Allahabad High Court
Anish Kumar vs State Of U.P. Thru. Addl. Chief ... on 25 August, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56907
Court No. - 20
Case :- WRIT - A No. - 5242 of 2023
Petitioner :- Anish Kumar
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And 3 Others
Counsel for Petitioner :- P.K. Singh Bisen
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 24.04.2023 whereby petitioner has been transferred form Lucknow to Rampur on the post of Head Constable. Also under challenge is order dated 17.06.2023 whereby petitioner's representation against his transfer and relieving has been rejected.
3. It has been submitted that a perusal of impugned orders will make evident that transfer of petitioner has been effected as a measure of punishment on the basis of complaints made against him. It is submitted that although transfer can be effected as a measure of administrative exercise but cannot be effected as a measure of punishment on the basis of complaints and enquiry instituted and finalised in pursuance of such complaints. Learned counsel for petitioner has submitted that it has been specifically provided in Rule 15(a) of U.P. Fundamental Rules (Volume 4, Parts 2 to 4) that transfer cannot be effected as a measure of punishment or misconduct. He has also adverted to judgment rendered by this Court in Sabhapati Pathak v. State of U.P. and others, reported in 2012 (30) LCD 1344.
4. Learned State Counsel on the basis of instructions has submitted that transfer was effected on administrative grounds looking into work and conduct of petitioner. It is submitted that a perusal of impugned order itself will indicate serious allegations being made against petitioner due to which it was not conducive to continue petitioner at his earlier place of posting. It has also been submitted on the basis of counter affidavit that in view of complaints made against petitioner, an enquiry was conducted with a view to find out the genuineness of complaints received against petitioner in which petitioner was also afforded opportunity of hearing whereafter allegations made against petitioner were found proved due to which the matter was referred to Police Headquarter with recommendation to transfer petitioner whereafter impugned transfer order has been passed.
5. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, particularly impugned order dated 17.06.2023 and counter affidavit filed by opposite parties, it is evident that petitioner has been transferred on the basis of allegations levelled against him and after genuineness of same was found established by opposite parties in a preliminary enquiry. The impugned orders do not indicate petitioner's transfer having been effected in regular administrative exercise and on contrary clearly establishes the submission of learned counsel for petitioner that impugned orders have been passed on the basis of allegations and enquiry conducted against petitioner which are clearly reflected with regard to petitioner's alleged misconduct.
6. A reading of Rule 15(a) of U.P. Fundamental Rules (Volume 4, Parts 2 to 4) and judgment relied upon by learned counsel for petitioner are clearly on the aspect that transfer of an employee cannot be effected as a measure of punishment for which purpose the employer has ample opportunity to initiate disciplinary proceedings.
7. Considering aforesaid facts it is evident that impugned order has been passed as a measure of punishment and is therefore not only against Fundamental Rules but also against judgments rendered by this Court.
8. As a consequence, impugned orders dated 24.04.2023 and 17.06.2023 are quashed by issuance of a writ in nature of Certiorari.
9. Resultantly, the petition succeeds and is allowed. The parties to bear their own costs.
Order Date :- 25.8.2023
kvg/-
