Shyamal Chakraborty vs State Of Tripura And Ors.

[1] Heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder, learned counsel appearing for the petitioner as well as Ms. A. S. Lodh, learned Addl. G.A. appearing for the respondents.

[2] Ms. Lodh, learned Addl. G.A. appearing for the respondents has produced the relevant records being File No. I-506/IGP/03, from which the transaction preceding the order of transfer challenged in this writ petition, can be located.

[3] The grievance as expressed by the petitioner in this writ petition is that, having relied on one inquiry report, which was never made known to him nor was he given any opportunity to have his say on the report, he has been transferred by the order under No. F.I- 506/IGP/2003/2725-33 dated 20.05.2017 (Annexure-30 to the writ petition) from Kendriya Sansodhanagar, Bishalgarh to Belonia Sub-Jail as the Pharmacist.

[4] There is no dispute that by the order dated 08.10.2015, Annexure-28 to the writ petition, the petitioner was posted in the Kendriya Sansodhanagar as the Pharmacist. From the order dated 08.09.2016, Annexure-29 to the writ petition, it appears that the petitioner was entrusted to perform all administrative and clerical works relating to the Kendriya Sansodhanagar Hospital, Bishalgar. This shows the efficiency of the petitioner.

[5] Mr. P. K. Biswas, learned senior counsel appearing for the petitioner has submitted that the petitioner is in a difficult family situation and that is why he had approached the Inspector General of Prisons, the respondent No. 2 for cancelling his transfer order but nothing positive has yielded. From the disclosure made under Section-6 of the Right to Information Act, (RTI Act, in short) the petitioner has received the inquiry report, carried out surreptitiously against the petitioner. In the said report, it has been observed as under:

"5. Superintendent, KST has stated that there is no such date lapsed medicines are found in the stock and no any reports was also received from the inmates of that jail about such date lapsed medicines are being supplied to them from the Hospital. As per prescription of the attending doctor requisition for medicine are being placed before the Superintendent of jail. Accordingly, the Supdt., placed supply order to the supplier for supply the medicines. Subsequently, the supplier submits the bill for making payment. As such it is very difficult to prove whether the said Chakraborty is involved in corruption by this system of procuring medicines."

Thereafter, it has been further observed that this is regarding an enquiry report on the complaint against Sri Shyamal Chakraborty, Pharmacist of KST, Bishalgarh, which is received through Secretary, Home (Jail) Department. Placed at Flag 'A' may kindly be perused.

In this regard, it is mentionable that the Superintendent, KST, BLG has sent his enquiry report as asked by the I.G. Prisons vide dated 23.02.2017. The operative paras of the reports are as follows:

i. The doctor verbally told that some of the invitees were consumed alcohol in the dinner party which was arranged by Dr. Tanuj Sarkar in his Govt. quarter located at KST campus. Sri Shyamal Chakraborty, Pharmacist was over consumed the liquor and could not able to control himself. As a result, he fell down on the floor and started vomiting and also used many un-parliamentary languages. Thereafter, the said Dr. T. Sarkar arranged to send Sri Chakraborty to his residence.

ii. On the following morning of the incident, two convicts has been used to wash/clean the floor and alcohol mixed vomiting etc.

In this connection, the said Dr. Tanuj Sarkar declined to give any written statement on the aforesaid issue.

It appears from the report that on 21st January, 2017, the said Sri Chakraborty was detailed for store and clerical duty but no specific time was marked for his allotted duties. As per gate entry register of KST, BLG, it is seen that Sri Chakraborty, Pharmacist entered into at 12.30 pm to attend his duty but the departure time was found blank till sending the report by Supdt. KST, BLG.

Superintendent, KST has stated that there is no such date lapsed medicines are found in the stock and no any reports was also received from the inmates of that jail about such date lapsed medicines are being supplied to them from the Hospital. As per prescription of the attending doctor requisition for medicine are being placed before the Superintendent of Jail. Accordingly, the Supdt., placed supply order to the supplier for supply the medicines. Subsequently, the supplier submits the bill for making payment. As such it is very difficult to prove whether the said Chakraborty is involved in corruption by this system of procuring medicines.

[6] In view of the said report, a proposal was initiated to transfer the petitioner. The said proposal has been made on the basis of the allegation that was substantively found to be not proved. But for reference the following paragraphs from the said note is extracted:

"It is understood that the allegation against Sri Shyamal Chakraborty, Pharmacist of KST which was expressed by the senders through CD and unanimous letters appeared to me as true but difficult to prove due to lack of evidence. It is better to make him transfer from this Sansodhanagar to any other place to run the administration of this jail smoothly as he has completed almost 2 years service to this KST, Tripura, Bishalgarh."

[Emphasis added]

[7] It clearly transpires, that the transfer order has been made against the unsubstantiated allegations and by that, it is apparent on the face of the records that that action of transferring the petitioner was mala fide. An employee cannot be transferred on such unsubstantiated allegations or without giving him any opportunity to lay his defence.

[8] However, Ms. A. S. Lodh, learned Addl. G.A. appearing for the respondents has submitted that it is not on the basis of the allegation but on the basis of the administrative exigencies that the petitioner has been transferred from the Bishalgarh Sub-Jail as there was shortage of pharmacist in Belonia Jail.

[9] But from the file, as produced before us, it appears that was the sole basis shown for the transfer of the petitioner. FR-15 clearly provides as under:

"F.R.15. The President may transfer Government servant from one post to another provided that except-

(i) On account of inefficiency or misbehaviour, or (ii) on his written request."

[10] In this case, even though the allegations remained unsubstantiated but based on the subjective evaluation the petitioner has been transferred. The said action is therefore entirely unsustainable.

[11] In this view of the matter, the transfer order dated 20.05.2017 cannot stand the scrutiny of law and accordingly, the said transfer order is quashed. The petitioner shall be allowed to work in the present place of posting i.e. KST, Bishalgarh. However, it is made clear that in due exercise, the petitioner may be transferred in the public interest.