JUDGMENT
S.D. Dave, J.
1. This First Appeal has been directed against the judgment and decree pronounced by the learned City Civil Judge, Court No. 7, Ahmedabad City, dated 30th January, 1987, decreeing the suit of the plaintiff-employee against the defendant-State.
2. The present appellant is the original defendant-State, while the present respondent is the original plaintiff Govt, servant.
3. The original plaintiff Shri Badal Sagar has filed the Civil Suit No. 3019 of 1986 against the State for the declaration that the defendant is not entitled and authorised to transfer him from his present post and for the permanent prohibitory injunction restraining the defendant from transferring him to Sadra or at any other place. The case of the plaintiff-Shri Badal Sagar is that he was appointed as a junior clerk by the District Collector, Ahmedabad, by the orders dated 7-7-1981 and thereafter he was allocated to the service under the Health Department with effect from 15-7-1981. According to him, since then he used to work as a junior clerk in the abovesaid department. He was working in “C” Branch in the office situated at New Hospital compound and that, he had worked from 15-7-1981 to 24-8-1983 and thereafter with effect from 25-8-1983 he was transferred in the accounts division and he used to work in the same post and the place till the date of filing of the suit. According to the plaintiff he used to discharge his duties honestly, sincerely and diligently and that, his superior officer were completely satisfied with his work. But his case is that the attitude and heaviour of two other colleagues, namely P.C. Sheth senior clerk and M.G. Dudani the Administrative Officer were curt, rude and objectionable and, therefore, about 45 persons working under the branch under the leadership of the plaintiff had made certain representations against Shri Sheth and Shri Dudani. It is also the case that he was required to meet the superior officers in person and was also obliged to submit the written representation. The case of the plaintiff further is that because of such representations, which came to be made by him, Shri Sheth and Shri Dudani were annoyed with him and that they had threatened him that he shall be transferred in the near future. It is the case of the plaintiff that Shri Sheth and Shri Dudani are working on the same post since 15 to 22 years respectively and that, they have got very good relations with the senior officers. It is also the case of the plaintiff that because of the close relations the abovesaid two persons were able to do anything according to their own choice and desire. It is also the case of the plaintiff that the defendant had told him somewhere in February, 1986 that he shall be transferred at Sadra situated within the District of Gandhinagar. According to him, he had presented himself on duty on 13-2-1986 and at that time it was brought to his notice that he has been already transferred to Sadra, but according to him, he had not received any transfer order. It is therefore his case that he had continued to work in the Accounts Department of the Branch. It is also his case that he was under the apprehension that rnr. Sheth and Mr. Dudani would be able to effect his transfer and that the superior officers would be influenced by Shri Sheth and Shri Dudani, and therefore, he had approached the then Health Minister and had made certain representations. It is also his case that the Health Minister had in his turn had informed the concerned officer not to effect his transfer. It is also his case that by the circular dated 23-6-1978 the Government have evolved the policy regarding the transfer and looking to the abovesaid policy he is not liable to be transferred because he has not completed the requisite service on the same place. It is therefore the case of the plaintiff that he was not required to be transferred.
4. Any how the case of the plaintiff further is the transfer order are mala fides and not in accordance with the administrative exigencies and that he he being victimised by the defendant-State. It is also his case that he has got to look after his old infirm and sick parents and that his mother was suffering at the relevant time by deadly disease cancer and, therefore also he was not required to be transferred. It is, therefore, that by filing the suit on 7-5-1986 the plaintiff has prayed for a declaration to the effect that the defendant is not entitled to transfer him. He has also prayed for the permanent prohibitory injunction restraining the defendant from effecting his transfer from Ahmedabad to Sadra within the district of Gandhinagar.
5. The above said case of the plaintiff came to be challenged by the defendant-State of filing the W.S. at Ex. 13. The defendant-State have denied the material allegations of the plaintiff and have contended that the plaintiff is already transferred from Ahmedabad to Sadra by the orders dated 3-2-1986. It is also the say of the defendant-State that the plaintiff is already relieved from the duties with effect from 10-2-1986. According to the defendant-State all the efforts were made to deliver the relieving order dated 10-2-1986 and the transfer order dated 3-2-1986 personally as well as by post to the plaintiff but that the plaintiff has refused to accept the same. It is also contended that the plaintiff has completed about five years in the service at Ahmedabad, and, therefore also he was not entitled to claim any benefit from the alleged guidelines. The defendant-State have categorically denied the allegation that the transfer of the plaintiff was effected with mala fides. On the other hand it has been the contention of the defendant-State that the transfer order was issued in the interest of the administration. It is on this basis that the defendant-State had prayed for the dismissal of the suit of the plaintiff against them with cost.
6. Upon the above said pleadings of the parties the learned trial Judge had framed the issues at Ex. 22. On the appreciation of the evidence on record the learned trial Judge had reached the conclusion that the plaintiff was able to establish that the impugned orders of transfer were effected by the defendant-State at the instigation of the colleagues of the plaintiff. Reaching to the above said conclusion the learned trial Judge has ultimately decreed the suit of the plaintiff. A declaration has been give no the effect that the impugned orders of transfer are illegal, unoperative and that the defendants should be restrained by way of perpetual injunction from implementing the transfer orders. Thus the learned trial Judge has decreed the suit. Being aggrieved and dissatisfied with the above said judgment dated 30-1-1987 and the consequent decree that the present appeal has been filed by the appellant, namely, the original defendant-State.
7. Mr. U.R. Bhatt the learned A.G.P. appears on behalf of the State, while the respondent has been represented by the learned Advocate Mr. P.V. Hathi.
8. Mr. Bhatt the learned A.G.P. who appears on behalf of the State has contended mat the learned trial Judge has committed a grave error in coming to conclusion that the orders of transfer are passed in mala fide and that therefore, they are not binding to the plaintiff. Mr. Bhatt has contended that it is the prerogative of the defendant-State to transfer a particular employee or a Government servant from one place to the other place, according to the administrative exigencies. Indeed Mr. Bhatt the learned A.G.P. has further contended that the orders of transfer should not be reviewed by the Civil Court as if me Civil Courts are sitting in appeal against the orders of transfer, unless it is established mat the orders are mala fide. Mr. Bhatt has also urged mat the employee who seeks to challenge the transfer orders on the ground that they are passed in mala fide is required firstly to make a specific mention or allegation of mala fides on the part of the transferring authority and thereafter, subsequently the employee is required to establish his allegations. According to Mr. Bhatt, in the instant case no allegations of mala fides have been made against the transferring audiority and some allegations against some colleagues cannot be equivated widi the allegations of mala fides against the transferring authority. Mr. Bhatt has also urged mat there is no proof that the orders of transfer are tainted with mala fide. Mr. Bhatt therefore has urged that the view taken by the learned trial Judge is ex-facie erroneous and requires to be quashed.
9. But Mr. Hathi the learned Advocate who appears on behalf of the respondent has contended that the employee or the Government servant who comes before the Court of law saying that the orders of transfer are mala fide and colourable, cannot be expected to come with the specific case regarding the allegations of mala fides against a particular Government officer because the Government has to run a very big machinery and it would not be possible for an employee, to find as to at what juncture the mala fides had prayed its role. Coming to the facts of the instant appeal, Mr. Hathi has urged that the plaintiff employee had approached the Civil Court with a clear-cut contention of mala fides and that he has been able to substantiate his say. It is also the contention raised by Mr. Hathi that the conduct on the part of the superior officers in effecting the service of transfer order etc. would also go to show that the defendant-State were acting under the mala fides. Mr. Hathi therefore has urged that the present appeal deserves to be dismissed and there is no reason for the interference in the judgment and decree under appeal.
10. Before going to various case laws on which both Mr. Bhatt and Mr. Hathi have placed reliance, it shall have to be pointed out that, ordinarily it is a prerogative of the State to effect the transfer of a particular employee from one place where he is working to any other suitable place. But the above said action should be taken by the State in discharge of its duties and for the effective management of the department. It is equally true that, though the above said unfettered powers have been given to the State, at no time the State would be entitled to act maliciously, capriciously or under mala fides. In view of this position, therefore if an employee of the State Government wants to challenge the orders of transfer and if he wants the Civil Court to intervene and to stay the operation of the transfer orders, he shall have to satisfy that the defendant-State was acting under mala fides. Before an employee of the State Government could be expected to establish the mala fides on the part of the defendant-State he would be naturally required to make specific allegations in this respect. The question of proof would naturally follow the averments in the pleadings. Unless clear-cut allegations are made in the pleadings, the other side would not be in a position to meet with the case proposed to be put forth by the plaintiff. If the allegations are not specific it would be extremely difficult for a Civil Court to come to any conclusion this way or the other. In view of this position it requires to be appreciated that a plaintiff who seeks a judicial review of a transfer order must approach the Civil Court with a clear and specific case.
11. In the instant case the put forth by the plaintiff Shri Badal Sagar is that the behaviour of two collegues, namely Mr. P.C. Sheth the Senior Clerk and Mr. M.G. Dudani the Administrative Officer, was not proper and they were known for their curt and rude behaviour. It is also the case of the plaintiff employee that this type of attitude and behaviour adopted by the above said two colleagues had amounted to a great mental torture on the staff working in the same office, and therefore, the plaintiff and other 45 members of the staff were required to make a representation to the superior officer saying that the behaviour and attitude of the above said two colleagues are objectionable. It is also the case put forth by the plaintiff in the pleadings that he had accepted the responsibility of making the necessary representation and that, he had played a leading role in the representation against the above said two colleagues and he was also required to write certain letters to the superior officers. It therefore becomes clear from the above said averments made by the plaintiff that the grievance of the plaintiff and certain other members of the staff were against the above said two colleagues or the officers, namely Shri Sheth and Shri Dudani. It requires to be appreciated that the plaintiff does not say anything against the transferring authority, namely, Dr. Gupta.
12. In the next para the plaintiff has stated in a round about fashion that Shri Sheth and Shri Dudani are working in the same office situated in the same compound since last more than 15 to 22 years and that, therefore they have got very good and close relations with the superior officers. It requires to be pertinently appreciated that while saying so in the pleadings, the plaintiff has added an adjuctive clause, saying that the above said is “his information gathered from other colleagues”. Therefore the say of the plaintiff is that, according to his information the above said two colleagues are having intimate and close relations with the superior officers. Here also it requires to be appreciated that the plaintiff does not say that the above said two officers had good relations with Dr. Gupta. The plaintiff also does not say that his transfer was effected at the instance of the above said two colleagues. The plaintiff also does not say that the said two colleagues were instrumental in effecting the transfer orders which came to be challenged by him later on.
13. It is therefore clear that the plaintiff has not made any allegation against the transferring authority, namely Dr. Gupta. It is an admitted position that Shri Sheth was working as a senior clerk while Shri Dudani was working as the Administrative Officer. The immediate superior of the plaintiff was one Dr. Patel. It requires to be appreciated that no allegations have been made against Dr. Patel. It is indeed true that in issuing the transfer order probably Dr. Gupta would be guided by the opinion to be expressed by Dr. Patel. At any rate Dr. Gupta would like to know the views of Dr. Patel. But here, as noticed above, no allegations of mala fides have been levelled against Dr. Patel also. The only allegation levelled in the pleadings is that the above said two officers had close and intimate relations with the superior officers. It is also the say of the plaintiff as noticed above, that, he had made certain representations before higher officers regarding the working of Shri Sheth and Shri Dudani.
14. Having made a reference to the case of the plaintiff in the pleadings, one shall have to examine the evidence on record. The plaintiff has examined himself at Ex. 23. He has stated that he used to work in the accounts branch since 25-8-1983 and that the attitude of the two colleagues, one Mr. Sheth and another Mr. Dudani was not found to be satisfactory and therefore certain representations were made and he had taken a leading role in the same. It is also his say that he had made a representation before the defendant. The defendant happens to be the State and therefore, it appears that the say of the plaintiff is that, he had made the necessary representation before Mr. Gupta. It is also, further, his say that the copies of the letters were also provided to the police and that, later on he had also made a representation before the Director and ultimately a reply was given to him. It is also his say during the course of the oral evidence that Mr. Dudani was working as the Administrative Officer and he had threatened him that he shall be transferred. He has also stated further that both Mr. Sheth and Mr. Dudani have got good relations with the Director Dr. Gupta and, therefore, he was under the apprehension that he would be transferred. Looking to the evidence, it appears that at the trial stage the plaintiff has tried to say that Mr. Dudani and Mr. Sheth have got very good relations with Dr. Gupta. But as noticed above this material allegation is found to be absent in the pleadings. To recall the case put forth by the plaintiff in the pleadings he had only stated that Mr. Sheth and Mr. Dudani had got good relations with the superior officers.
15. The above said aspect is of utmost importance because Mr. Hathi has urged that Dr. Gupta had failed to appear in the witness box of the trial Court to refute the above said allegations made by the plaintiff. But it requires to be appreciated that such an averment was never made in the pleadings. Moreover, though such a say has been embodied in the oral testimony of the plaintiff he only wanted to convey that Mr. Sheth and Mr. Dudani had good relations with Dr. Gupta. He does not say, that because of this position and because the representations were made against Mr. Dudani and Mr. Sheth the Director was acting under mala fides while issuing the orders of transfer.
16. At para 13 of his evidence tha plaintiff has stated that he has got some documentary evidence to show that the transfer orders were effected only on the basis of the say of Mr. Dudani and Mr. Sheth. Because of this say of the plaintiff, during the course of his evidence, it was found absolutely necessary to inquire as to whether anything in such a form was produced before the learned trial Judge. Mr. Bhatt has urged that though the plaintiff has deposed as stated above on oath, nothing in form of documentary evidence has been produced. Mr. Hathi the learned Advocate who appears on behalf of the respondent was also not in a position to pin point any such evidence. It therefore becomes clear that, though the plaintiff has stated in his evidence that he has got some documentary evidence in this respect the above said say cannot be believed.
17. It therefore becomes clear that, firstly the plaintiff have failed to allege mala fides against the transferring authority in the pleadings. He has again failed during the course of trial to establish any mala fides on the part of the defendant or the transferring authority.
18. Having visualised the factual position, now this Court should examine the settled legal position in this respect.
19. Mr. Hathi has invited the attention of this Court to the Supreme Court decision in C.S. Rowjee and Ors. v. State of Andhra Pradesh . In this decision the Supreme Court has stated very clearly that when the allegations are made against the authorities they are required to refute such allegations. The Supreme Court has also stated that in the absence of such affidavits or materials placed before the Court by the authorities, the Court would be left to judge of the veracity of the allegations merely on test of probability with nothing more substantial by way of answer. But it requires to be appreciated that in the instant case, as noticed above, the allegations of mala fides have not been made against the transferring authority. It is only averred in me pleadings that the plaintiff had made certain representations against Mr. Sheth and Mr. Dudani who had got good relations with the senior officers. When no allegations whatsoever came to be made by the plaintiff against the transferring authority Dr. Gupta, he can never be expected to come before Court and to tender his evidence to refute the charge of mala fides, because there are no allegations of mala fides against him. One more decision in the same line on which Mr. Hathi has placed reliance is again the Supreme Court decision in the State of Punjab v. Ramji Lal and Ors. . In that case it has been laid down that to establish mala fides it would not be necessary to name in petition particular officer or officers responsible for the official act. It requires to be pertinently noticed that this case law also just like the previous one is not in line with the service matter. In this case before the Supreme Court, it appears that, the plaintiff had filed a suit in the Civil Court for pre-empting of sale. Later on the Government of Punjab had issued certain notifications saying that right of pre-empionshall not exits in respect of certain sale of lands. It is, therefore, clear that by passing two notifications the Government of Punjab had tried to thwart the right of the plaintiff in respect of pre-empting of a particular sale. The case of the plaintiff was that the defendant Government was acting in mala fides. It is in view of these facts that the Supreme Court had taken the view that it would not be necessary to name in the petition particular officer or officers of the Government who will be responsible for the official act. But here the case is not one of issuing the notifications by the State Government. Here the case is of a transfer of an employee by the State Government. Here is a case in which the plaintiff says very clearly that he has been victmised and the orders of transfer are colourable. In view of this position, looking to the facts of the instant case, the plaintiff was duty bound to make the allegations, pin pointed towards a particular officer or Dr. Gupta who was responsible for effecting the transfer.
20. The question of a judicial review by the Civil Court in respect of the transfer orders has come before the High Courts and the Supreme Court on various occasions. In Taragauri Kalyanji Khimani v. District Panchayat, Jamnagar and Anr. 1984 GLH 589 this Court had the occasion to examine the question regarding the transfer of Government servants vis-a-vis the Service law and Article 226 of the Constitution of India. The Division Bench of this Court was at pains to note that the Civil Courts, take matters of transfers lightly and quite often interfere making a casual approach in passing orders staying such transfers. The Division Bench has also stated thus:
The circumstances where a Court functioning under Article 226 of the Constitution would be justified in interfering with an order of transfer have been noticed by Courts. Gross violation of rules or self-declared policy relating to transfer indicating prima facie that there is a clear case of discrimination or circumstances which eloquently speak of mala fides would justify such interference. Any subordinate Civil Court merely because a suit is filed alleging that there is mala fide in the transfer would not be justified in passing an interim order staying the transfer even if there is a plea of mala fides remembering that mala fides succeed very rarely and it is not easy to make out successfully the case of mala fides. Courts should well be aware that it is not to take any and every statement of mala fides as deserving of notice for grant of interim relief.
21. It is true that the reference has been made to Article 226 of the Constitution and the interim orders to be passed by the Civil Court. But the principle remains the same that the Civil Court should not interfere with the transfer orders unless there is a clear-cut case of discrimination or unless the circumstances eloquently speak of mala fides.
22. The above said classic decision rendered by the Division Bench of this Court makes it abundantly clear that ordinarily the Civil Court should not interfere in the orders of transfer unless it is made out that the orders are passed in the colourable exercise of the powers vested in the Government or that the orders are mala fides. The mala fides can also be inferred or established from the circumstances which are eloquent.
23. One more decision rendered by the learned single Judge of this Court in District Supdt. of Police, Vadodara, Rural and Ors. v. Chhatrasinh Chandrasinh Vadajiya 1986 GLH 790 : 1986(2) GLR 1210 also requires a reference. The learned single Judge has stated at para 4 of the judgment that the order of transfer shall have to be upheld unless it is shown to be mala fide or contrary to the rules and regulations. Again in Dr. Jayesh Vasudev Trivedi v. State of Gujarat and Ors. 1989 GLH 323 : 1990(1) GLR 278 a learned single Judge of this Court had the occasion to examine the same question. The learned Single Judge has said very clearly that the mala fides should be such that it would vitiate the transfer order. The unequivocal opinion expressed by the learned single Judge further said that, till the Court is convinced about the mala fide action, the transfer order cannot be set aside.
24. Having had a look at the opinion expressed by this Court in the above decisions the reference shall have to be made to the Supreme Court decision in Syndiate Bank Ltd. v. Its Workmen 1966(1) LLJ 440. In this decision while examining the question in respect of transfer of a Bank employee and while considering the provisions contained under Section 10(l)9d) of the Industrial Disputes Act, the Supreme Court had the occasion to sum up thus:
It is true that if an order of transfer is made mala fide or for some ulterior purpose like punishing an employee for his trade union activities, the industrial tribunals should interfere and set aside such an order, because the mala fide exercise of power is not considered legal exercise of the power. But the finding of mala fides should be reached by industrial tribunals only if there is sufficient and proper evidence in support of the finding.
In E.P. Royappa v. State of Tamil Nadu and Anr. , the Supreme Court has expressed the opinion thus:
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
25. Therefore from the above said case law which can be accepted as the representative judgment in the arena of service law. It becomes clear that ordinarily the Civil Court should not sit in judgment in appeal on the orders of transfer effected by the State machinery. The orders of transfer can be successfully challenged in Civil Courts, if it is found that the orders are passed in mala fides and they are never effected for the administrative exigencies. It is also clear that the burden of establishing mala fide would be always very heavy on the person who alleges mala fides. Moreover the very seriousness of allegations of mala fides would required proof of a high order of credibility.
Now therefore, it is clear that in the instant case the plaintiff employee has only stated or alleged in the pleadings that he had made the representations against two persons, namely Mr. Sheth senior clerk and Mr. Dudani the Administrative Officer. One more allegation in round about manner is to the effect that the above said two colleagues had good relations with the superior officers. In other words it requires to be pointed out, even at the cost of repetition, that the allegations of mala fides against the transferring authority are not made in the pleadings. Moreover there is absolutely no evidence to warrant a conclusion that the transferring authority was working under the mala fides. In view of the position, it becomes clear that the learned trial Judge has erred in coming to the conclusion that the transfer orders require to be quashed and set aside as they are mala fides.
26. Before reaching the final conclusion in this respect, one more aspect of the case requires to be taken care of. It is the case of the plaintiff that the orders of transfer and the subsequent orders of relieving were sought to be served upon him in a manner which cannot be said to be a decent and a proper manner. A lengthy evidence in this respect has been adduced before the learned trial Judge. This evidence has almost influenced the judicial mind of the learned trial Judge. But it was required to be understood very clearly that all that had happened regarding the service of the orders had happened only after the passing of the impugned orders. Merely because there was some haste on the part of the department to serve the orders on the plaintiff-employee it cannot be said that the very orders of transfer were passed under mala fides. The evidence goes to show very clearly that the department had tried to serve the plaintiff with the orders of transfer and relieving in person but unsuccessfully. It is the case of the plaintiff that those orders have not been served upon him. In view of this position even it is accepted that there was some extra care on the part of the department to serve the plaintiff with the above said orders, it cannot be said that the very transfer orders were passed by the transferring authority while acting in mala fides.
27. Thus it becomes clear that the view taken by the learned trial Judge is not sustainable.
Before parting with the matter, three documents at Ex. 32, Ex. 32/A and Ex. 33 also require a passing reference. Ex. 32 is the letter addressed to Dr. Gupta under the signature of the plaintiff and about 45 other persons working in the same office. It is stated in this letter at Ex. 32 that the conduct and the attitude of Mr. Sheth and Mr. Dudani was not proper. Certain other complaints against the above said two colleagues have also been made in the letter at Ex. 32. Ex. 32/A is the letter dated 23-10-1985 addressed to Dr. Gupta. This letter is also signed by the plaintiff and about 45 other colleagues. In this letter a statement has been made to the effect that Mr. Sheth and Mr. Dudani, say very openly that, as they have got very good relations with Dr. Gupta nothing would happen to them. Ex. 33 is the letter addressed to the plaintiff under the signature of Chief Personel Officer dated 30th October, 1985. This letter says that the office has received the application dated 28-10-1985 complaining against Mr. Dudani and Mr. Sheth and that the matter shall be attended to by the Director. In the meanwhile the plaintiff has been requested to keep patience and to advice his colleagues to bear with the Director and to continue to discharge their functions as usual. These three documents on which Mr. Hathi has placed heavy reliance also would not go to show that they wanted to allege mala fides on the transferring authority, namely, Dr. Gupta. Moreover these three documents also cannot be treated as a proof of the allegations of mala fides.
28. It therefore becomes clear that the learned trial Judge was at an error in coming to the conclusion that the impugned orders are bad and they require to be quashed. The learned trial Judge was equally at an error in decreeing the suit.
Thus the present appeal requires to be allowed and the same is hereby allowed but with no order as to costs. The judgment and decree under appeal are hereby set aside and the suit of the plaintiff against the defendants is hereby dismissed, again with no order as to costs.