Turla Ravi Kiran, vs The Apsrtc,
2021 Latest Caselaw 295 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                 WRIT PETITION NO.24881 OF 2020
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"To issue Writ of Mandamus declaring the action of the Respondents in issuing Transfer Order vide Proceedings No.P2/812(01)/2020-RM(G), dated 27.11.2020 against the petitioners based on the false complaint and false enquiry report without any proper reason is illegal, irregular, arbitrary, violative of the provisions of the settled Principles of Law and also violated the APSRTC Service Rules and Regulations and also offends Articles 14, 19(1)(g), 21 of Constitution of India and consequently direct the respondents to set aside the Transfer order No.P2/812(01)/2020-RM(G), dated 27.11.2020."

The petitioners are working as drivers in Andhra Pradesh State

Road Transport Corporation, Guntur-I Depot, Guntur. Basing on a

complaint dated 19.05.2020, an enquiry was conducted on

18.11.2020 and the same was submitted to the second respondent/

Regional Manager, APSRTC, Guntur Region. Without serving any

copy of enquiry report by the second respondent, the third

respondent issued transfer order against these petitioners in

Proceedings No.P2/812(01)/2020-RM(G) dated 27.11.2020 as a

measure of punishment. But, the contention of the petitioners is

that, such punishment is not prescribed under the rules governing

the service conditions of employees vide Circular No.PD.01/2019

dated 01.01.2019 and imposition of such punishment of transfer to

these petitioners is illegal and requested to set-aside the same.

Learned counsel for the petitioners reiterated the contentions

urged in the affidavit, whereas, Sri P. Durga Prasad, learned

Standing Counsel for APSRTC, vehemently opposed the relief claimed

in the writ petition, contending that the Circular No.PD.01/2019 MSM,J WP_24881_2020

dated 01.01.2019 is a subject matter of challenge in another writ

petition and therefore, there is no illegality in the order and

requested to pass appropriate order.

As on date, the departmental proceedings are taken in terms of

Circular No.PD.01/2019 dated 01.01.2019, where certain

regulations are prescribed to take appropriate action against the

employees who are guilty of misconduct. But, no punishment of

transfer is prescribed from one Bus Depot to another Bus Depot

under the regulations.

Finally, it is contended that the transfer is incidence of service,

but it shall never be punitive in nature. If it is a punitive

punishment, an enquiry is required to be conducted under

A.P.S.R.T.C (Conduct) Regulations and A.P.S.R.T.C (CC&A)

Regulations governing the service conditions of A.P.S.R.T.C

employees, if the Corporation intended to impose a major penalty, it

is mandatory to conduct an enquiry strictly adhering to the

Regulations. But no such inquiry was conducted for transfer of the

petitioner as punitive measure from one Depot to another Depot,

more particularly when the petitioner is holding a local cadre post. In

addition to that, the transfer from one place to another place is not a

punishment prescribed under A.P.S.R.T.C (Conduct) Regulations and

A.P.S.R.T.C (CC&A) Regulations issued by the Corporation.

Therefore, the transfer of the petitioners from one depot to another

depot is illegal and arbitrary, requested to set aside the same.

The only reason assigned by the Courts for transfer of these

petitioners is misconduct. But, no enquiry was conducted. However,

the petitioners were transferred as a measure of punishment. The MSM,J WP_24881_2020

very allegation in the transfer order is sufficient to draw inference

that the transfer order is punitive in nature and motivated.

Therefore, such punitive transfers or motivated transfers cannot be

upheld by this Court, since such transfers will have serious effect on

the career and family life of these petitioners.

When similar issue i.e. transfer of employee on administrative

ground, came up before the Division Bench of this Court in "General

Manager, South Central Railway v. Syed Abdul Kareem1", it is

observed that, transfer is an incident of service and per se has no

adverse consequences while referring to the judgments of the Apex

Court in "B.Varadha Rao v. State of Karnataka2" "Shilpi Bose v.

State of Bihar3" "Union of India v. N.P. Thomas4" "Union of

India v. S.L. Abbas5" "Mohd. Masood Ahmad v. State of U.P.6"

and concluded that the order of transfer dated 13.11.2003 issued by

the Senior D.P.O., Secunderabad Division is vitiated for extraneous

considerations and on account of non-compliance with principles of

natural justice, therefore, the writ petition is allowed. In "General

Manager, South Central Railway, Rail Nilayam, Secunderabad

v. S.Srinivasa Rao7" when an employee was transferred

straightaway on administrative ground without giving reasonable

opportunity and without considering the family condition, the

Division Bench of this Court held that the transfer of employee is an

incidence of service and it is well settled that it should not be

interfered with unless mala fides are proved. Apart from that, the

2010 (3) ALD 650

(1986) 4 SCC 131

1991 Supp (2) SCC 659

1993 Supp (1) SCC 704

(1993) 4 SCC 357

(2007) 8 SCC 150

2011 (5) ALD 709 MSM,J WP_24881_2020

Apex Court in "Union of India v. Sri Janardhan Debanath8" held

that if the transfer order is passed in public interest, it could not

have been interfered with.

In "Somesh Tiwari v. Union of India9" the Apex Court has

considered the similar issue and held that an order of transfer is an

administrative order. There cannot be any doubt whatsoever that

transfer, which is ordinarily an incidence 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. Thus, the law laid down by the Apex Court and this Court is

consistent that the punitive punishment on irrelevant ground is

illegal and liable to be set aside.

In view of the law declared by the Supreme Court and other

Courts, the punitive transfer as punishment is not prescribed under

the Regulations issued by the Corporation and such transfer is

illegal and arbitrary an the same is liable to be set-aside.

2004 (3) ALD 34 (SC)

(2009) 2 SCC 592 MSM,J WP_24881_2020

Hence, the writ petition is allowed, setting-aside the

Proceedings No.P2/812(01)/2020-RM(G) dated 27.11.2020, leaving it

open to the respondents to take appropriate action for the alleged

misconduct of the petitioners, if any proved against them, strictly

adhering to A.P.S.R.T.C (Conduct) Regulations and A.P.S.R.T.C

(CC&A) Regulations governing the employees of the Andhra Pradesh

State Road Transport Corporation.

Consequently miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:22.01.2021

SP