Wednesday, October 5, 2022

Allahabad High Court sets aside transfer order terming it punitive in nature

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The Allahabad High Court while setting aside a transfer order passed against a Class IV Employee noted that the same was punitive in nature. It observed that no Class-IV employee should normally be transferred out of the district.

A single bench of Justice Vivek Chaudhary passed this order while hearing a petition filed by Smt Maya.

The Petitioner, by the petition has challenged the order of transfer dated July 12, 2021 as well as order dated August 12, 2021 whereby representation of petitioner is rejected.

Counsel for petitioner submitted that petitioner, who is Class-IV employee has been transferred from Lucknow to Kanpur by transfer order dated July 12, 2021 on administrative ground. The said order does not give any reason whatsoever for transferring the petitioner.

The Petitioner has approached the Court on the ground that Class-IV employees cannot be transferred so far away.

The Court directed the representation of the petitioner to be considered and decided on merits. While deciding the representation, a large number of allegations were leveled against the petitioner which includes that she remains on leave, she acts in a whimsical manner which causes disturbances in the work, she is careless in attending insured persons/patients.

Counsel for petitioner submitted that in the given circumstances the transfer amounts to transfer on punishment which could not be made except following due process.

Counsel for petitioner further submitted that even presuming Class-IV employees are to be transferred on punishment, the same cannot be to a far away place and has to be within the same district.

Further submission is that the order is also passed without providing any opportunity of hearing to the petitioner.

Standing Counsel submitted that looking into the conduct of the petitioner, the transfer order is rightly passed.

The Court observed that, in the given facts and circumstances of the case where allegations are being made against the petitioner in rejecting her representation against the transfer order, the transfer order becomes punitive in nature. No punishment can be awarded to the petitioner without giving any opportunity of hearing. Therefore, the impugned order cannot stand.

The Court further observed that no Class-IV employee should normally be transferred out of the district. The department itself follows the said policy as is reflected in the transfer order dated July 12, 2021 itself, by which five Class-IV employees are transferred, three of them on personal request out of district, the fourth in public interest within the district and fifth, petitioner, is transferred out of district on administrative grounds. When the department is making out of district transfer only on request and otherwise accommodating persons within the district, there was no reason to transfer the petitioner out of district.

In view therefore, the orders dated July 12, 2021 and August 12, 2021 cannot stand and are set aside, the Court ordered.

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