P.Kaliappan v. The Director Of Town Panchayats
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31.07.2020
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR and W.M.P(MD).Nos.6685 and 6686 of 2020 P.Kaliappan ... Petitioner -Vs1.The Director of Town Panchayats, Office of the Director of Town Panchayats 7th and 8th Floors, Town Administrative Office, Chennai 600 028.
2.The District Collector, Theni District.
3.The Assistant Director, Town Panchayats, Theni Region, Theni District.
4.The Executive Officer, Vadugapatti Town Panchayat, Periyakulam, Theni District.
...Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India, to issue a Writ of Certiorari, to call for the records relating to the impugned transfer order of the first respondent in Na.Ka.No.721/2020/A3 dated 26.06.2020 quash the same. For Petitioner : Mr.G.Prabhu Rajadurai for M/s.K.Appadurai For Respondents : Mr.M.Rajarajan Government Advocate
ORDER
The prayer sought for herein is for a Writ of Certiorari, to call for the records relating to the impugned transfer order of the first respondent in Na.Ka.No.721/2020/A3, dated 26.06.2020 and quash the same.
2.The short facts, which are leading to filing of this writ petition are that, the petitioner has been working at the fourth respondent Town Panchyat as Record Clerk. He has been subjected to
transfer through the impugned order dated 26.06.2020, whereby he has been transferred from fourth respondent Town Panchayat to Uppidamangalam Town Panchayat at Karur District, which is, according to the petitioner, a far off place. Challenging the said transfer order, the present writ petition has been filed. 3.Mr.G.Prabhu Rajadurai, learned counsel appearing for the petitioner would point out that, the impugned transfer order is challenged on two reasons, one is that, it is passed out of clear malafide for variety of reasons, which cannot be disclosed now and second reason is that, the transfer is a punitive transfer and this factor has been admitted by the respondents in the counter affidavit itself. Therefore, for punitive reasons, transfer cannot be effected. Therefore, on these grounds, the impugned transfer order can be interfered with.
4.However, the learned Government Advocate appearing for the respondents would submit that, the petitioner has been transferred as number of complaints has been received against him and he is not treating the public properly and all his actions considered to be an act of unbecoming of the Government servant. Therefore, in order to avoid such act with the public, as the fourth respondent Town Panchayat every day is serving to the local public, it become necessitated, on administrative reason, to transfer him, that is why the transfer order has been made.
5.In this regard, the learned counsel appearing for the petitioner has relied upon para No.10 and para No.12(1) of the counter affidavit filed by the third respondent, which reads thus: '10.It is submitted that the petitioner was working as Record Clerk in fourth respondent Town Panchyat for more than a decade, at this juncture, the first respondent received complaints against his indifferent attitude towards the public, usage of his local clout and indigenous to intimidate the higher officials, passing unsavory remarks on the policy of Government, indulge in petty politics, demoralizing the morale of fellow employees and unbecoming a Government servant. Under such circumstances, the first respondent passed his order in Na.Ka.No.721/2020/A3, dated 26.06.2020, transferring the petitioner with reference to the guidelines of G.O.Ms.No.
249, Finance (Budget General-1) Department, dated 21.05.2020, to ensure the smooth functioning of Town Panchayat under the context of abnormal pandemic situation, wherein addressing of basic needs and safety of its domicile is paramount.
Town Panchayat in Karur District, without disturbing his lien in district level seniority for promotion to the post of junior Assistant/Bill Collector. Consequently, the second respondent in Na.Ka.No.1387/2020/TP-2, dated 03.07.2020 relieved the petitioner from fourth respondent Town Panchayat. Hence, the averment of petitioner that the order of transfer dated 26.06.2020 was passed to deny and deprive his promotion based on seniority or grant of any positive order in his writ petition is W.P(MD).No.4688 of 2020 is baseless and fallacious. In fact, the respondents are not aware of the contents of his affidavit or petition in the above writ petition till date and they have not yet received any notice from the Hon'ble High Court. The transfer of petitioner from the fourth respondent Town Panchayat was purely made on administrative grounds. The petitioner tries to twist the process of preparing tentative seniority list for promotion to gain sympathy and distort the actual issues involved in his transfer.
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(i) As regards the ground No.(i) it is submitted that the transfer of petitioner was made based on the complaints received against him and to ensure smooth functioning of Town Panchayats vested with host of responsibilities in the period of pandemic. The acts and irresponsible behaviors of petitioner ascertained through complaints were necessitated the first respondent being the Inspector of Town Panchayat to invoke the relevant provisions for transfer in extraordinary context. Hence, the petitioner cannot attribute any other motive behind the transfer and as such this ground is not at all maintainable.'
6.The learned counsel appearing for the petitioner, in reply, would submit that, one more reason attached with for challenging the impugned order is that, the petitioner after struggling long years, got promoted as Record Clerk, so he is in the said cadre of Record Clerk as number one in the district and for seniority purpose, the district is the unit, suppose, if the petitioner transferred from Theni District to Karur District, he will loose the seniority also, therefore, the transfer order definitely on both reasons, can be considered only as the punitive transfer.
7.However, the learned Government Advocate by relying upon the averments contained in para No.10 of the counter affidavit submits
that, the seniority of the petitioner at the fourth respondent Town Panchayat would be maintained and with the said seniority only he has been transferred.
8.However, on perusal of the impugned order, I am not able to find that any such seniority has been retained with the petitioner while making the impugned transfer order.
9.More over, it is admitted in the counter affidavit that, because of several complaints received against the petitioner, such a transfer order become inevitable on administrative reason, accordingly, he has been transferred.
10.This Court has repeatedly held that, if any employee against whom complaints are made and such employee is found to be in dereliction of duty or in violation of the Rule, Regulation or Law, then, it is for the authority concerned or employer concerned or disciplinary authority concerned to take necessary disciplinary action in the manner known to law. Therefore, the transfer cannot be an alternative for taking disciplinary action against erring Government employee. This has been repeatedly held by this Court in number of cases.
11.Here, in the case in hand, it is an admitted case of the respondents that, because of complaints, the petitioner has been transferred from one district to another district during the COVID 19 period.
12.In this context, this Court wants to emphasis that, if at all, the respondents find any indifference, any dereliction of duty and any violation of the service regulation or code of conduct on the part of the petitioner, it is open to the respondents, especially the fourth respondent to take necessary disciplinary action against the petitioner by issuing definite charges against the petitioner and in this regard, whatever action can be taken against the petitioner as available under the service regulation, which includes placing him under suspension, can also be taken by the respondents.
13.Instead of adopting the right method to deal with such kind of erring employees, the present method adopted by the respondents to place the petitioner by transfer from district to district by way of inter-district transfer at this COVID-19 period may not be justifiable. Therefore, for all these reasons, this Court is inclined to interfere with the transfer order. Accordingly, the transfer order deserves to be quashed and accordingly quashed. 14.It is made clear that, merely because of this order of quashment of the impugned transfer order, the right of the respondents to initiate disciplinary proceedings against the petitioner, if they desire to do so, is not taken away and
therefore, it is open to them to act upon accordingly, as indicated in the order above.
15.With these observations, this Writ petition is ordered accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar // True Copy // / /2020 Sub Assistant Registrar(CS) Rmk Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. To
1. The Director of Town Panchayats, Office of the Director of Town Panchayats 7th and 8th Floors, Town Administrative Office, Chennai 600 028.
2. The District Collector, Theni District.
3. The Assistant Director, Town Panchayats, Theni Region, Theni District.
4. The Executive Officer, Vadugapatti Town Panchayat, Periyakulam, Theni District.
31.07.2020 CS (25.08.2020) 5P 5C