Bombay High Court
Ravindrasingh Rakhasingh Dhunne vs The State Of Maharashtra And ... on 12 August, 2016
Bench: S.S. Shinde
10867.2015WP.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10867 OF 2015
Ravindrasingh s/o Rakhasingh Dhunne,
Age: 48 years, Occu.: Service
(Assistant Police Inspector),
R/o. Sonkhed, Taluka Loha,
District: Nanded. PETITIONER
ig (Original Applicant)
VERSUS
1. State of Maharashtra,
Through its Secretary,
Home Department,
Mantralaya, Mumbai-400 032.
2. The Special Inspector General of Police,
Nanded Division, Nanded.
3. The Superintendent of Police,
Nanded, Taluka and Dist.Nanded
4. The Police Station Officer,
Sonkhed Police Station,
Taluka: Loha,
District Nanded. RESPONDENTS
(Orig. Respondent
Nos.1 to 4)
...
Ms.Peeti R. Wankhede, Advocate for the
petitioner.
Mr.S.D.Kaldate, AGP for respondent Nos.1 to 4
...
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10867.2015WP.odt
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CORAM: S.S.SHINDE &
SANGITRAO S.PATIL,JJ.
Reserved on : 01.08.2016
Pronounced on : 12.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
1. Heard.
2.
This Petition takes exception to the
impugned order dated 01.09.2015 passed by the
Maharashtra Administrative Tribunal Mumbai
Bench at Aurangabad in Original Application
No.206/2015 (for short 'MAT') and further
takes exception to the impugned order of
transfer of the petitioner dated 25.03.2015
issued by respondent no.3.
3. It is the case of the petitioner
that the petitioner entered in the service of
respondent no.1 on the post of Police
Constable in Aurangabad Range in the year
1985 and he was promoted to the post of
Police Sub-Inspector in the year 2000. The
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petitioner, while working as Police Sub-
Inspector, worked at various Police Stations
in different Districts viz. Bombay, Nagpur
and Nanded in the Maharashtra as Police Sub
Inspector up to 2011. On 21.10.2011, the
petitioner was again promoted to the post of
Assistant Police Inspector and was posted in
Aurangabad Range. Within a period of three
months, again on 03.01.2012, he was
transferred to Nanded Division, by order of
transfer issued by respondent no.2 and
respondent no.3 was instructed to allot the
place of posting to him. Accordingly, the
petitioner was given posting at Degloor in
Nanded District.
4. It is further the case of the
petitioner that within a period of 8 months,
respondent no. 3 again transferred the
petitioner to Gurudwara Protection Unit in
Nanded on 24.08.2012 and then on 22.10.2012,
26.06.2013, 06.08.2013, 13.08.2013 and
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22.09.2013 he was transferred under the garb
of deputation to various places. On
25.09.2013, the petitioner was again
transferred to Sonkhed in general transfer
orders.
5. It is further the case of the
petitioner that during the tenure at Sonkhed,
the petitioner's work was appreciated by
respondent no.3 many times. Respondent no.2
had also appreciated the petitioner for his
good and sincere work, by communication dated
01.09.2014. When the petitioner had completed
period of only one and half year on the said
post, again he was transferred from Sonkhed
to Police Control Room, Nanded on 25.03.2015.
Hence this Writ Petition.
6. The learned counsel appearing for
the petitioner submits that on many
occasions, the petitioner is transferred
under the garb of deputation. The transfer of
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the petitioner was mid-tenure and mid-term
transfer, without considering the provisions
of Section 22N of the Maharashtra Police Act.
It is further submitted that in view of the
provisions contained in Sections 4 (1) and 4
(4) of the Maharashtra Government Servants
Regulation of Transfers and Prevention of
Delay in Official Duties Act, 2005, the
transfer of Government servants are to be
effected only after completion of the
statutory tenure as prescribed in Section 3
and that too only once a year in the month of
April or May. As such, any transfer sought
to be effected before completion of the said
statutory tenure of three / six years, as the
case may be, and/or except the months of
April or May amounts to a mid-tenure and a
mid-term transfer. True it is that the
provisions contained in Sections 4 (4) (2)
and 4 (5) of the Transfers Act, permit the
Competent Authority to effect mid-term and
10867.2015WP.odt
mid-tenure transfers respectively, however, a
bare look at the said provisions establishes
that a specific and mandatory statutory
procedure is necessarily required to be
followed before effecting such mid-term and
mid-tenure transfers and unless and until the
same is followed, the transfer does not
become legal. In other words, for a mid-
tenure and/or mid-term transfer to be legal
the statutory procedure as prescribed in the
said Act is mandatorily required to be
followed failing which the action becomes
illegal.
7. It is further submitted that it is
explicitly and abundantly clear that the
petitioner is sought to be transferred and
posted out of his present office/Department
in mid-term and before completion of his
tenure of 3 years and by an authority not
competent to transfer. It is submitted that
in view of Section 22N (1) of the said Act,
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the petitioner is entitled to a tenure of 2
years on a post and the Competent Authority
to transfer the Assistant Police Inspector is
the State Government. Therefore, his
transfer, which is mid-tenure transfer and
not by the Competent Authority, deserves to
be cancelled.
8. It is submitted that the Maharashtra
Administrative Tribunal (for short 'MAT') has
not properly considered the relevant
provisions and the fact that the petitioner
has been transferred frequently in the past
by the respondents without any justifiable
reasons. The MAT ought to have appreciated
that the very purpose and intention of the
Legislature in introducing the Transfers Act
was to protect them from arbitrary and high-
handed actions of mid-term and mid-tenure
transfers.
9. It is further submitted that if the
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MAT was of the opinion that there were
complaints against the petitioner, which was
the reason for his frequent transfers, then
it was, in fact, required of the MAT to have
considered the issue regarding the
genuineness of the allegations as in none of
them neither the petitioner is held guilty by
any competent court of law nor most of them
were levelled before filing the Original
Application of the petitioner and it was not
proper and legal on the part of MAT to
observe that respondent no.3 was the
competent authority to consider the same and
transfer the petitioner.
10. The learned counsel appearing for
the petitioner pressed into service
exposition of law in the case of Somesh
Tiwari Vs. Union of India and others 1 and
submits that the order of transfer can be
passed in the administrative exigencies, but
1 (2009) 2 SCC 592
10867.2015WP.odt
an order passed by way of, or in lieu of the
punishment, being wholly illegal, is liable
to be set aside.
11. The learned counsel appearing for
the petitioner also invites our attention to
the averments in the rejoinder-affidavit to
the affidavit-in-reply and submits that the
Petition deserves to be allowed.
12. The learned AGP appearing for the
respondent - State relying upon the averments
in the affidavit-in-reply filed on behalf of
respondent no.3 submits that it is true that
the petitioner was transferred to Degloor
Police Station on 16.11.2011, but the
petitioner failed to perform his official
duty effectively and proceeded on medical
leave, without handing over the charge to any
of other Officers. Therefore, the then Sub
Divisional Police Officer, Shri S.B.
Suryawanshi, issued office order dated
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10.06.2012 to hand over the charge of crime
paper to the other Officer. Therefore, the
then Superintendent of Police, Nanded, Shri
V.N.Jadhav, temporarily deputed the
petitioner to the Police Control Room,
Nanded. During the attachment at Police
Control Room, Nanded, the petitioner was
deputed at Gurudwara Protection Unit (GPU),
Nanded and at Anti-Decoity Squad (Special
Branch), Nanded. During the said period, the
additional charge of Police Station, Limbgaon
and Ardhapur was also given to the petitioner
as an administrative arrangement. When the
petitioner was at Anti-Dacoity Squad (ADS),
Nanded, the office of the present respondent
received various complaints against
petitioner, not only this, but various times
present petitioner's conduct and working
style came to be questioned. Therefore,
considering the allegation against the
petitioner and petitioner's irresponsible
10867.2015WP.odt
behaviour, the respondent again issued the
order of deputation/deployment of the
petitioner and attached him to the Police
Control Room on 21.01.2013. Not only this,
the petitioner, during the deployment at ADS
(Anti Decoity Squad), committed serious
illegal acts, therefore, one crime has also
been registered against the petitioner with
Police Station Itwara, Nanded, vide Crime No.
115/2013, under Section 342, 323, 504, 506,
34 of IPC. During the investigation, the
Investigation Officer found sufficient
evidence against the petitioner. Therefore,
the Investigation Officer submitted charge
sheet against the petitioner, vide SCC No.
1284/2015 dated 29.06.2015.
13. It is further submitted that on
25.09.2013, the petitioner was deployed to
Police Station Sonkhed from the Police
Station Degloor, since his original posting
was at Police Station Degloor. It is
10867.2015WP.odt
specifically denied that the petitioner is
transferred from Sonkhed to Police Control
Room, Nanded. In fact, the petitioner was
deployed from the Police Station Sonkhed to
Police Control Room, Nanded as the complaints
against the petitioner regarding his conduct
and working style were received by the office
of respondent no.3. The allegations against
the petitioner, including threatening the
complainant in ACB case, his illegal
detention and causing mental and physical
torture to him in order to influence his
deposition as the complainant in an ACB case,
which incidentally was registered against a
Head Constable in the petitioner's Police
Station and who was allegedly quite close to
the petitioner. Therefore, being
administrative head, it was the duty of
respondent no.3 to protect the rights of the
complainant, therefore, the decision was
taken to depute the petitioner from Sonkhed
10867.2015WP.odt
Police Station to Control Room in the
interest of justice and on reasonable
administrative ground and to ensure the free
and fair trial of the said ACB case.
14. It is submitted that one Ramesh
Manikrao Dalve, r/o. Vadepuri, Taluka Loha,
District Nanded, made an application to the
office of respondent no.3 and alleged that
API Dhune, illegally abducted him and
detained in the custody, who is the
complainant of illegal gratification case
filed against the Constable Bashir of
P.S.Sonkhed, where the API Dhunne is incharge
of the Police Station, API Dhunne forced the
Ramesh Dalve to withdraw the ACB complaint
against suspended Police Constable Bashir.
As the allegation in the application was of
serious nature, respondent no.3 took
immediate cognizance and ordered thorough
enquiry into the matter and enquiry is handed
over to the Sub-Divisional Police Officer,
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Sub Division, Itwara, Nanded. For conducting
the free, fair and impartial enquiry and to
ensure the free and fair trial of the said
ACB case, it was warranted that the
petitioner Shri Dhunne should immediately be
deputed to another post, respondent no.3
issued order dated 25.03.2015. The learned
AGP further submits that all the allegations
made in the Petition are devoid of any
substance, therefore, the Petition may be
rejected.
15. The learned AGP appearing for the
respondent - State also invites our attention
to the affidavit-in-reply to the rejoinder-
affidavit filed on behalf of respondent no.3
and submits that the transfer of the
petitioner is not at the instance of any
political personality as alleged by the
petitioner and it was in the circumstances
stated in the affidavit-in-reply filed by
respondent no.3.
10867.2015WP.odt
16. We have considered the submissions
of the learned counsel appearing for the
petitioner and the learned AGP appearing for
the respondent - State. With their able
assistance, perused the pleadings in the
Petition, grounds taken therein, affidavit-
in-reply and additional affidavit-in-reply
filed by respondent no.3. We have carefully
perused the reasons assigned by the MAT, in
the light of the documents placed on record,
and we are of the opinion that the
observations made by the MAT that the
impugned order is not in the nature of
transfer, but the applicant has been deputed
at Head Quarter, Nanded from the Police
Station Sonkhed, appears to be in consonance
with the documents placed on record. The
Superintendent of Police is well within
jurisdiction to depute the subordinate
Officers within the Nanded District. The
another contention raised by the learned
10867.2015WP.odt
counsel appearing for the petitioner that the
mid-tenure and mid-term transfer is also
denied on merits. As already observed, the
petitioner is deputed at Head Quarters, and
therefore, the same is not the transfer as
contended by the learned counsel appearing
for the petitioner. The very nature of the
duties assigned to the Police Department
requires the services of the Police Personnel
to be rotated as per the requirement by the
Head of the District. Respondent no.3, in
his affidavit-in-reply/additional affidavit-
in-reply, has stated that there are
complaints received against the petitioner.
There is reference of one crime registered
against the petitioner and even the charge-
sheet is filed against the petitioner. We do
not wish to enter into the said aspect since
the proceedings are pending to that effect.
Suffice it to say that we do not see any mala
fide or arbitrary exercise of powers by
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respondent no.3.
17. We concur with the reasons assigned
and the conclusions reached by the MAT,
hence, the Writ Petition stands rejected.
Sd/- Sd/-
[SANGITRAO S.PATIL] [S.S.SHINDE]
JUDGE JUDGE
DDC
