Madras High Court
G.Srinivasan vs The Additional Chief Secretary / on 29 January, 2021
W.P.No.4408 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
01.03.2021 30.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.No.4408 of 2021
and W.M.P.No.5007 of 2021
G.Srinivasan ... Petitioner
-vs-
1. The Additional Chief Secretary /
Commissioner of Revenue Administration and
Disaster Management,
Chepauk, Chennai-5.
2. The Collector,
Salem District.
3. The Collector,
Thirupattur.
4. The Director
Vigilance and Anti Corruption Department,
Salem. ... Respondents
PRAYER: Petition is filed under Article 226 of the Constitution of India for issuance of a Writ
of Certiorari, calling for the records relating to the first respondent vide
Proc.No.Ser.IV(1)/894/2021 dated 29.01.2021 and to quash the same.
For Petitioner : Mr.S.Vijayakumar
For Respondents : Mr.J.Pothiraj
Spl. Govt. Pleader
*****
ORDER
The Writ Petition has been filed, challenging the order of the 1st respondent passed
in Proc.No.Ser.IV(1)/894/2021 dated 29.01.2021, in and by which the petitioner was
transferred to Tirupattur District Revenue Unit on administrative reasons.
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W.P.No.4408 of 2021
2. It was the case of the petitioner that he was appointed as Revenue Assistant on
04.01.2013 and at present, he has been working as Senior Revenue Inspector (Srilankan
Refugee Camp), Omalur Taluk, Salem District. The petitioner was charged with a Criminal
Case, which is pending in Spl.C.C.No.3 of 2015 on the file of Special Judge for Trial of
cases under Prevention of Corruption Act, Salem and the same was posted for argument
after examination of 29 witnesses. It was further case of the petitioner that while so, the
1st respondent, all of a sudden, transferred him from Salem District to Tirupattur District,
with a direction to post him in a non sensitive post and the impugned order of transfer,
which was issued without application of mind in pursuance of the communication received
from the 4th respondent dated 29.12.2020, is arbitrary in nature and whimsical.
2.1. It was also the case of the petitioner that when the criminal case is pending for
argument, there is no necessity to pass the impugned order of transfer in a hasty manner,
on the specific reason that there is every possibility of the petitioner tampering with the
witnesses. The transfer order was passed on the basis of mere assumption, which is nothing
but victimization of the petitioner and therefore, this Court has to interfere with the
impugned order and the same is liable to be quashed.
3. Learned Special Government Pleader appearing for the respondents contended
that the petitioner was involved in a criminal case of bribe and he was transferred to a far
off place and instead of suspending him and paying the subsistence allowance from the
exchequer money, he was ordered to be posted in a non sensitive post on administrative
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W.P.No.4408 of 2021
reason as per the principle laid down by the Hon'ble Supreme Court in the case of Ajay
Kumar Choudhary vs. Union of India through its Secretary and another, reported in 2015
(7) SCC 291 and this Court. He further contended that in case he is allowed to continue in
the same place, there is a chance of threatening the witnesses by misuse of his power and
as a result, the interest of justice would be defeated. Thus, it was vehemently opposed as
to the grant of relief prayed for by the petitioner in this Writ Petition.
4. Heard the learned counsel on either side and perused the material documents
available on record.
5. A careful scrutiny of the entire facts discloses that the petitioner is a Senior
Revenue Inspector and a criminal case is pending against him in Spl.C.C.No.3 of 2015
before the Special Judge for Trial of cases under Prevention of Corruption Act, Salem. In
the meanwhile, the petitioner has been served with an order of transfer dated 29.01.2021,
thereby transferring him from Salem to Tiruppattur District due to administrative reasons.
6. The petitioner has stated that he has been facing criminal charges and a charge
sheet was also laid in the said criminal case and the matter is pending for trial. The
petitioner, by drawing the attention of this Court to Page No.36 of the typeset of papers,
submitted that when the case is posted for argument, there is no need to transfer him at
all.
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W.P.No.4408 of 2021
7. Per contra, the respondents contended that it is only an administrative transfer,
which cannot be questioned. Merely because the criminal case is pending, it does not mean
that the petitioner cannot be transferred on administrative reasons and the pendency of
criminal case is not a bar for the respondents to transfer the petitioner.
8. Learned counsel for the petitioner submitted that if the transfer is effected on
the basis of pending criminal, as stated in the subject column of the impugned order, it will
certainly cast a stigma on the service condition of the petitioner and in support of his
submission, he has relied upon a decision of this Court in the cases of S.Sevugan vs. The
Chief Educational Officer, Virudhunagar District and another, reported in 2006 (2) CTC
468 and J.Alex Dorai Vetha Sam vs. District Educational Officer and others, reported in
(2010) 6 MLJ 63, in which, this Court had set aside the order of transfer, since the said
transfer order was issued on the basis of a complaint.
9. The reference made with regard to the criminal case against the petitioner in the
subject column of the impugned order is only for the purpose of indication of the case that
is pending and not otherwise. Even assuming for the sake of argument that if it is taken
that the order of transfer is a punishment and not on administrative reason, pending trial
includes passing of final orders. It is true that criminal case is pending against the
petitioner and he can be transferred to a non sensitive post. When DVAC case is pending
against the petitioner, there is nothing wrong in transferring and posting him in a far off
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W.P.No.4408 of 2021
place in a non sensitive post. Mere description of the pendency of the criminal case in the
subject cannot be said to be arbitrary, biased or illegal. It is pertinent to mention here that
if a person is charged with misconduct, then the said person has got to be transferred or
shifted and in that case, it will be construed as a stigma, is an ancient theory. Under some
pretext or the other, orders are obtained against the order of transfer, with which,
employees attempt to serve for decades in the same place. It is appropriate to state here
that if a routine transfer takes place after a period of three years, dehors the interim order
passed by this Court, the person can be disturbed and has to be transferred on regular
basis. If the person refuses to go on transfer, then he/she will not be entitled to any wages
and is liable even for facing dismissal order and the order of transfer after a period of
three years will never be construed as disobedience of the orders of this Court.
10. The Hon'ble Supreme Court in the case of Ajay Kumar Choudhary vs. Union of
India through its Secretary and another, reported in 2015 (3) CTC 119, held as under:
“14. We, therefore, direct that the currency of a Suspension Order
should not extend beyond three months if within this period the
Memorandum of Charges/Chargesheet is not served on the delinquent
officer/employee; if the Memorandum of Charges/Chargesheet is served a
reasoned order must be passed for the extension of the suspension. As in the
case in hand, the Government is free to transfer the concerned person to any
Department in any of its offices within or outside the State so as to sever any
local or personal contact that he may have and which he may misuse for
obstructing the investigation against him.”
As per the said judgment, an inference can be drawn that instead of keeping a person
under suspension and reviewing it periodically, it is better that he is transferred and posted
in a non-sensitive place. In view of the later development, I am of the view that even
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W.P.No.4408 of 2021
without suspending an employee, the delinquent can be transferred to some other place on
the ground of charges / misconduct, which will not amount to stigma. Otherwise, by
getting an order / interim order, the employees would continuously serve in the same place
for decades. In case of breach of trust, offences involving criminal nature and the like, the
employee should be transferred and it cannot be questioned on the ground of causing
stigma.
11. In the present case on hand, the criminal case is posted for argument and no
judgment has been delivered and therefore, the petitioner cannot take the plea of stigma
till a decision is taken by the Trial Court. Even in the letter of the petitioner addressed to
the 1st respondent (which is annexed in the typeset of papers), he requested for transfer to
a far off place in a non sensitive post for conduct of fair and free trial in the interest of
justice and the petitioner cannot now go back, saying that he should not be transferred
and posted in a non sensitive post.
12. It is seen that though the criminal case was posted for argument from
13.02.2020, due to Covid situation, the case is taken under the same caption till 26.02.2021
and the arguments could not have been concluded. Therefore, this Court directs the
Special Judge for Trial of cases under Prevention of Corruption Act, Salem to pass orders in
Spl.C.C.No.3 of 2015 within a period of one month from the date of conclusion of
arguments, preferably on or before mid of May, 2021, as it was stated that both the
petitioner and the prosecution had already filed the written arguments .
13. With the above observation and direction, the Writ Petition is dismissed. No
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W.P.No.4408 of 2021
costs. Consequently, connected miscellaneous petition is closed.
30.03.2021
Index: Yes / No
Speaking Order: Yes / No
ar
Note: Issue order copy on 01.04.2021
To:
1. The Additional Chief Secretary /
Commissioner of Revenue Administration and
Disaster Management,
Chepauk, Chennai-5.
2. The Collector,
Salem District.
3. The Collector,
Thirupattur.
4. The Director
Vigilance and Anti Corruption Department,
Salem.
https://www.mhc.tn.gov.in/judis/
W.P.No.4408 of 2021
S.VAIDYANATHAN,J.
ar
PRE-DELIVERY ORDER IN
W.P.No.4408 of 2021
30.03.2021
https://www.mhc.tn.gov.in/judis/
