1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.7828 of 2011 and M.P.(MD).Nos.1 & 2 of 2011 P.Ramasubbu ... Petitioner Vs. 1.The Chief Engineer/Personnel, Tamil Nadu Generation and Distribution Corporation Ltd., No.144, Anna Salai, Chennai - 600 002. 2.V.R.Geethanandan 3.The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Madurai Electricity Distribution Circle/Metro, K.Pudur, Madurai - 625 007. 4.K.S.Varadharajan 5.The Executive Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Distribution North/Metro, K.Pudur, Madurai - 625 007. 6.Mothilal 7.The Assistant Executive Engineer, Distribution/Thamukkam/ Metro, Madurai - 625 007. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned order passed by the first respondent in Memo No.051044/G.13/G.132/2011-3 dated 06.07.2011 in cancelling the petitioner's transfer to the post of Assistant Engineer, Operation and Maintenance, Viraganur Section, Madurai District and posting the petitioner as Assistant Engineer/Operation and Maintenance/Chathirakudi in Ramnad Electricity Distribution Circle, quash the same and consequently direct the respondents to allow the petitioner to work as Assistant Engineer, Thamukkam Section, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioner .. Mr.A.Rahul For respondents .. Mr.B.Pugalenthi, 1, 3, 5 & 7 Special Government Pleader ORDER It is the case of the petitioner that while he was working as Assistant Engineer, Thamukkam, Madurai, certain Trade Unions of Tamil Nadu Electricity Generation and Distribution Corporation Ltd., Madurai Region headed by Anna Thozhir Sangha Peravai affiliated to ruling party, has lodged two complaints against the petitioner on 31.05.2011 alleging that the petitioner is not treating his subordinate employees in proper manner. Acting on the complaints, the Executive Engineer of the above said Corporation by the proceedings dated 07.06.2011 sought for explanation from the petitioner failing which, it was stated that disciplinary action would be taken. The petitioner submitted his explanation on 16.06.2011 denying all the allegations. While that be the position, pending final decision on the allegation levelled against the petitioner, by order dated 20.06.2011, the petitioner has been transferred to West Division, Viraganur Section, Madurai District, by the Superintending Engineer, Madurai Electricity Distribution Circle/Metro, Madurai. In pursuance of the said order, the Chief Engineer, Tamil Nadu Electricity Generation and Distribution Corporation Ltd., Chennai, first respondent herein, by order dated 06.07.2011, without assigning any reason, cancelled the order dated 20.06.2011 and transferred the petitioner as Assistant Engineer/Operation and Maintenance/Chathirakudi, Ramnad Electricity Distribution Circle. Challenging the correctness of the order, the petitioner has come forward with the present writ petition. 2.On the above said pleadings and assailing the correctness of the order, Mr.A.Rahul, learned counsel for the petitioner submitted that the background, which given rise to the impugned order of transfer, is to specific complaints given by the Trade Unions of Tamil Nadu Electricity Generation and Distribution Corporation Ltd., Madurai Region headed by Anna Thozhir Sangha Peravai affiliated to ruling party and therefore, the impugned orders are actuated by malafide and there is no administrative exigency warranting transfer. In this context, he has also invited the attention of this Court to the representation dated 31.05.2011 of the Trade Union addressed to the Superintending Engineer, Tamil Nadu Electricity Generation and Distribution Corporation Ltd., Madurai, where the Trade Union activities have demanded that the petitioner should be transferred to an uninhabited place. According to him, the first respondent has simply acceded to the demand of the ruling Trade Union activists and in such circumstances, the impugned order is tainted with impunity and therefore warrants interference. 3.In addition to the above, the learned counsel for the petitioner also submitted that the petitioner's children are studying in Madurai and the transfer is in contravention of G.O.Ms.No.10, Personnel and Administrative Department dated 07.01.1994. Learned counsel for the petitioner further submitted that if this Hon'ble Court is not inclined to accept the above said contentions, having regard to the fact that the post of Assistant Engineer, West Division, Viraganur Section, Madurai is still https://hcservices.ecourts.gov.in/hcservices/ 3 vacant, a direction may be issued to the respondents to consider the case of the petitioner for posting him in the said place. 4.Heard the learned counsel for the parties and perused the materials available on record. 5.Before adverting to the facts of this case, it is fit to refer some of the decisions of the Supreme Court relating to transfer; (i) In B.VARADA RAO v. STATE OF KARNATAKA reported in 1986 (II) LLJ 516, the Supreme Court has held that it is well understood that transfer of Government servant, who is appointed to a particular cadre of transferable post from one place to another is an ordinary incident of service and therefore, does not result in any alteration of any of the conditions of service of his disadvantage. The Supreme Court declined to accept the case of the petitioner therein, that he should not be transferred. (ii) In 1995 (I) LLJ 854 (N.K.SINGH v. UNION OF INDIA), the Hon'ble Supreme Court while dealing with the correctness of the order, has observed that no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. It was further held that transfer of a Government servant in a transferable service is a necessary incident of the service career and that assessment of the quality of men is to be made by superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. (iii) IN THE REGISTRAR, HIGH COURT, MADRAS v. VASUDEVAN, A.K. AND OTHERS reported in 1996 MLJ 153, a Division Bench of this Court, while considering the scope of judicial review in matters of transfers of the Government servant to an equivalent post, at paragraph Nos.19 and 36 has held as follows:- “19. The scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds mala fides and violation of any specific provision or guideline regulating such transfers amounting to arbitrariness. It is also settled law that for the said purpose, no roving inquiry into the matter is called for or justified within the scope of judicial review of a transfer scrutinized with reference to the private rights of an individual. In N.K.Singh V. Union of India and others, (1994)6 S.C.C. 98 at 108, their Lordship said: “...Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a party of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of https://hcservices.ecourts.gov.in/hcservices/ 4 a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infructuous of any professed nor on or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. In the same decision, further down, in paragraph 24, they have said thus: “...Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare.... ... ... ....” 36. In this connection, it is also better to remember a decision of this Court reported in Dr.M.Krishnamoorthy v. The State of Madras, (1951) 1 M.L.J. 709: A.I.R. 1951 Mad. 882: 1951 M.W.N. 410. That was a case where the petitioner therein challenged his dismissal. While considering the same, this Court held that the Government or management is entitled to consider the question of inefficiency, insubordination and general reputation of corrupt conduct of a Government servant. As stated earlier, the relationship of Master and Servant is being put an end to by the order of dismissal. When the Government is competent to consider the efficiency and reputation of a Government servant, it is not only for the purpose of taking punitive action, but also to consider whether he should be allowed to continue in a particular place of employment. In the said decision, it was stated thus: “It is however contended by learned counsel for the petitioner that there is another implied requirement that civil servants in the position of the petitioner can be dismissed or removed only for misconduct and at one stage of the argument he even went to the extent of contending that in the case of a charge like corruption, the petitioner must have been convicted by a criminal court for that offence, or, in any event, that this Court must be satisfied in the exercise of criminal appellate jurisdiction so to say, that there was evidence on which a conviction could be supported. We see nothing of this sort laid down in Art.311 or in any other article of the Constitution. It is nowhere stated on what ground a civil servant might be dismissed or removed. One can conceive of a dismissal or removal being justified on grounds of inefficiency, insubordination of (sic) general reputation of corrupt conduct. ... (Italics supplied) An employee is expected to work with all devotion, honestly and integrity. The employer is also entitled to assess the https://hcservices.ecourts.gov.in/hcservices/ 5 performance of the employee. It cannot be disputed that the employer is entitled to consider the suitability of the person to a post. Similarly the employer is also entitled to consider whether his employee is suitable to work in a particular place or to continue there. If, during the assessment, the employer finds that the work or the performance of the employee is not satisfactory, or in case where the employee, while discharging his duties, has to mingle with the members of the public (in this case, the litigant public), which gives room for complaints in the nature of bad faith, corruption, etc., that will also be an added reason for the employer to find that his staff can discharge his duties in a better way in another place. Such an assessment is not in the nature of any punishment. It is only to avoid or minimise any future complaint or give the employee a better opportunity in a better atmosphere, he is asked to work in a different place, under an order of transfer. Such an order cannot be considered as a punishment, nor can the same be characterised as a stigma cast on him, as alleged by the petitioner in each one of these writ petitions under consideration.” (iv) IN PUBLIC SERVICES TRIBUNAL BAR ASSOCIATION v. STATE OF U.P AND ANOTHER, reported in 2003 (4) SCC 104, the Supreme Court has reiterated that the scope of Judicial Review in transfer is very limited as it is an incidence of service and normally should not be interfered with by Courts. (v) IN STATE OF U.P. AND ANOTHER v. SIYA RAM AND ANOTHER, reported in 2004(7) SCC 405, the Supreme Court held that no Government servant or employee of the public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. (vi) A Division Bench of this Court while considering the contentions of the petitioner that two children were studying in Class IX and if any transfer is effected that would cause hardship, in PALANISAMY v. THE GENERAL MANAGER, TAMIL NADU STATE TRANSPORT CORPORATION LIMITED, reported in 2005 (4) LW 604, at paragraph No.4 has held as follows:- “4.Learned counsel for the appellant then submitted that the transfer order does not contain reasons. This argument is also based on a misconception. A transfer order is a purely administrative order and not a judicial or quasi judicial order. The Writ Petition is dismissed.” (vii) In a recent decision of the Hon'ble Supreme Court in STATE OF HARYANA AND OTHERS v. KASHMIR SINGH AND ANOTHER, reported in 2010 (13) SCC 306, the Supreme Court has held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 6 “12.Transfer ordinarily is an incidence of service, and the courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirements of the situation. The administrative authorities concerned may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well settled that courts must not ordinarily interfere in administrative matters and should maintain judicial restrain, vide Tata Cellular v. Union of India. 14. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities.” (viii) In a Division Bench Judgment of this Court in GENERAL MANAGER (PERSONNEL), NATIONAL INSURANCE COMPANY LIMITED, HEAD OFFICE, KOLKATA AND ANOTHER v. DR.S.ASHOK KUMAR, reported in 2010 (4) MLJ 433, the Hon'ble Mr.Justice H.L.Gokhale, sitting along with another learned Judge, considered a query as to whether an order of transfer could be interfered with, when there is an allegation of mala fide and after considering the decision of the Hon'ble Supreme Court in RAJENDRA SINGH RAJESH v. STATE OF U.P. AND OTHERS reported in (2009) 10 SC 187, held as follows:- “14. Keeping in view the above legal position as well as facts and circumstances of the case, we are of the view that the allegation made in respect of the non-consideration of the confidential report by the respondent in favour of K.Inbaraj, is a matter of administrative work and it cannot be attributed to the mala fide intention of the appellant Company in order to interfere with the same. In fact, during the year 2008, the station-wise list of Officers was drawn and this respondent was considered as senior most Officer and on that basis, while adopting the transfer policy, when he was transferred to Hyderabed Region, the respondent himself made a representation to the appellant Company to exempt him from the transfer policy and retain him at Chennai for one year. While that being so, it cannot be contended that the present impugned order of transfer is tainted with mala fide intention and inflicted against the respondent. Further, in fact, the learned single Judge has not dealt with the issue regarding https://hcservices.ecourts.gov.in/hcservices/ 7 mala fide but set aside the order of transfer only on humanitarian grounds. Even for this also, we are not in agreement with the learned single Judge as having regard to the fact that the respondent had been in Chennai Region for more than 17 years depriving of other incumbent of the appellant Company to function in the said place and further he was already let off from being considered for transfer by exempting him from Transfer Mobility Police in the year 2008. Therefore, having already availed the benefit of exemption from being considered for transfer and remained himself for one year, there is no justification on the part of the respondent now in assailing the impugned order of transfer. 16. Therefore, having regard to the above proposition laid down by the Hon'ble Supreme Court, we are of the view that the learned single Judge ought not to have shown any indulgence even on humanitarian grounds to the respondent who keeps on agitating the transfer orders by remaining himself in Chennai for years together. In such view of the matter, we are unable to confirm the order of the learned single Judge.” 6.Pleadings and materials on record disclose that when the petitioner was working as Assistant Engineer, Thamukkam, Madurai, some complaints have been levelled against him and a show cause notice dated 07.06.2011 was also issued, for which the petitioner has submitted his explanation on 16.06.2011 denying the allegations levelled against him. While that be so, the Superintending Engineer, Tamil Nadu Electricity Generation and Distribution Corporation Limited, Madurai Electricity Distribution Circle/Metro, Madurai, third respondent by order dated 20.06.2011, has transferred the petitioner to the Post of Assistant Engineer, West Division, Viraganur Section, Madurai District. Even before giving effect to the above said order, the Chief Engineer, Tamil Nadu Electricity Generation and Distribution Corporation Limited, Chennai, by his proceedings dated 06.07.2011, has cancelled the order posting the petitioner to Viraganur Section and transferred and posted him as Assistant Engineer, Operation and Maintenance, Chathirakudi, Ramanad Electricity Distribution Circle. Pursuant to the orders of the Chief Engineer, Chennai, first respondent, the Assistant Executive Engineer, Distribution/Thamukkam, sixth respondent, on 07.07.2011, has relieved the petitioner from duties with specific instructions to report duly to the Assistant Executive Engineer/ Distribution/Anuppanady/Metro immediately. The petitioner has also been instructed to hand over the Section in complete shape to the Assistant Engineer/Distribution/Sellur Section. 7.Though the learned counsel for the petitioner submitted that the impugned order of transfer is actuated by malice and only on account of the complaints made by the Trade Unions activists of Tamil Nadu Electricity Generation and Distribution Corporation Limited, Madurai, headed by Anna Thozhir Sangha Peravai affiliated to ruling party, this Court is not inclined to accept the said contention for the reason that the above said Union has not been made as a party respondent in this writ petition to refute such allegations. It is well settled that when the allegations are levelled against a person, he has to be made as a party respondent to rebut the same. In such view of the matter, the contention of the petitioner that the said union activists were instrumental in transferring the https://hcservices.ecourts.gov.in/hcservices/ 8 petitioner cannot be countenanced. Nevertheless, it is the fact that the petitioner has been called upon to explain certain allegations. Merely because a show cause notice has been issued by the Superintending Engineer, Tamil Nadu Electricity Generation and Distribution Corporation Limited, Madurai, third respondent herein, the impugned proceeding cannot be said to be punitive or mala fide. 8.It is also well settled that when complaints are received, it is open to the employer to enquire into the same under the relevant Rules and to transfer the employee. Useful reference can be made to a Division Bench judgment of this Court in the Registrar, High Court, Madras v. Vasudevan.A.K. and others, reported in 1996 MLJ 153 cited supra. 9.Reading of the impugned order does not reflect any mala fide intention on the part of either the Chief Engineer/Personnel, Tamil Nadu Electricity Generation and Distribution Corporation Limited or the Superintending Engineer. The impugned order of transfer reflects an appropriate reason viz., administrative ground and Courts cannot conduct any roving enquiry to ascertain as to whether there is any malice or not. It is for the transferred employee to plead and prove with the specific materials and substantiate the same. Without even impleading the party, against whom an allegation is made, the contentions are sought to be justified and such course is not permissible. No mala fides have been alleged and proved against the respondents. 10.An order of transfer can be interfered only on the following grounds: (i) if it is tainted with mala fide; (ii) if it is in violation of any statutory rules; (iii) if the authority, who has passed the order of transfer, has no jurisdiction to do so. 11.The petitioner has not made out a case on any one of the grounds stated supra. Therefore, the writ petition is liable to be dismissed. Considering the submission made by the learned counsel for the petitioner that the post of Assistant Engineer, West Division, Viraganur Section, Madurai is still vacant and that the petitioner may be accommodated in the above said post, a direction is issued to the respondents 1 & 3 to consider the said request and issue appropriate orders. 12.With the above direction, the writ petition stands dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs. SD ASST REGISTRAR ( RTI Act ) /TRUE COPY/ SUB ASST REGISTRAR gcg https://hcservices.ecourts.gov.in/hcservices/ 9 To 1.The Chief Engineer/Personnel, Tamil Nadu Generation and Distribution Corporation Ltd., No.144, Anna Salai, Chennai - 600 002. 2.The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Madurai Electricity Distribution Circle/Metro, K.Pudur, Madurai - 625 007. 3.The Executive Engineer, Tamil Nadu Generation and Distribution Corporation Ltd., Distribution North/Metro, K.Pudur, Madurai - 625 007. 4.The Assistant Executive Engineer, Distribution/Thamukkam/ Metro, Madurai - 625 007. 1CC TO MR. A. RAHUL, ADVOCATE, SR: 23000: DM:2011:JULY:18:: W.P.(MD) No.7828 of 2011 14.07.2011 9P:6C:; https://hcservices.ecourts.gov.in/hcservices/