R.Mohanasundaram v. The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai-600 015 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.6.2009CORAMTHE HON'BLE MR. JUSTICE K.N.BASHAW.P.No.9599 OF 2009 R.Mohanasundaram... Petitioner vs1. The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai-600 015.2. Conservator of Forests, Villupuram Circle, Villupuram.3. District Forest Officer, Kallakurichi Division, Kallakurichi, Villupuram District.... Respondents* * *Prayer : This Writ Petition is filed under Article 226 ofConstitution of India for the issuance of writ of certioraricalling for the records pertaining to the order of the 2ndrespondent passed in his proceedings in S.O.No.16/09/Pa dated18.5.2009, and quash the said order dated 18.5.2009.* * *For Petitioner ... Mr.S.Periyasamy for M/s. B.SoundarapandianFor Respondents ... Mr.S.N.Kirubanandam Special Govt. Pleader (Forest)ORDERThe petitioner has come forward with this petition seeking forthe relief of quashing the impugned order of transfer passed by thesecond respondent dated 18.5.2009 in his proceedings inS.O.No.16/09/Pa. https://hcservices.ecourts.gov.in/hcservices/

2. The case of the petitioner is that the petitioner isworking as Forest Ranger, Kallakurichi range and he is havingunblemished record of service. The petitioner suddenly receivedthe impugned order transferring him from Kallakurichi range officeto Villupuram division and the order was communicated to thepetitioner on 20.5.2009 through the third respondent herein. Thesaid order of transfer is stated to be on Administrative reasons.The petitioner states that the impugned order of transfer istainted with malafide and vindictive in nature. It is the claim ofthe petitioner that the petitioner has taken stringent actionagainst the persons who have committed offence under the Wild lifeand the Forest Act and certain accused are having grievance againstthe petitioner alleging that false cases have been foisted againstthem. It is stated by the petitioner that one Gopi on 16.5.2009threatened and challenged that the petitioner will be transferredand the petitioner has also given complaint against the said Gopiand a First Information Report was registered in Cr.No.205 of 2009,Chinnasalem Police Station. It is stated by the petitioner that asthe petitioner was strict and effectively taking stringent actionagainst the accused persons, the said persons, being aggrievedagainst the petitioner, caused problem to the petitioner whichresulted in the issuance of the impugned transfer order and thesaid transfer order is highly motivated and vindictive and as suchthe petitioner being left without no other alternative has comeforward with the present petition seeking the above said relief. 3. Mr.S.Periyasamy, learned counsel for the petitionervehemently contended that the impugned order of transfer was passednot on the ground of Administrative reasons as stated in theimpugned order of transfer but on the ground of certain adversefalse allegations levelled against the petitioner and as such theimpugned order is unsustainable in law. It is contended by thelearned counsel for the petitioner that even in the counter it iscategorically stated that there are certain adverse remarkslevelled against the petitioner and the petitioner also committedcertain dereliction of duties and irregularities and only on thosegrounds the impugned order of transfer was passed. The learnedcounsel for the petitioner by placing reliance on the Judgment ofthe Hon’ble Apex Court in Somesh Tiwari Vs. Union of India andothers reported in 2009(3) MLJ 727 (SC) contended that the impugnedorder of transfer is unsustainable as the said order is passed onlyon the basis of certain adverse remarks and allegations levelledagainst the petitioner and such transfer would amount to be apunishment. It is contended by the learned counsel for thepetitioner that in the above said decision the Hon’ble Apex Courthas held that the transfer order passed not on the basis of genuinefactors but on a irreverent ground i.e., on the allegations madeagainst the delinquent officer, then such order of transfer would https://hcservices.ecourts.gov.in/hcservices/ attract the principles of malice in law. Therefore, it iscontended by the learned counsel for the petitioner that theimpugned order of transfer is liable to be set aside.4. Per contra, Mr.S.N.Kirubanandam, Special Government Pleader(Forest) contended that the impugned order of transfer was mainlypassed on Administrative reasons. It is contended by the learnedSpecial Government Pleader that the petitioner said to haveregistered certain false cases which resulted in law and orderproblem as group of public gathered and garrowed in front of theoffice of the petitioner which resulted in law and order problemand as such the respondents are left with no other alternativeexcept to transfer the petitioner with a view to avoid law andorder problem in that particular place. It is submitted by thelearned Special Government Pleader that the impugned order ispassed only in the interest of the petitioner to avoid unnecessaryproblem for him as the public revolted against alleged registrationof false cases. Therefore, it is submitted that the impugned orderof transfer does not suffer from any illegalities and no ground ismade out for warranting the interference of this Court.5. I have carefully considered the rival contentions putforward by either side and also perused the materials available onrecord. 6. A perusal of the impugned order of transfer discloses thatthe said order was passed on administrative reasons. But, on theother hand, it is strenuously contended by the learned counsel forthe petitioner that the impugned order was passed on the ground ofmalafides and certain adverse remarks and allegations have beentaken into consideration for passing the order of transfer andtherefore, the transfer was passed by way of punishment. ThisCourt is of the considered view that there is much force in thecontention put forward by the learned counsel for the petitioner inview of certain averments made in the counter affidavit filed bythe third respondent herein. It is relevant to refer certainaverments stated in the counter as herein :“7. .... The petitioner has such a character of notobeying even his basic duties. The petitioner has notchanged his attitude and his performance of duty is belownormal. Since there is no improvement in his performanceand also registering false case creating unlawfulsituation in the administration, it necessitated totransfer him to another place where the workload iscomparatively lesser than at Kallakurichi. ..... Sinceit is not possible to mention each and every derelictionof his duties, irregularities improper service etc. inthe transfer order, in concise it has been stated thatthe transfer is on administrative grounds.” https://hcservices.ecourts.gov.in/hcservices/

7. The above said averments in the counter makes it crystalclear that the impugned order of transfer was passed not onadministrative reasons, but on some adverse remarks and allegationsreceived against the petitioner and as such this Court has nothesitation to hold that the impugned order of transfer was passedagainst the petitioner only by way of punishment and that toowithout giving any opportunity for the petitioner to giveexplanation for such adverse remarks and allegations.8. The Hon'ble Apex Court in Somesh Tiwari V. U.O.I. reportedin 2009 (3) MLJ 727 (SC) held that, "Indisputably, an order of transfer is anadministrative order. There cannot be any doubtwhatsoever that transfer, which is ordinarily anincident of service should not be interfered with, savein cases where inter alia malafide on the part of theauthority is proved. Malafide is of two kinds – onemalice in fact and the second malice in law.The order in question would attract the principleof malice in law as it was not based on any factorgermane for passing an order of transfer and based on anirrelevant ground i.e., on the allegations made againstthe appellant in the anonymous complaint. It is onething to say that the employer is entitled to pass anorder of transfer in administrative exigencies but it isanother thing to say that the order of transfer ispassed by way of or in lieu of punishment. When anorder of transfer is passed in lieu of punishment, thesame is liable to be set aside being wholly illegal."9. A Division Bench of this Court in an unreported Judgment inA.Micheal Raj V. Director General of Police Chennai (W.A.No.1138 of2008) dated 20.04.2009 held as follows :"12. Though in the impugned order of transfer it isstated as if the transfer has been effected onadministrative grounds, the same has been given a go-byin the counter affidavit filed by the respondents asstated above. As per the averments contained in thecounter affidavit the transfer was passed on someadverse remarks/complaints received against theappellant and also on the basis of the report sent bythe Director General of Police to the Inspector Generalof Police, West Zone, and in such circumstances we areof the considered view that the order of transfer passedagainst the appellant is by way of punishment and thattoo without giving any opportunity of hearing to thepetitioner." https://hcservices.ecourts.gov.in/hcservices/

10. In a similar matter in Sevugan, S. V. The ChiefEducational Officer, Virudhunagar District reported in 2006 (2) CTC486 this Court held that,"7. It is seen from the impugned order of transferthat it is passed on administrative ground, but itappears that the order was passed by way of punishmentand based on the complaint against the conduct of thepetitioner. If that be so, the petitioner is certainlyentitled for proper opportunity to defend himself as towhether the complaints against him by the Public or bythe Headmaster is proper or not by way of an enquiry.8. In these circumstances, this Court is of the viewthat the transfer order passed by way of punishment iswithout any opportunity to the petitioner and on the faceof it, the order of transfer is illegal and the same isliable to be set aside. Accordingly, the impugned orderis set aside." 11. In yet another decision of the Division Bench of thisCourt in W.A.(MD)Nos.5 and 7 of 2007 dated 09.01.2007, it was heldthat though in the impugned order of transfer it was stated thatthe transfer was affected on administrative ground, it is madeclear in the counter affidavit filed in the writ petition that thepetitioner had not taken any efforts to collect the sales proceedsof Fair Price shops as detailed therein and accordingly furtherheld that,"5. From the counter affidavit filed by the firstrespondent, it clear that by virtue of the reportreceived from the Circle Deputy Registrar, Paramakudiwho is the Supervisory authority of all Co-operativeSocieties functioning in Paramakudi Circle recommendingfor the writ petitioner's transfer and further it isseen that due to improper management by the petitioner,there is a loss to the tune of Rs.2,96,959.30 to theSociety funds, the first respondent transferred thepetitioner on administrative grounds to safeguard theinterest of the society. Considering the facts andcircumstances of the case, the learned single Judge cameto the conclusion that it is not a transfer simplicitar,but it is a transfer with stigma. Therefore, thepetitioner is entitled for opportunity of enquiry toestablish his case." 12. The above settled principle of law laid down by theHon'ble Apex Court and this Court is squarely applicable to thefacts of the case on hand as in this case also the impugned orderrevealed that the petitioner was transferred on administrative https://hcservices.ecourts.gov.in/hcservices/ grounds, but the counter filed by the third respondent made itabundantly clear that the transfer order was passed against thepetitioner not on administrative reasons, but the impugned orderwas passed by way of punishment on the basis of certain allegationsand adverse remarks made against the petitioner. 13. In view of the above said reasons, this Court isconstrained to quash the impugned order and accordingly, theimpugned order passed by the second respondent in his proceedingsin S.O.No.16/09/Pa dated 18.05.2009 is hereby quashed. However, itis made clear that if there is any complaint against thepetitioner, it is open to the Department to initiate appropriateaction in accordance with law and on such event the petitionershall be given sufficient opportunity by conducting proper enquiryin the manner known to law. This writ petition is ordered accordingly. Consequently,connected M.P.No.1 of 2009 is closed. No costs.kua/ggSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai-600 015.2. The Conservator of Forests, Villupuram Circle, Villupuram.3. The District Forest Officer, Kallakurichi Division, Kallakurichi, Villupuram District.+ 1 cc to Mr. B. Soundrapandian, Advocate SR No.21980+ 1 cc to the Special Government Pleader, SR No.21959CU(CO)SR/25.6.2009W.P.No.9599 of 2009