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Judgment
B. Rajendran, J.—The petitioner challenges the order of transfer dated 10.6.2011 passed by the first respondent, by which the petitioner
was transferred from Tiruppur (North) Traffic Police Station to Nilgiris District on adminsitrative grounds i.e., from one range to another range,
which according to the petitioner is legally not sustainable. According to the petitioner, he was upgraded as Special Sub-Inspector of Police with
effect from 1.1.2011 and he was serving as Special Sub Inspector of Police in the Tiruppur (North) Police Station without giving any room for any
complaint. On completion of his three years term in Tirupur North Police Station, by a general order of transfer, he was transferred to
Kamanaicken Palayam Police Station, Pollachi Sub-Division on 17.5.2011 and he also joined duty on 1.6.2011. According to the petitioner, he
has not come to any adverse notice or remarks by the department, while so, the impugned order of transfer dated 10.6.2011 was issued to him
transferring him from one range to another range namely from Kamanaicken Palayam, Tiruppur Sub Division to The Nilgiris District on
administrative grounds. According to the petitioner, only on 17.5.2011, he was transferred to Kamanaicken Palayam and he joined the said place
on 1.6.2011, while so, the impugned order of transfer dated 10.6.2011 is punitive in nature and it is in violation of all canons of law. According to
the petitioner, he cannot be transferred to neighbouring district on administrative grounds, hence, the impugned order of transfer is nothing but a
punitive one and it is liable to be set aside.
The first respondent filed a counter affidavit contending inter alia that the impugned order of transfer dated 10.6.2011 passed by the first
respondent is a consequential order passed on the basis of the order dated 10.5.2011 of the second respondent, but the same was not challenged
by the petitioner. According to the first respondent, the transfer from one District to another District can be made only by the second respondent,
who is the competent authority and therefore, the order passed by the second respondent was only communicated by the first respondent on
10.6.2011, which is challenged in the present writ petition by the petitioner. According to the first respondent, the general public of Tiruppur have
submitted petition before the Deputy Inspector General of Police, the second respondent herein, on 29.4.2011 alleging that the petitioner is having
habitual tendency of exhorting money from the public by coercion with the connivance of the superior officer. Based on such complaint, a discreet
enquiry was conducted and some of the allegations made against the petitioner were found to be true, but there was no concrete evidence to prove
the same. Therefore, in the absence of any evidence, the respondents have not taken any action against the petitioner but only transferred him on
administrative grounds. Further, instead of mentioning the adverse remarks in the impugned order, as a gesture, the respondents thought it fit not to
mention the adverse remarks but only stated that he was transferred on administrative grounds. This is more so to maintain the discipline and to
restore the morale and image of the general public over the police force. Further, the petitioner was once awarded with punishment in reduction of
pay by one stage for one year with cumulative effect and therefore, the averment that the petitioner had unblemished record of service is incorrect.
According to the first respondent, the impugned order of transfer is not punitive in nature. The petitioner deserves a transfer on administrative
grounds to Nilgiris District apart from initiation of disciplinary action, however, since there is no documentary evidence available to initiate
disciplinary proceedings against him, he was merely transferred by indicating that the transfer order was passed on administrative grounds. The
order of transfer was passed without mentioning the original reason for such transfer namely the conduct of the petitioner in exhorting money from
the general public only in order to upkeep the morale of the police force. Further, there is no rule which contemplates that a person above 50 years
of age cannot be transferred to Nilgiris District. The petitioner had already served in Tiruppur Sub-divisions for more than 15 years. On completion
of the present term of three years, even though the petitioner sought for transfer to District Crime Records Bureau at Tirupur, which is again within
Tirupur with an intention to stay at Tirupur Town, he was originally transferred to Kamanaicken Palayam Police Station from where, by the
impugned order, on administrative grounds, he was transferred to The Nilgiris and therefore, interference of this Court is not warranted.
I heard the counsel for both sides. The only ground of attack made by the learned senior counsel for the petitioner is that the impugned order
does not give any specific reasons for transfer and it merely states that it was passed on administrative grounds. However, in the counter affidavit
of the first respondent, for the first time, certain allegations were made against the petitioner for transfer to the Nilgiris District as a measure of
punishment. If there are any allegations as against the petitioner, the respondents ought to have conducted disciplinary proceedings and the
impugned order transfer is unsustainable in law. Further, if the petitioner had come to any adverse notice, as claimed by the respondents, he should
have been issued with a notice, conducted enquiry by adherence to the principles of natural justice and in the absence of the same, the impugned
order of transfer can be construed as one passed as a measure of punishment and it is punitive in nature.
The learned senior counsel for the petitioner relied on the decision of this Court dated 29.11.2006 made in W.P. (MD) No. 9401 of 2006
wherein it was held that the impugned order does not disclose any allegation against the petitioner but in the counter, certain allegations of
misappropriation have been made against the petitioner, while so, the impugned order can only be construed as a punitive in nature. As against this
decision, writ appeal No. 6 of 2007 was filed before the Division Bench of this Court and the same was also dismissed on 9.1.2007 thereby the
Division Bench remanded the matter back to the respondents to take necessary disciplinary proceedings for the alleged misappropriation of funds
by setting aside the order of transfer as it was punitive in nature. Therefore, the learned senior counsel for the petitioner would contend that
inasmuch as the respondent did not mention anything about the complaints received against the petitioner in the impugned order but filed the
counter affidavit before this Court indicating that the transfer order was necessitated in view of the complaint received against the petitioner, the
impugned order is nothing but punitive in nature and issued as a measure of punishment and therefore he prayed for setting aside the impugned
order.
The learned senior counsel for the petitioner would further contend that if the impugned order of the first respondent is tested in the light of the
counter filed by the respondents, it can be construed as an order attached with stigma and it was passed as a punitive in nature. According to the
learned senior counsel for the petitioner, certain allegations, which are not referred to in the impugned order, are made only in the counter affidavit
and therefore it is clear that the impugned order is attached with a stigma and punitive in nature. When the impugned order is silent about the
allegations against the petitioner and everything has been developed in the counter, as per the decision of the Division Bench mentioned supra, the
impugned order is liable to be set aside.
No doubt, in the decision rendered by this Court mentioned supra, which was relied on by the learned senior counsel for the petitioner, this
Court concluded that the order impugned therein is punitive in nature and therefore, while setting aside the same, liberty was given to the
department to take appropriate disciplinary action against the petitioner. But in this case, it is clearly stated that on discreet enquiry made by the
respondents ,most of the allegations made against him were found to be true, however, inasmuch as there is no concrete evidence to substantiate
those allegations against the petitioner, instead of initiating a futile disciplinary proceedings against him, the second respondent thought it fit to
transfer him to the neighbouring District on administrative reasons. Even in the impugned order, according to the respondents, in order to upkeep
the morale of the police force, the complaint received against the petitioner regarding extortion of money were not mentioned and the transfer order
was passed only on administrative reasons. Even otherwise, the petitioner had completed 13 years of service in Tirupur Division and therefore
also, the respondents thought it fit to transfer him to a neighbouring District. In any event, the petitioner failed to challenge the order dated
10.5.2011 of the second respondent, which is the basis for issuing the impugned order dated 10.6.2011 of the first respondent and the impugned
order of the first respondent is only a consequential order.
In this connection, it is worthwhile to refer to the decision of the Honourable Supreme Court in Pavanendra Narayan Verma Vs. Sanjay Gandhi
P.G.I. of Medical Sciences and anr, In that case, the appellant was appointed as Joint Director (Materials Management). The original period of his
probation was extended twice and within a week of expiry of such extended period, his services were terminated in terms of the appointment
letter, as, even during the extended period his work and conduct had not been found to be satisfactory. Such an order was passed after a summary
inquiry. Assailing the order of termination, the appellant in that case raised a plea that the said order was stigmatic and punitive mainly on the
ground that certain baseless statements were made by the respondents only in the counter affidavit before the Court. In para-32 of the judgment,
the Honourable Supreme Court held as follows:
32 We are also not prepared to hold that the enquiry held prior to the order of termination turned this otherwise innocuous order into one of
punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy
itself fairly as to the truth of any allegation that may have been made about the employee. A charge-sheet merely details the allegations so that the
employee may deal with them effectively. The enquiry report in this case found nothing more against the appellant than an inability to meet the
requirements for the post. None of the three factors catalogued above for holding that the termination was in substance punitive exists here.
As far as the question of indicating the allegations in the counter affidavit without disclosing it in the impugned order, the Honourable Supreme
Court categorically held in para-33 to 35 as follows:
It was finally argued by the appellant that the intention of the respondents to punish him was clear from the following statement in the affidavit
filed on their behalf:
It is important to mention herein that even honesty and integrity of the petitioner was also under cloud as he took undue favours by misusing his
position, from the suppliers and maligned the reputation of the institute.
That an affidavit cannot be relied on to improve or supplement an order has been held by a Constitution Bench in Mohinder Singh Gill v. Chief
Election Commissioner, New Delhi, When a statutory functionary makes an order based on certain grounds, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
Equally, an order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order. This is
also what was held in State of U.P. v. Kaushal Kishore Shukla
The allegations made against the respondent contained in the counter-affidavit by way of a defence filed on behalf of the appellants also do not
change the nature and character of the order of termination.
Having held against the appellant on all counts, we dismiss the appeal, but without any order as to costs.
In the above decision, the Honourable Supreme Court, following the constitutional bench decision, categorically held that at the time of
considering the validity of an order, the Court should form opinion on the basis of the contents of the order impugned before it and not the
statements made in the form of counter affidavit to supplement the impugned order. However, it was further held that equally that applies when an
order which is otherwise valid cannot be invalidated by reason of any statement in any affidavit seeking to justify the order and it applies to the
reverse case also. Therefore, the only argument raised by the learned counsel for the petitioner that the statements made in the counter affidavit
before this Court would make the impugned order of transfer punitive in nature and attached with a stigma cannot be accepted.
In this background, when we analyse the impugned order dated 10.6.2011 of the first respondent, it is clear that it was passed on the basis of
the order dated 10.5.2011 of the first respondent. The impugned order reads as follows:
In accordance with the Range Office Memorandum in R.O. 148/11 in C. No. :A1/3090/2011 dated 10.5.2011 Tr. Muali, Special Sub-Inspector
of Police, Tiruppur North Police Station, Tiruppur District is transferred and posted to the Nilgiris District on administrative grounds.
(2) The Inspector of Police, Tiruppur North Police Station, will relieve the above said SSI of Police, and intimate the date of relief to this office
immediately.
Even as admitted by the petitioner, the transfer from one District to another can be made only by the Deputy Inspector General of Police, who
is the competent authority to pass such orders. In this case, the impugned order of transfer dated 10.6.2011 was passed on the basis of the order
dated 10.5.2011 passed by the second respondent, the competent authority namely the second respondent herein. Though such order was passed
by the second respondent on 10.5.2011, on 17.5.2011, the petitioner was given regular transfer order by the first respondent, transferring him to
Kamanaicken Palayam Police Station, Tiruppur Sub Division on completion of three years of service in the present unit. But, on the basis of the
order dated 10.5.2011 of the second respondent, the impugned order of transfer was passed by the first respondent on 10.6.2011, which is only a
consequential order. However, for the reasons best known, the petitioner has not challenged the order dated 10.5.2011 of the second respondent,
which is the basis for passing the impugned order dated 10.6.2011 of the second respondent. The contention of the petitioner that he was not
served with the order dated 10.5.2011 of the second respondent cannot be a reason to challenge the consequential order dated 10.6.2011 of the
first respondent. The petitioner ought to have applied for issuance of a certified copy of the same and challenged it before this Court instead of
challenging the consequential order dated 10.6.2011 of the first respondent. Therefore, on this ground also, the writ petition deserves to be
dismissed. In the light of the above, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.