Uttarakhand High Court
WPSS/876/2018 on 19 May, 2022
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WPSS No. 876 of 2018
Hon'ble Manoj Kumar Tiwari, J.
Mr. Piyush Garg, Advocate for the
petitioners.
Mr. Narayan Dutt, Brief Holder for the
State.
Heard learned counsel for the parties.
Petitioner no.1 is serving as Head
Constable while petitioner no.2 is serving as
Constable, in Civil Police.
By means of this writ petition,
petitioners have challenged the order dated
23.04.2018 passed by Deputy Inspector
General of Police, Garhwal Range, whereby
they have been transferred on
administrative ground from Dehradun to
Rudraprayag. In the transfer order, it is
mentioned that as per the video, which
went viral on 04.02.2018, petitioners were
consuming liquor in Police Line with certain
other Constables. Impugned order further
goes on to say that petitioners are
transferred, on instructions received from
Police Headquarters.
Learned counsel for the petitioners
contends that petitioners were placed under
suspension in contemplation of enquiry vide
order dated 18.02.2018 passed by Senior
Superintendent of Police, Dehradun,
however, their suspension was revoked, on
27.02.2018. Thereafter, on 28.03.2018 a
notice was issued to the petitioners to
show-cause as to why the allowance paid to
them during suspension period be approved
as their salary. Another notice was issued to
the petitioners on 28.03.2018 to show
cause as to why punishment of censure be
not given to them for their conduct.
Based on the aforesaid chain of
events, learned counsel for the petitioners
submits that petitioners were not
transferred due to administrative exigency
but they were transferred by way of
punishment, which is impermissible.
In the counter-affidavit filed by
respondent no.4, the stand taken is that
petitioners have violated Rule 4 A of the
Government Servants (Conduct Rules),
2002, therefore, it was decided that they
should be transferred on administrative
ground.
Mr. Narayan Dutt, Brief Holder for the
State has referred to para nos. 9, 14 and 15
of the counter-affidavit filed by Senior
Superintendent of Police, Dehradun, which
is reproduced below:-
"9. That the contents of para 9 of the
writ petition are denied. It is clarified here that
the contention of the petitioner in answering
paragraph are related in regard to the viral
video in which consuming Beer is the main fact,
in case the petitioners were not consuming beer
in Police office, no such video could have been
be prepared. The employees who have
consumed Beer in Police office are also fully
liable for it therefore, the petitioners have
violated the rule 4 'A' of Uttarakhand State
Employees Conduct Rules 2002.
14. That the contents of para 14 of the
writ petition are denied as incorrect and
misconceived, it is stated that the consuming
Beer in Police office is a act of indiscipline, for
which a different punishment is given inlaw, but
transfer in administrative grounds is not a
punishment. The petitioners are given proper
opportunity of hearing through show cause
notices.
15. That the contents of para 15 of the
writ petition are denied. Since the petitioners
alongwith other employees are guilty for
indiscipline therefore during the departmental
enquiry, it is best option to transfer them in
administrative grounds, which is normal process
in service."
Hon'ble Supreme Court in the case of
Somesh Tiwari Vs. Union of India and
Others (2009) 2 SCC 592 has summarised
the legal position on punitive transfer, as
follows:-
"16. 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. 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. When an order of transfer is passed in
lieu of punishment, the same is liable to be set aside
being wholly illegal."
From the stand taken in the counter-
affidavit, it is apparent that petitioners were
transferred by way of or in lieu of
punishment, which has been held to be
impermissible by Hon'ble Supreme Court in
the aforesaid judgment. On this point alone,
the writ petition is allowed. The impugned
transfer order dated 23.04.2018 is quashed.
However the Competent Authority shall be
at liberty to proceed in respect of the
petitioners, as per law.
(Manoj Kumar Tiwari, J.)
19.05.2022
Shubham
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