Transfer based on complaint requires the employee to be given an opportunity to defend himself.

The writ petition is filed challenging the impugned order of transfer effected by the first respondent, dated 29.06.2009, transferring the petitioner, who is working as Record Clerk, in Kamaraj Municipal Higher Secondary School, Pettai to the Government Higher Secondary School, Veerasigamani, which is stated to be 60 kms away from the place where the petitioner is working.

2. Normally in cases of transfer on administrative grounds, the scope of interference by this Court exercising the jurisdiction under Article 226 of the Constitution of the India is very limited, since in service jurisprudence it is clear that transfer is incident of service. It is not the case of the petitioner also that he is not liable for transfer. But, on the facts and circumstances of the case, especially taking note of the contents of the counter affidavit filed by the first respondent, this Court has to take a different stand in respect of the impugned transfer effected herein.

3. The petitioner was originally working as Assistant in the Municipality and thereafter, as Office Assistant in the Tirunelveli Municipality having been appointed on sponsor by the employment exchange on 112. 1986 and thereafter, he was posted as Attender in the second respondent school, by way of transfer of service on 17.03.1987. He was subsequently promoted as Record Clerk on 011. 1990 and still working in the second respondent school in the same capacity. Under the impugned order, the first respondent has transferred the petitioner from the second respondent school to the Government Higher Secondary School, Veerasigamani which is stated to be 60 kms away from the present school.

4. It is the case of the petitioner that the impugned order itself came to be served only on 01.07.2009 along with the reliving order. The petitioner is stated to be a physically challenged person. Since he is suffering from his disability, he was unable to join in the transferred school. The petitioner has been taking treatment in Sushrushah Hospital at Nagercoil for Poly Arthiritis from 112. 2008 till date. The medical certificate issued by the competent authorities also revealed that the petitioner is suffering from permanent disability to the extent of 40% and the same has been forwarded to the Director of School Education also. It is stated that the wife of the petitioner is also working as a Teacher in Government School at Tirunelveli Town and the petitioner along with his family settled at pettai and his daughter aged 20 years is also physically challenged and both the petitioner as well as his daughter are unable to move without the assistance of the petitioners wife. The petitioner is stated to be on medical leave. The impugned order of transfer is challenged on various grounds including that even though it is stated to be on administrative reason, but there is nothing in the impugned order, but the same is punitive and it is on the basis of certain remarks on the petitioners service in the second respondent school, which is possible only after giving opportunity to the petitioner and in the present case no opportunity was given before punitive transfer is effected.

5. In the counter affidavit filed by the first respondent, even though the first respondent has stated that the impugned order of transfer is on administrative in nature, the various averments contained in the affidavit would go to show in categorical term that the transfer was effected on a complaint from various teachers of the second respondent school. In fact, in the counter affidavit, the first respondent has chosen to state that on the basis of the complaint received from various teachers to the effect that the petitioner has not been discharging the official duty properly and based on that the first respondent, the District Educational Officer, has in fact conducted an enquiry with teachers and headmaster of the said school and found that some substance in the complaint given by them against the petition