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Himachal Pradesh High Court · body

2005 DIGILAW 269 (HP)

PARAS RAM v. STATE OF H. P.

2005-08-03

A.K.GOEL, K.C.SOOD

body2005
JUDGMENT Arun Kumar Goel, J.—Learned Counsel for the parties submitted that looking to the controversy involved in this writ petition, it may be disposed of at the threshold. Keeping in view this submission as also the limited controversy involved in this writ, it was admitted and then finally heard. 2. Petitioner filed Original Application on 12.9.2002 in the H.P. Administrative Tribunal. He challenged the order contained in Annexure P-2, dated 30.10.2001. He prayed for quashing his transfer, ordered vide this Annexure. This OA came up for consideration before the Tribunal and vide its order dated 17.12.2004, the same was dismissed. 3. At the time of hearing of this petition, learned Counsel for the petitioner urged that accepting everything for the sake of argument, but without conceding, that the impugned order of transfer from Government Senior Secondary School, Parwanoo to Government Senior Secondary School, Korag, District Sirmaur and for that matter to any other place on the showing of the respondents is punitive in nature and its character. Therefore, it cannot be sustained in the eyes of law. Further according to him, this is a clear cut case of colourable exercise of power to transfer the petitioner under the guise of its being in public interest. In this behalf, reliance was placed by Shri Sharma on Annexure P-4, copy of the reply filed by the respondents during the course of proceedings before the Administrative Tribunal. 4. When a reference is made to para 3 of the reply filed by the respondent in the Original Application, it is clear that on the one hand they are pleading the transfer of the petitioner to be on administrative ground, but in the next breath, they have stated that the petitioner was transferred because during the course of surprise inspection of the school by the Honble Education Minister dated 4.2.2002, he was found absent from duty. Thus, Mr. Sharma submitted that on this ground alone, this writ petition deserves to be allowed. 5. On the other hand, learned Advocate General urged that no exception can be taken to the impugned order Annexure P-2 whereby petitioner was transferred. According to him, petitioner is not entitled to any relief whatsoever in this writ petition. Thus he prayed for dismissal of the writ petition. 6. 5. On the other hand, learned Advocate General urged that no exception can be taken to the impugned order Annexure P-2 whereby petitioner was transferred. According to him, petitioner is not entitled to any relief whatsoever in this writ petition. Thus he prayed for dismissal of the writ petition. 6. Further case of the petitioner is that he had applied for station leave on 2.2.2002, and the same was granted on the said date by the Principal, Senior Secondary School, Parwanoo. 3rd February, 2002 was Sunday. He was taken ill on this date. As such, he came for treatment to Indira Gandhi Medical College and Associated Hospitals at Shimla. With a view to support this submission, he placed on file Annexure P-8. Thereafter on 5.2.2002, he submitted his application to the Principal of the school at Parwanoo and prayed for grant of casual leave explaining the circumstances for his absence on 4.2.2002 after availing station leave. His further case was that the telephone of the school was not in order, therefore, he could not inform the school authorities of his absence on 4.2.2002. He has placed on record Annexure P-ll, photo-stat copy of the letter from Sub-Divisional Officer, Telephones, Parwanoo, addressed to the Principal of the school. 7. Thereafter in the month of July, 2002, Memorandum Annexure P-12 was issued by the authorities to the petitioner whereby he was called upon to submit his explanation and to represent within 10 days which in fact he did vide Annexure P-13. This resulted in passing of the order Annexure P-14 on 14.8.2002, whereby period of his unauthorized absence on 4.4.2002 was treated as dias non for all purposes, such as increment, leave and pension. 8. We are alive to the legal proposition that unless transfer is shown to be either actuated by malice or is in violation of any statutory rule/ service condition/is arbitrary; Courts would be very reluctant to interfere with such an order. At the same time, the Courts can certainly look into the matter as to whether the order of transfer is simplicitor or comes by way of punishment. In a case of latter natue, Court would certainly interfere with the transfer order. Keeping in view this broad proposition in view, we shall examine the present case. 9. Admittedly petitioner was not present on 4.6.2002. He had submitted his application on 5.6.2002 to the Headmaster. In a case of latter natue, Court would certainly interfere with the transfer order. Keeping in view this broad proposition in view, we shall examine the present case. 9. Admittedly petitioner was not present on 4.6.2002. He had submitted his application on 5.6.2002 to the Headmaster. He could not inform school authorities about his illness and the resultant absence on 4.2.2002. In case authorities were not satisfied with his explanation, they ought to have dealt with the petitioner as required under the relevant service rules and regulations. Neither the cause of his absence given by the petitioner was rejected as it was not taken note of, nor it is the case of the respondents that the petitioner was not unwell and/or was not attended upon as an outdoor patient at Indira Gandhi Medical College and Associated Hospitals, Shimla on 4.2.2002. Respondents also do not say that the school phone was working on 4.2.2002. 10. In these circumstances, there is substance in the submission of the learned Counsel for the petitioner. We feel that before ordering petitioners transfer because of his absence on 4.2.2002, as is their stand in paragraph 3 of their reply to OA, he should have at least been heard. This was the minimum requirement of fair play and natural justice. That having not been done, we have no hesitation in coming to the conclusion that the transfer order has come by way of punishment vide Annexure P-2 and for that matter to any other place thereafter. Once this conclusion is arrived at, we find no difficulty in disposing of this writ petition. 11. We may clarify here that if on enquiry, explanation/reasons given by the petitioner for his absence on 4.2.2002 were found to be not satisfactory, respondent could and in fact should have proceeded against him as per law. 12. In identical circumstances, matter regarding transfer of an employee had been attending attention of Courts including Honble Supreme Court of India. To some of such decisions, reference is being made hereinafter : 13. In State of U.P. and others v. Jagdeo Singh, 1984 (2) SLR 148, it was held that where a Station House Officer was transferred as a result of his negligence and entry regarding misconduct and was thus posted as second officer, instead of Station House Officer, because, the transfer involved loss of special emoluments, therefore, it came by way of punishment. 14. 14. In Shamrao Chandrappa Kamble v. Deputy Engineer (B&C), Panchayat Samiti, Miraj, Sangli and others, 1998 (2) SLR 418, on receipt of complaint of negligence of work, insolence and insubordination and those allegations having been denied by the delinquent after his explanation was found unsatisfactory, he was ordered to be transferred without inquiry into the allegations as made against him. Such an order was held to be punitive in nature as stigmatic remarks about his conduct had been made without giving him an opportunity of hearing. 15. To the similar effect are the decisions in P. Pushpakaran v. The Chairman, Coir Board, Cochin and another, 1979 (1) SLR 309, and in J. Ravinder v. The Regional Manager, A.PS.R.T.C, Karimnagar, 1994 (7) SLR 337. And as already noted, explanation of petitioner being unwell, and having gone to Indira Gandhi Medical College and Associated Hospitals, Shimla where he was attended upon as an outdoor patient, has not at all been looked into by the respondents before ordering his transfer. In our view, the impugned transfer is punitive in nature. 16. Faced with this situation, learned Advocate General submitted that petitioner was aggrieved in 2002, whereas we are in 2005. This argument has no force. We feel that so long we are governed by Rule of Law and writ of Constitution runs, and also keeping in view the aforesaid decisions, we are of the opinion that transfer order Annexure P-2 was by way of punishment imposed upon the petitioner. And as already observed, in case the explanation was not satisfactory, nothing prevented the authorities concerned including respondents 1 to 5 to have ascertained the authenticity as well as correctness of the facts detailed in his application supported by OPD slip, especially in the context of his claim that he was sick on 3rd and had gone to Indira Gandhi Medical College and Associated Hospitals, Shimla. If this was the factual position, then the absence of petitioner on 4.2.2002 cannot be termed to be either, wilful or intentional. Once this conclusion is arrived, we find no reason to uphold the order of the Tribunal impugned in this writ petition. It is liable to be quashed and set aside. 17. No other point was urged. 18. If this was the factual position, then the absence of petitioner on 4.2.2002 cannot be termed to be either, wilful or intentional. Once this conclusion is arrived, we find no reason to uphold the order of the Tribunal impugned in this writ petition. It is liable to be quashed and set aside. 17. No other point was urged. 18. In view of the aforesaid discussion, this writ petition deserves to be allowed and as a result of it, order of the H.P. Administrative Tribunal in Original Application No. 1209 of 2002, titled as Paras Ram v. State of H.P. and another, dated 17.12.2004, vide Annexure P-15 is hereby quashed and set aside. No costs. Writ petition allowed.