Dr. G. Srinivas vs State Of Telangana,
2025 Latest Caselaw 3086 Tel

Telangana High Court

Dr. G. Srinivas vs State Of Telangana, on 13 March, 2025

             THE HON'BLE SRI JUSTICE PULLA KARTHIK

                    WRIT PETITION No.14202 of 2024
ORDER:

This Writ Petition, under Article 226 of the Constitution of India,

is filed seeking the following relief:

"...to pass an order or order, direction or writ more particularly one in the nature of Writ of Certiorari, by calling for records and:

(a) declaring the action of the Respondent No. 1 in issuing G.O. Rt No. 195 dated 24.05.2024 as mala fide, arbitrary, illegal, and contrary to the principles of natural justice, and consequently set aside the same;

(b) declaring the action of the Respondent No.2 in issuing letter bearing No. DME Lr. No. Spl/VC.A.2024 dated 25.05.2024 as mala fide, arbitrary, illegal, contrary to the principles of natural justice, and consequently set aside the same;

(c) declaring the action of Respondent No.3 in passing a relieving order dated 25.05.2024 (bearing Rc. No. E1P/Spl/OMC/2024) as mala fide, arbitrary, illegal and consequently set aside the same, and..."

2. Heard Sri D. Prakash Reddy, learned Senior Counsel, representing

Sri M. Abhinay Reddy, learned counsel for the petitioner, and learned

Government Pleader for Services-I, appearing on behalf of the learned

Advocate General, for the respondents.

3. Learned Senior Counsel for the petitioner submitted that while the

petitioner was working as Professor and the Head of the CT Surgery

Department, three Post Graduate Teachers submitted a complaint to

him on 07.05.2024 against one Dr. P. Sri Sai Janani, I year Post

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Graduate student, which was immediately brought to the notice of

respondent No.4. While so, the aforesaid Dr. Janani submitted a false

complaint against the petitioner and the other Post Graduate students,

to respondent No.4 on 08.05.2024, alleging that they had discriminated,

threatened and harassed her, but the petitioner was never provided with

a copy of the complaint of Dr. Janani dated 08.05.2024. He was also

neither served with a copy of the preliminary enquiry report dated

10.05.2024 alleged to have been submitted nor was he aware of the

contents therein. Subsequently, an Internal Complaints Committee

(ICC) was constituted by the Osmania Medical College to look into the

allegations leveled against the petitioner vide complaint of Dr. Janani

dated 08.05.2024. Later, as per the directions in the letter dated

11.05.2024, the petitioner appeared before the ICC on 14.05.2024.

4. It was further submitted that the ICC is yet to conclude its

investigation, record findings and submit an enquiry report. However,

pending the conclusion of investigation and submission of enquiry

report by the ICC, to the utter shock and surprise of the petitioner, he

was transferred on 'administrative grounds' to Government Medical

College, Wanaparthy, vide G.O.Rt.No.195 dated 24.05.2024 issued by

respondent No.1. Consequently, respondent No.2 issued a letter dated

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25.05.2024, directing the transfer of the petitioner, and respondent No.3

issued the relieving order dated 25.05.2024.

5. It was further submitted that so far, no disciplinary proceedings

have been initiated against the petitioner by the respondents. Therefore,

the impugned transfer could not have been effected as per G.O.Ms.No.81

dated 18.06.2018. Further, in the event respondent Nos.1 and 2 are

considering the proceedings before the Internal Complaints Committee

as disciplinary proceedings, the same cannot be countenanced as the

disciplinary proceedings have to be conducted by the competent

authority or the concerned authority as per the Service Rules of State of

Telangana but the proceedings before the Internal Complaints

Committee are governed by the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013 (for short,

'the Act, 2013'). It is a well settled law that following the enquiry report

submitted by the ICC, empowered under Sections 13 and 19 of the Act

2013, initiation of disciplinary proceedings or action may be

recommended by the employer. However, in the case of the petitioner,

the ICC is yet to conclude the enquiry and submit its report. As such,

the transferring the petitioner vide impugned G.O.Rt.No.195 dated

24.05.2024, by placing reliance on G.O.Ms.No.81 dated 18.06.2018 is ex

facie illegal.

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6. It was further submitted that as per G.O.Ms.No.81 dated

18.06.2018, in order to effect a transfer subsequent to 16.06.2018, on

the ground of an administrative exigency at an available vacancy, a

proposal for such transfer, along with proper justification is necessary to

be submitted to the Finance Department. However, the impugned

transfer order vide G.O.Rt.No.195 dated 24.05.2024, does not disclose

submission of any proposal to the Finance Department, justifying the

transfer of the petitioner. As such, the impugned order is in violation of

G.O.Ms.No.81 dated 18.06.2018. Learned counsel further submitted

that the impugned order is malicious as it was not based on any

germane factors that necessitated the petitioner's transfer, and it was

solely based on an irrelevant ground i.e., the false allegations leveled

against the petitioner. Therefore, it can be ascertained that the transfer

was consequential to the complaint of Dr. Janani dated 08.05.2024.

Hence, the petitioner's transfer is effected as a form of punishment, and

hence, the said transfer is punitive in nature. Further, in the complaint

dated 08.05.2024, from Dr. Janani, allegations were leveled against

other individuals apart from the petitioner. However, no action has

been taken against the said individuals and the petitioner alone is being

targeted, which shows the malicious attitude of the respondents.

Therefore, it was prayed to allow the present writ petition by setting

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aside the impugned transfer order dated 24.05.2024 and its

consequential relieving order dated 25.05.2024, issued by respondent

Nos.1 and 3, respectively. In support of his arguments, learned Senior

Counsel for the petitioner relied on the decision of the Hon'ble Apex

Court in Somesh Tiwari v. Union of India and others 1.

7. It was also submitted by the learned Senior Counsel for the

petitioner that subsequent to filing the writ petition and the interim

order of this Court dated 07.06.2024, a Memo dated 26.06.2024, was

issued by respondent No.1, calling the petitioner to show cause as to

why disciplinary proceedings shall not be initiated against him in

connection with the complaint of Dr. Janani. Thus, it is clear that no

disciplinary proceedings were initiated against the petitioner prior to

issuance of the impugned transfer and relieving orders. Despite the

interim order of this Court, even as on date, the petitioner is not

permitted to discharge his duties at respondent No.3 Hospital, nor is he

being paid remuneration since June, 2024. Therefore, it is once again

prayed to pass necessary orders in the present writ petition.

8. Per contra, learned Government Pleader submitted that the

impugned transfer order dated 24.05.2024, transferring the petitioner to

the Government Medical College, Wanaparthy, was issued based on the

1 (2009) 2 SCC 592

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complaint dated 08.05.2024, lodged by one Dr. P. Sri Sai Janani, I year,

P.G. CTVS, wherein, the petitioner is working as the Head of the

Department in CT Surgery Department, and therefore, keeping in view

the sensitiveness of the issue and that continuing the petitioner in the

same workplace would create an unpleasant situation, the respondents

have decided to transfer the petitioner. Further, there was also every

possibility of the petitioner meddling with the investigation and

tampering the evidences, which necessitated the petitioner's transfer on

administrative grounds. It was further submitted that based on the

complaint lodged by Dr. Janani, narrating the incidents that occurred

on 08.05.2024, between 10-52 hours and 11-50 hours, respondent No.3

has constituted a Committee to conduct a preliminary enquiry into the

allegations leveled against the petitioner. The said enquiry was

conducted in the chambers of respondent No.4 and a preliminary

enquiry report was submitted to respondent No.2 on 10.05.2024, stating

the sequence of events and held that there was prima facie evidence

against the petitioner. In turn, respondent No.2 had addressed a letter

to respondent No.1, requesting to take necessary action. Therefore,

keeping in view the sensitivity of the issue and unpleasant situation,

and since there was every possibility of the petitioner tampering with the

evidence and meddling with further enquiry, he has been transferred on

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administrative grounds to the Government Medical College,

Wanaparthy, vide G.O.Rt.No.195 dated 24.05.2024. Subsequently, one

Dr. Anant Bala, CT Surgeon, was kept in-charge of CTVS, Osmania

Hospital, for conducting the healthcare services and academic programs

of the Hospital. Therefore, the transfer was affected only on

administrative grounds. Further, the petitioner also did not attribute

any mala fide intentions on any of the officers.

9. It was further submitted that as per paragraph Nos.2 and 11 of

G.O.Ms.No.81 dated 18.06.2018, transfer can be effected on the ground

of disciplinary proceedings but in the case on the petitioner herein, his

transfer was effected on administrative grounds. Further, the

Department is yet to initiate disciplinary proceedings against the

petitioner pursuant to the complaint lodged by the victim and the

preliminary report of the Internal Complaints Committee. Therefore, the

contention of the petitioner that the impugned order vide G.O.Rt.No.195

dated 24.05.2024 is contrary to G.O.Ms.No.81 dated 18.06.2018 is

highly untenable. It was further submitted that the concurrence of the

Finance Department can be subsequently obtained and ratified by the

Department. Therefore, the contention of the petitioner that the

impugned order attracts the principle of malice in law is absolutely

without any merit and does not stand for consideration of this Court as

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no mala fides are attributed to any of the officers. It was further

submitted that the Internal Complaints Committee is enquiring into the

allegations leveled against the petitioner which fall within the domain of

Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013. Therefore, there is no illegality in issuing the

impugned transfer order and the respondents are fully justified in

transferring the petitioner to the Government Medical College,

Wanaparthy, on administrative grounds. Hence, it is prayed to dismiss

the present writ petition. It was further submitted during the pendency

of the present writ petition, the petitioner had sent threatening e-mails

to respondent No.1 during the mid-nights on 14.09.2024, 15.09.2024

and 16.09.2024. Therefore, it is once again prayed to dismiss the

present writ petition. Learned Government Pleader relied on the

decisions of the Hon'ble Apex Court in SK Nausad Rahaman and

others v. Union of India and others 2 and The Tamil Nadu

Agricultural University and another v. R. Agila 3.

10. This Court has taken note of the rival submissions made by the

learned counsel for the respective parties.

2 (2022) 12 SCC 1 3 Judgment dated 20.08.2024 in Civil Appeal No.10005-10010 of 2024

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11. A perusal of the record discloses that the impugned transfer order

of the petitioner dated 24.05.2024 was issued based on a complaint

from one I year P.G. student, Dr. P. Sri Sai Janani, dated 08.05.2024,

wherein, she alleged misconduct not only against the petitioner but also

against five other individuals (a nurse, a III year and three I year P.G.

students). However, as can be seen from the record, no action was

taken against the said individuals, and only the petitioner is subjected

to transfer to Government Medical College, Wanaparthy. The

respondents have also failed to provide any justifiable reason for taking

action only against the petitioner. This selective action violates Article

14 of the Constitution of India, which guarantees equality before law,

and raises serious concerns with regard to the truthful intention behind

the transfer of the petitioner.

12. The record further reveals that the impugned transfer order vide

G.O.Rt.No.195 dated 24.05.2024 was issued by respondents, based on

the preliminary enquiry report submitted by the Internal Complaints

Committee, which was constituted under the Sexual Harassment of

Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,

to enquiry into the allegations of sexual harassment against the

petitioner. However, in her complaint dated 08.05.2024, Dr. Janani

alleged, "threatening, harassment and treated me bad as low caste

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person in my department-CTVS Today (08.05.2024) at 10.52 AM to

11.50 AM", but no incident of sexual harassment was alleged against

the petitioner. Based on her complaint, an Internal Complaints

Committee was constituted that conducted an enquiry and submitted

the preliminary enquiry report on 11.05.2024. However, the petitioner

specifically contended that he was not provided a copy of the

preliminary enquiry report of the Internal Complaints Committee dated

11.05.2024, and no counter submissions were presented to rebut this

contention of the petitioner.

13. The record also makes it evident that the entire litigation

originated from a complaint lodged against Dr. Janani, by the petitioner

and other P.G. students on 07.05.2024. Only after the said complaint

was filed, Dr. Janani submitted her counter-complaint against the

petitioner and the six other P.G. students on 08.05.2024, alleging

misconduct against them. The sequence of events makes it abundantly

clear that the complaint of Dr. Janani was retaliatory in nature. As

such, the action of the respondents in taking an adverse action against

the petitioner by placing reliance on such a counter-complaint, without

duly considering the earlier complaint against Dr. Janani, raises serious

concerns regarding the fairness of the proceedings.

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14. Coming to the impugned transfer order vide G.O.Rt.No.195 dated

24.05.2024, which is said to have been issued in accordance with the

orders issued in G.O.Ms.No.81 dated 18.06.2018, whereby, the

Government had imposed ban on transfers. The following

circumstances were enlisted as exceptions for transfer:

I. Posting orders to the employees on account of promotion shall be issued to the clear existing vacancies without shifting any other employees.

II. Posting orders to the employees due to disbandment of posts, reversions, repatriations, deputations (on Foreign Service only), disciplinary proceedings shall be issued in clear existing vacancies without shifting other employees.

III. Posting orders to the employees on return from long leave of more than six months shall be issued in clear existing vacancies without shifting other employees. The vacancy arising out of leave up to a period of six (6) months (i.e., the maximum period of Earned Leave that can be available by a Government Employee at a time as per G.O.Ms.No.153, Finance (FR.I) Department, dt.04- 05-2010) shall not be filled in by transfer.

15. From the above, it is clear that a transfer may be effected if an

employee is facing disciplinary proceedings. However, in the case on

hand, admittedly, no disciplinary proceedings were initiated against the

petitioner as on 24.05.2024, i.e., prior to issuance of the impugned

transfer and relieving orders.

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16. In the said G.O.Ms.No.81 dated 18.06.2018, the Government had

also issued clear instructions with regard to transfer of employees

on/for administrative exigencies/efficiency. The relevant portion of the

said G.O. is as under:

"5. In respect of the existing vacancies to be filled for administrative efficiency, the same shall be filed with persons who have completed one year of active service at their present station, duly submitting proper justification of the proposal for obtaining the concurrence of Finance Department."

17. According to the aforesaid paragraph, in the cases of

administrative exigencies, a proposal justifying the transfer must be

submitted to the Finance Department for obtaining concurrence.

However, in the case on hand, no such concurrence was obtained. As

such, it can be construed that there are procedural flaws in issuing the

impugned transfer order.

18. The Hon'ble Apex Court, in Somesh Tiwari (supra), while dealing

with a similar case of transfer, which is an incidence of service, should

not be interfered with, unless mala fides are attributed to the authority

passing such an order, and also held that a transfer in lieu of

punishment is liable to be set aside. The relevant portion of the said

decision is extracted hereunder: