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Madhya Pradesh High Court · body

2012 DIGILAW 948 (MP)

Dinesh Kumar Saxena v. State of M. P.

2012-10-01

SUJOY PAUL

body2012
ORDER 1. These matters were analogously heard on the request of learned counsel for the petitioner. The said request was not opposed by the learned Deputy Government Advocate. Writ Petition No.5400/2012 : 2. In this petition, the petitioner has challenged the transfer order, whereby he is transferred from Government Primary School, Mama-ka-Bazar to Government Primary School, Barai on administrative grounds. 3. Shri Kushwah, learned counsel for the petitioner, attacked this order and submits that the order is punitive in nature. By placing reliance on Annexure R-1/1 dated 22.6.2012, it is stated that the transfer order is based on this enquiry report and, therefore, it is punitive in nature. Learned counsel submits that the document dated 8.6.2012 along with list of documents shows that a request was made to transfer the petitioner by certain councilors. Learned counsel for the petitioner submits that few of those councilors were not concerned with the ward, wherein petitioner was posted at Mama-ka-Bazar and, therefore, they have no reason to raise their eyebrows. In support of said contention, he relied on the judgment of the Supreme Court in Civil Appeal No.3516/2007 (Somesh Tiwari v. Union of India and others). He also relied on the following judgments : (i) 1995(70) FLR 956 (Pawan Kumar Srivastava v. U.P. State Electricity Board and others) (Allahabad High Court). (ii) 1998(79) FLR 176 (Bhanu Pratap Mishra v. Secretary, Minor Irrigation and others) (Allahabad High Court). (iii) (2002) IILLJ 348 (Sailendra Kumar Sarangi v. Syndicate Bank and others) (Calcutta High Court). (iv) Writ Petition No.9599/2009 (R. Mohanasundaram v. The Principal Chief Conservator of Forests and others) (Madras High Court). (v) Writ Petition No.10770/2009 (A. Kaliyamoorthy v. The District Collector/Inspector of Panchayats and others) (Madras High Court). (vi) Writ Petition (C) No.9266/2010 (Mathura Mohan Nayak v. State of Orissa and others) (Orissa High Court). 4. Per contra, Shri Newaskar supported the order and submits that preliminary enquiry can also be a reason for transferring an employee. No stigma is attached to the petitioner nor the said order is punitive in nature. He submits that petitioner is transferred to a distance of only 17 kms. and he be directed to prefer a representation before the department, which will be dispassionately considered. Shri Newaskar submits that if till such time interim order is continued, he has no objection. 5. He submits that petitioner is transferred to a distance of only 17 kms. and he be directed to prefer a representation before the department, which will be dispassionately considered. Shri Newaskar submits that if till such time interim order is continued, he has no objection. 5. Considering the aforesaid, I deem it proper to dispose of this petition without expressing any opinion on the merits of the case with the following directions : (i) Petitioner shall prefer a representation before the Commissioner, Public Instructions, Bhopal within seven days from today, failing which interim protection will not be available to the petitioner. In the said representation, it will be open for the petitioner to take all possible grounds and annex the relevant documents. (ii) The Commissioner, Public Instructions, Bhopal shall deal with the representation dispassionately and decide it by a reasoned and speaking order. (iii) Till decision of the representation of the petitioner, there shall be stay on Annexure P-1 dated 13.7.2012. (iv) Needless to mention that the Commissioner will be obliged to pass a reasoned and speaking order on the representation of the petitioner. 6. With the aforesaid directions, petition stands disposed of. Writ Petition No.7139/2012(S) : 7. In this petition, the petitioner has challenged the report Annexure P-1. A bare perusal of this report shows that it is a preliminary report prepared by the Principal and handed over to District Education Officer, Gwalior. This is not pursuant to any disciplinary proceedings. In other words, the said report is not arising out of any disciplinary proceedings under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. It is in the nature of preliminary enquiry. 8. This is settled in law that employer is equipped with the power to conduct a preliminary enquiry to satisfy itself whether there is a prima facie case to take further administrative/disciplinary action. There is no provision/rule which provides that even in preliminary enquiry employee should be heard. No disciplinary action is taken on the basis of Annexure P-1. The Annexure P-1 is an internal correspondence between two authorities of the Government. The said preliminary report cannot be interfered at this stage. There is no provision/rule which provides that even in preliminary enquiry employee should be heard. No disciplinary action is taken on the basis of Annexure P-1. The Annexure P-1 is an internal correspondence between two authorities of the Government. The said preliminary report cannot be interfered at this stage. This is also settled in law that when after preliminary enquiry, a charge-sheet is issued and a full scale enquiry is conducted, enquiry report is prepared and employee is punished, even in those cases, preliminary report can be assailed or its non supply or non following the principles of nature justice can be alleged only when such an preliminary report is relied upon to hold an employee as guilty in any punitive action. In absence there of, preliminary enquiry cannot be called in question. 9. On the basis of aforesaid analysis, I find no reason to interfere at this stage against Annexure P-1. However, liberty is reserved to the petitioner to assail this report at proper stage. With the aforesaid observations, petition stands disposed of.