Andhra Pradesh High Court - Amravati
G Ravi vs The State Of Ap on 7 October, 2023
THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION NO.6442 OF 2023
ORDER:
1. This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
"To issue Writ of Mandamus declaring the action of the Respondents in transferring the petitioner by way of punishment, which is punitive in nature and on an anonymous complaint made by a rival union members vide Proc.No.E2/813(01)/2023- IBM dated 13.03.2023, middle of the Academic Year and without there being any disciplinary case against the petitioner a high handed and arbitrary action, contrary to APSRTC Regulations, without jurisdiction, contrary to the circular instructions and as such liable to be set-aside with a consequential direction to the respondents herein to continue the petitioner at Ibrahimpatnam Depot forthwith with all consequential benefits."
2. Initially, the petitioner was appointed as Driver in the in Andhra Pradesh State Road Transport Corporation, and due to his medical unfitness, he was provided with alternative employment as Assistant Mechanic in the year 2016 and presently, he is working at Ibrahimpatnam Depot.
3. It is the case that, upon advice of the Depot Dispensary Doctor, the petitioner was on sick leave from 12.01.2023 to 21.01.2023 due to hypertension related issues. After completing the leave period, the petitioner reported to duty before the Depot Manager. It is alleged that the Depot Manager verbally abused the NV,J WP_6442_2023 2 petitioner using offensive language. This incident garnered media attention when rival union members alleged that the Depot Manager mistreated his employees, and it was covered in the press. Subsequently, an enquiry was conducted, accusing the petitioner of being involved in the publication of the news article. Further, without providing a reasonable opportunity of hearing to this petitioner, the Depot Manager transferred the petitioner from Ibrahimpatnam Depot to Tiruvuru Depot, vide proceedings No.E2/813(01)/2023-IBM dated 13.03.2023. The contention of the petitioner is that, such punishment is not prescribed under the rules governing the service conditions of employees and imposition of such punishment of transfer to the petitioner is illegal and requested to set-aside the same.
4. On behalf of Respondent Nos.2 to 4, Respondent No.2 - Law Officer, APSRTC, Vijayawada, Krishna District, filed counter affidavit denying material allegations. It is stated that, since the petitioner does not have clean record in his entire service, he was asked to meet the Depot Manager for formal counsel to improve his attendance in his duties, but during counselling, the petitioner recorded the entire counselling scene without knowledge of the Depot Manager and posted a whatsapp message threatening to commit suicide. It is also stated that the petitioner made viral NV,J WP_6442_2023 3 through his whatsapp groups and ensured to publish entire episode in Andhra Prabha newspaper with content "RTC LO AAGANI VEDHIMPULU" which was published that the Depot Manager in NTR District is subjecting the employees of Ibrahimpatnam Depot to harassment. Consequent upon the news clipping on 29.01.2023, the Security Head Constable of Ibrahimpatnam reported that the petitioner had played the same tactics of suicidal intimidation and blackmailing to commit suicide with the then AE(M)/IBM for informing him to reduce unauthorized absenteeism. Due to his whimsical, unruly and suicidal threatening behaviour and making viral of video, it may have impact on the good image of the corporation and may cause damage to the discipline among the staff.
5. It is further stated that vide Item No.9 of the RTC (Conduct) Regulations, no employee shall make any statement to the press or contribute any article or write any letter to the press either anonymously or in his own name or in the name of any other person or give any talk on the radio, directly or indirectly connected with the corporation without the prior sanction of competent authority. But, the petitioner was responsible for publication of news content since the video was leaked from his mobile.
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6. It is submitted that, a preliminary enquiry was conducted by the corporation to pacify the intense environment created by the petitioner to reduce commotion amongst the employees, wherein in the report, it was opined that the petitioner caused disturbance amongst the employees of the corporation by circulating the video in whatsapp groups and even sending to higher officials. Since the petitioner created unrest amongst the employees and due to the behavioural pattern of the petitioner, the higher official are scared to deal with the petitioner. Thus, on account of the situation, to reduce the commotion amongst the employees and to pacify the intense environment, the petitioner was just transferred temporarily for 1 year period that to on reliving duty on administrative grounds, dehorse the report. Thus the relieving duty is on administrative grounds but not as a punishment, to pacify the issues.
7. During hearing, Sri S.M. Subhan, learned counsel for the petitioner would submit that the Depot Manager, Ibrahimpatnam Depot issued the present proceedings, exceeding his jurisdiction, even though he is not a disciplinary authority, in view of the merger of the Corporation into the 1st respondent State, therefore, the proceedings are vitiated by law. Learned counsel argues that the impugned proceedings dated 13.10.2016 were initiated solely NV,J WP_6442_2023 5 on the basis of an allegation regarding the publication of a news item against the Depot Manager. This allegation was made by another employee, who, notably, faced no legal action or disciplinary measures. However, in contrast, the petitioner was transferred without any such allegations being substantiated against them. Learned counsel further asserts that the petitioner's transfer was executed with an underlying motive. This is evident as the petitioner was transferred while a complaint case was still pending. It is worth noting that the transfer was executed in a manner that retained long-standing employees at the Depot, implying that if the transfer were purely for administrative reasons, the standard procedure would have been to consider transferring the long-standing employee first and requested to allow the writ petition.
8. Whereas, Sri Solomon Raju Manchala, learned Counsel appearing for Respondent Nos.2 to 4, vehemently opposed the relief claimed in the writ petition, contending that the petitioner is not imposed with any punishment and in fact he is transferred temporarily on relieving duty from one year to pacify the environment and in fact, the regulations of APSRTC are in force by virtue of Amendment to The Andhra Pradesh State Road Transport Corporation (Absorption of Employees into Government NV,J WP_6442_2023 6 Service) Act, 2019, as such the petitioner needs no consideration and therefore, there is no illegality in the proceedings dated 13.03.2023 and requested to dismiss the writ petition.
9. Heard learned counsel for the petitioner, learned counsel appearing for Respondent Nos.2 to 4 and perused the material available on record.
10. The petitioner has not challenged his transfer order on the ground that the service rules governing him prohibit such a transfer. The main thrust of his arguments is that his transfer order is tainted with malafides, punitive and is stigmatic in nature. Admittedly, no formal procedure was adhered to during the inquiry process, and no notification or report was provided.
11. Undoubtedly, transfer is incidence of service, but it shall never be punitive in nature. The power of transfer is only to be used for administrative exigency to ensure efficiency, but cannot be used as a means of punishment. In fact, the present impugned proceedings does not speak any administrative exigencies, but due to the enquiry reports which are unknown to the petitioner, the impugned proceedings were issued for other reasons particularly as punitive measure only.
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12. The only reason assigned by the respondents for transfer of the petitioner is misconduct. However, the petitioner was transferred as a measure of punishment. The very allegation in the transfer order is sufficient to draw inference that the transfer order is punitive in nature and motivated. Therefore, such punitive transfers or motivated transfers cannot be upheld by this Court, since such transfers will have serious effect on the career and family life of these petitioners.
13. The fact remains that the order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the petitioners in the anonymous complaint/articles in newspapers. No doubt, the employer is entitled to pass an order of transfer in administrative exigencies but order(s) of transfer cannot be 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. It appears that the order of transfer is influenced by extraneous considerations which ought not to have been taken into account, as such the decision cannot stand. Here, it appears that the power was exercised with personal animosity or malice. When the order of transfer is effected without there NV,J WP_6442_2023 8 being any misconduct or misbehaviour on the part of the petitioners, such impugned transfer proceedings would not sustain under law and are subject to legal scrutiny.
14. When similar issue i.e. transfer of employee on administrative ground, came up before the Division Bench of this Court in "General Manager, South Central Railway v. Syed Abdul Kareem1", it is observed that, transfer is an incident of service and per se has no adverse consequences while referring to the judgments of the Apex Court in "B.Varadha Rao v. State of Karnataka2" "Shilpi Bose v. State of Bihar3" "Union of India v. N.P. Thomas4" "Union of India v. S.L. Abbas5" "Mohd. Masood Ahmad v. State of U.P.6" and concluded that the order of transfer is vitiated for extraneous considerations and on account of non-compliance with principles of natural justice, therefore, the writ petition is allowed. In "General Manager, South Central Railway, Rail Nilayam, Secunderabad v. S.Srinivasa Rao7" when an employee was transferred straightaway on administrative ground without giving reasonable opportunity and without considering the family condition, the 1 2010 (3) ALD 650 2 (1986) 4 SCC 131 3 1991 Supp (2) SCC 659 4 1993 Supp (1) SCC 704 5 (1993) 4 SCC 357 6 (2007) 8 SCC 150 7 2011 (5) ALD 709 NV,J WP_6442_2023 9 Division Bench of this Court held that the transfer of employee is an incidence of service and it is well settled that it should not be interfered with unless mala fides are proved. Apart from that, the Apex Court in "Union of India v. Sri Janardhan Debanath8"
held that if the transfer order is passed in public interest, it could not have been interfered with.
15. In "Somesh Tiwari v. Union of India9" the Apex Court has considered the similar issue and held that an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incidence of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the 8 2004 (3) ALD 34 (SC) 9 (2009) 2 SCC 592 NV,J WP_6442_2023 10 same is liable to be set aside being wholly illegal. Thus, the law laid down by the Apex Court and this Court is consistent that the punitive punishment on irrelevant ground is illegal and liable to be set aside.
16. Governor of Andhra Pradesh promulgated Ordinance No.4 of 2023 on 26.06.2023 to amend the Andhra Pradesh State Road Transport Corporation (Absorption of Employees Into Government Service) Act, 2019, published in AP Gazette Notification (Part-1 Extraordinary) wherein the Government of Andhra Pradesh absorbed the employees of APSRTC into government Service with effect from 01.01.2020 by creating „Public Transport Department‟ as Head of the Department under the administrative control of T,R& B Department. The Ordinance reads as follows:
1.........
2. In the Andhra Pradesh State Road Transport Corporation (Absorption of Employees into Government Service) Act, 2019, the following provisos shall be added to Section5.
Provided that the APSRTC Employees (Service) Regulations, 1964, APSRTC Employees' (Conduct) Regulations, 1963 and APSRTC Employees' (CC&A) Regulations, 1967 shall continue to govern the Service conditions of the employees of Andhra Pradesh Public Transport Department (APPTD) until further rules consequent to the absorption are framed by the Government under Sections 4 and 5 of the Act 36 of 2019.
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17. Hence, in view of Andhra Pradesh Ordinance No.4 of 2023 dated 26.06.2023, APSRTC Employees (Service) Regulations, 1964, APSRTC Employees‟ (Conduct) Regulations, 1963 and APSRTC Employees‟ (CC&A) Regulations, 1967 shall continue to govern the Service conditions of the employees of Andhra Pradesh Public Transport Department (APPTD) until further rules consequent to the absorption were added to Section 5. Hence, the contention of the learned counsel for Respondent Nos.2 to 4 that regulations of APSRTC are in force by virtue of Andhra Pradesh Ordinance No.4 of 2023 i.e. amendment to Andhra Pradesh State Road Transport Corporation (Absorption of Employees into Government Service) Act, 2019 is acceptable. Therefore, the petitioner is governed by the service, conduct and CC&A conditions, as envisaged under the APSRTC Regulations i.e. APSRTC Employees (Service) Regulations, 1964, APSRTC Employees‟ (Conduct) Regulations, 1963 and APSRTC Employees‟ (CC&A) Regulations, 1967.
18. In view of the law declared by the Supreme Court and other Courts, the punitive transfer as punishment is not prescribed under the Regulations issued by the Corporation and such transfer is illegal and arbitrary an the same is liable to be set- aside.
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19. Hence, the writ petition is allowed with the following directions:
a) The action of the respondents in transferring the petitioner vide Proceedings No.E2/813(01)/2023-IBM dated 13.03.2023 is declared as illegal and arbitrary;
b) Proceedings No.E2/813(01)/2023-IBM dated 13.03.2023 are hereby set-aside;
c) The respondents are directed to continue the petitioner at Ibrahimpatnam Depot;
d) It is left open to the respondents to take appropriate action for the alleged misconduct of the petitioner, if any proved against them, strictly adhering to A.P.S.R.T.C (Conduct) Regulations and A.P.S.R.T.C (CC&A) Regulations governing the employees of the Andhra Pradesh State Road Transport Corporation.
Consequently miscellaneous petitions pending, if any, shall also stand closed.
____________________________________________ JUSTICE VENKATESWARLU NIMMAGADDA Date: 07.10.2023 SP