T.S. Pathare vs C.G. State Civil Supplies Corporation Limited and The General Manager Admn

Dhirendra Mishra, J.—This is the second round of litigation. Earlier the petitioner had filed W.P. (s) No. 5442/08 against his transfer order dated 26.8.2008 (Annexure P-1) which was disposed of by this Court with a direction to the respondent No. 1 to decide representation of the petitioner against his transfer expeditiously preferably within a period of six weeks from the date of receipt of the representation. Representation of the petitioner has been rejected vide order dated 11.11.2008 (Annexure P-5).

Mr. Kesharwani, learned Counsel for the petitioner vehemently argued that from bare perusal of the impugned order by which the representation has been rejected it is evident that the petitioner has been transferred on the basis of certain complaints by way of punishment and as such, the same is punitive in nature. Punishment by way of transfer has been imposed without following the principles of natural justice and therefore, the same is liable to be quashed. Reliance is placed on AIR 1984 SC 115 State of U.P. and Anr. v. Jagdeo Singh and another.

I have heard learned Counsel for the petitioner.

The petitioner is Assistant under the respondent No. 1. He was transferred from District Office, Raipur to District Office, Dantewada vide order dated 26.8.2008 (Annexure P-1). He filed W.P. (s) No. 5442/08 against the above transfer order and the same was disposed of on 29.9.2008 by this Court with liberty to the petitioner to file representation before the respondent No. 1 and respondent No. 1 was further directed to decide the representation within six weeks from the date of receipt of the representation.

Respondent No. 1 vide impugned order of Annexure P-5 has rejected the representation of the petitioner against his transfer to Dantewada by detailed order. In Para-2 of the impugned order it is mentioned that the petitioner was transferred from District Durg to Mahasamund as there were complaints against the petitioner that he was continuously absent from Saja Centre without permission, however, the petitioner was again transferred from Mahasamund to Head Quarter Finance Department at his own cost. The order also mentions that there is shortage of staff in the District Manager''s Office, Dantewada and therefore, with a view to post an experienced employee and considering the complaints against the behaviour and work of the petitioner, he was transferred to District Office Dantewada.

In the matter of Jagdeo Singh (supra) the respondent was drawing special emoluments as Station House Officer, he was found negligent in the discharge of his duties as a consequence he was reverted from the post of Station House Officer, misconduct entry was made in character roll and he was transferred to Fatepur Police Station as a second officer and not as a Station House Officer. In these circumstances referring to Section 7(d) of the Police Act, 1861 it was held that when the transfer is made by way of punishment, as in the instant case, Section 7 would come into play.

The Hon''ble Apex Court in the matter of Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, in Para-12 has held thus;

That brings us to the other question as to whether the use of the expression "undesirable" warranted an enquiry before the transfer. Strong reliance was placed by learned Counsel for the respondents on a decision of this Court in Jagdish Mitter v. Union of India AIR p. 456, para 21 to contend that whenever there is a use of the word "undesirable" it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression "undesirable" in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially - and the same yardstick, norms or standards cannot be applied to all categories of cases. 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.

In the matter of State of U.P. and Others Vs. Siya Ram and Another, the Hon''ble Supreme Court has held that the transfer of an employee to a non-working post after initiation of disciplinary proceedings which was not approved by the State Public Service Commission cannot be considered to be punitive in nature particularly when the same is alleged to be on administrative ground and no malfides were shown by the employee. It has been further held that 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 tribunals normally cannot interfere with such orders as a matter of routine, as though they were 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.

If the facts of the present case are examined in the light of the principles laid down in the aforesaid judgment, it is evident that the petitioner has not imputed malafides against the officers of the respondents. The impugned order clearly shows that the petitioner has been transferred on account of administrative exigency as there is requirement of experienced employee/officer in the District Office, Dantewada. The alleged complaints referred to in the impugned order would not result into consequence which may involve any adverse impact or visit the petitioner with any penal consequences and on the basis of the same it cannot be inferred that the impugned transfer order was punitive in nature.

On the basis of the aforesaid analysis the instant petition deserves to be dismissed and is accordingly hereby dismissed at the admission stage itself. No order as to costs.