P. Subramonian Poti, J.
1. The petitioner was the Sub-Inspector of Police, Kasaba station, Calicut city. He has been transferred, as evidenced by Ext. P1, from Calicut Kasaba station to the Cannanore District and has further been directed to hand over charge and report compliance. That order was passed by the Deputy Inspector-General of Police, North Zone on the recommendation of the first respondent, the Revenue Divisional Officer, Calicut who has been appointed by the State Government to conduct an enquiry into certain alleged police excesses.
2. While the petitioner was the Sub-Inspector of Police at Calicut city, on 2-10-1971, pursuant to the information received in the control room where he was in charge, he went to a place where he was informed that trouble was brewing. According to him there was a highly militant group of people composed mainly of taxi drivers and it was seen that they were committing mischief by causing damages inside a hotel, Seeing the petitioner approaching with constables, it is the petitioner's case. the crowd got panicky and started running helter-skelter. It is his further case that in the city of Calicut the taxi owners and drivers have separate associations and they have political influence. It is stated that on the complaint of taxi drivers and taxi owners to the Home Minister of the State, the Government directed the Revenue Divisional Officer, Calicut to enquire into the alleged police excesses. Accordingly the first respondent was to hold such enquiry. According to the petitioner, the taxi drivers are said to have passed a resolution to the effect that they will not cooperate in the enquiry, unless the petitioner was transferred from Kozhikode to another district. It is said that telegrams to this effect were sent to the Home Minister, Inspector-General of Police and the Transport Minister. First respondent was also said to have been informed of this resolution. Thereupon, the first respondent is stated to have sent a D.O. letter to the 3rd respondent, the Superintendent of Police, asking him to transfer the petitioner. It is said that the transfer, Ext. P1, was pursuant to this request. The petitioner feels that he has been so transferred merely because of the influence of the taxi owners and taxi drivers and the petitioner apprehends that this move was not to establish the truth of the allegation in the enquiry, but really in implementation of their desire to have the petitioner away from the place. The complaint is that though apparently the order is only a transfer, it operates as a punishment and if it violates the rules relating to such transfer, the Court could interfere. ' How the order violates the relevant rule is also mentioned. Ext. P2, dated 4-4-1970, is produced as a copy of the relevant rule regulating the holding of the enquiry. For the purpose of this petition it is sufficient if T refer to paragraph 6 of the said Government order.
6. The enquiries by the Executive Magistrates shall be in camera and of a summary nature and shall be conducted in such a way as not to prejudice the investigation of the case by the police or its trial in Judicial Magistrate's Court. They shall not frame charges against the accused police officers. Enquiry by the Executive Magistrate is in the nature of a departmental enquiry and not a judicial one. The records of such enquiries are not public documents and so parties have no right to get copies thereof. Witnesses need not be examined in the presence of the delinquent officer. The complainant will ordinarily be given notice of the enquiry and a reasonable opportunity to prove his allegations.... The statements from witnesses will be taken. Wherever possible, the Executive Magistrate shall visit the place of alleged occurrence of incident immediately on receipt of the complaint, question the complainants and others (including police officers concerned) who may have information about the matter alleged and come to a finding as to whether there is a basis for the allegation. In the course of the enquiry if the enquiry officer is satisfied that there is a prima facie case against the accused police officer he may request the competent authority to suspend or transfer the delinquent officer and such request shall be complied with by that authority except for every special reasons to be reported to Government through the Inspector-General of Police.
The petitioner relies on the direction therein, that if the enquiry officer is satisfied that there is a prima facie case against the accused police officer be may request the competent authority to suspend or transfer the delinquent officer. It is said that if the police authorities are to act upon any request of the enquiry officer, the request must be upon the prima facie satisfaction by the enquiry officer. In this case the complaint is that even before the enquiry was commenced, the Revenue Divisional Officer made the request for transferring the petitioner and that for reasons extraneous to those contemplated in Ext. P2 Government order. It is, therefore, said that the order of transfer violates the rights of the petitioner and he is entitled to seek that the order be quashed.
3. Counter-affidavits have been filed by respondents 1 and 2. The second respondent seeks to justify the order of transfer on the ground that it was passed pursuant to the request made by the enquiry officer and, therefore, was proper under the relevant Government order Ext. P2. The first respondent in his counter-affidavit has explained the circumstances under which the transfer was requested by him. He admits that the request was made to him by the Taxi Owners' Association and Drivers' Union. But he would say that the request for transferring the petitioner was-
not because of any influence exerted on me by the aforesaid organisations but because I was also personally satisfied that for conducting a proper and fair enquiry into the matter it was highly desirable that the petitioner should not continue as Sub-Inspector of Police at Calicut pending enquiry into the allegations against him.
This is followed by a statement-
The request for transferring the petitioner was made by me after having been prima facie satisfied that there is a case against the petitioner.
If I accept this latter statement of the Revenue Divisional Officer, there is nothing more for This Court to consider as in that event there is no violation of the relevant rules and the order of transfer cannot be impugned by the petitioner. But the controversy is whether this statement of the first respondent could be said to be true in the light of the 1st respondent's file which was made available to me at the hearing.
4. It is seen from the said file that on 20-10-1971, two persons, one Sri A.P. Ramadas and another Sri M. J. Antony gave statements before the enquiry officer. The former was the secretary of the Taxi Drivers' Union, Calicut and the latter was the secretary of the Taxi Owners' Association, Calicut. In both these statements request was made fortransfer of the petitioner. In fact, in the statement of Sri M.J. Antony, he mentions that there are very many witnesses, who were eye-witnesses to the entire incidents, but he can furnish their names only if the Sub-Inspector was transferred away from Calicut. His statement further mentions that a separate petition demanding the transfer of the S.I. 'before the enquiry proper starts', was being made. A copy of the memorandum submitted by the association to the Home Minister also appears to have been submitted to the Revenue Divisional Officer. In the file I find that copy and I also find a letter, dated 20-10-1971, from the secretary of the Taxi Drivers' Union and secretary of the Taxi Owners' Association intimating the Revenue Divisional Officer that it is absolutely necessary that the S.I. should be immediately transferred 'before enquiry starts.' It is apparently after these statements were taken and the request for transfer received that the Revenue Divisional Officer wrote on the same day to the 3rd respondent requesting that the S,I. should be transferred immediately. It is pertinent to notice that reference is made in that letter to the latter of the Taxi Drivers' Union and the Taxi Owners' Association, dated 20-10-1971. That is the letter which requested that before the enquiry proper started the S.I. was to be transferred. After referring to the representations so made by the Taxi Drivers' Union and Taxi Owners' Association, mention is made that a copy of that letter is being enclosed with his letter and it is further stated:
I also feel that unless the S.I. is transferred to as distant a place as possible, I may not be able to get at the truth of the affairs.
5. It is evident from the letter, dated 20-10-1971, written by the first respondent to the 3rd respondent and the background of that letter as could be gathered from the file which I had occasion to peruse, that it was not on any satisfaction that there was a prima facie case against the petitioner that the request for transfer was made. The letter not only does not mention that as the reason, but states another reason namely, that the transfer of the petitioner was necessary to hold the enquiry properly. In fact he is seen to have acted on the representations made by the Taxi Drivers' Union and Taxi Owners' Association. I have no hesitation in finding that in the circumstances, on the records available, it will not be possible to say that the conditions required in Ext. P2 Government order to justify the request for a transfer were present when the request was made by the first respondent to the 3rd respondent.
6. In This Court, in the counter-affidavit, the first respondent has referred to all these circumstances. But he has further stated in para 3 of his counter-affidavit that he was prima facie satisfied that there was a case against the petitioner apparently to make it appear that his request was made in accordance with Ext. P2 Government order. This attempt appears to me to be dishonest.
7. Therefore, on the materials which are available to me, I have no hesitation in finding that the order was not in terms of Ext. P2 Government order. But this does not decide the controversy in this original petition. There is the further question whether This Court would be justified in interfering in this matter under Article 226 of the Constitution of India simply because the order of transfer passed by the second respondent is contrary to Ext. P2 Government Order. It is not as if any guarantee under Article 311 of the Constitution of India is infringed. If the violation is merely of an administrative order, the Court is not called upon to interfere unless it is shown that the order operates as a punishment. If such a punitive element is absent in the order, and the complaint is only one of violation of an administrative or executive direction This Court need not interfere under Article 226 of the Constitution of India unless it be further shown that there is mala fides in the passing of the order or that the order visits the party with evil consequences.
8. Pending enquiry into the alleged misconduct of a civil servant, it may be necessary in certain circumstances to transfer the civil servant concerned or to suspend him. Neither a transfer nor a suspension for such a purpose can be said to be a punishment enabling the Court to interfere on the ground that there has been any violation of the procedure prescribed by some administrative order in regard to such transfer or suspension. The Supreme, Court said in Government of India v. Tarak Nath Ghosh 1971-I L.L.J. 299 : (1971) 1 S.C.W.R.918, thus:
When serious allegations of misconduct are imputed against a member of a service normally it would not be desirable to allow him to continue in the post where he was functioning. If the disciplinary authority takes note of such allegations and is of opinion after some preliminary enquiries that the circumstances of the case justify further investigation to be made before definite charges can be framed, it would not be improper to remove the officer concerned from the sphere of his activity inasmuch as it may be necessary to find out facts from people working under him or look into papers, which are in his custody and it would be embarrassing and inopportune both for the officer concerned as well as to those whose duty it was to make the enquiry to do so while the officer was present at the spot. Such a situation can be avoided either by transferring the officer to some other place or by temporarily putting him out of action by making an order of suspension.
Therefore, merely because a person is transferred from his station pending an enquiry into charges against him, it cannot be said that the order visits him with evil consequences. Merely because an administrative direction has been violated, This Court will not invoke the jurisdiction under Article 226 of the Constitution of India, as held by the Supreme Court in C. J. Fernandez v. State of Mysore : 3SCR636 . In that case their Lordships were concerned with the violation of the rules of the P.W.D. Code, in the matter of inviting and accepting tenders. The Court held that notwithstanding the violation of the rules which had been laid down for the regulation of the conduct of the officers, the Court will not exercise jurisdiction under Article 226 of the Constitution of India.
9. It cannot be said that transfer, under no circumstances, would operate as a punitive measure. In fact, there are circumstances under which the Court may appropriately interfere when an officer has been transferred and the transfer involves an element of punishment. That will be so even if on the face of the order it is not apparent that it was by way of punishment that the transfer was effected. Whatever may be the cloak or disguise in the matter of the order of transfer, it will be open to the Court to go behind it, look into the background and appreciate all the circumstances which resulted in the order of transfer to determine whether, though apparently innocuous, it was really meant to impose the punishment on the officer concerned. What the Supreme Court said in the matter of punishments may equally well apply to a case of transfer by way of punishment. In State of Bihar v. S.B. Mishra 1970-II L.LJ. 440 : : (1970)IILLJ440SC , the Supreme Court said thus:
So far as we are aware no such rigid principle has ever been laid down by This Court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government officer it must be held to have been made in the ordinary course of administrative routine and the Court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment. The form of the order is not conclusive of its true nature and it might merely be a cloak or camouflage for an order founded on misconduct (see S.R. Tewari v. District Board, Agra and Anr. : (1964)ILLJ1SC . It may be that an order which is innocuous on the face and does not contain any imputation of misconduct is a circumstance or a piece of evidence for finding whether it was made by way of punishment or administrative routine. But the entirety of circumstances preceding or attendant on the impugned order must be examined and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.
10. Dealing with the right of the Government to transfer, Mathew, J., said in Abdul Khader v. Regional Dy. Director (1967) K.L.T. 354, thus:
If the transfer was intended or motived to operate as a punishment, I do not think the order can stand. In deciding the question as to what was the motive operating in the mind of the respondent, one has to look into the circumstances under which the order was passed.
The learned Judge relied on the following passage in Merricks and Anr. v. Nott-Bower and Ors. (1964) 2 W.L.R. 702, where Lord Denning, M.R. observed:
In the light of these regulations, the plaintiffs say that the power of transfer is only to be used as part of the administrative machinery of the force --so as to ensure efficiency. It cannot be used as a means of punishment. In their case, they say, the power of transfer was misused and abused. It was used as a disciplinary measure to punish them, and, by misusing it in this way, those in authority were able to by-pass all the disciplinary machinery so carefully set up to ensure a fair hearing. They were condemned and punished, they say, without being heard.
Such being the case made, I am not prepared to say that it is unarguable. It is a well-known principle of our law that any powers conferred by statute or regulation on an executive or administrative authority must be exercised in good faith for the purpose for which they are granted, They must not be misused or abused by being applied to an ulterior purpose. Whether that principle applies here or not, I do not say : all I do say is that if the plaintiffs allege, as they do, that this was a misuse of the power of transfer-that it was used, not for the purpose of good administration and efficiency but for the motive of punishment -- they have an arguable case which they are entitled to have tried by the Courts.
11. The result of the above discussion leads to the following conclusion. The order of transfer of a Government servant is ordinarily made for administrative reasons and merely because the order causes inconvenience to the Government servant concerned, it cannot be said that it visits him with evil consequences. But if the order is really intended as a punishment, though apparently it is innocuous, and on the face of it does not show that it has been passed as a punitive measure, the order would be bad, if there is a violation of any of the rules laid down in the matter relating to such transfer. It will be open to the Court to consider whether the order is vitiated either by mala fides or by non-compliance with the rules laid down or is violative of principles of natural justice.
12. The order passed by the 3rd respondent is pursuant to a recommendation made by the Revenue Divisional Officer who had been directed by the Government to enquire into the allegations of police excesses. Though he could not have been satisfied that there was a prima facie case against the petitioner at the time he recommended the petitioner's transfer the request for transfer was not made with a view to punish the Sub-Inspector and apparently it could not be said that the transfer was ordered by second respondent as a punishment. Therefore, though I find that the order Ext.Pl is not in accordance with Ext. P2, Government order, I do not think that interference by This Court is called for. No plea of mala fides has been urged or made out and, therefore, merely because of violation of an administrative order, This Court will not interfere under Article 226 of the Constitution of India.
13. But, before parting with this case, I must observe here that it is for the 2nd and 3rd respondents to take note of the fact that transfer of the petitioner is in violation of Ext. P2, Government order. The transfer is not on a prima facie satisfaction of a case against the petitioner, but because of other reasons which are not sufficient to enable the first respondent to seek the transfer of the petitioner in terms of Ext. P2, Government order. This will be duly taken note of by the second and third respondents and it is open to them to re-consider the order in the light of what I have said here. I also find from Ext. P2, Government Order, that except for very special reasons to be recorded in writing the enquiries by Executive Magistrates shall be completed and report submitted within 15 days at the latest. More than a month has passed since the first respondent is appointed to hold an enquiry and I am told that the enquiry has not progressed. This Court did not pass any interim order which would have disabled the first respondent from holding the enquiry. That the petitioner was on leave is not a ground for not holding the enquiry as the petitioner could have been directed, if his presence was necessary for the enquiry, to be present even if he is on leave.
14. A. The petitioner has sought to raise an additional ground by way of C.M.P. No. 13953 of 1971 and I have permitted that ground to be raised. Ext. P2 order is challenged by way of such additional ground. According to counsel, Ext. P2 Government order does not give any opportunity for the petitioner to cross-examine witnesses and to get copies when the enquiry is held in terms of Ext. P2. Necessarily, the enquiry is preliminary in character and at that time no question of affording opportunity to the petitioner arises. If authority for this is necessary, I need only refer to the decision of the Supreme Court in Government of India v. Tarak Nath Ghosh 1971-I L.L.J. 299 : (1971) I S.C.W.R. 918. Therefore, there is no substance in this contention.
15. In the result, I dismiss the original petition. In the circumstances, parties are directed to suffer costs in this original petition. A carbon copy of this judgment will be issued to the counsel for petitioner on payment of cost.