Prabhash Chandra Gupta vs Registrar General
2023 Latest Caselaw 3197 Jhar

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           W. P. (S) No. 126 of 2023

         Prabhash Chandra Gupta, aged about 49 years, Son of Satish
         Chandra Gupta, Resident of C/o Sri Rameshwar Singh, Plot No.
         30A, New Alkapuri, Dibdih, P.O. & P.S. Doranda, District Ranchi
         (Jharkhand)                             ...    ...       Petitioner
                               Versus
      1. Registrar General, Jharkhand High Court Ranchi, Office situated at
         Jharkhand High Court Ranchi, P.O. & P.S. Doranda, District
         Ranchi
      2. Principal District and Sessions Judge, Khunti, office situated at
         Civil Court Compound, Khunti, P.O. & P.S. Khunti, District
         Khunti                            ...       ...        Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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06/28.08.2023

1. Heard Mr. Binod Singh, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the respondent No. 1.

3. This writ petition has been filed for the following reliefs: -

"i. For quashing of the order dated 02.01.2023 (Annexure 3, Page No. 29), issued by the Respondent No. 1, whereby and whereunder the petitioner has been transferred from Civil Court, Khunti to Sub Divisional Court, Rajmahal, Sahebganj.

ii. For quashing of the order dated 03.01.2023 (Annexure 4, Page No. 30), issued by the Respondent No. 2, whereby and where under the Respondent No. 2 has directed the Petitioner to handover the charge of his assignment to Sri Pramod Kumar Singh, Asst. Civil Court, Khunti and thereafter, proceed to join his new assignment (new place of posting) within15 days.

iii. For quashing of Order dated 13.01.2023, (Annexure 5, Page No.

31), issued by the Respondent No. 2, whereby the Petitioner has been relieved from the Khunti Judgeship with effect from afternoon of 16.01.2023.

iv. For any other appropriate Writ(s), direction(s), Order(s), for which the Petitioner may be found entitled in the facts and circumstances of the case."

4. The petitioner, a Group C employee posted at Civil Court Khunti is aggrieved by his order of transfer to Sub-Divisional Court, Rajmahal (Sahebganj). He has already been relieved from Khunti Judgeship with effect from afternoon of 16.01.2023 and has joined at

Rajmahal (Sahebganj). The order of transfer has been said to have been issued in the interest of administration.

5. The learned counsel for the petitioner has submitted that though the service of the petitioner is transferrable, but the impugned order of transfer is by way of punishment and therefore it calls for interference in writ jurisdiction. The learned counsel submits that he had filed a writ petition before this Court being W.P. (S) No. 545 of 2022 making allegations against one judicial officer posted at Khunti being the Additional District Judge-I at the relevant point of time. While dismissing the writ petition vide order dated 15.09.2022, certain observations and directions were made including a direction to place the matter before the Hon'ble Standing Committee of this Court and a fine of Rs. 2,00,000/- was also imposed. The order of transfer is a fall out of such directions issued by this Court in the aforesaid writ petition.

6. The learned counsel has submitted that immediately after passing of the order he filed Letters Patent Appeal before this Court being L.P.A. No. 420 of 2022 and the matter is pending before the Hon'ble Division Bench.

7. However, the learned counsel has submitted that the pendency of appeal before the Hon'ble Division Bench has no connection with the present order of transfer, inasmuch as, the order of transfer is punitive. He has further submitted that the petitioner has joined the transfer post at Rajmahal which has also been recorded in the order dated 18.01.2023 passed in this case.

8. The learned counsel submits that the petitioner was working as Clerk in Khunti District Court and upon a query by this Court, the learned counsel is not in a position to inform as to the date from which the petitioner was posted in Civil Court of Khunti District.

9. The learned counsel has relied upon a judgment passed by this Court in L.P.A. No. 55 of 2021 and has referred to paragraph 16 of the said judgment. He submits that in the said case, the learned writ Court had considered the order of transfer and the order of transfer was based on adverse remark in the enquiry report and consequently, the learned Single Judge held that the order of transfer was punitive in

nature. In such circumstances, the aforesaid LPA was ultimately dismissed by the Hon'ble Division Bench.

10. The learned counsel has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2009) 2 SCC 592 (Somesh Tiwari vs. Union of India & Others) and has referred to paragraph 16 thereof to submit that in case the order of transfer is punitive, the same calls for interference under Article 226 of the Constitution of India.

11. Learned counsel appearing on behalf of the respondent No. 1 has referred to Annexure-3 and Annexure-4 of the writ petition to submit that the order of transfer has been passed in the interest of administration and is not at all punitive in nature. He has also referred to the counter-affidavit and has submitted that pursuant to the order passed by the learned writ Court the matter was placed before the Hon'ble Chief Justice who accorded approval to place the matter before the Hon'ble Standing Committee. The matter was placed before the Hon'ble Standing Committee and the Hon'ble Standing Committee simply resolved to transfer the petitioner to Rajmahal. The learned counsel submits that it has been specifically stated in the counter-affidavit that the decision to transfer of the petitioner was in the interest of administration and not punitive in nature. The learned counsel has also submitted that merely because the matter was placed before the Hon'ble Standing Committee pursuant to the order passed by this Court, the order of transfer cannot be said to be punitive in nature. The learned counsel has also submitted that the fact that the service of the petitioner is transferrable is not in dispute and to the best of his knowledge the petitioner has remained in Khunti District for about 10 years although no such statement has been made in the counter-affidavit regarding the period during which the petitioner has remained in the District of Khunti.

12. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the service of the petitioner is transferrable from one district to another. It is further not in dispute that the petitioner filed a writ petition before this Court making certain allegations against the judicial officer which was numbered as W.P. (S) No. 545 of 2022. The

writ petition was dismissed vide order dated 15.09.2022. Paragraph 5 to 9 of the said order is quoted as under: -

"5. The petitioner is a clerk posted in the Khunti District Court. His grievance is that there is some discrepancy in the affidavit, which was filed by the Respondent No. 3, while admitting his son in different schools. Petitioner claims that big fraud has been committed by Respondent No. 3, by misusing his post. Another grievance of the petitioner is that the official Car of Respondent No. 3 was found in the District of Ranchi and it violated some traffic rules, for which penalty was paid by some other person.

6. There is nothing on record to suggest nor the petitioner has stated anything as to who had paid the amount of fine imposed due to traffic violation. Further, the entire writ application also suggest that the petitioner is not aggrieved by any of such action. Filing of this writ application is by way of malafide intention and to wreck personal vengeance. Further, from the tenor of the writ application, it is clear that the same amounts to maligning and defaming the image of a Judicial Officer and the judiciary. This is also insubordination and utmost indiscipline behaviour of this petitioner, which cannot be tolerated. Further, filing of this type of writ application with the nature of prayer made therein is strongly deprecated. The act of this petitioner is unbecoming of a government employee. Stern action should be taken against this petitioner immediately.

7. Thus, I direct the Registrar General of this Court to immediately place this matter before the Hon'ble Standing Committee of this Court alongwith a copy of this writ application and a copy of this order, preferably within a week from today for taking appropriate action.

8. This writ application is dismissed with a cost of Rs.2,00,000/- (two lakhs), to be deposited by the petitioner within four weeks. In the event of failure the same to be recovered from the salary and other benefits of the petitioner.

9. Let a copy of this order alongwith a copy of the writ petition be immediately be placed before the Registrar General of this Court."

13. It is further not in dispute that the order passed in the writ petition is subject matter of challenge in L.P.A. No. 420 of 2022 which is pending for consideration before this Court.

14. It appears from the records that in the meantime the matter was placed before the Hon'ble Chief Justice who accorded approval for placing the matter before the Standing Committee and when the matter was placed before the Standing Committee an order of transfer has been passed without casting any aspersions against the petitioner. The order of transfer as well as the counter-affidavit filed by the respondent no.1 clearly reflect that the decision of transfer of the petitioner was taken in the interest of administration. No rejoinder has been filed by the petitioner to the counter affidavit.

15. This Court is of the considered view that the order of transfer is not by way of punishment, but the same has been passed only on account of administrative reasons when the matter was placed before the standing committee after approval of the Hon'ble Chief Justice. Admittedly, no proceeding as such has been initiated against the petitioner pursuant to the order passed in W.P. (S) No. 545 of 2022 which is now subject matter of consideration in the L.P.A.

16. So far as the judgments relied upon by the petitioner are concerned, the same do not apply to the facts and circumstances of this case. The consideration of the judgements are as follows: -

a. In L.P.A. No. 55 of 2021 the order of transfer was itself on the basis of certain adverse remark in the enquiry report which was apparent from the reasoned order impugned in the writ petition. The judgment passed in L.P.A. No. 55 of 2021 was passed on totally different set of facts and does not apply to the facts and circumstances of this case. Findings of the Hon'ble Division Bench in L.P.A. No. 55 of 2021, are quoted as under: - "10. This Court, in order to consider this aspect of the matter, has considered the reasoned order appended as Annexure-5 to the writ petition. It is evident from the said order, more particularly paragraph-4 thereof, wherein reference of paragraph-3 of the report has been made which contains adverse remarks against the writ petitioner, basis upon which the writ petitioner had been transferred so that there may not be any adverse effect in the working of the hospital. Thus, it is evident that the transfer of the writ petitioner was made on the basis of the adverse remarks as has been pointed out by the committee in its report. The aforesaid report has been annexed as Annexure-A to the counter affidavit dated 27.01.2020 filed on behalf of the respondent nos.2 to 4. It is evident from the said report dated 08.07.2019 submitted by the Civil Surgeon-cum-Chief Medical Officer, Giridih that adverse remarks have been made against the writ petitioner that due to dereliction in duty the writ petitioner is not providing proper treatment to the patients who are coming to the hospital as also the action of the writ petitioner led to propaganda has created bad image of the hospital amongst the people. Thus, the reason for transfer as would appear from the reasoned order is based upon the report of the committee wherein the question of dereliction in duty and misconduct has been referred against the writ petitioner.

The reasoned order since stipulates the reason of transfer based upon the report, therefore, what has been contended by the learned counsel for the appellant-State that the original order of transfer dated 26.07.2019 is a routine transfer and not punitive, according to the considered view of this Court, cannot be said to be

correct rather it is contrary to the record as per the discussion made hereinabove."

b. In (2009) 2 SCC 592 (supra), paragraph 16 it has been held as under: -

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

In the aforesaid judgment it has been held that transfer, which is ordinarily an incidence of service, should not be interfered with save in cases where inter alia malafide on the part of the authorities is proved. In the said judgment, the absence of bonafide while transferring the employee stood proved from the records of the case. The High Court found that the transfer order was not bonafide exercise of power and declared it invalid. The Hon'ble Supreme Court also considered the internal noting in the official files which showed that government itself admitted that the first transfer was a harsh posting and the second transfer was considered as less harsh posting. The Hon'ble Supreme Court was of the view that the order of transfer suffered from malice in law as it was not based on any factor germane to passing of an order of transfer but was based on an anonymous complaint and when an order of transfer was passed in lieu of punishment the same is liable to be set aside. It was held that the transfer order was passed on the material which was non-existent and the order of transfer suffered from non- application of mind and also malice in law.

17. In the aforesaid two judgments, there were materials on record to show that the order of transfer was punitive or suffered from malice in law. In the present case, this Court finds no material on record,

much less any clinching material to come to a finding that the order of transfer of the petitioner suffers from any malice, malice in fact or malice in law or is punitive in nature. This Court is of the considered view that the aforesaid two judgments have no applicability on the facts and circumstances of this case.

18. As a cumulative effect of the aforesaid findings, no case for interference is made out in the order of transfer impugned in the present case.

19. This writ petition is accordingly dismissed.

20. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul