Dinamony v. Dt. Supdt. of Police, Kollam — 1993 DIGILAW 533 (KER)

Judgment :- A clerk in the office of the Police Department of a district, is transferred on the ground that he recommends cases of anti-social elements, tampers with witnesses and the record. Is this a transfer on administrative grounds? This is the question raised in the petition under Art.226 of the Constitution of India. 2. The petitioner, a Lower Division Clerk working in the District Police Office, Kollam, was, between 6-11-1989 to 4-3-1991 working as Record Keeper in the office. By order No. M2-82284/93 dated 11-10-1993 made by the Director General of Police the petitioner was transferred from the District Police Office, Kollam, to M.S.P. Malappuram, against the vacancy of Is mail Pazheri, L.D. Clerk. The transfer has been described as "on disciplinary grounds". The petitioner impugns this order. 3. A preliminary enquiry into the accusations of falsification of records and misappropriation of Government money of Rs. 13,500/- was made. The petitioner is alleged to have fabricated documents and misappropriated the amount. The petitioner was suspended on 4-3-1991, but was reinstated on 14-8-1991. A criminal case No. 49S/ 1991 under Ss.477(A) and 408 of the Indian Penal Code in respect of this amount is pending trial before the Chief Judicial Magistrate, Kollam. Another Criminal Case, C.C.No. 757/1991 for offences punishable under Ss.452, 383 read with S.34 of the Indian Penal Code is also pending against the petitioner. The petitioner was also an accused in Crime Case No. 527 of 1991 under Ss.448,341,323 and 427 read with Ss.34 of the Indian Penal Code. This case resulted in a compromise. 4. According to the respondents the petitioner's presence in the office at Kollam is undesirable for these reasons: (a) He commends the cases of anti-social elements and threaten? '.he police officers if they do not accept his recommendations. (b) If he is allowed to continue in the District Police Office he is likely to influence the witnesses in his capacity as a member of the staff. (c) He is likely to misplace or destroy the relevant records. 5. It is because of the above circumstances and in order to protect the witnesses from his influence and the record from being tampered with, that he was transferred. According to the petitioner the transfer is punitive. The respondents on the other hand urge that the transfer has been necessitated by the needs of administration arising out of the facts stated above. 6. According to the petitioner the transfer is punitive. The respondents on the other hand urge that the transfer has been necessitated by the needs of administration arising out of the facts stated above. 6. None of the facts stated in paras. 3 and 4, except the inference that he is likely to tamper with the records, are disputed. The question therefore, is whether the transfer on the grounds mentioned above is punitive or is necessitated by the needs of the administration which consist of:-(a) preventing him from recommending cases of antisocial elements (b) keeping the petitioner away so as to protect the record and (c) preventing him from tampering with witnesses who may testify against him. 7. Generally speaking, the administrative grounds taken into consideration facts like suitability of the employee for the job, his aptitude, conduct, reputation and the period for which he had been in the post. These are just some of the factors. They do not exhaust all exigencies of administration. That is why the courts have not limited the meaning of the word "administrative" by defining it. The respondents do not pretend that the petitioner has been transferred merely because a vacancy arose or because he is better suited for the job and the place where he is transferred. They have candidly claimed that the petitioner's presence in the office is likely to hamper not only the day-to-day administration but also the judicial proceedings pending against him. In a nutshell, they urge that the petitioner is an obstacle in the functioning of the police department of the District. 8. It is necessary to consider what is meant by "administrative" reasons or "administrative" grounds. In the context of this case "to administer" means to manage the affairs of the Government or the police organisation of the district or to superintend the work of the office. Management of the affairs is related to the objectives to be achieved by the organisation. It necessarily involves the accomplishment of the objectives or purpose for which the police organisation exists. Those in control of the management or administration, have a duty to ensure that the affairs or business of the organisation are run smoothly, honestly and without being hampered by outsiders or its own members. The administrator must be free of oppressive restraints' so that he can mould the organisation in accordance with the interest of public administration. Those in control of the management or administration, have a duty to ensure that the affairs or business of the organisation are run smoothly, honestly and without being hampered by outsiders or its own members. The administrator must be free of oppressive restraints' so that he can mould the organisation in accordance with the interest of public administration. If the District Superintendent of Police has to manage affairs of the police department in the district, he must have, on his establishment members of staff such as clerks, constables, record keepers and so on, who perform the duties faithfully, bearing in mind the interest of the public. The police are trusted for enforcing laws, and maintaining law and order. If the members of staff, play foul by promoting the cause of criminals or by sabotaging criminal trials by tampering with witnesses or documents, what you have is a malignant, harmful administration, detrimental to law, order and the rule of law itself. With even a single member of this kind in the staff the District Superintendent of Police and others in the office will always work under fear of secret mischief, and harm. Such a person is, as it were, a snake in the grass. 9. The petitioner's presence in the office has, according to the respondents, resulted in misappropriation of money, encouragement of anti-social elements and there is likelihood of tampering with the record. The authority to form such a judgment legitimately belongs to the administration. Another consideration which weighed with the respondents is that the petitioner is an accused in two cases of a serious kind. According to them, he has a position in the office which enables him to interfere with the course of judicial proceedings which may result in an unjust acquittal. 10. This Court is not, at this stage, called upon to decide whether the petitioner has actually committed these acts. The question is whether these acts are relevant for considering that good administration, demands that the petitioner be out of the office. In view of the facts set out in the counter affidavit I hold that the respondents acted within their authority in concluding that the petitioner's presence is harmful to the functioning of the police organisation of the District. 11. But then the petitioner alleges that the transfer is punitive. In view of the facts set out in the counter affidavit I hold that the respondents acted within their authority in concluding that the petitioner's presence is harmful to the functioning of the police organisation of the District. 11. But then the petitioner alleges that the transfer is punitive. If the transfer is intended to punish the petitioner it may be said that the transfer has been made not in the interest of administration but for the purpose of punishing him, in which case, it would be malafide. Therefore, consider what is meant by "punitive" and "punishment". To punish means to impose a penalty upon some person for a fault, offense, or violation. Ordinary meaning of the word punish is to cause the offender to suffer for the offence or to inflict penalty for the offence. The word "punishment" necessarily denotes or signifies some offence or wrong committed by the person who is punished. An action of the employer to the detriment of the employees' interest would not be punishment as long as the action is not motivated by a desire to punish him for the alleged fault or wrong. Mere act of causing inconvenience or suffering incidental to the transfer, by itself does not mean punishment. Punishment involves the idea that penalty is inflicted because of commission of a wrong. In ordinary parlance punishment means any kind of suffering. But when an employee is transferred because his presence is harmful to the smooth running of the organisation, the element of punishment is absent. The idea is to keep the organisation clear of internal obstruction. In every case of errant behaviour of a subordinate, the superior is not bound to hold a department enquiry and seek punishment. He is free to resort to other ways of running his department smoothly. Therefore, the infliction of inconvenience or suffering is not necessarily punitive. The respondents, no doubt, had in mind the petitioner's acts like tampering with record, misappropriation of money, threatening witnesses and so on. But that is not the cause of the impugned transfer. The cause of the transfer is that the petitioner's presence is harmful to the interest of administration. I have no doubt that when they transferred the petitioner, the consideration in the respondent's mind was not how to teach him a lesson. But that is not the cause of the impugned transfer. The cause of the transfer is that the petitioner's presence is harmful to the interest of administration. I have no doubt that when they transferred the petitioner, the consideration in the respondent's mind was not how to teach him a lesson. If the petitioner continues to back antisocial elements, tampers with witnesses or the record, the administration suffers immense harm. The respondents seek to avoid this harm to the administration and run it consistently with the public purpose it is intended to serve, by keeping the petitioner out of the office where he is alleged to have committed the various acts. 12. The judgment of the Supreme Court in Lakshmi Devika Sugar Mills Ltd, v. Pt. Ram Sarup ((1956) S.C.R. 916) is instructive. The employees resorted to tools-down strike in sympathy with a dismissed co-worker. Repeated attempts to persuade them to resume work having failed, the employer suspended the employees until further orders. The Supreme Court held that the suspension was not punitive, for, there could be no punishment so long as there was no offence and any action of the employer to the detriment of the workers' interest would not amount to punishment. The concept of punishment, therefore, presupposes a commission of an offence or a wrong. Where the employer's acts merely cause inconvenience it does not become punishment until an offence or wrong has been proved. 13. I will sum up my conclusions: On the basis of the facts on the record the respondents came to the conclusion that the petitioner who recommends cases of anti-social elements and fabricates record is also likely to tamper with witnesses. They therefore concluded that his presence in the office was harmful to the administration. The conclusion of the respondents is based on facts relevant to such conclusion. The petitioner's presence is considered as a hindrance to the smooth conduct of the affairs of the police department of the district. In order to save the administration from the wrongful interference by the petitioner by the conduct referred to above, the respondents made the impugned order of transfer. The transfer is on administrative grounds because it protects the administration from the obstructive . and harmful interference by the petitioner. In order to save the administration from the wrongful interference by the petitioner by the conduct referred to above, the respondents made the impugned order of transfer. The transfer is on administrative grounds because it protects the administration from the obstructive . and harmful interference by the petitioner. The transfer is not punitive because it is intended to remove the obstacle in the smooth conduct of the affairs of the police organisation, and not to penalise the petitioner for any fault or offence. 14. For all these reasons the petition is dismissed.