Madras High Court
R.Rajagopal vs The Managing Director on 4 April, 2022
W.P.No.4853 of 2020
W.M.P.Nos.5732 & 5733 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.04.2022
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.4853 of 2020
W.M.P.Nos.5732 & 5733 of 2020
R.Rajagopal ... Petitioner
Vs.
1.The Managing Director,
The Tamilnadu State Marketing Corporation Limited,
Head Quarters, 4th Floor, CMDA Tower – 2, Egmore,
Chennai – 600 008.
2.The Senior Zonal Manger,
The Tamil Nadu State Marketing Corporation Limited,
Trichy, TASMAC Limited, Trichy District.
3.The District Manager,
The Tamil Nadu State Marketing Corporation Limited,
Thiruvaur District. ... Respondents
PRAYER: This Writ Petition has been filed under Article 226 of the
Constitution of India praying for the issuance of a Writ of Certiorari, to
call for the records of the third respondent in proceeding in
Na.Ka.No.51/2020/A1, dated 13.02.2020 and quash the same and to pass
any further order or direction as this Court may deem fit and proper in the
circumstances of the case.
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For Petitioner : M/s.K.Bharathi
For Respondents : Mr.N.Damodaran
ORDER
The relief sought for in the writ petition to call for the records of
the third respondent in proceeding in Na.Ka.No.51/2020/A1, dated
13.02.2020 and quash the same and to pass any further order or direction.
2.Brief facts of the case:
(a).On 23.01.2004, the petitioner was joined as a supervisor in
the respondents' Corporation in Shop No.9847. While so, the third
respondent has issued a show cause notice on 31.12.2019 to the salesman
D.Kannan and the copy was served to the petitioner, wherein, it was
stated that in the raid conducted by the District Manager, Tanjavur on
15.12.2019, it was found that in Shop No.9847, the salesman D.Kannan
sold 10,000 super strong beer (650 ml) for additional amount of Rs.10/-
and it was further stated that he admitted the charge and was ordered to
pay the fine to the said salesman and gave seven days time to deposit the
said amount, before the third respondent in default, disciplinary
proceedings will be initiated against the said Kannan.
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(b).The petitioner has given a reply to the said show cause notice
by stating that from 12.12.2019 to 15.12.2019, he was on leave and the
same was also informed to the third respondent. Thereafter, the petitioner
has made a request to the third respondent to accept his explanation and
to relieve him from the charges by enclosing the attendance register, salary
register, medical bills and prescription and further, the same has been sent
to the second respondent also. Further on 27.01.2020, the second
respondent has sent a notice by stating that in the circular dated
21.04.2019, if any shop is liable for the amount of selling additional
charges within six months, for the second time, the supervisor can be
transferred to other shop. Based on that reason, the petitioner's
application was rejected and further stated that the petitioner is
responsible for the charge of lack of supervisor.
(c).Further, the petitioner has given a letter dated 05.02.2020 to
the third respondent to withdraw charges and not to initiate further
proceedings against him. Thereafter, the third respondent has issued
impugned order of transfer by his proceedings in Na.Ka.No.51/2020/A1,
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dated 13.02.2020 without considering the petitioner's explanation dated
21.01.2020 and 05.02.2020 and the same is null and void. Hence, the
writ petition.
3.The learned counsel appearing for the petitioner would submit
that the petitioner was working as a supervisor in the respondents'
Corporation in Shop No.9847, Thiruvarur District. The petitioner was
absent from 12.12.2019 to 15.12.2019 and during that time there was an
inspection conducted by the respondent in the aforesaid shop and it was
found that the petitioner was absent during the said period. By relying
upon the circular dated 21.01.2019, disciplinary action has been taken
against the petitioner and impugned transfer order has been passed and
the same is contrary to the law settled by this Court as well as Hon'ble
Supreme Court. Further, the learned counsel for the petitioner reiterate
the above said facts and seeks indulgence of this Curt to issue the writ of
certiorari as prayed for.
4.In the counter filed by the learned counsel for the third
respondent it is stated that the petitioner has been working as shop
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supervisor in TASMAC Shop No.9847 at Avur Road, Govindagudi,
Valangaman Taluk, Tiruvarur District. In the said shop inspection was
conducted by the Senior Regional Manager and it was found that the Shop
personnel viz., D.Kannan was involved in selling of Beer for an additional
amount of Rs.10/-. At the time of inspection, a written affidavit was
obtained from the shop personnel. Thereafter, the District Manager, Tamil
Nadu State Marketing Corporation Ltd., Thanjavur, has submitted an
inspection report to the second and third respondents herein and based on
the same, said Kannan was transferred to Shop.No.9862, Valangaiman,
but no punishment was awarded to the petitioner since the said incident
was the first of it in the said shop. Again, on 15.12.2019, second time
inspection was conducted at Shop No.9847 within a period of six months
from the date of the first inspection, during which the MRP violation was
found.
5.It is further stated that without informing to the District
Manger Officer, the petitioner has availed leave and also entrusted the
regular shop works to the shop salesmen in violation of the corporation
rules. Due to which, no alternative arrangement was made by the District
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Officer to monitor/supervise the shop. Further, the petitioner has
submitted a false report to the District Manager Officer, by stating that he
has attended duty for 31 days. However, the petitioner has mentioned
that he was sick from 12.12.2019 to 15.12.2019 and he went to a private
hospital on 14.12.2019 for treatment. In this regard it is submitted that as
per the Government Servant Rules, any Government Servant should take
treatment in a Government Hospital only, on the contrary, the petitioner
had availed treatment in a private nursing home and in support of the
same he has not produced any relevant documents. In this regard, the
petitioner were transferred and the said transfer proceedings were
obtained from the second respondent herein and issued by the third
respondent herein. Hence, he has been transferred to shop No.9747,
Mannargudi and since, he was present at the time of inspection i.e., on
15.12.2019, no fine amount has been imposed on him.
6.Further, it is stated that the petitioner had not signed in the
attendance register from 12.12.2019 to 15.12.2019 and the inspection was
conducted on 15.12.2019 and also no leave application was submitted by
the petitioner herein, the inspection officer had marked the petitioner as
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absent. It is pertinent to note that if any shop supervisor intending to take
a leave, the said employee has to hand over the shop key to the incharge
supervisor and has to sign in the TOC form, but the petitioner has not
followed the same. For the said reason, the petitioner is the responsible
and answerable for the above lapse.
7.In view of the above, this Court finds that without giving any
opportunity to the petitioner to submit his explanation for the aforesaid
alleged charges, the respondents have passed impugned order of transfer,
which is punitive in nature.
8.At this juncture, it is pertinent to refer the decision of this Court
made in W.P.(MD) Nos.10759 & etc., batch, dated 28.10.2021,
wherein this Court by relying upon the various decisions of the Hon'ble
Division Bench of this Court and following the decision of the Hon'ble
Supreme Court, has held as follows;
“19. In K.M.Elumalai vs. The Superintendent of
Prisons, Central Prison-II and another [CDJ 2009
MHC 4819], this Court, by taking note of catena of
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decisions of the Honourable Apex Court, has held as
follows:
“12.The above said principles of law evolved by the
English Courts would clearly lead to the
conclusionthat while acting upon a fact the person
who exercises the power treating the said fact as
conclusive will have to satisfy himself about the due
proof of the same before taking any action based
upon the same. In other words when a power is
vested upon an authority the said authority will have
to exercise the said power only in the manner known
to law which is by giving a sufficient opportunity to
the person against whom the action is proposed. The
basic requirement of the said principle is to inform
the person concerned about the charges levelled
against him and thereafter affording an opportunity
to putforth his case followed by a further opportunity
to peruse the materials placed against him and cross-
examine the witnesses who deposed against him.
13.It is no doubt true that an order of transfer is
incidental to the service but the question for
consideration is as to whether such an order can be
passed in total violation of principles of the natural
justice and by dispensing with the enquiry.
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...
...
20.Therefore this Court is of the opinion that the
impugned orders passed by the respondents will have
to be set aside being punitive in nature and therefore
bad in law in not following the principles of natural
justice, by affording an opportunity to the petitioner
and by conducting an enquiry.
21.The proceedings are also liable to be set aside
since the respondents have come to the conclusion
based upon a discreet enquiry which is again based
upon the statement obtained from persons behind the
back of the petitioner. Even in an enquiry a statement
obtained in a preliminary enquiry prior to a full-
fledged enquiry cannot be relied upon. Therefore in
such a case an order passed based upon such an
enquiry cannot be sustained. In the judgment
reported in (2006) 2 MLJ 202 [T.PITCHAI vs.
DEPUTY INSPECTOR GENERAL OF POLICE,
TIRUNELVELI RANGE, TIRUNELVELI AND
ANOTHER] the Hon'ble High Court after considering
the
judgment of the Hon'ble Apex Court and the Division
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Bench judgment of the Hon'ble High Court was
pleased to hold that the punishment based upon a
statement given a preliminary enquiry cannot be
sustained. The Hon'ble High Court has observed as
follows:
...
...
22.The learned Government Advocate made strong
reliance upon the judgment of the Hon'ble Apex
Court reported in (2004) 4 SCC 245 [UNION OF
INDIA AND OTHERS vs. JANARDHAN DEBANATH
AND ANOTHER] and submitted that under
Fundamental Rules 15 an order of transfer can be
passed even in a case of misbehaviour or misconduct
by the employee concerned. It is a well settled
principle of law that a judgment will have to be
applied to the facts of each case, in the said case the
Hon'ble Apex Court was dealing with the case where
based upon certain allegation an order of transfer
was made by exercising the power under the
Fundamental Rules. Therefore, the Hon'ble Supreme
Court was considering the powers of the authorities
under the said Rules. Moreover a reading
of the said judgment would show that it was clearly
observed that the question of misbehaviour can be
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gone into departmental proceedings whereas in the
present case it has been clearly stated by the
respondents that they have no intention to go with the
departmental proceedings since they know very well
that it is not possible to prove the factum of the
alleged misconduct by the petitioner.
23.Moreover the interpretation of Fundamental Rules
15 is not in question in the present case since the
power has been exercised by the first respondent
under the Tamil Nadu Jail Subordinate Rules.
Further a reading of the Fundamental Rules would
show that the power has to be exercised by the
Government whereas in the present case on hand the
said power has been exercised under the Tamil Nadu
Jail Subordinate Rules by the first respondent herein.
In this connection, it is useful to refer the judgment of
the Division Bench reported in 2009(3) CTC 97
[D.Sivakumar v. The Government of Tamil Nadu]
wherein the Hon'ble Division Bench has observed as
follows:
...
...
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24.Similarly in the judgment reported in 2009 AIR
SCW 942 [COMMISSIONER OF CENTRAL EXCISE,
BANGALORE v. SRIKUMAR AGENCIES] the Hon'ble
Supreme Court has observed as follows:
"4.Courts should not place reliance on decisions
without discussing as to how the factual situation fits
in with the fact situation of the decision on which
reliance is placed. Observations of Courts are
neither to be read as Euclid's theorems nor as
provisions of the statute and that too taken out of
their context. These observations must be read in the
context in which they appear to have been stated.
Judgments of Courts are not to be construed as
statutes. To interpret words, phrases and provisions
of a statute, it may become necessary for judges to
embark into lengthy discussions but the discussion is
meant to explain and not to define. Judges interpret
statutes, they do not interpret judgements. They
interpret words of statutes; their words are not to be
interpreted as statutes. In london Graving Dock Co.
Ltd. v. Horton (1951 Apex Court 737 at p.761), Lord
Mac Dermot observed:
"The matter cannot, of course, be settled merely by
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treating the ipsissima vertra of Willes, J. as though
they were part of an Act of Parliament and applying
the rules of interpretation appropriate thereto. This
is not to detract from the great weight to be given to
the language actually used by that most
distinguished judge." In Home Office v. Dorset Yacht
Co. (1970(2) All ER 294) Lord Reid said, "Lord
Atkin's speech.... is not to be treated as if it was a
statute definition. It will required qualification in new
circumstances." Megarry, J. in (1971) 1 WLR 1062
observed: One must not, of course, construe even a
reserved judgment of Russell L.J.as if it were an Act
of Parliament." And, in Herrington v. British
Railways
Board(1972(2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a
speech or judgment as though they are words in a
ligislative enactment, and it is to be remembered that
judicial utterances made in the setting of the facts
of a particular case."
5.Circumstantial flexibility, one additional or
different fact may make a world of difference between
conclusions in two cases. Disposal of cases by blindly
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placing reliance on a decision is not proper. The
following words of Lord Denning in the matter of
applying precedents have become locus classicus:
"Each case depends on its own facts and a close
similarity between on case and another is not enough
because even a single significant detail may alter the
entire aspect, in deciding such cases, one should
avoid the temptation to decide cases (as said by
Cordozo) by matching the colour of one case against
the colour of another. To decide therefore, on which
side of the line a case falls, the broad resemblance to
another case is not at all decisive.
"25.Therefore on a reading of the said judgments,
this Court is of the opinion that the judgments relied
upon by the learned Government Advocate do not
apply to the present case on hand.
26.Thus on a consideration of the facts and
circumstances and also on a consideration of the
legal issues involved, this Court is of the considered
view that the impugned orders passed by the
respondents are liable to be set aside. Accordingly
they are set aside and the writ petitions are allowed.
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No costs. Consequently, connected miscellaneous
petitions are
closed.”
......
......
23. In Somesh Tiwari's case (supra), the Honourable
Apex Court has held as follows:
“19. 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.
20. 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.
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When an order of transfer is passed in lieu of
punishment, the same is liable to be set aside being
wholly illegal.
...
...
25. No vigilance enquiry was initiated against him.
The order of transfer was passed on material which
was not existent. The order, therefore, not only
suffers from total non application of mind on the part
of authorities of respondent No.1, but also suffers
from malice in law.
26. The High Court while exercising its jurisdiction
under Article 226 of the Constitution of India must
consider the fact of each case. Mechanical
application of the normal rule "no work no pay" may
in a case of this nature, be found to be wholly unjust.
No absolute proposition of law in this behalf can be
laid down.”
.......
......
28. In view of the above settled legal position, this
Court is of the opinion that when transfers are
effected after preliminary enquiry on the complaints /
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allegations, it should necessarily be followed up by a
detailed investigation and disciplinary proceedings
initiated on the allegations resultantly found to be
substantiated. However, in the present case, prima
facie it is found that disciplinary proceedings were
initiated and charge memos were issued only when
the matter was taken up for hearing that too after the
matter was being adjourned on several occasions,
which is contrary to the aforesaid G.O.Ms.No.10,
dated 07.01.1994 and the clarificatory letter dated
09.08.1994. Even on perusal of the impugned
transfer orders, it is seen that the same were passed
on the administrative grounds, however, in the
counter affidavit filed by the respondents, it is stated
that based on the discreet enquiry report, the
impugned transfer orders were passed. Further,
according to the respondents, the impugned transfer
orders were passed to avoid more complications in
the prison administration. That apart, the
respondents have not initiated disciplinary
proceedings immediately after the incident had taken
place and only in the month of September, 2021, by
way of filing additional counter affidavit, it was
brought to the notice of this Court that disciplinary
proceedings have been initiated against the
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petitioner for the incident alleged to have been taken
place in the month of April, 2021 and in the counter
affidavit filed in the month of August, 2021, there is
no whisper about the disciplinary proceedings
against the petitioners and only after the matter was
taken up for hearing, disciplinary proceedings were
initiated and charge memos were issued to the
petitioner. Hence, this Court comes to a conclusion
that the impugned transfer orders are punitive in
nature and there is violation of the principles of
natural justice on the part of the respondents and
therefore, the respondents have not followed the
clarification order issued by the Government and the
decision in the case of Elumalai's case (supra) would
therefore squarely apply to the facts and
circumstances of the present case. Hence, the
respondents have violated the principles of natural
justice as observed in the aforesaid decision. Hence,
for all these reasons, the impugned transfer orders
are liable to be set aside.
9.Considering the above facts and circumstances of the case, in
the light of the Judgments passed by the Hon'ble Supreme Court as well as
the Hon'ble Madurai Bench of this Court, and based on the allegation, the
impugned order is perused. Therefore, this Court comes to the conclusion
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that the impugned order passed by the respondents is in punitive nature.
In view of the above, this Court is inclined to quash the impugned transfer
order passed by the third respondent in Na.Ka.No.51/2020/A1, dated
13.02.2020 and direct the respondents to issue revised transfer orders
within a period of two weeks from the date of receipt of a copy of this
order. Liberty is given to the respondents to issue fresh order in
accordance with guidelines.
10.According this writ petition stands allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
04.04.2022
Dua
Internet:Yes
Note:Issue order copy on 23.06.2022
To
1.The Managing Director,
The Tamilnadu State Marketing Corporation Limited,
Head Quarters, 4th Floor,
CMDA Tower – 2, Egmore,
Chennai – 600 008.
2.The Senior Zonal Manger,
The Tamil Nadu State Marketing Corporation Limited,
Trichy, TASMAC Limited,
Trichy District.
3.The District Manager,
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The Tamil Nadu State Marketing Corporation Limited,
Thiruvaur District.
D.KRISHNAKUMAR, J.
Dua
W.P.No.4853 of 2020
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