CM’s approval to committee’s decision renders it impliedly valid: Uttarakhand High Court

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ON THE 28TH DAY OF JANUARY 2021 HON’BLE SHRI JUSTICE SHARAD KUMAR SHARMA WRIT PETITIONNo. 521 BETWEEN: Dr. Sandhya Raj aged about 32 years W o Shri Kamal Kishor presently posted as In charge Medical Officer at Employee State Dispensary Jaspur District Udham Singh Nagar By Mr. D.S. Patni Senior Advocate assisted by Mr. Dharmendra Barthwal Advocate) 1. State of Uttarakhand through Secretary Labour & Employment Dehradun 2. The District Magistrate Udham Singh Nagar 3. The Director Employees State Corporation Makkawala Dehradun. 4. The Chief Medical Officer Employees State Insurance Corporation Makkawala Dehradun. 5. Shri Narendra Singh Chauhan son of Shri Harpal Singh resident of Patti Chauhan Jaspur District Udham Singh Nagar Uttarakhand. By Mr. Puran Singh Bisht Additional Chief Standing Counsel for the State of Uttarakhand respondent nos. 1 2 and Ms. Sakshi Singh & Mr. C.K. Sharma Advocates for respondent no. 3) JUDGMENT The petitioner in the present writ petition has given a challenge to the impugned order of transfer dated 20.01.2021 as was passed by respondent no. 1 whereby her services of the petitioner which she was discharging as an In charge Medical Officer E.S.I. Dispensary Jaspur District Udham Singh Nagar have been sought to be transferred from the said place of posting to Kotdwar District Pauri Garhwal. The impugned order of transfer as had been passed by the Secretary Labour Department to the State of Uttarakhand had been passed by making a reference to the provisions contained under Section 27 as well as Section 18(4) of the Transfer Act. Both the provisions are extracted “27. Removal of difficulties in the application of the Act. After the promulgation of this Act this Act shall have over riding effect on Acts Annual Transfer Policies of other departments: Provided that if any change in any provision of this Act is required by any department due to any specific circumstances of the department or any deviation in necessary or relaxation is indispensable the proposal of such changes deviations relaxations shall be submitted with reasons before the committee constituted under the Chairmanship of Chief Secretary and consisting the following members Secretary Forest and Infrastructure Development Commissioner Secretary Agricultural Production Commissioner and relaxations shall be allowed after the approval of the Chief Minister on recommendations made by this c) Principal Secretary Personnel as recommendations for the approval of Chief Minister regarding the difficulties arising in application of this Act or such unforeseen matters which are not included in this Act thereafter the State Government may make rules as required.” “18. Procedure of Posting on Appointment Promotion and other Transfer. In addition to annual general transfer the procedure of posting in appointment promotion and other transfers shall be in following conditions as follows 1) . 2) . 3) . 4) On enquiry on the grounds of serious complaints of misconduct misbehaviour with senior officers and lack of in work etc. after necessary enquiry and confirmation transfer of such employee may be made on administrative grounds: Provided that the transfer on administrative grounds shall not be made casually or on the basis of complaints of routine nature and in the orders of such transfer it shall be necessary to mention Administrative Grounds.” When yesterday the matter was taken up the learned Senior Counsel for the petitioner has argued the writ petition under the pretext that the impugned order of transfer where it makes a reference to Section 27 it does not make a reference to the compliance of sub section of Section 27 which contemplates a ratification approval of the decision which had been taken by the Committee which is provided under sub sectionof Section 27 of the Act. To which the learned Additional Chief Standing Counsel was granted time to complete his instructions and make his statement about the compliance of sub section 2 of Section 27 of the Act. If the provisions contained under Section 27(2) of the Act itself is taken into consideration it provides that where the Committee thus constituted under sub section of Section 27 takes a decision it has had to be compulsorily approved by the Chief Minister under sub sectionof Section 27. The argument of the petitioner is that the reference to Section 27 and the decision taken by the Committee thus provided under sub section of Section 27 itself was not validly constituted and even the decision making process itself is bad in the eyes of law. There are two reasons for not accepting this argument of the learned Senior Counsel for the petitioner. Because at the first instance the challenge to the subsequent recommendation made by a next superior authority i.e. none other than the Chief Minister of the State would have its automatic implication that the decision of the Committee thus constituted was justified and valid because it was thereafter only the ratification by way of an approval has been made by the Chief Minister which is not the subject matter of the challenge in the present writ petition. Thus argument extended by the learned Senior Counsel for the petitioner pertaining to the impugned order not meeting out the spirit and the provisions of Section 27 of the Act is not accepted by this Court. Reverting back to the second limb of his argument of invocation of sub section 4 of Section 18 of the Act he submits that for the purposes of attracting sub section 4 of Section 18 of the Act it refers to an enquiry on the ground of a serious complaint of misconduct. He submits that the enquiry which was said to have been conducted does not reflect a commission of a serious misconduct on the part of the petitioner which could call for transfer and hence the invocation of sub section 4 of Section 18 may not be justified in the circumstances of the present case because the leasing out of the building which was under the title and ownership of the husband of the petitioner for the purposes of E.S.I. Dispensary may not be faulted because it will not amount to be a misconduct. The Court is of the view that the term ‘enquiry’ used under sub section 4 of Section 18 of the Act as per the opinion of this Court will not be treated as to be a substitute to an enquiry contemplated under the Disciplinary and Appeal Rules of 2003 as it has been provided under Section 24 of the Act. The logic behind it is that if a detailed enquiry after recording of its evidence and satisfaction is required to be conducted under sub sectionof Section 18 of the Act then there was no need for the Legislature to independently attract the Disciplinary and Appeal Rules by introducing its applicability by Section 24 of the Transfer Act as referred therein. far as the allegations which are reflected from the transfer order I am of the view that since the petitioner herself was enjoying the office of In charge Medical Officer of E.S.I. Dispensary Jaspur District Udham Singh Nagar her instrumentality in extending the property belonging to her husband for the purposes of being leased out for establishment of the E.S.I. Dispensary will fall to be within the ambit of sub sectionof Section 18 of the Act and consequently the attraction of sub section of Section 18 to be read with Section 27 is not erroneous and legally faulted. The third limb of the argument of the learned Senior Counsel for the petitioner was from the prospective that the provisions of Section 18 and Section 27 contemplate a decision making process by a Committee and the Transfer Committee the reference of which could be borrowed is from Section 16 to be read with Section 17 of the Act itself and the distinction which is being sought to be argued by the learned Senior Counsel is that if Section 17 is harmoniously read with Section 18 of the Act the decision ought to have been taken by the Special Transfer Committee which is not contemplated under Section 27 of the Act. There is yet another justification for not accepting this argument of the learned Senior Counsel for the reason being that the constitution of a Committee under Section 16 for the purposes of considering the Annual General Transfer there happens to be a marked distinction to the Committee which is contemplated under sub section 1) of Section 27 and the Legislature has that is why the constitution of different distinct Committees under Section 17 and Section 27 of the Act to meet out altogether a different purpose of a specific set of allegations falling under Section 18 sub section 4 for which the Committee to exercise the power is provided under Section 27 and for the purposes of regular transfer its the Committee contemplated under Section 16 to be read with Section 17. Hence this distinction with regards to the defect pointed out by the learned Senior Counsel for the petitioner with regards to the constitution of the Transfer Committee is also not acceptable by this Court. For the aforesaid reasons and coupled with the fact that the information supplied by the learned Additional Chief Standing Counsel for the State today that the approval of the decision of the Committee taking a decision under sub sectionof Section 27 has been granted by the Chief Minister I do not find any apparent error in the order of transfer. 7 Consequently the writ petition lacks merit and the same is accordingly dismissed. SHARAD KUMAR SHARMA J.) Vacation Judge Arpan 

Summary: A committee’s decision which has been approved by the Chief Minister of the state shall implicitly be valid. If a recommendation is made by the chief minister itself, the decision of the committee, taking a decision under subsection (1) of Section 27 of the Transfer Act shall be justified. This assertion was made by the Uttarakhand High Court presided by J. Sharad Kumar Sharma in the case of Dr. Sandhya Raj vs. State of Uttarakhand &amp; others [WRIT PETITION (S/B) No. 51 of 2021]. The petitioner, in the present writ petition, has given a challenge to the impugned order of transfer, passed by the respondent, whereby her services of the petitioner, which she was discharged, as an In-charge Medical Officer, E.S.I. Dispensary, Jaspur, District Udham Singh Nagar, have been sought to be transferred from the said place of posting to Kotdwar, District Pauri Garhwal. The impugned order of transfer had been passed by making a reference to the provisions contained under Section 27 by the Secretary of, Labour Department, to the State of Uttarakhand, as well as Section 18(4) of the Transfer Act. Further, the petitioner contended that the enquiry did not reflect any serious misconduct. The learned Senior Counsel for the petitioner argued the writ petition under the pretext that, the impugned order of transfer, where it makes a reference to Section 27, it does not make a reference to the compliance of Section 27(2), which contemplates a ratification/approval of the decision, which had been taken by the Committee, which is provided under Section 27(1) of the Act. The Additional Chief Standing Counsel was granted time to complete his instructions and make his statement about the compliance of Section 27(2) of the Act. The Uttarakhand High Court held, “A challenge to the subsequent recommendation was made by a next superior authority i.e. none other than the Chief Minister of the State, would have its automatic implication that the decision of the Committee, thus, constituted was justified and is not the subject matter of the challenge in the present writ petition.”  The Honourable Court further held, “For the aforesaid reasons and coupled with the fact that the information supplied by the learned Additional Chief Standing Counsel for the State today that the approval of the decision of the Committee, taking a decision under subsection (1) of Section 27, has been granted by the Chief Minister, I do not find any apparent error in the order of transfer.” Consequently, the writ petition lacks merit and the same was, accordingly, dismissed. Click here to read the judgement