Calcutta High Court (Appellete Side)
Manoj Kumar Pankaj vs Union Of India & Ors on 17 July, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No. 3504(W) of 2009
Manoj Kumar Pankaj
...Petitioners
Versus
Union of India & ors.
...Respondents
For the petitioners : Mr. Kishore Dutta
Mr. Sandipan Bannerjee
For the respondents : Mr. Tanmoy Ghosh
Heard on : 19.6.2009, 24.6.2009, 2.7.2009 and 14.7.2009
Judgment on : 17.7.2009
The petitioner is a member of the Central Reserve Police Force (hereafter the Force), being a 'constable-driver' thereof. At the material time, he was posted in the office of the Inspector General of Police of the Force, Eastern Sector at Salt Lake, Kolkata.
Since his appointment as constable-driver, the petitioner has been attached to 10 Battalion of the Force (hereafter the 10 Bn). In September, 1994 the 10 Bn was in Manipur. Thereafter, in 1996, the 10 Bn moved to Arunachal Pradesh and in 1999, it moved to Jammu & Kashmir. Subsequently, in 2002, the 10 Bn moved to Kalkaji in Delhi and ultimately in November, 2004, it moved to the Eastern Sector at Salt Lake, Kolkata. As and when the 10 Bn moved from one State to the other, the petitioner moved along with it.
In this writ petition, the petitioner has questioned an order of transfer whereby he has been transferred from the office at Salt Lake to 39 Battalion (hereafter the 39 Bn) of the Force at Faizabad, in the State of Uttar Pradesh.
Mr. Dutta, learned counsel for the petitioner has referred to certain antecedent facts. In August, 2006, a punishment of confinement was imposed upon the petitioner allegedly without holding any enquiry. He was detained for 30 days with effect from 26/28th August, 2006. During this period, salary was not paid to him. While he was in confinement, an order of transfer was issued on 13th September, 2006 thereby transferring him from the office at Salt Lake to Tripura with effect from 26th September, 2006 where the 10 Bn had moved. The order of transfer was challenged in a writ petition. By an order dated 25th September, 2006, a learned Judge of this Court directed exchange of affidavits. Parties to the proceeding were directed to maintain status quo as on that date. After exchange of affidavits, the respondents in the writ petition filed an application for vacating the interim order of status quo dated 25th September, 2006. However, the application was not listed and, therefore, the interim order subsisted. By an office order dated 4th February, 2009, the petitioner was informed that the punishment of 30 days confinement awarded to him earlier had been reviewed and it was found that the said order was not commensurate with the gravity of the offence committed by the petitioner; accordingly, the order of punishment was quashed and departmental enquiry was directed into the alleged misconduct committed by him. The order, however, was silent on the point of confinement already suffered by the petitioner in terms of the original order.
He then referred to the allegation in the petition that after withdrawal of the order of confinement, the petitioner was mentally harassed and tortured by the respondents. They created pressure on him to put his signature on a document thereby expressing his willingness and readiness to be transferred to any other place. The senior officers at whose instance the signature of the petitioner was obtained have been named in paragraph 16 of the petition. It is pursuant to such willingness/consent given by the petitioner that the impugned order of transfer was issued.
It was contended by him that malafide is writ large on the actions of the respondents. Ill-treatment against the petitioner commenced with the punishment order of confinement without enquiry dated 28th August, 2006. The petitioner was not paid a month's salary. While in the midst of confinement, the order transferring the petitioner to Tripura was passed. Such order could not be given effect to because of the intervention of this Court. An application for vacating interim order also could not bring the desired result for the respondents. Faced with the situation of having failed to transfer the petitioner, the respondents backtracked. Not only was the transfer order cancelled but pretending to act bonafide, the order of punishment dated 4th February, 2009 was also withdrawn without compensating the petitioner for the suffering already undergone.
To substantiate his contention that the petitioner did not give consent for transfer on his own volition, Mr. Dutta invited the attention of the Court to a letter written by the petitioner on 14th February, 2009 itself to his Advocate-on- Record narrating the treatment meted out to him by the senior officers of the Force. It is his specific contention that the petitioner had no other option but to send the letter to his Advocate by post and the postal receipt would reveal that the letter was dispatched at midnight.
According to him, if the petitioner had completed the normal tenure of service at a particular station and he was liable to be transferred, there was no question of obtaining his consent therefor. The respondents in the ordinary course could have cited administrative interest as the reason for transfer and transferred him. However, the story of the petitioner himself expressing willingness to be transferred has been engineered to achieve twin purposes, viz.
(i) to use transfer as a weapon for punishing him instead of initiating disciplinary proceedings as decided and conveyed by letter dated 4th February, 2009; and (ii) to prevent him from obtaining an order of injunction from Court. Thus, it would be evident from the background facts that the action of the respondents in seeking to transfer the petitioner on the basis of his request smacks of malafide intent. He referred to the decision of the Apex Court in Rajendra Roy vs. Union of India & ano., reported in (1993) 1 SCC 148 to contend that from the attending facts and circumstances malafide could be reasonably inferred even though malafide may not have been conclusively established.
The decision in Messrs. Pannalal Binjraj & ors. vs. Union of India & ors., reported in AIR 1957 SC 397, was relied on in support of his contention that if an order of transfer is impeached as an abuse of power pointing out circumstances which prima facie and without anything more would make out the exercise of the power discriminatory qua him, it is incumbent on the authority to explain the circumstances under which the order has been made.
E.P. Royappa vs. State of Tamil Nadu & ano., reported in AIR 1974 SC 555, was relied on for drawing inspiration in support of the contention that State action must not be guided by extraneous or irrelevant considerations because that would be denial of equality.
Decision of this Court in N.N. Singh & ors. vs. General Manager, Chittaranjan Locomotive Works & ors., reported in 1973 (1) SLR 1153, was relied on for the proposition that even if an order of transfer appears to be otherwise legal and valid but has not been issued for the professed purposes in public or administrative interest or in the exigencies of service but they are only passed for other purposes in the garb of ostensible purposes, a Court of Writ would not be unjustified in probing and scrutinising such order to see if it has been passed for other purposes under colourable exercise of power or even malafide.
Another decision of this Court in Sri Krishna Kanto Roy vs. The Director of Primary Education, West Bengal & ors., reported in 1990 (1) CLJ 310, was relied on by him wherein it was held that order of transfer made not for administrative reason but to achieve collateral purpose may be interfered with by the Writ Court.
Based on the aforesaid submissions, he prayed for quashing of the order of transfer.
Mr. Ghosh, learned Advocate for the respondents, contended that the writ petition is absolutely lacking in merit. The petitioner could neither demonstrate violation of statutory rules nor do the facts on record lead to the conclusion that the transfer order was issued malafide. He submitted that contrary to what has been averred in paragraph 16 of the writ petition it would be found from Annexure 'R-2" to the counter affidavit that the petitioner himself had written the letter in question and had prayed for his transfer and, therefore, the respondents did not commit any illegality in transferring him to Faizabad. According to him no legal right of the petitioner could be said to have been infringed by the impugned action and having regard to the fact that he was holding a transferable post, he prayed for dismissal of the writ petition.
While admitting the writ petition and calling for affidavits, this Court did not pass any interim order. This Court was, prima facie, satisfied that the petitioner had not been able to make out a cast iron case for stay of the order of transfer.
Having heard learned Counsel for the parties and perusal of the pleadings, this Court is convinced that the petitioner having completed his normal tenure in a particular station is liable to be transferred in terms of Standing Order No.02/2008 issued by the Director General of the Force. This Court is also ad idem with Mr. Ghosh that transfer being an incidence of service of the petitioner, he must abide by orders passed in administrative interest.
However, for reasons indicated hereafter, this Court is inclined to hold that the impugned order of transfer has not been issued in public interest or in the exigency of service. The petitioner's version that the letter dated 14th February, 2009 expressing willingness to be transferred was obtained from him under duress, in the Court's considered view, is not unworthy of credence and, therefore, interference is called for in the interest of maintaining purity in administration. This is considered necessary not because this Court intends to sit in appeal on the decision of the respondents but for the sole reason that the Writ Courts are the watchdogs of the Constitution and in exercise of writ powers are obliged to ensure justice to the citizens if they have been wronged.
Where orders relating to transfer of employees are impeached on the ground of malafide, it is common experience that it is easy to level allegations but difficult to prove the same. Experience also shows that even though in most cases transfer orders are passed bonafide and in the ineterest of public service, at times the action of the concerned officers may proceed from enmity or prejudice, from partisan zeal or animosity and other improper influences and motives which are easy of concealment and difficult to be detected and exposed even when questioned. Consequently the injustice capable of being wrought under cover of such unrestricted power does not become apparent too easily. A detailed investigation by the Court of Writ is not prudent, but would it be desirable for a Court to remain a mute spectator even when it appears to it to be a glaring case of misuse or abuse of power? This Court does not think so.
In terms of 'Principle for Transfer' as contained in Standing Order No.02/08, the competent authority is required to observe certain conditions. One of those is that transfer from one battalion to another, as far as possible, should be avoided. Members of the Force, according to it, ought to be allowed to grow in the same battalion.
In the present case, by the impugned order of transfer the petitioner has been transferred to the 39 Bn at Faizabad. It is important to note that in the letter dated 14th February, 2009 whereby the petitioner had allegedly given his consent to be transferred, a prayer was made by him for his transfer to 39 Bn. These appear to be rather strange. It is not for a member of the Force to decide to which battalion he should be posted. The competent authority must take a decision if a transfer is warranted. The very fact that the letter dated 14th February, 2009 bears a request of the petitioner to transfer him to the 39 Bn and the impugned order records that he is transferred to the 39 Bn with immediate effect leads the Court to draw a reasonable inference that the said letter had not been voluntarily written by the petitioner. It is unheard of in matters relating to the disciplined force that a particular member would seek transfer to a particular place without mentioning any reason therefor and the competent authority would accept such request without much ado. Having questioned the initial order of transfer and having obtained an order of status quo that is subsisting even today, this Court has failed to comprehend as to why of all things the petitioner would express willingness to be transferred to a particular place which incidentally is not also his native place.
The above finding is fortified from another circumstance narrated hereafter. The transfer policy, as noted above, provides that transfer from one battalion to another, as far as possible, should be avoided. Even then, the petitioner was transferred from the 10 Bn to the 39 Bn on his request. Had the transfer been ordered in the interest of administration, no reason was required to be mentioned in the order except that the transfer was in administrative interest. However when transfer from one battalion to another specified battalion is made on a request of a member of the Force, which the transfer policy does not provide, the competent authority ought to have assign at least some reason for allowing the prayer. This was essential for at least two safeguards, viz. (i) to obviate any charge of nepotism against him and (ii) to prevent other members of the Force from making similar demands highlighting transfer of the petitioner to a station of his choice as a precedent. Had reasons in support of the transfer been assigned, none could possibly level any allegation of discrimination. That unfortunately is not the case here since the transfer was effected on extraneous considerations and the respondents were sure of the unpleasant facts not coming to the surface, thereby not comprehending the necessity of assigning reason.
That apart, the respondents have also failed to satisfy the Court as to why the transfer policy was not adhered to in the present case and further as to whether there are precedents of members of the Force being transferred to a place and battalion of their choice.
Also, it is rather intriguing as to how despite the order of status quo passed by this Court the petitioner could not at all be transferred without having the said order vacated. Whenever an action is taken in violation of an order of stay or injunction and it is brought to the notice of the Court, it is the duty of the Court to set wrong the right and not to allow perpetration of the wrongdoing [see Delhi Development Authority vs. Skipper Construction Co. (P) Ltd. & anr., reported in (1996) 4 SCC 622].
This Court is thus convinced that the respondents did not transfer the petitioner in a fair and transparent manner for the professed purpose of administrative exigency and the process of decision making has failed to inspire its confidence.
Since the order of transfer was passed in circumstances that can hardly be considered to be normal, this Court is unable to sustain it. The order of transfer stands set aside. The petitioner shall be brought back to Salt Lake immediately but not later than 7 days from date, at the cost of the respondents.
After the petitioner is brought back to Kolkata, the Director General of the Force shall be at liberty to consider expediency of transferring him strictly in accordance with Standing Order No.02/08 provided the order of status quo is discontinued by this Court.
The writ petition stands allowed to the extent mentioned above, without order for costs.
Urgent photostat certified copy of this judgment and order shall be furnished to the applicant as early as possible but positively within four days from putting in requisites therefor.
(DIPANKAR DATTA, J.)