1. These two writ appeals are directed against the orders in W.P. Nos. 10089 and 10090 of 1983. The respondent in W.A. No. 244 of 1984 is K. Raman, Assistant Divisional Engineer in M.R.T. The respondent in W.A. No. 245 of 1984 is A. P. Ramasamy, Divisional Engineer in M.R.T. 'M.R.T.' is the abbreviation of Meter Relay Testing.
2. The short facts leading to the writ appeals are as follows :- A case of theft of electrical energy to the tune of Rs. 2,41,406/- at Messrs. Crystal Ice Factory, Guindy, Madras was noticed on 26th May, 1983. A complaint was lodged by the Chief Engineer (Personnel), Tamil Nadu Electricity Board, Madras with the police concerning this theft. The police initiated investigation. In the course of such investigation, meters with seals similar to those tested on 13th November, 1975, 11th November, 1975 and 12th March, 1976 were required by the police. That was with a view to cross-check with the seals concerned in the case of theft of energy. On 9th June, 1983, the Additional Superintendent of Police, Vigilance, Tamil Nadu Electricity Board addressed a letter to the Sub-Inspector of Police, Guindy, Madras with copies marked to Raman, the respondent in W.A. No. 244 of 1984. Inter alia, it was stated therein as to the modus operandi that could be adopted to trace the specimen seals. There was also a note to the said respondent as the sub-Inspector of Police, Guindy, in the manner set out therein. On 26th July, 1983 Raman wrote to the Vigilance Cell of the Board with a copy to Ramasamy, the respondent in W.A. No. 245 of 1984. In that letter it was stated that the concerned meters were not easily traceable. Difficulties even with regard to the tracing of test records were also pointed out in that letter. On 9th August, 1983, the Inspector General of Police and Chief Vigilance Officer of the Board wrote to the Superintending Engineer (Distribution), Madras Electricity System (South), Madras-2, complaining that the investigation was unnecessarily pending for want of co-operation from Raman. He further wanted instructions to be issued to Raman to trace the test records. This letter may now be extracted :
Copy of letter No. 10931/V.C. 10/83-5, dated 9th August, 1983, from the Inspector-General of Police & Vigilance Officer, Tamil Nadu Electricity Board, Madras-600 002, addressed to the Superintending Engineer (Distribution)/Madras Electricity System (South), Madras-600 002.
Sub : Theft of energy at Guindy - Industrial Estate - M/s. Crystal Ice Factory - Reg.
Ref : This office letter No. 10931/VC7/83-3, dated 28th June, 1983.
As already informed to you in the letter cited the case relating to Guindy Police Station, Crime No. 401/83 theft of energy to the tune of Rs. 2,41,406/- at M/s. Crystal Ice Factory, Guindy, is pending investigation unnecessarily for want of co-operation from the A.D.E./M.R.T./South. The meter Nos. (1) Remco 354768 (2) Remco 492551 and (3) 512019 concerned in these cases were tested on 13th November, 1975, 11th November, 1975 and 12th March, 1976 respectively. In his instructions dated 9th June, 1983 the Additional S.P. while giving instructions to the S.I. of Police/Guindy, marked a copy of the same to the A.D.E./M.R.T./South. In this case, the test record along with the specimen M.R.T. Seals and the meters concerned are most essential to prove the case. Unless the specimen M.R.T. seals are sent to the Forensic Science Lab. for comparison, the Police will not be able to come to a definite conclusion in the case and take further action. The A.D.E/M.R.T./South in his letter No. ADR/MR/S.F. 18/D. 615/83, dated 26th July, 1983 has addressed the Vigilance Cell and copy of the same is enclosed. It is not known as to why the A.D.E. wrote this letter to the Vigilance Cell when there were specific instructions from the Addl. S.P./Vigilance in connection with this case. In his letter he has stated that there were five sealing pliers out of which two were handed over to M.R.T./North during bifurcation and two other pairs were survey reported. He also reported that the five pliers were used one per day alternatively. Further he reports that the test record is under search and the name of the Tester could be traced only when the test record is traced. He will be asked to whom he entrusted the work to trace search records which is a permanent one. It is also not known why no action was taken for the past 1 1/2 years to have the record for production whenever required when it is a permanent record.
The A.D.E./M.R.T./South will be instructed to trace the test records without any further delay and also see that he should keep the specimen seals for all the five pliers reported to by him with reference to the test record. If he finds any difficulty in this connection he may be directed to meet the S.E./A.P.S. and the Addl. S.P./Vigilance and get instruction. On 20th August, 1983 Ramasamy gave instructions to all the Divisional Engineers to locate the meters tested on 13th November, 1975, 11th November, 1975 and 12th March, 1976, in their area and intimate to M.R.T. There was a conference of the concerned officials on that date, including Ramasamy. By a communication dated 20th August, 1983, Ramasamy specifically referred to the discussion held in the chamber of the chief Engineer on the day. A telex massage was also issued to all the Divisional Engineers by Ramasamy. On the very same day he wrote to the Superintending Engineer that as test records belonging to a period of more than 7 years were not traceable, the meter details, called for could not be supplied by M.R.T. A copy was marked to the Store-keeper for information and necessary action. On 23rd August, 1983, Ramasamy issued detailed instructions to Raman regarding the meters. Copies of the said instructions were marked to the Superintending Engineer and all Divisional Engineers, besides the Store-keeper. On 9th September, 1983 a note from the Superintending Engineer emanated stating that the Detective Inspector of Police, Guindy Police Station, had informed that he had seen the two meters seal on 11th November, 1975 and 12th March, 1976 by M.R.T. in the Meters Store of the Electricity System. Ramasamy was directed to hand over the meters to the Detective Sub-Inspector of Police, Guindy Police Station, on acknowledgement and to report the matter; on 9th September, 1983 another letter was written by the Superintending Engineer to the following effect :
TAMIL NADU ELECTRICITY BOARD
Office of the Superintending
Memo No. Se/D/MES/S/ST/F. Adm. /D. 332/83 dated 9.9.83.
Sub : Theft of energy at Crystal Ice Factory, Guindy - Specimen meters requested by Police - Visit of Sub-Inspector to check availability of certain meters non-availability of D.E./M.R.T. and M.D./M.R.T./regarding.
To-day 9th September, 1983 one Thiru M. John Rose, D.S.I./J3/Station, Guindy met me at about 12.00 O'clock regarding theft of energy at Crystal Ice Factory, Guindy. I asked my T.A. (General) to find out what information he wants regarding this theft. The T.A. (General) told me that the Sub-Inspector has identified two meters in M.R.T. Stores which will be good evidence in this theft of energy cases. I told T.A. (General) to contact D.E./M.R.T. and ask him to give facilities to the Sub-Inspector of Police in this regard. I was told that both D.E./M.R.T. and ADE/M.R.T. were not available. Nobody in M.R.T. were able to say where the Divisional Engineer and Assistant Divisional Engineer have gone. Since the Sub-Inspector of Police, cannot be waiting indefinitely, instructions were issued to the Store-keeper to spare the meters required by the Sub-Inspector of Police on acknowledgement in the presence of Junior Engineer, M.R.T. as witness.
2. Subsequently, I am to know that both Divisional Engineer/M.R.T. and Assistant Divisional Engineer/M.R.T. were aware that the Sub-Inspector had come to M.R.T. to cloose the meters. The Divisional Engineer/M.R.T. is already aware that he has been asked to gather all evidences in connection with this theft of energy by searching his record. He was asked in this office Endt. No TA 12/TE 16-83/TA.G. 16/83 dated 6th September, 1983 communicating C.V.O.'s Lr. No. 10931/VD. 10/83 dated 1st September, 1983 to send before 4 p.m. on 8th September, 1983 certain records. So far no report came. Knowing fully the importance and the purposes for which the Sub-Inspector has come to M.R.T. the D.E./M.R.T./should himself have brought the Sub-Inspector to me for discussion or given the evidence required by the police. He has done neither. But he has left the office without telling anybody where he is going etc.
The Divisional Engineer/M.R.T. is requested to explain why knowing the purpose for which the Sub-inspector has come he has neither assisted the Sub-Inspector nor the Superintending Engineer on this and left his office. The explanation should be submitted within 3 days from the date of receipt of this memo.
The Divisional Engineer/M.R.T. will also get the explanation of Thiru K. Raman, A.D.E./M.R.T. who I understand was also aware that the Sub-Inspector of Police has come.
In the meanwhile the Store-keeper handed over the meters found to the Sub-Inspector of Police, as per the instructions of the Superintending Engineer. This was duly informed to Ramasamy and Raman by his letter dated 12th September,. 1983. On 13th September, 1983 Raman issued a memo to the Store-keeper finding fault with him as to why he did not inform the handing over of the meters to the police. By a separate memo of even date, he also suspended the Store-keeper. On 14th September, 1983, Raman wrote to Ramasamy setting out certain facts and stating that the Store-keeper had least care in obeying the instructions of his immediate superior on a grave charge of theft of energy. On 16th September, 1983, Ramasamy wrote to the Superintending Engineer replying the latter's memo dated 9th September, 1983. In that he stated that he went to Mylapore Stores for an urgent work, as instructed by the Superintending Engineer, that he was not aware of the arrival of the Sub-Inspector or Police, that it was the Store-keeper who had wilfully suppressed the availability of the meters in question in the stores and that the Store-keeper had been suspended pending disciplinary action. On 20th September, 1983, the Junior Engineer, M.R.T. addressed a communication to Raman, referring to the earlier instructions directing him to verify whether any meter was available in the R.C. Section. The Junior Engineer stated that he verified and the particular meters were not available in the R.C. Section. On 26th September, 1983 there was a confidential report from the Superintending Engineer to the Regional Chief Engineer wherein it was suggested that a more detailed investigation and enquiry may be conducted by the Vigilance Cell of the Board. On 27th September, 1983, on a representation by the Store-keeper, the Superintending Engineer called upon Ramasamy to revoke the order of suspension of the Store-keeper, which would be without prejudice to the disciplinary proceedings. On 29th September, 1983, Ramasamy replied to the Superintending Engineer that it was inadvisable to revoke the order of suspension, and, if, however, the order of suspension were to be revoked, he might be given a posting elsewhere. On 1st October 1983, the suspension order was revoked by the Superintending Engineer. On 25th October, 1983, the Superintending Engineer wrote to Ramasamy referring to the tenor of his reply dated 29th September, 1983 and taking exception to the language employed in that letter. On the very same day the impugned orders of transfer came to be passed in those two cases and they are extracted below :
'Impugned order of transfer relating to Raman :
Thiru K. Raman, Assistant Divisional Engineer/Meter Relay Test/Madras Electricity System (Distribution) South is transferred as Assistant Divisional Engineer/Electrical/Shift/Kundah Power House V against an existing vacancy.
2. He is informed that he should join duty in the new station immediately on getting relief failing which necessary departmental action will be taken against him for disobeyal of orders.'
'Impugned order of transfer relating to Ramasamy :
The following transfers and postings of Divisional Engineers (Electrical) are ordered with immediate effect :
(1) Thiru A. P. Ramasamy, Divisional Engineer/MRT/Madras Electricity System/South is transferred and posted as Divisional Engineer/Micro Hydel, Office of the Superintending Engineer/Hydro Projects (Electrical) Madras vice Thiru V. V. Sampath transferred.
(2) Thiru V. V. Sampath EME/Office of the Superintending Engineer/Hydro Projects (Electrical), Madras is transferred and posted as Divisional Engineer/MRT/MES/South, Madras vice Thiru A. P. Ramasamy transferred.
2. Thiru A. P. Ramasamy and Thiru V. V. Sampath should take charge of their new posts immediately.'
3. It was under those circumstances the two writ petitions came to the field - W.P. No. 10089 of 1983 by Raman and W.P. No. 10090 of 1983 by A. P. Ramasamy - to quash the respective orders of transfer.
4. The specific ground that was taken in the affidavit by Raman may now be stated. It was contended that Raman was the Treasurer of the Tamil Nadu Electricity Board Engineers Association, Madras. By reason of Memo No. 108988/Admn. Rr/R-2(1)/82-1 dated 6th May, 1983, a clear exemption is contemplated as far as the officer-bearers of the Association are concerned with regard to transfer and such an exemption ought to have been granted to K. Raman, the respondent in W.A. No. 244 of 1984. However, an additional affidavit filed by Raman to the effect that he had been elected as Vice-Chairman of Madras South Branch of Tamil Nadu Electricity Board Engineers Association on 11th August, 1983 and that his jurisdiction extends only to Madras Electricity System, South and by the impugned order of his transfer from Madras to Kundah, Nilgiries District, he is disabled to function as such Vice-Chairman. This factum of election of K. Raman as Vice-Chairman is disputed in the counter-affidavit of the Board. The Electricity Board, after referring to the detection of the noticing of theft of energy on 26th May, 1983, stated that K. Raman was prima facie found to have committed misconduct and that disciplinary action was being initiated against him. It was further stated that in the meanwhile since Meter Relay Test is a sensitive branch in charge of metering in High Tension Services and Low Tension Services and as investigation has been in progress against the petitioner, it was not considered safe to allow him to continue in the same post, of Assistant Divisional Engineer/Meter Relay Test and he was transferred and posted as Assistant Divisional Engineer, Kundah power House - V, in the interest of administration, where there was a vacancy.
5. As far as Ramasamy is concerned, he also claims a similar exemption on the footing that he had been elected as the President of the Tamil Nadu Electricity Board Engineers Association in the years 1969 and 1970 and again in the years 1973, 1974 and 1979. In the year 1981 he had been elected as the General Secretary of the said association. On 9th October, 1983, he was again unanimously elected as the General Secretary of the above association and he took charge as such General Secretary on 9th October, 1983 itself. His contention is that by the impugned order of transfer, he is prevented from exercising his function as General Secretary of the Association. He has also filed an additional affidavit stating that he had been elected as Chairman of Madras South Branch of Tamil Nadu Electricity Board Engineers Association on 11th August, 1983 the jurisdiction of which extends only to Madras Electricity System, South and that by the impugned order of transfer he is disentitled to function as such Chairman and therefore the order of transfer is violative of Art. 19(1)(c) of the Constitution of India. In the counter-affidavit of the Board, it is stated in paragraph 8 as follows :
'The petitioner (Ramasamy) is prima facie found to have committed a misconduct and disciplinary action has been initiated against him. But, in the meanwhile, since Meter Relay Test Division is a sensitive Branch in charge of metering in High Tension Services and Low Tension Services and as an investigation is in progress against the petitioner it was not considered safe to allow him to continue in the same post of Divisional Engineer/Meter Relay Test; he was posted as Divisional Engineer in another office in the same campus in the interests of administration.'
6. The matter came to be dealt with by our learned brother Nainar Sundaram, J., and the learned Judge posed three points for consideration, namely, (1) Whether the transfer was violative of the rules (2) Whether the orders of transfer were tainted with mala fides and (3) Whether they were penal in nature After holding that these transfers are not periodical transfers and therefore they are not governed by the rules, the learned Judge proceeded to analyse whether they were tainted with mala fides. The learned Judge was of the view that the alleged misconduct was the very foundation of the orders of transfer, which were punitive in nature, in fact, skipping over the process of disciplinary proceedings. After so holding, the learned Judge came to the conclusion that even if the allegations of misconduct are only the motive for the transfer, yet, the facts and circumstances must warrant and justify the necessity and desirability for the order of transfer at a transitory stage before the initiation and completion of disciplinary proceedings. He was of the view that there must be justifying factors which must be disclosed to the Court for passing such an order of transfer. Unless and until it is made clear as to how and in what manner the presence of the respondents in these two appeals would hamper the proceedings of the investigation and it would be embarrassing and inopportune to retain the respondents in the present workspots and the situation needed avoidance of the same by transferring the respondents to some other workspots, the orders or transfer must be held to be hit by malice, in fact and in law. On these findings, the learned Judge allowed the writ petitions holding that the orders of transfer must be held to be tainted with malice in law and made the rules absolute. Hence, the Tamil Nadu Electricity Board had preferred these two appeals.
7. The learned Advocate General urges before us that transfer is a contingency of service. Any employer has full discretion to transfer his employees, depending upon the administrative exigencies. The finding of the learned Judge that justifying factors must be disclosed and materials in support thereof must be placed before the Court cannot be taken to lay down the correct law. Most of the cases relied on by the learned Judge except C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Madras and Others 1980 I L.L.J. 1 and N. Viswanathan v. Union of India and others : (1983)IILLJ36Mad did not deal with orders of transfer at all.' Therefore reliance on cases like suspension, termination from service or compulsory retirement is incorrect. In such cases, the services of an employee came to an end by orders of termination, compulsory retirement or suspension, as the case may be. In the present case, if transfer is an incidence of service, which is well recognised in law, the Court cannot say that unless and until the transfer is warranted due to administrative exigency, it cannot be upheld. This Court is not exercising administrative supervision over the affairs of the Electricity Board. Of course, it is true that if the transfer is tainted with mala fides, the Court can set aside the same. But in the present case, there is a specific misconduct alleged against the respondents in these writ appeals. How far that misconduct can be substantiated is not a matter which falls within the purview of this case. If there are allegations against the respondents and if transfer is resorted to both in order to avoid embarrassment to the employer as well as the employee, the Court cannot lay down a more stringent test than what is applicable in ordinary cases. Under these circumstances, the Court cannot call upon the Electricity Board to prove with materials that the presence of a particular officer will hamper the investigation by the Police. Such a test is totally unwarranted. After all, by the orders of transfer, nothing more is done than to remove the officers concerned from the particular workspots. It cannot be contended that it is penal in nature which penalty is sought to be imposed circumventing the disciplinary proceedings. Transfer is not one of the punishments, which can be imposed by way of disciplinary proceedings. Therefore, to say that by the orders of transfer the Electricity Board had by-passed the normal procedure of disciplinary proceedings is totally incorrect. In this connection, learned Advocate-General has cited R. K. Bhatnagar v. Union of India and another (1984) 1 All Ind LJ 261. The learned Judge has held that it is the misconduct which is the foundation of the orders of transfer. On the contrary, it has been explained in the counter-affidavit of the Electricity Board that prima facie the respondents in these appeals were found to have misconducted themselves, and the M.R.T. being a sensitive area, the continuous presence of the respondents may not be desirable and therefore the impugned orders came to be passed. Even assuming that the misconduct was the foundation of transfer, there is nothing wrong because it is the Electricity Board as the Master which knows how to administer its affairs. The ruling in C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Madras and others (supra), relied on by the learned Judge must be confined to the facts of the case and N. Viswanathan v. Union of India and others (supra), was a case of Victimisation. But in the present case there is no victimisation. Lastly, it is submitted that the affidavits merely stated that these persons were officer-bearers of certain Association. They are not recognised Associations. But the exemption which is applicable to recognised Associations was claimed by the respondents in the present case. The detection of theft of electrical energy took place as early as 26th May, 1983. The sequence of events will clearly show that the election of the respondents as officer-bearers has absolutely noting to do with the orders of transfer. The disconnection between the two has not been noted by the learned single Judge. For all these reasons, it is prayed that the order of the learned single Judge be set aside and the impugned orders of transfer be upheld.
8. Mr. P. Chidambaram, learned counsel for the respondents in these two appeals, urges that as to the propositions of law put forth by the learned Advocate-General, there can be no demur whatever and transfer is undoubtedly a part of the service. But the power of transfer if not honestly exercised by the Board would result in arbitrariness which will be violative of Art. 14 of the Constitution of India. That is the positive concept of equality clause enshrined in that article. The question is not, what impact an individual action would cause on the particular employee; on the other hand it is, whether the power of transfer has been honestly exercised for which it is intended. Looked at from that point of view, it is not an honest exercise of power at all. If an order of suspension or termination of services is passed by reason of dishonest exercise of power, this Court comes down upon such orders. Similar, should be the approach here as well. It is nobody's contention that 'transfer' is a penalty. But it is penal in character in so far as it disentitles the respondents in these appeals from exercising powers as officer-bearers of the respective Associations. If the management found the presence of the respondents irksome, on a flimsy charge of not assisting the Sub-Inspector of Police they cannot be transferred. It is not the case of the Electricity Board that these two respondents had anything to do with theft of energy. In the case of Ramasamy, at any rate, it has been categorically explained by him that he was not aware of the visit of the police officer and that it was only at the behest of the Superintending Engineer, he went away from his office. Therefore, to transfer him on the ground that he had misconducted himself in not co-operating with the investigation is nothing but a dishonest exercise of power. In S. P. Gupta and Others v. President of India and other : 2SCR365 , the principles relating to transfer have come to be laid down. These principles will equally be applicable, irrespective of the offices the respondents hold. The statement of law contained in paragraph 7 of the decision in C. Ramanathan v. Acting Zonal Managers, Food Corporation of India, Madras and Others (supra) is unexceptionable. Viewed in that light, the transfer in the present case is penal in nature. Equally the ratio in N. Viswanathan v. Union of India and Others (supra) would apply to the facts of this case. If therefore the order is the result of an unreasonable exercise of power, the Court can always set aside the said order, because in all cases of this character, irrespective of the nature of the order, if the power has been dishonestly exercised, the Court has always come to the rescue of the affected party. No doubt the learned Judge relied upon cases relating to suspension, reversion or termination of services, but the principles contained in those cases will equally apply to a case of transfer. This is also a case of malice, in law, because no action is taken against any officer other than the respondents in these appeals, though there is a hierarchy of officers. To add insult to injury, the order of suspension of the Store-keeper by Ramasamy was not only revoked, but the Store-keeper was restored to his original position retransferring him from Poonamallee to Madras. This act on the part of the Superintending Engineer and the later events will clearly show that it is a case of malice in law. Therefore, the learned Judge was right in holding that the orders of transfer are not only penal in nature but are also affected by malice in law. Thus, there is no warrant for interference.
9. One thing must be stated at the outset. This Court exercising powers under Art. 226 of the Constitution is not exercising administrative supervision of the affairs of the Electricity Board and the Board known how to administer its affairs. It cannot be gainsaid that transfer is an incidence of service. As the learned Judge himself has rightly put it, if it is a part of the conditions of service, it is not normally open to judicial review. It is equally true that if an order of transfer is maintained with mala fides or violative of certain well accepted norms or penal in nature, the Court can always find out whether such an order or transfer is mala fide, passed with ulterior motive or intended to achieve an object circumventing disciplinary proceedings. In this case we have set out the facts in detail. One thing that is very clear is the theft of electrical energy came to be noticed as early as 26th May, 1983. The letter of the Inspector-General of Police dated 9th August, 1983 which we have extracted in full complaints about lack of co-operation on the part of the officials concerned. Where, therefore, as stated by the Electricity Board, it was felt that the respondents were prima facie found to have committed misconduct and disciplinary action was initiated against them, it cannot be said that the basis of the orders of transfer was the misconduct, as such. We state so because, the assertion of the Board is that the Meter Relay Test is a sensitive branch which is in charge of metering in High Tension Services and Low Tension Services, that investigation is in progress against the respondents and that therefore it was not considered safe to allow them to continue in the same posts. Therefore we do not understand the stand of the Electricity Board as saying that it is the misconduct which is the foundation of the orders of transfer. We are afraid the learned Judge was very much influenced by the words as though the respondents herein were guilty of misconduct. After having extracted the relevant portion of the counter-affidavit, the learned Judge went on to hold that when the stand is expressed in the present case that the orders of transfer have come to be passed, taking note of certain alleged misconduct, then certain principles intervene and compel this Court to examine the matter to find out as to whether the alleged misconduct was the very foundation of the order of transfer so as make the order of transfer nothing but a guise for an order of punishment in fact, skipping over the process of disciplinary proceedings, as laid down by law. For our part, we are unable to appreciate this finding. What is the punishment which the Electricity Board might have imposed by resorting to disciplinary proceedings, which proceedings are circumvented by passing the order of transfer As rightly pointed out by the learned Advocate-General transfer is not one of the punishments contemplated under the rules by resorting to disciplinary proceedings. As a matter of fact, in every administration, day in and day out orders of transfer are passed on account of exigencies of administration. As to what such exigency is, we do not think that the authority passing the order must be called upon to explain to this Court. However, that is not to be confused with the situation where the order of transfer is actuated by mala fides. As to what would constitute mala fides we will deal with in the latter part of our Judgment. For aught one knows, allegations or complaints however baseless they may be, may constitute a cause for transfer, sometimes even the foundation for such transfer. After all, what is done by a transfer, which as stated above, is part of a contingency of service If the administration finds that having regard to the complaints or allegations it is better a particular officer is removed from the particular workspot, transfer is ordered. Beyond that it does not visit the officer concerned with any penalty whatever, penalty not in the sense of disciplinary proceedings but from the point of view of emoluments, rank or status. If that be the position in law, where then is the necessity for the full exposure of the justifying factors for transfer before the Court For our part, we are unable to see any necessity.
10. Ramankutty v. State of Kerala : (1972)IILLJ509Ker was a case of suspension B. Govindarajulu v. The Superintendent of Police, Salem (1982) I M.L.J. 117, was a case decided by one of us (Sathiadev, J.) and it dealt with a case of compulsory retirement. M. Renold Princely v. Government of Tamil Nadu : (1982)IILLJ342Mad decided by Padmanabhan, J. dealt with a case of termination. Then again in S. Balaiah v. Government of Tamil Nadu (W.A. No. 117/83 dated 8th August, 1983) one of us (Sathiadev, J.) constituting a Bench with Maheswaran, J. dealt with an order of reversion. These cases undoubtedly stand apart because the relationship of master and servant comes to an end - in the case of suspension, temporarily; in the case of reversion, with regard to the particular status; and in the case of termination there is a complete cessation of such relationship. Those cases cannot be of any avail. However, Mr. P. Chidambaram, would contend that the tests applied to find out whether the order of termination or reversion has been passed properly or not would be equally applicable to a case of transfer. The fallacy underlying this argument is, as though the transfer puts an end to the service. Here again, a word of caution is necessary. We are not stating that a dishonest exercise of power will be countenanced by the Court. On the contrary, it a power is given with a precondition that it shall be exercised honestly and fairly, certainly the Court expects the authority to so exercise. But that is far different from saying that the same tests as are applicable to termination, reversion and suspension etc., must be applied to a case of transfer as well. Therefore, we leave out such of those cases and deal with only two of the cases which have a bearing on the issue of transfer.
11. C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Madras and others (supra) dealt with transfer and in paragraph 7 of the decision, the following statement of law is found:
'Courts are chary to interfere with an order of transfer made for administrative reasons. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interests of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power by the concerned authority, is generally upheld by civil Courts, as Courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. But if in a given case, an order of transfer appears to be a deliberate attempt to by-pass all disciplinary machinery and offend the well known principle of audi alteram partem if ex facie it is clear that the order of transfer was not made for administrative reasons but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the real purpose behind the order of transfer. No doubt, a normal order of transfer can be misunderstood as a punitive measure. But, if the circumstances surrounding such an order leads to a reasonable inference by a well instructed mind, that such an order was made in the colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the Court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive or circumventing disciplinary action and, particularly when a civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Art. 311(2) of the Constitution of India.'
As rightly contended by Mr. Chidambaram, there can be no exception to the statement of law as such. But the more important question is, whether those principles can be applied to the facts of this case. We are unable to hold that any one of the above principles would apply to the facts of this particular case, in view of what we have stated above, namely, that the detection of theft took place as early as May 1983 and only as a sequel to that the orders of transfer came to be passed.
12. N. Viswanathan v. Union of India and others (supra) undoubtedly deals with a case of victimisation. We are not in a position to hold that the present case is one of victimisation. We have already referred to the stand of the Electricity Board that because Meter Relay Test is a sensitive branch and further there were allegations against the respondents, it became necessary for the Board to transfer them. If, under those exigencies, the transfers were resorted to, we cannot opine that it is a case of victimisation. Equally the fact that the Store-keeper was restored to his old position or that no action was taken against others is not a valid ground to test the correctness or otherwise of the orders of transfer. It is not that each one of them should be dealt with by way of transfer. It is entirely for the administration to consider how best to secure the investigation. With great respect to the learned Judge, we are unable to agree that unless and until it is made clear by the Electricity Board as to how and in what manner the presence of the respondents would hamper the proceedings of investigation and it would be embarrassing and inopportune to retain the respondents in the workspots and the situation needed avoidance of the same by transferring the respondents to some other workspots, the stand of the Board cannot be accepted. Equally we are unable to agree with the finding of the learned Judge that it must be made out as to how the presence of the servants would in any manner bring about a stifling of the investigation. Supposing there are some complaints about particular employees, but they are not subject to investigation, how can this test be applied Again, if this test were to be insisted upon, the case of the employer becomes all the more difficult, because in an ordinary case even out of turn, an employee can be transferred, but in a case where an investigation is pending, the employer is required to justify that the presence of the employee at the particular workspot would be a hindrance to investigation. That certainly is reading too much into the orders of transfer. It is worthwhile to remember that no employee has a right to work in a particular place.
13. We have already stated that any power granted to an authority must be exercised honestly and fairly. We cannot avoid the temptation of quoting Ameer Ali, Ag. C.J. In re Banwarilal Roy wherein the learned Judge said :
'... If a new and sharp axe presented by Father Washington (the Legislature) to young George (the statutory authority) to cut timber from the father's compound is tried on the father's favourite apple tree an abuse of power is clearly committed. It may be added that if young George goes out of the compound and cuts down even timber, let alone other trees, on the neighbour's plots the situation is obviously different. The difference between an abuse of power and an exercise of power is thus theoretically very distinct in operation and effect.'
(Extracted from 'Cases and Materials on Administrative Law in India', Vol. I, p. 638) Decided in that light, we are unable to persuade ourselves to hold that there has been any improper exercise of power or unreasonable exercise of power.
14. With this, we go on to the question of malice in law. What is malice The word 'malice' means ill-will, spite, disposition to injure others. It is derived from the Latin word malitia meaning ill-will. In law, mala fides has its own meaning. Mala fides does not necessarily involve malicious intentions. It is enough, if the aggrieved party establishes (1) that the authority making the impugned order did not apply its mind at all to the matter in question, or (2) that the impugned order was made for a purpose or upon a ground other than what is mentioned on the face of the order. Neither the two tests is satisfied in the present case. Of course, the learned Judge relying on his own decision in R. Padmanabhan v. The State of Tamil Nadu (W.P. No. 3022 of 1983 - Order dated 27th January, 1984), which dealt with a case of suspension pending enquiry, held that it will equally apply to a case of transfer. This finding ignores the vital distinction between the effect of transfer and suspension. Oil and Natural Gas Commission v. Md. S. Iskander Ali : (1980)IILLJ155SC , was a case of termination simpliciter. The Government of India v. Tarak Nath : (1971)ILLJ299SC , the Supreme Court in paragraph 8 thereof observed :
'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 in as much 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 embarassing and inopporoune both for the officer concerned as well as to these 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.'
No doubt this case dealt with an order of suspension, but what exactly is contemplated by an order of transfer has been succinctly set out. Even looked at in the light of the subsequent events, namely, by an order dated 28th October, 1983 the Superintending Engineer retransferred the Storekeeper from Poonamallee to Madras, by a memo dated 31st October, 1983 Raman was called upon to explain and he offered his explanation on 7th November, 1983, we are unable to hold that there is malice in law.
15. We are not called upon to decide whether the transfers are against statutory rules or not, because no argument was advanced by the respondents on that aspect, which was held against them by the learned Judge.
16. For these reasons we set aside the judgment of the learned Judge in W.P. Nos. 10089 and 10090 of 1983 and uphold the orders of transfer. Accordingly, the writ appeals are allowed and the writ petitions are dismissed. There will be no order as to costs.