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Madhya Pradesh High Court · body

2008 DIGILAW 1146 (MP)

DHARMESH HUMANEY v. HOUSING AND URBAN DEVELOPMENT

2008-09-12

SHANTANU KEMKAR

body2008
Judgment ( 1. ) THE petitioner is working on the post of Sr. Manager in the Housing and urban Development Corporation (for short hudco), a Government of india Enterprises Funded and Controlled by Union of India. He has been transferred by the third respondent vide order dated 20-9-07 (Annexure P-19)from the post of Incharge- RSU, Indore to Regional Office, Chennai for his further posting. Feeling aggrieved, the petitioner has filed this petition. ( 2. ) ACCORDING to the petitioner, the impugned transfer order is illegal, arbitrary, and is based on malafides. He stated that his transfer from Indore to a distant place like Chennai has been issued by the 3rd respondent, as he raised voice against him as well as many other superior officers for the illegalities committed by them. He further averred that in the last 10 years, he has been transferred six times prior to completion of his normal tenure of five years on every occasion. He stated that the Chairman- cum- Managing Director (for short, cmd) of HUDCO was on leave from 5-9-07 to 24-9-07, taking advantage of the situation, the 3rd respondent had issued the impugned transfer order beyond the scope of his jurisdiction. According to the petitioner the impugned transfer order could not have been issued without prior approval of the CMD of the HUDCO. He further alleged that his transfer is stigma-tic in nature and, therefore, without holding an enquiry, the same could not have been passed. ( 3. ) ON being noticed, the respondents have filed reply and denied the averments made in the petition. It is stated by the respondents that in the past, petitioner had lodged a false complaint against his superior officer Shri shibanarayan Nayak to harass and to blackmail him. On petitioners lodging the fir, an offence was registered against Shri Shibanarayan Nayak, who after trial was acquitted by the Special Judge (Atrocities) and Addl. Sessions Judge, bhopal vide judgment dated 11-3-03 (Annexure R-1 ). The said officer also lodged a counter FIR against the petitioner and an offence under Sections 323 and 506 of the Indian Penal Code was registered against the petitioner. After trial, the petitioner was condemned and convicted of the aforesaid offence. He was, however, released on probation by the Special Judge, considering his first offence vide judgment dated 31-8-04 (Annexure R-2 ). After trial, the petitioner was condemned and convicted of the aforesaid offence. He was, however, released on probation by the Special Judge, considering his first offence vide judgment dated 31-8-04 (Annexure R-2 ). The allegation of malafide has been denied by the respondents and it has been stated that in fact, large number of complaints have been received from the customers of the respondents against the petitioner, alleging demand of bribe and illegal gratification by the petitioner from them. On investigation and verification by recording the statements of the complainants, the Vigilance Wing of the hudco, found the complaints to be correct. In the circumstances, the decision to transfer the petitioner was taken in administrative exigency. ( 4. ) THE respondents have also stated that the 3rd respondent being the chief (HR), is duly empowered by the CMD vide order dated 24-2-05 (Annexure R-7) to transfer the officers upto the level of Asstt. Chief (E-4 Level officers ). In the circumstances it is stated that the petitioner being an officer below the rank of E-4 Level, the order of transfer of petitioner being an officer below the rank of E-4 Level, the order issued by the 3rd respondent is well within his competence. It is stated that since the 3rd respondent itself was competent to transfer the petitioner, there was no necessity of seeking approval from the cmd. As regards the earlier transfer orders, it has been stated that the orders were passed due to the petitioners cantankerous and bad inter personal relationships with his colleagues and superior officers. He was earlier transferred for his bad behaviour with the colleagues from Jaipur to Bhopal. At bhopal also, he was not able to perform his duties as per the job requirements. He was indulged in serious altercations with other staff members. There was problems with his inter personal relationship with other staff members. He was therefore transferred and posted to New Delhi. Thereafter on his request to cancel his transfer to New Delhi and to post back him at Bhopal it was found that a post was available at Indore which being nearer to Bhopal, he was posted at indore to give an opportunity to him to improve his behaviour. He was therefore transferred and posted to New Delhi. Thereafter on his request to cancel his transfer to New Delhi and to post back him at Bhopal it was found that a post was available at Indore which being nearer to Bhopal, he was posted at indore to give an opportunity to him to improve his behaviour. However, having regard to the various complaints received from borrowers/customers of the hudco that he had taken bribe for releasing instalment of loan and was demanding further bribe for releasing subsequent instalments of loan, the vigilance Wing investigated the complaints and found them to be correct. The investigation report was submitted by the Vigilance Department to the CMD who directed the course of action to be taken against him by HR Department in regard to his transfer from Indore as per letter dated 5-9-2007 (Annexure R-10 ). Thereafter the 3rd respondent Chief (HR) Department on the basis of the instructions of CMD contained in Annexure R-10 and considering the fact that the petitioner was holding a sensitive post, dealing with public and the complaints received from the customers of HUDCO, passed the impugned order of transfer. According to the respondents, the petitioners transfer is purely an administrative decision, taken so as to maintain the good reputation and image of the HUDCO. ( 5. ) THE petitioner has filed Rejoinder and explained the circumstances under which the incident with Shibanarayan Nayak had occurred. He also filed letters of the complainants in which complainants have stated that their blank signatures were procured by their agent Shri Pankaj Bauskar and they have no grudge against the petitioner. According to him, if the complaints were received against him, the proper course which was open for the respondents to have suspended the petitioner and to have conducted an enquiry against him and thereafter could have passed appropriate orders. He further stated that on the basis of false and frivolous complaints, he could not have been transferred in hot-haste manner. ( 6. ) HEARD learned Counsel for parties and perused the documents. ( 7. ) THE petitioners first contention that the impugned transfer order has been passed by 3rd respondent who was incompetent to pass the same is based on the office order No. 171/2002/11 -11 -02 (Annexure P-21 ). According to this office order the CMD of HUDCO has sub-delegated its powers to Sr. ( 7. ) THE petitioners first contention that the impugned transfer order has been passed by 3rd respondent who was incompetent to pass the same is based on the office order No. 171/2002/11 -11 -02 (Annexure P-21 ). According to this office order the CMD of HUDCO has sub-delegated its powers to Sr. Executive Director to transfer the employees upto Assistant Chief Level. Thus, according to the petitioner the 3rd respondent being not of the level of Sr. Executive Director could not have passed the petitioners impugned transfer order. I find that this contention is of no merit in view of the subsequent office order No. 627/2005/24-2-2005 (Annexure R-7) by which the CMD has sub-delegated its various powers including powers to transfer the employees upto the level of Asstt. Chief to the Chief (HR) Department. In the circumstances, the third respondent being Chief (HR) Department was having full powers to transfer the petitioner who was holding the post below the post of Asstt. Chief level. Even otherwise, I find that the impugned transfer order is issued pursuant to the directions of the CMD contained in the letter dated 5-9-2007 (Annexure r-10), therefore also the impugned order cannot be said to have been passed by the third respondent without any authority of the CMD or said to have been passed taking advantage of the leave period of the CMD. ( 8. ) THE next ground of malafides in the transfer order is based on the allegation that the petitioner made several complaints against various officers including the 3rd respondent to the Vigilance Wing of the respondents which were inquired and various officers including the 3rd respondent were warned. Therefore, in order to teach a lesson to the petitioner, the impugned transfer order has been issued at the behest of the adversely affected officers. This allegation has been denied by the respondents by stating that out of three officers named by petitioner (i) P. N. Tripathi, has already been retired (ii) Yogesh Saxena has been transferred from HR Department long back. The 3rd respondent against whom malafide has been alleged has denied the allegation of malafide and stated that the impugned transfer order has been passed on the basis of the recommendations of Vigilance Wing and the confidential note dated 5-9-07 (Annexure R-10 ). The 3rd respondent against whom malafide has been alleged has denied the allegation of malafide and stated that the impugned transfer order has been passed on the basis of the recommendations of Vigilance Wing and the confidential note dated 5-9-07 (Annexure R-10 ). On perusal of the letter dated 5-9-2007 (Annexure r-10) of the Vigilance Department, I find that on submission of the investigation report before the CMD, the CMD had directed the HR department to immediately transfer the petitioner to a non-sensitive post. In the circumstances, I am of the view that the petitioners transfer order was issued in compliance of direction of the CMD having regard to the various complaints made by the customers of the respondents, therefore, it cannot be held that the 3rd respondent has issued the petitioners transfer order in order to teach a lesson to the petitioner. As already observed, the 3rd respondent was duly empowered and authorized by the CMD vide Annexure R-7 to pass transfer orders of all the officers working upto the level of Asstt. Chief, therefore, it cannot be said that the impugned transfer order has been issued by an incompetent authority with malafides. It has not been disputed by the petitioner that his services are transferable throughout the country. In the circumstances, the allegation of the petitioner that he has been transferred from Indore to chennai at a long distant place with a malafide intention is also having no merit. ( 9. ) THE challenge to the impugned transfer order on the ground that it is in the breach of transfer policy which provides that normal tenure of the officer/sat any station will be five years and for sensitive posts, it will be of 3 years and, therefore, his transfer before completion of three years, is contrary to the transfer policy, has also no merit. The petitioner was transferred from Jaipur to bhopal on 6-5-2000. Thereafter due to administrative reasons, he was transferred from Bhopal to New Delhi vide order dated 5-12-02. Considering his representation to transfer back him to Bhopal and taking note of the fact that indore is nearer to Bhopal, where the post was also lying vacant, he was transferred to Indore vide order dated 3-11-05. Thereafter on the basis of various complaints and the report of the Vigilance Wing, an administrative decision was taken to transfer the petitioner to Chennai. Thereafter on the basis of various complaints and the report of the Vigilance Wing, an administrative decision was taken to transfer the petitioner to Chennai. The transfer policy (Annexure P-22) of HUDCO placed on record itself provides that normally, the period would be of 3 years at one place. Thus, the period of retaining an officer holding sensitive post for a period of three years at one place is not mandatory but it has to be followed in normal circumstances. However, having regard to the aforesaid special and compelling circumstances in order to avoid the defamation of the HUDCO, it was considered in the administrative and public interest to transfer the petitioner who was holding a sensitive post, from Indore to Chennai before completion of normal tenure of 3 years. Thus, the transfer order cannot be said to be violative of the Transfer Policy. (Emphasis supplied) ( 10. ) THE petitioners allegation that the impugned transfer order is stigma-tic, has also no merit. It is only when the petitioner has filed this petition and challenged the transfer order in the situation to justify the action; the respondents have disclosed the administrative reasons warranting issuance of the transfer order. Thus, in my view, the impugned transfer order cannot be termed to be a stigma-tic transfer order. The petitioners case that the complainants themselves have submitted applications stating therein that their agent obtained their signatures on blank papers and made false complaints against the petitioner and, therefore, on the basis of such complaints his transfer could not have been ordered, is also of no merit. Prima facie, on the basis of complaints, the Vigilance Wing of the HUDCO recorded the statements of the complainants and arrived at prima facie opinion that petitioners work is not satisfactory. On consideration of this, the CMD ordered the (HR) Department to transfer the petitioner. If the decision to transfer the petitioner is based upon such complaints and the Vigilance Report, it cannot be said to be a decision taken arbitrarily or with malafide intention. It is also noteworthy that from the letter (Annexure R-10), it is clear that the petitioner has been ordered to be transferred by the CMD against whom the petitioner has not alleged any malafide. ( 11. ) THE Supreme Court in the case of State of U. P. and another Vs. It is also noteworthy that from the letter (Annexure R-10), it is clear that the petitioner has been ordered to be transferred by the CMD against whom the petitioner has not alleged any malafide. ( 11. ) THE Supreme Court in the case of State of U. P. and another Vs. Siyaram and another, (2004) 7 SCC 405 , has refused to interfere into the transfer order which was passed when an enquiry for the misconduct was initiated, but, was not approved by the UP PSC and the Executive Engineer or Irrigation department was transferred on administrative ground, holding that the transfer order cannot be said to be punitive in nature. The Supreme Court further held that the High Court while exercising the jurisdiction under Article 226/227 of the Constitution of India, had gone into the question which require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. The Supreme Court held that no Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine. This view has again been reiterated by the Supreme Court in the case of Mohd. Masood Ahmad Vs. State of U. P. and others, (2007) 8 SCC 150 . ( 12. ) IN the case of Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245 , the Supreme Court considered that when the use of expression "undesirable" is used in the order of transfer whether it casts stigma and it cannot be done without regular enquiry. The Supreme Court held that this submission is without substance. ) IN the case of Union of India and others Vs. Janardhan Debanath and another, (2004) 4 SCC 245 , the Supreme Court considered that when the use of expression "undesirable" is used in the order of transfer whether it casts stigma and it cannot be done without regular enquiry. The Supreme Court held that this submission is without substance. It further observed that the manner, nature and extent of exercise to be undertaken by Courts/tribunals in a case to adjudge whether the use of words "undesirable" casts stigma, or constitutes a punishment would depend upon the consequences flowing from the order 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 utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quantity of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. ( 13. ) THE Supreme Court in the aforesaid case of Union of India and others Vs. Janardhan Debanath and another (supra), has further held that whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. ( 14. ) IN view of this proposition of law enunciated by the Supreme Court, the contention of the petitioner that before transferring him, the respondents should have held enquiry in regard to various complaints received against him, is totally without any substance. The petitioner was holding a sensitive position and posting. ( 14. ) IN view of this proposition of law enunciated by the Supreme Court, the contention of the petitioner that before transferring him, the respondents should have held enquiry in regard to various complaints received against him, is totally without any substance. The petitioner was holding a sensitive position and posting. He was dealing with customers of the HUDCO and in the circumstances if serious complaints have received against him and on enquiry, if prima facie, the respondents found the complaints to be correct and have decided to transfer the petitioner, action of the respondents cannot be subjected to same type of scrutiny as in the cases of dismissal, discharge, reversion or termination. The latitude has to be given to the respondents to enforce discipline, decency and decorum in pubic service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth function of administration. ( 15. ) HAVING regard to the aforesaid legal position and the reasons stated above, in my considered view, the impugned transfer order issued by the 3rd respondent is neither without jurisdiction nor arbitrary nor is based upon malafides. It is also not contrary to any statutory rule. In the circumstances, no case is made out for interference in the impugned transfer order. ( 16. ) ACCORDINGLY, the petition deserves to be and is hereby dismissed. No orders as to costs.