The petitioner has come forward with this petition seeking for the relief of quashing the impugned order of transfer passed by the second respondent dated 18.5.2009 in his proceedings in S.O.No.16/09/Pa.
2. The case of the petitioner is that the petitioner is working as Forest Ranger, Kallakurichi range and he is having unblemished record of service. The petitioner suddenly received the impugned order transferring him from Kallakurichi range office to Villupuram division and the order was communicated to the petitioner on 20.5.2009 through the third respondent herein. The said order of transfer is stated to be on Administrative reasons. The petitioner states that the impugned order of transfer is tainted with malafide and vindictive in nature. It is the claim of the petitioner that the petitioner has taken stringent action against the persons who have committed offence under the Wild life and the Forest Act and certain accused are having grievance against the petitioner alleging that false cases have been foisted against them. It is stated by the petitioner that one Gopi on 16.5.2009 threatened and challenged that the petitioner will be transferred and the petitioner has also given complaint against the said Gopi and a First Information Report was registered in Cr.No.205 of 2009, Chinnasalem Police Station. It is stated by the petitioner that as the petitioner was strict and effectively taking stringent action against the accused persons, the said persons, being aggrieved against the petitioner, caused problem to the petitioner which resulted in the issuance of the impugned transfer order and the said transfer order is highly motivated and vindictive and as such the petitioner being left without no other alternative has come forward with the present petition seeking the above said relief.
3. Mr.S.Periyasamy, learned counsel for the petitioner vehemently contended that the impugned order of transfer was passed not on the ground of Administrative reasons as stated in the impugned order of transfer but on the ground of certain adverse false allegations levelled against the petitioner and as such the impugned order is unsustainable in law. It is contended by the learned counsel for the petitioner that even in the counter it is categorically stated that there are certain adverse remarks levelled against the petitioner and the petitioner also committed certain dereliction of duties and irregularities and only on those grounds the impugned order of transfer was passed. The learned counsel for the petitioner by placing reliance on the Judgment of the Honble Apex Court in Somesh Tiwari Vs. Union of India and others reported in 2009(3) MLJ 727 (SC) contended that the impugned order of transfer is unsustainable as the said order is passed only on the basis of certain adverse remarks and allegations levelled against the petitioner and such transfer would amount to be a punishment. It is contended by the learned counsel for the petitioner that in the above said decision the Honble Apex Court has held that the transfer order passed not on the basis of genuine factors but on a irreverent ground i.e., on the allegations made against the delinquent officer, then such order of transfer would attract the principles of malice in law. Therefore, it is contended by the learned counsel for the petitioner that the impugned order of transfer is liable to be set aside.
4. Per contra, Mr.S.N.Kirubanandam, Special Government Pleader (Forest) contended that the impugned order of transfer was mainly passed on Administrative reasons. It is contended by the learned Special Government Pleader that the petitioner said to have registered certain false cases which resulted in law and order problem as group of public gathered and garrowed in front of the office of the petitioner which resulted in law and order problem and as such the respondents are left with no other alternative except to transfer the petitioner with a view to avoid law and order problem in that particular place. It is submitted by the learned Special Government Pleader that the impugned order is passed only in the interest of the petitioner to avoid unnecessary problem for him as the public revolted against alleged registration of false cases. Therefore, it is submitted that the impugned order of transfer does not suffer from any illegalities and no ground is made out for warranting the interference of this Court.
5. I have carefully considered the rival contentions put forward by either side and also perused the materials available on record.
6. A perusal of the impugned order of transfer discloses that the said order was passed on administrative reasons. But, on the other hand, it is strenuously contended by the learned counsel for the petitioner that the impugned order was passed on the ground of malafides and certain adverse remarks and allegations have been taken into consideration for passing the order of transfer and therefore, the transfer was passed by way of punishment. This Court is of the considered view that there is much force in the contention put forward by the learned counsel for the petitioner in view of certain averments made in the counter affidavit filed by the third respondent herein. It is relevant to refer certain averments stated in the counter as herein :
7. .... The petitioner has such a character of not obeying even his basic duties. The petitioner has not changed his attitude and his performance of duty is below normal. Since there is no improvement in his performance and also registering false case creating unlawful situation in the administration, it necessitated to transfer him to another place where the workload is comparatively lesser than at Kallakurichi. ..... Since it is not possible to mention each and every dereliction of his duties, irregularities improper service etc. in the transfer order, in concise it has been stated that the transfer is on administrative grounds.
7. The above said averments in the counter makes it crystal clear that the impugned order of transfer was passed not on administrative reasons, but on some adverse remarks and allegations received against the petitioner and as such this Court has not hesitation to hold that the impugned order of transfer was passed against the petitioner only by way of punishment and that too without giving any opportunity for the petitioner to give explanation for such adverse remarks and allegations.
8. The Hon'ble Apex Court in Somesh Tiwari V. U.O.I. reported in 2009 (3) MLJ 727 (SC) held that, "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 malafide on the part of the authority is proved. Malafide is of two kinds one malice in fact and the second malice in law.
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. A Division Bench of this Court in an unreported Judgment in A.Micheal Raj V. Director General of Police Chennai (W.A.No.1138 of 2008) dated 20.04.2009 held as follows :
"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."
10. In a similar matter in Sevugan, S. V. The Chief Educational Officer, Virudhunagar District reported in 2006 (2) CTC 486 this Court held that, "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.
8. In these circumstances, this Court is of the view that the transfer order passed by way of punishment is without any opportunity to the petitioner and on the face of it, the order of transfer is illegal and the same is liable to be set aside. Accordingly, the impugned order is set aside."
11. In yet another decision of the Division Bench of this Court in W.A.(MD)Nos.5 and 7 of 2007 dated 09.01.2007, it was held that though in the impugned order of transfer it was stated that the transfer was affected 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 sales proceeds of Fair Price shops as detailed therein and accordingly further held that, "5. From the counter affidavit filed by the first respondent, it 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 simplicitar, but it is a transfer with stigma. Therefore, the petitioner is entitled for opportunity of enquiry to establish his case."
12. The above settled principle of law laid down by the Hon'ble Apex Court and this Court is squarely applicable to the facts of the case on hand as in this case also the impugned order revealed that the petitioner was transferred on administrative grounds, but the counter filed by the third respondent made it abundantly clear that the transfer order was passed against the petitioner not on administrative reasons, but the impugned order was passed by way of punishment on the basis of certain allegations and adverse remarks made against the petitioner.
13. In view of the above said reasons, this Court is constrained to quash the impugned order and accordingly, the impugned order passed by the second respondent in his proceedings in S.O.No.16/09/Pa dated 18.05.2009 is hereby quashed. However, it is made clear that if there is any complaint against the petitioner, it is open to the Department to initiate appropriate action in accordance with law and on such event the petitioner shall be given sufficient opportunity by conducting proper enquiry in the manner known to law.
This writ petition is ordered accordingly. Consequently, connected M.P.No.1 of 2009 is closed. No costs.
kua/gg To
1. The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai-600 015.
2. The Conservator of Forests, Villupuram Circle, Villupuram.
3. The District Forest Officer, Kallakurichi Division, Kallakurichi, Villupuram District