Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P.(S) No. 706 of 2015 With W. P.(S) No. 709 of 2015 With W. P.(S) No. 712 of 2015 ----------- Damodar Prasad Mahto , Son of Kriti Bhushan Mahto, Resident of Mohalla-Sahyogi Nagar, Sector-III, P.O. K.G. Ashram, P.S. Saraidhela, District-Dhanbad …..Petitioner (In W. P.(S) No. 706 of 2015) ------- Ashok Kumar Sahu, Son of late Upendra Sahu, Resident of Mohalla- Sahyogi Nagar, Sector-III, P.O. K.G. Ashram, P.S. Saraidhela, District- Dhanbad …..Petitioner (In W. P.(S) No. 709 of 2015) ------ Niraj Kumar Gupta, Son of late Madan Lal Gupta, Resident of Mohalla- Hetli Bandh, Near Old Matri Sadan, Jharia, P.O. & P.S. Jharia, District- Dhanbad. …..Petitioner (In W. P.(S) No. 712 of 2015) ----------- Versus 1. The State of Jharkhand through the Secretary/Principal Secretary, Human Resource Development Department, having office at Project Building, P.O. P.S. Dhurwa, Town and District- Ranchi.
2. The Director, Primary Education, having office at Primary Education Directorate, near Project Building, Dhurwa, P.O. P.S. Dhurwa, Town & District-Ranchi.
3. The Deputy Commissioner-cum-Chairman District Education Establishment Committee, Dhanbad having office at P.O. P.S. & District-Dhanbad.
4. The District Superintendent of Education, Dhanbad having office at P.O. P.S. & District-Dhanbad.
5. Area Education Officer, Dhanbad, P.O. P.S. & District-Dhanbad. ….Respondents in all cases. ----- Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY ----- For the Petitioners : Mr. Manoj Tandon, Advocate For the Respondents : J.C. to G.P. 1 : J.C. to Sr. S.C. II : J.C. to S.C. III ----- 06/01-04-2015 Since the order impugned has been challenged by the petitioners by separate writ applications, the same are being disposed of by a common order. In these writ applications, the petitioners have prayed for quashing the office order as contained in Memo No. 369/Dhanbad dated 12.02.2015, whereby and whereunder the petitioner in WPS No. 706 of 2015 has been transferred from the post of Assistant Teacher, Swatantra -2- Bharat Middle School, Bhaga, Jharia-1 to Upgraded Middle School, Kharmo, Tundi-1. Petitioner in WPS No. 709 of 2015 has been transferred to upgraded Middle School, Panduwa Bejra, East Tundi whereas the petitioner in WPS No. 712 of 2015 has been transferred to upgraded Middle School, Kumardih, Bhagmara. A further prayer has been made challenging the office order as contained in Memo No. 129/Dhanbad dated 18.02.2015 issued by respondent no. 5, whereby and whereunder, the petitioners have been directed to be relieved for joining the transferred post. The facts which emanate from the writ application are that the petitioners were appointed as Assistant Teachers in elementary school in 1994. While being posted as Assistant Teachers in Swatantra Bharat Middle School, Bhaga, Jharia-1, petitioners were issued show cause notice by the District Superintendent of Education, Dhanbad as contained in letter no. 2597 dated 22.10.2014, in which allegations were levelled that the petitioners along with others used to prepare the bill of the teachers. Aspersions were levelled against the petitioners to the effect that one Sri Madan Mohan Tiwari was absent for the last two months and the petitioners being Government servants had committed a misconduct by preparing the bill of Shri Madan Mohan Tiwari and getting it passed from the treasury. A reply was immediately submitted by the petitioners wherein it was stated that the petitioners have not prepared the bill, nor they have got the same signed by the Drawing & Disbursing Officer and that the said act was done by the incharge headmaster of the school-Smt. Kalpana Sharma. It was further mentioned in the reply that the petitioners are only involved in the job of teaching the students and since neither the petitioners had the duty of preparing the bills, nor the petitioners had prepared the bills in question, as such the petitioners deserve to be exonerated. Subsequently, however, vide impugned Office Order as contained in Memo No. 369/Dhanbad dated 12.02.2015, the petitioners were transferred from Swatantra Bharat Middle School, Bhaga, Jharia-1 to the schools mentioned in the said Memo dated 12.02.2015. Learned counsel for the petitioners has submitted that instead of taking recourse to the provisions as enumerated in the Bihar (Now Jharkhand) State Nationalized Primary Teachers (Transfer & Disciplinary Proceeding) Rules, 1994 as adopted by the State of Jharkhand vide Notification dated 16.02.2011, the respondent -3- authorities by way of punitive measure have transferred the petitioners vide impugned order of transfer dated 12.02.2015. It has further been submitted that the show cause reply submitted by the petitioners was not considered by the department in its proper perspective inasmuch as the petitioners had clearly mentioned in the show cause reply that the preparation and passing of the bills are not within their domain and the said power is vested with the Drawing & Disbursing Officer, who happens to be the incharge headmaster of the school in question. It has also been submitted that since the transfer itself was punitive and stigmatic in nature, the same is not sustainable. Learned J.C. to G.P. 1 while controverting the arguments advanced by the learned counsel for the petitioners, has submitted that by no stretch of imagination, the transfer of the petitioners can be said to be punitive in nature. It has further been submitted that the transfer was within a radius of 25 kilometers, which is in terms of the provisions relating to transfer. It has also been submitted that the order of transfer was not an unilateral decision by respondent no 5 rather the same was issued on approval by the Establishment Committee. It has also been submitted that the transfer is an incidence of service and order of transfer which is purely an administrative matter should not generally be interfered with. Controverting the stand of the respondents in the counter affidavit, it has been submitted that although the impugned order was shorn of the reasons for transfer but the counter affidavit clearly depicts that on account of preparation of the bills for which show cause notice was issued, the petitioners were transferred. The impugned order of transfer dated 12.02.2015, issued by respondent no. 4 transferring the petitioners from Swatantra Bharat Middle School, Bhaga, Jharia-1 to various Upgraded Middle Schools contains reasons to the effect that on administrative exigencies, the petitioners were transferred. Admittedly, prior to issuance of the impugned order of transfer, the petitioners were issued show cause notice alleging that one Shri Madan Mohan Tiwari, an employee of the school, was absent for the last two months and the petitioners even though were not having the responsibility of preparing the bills had prepared bills and had got the same passed from the Treasury. Separate replies were given by the petitioners denying the aspersions cast upon them and without considering the show cause and without -4- taking recourse to further proceeding, the impugned order of transfer was issued. Although the impugned order of transfer does not specify any reason save and except administrative exigency but the counter affidavit, which has been filed by the respondents relates to the earlier act of alleged misconduct to which the petitioners had duly given their show cause reply. In the case of Suman Kumar Sanam Vs. State of Jharkhand & Others, reported in [2014] 1 JCR485 it has been held as follows:-
“7. In such circumstances, the impugned order of transfer, which contains a prima facie finding of guilt of the petitioner on certain allegations is punitive in nature and attaches stigma. Therefore, in the light of the judgment rendered by Hon’ble Supreme Court in such cases as had also been noticed in the judgment relied upon by the petitioner in the case of Mithlesh Kumar Singh (supra), the impugned order being punitive in nature and casting stigma upon the petitioner before conclusion of the departmental proceeding itself, cannot be sustained in law. The order being punitive in nature, even though the petitioner may have been relieved, the illegality in the order goes to the root of the matter and, therefore, it can always be interfered with in the writ jurisdiction of this Court in view of the decision held by this Court in the case of Uttam Kujur Vs. State of Jharkhand & Ors. reported in 2008 (2) JCR306(Jhr). Hence the impugned order of transfer as well as order of relieving is, accordingly, quashed.” The circumstances leading to issuance of the impugned order of transfer as has been contended by the petitioners is infact punitive in nature without arriving at a finding with respect to the show cause alleging embezzlement and misconduct against the petitioners to which the petitioners had duly submitted their reply. Learned counsel for the State has tried to distinguish the judgment referred to above by submitting that the order of transfer passed in the said case was on the basis of the allegations made against the petitioners whereas in the present case, the reason for transfer has been indicated as administrative exigency. No doubt, the impugned order of transfer has merely mentioned administrative exigency but the facts emanating from the case demonstrate that the transfer order is indeed punitive in nature, which has been camouflaged under the guise of administrative exigency. Learned J.C. to Sr. S.C. II, appearing in WPS No. 709 of 2015 has relied upon the judgment of Hon’ble Supreme Court reported in (2011) 4 JLJR321(SC)-The Registrar General, High Court of Judicature at Madras Vs. R. Perachi and Ors. In the case referred above, the controversy was with respect to the contention of the transferee that the transfer was punitive only because his promotional chances were affected. In such context, the -5- Hon’ble Supreme Court held that pay position and seniority of the transferee was not affected by the impugned transfer and, therefore, the same could not be said to be punitive merely because his promotional chances got affected due to transfer. The judgment referred to by learned JC to Sr. S.C. II is not applicable in the present case as the factual contention made by the transferee of the case under reference and by the petitioners in the present writ application is quite different and distinct. As has been mentioned above, the transfer order was issued after issuance of the show cause notice to the petitioners and the subsequent reply given by them. The transfer order, thus, seems to be inconsonance with the allegations of misconduct against the petitioners, which contention of the petitioners has further been fortified by the averments made in the counter affidavit. In the case of Samesh Tiwari Vs. Union of India, reported in (2009) 2 SCC592 it was held that the transfer, which is ordinarily an incidence of service should not be interfered with save in cases where inter alia mala fides on the part of the authority is proved. It was held that mala fides are of two kinds-(i) malice in fact and second malice in law. It is one thing to say that the employer is entitled to pass an order of transfer on administrative exigency but it is another thing to say that order of transfer is passed by way of or in lieu of punishment. Since it is apparent that the impugned order of transfer dated 12.02.2015 was in fact punitive in nature and was effected by way of a mass transfer from Swatantra Bharat Middle School, Bhaga, Jharia-1 to other schools indicated against the name of the petitioners, the said order of transfer cannot be allowed to be sustained in the eyes of law. Accordingly, the office order as contained in Memo No. 369/Dhanbad dated 12.02.2015 issued by the respondent no. 4 is quashed so far as it relates to the petitioners. So far as the order as contained in Memo No. 129/Dhanbad dated 18.02.2015 is concerned, the same is a consequence of the office order dated 12.02.2015 and since the said order has been found to be illegal and has consequently been passed, the office order as contained in Memo No. 129/Dhanbad dated 18.02.2015 is also quashed accordingly. These writ applications are allowed. (Rongon Mukhopadhyay,J) Rakesh/