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2011 DIGILAW 2730 (ALL)

Anil Kumar Pal v. State of U. P. and others

2011-12-01

ANIL KUMAR

body2011
Anil Kumar, J.;— Heard Sri Amar Nath Dubey, learned counsel for petitioner, Sri R.D. Shahi, learned Standing Counsel and perused the record. 2. By means of the present writ petition, the order dated 04.10.2011 (Annexure No. 1) has been challenged by the petitioner so far it transfer the petitioner to Mahoba. 3. Brief facts of the present case are that petitioner while working as Food Inspector in District placed under suspension by order dated 08.4.2011. On 19.04.2011 a chargesheet dated 08.04.2011 has been served on him thereafter Inquiry Officer appointed to conduct the domestic inquiry in the matter in question. On 29.04.2011, petitioner submitted his reply. 4. Inquiry Officer submitted inquiry report on 17.06.2011 to the punishing authority on the basis of the same, impugned order dated 04.10.2011 (Annexure No. 1) has been passed by O.P. No.2 imposing the punishments mentioned therein as well as transferring the petitioner to District Mahoba. 5. Learned counsel for petitioner while assailing the impugned order submits that the impugned order dated 04.10.2011 (Annexure No. 1) passed by O.P. No. 2 is illegal and arbitrary as the same has been passed by way of punishment against the petitioner. 6. He further submits that O.P. No. 2 is not a competent authority to pass the impugned order in view of the Rule 2(b) of the U.P.P.F.A. Act, hence liable to be set aside. 7. Sri R.D. Shahi, learned Standing Counsel, on the basis of the record available with him does not dispute the fact that the impugned order of transfer has been passed in the incidence in which the petitioner has been placed under suspension on 08.04.2011 but he submits that the punishing authority after approval from the higher authority, has taken a decision to transfer the petitioner and passed the order dated 04.10.2011, hence there is no malice on the part of opposite party No. 2 or transferring the petitioner by the order in question to Mahoba. 8. I have heard learned counsel for parties and gone through the record. 9. With the consent of learned counsels for the parties present today, the present writ petition is finally disposed of at the admission stage. 10. It is true that the transfer is an incidence of service and it is open to the employer to transfer his employee holding transferable posts from one place to another. 9. With the consent of learned counsels for the parties present today, the present writ petition is finally disposed of at the admission stage. 10. It is true that the transfer is an incidence of service and it is open to the employer to transfer his employee holding transferable posts from one place to another. But transfer cannot be resorted to by way of punishment on account of some alleged misconduct. If the employee is guilty of some misconduct, it is open to the employer to take action against him in accordance with law. But the transfer is not a remedy and cannot be used as a substitute for punishment. 11. Hon'ble the Supreme Court in the case of State of U.P. Vs. Jagdeo Singh, 1984 Suppl. SCC 413, has held that transfer by way of punishment is not permissible. In this case Station House Officer was found negligent in discharge of his duties as a consequence of which he was transferred. This Court quashed the transfer order which was upheld by the Supreme Court. The relevant extract from the judtgment of the Supreme Court is quoted below:- "We make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment, even if it involves the loss of a special emolument. If a police officer is transferred from one charge to another in the ordinary course of administrative exigences, the provisions of Section 7 of the Police Act will not be attracted because a transfer simplicitor is no punishment. It is only when the transfer is made by way of punishment as in the instant case, that Section 7 would come into play." 12. This Court in the case of Manager, Region IInd, State Bank of India, Zonal Officer, Meerut and others (1992) 1 UPLBEC 223, held that transfer on the basis of the complaint against a Government servant cannot be sustained because the complaint is found to be correct, it is open to the Government to take action against the officer concerned but transfer is no solution to this problem. 13. Hon'ble the Apex Court in the case of Somesh Tiwari Vs. Union of India and others, 2009 (27) LCD 886, held as under:- "Indisputably an order of transfer is an administrative order. 13. Hon'ble the Apex Court in the case of Somesh Tiwari Vs. Union of India and others, 2009 (27) LCD 886, held as under:- "Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." 14. Now reverting to the facts of the present case, in the instant matter by means of the impugned order dated 04.10.2011 (Annexure No. 1) passed by O.P. No. 2 along with other punishment , petitioner has been transferred from present place of posting to Mahoba, the same is nothing but amount to punishment, as such, the order in question 2 is contrary to law. 15. For the foregoing reasons, impugned order dated 04.10.2011 (Annexure No. 1) passed by O.P. No. 2 is quashed, so far it relates to transfer of the petitioner to Mahoba. However, as prayed by Sri R.D. Shahi, learned Standing Counsel, it will be open to the opposite parties to pass a fresh order of transfer in the matter in question in the administrative exigency of services and public interest, if so advised. 16. With the above observations, the writ petition is allowed. _