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2003 DIGILAW 2741 (ALL)

VIDYA RAM v. DISTRICT MAGISTRATE/a. D. M.

2003-11-21

M.KATJU, UMESHWAR PANDEY

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M. KATJU, J. ( 1 ) THIS special appeal has been filed against the impugned judgment of the learned single Judge dated 30. 10. 2003. ( 2 ) HEARD learned counsel for the parties. ( 3 ) THE writ petitioner Om Prakash was a Lekhpal and he challenged his transfer order before the learned single Judge. The learned single Judge allowed the said writ petition by his judgment dated 30. 10. 2003 against which the present special appeal has been filed. ( 4 ) THE transfer order dated 2. 8. 2003 stated that Om Prakash, Lekhpal was posted since 13. 1. 1993 at Bamrauli Katara. Tahsil Agra, i. e. , for ten years and six months. There were some complaints against him, e. g. , of not giving possession to the allottees, capturing gram sabha land illegally, not carrying out the orders of the Election Commission, not making mutation in the Revenue records, negligence, slackness and doing acts against the policies of the Government. In this connection, a report has been submitted by the Tehsildar, Agra, dated 2. 7. 2003 which had been also recommended by the Dy. Collector, Sadar, Agra, by his report dated 3. 7. 2003. ( 5 ) ON those reports, the District Magistrate, Agra, by order dated 2. 8. 2003 has transferred the writ petitioner to another Tahsil in the same district. It is this order, which has been set aside by the learned single Judge. We have carefully perused the Judgment of the learned single Judge and are of the opinion that it cannot be sustained. ( 6 ) IT is well settled that transfer is an exigency of service and the writ petitioner was on a transferable post. It has been held by a series of the decisions of the Supreme Court that a transfer order can only be interfered with by this Court when there is a violation of a statutory provision or mala fides vide Union of India and Ors. v. S. L. Abbas, AIR 1993 SC 2444 ; B. Varadha Rao v. State of Karnataka and Ors. , AIR 1986 SC 1955 ; Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. , AIR 1991 SC 532 ; Union of India and another v. N. P. Thomas. AIR 1993 SC 1605 ; State of Punjab and Ors. v. S. L. Abbas, AIR 1993 SC 2444 ; B. Varadha Rao v. State of Karnataka and Ors. , AIR 1986 SC 1955 ; Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. , AIR 1991 SC 532 ; Union of India and another v. N. P. Thomas. AIR 1993 SC 1605 ; State of Punjab and Ors. v. Joginder Singh Dhatt, AIR 1993 SC 2486 ; Agbani kanta Ray v. State of Orissa. (1995) Supp. 4 SCC 169 ; Riaz Ahmad v. Additional Registrar (Administration), Co-operative Societies, U. P. Lucknow and Ors. , 2002 (5) ESC 124 and pramod Charan Saxena v. Director, Panchayat Raj Lekha Nideshalaya, Uttar Pradesh, Lucknow and Anr. , 2002 (5) ESC 34. ( 7 ) THE learned single Judge has allowed the petition holding that the transfer order is in mid academic session and casts a stigma on the writ petitioner, and is hence, by way of punishment. In our opinion, there is no bar to a mid session transfer. There is also no bar in making a transfer order because of the misconduct of an employee. ( 8 ) IT often happens that an employee commits mis-conducts and misbehaves in a place of posting and the employer may feel that the best way to deal with the situation is to transfer him to another place. Similarly, there are some employees who may become a headache to the employer and may create all kinds of nuisance. Transfer of such an employee, in our opinion, would not be illegal. We therefore, do not agree with the learned single Judge that a transfer order will be illegal merely because it has been passed on the basis of mis-conduct committed by an employee. No doubt if a transfer order is mala fide, then it can be set aside but a transfer order on the basis that an employee is committing mis-conduct and is not doing his work properly is in our opinion, not a mala fide order. ( 9 ) THE writ petitioner had spent more than ten years at one particular place. A perusal of the impugned transfer order shows that he was not doing his work properly. ( 9 ) THE writ petitioner had spent more than ten years at one particular place. A perusal of the impugned transfer order shows that he was not doing his work properly. The transfer order mentions that he did not give possession to the allottees, did not carry out the orders of the election Commission and did not make mutations in the Revenue records and was totally negligent and lethargic towards his duty and did not carry out the policies of the Government. In our opinion, these are very good grounds for transferring an employee. In fact, the authorities have treated the writ petitioner very leniently, because a perusal of the impugned transfer order shows that the writ petitioner deserved suspension and punishment, but instead he has only been transferred. It is well settled that transfer is not a punishment. ( 10 ) THE only ground for interfering with a transfer order is that a statutory rule has been violated or that there is mala fide as held in the case of S. L. Abbas (supra), and other decisions of the supreme Court. There is no legal principle that an employee cannot be transferred if he has committed, a misconduct. ( 11 ) FOR the reasons given above this special appeal is allowed and impugned judgment dated 30. 10. 2003 of the learned single Judge is set aside. .