Dinen Kumar Pegu vs The State Of Assam And 3 Ors
2021 Latest Caselaw 262 Gua

                                                              Page No.# 1/6

GAHC010012642021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/154/2021




         DINEN KUMAR PEGU
         S/O LATE DAULAT PEGU
         R/O BAROHOLIA
         P.O. TEZPUR
         DIST. SONTIPUR
         ASSAM.


          VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
         ASSAM
         TRANSPORT DEPTT.
         DISPUR
         GUWAHATI 6

         2:THE COMMISSIONER OF TRANSPORT

         ASSAM
         JAWAHAR NAGAR
         KHANAPARA
         GUWAHATI 22
         3:ADIL KHAN
         IAS
         COMMISSIONER OF TRANSPORT
         ASSAM
         PARIBAHAN BHAWAN
         JAWAHAR NAGAR
         KHANAPARA
         GUWAHATI 22
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             4:THE DIST. TRANSPORT OFFICER

         SONITPUR
         TEZPUR
         ASSAM.
         ------------
         Advocate for : MR. B J TALUKDAR
         Advocate for : SC
         TRANSPORT appearing for THE STATE OF ASSAM AND 3 ORS



                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                           ORDER

28.01.2021

1. Heard Mr. B.J. Talukdar, learned counsel appearing for the writ petitioner. Also heard Ms. M.D. Borah, learned standing counsel appearing for the Transport Department as well as Mr. S.K. Talukdar, learned counsel appearing for the respondent No.3.

2. The challenge in the writ petition is to the order of transfer dated 10.12.2020 issued by the Commissioner of Transport Department, Assam, by which the petitioner has been transferred from the office of the District Transport Officer, Sonitpur, Tezpur to the office of the District Transport Officer, Dhubri.

3. The petitioner's case in brief is that he is a Senior Assistant, who was transferred to the office of the DTO, Sonitpur, Tezpur from the office of the DTO, Jorhat on 28.02.2019. Pending a departmental enquiry, the petitioner was suspended on 11.09.2020. The petitioner approached this Court by way of WP(C) No. 3925/2020, whereby the suspension order dated 11.09.2020 was stayed vide order dated 06.10.2020. Consequently, the suspension order was revoked by the Commissioner of Transport vide order dated 11.09.2020.

4. The petitioner's counsel submits that the impugned transfer order dated 10.12.2020 has been made by the respondent No. 3 due to malafides. He also Page No.# 3/6

submits that the transfer order is against the Government transfer policy, which requires that if a Government employee is to be transferred, prior to completion of 3(three) years tenure of posting in a particular place, proper justification and grounds for the transfer have to be recorded in writing and the approval of the Chief Minister has to be taken. However, the same has not been done in the present case. He further submits that the petitioner's wife is a cancer patient and in this respect, he has referred to the concession certificate dated 06.03.2010 issued by the Christian Medical College, Vellore, which shows the age of the patient to be 41 years, with hospital No. 992515A.

5. The petitioner's counsel further submits that malafides is writ large on the face of the transfer order, which shows that only the petitioner has been transferred from the office of the DTO, Sonitpur, Tezpur to the office of the

DTO, Dhubri, without any 3rd party being mentioned, to replace the petitioner in the office of the DTO, Sonitpur. He accordingly submits that the transfer letter dated 10.12.2020, by which the petitioner has been transferred should be set aside.

6. Ms. M.D. Borah, learned Standing Counsel for Transport Department submits that transfer is an incident of service and as per judgments of this Court and the Apex Court, particularly in the case of " S.C. Saxena -vs- Union of India & Ors, reported in 2006 9 SCC 583", the Apex Court has held that a Government employee cannot disobey the transfer order by not reporting at the place of posting and then go to a Court to ventilate his grievance. It is his duty to first report for work where he is transferred and thereafter make a representation as to what may be his personal problems. This tendency to not report at the place of posting and indulging in litigation needs to be curbed.

7. The Standing Counsel for the Transport Department further submits that there is a departmental proceeding pending against the petitioner and keeping in view Chapter II Clause 2.1.4 of the manual of departmental proceedings and the judgment of the Apex Court in the case of "Ajay Kumar Choudhury -vs- Union of India & Ors, reported in 2015 7 SCC 291", the Government is free to Page No.# 4/6

transfer the concerned person to any of it's offices within or outside the State, so as to sever any local or personal contact that he may have in connection with the department proceeding.

8. Ms. M.D. Boarh, learned Standing Counsel further submits that the concession certificate dated 06.03.2010 issued by the Christian Medical College, Vellore, wherein it is reflected that the petitioner's wife is 41 years of age and is a cancer patient, has been over-written, inasmuch as, the said certificate has been used by the petitioner's wife to pray for stay of transfer orders against the petitioner earlier. The standing counsel thus prays for dismissal of the writ petition as the petitioner has not come to Court with clean hands. The standing counsel for the Transport Department further submits that during the entire service period of the petitioner from 22.03.1996 to the present day, the petitioner has been transferred out of the office of the DTO, Sonitpur on promotion only on 14.03.2018. He was thereafter attached to the office of the DTO, Sonitput, one month later, i.e. on 20.04.2018 and subsequently, transferred to the office of the DTO Sonitpur on 28.02.2019. Accordingly, the petitioner has worked outside the office of the DTO, Sontipur during his entire service period, for only one month.

9. Mr. S.K. Talukdar, learned counsel for the respondent No. 3 submits that the transfer of the petitioner has not been done by way of any colourable exercise of power. He submits that the petitioner has not been able to prove, by way of any cogent materials, that there has been any malafide involved in the transfer of the petitioner. He further submits that the transfer of the petitioner has been done in public interest. He also submits that the Apex Court in the case of "Indian Railway Construction Company Ltd. -vs- Ajay Kumar, reported in 2003 4 SCC 579", has held that the petitioner has to establish that abuse or misuse of authority had taken place to invalidate or nullify any act or order. The Apex Court further held that while allegation of malafides are more often easily made than proved, Courts should be slow to draw dubious inferences from incomplete facts and which cannot be established.

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10. At this stage the petitioner's counsel submits that the departmental proceeding is being held against the petitioner in Guwahati, even though the alleged cause of action arose in Sonitpur.

11. I have the learned counsels for the parties.

12. As can be seen from the submissions made by the counsels for the parties, various issues with regard to the impugned transfer order dated 10.12.2020 has been raised. However, the submission made by the standing counsel for the Transport Department with regard to the allegation that the concession certificate dated 06.03.2010 issued by the Christian Medical College, Vellore, had been over written needs to be clarified. In this respect, the official records are perused by this Court and it is found that the same concession certificate, which is a part of the writ petition, i.e. Annexure-E has been submitted by the petitioner's wife to the respondent authorities on three different occasions. The first time it was submitted was in the year 2007 and the next occasion was in the year 2013 and the third time the same has been submitted by the writ petitioner in this writ petition. In the year 2007, when it was submitted, the same concession certificate carried the date 06.03.2007, the second time it was submitted in the year 2013, the certificate carried no date. In the present writ petition the same certificate carries the date 06.03.2010. The fact that all the three certificates are the same is very clear from the age of the patient as reflected in the certificates, besides the handwriting etc. The age of the patient in all the three certificates shows the age of the patient to be 41 years. A bare perusal of the certificate issued on 06.03.2007 and 06.03.2010 also shows that all the fiqures on the dates are similar except for "07" and "10". The above facts would show that the petitioner has not come to Court with clean hand.

13. In the case of "K.D. Sarma -vs- Steel Authority of India Ltd. and Ors, reported in 2008 12 SCC 481", the Apex Court has held that the party who invokes the extra ordinary jurisdiction under Article 226 of the Constitution is supposed to be truthful, frank and open. He cannot be allowed to play "hide and seek" or "pick and chose" facts. If material facts are suppressed or distorted, the very Page No.# 6/6

functioning of the writ Courts would become impossible. The Court in order to protect itself has the inherent power to prevent the abuse of its process and to discharge rule nisi and refuse to proceed further with the examination of the case on merits. The Apex Court further held that if the Court does not reject the petition on that ground, the Court would be failing in its duty.

14. In view of the law laid down by the Apex Court in K.D. Sarma, Supra, this Court is not inclined to proceed further with examination of this case on merit.

The writ petition is accordingly dismissed.

15. Interim order passed earlier stands vacated. However, the petitioner is given the liberty to file an application for reconsideration of the impugned transfer order after he joins his new place of posting.

JUDGE

Comparing Assistant