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2022 DIGILAW 222 (JHR)

State of Jharkhand v. Kumar Indu Shekhar

2022-02-23

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : 1. With the consent of the parties, the matter has been taken up through video conferencing. They have no complaint whatsoever regarding audio and/or video quality. 2. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 21.09.2020 passed by the learned Single Judge of this Court in W.P.(S) No. 5649 of 2019, whereby and whereunder, the reasoned order dated 11.10.2019 and the order of transfer dated 26.07.2019, by which the writ petitioner has been transferred from Referral Hospital, Raj Dhanwar, Giridih to Primary Health Centre, Gidhaur, Chatra, has been quashed and set aside. 3. The brief facts of the lis as per the pleading which are required to be enumerated, read as hereunder: As per the pleading, the case of the writ petitioner is that he was appointed as Medical Officer on 01.04.2012 by the State Government after being found to be successful in the combined competitive examination conducted by the Jharkhand Public Service Commission. The writ petitioner was posted as Medical Officer at Referral Hospital, Raj Dhanwar, where he assumed charge on 01.04.2012 and continued till 17.07.2016. The writ petitioner was transferred to RINPAS, Ranchi vide notification dated 29.06.2016 and further, was again transferred to Referral Hospital, Raj Dhanwar vide notification dated 21.06.2017 on request. However, vide order dated 26.07.2019, the writ petitioner was transferred to Primary Health Centre, Giridih, Chatra. The writ petitioner, being aggrieved with the same, preferred a writ petition being W.P.(S) No.3955 of 2019 which was disposed of vide order dated 17.08.2019. However, the co-ordinate learned Single Judge has not interfered with the order of transfer considering it to be a chain transfer but accorded liberty to file representation before the competent authority who in turn was directed to take decision within a period of two weeks from the date of receipt of a copy of the order. The writ petitioner, in terms of the aforesaid liberty, submitted a representation before the respondent concerned. The aforesaid representation was disposed of by passing an order on 11.10.2019 annexed as Annexure-5. The writ petitioner, in terms of the aforesaid liberty, submitted a representation before the respondent concerned. The aforesaid representation was disposed of by passing an order on 11.10.2019 annexed as Annexure-5. The writ petitioner questioned the aforesaid order by filing writ petition being W.P.(S) No.5649 of 2019 on the ground that the order of transfer, which has been passed transferring the writ petitioner from Referral Hospital, Raj Dhanwar, Giridih to the Primary Health Centre, Gidhaur, Chatra, is punitive in nature as would appear from the reasoned order dated 11.10.2019. The writ petitioner had taken the ground before the learned Single Judge that the order if is simplicitor or routine, the same is least to be interfered with by the High Court sitting under Article 226 of the Constitution of India but if the order of transfer is punitive in nature and has been issued without providing an opportunity of hearing, the same requires interference by the Writ Court. The respondent-appellant had appeared before the writ Court and placed the case by making submission that the order of transfer being the routine transfer, as such, the same does not require any interference. So far as the contention of the writ petitioner about showing the order of transfer punitive in nature, submission has been made before the writ court that the same cannot be said to be punitive in nature rather the same has been passed disclosing the reason on the basis of the order passed by this Court in W.P.(S) No.3955 of 2019. But, the fact remains that the order of transfer is a chain transfer as would appear from the original order of transfer dated 26.07.2019. The learned Single Judge, after appreciating the submission advanced on behalf of the parties and considering the reasoned order dated 11.10.2019, wherein the transfer order appears to be administrative, has interfered and quashed the same, which is the subject matter of the present intra-court appeal. 4. Mrs. Darshana Poddar Mishra, learned AAG-I has submitted that the learned Single Judge has failed to appreciate the original order of transfer dated 26.07.2019 which is routine transfer and therefore, no interference was required. 4. Mrs. Darshana Poddar Mishra, learned AAG-I has submitted that the learned Single Judge has failed to appreciate the original order of transfer dated 26.07.2019 which is routine transfer and therefore, no interference was required. So far as the reason stipulated in the reasoned order passed in terms of the order dated 17.08.2019 in W.P.(S) No. 3955 of 2019, although some adverse remarks had been made upon the writ petitioner but merely because of such remarks, the order of transfer cannot be treated to be punitive/stigmatic, reason being that the original order of transfer is required to be seen and not the subsequent decision which was taken by the State authority. According to the learned counsel, the learned Single Judge has not appreciated these aspects of the matter while interfering with the reasoned order dated 11.10.2019, therefore, the order passed by the learned Single Judge is not sustainable in the eye of law and the same may be quashed and set aside. Learned counsel has relied upon the judgments rendered by the Hon’ble Apex Court in Union of India & Ors. vs. Janardhan Debanath & Anr., (2004) 4 SCC 245 and Registrar General, High Court of Judicature of Madras vs. R. Perachi & Ors., (2011) 12 SCC 137 . 5. Per contra, Mr. Shadab Bin Haque, learned counsel for the writ petitioner-respondent has submitted that it is incorrect to say that the order of transfer passed by the State authority is not punitive in nature. It has been submitted that even accepting the initial order of transfer is not shown to be punitive so far as it relates to the writ petitioner but when the reasoned order has been passed by the competent authority, the order of transfer is treated to be passed with stigma and the same is punitive in nature. Learned counsel submits that there is no dispute that the order of transfer if simplicitor and has been issued in routine manner on the basis of the administrative exigency, the same is least to be interfered with by the High Court sitting under Article 226 of the Constitution of India. But, the order of transfer, if appears to the writ court to be stigmatic and punitive then certainly, the writ Court is to exercise the power by showing interference with the said order of transfer. But, the order of transfer, if appears to the writ court to be stigmatic and punitive then certainly, the writ Court is to exercise the power by showing interference with the said order of transfer. The learned Single Judge, after taking into consideration the very nature of the reasoned order dated 11.10.2019, which, according to the learned Single Judge was punitive/stigmatic in nature, the same has been interfered with. Thus, it cannot be said that any error has been committed, therefore, the order passed by the learned Single Judge may not be interfered with. Learned counsel, in support of his contention, has relied upon the judgment rendered by Hon'ble Apex Court in Somesh Tiwari vs. Union of India & Ors., (2009) 2 SCC 592 and the judgment rendered by the Division Bench of the Patna High Court in Sheikh Kalam vs. The Union of India & Ors. [Civil Writ Jurisdiction Case No. 21860 of 2013]. 6. We have heard the learned counsel for the parties, perused the documents available on record and the finding recorded by the learned Single Judge. This Court, before entering into the legality and propriety of the impugned order, deem it fit and proper to refer certain undisputed facts of this case. The writ petitioner, while working as Medical Officer at Referral Hospital, Raj Dhanwar, was transferred vide notification dated 26.07.2019. The writ petitioner, being aggrieved, approached to this Court by filing writ petition being W.P.(S) No.3955 of 2019 which was disposed of vide order dated 17.08.2019. The co-ordinate learned Single Judge of this Court declined to interfere with the order of transfer considering it not to be punitive/stigmatic but accorded liberty to the writ petitioner to file representation before the competent authority for recall of the order of transfer. For ready reference, relevant part of the order dated 17.08.2019 is being referred hereinbelow: “ ……. This Court sitting under Article 226 of the Constitution cannot interfere in the matter of transfer unless it is punitive or mala fide. No Govt. servant has a right to be posted at a particular place. Since it is a chain transfer, no interference is warranted and as such this writ petition stands disposed of. This Court sitting under Article 226 of the Constitution cannot interfere in the matter of transfer unless it is punitive or mala fide. No Govt. servant has a right to be posted at a particular place. Since it is a chain transfer, no interference is warranted and as such this writ petition stands disposed of. However, liberty is given to the petitioner to represent before the respondent-authorities showing the Rule on which he is relying and in turn respondent shall take a decision within a period of two weeks from the date of receipt of a copy of this order.” In terms of the aforesaid order, the writ petitioner submitted the representation. The said representation was rejected by passing a reasoned order dated 11.10.2019. The writ petitioner, being aggrieved with the aforesaid order, had again approached to this Court invoking the jurisdiction conferred under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No.5649 of 2019. The said writ petition was allowed by quashing the reasoned order dated 11.10.2019 as also the order of transfer dated 26.07.2019. The appellant-State, being aggrieved with the order passed by the learned Single Judge, is before this Court by preferring the instant intra-court appeal. 7. Learned counsel for the appellant-State has taken the ground that the order of transfer ought not to have been interfered with, reason being that the original order of transfer dated 26.07.2019 had been issued due to administrative exigency and was a routine transfer. So far as the reasoned order is concerned, submission has been made that merely because some adverse remarks have been reflected, it cannot be considered to be an order punitive in nature for the reason that the original order of transfer is required to be looked into along with the reasoned order but the learned Single Judge has failed to consider this aspect of the matter. 8. While, on the other hand, submission has been made by the learned counsel for the writ petitioner, referring to the reasoned order that adverse comment have been made upon the writ petitioner. Therefore, according to the learned counsel, the reasoned order itself reveals that the order of transfer is for imposing punishment and as such the same is stigmatic and punitive. 9. This Court, on appreciation of the aforesaid rival submissions, is required to answer as to whether the reasoned order dated 11.10.2019 is punitive/stigmatic? Therefore, according to the learned counsel, the reasoned order itself reveals that the order of transfer is for imposing punishment and as such the same is stigmatic and punitive. 9. This Court, on appreciation of the aforesaid rival submissions, is required to answer as to whether the reasoned order dated 11.10.2019 is punitive/stigmatic? 10. This Court, in order to consider this aspect of the matter, has considered the reasoned order appended as Annexure-5 to the writ petition. It is evident from the said order, more particularly paragraph-4 thereof, wherein reference of paragraph-3 of the report has been made which contains adverse remarks against the writ petitioner, basis upon which the writ petitioner had been transferred so that there may not be any adverse effect in the working of the hospital. Thus, it is evident that the transfer of the writ petitioner was made on the basis of the adverse remarks as has been pointed out by the committee in its report. The aforesaid report has been annexed as Annexure-A to the counter affidavit dated 27.01.2020 filed on behalf of the respondent nos.2 to 4. It is evident from the said report dated 08.07.2019 submitted by the Civil Surgeon-cum-Chief Medical Officer, Giridih that adverse remarks have been made against the writ petitioner that due to dereliction in duty the writ petitioner is not providing proper treatment to the patients who are coming to the hospital as also the action of the writ petitioner led to propaganda has created bad image of the hospital amongst the people. Thus, the reason for transfer as would appear from the reasoned order is based upon the report of the committee wherein the question of dereliction in duty and misconduct has been referred against the writ petitioner. The reasoned order since stipulates the reason of transfer based upon the report, therefore, what has been contended by the learned counsel for the appellant-State that the original order of transfer dated 26.07.2019 is a routine transfer and not punitive, according to the considered view of this Court, cannot be said to be correct rather it is contrary to the record as per the discussion made hereinabove. 11. Learned counsel for the writ petitioner has relied upon the judgment rendered by the Division Bench of the Patna High Court in Sheikh Kalam vs. The Union of India & Ors. 11. Learned counsel for the writ petitioner has relied upon the judgment rendered by the Division Bench of the Patna High Court in Sheikh Kalam vs. The Union of India & Ors. (supra) appended as Annexure-3 wherein the view has been taken about interference of order of transfer if passed on the ground of punishment or the nature of the order is stigmatic. Relevant paragraph-22 is being reproduced hereinbelow: “22. There could be no doubt that a transfer order shall not be, ordinarily, interfered with in the absence of strong and compelling grounds. When, however, an order of transfer is found penal or stigmatic in nature, such a transfer order ought to be interfered with if no opportunity of hearing has preceded such an order of transfer before the transfer order was made.” 12. It is not in dispute that the order of transfer least to be interfered with by the High Court sitting under Article 226 of the Constitution of India as has been held by the Hon'ble Apex Court in Shilpi Bose (Mrs) & Ors. vs. State of Bihar & Ors., AIR 1991 Supreme Court 532; Mohd. Masood Ahmad vs. State of U.P. & Ors., (2007) 8 SCC 150 ; Government of Andra Pradesh vs. G. Venkata Ratnam, (2008) 9 SCC 345 and Novartis India Limited vs. State of West Bengal & Ors., (2009) 3 SCC 124 . But, the applicability of the aforesaid judgments is to be tested on the basis of the factual aspect and certainly when the order of transfer is based upon malice and has been passed by way of punishment, the same is required to be interfered with by the High Court under Article 226 of the Constitution of India. Reference in this regard be made to the judgment in Somesh Tiwari vs. Union of India & Ors. (supra), wherein at paragraph-16 Their Lordships have been pleased to hold as under: “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. 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.” 13. However, the learned counsel for the appellant-State has placed reliance upon the judgment rendered by the Hon'ble Apex Court in Union of India & Ors. vs. Janardhan Debanath & Anr. (supra). We have considered the aforesaid judgment and found from the factual aspect involved therein that the order of transfer can be passed on administrative ground/public interest. 14. Another judgment upon which reliance has been made is Registrar General, High Court of Judicature of Madras vs. R. Perachi & Ors. (supra) wherein the factual aspect involved is that during pendency of the departmental enquiry, the concerned judge was transferred. It is not in dispute so far as the proposition laid down in the Union of India & Ors. vs. Janardhan Debanath & Anr. (supra) and Registrar General, High Court of Judicature of Madras vs. R. Perachi & Ors. (supra) that the transfer can be made on administrative exigency or in the public interest as also if an enquiry has been initiated against the public servant on that ground if the transfer order has been passed, the same cannot be interfered with since the nature of such type of transfer order cannot be considered to be suffering from malice and stigma. However, these judgments upon which reliance has been placed by the learned counsel for the appellant-State are not applicable in the facts of the given case. 15. However, these judgments upon which reliance has been placed by the learned counsel for the appellant-State are not applicable in the facts of the given case. 15. So far as the fact of the case in hand is concerned, admittedly the original transfer order dated 26.07.2019 does not reflect any reason rather it appears to be a transfer on administrative exigency. But, the State cannot deny and stick to the stand that the order of transfer so far as it relates to the writ petitioner is for the administrative exigency, reason being that the committee which was constituted by the concerned authority, under the chairmanship of the Civil Surgeon of the concerned district where it has been opined that the writ petitioner was found to be involved in dereliction of duty as also there is misconduct of degrading the dignity of the hospital and that is the reason referred in the reasoned order dated 11.10.2019 that the order of transfer has been passed against the writ petitioner on the basis of the adverse remarks as contained in the aforesaid report, therefore, once the reasoned order has been passed on the basis of the adverse remark contained in the enquiry report conducted under the chairmanship of the Civil Surgeon of the concerned district, there is no iota of doubt in declaring the order of transfer dated 26.07.2019 so far as it relates to the writ petitioner to be punitive and stigmatic. 16. Once we have come to the conclusion that the order of transfer is punitive and stigmatic, the same ought to have been issued but before that the writ petitioner ought to have been given a notice leveling therein alleged charges but having not done so, the same is in violation of principles of natural justice. This Court, after dealing with the issue has gone across the order passed by the learned Single Judge wherefrom it is evident that the learned Single Judge has considered this aspect of the matter after going across the reasoned order dated 11.10.2019, whereby and whereunder, the order of transfer has been referred to be on the basis of adverse remarks of the enquiry report and the learned Single Judge in that circumstances, came to the conclusion that the order of transfer is punitive in nature which according to our considered view cannot be faulted with. 17. 17. However, the State has filed an affidavit wherein it has been stated that the reference of adverse remarks referred in the reasoned order cannot be considered to be punitive in nature. This Court, is of the view that the said stand cannot be allowed to be taken by the State by way of affidavit, reason being that once the reasoned order has been passed in terms of the order passed by the writ court in W.P.(C) No. 3955 of 2019, the same cannot be supplemented by changing the nature of order merely on the basis of the statement filed by way of affidavit. Therefore, the stand which has been taken in the aforesaid affidavit, according to our considered view, is not worth to be considered, accordingly, rejected. 18. Accordingly, the instant appeal fails and stands dismissed. 19. In consequence thereof, I.A. No. 770 of 2021 filed to stay the operation of the order dated 21.09.2020 passed by the learned Single Judge of this Court, also stands disposed of.