Harish Maganlal Baijal vs Secretary And Ors
2011 Latest Caselaw 12 Bom

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pdp




                                                                                
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION




                                                        
                      WRIT PETITION NO. 7960 OF 2011

      Harish Maganlal Baijal                           .. Petitioner




                                                       
            Vs.

      The State of Maharashtra
      Through the Additional Chief




                                            
      Secretary and ors.                               .. Respondents
                               
      Mr. R.A. Dada, Senior Counsel with Mr. Pratik Seksaria i/by M/s. L.J. Law
      for petitioner.
                              
      Mr. V.R. Dhond, Senior Counsel with Mr. A.B. Vagyani for respondent nos.
      1 and 2.
      Mr. A.V. Anturkar with Mr. S.S. Deshmukh for respondent no. 3.
             


                               CORAM: B. H. MARLAPALLE &
          



                                      SMT.NISHITA MHATRE, JJ.

OCTOBER 21, 2011.

ORAL JUDGMENT (PER B. H. MARLAPALLE,J.):-

1. Heard Mr. Dada, the learned Senior Counsel with Mr. Pratik

Seksaria for the petitioner and Mr. Dhond, the learned Senior Counsel with

Mr. Vagyani for respondent nos.1 and 2. Mr. Anturkar appears with Mr.

Deshmukh for respondent no.3.

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2. This petition filed under Articles 226 and 227 of the

Constitution impugns the order dated 8/9/2011 passed by the Maharashtra

Administrative Tribunal (the Tribunal for short) in Original Application

No. 556 of 2011 filed by the petitioner.

3. Rule. Respondents waive service. The petition has been heard

finally.

4. The petitioner was holding the post of Deputy Commissioner

of Police (Traffic), Mumbai and on 1/6/2009 he came to be transferred as

Superintendent of Police Anti Corruption Bureau (ACB), Nashik. The post

of Superintendent of Police, ACB, Nashik is for the entire revenue division

of Nashik consisting of five districts. The petitioner was served with an

order of transfer dated 26/5/2011 as Dy. Commissioner of Police, Thane

and as it was a mid-term transfer cutting short his three years tenure

(ordinarily) stated in the Maharashtra Government Servants Regulation of

Transfers and Prevention of Delays in Discharge of Official Duties Act,

2005 (the Transfer Act for short), he challenged the said order in O.A. No.

556 of 2011. By an ad-interim order dated 30/5/2011 the Tribunal was

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pleased to stay the transfer order. At the same time, respondent no.1 was

granted liberty to consider the petitioner's transfer afresh in accordance

with law, if so necessary. While the O.A. was pending, the impugned

transfer order dated 26/5/2011 was cancelled and the petitioner was re-

transferred in the very same post i.e. Deputy Commissioner of Police,

Thane. Consequently, the O.A. came to be amended so as to challenge the

fresh transfer order dated 24/6/2011. After hearing both the parties, the

Tribunal by the impugned order held that there was no merit in the

challenge to the transfer order dated 24/6/2011 specially with regard to the

transfer being punitive and also the same being arbitrary and with mala

fides. Being aggrieved by the view taken by the Tribunal in dismissing the

OA No. 556 of 2011, the petitioner has approached this court.

5. So far as the transfer order dated 26/5/2011 was concerned, the

Tribunal, while noting that the transfer order was issued for "administrative

reasons", in its interim order dated 30/5/2011 observed,

"The issue is whether the administrative reason for which he has been transferred has been specified and recorded in writing by the competent Authority and brought to the notice of next higher competent Transferring Authority so that the

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said next higher competent Transferring Authority can take an informed decision on the proposal for transfer. Since specific

administrative reason for which the applicant in this case has

been transferred and respondent no.2 has been ordered to take his place has not been recorded either in the impugned order or in the relevant file, interim relief in terms of para 10(a) of the

OA is granted."

6. In the impugned order, after considering the exhaustive

arguments of respective parties, the Tribunal recorded its reasoning in para

22 as under:-

"22. With regard to the above, it is clear from the judgment of Janardhan Debanath and Others quoted herein above that

whenever there is an allegation of misbehaviour or conduct for

the purpose of transfer there is no question of holding an enquiry as clearly observed in paragraph No.15 of the said judgment. Even in the case of Director of School Education,

Madras explicitly provides that no law required an employee to be heard before his transfer when the authorities make the transfer for the exigencies of the administration. It should be

noted here that the Commissioner of Police, Nasik is not the superior officer of the applicant, he was only asked to give a report with regard to the allegations against the applicant. The proper authority is the Director General of Anti Corruption

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Bureau and in fact in his letter dated 22.6.2011, he had made it amply clear that the applicant ought to be immediately

transferred out of Anti Corruption Bureau. Merely because all

the higher authorities choose to only counsel the applicant with regard to his conduct, does not mean that the material ought not to be taken into account for the purpose of transfer.

In the above, one cannot say that the respondents did not have any material whatsoever with regard to the proposal of transfer. The letter of Director General of Anti Corruption

Bureau dated 22.6.2011 itself makes it clear the seriousness of

the conduct of the applicant and especially when the applicant had chosen not even controvert the same directly to the

Director General of Anti Corruption Bureau or even in the present proceedings. Ms. Mahajan had submitted that the applicant will controvert the same as and when show cause

notice is issued. It is rather strange that when serious

allegations were made by the Director General of Anti Corruption Bureau directly to the applicant still he has chosen till date not to respond to the same, except by writing a letter

dated 22/6/2011 to the Additional Chief Secretary (Home) praying that he should not be transferred wherein the conversation of the applicant with the Director General, ACB

on 21/6/2011 is also referred."

7. It is clear that in the first paragraph of the transfer order dated

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24/6/2011, the earlier transfer order dated 26/5/2011 has been cancelled. In

the second paragraph, though the Tribunal did not agree in the impugned

order that the transfer order dated 24/6/2011 was punitive, it is abundantly

clear from the wording itself that the petitioner came to be transferred on

account of the alleged complaints and on considering his behaviour. The

punitive nature is writ large in the second para of the said order. Para 1 and

2 of the impugned transfer order read as under:-

"lanHkZ dz-1 ;saFkhy vkns'kkUo;s Jh-cSty Ikksyhl vf/k{kd ,-lh-ch-ukf'kd ;k inko#u

iksyhl mik;qDr] Bk.ks 'kgj ;k inkoj >kysyh cnyh jn~n dj.;kr ;sr vkgs-

2- Jh-cSty ;kaP;kfo#/n 'kklukdMs izkIr >kysY;k rdzkjh o orZ.kqd fopkjkr ?ksÅu

iz'kkldh; dkj.kkLro 'kkldh; drZO;s ikj ikMrkauk gks.kk&;k foyackl izfrca/k dj.;klkBh

vf/kfu;e 2005 e/khy rjrqnhuqlkj egkjk"Vª iz'kkldh; U;k;kf/kdj.kkus fn-30-05-2011 jksth

fnysys vkns'k fopkjkr ?ksÅu Jh-cSty ;kaph iksyhl vf/k{kd ,-lh-ch-ukf'kd ;k inko#u iksyhl

mik;qDr] Bk.ks 'kgj ;k inkoj iqufoZpkjkarh iqu% cnyh dj.;kr ;sr vkgs- "

8. It was submitted before the Tribunal that the transfer order

dated 24/6/2011 was punitive in nature, was founded on the alleged

complaints received against the petitioner, though all these complaints were

on record before the first transfer order dated 26/5/2011 issued and the

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petitioner was not given any opportunity to explain or submit his say on

any of these complaints. By relying upon the decision of the Supreme

Court in the case of Somesh Tiwari vs. Union of India [(2009) 2 SCC 592],

it was submitted on behalf of the petitioner that before the transfer order

was issued, the complaints were required to be enquired into and in the

absence of such an exercise, the transfer order suffered from malice. It was

also pointed out that the subsequent report dated 22/6/2011 made by the

Director General of ACB could not have been considered, unless the

petitioner was called upon to submit his explanation. It was also pointed

out that on 26/2/2011 the petitioner had also submitted a representation to

the Additional Chief Secretary - Home, Government of Maharashtra and

the same was not considered when the file was put up before the Chief

Minister as the Competent Authority for issuance of the special transfer

order under Section 4(5) of the Transfer Act.

9. On behalf of the State Government, it was submitted that the

transfer order dated 24/6/2011 did not suffer from any infirmities, leave

alone malice, there were specific complaints received against the petitioner,

those were taken into consideration along with the report submitted by the

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Director General, ACB and it was thought fit to shift the petitioner from his

present post and post him as the Deputy Commissioner of Police, Thane.

The fresh transfer order was passed after duly taking into account various

factors and circumstances and more particularly the complaint date

3/2/2011 of Dr. Nikhil Gupta, Director of the Maharashtra Police Academy

and one anonymous complaint addressed to Shri Anna Hazare and the

report dated 22/6/2011 submitted by the Director General of ACB. It was

also submitted that the entire file, after it was cleared by the Minister for

Home, was placed before the Chief Minister on 26/3/2011 and as the

Competent Authority under Section 4(5) of the Transfer Act, the Chief

Minister granted his approval for the fresh transfer and consequent thereto,

the order dated 24/6/2011 came to be issued. The earlier order dated

26/5/2011 did not specify any reasons except saying that it was issued

for administrative reasons and, therefore, the Government reconsidered the

petitioner's case on the liberty granted by the Tribunal by its interim order

dated 30/5/2011 and after being satisfied with the material on record, fresh

transfer order has been issued by cancelling the earlier order. It was also

urged that the complaints, so received, prima facie, indicated that it was

undesirable to continue the petitioner in the post of Superintendent of

Police, ACB, Nashik and, therefore, he has been transferred to Thane.

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There is no illegality in the fresh order of transfer and it was not necessary

to enquire into the complaints received against the petitioner before the

transfer order was issued. In this regard the learned Senior Counsel for the

State relied upon the decision in the case of Union of India vs. Janardhan

Debanath and ors. [AIR 2004 SC 1632]. The Tribunal accepted the

submissions of the State Government while dismissing the challenge to the

fresh transfer order.

10.

We are, therefore, required to consider whether the order

passed by the Tribunal calls for interference. It is well settled that transfer

of a government servant is an incident of service and the courts should not

interfere with such transfer orders, ordinarily. A government servant

holding a transferable post has no vested right to continue at a particular

posting or at one place or the other. However, in the State of Maharashtra

the transfer orders are governed by a special statute i.e. the Transfer Act

and if the procedure, as set out in the said Act, is not followed while issuing

the transfer order, such order would be unsustainable. Similarly, if an order

of transfer suffers from malice or if it has been issued by way of

victimization or by way of a penal action, the court would be justified in

setting aside such orders. In the case of National Hydro-electric Power

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Corporation Ltd. Vs. Bhagwan [AIR 2001 SC 3309], the Supreme Court

held that unless an order of transfer is shown to be an outcome of mala fide

exercise of power or stated to be in violation of statutory provisions

prohibiting any such transfer, the courts or the tribunals cannot interfere

with such orders, as though they were the appellate authorities substituting

their own decision for that of the management. On the point of malice as

the ground to interfere with the order of transfer, the Supreme Court in

Somesh Tiwari's case (Supra) stated, inter alia, thus,

"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 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

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in lieu of punishment, the same is liable to be set aside being wholly illegal."

11. It was submitted by Mr. Dada, the learned Senior Counsel for

the petitioner, while reiterating the arguments advanced before the Tribunal

that the petitioner was victimized, the so called complaints against him

were got up, they were not enquired into and on the other hand, some

fictitious record was prepared to condemn the petitioner. Mr. Dada referred

to the track record of the petitioner from the time he has been posted as the

Superintendent of Police, ACB, Nashik as stated in the representation dated

22/6/2011 submitted by the petitioner to the Additional Chief Secretary,

Department of Home. The petitioner had conducted 78 successful raids in

the year 2009 and in the year 2010 he had conducted 146 such raids on the

public servants. Out of these 146 raids, six of the officers caught in the

trap were of the rank of Deputy Collectors, 15 were of Class - I, 22 were

of Class - II and 121 were of Class - III. 138 of these Government officers

came to be suspended from service. It was further submitted that on

account of these raids conducted by the petitioner, false and anonymous

complaints came to be filed and they have been acted upon, which is not

permissible as per the law laid down from time to time by the Supreme

Court and more particularly on account of the directions issued in the case

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of Prakash Singh and ors. vs. Union of India and ors. [(2006) 8 SCC 1].

12. Regarding the report dated 22/6/2011 submitted by the

Director General, ACB to the State Government on 21/6/2011, it is pointed

out that a trap was laid on the Chief Executive Officer of Srigonda

Municipal Council while accepting an amount of Rs.45,000/- from a

contractor and the raiding party was led by Shri Sahane, Police Sub

Inspector and on the same day the petitioner around 4.30 p.m. reported to

the Director General - ACB telephonically. The petitioner informed on

phone that the power of attorney of the contractor or the person acting on

behalf of the contractor was an essential document and, therefore, the

raiding officer was looking for such a document. On this the Director

General got annoyed and said on phone, "You made a false trap. You have

messed up the entire trap and now you want to have a back dated power of

attorney. What bloody non sense you are talking." The petitioner tried to

explain that he was not suggesting to prepare a back dated power of

attorney and was only trying to inform the Director General that the raiding

officer was asked to look for the power of attorney granted earlier and it

was a necessary document. The petitioner also objected strongly to the

word "bloody" used by the Director General who did not expect such a

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reply and, therefore, he made a report purportedly on 22/6/2011 and

submitted to the Additional Chief Secretary. It was also pointed out that

the said report which has been heavily relied upon by the Tribunal is one

sided story and that too under a strong annoyance and unless the petitioner

was called upon to explain his side, it could not have been acted upon or

considered even as a material for issuing the fresh transfer order. It was

further pointed out that on 21/6/2011 itself the petitioner addressed a letter

to the raiding officer and submitted a detailed representation on 22/6/2011

to the Additional Chief Secretary. Mr.Dada referred to the endorsement

made by the Director General, ACB in his report dated 22/6/2011, which

reads as under:

"The government may kindly take serious note of the conduct of this officer in encouraging creating of false record in the investigation of cases. In the light of the facts mentioned above it

is undesirable to continue him in the ACB as his conduct is not conducive to impartial, balanced and honest investigation of cases in the Bureau and hence it is strongly recommended that he should

be transferred out of the Bureau immediately. It is also further recommended that this officer may not in future be given any assignment which involves investigation of important cases like the crime branch, CID etc."

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It was submitted that the said endorsement has virtually condemned the

petitioner even without being heard. It was acted upon by the Addl. Chief

Secretary (Home), Maharashtra State, Mantralaya, Mumbai in his note

submitted to the Chief Minister. Mr.Dada referred to the Government

Resolution dated 25th July 2008 issued in obedience of the directions issued

by the Supreme Court in Prakash Singh's case (Supra) and submitted that

unless the report dated 22/6/2011 was investigated by a committee headed

by a retired Judge of this Court, it could not have been acted upon or even

used in support of the transfer order issued under Section 4(5) of the

Transfer Act. It was also submitted that when the second transfer order

dated 24/6/2011 was issued, the State Government did not refer the report

dated 22/6/2011 either to the Police Establishment Board or to the

committee headed by a retired Judge of this Court and in any case unless

the Police Establishment Board recorded its opinion on the said complaint

or even otherwise on the transfer of the petitioner, the impugned fresh

order of transfer is illegal and suffers from malice in law.

13. Mr.Dhond, the learned Senior Counsel submitted that the first

transfer order dated 26/5/2011 was a general transfer order covering 74

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police officers and it could not be said that the petitioner was picked up

and victimized. It was also submitted that out of 74 police officers, 55

were transferred as special cases under Section 4(5) of the Transfer Act and

they were not the general transfers made after a tenure of three years. In

any case on account of the order passed by the Tribunal on 30/5/2011, the

transfer order was withdrawn. The complaints received against the

petitioner were considered and a detailed report was placed before the

competent authorities as stated in Section 4(5) of the Transfer Act and the

Government was of the opinion that a special case was made out for the

transfer of the petitioner from the post of Superintendent of Police, ACB,

Nashik and, therefore, the fresh transfer order was issued cancelling the

first transfer order and issuing a fresh transfer so as to post the petitioner in

an equivalent post at Thane. The procedure as required under Section 4(5)

of the Transfer Act has been fully complied with, elaborate reasons are

seen on the notings in the files which were submitted before the competent

authorities. The behaviour of the petitioner was such that it was desirable

to transfer him and post him somewhere else and this opinion formed by

the State Government does not suffer from any malice. The nature of the

complaints as well as the report submitted by the Director General, ACB

has been taken into consideration and a prima facie material being

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available on record the petitioner has been transferred and there is no

reason to hold that he has been punished by the fresh transfer order.

Mr.Dhond emphasised on the complaint by Dr. Gupta made on 17/2/2011

as well as the report dated 22/6/2011 submitted by the Director General of

ACB in support of his contentions that the order passed by the Tribunal

does not call for any interference and the Tribunal has recorded its

satisfaction with the second transfer order and the same did not suffer from

any illegalities. Mr.Dhond also urged that the complaints will be duly

investigated and as of now it could not be said that the petitioner has been

punished without investigating into the complaints against him. Our

attention was invited to the correspondence from the Home Ministry so as

to suggest that the complaints were under investigation and the reports

were called from the concerned authorities.

14. In the case of Prakash Singh (Supra), the Supreme Court

directed, inter alia, as under:

"Police Establishment Board (5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below

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the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body

comprising the Director General of Police and four other

senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The

Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of

Superintendent of Police, and the Government is expected

to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of

appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions / transfers / disciplinary proceedings or their

being subjected to illegal or irregular orders and generally

reviewing the functioning of the police in the State."

Following the above directions the State of Maharashtra, as

noted earlier, has issued two different Government Resolutions on 25th July

2008. By one GR the State Government constituted the Police

Establishment Board at the State, Regional and Commissionerate levels.

The Police Establishment Board at the State level with which were are

concerned is headed by the Director General of Police with other four

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senior officers as members. By the second GR the State Government has

constituted the State Level Police Complaint Authority (SLPCA) to be

headed by a retired Judge of this Court or a retired Police Officer who had

held a post in the rank of Director General of Police or the retired Chief

Chief Secretary / Additional Chief Secretary / Principal Secretary in the

State Government. Out of the other three members, Secretary to the State

Government also finds his place along with an eminent person appointed

by the State Government. ig The Additional Director General of Police

nominated by the State Government functions as the Member Secretary.

However, as per the oral instructions received by Mr.Dhond, though the

GR dated 25th July 2008 has been issued constituting the complaints

authority, the said authority has not yet been constituted, in fact. This is

shocking to say the least.

15. The State Government's decision to issue the second transfer

order under Section 4(5) of the Transfer Act is based, as has been noted by

the Tribunal, on the complaint submitted by Dr. Nikhil Gupta, one

anonymous complaint addressed to Shri Anna Hazare and more

importantly the report submitted by the Director General, ACB on

22/6/2011. The file notings, copies of which have been placed before us do

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indicate that when the file was placed before the Chief Minister on

23/6/2011 the report submitted by the Director General, ACB was on

record and the Additional Chief Secretary noted in his submissions as

under :

"DG anti-corruption ;kauh Sri Baijal uk record falsify dj.;klaca/kh let nsmu i= fnys vkgs o R;kaP;k conduct oj rhzo

ukilarh O;Dr dsyh vkgs- R;ko#u Jh- cSty g;kaph orZ.kqd y{kkr ;srs-

vko';d vkgs-"

Eg.kwu R;kauk anti-currouption e/kqu shift dj.ks

16. So far as the first complaint i.e. from Dr. Nikhil Gupta is

concerned the incident which was the subject matter of that complaint had

taken place on 1/10/2010 at Nashik and it concerned his wife who is a

Medical Officer. Immediately after the incident the petitioner submitted

his written report to the Police Commissioner, Nashik City with copies to

the Director General, ACB, Deputy Director Health Services, Nashik and

Civil Surgeon, Nashik. On 1/11/2010 the Police Commissioner, Nashik

sent his report to the Deputy Director, Health Services, Nashik clearly

stating that Dr. Mrs. Gupta was at fault and in discharge of her duties, she

was negligent. On 21/1/2011 the Deputy Director, Health Services, Nashik

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Region addressed a letter to the Police Commissioner, Nashik pointing out

that the Police Commissioner was the Disciplinary Authority and

Dr.Shalini Gupta be issued a minor punishment order. This letter was

received by the Commissioner of Police on 24/1/2011. It is only thereafter

that Dr. Nikhil Gupta submitted his report / complaint dated 17/2/2011. In

our opinion and having regard to the report submitted by the Commissioner

of Police, Nashik and the letter of the Deputy Director, Health Services,

Nashik dated 21/1/2011, Dr. Nikhil Gupta's complaint could not form any

material to hold against the petitioner. The Tribunal did not consider the

report submitted by the Police Commissioner, Nashik on 1/11/2010 and the

letter of the Deputy Director of Health Services, Nashik to the Police

Commissioner dated 21/1/2011.

So far as the anonymous complaint addressed to Shri Anna

Hazare is concerned, the complainant has written his name as Dr. ACP and

such anonymous complaints could not be acted upon per se. In addition

the complaint was not addressed to any authority in the State Government

though a copy of the same might have been circulated to such authorities

and in any case both these complaints were before the State Government

even prior to the first transfer order being issued on 26/5/2011. The record

also indicates that these complaints were only taken into consideration so

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as to support the second transfer order which is mainly based on the report

dated 22/6/2011 submitted by the Director General, ACB who is presently

the Director General of Police, Maharashtra State.

17. It is not in dispute that when the second transfer order was

issued on 24/6/2011, there was no reference made to the Police

Establishment Board so as to invite its decision / recommendation as is

expected as per the GR dated 25th July 2008 and so as to comply with the

directions issued by the Supreme Court in Prakash Singh's case. Even the

report dated 22/6/2011 submitted by the Director General, ACB was not

placed before the Police Establishment Board or before the State

Complaints Authority, therefore, none of these complaints or the report

dated 22/6/2011 could be considered or relied upon while issuing the

second transfer order in exercise of the powers under Section 4(5) of the

Transfer Act. The Tribunal appears to have been overwhelmed by the

report dated 22/6/2011 submitted by the Director General, ACB against the

petitioner and the same has been reproduced in extenso in the impugned

order. The Tribunal's attention was not invited or the GRs dated 25th July

2008 were not placed before it so as to point out that unless the procedure

set out in the said Resolutions was followed, the complaints could not be

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acted upon or taken into consideration for transferring the petitioner and in

any case the entire issue was required to be referred to the Police

Establishment Board so as to seek its opinion on the transfer of the

petitioner and this would be in compliance with the directions of the

Supreme Court in Prakash Singh's case. This is a serious error which

appears on the face of the impugned order passed by the Tribunal. The

Tribunal was not right in holding that the petitioner did not respond to the

allegations made by the Director General, ACB. In fact the petitioner's

representation dated 22/6/2011 deals with the said allegations and states

that they were ill-founded.

18. Section 4(5) of the Transfer Act saves the State Government's power

to transfer a Government Officer in exceptional circumstances or for

special reasons, both in the interest of the administration as well as the

career of the officer concerned. However, the power which is required to

be exercised in exceptional cases cannot be exercised as a matter of rule.

We are surprised to note that out of the 74 police officers transferred by the

order dated 26/5/2011, 55 of them were claimed to have been transfered as

special cases under Section 4(5) of the Transfer Act and thus the special

transfers which are exceptions, became the rule and thereby the intention

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of the Transfer Act is completely defeated. The Transfer Act has assured a

tenure of three years ordinarily, to the Government Servants and it could be

cut short only in exceptional or special circumstances as contemplated

under Section 4(5) of the Transfer Act. If a Government Officer tries to be

assertive about his rights or self respect that itself cannot be treated as a

deviant behaviour, branding him as unacceptable or undesirable officer in

the concerned department and in any case such an assertion cannot be a

basis for invoking the exceptional powers under Section 4(5) of the

Transfer Act. The report dated 22/6/2011 required further enquiry and that

could be done only by the SLPCA headed by a retired Judge of this Court.

The petitioner has his own story and the report dated 22/6/2011 makes out

a contrary version. Even the complaint submitted by Dr. Gupta was

enquired into and Shri Ramrao Wagh, Additional Director General, ACB in

his report dated 14/7/2011 stated that the incident of 1/10/2010 and the

complaint dated 17/2/2011 submitted by Dr.Nikhil Gupta had arisen due to

inter office interactions between the two officers and the issue deserved a

quiet closure. The Supreme Court in the case of Prakash Singh issued

directions so as to protect the efficient, honest and upright police officers

and to ensure that they are allowed to discharge their duties in a

professional manner and without undue interference from the executive.

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The Supreme Court emphasised on the imperative need to allow the police

officers to work fearlessly while discharging their duties and therefore

directed that measures be undertaken to protect them. The Government of

Maharashtra has in due compliance of the said directions set up the

mechanisms and unless the procedure laid down under the GRs dated 25th

July 2008 is followed, the Police Officers' transfer cannot be effected

even though they are claimed to be the special transfer orders. In the

instant case the report dated 22/6/2011 could not have been considered

unless it was referred to the SLPCA more so when the said report has

virtually disqualified the petitioner from being a part of the Anti Corruption

Bureau or CID at any time in future. The State Government has

considered the said report as material sufficient to exercise the powers

under Section 4(5) of the Transfer Act when the original application was

still pending and without there being any opportunity to the petitioner to

submit his explanation. As held by the Supreme Court in Janardhan's case

(Supra) the transfer order which is based on the complaints not enquired

into suffers from malice in law as it amounts to a punitive order and,

therefore, calls for interference by the Courts. In our considered opinion,

the Tribunal in this case erred seriously and, therefore, the impugned order

of the Tribunal is unsustainable. It is required to be noted that when a

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special transfer order under Section 4(5) of the Transfer Act is issued

against a Police Officer, the challenge to it has to be examined not only on

the procedural requirements under the said Act but also and at the first

instance on the basis of the directions issued in Prakash Singh's case

(Supra).

19. In the premises we quash and set aside the impugned order

passed by the Tribunal in Original Application No.556 of 2011. In the

normal course the transfer order impugned before the Tribunal i.e. the

order dated 24/6/2011 could have been set aside by us but we are not

inclined to do so in the peculiar facts and circumstances and the subsequent

developments in this case. The petitioner has reported at the new posting

on 11/7/2011 and respondent no.3 has taken charge of the post of

Superintendent of Police, ACB, Nashik on or after 28/6/2011. Both of

them are discharging their respective duties. More importantly, during the

course of hearing of this petition we had suggested some via media and it

has been duly considered by the State Government so as to retain the

petitioner at Nashik but with some other establishment. The petitioner in

his representation dated 22/6/2011 submitted to the Additional Chief

Secretary has stated that he has already remitted the tuition fees of the

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children and it would be difficult to shift his headquarters midway in the

academic year. In addition, none of the complaints which have been relied

upon by the State Government could be considered against the petitioner

per se so as to shift him from ACB, Nashik. The State Government in its

revised proposal has indicated that the post of Deputy Director, Detective

Training Institute at Nasik which is in the rank of DCP is falling vacant on

1/1/2012 on superannuation of the present incumbent and the petitioner

could be offered the said post. This proposal has been approved by the

Chief Minister as well as is clear from the file placed before us. The

petitioner's family continues to be at Nashik while he is at Thane. In our

view, the interest of the petitioner as well as the administration would be

better served if the petitioner is appointed to the post of Deputy Director,

Detective Training Institute, Nashik with effect from 1/1/2012 as proposed

by the State Government and he should continue in the present post i.e.

DCP, Thane till 31/12/2011. We have noted down the assurance given to

us by the State Government that the petitioner will be issued the posting

order at Nashik so as to take over the charge of the post of Deputy

Director, Detective Training Institute at Nashik with effect from 1/1/2012

and such an order would be issued on or before 31st December 2011. The

petitioner also has shown his willingness to report at Nashik from 1/1/2012

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in the said post.

20. Hence, this petition succeeds partly. The impugned order

passed by the Tribunal in Original Application No.556 of 2011 is hereby

quashed and set aside. However, it is directed that the petitioner will

continue as DCP, Thane till 31/12/2011 and he will be issued a fresh order

appointing him as the Deputy Director, Detective Training Institute at

Nasik with effect from 1/1/2012 and the said posting order shall be issued

to him on or before 31/12/2011. We make it clear that none of the

complaints that were relied upon in the impugned order by the Tribunal

shall form part of the petitioner's service record unless the said complaints

are enquired into by the SLPCA, to be headed by a retired Judge of this

Court and Mr. K.S. Subramanian - the present DGP shall not be a member

of the said authority.

21. The petition is partly allowed and the Rule is made absolute

accordingly, but without any order as to costs.

    (SMT.NISHITA MHATRE, J.)                          (B. H. MARLAPALLE, J.)