High Court
Case Details
WP(C) 6229/2013 B E F O R E HON’BLE MR. JUSTICE A.M. SAPRE,THE CHIEF JUSTICE HON’BLE MR. JUSTICE A. K. GOSWAMI
Legal Reasoning
(By A.M. Sapre, CJ) This is a writ petition filed by the Union of India (non applicants of O.A.No 28 1 of 2012) under Article 227 of the Constitution of India against the order dt 1 3.3.2013 passed by the Central Administrative Tribunal (for short hereinafter ca lled - Tribunal) in the aforesaid O.A. By impugned order, the Tribunal allowed the Original Application ( OA 281 of 201 2 ) filed by the applicant ( respondent herein ) and in consequence quashed his ( applicant’s ) transfer order dt10.8.2012 . So the short question that arises for consideration in this writ petition is whe ther Tribunal was justified in quashing the transfer order of the applicant (res pondent herein)? Facts of the case lie in a narrow compass. The respondent herein is working on the post of Lower Division Clerk (LDC) in Door Darshan Kendra (DDK) at Dibrugarh (a union government organization). By ord er dt 10.8.2012, he was transferred to a place called - Tura. It is against this order of transfer, the respondent felt aggrieved and filed the original applica tion out of which this writ petition arises. The challenge to the impugned trans fer order was on the ground that it was passed by way of punishment to him and h ence being punitive in nature is bad in law and liable to be set aside. It was a lso alleged that since no prior show cause notice was served on the respondent b efore issuance of transfer order and nor any inquiry was held giving any opportu nity of being heard to the respondent and hence such order cannot be sustained i n the eye of law. It was lastly alleged that the impugned order of transfer is a lso against the transfer policy in force and hence bad in law. The writ petitioner (non applicant before the Tribunal) tried to defend the tran sfer order contending interalia that it was passed keeping in view the administr ative exigencies prevailing in the department and being in conformity with the n orms laid down in the policy, it does not call for any interference and hence it be upheld. The Tribunal by impugned order allowed the original application and quashed the transfer order. It was held that firstly the transfer order was passed in violat ion of the norms laid down in transfer policy and secondly it was passed by way of punishment to the respondent (employee). It is this order which is now impugn ed by the Union of India in this writ petition under Article 227 of the Constitu tion of India. Having heard the learned counsel for the petitioner and on perusal of the record of the case, we are inclined to dismiss the writ petition in limini as in our o pinion, the view taken by the Tribunal while allowing the original application w
Legal Reasoning
hich resulted in quashing of transfer order of respondent does not call for any interference. Indeed in our considered view, the fact that the transfer order was punitive in nature is clear from the official noting of the department dt 8.8.2012 itself, w hich is reproduced infra. (cid:28)In the past also ShriBhudharSaikia, LDC was found to be misbehaving with senior officers for which he was earlier transferred from Dibrugarh to DDK, Tura but d ue to the pressure of ADASA the transfer order was cancelled and subsequently tr ansferred to DDMC, Dibrugarh. There also he was not attending his duties sincere ly. On the written report of Shri Morang, DE, just two months back, he was trans ferred to DDK, Dibrugarh. Under the circumstances, stated in the letter of Shri Morang dated 8.8.2012 (pla ced on file) ShriBhudharSaikia may be transferred to DDK, Tura again as a measur e of punishment. The Kendra has three LDCs posts vacant. For kind order please. Sd/- Illegible 8.8.2012 To Tura Kendra he be sent on transfer on punishment for repeated misbehavious. Sd/- Illegible 8.8.2012 (cid:29) In a case where department itself proceeded to pass the transfer order by way of punishment then, the same could not have been passed without affordin g an oppournity to the delinquent employee (respondent herein) telling him first the reasons for such transfer. In other words, it being stigmatic in nature, it could not have been passed against the respondent without following the princip le of natural justice by first communicating the reasons for such transfer and s econd by giving him full opportunity to contest the transfer in an enquiry. It w as however not done. The law relating to transfer of any employee is indeed well settled. Th e transfer being an incidence of service, it can always be effected by the emplo yer in relation to any employee in their administrative exigencies and set up. S uch action when resorted to by the employer, it cannot be regarded as being ille gal or arbitrary. However the only ground on which the transfer order can be suc cessfully assailed is when it is proved to have been passed with any malafideint ention or when it is passed by way of punishment to an employee without affordin g him of anopportunity of being heard or when it was passed against any statutor y policy etc. As observed supra, when it is the case of the petitioner (department) th emselves that they passed the order to punish the respondent then no better evid ence wasneeded to quash such transfer order because admittedly no oppournity of hearing was afforded to the respondent before passing the transfer order. Had th e order of transfer been innocuous with no such kind of noting behind it or it h ad been passed in day to day administrative exigencies in its working then perha ps the situation would have been different. Such was not the case here. It is a settled principle of law that every action of State or/and their executi ves while dealing with citizen should be fair, reasonable and free from any extr aneous consideration. If the action is found to be unreasonable or arbitrary or with extraneous considerations or with some malice, dehors the subject, then it would attract the rigour of Article 14 of Constitution and in turn would empower the Court to interfere and quash such action in exercise of powers conferred un der Article 226 of Constitution of India. Case in hand satisfies this principle in respondent’s favour and hence interference was rightly made to quash the impu gned transfer order. In the light of these reasoning which in our opinion are apparent on the face of the record of the case,we have no hesitation in upholding the findings of the Tribunal when it proceeded to quash the transfer order holding it to be p unitive in nature. In view of foregoing discussion, the petition filed by the Government of India, fails and is dismissed in limini. Before parting with the case, we consider it apposite to state that desp ite this court upholding the order of the Tribunal which quashed the transfer or der of the respondent, the petitioner (Union of India - DDA) would always be fre e to pass fresh transfer order of the respondent strictly in accordance of law k eeping in view of the observation made above and the transfer policy. No cost.