IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/04/2003
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION No.11777 OF 2002
AND
WPMP.NO.15868 OF 2002
and
WVMP.NO.695 OF 2003
M. Sigamani
S/o. Munusamy .. Petitioner
-Vs-
The Management of
Central Institute of Plastics
Engineering & Technology,
Rep. by its Director General,
Guindy, Chennai 32. .. Respondent
Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.Fredrick Castro
For Respondent : Mr.A. Thirumurthy
:J U D G M E N T
The facts giving rise to the present writ petition are as follows :
Petitioner was working under the respondent as Senior Technical
Officer. It is asserted that the employees of the respondent are covered by
various rules of the Government of India such as Fundamental Rules, CCS CCA
Rules, etc. The respondent has framed certain rules contained in the
Administrative Manual, wherein it is indicated These Rules are framed for the
effective functioning and administration of CIPET. Wherever CIPET rules are
silent on any subject, Central Government rules on the subject are
applicable. It is stated that in the year 1999, an enquiry was started
against one Karupusamy, a Senior Technical Officer with regard to certain
irregularities committed by him. In course of enquiry, to a question put by
the Management, the aforesaid Karupusamy gave answer that the students had
paid the course fee to him and he had given the same to the present
petitioner. On the basis of said enquiry, aforesaid Karupusamy was imposed
with punishment of stoppage of 5 increments with no promotion for 5 years, but
retained in Chennai. An order of transfer dated 10.10.2000 was issued to the
present petitioner transferring him from Chennai to Bhopal. At that stage,
the petitioner made a representation indicating that he should not be
subjected to transfer as a measure of punishment. The respondent then issued
a charge-sheet against the petitioner and initiated departmental enquiry.
Ultimately, the enquiry officer submitted a report accepting the charges
against the petitioner. On the basis of the said report, the Director General
has passed the order dated 28.3.2002 to the following effect :
. . . I have gone through your explanation dated 7.1.2002
submitted by you in response to the Memorandum dt.2.1.2002. I have also
perused in detail the inquiry proceedings and other related files. I do not
find any mitigating reasons to absolve you from the charges framed against
you. Again in the interest of fair justice you have been given the
opportunity of personal hearing on 11.03.2002 and the same was postponed to
28.03.2002 at your behest. You have been heard personally by me on
28.03.2002.
I am of the view that the findings of the Inquiry Officer is in order
and the misconduct committed by you is grave in nature warranting serious
consideration with severe punishment. As a responsible Officer one has to act
prudently in the interest of the organisation. The way in which you have
conducted yourself and responded to the proceedings shows your easy going
attitude and non-committed to the profession and to the Institute. During
personal hearing also your reply is not convincing enough.
Even though the misconduct committed by you warrants severe
proportionate punishment, considering your age and your career prospects, a
lenient view is taken and you are transferred to CIPET Bhopal with immediate
effect. You have to report for duty at Bhopal on or before 15 th April 2002.
. . .
2. The above order is being challenged by the petitioner on the
ground that transfer is not one of the punishments contemplated under Rule 60
of the CIPET Administrative Manual and therefore, transfer should not have
been imposed as a punishment.
3. Rule 60 is to the following effect:
60. The following are the penalties which may be imposed on CIPET
employees:
Minor Penalties
i. Censure
ii. Withholding of promotion
iii. Recovery from pay of the whole or part of any pecuniary loss caused by
an employee to the institute by breach of orders or by negligence.
a. Reduction to a lower stage in the time scale of pay for a period
not exceeding 3 years without cumulative effect.
iv. Withholding of increments of pay.
Major Penalties:
v. Save as provided for in Clause (iii) (a), reduction to a lower
stage in the time scale of pay for a specified period, with further directions
as to whether or not the employee will earn increments of pay during the
period of such reduction and whether on the expiry of such period the
reduction will or will not have the effect of postponing the future increments
of his pay.
vi. Reduction to lower time scale of pay, grade, post or service which shall
not ordinarily be a bar to the promotion of the employee to the time scale of
pay, grade, post or service from which he was reduced, with or without further
directions regarding conditions of restoration to the grade or post or service
from which the employee was reduced and his seniority and pay on such
restoration to that grade, post or service.
vii. Removal from service which shall not be a disqualification for further
employment elsewhere.
viii. Dismissal from service which shall ordinarily be a disqualification for
future employment elsewhere.
ix. Compulsory retirement.
4. A perusal of the aforesaid rule clearly indicates that the
transfer is not a punishment to be imposed.
5. In the present case, from the impugned order, which has been
extracted, it is apparent that the order of transfer has been passed as a
measure of punishment. Since the penalty which can be imposed had been
enumerated and transfer is not one of the penalties, it is obvious that the
order passed by the Managing Director is not contemplated under the relevant
rules governing the field and such an order cannot be sustained and in normal
course, such an order is liable to be quashed.
6. Learned counsel for the respondent has however submitted
that the transfer is being an ordinary incident of service, the order of
transfer, even if violation of instructions, cannot be challenged in a court
of law as there is no legally enforceable right. For the aforesaid purpose,
the learned counsel has placed reliance upon the decision reported in AIR 1993
SC 2444 (UNION OF INDIA AND OTHERS v. S.L. ABBAS). He has also placed
reliance on the subsequent decision of the Supreme Court in 1995(2) SCC 532
(CHIEF GENERAL MANAGER, (TELECOM) N. E. TELECOM CIRCLE AND ANOTHER v.
RAJENDRA CH. BHATTACHARJEE AND OTHERS).
7. A perusal of the aforesaid decisions makes it clear that
ratio in those cases is not applicable. In all those cases, the order of
transfer had been effected for administrative reason and not as a measure of
punishment, whereas in the present case, the order itself indicates as if
transfer order has been passed as a measure of punishment. As already
indicated, the rules relating to imposition of penalty do not contemplate
transfer as a punishment.
8. For the aforesaid reasons, the writ petition is allowed.
No costs. Consequently, the connected miscellaneous petitions are closed.
Index : Yes
Internet : Yes
dpk
To
The Management of
Central Institute of Plastics
Engineering & Technology,
Rep. by its Director General,
Guindy, Chennai 32.