HIGH COURT OF MADHYA PRADESH, JABALPUR W.A.NO.786/2011 Arun Kumar Gupta, S/o Late Shri B.S.Saraf, Aged about 59 years, Presently posted as Deputy Director of Prosecution Jabalpur R/o 70 Daya Nagar, Garha Road, Jabalpur (M.P.) ….Appellant Versus 1. State of Madhya Pradesh Through the Principal Secretary Home Department Vallabh Bhawan, Bhopal 2. The Director of Prosecution, Madhya Pradesh, Bhopal (M.P.) 3. Vijay Singh Parihar S/o Shri Chandrika Prapat Singh Parihar, Aged about 58 years, R/o DFP Compound, Near Fourth Bridge, Jabalpur (M.P.) ....Respondents Present : Hon. Shri Justice Krishn Kumar Lahoti Hon. Smt Justice Vimla Jain Shri A.K.Pathak, counsel for the appellant. Shri Rahul Jain, Dy.A.G., for respondent nos.1 & 2. Shri R.N.Singh, learned Senior Advocate with Shri Anshuman Singh, counsel for respondent no.3. O R D E R (18.10.2011) Per Krishn Kumar Lahoti, J : The appellant has invoked the jurisdiction of this Court 2 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others under section 2(1) of M.P.Uchch-Nyayalaya (Khand Nayaya Peeth Ko Appeal) Adhiniyam, 2005 by assailing an order dated 19.7.2011 passed by Learned Single Judge of this Court in W.P.No.7543/2011(S), by which the transfer order of respondent no.3 Vijay Singh Parihar dated 27.4.2011, transferring from Jabalpur to Satna on the post of Deputy Director - Prosecution and appellant herein transferring from Satna to Jabalpur on the same post was quashed. 2. Learned counsel appearing for appellant submitted as under:- (a) that the transfer order was issued by the State on administrative exigency, by which the appellant was transferred from Satna to Jabalpur and respondent no.3 was transferred from Jabalpur to Satna. By the aforesaid order, various persons were transferred. The appellant had already completed his normal tenure at Satna and he was transferred after completion of more than 3 years at Satna. The respondent no.3 was transferred from Jabalpur to Satna because of administrative exigency. (b) That no malafide was alleged against respondent nos.1 & 2, in absence of which the transfer order could not have been quashed. (c) Though there was an inspection report of respondent no.2 on record, but the respondent no.2 acted bonafidely without any prejudice and the order was issued to meet out administrative exigency. (d) That respondent no.3 was Deputy Director, Prosecution appointed under section 24(2) (3) and section 301(1) of Code of Criminal Procedure, 1973. He was empowered to conduct all the cases, but in spite of this respondent no.3 took shelter of orders dated 31.7.2010 and 4.6.2010 issued by respondent no.2 and the 3 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others Law Department just to shirk from his responsibilities, but this by itself could not be a sufficient ground, in view of the mandate as contained under section 301(1) of Cr.P.C., to not conduct the cases in Court. It is submitted that the impugned order may be set aside. 3. Shri R.N.Singh, learned Senior Advocate supported the order, who stated thus :- (1) That the State was the aggrieved party, but has not preferred any appeal against the impugned order and on the basis of appeal, preferred by the appellant, the order cannot be set aside. The appellant is not aggrieved person in the matter. (2) That the report of respondent no.2 Annexure R-1 dated 18.4.2011, which is available on page 36 of the paper book itself shows that respondent no.3 was transferred without any justified reasons. No show cause notice was issued to him before issuance of transfer order and without affording any opportunity to explain the allegations, the respondent no.3 was transferred. The Learned Single Judge has rightly set aside the aforesaid order. (3) He has placed reliance to the order Annexure R-2 dated 31.7.2010 of the Director, Public Prosecution, Bhopal, by which he has specifically directed that the Deputy Director, Prosecution shall be allotted marked cases, but no case was assigned to the respondent no.3. Apart from this, vide Annexure R-3 respondent no.1 issued an order that the respondent no.3 shall be assigned cases by the State Economic Offence Bureau, but no case was assigned to him, so the report Annexure R-1 was without any basis. Annexure R-1 report was written by respondent no.2 without referring to Annexures R-1 and R-3. (4) That the bail order which has been taken into consideration by the Learned Single Judge is Annexure A-6, which is at page 4 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others no.133 of the paper book, specifically reveals that it was a subsequent event and could not have been a ground to justify transfer of respondent no.3 from Jabalpur to Satna. In a subsequent order dated 20.7.2011, in para 17 of the order, the position was clarified, so the contention of appellant or respondent no.2 that respondent no.3 had not performed his duties was without any basis. (5) That until and unless cases are assigned to respondent no.3, he was not under an obligation to conduct the cases, which were not assigned to him. Apart from this, Shri Uday Cholkar, Government Advocate has appeared in the matter and conducted the cases. It is submitted that the order was punitive in nature. The learned Single Judge has rightly considered the matter in the light of judgment of Apex Court in Kalabharati Advertising Vs. Hemant Vimalnath Narichania [(2010) 9 SCC 437] and recorded a finding that it was a legal malice. Apart from this, the order was punitive in nature and in the light of Apex Court judgment in Somesh Tiwari Vs. Union of India [(2009) 2 SCC 592] the order was rightly set aside. It is submitted that the appeal is without any merit and may be dismissed. 4. Shri Rahul Jain, learned Deputy Advocate General supported the order of transfer issued by the State and submitted that the order was issued in administrative exigency and there was no need to set aside the aforesaid order. 5. To appreciate the rival contentions of the parties, it would be appropriate if the facts of the case are stated. (a) The respondent Vijay Singh Parihar challenged his transfer order dated 27.4.2011, by which he was transferred from 5 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others Jabalpur to Satna in the same capacity of Deputy Director Prosecution. By the same order the appellant herein was transferred from Satna to Jabalpur. This order was assailed by the respondent on the ground that there was no occasion to transfer the respondent as he was posted at Jabalpur only on 28.1.2010 and within a period of 15 months he was transferred. It was also alleged that the order was issued without any justified reasons or an administrative requirement, but to accommodate the appellant herein. That without completing his normal tenure he was transferred. (b) In the case notice was issued to the State on 29.4.2011 and on 29.4.2011 when the matter was listed before the Single Bench for considering the question of ad-interim writ, the transfer file of appellant and respondent no.3 was shown to the Court and the State was allowed time to file response in the matter and the case was directed to be listed on 3.5.2011. (c) On 3.5.2011 at the time of hearing the file in which the respondent and appellant were transferred was placed before the Court and the learned Single Judge found that no interim relief could be granted to the respondent no.3 and the case was adjourned for the week commencing from 16.5.2011. On 16.5.2011, the State could not file reply, however it was brought to the notice of the Single Bench that the transfer order was carried out and the respondent no.3 had joined at Satna. It was also brought to the notice that respondent no.3 was compelled to withdraw the writ petition as a letter was written by the respondent no.2 to respondent no.3. The Single Bench considering the aforesaid fact passed an order on 16.5.2011 directing stay of transfer order dated 27.8.2011 and that respondent no.3 shall be permitted to work at Jabalpur till next date of listing. Thereafter the respondent no.3 joined back at 6 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others Jabalpur. In the meantime, the appellant herein also joined at Jabalpur and at present both are working at Jabalpur. (d) The State has filed return in which it was alleged that on an inspection of the office of respondent no.3 at Jabalpur a report was submitted that he was not taking interest to conduct cases of various offences for which he was specifically appointed as special prosecutor. That respondent no.3 has not taken interest in conducting any cases as Special prosecutor, while only Special prosecutor could appear in those cases and the working of respondent no.3 was found unsatisfactory at Jabalpur. Several petitions were pending before the High Court against the pending matters in which he had not taken interest and it was found that it would not be in the interest of Department to continue respondent no.3 at Jabalpur. Considering all the aforesaid in the interest of administration, it was found appropriate to transfer the respondent no.3 at Satna and the appellant was transferred at his place. (e) It was submitted by respondent no.1 and 2 that the appellant herein is due to retire in the month of June 2012. He made an application for his posting at Jabalpur as it is his home district and in terms of the policy of the State the appellant herein was entitled to be posted at home district within 2 years from the date of retirement. That in the interest of administration and looking to the exigency respondent no.3 was transferred to Satna and appellant herein was posted at his place. The respondent no.3 had carried out the transfer order. The appellant also handed over the charge at Satna, joined at Jabalpur on 29.4.2011 and on this ground the petition was opposed. 6. The appellant herein also filed his separate return in which more or less stand of the appellant was the same as of State. In 7 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others the case an application was filed by the respondent no.3 for summoning original record of the transfer. A letter dated 7.5.2011 was also placed on record in which an information was sought by respondent no.2 from respondent no.3 that though he has joined on 6.5.2011 at Satna, but he has not clarified whether he has withdrawn the petition pending before the High Court at Jabalpur and this information be sent forthwith by fax. A copy of this letter is on record as Annexure R-6. 7. In the case the respondent no.3 filed a rejoinder and stated that earlier the respondent no.2 had transferred one employee working in the office by Deputy Director Prosecution, Jabalpur to Satna. At Jabalpur 45 writ petitions were pending in the High Court in which respondent no.3 was working as officer incharge, but no ministerial employee was posted in his office. In these circumstances, he was feeling difficulty in completing the work of preparation of return to be filed in the pending writ petition. The respondent no.3 was spending money from his pocket for typing and photo copy of the documents etc. After joining at Jabalpur on 5.3.2011 he had filed return in 9 cases, apart from one caveat before the High Court during the span of 15 months. It was also submitted by him that no case was allotted to him as per the provision of Code of Criminal Procedure and on his own he could not have acted as Special Prosecutor, even if his name is mentioned in the notification issued. A notification dated 4.6.2010 was also referred by him, which was issued by the State Government to the effect that the cases will be allotted by the Economic Offence Wing to appear as Public Prosecutor. As no case was allotted to him there was no question of his appearance in the cases. He was neither a Public Prosecutor nor Additional Public Prosecutor because under section 301 of the Cr.P.C., until 8 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others and unless a case is made over to him, he could not appear in the Court. On the aforesaid grounds, the case was contested before the Learned Single Judge. The Learned Single Judge found that from the perusal of file of transfer, the order was issued on a memo of respondent no.2, in which an inspection dated 18.4.2011 was referred. On the basis of this memo a show cause notice was issued on 15.4.2011 in respect of certain allegations against the respondent no.3. But before receiving the reply of show cause notice respondent no.3 was transferred on 27.4.2011. The learned Single Judge found that all the allegations in the memo dated 18.4.2011 were not correct and infact it was a case of legal malice against respondent no.3 on the basis of which the transfer order was issued. Relying on the two judgments of Apex Court in Somesh Tiwari and Kalabharati Advertising (supra), the transfer order was quashed. This order is under challenge in this appeal. 8. To appreciate the rival contentions of the parties, it would be appropriate to mention herein that before the writ Court, this fact was specifically brought to the notice of the Court that before 16.5.2011 the respondent no.3 had joined at Satna on 6.5.2011. But when a copy of letter dated 7.5.2011 Annexure R-6 was produced, the Single Bench found that respondent no.3 was pressurized to withdraw the writ petition and issued ad-interim writ by which it was directed that respondent no.3 shall continue at Jabalpur, meaning thereby that inspite of joining at Satna he was directed to continue at Jabalpur. To appreciate it, we have perused the letter dated 7.5.2011 Annexure R-6, which is on record. For ready reference letter reads thus :- “You have intimated, by aforesaid referred letter that you have assumed the 9 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others charge of Deputy Director Prosecution, Satna on 6.5.2011, but you have not clarified that petition filed before Hon'ble High Court, Jabalpur has been withdrawn or not ? So you furnish such information immediately by fax to the Directorate.” From the perusal of aforesaid, it is apparent that only an information was sought by respondent no.2 in respect of status of petition pending before the High Court. By reading this letter it appears that respondent no.2 had sought only such information. Nowhere it indicates that respondent no.3 was pressurized for withdrawal of petition. Only seeking an information whether the petition has been withdrawn or not cannot be treated as pressurizing the respondent no.3 for withdrawal of the writ petition. But it appears that the Single Judge because of this issued ad-interim writ on 16.5.2011, by which a mandatory order was issued directing respondent no.3 to join at Jabalpur. Once the order was executed by respondent no.3, he joined on 6.5.2011, then he could have continued at Satna till the decision of petition. However inspite of joining on 6.5.2011 the respondent no.3 was again directed to join at Jabalpur. 9. Now the question remains in respect of alleged legal malice in respect of transfer order. In this case, there are no allegations against respondent no.1 or 2 that they had acted in a malafide manner in transferring the respondent no.3 from Jabalpur to Satna. The inspection note dated 18.4.2011, is on record as Annexure R-1, in which respondent no.2 while inspecting the office of respondent no.3 at Jabalpur on 13.4.2011 found certain serious infirmities in the discharge of duties by respondent no.3. It appears that after this inspection note a show cause notice dated 15.4.2011 was issued to respondent no.3, in which he was asked to submit his explanation in respect of those query and on 10 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others the basis of Annexure R-1 the impugned transfer order was issued. The learned Single Judge examined the reasons assigned in the inspection note Annexure R-1 and held that respondent no.3 was not at fault and on this ground the transfer order has been quashed, but it appears that the aforesaid examination ought to have been done by respondent no.1 or 2 who had issued show cause notice. When the respondent no.2 who happens to be the Director, Public Prosecution and an officer of the level of District and Sessions Judge, found certain deficiencies in the working of respondent no.3 and in the interest of administration the respondent no.3 was transferred, then it could not have been a ground for interfering in the transfer order. No allegations were made against respondent nos.1 or 2 about any malafides against respondent no.3. Even if the inspection note was not correct then the respondent no.3 ought to have been allowed an opportunity to submit his case before respondent no.2 by explaining the circumstances, which were shown in the inspection note. The appropriate authority in this regard could have been respondent no.1 or 2 and because of this the transfer order should not have been interfered. 10. Legal malice has been explained by the Apex Court in Kalabharati Advertising (supra) wherein the Apex Court held that the State is under an obligation to act fairly without ill will or malice, in fact or in law. Legal malice or Malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with 11 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended.” It means conscious violation of law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. In that case the Corporation recalled the order passed by it earlier and reviewed the same without assigning any reason. The Apex Court held that it was obligatory on the part of Corporation to explain as to what was the material on which the earlier order was changed. While the factual position in the present case is entirely different. 11. In Somesh Tiwari (supra) the employee was transferred on an anonymous complaint, which was investigated by the departmental authorities, but nothing adverse was found against the employee, yet he was transferred. He resisted his transfer but by another order he was transferred to different place. In that case the Apex Court held that an order of transfer is an administrative order. The transfer which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved. Mala fides are of two kinds, first, malice in fact and second, malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane to passing of an order of transfer and based on an irrelevant ground i.e. on the allegations made against an employee in an anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies, but it is another thing to say that the order of transfer is passed by way of, or in lieu of punishment. When an order of transfer is passed 12 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others in lieu of punishment, the same is liable to be set aside. In that case the Apex Court found that the order suffered from not only application of mind, but also suffers from malice in law. But facts of this case are different and ratio of this judgment is not applicable. 12. In this case, the show cause notice issued to the petitioner by respondent no.2 is still under consideration of respondent no.2. The inspection note was placed before the respondent no.1 and it appears that on the basis of such inspection note the transfer order was issued. In the inspection note the following findings were recorded by respondent no.2 at the time of inspection :- (1) That respondent no.3 had not conducted any sensational or heinous offence case during his tenure at Jabalpur. (2) That he was directed by the Directorate to conduct cases of Economic offences, but he had not conducted any economic offence case. (3) That the respondent no.3 had not conducted any sessions trial as a prosecutor. (4) That though the respondent no.3 was officer Incharge in many cases pending before the High Court, but when he was asked to furnish the details, he was not in a position to furnish any register or files. He was also not in a position to intimate the Director how many petitions were pending in the High Court at Jabalpur. (5) That the respondent no.3 was also not in a position to inform how many petitions were decided or what orders were passed by the High Court. 13 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others (6) That because of behaviour and working conduct of respondent no.3 other prosecution officers were not satisfied. The respondent no.2 found that his work was totally unsatisfactory. It appears that on the aforesaid ground looking to the administrative exigency, the respondent no.3 was transferred. 13. The respondent no.3 happens to be Deputy Director of Prosecution. His posting at Jabalpur was for the conduction of cases, as is envisaged under section 301 of Cr.P.C., and also under section 24 of the Cr.P.C. The explanation on the part of respondent no.3 before the Court was that he was not assigned any case so he had not appeared. Whether in this regard he had drawn attention of respondent no.2 that inspite of his posting for 15 months, he had not been assigned any case or conducted any sensational or heinous offence trial. He had also not conducted any case of economic offence or sessions trial except he had filed return in 9 cases in the High Court and filed one caveat. Nothing was brought to the notice of Single Bench that he had performed his duties according to his office. Public Prosecutor is appointed under section 24 of the Cr.P.C. His appointment is for conduction of cases. If the respondent no.3 was not assigned any work, though it is disputed by the appellant and also by respondent no.1 & 2, then he ought to have intimated this fact immediately to respondent no.2. Apart from this, as per the case of respondent no.3 he was taking care of matters pending before the High Court, but at the time of inspection, he was unable to state the present status of petitions or, in respect of decided matters. He was also not in a position to place the files of pending cases or inform about number of cases which were pending before the High Court for last 15 months. 14 W.A.No.786/2011 Arun Kumar Gupta Vs State of M.P. & others In these circumstances, if the respondent no.2 submitted his inspection note to respondent no.1 and on the basis of this he was transferred, it cannot be said that it was not a case of administrative exigency, but was a case of legal malice. As Jabalpur is an important place where serious heinous and sensational cases are pending, apart from serious economic offence matters. Being the Deputy Director Prosecution Incharge of entire district he was under an obligation to conduct such cases and if no formal order was issued in this regard then he ought to have intimated to respondent no.2 in this regard,