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Madhya Pradesh High Court · body

2011 DIGILAW 834 (MP)

Vijay Singh Parihar v. State of M. P.

2011-07-27

K.K.TRIVEDI

body2011
JUDGMENT K.K. Trivedi, J. 1. By this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the validity, correctness and legality of the order dated 27.4.2011 issued by the respondent No. 1 by which the petitioner is said to be transferred from Jabalpur to Satna on the post of Deputy Director, Prosecution, and in his place respondent No. 3 has been transferred from Satna to Jabalpur, on the ground that there was no such occasion to transfer the petitioner as he was posted at Jabalpur only vide order dated 28.1.2010 issued by the respondent No. 1. It is alleged that the order impugned has been issued without there being any justified reason or the administrative requirement just to accommodate the respondent No. 3. It is contended that the petitioner joined the place of posting only in the month of January, 2010 and has hardly completed his normal tenure but is sought to be transferred in such manner by the impugned order. Therefore, the order impugned is bad in law and liable to be quashed. 2. This Court considering the prayer made by the petitioner issued notices to the respondents on 29.4.2011 and from the order-sheet it appears that some sort of order granting interim relief was also dictated. However, the Government Advocate appearing for the respondents No. 1 and 2, the State, showed certain file to the Court during the lunch break and it appears that after going through the file, the Court passed an order on 29.4.2011 stating that it is not appropriate for this Court to grant stay to the petitioner. The direction was given to the Govt. Advocate to file objection with respect to the grant of stay to the petitioner. The case was directed to be listed on 3rd May, 2011. On this date, when the case was listed again, the file containing proposal for transfer of the petitioner was placed before the Court and this Court was of the opinion that no interim relief was to be granted to the petitioner. Again time was granted to file the reply with a direction that the matter be listed in the week commencing 16th May, 2011. 3. Again time was granted to file the reply with a direction that the matter be listed in the week commencing 16th May, 2011. 3. When the matter came up for hearing on 16.5.2011, recording all these facts, this Court specifically mentioned that despite giving opportunity to file reply and making statement that the reply is being filed within a short time, the Counsel for respondents No. 1 and 2 did not file any reply. On this date, the fact was brought to the notice that the petitioner has already carried out the order of transfer and joined at Satna but he was being compelled to withdraw the writ petition as a letter was written to this effect by the respondent No. 2. Considering the aforesaid fact, this Court specifically passed an order on 16.5.2011 directing stay of the operation of the impugned order dated 27.4.2011 (Annexure P-3) and specifically ordered that the petitioner be permitted, to work at his present place of posting at Jabalpur till the next date of listing. Accordingly, the petitioner Joined back at Jabalpur and is still continuing. 4. The return has been filed by the respondents No. 1 and 2 opposing the claim made by the petitioner. It has been contended by them that on an inspection of the office of the petitioner at Jabalpur, a report was submitted that the petitioner was not taking interest in conducting cases of serious offences for which he was specially appointed as a Prosecutor. It is also stated in this report that the petitioner has not taken interest in conducting any cases as Special Prosecutor, in which according to the instructions of the State Government, only Special Prosecutors were to appear. It is also said that the working of the petitioner was found to be totally unsatisfactory and at Jabalpur where several petitions against the department are pending, a person like petitioner should not be allowed to continue on the important post of Deputy Director, Prosecution. With this report the matter was placed for consideration and according to the respondents, this being so in the interest of the administration in this particular department, the petitioner was sought to be transferred. It is categorically said that the petitioner has been assigned the work as Special Public Prosecutor but he did not carry out the work which he was required to prosecute. It is categorically said that the petitioner has been assigned the work as Special Public Prosecutor but he did not carry out the work which he was required to prosecute. It is contended by the respondents No. 1 and 2 that since the respondent No. 3 was going to retire in the month of June, 2012, he made an application for his posting at Jabalpur categorically stating that Jabalpur is his home district and in terms of the policy made by the State Government, such an officer can be posted at his home district within two years from the date of retirement. This being so, it was contended that purely in the interest of administration and looking to the exigencies, the petitioner was transferred to Satna and in his place the respondent No. 3 was posted. It is further contended that respondent No. 3 carried out the order, handed over the charge at Satna and joined on the transferred place at Jabalpur on 29.4.2011. In view of this, there was no occasion to interfere in an administrative order of transfer and, therefore, the writ petition was liable to be dismissed. 5. The respondent No. 3 has also filed a separate return to the writ petition mainly describing the very same facts and stating his own conditions on account of which his representation was considered and according to the policy, he was posted at Jabalpur. It is further stated that charge was given to respondent No. 3 at Jabalpur and the petitioner also joined at Satna on 6.5.2011. Thus, it was contended by the respondent No. 3 that there remains nothing to be adjudicated in the writ petition after the compliance of the order passed by the competent authority. 6. The petitioner filed an application for calling the original record of transfer and with the said application (LA. No. 8224/2011) the memo dated 7.5.2011 said to be issued by the respondent No. 2 was placed on record. It is seen from this memo that the fact was recorded that though the petitioner has joined at Satna on 6.5.2011, yet he has not made it clear whether he has withdrawn his writ petition or not. No. 8224/2011) the memo dated 7.5.2011 said to be issued by the respondent No. 2 was placed on record. It is seen from this memo that the fact was recorded that though the petitioner has joined at Satna on 6.5.2011, yet he has not made it clear whether he has withdrawn his writ petition or not. The petitioner also filed a rejoinder to meet out the allegations made in the return and categorically stated therein that the orders were issued by the respondent No. 2 transferring only one employee working in the office of Deputy Director, Prosecution, Jabalpur to some other place. It was pointed out by the petitioner that by sending a memo on 15.1.2011 it was informed to respondents that there are about 45 petitions pending in the High Court in which the petitioner has acted as Officer-in-Charge, no ministerial employee is posted in his office after the transfer of Shri Phool Chandra Sondhiya, Assistant Grade-III, from Jabalpur to Sidhi. Therefore, it was quite difficult for him to complete the work of preparing returns to be filed in the pending writ petitions. The petitioner was required to spend money from his own pocket for the purposes of tying and photocopy of documents etc., which are required to be filed in the return. It is further categorically contended by the petitioner that soon after his joining w.e.f. 5.3.2010 to 12.1.2011, he has filed returns/additional returns in about 9 cases and a caveat before this Court. It is said that all this has been done by spending money from his own pocket and the claim was made for reimbursement of such amount but nothing was paid to him. Thus, it is said by the petitioner that in fact working in the office was not in appropriate manner and this has resulted in great difficulties to the petitioner, yet he was discharging his duties. 7. It is categorically contended by the petitioner that the orders were issued by the competent authority directing that persons like petitioner are required to act as a Special Prosecutor in the cases relating to serious offences. 7. It is categorically contended by the petitioner that the orders were issued by the competent authority directing that persons like petitioner are required to act as a Special Prosecutor in the cases relating to serious offences. It is also contended by the petitioner that the notifications issued in this respect specifically contains the condition that the District Magistrate or the Economic Offence Bureau are required to give file of such cases in which petitioner was required to act as Special Prosecutor Drawing attention of this Court to this specific words and instructions contained in orders dated 31.7.2010 and 4.6.2010, the petitioner has pointed out that the said orders were addressed to the District Magistrates of all the districts of the State and the said authorities were directed to mark the cases to the persons like petitioner, who were to appear in such cases as Special Public Prosecutor. It is categorically contended by the petitioner that not a single case, was ever marked to the petitioner as a result he was not in a position to conduct any of the cases in the Court. Further it was said that in the order dated 4.6.2010 (Annexure R-3 to the return of respondents No. 1 and 2), the categorical direction was issued by the State Government that the cases will be allotted by the Economic Offence Bureau to the persons like the petitioner for appearance as Special Public Prosecutor. Therefore, unless the cases are allotted, it was not open to the petitioner to appear in such cases. 8. Despite filing of this rejoinder, no attempt is made by the respondents to clarify such stand taken by the petitioner. It is emphatically contended by the petitioner that unless the cases are allotted to him under the provisions of the Code of Criminal Procedure, on his own he cannot act as Special Public. Prosecutor even when his name is mentioned in the notification so issued. By virtue of the notification alone, the petitioner cannot be said to be appointed as Special Public Prosecutor in any particular case. Drawing attention of this Court to the provisions of section 24 of the Code of Criminal Procedure, it is put forth by the petitioner that the Public Prosecutor and an additional Public Prosecutor is different than that of Special Public Prosecutor. Drawing attention of this Court to the provisions of section 24 of the Code of Criminal Procedure, it is put forth by the petitioner that the Public Prosecutor and an additional Public Prosecutor is different than that of Special Public Prosecutor. The petitioner is neither treated to be a Public Prosecutor nor Additional Public Prosecutor because for him specific posting as Deputy Director, Public Prosecutor and Special Public Prosecutor has been made. It is further contended that as per section 301 of the Code of Criminal Procedure, unless a case is made over to the petitioner, he cannot appear or plead in the Court and since no instructions have been given in any of the cases, it was not possible for the petitioner to appear as Special Public Prosecutor. Therefore, the inspection report, which has been made a basis for holding that the petitioner is not discharging duties property, is nothing but a misconceived and misleading information supplied by the respondent No. 2. 9. This Court deemed it necessary to call for the record of transfer file, where the case of the petitioner was considered for his transfer. The entire records of transfer has been placed before the Court. A perusal of the memo written by the respondent No. 2 clearly indicates that there was nothing except the inspection report dated 18.4.2011 (Annexure R-1), which was placed before the Government for consideration. It is further alleged that a show cause was given to the petitioner on 15.4.2011 making allegation against the petitioner that in compliance of the specific orders issued by the Directorate and the State Government the petitioner has not acted properly, he has not given information with respect to the cases pending in the High Court and thereby he has committed a misconduct and, therefore, he was called upon to show why action against him may not be taken for such a misconduct. Thus, it is clear that because of these facts, which were brought to the notice of the authorities and because of the fact that respondent No. 3 had moved an application for transfer, the proposal was considered and order of transfer was issued. 10. The Counsel for the petitioner has very categorically contended that he has made the allegation in affidavit that the petitioner was not served with any such show-cause notice dated 15.4.2011. 10. The Counsel for the petitioner has very categorically contended that he has made the allegation in affidavit that the petitioner was not served with any such show-cause notice dated 15.4.2011. Had it been served, the petitioner would not have hesitated in filing his reply explaining the facts. It is also stated by the petitioner that he has made a representation pointing out that he, who is retiring in the month of September 2012, is willing to settle down at Jabalpur and, therefore, at the cost of petitioner, ignoring his short tenure posting at Jabalpur, the respondent No. 3 should not be obliged by his posting at Jabalpur and transfer of petitioner to Satna. The Counsel for the petitioner has further put reliance in the case of Somesh Tiwari v. Union of India. (2009) 2 SCC 592 . It is emphatically contended by the petitioner that in paragraph 16 of the aforesaid decision, the Apex Court has held thus : 16. 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. Thus, it is contended that if at all there was issuance of a show-cause notice, though none is served on the petitioner, instead of waiting for disposal of such a show-cause notice, the order of transfer is issued. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. Thus, it is contended that if at all there was issuance of a show-cause notice, though none is served on the petitioner, instead of waiting for disposal of such a show-cause notice, the order of transfer is issued. Therefore, it will be nothing but an order of transfer passed in lieu of punishment and according to the law (aid-down by the Apex Court in the case referred to above, the same is bad in law and liable to be quashed. Drawing attention of this Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 and the specific findings given by the Apex Court in paragraphs 25 to 27, it is contended that if the legal malice is examined in light of such findings of the Apex Court, the order impugned in the present petition would be nothing but an order passed with mala fide intention and, therefore, the same is liable to be quashed. 11. Refuting such contentions of the Counsel for the petitioner, Shri Samdarshi Tiwari, learned Government Advocate appearing for respondents No. 1 and 2, has placed for consideration an order passed by the Division Bench of this Court in W.P. No. 10146/2011 on 30.6.2011. It is said that considering the case of Somesh Tiwari (supra) the Division Bench of this Court has held that an officer against whom there are complaints, can always be transferred to avoid further mischief on the part of such officer at his place of posting. Holding that if there are complaints against an officer, he cannot be transferred would be highly detrimental to public interest and to proper governance. It is only colourable exercise of power which has been declared incorrect by the Supreme Court. It is contended that since such a decision is given by the Division Bench of this Court after considering the law laid-down by the Apex Court and making a distinction between the exercise of power and colourable exercise of power, the case in hand will not fall within the mischief of colourable exercise of power as there were such reports against the petitioner. 12. In the considered opinion of this Court, such a stand taken by the respondents No. 1 and 2 cannot be accepted. 12. In the considered opinion of this Court, such a stand taken by the respondents No. 1 and 2 cannot be accepted. There is no reference that any compliant was made against the petitioner with respect to his working. There is no reference that on being complained to the higher officials about the conduct and working of the petitioner, the respondents No. 2 visited the office of the petitioner at Jabalpur and found illegalities or irregularities committed by the petitioner. It is also not that the petitioner has deliberately avoided to comply with the specific orders of the State authorities or the respondent No. 2. From the perusal of the notification, on which heavy reliance is placed by the respondents, it is clear that unless the petitioner is handed over any file, marked certain case for his special appearance as Special Public Prosecutor, he was not competent to appear in any of such cases on his own. It is the fact stated that the Economic Offences Bureau has already 'engaged a Public Prosecutor, who used to appear before the Court where the trial of Economic Offences are going on. This being so, it cannot be said that there were complaints made against the petitioner and after enquiry the officials have reached to the conclusion that the petitioner has not discharged his duties properly and, therefore, his continuance at Jabalpur was not proper. Therefore, the reliance put by the respondents in the Division Bench decision of this Court cannot be accepted. On the other hand it is found that the order of transfer of the petitioner was in fact nothing but a substitution of the order of punishment. Had it been a case that after a show cause, after filing of the reply, instead of punishing the petitioner for a misconduct, he has been transferred, the different view would have been possible but here in the case in hand, neither there is a proof that the show-cause notice was served on the petitioner nor there is any such document available that the petitioner after receipt of the show-cause notice avoided to file any reply to the same. The report itself was drawn on 18.4.2011 whereas the show-cause notice was said to be issued on 15.4.2011. How could such a report be drawn before even allowing the time to the petitioner to file his explanation for explaining his conduct. The report itself was drawn on 18.4.2011 whereas the show-cause notice was said to be issued on 15.4.2011. How could such a report be drawn before even allowing the time to the petitioner to file his explanation for explaining his conduct. This itself is enough to demonstrate that the documents were so collected to show that the petitioner was such a bad officer that his continuance at Jabalpur was not desirable. Such a course cannot be given stamp of approval by this Court. 13. The respondents' Counsel have also placed reliance in an order passed by this Court in one of the Misc. Criminal cases, which were filed for grant of bail. It is stated that in a case of important nature where huge amount of Rs.50 crores was involved and the prosecution was being conducted, the petitioner did not appear in the Court where the prosecution was going on for opposing the applications for grant of bail made by the accused persons. It is said that in M.Cr.C. No. 2214/2011 this Court recorded certain reasons on 7.7.2011 and held that it was in fact the misconduct on the part of the petitioner on account of which he allowed somebody to appear in such an important case as Public Prosecutor and because of his non-appearance, the 1st Additional Sessions Judge, Jabalpur/Special Judge, Jabalpur was put to embarrassing condition as his explanation has been called by this Court. 14. On going through the complete order-sheet in the aforesaid case, it is seen that the conduct of the Judicial Officer was being tested and it was said that though the duty was assigned to the petitioner for acting as Special Public Prosecutor in such an important case, because of his non-appearance, the orders in such respect were passed. However, merely because such facts are recorded without verification of the real situation whether this particular case was ever handed over to the petitioner or he was appointed as Special Public Prosecutor in this particular case or not, it cannot be taken note of by this Court in these circumstances where the transfer of the petitioner on account of such reason is being considered. Further more the order was passed on 7.7.2011 in the aforesaid case whereas the transfer of the petitioner was already ordered much before on 27.4.2011. Further more the order was passed on 7.7.2011 in the aforesaid case whereas the transfer of the petitioner was already ordered much before on 27.4.2011. Thus, it cannot be said that the facts as have been recorded in the aforesaid case by this Court, will be a conclusive proof of misconduct of the petitioner and for that the petitioner would not be entitled to any relief in this writ petition. 15. Normally instead of interfering in the order of transfer, this Court would have directed consideration of representation of petitioner made before respondent No. 1 and same protection would have given to the petitioner till consideration of his representation in view of interim order dated 16.5.2011, but in the case in hand it is clear from the record of transfer file that the respondent No. 1 and the Secretary of the department acted on the information supplied by respondent No. 2 mechanically without application of mind and without verification of reports or collecting material information. Thus it will be a futile exercise to direct consideration of such a representation of the petitioner by the respondent No. 1. 16. From the aforesaid, this Court is of the firm opinion that the order impugned has been issued in colourable exercise of power by the respondent No. 1 only on the basis of misleading information supplied and, therefore, the same cannot be given a stamp of approval. Consequently, the writ petition is allowed. The order dated 27.4.2011 contained in Annexure P-3 so far it relates to the petitioner and respondent No. 3 is quashed. The, petitioner be permitted to continue at Jabalpur on his post of Deputy Director, Prosecution, and the respondent No. 3 be posted back to Satna. However, it will be free to the respondents No. 1 and 2 to consider posting of respondent No. 3 at an appropriate place. 17. With the aforesaid, the writ petition is allowed, but no order as to cost.