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An order of transfer passed in lieu of punishment is illegal and cannot be sustained



By the instant petition, the Petitioner, who was initially appointed as Stenographer Gr-I in the year 2005 and with successive promotions was appointed as Junior Officer/Private Secretary on 1st July, 2018, assails and seeks quashing of her transfer and the relieving order.

Whether the subject transfer effected to meet any exigency or for better administration of the affairs of the respondents and did not suffer from any malafides or ulterior motives, is the short question for consideration in the instant petition.

Transfer and posting is an incident of service and the prerogative of the employer in such matters cannot be interfered with, unless, it comes to be shown that, the action of transfer or posting suffered from the vice of malice or was punitive.

The Supreme Court in Somesh Tiwari v. Union of India observed that, 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.

The given facts and circumstances thus leave no doubt that, the impugned transfer order and the consequent relieving order were passed as a punitive action of taking the appropriate disciplinary action, as provided for under the rules. The impugned transfer and reliving order, which the Court finds to be punitive action, cannot therefore be sustained. The impugned transfer order and relieving order are quashed. Petition allowed.


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