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2016 Supreme(Mad) 2732
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
T. RAJA, J.
K. Kaliappan - Petitioner
Vs.
The Commissioner of Adi Dravidar Welfare & Ors. - Respondents
Writ Petition(MD)No.12963 of 2016 and W.M.P(MD)No.9764 of 2016
Decided On : 24-08-2016
For the Petitioner: Mr. G. Thalaimutharasu.
For the Respondent:Mr. M. Murugan Government Advocate.
The main legal point established in the judgment is that transfer orders can be interfered with if tainted with mala fide, in violation of statutory rules, or if the authority lacks jurisdiction. The judgment also emphasizes the need for a preliminary enquiry before effecting transfers based on allegations.
Headnote:
Transfer - Secondary Grade Teacher - Tamil Nadu Civil Services (Discipline and Appeal) Rules, Government Letter No.23847/S/98-1, G.O.Ms.No.10 Personnel and Administrative Reforms (Personnel-S) Department - The court discussed the legal provisions related to transfer, including the conditions of service, the authority to pass transfer orders, and the grounds for interference with transfer orders. The court highlighted the principles of transfer, including the need for mala fide, violation of statutory rules, or lack of jurisdiction to interfere with transfer orders. The court also emphasized the importance of preliminary enquiry before effecting transfers based on allegations.
Fact of the Case:
The petitioner, a Secondary Grade Teacher, challenged a transfer order from Warden to a far-off place, alleging mala fide and lack of preliminary enquiry. The petitioner had raised complaints about irregularities in the hostel and was subsequently penalized and transferred without a hearing.
Finding of the Court:
The court found that the transfer order was punitive in nature, lacked a preliminary enquiry, and violated transfer guidelines. The court emphasized that the petitioner was condemned without a hearing, which was unknown to law, and set aside the transfer order.
Issues: The issues included the legality of the transfer order, the lack of jurisdiction in passing the order, and the violation of transfer guidelines. The court also addressed the petitioner's allegations of mala fide and lack of opportunity for a hearing.
Ratio Decidendi: The court held that transfer is an administrative order, but can be interfered with if tainted with mala fide, in violation of statutory rules, or if the authority lacks jurisdiction. The court emphasized the need for a preliminary enquiry before effecting transfers based on allegations.
Final Decision: The court allowed the writ petition, set aside the transfer order, and directed the respondents to post the petitioner in the same place.
Mr. K. Kaliappan, who was appointed as a Secondary Grade Teacher, subsequently by way of counselling cum transfer, posted as a Warden at Government Adi Dravidar Welfare Boys Hostel, Mangalapuram, by the 1st respondent/Commissioner of Adi Dravidar Welfare, Chennai, on 06.06.2012, has been disturbed by the impugned transfer order, dated 18.07.2016, passed by the 2nd respondent/District Adi Dravidar Welfare Officer, Tirunelveli. Consequently, the 3rd respondent/Special Tahsildar(ADW), Tenkasi Taluk, has relieved the petitioner, hence, challenging the impugned order of transfer passed by the 2nd respondent dated 18.07.2016, transferring the petitioner from Mangalapuram, Tenkasi, to Government Tribal Residential High School, Melanai-Papanasam, and posting him as Secondary Grade Teacher, and the consequential relieving order, the petitioner has filed this writ petition, to quash the same.
2. Learned counsel for the petitioner would submit that the petitioner is a Warden/Whistle Blower and on many occasions, he has brought to light several irregularities taking place in Government Adi Dravidar Welfare Boys Hostel, Mangalapuram, to the notice of the respondents 1 to 4, to take necessary action, hence, he has been penalised by way of impugned transfer order, stating that the petitioner is unfit to be a Warden and therefore, he should be transferred as a Secondary Grade Teacher. The 2nd respondent cannot condemn the petitioner by passing a punitive transfer order, without giving him any opportunity of hearing to him, therefore, the same is liable to be set aside, as it is a well settled a legal position that no punitive transfer order can be passed without there being any enquiry.
3. Explaining further, he would submit that finding out certain irregularities in Government Adi Dravidar Welfare Boys Hostel, Mangalapuram, the petitioner has made a complaint in the remarks category of the Visitors' Register, stating that the Septic Tank has to be cleaned. Again, he has been intimating the respondents 1 to 4, to take necessary action to clean the septic tank, which was also entered in the Visitors Register on 17.06.2016, 02.07.2015 and 07.08.2015 respectively, but no action was taken to clean up the septic tank, nor funds were disbursed to clean the same. Out of the total expenses, 4% was automatically deducted by the 3rd respondent and 1% for Treasury, which is illegal, because, the said sum was deducted by taking into account the total strength of the students, without calculating the actual strength of the students, therefore, the petitioner made requisitions to the 3rd respondent on 03.08.2015 and 10.08.2015 respectively, to rectify the wrong practice. Moreover, contrary to the rules, students from local area were admitted in the hostel, so as to create more student strength, which is having an adverse impact for the needy students hailing from other places. It has been found that students from 5 kms away from the hostel alone have to be admitted, but the said rule was not followed and local students were admitted and they will skip the breakfast and supper by going to their houses on all evenings, but claims were made for the entire day, taking into account the total strength of the students. This is how loss had been caused to the Government and the petitioner also brought it to the notice of the higher officers.
4. Adding further, he would submit that when the petitioner made a detailed representation to the 2nd respondent/Adi Dravidar Welfare Officer, Tirunelveli, with regard to the illegalities namely, swindling of money by the Junior Engineer, delayed payment for the month of September 2013, failure of B Clerk to maintain the expense record, failure to grant 3% arrears of Basic Pay and the life threat given to him, for giving a complaint to the 3rd respondent/Special Tahsildar(ADW), Tenkasi Taluk, the 2nd respondent did not respond to his representation, hence, the petitioner gave a complaint on 10.12.2015, to the District Coll
