G Ravi vs The State Of Ap
2023 Latest Caselaw 4775 AP

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

               WRIT PETITION NO.6442 OF 2023
ORDER:

1. 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 transferring the petitioner by way of punishment, which is punitive in nature and on an anonymous complaint made by a rival union members vide Proc.No.E2/813(01)/2023- IBM dated 13.03.2023, middle of the Academic Year and without there being any disciplinary case against the petitioner a high handed and arbitrary action, contrary to APSRTC Regulations, without jurisdiction, contrary to the circular instructions and as such liable to be set-aside with a consequential direction to the respondents herein to continue the petitioner at Ibrahimpatnam Depot forthwith with all consequential benefits."

2. Initially, the petitioner was appointed as Driver in the in

Andhra Pradesh State Road Transport Corporation, and due to his

medical unfitness, he was provided with alternative employment

as Assistant Mechanic in the year 2016 and presently, he is

working at Ibrahimpatnam Depot.

3. It is the case that, upon advice of the Depot Dispensary

Doctor, the petitioner was on sick leave from 12.01.2023 to

21.01.2023 due to hypertension related issues. After completing

the leave period, the petitioner reported to duty before the Depot

Manager. It is alleged that the Depot Manager verbally abused the NV,J WP_6442_2023

petitioner using offensive language. This incident garnered media

attention when rival union members alleged that the Depot

Manager mistreated his employees, and it was covered in the

press. Subsequently, an enquiry was conducted, accusing the

petitioner of being involved in the publication of the news article.

Further, without providing a reasonable opportunity of hearing to

this petitioner, the Depot Manager transferred the petitioner from

Ibrahimpatnam Depot to Tiruvuru Depot, vide proceedings

No.E2/813(01)/2023-IBM dated 13.03.2023. The contention of

the petitioner is that, such punishment is not prescribed under

the rules governing the service conditions of employees and

imposition of such punishment of transfer to the petitioner is

illegal and requested to set-aside the same.

4. On behalf of Respondent Nos.2 to 4, Respondent No.2 - Law

Officer, APSRTC, Vijayawada, Krishna District, filed counter

affidavit denying material allegations. It is stated that, since the

petitioner does not have clean record in his entire service, he was

asked to meet the Depot Manager for formal counsel to improve

his attendance in his duties, but during counselling, the petitioner

recorded the entire counselling scene without knowledge of the

Depot Manager and posted a whatsapp message threatening to

commit suicide. It is also stated that the petitioner made viral NV,J WP_6442_2023

through his whatsapp groups and ensured to publish entire

episode in Andhra Prabha newspaper with content "RTC LO

AAGANI VEDHIMPULU" which was published that the Depot

Manager in NTR District is subjecting the employees of

Ibrahimpatnam Depot to harassment. Consequent upon the news

clipping on 29.01.2023, the Security Head Constable of

Ibrahimpatnam reported that the petitioner had played the same

tactics of suicidal intimidation and blackmailing to commit suicide

with the then AE(M)/IBM for informing him to reduce

unauthorized absenteeism. Due to his whimsical, unruly and

suicidal threatening behaviour and making viral of video, it may

have impact on the good image of the corporation and may cause

damage to the discipline among the staff.

5. It is further stated that vide Item No.9 of the RTC (Conduct)

Regulations, no employee shall make any statement to the press

or contribute any article or write any letter to the press either

anonymously or in his own name or in the name of any other

person or give any talk on the radio, directly or indirectly

connected with the corporation without the prior sanction of

competent authority. But, the petitioner was responsible for

publication of news content since the video was leaked from his

mobile.

NV,J WP_6442_2023

6. It is submitted that, a preliminary enquiry was conducted

by the corporation to pacify the intense environment created by

the petitioner to reduce commotion amongst the employees,

wherein in the report, it was opined that the petitioner caused

disturbance amongst the employees of the corporation by

circulating the video in whatsapp groups and even sending to

higher officials. Since the petitioner created unrest amongst the

employees and due to the behavioural pattern of the petitioner,

the higher official are scared to deal with the petitioner. Thus, on

account of the situation, to reduce the commotion amongst the

employees and to pacify the intense environment, the petitioner

was just transferred temporarily for 1 year period that to on

reliving duty on administrative grounds, dehorse the report. Thus

the relieving duty is on administrative grounds but not as a

punishment, to pacify the issues.

7. During hearing, Sri S.M. Subhan, learned counsel for the

petitioner would submit that the Depot Manager, Ibrahimpatnam

Depot issued the present proceedings, exceeding his jurisdiction,

even though he is not a disciplinary authority, in view of the

merger of the Corporation into the 1st respondent State, therefore,

the proceedings are vitiated by law. Learned counsel argues that

the impugned proceedings dated 13.10.2016 were initiated solely NV,J WP_6442_2023

on the basis of an allegation regarding the publication of a news

item against the Depot Manager. This allegation was made by

another employee, who, notably, faced no legal action or

disciplinary measures. However, in contrast, the petitioner was

transferred without any such allegations being substantiated

against them. Learned counsel further asserts that the petitioner's

transfer was executed with an underlying motive. This is evident

as the petitioner was transferred while a complaint case was still

pending. It is worth noting that the transfer was executed in a

manner that retained long-standing employees at the Depot,

implying that if the transfer were purely for administrative

reasons, the standard procedure would have been to consider

transferring the long-standing employee first and requested to

allow the writ petition.

8. Whereas, Sri Solomon Raju Manchala, learned Counsel

appearing for Respondent Nos.2 to 4, vehemently opposed the

relief claimed in the writ petition, contending that the petitioner is

not imposed with any punishment and in fact he is transferred

temporarily on relieving duty from one year to pacify the

environment and in fact, the regulations of APSRTC are in force by

virtue of Amendment to The Andhra Pradesh State Road

Transport Corporation (Absorption of Employees into Government NV,J WP_6442_2023

Service) Act, 2019, as such the petitioner needs no consideration

and therefore, there is no illegality in the proceedings dated

13.03.2023 and requested to dismiss the writ petition.

9. Heard learned counsel for the petitioner, learned counsel

appearing for Respondent Nos.2 to 4 and perused the material

available on record.

10. The petitioner has not challenged his transfer order on the

ground that the service rules governing him prohibit such a

transfer. The main thrust of his arguments is that his transfer

order is tainted with malafides, punitive and is stigmatic in

nature. Admittedly, no formal procedure was adhered to during

the inquiry process, and no notification or report was provided.

11. Undoubtedly, transfer is incidence of service, but it shall

never be punitive in nature. 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.

NV,J WP_6442_2023

12. The only reason assigned by the respondents for transfer of

the petitioner is misconduct. However, the petitioner was

transferred as a measure of punishment. The 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.

13. The fact remains that 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

petitioners in the anonymous complaint/articles in newspapers.

No doubt, the employer is entitled to pass an order of transfer in

administrative exigencies but order(s) of transfer cannot be 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. It appears that the order of transfer is

influenced by extraneous considerations which ought not to have

been taken into account, as such the decision cannot stand. Here,

it appears that the power was exercised with personal animosity

or malice. When the order of transfer is effected without there NV,J WP_6442_2023

being any misconduct or misbehaviour on the part of the

petitioners, such impugned transfer proceedings would not

sustain under law and are subject to legal scrutiny.

14. 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 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

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 NV,J WP_6442_2023

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

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.

15. 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

2004 (3) ALD 34 (SC)

(2009) 2 SCC 592 NV,J WP_6442_2023

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.

16. Governor of Andhra Pradesh promulgated Ordinance No.4

of 2023 on 26.06.2023 to amend the Andhra Pradesh State Road

Transport Corporation (Absorption of Employees Into Government

Service) Act, 2019, published in AP Gazette Notification (Part-1

Extraordinary) wherein the Government of Andhra Pradesh

absorbed the employees of APSRTC into government Service with

effect from 01.01.2020 by creating „Public Transport Department‟

as Head of the Department under the administrative control of

T,R& B Department. The Ordinance reads as follows:

1.........

2. In the Andhra Pradesh State Road Transport Corporation (Absorption of Employees into Government Service) Act, 2019, the following provisos shall be added to Section5.

Provided that the APSRTC Employees (Service) Regulations, 1964, APSRTC Employees' (Conduct) Regulations, 1963 and APSRTC Employees' (CC&A) Regulations, 1967 shall continue to govern the Service conditions of the employees of Andhra Pradesh Public Transport Department (APPTD) until further rules consequent to the absorption are framed by the Government under Sections 4 and 5 of the Act 36 of 2019.

NV,J WP_6442_2023

17. Hence, in view of Andhra Pradesh Ordinance No.4 of 2023

dated 26.06.2023, APSRTC Employees (Service) Regulations,

1964, APSRTC Employees‟ (Conduct) Regulations, 1963 and

APSRTC Employees‟ (CC&A) Regulations, 1967 shall continue to

govern the Service conditions of the employees of Andhra Pradesh

Public Transport Department (APPTD) until further rules

consequent to the absorption were added to Section 5. Hence, the

contention of the learned counsel for Respondent Nos.2 to 4 that

regulations of APSRTC are in force by virtue of Andhra Pradesh

Ordinance No.4 of 2023 i.e. amendment to Andhra Pradesh State

Road Transport Corporation (Absorption of Employees into

Government Service) Act, 2019 is acceptable. Therefore, the

petitioner is governed by the service, conduct and CC&A

conditions, as envisaged under the APSRTC Regulations i.e.

APSRTC Employees (Service) Regulations, 1964, APSRTC

Employees‟ (Conduct) Regulations, 1963 and APSRTC Employees‟

(CC&A) Regulations, 1967.

18. 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.

NV,J WP_6442_2023

19. Hence, the writ petition is allowed with the following

directions:

a) The action of the respondents in transferring the petitioner

vide Proceedings No.E2/813(01)/2023-IBM dated

13.03.2023 is declared as illegal and arbitrary;

b) Proceedings No.E2/813(01)/2023-IBM dated 13.03.2023

are hereby set-aside;

c) The respondents are directed to continue the petitioner at

Ibrahimpatnam Depot;

d) It is left open to the respondents to take appropriate action

for the alleged misconduct of the petitioner, 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 VENKATESWARLU NIMMAGADDA Date: 07.10.2023

SP