Brijendra Kori vs State Of Madhya Pradesh & Others

The petitioner before this Court has filed this present petition being aggrieved by the transfer order dated 03.06.2020 passed by the State Government

transferring the petitioner from Mandsaur to Dindori.

Learned counsel for the petitioner has argued before this Court that the petitioner has not completed three years' tenure at the present place of posting

i.e. at Mandsaur, the transfer order is violative of the transfer policy and the petitioner has been victimized by the Collector.

Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Somesh Tiwari v/s The Union of India & Others

reported in (2009) 2 SCC 592. Heavy reliance has been placed upon paragraph â€" 16 of the aforesaid judgment.

This Court has carefully gone through the writ petition and the grounds raised by the petitioner as well as the judgment delivered in the case of

Somesh Tiwari (supra). The petitioner has made an attempt to demonstrate that the order has been passed at the behest of the Collector and malice in

law has been alleged.

On the other hand, learned Deputy Advocate General for the respondents / State has argued before this Court that the transfer order has been passed

keeping in view the administrative exigencies and it has got nothing to do with the allegations levelled by the petitioner. When the matter was being

argued, a specific question was asked to learned counsel for the petitioner in respect of the family of the petitioner. Learned counsel was fair enough

to inform this Court that the petitioner's family does not reside at Mandsaur, they are residing at Indore and the petitioner was residing all alone at

Mandsaur. His children are studying at Indore. The present case is certainly not a case which is causing undue hardship to the petitioner, he is holding

a transferable post and can be transferred anywhere in the State of Madhya Pradesh and the State Government is the best judge to post its employees

to a particular place keeping in view the administrative exigencies.

The Hon'ble Supreme Court in the case of Union of India v/s S.L. Abbas reported in AIR 1993 SC 22 4has held that the Courts cannot interfere with

the transfer of an employee unless it is a malifide order or has been passed in violation of statutory provisions. In the present case, the transfer order

does not suffer from any malafide nor it is in violation of any statutory provisions of law, and therefore, question of interference by this Court does not

arise.

Another important aspect of the case is that the petitioner's family does not reside with the petitioner as informed by learned counsel, his children are

studying at Indore and he has also been relieved from the present place of posting.

The Hon'ble Supreme Court in the case of Rajneesh Khajuria v/s M/s Wockhardt Limited & Another, Civil Appeal No.8989/2019, arising out of SLP

(Civil) No.6692/2015, while dealing with the issue of transfer, in paragraphs â€" 14 to 21 has held as under:-

“14. The act of transfer can be unfair labour practice if the transfer is actuated by mala fide. The allegations of mala fide have two facets â€" one malice in law and

the other being malice in fact. The challenge to the transfer is based upon malice in fact as it is an action taken by the employer on account of two officers present in

Conference. In a judgment reported as State of Bihar & Anr. v. P.P. Sharma, IAS & Anr.6, this Court held that mala fide means want of good faith, personal bias,

grudge, oblique or improper motive or ulterior purpose. The plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive,

and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. As far as second aspect

is concerned, there is a power of transfer vested in the employer in terms of letter of appointment. Even in terms of the provisions of the Act, the transfer by itself

cannot be said to be an act of unfair labour 6 1992 Supp (1) SCC 222 practice unless it is actuated by mala fide. Therefore, to sustain a plea of mala fide, there has to be

an element of personal bias or an oblique motive. This Court held as under:

“50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done

in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative

authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or

the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide

involves two questions, namely (i) whether there is a personal bias or an oblique motive, and ( ii) whether the administrative action is contrary to the objects,

requirements and conditions of a valid exercise of administrative power.

The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It

must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for

any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.

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Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose

of the exercise of statutory power. Malice in law is not established from the omission to consider some documents said to be relevant to the accused. Equally

reporting the commission of a crime to the Station House Officer, cannot be held to be a colourable exercise of power with bad faith or fraud on power. It may be

honest and bona fide exercise of power. There are no grounds made out or shown to us that the first information report was not lodged in good faith. State of

Haryana v. Ch. Bhajan Lal [1992 Supp (1) SCC 335 : JT 1990 (4) SC 650] is an authority for the proposition that existence of deep seated political vendetta is not a

ground to quash the FIR. Therein despite the attempt by the respondent to prove by affidavit evidence corroborated by documents of the mala fides and even on

facts as alleged no offence was committed, this Court declined to go into those allegations and relegated the dispute for investigation. Unhesitatingly I hold that the

findings of the High Court that FIR gets vitiated by the mala fides of the Administrator and the charge-sheets are the results of the mala fides of the informant or

investigator, to say the least, is fantastic and obvious gross error of law.â€​

In another judgment reported as Prabodh Sagar v. Punjab State Electricity Board & Ors.7, it was held by this Court that the mere use of the expression “mala

fideâ€​ would not by itself make the petition entertainable. The Court held as under:

“13. … Incidentally, be it noted that the expression “mala fide†is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be

appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where

it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner has become more of a liability than an asset

and in the event of there being such a situation vis-Ã -vis an employee, the employer will be within his liberty to take appropriate steps including the cessation of

relationship between the employer and the employee. The service conditions of the Board's employees also provide for voluntary (sic compulsory) retirement, a

person of the nature of the petitioner, as more fully detailed hereinbefore, cannot possibly be given any redress against the order of the Board for 7 (2000) 5 SCC 630

voluntary retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word “mala fide†by

the petitioner would not by itself make the petition entertainable. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High

Court has done and that is the reason why the narration has been noted in this judgment in extenso. …â€​

In a judgment reported as HMT Ltd. & Anr. v. Mudappa & Ors.8, quoting from earlier judgment of this Court reported as State of A.P. & Ors. v. Goverdhanlal

Pitti9, it was held that ‘legal malice’ or ‘malice in law’ means ‘something done without lawful excuse’. It is an act done wrongfully and willfully

without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. The Court held as under:

“24. The Court also explained the concept of legal mala fide. By referring to Words and Phrases Legally Defined , 3rd Edn., London Butterworths, 1989 the Court

stated: (Goverdhanlal case [(2003) 4 SCC 739], SCC p. 744, para 12) “12. The legal meaning of malice is ‘ill will or spite towards a party and any indirect or

improper motive in taking an action’. This is sometimes described as ‘malice in fact’. ‘Legal malice’ or ‘malice in law’ means ‘something done

without lawful excuse’. In other words, ‘it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill

feeling and spite. It is a deliberate act in disregard of the rights of others.’

†It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or 8 (2007) 9 SCC 768 9 (2003) 4 SCC 739 personal ill-will or

spite on the part of the State. It could only be malice in law i.e. legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory

purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were

necessary and hence, notification was issued. Such an action could not be held mala fide.â€​

In a judgment reported as Union of India & Ors. v. Ashok Kumar & Ors.10, it has been held that allegations of mala fides are often more easily made than proved,

and the very seriousness of such allegations demands proof of a high order of credibility. The Court held as under:

“21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers.

While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the

state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to

establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the

law that mala fides in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be

shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a

reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab [(1964) 4 SCR 733 : AIR 1964 SC 72] .) It cannot be overlooked that the

burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made 10 (2005) 8 SCC 760 than

proved, and the very seriousness of such allegations demands proof of a high order of credibility. As noted by this Court in E.P. Royappa v. State of T.N. [(1974) 4

SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555] courts would be slow to draw dubious inferences from incomplete facts placed before them by a party, particularly

when the imputations are grave and they are made against the holder of an office which has a high responsibility in the Writ Petition No.8141/2020Â Â Â Â 7

administration. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528] .)â€​

In another judgment reported as Ratnagiri Gas and Power Private Limited v. RDS Projects Limited & Ors.11, this Court held that when allegations of mala fides are

made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. A judicial

pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. The

Court held as under:

“27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to

be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it

will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial

pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts

have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases 11 (2013) 1 SCC 524 where based

on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a

finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding.â€​

The allegation in the complaint is that the transfer was actuated for the reason that the employee had raised voice against removal of Shri Khare from the venue of

a Conference. The officers present in the said Conference were the Regional Manager or Sales Manager, whereas order of transfer was passed by Mr. Suresh

Srinivasan, General Manager-HR. It is an admitted fact that there is power of transfer with the employer. The allegations are against the persons present in the

Conference but there is no allegation against the person who has passed the order of transfer. None of the named persons including the person present in

Conference have been impleaded as parties to rebut such allegations. Since the order of transfer is in terms of the letter of appointment, therefore, the mere fact that

the employee was transferred will per se not make it mala fide. The allegations of mala fide are easier to levy than to prove.

Therefore, the allegation that the transfer of the appellant was an act of unfair labour practice without impleading the person who is said to have acted in a mala

fide manner is not sustainable.

We do not find that the appellant has laid any foundation to allege a malice in law. As mentioned in the judgments referred to above, malice in law would be

something which is done without lawful excuse or an act done wrongfully and willfully without reasonable or probable cause. There is power of transfer in the letter

of appointment. The appellant has stayed at Sagar for almost 20 years. If an employee is transferred after 20 years and that to the place of headquarters of a company,

it cannot be said that the act of transfer was done without lawful excuse. No inference can be drawn that an act was done from ill feeling or spite.â€​

In light of the aforesaid judgment, as the petitioner has not been able to establish that the transfer is actuated by malafide, no case for interference is

made out in the matter. The petitioner has levelled all kind of wild allegations against the Collector. The transfer order has not been passed by the

Collector. The transfer order has been passed by the State Government keeping in view the administrative exigencies. The family of the petitioner is

not residing at Mandsaur and there is no genuine hardship also involved in the matter. The transfer order has been passed keeping in view the

administrative exigencies. The transfer policy permits such transfer by the competent authority, and therefore, the petition deserves to be dismissed at

motion hearing stage itself.

This Court does not find any reason to arrive at a conclusion that the transfer order is punitive in nature or suffers from malafide, it is routine transfer

order passed by the State Government, and therefore, question of interference by this Court does not arise.

Accordingly, the present Writ Petition stands dismissed.

Certified copy, as per rules.