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Judgment
In the present Intra Court appeal, challenge has been made to the order 26-04-2018, passed by the learned Single Judge, whereby the writ etition filed
by the respondent/petitioner has been allowed.
The respondent/petitioner, who is an employee of the appellant company working as Systems Expert in the work of erection, testing and
commissioning of transmission systems filed a writ petition challenging the transfer order dated 13-03-2018, whereby he has been transferred from
Bhopal to Gwalior and also the order dated 19-04-2018, whereby the petitioner's representation against the transfer order has been rejected. In the
earlier round of litigation, the petitioner had preferred W.P.No.6403/2018 against the transfer order dated 13-03-2018 which was disposed of by the
order dated 20-03-2018 with a direction to the appellants to decide the petitioner's representation in accordance with law within a period of four
weeks from the date of receipt of certified copy of the order. The Court had also directed that till the representation of the petitioner is decided, the
operation of impugned order dated 13-03-2018 was directed to be stayed and the petitioner was allowed to work at Bhopal.
The petitioner submitted representation and the same wasrejected. The said order has been challenged mainly on the ground that the order has
been issued in malafide exercise of power. Being confronted with the fact that the petitioner has not impleaded any officer of the appellant company
in personal capacity alleging malafide. Learned counsel for the respondent/petitioner submitted that he has not alleged allegation of malafide against
any individual but the order suffers from legal malice. To bolster his submission, he relied on the judgment passed by the Apex Court in the case of
Somesh Tiwari Vs. Union of India and others (2009)2 SCC 592 and also the judgment passed in the case of Kalabharati Advertising Vs. Hemant
Vimalnath Narichania and others (2010) 9 SCC 437.
The learned counsel for the appellants submitted that the learned Single Judge has quashed the order of rejection of the representation against the
transfer order and made observation that the impugned order was passed in a cavalier manner without any application of mind. The learned counsel
for the appellants also submitted that this court in exercise of powers under Article 226 of the Constitution of India does not sit over as an Appellate
Authority. It is further submitted that there was no material to draw an inference that the appellant company had any malafide intention . The writ
petitioner is working as a systems expert in the work of erection, testing and commissioning of transmission systems and there are several works of
erection, testing and commissioning of transmission systems which are being undertaken and being planned in the Gwalior region and therefore, on
administrative ground, the petitioner has been posted in Gwalior region. They have further stated that on earlier occasion on compassionate ground
and looking to the difficulties of the petitioner that his wife is suffering from mental disease physical disorder and was undergoing treatment, he was
transferred from Ratlam to Bhopal. But, since he has filed divorce case against his wife and now his wife and child are no longer residing with him,
therefore, the writ petitioner has been transferred from Bhopal to Gwalior.
In the case of Kalabharati Advertising(supra), the Apex Court was dealing with an issue of ""legal malice"" and ""malice in law"" and held that the
State is under obligation to act fairly without ill will or malice. "" 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. It is a deliberate act
in disregard to the rights of others. It is further held that it means conscious violation of the law to the prejudice of another. In the case of Somesh
Tiwari (supra) the court had taken into consideration the malafides of two kinds- ""malice in fact"" and ""malice in law"" and explained that an employee's
transfer on the basis of non-existent facts is a ""malice in law"". In the case of State of A.P. and others Vs. Goverdhanlal Pitti (2003)4 SCC 739, the
legal meaning of ""malice"" was considered. The relevant paras of the judgment are re-produced as under :
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 willfully 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'. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989].
Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all, it is malice in legal
sense, it can be described as an act which is taken with a oblique or indirect object. Prof. Wade in its authoritative work on Administrative Law
[Eighth Edition at pg. 414] based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State
can be described mala fide if it seek to 'acquire land' 'for a purpose not authorized by the Act'. The State, if it wishes to acquire land, should exercise
its power bona fide for the statutory purpose and for none other'.
The legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona
fide for the purpose of the Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property
against the State in the eviction and writ proceedings.
In the present case the challenge is to an order of transfer of an employee. In the first round of the petition, the petition was disposed of with a
direction to decide the representation of the petitioner in accordance with law and the interim protection was granted. In compliance to the order
passed by this court, the representation of the petitioner was considered by the competent authority and the same was rejected by a detailed order.
The petitioner has been transferred on administrative ground and considering the same representation has been rejected. The aforesaid judgments
would not render any aid to the petitioner because he could not substantiate his allegation of malafie by any material that the authorities have
transferred him from Bhopal to Gwalior on account of undue influence of the father of the wife.
Further, the transfer is an incident of service and the same cannot be interfered unless the transfer order is issued in violation of any statutory rule or
suffers from malafide exercise of power. The courts can not sit as an appellate authority in administrative matters like transfer of an employee. In the
case of State of U.P. and another Vs. Siya Ram and another (2004)7 SCC 450, the Apex Court has held as under :
The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India, 1950 (in short the 'Constitution') had gone into
the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend
upon peculiar facts and circumstances of the case concerned. No government servant or employee of a public undertaking has any legal right to be
posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of
transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public
administration. 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.
In the case of State of Punjab and others Vs. Chaman Lal Goyal (1995) 2 SCC 570, the Apex Court held that in the absence of any clear allegation
of malafides against any particular official and in absence of impleading such person eo nomine so as to enable him to answer the charge against him,
the charge of malafides cannot be sustained.
The learned Single Judge has held that the respondentshave passed the order in a cavalier manner and without any application of mind cannot be
sustained because the transfer is not an order of punishment but it is an administrative order and is an incident of service. Further the petitioner could
not substantiate the allegation of malafide as the transfer order has been passed by the appellants on administrative ground and there is no flagrant
violation of any statutory rules.
Accordingly, in view of the aforesaid conspectus, the writappeal is allowed. The order passed by the learned Single Judge is set aside and the writ
petition stands dismissed.