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K. Dhananjay Vs. Union of India, Represented by its Secretary and Others - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 51917 of 2016 (S-CAT)
Judge
AppellantK. Dhananjay
RespondentUnion of India, Represented by its Secretary and Others
Excerpt:
.....appearing for the petitioner. 3. the contention raised on behalf of the petitioner is that the so called enquiry on the basis of which the order for transfer came to be issued is without giving any opportunity of hearing to the petitioner. it was also submitted that the order can be said as in breach of principles of natural justice. learned counsel submitted that as the transfer order is by way of punishment, the tribunal ought to have interfere with. as the aforesaid aspect has not been properly considered, this court may consider in the present petition.4. we may at the outset record that though the prayer was by the petitioner before the tribunal to challenge the order dated 07.05.2004 (annexure-a9 in the proceeding of the tribunal) and the order dated 30.10.2014 (annexure-a14 in.....
Judgment:

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India Praying to quash The impugned order dated 14.09.2015 Passed in O.A. No.170/982/2015 by the Cat vide Annex-A for the Reasons it is Unilaterally and autocratically decided one Consequentially, Remand O.A.No.170/982/2015 Back to Cat For Fresh De-Novo Proceedings for Adjudication and Etc.

1. The present petition is directed against the order dated 14.09.2015 passed by the Tribunal whereby the Tribunal has declined to interfere and has imposed cost of Rs.10,000/-.

2. We have heard Sri. H.B. Uday Kumar, learned counsel appearing for the petitioner.

3. The contention raised on behalf of the petitioner is that the so called enquiry on the basis of which the order for transfer came to be issued is without giving any opportunity of hearing to the petitioner. It was also submitted that the order can be said as in breach of principles of natural justice. Learned counsel submitted that as the transfer order is by way of punishment, the Tribunal ought to have interfere with. As the aforesaid aspect has not been properly considered, this Court may consider in the present petition.4. We may at the outset record that though the prayer was by the petitioner before the Tribunal to challenge the order dated 07.05.2004 (Annexure-A9 in the proceeding of the Tribunal) and the order dated 30.10.2014 (Annexure-A14 in the proceeding before the Tribunal) and order dated 30.10.2014 in the proceeding before the Tribunal, the consequential prayer was made by the petitioner to direct the applicant to be posted at the original place (IIA-Koramangala, Bengaluru). The examination of the report further shows that there was complaint against the petitioner by another female fellow employee and base don that the preliminary enquiry was conducted. The report was submitted on 10.07.2014 on the basis of which the petitioner was transferred from Bengaluru to CREST campus, Hosakote. It is under these circumstances, the consequential prayer was made by the petitioner that the may be posted at the original place at Bengaluru.5. Be it recorded that the aforesaid order based on the so called preliminary enquiry has culminated into a mere transfer of the petitioner from Bengaluru to Hosakote. It is not a matter where any punishment for reduction of rank or curtailment of any monetary benefit has been passed as per the order dated 10.07.2014.

6. However, the contention of the learned counsel for the petitioner was that as the transfer is effected by way of punishment and he has not been given any opportunity of hearing, it would be a valid cause on the part of the petitioner to challenge the said transfer order.

7. In our view, even otherwise also the transfer is an incedent of service. If any administrative exigency has arisen on account of any complaint made against any employee and the authority has exercised the administrative power for transfer to a different place, it cannot be said that the order of transfer would have a character as that of the punishment. But we make it clear that based on the so called preliminary enquiry report or based on any subsequent orders passed other than the transfer order, if any disciplinary action is to be taken, the petitioner may resort to a separate remedy available in law and at that stage, the petitioner may agitate that the disciplinary action may not be taken or is taken in breach of principles of natural justice or otherwise. But that stage has uptil now not arisen in the proceedings before the Tribunal. 8. Other two orders mentioned in the prayer before the Tribunal are dated 30.10.2014 described as Annexures-A14 and A22. But when we called upon the learned counsel appearing for the petitioner to show the copy of the orders, the states that it is a typographical mistake and there is only one order dated 30.10.2014 was challenged before the Tribunal. If the aforesaid order is considered, it appears that the appeal was preferred by the petitioner against his transfer order. The Appellate Authority or the higher authority as per the said order dated 30.10.2014 (Annexure-A25 in the present compiliation) found that another campus of the institution at Hosakote is just, meaning thereby nearby. So far as other aspect is concerned, the authority has found that there is no merit in the appeal.

9. The aforesaid shows that the petitioner in the proceedings before the Tribunal was prosecuting the remedy against his transfer order and non acceptance of the appeal against the transfer order. Learned counsel for the petitioner declared that uptil now no disciplinary action is taken nor any proceedings are initiated for disciplinary action. Under these circumstances, we find that if the subject was based on the transfer order and if the transfer order is based on the so called complaint, atleast exercise of the power by the administration could not be said to be arbitrary.

10. In view of the above, we find that the ultimate decision taken by the Tribunal not to interfere with the order would not call for any interference. But we find it appropriate to clarify that in the event, any disciplinary action is initiated based on the so called enquiry report or on any observation made in exercise of the appellate power against the transfer order, the rights of the petitioner shall not be prejudiced in any manner for defending his case in accordance with law in such disciplinary action.

11. So far as the cost awarded by the Tribunal is concerned, we find that as such it is a discretionary order. The Tribunal found that the case was obnoxious and vexatious in nature. Hence, we do not find it appropriate to interfere with the said portion of the imposition of cost. 12. In view of the above, subject to the aforesaid observation no case is made out for interference. Hence, the petition is disposed of accordingly.


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