Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The High Court of Tripura found that there was strong a prima facie case that the petitioner’s employment transfer from one district to another was illegal. The petitioner had contended that the motivation for the employment transfer was retaliatory rather than administrative, on the ground that the order came immediately after her husband had published critical remarks in the newspaper regarding the inadequate COVID-19 facilities at the government hospital. While underlining the importance of freedom of speech and expression including the freedom of being critical of the public administration and authority, the judge noted that abrogation of freedom could also be indirect. Therefore, on the basis of above mentioned facts, the Court allowed her to discharge her duties at the original post and stayed the transfer order till the final disposal of the petition.
The petitioner was a constable who joined the police department in 2006. She had challenged the order dated September 15, 2020 by which she was transferred from her present place of posting at the Procurement Division in West Tripura, Agartala, to join the establishment of Superintendent of Police, Gomati district. She argued that the order of transfer was actuated by mala fides.
According to her, her husband was tested positive for COVID-19. He was admitted in AGMC and G.B.P Hospital, Agartala and treated as an admitted patient between August 20, 2020 to August 24, 2020. On September 13, 2020, an article published in “Dainik Sambad”, narrated the experience of the husband of the petitioner as a patient in the Government hospital. The husband of the petitioner had complained about the facilities and the treatment at the hospital during his stay.
The petitioner alleged that her husband was contacted by some influential people after the publication of the article. He was allegedly asked to publicly disown the statements published in his name in the newspaper, failing which there would be repercussions. However, the husband of the petitioner refused. Consequently on September 15, 2020, the petitioner was transferred and relieved from her present place of working without service of the transfer order.
The case was presided over by Mr. Akhil Kureshi, the Chief Justice of High Court of Tripura. The central issue for consideration was whether the petitioner was illegally transferred from one district to another due to her husband’s critical statements on the inadequate COVID-19 treatment and facilities in the government hospitals.
The petitioner contended that she was illegally transferred from her present place of posting to another on September 15, 2020 immediately after her husband published critical remarks in the newspaper regarding the facilities in the government hospital. She further contended that she was a volleyball player and had been playing in the State Police team. By mentioning this fact, she wanted to stress that all such sportspersons and athletes, in the police department, by way of policy had been posted at the same station of Agartala for several years so that they could regularly practice and participate in national games. The petitioner alleged that she was the only sportswoman who had been transferred outside the district [p. 3].
On the other hand, the respondent authority denied the allegations of mala fide transfer and stated that the petitioner holding a transferable post had a liability to serve anywhere in the State. He pointed out that the order of transfer dated September 15, 2020 referred to eight other staff members and not only the petitioner. The respondent authority relied on a number of Supreme Court decisions to contend that the transfers of government servants was a matter of administrative discretion, outside the ambit of writ jurisdiction exercised by the Court [p. 5].
The judge noted that a government servant holding a transferable post has transfer liability across the State and could not complain about such transfer if passed for administrative reasons. However, the facts of the present case required further consideration and minute examination. Firstly, the judge noted that the petitioner was transferred within 48 hours after the publication of the article by her husband [p. 8]. Secondly the judge observed that the petitioner prima facie appeared to be a sportsperson and as stated by the petitioner, such sportspersons ordinarily are retained at Agartala in the police department. Herein, he pointed that while a sportsperson doesn’t have any immunity from transfer, this would be a relevant factor while examining the allegations of mala fides made by the petitioner [p. 9].
The Court noted that the close proximity between the statement of the petitioner’s husband criticizing the government facilities and transfer was concerning [p. 10]. The judge would have discarded this theory of the transfer order being mala fide if the transfer proceedings had originated prior to September 13, 2020, however, he noted that the original transfer file did not contain any paper, proposal, background of the transfer of the petitioner earlier than September 15, 2020. He observed that the entire proposal of the transfer of the petitioner originated and culminated in the order of transfer on September 15, 2020 itself [p. 11].
Highlighting the importance of freedom of speech, the judge noted that, “the right of freedom of speech and expression would include the freedom of being critical of the public administration or authority. Abrogation of such right need not necessarily be always direct, it can also be indirect. Any inroad into such freedom howsoever stealthily made, and the constitutional court will step in.” The judge therefore opined that the above mentioned facts made a strong prima facie case in favor of the petitioner and therefore, he stayed the transfer order till the final disposal of the petition [p. 12].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judge expanded expression by observing that the right of freedom of speech and expression includes the freedom to be critical of the public administration or authority, and that abrogation of this freedom could be both direct as well as indirect. In the present case, the judge recognized this freedom of being critical of the public authorities and stayed the transfer order until the final disposal of the petition.
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