LexSOMESH TIWARI versus UNION OF INDIA AND ORS.
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[2008] 17 S.C.R. 711 SOMESH TIWARI A .,. v. UNION OF INDIA AND ORS. (Civil Appeal No. 7308 of 2008) DECEMBER 16, 2008 B [S.B. SINHA AND CYRIAC JOSPEH, JJ.] ' Service Law - Transfer order - Nature of - Held: Is an ) administrative order - Employer is entitled to pass such order in administrative exigencies - It should be interfered with only c when malafide on part of Authority is proved - Transfer order in lieu of punishment is liable to be set aside when wholly illegal - On facts, order transferring officer to harsh station even though allegations made against him found to be untrue, malafide - Subsequent modified transfer order passed in D administrative exigencies also suffered from non-application -j., of mind - Officer did not join his new place of posting and also conduct of Authorities was wholly unwarranted and - reprehensible - In the interest of justice, order of High Court that officer would not be entitled to salary for the period fifteen E days after passing of modified transfer order till he joins his duty at original place, modified - Officer to be treated on leave during the said period. Appellant was posted as a Deputy Commissioner at Bhopal. Anonymous complaint was filed against him F alleging caste-bias on his part. Enquiry was conducted. --1 -- Allegations made against the appellant were found to be untrue but he was transferred to Shillong. He filed representation for retaining him but the Department did not act on it. Appellant filed application. Tribunal directed I respondent No.2 to dispose of the representation of the G appellant. Respondent No.2 rejected the representation. --.;.._ Another representation was also rejected. Appellant then filed original application. During pendency, respondents .. passed order of transferring/posting on administrative 711 H .. 712 SUPREME COURT REPORTS [2008] 17 S.C.R. A consideration. Appellant was transferred from Shillong to Ahmedabad. However, appellant did not report for duty .. at Ahmedabad. He challenged the earlier order of transfer. .·:,> Tribunal held thaLthe respondent did not commit any illegality or irregularity while passing the modified transfer B orders. Appellant filed writ petition. High Court passed interim order that for the time no disciplinary action would be taken against the appellant. It passed a final order that the order of transfer could not be passed on the basis of ' an anonymous complaint alleging caste-bias against ..,. c appellant, which on enquiry were found to be incorrect, and quashed the order of transfer of the appellant-from Bhopal to Ahmedabad. High Court directed that the appellant would "not be entitled to salary for the period commencing fifteen days after the modified order of transfer to Ahmedabad till the date he again joined his D duties at the .original place. Hence the present appeal. Partly allowing the appeal, the Court A- ., HELD: 1.1. Ai, order of transfer is an administrative order. There cannot be any doubt whatsoever that E transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice "',.. in law as it was not based on any factor germane for F passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant -,.. in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order_ of transfer in administrative exigencies but it is another thing to say G that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being ~ wholly illegal. [Paras 19 and 20] [721-E-G] 1.2. An enquiry was initiated against the appellant in ..... H terms of the allegations. contained in an anonymous ~ ..- SOMESH TIWARI v. UNION OF INDIA AND ORS. 713 letter. Having regard to the directives of the Central A " Vigilance Commission, no enquiry could have been 4 initiated against him but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue. Despite the same not only an order of transfer was passed but to a station, which, according to the B .respondents themsel
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