High Court
Case Details
Court No. - 37 Case :- WRIT - A No. - 12089 of 2022
Legal Reasoning
Petitioner :- Sanjay Kumar Upadhyay Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Siddharth Khare,Sr. Advocate Counsel for Respondent :- C.S.C.,Rajesh Kumar Srivastava Hon'ble Mrs. Sangeeta Chandra,J. 1. Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Mohd. Yasheen, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Shri Rajesh Kumar Srivastava, learned counsel for respondent nos. 2 to 7. 2. This petition has been filed challenging an order dated 26.07.2022 issued by the respondent no. 4, the Director (Personnel Management and Administration) U.P. Power Transmission Corporation Ltd., Lucknow by which the petitioner has been transferred from Jaunpur to Meerut. 3. It is the case of the petitioner that he was a clerical employee and the order impugned has been passed in lieu of punishment on the basis of some compliant made by a Sittting MLA and therefore in contravention of the law settled by Hon'ble Supreme Court in the case of Somesh Tiwari versus Union of India (2009) 2 SCC 592. 4. The learned counsel for the petitioner has pointed out that paragraph no. 16 of the judgment of the Supreme Court wherein transfer order passed on the basis of complaints which were not found to be true was held to be a void as it would attract the principle of malice in law as it was not based on any factor germane for passing of an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant therein, in an anonymous complaint which was first inquired into and found to be false. The Apex Court had observed that "it is one thing to say that employer is entitled to pass an order of transfer in administrative exigency, but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment or when an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal". 5. It has been submitted by the learned counsel for the petitioner that on 24.05.2022, the Chief Engineer at Gorakhpur wrote to the Superintendent Engineer Transmission Circle Azamgarh that a Deputy Secretary of U.P. Power Transmission had written a letter dated 24.02.2022 saying that the petitioner who was working under the Executive Engineer at Electricity Transmission Division at Jaunpur was an extremely bad tempered employee against whom sitting MLA of the ruling party has sent a complaint on 29.08.2021. A direction was issued that the said complaint be inquired into and the inquiry report be sent. In pursuance of such direction an inquiry report was sent on 31.01.2022 and on the basis of such inquiry report it was found by the Chief Engineer that the petitioner had been working since 08.12.2000 in Jaunpur and that he has been cantankerous employee who is known to be making complaints against other officers and thereby indulging in blackmailing such officers. It was found appropriate that the petitioner should be transferred from Jaunpur Division Azamgarh Circle to some other Division and disciplinary proceedings be initiated against him. 6. In pursuance of such letters sent by the Chief Engineer to the Superintendent Engineer, the matter was forwarded to the Executive Engineer who informed the Superintendent Engineer that indeed the petitioner was an in-disciplined and bad tempered employee. The Superintendent Engineer therefore wrote to the Chief Engineer, Gorakhpur that the Superintendent Engineer can only transfer the petitioner within his Circle. However, the petitioner needed to be transferred about 400-500 kilometres away and therefore, appropriate order be passed by the Chief Engineer or the Director (Personnel Mangement and Administration) U.P. Power Transmission Corporation Ltd., Lucknow. In pursuance of such a request dated 10.06.2022, the petitioner has been transferred from Jaunpur to Meerut. 7. Shri R.K. Srivastava, on the basis of written instructions states that the respondent nos. 3 and 4 are competent to transfer any employee from one place to another within the State of U.P. and the petitioner being a bad tempered and cantankerous employee ought to have been transferred. 8. He has also produced before this Court a copy of the representation sent by entire office staff where the petitioner is working dated 01.02.2022. Such employees have not only sent such complaint, but have also mentioned their designation clearly on such complaint wherein they have requested that all of them should be transferred to some other District as they cannot work with the petitioner. The entire office staff has been terrorized by acts of the petitioner. A report on the basis of such written complaint was made by the Executive Engineer to the Superintendent Engineer saying that office environment has become toxic and risky for the employees to work in and therefore, the entire staff had made a joint request to be transferred to some District other than Jaunpur where the petitioner was working. An FIR was also lodged under Sections 147/323/504/506/352 I.P.C. on 04.02.2022 against the petitioner and three other persons accusing the petitioner that he makes certain demands to be settled with liquor by the employees and on their refusal to do so, the petitioner not only hurls abuses of mother and sister, but also beats them. When the employees had complained to the Executive Engineer of such an act of the petitioner, the Executive Engineer appointed a security guard in the office. The petitioner along with his brother-in-law who works in private Bank and his nephew and 6 other persons approached along with lathis and other weapons and beat up the employees including the security guard and threatened them with the dire consequences including extending a threat to their life. The petitioner had approached this Court for quashing FIR but the petitioner had to surrender before the competent trial court and he was enlarged on bail. 9. This court has considered the arguments raised by the learned counsel for the petitioner and the learned counsel for the respondents and has also considered the judgment rendered by Hon'ble Supreme Court in the case of Somesh Tiwari (Supra). 10. This Court finds that the observations made by the Supreme Court in paragraph no. 16 of the judgment in Somesh Tiwari (supra) have to be read in the context in which they were made. In the case of Somesh Tiwari (supra) complaints were made against the appellant regarding his propensity to favour persons of particular caste which complaints were made by anonymous complainant which was inquired into and then found to be false. 11. This Court finds no good ground to show interference in the impugned order of transfer sitting in equitable jurisdiction under Article 226 of the Constitution. This Court also feels that the petitioner has been let off very lightly by the respondents, he should thank his stars.
Decision
12. The writ petition stands dismissed. Order Date :- 19.9.2022 SY Digitally signed by SWETA YADAV Date: 2022.09.26 13:17:59 IST Reason: Location: High Court of Judicature at Allahabad