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IN THE HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
Sushrut Arvind Dharmadhikari, Hirdesh, JJ.
Gajendra Kumar – Appellant
Versus
The State of Madhya Pradesh – Respondent
Writ Appeal No. 1202 of 2023
Decided On : 11-09-2023
Transfer - Employee Rights - Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005, Section 2(1) - Section 5: Posting and Transfer of the Circular - The court discussed the authority of the Managing Director in respect of transfer and posting of Class-I Officers, the approval process for transfer and show-cause notice, and the principles of malice in law in passing transfer orders. The court quashed the transfer and relieving orders as they were found to be punitive and a colourable exercise of powers.
Fact of the Case:
The appellant, a Superintendent Engineer, was issued a show-cause notice and transferred to a new location within 24 hours, leading to a writ petition. The Single Judge disposed of the petition with directions for the appellant to submit a representation and for the competent authority to decide on the transfer within a specified time frame.
Finding of the Court:
The court found that the transfer and relieving orders were punitive and passed in a hastened and illegal manner, without waiting for the appellant's reply to the show-cause notice. The court quashed the transfer and relieving orders, setting aside the order of the Single Judge.
Issues: The issues revolved around the jurisdiction of the authority passing the transfer and relieving orders, the approval process for the orders, and the punitive nature of the transfer without waiting for the appellant's reply to the show-cause notice.
Ratio Decidendi: The court relied on the legal principle that transfer orders should be based on administrative exigency or public interest, and not passed in a punitive manner. It emphasized the need for proper approval processes and the authority of the Managing Director in transfer and posting matters.
Final Decision: The court quashed the transfer and relieving orders, allowed the appeal, and set aside the order of the Single Judge. The respondents were given liberty to proceed against the appellant from the stage of issuance of the show-cause notice, if advised.
ORDER
1. Heard finally with the consent of both the parties.
2. In this writ appeal filed under Section 2(1) of of the Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal Adhiniyam, 2005, the appellant has assailed the order dated 03/08/2023 passed in W.P. No.18972/2023 whereby the show-cause notice dated 24/07/2023, the transfer order dated 25/07/2023 and order of relieving order dated 25/07/2023 were challenged and vide the impugned order the said writ petition has been disposed of.
3. The brief facts of the case are that the appellant is presently posted as Superintendent Engineer in respondent No.2 establishment i.e. M.P. Paschim Kshetra Vidyut Vitran Company Limited, Indore. On 24/07/2023, a show-cause notice was issued to him alleging that he unauthorizedly entered into the Chamber of Managing Director of the Company on 24/07/2023 at around 09:25 AM without taking prior permission as important files, documents etc. are kept inside the Chamber. Before the appellant could reply to the aforesaid show-cause notice, he was transferred vide order dated 25/07/2023 from Indore to Agar on the post of Executive Engineer. Thereafter on the same day, he was relieved for joining at new place of posting with a direction that he should hand-over the charge immediately.
4. The appellant in the writ petition had prayed for the following reliefs :-
'In view of the facts mentioned above, the petitioner pray that this petition be allowed in the nature of mandamus or any direction may kindly be issued and following relief may be granted to the petitioner.
i) That, show-cause notice dated 24/07/2023 in letter bearing No. ØŒ@Áfr@i{ks@01@LVsuks@534passed by respondent No.3 may kindly be quashed being arbitrary, illegal and bad in law.
ii) That, order dated 25/07/2023 passed in order bearing No.WZ / MD-Corporate-Office/HR/194 passed by respondent No.3 may kindly be quashed being arbitrary, illegal and bad in law.
iii) That, letter dated 25/07/2023 passed in letter bearing No. ØŒ@Áfr@i{ks@dkfu&esaVsusl@10815passed by respondent No.4 may kindly be quashed being arbitrary, illegal and bad in law.
iv) That, the other relief which is just and proper in the facts and circumstances of the case may also be granted doing justice including cost.'
5. The learned Single Judge while deciding the writ petition passed the following order; operative portion of the order is re-produced herein below :-
'6] From the record, it is apparent that the petitioner was posted as Superintending Engineer at the office of respondent No.2, and has entered into the chamber of respondent No.2, allegedly, without any permission. He has also been issued a show cause notice dated 24/07/2023, and on the very next day, he has also been transferred from Indore to Agar on the post of Executive Engineer. Although, the petitioner's contention is that he has been demoted from the post of Superintending Engineer to the post of Executive Engineer, but as the respondents have submitted that he was only given the charge of the post of Superintending Engineer, thus, it cannot be said that it is a case of demotion.
7] Be that as it may, it is apparent that the petitioner has not been given the proper opportunity to file reply to the show cause notice, thus, this Court finds it expedient to dispose of this writ petition with a liberty to the petitioner to submit his representation before the respondent No.1/competent authority within a period of one week, and the respondent no.1 is also directed to decide the petitioner's representation in accordance with law by a reasoned and speaking order, within a further period of three weeks.
8] So far as the transfer of the petitioner from Indore to Agar is concerned, this Court refrains from passing any interim order on the same as this issue can also be decided by the respondent No.1/competent authority, who is also directed to pass the appropriate order with regarding to the transfer of the petitioner within a period of three weeks, however, no coercive action
The central legal point established in the judgment is that transfer orders should be based on administrative exigency or public interest, and not passed in a punitive manner. Proper approval process....
Administrative transfers cannot be challenged on grounds of malice in law; only malice in fact is relevant when considering the legality of such orders.
The court emphasized that transfer orders should not be interfered with unless they are shown to be vitiated by malafide or made in violation of any statutory provision or issued by an incompetent pe....
A transfer order cannot be used as a substitute for disciplinary action; if proven to be punitive, it is liable to be quashed.
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