@JUDGMENTTAG-ORDER
Mr. Navin Sinha, C.J. - The present appeals assail a common order dated 19.7.2016 allowing three separate writ petitions setting aside
individual orders for transfer each dated 17.5.2016 by which the Respondents have been transferred from Churu in Rajasthan to Bemetara in
Chattisgarh.
2. Learned Counsel for the Appellants submitted that transfer and posting are incidence of service. The fact that the order of transfer may have
followed immediately after seizure of the computers of the Respondents will not make it punitive in nature. The transfers were ordered in
administrative exigency according to the needs of the Appellants. The office atmosphere was vitiated on account of complaints against the
Respondents and some others by the students pursuing distance education details of which were spelt out in the counter affidavit. If transfer was
ordered in interest of discipline it cannot be termed punitive. That there were complaints against them was not denied by the Respondents. The fact
that at Bemetra the infrastructure may be incomplete and was under construction cannot lead to the conclusion for absence of administrative
exigency or a punitive transfer or because by inadvertence another building of the Appellants themselves at Chhattisgarh may have been shown in
the annexure. The fact that Bemetara was at a considerable distance from Churu was an irrelevant consideration.
3. Learned counsel for the Respondents urged that the transfer suffered from malice in law. The Respondents when assigned additional duties of a
Coordinator at the Model Counselling Centre at Churu itself were given additional allowance of Rs. 5000/- but when they have been transferred to
another State, only 10% additional allowance has been granted. The Appellants had attempted to mislead the Court by presenting photographs of
another location. In support of the submission that the transfer was punitive in nature reliance was placed on (2009) 2 SCC 592 Somesh Tiwari
v. Union of India and ors. It was lastly submitted that the seizure of the computers was not a ground mentioned in the order of transfer and the
counter affidavit also asserts that it was not the reason for transfer. All these factors taken cumulatively are clearly reflective of the transfer inflicted
by malice in law and being punitive in nature.
4. We have considered the submissions on behalf of the parties.
5. Transfer is an incidence of service. Normally Courts refrain from interference unless there is violation of statutory rules or regulations, it is shown
to be afflicted by malafides or is vindictive/punitive in nature. Barring these exceptions it shall be wholly inappropriate exercise of jurisdiction to sit
as an appellate authority over an order of transfer to decide the manner in which the employer shall conduct its affairs and the manner in which it
will utilise its personnel at one location or the other sans its own requirements. The primary duty of an employee is to first comply the order of
transfer and then represent. Failure to join may be construed as misconduct also.
6. If it is the employer''s privilege and prerogative to transfer an employee from one place to another, the fact that it may be at a considerable
distance is a wholly irrelevant consideration. If the employee is of the opinion that the allowance is not sufficient, he is at liberty to pursue his
remedies in accordance with law including under the rules and regulations governing his employment.
7. It is not in dispute that the Appellant, a deemed private University has its premises at different places in the country including at different
locations in the State of Chattisgarh itself. Merely because the construction at Bemetara may be incomplete and is in process, cannot be a ground
to urge that the Respondents cannot be transferred there or that no administrative exigency exists. The setting up of an institution is but part of
establishment and running of an institution where employees are required for various functions. The order of transfer itself displays there was
already a Director, one Shri Surendra Pal posted at the Bemetra Coordination Office before whom the Respondents, who are Office
Assistant/Senior Computer Operators are to report.
8. That leaves the only question with regard to the transfer being punitive in nature. An order of transfer can always be effected on ground of
administrative exigencies. The order of transfer need not spell out the precise administrative exigency. Transfer orders are not required to be
speaking in nature as they are not orders to be passed after hearing the employee complying with the principles of natural justice. If an order of
transfer is challenged it is always open for the employer to explain the administrative exigency in the counter affidavit. The principle that an order
cannot be explained or the grounds supplemented by a counter affidavit will have no application. The order of transfer dated 17.5.2016 makes it
explicit that it was in administrative exigencies as the personnel were well acquainted with the work and their services were required elsewhere and
for better coordination between its branches.
9. The counter affidavit filed by the Appellants stated that certain complaints had been received from the students pursuing distance education that
their grievances were not being handled properly nor expeditious steps were being taken for redressal more particularly those in the grievance cell,
the examination cell and degree department. A proper note sheet was drawn up by the Registrar indicating these facts and after receiving the
approval of the Vice-Chancellor as a routine administrative procedure, the computer systems in the grievance cell and other sections dealing with
various complaints of students were taken into custody for examining and curbing misuse. It is not the computers of the Respondents alone but that
of certain others also which were seized. The note sheet appended to the counter affidavit states that the students of distance education from far
places appeared before the Registrar and narrated their grievance with regard to the degree, marks card, migration, registration and pointed out
that despite these being placed before the grievance cell no response was received and the personnel would defer action on it while watching
licentious and irrelevant materials on the computer screen. Earlier also the computer of one Arun Kumar (who we are informed since resigned) was
seized and in which objectionable materials were found. It was therefore necessary to seize the computer in like manner and have them examined.
There was no denial of these facts by the Respondents.
10. The question for our consideration is whether the reason would tantamount to a punitive transfer because no departmental proceedings have
been held and no finding of guilt has been recorded. The computers still remained to be opened for which a Committee of five persons had been
constituted also.
11. In Somesh Tiwari (supra) an anonymous complaint was lodged against the appellant who was a Deputy Commissioner of Central Excise, that
he had a caste bias pursuant to which transfer was ordered. An enquiry was conducted by Assistant Commissioner, Directorate of Vigilance into
the anonymous complaint against the appellant and was not found to be true but still recommendations were made that he should be transferred.
Observing that though transfer is an administrative matter and should not be interfered with unless malafides was proved, it was held that in view of
the report of the enquiry conducted by the Assistant Commissioner, Directorate of Vigilance where the allegations were not found proved and the
transfer was based on an anonymous complaint, it was wholly illegal and that transfer was ordered as a measure of punishment.
12. The case is completely distinguishable on its own facts as in the present case the computers have been seized for the purpose of an enquiry
pursuant to complaints received with regard to it being put to extraneous use by the Respondents instead of utilising the same to perform duties.
Earlier when on similar complaints the computer of another was seized objectionable materials were in fact found in it. The seizure was preceded
by a note of the Registrar spelling out the reasons, approved by the Vice-Chancellor and a Committee has been constituted to examine the same.
We do not think that it makes the transfer punitive. Merely because the University may not have been satisfied with the manner for discharge of
duties by the Respondents and may have taken administrative steps to look into that aspect further including by transfer of the Respondents and no
departmental proceedings have been held arriving at a finding of guilt will not make it punitive in nature as the transfer was only to ensure a better
atmosphere in the office where grievance of students of distance education coming from far places was attended expeditiously. No slur or
aspersions have been cast on the Respondents. The seizure of the computers is germane and relevant only for the purpose of transfer and cannot
be looked into by the Appellants for any other disciplinary or service purposes against the Respondents except after compliance with procedure
established by law with due opportunity of defence.
13. In Union of India and Ors. v. Janardhan Debanath and anr. (2004) 4 SCC 245 the respondents challenged their order of transfer on the
ground inter-alia that the order was passed as a measure of penalty. The Union of India took the stand that it was done in public interest on ground
of exigencies of administration. The respondents had misbehaved with a superior and the conduct was unbecoming of an employee and therefore
with a view to enforce discipline and to avoid recurrence of unfortunate incident, they were transferred. Allowing the appeal, it was observed as
follows:-
14.The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any
misbehaviour 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 misbehaviour 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 the 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 this Court to direct one way or the other. The judgment of the High Court is
clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are
allowed with no order as to costs.
14. We are therefore unable to hold that the transfer was punitive in nature. In any event it has been ordered in administrative exigency for six
months only.
15. The appeals are allowed and the order under appeal is set aside.