1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.3496 of 2011 and M.P(MD)No.1 of 2011 and CONT.P(MD)No.259 of 2011 B.Ramasubbu .. Petitioner Vs. 1.The District Collector, Pudukkottai District,Pudukkiottai. 2.The Block Development Officer, Gandharvakottai Panchayat Union, Gandharvakottail,Pudukkottai District. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records in connection with the impugned order of relieving passed by the 1st respondent in his proceedings in Na.Ka.2979/2011/Pa6/ (Valarchi) dated 21.03.2011 and consequential order of relieving passed by the 2nd respondent in his proceedings na.Ka.1255/2010/A1, dated 21.03.2011 and quash the both as illegal and arbitrary and consequently direct the respondents to allow the petitioner to continue in the same place i.e., Gandharvakottai Panchayat Union. CONT.P.(MD)No.259 of 2011 B.Ramasubbu .. Petitioner Vs. 1.Mrs.A.Suganthi District Collector, Pudukkottai District, Pudukkiottai. 2.Mr.G.Veerappan Block Development Officer, Gandharvakottai Panchayat Union, Gandharvakottail, Pudukkottai District. .. Respondents PRAYER: Contempt Petition is filed under Section 11 of Contempt of Courts Act, to punish the contemnors for wanton and willful disobedience of the order passed by this Court in M.P.(MD)No.1/11 in W.P.(MD)No.3496 of 2011, dated 24.03.2011. Prayer in M.P.(MD)No.1/11 in W.P.(MD)No.3496 of 2011: To grant an Ad-Interim stay of the operation of the impugned order of the relieving passed by the 1st and respondent in his proceedings in Na.Ka.2979/2011/Pa6 (Valarchi) dated 21.03.2011 and consequential order of relieving passed by the 2nd respondent in his proceedings Na.Ka.1255/2010/A1 dated 21.03.2011. https://hcservices.ecourts.gov.in/hcservices/ 2 For Petitioner : Mr.G.Thalaimutharasu For respondent-1 : Mr.B.Pugalenthi Spl.Govt.Pleader For respondent-2 : Mr.R.Karthikeyan COMMON ORDER Seeking to quash an order of transfer, dated 21.03.2011 passed by the District Collector, Pudukottai, the petitioner has filed the present Writ Petition. 2.This Court, while ordering notice, has granted interim-stay on 24.03.2011. Alleging violation of the order passed by this Court, the petitioner has preferred Cont.P.No.259 of 2011. Both the petitions have been taken up together and being disposed of by a common order. 3.According to the petitioner, he joined the service, as Assistant Draftsman in the year 1980 and gradually promoted to the post of Assistant Engineer in March 2010. While he was serving at Karambakudi Panchayat Union, by an order dated 16.04.2010, he was transferred to Gandharvakottai Panchayat Union. Ever since, the petitioner joined the service in 1980, he has been discharging his duties to the utmost satisfaction of his superior officers and by impugned order, dated 21.03.2011, the petitioner has been relieved from Gandharvakottai Panchayat Union, citing administrative grounds and that he was directed to get appropriate posting orders by approaching the Commissioner, Rural Development Panchayat Raj Department, Chennai. 4.Assailing the correctness of the order of transfer, Mr. G.Thalaimutharasu, learned counsel for the petitioner made the following suggestions:- The impugned order of transfer is contrary to the Government guidelines issued from time to time in the matter of transfer and that when the Government guidelines specifically state that an officer posted in a particular place, should not be transferred, within a period of three years, the petitioner, who has joined at Gandharvakottai Panchayat Union only on 16.04.2010, has been transferred, even before completion of one year and that he has not been allowed to work in a particular station, as per the Government guidelines. In this context, learned counsel for the petitioner took this Court to the relevant paragraphs in G.O.Ms.No.10, P&AR Department, dated 07.01.1994 and G.O.Ms.No.20 P&AR Department, dated 05.08.1998 respectively. 5. Learned counsel for the petitioner further submitted that the impugned order of transfer, is nothing but a colourable exercise of power to punish the petitioner, on the sole ground that he preferred a petition against the Executive Engineer and the Assistant Engineer, to the Director of Rural Development and Panchayat Raj Department, Chennai. According to him, when a petition has been made, instead of conducting an enquiry into the same, in order to protect the erring officials, the petitioner has been transferred out of the station to get rid of him, from Gandharvakottai Panchayat Union. https://hcservices.ecourts.gov.in/hcservices/ 3 6.Referring to the impugned order, dated 21.03.2011, learned counsel for the petitioner further submitted that while transferring the petitioner from Gandharvakottai Panchayat Union, the District Collector, Pudukottai, seemed to have referred to certain documents, details of which, have not been furnished to the petitioner. 7. Inviting the attention of this Court to the averments made in the counter affidavit, learned counsel for the petitioner further submitted that the impugned order is purely motivated, and even assuming that there are materials or complaint, against the petitioner, that he was responsible, to bring it to the notice of the higher authorities of the lethargic and inefficient approach of higher officials in the completion of a road work and the poor quality in the execution by the contractor and lack of supervision by the officials, disciplinary action should have been taken against the petitioner and that, transferring him to a far away place, is nothing but punitive and in such circumstances, it is liable to be set aside. In this context learned counsel for the petitioner relied on the decisions of the Supreme Court in Somesh Tiwari Vs. Union of India reported in (AIR 2009 SC 1399) and of this Court in R.Mohanasundaram Vs. The Principal Chief Conservator of Forests, Chennai and Ors reported in (2009 (5) CTC 231). 8. Inviting the attention of this Court to a news items published on 21.03.2011, in a local Tamil Daily and the objections, dated 06.04.2011, of the petitioner to such publication, sent to the Editor of a Tamil Daily, learned counsel for the petitioner further submitted that he had not given any interview to any reporter or for any publication in a news paper, about the alleged irregularities said to have been committed by certain officials, and that he cannot be held responsible for such publication and transferred from Gandharvakottai Panchayat Union. He also submitted that in any event, if there was any allegation against the petitioner that he was responsible for the publication of a news item and if there was any prima facie, an enquiry should have been conducted to ascertain, truth or otherwise of the allegation, and without conducting the same, transfer ought not to have been effected. For the above said reasons, he prayed that the impugned order is liable to be set aside. 9. Contending inter alia that though the petitioner obtained an interim order of stay on 24.03.2011 and when he had appeared before the Gandharvakottai Panchayat Union, to permit him to join duty on 25.03.2011 and inspite of a representation, and request in person to the Personal Assistant to the then District Collector, Pudukottai, he has not been allowed to join, the petitioner has filed a Contempt Petition. 10.Learned counsel for the petitioner further submitted that when a representation, dated 26.03.2011, was sent to the Block Development Officer, Gandharvakottai Panchayat Union, to permit him to join duty, he had returned the said representation on 29.03.2011, on the ground that he has no authority to consider the same, as he has already been relieved. He also submitted that the said representation has been returned on the ground that sending representations is against the Code of Conduct. In the above said circumstances, learned counsel for the petitioner submitted that due to high handed and motivated action on the https://hcservices.ecourts.gov.in/hcservices/ 4 part of respondents 1 and 2, the petitioner has not been allowed to join, inspite of obtaining an interim order. 11. On the basis of the counter affidavit filed by the District Collector, Pudukottai, Mr.B.Pugalendhi, learned Special Government Pleader submitted that improvement of TSP road to Vadugapatti Village has been sanctioned under PMGSY VII Phase on 26.02.20009. Work order for the same was given to a contractor on 14.08.2009. The period of completion of work is six months and it has ended on 13.05.2010. As per the duty charge, dated 03.03.2000 of the Director of Rural Development, Chennai, he is the monitoring officer and competent to take appropriate action against the Contractor for non-maintenance of agreement period, failure to complete the work within the scheduled time and for any poor quality. According to the respondents, only WBM bottom layer and sub base works have alone been completed, which is 40% of the total work. When the state level quality monitoring Wing, sent by the Commissioner of Rural Development, Chennai, inspected the road, no adverse remarks was made regarding selection of the road. At this juncture, when the petitioner assumed office as Assistant Engineer (RD) of Gandharvakottai Panchayat Union on 16.04.2010, being an incharge official and having remained silent for nearly a year without taking any action, as competent authority, he made unwarranted comments, which caused imperative tension among the public, local body representatives and political parties, which posed a threat to the law and order. 12. According to the District Collector, Pudukottai, right from 16.04.2009, the petitioner has not shown any interest in the progress of the road during his tenure, as Block Engineer. She has further submitted that the petitioner has not inspected the site frequently and proper initiation was not taken to extract the work from the Contractor. The intervention of higher level officers towards the completion of the road work was also not effectively utilized by the petitioner. The respondent further submitted that due to lethargic and inefficient approach of the petitioner in completion of the road, the public could not use the road. 13. That be so, when the Election Model Code of Conduct came into force, the petitioner has made adverse press communication on 21.03.2011, which caused infuriation and tension among the political parties and local body representatives, which threatened a law and order situation during election. The District Collector, Pudukotai, has further submitted that the petitioner had already come to adverse notice by shirking his responsibility and indifferent attitude in the progress of the road work namely Muthukulam-Kulathunayakkanpatti-15th NABARD 2009 2010, which resulted in the public, ganging up against him and cause disturbance in Mass Contact Programme on 13.10.2010, at Gandarvakottai. 14.The District Collector, Pudukottai District, has further submitted that because of the adverse remarks made by the petitioner, during the election period, it was viewed as a violation of Code of Conduct by the writ petitioner, therefore it was essential to relive the petitioner from Gandharvakottai Panchayat Union, to maintain a normal situation. She also submitted that as officer incharge of that work, the petitioner should have monitored/supervised the same, instead, he https://hcservices.ecourts.gov.in/hcservices/ 5 has indulged in making statements against higher officials creating tension in the area. For which conduct, the petitioner could have even suspended. However, it was decided that continuation of the petitioner at Gandharvakottai Panchayat Union, Pudukottai District, would have resulted in further instigation of rivalry between political parties and groups of official and elected representatives and therefore, the District administration thought it fit to relieve the petitioner from the above said place, and has has been asked to appear before the Commissioner of Rural Development and Panchayat Raj, Chhenai, to get further postings. Learned counsel for the petitioner further submitted that though the allegations warranted suspension, with a sympathetic attitude, he has been relieved from Gandharvakottai Panchayat Union. 15.Refuting the contention that the petitioner ought not to have been transferred within the normal tenure of three years, as stated in the guidelines and Government Orders in G.O.Ms.No.10, P&AR Department, dated 07.01.1994 and G.O.Ms.No.20 P&AR Department, dated 05.08.1998, learned Special Government Pleader submitted that the above said guidelines are only administrative instructions and that they do not have any statutory force. He also submitted that whenever the retention of a Government servant, is not conducive for effective administration, or if there is any likelihood of any untoward incident, on account of the conduct of such Government servant, it is always open to the appointing / disciplinary / controlling authority, to transfer such Government servant from the place, where he was working and as much as transfer is only an incident of service, the petitioner has no legal or statutory right to question the same. He further submitted that the allegation of mala fide made against the District Collector, Pudukottai, the first respondent herein, is wholly unwarranted and that there is no personal grudge or otherwise against the petitioner and therefore, prayed to reject the said contentions. 16. Learned counsel for the respondent submitted that, as the petitioner had already been relieved from the post of Assistant Engineer, Rural Development, as per the impugned order dated 21.03.2011, he could not be retained in Gandharvakottai Panchayat Union. As the impugned order has already been given effect to, he prayed for dismissal of the Contempt Petition. 17.Heard learned counsel for the parties and perused the materials available on record. 18.After promotion, as Assistant Engineer, in March 2010, the petitioner, vide order dated 16.04.2010, has been transferred to Gandharvakottai Panchayat Union, under the control of Block Development Officer, Gandharvakottai, Pudukottai District. As regards the contention that the suspension is in violation of G.O.Ms.No.10, P&AR Department, dated 07.01.1994, that the petitioner has been transferred within the normal tenure of three years, this Court is of the view that, the administrative instructions, do not have any statutory force of law and therefore, it cannot be contended that the petitioner ought not to have been transferred, during the non-transferable period i.e., between 1st July and 1st March of the next year. It is well known that a person working in a transferable post, is liable to be transferred, https://hcservices.ecourts.gov.in/hcservices/ 6 during the normal period of three years, to any post. However, where there are serious allegations pending enquiry and when it is considered necessary in public interest, it is sufficient in lieu of suspension, an officer may be transferred and in such cases, transfer can be effected to a vacant post in another station or to the post, where the junior most person of the same category is working. 19. In so far as transfer, effected on the basis of an allegation is concerned, unless the allegations are found to be prima-facie true after conducting a preliminary enquiry, and it is decided by the transferring authority that the continuance of the said officer in the same station is injurious to public interest, he can be transferred rather than suspended from service. When such transfer on complaints/allegations are made after preliminary enquiry, it should be followed-up by a detailed investigation and disciplinary action instituted on allegations finally found to be substantiated. 20.The Supreme Court in N.K.Singh Vs. Union of India (1994) 6 SCC 1304, has held that the assessment of the worth has been left to the bona fide decision of the superiors in service and their honest assessment accepted, as a part of service discipline. There may be several imponderables requiring formation of a subjective opinion in that sphere may be involved at time. The Apex Court further observed, only the realistic approach is to leave it to the wisdom of that hierarchical superior to make that decision. Unless the decision is vitiated by mala fides or infractions, of any professed norms or principles governing the transfer, which alone can be scrutinized judicially. There is no judicially managable stand for scrutinizing all transfers and the Courts lack the necessary expertise for personnel management of all Government departments. 21.In the case on hand, as materials are already available on hand, this Court is not burdened with any difficulty to assess, as to whether, the impugned order of transfer has been effected, on account of any administrative exigency, which has to be understood in its widest and pragmatic sense. No doubt, it is the responsibility of the superior officers, to have an effective and smooth administration. Not every order of transfer can be said to be a punitive transfer, on receipt of a complaint or information. The question as to whether an order os transfer, is administrative in nature, or mala fide, has to be decided on the facts and circumstances of each case. 22.The question as to whether an order of transfer is administrative in nature, or mala fide, has to be decided with reference to facts and circumstances of each case. There can also be bona fide exercise of power of transfer, to avoid any untoward incident in a particular place, and if retention of a person in a particular post or place may cause disrepute to the Government, in the eyes of public. 23. In the above background let we examine the issue as to whether transfer impugned in this writ petition is valid or not. Materials on records shows that on 18.03.2011, the petitioner seemed to have sent a representation to the Director of Rural Development and Panchayat Raj https://hcservices.ecourts.gov.in/hcservices/ 7 Department, Chennai, alleging certain irregularities, said to have been committed by the Executive Engineer, Assistant Engineer (Roads and Bridges) and a contractor, regarding the poor quality of road and contravention of the rules, in laying a road, for which a sum of Rs.34.21 lakhs has been sanctioned. 24.The sum and substance of the representation, seemed to have been published in a daily newspaper on 21.03.2011. The counter affidavit of the District Collector, Pudukottai District, proceeds on the premise that the petitioner, an Assistant Engineer (GD) of Gandarvakottai Panchayat Union, who assumed charge on 16.04.2010, has not shown any interest, in the progress of the work, not inspected the site frequently, not effectively utilised the intervention of higher level officers towards the completion of the road work. The counter further reads that because of the lethargic and inefficient approach of the petitioner towards the completion of the road work, public were denied services of the road. The impugned order of transfer has been effected on 21.03.2011. Thus, it could be inferred from the averments made in the counter affidavit that for the first time, after filing of the writ petition, the District Collector, Pudukottai District, has levelled an accusation against the writ petitioner, in discharge of his duties. It is also to be noted though the petitioner has pointed out, several irregularities in his petition, dated 18.03.2011, to the Director of Rural Development and Panchayat Raj, Chennai, also and enclosed a copy of the same in the typed set of papers, there is absolutely nothing in the counter affidavit touching upon the alleged irregularities said to have been committed by the Executive Engineer, and the Contractor. There is also a further allegation against the Assistant Engineer [Roads and Bridges], as to the manner in which the road has been partly laid with poor quality. The District Collector has also has not placed any materials before this Court, as to the course of action taken on the petition, dated 18.03.2011, said to have been preferred by the writ petitioner, to the Director, Rural Development and Panchayat Raj Department. From the counter affidavit it could also be deduced that the entire blame has been made only on the petitioner, as if he was solely responsible for the lapses in laying the road, the bias in the approach of the respondents could be easily inferred. 25.Admittedly, there is a publication alleging slackness and irregularities, in laying the road. The news item reads as if the report has been given by the petitioner. The counter affidavit reads as if the petitioner, who had remained silent for nearly one year without taking any action, had made an unwarranted comment in the press, which caused tension among the public, local body representatives and in order to avoid the tension, among the public, it was thought fit that, if the petitioner was allowed to work in the same station and in the same post, his indifferent attitude, might have caused administrative problems. On the above situation, the District Collector, has also submitted that in such circumstances, it was inevitable to relieve the petitioner, to avoid further embarrassment to the District Administration and inducement to political rivalry. 26.The main reason for arriving at the conclusion of likely hood of unrest or tension in that area is the paper publication and the alleged https://hcservices.ecourts.gov.in/hcservices/ 8 action of the petitioner in giving an adverse press statement. As regards the credibility of the contents of news item and it is evidentiary value in adjudication process, Courts have laid down certain principles of law. 27.As stated in the forgoing paragraphs, if there are was serious allegation levelled against the petitioner, and if the superior officer, has formed a prima facie opinion in public interest, and in lieu of suspension, an officer may be transferred, on the basis of an allegation, there should be atleast a preliminary enquiry to find out, as to whether the petitioner, has given any press statement regarding the irregularities said to have been committed by the superior authorities, in laying the road. 28.No doubt, the transferring authority can always assess the worth of an officer, in transferring or retaining a person in a particular post or place and such subjective opinion, should be made on some evidence, collected through a preliminary enquiry. If there are some materials, for scrutiny, in the form of record or report, then, an order of transfer, can be sustained on the ground that there was a bono fide reason to maintain discipline in service or for the smooth and proper administration. 29.Though the respondents have made an allegation against the petitioner that he had given a press communication on 21.03.2011, which caused an imperative tension among the public and political parties, posing a threat to law and order absolutely, no materials have been placed before this court, as to whether there was any report from the place, or other law enforcing agencies. Not even a scrap of paper has been produced before this Court to prove that, as the Head of District Administration, the District Collector had conducted any preliminary enquiry to ascertain either from the press or even called upon the petitioner to ascertain, as to who has given the information to the press. 30.On the aspect of placing reliance on news items, without proper verification, this Court deems it fit to extract few decisions:- (i) The question of admissibility of the newspaper reports came up for consideration in SAMANT N.BALKRISHNA AND ANOTHER VS. GEORGE FERNANDEZ and others reported in (1969 (3) SCC 238) at paragraph 26, wherein the Apex Court observed as follows: "A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publish it. In this process truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible." https://hcservices.ecourts.gov.in/hcservices/ 9 (ii). The Supreme Court in LAKMI RAJ SHETTY AND ANOTHER VS. STATE OF TAMIL NADU reported in (1988 (3) SCC 319), opined thus: "...We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein." (iii) In QUAMARUL ISLAM VS. S.K.KANTS reported in 1994 (1) SCC 452, the question as to whether mere production of a copy of the newspaper, be treated as proof of the report of the speech (news item) contained therein, came up for consideration. The Apex Court in Paragraph 48 of the judgment held as follows: "Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither