Allahabad High Court
Sanjay Kumar Sharma vs State Of U.P. And 3 Others on 16 November, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 52300 of 2017 Petitioner :- Sanjay Kumar Sharma Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- R.K. Mishra Counsel for Respondent :- C.S.C.,Chandan Agarwal Hon'ble Saumitra Dayal Singh,J.
Heard Sri R.K.Mishra, learned counsel for the petitioner, Sri Chandan Agarwal, learned counsel for the respondents no. 2 to 4 and learned standing counsel for the State.
This writ petition has been filed to challenge the order dated 24.10.2017 passed by the respondent no. 3 - Director (Personnel, Management & Administration), by which the petitioner, who is Junior Engineer with the Pashchimanchal Vidyut Vitran Nagam Ltd. has been transferred from Electricity Distribution Division, Hapur to the office of Chief Engineer, Saharanpur.
The transfer has been assailed on three grounds. First, it has been submitted that the petitioner was posted on transfer at Hapur in the year 2015 and that under the transfer policy of the respondent corporation, he should not have been transferred again before completion of his term of three years. In this regard it has been further stated that other employees, some of whom have served for more than five years at Hapur have not been transferred. Second, it has been submitted that in view of the office memo dated 23.10.2017, the petitioner being an office bearer too district Secretary of the Union, he could not have been transferred within two years of his assuming office as secretary of the said Union, except in exceptional circumstances. According to the petitioner, no such circumstance exists in his case. Last, it has been submitted that the transfer order has been made contrary to the transfer policy as approved by the Supreme Court in Public Interest Litigation No. 79 of 1997.
Opposing the submission of learned counsel for the petitioner, Sri Chandan Agarwal, learned counsel for the respondents has in pursuance of the earlier order passed by this court, produced written instruction received by him. It is admitted that the petitioner was posted at Hapur in the year 2015 and that he became the Secretary of the workers union there. Therefore, under normal circumstance, he may not have been transferred outside at Hapur before completion of time period stipulated under the transfer policy relied upon by the petitioner and the office memo also relied on by the petitioner. Yet, the transfer of the petitioner became necessary in view of certain administrative constraints inasmuch as, at least on three occasions, on 13.09.2017, 21.06.2017 and 22.05.2017 office memo had to be issued to the petitioner for his acts of negligence and or conduct which amongst others resulted in disruption of electricity supply at the sub-station where he was posted. A copy of those office memo have been produced, which are retained on record.
He, therefore, submits that for the administrative reasons i.e. normal maintenance of continuous electricity supply and efficient work of the corporation which is the sole activity of the respondent corporation, it became necessary to transfer out the petitioner from Hapur.
In rejoinder, learned counsel for the petitioner submits that the petitioner has not yet been issued any show cause notice or charge sheet in respect of misconduct alleged in the communication relied upon by the respondents. Alternatively, he submits these have not been mentioned as the reason for issuance of the transfer order against the petitioner. Consequently, it has been submitted that the argument advanced by the respondents cannot be accepted.
However, the petitioner does not dispute the issuance of the aforesaid three Office Memo. Office Memo dated 22.05.2017 refers to a specific incident wherein the power supply under the control of the petitioner had been disrupted for which the respondents appear to have formed an opinion that the petitioner neither received the consumer's complaint over telephone nor informed his superiors nor took any effective steps to address the same. Then again in office memo dated 21.06.2017 notice has been taken of publications made in local newspapers of Hapur regarding disruption of power supply for long duration due to petitioner's negligence. Then in the office memo dated 13.09.2017 it has been noted that the petitioner participated in an unlawful assembly and obstructed official function.
Transfer being an exigency of service, principally, there can be no objection to the fact that the petitioner has been transferred. In the case of N.K. Singh Vs. Union of India reported in 1994 (6) SCC 98, the Supreme Court held as below:-
"23. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
(emphasis supplied) Again, in the case of State of M.P. Vs. S.S. Kourav reported in 1995 (3) SCC 270, the Supreme Court held as below:-
"4. The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background or foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place."
In this regard, it is noted, while the respondents admit that normally the petitioner may not have been transferred before completion of at least two years time period from the date he assumed charge as office bearer of the workers union at Hapur, yet, in view of the exceptional circumstance arising from his own conduct, as noted in the office memo noticed above, it became necessary to transfer the petitioner to ensure smooth and continuous supply of electricity in the area catered to by the sub-station where the petitioner was posted.
Then the objection raised by the petitioner that neither such reason has been mentioned in the transfer order nor the petitioner was issued a show cause noticed in this regard, the same would fall out of the scope of the inquiry in the present proceedings.
Initiation and conduct of disciplinary proceedings are quasi judicial in nature. They are independent of the transfer order which is a purely administrative action. Disciplinary proceedings may be initiated with the intent to award punishment to an erring employee whereas transfer may be made purely for administrative reasons. Occasion to transfer and also initiate disciplinary proceedings may also arise from one common incident/fact. However, both actions (to be taken by the employer) may be initiated independent of the other. Here the transfer order has been shown to have been issued on account of administrative reasons. Thus, the objection raised by the petitioner on that count cannot be sustained.
In this regard, it cannot but be noted that consequent to the impugned transfer order, on 28.10.2017, the Union wrote to the Executive Engineer, Hapur wherein in the end, an open threat has been handed out of breach of peace and agitation being caused unless the petitioner's transfer order is withdrawn. The said letter has been annexed to the writ petition itself. It is petitioner's document. It is strange that a writ court has been moved by the petitioner after showing such conduct.
Last, as to the procedure to be followed while making an exception to transfer an office bearer of the Union before completion of his two year term, it is seen that the petitioner has been transferred out of Hapur after taking prior approval from the Managing Director, Pashchimanchal Vidyut Vitran Nigam Ltd. Such permission appears to have been granted for the reason recorded in the approval letter being unsatisfactory performance. A copy of the said approval letter has also been produced during the course of hearing.
Thus, the respondents being aware of the requirement to transfer the petitioner appear to have followed the procedure and thereafter issued the transfer order, which has been shown to have made on account of administrative exigencies shown to have been established, at least on prima facie basis.
In view of the above, the writ petition lacks merit and is dismissed accordingly. No order as to costs.
Order Date :- 16.11.2017 Lbm/-