Allowed

C.Rajendran, v. the Principal Chief

Madras HC5 Mar 2014WP(MD)/3746/2014

Case brief

AI extract

What is this about?

The Madurai Bench held that a transfer order against a Forest Guard nearing retirement, though styled as administrative, was punitive due to allegations of misconduct disclosed in the counter affidavit, violating principles of natural justice as no hearing was afforded.

What did the court decide?

The impugned order of transfer was set aside and the writ petition was allowed.

C.Rajendran, Vs the Principal Chief — Madras HC (2014) — LawSathi Research

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 05.03.2014

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CORAM: THE HONOURABLE MR.JUSTICE K.RAVICHANDRABABU

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W.P.(MD)No.3746 of 2014 & M.P(MD)No.1 of 2014

C.Rajendran

: Petitioner

Vs.

1.The Principal Chief Conservator of Forests, Panagal Maaligai, Saidapet,

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Chennai-600 015.

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2.The Conservator of Forests, Virudhunagar Circle, Virudhunagar. ...Respondents

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PRAYER: Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari to call for the records pertaining to the impugned transfer order passed by the second respondent in C.No.1865/2014/E dated 24.02.2014 quash the same.

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For Petitioner :Ms. J.Nisha Banu For Respondents :Mr.V.Muruganandham Addl. Govt.Pleader.

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ORDER

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This writ petition is filed challenging the order of transfer passed by the second respondent in C.No.1865/2014/E dated 24.02.2014.

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The case of the petitioner is as follows:

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The petitioner is working as a Forest Guard and also holding additional in-charge as Forest Range Officer, Rajapalayam and is going to retire on 30.10.2014. No Government employee would be transferred within one year before his retirement. While that being so, the impugned transfer order came to be passed during the middle of the academic year. Though it is stated as an administrative order, it was made only to accommodate the person of the respondents' choice by disturbing the petitioner at the verge of his retirement.

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The learned Counsel appearing for the petitioner contended that the order of transfer was not only made on administrative reasons, but also based on certain allegations made against the petitioner. She, thus, submitted that it is a punitive transfer which cannot be done without affording an opportunity to the petitioner.

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https://hcservices.ecourts.gov.in/hcservices/ 4. The second respondent filed a counter affidavit, wherein it is stated as follows:-

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The Director, Vigilance and Anti Corruption, Chennai, through communication dated 18.07.2013, informed about a petition containing the allegations against the petitioner of misappropriation of funds and directed to take further course of action at the departmental level. The investigation reveals the prima facie case against the petitioner. The President, Virudhunagar District Branch of Central and State Government SC/ST Employees Federation through his letter dated 19.09.2013 made a complaint against the petitioner stating that he used to scold his Scheduled caste subordinates with filthy language and unparliamentary words. The Divisional Forest Officer(Social Forestry) Virudhunagar, while making field visit to the plantation on 10.07.2013, found the trees were felled without getting orders and the petitioner had hidden these details and suppressed the same wantonly. Hence, a charge memo under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules has been issued to the petitioner on 21.02.2014. The petitioner has neglected to protect the assets of Government and failed to discharge his legitimate duties assigned to him. In view of these circumstances, it was felt that the presence of the petitioner in the present station would not be conducive for administration and protection of wealth of the forests. Moreover, his co-operation with administration was not cordial and his fraudulent act of misappropriation of Government funds resulted in suffering of financial transactions. Hence, he has been transferred through the impugned order.

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Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents and perused the materials available on record.

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The order of transfer is under challenge in this writ petition. No doubt, a perusal of the impugned order would show that as if it was made on administrative reasons. Normally, this Court would not interfere with the order of transfer, especially, when it is made on administrative reasons. However, if it is claimed that the order of transfer was not made on administrative reasons, but as a punitive measure, this Court time and again, has entertained the writ petition and decided the matter on merits.

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In this case, even though the order of transfer was styled as an administrative action, the fact remains that the same was passed not due to the administrative reasons as stated in the said order, but due to various allegations made against the petitioner, as disclosed in the counter affidavit. The crux of the averments in the counter affidavit is already extracted supra. After extracting various allegations against the petitioner in paragraphs 4 to 9, in the counter the second respondent, who passed the impugned order, has stated in paragraph 10 of the counter affidavit, as follows.

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“10) It is submitted that, in view of the circumstances as narrated above, it is felt that the presence of the petitioner in his present station would not be conducive for administration and protection of wealth of forests. Moreover, his co-operation with administration is not cordial and his fraudulent act of misappropriation of Government funds will result in suffering of financial https://hcservices.ecourts.gov.in/hcservices/ transactions involved in his present place. Hence, he has been transferred in the second respondent's

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Proc.No.E/1865/2014 dated 24.02.2012 to settlement range of Sivagangai Division where there is no financial transaction as well as protection works.”

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Going by the averments made in the counter affidavit, it is crystal clear that the allegations made by the petitioner are true and that the order of transfer was passed only as a punitive measure. It is not the case of the respondents that before passing such order, the petitioner was put on notice. This Court, on very many occasions, has considered similar situation and found that no transfer, as a punitive measure, can be made without affording an opportunity to the party concerned.

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A similar issue was raised and considered by the Honourable Division Bench of the Principal Bench of this Court in W.P.No.12812 of 2013 dated 04.10.2013, wherein, I was a party. In the said decision, at paragraphs 16, 21, 22, 23 and 29 it has been observed as follows:-

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" 16. Once it is admitted by the authorities that transfer was made based on certain reasons of unbecoming attitude of the employee , more particularly, based on certain incident said to have taken place on a particular date, then the authorities cannot exercise the power of transfer on that ground without affording an opportunity of hearing and allowing the employee to defend his case. Administrative grounds can be put as the reason for transfer, so long as such administrative grounds do not affect the interest of the employee personally with civil consequences or such grounds do not attribute imputation on the character of the employee. If any of these elements are apparent based on admitted facts, then such grounds can no longer be termed as administrative grounds. Therefore, we are of the firm view that the order of transfer in this case was passed only as punitive measure to achieve the collateral purpose and therefore the same cannot be sustained in the eye of law as the same has been made in violation of principles of natural justice.

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21. A careful perusal of the decisions referred to by the learned counsel for the petitioner would show that the transfer order passed in lieu of the punishment without conducting enquiry cannot be sustained.

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22. The learned Senior Counsel for the respondents relied on a decision made in the case of Union of India and Others Vs. Janardhan Debanath and Another (2004 (4) SCC 245), to contend that no elaborate enquiry is to be insisted upon if the transfer is made on public interest or administrative ground in order to enforce discipline. The Apex Court has held at paragraph 14 of the said decision as follows:-

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"14. The allegations made against the respondents are https://hcservices.ecourts.gov.in/hcservices/ of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental

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proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no orders as to costs."

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23. However, in the very same decision, the Apex Court also observed at paragraph Nos.9 and 12 as follows:-

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".... Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd., V.Shri Baghwan (2001 (8) SCC 574).

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..." Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.

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Therefore, when the transfer involves an adverse impact or visit the person concerned with any penal consequences, the authorities cannot impose such order of transfer without there being any opportunity of hearing given to the person concerned.

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

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29. A careful perusal of the above four decisions of the Apex Court would show that if an order of transfer was found to be an outcome of malafide exercise of power or if the transfer was made in connection with the departmental proceedings or for extraneous considerations or for collateral purpose, the Court can interfere as against such transfer order, if the same was made in violation of the principles of natural justice. All these decisions commencing from 1991 to 2004 have, no doubt, observed that the authorities are entitled to transfer on administrative grounds/ public interest. But a perusal of the subsequent decision made by the Apex Court in Somesh Tiward Vs. Union of India and others ( 2009 (2) SCC 592 para 16) would show that no such transfer can be made when the same was passed in lieu of punishment or on extraneous reasons. "

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In view of the admitted facts in the counter affidavit and by following the order passed by the Honourable Division Bench of this Court in W.P.No.12812 of 2013 dated 04.10.2013 as extracted supra, I am of the view that the impugned order of transfer is liable to be set aside, as it has been passed as a punitive measure, in violation of principles of natural justice. Consequently, the writ petition is allowed and the impugned order is set aside. The order made in this writ petition will not stand in the way of the respondents to proceed against the petitioner departmentally in accordance with law. Consequently, the connected Miscellaneous petition is closed. No costs.

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sd/Assistant Registrar (CO) /True copy/

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Sub Assistant Registrar

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gsr

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1.The Principal Chief Conservator of Forests, Panagal Maaligai, Saidapet, Chennai-600 015.

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2.The Conservator of Forests, Virudhunagar Circle, Virudhunagar.

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