The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 20376 of 2023 Applications under Articles 226 & 227 of Constitution of India. Mahendra Kumar Sundaray …… Petitioner --------------- -Versus- Odisha Industrial Infrastructure Development Corporaton, (IDCO), Bhubaneswar and others ...…. Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : Mr. S.K.Das, Advocate For Opp. Parties : Mr. P.K. Mohanty,
Legal Reasoning
Senior Counsel, Mr. P.Mohanty Advocates CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26th September, 2023 SASHIKANTA MISHRA, J. The petitioner has approached this Court in the present writ application with the following prayer: that Under the above circumstances it is therefore the Hon’ble Court be humbly prayed graciously please to quash the order of transfer of the petitioner dated 26.06.2023 under Annexure-3 and direct the Opposite Parties to allow him to continue in his present place of posting keeping in Page 1 of 8 view the fact the petitioner has hardly one year service left with him for retirement as he is going to retire from service on 31.07.2024. And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case. 2. The petitioner’s case is that he joined as Accounts Assistant in the Odisha Industrial Infrastructural Development Corporation (IDCO) on 21.02.1989 and thereafter, he was transferred to several places in his service career. On 05.01.2022, he was transferred on promotion to Cuttack Division as Deputy Manager (Finance). He joined as such on the same day. By order dated 27.06.2023 passed by the MD/IDCO, the petitioner was transferred from Cuttack Division to Koraput Division. He submitted a representation on 28.06.2023 highlighting that he is due to retire from service on superannuation in less than a year and has several other difficulties including the illness of his old mother staying with him and also of his own neurological ailment. As such, he requested for allowing him to continue in his present post till the date of his retirement as it would cause immense hardship to him to move to a distant place as Koraput at the present juncture. Since no action was Page 2 of 8 taken on his representation, he has approached this Court in the present writ application. 3. In the counter affidavit filed by IDCO it is stated that for some administrative reason on receipt of some information and grievance against the petitioner, he was transferred in the interest of administration. Further, there is also no bar to transfer him, in view of Regulation 25(2) & (3) of the Odisha Industrial Infrastructure Development Corporation (Method of Recruitment and Conditions of Service) Regulation, 2019 (IDCO Regulation). It is also stated that a substitute has been posted in his place and that his representation would be considered on its own merit only when he abides by the transfer order. At that stage, the administration may find out some avenue for any suitable posting of the petitioner. 4. Heard Mr. S.K.Das, learned counsel for the petitioner and Mr. P.K.Mohanty, learned Senior counsel with Mr. P.Mohanty learned counsel for the opposite parties. 5. It is submitted by Mr. Das that there is no dispute that the petitioner is deemed to retire on superannuation on 31.07.2024, which is less than a year away. The Page 3 of 8 Government of Odisha in General Administration Department in its circular dated 29.07.1991 have, inter alia laid down the principle that officers may be posted to their home districts two years before their retirement. Mr. Das has also referred to the IDCO Regulations to submit that the same provides that an officer shall ordinarily be required to serve a minimum period for 3 years in a particular station and can be transferred on administrative grounds. In the instant case, the transfer order does not indicate any reason as to why the petitioner was transferred to Koraput at the fag end of his service. 6. Mr. P.K.Mohanty, learned Senior counsel appearing for IDCO would contend that transfer is an incidence of service and therefore, no employee can claim, as a matter of right, to be or not to be transferred. In the instant case, the transfer order was issued on administrative reasons as several complaints were received against the petitioner. According to Mr. Mohanty, therefore, in all fairness, the petitioner should abide by the order of transfer whereupon his representation can be considered. Page 4 of 8 7. As already stated, Mr. Das, learned counsel for the petitioner has referred to the Government circular dated 29.07.1991. Said circular is obviously meant for Government servants. Mr. Das has not been able to show as to how the circular is applicable to the employees of IDCO who are Governed by their own regulations namely the IDCO Regulations. 8. Be that as it may, reference to the relevant provisions of the IDCO regulations 2019 would reveal that Regulation 25 relates to transfer, Clause 3 of which reads as follows: “An Officer/ staff may be required to serve for a minimum period of 3 (three) years in a particular station. However, the competent authority may transfer any of the officer/ staff before the aforementioned period on administrative grounds or in the interest of the Corporation.” 9. Thus, ordinarily an officer is to serve for a minimum period for 3 years in a particular station but can be transferred before such period on administrative grounds or in the interest of the Corporation. Coming to the impugned order of transfer, copy of which is enclosed Page 5 of 8 as Annexure-3 to the writ application. The operative portion reads as follows: “Sri Mahendra Kumar Sundaray, Deputy Manager (Finance), at present working at IDCO, Cuttack Division is hereby transferred from IDCO, Cuttack Division & posted.” 10. It is more than evident that no reason has been cited by the authority concerned. Of course it has been stated in the counter, albeit vaguely, that he was transferred for ‘some administrative reason on receipt of some information and grievance’ against him, ‘in the interest of administration’ but firstly, the same being non- specific cannot be accepted and secondly, such reason not have been cited in the impugned order itself cannot be cited at this stage to supplement or justify the issuance of the impugned order. It is trite law that if the reason has not been stated in the impugned order, it cannot be subsequently supplied in the counter affidavit by the Authority. This is a basic proposition of law long settled by several decisions of the Apex Court including the case of Mohinder Singh Gill vrs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851. Page 6 of 8 11. Thus, what emerges from above discussion is, the petitioner has less than one year left in his service career before retirement. Secondly, he was transferred from his present post much prior to expiry of the normal period of 3 years as envisaged under Regulation 25(3) of the IDCO Regulations. Most importantly, no reason whatsoever has been cited for posting him to Koraput Division at the fag end of his career. Finally, the reasons sought to be cited to justify the order of transfer are not acceptable. This Court is therefore, of the considered view that the impugned order cannot be sustained in the eye of law. This Court would also like to add that if there was any complaint/grievance against the petitioner, the same should have been dealt with in accordance with law following the principles of natural justice but certainly not in the form of issuing an order of his transfer at the fag end of his service career which by itself, is akin to a penalty. 12. For the foregoing reasons therefore, the writ application is allowed. The impugned order of transfer under Annexure-3 is hereby quashed. The opposite party Page 7 of 8 authorities are directed to allow the petitioner to continue in his present post. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 26th September, 2023/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC, Cuttack Date: 05-Oct-2023 11:24:54 Page 8 of 8