Madras High Court
P.Muthuramalingam vs The Director Of Municipal ... on 13 December, 2021
W.P(MD)No.12264 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 13.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.12264 of 2021
and
W.M.P(MD)Nos.9650 and 9651 of 2021
P.Muthuramalingam ... Petitioner
Vs
1.The Director of Municipal Administration,
Office of the Municipal Administration,
Chennai – 600 028.
2.The Regional Director of Municipal Administration,
Tirunelveli Region,
Tirunelveli.
3.The Commissioner,
Rajapalayam Municipality,
Rajapalayam,
Virudhunagar District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the
Constitution of India for issuance of a writ of Certiorari
calling for the records relating to the impugned order
passed by the second respondent vide his proceedings in
Na.Ka.No.2298/2021/A2, dated 14.07.2021 and quash the same
as illegal.
1/12
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W.P(MD)No.12264 of 2021
For Petitioner : Mr.Mohammed Imran,
for Mr.Ajmal Associates
For Respondent : Mr.P.T.Thiraviam
Nos.1 and 2
For Respondent : Mr.N.Dilip Kumar
No.3
ORDER
This writ petition is filed as against the order of
transfer passed by the second respondent in
Na.Ka.No.2298/2021/A2, dated 14.07.2021.
2.Vide impugned transfer order, the writ petitioner,
who was working as Revenue Assistant, Rajapalayam
Municipality was transferred to Sattur Municipality.
3.Mr.Mohammed Imran, learned Counsel for the petitioner
submits that the petitioner was transferred vide impugned
order on 14.07.2021 by the second respondent based on the
recommendation of the third respondent dated 12.07.2021.
According to him, the third respondent himself was
transferred from the post of the Commissioner, Rajapalayam
Municipality to other place on 09.07.2021. Thereafter, the
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W.P(MD)No.12264 of 2021
third respondent, levelling certain allegations against the
petitioner, made a recommendation on 12.07.2021 to the
second respondent, the Regional Director of Municipal
Administration, Tirunelveli Region, to transfer the
petitioner to some other place and based on such
recommendation the petitioner was transferred by the second
respondent on 14.07.2021.
4.According to the learned Counsel for the petitioner,
the entire scenario would reveal that the impugned order of
transfer is punitive in nature and therefore, the impugned
transfer order is liable to be quashed based on the law
laid down by the Hon'ble Apex Court in Somesh Tiwari Vs
Union of India and Ors, reported in ILR[2006]MP 1390.
Further he has also relied on the following judgments in
support of this contention
1.P.Karunakaran Vs Union of India and others,
reported in 2013 SCC OnLine Mad 3958;
2.Dr.A.Jayachitra Vs the Principal
Secretary / Member, Sports Development Authority
of Tamil Nadu, Chennai in W.P.No.12552 of 2020,
dated 11.12.2020;
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W.P(MD)No.12264 of 2021
3.Narasingaraja Vs The Director General of
Police, in W.P(MD)Nos.10759 of 2021, etc., batch,
dated 28.10.2021.
5.Mr.Dilip Kumar, learned Counsel appearing for the
third respondent, the Commissioner, Rajapalayam
Municipality, submits that the transfer of the petitioner
is purely on administrative reasons and in the absence of
any material it cannot be alleged that transfer of the
petitioner is punitive in nature.
6.Insofar as the recommendation of the third respondent
dated 12.07.2021, he has circulated the files pertaining to
the same. He also submits that when the transfer order had
been effected on administrative grounds, there is no
necessity for providing the documents mentioned in the
reference. The order of transfer is not a punishment and it
is passed only based on administrative grounds.
The power available under the statutory provisions for an
officer of the municipality to be transferred from one
place to another place, on administrative reasons has been
upheld in a recent judgment of the first bench of this
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W.P(MD)No.12264 of 2021
Court in State of Tamil Nadu vs P.Subbuthai, reported in
2021-1-WLR-1.
7.This Court paid its anxious consideration to the
rival submissions and perused the materials placed on
record.
8.By the order impugned in this writ petition, the
petitioner has been transferred from Rajapalayam
Municipality to Sattur Municipality on administrative
grounds. Transfer is incidental to service and also a
condition to service. The authority is empowered to
transfer any employee from one place to another place on
administrative grounds. However, if such transfer is
punitive in nature, then the Court can interfere with the
same as per the dictum laid down by the Hon'ble Apex Court
in Somesh Tiwari Vs Union of India and Ors.
9.In this case, the petitioner who was working as
Revenue Assistant, has been transferred from Rajapalamayam
Municipality to Sattur Municipality during the non
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W.P(MD)No.12264 of 2021
transferable period. The respondents claim that not only
the petitioner has been transferred, but several other
staff have also been transferred during the said period.
Though the impugned transfer order refers that the order of
transfer has been passed on administrative grounds, the
order has been passed based on the letter of the third
respondent in Na.Ka.No.C1/4687/2020, dated 12.07.2021.
Admittedly, the third respondent Commissioner, Rajapalyam
Municipality, made recommendation to the second respondent
the Regional Director of Municipal Administration on
12.07.2021 and based on the recommendation, the second
respondent passed the impugned order on 14.07.2021. The
learned Counsel for the petitioner has made out a case that
the recommendation dated 12.07.2021 itself has been made by
the third respondent, after he has been transferred from
the said place on 09.07.2021. The fact remains that the
second respondent, Regional Director has also been
transferred on 12.07.2021. No doubt the impugned order
refers that the order of transfer has been passed only on
administrative grounds. The respondents even in the counter
affidavit filed by them, are not in a position to state on
what administrative ground the petitioner has been
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W.P(MD)No.12264 of 2021
transferred. However, on the directions of this Court, the
files pertaining to Na.Ka.No.C1/4687/2020, dated 12.07.2021
is placed before this Court. Perusal of the same shows that
the third respondent has reported that the petitioner has
failed to collect tax to the tune of Rs.20,56,952/-.
Averments are found in the proceedings dated 12.07.2021,
attributing misconduct as against the petitioner that he
has not discharged his duty diligently. In such case,
instead of straightaway transferring the petitioner from
his place, he must be provided with an opportunity of
hearing and enquiry should have been conducted before
transferring the petitioner. If an employee's performance
is not satisfactory in one place, how can it be expected
that his performance would be satisfactory in another
place. This Court is not satisfied with the reason that on
administrative grounds, the petitioner was transferred.
10.The Employer should be a role model and the
administration must be in a fair and transparent manner.
Since the Hon'ble Supreme Court and the High Courts are not
interfering with the transfer orders passed on
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W.P(MD)No.12264 of 2021
administrative grounds, there cannot be transfers on mala
fide or punitive transfers under the guise of
administrative grounds and the employer cannot use the
administrative grounds as shelter and shield, for the
transfers passed on malafide or with an ulterior motive.
It would be relevant to refer to the decision of this Court
in W.P.No.12252 of 2020, dated 11.12.2020, which is as
follows:
“33. In the absence of any
administrative requirement or exigencies,
any transfer order issued in such
situation and terming the same as being
issued on the ruse of administrative
requirement, may have to ultimately pass
the test of judicial review. Merely
because the transfer order is couched in
such hackneyed, oft repeated and routine
administrative terminology, unless the
reason setforth in the transfer order
when questioned, is established factually
to the satisfaction of this Court, a
ritualistic and cliched expression
“administrative reasons” in the transfer
order, cannot be taken at its face value
and the relief refused to the affected
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W.P(MD)No.12264 of 2021
individuals. In this case, though the
petitioner failed in other fronts of
attack, ultimately, this Court finds that
the transfer of the petitioner is not
based on administrative requirement, but,
for an extraneous reason and therefore,
the transfer order is liable to be set
aside only on that ground. As stated
above, this Court perused the relevant
files and did not discover a modicum of
material supporting the respondent's plea
of administrative requirement for
transferring the petitioner to
Tiruvannamalai. It is well within the
power of the Court to pierce the veil of
the fig leaf behind the transfer order
and to hold that the impugned action of
the respondent authority stemmed from a
colourful exercise of power on his part
and hence, liable to be interfered solely
on the well established legal premise
namely the transfer is hit by malice in
law.”
The above order has also been upheld by a Hon'ble Division
Bench of this Court in W.A(MD)No.7 of 2021, dated
08.09.2021.
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W.P(MD)No.12264 of 2021
11.In the present case, the recommendation has been
made by the third respondent on 12.07.2021, after he has
been transferred from Rajapalayam Municipality on
09.12.2021, the transfer order was passed by the second
respondent on 14.07.2021, wherein he has already been
transferred from his place on 12.07.2021. The manner in
which and the circumstances under which recommendation has
been made and transfer order has been passed, clearly expos
that it is a punitive transfer with an element of malafide
and there is no administrative exigency as claimed.
12. It is reported that pending this writ petition,
a third person has joined in the post of Revenue Assistant
in Rajaplayam in the place of the petitioner. The impugned
order was passed on 14.07.2021. This writ petitioner has
approached this Court on 16.07.2021, this Court has granted
an order of interim stay on 20.07.2021 itself and
subsequently the third person has joined in the place.
Instead of permitting this petitioner in the Rajapalayam
Municipality, pursuant to the orders of this Court, a third
person has been allowed to join in the said post in the
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W.P(MD)No.12264 of 2021
place of the petitioner. Therefore, this Court deems it fit
to set aside the order impugned in this writ petition.
13.This writ petition is allowed in the above terms.
No costs. Consequently, connected miscellaneous petitions
are closed.
13.12.2021
Index : Yes / No
Internet : Yes / No
dsk
Note:
In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Director of Municipal Administration,
Office of the Municipal Administration,
Chennai – 600 028.
2.The Regional Director of Municipal Administration,
Tirunelveli Region,
Tirunelveli.
3.The Commissioner,
Rajapalayam Municipality,
Rajapalayam,
Virudhunagar District.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.12264 of 2021
B.PUGALENDHI, J.
dsk
W.P(MD)No.12264 of 2021
13.12.2021
https://www.mhc.tn.gov.in/judis
