ORDER
S.S. Nijjar, J.
1. This petition under Article 227 of the Constitution of India is filed with a prayer for quashing the order passed by the Industrial Court, Kolhapur in Complaint (U.L.P.) No. 9 of 1982 dated 31st March, 1986 wherein the complaint filed by the petitioner against the order dated 4th March, 1982 has been dismissed. The
facts of the present case would be an apt illustration of the phrase “Justice delayed is justice denied” but for the fact that the impugned order had been stayed at the admission stage itself.
2. The petitioner who is a Class-IV employee of the first respondent joined the service on 26th April, 1968 as a Mile Mazdoor in the Building and Communication Department of the Panchayat Samiti, Miraj. He was made permanent from 1st April, 1974 and assigned duty of a Mile Mazdoor on the Kavathepiran-Dudhagaon section of the Road, falling within the jurisdiction of the Miraj Panchayat Samiti, Sangli. He continued to work in the said section for more than 14 years without any break or transfer therefrom. By virtue of an agreement dated 26th July, 1977 governing the service conditions of the Mile Mazdoors it is necessary that the place of work of a Mite Mazdoor should be within the radius of 5 kilometers from the place of residence of the mazdoors. Under another settlement dated 6th September, 1971 a Mile Mazdoor is required to look after the maintenance work of the road for 5 kilometers if the road is an asphalt one and 314 kilometers if the road is a metal one. According to the petitioner there have been no transfers of any Mile Mazdoors of the Zilla Parishador the Miraj Panchayat Samiti outside his section. By virtue of Circular No. T.R.F.-1077-XII of the General Administration Department, Govt. of Maharashtra dated 27th Sept. 1977, Class-IV servants are ordinarily not transferred outside the station as long as their services are satisfactory and they can be transferred from one station to another only when the authority competent to transfer them is satisfied that there is a special reason for doing so. The petitioner states that his services have always been satisfactory and there are no adverse entries in the service book. However, a complaint came to be made by one Shri D.S. Nalawade, Road Karkun under whom the petitioner was working with regard to the alleged negligence of work, insolence and insubordination of the petitioner on 12-2-1982. A perusal of this report to the Deputy Engineer shows that he had earlier also made a report dated 10-2-1982 regarding the absence of the petitioner from work on 9th Feb. 1982. A perusal of this complaint shows that the said Road Karkun was complaining about the petitioner not arriving at work on time, not doing work assigned to him, leaving work without any permission, leaving the work unfinished and his behaviour is stated to be rude. He also stated that he is doing personal work at his village. He has also been warned against his illegal and improper behaviour for taking material and Government property such as road side trees, bushes etc. for using as fuel at home instead of protecting them. It is stated that he replies very insolently and threateningly. He is stated to be very rude. It is also stated that he instigates the Mazdoors not to do work. In view of the above it is requested that appropriate action be taken against the petitioner. Then a show cause notice is issued to the petitioner on 12th February, 1982 with the aforesaid allegations. He was asked to give a written explanation in particular about his absence on 9th February, 1982. The petitioner gave his written explanation on 15-2-1982. A perusal of this explanation shows that the petitioner has tendered an explanation to the effect that he was assigned to do the work of filling Murrum and potholes on the Samdoli approach road. He was present on the said road from 8.30 a.m. to 5.30 p.m. on that day. It is stated that the report made against him is deliberate at the instance of the Overseer which is totally false. It is requested that the injustice done to him may be investigated. The explanation was found to be unsatisfactory. He was again directed to submit explanation within 7 days as to why he should not be sanctioned leave without pay for the month of February, 1982. The petitioner again submitted a reply on 3rd March, 1982 and staled that he had already submitted the
explanation on 15-2-1982 to the earlier notice. He further states that he has never disobeyed the orders of the superiors with regard to the office work. It is only because he has refused to do personal work of superiors that the report has been made against him vindictively. On 1st March, 1982 Shri D.S. Nalawade, Road Karkun sent another complaint against the petitioner to the Deputy Engineer in which fresh allegations were made to the effect that the petitioner does not come to work at about 8.00 a.m. but rather reports at 10.00 a.m. He is also stated to gossip with the other workers and disturbs their work. It is reiterated that [he petitioner used very rude language and gives threats that his Union will take up his cause. It is, therefore, requested that appropriate legal action be taken against the petitioner. Without taking any further explanations from the petitioner order dated 2nd March, 1982 is issued whereby he is transferred from Kavthe-Piran Division to Belankil, Salgare. One Mr. G.C. Dhavle is transferred and posted in his place. The petitioner is directed to join by 5th March, 1982. Reason for transfer is stated to be position of the road repairs in the division. The petitioner has not joined on the transferred place of posting. He represented against the order of transfer on 15th March, 1982. In this explanation the petitioner clearly states that his transfer is vindictive. The concerned Road Karkun D.S. Nalawade had told the petitioner to go to the bungalow of Shri C.D. Pol. Overseer with the direction to collect butler and eggs from the village and to bring the same on every Saturday and Sunday. Since the petitioner refused to do this personal work, the Road Karkun and the Overseer had made false complaints. It is also stated that the wife of the petitioner was very ill and, therefore, he could not report at the place to which he had been transferred and had, therefore, obtained 15 days leave by annexing the Doctor’s certificate to the application. The petitioner requested the Deputy Engineer to investigate and sympathetically consider the injustice done to him. It is further stated that the Road Karkun and Overseer have abused the petitioner in unequivocal words as he did not go to the bungalow of the concerned officer and refused to bring the butter and eggs for him. The petitioner also stated that two officials have threatened him that he should obey the orders of his superiors otherwise he would be made to sit at home. Even his wages for the month of February were not paid. An explanation was called by the Executive Engineer from the Deputy Engineer by his letter dated 20th March, 1982. The Deputy Engineer by his letter dated 25/29th March, 1982 stated that the petitioner does not report for work on time and speaks to his superiors in an insolent manner. It is stated that this fact must have come to the notice of the Executive Engineer when the petitioner was working in his office. It is stated that the complaints made by the petitioner against the Junior Engineer and the Road Karkun are false. It is stated that he is transferred because of his rude behaviour and he can be re-transferred if there is improvement in his behaviour. It is, however, submitted that on the whole the petitioner is of no use. It is even recommended that the transfer of the petitioner to some other Taluka may be considered. In view of the aforesaid facts the petitioner filed Complaint (U.L.P.) No. 145 of 1982 before the Industrial Court at Pune. A number of objections have taken by the respondents. After hearing the parties, the Industrial Court passed an order dated 31st March, 1986 directing the petitioner to resume his new posting within three weeks from the date of the order. If alter resuming his duties at new posting the work and conduct of the petitioner is found to be satisfactory by his immediate superiors for a period of 9 months from the date of his joining and if thereafter he applies for a transfer to a place convenient to him the respondents were directed to consider that request favourably. No oral evidence was led by the parties. It was held that there is no bar in transferring Class-IV employees. It has been held that the transfer of the petitioner is not mala fide and that it was not necessary to issue a charge sheet against him. The other submissions made have also been rejected.
3. In my view, the findings recorded by the Industrial Court are erroneous. A bare perusal of the order of transfer when seen in the circumstances narrated above would show that the order is punitive in nature. All the correspondence narrated above clearly shows that it was not only the work of the petitioner which was held to be unsatisfactory but his conduct was equated to insubordination. He has also been found guilty of remaining absent from duty. In fact, in one of the letters it has been stated that he is of no use. The petitioner has categorically stated that his services have always been satisfactory and there are no adverse entries in the service book. In contrast to this, in the complaint made by D.S. Nalawade, Road Karkun under whom the petitioner was working it is stated that the petitioner is insolent and guilty of insubordination. This report refers to an earlier report dated 10-2-1982 which is with regard to the absence of the petitioner from work on 9th Feb. 1982. In this letter the Karkun had complained about the petitioner not arriving at work on time, not doing the work assigned to him, leaving work without any permission, leaving the work unfinished. It is stated that the behaviour of the petitioner is very rude. He has also been accused of stealing Government material such as road trees and bushes and using the same as fuel at his home. It is reiterated that the petitioner is very insolent and he threatens the officers with Union action. Even a show cause notice has been issued to the petitioner on 12th February, 1982. His explanation was asked for, which the petitioner submitted on 15-2-1982. The petitioner in the explanation has made serious allegations against the Karkun and the Overseer. Instead of considering the explanation of the petitioner the Karkun has made another report dated 1st March, 1982 against the petitioner to the Deputy Engineer. In all these complaints the request of D.S. Nalawade is that legal action be initiated against the petitioner. The explanation rendered by the petitioner to the effect that the officers are making illegal demands on the petitioner has been totally ignored. Instead of investigating the matter the order of transfer has been passed. It is a settled proposition of law that stigmatic remarks about the conduct of an employee cannot be made without observing the principles of natural justice. The impugned order of transfer is, therefore, clearly arbitrary and capricious exercise of executive power. Such kind of arbitrary exercise of the discretion is to be frowned upon. This view of mine also finds support from a Division Bench judgement of this Court in the case of Sheshrao Nagarao Umap v. State of Maharashtra and others, . In paragraph 5 of the said judgement this Court quoted the observations of the Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu, where it is held as under:
“Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged In the Constitution. Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus white Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public
employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Article 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice, in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”
Thereafter the Division Bench held:
“These observations of the Supreme Court equally apply to the policy regarding the transfers of public servants. It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best Judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration that even the administrative actions should be just and fair.”
In my view, the Industrial Court failed to take into consideration the relevant factors.
It was the duty of the Tribunal to investigate as to whether the order of transfer has
been passed in conformity with the provisions of Article 14 of the Constitution of India.
It is well settled that the jurisdiction of the High Court under Article 227 of the Constitution of India is limited when examining an order of the Government transferring an employee from one place to another. The facts narrated above are so gross, this Court would be failing in its duty if the jurisdiction vested in this Court under Article 227 of the Constitution of India is not exercised. Support for this view of mine can be provided by the judgement of the Supreme Court in the case of Sardar Pratap Singh v. State of Punjab, . In that case the Supreme Court observed as follows:
“Pausing here we might summarize the position by stating that the Court is not an appellate forum where the correctness of an order of Government could be canvassed and, indeed, it has no jurisdiction to substitute its own view as to the necessity or desirability of initiating disciplinary proceedings for the entirety of the power jurisdiction and discretion in that regard is vested by law in the Government. The only question which could be considered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstances events or matters wholly extraneous to the purpose for which the power was vested or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. In such an event the fact that the authority concerned denies the charge of mala fides or asserts absence of oblique motives or of its having taken into consideration improper or irrelevant matter does not preclude the Court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out.”…..
“The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual….”
The High Court of Calcutta also had an occasion to consider the submission that a transfer cannot be used as alternative to disciplinary proceedings or the order of suspension. In the case of S.V. Singh v. Union of India, 1988(2) S.L.R. 545 the Calcutta High Court held as under :
“While it is true that transfer is an incidence of the service of the petitioner but that does not mean and imply that the same be applied without any just cause or reason. There must be cogent administrative reasons for such an order of transfer in the absence of which the Law Courts will strike down the same. It is a powerful weapon in the hands of the administration but that does not clothe the administration to use it at random and to suit the convenience of same. It must be fair, reasonable and for administrative reasons. As noted above, it ought not to be used as an alternative to disciplinary proceedings or the order of suspension. If the facts warrant issuance of an order of suspension and initiation of an order of suspension and initiation of a disciplinary proceeding, the authority ought not to use the strong weapon in it and by ordering a
transfer in lieu [hereof and if the Law Courts permit such an action it
cannot but lead to a social catastrophe.”
It is my considered opinion that the order of transfer has been issued merely to avoid taking disciplinary action against the petitioner which would have entailed holding a departmental enquiry in accordance with the departmental rules and regulations. This powerful weapon of transfer has been used vindictively and maliciously without enquiring into the allegations made by the Karkun and the Overseer which have been countered by the petitioner. The least that the authorities could have done was to consider the explanation of the petitioner and to give him an opportunity of hearing.
4. In view of the above I find merit in the case of the petitioner. Apart from this, it appears that the predecessor of the Industrial Court had stayed the operation of the order. Similarly this Court had also stayed the operation of the impugned order of the Tribunal during the pendency of the petitioner. Thus it appears that substantial justice had been done to the petitioner. A perusal of the order of the Industrial Court shows that the authorities were directed to watch the conduct of the petitioner for a period of 9 months. They have now had an opportunity of watching his conduct for a period of last 15 years. There is no complaint against the petitioner. Had there been any complaint surely the respondents would have made an application for vacation of the order of stay. No such application has been made. But for the stay having been granted by this Court the facts of this case would illustrate that grave injustice would have been done to the petitioner.
5. In view of the above the writ petition is allowed. Rule is made absolute in terms of prayer Clause (a). The respondents are directed to pay to the petitioner costs which are quantified in the sum of Rs. 5,000/-. The respondents are directed to pay the said amount to the petitioner within a period of two weeks of the receipt of this order. Certified copy expedited.
6. Petition allowed.