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1982 DIGILAW 4 (KER)

MOHAMMED v. DIRECTOR OF PANCHAYATS

1982-01-04

BALAKRISHNA MENON

body1982
Judgment :- 1. This writ petition is by the Executive Officer. Pulamanthole Panchayat to quash Ext. P1 order dated 12-10-1981 of the District Panchayat Officer, Malapuram, transferring him from Pulamanthole Panchayat to Mampad Panchayat. Ext. P1 order refers to an order E. 856750/81 dated 29-9-1981 of the 1st respondent the Director of Panchayats, Trivandrum, requiring the transfer of the petitioner from the Pulamanthole Panchayat Ext. P1 order is challenged as violative of Art.14 of the Constitution for the reason that, according to the petitioner, the order is not in bona fide exercise of power of the Department and that it has been passed on extraneous considerations 2. In the counter-affidavit filed on behalf of the 1st respondent it is stated in Para.3 that the transfer was solely on account of a representation made by the President of the Pulamanthole Panchayat before the 1st respondent, requesting him to transfer the Executive Officer A copy of the representation of the President of the Panchayat to the 1st respondent is produced as Ext R1. In Ext. R1 the President of the Panchayat alleges that the Executive Officer is not co-operative for the developmental activities of the Panchayat and hence he may be transferred. 3. The learned Government Pleader has produced the files before me, relating to the matter. The order of the Director of Panchayats dated 29-9-1981, referred to in Ext. P1 is a communication by the Ist respondent to the 2nd respondent and reads as follows: "In this Office letter dated 17-8-1981 you were requested to furnish your enquiry report urgently. Again you were reminded on 22-9-1981 to furnish the report within a week. You have not furnished the report or conducted the enquiry so far. You are requested to transfer Sri. T. Muhammed, Executive Officer, Pulamanthole Panchayat forthwith and report the fact". From this letter of the Ist respondent, it is clear that on the complaint Ext. R1 of the President of the Panchayat the 1st respondent wanted the 2nd respondent to make an enquiry and submit a report. Since no report of enquiry was forthcoming the 1st respondent has directed the 2nd respondent to forthwith transfer the petitioner. The basis of the order of transfer is Ext. R1 complaint by the president of the Panchayat. R1 of the President of the Panchayat the 1st respondent wanted the 2nd respondent to make an enquiry and submit a report. Since no report of enquiry was forthcoming the 1st respondent has directed the 2nd respondent to forthwith transfer the petitioner. The basis of the order of transfer is Ext. R1 complaint by the president of the Panchayat. Even though the 1st respondent wanted an enquiry to be conducted on the complaint, he did not have the enquiry report before him on 29-9-1981 when he gave a direction to transfer the petitioner. Under these circumstances, it cannot be said that Ext. P1 order was passed on account of the exigencies of service requiring a transfer of the Executive Officer. 4. In F. P. Royappa v. State of Tamil Nadu (AIR. 1974 SC. 555), it is stated at page 583 as follows: "Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it roust not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations. It would amount to malafide exercise of power and that is hit by Art.14 and 16. Mala fide exercise of power and arbitrariness are lethal radiations emanating different from the same vice: in fact the latter comprehends the former. Both are inhibited by Art.14 and 16." In Smt. S. R. Venkataraman v. Union of India & another (AIR. 1979 SC. 49), the Supreme Court stated thus: "6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose it is generally immaterial whether its repository was acting in good faith or in bad faith. 1979 SC. 49), the Supreme Court stated thus: "6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C. J., in Pilling v. Abergele Urban District Council, (1950) 1 K. B. 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter". 7. The principle which is applicable in such cases has thus been stated by Lord Esher M. R. in the Queen on the Prosecution Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBD 371 at p. 375: "If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion". This view has been followed in Sedler v Sheffield Corporation, (1924) 1 Ch. 483. 8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go. these may well be said to run into one another. 9. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go. these may well be said to run into one another. 9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the 'public interest', to a purpose wholly unwarranted by it and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power." 5. The impugned order Ext. P1 is in consequence of a direction of the Ist respondent dated 29-9-1981, contained in his letter addressed to the 2nd respondent. The Ist respondent had thought it necessary to have an enquiry into Ext. R1 complaint by the President of the Panchayat and because there was some delay in conducting the enquiry and submitting a report, he has exercised his power of transfer of the petitioner and has accordingly given a direction for his immediate transfer. 6. An order of transfer is not ordinarily to be interfered with by this Court. But when it is shown that the order is violative of Art.14 of the Constitution either because it is arbitrary or is passed for extraneous reasons, this Court has a duty to set aside the order. In the present case, the counter-affidavit filed on behalf of the Ist respondent clearly states that the only reason for the transfer was Ext. R1 complaint by the President of the Panchayat. The complaint is vague. The Ist respondent had thought it necessary and had directed the 2nd respondent to conduct an enquiry on Ext. R1 complaint, but even before a report of enquiry was received he has ordered the immediate transfer of the petitioner. Ext. P1 order cannot therefore be sustained. It is accordingly quashed. 7. The complaint is vague. The Ist respondent had thought it necessary and had directed the 2nd respondent to conduct an enquiry on Ext. R1 complaint, but even before a report of enquiry was received he has ordered the immediate transfer of the petitioner. Ext. P1 order cannot therefore be sustained. It is accordingly quashed. 7. This judgment will not however preclude the Panchayat from proceeding under Sub-section (4) of S.33 or the Ist respondent from transferring the petitioner after considering the report of the District Panchayat Officer on enquiry into Ext. R1 complaint of the President of the Panchayat. Counsel for the respondents submits that the petitioner was posted as Executive Officer of the Panchayat on 16-4-1979 and in the ordinary course, he is due for transfer in April, 1982. I make it clear that this judgment does not in any way affect the Ist respondent's power to transfer the petitioner from one Panchayat to another. The O. P. is allowed as indicated above. There will be no order as to costs. Allowed.