Heard both sides.
2.The petitioner was appointed as Assistant Inspector of Labour on 13.05.1980 and he was employed in the same post for the past 29 years without any promotion. He was transferred to the post of Assistant Inspector of Labour, Circle VI, Thirunelveli, by order, dated 20.08.2007 and within a period of two year, the first respondent passed the impugned order of transfer of deputation and posted the petitioner as Superintendent in the office of the Labour Officer (Social Security Scheme), Ramnad and this order is challenged in this writ petition.
3.It is contended by the learned counsel appearing for the petitioner that the impugned order is not an order of transfer, but is a real order of deputation and as per F.R.110(a), no Government Servant shall be transferred to Foreign Service without his consent and the impugned order of transfer by way of deputation was passed without getting his consent and it is also against the G.O.Ms.No.10 A & AR, Department, dated 07.01.1994 as amended, by which there is a Ban order for transfer of Government Servant for the year 2009-2010.
4.The Respondents filed a counter stating that the petitioner in his capacity as Assistant Inspector of Labour was notified as 'Inspector' under Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and as per the provision of the Beedi and Cigar Act, his duty is to enforce the health and welfare provisions relating to working hours, leave, etc., for which he is authorised to inspect the Beedi or Cigar manufacturing premises. But, the petitioner misused his position and exercised his powers and caused unnecessary harassment to the management without any valid reason or authority. Therefore, complaints were received from M/s.Seyadu Beedi Company, Tirunelveli, about the petitioner's misuse of his official position and caused unnecessary harassment to the management and the petitioner also threatened the contractors of the Company. The complaints were looked into and they revealed that the petitioner within three months from his joining his office has created a file bearing No.RC.69/07, dated 28.11.2007 called for from the management of the above noted Beedi Company's, audited books of accounts and also the details of Syed Beedi Pooling Agents, Pooling Godowns, owners of pooling Godowns, Beedis purchased/taken, Beedies marketed, excise amount paid, and by subsequent proceedings, dated 12.12.2008, he issued summons for enquiry and also sent a show cause notice, dated 03.01.2009. Therefore, prima facie materials and evidence were made available to prove that the petitioner has conducted himself in a high-handed manner, travelling beyond the boundaries of his official jurisdiction and therefore, the Deputy Commissioner of Labour, Tirunelveli, was instructed to conduct an enquiry and despite notice given to the petitioner, the petitioner has failed to participate in the enquiry before the Deputy Commissioner of Labour, Tirunelveli and therefore, the Deputy Commissioner of Labour, Tirunelveli, by his proceedings, dated 26.06.2009, sent a report stating that there are no acceptable reasons for the conduct of the petitioner in dealing with the complainants/Beedi establishments and that the petitioner is a person incapable of maintaining good relationship and inter-action with his official superiors and also with the management of industrial establishments and the Deputy Commissioner of Labour, Tirunelveli, has also by his official letter, dated 10.07.2009, recommending the transfer of the petitioner from the post of Assistant Inspector Labour, VI Circle, Tirunelveli and considering all these aspects, the petitioner was transferred to non-sensitive post without prejudice to the departmental action contemplated against him and in that circumstances, the impugned was passed and as per the judgment of this Honourable Court made in W.P.No.3587 of 2003, dated 05.02.2003 wherein the Division Bench of this court upheld the power of the Commissioner to send any officer on deputation and therefore, the impugned order cannot be challenged and the petition is liable to be dismissed.
5.Mr.A.Thirumurthy, the learned counsel appearing for the petitioner, submitted that the impugned order cannot be construed as a simple transfer or an order of deputation and it is also admitted by the respondents that the order was passed as a result of various complaints received against the petitioner by the Beedi manufacturers about the alleged abusing of the official position by the petitioner, interfering with the administration of the Beedi Manufacturers, by calling information which are not within his preview and the respondents also admitted that an enquiry was conducted and on the basis of the report of the Enquiry Officer and on the advise of the Deputy Commissioner of Labour, the impugned order was passed and hence, the impugned order of transfer is by way of punishment and in that case, without giving opportunity to the petitioner, the transfer order cannot be passed and hence, it is liable to be quashed.
6.Mr.A.Thirumurthy, the learned counsel appearing for the petitioner further contended that the impugned order cannot be treated as a deputation order and even if, it is construed that the petitioner is sent on deputation, it is a settled law that when a person is sent on deputation his consent must be obtained and therefore, if the order is construed as an order of sending the person on deputation without getting his consent, the order is not valid.
7.He further submitted that the judgment relied upon by the respondent rendered in W.P.No.3587 of 2003 cannot be applicable to the facts of this case, as in that case there was no mala-fide attributed to the petitioner therein, and the order of transfer, by deputation was not made as an order of punishment.
8.Mr.M.Rajarajan, the learned Government Advocate, appearing for the respondents, submitted that the petitioner was sent on deputation as Superintendent to the office of Labour Officer (Social Security Schemes) Ramnad and as per the Fundamental Rules 110)(b), Commissioner has got power to issue an order and that has been upheld by this court in W.P.No.3587 of 2003 and hence, the order is perfectly valid in law.
9.Having regard to the contention of both parties, we will have to see whether the petitioner was transferred due to public interest and administrative reasons or the petitioner was sent on deputation by transfer as a punishment. In other words,is it a punitive transfer or not.
10.The proceedings of the 1st respondent, dated.15.07.2009, which is impugned in this writ petition, discloses that due to public interest and administrative reasons, the petitioner is transferred and posted as Superintendent in the office of Labour Officer (Social Security Schemes), Ramnad.
11.It is further stated in the same order, in the penultimate part that the petitioner is instructed to serve on foreign service terms and conditions, in FR 110-114 and G.O.Ms.No.111, Personnel and Administrative Reforms (Fr-II) Department, dated 02.05.1994 for three years from the date of joining or till retirement or till he is recalled from foreign service. Therefore, a perusal of the said order would disclose that he was transferred as Superintendent to the office of the Labour Officer (Social Security Scheme), Ramnad and it is a foreign service. Fundamental Rule 110-A(a), says that no Government Servant may be transferred to foreign service against his will. Though, the later part of the impugned order gives an impression that the petitioner is transferred to the foreign service in fact he was transferred as Superintendent to the Office of the Labour Officer, (Social Security Scheme), Ramnad, which is coming within the Tamil Nadu Construction Workers Welfare Board. Therefore, it was argued by the learned Government Advocate, Mr.Rajarajan, that it is not a transfer order, but transfer on deputation and therefore, as per the Division Bench of this court, the order is to be upheld.
12.As a matter of fact, the respondents in para 2 point 2.7 of the counter has stated in clear terms that on a cumulative consideration of the various aspects of the complaints and owing to exigency of service it was decided to transfer the petitioner to a non-sensitive post without prejudice to the departmental action contemplated against him. Accordingly, the first respondent issued orders in his proceedings No.E4/36530/2009, dated 15.07.2009 transferring the petitioner on deputation as Superintendent to the office of the Labour Officer (Social Security Schemes), Ramnad and consequently, the second respondent issued orders in his Proceedings No.Aa1/10824/2009, dated 15.07.2009 posting the petitioner as Superintendent in the office of the Labour Officer (Social Security Schemes), Ramnad.
Therefore, it is seen from the counter as well as from the submissions made by the learned Government Advocate, the petitioner was transferred on deputation. In my opinion, whether the petitioner was transferred on deputation or transferred due to administrative reasons and in public interest, when it is admitted that the order was passed on the basis of some allegations made against the petitioner and on the basis of the report of the Deputy Commissioner of Labour, who conducted enquiry into the allegations and submitted a report, the order of transfer must be construed only as a punishment and it is a settled position of law that when a person is transferred as a punishment on the basis of certain allegations, the said transfer is void when no opportunity is given to the person to answer the charges levelled against him. In the counter, it has been made clear in para 2, part 2.4, 2.5 & 2.6 that the impugned order was passed on the basis of the allegations made against the petitioner, by the Beedi Manufacturers and the allegation made in para 2 of point 2.4 to 2.6 also makes it clear that the impugned order was not issued due to public interest or administrative reasons, but only with a view to favour some Beedi Manufacturing Units and therefore, the impugned order is stated to be mala-fide and hence, it is liable to be quashed.
13.In the judgment rendered in W.P.No.3587 of 2003, this court has held that for deputation, no consent is necessary and the Fundamental Rules 110(b), permitted the Commissioner of Labour to transfer the Labour Officer and the Assistant Commissioner of Labour and interpreting that laws, the Honourable Division Bench of this court has held that when the Commissioner has got power to send the higher officer on deputation, there is no reason, why the commissioner should not have the power to send a person, who is Assistant Inspector of Labour on deputation. In that case, the question of mala-fide or complaint against the official were not raised. But in this case, even admitted by the respondents, there was complaint against the petitioner and enquiry was conducted by the Deputy Commissioner of Labour and on the basis of the enquiry report, the impugned order was passed.
14.Further, it is made clear that the order was passed without prejudice to the departmental action contemplated against the petitioner and it is stated in para 2 in point No.2.7 that "on consideration of the various aspects of the complaints and owing to exigency of service it was decided to transfer the petitioner to a non-sensitive post without prejudice to the departmental action contemplated against him."
Therefore, it is clearly admitted by the respondents that the transfer order or impugned order, by whatever name it is called, was on the basis of the complaint given against the petitioner and hence, it amounts to transferring a person as a punishment and that cannot be done without giving opportunity to the petitioner. Hence, the impugned order of the respondents are set aside
15.In fine, this writ petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
er To,
1.The Commissioner of Labour, Chennai-600 006.
2.The State of Tamil Nadu Constructional Worker Welfare Board, Chennai.
3.The Government Advocate, Madurai Bench of Madras High Court, Madurai.