Madras High Court
V.Ramachandran vs The Secretary To Government Of Tamil ... on 12 July, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/07/2010 CORAM THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN W.P.(MD)No.6590 of 2010 and M.P.(MD)Nos.1 and 2 of 2010 V.Ramachandran ... Petitioner Vs 1.The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Chepauk, Chennai. 2.The Director, Municipal Administration and Water Supply Department, Chepauk, Chennai. 3.The Commissioner, Dindugul Corporation, Dindugul District. ... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to call for the records of the 2nd respondent in his proceedings Na.Ka.No.20312/2010/K2, dated 03.05.2010 and quash the same as void. !For Petitioner ... Mr.S.Palanivelayutham for A.Chandarakumar ^For Respondents ... Mr.R.Janakiramulu Special Government Pleader :ORDER
Heard both sides.
2.In this writ petition, the petitioner challenges the order of transfer passed by the 2nd respondent, dated 03.05.2010.
3.The case of the petitioner is that the petitioner is working as Revenue Assistant in the Dindugul Municipally and on 15.04.2010, the 3rd respondent issued a charge memo and call for explanation and the petitioner has given an explanation, dated 17.04.2010. Thereafter, the impugned order of transfer was passed by the 2nd respondent transferring the petitioner to Pudukottai Municipality without assigning any reason. In the writ petition, the petitioner challenges the order of transfer on the ground that there is a ban on general transfer and the order is passed without getting permission from the Personnel and Administrative Reforms(S) Department and there is no provision for transferring an employee when complaint was made against him.
4.The 3r respondent filed a counter stating that the petitioner is involved in a criminal case in Crime No.104 of 2006 and he was placed under suspension, by order, dated 23.03.2006 and an enquiry was conducted in respect of the conduct of the petitioner that he threatened the higher officials and the final order is yet to be passed. It is further stated on 05.04.2010 a complaint was made against the petitioner by the President of Chamber of Commence, Dindigul and similar complaint was made by Mr.K.Raviswaran working as Revenue Assistant in the 3rd respondent in respect of non-collection of property tax and a charge memo was issued to the petitioner and the petitioner has not sent any reply and considering all these circumstances, the performance of the employer, who is expected to work with all devotion, honest and integrity, realising that the performance of the employee is not upto satisfaction and the nature of the work involves mingling with the member of public, the petitioner was transferred on administrative ground and there was no stigma attached to the transfer order. It is further stated that Mr.Kalimuthu, who was transferred from Pudukottai to Dindigul Municipality also joined in the Dindigul Municipality and the petitioner was already relieved of his duty. It is further stated that the transfer order was passed only on administrative reasons and there is no necessity to apply to the Government for getting permission.
5.The learned counsel appearing for the petitioner submitted that the order is mala-fide and with a mala-fide intention, the 3rd respondent passed the impugned order and after issuing a charge memo against the petitioner, this order of transfer was passed as a punishment and hence, it is liable to be set aside.
6.The learned counsel appearing for the petitioner also relied upon the judgments reported in (2009)5 CTC 231[R.Mohanasundaram vs. The Principal Chief Conservator of Forests, Panagal Buildings, Saidepet, Chennai-600 015 and two others & (2009)3 MLJ 727(SC) [Somesh Tiwari vs. Union of India and others] and contended that as per the above judgments, the transfer is liable to be set aside as it was passed with a mala-fide intention and it is punitive in nature. He further submitted that though in the impugned order of transfer it was stated that the order was passed on administrative grounds, in the counter the 3rd respondent has stated the reason for transfer and therefore, it would prove that as a punishment the petitioner was transferred and hence, the transfer is liable to be set aside.
7.On the other hand, the learned counsel appearing for the 3rd respondent, Mr.R.Janakiramulu, the Special Government Pleader submitted that the petitioner has not stated anything about the mala-fide or punitive in the affidavit filed in support of the writ petition and in the absence of making any allegation regarding mala-fide and punitive in the affidavit, it is not open to the petitioner to allege these aspects in the course of argument.
8.According to the learned counsel appearing for the 3rd respondent, in the counter, it has been stated the reason for transfer and it has been specifically stated there is no stigma attached to the transfer and even though, the charge memo was issued against the petitioner it is not a bar for transferring an employee on administrative grounds and in this case, the order was passed purely on administrative grounds and it was not a case of punitive transfer. In support of his contention, the learned counsel appearing for the 3rd respondent relied upon the judgment reported in (2004) 7 SCC 405 [State of U.P. v. Gobardhan Lal] and AIR 2004 SC 4121 [State of U.P. vs. Siya Ram and another].
9.Heard both the counsels.
10.It is settled proposition of law that a transfer order can be challenged only on the ground of mala-fide or punitive or without jurisdiction. In this case, as pointed by the learned counsel appearing for the 3rd respondent, in the affidavit filed in support of the writ petition, petitioner has not stated anything about the mala-fide or punitive nature of the transfer order and only in the course of argument, it is stated that the order of transfer is liable to be set aside on the ground that it was issued with mala- fide intention and it is in the nature of punishment.
11.In the judgment relied upon by the learned counsel appearing for the petitioner, it has been held that even though the order of transfer is stated to be on administrative grounds after it is proved that the order of transfer is punitive in nature, the same is liable to be quashed and as a matter of fact in the judgement reported in 2009(5) CTC 231, [R.Mohanasundaram vs. The Principal Chief Conservator of Forests and two others], this Court has held that in the counter filed by the 3rd respondent, it was made clear that the order transfer was passed by way of punishment on the basis of certain allegations and adverse remarks made against the petitioner and on that ground, the order of transfer was quashed.
12.The Honourable Supreme Court in the judgment reported in 2009(3) MLJ 227 = AIR 2009 SC 1389 in the case of Somesh Tiwari vs. Union of India and others held as follows:
"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 same is liable to be set aside being wholly illegal."
Therefore we will have to see whether the impugned order of transfer is punitive in nature or issued with mala-fide intention.
13.Further, in the Division Bench of this Court, in the unreported judgment, dated 24.04.2009 in W.A.No.1138 of 2008, similar view was also taken by this court. (A.Micheal Raj vs. Director General of Police and others) held thus:
"Though in the impugned order of transfer it is stated as if the transfer has been effected on administrative grounds, the same has been given a go-by in the counter affidavit filed by the respondents as stated above. As per the averments contained the counter affidavit the transfer was passed on some adverse remarks/complaints received against the appellant and also on the basis of the report sent by the Director General of Police to the Inspector General of Police, West zone, and in such circumstances we are of the considered view that the order of transfer passed against the appellant is by way of punishment and that too without giving any opportunity of hearing to the petitioner."
Therefore, from the above judgments, it is seen that when the transfer order was made on the basis of the report or on the basis of the charges levelled against the petitioner, the same is punitive one when the order was made without giving opportunity, the order is liable to be set aside.
14.Further in the judgment reported in AIR 1964 SC 962 in the case of of C.S.Rowjee, represented by Power of Attorney holder Sri C.Apparao Rowjee vs. The State of Andhra Pradesh and others, it has been that "It is true that allegations of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is also somewhat unfortunate that allegations of this nature which have no foundation in fact, are made in several of the cases which have come up before the Supreme Court and other courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not, some of it at least might stick. Consequently, it has become the duty of the Court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus cast on the courts it would conduce to a more satisfactory disposal and consideration of time, if those against whom allegations are made came forward to place before the court either their denials or their version of the matter, so that the court may be in a position to judge as to whether the onus that lies upon those who make allegations of male fides on the part of authorities have discharged their burden of proving it. In the absence of such affidavits or of materials placed before the court by these authorities, the court is left to judge of the veracity of the allegations merely on tests of probability with nothing more substantial by way of answer."
19.As held by the Honourable Supreme Court, the allegations of mala-fide and the reason for holding that the order is by way of punishment have to be specifically stated so as to enable the opposite side to give reply and in the absence of such affidavits or materials, the Court cannot go into the such allegations.
20.In this case also, as rightly submitted by the learned counsel appearing for the 3rd respondent in the counter no allegation has been made regarding the mala-fide or punitive nature of the transfer and therefore, in the absence of such allegation, it cannot be gone into.
21.Further, according to me, in the counter the 3rd respondent has stated the reason which is quoted above and considering all these aspects, it cannot be stated that the order of transfer is mala-fide one and it was passed as a punishment. As a matter of fact, in the judgment reported in (2004)4 SCC 443 in the case of Union of India and others vs. Janardhan Debanath and another, the Honourable Supreme Court has held that unless the order of transfer is shown to be an outcome of mala-fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Court or the tribunals normally cannot interfere with such orders as a matter of routine.
22.Further, in the judgment reported in (2004) 4 SCC 243, in the case of Union of India and others vs. Janardhan Debanath and another, the Honourable Supreme Court held as follows:- " The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether the use of the word "undesirable" casts a stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions- status, service prospects financially- and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceedings. For the purpose of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authorities concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be instated upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the others."
Therefore, the Honourable Supreme Court has held that the order of transfer cannot be said to be punitive in nature and the holding of an enquiry need not be insisted upon for the purpose of transferring an employee in public interest and due to exigencies of administration and to enforce decorum and ensure probity a transfer order can be passed.
23.Therefore, in my opinion, the petitioner has not proved that the order of transfer was passed with mala-fide intention or punitive in nature and the 3rd respondent has explained the reason for transfer in the counter which would also prove, it was made in the interest of the petitioner and the 3rd respondent and it cannot be termed as punitive in nature merely because some instances against the petitioner were stated in the counter.
24.Hence, I do not find any merit in this writ petition and accordingly, it is dismissed dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs er To
1.The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Chepauk, Chennai.
2.The Director, Municipal Administration and Water Supply Department, Chepauk, Chennai.
3.The Commissioner, Dindugul Corporation, Dindugul District.
4.The Special Government Pleader, Madurai Bench of Madras High Court, Madurai.