R. Veeraraghavan vs The Director of Co. Operative Audit

M.M. Sundresh, J.—The petitioner herein was working as a Record Clerk in the office of the 3rd respondent. It is also not in dispute that the petitioner has been working in the office of the 3rd respondent from 1.3.2008 till 4.8.2014 for a period of more than six years as Record Clerk. By the order impugned, the petitioner has been transferred from the office of the Assistant Director of Cooperative Audit, Erode and posted to work in the office of the Assistant Director of Cooperative Audit, Coimbatore by proceedings dated 31.7.2014 of the 1st respondent. He has been relieved from the control of the 3rd respondent by the proceedings dated 4.8.2014. Challenging the order dated 31.7.2014, passed by the 1st respondent and the consequential order passed by the 3rd respondent dated 4.8.2014, the present writ petition has been filed.

The learned Senior Counsel appearing for the petitioner submitted that the order impugned has been passed during non-transferable period and it has been passed to accommodate the 4th respondent. The said order has also been passed by the 2nd respondent on the date of his retirement. In view of the above, the order impugned has been passed on malafide consideration. Therefore, the same is liable to be set aside.

Learned Government Advocate appearing for the respondents 1 to 3 submitted that the petitioner has been working in the office of the Assistant Director of Cooperative Audit, Erode for more than six years and he has been transferred only based upon complaint dated 1.6.2014 sent by the Assistant Director of Cooperative Audit, Erode. The order has been passed as on administrative grounds. There is no law which prohibits an order of transfer being passed if the concerned employee has left over service of one year or less. Similarly there is no law which prohibits the Officer, who is due for superannuation from passing an order of transfer. The 3rd respondent passed an order in pursuant to the Order passed by the 1st respondent on 31.7.2014. The said order dated 31.7.2014 is also passed based upon the complaint dated 1.6.2014, that too, on administrative ground. Therefore, there is no interference required.

It is not in dispute that the 1st respondent is competent authority to pass the order impugned. The said order has been passed on the compliant made by the Assistant Director of Cooperative Audit, Erode viz., the 3rd respondent dated 1.6.2014. A perusal of the said complaint dated 1.6.2014 would show that the petitioner was stated to have not obeyed office procedures by breaching of moral obligation by providing office records to the third parties and alleged misuse of official records. Based upon the said complaint given by the 3rd respondent against whom no mala fides have been alleged the order of transfer has been passed. This would show that no malafide can be alleged against the 2nd respondent as he has acted upon complaint given by the 3rd respondent. In the said complaint, it has been stated that the petitioner was in the habit of doing unlawful activities for quite some time. The subsequent charge memo issued cannot be a bar for the earlier transfer. The earlier transfer order has been passed on administrative ground as it was felt by the respondents that his continuance would not be in public interest and also for the proper running of the administration.

As rightly submitted by the learned Government Order, there is no bar in law for transferring a person who has got less than one year of service. The transfer order has been passed on administrative grounds. Similarly there is no bar for transferring an Officer by a competent officer even on the last date of his superannuation. The said Order has also been passed based upon complaint dated 1.6.2014. Therefore it cannot be stated that it has been passed in order to accommodate the 4th respondent. Further, it is a settled law that administrative instructions/ guidelines would not act as a bar for an authority, who exercises the power of transfer in a given situation. The other submission made by the learned Senior Counsel for petitioner that the transfer order was made during non-transferable period also cannot be accepted since it has been passed on administrative grounds. The further contention raised that the Order dated 4.8.2014 has been issued belatedly though the order of transfer has been issued on 31.7.2014, is also not a ground to hold that the orders have been passed on malafide consideration. Admittedly the said order has been served on the petitioner on 12.8.2014. Therefore, it cannot be said that there is any huge delay and in any case the petitioner is not prejudiced by the same. It is also settled law that a malice either in law or fact will have to be established by the person who alleges the same and the petitioner has not passed the said test. Moreover, petitioner has been working for more than six years in the very same place.

For the reasons stated, the above writ petition is dismissed. No costs. Consequently, the connected miscellaneous petitions are also dismissed.