IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.08.2011 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.7603 of 2011 and M.P.No.2 of 2011 M.Marimuthu .. Petitioner Vs. 1.The Director of Treasuries and Accounts, Panagal Building, Saidapet, Chennai 600 015. 2.The Treasury Officer, District Treasury, Namakkal ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the records of the 2nd respondent dated 12.11.2010 issued in Se.Mu.Ka.No.11235/A2/2010 and the subsequent proceedings issued by the first respondent in Na.Ka.No.53401/2010/C2 dated 01.12.2010 and quash the same. For Petitioner : Mr.G.Sankaran for M/s.R.N.Amarnath For Respondents : Mr.P.S.Sivashanmuga Sundaram AGP Assisted by Mrs.Rajalakshmi Government Advocate O R D E R The petitioner has come forward with this petition seeking for the relief of quashing the order of the second respondent dated 12.11.2010 issued in Se.Mu.Ka.No.11235/A2/2010 and the subsequent proceedings issued by the first respondent in Na.Ka.No.53401/2010/C2 dated 01.12.2010. 2. The case of the petitioner is that the petitioner was appointed as Office Assistant in Treasuries and Accounts Department as per the orders passed by the Treasury Officer, Salem on 15.07.1986. The petitioner is presently working as Office Assistant in the Sub-Treasury Office, Rasipuram, Namakkal District. 3. The petitioner is suffering out of serious ailment called Varicose Veins for which he underwent surgery in both the legs in 1983 and thereby, the functioning of his legs was affected and https://hcservices.ecourts.gov.in/hcservices/ there is a complete set back of ability to stand on the legs continuously. Even in the year 1984, the petitioner was issued with a certificate for physically handicapped by referring to the Varicose Veins disease suffered by him and the surgery underwent by him with a note that the petitioner could not stand for long time and cannot walk for long distances. 4. The petitioner preferred an application for unearned leave on medical grounds for 29 days from 14.10.2010. He has also made a representation on 12.11.2010 for joining the post. In the said representation, the petitioner stated that he is physically handicapped person. However, the second respondent after receipt of the application has issued a show cause notice dated 12.11.2010 on the same day, stating that the petitioner is misleading the department by saying "differently able person" which is not found in any of the records and thereby he was called upon to produce the records to show that he is physically handicapped person, within a period of 7 days. On the same day, the petitioner was transferred and posted to the Office of the District Treasury, Namakkal as per the proceedings in Se.Mu.Ka.No.11235/A2/10 dated 12.11.2010. Thereafter, he has made a representation dated 15.11.2010 to the second respondent seeking for the relief of cancellation of the transfer order transferring him from Rasipuram to Namakkal. But instead of considering such request, the petitioner has been issued with an another order dated 01.12.2010 by the first respondent transferring him from Namakkal to the Office of the District Treasury, Tiruppur. Being aggrieved against the said orders, the petitioner has been constrained to approach this Court with the above said prayer. 5. Mr.G.Sankaran, learned counsel appearing for the petitioner contended that the petitioner has been served with the impugned transfer order only on the basis of certain complaints said to have been preferred by the Tamil Nadu Government Servants and Teachers Joint Action Committee, Rasipuram Taluk and without affording any opportunity, by way of punishment. It is contended that though in the impugned order it is stated that the petitioner has been transferred on administrative reasons, the counter filed by the second respondent reveals that the petitioner has been transferred only on the basis of the said complaints, for which the petitioner has not been given any opportunity to put forth his case. It is further contended that the petitioner also brought to the notice of the respondents about the serious ailment namely Varicose Veins which resulted in undergoing a surgery and the petitioner sought for the cancellation of the earlier transfer order dated 12.11.2010, transferring the petitioner from Rasipuram to Namakkal. It is pointed out by the learned counsel for the petitioner that instead of canceling the said transfer order on the basis of medical grounds, the respondents once again issued an another order dated 01.12.2010, shifting the petitioner to a far off place namely to Tiruppur and as such, it is very clear that the transfer is not made on administrative grounds, but only with a view to punish the petitioner. It is contended that the reading of the counter makes it very clear that the impugned transfer order was passed due to https://hcservices.ecourts.gov.in/hcservices/ the malafide exercise of the power by the authorities. Therefore, it is contended that the impugned orders of transfer are liable to be quashed. The learned counsel for the petitioner, in support of his contentions, would place reliance on the following decisions: (i) B.Varadha Rao v. State of Karnataka and Others reported in (1986) 4 SCC 131 (iii) Somesh Tiwari v. Union of India and Others reported in (2009) 2 SCC 592 (iv) A.Kaliyamoorthy v. District Collector/Inspector of Panchayats reported in (2009) 8 MLJ 588 6. Per contra, Mrs.Rajalakshmi, learned Government Advocate contended that there is no infirmity or illegality in the impugned orders of transfer. It is contended that the petitioner, having made the representation to the effect that he is suffering from disability, ought to have appeared before the medical board for obtaining proper certificate to authenticate his claim of disability. It is further contended that in the impugned order itself, it is stated that the petitioner has been transferred on administrative grounds and as such, it cannot be contended that the said order was passed due to the malafide exercise of powers by the authorities. 7. I have given my careful and anxious consideration to the rival contentions put forward by either side and perused the affidavit filed by the petitioner and the counter filed by the second respondent and the impugned order. 8. At the outset, it is to be stated that this is a classic case wherein a Class IV employee has been subjected to untold hardship. The fact remains that the petitioner is suffering from serious ailment called Varicose Veins, for which he had also undergone a surgery. It is stated by the petitioner that he is not able to walk and as such, he has sought for the medical leave from 14.10.2010. He has also submitted a representation dated 12.11.2010. It is very unfortunate to note that instead of considering the said representation of the petitioner dated 12.11.2010, the second respondent issued a show cause notice on the same day i.e., on 12.11.2010 stating that the petitioner is misleading the department by saying "differently able person". Before issuing such show cause notice, the second respondent ought to have perused the medical certificate enclosed along with the representation dated 12.11.2010. But, simply overlooking the said valid document substantiating the claim of the petitioner, the second respondent issued the said show cause notice and not only stopped by issuing the show cause notice, but proceeded to issue a transfer order transferring the petitioner from Rasipuram to Namakkal. In my considered view, this is nothing but a vindictive action on the part of the second respondent. 9. Further proceedings initiated by the respondents herein is also shocking. It is seen that the petitioner has sought for mercy https://hcservices.ecourts.gov.in/hcservices/ by making a fresh representation dated 15.11.2010 requesting the authorities to cancel the transfer order and to retain him at Rasipuram in view of the serious ailment expressing his inability to travel for long distances. But instead of considering the said request of the petitioner, the first respondent thought it fit to shift the petitioner even from Namakkal to a far off place i.e., Tiruppur by giving yet another blow to the petitioner through the issue of the impugned order of transfer dated 01.12.2010. 10. The perusal of the impugned order dated 01.12.2010 would disclose that the petitioner has been transferred only on administrative reasons and there is absolutely no other ground mentioned in the impugned order. But the perusal of the counter filed by the second respondent makes it abundantly clear that the petitioner was not at all transferred on administrative reasons and the reason for the transfer is due to certain complaints said to have been preferred by some association namely the Tamil Nadu Government Officials Union, Rasipuram Taluk. It is seen in Para 7 of the counter affidavit that certain enquiry is said to have been conducted but the fact remains that the petitioner has not been given any opportunity to participate in such enquiry and the outcome of such enquiry is also yet to be known. It is pertinent to note that even before the completion of the said enquiry, the Assistant Treasury Officer (in-charge) Sub Treasury, Rasipuram sent a letter dated 29.10.2010 stating that the facts mentioned in the said complaints of the Association are true and requested to take further action under the Tamil Nadu Civil Services (Discipline and Appeal) Rules and also to transfer him from Sub-Treasury, Rasipuram. It is relevant to incorporate Para 9 of the counter as hereunder: "9. It is therefore submitted that a detailed report was sent to the Director of Treasuries and Accounts Department, Chennai recommending the transfer of the petitioner from Namakkal District and based on the prima facie evidence, it is submitted that charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules have been contemplated in the 2nd respondent letter 11235/2010/A1 dated 30.11.2010. The Director of Treasuries and Accounts Department, Chennai in his proceedings Rc.53401/2010/C2 dated 01.12.2010 has issued orders transferring the petitioner from Namakkal District to Thiruppur District...." 11. The said statements made in the counter make it abundantly clear that the petitioner was transferred not on administrative reasons but only due to the complaints and the contemplation of the issue of charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is reported before this Court that the charge memo was subsequently issued on 30.11.2010, a day before passing of the impugned transfer order. All these sequence of events and the conduct of the respondents would make it very clear that the impugned order of transfer was passed only due to the malafide exercise of power by the authorities. The learned counsel for the petitioner rightly placed reliance on certain https://hcservices.ecourts.gov.in/hcservices/ decisions of the Hon'ble Apex Court. The Hon'ble Apex Court in B.Varadha Rao v. State of Karnataka and Others reported in (1986) 4 SCC 131 has held as hereunder: "5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned government servant. ....... If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. In the same decision, the Hon'ble Apex Court incorporated the observations made in E.P. Royappa v. State of T.N reported in (1974) 2 SCR 348, as hereunder: "It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair." Finally, in the said decision, the Hon'ble Apex Court has observed as hereunder: "6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one https://hcservices.ecourts.gov.in/hcservices/ department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of class III and class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer." 12. The learned counsel for the petitioner also rightly placed reliance on the decision of the Hon'ble Apex Court in Somesh Tiwari v. Union of India and Others reported in (2009) 2 SCC 592, wherein the Hon'ble Apex Court has held as hereunder: "16.Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the 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 for passing an order of transfer and based on an irrelevant ground i.e., on the allegations made against the appellant in the 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 in lieu of punishment, the same is liable to be set aside being wholly illegal." Similar view was taken by this Court in A. Kaliyamoorthy v. District Collector/Inspector of Panchayats reported in (2009) 8 MLJ 588, by following the principles laid down by the Hon'ble Apex Court. The principles laid down by the Hon'ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case, as it is already pointed out by this Court that the impugned order of transfer though stated to have been passed on administrative grounds, the categorical statements made in the counter filed by the second respondent disclose that the impugned order of transfer was passed against the petitioner not on administrative grounds, but the said order was passed in lieu of punishment on the basis of the complaints and that too without affording any opportunity to the petitioner in respect of the said complaints to put forward his contentions. 13. In view of the aforesaid reasons, this Court is constrained to set aside the order of the second respondent dated 12.11.2010 issued in Se.Mu.Ka.No.11235/A2/2010 and the subsequent proceedings issued by the first respondent in Na.Ka.No.53401/2010/C2 dated 01.12.2010. It is made clear that the respondents shall take immediate steps to allow the petitioner to https://hcservices.ecourts.gov.in/hcservices/ join duty in the Office of the Sub-Treasury, Rasipuram within a period of ten days from the date of receipt of a copy of this order. It is further made clear that the representation already submitted by the petitioner, seeking for the relief of considering his case on the ground of disability, shall be considered in the manner known to law by affording reasonable opportunity to the petitioner to put forward medical certificate from the competent authorities. 14. With this direction, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar jvm To 1.The Director of Treasuries and Accounts, Panagal Building, Saidapet, Chennai 600 015. 2.The Treasury Officer, District Treasury, Namakkal. 1 cc To The Government Pleader, SR.48703. 1 cc To Mr.R.N.Amarnath, Advocate, SR.48457. W.P.No.7603 of 2011 and M.P.No.2 of 2011 SAI(CO) RVL 24.08.2011 https://hcservices.ecourts.gov.in/hcservices/