Central Administrative Tribunal - Madras
T Sahayaraju vs M/O Communications on 5 June, 2018
1 of 22 CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH DATED THIS THE GAT DAY OF JULY, TWO THOUSAND SEVENTEEN PRESENT:
THE HON'BLE MR. K. ELANGO, MEMBER (J) THE HON'BLE SMT. B. BHAMATHI, MEMBER (A) OA.310/00567/2017 CO T. Sahayaraju, S/o. (late), D. Thiyagarajan, No.6-92; Pentecost Church Street, Anaimalai, Coimbatore District, PIN- 642 104 . Applicant (By Advocate:M/s. R. Malaichamy)
-versus-
1. Union of India, Rep. By the Chief Postmaster General, o Tamil Nadu Circle, Anna Salai, Chennai- 600 002;
2, The Postmaster General, Western Region (TN), Coimbatore-641 002;
| 3. Assistant Director (Staff), O/o. The Postmaster General, Western Region (TN), Coimbatore- 641 002.
useeeee RESPONdEents (By Advocates: Mr. K. Rajendran) Order Reserved on 27.06.2017 2 of 22 ORDER ;
(HON'BLE SMT. B. BHAMATHI, MEMBER (A)) This O.A. is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: -
"j) to call for the records of the 3 Respondent pertaining to his order which is made in Memo No. STB/12011/2015-WR dated 30.03.2017 and set aside the same, and;
ii) to pass such further orders as this Hon'ble Tribunal may deem fit and proper."
2. a) The case of the applicant is that he is a Group B officer and earlier while working as Superintendent of Post Offices (SPOs) at Salem wes Division, Salem, he was transferred and posted as SPOs at Polilachi Division, Pollachi on 05.07.2014, after several requests. However, the impugned order dated 30.3.2017 was issued all on a sudden, before completion of his tenure as per transfer policy and he was transferred from SPOs, Pollachi Division, Western Region to SPOs Southern Region, with immediate effect, in the interest of service without any mention of place of posting.
b) Further, the above relieving order dated 30.3.2017 referring to theQ) transfer order of Respondent No.1 also dated 30.3.2017 was not received by the applicant. The said transfer order originating from Respondent No.1 is not received by the applicant til! date.
Cc) It is further stated that the tenure period for Gazetted Officer is 4 years which may be extended up to 6 years as per the transfer policy (dated 31.01.2014) issued by the Directorate. The applicant has completed only 2% years at Pollachi Division. Hence the transfer was premature and done in violation of policy.
d) As per the guidelines, transfer order is to be effected as per the recommendations of the Transfer and Placement Committee. In the ~ 3 of 22 applicant's case, being a gazetted Officer, the committee has not recommended applicant's transfer. Hence, this amounts to Violation of the guidelines of transfer/placement committee.
e) The applicant is Single, being unmarried, and about 55 years of age and suffering from diabetes and Blood Pressure and is'also looking after his 80 years old mother, who is a heart patient.
3. The respondents have appeared on notice and filed reply to the O.A, denying and disputing the contentions/allegations made by the applicant in the O.A.
a) It is submitted that the applicant had completed 2 years and 8 months on the date of transfer at Pollachi Division. Admittedly, the tenure period for Gazetted Officers is 4 years which can be extended.up to 6 years as per the transfer policy dated 31.1.2014. However as per Para 4.2. (XI) of the Policy, a Gazetted officer may be transferred from the post in administrative interest, provided he has completed at least one years in the said post, Hence there was no violation of the transfer policy.
b) Earlier, on repatriation of the applicant to Tamil Nadu Circle from Vadodara Region, Rule 59 of Postal Manual Volume IV did not permit the officer to be posted in his home area. Accordingly he was posted as SPO, Salem West Division by order dated 17.10.2012 and he joined as SPO, Salem West Division on 13.12.2012. After joining at Salem, he represented for posting him te Pollachi Division, his home area, or in Tirupur Division. He made several representations requesting for transfer to Pollachi Division and/ or to other Divisions of RMS, Coimbatore, CB Division, Coimbatore or SRM, Coimbatore. In view of the repeated requests, the applicant was posted as SPOs, Pollachi Division on 3.7.2014 i.e. within two years of his joining at Salem West Division. However, as his performance was not up to mark, he was transferred as Senior Postmaster, Salem HO on 16.3.2015, 4 of 22
c) Aggrieved by the said transfer order, he approached this Tribunal vide OA 367/2015, which was stayed on 17.3.2015. However, the transfer order was suo moto cancelled by respondent No.2 by order dated 08.2.2016, following which the Tribunal closed the O.A. vide order dated 15.2.2016 since the O.A. had become infructuous.
d) Subsequently, pursuant to the recommendations of the transfer and placement committee, the 2" respondent issued the impugned relieving order dated 30.3.2017 following the transfer order of the respondent No.1 also dated 30.03.2017 by which the applicant was transferred from Western -y Region to Southern Region.
e) The respondents have placed various grounds with details on the basis of which the applicant was transferred in administrative interest vide impugned order on account of irregularities committed ty him. These mainly pertain to a view taken by the Respondent No.2 and corjfirmed by the Respondent No.1 after consideration of inquiry report regarding applicant's inability/ failure to discharge his duties properly.
f) In support of the contentions of the respondents, it has been emphasized 0 that transfer is an All India liability, that transfer is a service condition, that on grounds of inefficiency, transfer is permissible in administrative interest, that unless malafide is established, Courts/ Tribunal are not liable fo interfere with the orders of the competent authority. The following judgments are relied upon:-
"j) V. Jagannadha Rao & Ors. Vs. State of A.P. And Others [(2001) 10 SCC 401] , ii} Union of India & Ors. vs, S.L. Abbas (citation not made available) iit} State of U.P. v. Siya Ram [2004{5) SLR 760 (SC)]
iv) Shilpi Bose and Ors. Vs. State of Bihar and Ors [ 1991 Supp (2) SCC 659] ;
v) Kendriya Vidyalaya Sanmgaathan Vs. Damodar Prasad Pandey and Ors [(2004)12 SCC 299]
vi) Mohd. Masood Ahmad Vs. State of U.P. And Ors. [(2007)8 SCC 150]
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vii) State of Haryana & Ors. Vs. Kashmir Singh and Anr. [(2010) 13 SCC 306]"
g) Respondents have also relied on Rule 23 of CCS (CCA) Rules 1965, which states that the applicant can prefer an appeal against the transfer order, Without exhausting the statutory remedies available to him, by preferring an appeal to the competent authority, he straight away approached this Tribunal challenging the order of the respondents. Hence the O.A. is premature and not maintainable under the Administrative Tribunal's Act, at this juncture.
4. In the rejoinder filed by the applicant, the contentions of the respondents made in the reply to the O.A. has been disputed while reiterating the contentions made in the O.A.
a) The applicant has submitted that the respondents have misinterpreted Rule 59 of Postal Manual Volume iV as the Rule is applicable oniy to Assistant Supdt of Post Offices/Assistant Supdt. of RMS and not to Superintendent of Post Offices(SPO) as misconstrued by the respondents. Nowhere in this rule is it specified that SPOs should not be posted to his home area. This is also not mentioned in the Transfer Policy dated 31.01.2014. The respondents are relying on a non existing transfer policy. The applicant has also denied the contentions of the respondents that the performance of the applicant and his achievement of target and objective was not up to the mark, which resulted in his transfer to Salem Division in March, 2015, which order was challenged before this Tribunal by way of O.A. 367/2015 (Supra). The Tribunal 'closed the O.A. as being infructuous' since the respondents suo moto cancelled the transfer order. The respondents failed' miserably to defend their case.
b) The applicant has replied to all the contentions raised by the respondents about the commission of alleged "irregularities" and inefficient discharge of duties on his part with all details. The applicant has denied the contentions/allegations.
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5. No sur-rejoinder/additional rejoinder has been filed by the respondents in the O.A.
6. Heard learned counsel for the applicant and gone through the O.A. along with annexures-A1 to A6, the rejoinder and the judgments relied upon by the counsel.
7. Heard the learned counsel for the respondents and gone through the reply along with Annxures Ri- R14, the Minutes of the transfer and placement Committee of the O/o. Chief Postmaster General, Tamil Nadu Circle, Chennai dated 28.3.2017, the additional reply affidavit filed by the respondents dated 17.4.2017 along with Annexures- R1 to R3 filed on the directions of the Tribunal and also the judgments relied on by the counsel.
8. The transfer policy dated 31.1.2014 (for adjudication in O.A.) at para - 4(ix) & (xi) relied upon by the applicant and respondents respectively, are extracted herein:-
"ix)} The station tenure for Gazetted Officers is normally four years which may be extended up to six years in individual cases in public interest. The powers for extending the station tenure beyond four years in respect of Group "A" Gazetted officers will be exercised by the Directorate. Such power in respect of Group 'B' Gazetted Officers shall rest with the CPMG,.
OD OOK SOO JOCK OC
xi) Gazetted and Non- Gazetted staff will not be transferred from a post before completion of the prescribed tenure. However, an officer/official may be "transferred from a post in administrative interest or at his/her own request provided he/she has completed at least one year in the said post. Leave of any kind exceeding 15 days will not be counted while computing this period.
Nevertheless, transfer of any officer/official before completion of one year in the post may be done in public
- interest but the reasons for the same should be recorded."
9. On the face of it, provisions of para-4(ix) read with para 4(xi) does not prima facie render the impugned order violative of policy since the officer may be transferred in administrative interest before completing the prescribed tenure. The main issue is the interpretation of the use of word 7 of 22 'administrative interest'. The question before the Tribunal is whether the impugned order was in letter and spirit administrative interest/ public interest and whether it was done as per laid down procedures.
10. Although the contention of the applicant is that he was transferred without his case being recommended by the concerned Committee, this is not borne out from record, in view of the minutes of the Transfer and Placement Committee of the O/o. Chief Postmaster Genera! dated 28.3.2107 placed before us. The applicant became aware of the minutes, a vital ') document in adjudication of this case, after it was made available to the Tribunal during the pendency of the O.A. by the respondents without an affidavit.
11. The minutes reads as follows:-
"In aceordance with the instructions contained in Directorate letter No. 4-09/2011-SPG (p1) dated 15.01.2014 and 30.03.2015, the transfer and placement committee, circle officer consisting of the following members met on 28.03.2017 and examined the transfer and posting of the Officers in PS Group B cadre:
1. A. Sarvanan Director Postal Services (HQ) O/o. Chief Postmaster General, Tamil Nadu Cirlce, Chennai 600 002 Chairperson 2.8, Arumugam, Assistant Postmaster General (Staff) O/o. Chief Postmaster General Tamil Nadu Circle, Chennai 600 002 Member
3. 8. Kumar, Assistant Director ( Rectt & Estt), O/o. Chief Postmaster General, Tamil Nadu Circle, Chennai 600 002 . Member The Chief PMG, Tamil Nadu Circle had observed the irregularities committed by the under mentioned officer and ordered in file No. VIG/36-98/27 to transfer him outside the Region:
Sl. No. | Name and of the Officer S/Shri Present ; Designation 2 T. Sahayaraju SPOs, Pollachi Division 2, Considering vacancies and administrative convenience, transfer and placement Committee recommends the following:-
Sl.No |Name and Regional allotment | Remarks Designation of the on transfer Officer S/Shri iT. Sahayarajau, SPOs, |Southern Region Vice vacant Pollachi Division post a~ \ 8 of 22
12. The above minutes read along with the counter affidavit shows that the AIPEU preferred a complaint dated 24.6.2016 against the applicant, on a set of grounds arising from an incident of sloganeering by GDS staff (office bearers of the Union) on 22.3.2016 before the applicant's office. The detailed grounds are placed before us by way of counter affidavit/rejoinder by the respondents and the applicant, respectively.
13. The respondents then conducted inquiry on the said complaint petition. The inquiry report of Shri B. Arumugam, SSPOs, Salem East Division who was directed to inquire into the matter on 6.7.2016, was submitted vide report dated 24.08.2016. In the meantime i.e. after the inquiry was directed on 6.7.2016 and before submission of the inquriy report, the applicant suo moto sent his report dated 08.08.2016 denying all allegations without issue of any direction, whatsoever, by the respondents, to reply to the allegations. 14, The report of SSP Salem (to the extent self-selectively extracted by the respondents in the counter affidavit) highlighted that no prior permission in writing had been taken by the GDS Union (part of AIPEU, which filed the complaint petition) for carrying out sloganeering and demonstration, resulting in action taken by the applicant against some of the office bearers of the Union. The report denied that any inhuman treatment was meted out to the GDS staff. But the report held that the applicant had called for the GDS staff for a review meeting at a scheduled time. Hence, if he was unable to take the review as scheduled, he should have informed the staff about the delay, since the applicant was available at that very office where the meeting was to be held. Had he done so, the problem that arose could have been avoided. On the allegations regarding attachments/deputations of staff causing loss to the exchequer and unnecessary dislocation, the SSP did not inquire fully into this matter. On the "behavior" issue of the applicant, nothing adverse was reported by the SSP, Salem, East Division. From the extracts of the above inquriy report provided before the Tribunal, only me reference was made to some attachment/deputations, as mentioned in the 9 of 22 complaint petition. However, the full report is not made available to us and hence the above observations of this Tribunal are recorded to the extent, self selectively extracted contents of the report in the counter affidavit permitted us to do so.
15. However, after receipt of the above inquiry report, the Respondent No.2 decided to call for a report from the applicant on 2.2.2017, to which, the applicant replied on 08.2.2017 and 09.2.2017, inter alia, justifying the © departmental! actions taken against the office bearers in the interest of the Department, justifying alleged stringency in grant of leave and also justifying deputations and attachments allegedly carried out in violation of the rules. He states that the attachments were done in view of the shortage of staff to the extent of 42 members against a sanctioned staff strength of 172. Due to shortage, grant of leave was also made on stringent grounds.
16. As the issue of attachment/deputations was also raised by some other officials of Pollachi Division and since this aspect was not inquired into fully and in detail by the SSP, Salem , East Division , Respondent No.2 directed Asst. Director (Staff) in the O/o. PMG, to verify the facts from records and submit his report. The Asst. Director (Staff) visited Pollachi on 15.2.2017 and 16.2.2017. As per selected extracts(full report not made available to the Tribunal), the AD held that each of the attachments/deputations etc, on examination were found to have been done in violation of the specific guidelines/rules.
i7. It is observed that some of the cases of attachment/deputations inquired into by the AD, which were reported in the complaint by the AIPEU. For e.g., one Sri Ayyasamy, who was departmentally proceeded against by the applicant for his participation in the demonstration event and who was punished by the applicant, as disciplinary authority, and which 10 of 22 punishment was upheld by the Director of Postal Services, as an appellate authority, was also one of the persons also subjected to the alleged attachment by the applicant. He was an office bearer of the AIPEU which filed the complaint petition. Some other cases of attachment/deputation were identified based on information produced by some other officials of Pollachi division. These cases were not listed in the complaint petition by the AIPEU. The AD's report covered all the above cases.
18. The entire matter was considered by the CPMG on a reference by Respondent No.2 dated 13.3.2017, who concluded that the applicant has not discharged his duties properly and had he been present at the time of review meeting of the GDS, the unfortunate Incqant and the departmental action against the GDS office bearers could have heen avoided. The view of the SSP in this particular regard, was upheld. It was also held that the applicant's claim that he did not have the time to inform the staff about the review meeting getting delayed on account of urgent matters that he had to attend to i.e. to attend to the court cases etc., leading to delay in the start of the review meeting, was not borne out from the records, On the issue of deputations etc, it was held that deputation/attachments were done in violation of rules and the report of the AD in this regard, was accepied. However, from the selected extracts of the report of the AD in the counter affidavit, no discussion appears to have been made by the respondents on staff shortage, although according to the applicant this was the main reason for deputation/attachments which was claimed to be done in administrative interest. As regards the behavior issues it was held by the Respondent Nos.1 &2 that applicant did not maintain decorum in his communication with the staff.
19. From the actions taken by the respondents, it shows that the union's complaint was fully looked into through two inquiries. No,show cause notice Il of 22 was issued, as the applicant gave a suo moto report and he first explained his position on 08.08.2016 and, later on, again on the direction of R-2, on 08.02.2017 to 09.02.2017. The reports and replies were considered by the respondents. After perusal of both the reports, the CPMG, however, decided to accept the report of the A.D. (Staff), which was completely adverse to applicant, while the SSP, Salem report, which was not entirely unfavourable to the applicant was accepted partially and only to the extent it was unfavourable to the applicant. On that basis R-1/R2 concluded that the applicant had committed * irregularities", |
20. Even if the respondents took a final view, wholly unfavorable to the applicant, the next logical and legal step was to call for explanation on both the reports, one wholly unfavourable and the other partially favourable. A perusal of the self selected extracts of AD" report and the SSPs report in the counter affidavit filed by the respondents shows that both the reports were not entirely mutually exclusive on the topics covered. There were some overlapping issues.
21. The next step was certainly not to connect to transfer based on finding by R-2/R-1 of 'irregularity' on the part of the applicant. The said adverse view taken by R2/R1 and the said view was accepted and adopted by the placements committee. This was not known to the applicant and, therefore, he had no opportunity to explain himself, before transfer was effected. So applicant's contention that the committee did not recommend for his transfer is not true, but the fact is it was not known to him and a decision was taken behind his back.
22. Hence, the issue of notice seeking applicant's explanation on the two reports by way of pre-decisional hearing was a necessary administrative bridge between the allegations, inquiry and the departmental proceedings vis-a-vis the allegations/inquiry and transfer. Agreeing or not agreeing with 12 of 22 the reports is the prerogative of the respondents. But to hold such agreement or otherwise, as a conclusion i.e. that enquiry has established the allegations and linking that conclusion with transfer was violation of orinciples of natural justice, which demanded that such a conclusion was fit to be held after seeking applicant's explanation on both the reports and after receiving the applicant's reply. Thereafter, decision as appropriate could have been taken including the decision to initiate departmental proceedings. Not having done so, the transfer order became punitive i.e. punishment being a predetermined outcome, by way of transfer without any pre-decisional hearing, which was indispensable before the transfer was effected, also since the applicant was held to have violated conduct rules and the findings were stigmatic, the right of an employee could not have been denied on the principles of natural justice. After hearing the applicant, it was up to the respondents to decide whether departmental enquiry was required to be initiated to prove or disprove the allegations, after giving full opportunity to the applicant for defence. Hence, we hold that in the light of the above discussions, prejudice was caused to the applicant.
23. Further, from the counter affidavit it is clear that a particular union complained against the applicant and the alleged irregularities flows from that complaint. In this connection, it is interesting to note that the applicant took departmental action against some office bearers of the GDS Union for sloganeering and for carrying out protests/demonstrations outside the office, on the ground that this was done without prior permission of the competent authority. For e.g., one of the office bearers, Shri Monoharan was issued charge sheet under Rule 10, in a valid and legal exercise of applicant's power, as a disciplinary authority. But the applicant himself let off the said office bearer with a censure after receipt of his statutory representation.
Even, thereafter, the DPS as appellate authority issued a show cause notice CER) i 13 of 22 as to why punishment should not be enhanced. No additional rejoinder has been filed by the respondents on this. Another office bearer, Shri Ayyasamy was charge sheeted under Rule 16 and punished with stoppage of increments for two years. This order was upheld by the DPS, as appellate authority. There is no additional rejoinder filed on this by respondents. i Hence, the inference is that both orders had attained finality. In respect of third office bearer, charge was framed and, admittedly, dropped by the applicant, subsequently. Hence, while concluding that irregularity was pmmitted by the applicant, which included the manner in which he allegedly mishandled the incident and office bearers, it became more than legal necessary and administratively desirable to call for the explanation of the applicant to offer an opportunity by way of a pre-decisional hearing. In doing so, the legal implications of punishing the applicant, who had taken legal action against the said office bearers around the same Incident should also have been considered by the respondents since the punishments had attained finality. Both amounted to accepting the guilt i.e. they indulged in | Ohemonstration without prior permission. In the pre-decisional hearing the | applicant would have had the opportunity to address these issues, which was not given. Hence, prejudice was caused to applicant in this respect also.
24, It is, further, also grossly evident that the Union's complaint of 24.6.2016 was motivated by the fact that applicant as a competent disciplinary authority initiated/contemplated action in accordance with law against the said office bearers of the Union in the manner stated in the foregoing paras of this order. The complaint was a retaliation, when at least two of the office bearers got punished and failed to succeed in individual | cases of departmental action taken by applicant, in accordance with law after exercise of due/competent authority. This could have been explained in the -
14 of 22 predecisional hearing, if applicant was given an opportunity. Hence, for this reason also, prejudice was caused to the applicant.
25. We now also see how the effect of the predetermined view advanced and carried the prejudice into the impugned transfer order. The minutes of the transfer and placements committee dated 28.3.2017 states that the transfer of the applicant was recommended by the committee "to the CPMG"
since "the CPMG" Tamil Nadu Circle observed some irregularities" on the part of the applicant and "ordered that he be transferred outside the region". It is evident that the transfer/ placement committee instead of examining the matter with an open, unbiased and unprejudiced mind, was forced into a situation, where they had to accept, the order of the CPMG, being a superior-most authority. Although it is stated in minutes that they considered vacancies, administrative convenience etc., but the outcome of such consideration was predetermined by the CPMG himself. They could not have differed from the CPMG. This is a very serious matter, as the action of the CPMG was a complete mockery of the "committee" system. The committee system was set up to impart transparency and neutrality. The action of CPMG rendered the committee system an empty formality. The committee did what the CPMG wanted and his 'direction had a part in restricting application of mind by the committee. Application of mind is a misnomer, where no choice actually existed. The CPMG was the cause of such preempting the committee from applying its mind. Hence, it is deemed that the committee also accepted the CPMG's conclusions that applicant has committed irregularities. They had no mandate to question in a committee meant for recommending transfer. Accordingly, the committee made the so called recommendations for transfer, while in fact it was complying with the directive of the CPMG to effect the transfer based on the conclusion of the CPMG that irregularities stood proved in the CPMG's perspective. This caused Be ian rir ee 15 of 22 further prejudice to the applicant as punishment by way of transfer became a fait accompli. Hence, the transfer was never a transfer simplictor. It was a self proclaimed 'punitive transfer order' by the office of the respondent No.1.
26. It is noted that the respondents held two inquiries and also called for applicant's report, on the SSPs report. But the fact is that the respondents concluded that irregularities were committed by the applicant without seeking applicant's explanation on both the inquiry reports, one unfavourable and the other not entirely unfavorable. R-i accepted the latter to the extent that it was unfavourable to the applicant, and held him guilty of having committed irregularity. Hence, although the transfer order shows that it was issued in administrative interest, the pleadings in the counter affidavit leave us in no doubt that the transfer order was issued by way of punishment.
27. We have carefully looked into the contentions of the applicant that the relieving order was issued to him before the transfer order. In the additional! affidavit, filed by the respondents on the direction of the Tribunal, it is clear that the applicant has given his acknowledgment to the receipt of the transfer order after 03.04.2017. We are not inclined to accept the applicant's contention in this regard.
28. It is also true that the place of posting was not shown in the relieving order and also in the transfer order as revealed in the course of O.A. It was subsequently mentioned as Tallakulam vide order of the same date 30.3.2017. No doubt, it can be deemed that the said order mentioning the place of posting would have been issued subsequent to the transfer order mentioning only the region of posting but transfer orders, relieving orders and posting orders have all been issued on the same date. We are not inclined to hold that any filegality has been committed by the respondents in this respect.
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29. Notwithstanding the above two paras 27 and 28, we hold that the prayer in the Q.A, is liable to be decided in favour of the applicant and the - impugned order is liable to be set aside. Setting aside the impugned order will, however, not mean that the respondents are not entitled to consider proceeding against the applicant in accordance with law after affording sufficient opportunity to the applicant to defend himself.
30, Both the learned counsel for the applicant and the respondents have relied on the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Sri Janardhan Debanath & Anr. reported in CDJ 2004 SC 409 in Civil Appeal No. 1010-1011 of 2004 dated 13.2.2004 in support of their contentions. Hence, before a view is taken by this Tribunal on the basis of the said judgment, the judgment require discussions in some detail. In the said case, the matter pertained to the respondents charged with mis-behaviour with the Director of Postal Services, a senior lady officer, who was confined and dragged to force her to withdraw a charge sheet issued on them, after using filthy language and for physically manhandling her. The respondents were transferred. The Hon'ble Supreme Court reversed the view of the Hon'ble High Court to hold that there was no violation of Rule 37 of Postal & Telegraph Manual Vo!. IV or FR 15. FR 15 lays down the transfer on account of inefficiency or misbehavior was permissible. The Hon'ble Supreme Court held that there was no malafide exercise or power.
31. The learned counsel for the respondents contends that same view is applicable in the present case. But the learned counsel for the applicant contends that the matter before the Hon'ble Apex Court was far too serious and the same ratio is not applicable in the present case, since he, inter alia, . proceeded departmentally against the office bearers for misbehavior and violation of conduct rules, in accordance with law, and concluded the proceeding in an appropriate manner. He himself was also no cause of i 17 of 22 misbehavior. The magnitude of the misbehaviour and the transfer of respondents in administrative interest in the case of Sri Janardhan Debnath & Anr. (Supra) cannot be compared with the present case. We hold that there is force in the contention of the learned counsel for the applicant and hence the said judgment is distinguishable.
32. We now briefly refer to other judgments relied upon by the learned counsels for the applicant and also by the respondents as stated in the counter affidavit and brought up in the course of oral arguments.
33. The applicant has rightly relied upon the judgment in Writ Petition No. 3978 of 2005 & batch cases ( S.Sevugan Vs. Chief Edu. Officer & Anr.) Madras High Court, Madurai Bench dated 25.1.2006 reported in CDJ 2006 MHC 1545 wherein the court held at paras 7,8 and 9 as follows and which are extracted hereunder:-
«7, It is seen from the impugned order of transfer that it is passed on administrative ground, 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 an enquiry.
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.
9. The setting aside of the impugned order does not mean that the respondents are not entitled to proceed agdinst the petitioner in accordance with law. If there is a compliant against the petitioner, especially in respect of moral behaviour, it is certainly the duty on the part of the respondents to take action in accordance with law and that should be done only after affording sufficient opportunity to the petitioner and to make proper enquiry in the manner known to law."
34, Similarly in the case of R. Ponnusamy Vs. The Director General of Police, Chennai & Ors. Reported in CDJ 2011 MHC 3593 in W.P. No. 23205/2010 dated 29.4.2011, the Hon'ble High Court of Madras held as "4 18 of 22 follows at para 10 of the judgment, which is extracted as under:-
"79, It is well settled by the Courts that no transfer order transferring Government servant under administrative reason shall be interfered with by any Court of law. Further, it has been equally settled by the Court that if any transfer order is passed by the department by way of punishment, the. same cannot be resorted to except by conducting an enquiry. Though the impugned order of transfer shows that the order is passed on administrative ground, the counter read with an order passed by the Director General of Police in RC No.140450/NGB.IV(2)/ 2010, dated 29.09.2010 shows that the writ petitioner Mr.R.Ponnusamy, HC 1849, PRS, Coimbatore has violated the Government Servant's Conduct Rules by administering "Athiparasakthi Temple" in the nick name of "SMT Pons" and also issued pamphlets in the name of "SMT Pons" to worship "Naga '@) Thevathai". The said order further says that he was transferred and posted to Tiruppur district. In view of the reading of Counter also supports the case of the petitioner that the order of transfer was not passed on administrative ground, but only by way of punishment based on the complaint against the petitioner, That be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaint against him by the Public or anybody is proper or not by way of an enquiry.
The said judgment applies on all fours to the present case .
35. Allowing the appeal, K. Anbalagan Vs. The Director of Elementary Education, Chennai & Ors. in Writ Appeal (MD) No. 994 of 2011 QO dated 01.11.2011 before the Hon'ble High Court of Madras, relying the judgment in Somesh Tiwari Vs. Union of India the court held as follows:
"8. xxx xx xxaxxn. With respect, we are unable to agree with the view expressed by the writ Court as it is very much evident from the perusal of the impugned transfer order that such order had been passed not on any administrative ground and on the other hand, by way of awarding punishment, the said order was passed on certain allegations in respect of the conduct of the appellant herein. At this juncture, it is relevant to refer to the principles laid down by the Hon'ble Apex Court in its decision, Somesh Tiwari vs. Union of India, reported in (2009) 3 MLJ 727 (SC). The Hon'ble Apex Court, in the said decision, held in paragraphs-19 and 20 as fotlows:-
TY EX ANNE NANI POXXEX XXXKX JOOxx. 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
19 of 22 passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
36. In Sri Sukanta Mallick.vs. Union of India & Ors. in W.P.C.T. No. 68 of 2013 dated 09.04.2013 before the High Court of Calcutta, the Writ Petition was allowed holding that even if a competent authority issues transfer on the ground of inefficiency or misbehavior, without the employee facing departmental inquiry, it would mean that unbridled power is given to the employer, which is dangerous. The relevant para is extracted here under:-
© 49, XXX XXNNK xXXxX. If we accept Mr. Banerjee's argument that Rule 227 empowers the competent authority to transfer a raihvay servant on the ground of inefficiency or misbehaviour without holding a departmental enquiry, it would mean that unbridled power would be vested in the competent authority to transfer an employee. Such unfettered and untrammelled power cannot be vested in an officer of the railways so as to transfer an employee as this could be used as a weapon against an employee who does not find favour with his superior officer."
37. Further, a fact finding committee gave its report in the above case, which did not recommend transfer. The court held that iridustrial peace cannot be established by throwing the principles of natural justice to the winds. No rule provides that principles of natural justice need not be adhered to. The court also concluded that the respondents, without reason, avoided holding a departmental inquiry to prove/disprove the allegations. The said judgment squarely applies to the applicant's case.
38. In S. Sivalingam vs. The Principal Commissioner and Commissioner & Ors. In W.P. No. 708 of 2013, the Hon'ble High Court of Madras dated 04.02.2014, allowed the Writ. The said judgment also applies to the present O.A.. The relevant paragraphs are extracted hereunder:-
" But, in the instant case, the reason assigned by the respondents in the counter for transferring the petitioner from Settlement Wing to Survey Wing is that the petitioner is having a habit of not following the office procedures and was found violating the Rules and therefore, they decided to transfer the petitioner from 20 of 22 Settlement Wing to Survey Wing. The said reason assigned by the respondents cannot be construed as a special circumstances to invoke the provisions under Rule 20(a) of the Tamil Nadu Ministerial Service Rules. Further, if any such order of transfer is passed on that allegation, it will be against the ratio laid down by the Hon'ble Supreme Court reported in 2009 (2) SCC592 (Somesh Tiwari versus Union of India and others), wherein it has been held that if any order is passed in lieu of punishment without providing any opportunity, the same would be liable to be set aside as wholly illegal. Therefore, from the reason assigned by the respondents to transfer the petitioner, it could be construed that the transfer of the petitioner from Settlement Wing to Survey Wing is a transfer of punishment. But, there cannot be any punitive transfer without providing an opportunity to the concerned person. Therefore, I am not inclined to accept the submission made by the learned Additional Government Pleader that the transfer of the petitioner from Settlement Wing to Survey Wing is only in accordance with the Rule 20(a) of the Tamil Nadu Ministerial Service Rules. Further, I am of the opinion that in the absence of any special circumstance, the transfer of the petitioner from Setilement Wing to Survey Wing is not sustainabie in law."
39. In the case of C. Jane Margret Vs. Bishop, W.P. (MD) No. 12058/2013 dated 14 July 2014 before the Hon'ble High Court of Madras, relying on the judgment of the Somnesh Tiwari Vs. Union of India, (Supra) held, as extracted hereunder:-
"76, Even though the first respondent wantiyd the transfer order to be considered as an ordinary order of transfer made on administrative exigency, the background facts speak otherwise."
40. In S. Porchezhian vs. the Joint Director in W.P. No. 17808 of 2014 before the Hon'ble High Court of Madras dated 09.03.2015, the Court again relying on the judgment in Somesh Tiwarai Vs. VOI & Ors. (Supra) & P. Pushpakaran vs. Coir Board & Anr., allowed the appeal. The Court held as follows:-
"47, In P. Pushpakaran V. Coir Board and another 1979 (1) LLJ 139 (Kerala) V. Khalid, J (as His Lordship then was) observed that a transfer can uproot a family, cause irreparable harm to an employee and drive him to desperation, The learned Judge Jurther satd:
"a4, The right to transfer an employee is a powerful weapon in + the hands of the employer. Sometimes it is more dangerous thar other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is extensible *
--_------_-- | 2] of 22 in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a storm petral. When the Court is alerted, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. This court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer."
41. Similarly in the order of the Tribunal in O.A. 1280/2015, it was held that the facts of the case cannot by any stretch of imagination, be treated as transfer due to administrative exigencies. This Tribunal held that "what is contemplated under law is that if an official indulges in misconduct, he should be dealt with departmentally and he should not be transferred by way of punishment."
42. Reliance on K. Kaliappan Vs. The Commissioner of Adi Dravidar Welfare in W.P. No. 12963/2016 dated 24.08.2016 by the applicant may not be relevant since the transfer order was issued even without a preliminary enquiry. The facts of the case are clearly distinguishable.
43. The case of K. Selvarajan Vs. The General Manager, Tamil Nadu Tourism Development Corporation Ltd, Chennai & Anr in W.P. (AD). No. 3972 of 2011 before the Madurai Bench of Madras High Court is also not applicable since the Transfer was effected after disciplinary proceedings were completed and punishment was undergone.
44, Per contra, the respondents have relied upon a number of judgments in the reply, which are reproduced earlier in this order which in our view, are distinguishable. Undoubtedly, transfer is an incident of service condition. It cannot be disputed that the applicant has all India transfer liability. It is also settled law that the order of transfer should normally not be countenanced by the Tribunal as though the Tribunal is an appellate authority over such orders as this would involve adjudication of facts, which the Tribunal is not legally liable to go into. However, it is also settled law that if an order is shown to be an outcome of a malafide exercise of authority or in violation of ?
4) 22 of 22 policy/statutory provisions, or if it is done as a punitive measure or if it is done in violation of principles of natural justice, then courts are bound to go Into the these aspects, notwithstanding the fact that orders of transfer can be passed in administrative exigencies. Then, such case can come within the purview of Tribunal's interference.
45, In this case, there was no violation of policy in letter, but there was violation in spirit. 'Malafide in faw' and 'malafide in fact', are distinguishable. Respondents have to withstand judicial scrutiny on both counts. The applicant's case stands established that the transfer was done in ifeu of punishment without giving due and full opportunity to applicant to defend against the stigmatic findings, which led to the transfer.
46, Before we finally conclude, we note that the respondents have contended that applicant has approached the Tribunal without exhausting departmental remedies, by way of appealing against the transfer order, It is settled law that where violations of principles of natural justice is involved, nothing prevents the aggrieved from approaching the Court/Tribunal, nor is the Tribunal barred from entertaining such cases. In this case, it is also relevant to note that the applicant was not granted interim relief and he was forced to proceed on leave. Since, the counter affidavit read with the minutes of 28.3.2017 speaks volumes for the manner in which applicant was condemned before being heard, we have no doubt that, in the interests of justice, adjudication of the OA by the Tribunal became the prime/ appropriate course of action. The OA is therefore maintainable, not withstanding, that applicant had not exhausted departmental remedy which in any case, is not contended to be a statutory remedy.
47, Accordingly, the impugned order is quashed and set aside and the O.A. is allowed, There shal! be no order as to costs.