Freedom Of Speech & Expression Includes Freedom Of Being Critical Of Public Administration Or Authority: Tripura High Court [Read Order]

The Bench of Chief Justice Akil Kureshi further observed that "any inroad into such freedom howsoever stealthily made, constitutional court will step in".

Matter before the Court

The petition was filed by a woman constable challenging the order of her transfer dated 15th September, 2020 by which she was transferred from her present place of posting of Procurement Division in West Tripura, Agartala, to join the establishment of Superintendent of Police, Gomati.

In the petition, she made detailed averments alleging mala fides on part of the administration in passing the said order.

Her main ground was that on 13th September, 2020, her husband (an advocate) is reported to have made statements critical of the Government hospital facilities where he was admitted as a COVID patient.

As a result, it was alleged, the petitioner by way of punishment was transferred from her present place of working immediately on 15th September, 2020

In the rejoinder, the petitioner further averred that she is a sportsperson and represents Tripura Police in valuable events nationally.

According to her, the athletes and sportspersons are almost invariably kept at Agartala. This, according to her, was one more ground to establish mala fides.

On the other hand, the Government Advocate Mr. Debalaya Bhattacharjee, opposed the petition contending this was her first transfer and as a person holding a transferable post, she had a liability to serve anywhere in the State.

He pointed out that the order of transfer dated 15th September, 2020 was not passed only against the petitioner but 8 other staff members are also transferred to various places.

Court's observations

The Court was of the view that it was undoubtedly true that a Government servant holding transferable post and who has transfer liability across the State cannot lightly complain about such transfer which is otherwise passed for administrative reasons.

However, the Court said, the facts of the case require further consideration and minute examination. Hence, Rule, returnable for 18th December, 2020

The Court noted that on 15th September, 2020 that is barely 48 hours after the publication in the newspaper, the petitioner was transferred.

The Court further noted,

"The petitioner has made serious allegations why the order of transfer is not based on the requirement of the administration but because her husband was critical of the facilities at the Government hospital, which statement he refused to withdraw."

The Court recorded that it was acutely concerned about the order of transfer being passed in close proximity to the statement of the husband of the petitioner criticizing the Government facilities being published in the newspaper.

The Court perused the original transfer file, and noted that it contained no paper, no proposal, no background of the transfer of the petitioner earlier than 15th September, 2020.

In this context, the Court noted,

"It can thus be seen that the entire proposal of the transfer of the petitioner originated and culminated into the order of transfer on 15th September, 2020 itself. Proposal for this transfer, therefore, does not date back to a period prior to 13th September, 2020"

The Court observed that all these aspects made out a strong prima facie case in favour of the petitioner for staying the order of transfer.

"The close proximity between the publication of the statement of the husband of the petitioner criticizing Government hospital facilities and the order of transfer of the petitioner would persuade me to stay the same till the final disposal of the petition", remarked the Court.