Andhra HC (Pre-Telangana)
Apsrtc, Mushirabad, Hyderabad And Ors. vs C. Pentaiah on 27 February, 1998
Equivalent citations: 1998(3)ALD559, 1998(2)ALT678, (1999)ILLJ778AP
Bench: Chief Justice, J. Chelameswar
ORDER Umesh Chandra Benerjee, C.J.
1. This appeal is directed against the impugned order of the learned single Judge allowing the writ petition taken out by the writ petitioner against an order of transfer.
2. The learned advocate appearing in support of the appeal submitted that the order of the learned single Judge is clearly erroneous in nature and cannot be sustained by reason of the well settled principle of law as regards the orders of transfer. The learned advocate contended that orders of transfer are issued as against administrative exigencies and in the event of passing such an order by the employer, the question of intervention of the Law Court does not and cannot arise. We do feel it expedient to record that we cannot but record our concurrence with the submission of the learned advocate appearing in support of the appeal. Orders of transfer are not to be interfered with unless the same is tainted apparently with malice or it has been passed by way of punishment. Malice in common parlance would mean and imply 'spite' or 'ill will*. Obviously, question of there being any spite or ill will in the contextual facts herein against the respondent - writ petitioner does not and cannot arise. The facts depict that as a matter of fact, the appellant - Corporation did in fact reimburse the respondent - writ petitioner of his medical expenses even for the second time as well for the operation undergone by him without any objection whatsoever. If mere was really spite or ill will, question of there being any payment of medical expenses for the second time would not have arisen. As such, we are unable to record our concurrence with the submission of the learned Counsel for the respondent - writ petitioner that there is some amount of spite or ill will in passing the transfer order impugned before the learned single Judge.
3. The learned advocate for the respondent - writ petitioner next contended that the transfer order cannot but be termed to be a punishment as it had been issued by reason of a false complaint lodged against the writ petitioner. While it is true that there was in fact a complaint lodged against the writ petitioner but no steps appear to have been taken against him on such complaint and that itself negates that there was any intent on the part of the employer to punish him. Had there been any such intent on the part of the appellant there would not be any difficulty for them to initiate disciplinary proceedings against the writ petitioner. But, the authorities have chosen not to do so and in that view of the matter, the question of terming the order of transfer to be as the one issued as a measure of punishment does not and cannot arise.
4. In the view we have taken, we are unable to record our concurrence with the findings and observations of the learned single Judge in the matter. The order under appeal is, therefore, set aside. The writ petitioner is directed to join at the place to which he was transferred within a period or two weeks from the date hereof, subject, however, to his being found medically fit and for that purpose, the appellant - Corporation is directed to have a medical examination of the writ petitioner within a period of ten days from the date hereof and in the event he is being found medically fit of such medical examination, he shall join at his new place of posting within the time stipulated as above. In the event, however, he is being found medically not fit to undertake the journey, then, the writ petitioner shall be permitted to join at the new place as and when he would be declared fit by the doctor.
5. The appeal is disposed of accordingly No order to costs.