IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2011 CORAM: THE HON'BLE MR.JUSTICE T.RAJA W.P.No.23205 of 2010 and M.P.Nos.1 and 2 of 2010 R.Ponnusamy ... Petitioner Vs. 1.The Director General of Police O/o The Director General of Police Chennai. 2.The Inspector General of Police, (Trainee) Chennai-600 083. 3.The Commissioner of Police, Coimbatore City, Coimbatore. 4. The Superintendent of Police, Coimbatore District, Coimbatore. 5.The Principal, Police Recruitment School, Coimbatore, Coimbatore District. 6.The Chief Instructor (Law), Police Recruitment School, Coimbatore, Coimbatore District. ... Respondents PRAYER : This Writ Petition is filed under Article 226 of the Constitution of India praying to issue a WRIT OF CERTIORARI calling for the records relating to the impugned order passed by the first respondent vide R.C.No.140450/NGB-IV(2)/2010 dated 23.07.2010 and the consequential impugned order passed by the first respondent vide R.C.No.140450/NGB-IV(2)/2010 dated 29.09.2010 and quash the same as illegal. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.AR.L.Sundaresan Sr.Counsel for Mr.M.Venkadeshan For Respondents : Mrs.Lita Srinivasan Government Advocate ORDER The petitioner, aggrieved by the order of transfer passed by the 1st respondent in R.C.No.140450/NGB-IV(2)/2010 dated 23.07.2010 and consequential impugned order passed by the 1st respondent dated 29.09.2010 has filed the present writ petition seeking to quash them as illegal. 2. The learned counsel appearing for the petitioner submits that the petitioner joined in Tamil Nadu Police Service as Constable Gr.II and thereafter, on 08.10.2002, he was promoted as Head Constable and after that he is working as Head Constable at Police Recruitment School, Coimbatore. He has completed 24 years of service and he has been adorned with 150 Medals such as Chief Minister Medal, Anna Medal etc. In the year 2003, his name was recommended for the Presidential Medal also. These facts, according to him, reveals that he was maintaining his dignity and discipline. While he is discharging his service as responsible police officer, he was shocked by the impugned order transferring the petitioner from Coimbatore to Tiruppur District. 3. The learned Senior Counsel appearing for the petitioner further submits that the petitioner, after awarded with almost 150 Medals as well as Chief Minister Medal, Anna Medal, was also recommended for Presidential Medal, is aggrieved by the impugned order of transfer which has been passed in pursuant to a conclusion reached by the respondent who came to the conclusion that he violated the Government Servant's Conduct Rules by administering "Athi Parasakthi Temple" in the nick name of 'SMT pons' and also for the reason that he has issued pamphlets in the name of "SMT Pons" to worship 'Naga Devathai'. It was also brought to the notice of this Court, that the impugned order dated 29.09.2010 of Transfer is not an order of Transfer simplicitor but an order of Transfer with stigma and to support his case that it is not an ordinary transfer and simply stated it as a co-transfer. Therefore, by adding his submissions, it is further contended that a person who is transferred from one place to another, though the respondent department is transferring for administrative reasons, but when the same person is transferred by way of administrative measure that he has violated the Government Servants' Conduct Rules, unless the proper enquiry is held, the impugned transfer order passed by the respondents cannot stand to an acceptable reason, because, it is a co-transfer. He has also taken the support of an order passed by this Court in the case https://hcservices.ecourts.gov.in/hcservices/ of S.Sevugan vs. The Chief Educational Officer, reported in 2006(2) CTC 468. In the said judgment, this Court has held that if an order of transfer is passed on an administrative ground, generally no Courts should interfere with such an order of transfer simplicitor but, if any transfer order is passed by way of punishment and based on any compliant against the conduct of any Government Servant as per the settled law, he is entitled to defend himself as to whether the complaints made against him is proper or not, by way of an enquiry. On this basis, this Court has taken a view that the transfer order passed by way of punishment without giving any opportunity to the petitioner is not a transfer simplicitor, but it is a transfer with stigma. 4. The learned Senior Counsel also referred to one more order passed by the Division Bench of this Court in W.P.(MD)No.9401 of 2006, dated 29.11.2006 and also another order passed by the Division Bench of this Court in W.A.(MD).Nos.6 & 7 of 2007 dated 09.01.2007. The issue decided by the learned Single Judge in W.P.(MD).No.9401 of 2006, dated 29.11.2006, is that the petitioner therein was shifted on the ground that there was a loss of huge amount caused to the society's funds. Therefore, the petitioner in W.P.No.9401 of 2006 was transferred on administrative reasons to safeguard the interest of the society. Considering the correctness of the transfer order, the learned Single Judge came to a conclusion that it is not a transfer simplicitor but it is a transfer with stigma, therefore by holding that the transfer order by way of punishment cannot be resorted to except by conducting enquiry, set aside the transfer order. Accordingly, when the transfer order was set aside, a writ appeal was filed by the Department. The learned Division Bench, by its order dated 09.01.2007, upheld the order of the learned single judge and thus it is settled that transfer order by way of punishment cannot be resorted to except by conducting enquiry. 5. Per contra, the learned Government Advocate appearing for the respondents, contended that it is only an order of transfer on the basis of administrative convenience, therefore, this Court need not interfere with the said order of transfer. By relying upon the judgment of the Apex Court in the case of Union of India vs. Janardhan Debanath reported in 2004 (4) SCC 245, she further contended that no public or Government servant has any legal right to be posted at any particular place since transfer of a person from one place to another is not only a condition of service but incident of service, hence, she urged this Court, not to interfere with the transfer order. 6. Secondly, by relying upon Fundamental Rules(Part II), it was stated that the respondents are also entitled to pass any transfer order if they come to know that the person is suffering from financial crisis in the office in which he is working at the time of https://hcservices.ecourts.gov.in/hcservices/ passing the transfer order. On this basis, the learned Government Advocate appearing for the respondents submitted that the transfer order passed by the respondent does not require interference. 7. Heard both sides. 8. The learned Senior Counsel appearing for the petitioner submits that the petitioner joined in Tamil Nadu Police Service as Constable Gr.II and thereafter on 08.10.2002, he was promoted as Head Constable and after that he is working as Head Constable at Police Recruitment School, Coimbatore. Now, he has completed 24 years of service and he has been adorned with 150 Medals such as Chief Minister Medal, Anna Medal etc., In the year 2003, his name was recommended for the Presidential Medal also. Further case of the petitioner is that when his service records stand testimony to unblemished service, the impugned order transferring the petitioner from Coimbatore to Tiruppur, as a measure of punishment without notice needs to be quashed as it is an order of transfer simplicitor but it is an order of transfer with stigma. Since the petitioner specifically brought to the notice of this Court an order passed by the respondent/Director General of Police in his proceedings passed in R.C.No.140450/NGB-IV(2)/2010 dated 29.09.2010, which shows that the writ petitioner R.Ponnusamy was found to have violated the Government Servants' Conduct Rules by administering "Athi Parasakthi Temple" in the nick name of 'SMT pons' and he was also found to have issued pamphlets in the name of 'SMT Pons' to worship 'Naga Devathai'. In view of the same, the transfer order was passed in the reference 3rd cited therein namely on 23.07.2010. The impugned order dated 29.09.2010 is issued by the Director General of Police, that makes very clear that it is not an order of Transfer simplicitor, but it is passed with punitive measure, because when a person is transferred by way of punishment based on a complaint, then the service law demands a proper enquiry to be held by giving reasonable opportunity to the petitioner. In this case, though the counter affidavit filed by the respondent shows that for the administrative reasons, the petitioner has been transferred from Coimbatore to Tiruppur, on the ground that a complaint has been made against the petitioner and on enquiry, he was found to have violated the Government Servants' Conduct Rules and administering "Athi Parasakthi Temple" in the name of 'SMT pons' and also for the reason that he has issued pamphlets in the name of 'SMT pons' to worship 'Naga Devathai'. The learned Senior Counsel appearing for the petitioner relied on the decision in the case of S.Sevugan vs. The Chief Educational Officer, reported in 2006 2 CTC 468, wherein this Court specifically held as follows:- "7. It is seen from the impugned order of transfer that it is passed on administrative ground, but it appears that the order was passed by way of punishment https://hcservices.ecourts.gov.in/hcservices/ and based on the compliant against the conduct of the petitioner. If that be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaints against him by the Public or by the Headmaster is proper or not by way of an enquiry. 8. In these, circumstances, this Court is of the view that the transfer order passed by way of punishment is without any opportunity to the petitioner and on the face of it, the order of transfer is illegal and the same is liable to be set aside. Accordingly, the impugned order is set aside." 9. The petitioner is a trustee of one Aathi Sakthi Vilayattu Mariammal Temple in his village and residing in a portion of the temple. The petitioner while on medical leave from 29.05.2010 to 17.6.2010 had organised a festival and also issued invitation cards with his photograph and collected money and also attempted to invite political personalities to the temple administered by him. That apart, he is said to have encroached a piece of poromboke land in survey No. 512/A which is identified by the local panchayat to set up a playground for the middle school and constructed a house with asbestos roof in a portion of the land and said to have obtained power supply in his name in S.C.No. 1037 and appointed one Mr.Gopalakrishnan as a priest for the said temple. Further, he is also making attempts to construct a temple in the encroached poramboku land which is being objected by a section of the village and there is a likelihood of clashes between his supporters and another group and since these activities of the petitioner is deleterious to the training of recruits in Police Recruit School, this has violated the Rule 14A (1) a & b of the Tamil Nadu Government Servants conduct Rules 1973. Therefore, the Inspector General of Police (Training) in his letter dated 28.06.2010 has requested to transfer him out of Police Recruit School, Coimbatore to avoid likelihood of clash between the two groups and in view of that he has been transferred by the impugned transferred order. 10. It is well settled by the Courts that no transfer order transferring Government servant under administrative reason shall be interfered with by any Court of law. Further, it has been equally settled by the Court that if any transfer order is passed by the department by way of punishment, the same cannot be resorted to except by conducting an enquiry. Though the impugned order of transfer shows that the order is passed on administrative ground, the counter read with an order passed by the Director General of Police in RC No.140450/NGB.IV(2)/ 2010, dated 29.09.2010 shows that the writ petitioner Mr.R.Ponnusamy, HC 1849, PRS, Coimbatore has violated the Government Servant's Conduct Rules by administering "Athiparasakthi Temple" in the nick name of "SMT Pons" and also issued pamphlets in https://hcservices.ecourts.gov.in/hcservices/ the name of "SMT Pons" to worship "Naga Thevathai". The said order further says that he was transferred and posted to Tiruppur district. In view of the reading of Counter also supports the case of the petitioner that the order of transfer was not passed on administrative ground, but only by way of punishment based on the complaint against the petitioner. That be so, the petitioner is certainly entitled for proper opportunity to defend himself as to whether the complaint against him by the Public or anybody is proper or not by way of an enquiry. 11. In a similar case, this Court also in the case of S.Sevugan vs. The Chief Educational Officer, Virudhunagar District and another, reported in 2006 (2) CTC 468, by quashing the transfer order has held that the transfer order by way of punishment cannot be resorted to except by conducting an enquiry. Similarly, in yet another case, namely, A.Raghupathi vs. The Joint Registrar of Co-operative Societies, Ramanathapuram and another in W.P.(MD)No.9401 of 2006 dated 29.11.2006, the learned Single Judge of this Court by relying upon the decision reported in 2006 2 CTC 468 has further held that the transfer order by way of punishment cannot be resorted to except by conducting an enquiry. Further, the order passed by the learned Single Judge in the case of A.Raghupathi vs. The Joint Registrar of Co-operative Societies, Ramanathapuram and another, was taken up by way of W.A.(MD) Nos.6 and 7 of 2007 and the learned Division Bench of this Court, by order dated 09.01.2007, while dismissing the writ appeal, upheld the order passed by the learned Single Judge in W.P. (MD)No.9401 of 2006 dated 29.11.2006 and thereby, it has been settled that no transfer order can be passed by way of punishment except by conducting proper enquiry. 12. In the present case, the petitioner was transferred out of Police Recruitment School, Coimbatore to Tiruppur District on administrative grounds by way of punishment. Therefore, I am of the considered view that the transfer order passed by way of punishment without giving any opportunity to the petitioner, is not an order of Transfer simplicitor but an order of Transfer with stigma, therefore, on the face of it, the transfer order is illegal and the same is liable to be set aside. Accordingly, the impunged order is set aside. However, it is made clear that setting aside the impugned order does not mean that the respondents are not entitled to proceed against the petitioner in accordance with law, if there is a complaint against the petitioner in respect of moral behaviour. https://hcservices.ecourts.gov.in/hcservices/ 13. Accordingly, the writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssn To 1.The Director General of Police O/o The Director General of Police Chennai. 2.The Inspector General of Police, (Trainee) Chennai-600 083. 3.The Commissioner of Police, Coimbatore City, Coimbatore. 4. The Superintendent of Police, Coimbatore District,Coimbatore. 5.The Principal, Police Recruitment School, Coimbatore, Coimbatore District. 6.The Chief Instructor (Law), Police Recruitment School, Coimbatore,Coimbatore District. 1 cc To Government Pleader SR.311120 1 cc To Mr.Venkadeshan, Advocate, SR.30655 W.P.No.23205 of 2010 and M.P.Nos.1 and 2 of 2010 trm(co) pmk.30.5.2011 https://hcservices.ecourts.gov.in/hcservices/