The Present Writ Petition Is Filed ... vs Union Of India Reported In (2009) 2
2023 Latest Caselaw 637 AP

        HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

MAIN CASE NO.: W.P.No. 2865 of 2023

                             PROCEEDING SHEET

Sl.      Date                               ORDER                                OFFICE
No.                                                                               NOTE


1     07.02.2023   NV,J

                         The present writ petition is filed to declare the
                   action of the 2nd respondent in issuing the

proceedings dated 24.01.2023 transferring the petitioner and posting him as Deputy Assistant Commissioner (ST), O/o AC (ST), Jangareddygudem Circle, Eluru Division, without any basis and without following the procedure prescribed under the A.P.Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "the CCA Rules, 1991").

2. Sri Y.V. Ravi Prasad, learned Senior Counsel, representing Sri Y.V. Anil Kumar, learned counsel for the petitioner would submit that the President of the Andhra Pradesh Government Employees Association as well as the Andhra Pradesh Commercial Taxes Services Association, Vijayawada, on behalf of all the employees in the State of Andhra Pradesh, submitted a representation dated 19.01.2023 to His Excellency the Governor of

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Andhra Pradesh expressing the grievance that the salaries of employees and the pensions of retired employees in the State are not being paid on the 1 st day of every month. Aggrieved by the said action, the respondents developed grudge against the office bearers of the said Associations and issued the impugned proceedings. He would further submit that the 1st reference cited in the impugned proceedings reflects an adverse news item published in a Telugu Newspaper against the Intelligence Unit of Vijayawada-I Division on 04.04.2021, but the petitioner is not working in the Office of the Assistant Commissioner, Vijayawada. So far as the enquiry reports dated 16.04.2021 and 19.12.2022 are concerned, the enquiries were conducted behind the back of the petitioner and till date, the petitioner is not served with any show cause notice calling for explanation or a charge memo.

i) The learned Senior Counsel would submit that the impugned proceedings were issued contrary to G.O.Ms.No.518, Revenue (Commercial Tax-I) Department, dated 08.07.2022 under which the ban on transfers in the Department of the respondents is in force. Further, the impugned orders are punitive in nature and to terrorize the employees not to express their grievances and issuance of the

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impugned orders is nothing but depriving the fundamental rights of the employees under Article 19(1) of the Constitution of India. He would submit that without conducting the enquiries as per the Rules contemplated under the CCA Rules, 1991 and without giving any opportunity to participate in the enquiries, the enquiry reports, on which the impugned proceedings were effected, cannot be acted upon. The impugned order of transfer is an act of vengeance, biased and victimization, as a representation was submitted to His Excellency the Governor of Andhra Pradesh ventilating the grievances of the employees.

ii) The learned Senior Counsel would submit that though the petitioner submitted an application dated 25.01.2023 to the respondents seeking to furnish the documents referred in the impugned proceedings, but the documents are not furnished so far. Further, there is no whisper in the impugned orders as to on what ground either under administrative exigencies or under emergency exigencies the transfer is made. He would also submit that the 2nd respondent also issued proceedings dated 03.02.2023 directing the petitioner to report to duty with immediate effect, failing which appropriate disciplinary action will be taken without any further communication. In support of his submissions, he relied on the

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decisions of the Hon'ble Supreme Court in Somesh Tiwari Vs. Union of India reported in (2009) 2 SCC 592, and Dr.P. Damodaran Vs. State of Kerala reported in 1981 SCC Online Ker 296. He, therefore, prays to set aside the impugned orders.

3. Per contra, learned Government Pleader for Services-I appearing for the respondents, would submit that the impugned proceedings were issued basing on the enquiry reports dated 16.04.2021 and 19.12.2022 submitted by the Enquiry Officers. While conducting the discreet enquiries, the respondents need not to observe the CCA Rules, 1991 as claimed by the petitioner. The discreet enquiry is nothing but a preliminary enquiry for knowing the real facts. He would further submit that the petitioner and many others caused financial loss to the Government exchequer to a tune of Rs.15.00 crores in respect of supply of drugs by leaving 112 dealers from the purview of tax out of 131 cases. Similarly, the petitioner also caused financial loss to a tune of Rs.22.76 crores in respect of supply of surgicals and Rs.40.00 crores by allowing the contractors, who executed the contracts under Neeru-Chettu programme, to evade tax, for extraneous reasons. He did not dispute the nature of employment of the petitioner. In view of the above, no interference is called for by this Court

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under Article 226 of the Constitution of India and he seeks time to file a detailed counter affidavit.

4. In reply, the learned Senior Counsel would submit that the petitioner is not holding the post meant for collection of tax and he has been discharging duties since 2019 at other than tax collection units, as such, the allegation made against the petitioner that for extraneous reasons, he caused monetary loss to the exchequer, is not correct and it is only invented to prejudice the adjudicating agencies and this Court.

5. Having regard to the submissions made by the learned Senior Counsel for the petitioner as well as the learned Government Pleader for Services-I, it is an admitted fact that there is no mention in the impugned proceedings as to on what ground either administrative exigency or under emergency exigency the transfer of the petitioner is made. It is also an admitted fact that a ban on transfers is in force as per G.O.Ms.No.518 dated 08.07.2022. Without lifting the said G.O. and in the absence of any administrative exigency, the transfer of the petitioner is nothing but a malice act/an act of victimization on the part of the respondents.

6. As seen from the impugned order, it is crystal

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clear that no show cause notice and no charge memo were issued to the petitioner to submit his explanation and no opportunity was given to him to participate in the enquiries said to have been conducted by the respondents. The fact remains is that the enquiries had not been conducted as per Rule 20 of the CCA Rules, 1991 and hence, the enquiry reports dated 16.04.2021 and 19.12.2021 cannot be relied upon. Therefore, the power of transfer is only to be used for administrative exigency to ensure efficiency, but cannot be used as a means of punishment. In fact, the present impugned proceedings does not speak any administrative exigencies, but due to the enquiry reports which are unknown to the petitioner, the impugned proceedings were issued for other reasons particularly as punitive measure only.

7. In Somesh Tiwari case (1 supra), the Hon'ble Apex Court held thus:

"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. 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

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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."

8. In P. Damodaran case (1 supra), the Hon'ble Apex Court held as under:

"9. The question of right to transfer the employees from one service to another was considered in Abdul Khader v. Regional Deputy Director (1967 K.L.T. 354) Mathew, J. referred to the following passage in the judgment of Lord Denning, M.R. in Merricks and Anr. v. Nott-Bower and Ors. ((1964) II W.L.R. 702).

"In the light of these regulations, the Plaintiffs say that the power of transfer is only to be used as part of the administrative machinery of the force so as to ensure efficiency. It cannot be used as a means of punishment. In their cases, they say, the power of transfer was misused and abused. It was used as a disciplinary measure to punish them, and by misusing it in this way those in authority were able to by-pass all the disciplinary machinery so carefully set up to ensure a fair hearing. They were condemned and punished, they say without being heard.

Such being the case made, I am not prepared to say that it is unarguable. It is a well-known principle of our law that any powers conferred by Statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted. They must not be misused or abused by being applied to an

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ulterior purpose. Whether that principle applies here or not, I do not say: all I do say is that if the Plaintiffs allege, as they do, that this was a misuse of the power of transfer, that it was used, not for purpose of good administration and efficiency but for the motive or punishment--they have an arguable case which they are entitled to have tried by the courts."

10. In Dr. (Sm.) Pushpika Chatterjee v. State of West Bengal (1972 S.L.R. 910), the Petitioner who was a Government servant had been transferred with the object of accommodating another person at a particular station for undisclosed reasons and it had been observed that the order was not for public interest or for administrative purposes, and, therefore, for collateral purposes and mala fide. It was a fit case where the order of transfer should be interfered with even though no civil or evil consequences would follow from such an order.

11. I had considered the question at rather great length in the case of Dr. Kuriakose. I pointed out therein that the power to transfer should be exercised reasonably and fairly and in the best interests of the administration. Where the power is exercised without due regard to the interest of the administration or the interest of the public or the provisions of law or the requirements of justice, or where the power is exercised for extraneous and irrelevant considerations, or for mala fide reasons, or as a punishment or as an act of victimisation, in all those cases of perverse exercise or abuse of power, the jurisdiction of this Court is wide enough to strike down the offending order. That the power was exercised without personal animosity or malice would in such cases be no answer. Bad faith does not necessarily mean dishonesty. Mala fide in the legal sense is a fraud on power, but not necessarily a dishonest or malicious act. A person acts mala fide if he exercises the power perversely or

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unauthorisedly or improperly or unreasonably. There I had quoted the following from Lord Denning M.B.'s decision in Breen v. Amalgamated Engineering Union ((1971) 2 Q.B. 175 at 190).

"The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have been taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside."

12. Another decision which would be very useful for the purpose of this case is the decision of the Patna High Court in Ramanek v. State of Bihar (1975(2) S.L.R. 67). There an order of transfer to accommodate a particular official was considered to be an order passed for collateral purpose in the garb of a legal purpose. That will amount to colourable exercise of power. In N.N. Singh and Ors. v. General Manager, Chittaranjan Locomotive Works and Ors. (1973 (1) S.L.R. 153) in regard to the transfer of a Railway employee, the Calcutta High Court held:

"At the same time it may be obvious or apparent on the facts evident, admitted or established, that the orders of the authorities, though otherwise legal and valid have not been issued for the professed purposes as in this case in public or administrative interest or in exigencies of service but they are only passed for other purposes in the garb of ostensible purposes. The court of law in such cases has thought it fit and competent for itself to probe in and scrutinise such orders to see if they have been passed for other purposes under colourable exercise of powers or if such orders are accordingly

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mala fide.

* * * **** ***** ****** The administrative orders, not otherwise justiciable, thus come under Court's scrutiny if there are allegations of mala fides or colourable exercise of powers behind such orders, even though they are free from violation, of any constitutional or statutory provisions. Such orders again are liable to be interfered with if the allegations noted above are established or evident on materials on record in the absence of any rebuttable evidence."

16. Lastly, I would refer to the decision of the Supreme Court in Ajay Hasia v. Khalid Mujib (1981) (1) SCC 722:AIR 1981 SC 487). There at para 16 Bhagwati, J. speaks about the scope of Article 14. Apart from Royappa's Case the learned Judge quotes from Maneka Gandhi v. Union of India ((1978) 1 SCC 248:AIR 1978 SC 597) where the same Judge had observed (at p 624):

"Now the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this Article. There can be no doubt that it is a founding faith of the constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential

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element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence." This was again reiterated by this Court in International Airport Authority's case ((1979) 3 S.C.R. 1014 at P. 1042 (supra) of the report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an "Authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervade the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution."

9. In view of the foregoing discussion and the law laid down by the Hon'ble Apex Court in the judgments referred to supra, I am of the opinion that the respondents did not follow the due process of law before issuing the impugned orders which would attract the principle of malice in law as the impugned orders was not based on any real factor

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germane and it was based upon the allegations made against a unit of Department in a news item published in a Telugu Newspaper on 04.04.2021. Admittedly, the petitioner is not discharging his duties at the subject unit since 2019.

10. Hence, there shall be an interim suspension of operation of the proceedings dated 24.01.2023 issued by the 2nd respondent, for a period of two weeks from today.

11. List the matter on 16.02.2023.

12. Meanwhile, counter affidavit be filed by the respondents.

________ NV, J cbs

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