WP/34678/2018 of V.Durai Vs Tamil Nadu State Transport Corporation (Salem) LTd., on 31 December 2018

O R D E R

The petitioner has come forward with this Writ Petitionchallenging the order of transfer dated 19.12.2018 passed by thesecond respondent.

2. This is the third round of litigation and in the earlieroccasion, the petitioner requested to consider retaining himselfin the same place and until such time, he shall not disturbed.

3. According to the petitioner, his mother had hipfracture and there is no plea to that effect in the originalAffidavit filed by him and no documents have been produced. Theonly ground projected by the petitioner is that his son was aged10 years and his daughter was aged 6 years and hence, he will notbe in a position to travel 100 kms each day. In therepresentation, however, it had been stated that his son was aged16 years and was studying XI Standard and daughter was studying VStandard. The averments in the affidavit and the representation,dated 11.09.2018 are not consistent. Additionally, since thepetitioner is facing serious charges, he has been transferred.

4. The respondent would submit that the transfer order hasbeen issued as early as August 2018 and for the past five monthsthe order has remained unworkable.

5. A glance of the impugned order would make it clear thatthe representation of the petitioner had been considered andsubsequently rejected, hence, it cannot be interfered with. Thatapart, if a transfer order is issued on certain charges, thepetitioner has to go and join in the transferred place. He has noright to chose or select the place, unless otherwise contemplatedin the Government Order. The plea of victimization andpenalization of the petitioner cannot be acceded.

6. At this stage of arguments, the petitioner wanted timeto join in the transferred place and had requested that he may begranted time till March 2019. Learned counsel appearing for theRespondents opposed the same stating that the transfer order hadto be acted upon immediately and the Petitioner cannot be allowedto stay in a particular place, when serious charges have beenlevelled against him.

7. At this juncture, it is worth referring to the ApexCourt decision in the case of Ajay Kumar Choudhary vs. Union ofIndia, reported in 2015 (3) CTC 119, wherein, it is held asunder:

https://hcservices.ecourts.gov.in/hcservices/

"8. Suspension, specially preceding theformulation of charges, is essentiallytransitory or temporary in nature, and mustperforce be of short duration. If it is foran indeterminate period or if its renewal isnotbasedonsoundreasoningcontemporaneously available on the record,this would render it punitive in nature.Departmental/disciplinaryproceedingsinvariably commence with delay, are plaguedwith procrastination prior and post thedrawing up of the Memorandum of Charges, andeventually culminate after even longerdelay.

13. It will be useful to recall thatprior to 1973 an accused could be detainedfor continuous and consecutive periods of 15days, albeit, after judicial scrutiny andsupervision. The Code of Criminal Procedureof 1973 contains a new proviso which has theeffect of circumscribing the power of theMagistrate to authorise detention of anaccused person beyond period of 90 dayswhere the investigation relates to anoffence punishable with death, imprisonmentfor life or imprisonment for a term of notless than 10 years, and beyond a period of60 days where the investigation relates toany other offence. Drawing support from theobservations contained of the Division Benchin Raghubir Singh v. State of Bihar, 1986(4) SCC 481, and more so of the ConstitutionBench in Antulay, we are spurred toextrapolate the quintessence of the provisoof Section 167(2) of the Code of CriminalProcedure 1973 to moderate Suspension Ordersin cases of departmental/disciplinaryinquiries also. It seems to us that ifParliament considered it necessary that aperson be released from incarceration afterthe expiry of 90 days even though accused ofcommission of the most heinous crimes, afortiori suspension should not be continuedafter the expiry of the similar periodespeciallywhenaMemorandumofCharges/Chargesheet has not been served onthe suspended person. It is true that theproviso to Section 167(2) Code of CriminalProcedure postulates personal freedom, but respect and preservation of human dignity aswell as the right to a speedy trial shouldalso be placed on the same pedestal.

14. We, therefore, direct that thecurrency of a Suspension Order should notextend beyond three months if within thisperiod the Memorandum of Charges/Cherishedisnotservedonthedelinquentofficer/employee; if the Memorandum ofCharges/Chargesheet is served a reasonedorder must be passed for the extension ofthe suspension. As in the case in hand, theGovernment is free to transfer the concernedperson to any Department in any of itsoffices within or outside the State so as tosever any local or personal contact that hemay have and which he may misuse forobstructing the investigation against him.The Government may also prohibit him fromcontacting any person, or handling recordsand documents till the stage of his havingto prepare his defence. We think this willadequatelysafeguardtheuniversallyrecognized principle of human dignity andthe right to a speedy trial and shall alsopreserve the interest of the Government inthe prosecution. We recognize that previousConstitution Benches have been reluctant toquash proceedings on the grounds of delay,and to set time limits to their duration.However, the imposition of a limit on theperiod of suspension has not been discussedin prior case law, and would not be contraryto the interests of justice. Furthermore,the direction of the Central VigilanceCommission that pending a criminalinvestigation departmental proceedings areto be held in abeyance stands superseded inview of the stand adopted by us.

15. So far as the facts of the presentcase are concerned, the Appellant has nowbeen served with a Charge sheet, and,therefore, these directions may not berelevant to him any longer. However, if theAppellant is so advised he may challenge hiscontinued suspension in any manner known tolaw, and this action of the Respondents willbe subject to judicial review."

8. With reference to the above Apex Court decision, thisCourt is of the view that when serious charges are levelledagainst a person, the employer may either suspend the employee orwithdraw the order of suspension and transfer the person to adifferent place, in a non-sensitive post. Such action of theemployer cannot be said to be malafide, particularly, whenserious charges are levelled against the employee.

9. In this case, instead of suspending the employee,transfer order has been issued. Such act is well within thepurview of the employer. It is better to transfer an employeefacing charges rather than placing the employee under suspensionfor years together and waste the tax-payers' money by payingSubsistence Allowance. Thus, in the case on hand, the petitionerwould have to proceed with his transfer immediately.

10. Taking note of the submissions of the learned counselfor the petitioner and the education of his children, thepetitioner is granted time to join the transferred place till28.02.2019 and he has to join duty in the transferred place on01.03.2019. This Court clarifies that it is open to thepetitioner to go on eligible leave till 28.02.2019 and if he hasno eligible leave, the period of leave shall be treated as 'nowork no pay'.

11. If the Petitioner fails to join the transferred place,the period during which he has not joined from the date oftransfer will have to be treated as break-in-service. Due tobreak-in-service, the Petitioner will be treated as a new entrantwithout deduction in salary and the period from the date oftransfer shall not be counted for granting gratuity and otherterminal benefits. If the Petitioner disobeys the order oftransfer, an enquiry has to be conducted against him andpunishment should be imposed. The above observations will compelthe petitioner to join the transferred place without seekingextension of time.

With these directions and observations, this Writ Petitionis disposed of. No costs. Consequently, connected miscellaneouspetitions are closed. Sd/- Assistant Registrar(CCC)

//True Copy//

Sub Assistant Registrar

vrc/aeb

To:

1. Tamil Nadu State Transport Corporation (Salem) Ltd., Represented by the Managing Director, 12, Ramakrishnan Road, Salem – 636 007.

2. The General Manager

Tamil Nadu State Transport Corporation (Salem) Ltd., Dharmapuri Division, Bharathipuram, Salem Main Road, Dharmapuri, Dharmapuri District.

3. The Branch Manager, Krishnagiri Mofussil Branch, Tamil Nadu State Transport Corporation (Salem) Ltd., Krishnagiri, Krishnagiri District.

+1cc to Mr.S.Rajeni Ramadoss, Advocate Sr.423

+1cc to M/S.Rama Priya Gopalakrishnan, Advocate Sr.90116

W.P. No.34678 of 2018

spd[co]srg 31/01/2019