distribution Centre, Ratlam. On 19.04.2019, the petitioner was placed under suspension the allegation of default in distribution of electricity. Thereafter, vide order dated 22.05.2019, the suspension order was revoked and he was 2 posted at Simlavada Distribution Centre.
Vide order dated 17.06.2019, he was transferred from Simlavda Ratlam to Mandsaur. However, this order has not yet been served on the petitioner and without serving the copy of transfer order by order dated 18.06.2019, he has been relieved from new place of posting i.e. Mandsaur. Being aggrieved by that order the petitioner has filed the present petition.
Learned counsel for the petitioner submits that the petitioner is victim of frequent transfer and he has been transferred four times within three years of his posting at Ratlam. Petitioner has not yet completed three years of his posting at the present place which is contrary to the transfer policy. The impugned transfer order has been issued malafide intention at the instance of his juniors with an intention to harass the petitioner.
It is further submitted that the petitioner is having two unmarried daughters and one is prosecuting her B.H.M.S. at Ratlam and the impugned transfer order will adversely affected study and career of his daughter. In such circumstances, he submits that the impugned transfer order be set aside.
Learned counsel for the petitioner further relied upon the judgment passed by this Court in case of Nanuram vs. State of M.P. 2018(1) M.P.L.J. 63 as well as judgment passed by this Court in case of K.S. Verma vs. State of M.P. & Ors. passed in W.P. No.18851/2010 decided on 06.05.2011.
The respondents have filed their reply and submitted that there are various complaints against the petitioner while discharging his duties as Assistant Engineer. Learned counsel for the respondents further submitted that while his posting at Dharad Distribution Center several complaints have been found regarding his negligence and carelessness in field works assigned by the department and by the higher authorities. The 3 petitioner was further found careless towards maintaining the distribution of electricity through low voltage electric lines and transformers. Thus, looking to the complaint as well as negligence in discharging his duties the impugned transfer has been passed.
The respondents further submits that the Departmental enquiry was initiated against the petitioner and in the said departmental enquiry a show cause notice was issued to the petitioner proposing withholding two increments without cumulative effect. Petitioner could not submit justifiable reply in the department enquiry and the punishment was reduced from two years to one year. It is further submits that petitioner was suppressed the fact that he has been placed under suspension after a department enquiry. The impugned transfer order has been issued in administrative exigency and therefore, does not call for any interference, accordingly the petition deserves to be dismissed.
Petitioner has also filed the rejoinder in which he has stated that the impugned transfer order has been issued by way of punishment and punitive nature, therefore, it could not have been passed as held by the Hon'ble Apex Court without giving any opportunity of hearing to the petitioner. It is further submitted that the petitioner has been relieved without serving any transfer order and respondents in their reply have not stated that the transfer order has been served on the petitioner and it has been stated that the petitioner has been punished thrice with minor punishment. The petitioner has filed an appeal against the said punishment order and the same appeal still pending before the authorities.
So far allegation of bribe is concerned, in the enquiry report, the petitioner has been exonerated from the said charges. Looking to the allegations made by the respondents in the reply, 4 the petitioner has not been transferred on administrative reasons but, he has been transferred with the allegations and by way of punishment and before passing the said order no enquiry whatsoever has been conducted in the matter.
Heard learned counsel for the parties at length and perused the record.
In the present case the petitioner has challenged the transfer orders dated 17.06.2019 and relieving order dated 18.06.2019 by which he has been transferred from Simlavda Distribution Centre, Ratlam to Mandsaur. This transfer order was challenged by the petitioner, firstly, on the ground that it amounts to frequent transfer and secondly, the transfer order is punitive in nature.
So far as first ground is concerned, in the present case petitioner was transferred vide order dated 06.09.2016 from S.T.M. Division Ratlam to Neemuch but, later on this transfer order was modified and instead of Neemuch he was transfer to S.T.C. Sub Division Ratlam. Thereafter, again vide order dated 10.01.2017, he was transfer from S.T.C. Sub Division Ratlam to Dharad Distribution Centre Ratlam. Thereafter, on 29.05.2018 he was again transfer from Dharad Distribution Centre Ratlam to Tarana. Thereafter, vide order dated 12.06.2018, the transfer order dated 23.05.2018 was modified and he was ordered to be posted in Simlavda Distribution Centre, Ratlam. Thereafter, within a year to his posting at Simlavda, he has again transferred from Simlavada Distribution Centre, Ratlam to Mandsaur vide order dated 17.06.2019. However, this order was not served on the petitioner and without serving a copy of the transfer order, vide order dated 18.06.2019, he was relieved for new place of posting that is at Mandsaur. All theses facts show that the petitioner is a victim of frequent transfer. The petitioner has completed only one year at the present place of posting and the 5 respondents in their reply has stated that the impugned transfer order has been passed because there are various complaints against the petitioner as well as he negligent to perform his duties.
This Court in the case of Nanuram (supra) in para 12 has held that :
[12] Even otherwise in the impugned order dated 08.08.2016 charges of negligence and dereliction of duties have been levelled against the petitioner. It is settled law in service jurisprudence that if the order is stigmatic, then the same cannot be passed without affording opportunity of hearing to the petitioner. If any material is being used against the employee, then the employer is required to supply copies thereof and all these are subject to the cross-examination.
Thus, any order has been passed imputing some allegations against the employee then he is entitled to get an opportunity of hearing. Similarly, in the case of K.S. Verma (supra) in paras 7 & 8 has held that :
"7. After hearing the learned counsel for the parties this Court is of the considered opinion that the order of transfer of the petitioner is not sustainable. Firstly, the petitioner who was transferred from Betul to Bhopal in June, 2010 could not have been shunted within a period of six months unless for good reasons. The reason assigned by the respondents in the return is that there was a complaint lodged against the petitioner by one Alok Sharma, a district head of a political party. It appears from the note sheet annexed along with Annexure-R/1 that the complaint was taken into consideration by the State Minister (independent charge), Food, Civil Supplies and Consumer Protection, and without further inquiring into the matter as to whether the petitioner while discharging his duty has committed any misconduct recorded a note that there are serious allegations against the petitioner, directed the authorities to transfer the petitioner. This action on the part of the functionaries of the State is not appreciable and is 6 not in the spirit of democratic principles.
8. If there are allegations of misconduct against the petitioner, the competent authority is always at liberty to initiate disciplinary proceeding against such erring government servant. On the contrary Annexure-P/7 annexed along with the rejoinder reflects that the petitioner was carrying out his statutory duty as Inspector, Weight and Measure, in pursuance to the direction issued by the Controller, Food, Civil Supplies and Consumer Protection, Bhopal. In the considered opinion of this Court, it cannot be a foundation for transferring an employee from one place to another. Furthermore, except a bald complaint lodged by the district head of a political party no other material is brought on record to justify that the petitioner derelicted in his duty."
In the said judgment, this Court has held that if there are allegations of misconduct against the petitioner then the competent authority is always at liberty to initiate disciplinary proceeding against such erring officers. Thus, in the light of the aforesaid judgments as well as discussion in this petition is allowed and the impugned transfer order dated 17.06.2019 and relieving order18.06.2019 are hereby set aside.
(Ms. Vandana Kasrekar) Judge jyoti Digitally signed by Jyoti Chourasia Date: 2020.03.16 14:50:26 -08'00'