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Madhya Pradesh High Court · body

2008 DIGILAW 966 (MP)

R B DUBEY v. STATE OF M P

2008-08-04

RAJENDRA MENON

body2008
Judgment ( 1. ) CHALLENGING the order of transfer (Annexure P-l), dated 13-3-2008, petitioner has invoked the writ jurisdiction of this Court. The petitioner is working as a Range Officer, Forest Department Deori District Sagar. From the aforesaid post the petitioner is transferred to the Division Office at Sagar as officer on Special Duty and in his place the respondent No. 4 Shiv Hari Garg, deputy Ranger has been asked to temporary charge. Inter alia contending that the transfer of the petitioner is punitive in nature and has been passed only by way of punishment on the grounds of misconduct said to have been committed by the petitioner, petitioner has filed this petition. ( 2. ) SHRI N. S. Ruprah, learned Counsel for the petitioner inviting attention to this Court to the impugned order dated 13-3-2008 points out that in the transfer order the reasons for transfer is indicated to be non-payment of salary to the employees within time, misappropriation and financial irregularities and other allegations. It is stated that without holding any enquiry or show-cause notice and in violation to the principles of natural justice petitioner is punished by the order of transfer and as the allegations of misconduct indicated in the order of transfer are held to be substantiated by the respondents it amounts to casting stigma and therefore the order of transfer is assailed mainly on the aforesaid ground. That apart, Shri N. S. Ruprah, learned counsel for the petitioner points out that in directing the petitioner to hand over the charge to respondent No. 4 who is to hold the aforesaid post on officiating basis respondents have committed breach of the circular dated 23-12-2002, which prevents giving the charge on temporary basis to a junior employee. Accordingly, on these grounds petitioner resists the order of transfer and prays for quashing the same. ( 3. ) SHRI Shailesh Mishra, learned Govt. Advocate for the respondent nos. 1 to 3 refutes the aforesaid and points out that the allegations of misappropriation indicated in the order of transfer are the reasons for transfer which is indication of the public interest and the administrative exigency which warrants transfer and does not cast any stigma nor (Joes not involve any penal consequences. Advocate for the respondent nos. 1 to 3 refutes the aforesaid and points out that the allegations of misappropriation indicated in the order of transfer are the reasons for transfer which is indication of the public interest and the administrative exigency which warrants transfer and does not cast any stigma nor (Joes not involve any penal consequences. Petitioners service conditions are not adversely effected because of the order of transfer and therefore it is argued by Shri Mishra, learned Counsel that the order of transfer does not suffer any illegality warranting interference. ( 4. ) IN support of his contention Shri Mishra, learned Counsel inviting attention to this Court in the matter of Union of India Vs. Janardhan Debanath, 2004 AIR SCW 955, contends that the allegations made even if serious in nature and the conduct attributed therein does not warrant holding of an enquiry before effecting the transfer. ( 5. ) I have heard the learned Counsel for the parties and perused the record. ( 6. ) PETITIONER has been transferred by the impugned order and the 2009 (3) M. P. H. T. ] R. B. Dubey Vs. State of M. P. 195 (Mr. Rajendra Menon, J.) order of transfer does make allegations against the petitioner. According to the respondents, the allegations and reasons are the administrative requirement which warrants transfer of the petitioner and the same as indicated hereinabove is the public interest involved in transferring the petitioner. The question as to whether such indications of misconduct made in the order of transfer amounts to casting stigma and warrants hold an enquiry or grant of opportunity of hearing to the petitioner, is considered by the Supreme Court in the case of Union of india Vs. Janardhan Debanath (supra) and in Paragraph 15 of the aforesaid judgment it is so held by the Supreme Court:- "15. The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. Janardhan Debanath (supra) and in Paragraph 15 of the aforesaid judgment it is so held by the Supreme Court:- "15. The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. 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 any 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 learned Counsel for 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. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High court is clearly indefensible and is set aside. " (Emphasis supplied) ( 7. ) EVEN though during the course of hearing Shri N. S. Ruprah, learned Counsel for the petitioner tried to distinguish the aforesaid judgment by pointing out that in the case before the Supreme Court the expression used in the transfer order was only a word undesirable whereas in the present case serious allegations are made and the guilt is said to be proved therefore, the principal laid down in the case of Union of India Vs. Janardhan Debanath (supra), will not apply. The said contention is unsustainable. ( 8. ) IT is crystal clear from the principles laid down by the Supreme court that if the order of transfer contains certain facts which amount to allegations or misconduct committed by the employee the same are the administrative reasons which compelled the employer to transfer and in doing so the order of transfer cannot be termed as punitive or stigmatic. ) IT is crystal clear from the principles laid down by the Supreme court that if the order of transfer contains certain facts which amount to allegations or misconduct committed by the employee the same are the administrative reasons which compelled the employer to transfer and in doing so the order of transfer cannot be termed as punitive or stigmatic. In the present case also respondents have only indicated the reasons which compelled them to transfer the petitioner and for doing so they are not required to hear the petitioner this will be required only when action is taken for punishing the petitioner for the aforesaid act of commission or omission. When only transfer is effected and when the same has no adverse effect on the terms and conditions of appointment of the employee and when transfer itself is a condition of employee, interference into the matter on the grounds raised in this petition is not warranted. ( 9. ) ACCORDINGLY, finding no merit in the claim made by the petitioner and finding the order of transfer to be passed on administrative consideration, this petition is dismissed.