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2009 DIGILAW 3293 (ALL)

RAM SURAT PANDEY v. STATE OF U. P.

2009-10-15

ASHOK BHUSHAN, K.N.PANDEY

body2009
JUDGMENT By the Court.—Heard learned counsel for the petitioner and the learned standing Counsel. Counter affidavit and supplementary affidavit filed today is taken on record. Learned counsel for the parties agree that this writ petition be disposed of finally. 2. By this petition, petitioner has prayed for quashing the order dated 15.9.2009, passed by the Special Secretary, Government of U.P. and consequential order dated 16.9.2009 transferring the petitioner from Bareilly to Etawah. Petitioner’s case in the writ petition is that he has been posted at Bareilly in the year 2007. He submits that a complaint was submitted against the petitioner by a Member of Legislative Assembly of the ruling party dated 22.7.2009. In the complaint, serious allegations were made against the petitioner that the petitioner is functioning against the policies of the Government and the petitioner takes money for every work. On the said serious complaint, it appears that Secretary, Board of Revenue was asked to take appropriate steps. It appears that the Board of Revenue vide its letter dated 30.7.2009 with reference of the endorsement dated 24.7.2009, submitted a proposal for transfer of the petitioner. The petitioner received a letter dated 25.8.2009 sent by the Additional District Magistrate asking the petitioner to submit his comments with regard to the complaint submitted by the Member of Legislative Assembly dated 22.7.2009. The State Government passed an order dated 15.9.2009 taking into consideration the report dated 30.7.2009 transferring the petitioner from Bareilly to Etawah. 3. Learned counsel for the petitioner challenging the order contends that at no stage the complaint against the petitioner submitted by the Member of Legislative Assembly was verified and without there being any satisfaction that the allegations have some substance, petitioner has been transferred. Learned counsel for the petitioner submits that according to the transfer policy dated 6.6.2009, State Government has decided not to transfer any employee of any cadre in the year 2009-2010. However, any employee could be transferred in public interest on any inevitable situation with the approval of the Minister/Hon’ble Chief Minister. 4. Learned counsel for the petitioner has placed reliance on the Division Bench judgments reported in 2008(2) ADJ 680 : 2008(2) ESC 1141 (DB), Om Prakash Singh v. State of U.P. and others and 2008(9) ADJ 341 : 2008(5) ESC 3546 (DB)(LB), Devendra Singh v. State of U.P. and another. 5. 4. Learned counsel for the petitioner has placed reliance on the Division Bench judgments reported in 2008(2) ADJ 680 : 2008(2) ESC 1141 (DB), Om Prakash Singh v. State of U.P. and others and 2008(9) ADJ 341 : 2008(5) ESC 3546 (DB)(LB), Devendra Singh v. State of U.P. and another. 5. Learned Standing Counsel refuting the submissions of the learned counsel for the petitioner contended that the petitioner was in Bareilly for already 2 and a half years and even if the complaint is ignored, he can very well be transferred by the State Government. He submits that the transfer has been effected after obtaining approval in accordance with the transfer policy dated 6.6.2009. He submits that in the inquiry which was initiated by the Additional District Magistrate against the petitioner, petitioner has not submitted any reply. 6. We have considered the submissions of the learned counsel for the parties and have perused the record. 7. There is no dispute with regard to the facts as has has been brought on the record. The petitioner has been transferred on the complaint submitted by the Member of a Legislative Assembly of the ruling party dated 22.7.2009, which has been filed as Anexure-5 to the writ petition. The complaint submitted by the M.L.A. makes serious allegations against the petitioner which was addressed to the Hon’ble the Chief Minister. After receiving the complaint, Board of Revenue vide its letter dated 30.7.2009 has made a recommendation for transferring the petitioner from Bareilly to Etawah. In the counter affidavit the respondents themselves have brought on the record CA-1 the Note Sheet on which the approval has been obtained. In para 3 of the Note Sheet, reference has been made to the serious complaints levelled against the petitioner by the M.L.A. The petitioner has brought on record the letter of the Additional District Magistrate dated 25.8.2009, Annexure-8 to the writ petition by which the complaint of the M.L.A. dated 22.7.2009 has been forwarded to the petitioner for his comments. Although the learned Standing Counsel has submitted that no reply has been submitted by the petitioner, but the petitioner has brought on record in the Supplementary Affidavit the reply dated 4.9.2009, which contains receiving also on 4.9.2009 as Annexure SA-1. Although the learned Standing Counsel has submitted that no reply has been submitted by the petitioner, but the petitioner has brought on record in the Supplementary Affidavit the reply dated 4.9.2009, which contains receiving also on 4.9.2009 as Annexure SA-1. The allegations against the petitioner has been denied and it has been stated in the reply that petitioner having not acceded to several illegal requests received by the MLA for getting certain incorrect work done complaint has been filed. The Division Bench of this Court in Om Prakash Singh (supra) has laid down that the transfer of an employee can be made on a complaint submitted by a public representative but after verification of allegations. Following was laid down in para 12 of the said judgment which is quoted below : “The law is settled that merely because a transfer has been recommended by a public representative, the same would not stand vitiated but it has to be seen as to whether the complaint made has some bearing and is genuine or that the public representative who is making that recommendation belongs to the constituency concerned or not so that he may have some knowledge of the working and the functioning of the Government servant and if a Minister of a different Department who apparently cannot have any knowledge of the working of another department, nor can have any control, makes a recommendation, action can be taken by the department on such a recommendation also, it if comes through the Minister of the Department concerned or even otherwise but while taking such action, it would be obligatory upon the State Government to verify the contents of the complaints against the Government servant. Merely because the public representative makes complaint against the Government functionary, it cannot be taken as a gospel truth particularly in an area when public representatives act against the Government servant/functionary only by being guided of their personal vengeance, political gain and not by the merits of the claim of either parties.” 8. From the law laid down in Om Prakash Singh’s case (supra) it is clear that an employee can be proceeded with transfer after receiving complaint by a public representative, but merely, on receiving complaint transfer is not to be effected rather prima-facie satisfaction is required to arrive at that there is some genuineness or some substance even for making inquiry. From the law laid down in Om Prakash Singh’s case (supra) it is clear that an employee can be proceeded with transfer after receiving complaint by a public representative, but merely, on receiving complaint transfer is not to be effected rather prima-facie satisfaction is required to arrive at that there is some genuineness or some substance even for making inquiry. It is for the State Government after prima-facie satisfaction to transfer an employee or to initiate disciplinary proceedings, but merely receiving of a complaint cannot be a basis of transfer unless a prima-facie satisfaction is reached by a competent authority. 9. From the materials brought on record, it is clear that no such prima-facie satisfaction has been reached by the competent authority for transferring the petitioner. To the contrary the Additional District Magistrate vide letter dated 25.8.2009 has issued notice to the petitioner asking him to reply the complaint. Complaint has been replied on 4.9.2009 and the learned Standing Counsel in his affidavit has stated that the reply was not received and it is still pending. Additional District Magistrate has not even given any report till date, thus the proceedings which were initiated to find out the truthfulness of the complaint is still pending. 10. In these circumstances we are satisfied that the transfer order was issued only at the behest of the complaint submitted by the Member of Legislative Assembly without verification of substance of the complaint which is obligatory. 11. In view of the aforesaid, transfer order dated 15.9.2009 and consequential orders dated 16.9.2009 and 30.9.2009 cannot be sustained and are hereby set-aside. However, we make it clear that it is always open for the State Government to take appropriate action if allegations against an officer or employee are found correct. 12. The writ petition succeeds and is allowed. ————