BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/11/2011 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA and THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal (MD)No.994 of 2011 K.Anbalagan .. Appellant Vs 1.The Director of Elementary Education, Chennai. 2.The District Elementary Educational Officer, District Elementary Education Office, Thanjavur. 3.The Assistant Elementary Educational Officer, Assistant Elementary Education Office, Sethubavachathiram Union, Thanjavur District. .. Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order passed by this Court in W.P.(MD)No.10742 of 2011 dated 21.09.2011. !For Appellant ... Mr.A.Chandrakumar for Mr.Veera Kathiravan ^For Respondents... Mr.V.Pandi, Government Advocate :JUDGMENT
(Judgment of the Court was delivered by K.N.BASHA, J.)
This writ appeal is preferred by the appellant challenging the order of
the writ Court dated 21.09.2011 passed in W.P.(MD)No.10742 of 2011 dismissing
the writ petition filed by the appellant herein challenging the impugned order
of transfer dated 15.09.2011.
2.The case of the appellant is that he was working as Headmaster in
Kuruvikarambai Panchayat Union Elementary School, Sethubavachathiram Union,
Thanjavur District. He was appointed on 28.07.1999 as Secondary Grade Teacher in
the Manakadu Panchayat Union Elementary School. Subsequently, on 05.11.2007, he
was promoted as Headmaster and transferred to R.K.Nagar Panchayat Union
Elementary School. On 18.09.2008, he was again transferred to Kuruvikarambai
Panchayat Union Elementary School, Sethubavachathiram Union, Thanjavur District.
The appellant is having unblemished record of service.
3.The third respondent has preferred a complaint against the appellant on
22.09.2010 with a mala fide intention and ulterior motive. Thereafter, the
petitioner was asked to submit his explanation by the second respondent, and
after he submitted his explanation, the second respondent, passed an order dated
10.11.2010 and dropped the complaint preferred by the third respondent.
Thereafter, the third respondent developed vengeance against the appellant and
continuously preferred complaints against him before the second respondent.
Subsequently, on 22.03.2011, the appellant preferred an application under the
Right to Information Act, before the third respondent, requesting to furnish
some details about the school. As the said request was not considered, he has
preferred an appeal before the second respondent on 15.04.2011. On his
application, the second respondent directed the third respondent to consider the
request of the appellant and to answer the queries. After the said direction,
the third respondent has not considered the request of the appellant. When such
being the position, the appellant was served with the impugned order of transfer
dated 15.09.2011 passed by the second respondent, transferring him from
Kuruvikarambai Panchayat Union Elementary School to Chellapillaiyar Kovil Union
Elementary School. The reason assigned in the impugned transfer order is to the
effect that the appellant had intervened in the smooth functioning of the office
administration and repeatedly filed applications under the Right to Information
Act and there was no cordial relationship between himself and the third
respondent and as such, the impugned order of transfer was passed. Being
aggrieved over the said transfer order, the appellant preferred a writ petition
in W.P.(MD)No.10742 of 2011 and the writ Court, dismissed the writ petition at
the admission stage itself by order dated 21.09.2011. Being aggrieved against
the said order, the present writ appeal has been filed by the appellant.
4.Learned counsel for the appellant vehemently contended that the impugned
order of transfer was not passed on the ground of administrative reasons and the
same is one of punitive order as the reasons assigned in the impugned order of
transfer is to the effect that the appellant was interfering in the smooth
office administration and repeatedly making applications under the Right to
Information Act and that he was not having cordial relationship with the third
respondent. Learned counsel for the appellant would contend that in view of the
impugned order of transfer passed due to the mala fide exercise and on the
ground of allegations, the same is liable to be quashed. It is contended that,
if at all any allegation is levelled against the appellant, the authority could
have very well initiated disciplinary proceedings by issuing charge memo and
getting explanation and thereafter, conducting proper enquiry in the manner
known to law. It is submitted that instead of resorting to such legal
action, the impugned order of transfer was passed only at the behest of the
third respondent herein and that the reasons also assigned in the impugned order
to the effect as stated above. Learned counsel for the appellant would also
place reliance on the decision of the Hon’ble Apex Court in Somesh Tiwari v.
Union of India, reported in (2009) 3 MLJ 727 (SC) and also the judgment of this
Court in R.Mohanasundaram v. The Principal Chief Conservator of Forests,
reported in 2009 (5) CTC 231. It is submitted that the writ Court has not
considered the said points, and dismissed the writ petition.
5.Per contra, Mr.V.Pandi, learned Government Advocate would contend that
there is no infirmity or illegality in the impugned order of transfer passed by
the second respondent herein. It is contended that only with an object of smooth
functioning of the institution, the appellant has been transferred. Learned
Government Advocate would further contend that the order of transfer is an
administrative order and the same cannot be challenged as a matter of right by
the appellant. It is pointed out by the learned Government Advocate that the
writ Court has elaborately dealt with the points raised by the appellant by
considering the decisions cited by the appellant, holding that those decisions
are not helpful to advance the contentions put forward by the appellant, and
rightly dismissed the writ petition.
6.We have carefully considered the rival contentions put forward by either
side and perused the entire materials available on record including the impugned
order of transfer and the order passed by the writ Court.
7.At the outset, it should be stated that a perusal of the impugned order
of transfer passed by the second respondent dated 15.09.2011 reveals that the
said order of transfer was passed mainly on the ground of smooth functioning of
the office administration meaning that the appellant causing hindrance for the
smooth functioning of the administration and as well as on the ground of the
conduct of the petitioner by making subsequent applications under the Right to
Information Act and the strained relationship between the appellant and the
third respondent and as such, it is crystal clear that the impugned order of
transfer was not passed on any administrative ground and on the other hand, it
is nothing but a punitive order.
8.The appellant raised the main contention before the writ Court that the
order of transfer is not an administrative order and on the other hand, it is an
order passed by way of punishment, on the ground of certain allegations which
were mentioned even in the impugned order of transfer. Though the appellant
relied on certain decisions of the Hon’ble Apex Court and this Court, the writ
Court has rejected the same and held that those decisions are not helpful to
advance the contentions put forward by the appellant. With respect, we are
unable to agree with the view expressed by the writ Court as it is very much
evident from the perusal of the impugned transfer order that such order had been
passed not on any administrative ground and on the other hand, by way of
awarding punishment, the said order was passed on certain allegations in respect
of the conduct of the appellant herein. At this juncture, it is relevant to
refer to the principles laid down by the Hon’ble Apex Court in its decision,
Somesh Tiwari vs. Union of India, reported in (2009) 3 MLJ 727 (SC). The Hon’ble
Apex Court, in the said decision, held in paragraphs-19 and 20 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. When an order of transfer is passed in lieu of punishment, the
same is liable to be set aside being wholly illegal.”
9.Learned counsel for the appellant also heavily placed reliance on the
decision of this Court in R.Mohanasundaram v. The Principal Chief Conservator of
Forests, reported in 2009(5) CTC 231. In the said decision, this Court also
placed reliance on the decision of the Hon’ble Supreme Court in Somesh Tiwari v.
Union of India (cited supra) and also placed reliance on an unreported decision
of a Division Bench of this Court in A.Micheal Raj v. Director General of
Police, Chennai in W.A.No.1138 of 2008 dated 20.04.2009. In Michael Raj’s case,
it has been held as under:-
“12.Though in the impugned order of transfer it is stated as if the
transfer has been effected on administrative grounds, the same has been given a
go-by in the counter affidavit filed by the respondents as stated above. As per
the averments contained in the counter affidavit the transfer was passed on some
adverse remarks / Complaints received against the appellant and also on the
basis of the report sent by the Director General of Police to the Inspector
General of Police, West Zone, and in such circumstances we are of the considered
view that the order of transfer passed against the appellant is by way of
punishment and that too without giving any opportunity of hearing to the
petitioner.”
This Court also referred to another decision of this Court in Sevugan, S. v. The
Chief Educational Officer, Virudhunagar District, reported in 2006 (2) CTC 486,
wherein this Court has held as follows:-
“7.It is seen from the impugned order of transfer that it is passed on
administrative ground, but it appears that the order was passed by way of
punishment and based on the complaint against the conduct of the petitioner. If
that be so, the petitioner is certainly entitled for proper opportunity to
defend himself as to whether the Complaints against him by the Public or by the
Headmaster is proper or not by way of an enquiry.”
Yet another Division Bench decision of this court in W.A.(MD)Nos.5 and 7 of 2007
dated 09.01.2007, was also referred in that decision wherein it was held that
though in the impugned order of transfer it was stated that the transfer was
effected on administrative ground, it is made clear in the counter affidavit
filed in the Writ Petition that the petitioner had not taken any efforts to
collect the sale proceeds of Fair Price Shops as detailed therein and
accordingly further held as under:-
“5.From the counter affidavit filed by the first respondent, it is clear
that by virtue of the report received from the Circle Deputy Registrar,
Paramakudi who is the Supervisory authority of all Co-operative Societies
functioning in Paramakudi Circle recommending for the writ petitioner’s transfer
and further it is seen that due to improper management by the petitioner, there
is a loss to the tune of Rs.2,96,959.30 to the Society funds, the first
respondent transferred the petitioner on administrative grounds to safeguard the
interest of the society. Considering the facts and circumstances of the case,
the learned Single Judge came to the conclusion that it is not a transfer
simpliciter, but it is a transfer with stigma. Therefore, the petitioner is
entitled for opportunity of enquiry to establish his case.”
10.We are of the considered view that the above settled principles of law
laid down by the Hon’ble Supreme Court and this Court are squarely applicable to
the facts of the case on hand, as in this case also, as already pointed out, the
impugned order of transfer was passed not on administrative ground, but on the
other hand, the same was passed only by way of punishment on certain allegations
levelled against the petitioner, as stated in the impugned order of transfer
itself.
11.In view of the aforesaid reasons, we are inclined to set aside the
order of this Court passed in W.P.(MD)No.10742 of 2011 dated 21.09.2011 impugned
in this writ appeal, as well as the impugned order of transfer dated 15.09.2011.
Accordingly, the writ appeal is allowed. Consequently, M.P.(MD)No.1 of 2011 is
closed. No costs.
12.It is now brought to the notice of this Court that in spite of the
order of status quo in this matter, the respondents have not allowed the
appellant to join in the original place and as such, the appellant has joined in
the transferred place, after the filing of the writ appeal. Such being the
position, the respondents herein are hereby directed to restore the original
position to the appellant, by transferring the appellant from Chellapillaiyar
Kovil Union Elementary School to the original school, viz. Kuruvikarambai
Panchayat Union Elementary School. Such exercise shall be completed within a
period of three weeks from the date of receipt of a copy of this order.
KM
To
1.The Director of Elementary Education,
Chennai.
2.The District Elementary Educational Officer,
District Elementary Education Office,
Thanjavur.
3.The Assistant Elementary Educational Officer, Assistant Elementary Education Office, Sethubavachathiram Union, Thanjavur District.
