# Court reported in Sripat v. Rajendra

- **Citation:** (2012) 2 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-03
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-reported-in-sripat-v-rajendra-42306
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226transfer by way of punishment-based
upon
inquiry
report-allegation
of
misleading higher authorities failed to
discharge
his
duties-held-illegal
quashed.

Held: Para 8

The impugned order, in this case, clearly
show that after receiving enquiry report
and founded thereon the petitioner is
being transferred. Thus the power of
transfer has not been exercised by the
transferring authority independently by
his own application of mind but the
impugned order of transfer is founded on
the enquiry report. Fortunately, the
enquiry report is part of the record which
shows that enquiry officer has made
recommendation for transfer besides
above. The apex court while repeatedly
observing that normally interference in
an order of transfer should not be made
but simultaneously it has also said that if
an order of transfer is made as a
punishment, the same cannot sustain
unless permitted under the Rules. The
reference is made to the Apex Court
2 All] Sabhapati Pathak S/O Late Indar Pal Pathak V. State of U.P. and others
579
decision in Somesh Tiwari Vs. Union of
India & Ors. JT 2009 (1) SC 96.
Case law discussed:
JT 2009 (1) SC 96

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
regard learned counsel for the appellants
has cited an authority of this court
reported in Gajraj and others Vs.
Ramadhar and others, AIR 1975 All
406 and an authority of the Supreme
Court reported in Sripat Vs. Rajendra
Prasad, JT 2000 (7) SC 379. In the
latter authority, Supreme Court held that
trial court should have got the property
surveyed
when
the
dispute
was
regarding identity of the property.
Supreme Court allowed the appeal, set
aside the decrees and orders passed by
trial court, lower appellate court as well
as High Court and remanded the matter
to the trial court.

9. In the High Court authority it
has been held that appellate court can
also issue Commission for survey.

10. Accordingly, second appeal is
allowed. Substantial question of law is
decided in favour of the appellants.
Judgment and decree passed by the
lower appellate court is set aside. Matter
is remanded to the lower appellate court
to decide the appeal afresh after
providing opportunity to the plaintiffs
appellants to get the property surveyed
through survey commissioner. Both the
parties are directed to appear before the
lower appellate court on 18.07.2012.
---------

ORIGINAL JURISDICTION
SIDE SIDE
DATED: LUCKNOW 03.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

SERVICE SINGLE No. - 2450 of 2009

Sabhapati Pathak S/O Late Indar Pal
Pathak

 ...Petitioner
Versus
State of U.P. Thru Prin. Secy. Irrigation
and others

 ...Respondents

Counsel for the Petitioner:
Sri S.C. Yadava
Sri Vishal Kumar Upadhyay

Counsel for the Respondent:
C.S.C.

Constitution
of
India,
Article
226transfer by way of punishment-based
upon
inquiry
report-allegation
of
misleading higher authorities failed to
discharge
his
duties-held-illegal
quashed.

Held: Para 8

The impugned order, in this case, clearly
show that after receiving enquiry report
and founded thereon the petitioner is
being transferred. Thus the power of
transfer has not been exercised by the
transferring authority independently by
his own application of mind but the
impugned order of transfer is founded on
the enquiry report. Fortunately, the
enquiry report is part of the record which
shows that enquiry officer has made
recommendation for transfer besides
above. The apex court while repeatedly
observing that normally interference in
an order of transfer should not be made
but simultaneously it has also said that if
an order of transfer is made as a
punishment, the same cannot sustain
unless permitted under the Rules. The
reference is made to the Apex Court
2 All] Sabhapati Pathak S/O Late Indar Pal Pathak V. State of U.P. and others
579
decision in Somesh Tiwari Vs. Union of
India & Ors. JT 2009 (1) SC 96.
Case law discussed:
JT 2009 (1) SC 96

(Delivered by Hon'ble Sudhir Agarwal, J.)

1.

Heard
Sri Vishal
Kumar
Upadhyay,
learned
counsel
for
the
petitioner, learned Standing Counsel for
the respondents and perused the record.

2. The writ petition is directed
against order of transfer dated 29th
December, 2008 (Annexure No.1 to the
writ petition) passed by respondent No.2
whereby the Chief Engineer, (Project and
Planning), Irrigation Department, U.P.
Lucknow has transferred the petitioner
having found guilty of dereliction of duty
pursuant to enquiry report submitted by
enquiry authority to this effect.

3. It is contended that transfer by
way of punishment is not permissible and
therefore, the impugned order of transfer
is liable to be set aside.

4. A counter affidavit has been filed
by the respondents stating that impugned
order of transfer has been passed on
administrative grounds. However, it is not
disputed that since the petitioner failed to
discharge his responsibility and duties to
the post and he has been found to mislead
his higher officers, therefore he has been
transferred. It is also admitted in para 9 of
the counter affidavit that impugned order
of transfer has been passed after making
enquiry and receiving report of enquiry
against the petitioner finding him guilty of
certain acts and omission on the part of
petitioner constituting misconduct.

5. The question up for consideration
before this Court whether here is an order
of transfer by way of punishment or it can
be construed as a transfer made in
exigency of service on administrative
grounds.

6. The order of transfer impugned in
this writ petition read as under:

^^'kklu
ds
Ik=
la[;k
6956@08&27&fla&7&151⁄4241⁄2@08] fnukad 14-112008 }kjk voxr djk;k x;k gS fd Jh jkds'k flag
folsu] ofj"B fyfid ck<+ dk;Z [k.M xks.Mk ds
fo:) f'kdk;rksa dh tkWap vk[;k ds vk/kkj ij Jh
lHkkifr ikBd] ofj"B fyfid 1⁄4dk;Zokgd eq[;
fyfid1⁄2 dks vius in dk nkf;Ro HkyhHkkWafr fuoZgu
u djus ,oa mPpkf/kdkfj;ksa dks xqejkg dj
LFkkukUrj.k gsrq Ik= fy[kkus ds fy, nks"kh ik;s tkus
ds QyLo:i iz'kklfud vk/kkj ij [k.M ls ckgj
LFkkukUrj.k gsrq fu.kZ; fy;k x; gSA

vr% Jh lHkkifr ikBd] ofj"B fyfid] ck<+
dk;Z [k.M xks.Mk dks muds orZeku rSukrh LFkku ls
iz'kklfud vk/kkj ij LFkkukUrfjr djrs gq, uydwi
[k.M xks.Mk esa ,rn~}kjk inLFkkfir fd;k tkrk gSA

mijksDr vkns'k rkRdkfyd izHkko ls ykxw
gksxsaA^^

7. Ex facie it does not show that it is
a
transfer
not
a
consequence
of
departmental enquiry but something for
other reasons. In fact the counter affidavit
of respondent No.3 corroborate this fact
that after receiving enquiry report and
considering the recommendation of the
enquiry officer the petitioner has been
transferred. A transfer on administrative
ground for various reasons is permissible
and normally is not interfered by the
Court. The term administrative ground/
exigency includes within its purview
transfer to avoid shuffle between two
employees at a particular place or to make
an atmosphere more conducive which is
being poisoned by both the employees
and sometime not to allow an employee to
do something wrong at a particular place.
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
But then the order of transfer must show
that the power of transfer has been
exercised
for
administrative
reasons
without making the order of transfer a
penalty.

8. The impugned order, in this case,
clearly show that after receiving enquiry
report and founded thereon the petitioner
is being transferred. Thus the power of
transfer has not been exercised by the
transferring authority independently by
his own application of mind but the
impugned order of transfer is founded on
the enquiry report. Fortunately, the
enquiry report is part of the record which
shows that enquiry officer has made
recommendation for transfer besides
above. The apex court while repeatedly
observing that normally interference in an
order of transfer should not be made but
simultaneously it has also said that if an
order of transfer is made as a punishment,
the same cannot sustain unless permitted
under the Rules. The reference is made to
the Apex Court decision in Somesh
Tiwari Vs. Union of India & Ors. JT
2009 (1) SC 96.

9. In view of the above, the
impugned order of transfer cannot sustain.
The writ petition is allowed. The order
dated 29th December, 2008 is hereby
quashed.

10. However, it is made clear that
since three years have passed, this order
shall not preclude the respondents from
passing a fresh order as and when the
circumstances required in accordance
with law since it cannot be said that the
petitioner has any vested right to continue
at a particular place according to his own
choice but privilege is that of competent
transferring authority to pass appropriate
authority in accordance with law in his
own wisdom.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.05.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. - 3181 of 1993

Ram Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.J. Trivedi

Counsel for the Respondents:
C.S.C.

Constitution of India , Article 226Termination
order-putting
stigmawithout show cause notice without
following principle of Natural Justiceorder not sustainable.

Held: Para 20

Now reverting to the facts of the present
case as stated herein above, the services
of the petitioner were terminated on the
ground of alleged misconduct in respect
of which a show cause notice was issued
to him to which he submitted his reply
and in this regard averments has been
made by the official respondents in para
nos. 11 and 13 of the counter affidavit ,
so in view of the said fact , the position
which emerge out is to the effect that
the
allegation
of
irregularities
and
misconduct committed by the petitioner
while
discharging
his
duty
is
the
foundation for passing of the impugned
order
against
the
petitioner,
hence
before passing the same it is incumbent
upon the respondents to afford an
opportunity of hearing to the petitioner
by issuing show cause notice and cannot