- (1.) PALOK Basu, J. Dayanand Misra, petitioner has filed this writ petition under Article 226 of the Constitution of India praying:- (a) certiorari to quash the order of transfer dated 10th May, 1996, enforced with effect from 15th May, 1996. (b) mandamus commanding the respondents to let the petitioner continue at Ghaziabad as police officer. (c) any other writ.
(2.) WHEN the writ petition was filed on 17-5-1996 a Division Bench called counter-affidavit and stayed the transfer order for a period of four months. In the meantime, counter-affidavits have been filed on behalf of the opposite parties one of which is the State of Uttar Pradesh and the other three are the police officials. Rejoinder affidavit has also been filed and the interim order was extended from time to time. As prayed the writ petition is being heard and finally decided at the admission stage. Before going into the respective ar guments it may be mentioned here that any observation occurring in thisjudgmentshall be confined to the decision of this writ peti tion and shall not be used by either party in proceedings to follow. Shri L. P. Naithani learned senior Advocate assisted by Shri M. M. Ghildyal has been heard at substantial length in support of this writ petition and in opposition Shri S. G. Hasnain, learned Ad ditional Chief Standing Counsel has been heard and the entire record has been ex amined. It was vehemently argued by Shri Naithani that the present transfer order is based on malafides and arbitrary exercise of jurisdiction. In this connection he relied upon certain averments made in the two counter-affidavits as well as the averments made by the petitioner in the writ petition and rejoinder affidavit. Reliance was also placed on a decision of a Division Bench, reported in 1992 ALR page 376 and 1994 SCC page 666. While advancing the said arguments it was contended that the petitioner was not doing duty at Modi Nagar police station when the alleged incident had happened because he had been called away from that station to Ghaziabad in connec tion with some other incident in which some police personnel had sustained injuries. An-nexure 2 to the writ petition was also cited which happens to be the letter of one of the police official to the other certifying that the petitioner was not at police station Modi Nagar and therefore it was recommended that petitioner's representation be sym pathetically considered by which he had prayed cancellation of the proposed trans fer order.
(3.) SHRI Hasnain on the other hand has said that the State Government had passed the order of transfer against the petitioner beingprima facie of the view that the allega tions made against seven officials of the police department who were then posted in Modi Nagar Police Station has to be proceeded with departmentally and, there fore, in order that a fair enquiry takes place, the petitioner was transferred. Having noted the respective argu ments a mention must be made of the type of allegations which exist against the police officials then posted at Police Station Modi Nagar. The allegations are made by the offi cials of the Income Tax Department that even though those officials had requested police help while conducting raids on cer tain persons the police intentionally did not extend help with the result that the Income lax officials came to be physically assaulted. Prima facie therefore, if the allegations were found enough for instituting the departmental proceedings, the transfer order against the petitioner cannot be said to be suffering from any mala fide what soever.;