# Narendra Kumar v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-31
- **Case number:** Civil Misc. Writ Petition No.41477 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-v-state-of-u-p-and-ors-42585
- **Pages:** 4

## Headnote

Constitution of India, Art.226- Service
Law-Transfer
order
challenged
on
malafide ground-non impleadment of
authority by name-can not be considered
by Court-transfer being exigency of
service-can not be interfered by writ
court.

Held: Para-3
It is well settled that a person against
whom plea of mala fide is taken shall be
impleaded eo nomine since plea of mala
fide is not available against unnatural
person. The Apex Court has gone to the
extent that in absence of impleadment of
a person eo nomine, against whom plea
of mala fide is alleged, Court cannot not
even entertain the plea of mala fide

Case Law discussed:
1992 Supp. (1) SCC 222; AIR 1996 SC 326; JT
1996 (8) S.C. 550; AIR 2003 SC 1344; 2008(4)
ADJ-36; 2008 (2) ESC 1312; 2008 (3) ADJ
705; AIR 2012 SC 232; 2009(8) SCC 337; JT
2009(2) SC 474.

## Text

2 All] Narendra Kumar Vs. State of U.P. and Ors.

1151
appointment, length of service, whether
he is in a position to get another
employment etc. are some of the factors,
which are required to be considered.

15. These factors has not been
considered by the Tribunal, the mere fact
that the workman contends that he has
remained unemployed during the interim
period is by itself not sufficient to grant full
back wages. The Tribunal has also lost sight
of the fact that the workman did commit a
misconduct as he did not accept the transfer
order and disobeyed the orders of the
management. By reinstating the workman
and giving him full back wages, the
workman would go scott free for the
misconduct, which he had committed and
this Court cannot allow it to happen.

16. In the light of the aforesaid, the
Court is of the view that on the principle of
'no work no pay', coupled with the fact that a
misconduct was committed by the workman,
the Court finds that the award of the Tribunal
directing payment of full back wages cannot
be sustained and, consequently, to that
extent, the award is quashed. The writ
petition is partly allowed and the Court
directs that in the given circumstances the
petitioner would pay a composite amount of
Rs. One lac towards back wages and cost of
the litigation. The said amount shall be paid
within six weeks from the date of the
production of a certified copy of this order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.41477 of 2013

Narendra Kumar

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

Counsel for the Petitioner:
Sri A.K. Shukla

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.226- Service
Law-Transfer
order
challenged
on
malafide ground-non impleadment of
authority by name-can not be considered
by Court-transfer being exigency of
service-can not be interfered by writ
court.

Held: Para-3
It is well settled that a person against
whom plea of mala fide is taken shall be
impleaded eo nomine since plea of mala
fide is not available against unnatural
person. The Apex Court has gone to the
extent that in absence of impleadment of
a person eo nomine, against whom plea
of mala fide is alleged, Court cannot not
even entertain the plea of mala fide

Case Law discussed:
1992 Supp. (1) SCC 222; AIR 1996 SC 326; JT
1996 (8) S.C. 550; AIR 2003 SC 1344; 2008(4)
ADJ-36; 2008 (2) ESC 1312; 2008 (3) ADJ
705; AIR 2012 SC 232; 2009(8) SCC 337; JT
2009(2) SC 474.

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

1. It is contended that impugned order
of transfer has been passed mala fide and at
the instance of District President of Ruling
Party and my attention is drawn to letter
dated 10.10.2012, Annexure 5-A to the writ
petition allegedly written by Pradeep Pandey
to the District Magistrate, Shahjahanpur
requesting
for
taking
action
against
petitioner.

2. However, neither any person has
been impleaded by name against which
mala fide is alleged nor any ground has
1152 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

been taken in the writ petition. Hence the
said plea cannot be entertained at all.

3. It is well settled that a person
against whom plea of mala fide is taken
shall be impleaded eo nomine since plea
of mala fide is not available against
unnatural person. The Apex Court has
gone to the extent that in absence of
impleadment of a person eo nomine,
against whom plea of mala fide is alleged,
Court cannot not even entertain the plea
of mala fide.

4. The Apex Court in State of Bihar
Vs. P.P. Sharma, 1992 Supp (1) SCC
222 in para 55 of the judgment, held: -

"It is a settled law that the person
against whom mala fides or bias was
imputed should be impleaded eo nomine as a
party respondent to the proceedings and
given an opportunity to meet those
allegations. In his/her absence no enquiry
into those allegations would be made.
Otherwise it itself is violative of the
principles of natural justice as it amounts to
condemning
a
person
without
an
opportunity. Admittedly, both R.K. Singh
and G.N. Sharma were not impleaded. On
this ground alone the High Court should
have stopped enquiry into the allegation of
mala fides or bias alleged against them."
(emphasis added)

5. In AIR 1996 Supreme Court
326, J.N. Banavalikar Vs. Municipal
Corporation of Delhi, in para 21 of the
judgment, it has been held:

"Further
in
the
absence
of
impleadment of the..........the person who
had allegedly passed mala fide order in
order to favour such junior doctor, any
contention of mala fide action in fact i.e.
malice in fact should not be countenanced
by the Court."

6. In JT 1996 (8) S.C. 550, A.I.S.B.
Officers Federation and others Vs.
Union of India and others, in para 23,
the Hon'ble Apex Court has said where a
person, who has passed the order and
against whom the plea of mala fide has
been taken has not been impleaded, the
petitioner cannot be allowed to raise the
allegations of mala fide. The relevant
observation of the Apex Court relevant
are reproduced as under:

"The person against whom mala
fides are alleged must be made a party to
the proceeding. Board of Directors of the
Bank sought to favour respondents 4 and
5 and, therefore, agreed to the proposal
put before it. Neither the Chairman nor
the Directors, who were present in the
said meeting, have been impleaded as
respondents. This being so the petitioners
cannot be allowed to raise the allegations
of mala fide, which allegations, in fact,
are without merit." (emphasis added)

7. In AIR 2003 Supreme Court
1344, Federation of Railway Officers
Association Vs. Union of India it has
been held:

"That allegations regarding mala
fides cannot be vaguely made and it must
be specified and clear. In this context, the
concerned Minister who is stated to be
involved in the formation of new Zone at
Hazipur is not made a party who can meet
the allegations." (emphasis added)

8. The aforesaid view has been
followed by various Division Benches of
this Court including Dr. Harikant
Mishra Vs. State of U.P. and others
2 All] Narendra Kumar Vs. State of U.P. and Ors.

1153
2008(4) ADJ 36=2008(2) ESC 1312 and
Salahuddin Vs. State of U.P. and
another 2008(3) ADJ 705.

9. In view of the above, since the
person against whom the plea of mala fide
has been levelled is not impleaded, I have
no hesitation in declining the contention
of the petitioner to assail the impugned
order on the ground of mala fide.

10. So far as order of transfer is
concerned, it is not the case of the
petitioner that the impugned order of
transfer is against statutory rules or has
been
passed
by
an
authority
not
competent to do so or is vitiated on
account of mala fide. The service of the
petitioner are transferable. The transfer
being exigency of service, an employee is
liable to be transferred from one place to
another and normally no case for
interference in Court of law is called for
unless the case is within categories, as
mentioned above.

11. Recently in The Registrar
General High Court of Judicature at
Madras Vs. R. Perachi and Ors., AIR
2012 SC 232, the Court has observed:

"...transfer is an incident of service, and
one cannot make a grievance if a transfer is
made on the administrative grounds, and
without attaching any stigma....".

12. The Court also referred to its
earlier decision in Airports Authority of
India Vs. Rajeev Ratan Pandey, 2009
(8) SCC 337 and said :

"in a matter of transfer of a govt.
employee, the scope of judicial review is
limited and the High Court would not
interfere with an order of transfer lightly,
be it at interim stage or final hearing. This
is so because the courts do not substitute
their own decision in the matter of
transfer."

13.

A
transfer
is
made
in
administrative exigency, if there is a
complaint pending and instead of a regular
department enquiry, the authority concerned
decided to transfer a person concerned. It
would then be a transfer purely on
administrative ground and not by way of
punishment etc. This approach has been
approved by Apex Court in The Registrar
General High Court of Judicature at
Madras (supra), and in para 27 of the
judgment the Court observed:

"...the transfer was purely on the
administrative ground in view of the
pending complaint and departmental
enquiry against first Respondent. When a
complaint against the integrity of an
employee is being investigated, very often
he is transferred outside the concerned
unit. That is desirable from the point of
view of the administration as well as that
of the employee.

14. In Tushar D.Bhatt Vs. State of
Gujarat & Ors., JT 2009 (2) SC 474,
reiterating well established principle in
long chain of authority the Court said:

"The
legal
position
has
been
crystallized in number of judgments that
transfer is an incidence of service and
transfers
are
made
according
to
administrative exigencies."

15. In view of the aforesaid, the writ
petition lacks merit.

16. Dismissed.
---------
1154 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 44781 of 2009
M/s Luxmi Palace(Cinema) ...Petitioner
Versus
Prescribed Authority/Additional Labour
Commissione & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.S. Nigam

Counsel for the Respondents:
C.S.C., Sri Ankit Saran

Constitution of India Art. 226-Applicability
of minimum wages Act- application by
workman-against
ex-parte
award-writ
petition
by
management-writ
court
-
allowed to work and pay salary by month to
month-argument that entitle salary on last
pay drawn basis-application for minimum
wages not maintainable-held-wages means
current wages-application maintainable-in
absence of mens-rea-penality can not be
imposed-petition partly allowed.

Held: Para-9
The words to "take work" and the words to
"pay salary month to month" leads to an
irresistible inference, namely, to pay the
current salary. It would be too much to
expect that the employer will take work
and pay last drawn wages. it is not
permissible to pay last drawn wages when
work is being taken. The workman becomes
entitled to be given a fair remuneration and
in
the
opinion
of
the
Court,
fair
remuneration is nothing else, but current
salary since the last drawn wages was
being paid, the workman rightly moved an
application for payment of minimum wages
under the provisions of the Minimum
Wages Act. The said application was
maintainable and the Prescribed Authority
rightly calculated the difference. The Court
is of the opinion that the order of the
Prescribed Authority was perfectly justified.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri S.S. Nigam, the learned
counsel for the petitioner and Sri Ankit
Saran, the learned counsel for the
respondents.

2. The facts leading to the filing of
the writ petition is that an ex parte award
dated 3rd July, 1995 was passed by the
labour court directing reinstatement with
backwages. The petitioner, thereafter,
filed a recall application, which was
rejected by the labour court by an order
dated 06th August, 1997. The petitioner,
being aggrieved, filed a writ petition, in
which an interim order was passed staying
the award subject to deposit of 50 per cent
of the amount of the backwages before
the Registrar of this Court. Subsequently,
by an order dated 25th November, 2003,
the interim order was modified. Since this
order will have bearing on the ultimate
result of this petition, the order dated
25.11. 2003 is extracted here under:

".After hearing the Learned Counsel for
the parties and perusal of the record. I
consider it appropriate to direct petitioner to
allow opposite party No. 4 to join service
latest by 15th December, 2003. In case
respondent submits joining report to the
petitioner, petitioner shall take work from
here and pay salary month to month on due
date. Put up on 16th December, 2003.

3. Pursuant to this order, the
workman was reinstated. The writ petition
eventually was decided finally and was
allowed by a judgement dated 24th
February, 2005 and the award of the
labour
court
was
set
aside.