Const. Asghar Mehdi vs State Of U.P.& 4 Ors.
2013 Latest Caselaw 4856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - A No. - 42061 of 2013
 

 
Petitioner :- Const. Asghar Mehdi
 
Respondent :- State Of U.P.& 4 Ors.
 
Counsel for Petitioner :- S.K.A.Rizvi,S.Z.A.Rizvi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition is directed against the order of transfer dated 29.07.2013 passed by Commandant B-Group PAC 4th Battalion Allahabad.

2. It appears that PAC Headquarter passed an order on 25.07.2013 transferring petitioner from 4th Battalion PAC to 44th Battalion PAC, Meerut and by means of impugned order the Commandant 4th Battalion PAC has communicated the said order to petitioner directing him that he shall stand relieved on 31.07.2013 so as to join at transferred place.

3. Learned counsel for the petitioner firstly contended that there is a departmental inquiry initiated against petitioner and the matter is pending before U.P. Public Service Tribunal and since the matter is sub-judice, therefore, he cannot be transferred. He further submitted that departmental proceedings have continued for a quite long time, therefore, on the ground of mere delay the same has to be dropped in view of the judgment of this Court in Mahaveer Prasad Sharma Vs. Cane Commissioner, U.P., Lucknow and others, 1999(2) UPLBEC 1407. He lastly contended that petitioner is a handicapped and, therefore, on equity ground also he should not be transferred.

4. However, I find no force in any of the above submissions. It is not in dispute that petitioner was posted at Allahabad sometimes in June, 1983, i.e., from the date of his initial appointment, and since then he has been continuing thereat and, therefore, for last 30 years he has been posted there.

5. So far as pendency of departmental proceedings before Tribunal is concerned, that cannot bar the authorities concerned from transferring petitioner and in particular in exigency of service on administrative ground when the authorities find that during pendency of departmental proceedings the petitioner must be transferred. It is not the case of the petitioner that the impugned order of transfer is against statutory rules or has been passed by an authority not competent to do so or is vitiated on account of mala fide. The service of the petitioner are transferable. The transfer being exigency of service, an employee is liable to be transferred from one place to another and normally no case for interference in Court of law is called for unless the case is within categories, as mentioned above.

6. Recently in The Registrar General High Court of Judicature at Madras Vs. R. Perachi and Ors., AIR 2012 SC 232, the Court has observed:

"...transfer is an incident of service, and one cannot make a grievance if a transfer is made on the administrative grounds, and without attaching any stigma....".

7. The Court also referred to its earlier decision in Airports Authority of India Vs. Rajeev Ratan Pandey, 2009 (8) SCC 337 and said :

"in a matter of transfer of a govt. employee, the scope of judicial review is limited and the High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer."

8. A transfer is made in administrative exigency, if there is a complaint pending and instead of a regular department enquiry, the authority concerned decided to transfer a person concerned. It would then be a transfer purely on administrative ground and not by way of punishment etc. This approach has been approved by Apex Court in The Registrar General High Court of Judicature at Madras (supra), and in para 27 of the judgment the Court observed:

"...the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first Respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee."

9. In Tushar D.Bhatt Vs. State of Gujarat & Ors., JT 2009 (2) SC 474, reiterating well established principle in long chain of authority the Court said:

"The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies."

10. So far as delay in departmental proceeding is concerned, that is not subject matter of challenge before this Court and even otherwise it cannot be said that departmental proceeding is suo motu liable to be quashed on account of mere delay without considering the other aspect of matter. There is no principle of law that an inquiry would stand vitiated merely for the reason of delay. On the contrary, whether delay in initiating inquiry would be fatal or not would depend on various facts and circumstances. Dealing this question and considering State of Madhya Pradesh Vs. Bani Singh and another 1990 (Supp.) SCC 738 the Apex court in State of Punjab Vs. Chaman Lal Goel, 1995 (2) SCC 570 said:-

"9. Now remains the question of delay. There is undoubtedly a delay of five and half years in serving the charges. The question is whether the said delay warranted the quashing of charges in this case. It is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegations of bias, mala fides and misuse of power. If the delay is too long and is unexplained the court may well interfere and quash the charges. But how long a delay is too long always depends upon the facts of the given case. Moreover, if such delay is likely to cause prejudice to the delinquent officer in defending himself, the enquiry has to be interdicted. Wherever such a plea is raised, the court has to weigh the factors appearing for and against the said plea and take a decision on the totality of circumstances. In other words, the court has to indulge in a process of balancing."

11. In Additional Superintendent of Police Vs. T. Natrajan, 1999 SCC (L & S) 646 Apex Court held as under:-

"It is settled law that some delay in initiating proceedings would not vitiate the enquiry unless the delay results in prejudice to the delinquent officer."

12. The same view was reiterated in P.D. Agarwal Vs. State Bank of India and others, AIR 2006 SC 2064.

13. A Division Bench in Writ Petition No. 6095 (S/S) of 1996 (State of U.P. & another Vs. S.P. Singh Pundhir and another) decided on 09.08.2007, considering the aforesaid judgements of the Apex Court, has also held as under:-

"There is no hard and fast rule that disciplinary proceedings initiated after a long time would be per se improper or illegal merely for the reason that it has been initiated after long lapse of time but it depends upon the facts and circumstances of that case. For example, if the delinquent employee could show that after long lapse of time he has lost evidence or has no capacity to defend himself due to loss of memory etc. then indulgence can be granted on this ground but mere delay in the proceedings can not vitiate the same."

14. In view of above, the writ petition lacks merit. Dismissed.

Order Date :- 02.08.2013

AK