Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 442 (MP)

Raj Kumar Roniya v. Union of India

2015-04-17

SHEEL NAGU

body2015
JUDGMENT : Sheel Nagu, J. 1. The present writ petition under Article 226 of the Constitution of India assails the order of transfer dated 14.06.2014 Annexure P-1 transferring the petitioner SI/Steno from Office DIGP Group Centre, CRPF, Gwalior to the office of Commandant, 220 Battalion, CRPF, Rohtak (Haryana). The petitioner has also been relieved with effect from 14.06.2014. 2. Learned counsel for rival parties are heard. 3.1 Learned counsel for the petitioner inviting attention of this Court to the material placed on record contends that the petitioner is a mentally challenged person, which fact is evident from the treatment that he is receiving from Gwalior Mental Hospital. It is further contended that the posting of the petitioner at Gwalior was on his request so that he may ensure proper treatment of his ailment. 3.2 It is further contended that after having been initially appointed as ASI/Steno in 2003 and having been posted at Manipur, the petitioner was promoted in 2011 as SI/Steno. It is contended that the petitioner in 2012 was diagnosed with mental disease and was categorise as Psychiatric Grade-3 (S-3) as per the norms for medical categorization. It is further contended that the above said extent of mental ailment reveals disability to the extent between 40% to 60%. It is also contended that on request the petitioner was transferred from Bilaspur to Gwalior with effect from 02.07.2012, since when the petitioner is continuing at Gwalior. It is however contended that the mental ailment of the petitioner is continuing and there is no improvement despite treatment. Annexure P-4 and Annexure P-5 have been filed to demonstrate that the petitioner was allotted light duties without firearm on diagnosis of depression by the CRPF Base/Group Hospital at Hyderabad which categorised the petitioner as S-3 (T-12) (duties without firearm). Attention of this Court is drawn to the transfer policy Annexure P-7, which provides normal tenure of four years in Clause 4A. 3.3 It is also contended that the petitioner was facing discrimination at the hands of some superior officers, which led to the wife of the petitioner making representation Annexure P-8 to the respondent No. 2 for transferring the petitioner from Group Centre Gwalior to Bhopal. It is contended that since no action was taken on the above said representation and the discrimination meted out to the petitioner continued unabated a written complaint Annexure P-9 was made to S.P., Gwalior. It is contended that since no action was taken on the above said representation and the discrimination meted out to the petitioner continued unabated a written complaint Annexure P-9 was made to S.P., Gwalior. The petitioner further contends that this act of the petitioner enraged the respondents and campaign of victimization was launched which culminated into the issuance of the impugned order transferring him to a far fetched place i.e. Rohtak (Haryana). 3.4 Last but not the least the petitioner contends that his transfer is punitive in nature besides being violative of the statutory provisions contained in Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995 (for brevity "Act of 1995"). The petitioner, who holds substantive post of SI/Steno, is being transferred to a post of ASI/Steno carrying inferior rank. 4.1 Per contra, the learned counsel for the respondents Shri Vivek Khedkar contends that petitioner is capable of discharging normal duties without use of firearm as advised by the Doctors. It is further contended by the respondents that vide request dated 27.04.2014, the petitioner himself made a request for his transfer. It is contended that the petitioner takes no interest in the official duties and has been performing various acts of indiscipline which are prejudicial to the discipline of the force. 4.2 The respondents have categorically denied the allegation of discrimination being meted out to the petitioner. It is lastly contended that the transfer to Rohtak on the post of ASI/Steno, where the petitioner would be subjected to less strenuous duties in comparison to the duties admissible to the post of SI/Steno and thus the impugned transfer, in effect, is beneficial to the over all health of the petitioner. Moreover, the respondents contend that Rohtak is in close vicinity to Dehli which has much better medical facilities than Gwalior. FINDINGS: 5.1 Considering the submissions of the counsel for rival parties, it is seen from record that the contention of the respondents that the petitioner is being transferred to a lower post, is not disputed by the respondents and in fact is admitted by them in para 6 E of their return. The petitioner definitely suffers mental ailment. Whether the said ailment can be categorised as a disability upto 40% or more as defined in section 2(t) of the Act of 1995, or not, is not evident from the record. The petitioner definitely suffers mental ailment. Whether the said ailment can be categorised as a disability upto 40% or more as defined in section 2(t) of the Act of 1995, or not, is not evident from the record. However, the fact of the petitioner suffering from mental ailment is not disputed by the rival parties. Thus, it was incumbent upon the employer/respondents to have first ascertained as to whether the petitioner suffers from disability as defined in the Act of 1995 or not before transferring the petitioner to the post carrying lower rank. 5.2 The contention of the respondents that the petitioner was transferred on his own request is belied by the representation dated 27.04.2014 vide Annexure R-8 A filed along with the return by the respondents. This representation requests for transferring from one office to the other within Gwalior. Thus, the said contention of the respondents is untenable. 5.3 The other contention of the respondents that the petitioner is indulging in indiscipline and avoids performance of his duty can not by itself lead to transfer. Instances of indiscipline or insubordination or disinterest in performance of duties may invite disciplinary action or appropriate corrective administrative measures. If such causes are made the background of a transfer, then the said transfer in all likelihood assumes punitive colour. 5.4 In the given facts and circumstances where the petitioner was admittedly suffering from the stress related problems i.e. psychological and psychiatric, then he ought to have been treated in terms of the guidelines provided in Annexure P-6, which inter-alia provide that screening of such individuals ought to be done by a mental health professional and referral should not be punitive but should be aimed at helping the person in coping and recovery. It is undisputed that the petitioner had merely completed less than two years of tenure at Gwalior when the impugned transfer order transferring the petitioner to Rohtak was made. Period of less than two years can hardly be treated as sufficient to enable the petitioner facing psychological problems to get over his ailment. It is undisputed that the petitioner had merely completed less than two years of tenure at Gwalior when the impugned transfer order transferring the petitioner to Rohtak was made. Period of less than two years can hardly be treated as sufficient to enable the petitioner facing psychological problems to get over his ailment. 5.5 In the conspectus of above discussion, it is evident that the employer before transferring the petitioner to Rohtak has not applied its mind to the mental and psychological ailment faced by the petitioner and the emergent need to continue at Gwalior for a reasonable period of time to enable him to get over the ailment to an extent of leading a normal life where he can discharge his duties as SI/Steno and perform his day to day functions in normal manner. 5.6 This Court is conscious of the legal limitations of interfering with an order of the transfer. The order of transfer is normally immune from judicial review except where the grounds of violation of statutory provision, malafide, transfer order having been issued by incompetent authority or adverse effect to service condition are made out. 5.7 In the instance case the respondents have not dealt with the petitioner in a manner which may vindicate their stand of being a model employer. Without ascertaining as to whether the petitioner is entitled to the protection under the Act of 1995 or not in the backdrop of the attending circumstances of the impugned order of transfer to a lower post of ASI/Steno has been issued. If the petitioner is entitled to the benefits under the said Act on the ground of suffering disability as defined in 1995 Act to the extent of 40% or more, then the entire decision of transferring the petitioner needs re-consideration. 5.8 The relevant provisions of 1995 Act germane to the present case are reproduced below for convenience and ready reference:- "Section 2(i) "Disability" means- 1. blindness; 2. low vision; 3. leprosy-cured; 4. hearing impairment; 5. locomotor disability; 6. mental retardation; 7. mental illness;" Section 2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;" Section 47. Non-discrimination in Government employments.- 1. blindness; 2. low vision; 3. leprosy-cured; 4. hearing impairment; 5. locomotor disability; 6. mental retardation; 7. mental illness;" Section 2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;" Section 47. Non-discrimination in Government employments.- 1. No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. 2. No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section." CONCLUSION: 6. From the above discussion, it is evident that the employer failed to apply it's mind while issuing the transfer order especially ascertaining whether the petitioner suffers from disability defined in Section 2(i)or not. If the petitioner is suffering from the said disability, then the protections under Chapter VI are available to the petitioner. 6.1 In view of the above, the petition deserves to be and is allowed in the following terms:- 1. The impugned orders dated 13.06.2014 and 14.06.2014 (Annexure P-1) so far as the transfer of the petitioner from the Gwalior to Rohtak is concerned, are quashed. 2. The respondents are directed to consider the case of the petitioner as regards the entitlement or otherwise to the protective provisions under the Act of 1995 and thereafter take a fresh decision as expeditiously as possible. 3. The interim order passed by this Court staying operation and effect of the impugned order transfer dated 14.06.2014 (Annexure P-1) shall remain in operation till fresh decision is taken by the respondents in light of the above said findings. 4. Petitioner is entitled to litigation cost of Rs. 5,000/- (five thousand) to be paid by respondent jointly within sixty (60) days of this order.