Udit Narain Singh vs The State Of U.P.And 6 Others
2014 Latest Caselaw 863 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 02.04.2014
 
Judgment Delivered on 15.04.2014
 

 

 
Civil Misc. Writ Petition No. 16012 of 2014
 

 
Udit Narain Singh
 

 
Versus
 

 
State of U.P. and others
 

 
					____________
 

 
Hon'ble Manoj Kumar Gupta, J.

1. The main questions, which arise for consideration are whether transfer of an employee during pendency of disciplinary proceedings is permissible in law or it will ipso facto be treated to be penal in nature and whether in the facts of the present case, the transfer of the petitioner was by way of punishment, warranting interference by this Court.

2. The facts in nutshell giving rise to the instant writ petition are that the petitioner was working as Mandi Sahayak at Krishi Utpadan Mandi Samiti, Basti and by order dated 11.02.2014 passed by respondent No.4, he has been transferred, in exegencies of service, to Mandi Samiti, Balrampur on equivalent post.

3. It is admitted fact on record that earlier the petitioner was working as Mandi Sahayak, Kalwari Area, Basti. He was shifted to Sub-Mandi Yard, Rudauli, district Basti, by order dated 06.01.2014 passed by the Secretary, Krishi Utpadan Mandi Samiti, Basti. It was followed by issuance of charge sheet dated 27.01.2014 inter alia on the allegations that in the night of 05.01.2014, the petitioner had played active role in facilitating encroachment of newly constructed chabutras at Navin Mandi Sthal, Basti, which invited the ire of another faction of traders, leading to communal disharmony. The traders made demonstration and gave representation dated 06.01.2014 in writing. During the pendency of the disciplinary proceedings, the petitioner has now been transferred by the impugned order dated 11.02.2014 from Basti to Balrampur, in which it is stated that the petitioner had exerted political pressure and has been extending threats for getting his duty changed and for influencing the departmental proceedings; in such circumstances, it is deemed essential, in exigencies of service, to transfer the petitioner from Basti.

4. The sole contention made by learned counsel for the petitioner was that the impugned transfer order is penal in nature inasmuch as, it has been passed levelling various allegations against the petitioner, and if it be so, the respondents should have held an enquiry on these charges but he could not have been transferred on such grounds. It is contended that though the transfer order has been passed supposedly, in exigencies of service, but in fact, the petitioner has been punished thereby.

5. On the other hand, learned counsel for Mandi Samiti contended that the petitioner, whose duties were changed by order dated 06.01.2014 by shifting him from Kalwari Industrial Area, Basti to Rudauli Sub-Mandi Yard, Basti was exerting political pressure to get back at the same place. He was also trying to influence the disciplinary proceedings as he is posted at Basti since a long time, and had developed a clout in district Basti. It is further contended that the petitioner had a criminal history and is extending threat to the authorities for being assigned duties of his choice and for dropping the disciplinary proceedings. For the said purpose, reliance has been placed on report dated 17.01.2014 of the Deputy Director (Administration) to the Director, Krishi Utpadan Mandi Samiti, U.P. Lucknow, in which it is stated that after the incident that took place in the night of 05.01.2014, the petitioner was shifted from Kalwari to Rudauli as there was a threat to communal harmony, in case, he is permitted to continue at Kalwari. The petitioner in order to get his duties changed exerted pressure through Member of Parliament Sri Brij Kishore Singh (Dimple), ex-M.P. Sri Bhal Chandra Yadav and Hon'ble Minister Sri Raj Kishore Singh. It has been further stated in the said report that the petitioner had criminal antecedents and has got political patronage and he flouts the law with impunity and, therefore, he should be transferred outside Basti. It has also been stated that the petitioner had already been relieved from the present place of his posting on 11.02.2014 and the disciplinary proceedings have also been transferred to Balrampur, so that no inconvenience is caused to the petitioner. It is contended that the departmental authorities have full right to ensure that the disciplinary proceedings are conducted in a fair and impartial manner without any influence from the employee and, therefore, it can not be contended that the transfer order has been passed on extraneous considerations and not in exigencies of service.

6. I have considered the submissions of learned counsel for the parties and have perused the record.

7. It is now well-settled that transfer is a condition of service and it does not impinch upon the status of an employee. He has no vested right to remain posted at a particular place. It is within the domain of the employer to determine as to which place his services are required and where he could be best utilised. A transfer order can only be interfered with, if it is in contravention of any statutory Rule or is based on mala-fide considerations, or has been passed by an authority not competent to transfer. Even violation of the administrative guidelines contained in the transfer policy does not give right to an employee to assail its validity in Court of law nor could the Court interfere on such ground.

8. It is not in dispute in the present case that the impugned transfer order has been passed by the authority fully competent in this regard. It is also not the case of the petitioner that there is violation of any statutory Rule. Thus, the main question which arises for consideration is whether the transfer of the petitioner during pendency of disciplinary proceedings will invalidate the transfer order.

9. I have given thoughtful consideration to the submissions made by counsel for the respective parties and I am of the opinion that a transfer order will not be illegal merely because, it has been passed during the pendency of disciplinary proceedings ,unless, it could be shown that it is punitive in nature. Sometimes, it may becomes necessary to transfer an employee to other place so that he may not succeed in influencing the disciplinary proceedings or tampering the evidence or witnesses. At times, it may become necessary to defuse the explosive situation which might come into existence, as a result of alleged misconduct on part of the employee. Take example of a police officer, who ordered firing on a peaceful assembly of citizens agitating for restoration of water supply in the locality, resulting in death of few persons. Apart from disciplinary proceedings which were drawn, he was also transferred to defuse the tension prevailing in the locality. Transfer order passed on such consideration is a transfer made in exigencies of service and can not be faulted with merely on the ground that it has been passed during pendency of disciplinary proceedings. Thus, I am unable to accept the contention of the learned counsel for the petitioner that since the impugned transfer order has been passed during the pendency of the disciplinary proceedings, and, therefore, it stands vitiated. In fact, under certain Statutes during pendency of disciplinary proceedings, instead of proceeding to suspend a delinquent employee, it is provided that the employer should consider the feasibility of transferring such employee to other place. One such provision could be found under the Railway Protection Force Rules, 1987. Rule 135 thereof provides that before suspending a delinquent employee, the competent authority should consider whether the purpose would be served if the member is transferred from his post. The reason seems to be obvious. Instead of taking extreme step of suspending an employee which is often done in order to prevent tampering of evidence and witnesses; and to prevent influencing the disciplinary proceedings, the law provides for the alternative course of transferring such an employee.

10. In the present case, the respondents could have achieved the purpose on account of which he was transferred, by placing the petitioner under suspension. However, it appears that in the opinion of the disciplinary authority, instead of taking such extreme step, the object can be achieved by transferring the petitioner from the place of his present posting where he has developed a political clout, in view of his long stay at the said place. Such exercise is purely in exigencies of service and cannot vitiate the transfer order.

11. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of State of U.P. Versus Jagdeo Singh, AIR 1984 SC 1115, in which a Station House Officer of a police station was transferred as a second officer of another police station. It was common ground between the parties that a Police Officer is given special emolument of Rs. 15/- per month while he is posted as Station House Officer and under section 7 (d) of the Police Act No. 5 of 1861, the Inspector General of Police is competent to impose punishment on a member of police force found to be careless and negligent in discharge of his duties by removing such officer from the post carrying such emolument. In the counter affidavit filed by the State it was stated that the police officer was transferred as he was found negligent in discharge of his duties. It was in the said background that the Apex Court approved the judgment of the High Court holding that transfer of police officer on allegation of negligence to a post which does not carry such emolument is penal in nature and such transfer can not be sustained. However, in the present case, it is nobody's case that the transfer of the petitioner from Basti to Balrampur results in withdrawal of any of his emoluments as he was transferred to equivalent post. Thus, the aforesaid decision of the Apex Court is of no help to the petitioner.

12. The other judgment relied upon by the learned counsel for the petitioner is in the case of Pradeep Goel Versus Regional Manager, 1992 (1) UPLBEC 223, in which the employee was transferred on the ground of his suspected involvement in a fraudulent transaction. The Court held that in the facts of that case, the bank was justified in initiating disciplinary proceedings but it does not warrant transfer of the employee. In that case, the employee was not transferred on the ground that his continuance at a particular place would be detrimental to the fair enquiry or there was any apprehension of the delinquent influencing the enquiry or tampering with the evidence and witnesses. In the present case, therefore, the aforesaid judgment is of no help.

13. The other aspect which remains to be considered is whether in the facts of the present case, the transfer of the petitioner can be said to be penal in nature inasmuch as, it contains certain allegations against him, namely, that he was exercising undue political influence and was extending threat for getting his duties changed and to influence the departmental proceedings. It is contended that these charges, if it amounts to misconduct, may warrant another disciplinary enquiry but it can not be made a ground to transfer the petitioner.

14. I am unable to accept the aforesaid contention of the learned counsel for the petitioner. In the report dated 17.01.2014 of the Additional Director (Administration), it has been clearly stated that the petitioner got undue pressure exerted by Member of Parliament Sri Brij Kishore Singh (Dimple). It has further been stated that Ex- M.P. Of Khalilabad Sri B.C. Yadav had also tried to influence Sri Rajiv Srivastava, Deputy Director (Administration) over a phone call. It has also been mentioned that Hon'ble Minister from Basti Sri Raj Kishore Singh, personally called the Deputy Director (Administration) Sri Rajiv Srivastava, who had submitted the said report and made effort to get his duty changed through his influence. Further, in the impugned order, it is mentioned that on account of local political patronage which the petitioner enjoys, he was influencing the disciplinary enquiry. Thus, there was sufficient material on record to justify the apprehension of the employer that unless petitioner is transferred, it would not be possible to hold free, fair and impartial enquiry. It was well within the domain of the employer to take a decision for transferring the petitioner from the present place to another district, which as stated in the supplementary counter affidavit is merely 100 kilometres away. It has also come on record that the respondents in order to ensure that the petitioner is not inconvenienced, have also transferred the disciplinary proceedings to district Balrampur. If the authorities were acting malafidely, they would not have transferred the disciplinary proceedings. It is, thus, apparent on the face of record that the authorities have acted in a balanced manner and, their decision cannot be levelled as penal in nature, to warrant interference by this Court. It has repeatedly been observed by the Apex Court that scope of judicial review in matters of transfer is very limited and should be exercised sparingly. I am of the opinion that the present case is not such which may warrant interference with the transfer order.

15. In the end, a faint attempt was made by learned counsel for the petitioner in contending that since the petitioner is working as Mandi Sahayak, which is class IV post and, therefore, he could not have been transferred. However, on being asked about the provision of law or any executive instruction in this regard, the learned counsel for the petitioner feigned ignorance; therefore, submission made in this regard is also repelled.

16. The writ petition lacks merit and is dismissed.

(Manoj Kumar Gupta)

Dated: 15.04 2014

AM/-