Sukhpal Singh vs State Of Uttarakhand & Others

Manoj Kumar Tiwari, J

Petitioner is a Police Constable. Vide order dated 7.12.2020, he was transferred from District Nainital to District Bageshwar. Challenging his transfer, petitioner has filed this writ petition.

A coordinate Bench of this Court, vide order dated 15.1.2021, stayed the effect and operation of the impugned transfer order. On the strength of the interim order, petitioner is still continuing in Nainital.

Learned Counsel for the petitioner contends that petitioner has been transferred on administrative ground although there was nothing adverse against him and the impugned order was passed without recording satisfaction that petitioner’s transfer was warranted in view of attending facts and circumstances.

A counter affidavit has been filed by Senior Superintendent of Police, Nainital. Paragraphs 3 and 4 of the said counter affidavit are reproduced below:

“3- That before giving parawise reply to the writ petition it is necessary to place some facts of the case, which are as follows:

Brief History

That in the year 2020 during the posting period of Lalkuan, the officiating Inspector Incharge Lalkuan submitted through his letter that the petitioner i.e. (Constable Civil Police No. 991) is resident of Gram Bindukhera, Post Bindukhera, Kotwali- Rudrapur, District-Rudrapur and he was also attached at Covid Care Centre- Mota Haldu, Lalkuan from Police Line and the petitioner has been charged Under Section 60/72 of Excise Act through the F.I.R. No. 313/2020, and Under Section 323/504/506/332/353 of I.P.C. through the F.I.R. No. 314/2020 dated 25-11-2020 and as per the F.I.R. he has been charged that he was involved for formulating, selling and supplying the illegal liquor along with his brother and brother in law and the other family members and the petitioner was also charged for giving the shelter to his family members for doing these criminal activities.

That many complainants have been received against the petitioner and an F.I.R. was also lodged by the name of petitioner’s brother in law namely Satnam Singh @ Sattu S/o of Jeet Singh and three other unknown person as F.I.R. No. 314/2020 Under Section 323/504/506/332/353 of I.P.C who i.e. Satname Singh is the resident of Nazimabad, Dhaura Dam, P.S. Kichha, District- Udham Singh Nagar and they were also charged for formulating, selling and supplying the illegal liquor along with petitioner. True/Correct typed version/photo copy of the complaint/report against the petitioner is being annexed herewith and marked as Annexure C.A.-1 to this counter affidavit.

That Senior Superintendent of Police, Nainital Uttarakhand vide Office Order No. COK-159/2020 dated 07-12-2020 transferred the petitioner in consequence the order dated 07-12-2020 passed by Inspector General of Police, Kumaoun Range, Nainital, District Nainital to District Bageshwar on administrative ground due to the recommendations and reports against the petitioner.

In compliance of this order the relieving date of the petitioner was fixed by the Senior Superintendent of Police, vide Office Order No. Ta- 112/2017 dated 08-12-2020 and the petitioner has been relieved from the office to the transferred place i.e. Bageshwar. But the petitioner did not report at the transferred place in the District Bageshwar as per the office order dated 18-12-2020.

Hence, the petitioner has filed the present writ petition before this Hon’ble Court for quashing the transfer order dated 07-12-2020.

Parawise Reply

4- That the content of para no. 1 of the writ petition are not admitted, because many complainants have been received against the petitioner and an F.I.R. was also lodged by the name of petitioner’s brother in law namely Satnam Singh @ Sattu Son of Jeet Singh and three other unknown person as F.I.R. No. 314/2020 Under Section 323/504/506/332/353 of I.P.C who is the resident of Nazimabad, Dhaura Dam, P.S. Kichha, District- Udham Singh Nagar and they were also charged for formulating, selling and supplying the illegal liquor along with petitioner.”

Learned State Counsel contends that the work and conduct of petitioner is unsatisfactory and there is definite information that petitioner is involved in criminal activities, therefore, the competent authority was justified in transferring the petitioner on administrative ground.

It is settled position in law that a government servant cannot be transferred for committing misconduct. Misconduct by a government servant can be dealt with by invoking the provisions of Discipline and Appeal Rules applicable to such government servants.

Hon’ble Supreme Court in the case of Somesh Tiwari Vs. Union of India and Others, (2009) 2 SCC 592, has summarised the legal position on punitive transfer, as follows:-

“16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.”

From the counter affidavit, it is revealed that the impugned transfer order is punitive in nature, therefore the same cannot be sustained in the eyes of law. Thus impugned transfer order is liable to be quashed and is hereby quashed. Writ petition is allowed.

However, it shall be open to the respondents to initiate disciplinary proceedings against petitioner in respect of alleged misconduct committed by him.