In WRIT PETITION NO. 2706 OF 2019- BOM HC- Transfer order amounts to punishment if by reason thereof employee is asked to discharge duty of lower post, his pay is downgraded or his promotional prospects are jeopardized: Bombay HC Justice Dipankar Datta & M.S. Karnik [27-06-2022]

Read Order: SHRI DATTATRAY KRISHNAJI PAWAR V. UNION OF INDIA & ORS

Mansimran Kaur

Mumbai, June 29, 2022: While considering an application challenging an order of transfer by which the Petitioner was transferred from the Passport Office, Thane to the Passport Office, Bhopal,the Bombay High Court has reiterated that order of transfer would amount to a punishment if by reason thereof the officer/employee has been asked to discharge duty of a post lower than that he had been holding, if his pay has been downgraded, his promotional prospects are jeopardized or if the order is stigmatic.

The Division Bench of Chief  Justice Dipankar Datta and Justice M.S. Karnik was considering the petition of a petitioner who was working as an Assistant Passport Officer posted at the Passport Office, Thane. It was the case of the petitioner that he and other employees faced various problems with regard to TA/DA while sent on deputation and he along with 28 others preferred a joint complaint complaining of non-release of TA/DA. Since the petitioner was the first signatory, he had been singled out for punishment and within three days of such representation, an order was issued whereby he was posted on transfer to the Passport Office at Bhopal.

The same was assailed by the petitioner on the sole ground that the impugned order of transfer was issued as a measure of punishment. The Tribunal, however, was of the opinion that the said transfer in question was justified on administrative grounds as well as in public interest. Thus his original application  was dismissed. However, even after the dismissal of the application, the petitioner did not report for duty at the Passport Office, Bhopal.  Consequently, a charge-sheet was drawn up against the petitioner for alleged misconduct in not reporting for duty in Bhopal. 

The Court opined that in the instant matter  no such circumstances were seen, hence the Court stated that it couldnot hold the transfer of the petitioner as punitive.  Next with respect to the contention of the petitioner that he was transferred in breach of the transfer policy, the Court in respect of the same placed its reliance on the judgment in Union of India vs. S. L. Abbas wherein it was held that executive instructions such as for transfer of Government servants are in the nature of guidelines and do not confer a legally enforceable right. 

With respect to the penultimate contention on behalf of the petitioner  that the issuance of charge- sheet was  in light of the Tribunal’s jurisdiction to make order/ issue directions as contained in paragraph 4(1)(v)(vi) of the judgment. In pursuance of the same, the Court observed that it failed to see any reason to hold that issuance of the charge-sheet was on the dictation of the Tribunal.

In any event, since the charge-sheet was not the subject matter of challenge in this writ petition or before the Tribunal, this Court found no need to dilate on it any further except observing that the disciplinary proceedings shall be taken to its logical conclusion by the disciplinary authority without being influenced by any direction issued by the Tribunal in subparagraphs (v) and (vi) of paragraph 4(1) of its judgment and order, stated the Court. Thus, the Court observed that the relief claimed in the writ petition cannot be granted except setting aside the order imposing costs.  However, liberty was granted to the petitioner to question the charge- sheet and the proceedings before the appropriate forum. Accordingly, the writ petition was disposed of.