Calcutta High Court
S.V. Singh vs Union Of India (Uoi) on 15 June, 1987
Equivalent citations: (1987)0CALLT535(HC), 92CWN276
Author: Umesh Chandra Banerjee
Bench: Umesh Chandra Banerjee
JUDGMENT Umesh Chandra Banerjee, J.
1. It is now well settled that the Writ Court would not normally interfere with the orders of transfer, since the High Court exercising powers under Article 226 of the Constitution cannot assume the role of an administrative supervisor in regard to the affairs of a concerned organisation. But this cannot have an universal application and it depends upon the facts and circumstances of each case. The managerial function to transfer cannot and ought not to be regarded as a prerogative without any just cause. If the transfer order is tainted with malice or is violative of well-accepted norms or it is penal in nature, the writ Court shall be within its jurisdiction to enquire into the charge of malice and if found substantiated can set right the wrong and to set right of wrong is a plain exercise of judicial powers and there ought not to be any hesitation in that regard.
2. The Madras High Court in the case of C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Madras and Ors. reported in 1980 1 L.L.J. page 1 observed :
"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 powers 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 organisation. But if in a given case, as order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alteram partem if . ex jade 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 rival 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 civil servant is involved, to avoid the stringent but mandatory procedure prescribed in Article 311(2) of the Constitution of India."
3. The High Court, therefore, in exercise of its power under Article 226 of the Constitution is required to investigate as to whether the order of transfer is tainted with malice or motive or can be termed to be an order for administrative, exigencies. It is, therefore, to be seen as to whether the order of transfer can. be termed to be an act contrary to law in the facts of the case under consideration.
4. At this juncture, therefore, it is required to briefly refer to the facts before proceeding with the matter any further.
5. The petitioner was directly recruited in the post of Assistant Security Officer, Railway Protection Force in 1969 by the Union Public Service Commission and subsequently from time to time the petitioner was transferred from one place to another on a higher rank and in May 1975 the petitioner was transferred to Bilaspur as a Security Officer but in November 1982 the petitioner was further transferred to Garden Reach being the Headquarters of the South Eastern Railway as a senior Commandant. From Garden Reach the petitioner was transferred in 1983 as a senior Commandant and after completion of five months of his stay at Garden Reach again to Kharagpur. After about two years, the petitioner was however again transferred from Kharagpur Division to Garden Reach in the same capacity. Subsequently, the petitioner was transferred from Garden Reach to North Frontier Railway at Maligaon in December, 1986. It is this order of transfer which is under challenge mainly on the ground that there was neither any administrative exigencies, nor any public interest, but the said order was passed by way of a colourable exercise of power and to protect the vested interest of the administration. The petitioner further contended that the transfer order was passed as a measure of punishment on the basis of complaint of the superior officer and on the basis of adverse remarks recorded in the annual confidential report. The petitioner contended that recording of the confidential report has been effected by his immediate superior officer by reason of petitioner's complaint for eradication of corruption and illegal financial gain. The petitioner's definite case is against the Inspector General of the Railway Protection Force, South Eastern Railway at Garden Reach and in course of submission Mr. Bose pointedly argued that spite and ill-will of the Inspector General has resulted the order of transfer being issued by the Director General, Railway Protection Force. At this juncture, it is, however, interesting to note that the petitioner made a representation dated 2nd of July 1987 to the following effect:
"May I, therefore, request your goodself to kindly consider my case sympathetically and hold me at my present place of posting till the end of scholastic session, that is, April 1987 in the interest of my children's education. I assure you, Sir, that by 3rd week of April, immediately after the examination of my children, I will positively move and carry out my transfer order to N. F. Railway".
6. It is to be noted, therefore, that at the first blash the order of transfer was accepted with good grace without a protest about the machination of the Inspector-General, Railway Protection Force to bring about the transfer order, but the only prayer which has been made is for the purpose of protection of the education of the children of the petitioner and prayed for keeping the transfer order in abeyance till April 1987.
7. As a matter of fact, this writ petition was moved on 14th January 1987 upon notice to the respondent-authority, but since no-one appeared for the respondent-authority, this Court disposed of the writ application with a direction to keep the transfer order in abeyance till the end of April 1987. Subsequently, however, the matter was mentioned and on 16th January 1987 the order passed on 14th January 1987 was kept in abeyance untill the further orders of this Court with a further direction that status quo as of date viz., that of 16th January 1987 to continue and thereafter on diverse dates the matter was heard upon completion of the affidavits. This aspect of the matter need not have been dealt with but by reason of the fact that the petitioner made such a representation and this Court passed the order and the petitioner accepted the order would only go to show the seriousness of the allegations and the state of mind of the petitioner at that stage. In any event, it is to be noted that the order under challenge was passed not by the Inspector-General of the Railway Protection Force, South Eastern Railway by himself but on the recommendation of the Director-General of the Railway Protection Force. The records produced before this Court corroborates such a state. Recording of adverse remarks and the machination of the Inspector-General has said to be the principal ground of transfer of the petitioner. For some reason or other, the Director General as appears from the records of the pleadings did not approve the language used in the representation against the adverse remark by the petitioner. The Director-General as a matter of fact sent a note to the Secretary of the Railway Board to the following effect :
"I am surprised at the intemperate crude and abusive language used in this representation. I do not know railway procedure in such matters but in police, if intemperate language is used, the officer is suspended and chargesheeted".
The Director-General further recorded in another note :
"While disrespectful or improper language should not be used by any Government servant while putting up a representation, it is more important for a person belonging to a disciplined force like R. P. F. to abide by the Government Rules and when such a member disobeys, prompt and firm action needs to be taken to make it an example before the whole force".
8. The Director-General in the same note reproduced Rule 21(2) of the Railway Service Discipline & Appeal Rules, 1968 and added :
It would thus be seen that indiscreet language can be a cause in itself for rejection of an appeal. Under Conduct Rule 3 one shall not do anything unbecoming of a Government Servant. Use of disrespectful, abusive, un-parliamentary language is a violation of this Rule even if it has been used in a representation, petition, reply to any show cause or any other official communication."
In fine, the Director-General recommended on 22nd September 1986 :
"This officer be transferred out of S. E. Railway, chargesheet be issued to him for such unbecoming conduct and DAR proceeding started after suspending the officer. The representation deserves summary rejection for use of importer language".
9. Subsequently on the factual aspect the Secretary of the Railway Board considered the matter and informed the Director-General that since there is no vacancy, the petitioner can be moved to N.F. Railway where the vacancy exists.
10. Dr. Pal appearing for the petitioner made strenuous effort to impress upon the Court in regard to the issue of adverse remark but I am afraid since the subject matter of the writ petition is on an entirely different issue, this Court need not dilate on the issue of adverse remark and the communication thereof neither the writ petition proceeded on that basis. The petitioner's main grievance is that the order of transfer has been obtained by the Inspector-General by reason of petitioner's effort to bring into the light the hidden corruption and the, entire petition proceeds on the charge of malice so far as the Inspector-General of the Railway Protection Force is concerned. The Director-General was not at all involved, neither the Secretary of the Railway Board which has been high-lighted by Mr. Mukherjee appearing for the respondent-authority. It was submitted that no motive can be ascribed against the Director-General or the Secretary who is responsible for the issue of the order of transfer against the writ petitioner to the N. F. Railway. I am, however, unable to accept the contention of Mr. Mukherjee that simply because of the fact that the petitioner does not proceed against a particular officer, that does not preclude him if on a subsequent disclosure to agitate before the Court the machination of another officer. As noted above, the writ Court can even crack the shell to see for itself as regards the factual aspect as to whether there was in fact any malice or mala-fide move on the disclosure of documents by the parties. The documents disclosed by the respondent-authorities were not available with the petitioner at the time of presentation of the writ application. As such, the petitioner could not have any in-depth study of the entire matter, but the Court would not hesitate to go into the matter upon consideration of the records placed before the Court.
11. The issue, therefore, is to be seen whether 'malice' can be attributed to the Inspector-General or to the Director-General or to the Secretary of the Railway Board in transferring the petitioner from South Eastern Railway, Garden Reach to N. F. Railway.
12. 'Malice' in 'common English Parlance means, 'spite or ill-will'. In Bromage v. Prosser (1825), 4B & C 247 Bayley J. observed ; "Malice in common acceptation means, ill-will against a person but in its legal sense, it means, a wrongful act done intentionally without just cause or excuse". Erie C. J. in Turnbull v. Bird (1861), 2 F & F 508 observed : "that the word 'malice' in law means, any corrupt motive, any wrong motive or any departure from duty". Gramption J. in Hall v. Semple (1862) 3 F & F 357 stated that 'malice' does not mean merely 'spite' but improper motive and to do or against another in doing what one knows to be wrong and wicked is to act maliciously. The Australian Court has also stated that 'malice' is an ambiguous term in" its general colloquial significance. It means, 'spite or ill-will' and in law it may have that meaning as well as several others--one of which is a wrongful act done intentionally (Luctich v. Walton (1960) War 109). Jowitt in his Dictionary of English Law describes 'malice' as a firmed design of doing mischief to another. It is either express or implied. As regards, 'implied malice', it is stated that when negligence reaches a certain point, it is a same as intentional wrong.
13. From the above exposition of law and the meaning ascribed to the expression 'malice', it appears that a definite motive would be a necessary ingredient to bring home the charge of malice against a person. Surrounding circumstances ought also to be taken in order to ascribe such a motive. Chain of events taken together would have to be considered and if the resultant effect of which affects the right, the Court may ascribe malice and proceed accordingly.
14. The issue, therefore, is to be seen as to whether any motive can be ascribed to the order of transfer issued against the petitioner. The Director-General is in charge of the affairs of the Railway Protection Force and as such, authority has taken a very serious note of the language used by the petitioner. As a matter of fact, in his first note to the Secretary of the Railway Board, he categorically writes "I do not know railway procedure in such matters but in police, if intemperate language is used, the officer is suspended and chargesheeted", and on that ground rejected the appeal against adverse remark and it is on 22nd September 1986 the Director-General recommended the order of transfer to South Eastern Railway : Why this order of transfer ? Couldn't there be any disciplinary action taken against the petitioner on this Court ? There is no evidence that any disciplinary proceeding has been initiated against the petitioner--could not the Director-General pass an order of suspension ?--If it was thought of to be so un-parliamentary considering the member of a disciplined force ? : instead however an order of transfer has been issued. Can it be said to be a mere administrative exigencies of the situation or for purpose other than the same ? Can an order of transfer be said to sub-serve the ends of justice on these state of facts or when the Director-General himself was convinced that the person being an officer in disciplined force ought not to have used such an intemperate language and ought to be placed under suspension ? The Law Court would no doubt curb the authority of the Director-General of Railway Protection Force in the matter of suspending an officer, if in his opinion the concerned officer has acted in a manner detrimental to the force discipline,
15. Mr. Mukherjee appearing for the respondent authority submitted that two officers are involved in maligning each other and the Director-General thought it fit to remove a man for administrative reasons and as such, question of transfer order being tainted with malice or motive would not arise. I am, however, unable to accept the contention of Mr. Mukherjee. Transfer of one officer cannot said to be alternative when two officers are fighting. It is the responsibility of the Director-General to find out as to who is responsible for the same and to take such steps as the law enjoins. Removal of one person from the place and allowing the other to continue cannot be a solution or be termed to be a fair Governmental action. As a matter of fact, the action, as in the present case, negates fairness. Is it because of the fact that the administration has come to realise that, the charges may not be substantiated by reason where for this order of transfer was passed ? If the conduct of an Officer falls short of the required standard, it is open to the authority concerned to take such step or steps as is admissible under the law but not an order of transfer when the administrative exigencies do not require the same. On the factual aspect it further appears that as a matter of fact there was no vacancy and a vacancy was sought to be created in order to give effect to the order of transfer. Can, it be said to be a justifiable one and for administrative purpose ? In my view, the answer ought to be in the negative. The Secretary of the Railway Board categorically stated that transfer of the petitioner at this juncture would be administratively in opportune but the concerned authority thought it fit to effect the order of transfer-even though it was administratively in-opportune at the relevant time as opined by the Secretary. While it is true that transfer is an incidence of the service of the petitioner but that does not mean and imply that the same be applied without any just cause or reason. There must be cognet administrative reasons for such an order of transfer, in the absence of which the Law Courts will strike down the same. It is a powerful weapon in the hands of the administration, but that does not clothe the administration to use it at rendum and to suit the convenience of some. It must be fair, reasonable and as for administrative reasons. As noted above, it ought not to be used as an alternative to disciplinary proceedings or the order of suspension. If the facts warrant issuance of an order of suspension and initiation of a disciplinary proceeding, the authority ought not to use the strong weapon in its hand by ordering a transfer in lieu thereof and if the Law Courts permit such an action, it cannot but lead to a social catastrophe.
16. As noted above, the Director-General is in over-all charge of the entire Railway Protection Force and if in his views or opinion the language used by the petitioner in his representation is not in consonance with the conduct of an officer of a disciplined force, transfer of the concerned officer cannot said to be the answer thereto. This is more so by reason of the fact that the Director-General himself recorded that the conduct warranted initiation of disciplinary proceeding and suspension. Transfer for collateral purposes cannot be had and in the event there being any such order of transfer, Law Courts would be within its jurisdiction to strike it down.
17. The Supreme Court in Royappa's case (E.P. Royappa v. State of Tamilnadu ) observed :
"We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to, the post of Officer on special duty was arbitrary, hostile and in mala fide exercise of power. What was the operative reason for such transfer : Was it the exigencies of public administration or extra administrative considerations having no reliance to the question of transfer ? Was the transfer to the post of Deputy Chairman or Officer on special duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons ? These are the questions which fall for our consideration. In my view, the order of transfer in the facts of the case cannot be termed to be an exigency of public administration but for extra administrative consideration and the order of transfer has been passed for purpose other than the administrative exigency."
18. As noted above, the petitioner is liable to be transferred anywhere in India being a condition of petitioner's service. But in my view, no sufficient ground exists for transfer of the petitioner in the facts and circumstances of this case. This view finds support from the decision of this Court in the case of Mukul Mitra v. Union of India reported in 1982(2) CHN. 157.
19. The observation of Khalid J. in the case of............ reported in 1979(1) SLR 309 seem to be very apposite in this context :
"The whole difficulty arises when under the cover of ordering a transfer, an employer seeks to achieve something which he cannot otherwise achieve. In such cases, the employees in distress seek the assistances of Courts in their unequal contest with their employers. A transfer can uproot a family cause irreparable harm to an employee and drive him into desperation. It is on account of this that transfers when affected by way of punishment, though on the face of it may bear the insignia of innocence, are quashed by Court."
20. The other decision of this Court on which strong reliance was placed by Mr. Mukherjee in the case of C.C. Kar v. State of West Bengal reported in 1985 (2) CHN 470 does not however, lend any assistance in the matter and the same is clearly distinguishable on facts.
21. Dr. Pal placed strong reliance on the decision of the Supreme Court in the case of West Bengal State Electricity Board v. Deshabandhu Ghosh and Ors. as also the decision in, the case of Central Inland Water Transport Corporation Ltd. v. Broja Nath Ganguly and Anr. . But, in my view, the above noted two decisions of the Supreme Court do not tend any assistance to the contention raised herein. As such, I need not dilate much on that score.
22. Mr. Mukherjee strenuously contended that in any event the petitioner himself wanted the transfer order to be kept in abeyance till April 1987 and as a matter of fact this Court on an earlier occasion directed the order to be so kept in abeyance and since the petitioner has accepted such an order, this Court ought to extend the period or strike down the order of transfer.
23. The submission of Mr. Mukherjee has its corroboration on the factual aspect but by reason of the fact that subsequently the order of this Court was directed to be kept in abeyance at the instance of the administration and the matter has been elaborately argued for days together, Judicial decorum would not permit this Court to keep the order of transfer in abeyance only till April 1987, more so on the wake of findings as noted above.
24. In that view of the matter, the writ petition succeeds. The order of transfer is set aside and quashed. This order, however, will not prevent the respondent authority to take such step or stepts against the petitioner in accordance with law. There shall, however, be no order as costs.
25. All admissible salary be made available to the petitioner within a period of three weeks from the date.
The prayer for stay is made but is refused.