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2013 DIGILAW 1000 (JHR)

Mithilesh Kumar Singh v. State of Jharkhand

2013-09-02

APARESH KUMAR SINGH

body2013
Order Heard counsel for the parties. 2. The writ petitioner has approached this Court being aggrieved by the order of his transfer contained in Memo No. 2119 dated 29th June, 2013 (Annexure-9) issued by the Respondent No. 3 - Civil Surgeon-cum-Chief Medical Officer, Ranchi, whereby he has been transferred from the Infectious Disease Hospital, Ranchi to Primary Health Centre, Sonahatu. 3. According to the petitioner, he was working as a clerk in the Infectious Disease Hospital in the district of Ranchi. He has alleged that the respondent no. 4 who was previously posted as Deputy Superintendent at Infectious Disease Hospital, Ranchi on 9th March, 2007, had committed several illegalities and irregularities, for which the petitioner had made a complaint way back on 8th March, 2008 on which, she was show-caused on 13th March, 2008 (Annexures-1 & 1/1). However, no action was taken against the said respondent no. 4 and she was subsequently promoted as Superintendent of the said Hospital. 4. Learned counsel for the petitioner also submits that there was complaint made by one Class-IV employee Basanti Devi against the respondent no. 4 for having forcefully made her to do household work unauthorizedly, upon which salary of the said lady was stopped and the blame was shifted upon the petitioner. According to the petitioner, when salary of the said Basanti Devi was stopped by the respondent no. 4 and the petitioner was made responsible for that, then the petitioner was asked to give his explanation by the Respondent No. 3 - Civil Surgeon-cum-Chief Medical Officer, Ranchi. In the meantime, an FIR was also registered by the respondent no. 4 against the petitioner under the provisions of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Indian Penal Code being Ranchi Sadar (SC/ST) Case No. 17 of 2013. In the background of the aforesaid history, the petitioner has been transferred in the punitive manner by the impugned letter dated 29th June, 2013 issued by the Respondent No. 3-Civil Surgeon-cum-Chief Medical Officer, Ranchi. He further submits that mere perusal of the impugned order would show that the same has been done on certain allegations of negligence in duty and non-performance of work in time by the petitioner. Allegations have also been made that there is subsisting dispute between the petitioner and the Superintendent of the said Hospital. He further submits that mere perusal of the impugned order would show that the same has been done on certain allegations of negligence in duty and non-performance of work in time by the petitioner. Allegations have also been made that there is subsisting dispute between the petitioner and the Superintendent of the said Hospital. In such circumstances, learned counsel for the petitioner submits that the impugned order of transfer cannot said to be made purely on administrative grounds. On the face of it, coupled with the allegations made the order of transfer is a punitive transfer. In support of his argument, he relies upon a judgment rendered by the Hon'ble Supreme Court in the case of Somesh Tiwari vs. Union of India and Others, (2009)2 Supreme Court Cases 592, para-16 thereof. 5. Learned counsel for the State, on the other hand, supports the impugned order. According to him, the petitioner did not follow the order of his superior authority and forcefully marked his attendance even after his transfer from the Infectious Disease Hospital, Ranchi, for which the Respondent No. 3-Civil Surgeon-cum-Chief Medical Officer, Ranchi has also asked explanation from the petitioner on 23rd July, 2013 (Annexure-C). Learned counsel for the respondents relies upon Annexure-D dated 29th May, 2013 to submit that the petitioner was asked to submit his explanation as to why he should not be transferred for having disobeyed the orders of the Superintendent of the Infectious Disease Hospital. He submits that the order impugned itself shows that the necessary facts preceding to the issuance of order of transfer on administrative grounds, have only been stated. However, reference of the background therein cannot be said to make the order of transfer punitive in nature. He further supports the impugned order by stating that since the work at the concerned Hospital was suffering because of the simmering dispute between the petitioner and the Superintendent of the hospital, in such circumstances and on the administrative grounds, he has been transferred. He further submits that the conduct of the petitioner thereafter is not proper as he has been forcefully marking his attendance thereafter. Therefore, no interference is required to be made in the impugned order of transfer which is made in the exigency of work and in the administrative interest. He further submits that the conduct of the petitioner thereafter is not proper as he has been forcefully marking his attendance thereafter. Therefore, no interference is required to be made in the impugned order of transfer which is made in the exigency of work and in the administrative interest. Counsel for the respondents also relies upon the judgment rendered by the Hon'ble Supreme Court in the case of Registrar General, High Court of Judicature of Madras vs. R. Perachi and Others [(2011)12 Supreme Court Cases 137] [: 2011(4) JLJR (SC)321] in order to support his contention that the impugned order does not require to be interfered with as there is no want of jurisdiction in respondent no. 3 in issuing the impugned order and neither it is punitive in nature. 6. I have heard counsel for the parties and gone through the relevant materials on record including the impugned order. The facts which are brought on record and have been indicated in earlier paragraphs of this order, do indicate that there is background history behind issuance of the impugned order of transfer. It appears that not only the petitioner has been issued show-cause notice for disobeying the orders of the Superintendent of the Hospital in the matter of payment of certain salary to one Class-IV employee Basanti Devi, but it had also been alleged in the impugned order that he is not discharging his duties in proper, diligent and timely manner. It is also stated in the impugned order that there is dispute existing between the petitioner and the Superintendent of the said Hospital, for which FIR has also been registered against the petitioner under the provisions of Indian Penal Code and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The order of transfer has been issued after a show-cause dated 29th May, 2013 issued against the petitioner (Annexure-D to the counter affidavit) while asking him to reply as to why he should not be transferred for not having made payment to the said Class-IV employee Basanti Devi. 7. These facts therefore denote that the order of transfer has been passed on certain allegations in a punitive manner against the petitioner. 7. These facts therefore denote that the order of transfer has been passed on certain allegations in a punitive manner against the petitioner. This Court fails to understand as to why if the superior authority found the conduct of the petitioner in discharge of his duty as being not up to the mark, they have not considered it proper to proceed in accordance with law against the petitioner, rather than transfer him by way of the impugned order which apparently is, as a consequence of the conduct of the petitioner in performing his duties at the relevant place. Be that as it may, on the face of it therefore, the order of transfer in the background discussed hereinabove, appears to be punitive in nature. In such circumstances, keeping in view the ratio laid down by the Hon'ble Supreme Court in the judgment rendered in the case of Somesh Tiwari (supra), the impugned order of transfer cannot be sustained in law and is accordingly quashed. 8. The judgment relied upon by the respondents, in the facts and circumstances of the case, do not come to their help as from what has been observed hereinabove, in the instant case, the order appears to be on the basis of certain allegations against the said petitioner. Therefore, it can be said to be punitive in nature. 9. However, it is also observed that in such circumstances, it would be open to the respondent authorities to act in accordance with law, if there are sufficient materials to proceed against the employee concerned. Writ petition is allowed in the aforesaid terms I.A. No. 5703/2013 also stands disposed of.