Himachal Pradesh High Court
Mandi vs State Of on 17 December, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 17th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION NO. 7741 OF 2021
Between:-
ABOUT
r 48 to
JEEVAN DASS SON OF HARI RAM
AGED YEARS,
RESIDENT OF VILLAGE KANGAR,
POST OFFICE CHAMBI, TEHSIL
SUNDERNAGAR, DISTT. MANDI,
H.P. WORKING AS OPERATION
THEATRE ASSISTANT IN CIVIL
HOSPITAL JANJEHALI, DISTT.
MANDI, H.P.
...PETITIONER
(BY SH. K. B. KHAJURIA AND SH.
PEVINDER KUMAR, ADVOCATES)
AND
1. STATE OF H. P. THROUGH
SECRETARY (HEALTH) TO THE
GOVT. OF H.P. SHIMLA.
2. DIRECTOR, DEPARTMENT OF
HEALTH SERVICES, HIMACHAL
PRADESH, 171001, SHIMLA.
3. SHASHI BALA, CHAIRPERSON
STATE COOPERATIVE
AGRICULTURE & RURAL
DEVELOPMENT BANK LTD.
KASUMPATI, SHIMLA-9.
...RESPONDENTS
(SH. AJAY VAIDYA, SR. ADDL,
A.G., FOR RESPONDENTS-STATE).
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2
This Petition coming on for order this day, Hon'ble Mr. Justice
Tarlok Singh Chauhan, passed the following:-
.
ORDER
Aggrieved by the order of transfer, the petitioner has
filed the instant petition for the grant of following substantive
relief:-
i. That in view of the facts and circumstances mentioned
hereinabove in this writ petition, the writ petition may
kindly be allowed and the impugned order dated
29.11.2021 (Annexure P-1) may kindly be quashed and
set aside.
2. It is not in dispute that the transfer of the petitioner
from Civil Hospital, Janjehli, Distt. Mandi to IGMC, Shimla was
effected pursuant to approval received from the competent
authority on complaint basis alongwith copy of the complaint
filed by female staff members of Civil Hospital, Janjehli, against
the behaviour of the petitioner. It is also not in dispute that the
copy of the complaint was sent to the Chief Medical Officer,
Mandi, for fact finding inquiry and report in this regard is still
awaited.
3. Now, the moot question is whether in the given
circumstances the petitioner could have been transferred without
awaiting the inquiry report only as a pretense to get rid off the
petitioner.
4. The order of transfer cannot be passed in view of
punishment and this question has been considered in detail by a
.
Devision Bench of this Court in the judgment authored by one of
us (Justice Tarlok Singh Chauhan, J.) in Raj Kumar vs. State of
H. P. & Ors. 2015(1) HLR DB 567 wherein it was observed as
under:-
22. The learned Advocate General would, however,
contend that irrespective of the U.O. Note, the petitioner
cannot have any grievance with regard to his transfer
since there were numerous complaints against him and
therefore, the employer has acted well within its rights to
transfer such an employee.
23. We are afraid that this submission cannot be
countenanced because it only leads to one inference that
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 irrelevant ground i.e. on
the allegations made against the petitioner in the
complaints. It is one thing to say that employer is entitled
to pass an order of transfer in administrative exigency but
it is another thing to say that 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. (Ref: Somesh Tiwari
vs. Union of India and others (2009) 2 SCC 592).
24. There is yet another reason why the aforesaid
submission of the respondents cannot be accepted. In
terms of the judgement passed by this court in Amir
Chand's case (supra), the complaints as alleged to have
been received against the petitioner by the respondents
from various representatives were required to be sent to
the head of the administrative department, who in turn
.
was required to verify the same and if after associating
the petitioner, the complaints were found to be true then
alone could the petitioner have been ordered to be
transferred. Admittedly, this exercise has not been
undertaken by the administrative department i.e. the
respondents herein. Therefore also the order of transfer
cannot be sustained having been passed capriciously and
arbitrarily.
25. If the petitioner has been indulging in any conduct not
befitting his office and contrary to public interest, the
respondents authority should have conducted an inquiry
and imposed appropriate penalty as would be permissible
under the rules. But then the transfer at the behest of the
members of the public without any inquiry is not only
against the interest of the concerned government servant
but is also against public interest. It tends to destroy the
morale of government servant and the same is otherwise
illegal. Such a transfer can not get the seal of approval
from this court.
5. In view of the aforesaid discussion and for the
reasons stated above, we find merit in this petition and the same
is accordingly allowed. Consequently, the impugned transfer
order dated 29.11.2021 (Annexure P-1) is quashed and set aside.
However, before parting, we make it absolutely clear that this
order shall have no bearing whatsoever on the fact finding
inquiry that has to be conducted by Chief Medical Officer, Mandi
and the Chief Medical Officer, Mandi shall hold the inquiry
without being influenced, in any manner, by this order.
.
6. The petition stands disposed of in the aforesaid
terms, so also pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
17 th
December, 2021
(sanjeev)
r to (Satyen Vaidya)
Judge
