w w w . L a w y e r S e r v i c e s . i n



V. Ezhilarasi v/s The Managing Director, Pondicherry Agro Products, Food and Civil Supplies Corporation Limited, Puducherry. & Another


Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- PUDUCHERRY AGRO PRODUCTS FOOD AND CIVIL SUPPLIES CORPORATION LIMITED [Active] CIN = U51909PY1990SGC000700

Company & Directors' Information:- G H AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15143PB1996PTC018159

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- S A AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01403WB2013PTC195653

Company & Directors' Information:- B. D. AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01400WB2009PTC136319

Company & Directors' Information:- D A P AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01403WB2011PTC157956

Company & Directors' Information:- B. K. AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U70101WB1990PTC049682

Company & Directors' Information:- S V M A AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15142TZ2003PTC010834

Company & Directors' Information:- K P M AGRO FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400KL2011PTC029050

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- K E AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15314KL2002PTC015782

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- AGRO (INDIA) PRODUCTS PRIVATE LIMITED [Active] CIN = U01500DL2013PTC250521

Company & Directors' Information:- W B AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15400KA2014PTC073123

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- D M AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066893

Company & Directors' Information:- D N AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15314UR2005PTC032824

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- N K AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PB2010PTC034534

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- INDIA AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01300TZ1991PTC003161

Company & Directors' Information:- S B R AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01120TN2008PTC070170

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- B S AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U29246WB1995PTC073119

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- S C P AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15400WB2010PTC154344

Company & Directors' Information:- B B AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U01111WB1999PTC089962

Company & Directors' Information:- B. R. AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U74999MP2020PTC052151

Company & Directors' Information:- J. M AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01122UP2007PTC032828

Company & Directors' Information:- P M AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01100MP2010PTC023037

Company & Directors' Information:- M. C. AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74990WB2009PTC135219

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- C S T AGRO AND FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490TN2011PTC080763

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- P G AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U01403WB2009PTC139377

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- L. M. AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U15139DL2010PTC207504

Company & Directors' Information:- C K AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01403AP2016PTC098332

Company & Directors' Information:- R J AGRO PRODUCTS INDIA PRIVATE LIMITED [Strike Off] CIN = U15311KA2005PTC036080

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- G M AGRO FOOD PRODUCTS LIMITED [Strike Off] CIN = U15130MH1993PTC071373

Company & Directors' Information:- AGRO PRODUCTS PVT LTD [Strike Off] CIN = U01131OR1983PTC001188

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- R L R AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U01403TG2012PTC082514

Company & Directors' Information:- J & M AGRO FOOD PRIVATE LIMITED [Active] CIN = U55100BR2013PTC021049

Company & Directors' Information:- R P V AGRO PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U01300TZ1997PTC008071

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- A V S AGRO-PRODUCTS COMPANY LIMITED [Dissolved] CIN = U74899DL1995PLC070790

Company & Directors' Information:- M R AGRO PRODUCTS PRIVATE LIMITED [Active] CIN = U01400MH2012PTC226708

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- B. U. AGRO-PRODUCTS PRIVATE LIMITED [Active] CIN = U01100GJ2018PTC101009

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    W.P. No. 19244 of 2014 & M.P.No.1 of 2014

    Decided On, 27 November 2014

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN

    For the Petitioner: N.G.R. Prasad for M/s. V. Ajayakumar, Advocates. For the Respondent: R1, T.P. Manoharan, Advocate.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records of the first respondent with No.1-28/PAPSCO/ESTT/2014-15 dated 8.7.2014 and to quash the same in respect of the petitioner and consequently to direct the respondents to relieve the petitioner on the basis of the transfer order with No.1-28/PAPSCO/ESTT./2012-13 dated 26.11.2012.)

1. In this Writ Petition, the petitioner challenges the transfer order of the first respondent dated 8.7.2014.

2. The facts which are necessary for the purpose of disposal of this Writ Petition is as follows:-

The petitioner has been working in Papsco as Junior Assistant. While she was working in the LPG Section, by order dated 26.11.2012, the first respondent transferred her from LPG Section to PDS Section. It is stated that though the order of transfer was dated 26.11.2012, she was not relieved and she was working in the LPG Section and one and half years later, by the impugned order dated 8.7.2014, the petitioner was transferred from LPG Section to Fair Price Shop Office and the same is challenged on the ground that it is arbitrary and discriminatory and therefore, it is liable to be set aside.

It is stated in the affidavit filed in support of the petition that the transfer order dated 8.7.2004 was passed at the instance of the second respondent who wants to take revenge against the petitioner as she had already given complaint against the second respondent. The transfer order is therefore challenged on the ground of mala fide.

3. The first respondent filed a detailed counter affidavit stating that on 26.11.2012, four employees including the petitioner were transferred to various sections situated in Puducherry Town and by that order, the petitioner was transferred from LPG Section to PDS Section. However, it was found that no experienced employee was available to work in her place in the LPG Section and hence, it was not possible to give effect to the transfer order in respect of the petitioner and she was asked to work in the LPG Section for the time being and later, one Vijaya acquired experience in the LPG Section. In July, 2014, for proper and and effective functioning of office, section and retail shops etc., the first respondent has transferred 13 of his employees including the petitioner from his various offices and therefore, it is a bona fide exercise of power having regard to the circumstances prevailing at that time, and there is no mala fide in transferring the petitioner from LPG section to FPS Office and the transfer is also not arbitrary as contended by the petitioner. It is also stated that FPS office to which the petitioner was transferred under the impugned order is situated within a distance of 2 kms from where the petitioner is working in LPG Section and in the FPS Office, the petitioner has to work under the Assistant General Manager and not under any junior employee and the transfer would not cause any prejudice or hardship to her. All the employees except the petitioner were relieved and the petitioner, instead of reporting for duty in FPS office, went on leave. Nevertheless, one V.Vijaya was posted in her place and she is doing the job of the petitioner in LPG section and therefore, there is no vacancy in LPG Section and the petitioner is also not entitled to challenge the order, which has been passed due to the administrative exigencies.

4. The petitioner filed a rejoinder to the counter affidavit filed by the first respondent wherein she admitted that she has been working in LPG section for more than six years and she requested for transfer from that section in the year 2012 and on the basis of her request, she was transferred to PDS section by order dated 26.11.2012. She further stated that Vijaya, who has replaced the petitioner in LPG Section as per the counter affidavit filed by the first respondent is only a helper and she was not placed in the post of the petitioner in LPG Section as contended by the first respondent.

5. The first respondent filed an Additional Counter Affidavit giving the list of persons employed in the PDS section to substantiate their stand that there is no vacancy in the PDS Section for the post of Junior Assistant and therefore, the petitioner cannot be accommodated. In the Additional Counter Affidavit, the first respondent stated that one D.Jayabalan, Junior Assistant, is working in the PDS Section and therefore, there is no vacancy to accommodate the petitioner as Junior Assistant in the PDS Section.

6. The petitioner filed a rejoinder affidavit to the Additional Counter Affidavit filed by the first respondent and stated that Jeyabalan who is stated to be working as Junior Assistant in the PDS Section was transferred along with the petitioner under order dated 26.11.2012 to Godown Public Distribution Section and therefore, he should not have been allowed to continue in PDS Section as now contended by the first respondent and that would also prove mala fide on the part of the respondents.

7. Mr.N.G.R.Prasad, learned counsel representing Mr.V.Ajayakumar, learned counsel appearing for the petitioner submitted that the impugned order of transfer transferring the petitioner from the LPG Section to the FPS Office is mala fide action and that is also accepted by the first respondent in their Additional Counter Affidavit. He submitted that the earlier order of transfer dated 26.11.2012 was made at the request of the petitioner as she was working in the LPG section for more than six years. By order dated 26.11.2012, the petitioner was transferred from LPG section to PDS section and D.Jayablan, Junior Assistant, was transferred from PDS Section to G-II Anandha Nagar. It is the case of the first respondent that the transfer order dated 26.11.2012 was not given effect only in respect of the petitioner and it is not the case of the first respondent that the entire transfer order dated 26.11.2012 was kept in abeyance. He brought to my notice the counter affidavit filed by the respondent, especially, Para 6(B) wherein it was stated that 'it was found that no experienced employee was available to work in her place in the LPG Section and hence, it may not be possible to post any employee in her place in the LPG Section and she was asked to work in LPG Section itself for the time being.' He therefore submitted that the petitioner only is retained in LPG Section for the purpose of giving some training to another employee to be posted in her place and they have not stated that Jayabalan, Junior Assistant, who was transferred from PDS Section to G-II Anandha Nagar, was also not asked to go to PDS Section. Therefore, by the order dated 26.11.2012, Jayabalan was transferred from PDS section to G-II Anandha Nagar but in the Additional Counter Affidavit, the first respondent has stated that Jayabalan was working in the PDS Section and that would prove mala fide on the part of the first respondent. He submitted that Jeyabalan was transferred from PDS section and only with a view to oblige Jeyablan, the impugned transfer order dated 8.7.2014 was passed transferring the petitioner from the LPG section to the FPS Office. He also submitted that no order has been passed by the first respondent cancelling the impugned order dated 26.11.2012 either in respect of the petitioner or in respect of Jayabalan. Therefore, when the petitioner has been transferred to PDS section, she can be transferred to any other section only from PDS Section and without cancelling the order dated 26.11.2012, the petitioner cannot be transferred from the LPG Section to the FPS Office. He also submitted that mala fide is also proved by the fact that the second respondent did not contest the proceedings and no counter affidavit was filed by the second respondent against whom the allegations were made. He also submitted that mala fide is also proved by the petitioner that the petitioner is directed to work under the Assistant General Manager in the FPS Office and the second respondent is the Assistant General Manager working in the FPS Office and already the petitioner had made allegations against the said second respondent. Therefore, the case of the petitioner that the transfer order dated 08.07.2014 is mala fide one has been proved by the counter affidavit filed by the respondent. He therefore submitted that the impugned transfer order is liable to be set aside. He also submitted that, immediately on receipt of the impugned transfer order, the Writ Petition was filed and therefore, it cannot be contended that without obeying the transfer order, the petitioner is not entitled to challenge the same.

8. Mr.T.P.Manoharan, learned counsel for the first respondent submitted that even though the order dated 26.11.2012 was passed at the instance of the petitioner, the first respondent has stated reasons for not relieving the petitioner from theLPG Section. After a suitable hand was trained in the LPG Section in the place of the petitioner and due to administrative reasons, the petitioner was transferred and therefore, the petitioner is not entitled to challenge the same. He submitted that there is no mala fide and the order of transfer dated 8.7.2014 has nothing to do with the earlier Writ Petition filed by the petitioner and merely, because the second respondent has not filed any counter, it cannot be contended that mala fide alleged by the petitioner has been proved and in the absence of any mala fide attributed to the first respondent, the petitioner is not entitled to succeed on the ground ofmala fide. He also submitted that as the transfer order has been passed due to administrative exigencies and the same was not in violation of any term of employment and when the petitioner, who was transferred did not comply with the order of transfer, the transfer order cannot be challenged and relied upon the judgments reported in 2005 (2) CTC 284 in the matter of M.Ameetha Begam v. The Commissioner, Marungapuri Panchayat Union, Trichy District and others and 2009 (11) SCC 678 in the matter of Tushar D. Bhatt V. State of Gujarat and another and 2006 (9) SCC 583 in the matter of S.C.Saxena Versus Union of India and others, in support of his contention. He also submitted that though Jayabalan is working in the PDS section, on that ground, it cannot be stated that the first respondent has acted mala fide at the instance of the second respondent.

9. The point for consideration in this Writ is whether the impugned order of transfer dated 8.7.2014 is liable to be set aside on the ground of mala fide, arbitrary and discriminatory?

10. It is settled law that transfer order can be challenged on the ground of mala fide or passed in violation of statutory rules or punitive nature. Therefore, we will have to see whether the impugned order is mala fide one or punitive nature or passed in violation of statutory rules.

11. Before going into the facts of the case, let me analyse the law on this aspect as laid down by the Hon'ble Supreme Court in various judgments.

(i) In the judgment reported in(2009) 2 Supreme Court Cases 592supra, the Hon'ble Supreme Court held as follows:-

'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.'

In the said judgment, the Hon'ble Supreme Court dealt with different kinds of mala fide, namely, malice in fact and malice in law and when the order in question would attract the principle of malice in law and was passed on any factor not germane to the passing of the order and based on irrelevant ground, the same is liable to be set aside.

(ii) In the judgment reported in(1980) 2 SCC 471 in the matter of State of Punjab v. Gurdial Singh, it has been held as follows:-

'The question is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power – sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions – is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not logical. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: 'I repeat... that all power is a trust – that the Court is accountable for its exercise – that from the people, and for the people, all springs, and all must exist'. Fraud on power voids the order it it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act.'

(iii) In the judgment reported in AIR 1993 SC 763 : (1993) 1 SCC 54 in the matter of M.Sankaranarayanan V. State of Karnataka, it is held as follows:-

'It may not always be possible to demonstrate malice in fact with full and deliberate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.'

(iv) In the judgment rendered in State of M.P. v. S.S.Kourav reported in (1995) 3 SCC 270, it is held as follows:-

'The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case, it is seen that on the administrative grounds the transfer orders came to be issued. Therefore, one cannot go into the expediency of posting an officer at a particular place.'

(v) In the judgment reported in 2004 (4) SCC 245 in the case of Union of India and others versus Janardhan Debanath and another, it is held as follows:-

'The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether the use of the word 'undesirable' casts a stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.

The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the other.'

(vi) In the judgment reported in (1979) 4 SCC 673 in the case of K.B.Shukla v. Union of India, it is held as follows:-

'The responsibility for good administration is that of the government. The maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, the government alone is best suited to judge as to the existence of exigencies of such a Service, requiring appointments by transfer. The term 'exigency' being understood in its widest and pragmatic sense.'

(vii) In the judgment reported in (2004) 11 SCC 402 in the matter of State of U.P. v. Gobardhan Lal, it is held as follows:-

'Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with.'

12. As stated supra, the petitioner was transferred from the LPG Section to the PDS Section on 26.11.2012 at the request of the petitioner as she was working in the LPG Section from 2006. It is also seen from the transfer order dated 26.11.2012 that along with the petitioner one D.Jayablan, Junior Assistant, who was working in PDS Section was transferred to G-II (Anandha Nagar). In other words, the petitioner was transferred to the post where D.Jayabalan was working. It is stated by the first respondent that though the transfer order was passed on 26.11.2012, the transfer order in respect of the petitioner could not be given effect as there was no sufficient experienced hand to be appointed in the place of the petitioner and therefore, the petitioner was asked to remain in that post and one Vijaya was given training and after she gained experience, the petitioner was shifted from the LPG Section to FPS Office.

13. In the counter affidavit filed by the first respondent, it is specifically stated that one Vijaya has acquired experience to work in the LPG Section and posted in the place of the petitioner in the LPG Section and also joined in duty on 9.7.2014. Therefore, the necessity to transfer the petitioner arose in the year 2014 after the said Vijaya gaining experience to work in the LPG Section but a different reason was stated by the first respondent in Paragraph 7 (D) of the Counter Affidavit. It is stated that 'in July, 2014, due to its administrative conveniences and for proper and efficient effective functioning of all its offices, sections, retail shops etc., the 1st Respondent Corporation has to transfer 13 of its employees, including the Petitioner from its various offices, sections, retail shops etc., to its other offices, sections retail shops etc., in the Puducherry and Karaikal Regions' and therefore, it was a bona fide transfer due to the circumstances prevailing at that point of time. If the transfer order dated 8.7.2014 was construed as an urgent one due to administrative reasons, then the contention of the first respondent that after Vijaya gained experience, there was no need to retain the petitioner in that place and therefore, she was transferred, cannot be accepted and it goes against the allegations made in Paragraph 7 (D) of the Counter Affidavit. Therefore, the reasons stated by the first respondent that due to administrative exigencies, the petitioner was transferred along with 13 employees cannot be accepted. Further, it is stated in the Additional Counter Affidavit filed by the first respondent that there is no vacancy in the PDS Section and one D.Jayabalan is Working in the PDS Section as Junior Assistant and therefore, the petitioner cannot be accommodated in the PDS Section.

14. As rightly pointed out by the learned counsel for the petitioner, Mr.N.G.R.Prasad, as per the order dated 26.11.2012, the said D.Jayabalan was transferred from the PDS Section to G-II (Anandha Nagar) and it is not the case of the first respondent that the transfer of the said Jayabalan was also kept in abeyance along with the petitioner. Therefore, by reason of the order dated 26.11.2012, D.Jayabalan must have taken charge in G-II (Anandha Nagar), he cannot work in the PDS Section and no proof has been filed by the first respondent to the effect that D.Jayabalan was re-transferred to PDS Section thereafter. Therefore, the contention of the first respondent that D.Jayabalan is working in the PDS Section and therefore, there is no vacancy available in the PDS Section cannot be accepted. It is also pertinent to note that in the impugned order also, no person has been transferred to the PDS Section as Junior Assistant or LPG Section in the place of the petitioner. Therefore, the contention of the petitioner that at the instance of the second respondent, against whom, the petitioner had made allegations, the petitioner was not transferred to the PDS Section on the basis of the transfer order dated 26.11.2012 and the transfer to the FPS Office appears to be acceptable. Further, the contention of the first respondent that one Vijaya was given training in the LPG Section and she gained experience and therefore, the petitioner was transferred from the LPG

Section cannot also be accepted and it is also contrary to the Additional Counter Affidavit filed by the first respondent, wherein it is stated that Jayabalan is working in the PDS Section as Junior Assistant. Further, the said Vijaya is stated to be a helper as per the petitioner. Therefore, it cannot be stated that the petitioner was replaced by Vijaya. Therefore, it is quite clear from the Counter Affidavit and Additional Counter Affidavit filed by the first respondent that the petitioner was deliberately not allowed to join the PDS Section as per the order dated 26.11.2012 and with a view to retain D.Jayabalan, who is now working in the PDS Section though he was transferred to G-II (Anandha Nagar), the petitioner was transferred from the LPG Section to FPS Office and the order is therefore, vitiated by mala fide.

15. In the judgment reported in (2009) 2 Supreme Court Cases 592supra, the Supreme Court held that 'the order in question would attract the principle of malice in law as it was n

Please Login To View The Full Judgment!

ot based on any factor germane for passing an order of transfer.' As stated supra, the ground on which the impugned order of transfer was passed was proved to be false and no acceptable explanation was given by the first respondent for not effecting the transfer order dated 26.11.2012 and for posting the petitioner to FPS Office as per the impugned order. 16. The judgment relied upon by the learned counsel for the first respondent cannot be applied to the facts of the case. Though in the judgment reported in 2006 (9) SCC 583, it has been held that a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation. Having regard to the facts of that case, law was laid as stated above. In that case, on 6.7.1989, the petitioner was transferred and thereafter, the petitioner was working in the same place and applied for medical leave from 10.7.1989 onwards and continued on medical leave for more than a year and after charge sheet was filed for a long absence and on the basis of enquriy, he was found guilty and he was compulsorily retired from service on the ground of misconduct of unauthorised absence. In that circumstances, the Hon'ble Supreme Court held as stated above. In other words, the Hon'ble Supreme Court did not consider any transfer order in that case. 17. In the judgment reported in 2009 (11) SCC 678 supra, the petitioner was transferred twice in a career of 18 years and in that context, it was held that the transfer order cannot be stated to be mala fide. 18. In the judgment reported in 2005 (2) CTC 284 supra, it is held that the impugned transfer order cannot be challenged as the petitioner has neither pleaded nor has there been any effort to show that the impugned transfer order was in violation of any term of her employment. Therefore, those judgments relied upon by the learned counsel for the first respondent cannot be applied to the facts of the case. 19. On the contra, having regard to the judgments reported in (2009) 2 Supreme Court Cases 592 supra wherein malice was considered and (2004) 11 SCC 402 wherein it has been held that when the transfer order is shown to be an outcome of a mala fide exercise of power, the same can be challenged. 20. In this case, having regard to the reasons stated above, the transfer order dated 08.07.2014 is vitiated by mala fide and therefore, it is liable to be set aside and the same is set aside. To that extent, the Writ Petition is allowed. No costs. The connected Miscellaneous Petition is closed.
O R