Partly allowed

Madhu v. the Regional Director

Madras HC19 Nov 2014WP/15240/2014

Case brief

AI extract

What is this about?

This writ petition challenged an order transferring the petitioner, a Sanitary Supervisor, to a distant municipality. The High Court noted the transfer appeared punitive and mechanical despite administration claims. Citing Supreme Court precedents, the Court quashed the transfer order, allowing the petitioner to continue at his existing post while reserving the right of authorities to initiate dis

What did the court decide?

The writ petition was partly allowed; the order of transfer dated 6.6.2014 was set aside; the petitioner was directed to resume duties; authorities were advised to initiate appropriate proceedings.

Madhu Vs the Regional Director — Service and Employment | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 19-11-2014

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CORAM

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THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN

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WRIT PETITION No.15240 of 2014

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and

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M.P.Nos.1 and 2 of 2014

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Madhu .. Petitioner

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vs 1.The Regional Director Municipal Administration Salem District, Salem 2.The Commissioner Attur Municipality Attur, Salem .. Respondents

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Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorari calling for the records pertaining to the proceedings of the first respondent in Na.Ka.No.1358/2014/A4 dated 6.6.2014, and the consequential proceeding of the second respondent in Na.Ka.No.2226/2014/C1 dated 10.6.2014, and quashing the same.

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For Petitioner : Mr.R.Jayaprakash For Respondents : Mr.V.Shanmugasundar Government Advocate for R1 Mr.P.Srinivas for R2 ORDER

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By consent, the writ petition itself is taken up for final

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disposal.

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2.The petitioner, who joined the municipal services as Sanitary Worker in the year 1989, was promoted to the post of Sanitary Supervisor in the year 1991 and according to him, he has been working in that post from the year 1991 with utmost sincerity and without blemish. However, the second respondent vide proceedings dated 15.5.2014, has transferred him from Attur Division I to Division V and the petitioner had also accepted the same and was working in that capacity. While so, the petitioner was issued with the proceedings of the first respondent dated 26.5.2014, transferring him from Attur Division V to Edappadi Municipality and the second respondent has also relieved him from that post on 4.6.2014. However, within a short span of two days, the first respondent vide proceedings dated 6.6.2014, has transferred him from Attur to Mettur https://hcservices.ecourts.gov.in/hcservices/ and the distance in between the said place is more than 110 kms. In terms of the proceedings passed by the first respondent, the second respondent has also relieved the petitioner from the services on

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10.6.2014, and challenging the legality of the same, the petitioner has filed this writ petition stating among other things, that he was subjected to frequent transfer within a span of two days and the impugned order of transfer is nothing but mechanical and that the socalled administrative reason is incongruous.

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3.Learned Counsel appearing for the petitioner, has drawn the attention of this Court to the affidavit filed in support of the vacate stay petition in M.P.No.2/2014 by the official respondents, and would submit that even as per the averments made in the said affidavit, the transfer was effected by way of punishment and allegations were levelled as if several complaints were received against the petitioner, which resulted in the order of transfer.

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4.It is the further submission of the learned Counsel appearing for the petitioner, that in such a kind of situation, the impugned order of transfer, on the face of it, is unsustainable and in support of his submission, the learned Counsel placed reliance upon the judgment of the Hon'ble Supreme Court of India reported in (2009) 2 SCC 592 (SOMESH TIWARI V. UNION OF INDIA AND OTHERS), wherein it has been held that the judicial review of transfer is permissible if it is done in malafide exercise of power and the transfer is punitive.

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5.Per contra, Mr.P.Srinivas, learned Standing Counsel appearing for second respondent, has drawn the attention of this Court to the counter affidavit of the second respondent filed in support of M.P.No.2/2014, and would submit that the petitioner in his capacity as Sanitary Supervisor, was involved in various allegations and several complaints were received against him and he has also caused unnecessary disturbances to the work of sanitation and the administration of the municipality and further that the petitioner was also indulging in unlawful activities like collecting money from the meat shops, street vendors and shops in and around the bus stand illegally without any authority and based on enquiry only, the petitioner was transferred in the interest of administration and therefore, prayed for dismissal of the writ petition.

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6.The writ petition was admitted on 13.6.2014, and an order of interim stay was granted on that day. The petitioner alleging non-compliance of the said interim order, filed Contempt Petition No.2526/2014 and the second respondent, after receipt of notice, has issued proceedings permitting the petitioner to join duty at Attur Division V, from which he was transferred, and the petitioner has also joined the said post on 21.10.2014, and continues to work there in that capacity.

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7.A perusal of the counter affidavit would disclose that serious allegations are levelled against the petitioner herein and in paragraph No.4, it has been specifically averred that the petitioner was indulging in unlawful activities like collecting money from meat shops, street vendors and shops in and around the bus stand illegally without any authority and based on enquiry only, the order of https://hcservices.ecourts.gov.in/hcservices/ transfer dated 26.5.2014, was passed transferring him to Edappadi Municipality and subsequently, considering the request of the Commissioner of Mettur Municipality dated 27.5.2014, the earlier

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order of transfer was cancelled and the petitioner was transferred vide order dated 6.6.2014, to work as Sanitary Supervisor in Mettur Municipality.

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8.Be that as it may, the petitioner, as on today, is working as Sanitary Supervisor in the services of Attur Municipality at Division V and a perusal of the counter affidavit would also disclose that the order of transfer came to be effected on serious allegations pertaining to his discharge of duties. Admittedly, disciplinary proceedings have not been initiated and the impugned order of transfer primafacie appears to be punitive, though, according to the second respondent, it was done in the best interest of the administration.

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9.The Hon'ble Supreme Court of India in the decision reported in (2009) 2 SCC 592 (cited supra), has held that if the order of transfer is punitive, the same cannot be sustained. Further, the Hon'ble Supreme Court of India in yet another decision reported in 2011 CJ 575 SC(1) (REGISTRAR GENERAL, HIGH COURT OF JUDICATURE, MADRAS V. V.R.PERACHI AND OTHERS), has considered the scope of order of transfer and the facts of the case would disclose that though the order of transfer was passed purely on administrative grounds, the disciplinary proceedings were pending against the concerned employee and taking into consideration the same, the said order of transfer came to be set aside.

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10.Therefore, in the light of the facts and circumstances of this case, this Court is of the view that the impugned order of transfer is unsustainable.

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11.In the result, the writ petition is partly allowed and the order of transfer dated 6.6.2014, is set aside and if the second respondent is advised, it is open to them to initiate appropriate proceedings in accordance with law against the writ petitioner and pass orders taking into account the administrative exigencies and also public interest. No costs. Consequently, connected MPs are closed.

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Sd/Asst. Registrar

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/true copy/

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https://hcservices.ecourts.gov.in/hcservices/

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To:

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