The Acting Chief Justice and a Judge dismissed a writ appeal challenging a transfer order. The High Court held that the transfer was on administrative grounds to ensure probity, noting a lack of evidence for mala fides and distinguishing it from cases where no disciplinary proceedings were pending.
The writ appeal is dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.A.No.2624 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.09.2024
CORAM :
THE HON'BLE MR.D.KRISHNAKUMAR, ACTING CHIEF JUSTICE AND
THE HON'BLE MR.JUSTICE P.B.BALAJI
W.A.No.2624 of 2024
Dr.V.Thiyagarajan
... Appellant
-vs-
1.The Director, Animal Husbandry Department, Nandhanam, Chennai-600 035.
2.The Assistant Director, Animal Husbandry Department, Sankagiri, Salem-637 301.
.. Respondents
Prayer: Appeal under Clause 15 of the Letters Patent against the order dated 12.7.2024 passed by the learned Single Judge in W.P.No.18942 of 2024.
For the Appellant : Ms.Jasmine Padma for Mr.D.Senthilkumar For the Respondents : Mr.S.Yashwanth Addl. Government Pleader
Page 1 of 14
W.A.No.2624 of 2024
J U D G M E N T
(Delivered by the Hon'ble Acting Chief Justice)
Challenging the order of the learned Single Judge dated 12.7.2024 passed in W.P.No.18942 of 2024 dismissing the writ petition, the original writ petitioner has filed the present appeal.
order thereby transferring him from Sankagiri, Salem Region to Thiruchendur Division, Thoothukudi District. The writ petition was dismissed by the learned Single Judge holding that on the administrative reasons, the appellant was transferred and therefore there is no infirmity in the transfer order.
reason is given by the respondent authorities for transferring the appellant from Sankagiri Division to Thiruchendur Division and the transfer order passed by the respondent authorities is punitive in nature. The punitive transfer cannot be made without giving an opportunity of hearing to the
Page 2 of 14
W.A.No.2624 of 2024
appellant. The transfer order suffers from malice in law, as the same was not based on any factor germane for passing such transfer order. In fact, there is no valid reason stated in the transfer order. The learned Single Judge failed to examine the issue involved in the writ petition in proper manner and without assigning any reason dismissed the writ petition by holding that due to administrative reasons, the appellant has been transferred.
Page 3 of 14
W.A.No.2624 of 2024
writ petition. Such a well considered order cannot be interfered with by this Court. He, therefore, prayed for dismissal of the writ appeal.
Page 4 of 14
W.A.No.2624 of 2024
holding that the same has been issued with a mala fide intention to accommodate Dr.A.Priyatharshini, the fifth respondent therein.
act committed by him and pending disciplinary proceedings, he has been transferred from Salem Region to Tiruchendur Region.
Page 5 of 14
W.A.No.2624 of 2024
probity in the functioning of the department, the second respondent has power to transfer the appellant.
[ M.M.Sundresh, J. – as His Lordship then was ], after taking note of catena of decisions of the Apex Court, held as follows:
“12.The above said principles of law evolved by the English Courts would clearly lead to the conclusion that while acting upon a fact the person who exercises the power treating the said fact as conclusive will have to satisfy himself about the due proof of the same before taking any action based upon the same. In other words when a power is vested upon an authority the said authority will have to exercise the said power only in the manner known to law which is by giving a sufficient opportunity to the person against whom the action is proposed. The basic requirement of the said principle is to inform the person concerned about the charges levelled against him and
Page 6 of 14
W.A.No.2624 of 2024
thereafter affording an opportunity to put forth his case followed by a further opportunity to peruse the materials placed against him and cross-examine the witnesses who deposed against him.
13.It is no doubt true that an order of transfer is incidental to the service but the question for consideration is as to whether such an order can be passed in total violation of principles of the natural justice and by dispensing with the enquiry.
20.Therefore this Court is of the opinion that the impugned orders passed by the respondents will have to be set aside being punitive in nature and therefore bad in law in not following the principles of natural justice, by affording an opportunity to the petitioner and by conducting an enquiry.
21.The proceedings are also liable to be set aside since the respondents have come to the conclusion based upon a discreet enquiry which is again based upon the statement obtained from persons behind the back of the petitioner. Even in an enquiry a statement obtained in a preliminary enquiry prior to a full-fledged enquiry cannot be relied upon. Therefore in such a case an order passed based upon such an enquiry cannot be sustained. In the judgment reported in (2006) 2 MLJ 202 [T.Pitchai vs. Deputy Inspector General Of Police, Tirunelveli Range, Tirunelveli And Another] the Hon'ble High Court after considering the judgment of the Hon'ble Apex Court and the Division Bench judgment of the Hon'ble High Court was pleased to hold that the punishment based upon a statement given a preliminary enquiry cannot be sustained.
Page 7 of 14
W.A.No.2624 of 2024
The Hon'ble High Court has observed as follows:
Hence on a consideration of the above said principle also, this Court is of the opinion that the impugned orders passed by the respondents will have to be set aside.
22.The learned Government Advocate made strong reliance upon the judgment of the Hon'ble Apex Court reported in (2004) 4 SCC 245 [Union Of India And Others vs. Janardhan Debanath And Another] and submitted that under Fundamental Rules 15 an order of transfer can be passed even in a case of misbehaviour or misconduct by the employee concerned. It is a well settled principle of law that a judgment will have to be applied to the facts of each case, in the said case the Hon'ble Apex Court was dealing with the case where based upon certain allegation an order of transfer was made by exercising the power under the Fundamental Rules. Therefore, the Hon'ble Supreme Court was considering the powers of the authorities under the said Rules. Moreover a reading of the said judgment would show that it was clearly observed that the question of misbehaviour can be gone into departmental proceedings whereas in the present case it has been clearly stated by the respondents that they have no intention to go with the departmental proceedings since they know very well that it is not possible to prove the factum of the alleged misconduct by the petitioner.”
( Narasingaraja v. The Director General of Police/Inspector General of Prisons, Department of Prison, Chennai and others) and batch cases, one of us ( Acting Chief Justice – sitting single ) elaborately discussed the
Page 8 of 14
W.A.No.2624 of 2024
definitions of “ administrative ground ” and “ punitive in nature ”. It was also held in the said case that the Courts have to decide the issue as to whether the transfer is on administrative ground or it is punitive in nature on case to case basis depending upon the facts and circumstances of the case. For giving more clarity to the definitions “ administrative ground ” and “ punitive in nature ”, this Court directed the Government to issue clarificatory guidelines in transfer matters, where allegations / complaints are pending against the employees.
“7. That apart, administrative transfers are the prerogative of the Department concerned and the competent
Page 9 of 14
W.A.No.2624 of 2024
authorities are the best persons to assess and act accordingly. However, those competent authorities should act in the interest of public and in the event of any illegality or some personal motive, then alone, the employee can approach the Court of law for appropriate remedy. In other words, if an order of transfer is issued with malafide intention or in violation of the statutory rules, then alone a writ petition can be entertained. Even in such cases, the allegation of malafide intention must be substantiated in the writ proceedings and the official concerned must be impleaded as party respondents in the writ proceedings. In the absence of any such legal ground, routine administrative transfers can never be interfered with by the Constitutional Courts. Transfer is an incidental to service, more so, a condition of service. Public servant is liable to work wherever he is posted in the interest of public administration. On accepting the offer of appointment, a person is agreeing for the conditions of service and transfer being incidental, he must be in a position to work, wherever he is posted.
Page 10 of 14
W.A.No.2624 of 2024
Honourable Supreme Court has held that in the matter of transferring Government employees, the scope of judicial review is limited and the High Courts should not interfere with an order of transfer lightly.
Page 11 of 14
W.A.No.2624 of 2024
the learned counsel for the petitioner for the proposition that order of transfer being punitive in nature cannot be sustained without affording an opportunity to him, will not inure to the benefit of the petitioner and is distinguishable, for the simple reason that admittedly, charges were levelled against the petitioner in respect of availing loans and the petitioner was also aware of the initiation of disciplinary proceedings against him, whereas there was no initiation of any such enquiry in Somesh's case, which was taken into consideration by the Apex Court to interfere with the order of transfer therein.
Page 12 of 14
W.A.No.2624 of 2024
ground. Admittedly, the appellant has been working in the same station for several years and he has no right to continue in the said station for long years. Mere pendency of the disciplinary proceedings, it cannot be said that the impugned order of transfer has been passed on punitive ground. Having accepted the terms of appointment, which includes a transfer, the appellant cannot now say that he should not be transferred. In such circumstances, we are not inclined to interfere with the order passed by the writ court and finds no merit in the writ appeal.
(D.K.K.,ACJ.) (P.B.B.,J.) 02.09.2024
Index : Yes/No NC : Yes/No bbr/ar
Page 13 of 14
W.A.No.2624 of 2024
THE HON'BLE ACTING CHIEF JUSTICE AND P.B.BALAJI, J.
bbr/ar
To:
W.A.No.2624 of 2024
02.09.2024
Page 14 of 14
3 issues framed by the court
Whether the writ court erred in dismissing the writ petition challenging a transfer order alleged to be punitive.
Whether the transfer order was issued based on mala fide intentions or for administrative purposes.
Whether the pendency of disciplinary proceedings precluded the authority from passing a transfer order.
Colour shows how this judgement treated each authority
K.M.Elumalai v. The Superintendent of PrisonsRelied on¶11
K.M.Elumalai v. The Superintendent of Prisons, Central Prison-II and another, CDJ 2009 MHC 4819
Union of India v. Janardhan DebanathRelied on¶12
Union Of India And Others vs. Janardhan Debanath And Another, (2004) 4 SCC 245 · Who else cites this
Somesh Tiwari v. Union of IndiaDistinguished¶17
Somesh Tiwari vs. Union of India and others, CDJ 2008 SC 2162
State of U.P. v. Siya RamReferred¶14
State of U.P. and others v. Siya Ram and others, [(2004) 7 SCC 405] · Who else cites this
Airports Authority of India v. Rajeev Ratan PandeyReferred¶14
Airports Authority of India v. Rajeev Ratan Pandey and others, [(2009) 8 SCC 337] · Who else cites this
Dr.V.Thiyagarajan
The Director, Animal Husbandry Department, Nandhanam, Chennai
The Assistant Director, Animal Husbandry Department, Sankagiri, Salem
D.Krishnakumar
P.B.Balaji
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
