Transfer orders that are punitive in nature must uphold principles of natural justice, including the right to a hearing prior to their issuance.

JUDGMENT :

KAUSHIK GOSWAMI, J.

1. Heard Mr. I. Rafique, learned counsel appearing for the petitioner. Also heard Ms. B. Sharma, learned CGC appearing for the respondent.

2. The petitioner who is serving as constable under the administrative control of Northeast Frontier Railway, Maligaon, calls into question the transfer order dated 19.09.2024 whereby he has been transferred from 1^st Battalion Railway Protection Special Force, Lumding, Karbi Anglong, Assam, to 11^th Battalion of Railway Protection Special Force, Ghaziabad, Uttar Pradesh.

3. The challenge is primarily on the ground that the impugned transfer, though styled as an administrative transfer, is in substance a punitive transfer, issued without affording the petitioner any opportunity of hearing and in violation of principles of natural justice.

4. Mr. I. Rafique, learned counsel appearing for the petitioner, submits that the impugned transfer order attributes to the petitioner involvement in groupism, disobedience of senior officers, and creation of indiscipline. The impugned transfer order advises counselling and warns of serious disciplinary action. These recitals make the impugned order stigmatic. He further submits that the impugned transfer order not being preceded by any show cause notice or enquiry, the same is totally illegal, arbitrary, and discriminatory.

5. Per contra, Ms. B. Sharma, learned CGC appearing for the respondent, submits that the impugned transfer was necessitated by administrative interest to restore discipline in the unit, as several personnel, including the petitioner, were allegedly forming groups and disturbing institutional functioning.

6. I have given my due consideration to the arguments advanced by the learned counsel appearing for the contending parties and also perused the materials available on record.

7. The short question for consideration is whether the impugned transfer order is a bona fide administrative transfer or a punitive transfer founded on allegations of misconduct.

8. Although transfer is an incident of service, where misconduct forms the foundation, the transfer assumes a punitive character. In other words, when an order of transfer carries stigma or is based on specific allegations or imputations, it ceases to be a simple transfer and assumes the character of panel action. The courts while exercising extraordinary writ jurisdiction in the context of allegations of transfer being punitive, are empowered to lift the veil and examine the real nature of the transfer order. Reference in this regard is made to the decision of the Apex Court in the case of Somesh Tiwari Vs. Union of India & Ors. (2009) 2 SCC 592 , wherein the Apex Court has held that a transfer founded on allegations of misconduct is punitive and unsustainable without opportunity of hearing. The relevant Paragraph of the aforesaid judgment reads as under: –

“16. 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. 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