Uttarakhand High Court
WPSB/51/2021 on 28 January, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 28TH DAY OF JANUARY, 2021
BEFORE:
HON'BLE SHRI JUSTICE SHARAD KUMAR SHARMA
WRIT PETITION (S/B) No. 51 of 2021
BETWEEN:
Dr. Sandhya Raj (Female) aged about 32 years, W/o
Shri Kamal Kishor presently posted as In-charge
Medical Officer at Employee State Insurance
Dispensary, Jaspur District Udham Singh Nagar
Uttarakhand.
....Petitioner
(By Mr. D.S. Patni, Senior Advocate, assisted by Mr.
Dharmendra Barthwal, Advocate)
AND:
1. State of Uttarakhand through Secretary Labour &
Employment, Civil Secretariat Dehradun,
Uttarakhand.
2. The District Magistrate Udham Singh Nagar
Uttarakhand.
3. The Director Employees State Insurance
Corporation Makkawala Dehradun.
4. The Chief Medical Officer Employees State
Insurance Corporation Makkawala Dehradun.
5. Shri Narendra Singh Chauhan son of Shri Harpal
Singh resident of Patti Chauhan Jaspur District Udham
Singh Nagar, Uttarakhand.
.....Respondents
(By Mr. Puran Singh Bisht, Additional Chief Standing
Counsel for the State of Uttarakhand/respondent nos. 1
2
& 2 and Ms. Sakshi Singh & Mr. C.K. Sharma, Advocates
for respondent no. 3)
JUDGMENT
The petitioner, in the present writ petition,
has given a challenge to the impugned order of
transfer dated 20.01.2021, as was passed by
respondent no. 1, whereby her services of the
petitioner, which she was discharging, as an In-
charge Medical Officer, E.S.I. Dispensary, Jaspur,
District Udham Singh Nagar, have been sought to be
transferred from the said place of posting to Kotdwar,
District Pauri Garhwal. The impugned order of
transfer, as had been passed by the Secretary, Labour
Department, to the State of Uttarakhand, had been
passed by making a reference to the provisions
contained under Section 27, as well as Section 18(4)
of the Transfer Act. Both the provisions are extracted
hereunder:
"27. Removal of difficulties in the application of
the Act. - (1) After the promulgation of this Act, this
Act shall have over-riding effect on Acts/Annual
Transfer Policies of other departments:
Provided that if any change in any provision of
this Act, is required by any department due to any
specific circumstances of the department or any
deviation in necessary or relaxation is indispensable,
the proposal of such changes/deviations/relaxations
shall be submitted with reasons before the committee
constituted under the Chairmanship of Chief
Secretary and consisting the following members-
(a) Additional Chief Secretary/Principal
Secretary Forest and Infrastructure Development
Commissioner;
(b) Additional Chief Secretary/Principal
Secretary Agricultural Production Commissioner; and
(c) Principal Secretary, Personnel as its
member and necessary changes/deviations/
relaxations shall be allowed after the approval of the
Chief Minister on recommendations made by this
committee.
(2) This committee shall submit its
recommendations for the approval of Chief Minister
regarding the difficulties arising in application of this
Act or such unforeseen matters which are not
included in this Act, thereafter the State Government
may make rules as required."
"18. Procedure of Posting on Appointment/Promotion
and other Transfer. - In addition to annual/general transfer,
the procedure of posting in appointment/promotion and other
transfers shall be in following conditions, as follows-
(1) .......
(2) .......
(3) .......
(4) On enquiry, on the grounds of serious complaints of
misconduct, misbehaviour with senior officers and lack of
interest in work, etc. after necessary enquiry and
confirmation, transfer of such employee may be made on
administrative grounds:
Provided that the transfer on administrative grounds shall not
be made casually or on the basis of complaints of routine
nature and in the orders of such transfer it shall be necessary
to mention Administrative Grounds."
2. When yesterday, the matter was taken up,
the learned Senior Counsel for the petitioner has
argued the writ petition under the pretext that, the
impugned order of transfer, where it makes a
reference to Section 27, it does not make a reference
to the compliance of sub-section (2) of Section 27,
which contemplates a ratification/approval of the
decision, which had been taken by the Committee,
which is provided under sub-section (1) of Section 27
of the Act. To which, the learned Additional Chief
Standing Counsel, was granted time to complete his
instructions and make his statement about the
compliance of sub-section 2 of Section 27 of the Act.
3. If the provisions contained under Section
27(2) of the Act itself is taken into consideration, it
provides that, where the Committee, thus, constituted
under sub-section (1) of Section 27 takes a decision,
it has had to be compulsorily approved by the Chief
Minister, under sub-section (2) of Section 27.
4. The argument of the petitioner, is that the
reference to Section 27 and the decision taken by the
Committee, thus, provided under sub-section (1) of
Section 27 itself, was not validly constituted and even
the decision making process itself is bad in the eyes
of law. There are two reasons for not accepting this
argument of the learned Senior Counsel for the
petitioner. Because, at the first instance, the
challenge to the subsequent recommendation made
by a next superior authority i.e. none other than the
Chief Minister of the State, would have its automatic
implication that the decision of the Committee, thus,
constituted was justified, and valid, because it was
thereafter only the ratification, by way of an approval,
has been made by the Chief Minister, which is not the
subject matter of the challenge in the present writ
petition. Thus, argument extended by the learned
Senior Counsel for the petitioner, pertaining to the
impugned order not meeting out the spirit and the
provisions of Section 27 of the Act, is not accepted by
this Court.
5. Reverting back to the second limb of his
argument of invocation of sub-section 4 of Section 18
of the Act, he submits that, for the purposes of
attracting sub-section 4 of Section 18 of the Act, it
refers to an enquiry on the ground of a serious
complaint of misconduct. He submits that the
enquiry, which was said to have been conducted,
does not reflect a commission of a serious misconduct
on the part of the petitioner which could call for
transfer and, hence, the invocation of sub-section 4 of
Section 18, may not be justified in the circumstances
of the present case, because the leasing out of the
building, which was under the title and ownership of
the husband of the petitioner for the purposes of
E.S.I. Dispensary, may not be faulted, because it will
not amount to be a misconduct. The Court is of the
view that the term 'enquiry' used under sub-section 4
of Section 18 of the Act, as per the opinion of this
Court, will not be treated as to be a substitute to an
enquiry contemplated under the Disciplinary and
Appeal Rules of 2003, as it has been provided under
Section 24 of the Act. The logic behind it is that, if a
detailed enquiry, after recording of its evidence and
satisfaction, is required to be conducted under sub-
section (4) of Section 18 of the Act, then there was no
need for the Legislature to independently attract the
Disciplinary and Appeal Rules, by introducing its
applicability by Section 24 of the Transfer Act, as
referred therein.
6. As far as the allegations, which are
reflected from the transfer order, I am of the view
that since the petitioner herself was enjoying the
office of In-charge Medical Officer of E.S.I.
Dispensary, Jaspur, District Udham Singh Nagar, her
instrumentality, in extending the property belonging
to her husband, for the purposes of being leased out
for establishment of the E.S.I. Dispensary, will fall to
be within the ambit of sub-section (4) of Section 18 of
the Act and, consequently, the attraction of sub-
section (4) of Section 18 to be read with Section 27,
is not erroneous, and legally faulted.
7. The third limb of the argument of the
learned Senior Counsel, for the petitioner was from
the prospective that the provisions of Section 18 and
Section 27 contemplate a decision making process by
a Committee and the Transfer Committee, the
reference of which could be borrowed, is from Section
16 to be read with Section 17 of the Act itself and the
distinction, which is being sought to be argued by the
learned Senior Counsel, is that, if Section 17 is
harmoniously read with Section 18 of the Act, the
decision ought to have been taken by the Special
Transfer Committee, which is not contemplated under
Section 27 of the Act. There is yet another
justification for not accepting this argument of the
learned Senior Counsel, for the reason being that, the
constitution of a Committee, under Section 16, for the
purposes of considering the Annual General Transfer,
there happens to be a marked distinction, to the
Committee which is contemplated under sub-section
(1) of Section 27 and the Legislature has, that is why,
deliberately introduced the constitution of two
different distinct Committees, under Section 17 and
Section 27 of the Act, to meet out altogether a
different purpose of a specific set of allegations,
falling under Section 18 sub-section 4, for which the
Committee, to exercise the power, is provided under
Section 27 and, for the purposes of regular transfer,
its the Committee contemplated under Section 16 to
be read with Section 17. Hence, this distinction, with
regards to the defect pointed out by the learned
Senior Counsel for the petitioner, with regards to the
constitution of the Transfer Committee, is also not
acceptable by this Court.
8. For the aforesaid reasons and coupled with
the fact that the information supplied by the learned
Additional Chief Standing Counsel for the State today
that the approval of the decision of the Committee,
taking a decision under sub-section (1) of Section 27,
has been granted by the Chief Minister, I do not find
any apparent error in the order of transfer.
9. Consequently, the writ petition lacks merit
and the same is, accordingly, dismissed.
(SHARAD KUMAR SHARMA, J.)
Vacation Judge
Arpan
