Central Administrative Tribunal - Mumbai
Anupam Kumar vs M/O Commerce on 28 October, 2021
1 OA.360/2021
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH,
MUMBAI.
O.A.360/2021
Dated this Thursday the 28th day of October, 2021.
Coram: Dr.Bhagwan Sahai, Member (Administrative).
Anupam Kumar,
earlier working as Deputy Director General of
Foreign Trade (Dy. DGFT) (Group "A" post), in
the office of Additional Director General of
Foreign Trade (Addl. DGFT), 2nd Floor, Nishtha
Bhawan, 48, Sir Vithaldas Thackersey Marg,
Churchgate, Mumbai - 400 020 before his transfer
to the Department of Commerce, Udyog Bhawan,
New Delhi and presently residing at :
House No.53, 8th Floor, Apartment House,
Hyderabad Estate, Malabar Hill, Mumbai - 400 006,
Cell : 8964090919, email:[email protected]
.. Applicant.
( By Advocate Shri Chetan R. Shah ).
Versus
1. Union of India, through
Commerce Secretary,
Department of Commerce,
Ministry of Commerce & Industry,
Udyog Bhawan, New Delhi - 110 011.
2. Director-General of Foreign Trade,
Office of Directorate General of
Foreign Trade, H-Wing, Udyog Bhavan,
New Delhi - 110 001.
3. Additional Director General of Foreign Trade,
Nishtha Bhawan, 2nd Floor, Nishtha Bhavan,
48, Sir Vithaldas Thackersey Marg,
Churchgate, Mumbai - 400 020.
4. Joint Director General of Foreign Trade (HRD),
Nishtha Bhawan, 2nd Floor, Nishtha Bhavan,
48, Sir Vithaldas Thackersey Marg,
Churchgate, Mumbai - 400 020. ..Respondents.
( By Advocate Shri R.R. Shetty ).
Order reserved on : 30.09.2021
Order delivered on : 28.10.2021
O R D E R
Shri Anupam Kumar has filed this O.A. on 01.06.2021 seeking quashing and setting aside of his transfer order dated 17.03.2021, and relieving order dated 07.04.2021, and declaration that he cannot be transferred from the post of Deputy Director General of Foreign Trade, Office of Additional Director General of Foreign Trade, Mumbai to New Delhi as he has not completed 3 years of service on this post, and it has been done based on anonymous/pseudonymous complaints. He also seeks providing of cost of this O.A. As interim relief he also sought stay to effect and operation of the transfer order and maintenance of status-quo for his working from Mumbai as per order dated 05.05.2021.
Subsequently the applicant has filed M.A.487/2021 for amending relief clause for bringing on record Office Memo dated 21.06.2021 issued to him. This M.A. was allowed on 30.09.2021. Detailed arguments of both the counsels were heard on 30.09.2021 and the O.A. was reserved for orders.
2. Summarized Facts :
2(a). The applicant belongs to Indian Trade Service, Group 'A' and joined service on 16.12.2013. He was transferred on the post of Dy. Director General of Foreign Trade, Mumbai from Nagpur on 22.05.2018 and since then he has been working here. He claims that he has been graded 'Outstanding' in his APAR.
2(b). An incident happened in his office and he is being victimized due to that incident. He received an email dated 17.05.2020 from Respondent No.4, Joint Director General of Foreign Trade Mumbai, Nishtha Bhavan, Mumbai directing him to apply for leave for his absence from headquarters during Covid-19 lockdown. This was inspite of he having obtained prior permission before leaving the headquarters. He replied to the order via email dated 19.05.2020 and order of 17.05.2020 has been withdrawn by Respondent No.3 via email dated 09.06.2020. In his reply he also highlighted gross insubordination by his subordinate officer and requested for examination of that case from vigilance angle. The applicant had given two cases to his subordinate on 15.05.2020 for processing of applications for amendment of advance authorization but that was not carried out by him. Therefore, the applicant issued a show-cause notice to him for wilful defiance of a reasonable order of the superior authority. Even then the matter has not been investigated by Respondents No.3 and 4, and it was closed by the Head Office without seeking any explanation from his subordinate officer. In his email of 03.06.2020 he provided specific details of the incident mentioned in the email dated 19.05.2020 and requested Respondents No.3 and 4 to consider to get the case investigated from vigilance angle.
2(c). On 29.09.2020 the applicant again highlighted multiple instances indicating favouratism in the Department when additional sections were created in the office to accommodate a particular person. The applicant received a show-cause notice on 09.10.2020 from Respondent No.2 on the email sent by him and without investigating the matter, the action of the applicant was termed as unionized activity to create disharmony within the organization. He submitted his reply to the show-cause notice on 16.10.2020 denying all the allegations therein and stating that the show cause notice dated 09.10.2020 had been issued with prejudice, bias and conspiracy to unsettle, silence, malign and discredit the applicant. Then the applicant received an advisory on 09.12.2020 from Respondent No.2 without imposing any penalty on him. Subsequently a fact finding team was sent by Respondent No.2 to the office in January, 2021 to investigate the same vigilance case mentioned by him in the email dated 27.09.2020, which after questioning him on the concerned case file, submitted a report on 12.01.2021 to which the applicant replied on 13.01.2021. These facts and sequence of events show that the respondents only fabricated a false and mischievous complaint against him dated 12.02.2021 for his transfer from the Mumbai Office.
2(d). Then the applicant was transferred by order dated 17.03.2021 from Mumbai to New Delhi mentioning that it is in public interest. Thereafter he was issued relieving order dated 09.04.2021 from the Mumbai Office but because of prevailing Covid- 19 pandemic and lockdown, he sought permission to work from home in Mumbai which was allowed.
2(e). The applicant approached the Bombay High Court in Writ Petition No.10218/2021 for deferment/postponement of his transfer from Mumbai to New Delhi during the lockdown. Then on 05.05.2021 the Respondent No.1 passed an order allowing the applicant to continue to work from home in Mumbai. When the Writ Petition was heard on 07.05.2021, an email was received by the applicant's counsel containing the show-cause notice, and advisory issued to him and an anonymous/pseudonymous complaint which were brought to the notice of the High Court to argue that his transfer was primarily based on the complaint dated 12.02.2021. The respondents also raised objections about maintainability of the Writ Petition contending that the applicant should approach the Central Administrative Tribunal, Mumbai Bench, Mumbai for his grievances. Therefore, he withdrew the Writ Petition and has filed this O.A.
3. Contentions of the parties :
In the O.A. and rejoinder the applicant contends that -
3(a). his transfer is clearly against the law laid down by Apex Court in the case of Somesh Tiwari Vs. Union of India and others in Civil Appeal No.7308/2008 dated 16.12.2008. It is based on irrelevant ground, on the allegation made against him in the anonymous/pseudonymous complaint on which no in-house inquiry was initiated against him and he came to know about its existence only on 07.05.2021 during hearing of his Writ Petition. Therefore, his transfer is a punishment. When he has been allowed to work from home, in a way the relieving order stood withdrawn;
3(b). his transfer order was neither due to administrative exigency nor in public interest. This is just to camouflage the respondents' intention to give an impression that it was being done in the public interest and against the Apex Court decision in the case of T.S.R. Subramaniam and Ors. Vs. Union of India and Ors., reported in 2014(1) SCT 255. It is also against the transfer policy of the respondents dated 31.03.2014 (Para 3 of that OM) which clearly says that "normally its officers will be allowed a minimum tenure of 3 years in a post." When the applicant joined at the Mumbai Office on 22.05.2018, by the time of his transfer order dated 17.03.2021, the period of 3 years had not been completed. Thus the impugned order is a colourable exercise of power by the respondents. This is also against the CVC Circular of 24.09.2020;
3(c). as revealed from copies of his APAR from 22.05.2018 to 31.03.2019, 01.04.2019 to 31.03.2020 and 01.04.2020 to 31.12.2020, for those periods he has been graded as 'Outstanding', the overall grading being 9.83, 9.93 out of 10. The remarks in the APAR also clearly mentioned that he is an exceptionally hardworking and knowledgeable officer, who can be entrusted with greater responsibilities and he is an asset to the office;
3(d). the impugned action of the respondents to transfer him from Mumbai to New Delhi is against the principles of natural justice, T.S.R. Subramaniam Supreme Court decision and CVC Circulars dated 24.09.2020, 18.01.2013 and 18.06.2014, according to which no cognizance needs to be taken of anonymous/pseudonymous complaints;
3(e). the reply filed by the respondents is an exercise of diversion and deflection based on handpicking and conjuring a convenient set of facts. The statements and the pleadings in the reply are purely presumptive, incorrect on facts and misleading, and being aware of his responsibilities the applicant has never shied away from calling out gross and unjustified actions by his subordinates or his seniors. The applicant had issued directions on 15.05.2020 to his subordinate officer pertaining to some Advance Authorizations, but inspite of his specific directions he did not carry out the work. A wrong advisory was issued to him on 09.12.2020 which was pointed out during hearing in the High Court. The respondents have conjured up such a complaint against him, which itself indicates its falsity; and 3(f). the respondents have made a deliberate attempt by pursuing a complaint alleging that the applicant wrote to the Hon'ble Union Minister of Commerce and Industry and sought CBI inquiry in the case to examine veracity behind the said letter sent by an unnamed Ex-Vice President of an unnamed political party based out of Haryana vide dated 21.06.2021. Instead of making submissions about viability or non-viability of deferment of his transfer during pandemic, the respondents raised question about his integrity claiming that his transfer was necessitated because of complaints received against him. Therefore, his transfer is against the settled law and is a punishment. The caselaws relied upon by the respondents do not apply to his case as his transfer is based on malafides. The two officers mentioned in the transfer order dated 17.03.2021 are yet to join at places of their posting. His transfer order dated 17.03.2021 has been approved by Hon. Union Commerce and Industry Minister, so there is no effective remedy available to him. Hence he has filed this O.A. He was allowed to work from home only after intervention of the High Court and thereafter the applicant has joined physically in the office of Department of Commerce, Government of India on 21.06.2021. The applicant has not challenged the competence of the transfer committee of the respondents, he has only challenged his transfer. The respondents should also explain as to why it took them two months to allocate work to him.
M.A.487/2021 has been filed by the applicant for additional relief in the O.A. for calling for record and proceedings which led to passing of the office memorandum dated 21.06.2021 specifically the letter from unnamed Ex-Vice President of an unnamed political party and thereafter set aside the Office Memo dated 21.06.2021.
In their reply the respondents contend that-
3(g). the applicant has been working as Dy. Director General of Foreign Trade in Mumbai and has been transferred to a cadre post in Department of Commerce in the Ministry at Delhi on completion of his tenure of 3 years. Since he was posted in Mumbai in May, 2018 his tenure was to come to an end in May, 2021 and the transfer order was issued only in March, 2021. Since the applicant had already joined in April, 2020 first to work virtually from home in Mumbai and thereafter he has physically joined in New Delhi, this O.A. should be dismissed. The case of the applicant was duly considered by the transfer committee of the Department of Commerce set up by Government of India in pursuance to the Supreme Court decision dated 31.10.2013 in Civil Writ Petition No.82/2011 filed by Shri T.S.R. Subramaniam & Others Vs. Union of India. Against his transfer, the applicant has not filed any representation to the respondents and directly approached the Tribunal;
3(h). the contention of the applicant that he has been transferred only because of anonymous complaint against him is incorrect as his transfer is after completion of tenure and in public interest as mentioned in the impugned order. Along with him several other officers have also been transferred by the same order from New Delhi and from Mumbai. Therefore, the applicant cannot oppose that transfer order. As per Supreme Court decision in the case of Registrar General, High Court of Judicature at Madras Vs. R. Perachi (2011) II SCC (L&S) Page 643 merely because a person is transferred on receipt of a complaint, the same does not mean that the transfer is punitive unless the transferred employee is in a position to show that his status has been lowered, his emoluments have been adversely affected or that he has been posted at a post which is below his rank. None of those situations are prevailing in the case of the applicant.
As per Supreme Court decision in the case of State of Uttar Pradesh Vs. Gobardhan Lal, 2005 SCC (L&S) Page 55, it has been held that unless the transfer is against policy or is actuated by a malafide, or is issued by an authority incompetent to transfer the applicant, the same does not warrant any interference.
As held by Supreme Court in Union of India Vs. Janardhan Debnath, an exercise to ascertain whether a transfer is malafide or otherwise cannot be conducted under Article 226 of the Constitution of India as the power exercised by the Tribunal is akin to that power.
As held in another Supreme Court decision in case of Union of India & Others Vs. Deepak Niranjan Pandit dated 07.02.2020, it is within the domain of an employer to transfer the employee and nobody can claim to have a right to a particular post and particular place. Therefore, challenge to his transfer by the applicant is not permissible as per Section 20 of the Administrative Tribunals Act. He should have first exhausted the available remedies, which he has not.
As held by Apex Court in case of Shilpi Bose & others Vs. State of Bihar & others, AIR 1991 SC 532, order of transfer/posting issued by the competent authority did not violate any of her legal right. The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place.
In another decision of Apex Court in case of Union of India and others Vs. S.L. Abbas, 1993 AIR 2444, it is observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions;
3(i). as per his own request, the applicant was also allowed the concession of virtual joining and to work from home in Mumbai during severity of the Covid-19 pandemic, but even then he filed the Writ Petition in the High Court and this O.A. His posting was recommended by the Transfer/Posting Committee and approved by the Competent Authority in accordance the Transfer/Posting Guidelines for ITS officers dated 31.03.2014 (Annex-R-2). The transfer of the applicant is a part of administrative exercise and is a routine transfer on completion of 3 years tenure and it was in no way linked to any complaint against him. The show-cause notice or advisory mentioned by the applicant has no relation to his transfer. It also establishes the tendency of the officer to consistently challenge the legal orders of his seniors at different points of time, and disrupt the smooth working of the organization. The applicant has also attempted to bring political pressure on the respondents for cancellation of his transfer order through a former Vice President of a political party which is in violation of Rule 20 of the CCS (Conduct) Rules, 1964. Therefore, there is no cause of intervention for the Tribunal against the legally valid order, issued by the Competent Authority as per laid down policy in the administrative interest.
As already highlighted by the Supreme Court in catena of cases, it is entirely upon the Competent Authority to decide when, where and at what point of time a public servant is to be transferred from the present posting. The alleged complaint is a matter of independent examination and action as per CVC Guidelines and, therefore, applicant cannot pre-empt by bringing details of that case in this O.A. In view of these submissions, this O.A. has no merit and it should be dismissed.
4. Analysis and conclusions :
I have carefully considered the averments and contentions of the applicant in O.A. and M.A.487/2021 filed for amendment of the O.A., rejoinder and during arguments of his counsel on 30.09.2021 as well as reply of the respondents and arguments of their counsel. I have also perused the caselaws relied upon by the parties as well as the guidelines of Director General, Foreign Trade, Department of Commerce, Government of India for postings and transfers of ITS Officers. Based on this consideration and analysis of the case, the conclusions emerge as follows:
4(a). The main challenge in the O.A. is against the order dated 17.03.2021 transferring the applicant from the post of Dy.
Director General, Foreign Trade, Mumbai to Department of Commerce, New Delhi and the O.M. dated 26.06.2021 issued to him by Director- General of Foreign Trade advising to refrain from bringing or attempting to bring political or outside influence on his superior authority to further in his interest in respect of his service matters.
4(b). The undisputed facts in the case are these:
Based on the recommendation of the transfer/posting committee of the Director General, Foreign Trade dated 16.03.2021, transfer/posting order of 17.03.2021 was issued for 9 Indian Trade Service Officers, including the applicant.
In pursuance to that order, the applicant was relieved on 07.04.2021 with effect from 09.04.2021. He joined at Department of Commerce on 21.04.2021. As per his request, he allowed to work virtually from Mumbai during Covid-19 lockdown period by order dated 05.05.2021. Thereafter he joined physically at the Department of Commerce on 26.06.2021.
4(c). The applicant contends that his transfer is not based on bonafide consideration, it is in violation of the transfer guidelines of the respondents for transfer and posting of Indian Trade Foreign Service Officers dated 31.03.2014, it is not neither due to administrative exigency nor in public interest, it is against the Supreme Court decision in case of T.S.R. Subramaniam and others Vs. Union of India and others, reported in 2014(1) SCT 255, upto the date of order of his transfer dated 17.03.2021, he had not completed the required period of 3 years, and it is due to an anonymous/pseudonymous complaint against him dated 12.02.2021 which in fact should not have been acted upon as per DoP&T OMs and CVC guidelines.
4(d). For the additional relief against OM of 21.06.2021 he contends that it was issued to him based on the complaint of some unnamed ex-District Vice President, Jhajjar of an unnamed political party in Haryana and without affording him any opportunity to reply to it, he has no connection with Haryana and the claim about this complaint is beyond his comprehension, he has lodged a complaint with Parliament Street Police Station, New Delhi to investigate that complaint and instead of taking action against his officer, only an advisory was issued to him.
4(e). On direction, the respondents have submitted original case record pertaining to the recommendations for the transfers/postings of 9 Indian Trade Service Officers made by the transfer/postings committee to the competent authority. I have perused it. As per that OM of Directorate General of Foreign Trade, Ministry of Commerce & Industry (Department of Commerce), Government of India for Deputy Director General of Foreign Trade, the transfer/posting committee for ITS Officers consists of Additional Director General of Foreign Trade (HRD), DGFT Headquarters with Joint Director General of Foreign Trade (HRD), DGFT Headquarters and Dy. Director General of Foreign Trade (HRD), DGFT Headquarters. The authority competent to approve the minutes of meeting containing recommendations for transfer/postings of the committee for such transfer is Director General of Foreign Trade. In Para 3 of that OM it has been stipulated that normally ITS officers will be allowed a minimum tenure of 3 years in a post. In para 4 it has been further stipulated that the transfer policy and guidelines prescribing the tenure for posting and transfers of ITS officers in DGFT are only directory in nature and not mandatory. Any officer can be transferred by the Competent Authority at any time to any post on administrative ground.
4(f). A perusal of Minutes of Meeting of the transfer/posting committee of Director General of Foreign Trade held on 16.03.2021 shows that it recommended transfer/postings of 9 officers, including the present applicant. Based on those recommendations, the transfer order dated 17.03.2021 has been issued exactly as per the recommendations of the Transfer/Posting Committee. The Minutes of the Meeting mentioned that the postings of those officers have been considered who have completed 3 years or were about to complete 3 years at the same station and those postings were considered based on the administrative requirement of officers at different stations. These Minutes of Transfer/Posting Committee meeting clearly establish the contention of the respondents that transfer of the applicant from Mumbai to Department of Commerce, New Delhi is only a routine/rotational transfer in public interest. No further extraneous consideration as claimed by the applicant seems to have gone into transfer of the applicant. Therefore, applicant's contention that the respondents have transferred him with extraneous considerations on malafide and based on the anonymous/pseudonymous complaint against him and because of his complaint against his subordinate officers is not evidenced by the facts and, therefore, it fails.
4(g). Further examination of the case record reveals that the anonymous complaint dated 12.02.2021 received on 02.03.2021 is against not only the applicant but also against the Joint Director General of Foreign Trade, Mumbai. Based on the earlier email/complaint of the applicant to the senior authorities of the respondents in September, 2020, he was issued a show-cause notice on 09.10.2020 and after his reply, an advisory was issued to him on 09.12.2020. So the applicant cannot assume that his transfer is due to that complaint.
4(h). In relation to an undated letter by one Dr.Ravindra Lohchab, former BJP District Vice President, Jhajjar, for cancelling the applicant's transfer, the respondents have issued the OM of 21.06.2021 advising the applicant to refrain from bringing or attempting to bring political pressure or outside influence on superior authority to further his interest in the matters. While the letter is undated, the advisory issued to the applicant is a post event i.e. it has happened after the order of his transfer. Thus it is an independent proceedings and since it is only an advisory issued to the applicant, no relief can be granted to him in this O.A. Although the application is undated, it mentions a specific name i.e. Dr.Ravinder Lohchab, former District Vice President, Jhajjar, Bhartiya Janata Party. Therefore, the contention of the applicant that this letter is anonymous and in the name of an anonymous party is not correct. But in any case, this is irrelevant as far as enforcement of the order of the applicant's transfer is concerned. After he was given relief first to join virtually in April, 2021 from his residence in Mumbai, and thereafter he himself has joined the Department of Commerce physically on 26.06.2021 and thereby already has complied with the transfer order, the transfer does not warrant any interference by the Tribunal. In the Writ Petition filed in the High Court also, he did not seek cancellation of his transfer but sought only delay in his joining, hence there is no justification for filing this O.A. 4(i). Reliance of the respondents on various Supreme Court decisions is also fully justified.
In view of these conclusions on the O.A. filed by the applicant, I do not find any merit in it and it deserve dismissal.
5. Decision :
The O.A. is dismissed. No costs.
(Dr.Bhagwan Sahai)
Member (A).
H.