Sandeep Kumar Thakur S/o Late Dhananjay Thakur, R/o Mahesh Nagar, P. S. Pataliputra Colony, District-Patna v. State Of Bihar through the Chief Secretary, Bihar, Patna
2013-05-17
MIHIR KUMAR JHA
body2013
DigiLaw.ai
ORAL ORDER Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows: “For quashing the notification as contained in Memo No. 1919, dated 25.4.2013, issued by the order of His Excellency, the Governor, Bihar and under signature of the Additional Secretary to the Government cum Additional Registrar, Co-operative Society, Bihar, Patna whereby and whereunder the petitioner has been transferred from the post of Managing Director, Sitamarhi District Central Co-operative Bank Limited, Sitamarhi to Co-operative Training Centre, Pusa at Samastipur as Lecturer and further the private respondent no.7 has been transferred in place of the petitioner by way of working arrangement, the petitioner prays for issuance of consequential writ in the nature of mandamus commanding and directing the respondent authorities not to give effect to the aforesaid letter of transfer.” 3. Mr. Chittaranjan Sinha, learned Senior counsel appearing on behalf of the petitioner, in support of the aforementioned prayer has submitted that the impugned order of transfer has been passed by way of vengeance and is mala fide. He has explained that the petitioner was subjected to a departmental proceeding and also an order of punishment at the behest of one Narendra Kumar, who had filed a written complaint to the Cabinet Minister. According to him, the order of punishment passed on 7.3.2013 while the petitioner was holding the post of Managing Director in the Central Co-operative Bank, Sitamarhi, withholding his five increments with cumulative effect as also withholding his promotion for five years was bad both on fact and in law on several grounds but then in any event such order of punishment against the petitioner could not have led to his transfer from the post of Managing Director, Central Co-operative Bank, Sitamarhi to the post of Lecturer in Co-operative Training Centre at Pusa. In this regard he has also explained that the petitioner has been sought to be transferred in the aforementioned Co-operative Training Centre, Pusa as a Lecturer whereas the Principal of the said Co-operative Training Centre is junior to the petitioner. According to Mr. Sinha, this would cause serious embarrassment and humiliation to the petitioner. 4. Learned counsel for the respondents, on the other hand, has submitted that the order of transfer of the petitioner was passed in administrative exigencies and the same would not require any interference from this Court.
According to Mr. Sinha, this would cause serious embarrassment and humiliation to the petitioner. 4. Learned counsel for the respondents, on the other hand, has submitted that the order of transfer of the petitioner was passed in administrative exigencies and the same would not require any interference from this Court. He has further submitted that the plea of mala fide which has been orally raised by the learned counsel for the petitioner does not find support from the pleadings on record, especially when the persons against whom malice is being alleged have not even been impleaded as a party to the writ application. 5. In the considered opinion of this Court the pleadings relating to allegations of mala fide is wholly vague and insufficient, inasmuch as all that has been stated in relation to the order of transfer being mala fide can be found in paragraph no.15 of the writ application which reads as follows: “15. That the Principal Secretary and the Minister of the department never wanted the petitioner to rest in peace for obvious reasons and as such even after punishment the petitioner was humiliated by way of transfer. The Minister first made an order on bufsheet, the petitioner be transferred and consequently the file moved forward and in view of such order the impugned order of transfer as contained in Memo No. 1919, dated 25.4.2013 was issued by the order of His Excellency, the Governor and under signature of the Additional Secretary to the Government cum Additional Registrar, Co-operative Society, Bihar, Patna whereby and whereunder the petitioner has been transferred from the post of Managing Director, Sitamarhi, District Central Co-operative Bank Limited, Sitamarhi to Co-operative Training Centre, Pusa at Samastipur as Lecturer.” 6. As would be apparent a most vague allegation has been made by the petitioner without even impleading Principal Secretary or Minister by name. The order of punishment against the petitioner was passed on 7.3.2013 and the transfer order against the petitioner was passed on 25.4.2013 but there is no material on record to show that as to how the Minister had become instrumental in transferring the petitioner.
The order of punishment against the petitioner was passed on 7.3.2013 and the transfer order against the petitioner was passed on 25.4.2013 but there is no material on record to show that as to how the Minister had become instrumental in transferring the petitioner. Reference in this connection may usefully be made to the celebrated judgment of the Apex Court in the case of Pratap Singh v. State of Punjab, reported in AIR 1964 SC 72 , wherein it has been held that if sufficient averments have not been made in the petition the Court would be justified in refusing to carry out investigation into those vague and casual allegations suggesting that a particular action was taken with an ulterior motive, inasmuch as they cannot be accepted without proper pleadings and adequate proof. 7. While it is true that it may not be always possible to establish malice in fact in a straight cut manner and in an appropriate case, it is possible to draw reasonable inference or mala fide action from the pleadings and antecedent facts and circumstances but for drawing even such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions as has been repeatedly held by the Apex Court including in the cases of Rajendra Roy v. Union of India, reported in AIR 1993 SC 1236 , and State of U.P. v. Dr. V.N.Prasad, reported in 1995 Supp.(2) SCC 151, wherein law has been laid down that the transfer order challenged on the ground of mala fide must be backed by strong and convincing evidence. 8. This Court, therefore, is not required to speculate in absence of specific pleadings but then it could well be that an officer in the rank of Managing Director when he is heading the Bank and has been found to be wanting in discharging his function as a result whereof he has not been only inflicted punishing of withholding of five increments but also withholding of promotion for five years was not found to be fit to be allowed to continue on the post of Managing Director of the Bank. Such exercise of power by the Cabinet Minister in absence of any specific allegation of mala fide cannot be assumed to be bad much less vitiated. 9. The next submission of Mr.
Such exercise of power by the Cabinet Minister in absence of any specific allegation of mala fide cannot be assumed to be bad much less vitiated. 9. The next submission of Mr. Sinha that such order of transfer of the petitioner would cause humiliation to him because by the impugned order of transfer he has been sought to be posted as a Lecturer in the Co-operative Training Centre, Pusa where the Principal at present working is junior to him, is also not supported by authentic pleading and the documents. Paragraph No.19 of the writ petition in this regard reads as follows: “19. That it is relevant to state here that the respondent authorities of the head quarter are adamant to humiliate the petitioner and in continuation of his nefarious design they transferred the petitioner to a place where he will have to work under the Principal of the training centre who is much junior to the petitioner. The Principal of the Co-operative Training Centre is a Class II Officer appointed in December, 1995 whereas the petitioner was appointed in 1993 as a Class II Officer, therefore, the petitioner is forced to do his job under most junior fellow which is not at all permissible in the eye of law. This also affects the status of the petitioner.” 10. From reading of the aforementioned statement of the petitioner it does not become clear that as to who is being described as junior, inasmuch as even the name of the Principal has not been disclosed and there is no gradation list to show that the person concerned holding the post of Principal is junior to the petitioner. It is also not clear as to whether the Principal was appointed in the year 1995 or persons concerned holding the post of Principal entered in service in the year 1995. 11. By-now it is also well settled that the pleading in the writ petition must be self contained and self supported. Reference in this connection may be made to the judgment of the Apex Court in the case of Bharat Singh & ors. v. State of Haryana & ors., reported in AIR 1988 SC 2181 , wherein it has been held as follows: “13.
Reference in this connection may be made to the judgment of the Apex Court in the case of Bharat Singh & ors. v. State of Haryana & ors., reported in AIR 1988 SC 2181 , wherein it has been held as follows: “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. ... ... ...” 12. Thus, in absence of specific pleadings even on the count of the petitioner being subjected to humiliation on account of his being posted under his junior by way of directing him to work under the Principal, who is alleged junior to him, this Court cannot quash the order of transfer. 13.
... ... ...” 12. Thus, in absence of specific pleadings even on the count of the petitioner being subjected to humiliation on account of his being posted under his junior by way of directing him to work under the Principal, who is alleged junior to him, this Court cannot quash the order of transfer. 13. In any event once this Court has held that the order of transfer is neither in violation of any statutory Rule nor is vitiated by mala fide, the proper recourse left to the petitioner would be filing a representation before the competent authority highlighting this aspect that by the impugned order of transfer he has been forced to work under his junior as was held by the Apex Court in the case of Shanti Kumari v. Regional Deputy Director of Health Service, Patna Division, reported in (1981) 2 SCC 72 . 14. In this regard it has to be noted that the petitioner claims that he is a Class II gazetted Officer and in paragraph no.17 he has also asserted that such order of transfer of the petitioner was made without following normal procedure of transfer of placing the matter before the Establishment Committee. The Government policy of transfer contained in its Circular No. CS3/M3-1016/80-3918 dated 25.10.1980 read with the subsequent circular in letter no. C.S3/M-3-1016/80-3445 dated 7.9.1981 as well as in the Government decision in letter no. CS1/M1-103/96-2679 dated 12.8.1996 lays down that in case of out of turn transfer of a Class II Officer the prior approval of the Chief Minister has to be obtained. 15. Therefore, this Court would only give liberty to the petitioner to represent his case to the Principal Secretary of the Co-operative Department, who in turn upon examination of such claim of the petitioner will place the matter with his comments before the Chief Minister through the Cabinet Minister and the Chief Secretary for taking a final decision at an early date, preferably within a period of one month from the date of receipt/ production of a copy of this order and if it is found that the Principal working in the Co-operative Training Centre, Pusa is junior in seniority, rank and status to the petitioner, an appropriate fresh order of transfer of the petitioner would be passed for his posting on any Class II post commensurate to the rank and status of the petitioner. 16.
16. Let it, however, be made clear that this Court has not gone into the merits of such claim of the petitioner for want of adequate pleadings and proof in support of the claim of the petitioner that by the impugned order of transfer he has been subjected to humiliation by way of being forced to work as Lecturer under his junior working as Principal in Co-operative Training Institute, Pura. 17. Since the petitioner has already handed over his charge of the post of District Co-operative Officer, Sitamarhi as has been admitted by him in paragraph no.22 of the writ application and the respondent no.6 has claimed to have joined the post of Managing Director of Sitamarhi District Central Co-operative Bank in view of the stipulations made in the impugned order of transfer dated 25.4.2013 this Court would also hold that the joining of the petitioner as Lecturer in Co-operative Institute, Pusa would be without prejudice to his rights and contentions to be raised by him in his representation containing specific facts and materials establishing his apprehension of working as a Lecturer under his junior posted as a Principal in Co-operative Training Institute, Pusa. 18. Pending final disposal of the representation by the Chief Minister in the manner indicated above the petitioner will not be under any sort of disciplinary and/or administrative control of the Principal of Co-operative Training Institute, Pusa. 19. Subject to the aforementioned liberty, observations and directions, this writ application is dismissed.