Central Administrative Tribunal - Madras
Dr. M. Hari vs Union Of India (Uoi) And Ors. on 17 August, 2006
Equivalent citations: 2007(2)SLJ145(CAT)
ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicant is working as Veterinarian in the BCG Vaccine Laboratory, Guindy, Chennai. He has filed the above O. A. challenging the transfer order dated 1.12.2005 of the first respondent transferring him from Chennai to Kasauli (H.P.) second time and has prayed for the following reliefs:
(i) to call for and to set aside Order No. A-l 1018/1/2001-EPI/CC&V dated 1.12.2005 of the 1st respondent.
(ii) to call for and to set aside Order No. AA. 19011/8/88-ADMN dated 2.12.2005 of the 3rd respondent.
(iii) pass such further or other orders as may be deemed fit and proper.
2. The brief facts of the case are as follows:
The applicant is a holder of Masters Degree in Veterinary Science. He was recruited through UPSC as Veterinarian in the BCG Vaccine Laboratory, Guindy vide order dated 31.7.1981. The post of Veterinarian is a Group 'A' non-medical Scientist post. The job of the applicant was to breed guinea pigs used for testing the potency of BCG vaccine and was responsible for maintaining the animal house. The applicant was earlier transferred to the Central Research Institute, Kasauli, Himachal Pradesh by order of the first respondent dated 6.3.2002. The applicant challenged the said order before this Tribunal in O.A. 133/2002 unsuccessfully and the O.A. was dismissed on 27.7.2002. On joining Kasauli, the applicant took ill and was referred to the Medical Board which certified that the applicant was suffering from Triple Vessel heart disease and was advised complete rest and to avoid physical and mental strain, climbing uphills etc. It was also certified that he was not fit to join and work in high altitude where inclement weather prevails. Considering his medical condition, the first respondent by order dated 19.12.2003 transferred the applicant back to the BCG Vaccine Laboratory at Chennai. However, he was not permitted to join duty immediately by the third respondent on the plea of awaiting clarification from the second respondent as well as from the Central Vigilance Commission (CVC) by letters dated 22.12.2003 and 26.12.2003 respectively. The applicant was informed that till a clarification is received, he will not be permitted to join duty. Thereafter the third respondent filed O.A. Dy. No. 4280/2003 before this Tribunal to quash the order of the first respondent dated 19.12.2003 in transferring the applicant back to Chennai. The said O.A. was not umbered and was dismissed by order dated 5.1.2004 holding that the third respondent had no locus standiand as such, the O.A. was not maintainable. As against the Tribunal's order, the third respondent filed Writ Petition No. 5334/2004 which was also dismissed by the Hon'ble High Court by order dated 8.3,2004. The applicant was allowed to join duty only on 30.9.2004 (after 10 months of his transfer). According to the applicant, the third respondent has been harassing even thereafter in different ways by not allotting the work and issuing Memos without giving sufficient opportunity and passing pre-determined orders and reports against the applicant. The third respondent also made false allegations against the applicant and took a stand that the post of Veterinarian is not necessary for the Institute. Ultimately the impugned order of transfer dated 1.12.2005 passed by the first respondent came to be issued transferring the applicant back to Kasauli (H.P.). The third respondent after receiving the same through Fax on 1.12.2005, served a xerox copy of the order alongwith the relieving order dated 2.12.2005. These orders are under challenge.
3. The main ground raised by the applicant in this O.A. against the impugned order is that the transfer has been made at the instance of the third and fourth respondent with an ulterior motive and malice towards the applicant. According to the applicant, he was falsely implicated in reference to the news item published in the New Indian Express. The impugned order came to be passed wholly on extraneous and mala fide grounds. The order is opposed to public interest as BCG Vaccine Laboratory cannot function without a Veterinarian and the power of transfer has been exercised arbitrarily on erroneous and irrelevant consideration and it is nothing but a colourable exercise of power.
4. A reply has been filed by the third respondent on behalf of respondents 1 to 3. The fourth respondent who is impleaded in his personal capacity has also filed a separate reply affidavit.
According to the respondents 1 to 3, the action taken against the applicant for transfer is in public interest and that it is settled law that the Court cannot interfere in transfer matters. There is no mala fide or bias against the applicant in the present case. The third respondent moved the Tribunal and the Hon'ble High Court as against the applicant's transfer in public interest. There is no proof of bias or mala fide against the respondents. They have acted for the betterment of the Institute and in public interest. The decision taken with regard to allotment of work to the applicant was in his capacity as 'Head of Office'. According to the third respondent, a host of qualified officers/officials are present in the Laboratory to carry out the testing procedures. The transfer order was received by Fax close to the end of working hours on 1.12.2005. Hence immediate action could not be taken to prepare a relieving order and issue it to the applicant on 1.12.2005. However, on 2.12.2005, a copy of the transfer order dated 1.12.2005 was issued along with the relieving order. There was no undue haste as contended by the applicant,
5. The fourth respondent has filed a separate affidavit denying each and every allegations of the applicant. According to him, the post of Veterinarian is not required at all in this Laboratory. There are other equally qualified officials to do the same job and even during absence of the applicant, the work was carried on without any difficulty. The third respondent sought clarification on the retransfer of the applicant with the second respondent as well as the CVC since the third respondent was of the view that it would not be prudent to implement the order of transfer dated 19.12.2003 of the applicant to this Laboratory after his previous transfer in public interest. Moreover the third respondent also felt that the retransfer of the applicant to Chennai was against the letter and spirit of the order passed in O.A. 133/2002. In view of this, a clarification was sought by the third respondent from the second respondent regarding the implementation of the order of transfer. The O.A. in Dy. No. 4280/2003 was filed by the third respondent in his capacity as the 'Head of the Institute' and not in his personal capacity. The allocation of work was made in his capacity as 'Head of Office'. According to the fourth respondent, he strongly believed that the applicant is the source of information to the New Indian Express. The action was taken against the applicant in his capacity as 'Head of Office'. The applicant's allegation that the impugned order is tainted with mala fides, is baseless and prays for dismissal of the O.A.
6. The applicant has filed a rejoinder with certain documents.
7. Heard the learned Counsel for the applicant as well as the fourth respondent and considered the matter carefully.
8. Mr. Manogharan appearing on behalf of the first and third respondents has placed before us the original records in support of his submissions.
9. The main question that arises for consideration is whether the impugned order of transfer dated 1.12.2005 is liable to be set aside on the ground of mala fides?
10. It is settled principles of service jurisprudence that transfer is an incidence of service and the Government servants have the transfer liability. Normally the transfer orders are made on the administrative exigencies and in public interest and are not to be ordinarily interfered by the Courts. However, it is also settled principle that if the power of transfer is misused in the guise of public interest and administrative exigencies and if it is found that the power of transfer is exercised in a mala fide and arbitrary manner for a different purpose, the Court can interfere and quash those orders.
11. I am concerned with the order of transfer dated 1.12.2005 transferring the applicant from BCG Vaccine Laboratory, Guindy, Chennai, to Central Research Institute, Kasauli, Himachal Pradesh issued by the first respondent and the relieving order dated 2.12.2005 issued by the third respondent.
12. Prior to this, two other orders are relevant to be taken note of:
(i) Order of the first respondent dated 6.3.2002 transferring the applicant from Chennai to Kasauli (H.P.).
(ii) Order of the first respondent dated 19.-12.2003 transferring the applicant from Kasauli to Chennai.
13. In the order of the first respondent dated 6.3.2002 the applicant was transferred along with the post to the Central Research Institute, Kasauli (H.P.). On joining Kasauli, the applicant took ill and was referred to the Medical Board. The Medical Board in their certificate dated 20.1.2003 (Annexure A-2) found that "the applicant was suffering from triple vessel heart disease and was advised to take rest and avoid physical and mental strain, climb upstairs, uphills etc. He is not fit to join and work in high altitudes where inclement weather prevails. H can resume duty if posted in plains". Kasauli is a hilly region in the State of Himachal Pradesh where inclement weather prevails. Considering all these, the request of the applicant for retransfer back to Chennai was conceded by order dated 19.12.2003. However surprisingly, as against this order of retransfer, the third respondent filed O.A. Dy. No. 4280/2003 before this Tribunal challenging the order passed by the first respondent. The said O.A. was not numbered but was dismissed as not maintainable holding that the third respondent has no locus standi to challenge the order of transfer issued by an authority superior to him and hence competent to issue such an order of transfer. Not resting with this, the third respondent further moved the Hon'ble High Court in W.P. 5534/2004 against the order of this Tribunal. The Hon'ble High Court of Madras by order dated 8.3.2004 held that it is not for the Director of the Laboratory to question the order of transfer of his superior to whom the Director regards as 'undesirable' to his Institute. The W.P., was dismissed with an observation that his remedy, if any, is to make a representation to his superiors and not to bring to the Tribunal. The third respondent, not satisfied with the dismissal of the O.A. and W.P., continued with repeated representations to all the higher authorities available for cancellation of the transfer dated 19.12.2003.
14. According to the applicant, the order dated 6.3.2002 was issued at the instance of the third respondent endorsed in his letter addressed to the second respondent requesting to transfer the applicant. The third respondent admits in his reply that he made the request in his official capacity. We need not go into this aspect since the applicant was, as a matter of fact, transferred to Kasauli (H.P.) but was again retransferred to Chennai as per the order dated 19.12.2003. From then onwards, the third respondent has been making concerted efforts in the form of representations, petitions to the Courts, representing the high dignitaries, the Hon'ble Ministers and Hon'ble President bypassing the departmental procedures/instructions for cancelling the order of transfer dated 19.12.2003.
15. After going through the records, I find the following representations/actions of the applicant as against the order of transfer dated 19.12.2003 posting him at Chennai. The office records of the Department of Health briefly refers to only some:
1. 22.12.2003: The third respondent sends a letter to DGHS (second respondent) requesting to cancel the order dated 19.12.2003.
2. 24.12.2003: Shri S. Rajaraman, Counsel for the third respondent sends a letter to the Secretary and copy endorsed to others protesting the transfer order dated 19.12.2003 and requesting to cancel the same.
3. 26.12.2003: The third respondent sends a letter to the Central Vigilance Commission, New Delhi requesting to interfere and cancel the transfer order dated 19.12.2003.
4. 26.12.2003: O.A. Dy. No. 4280/2003 was filed before the C.A.T. Madras to quash the order of transfer dated 19.12.2003.
5. 05.01.2004: Letters addressed to the DG, Health Services, Hon'ble Minister for Health, and Secretary, Health and Family Welfare to cancel the transfer order.
6. 05.01.2004: Letter addressed to the Hon'ble Minister for Health directly by name.
7. 14.01.2004: The third respondent sends a reminder to the Secretary, Health, to cancel the transfer order.
8. 15.01.2004: The President Secretariat forwarded a number of telegrams stated to have been sent by the employees of the BCG Vaccine Laboratory to cancel the transfer order.
9. 19.01.2004: The third respondent sends a letter to the Hon'ble Minister to cancel the transfer order.
10. 08.03.2004: The third respondent's W.P. 5534/2004 against the order of the Central Administrative Tribunal in Dy. No. 4280/2003 dated 26.12.2003-Dismissed.
11. 22.03.2004: Letter addressed to the Hon'ble President of India requesting to interfere in the transfer order, advance copy submitted.
12. 29.04.2004: Letter to the DGHS with reference to the letter of DGHS allowing the applicant to join duty requesting to cancel the transfer order dated 19.12.2003.
13. 07.06.2004: To Joint Secretary to Government of India, Ministry of Health and Family Welfare directed to reconsider the transfer order.
14. 21.06.2004: Letter addressed to the Hon'ble Minister for Health and Family Welfare directly with a brief note requesting to reconsider the Ministry's order of reporting the applicant.
16. While referring to the above, the record concludes that the Director, BCG Vaccine Laboratory has not only disobeyed the Government orders by not allowing the applicant to join BCG Vaccine Laboratory but also tried to bring pressure on the authorities, outside interference to cancel the transfer order made in favour of the applicant by writing letters to the higher authorities. According to them, it is also not understood as to why the employees of the BCG Laboratory have sent telegrams to the Hon'ble President, Hon'ble Prime Minister and host of others to cancel the transfer order. It is specifically noted that the Director BCG without awaiting the reply from the authorities and without obtaining permission from the Competent Authority has filed the application before this Tribunal against the transfer and posting of the applicant. It is noted that the Director has submitted a petition before the Hon'ble President of India against the transfer of the applicant with a request for his intervention in the matter. The office record claims that the action of the BCG Vaccine Laboratory on various occasions is unwarranted and attracts the provisions of the CCS (Conduct) Rules as detailed below:
1. Unbecoming of a Government servant
2. Insubordination
3. Disobedience of the orders of the superior authorities.
4. Corresponding direct with the President's Sectt., P.M's. Sectt., Central Vigilance Commission and bringing out pressure from outsiders in the functioning of the Government.
5. Bypassing the normal channel of authorities.
6. Wastage of manpower/Government money by way of payment of pay and allowances to Dr. Hari without allowing him to join the duty and without taking any work from him.
17. It was also found that the telegrams received through President Secretariat/P.M. Secretariat may also be a stage managed show of disgruntled elements. The office records show that before action is initiated, advice of Director (A&V) should be taken as the Department of Health and Family Welfare is the proper authority to take a decision on the matter. The matter stood thus as on 12.4.2004, with intimation to the cadre controlling authority.
18. While the Office record reveals that various communications and representations from the third respondent requesting for reconsidering and revise the transfer order are pending, the applicant was not allowed to join duty until Medical Report was obtained. The Vigilance Division has suggested constitution of a Committee to sort out the matter. However, the alternative suggestion to transfer the applicant to other places in Tamil-Nadu due to his health problem was approved.
19. While so, the third respondent sent a letter dated 22.9.2005 containing fresh allegations against the applicant as follows:
(i) His act of regularly leaving office at-12.00 P.M. and returning at 2.00 P.M. without permission.
(ii) His habit of entering the room of Director without prior permission.
(iii) Regarding the progress made with regard to Research and Development work which was allotted to him.
(iv) He was advised to take treatment from Govt. General Hospital, Chennai-3 instead of Kilpauk Medical College Hospital, Chennai to enable the Director to sanction the medical bills.
On the above issues Dr. M. Hari contacted the Director on intercom and abused him and talked irrelevant things in an impolite manner.
Director, BCG VI., Guindy has requested the Ministry. Dte., to post Dr. Hari to any other organization, so as to enable him to run the affairs of the laboratory in a smooth manner.
20. The above communication of the third respondent was taken note of by the second respondent alongwith the letter of Director, CRI, Kasauli dated 13.10.2003 requesting for filling up the post of Veterinary Officer besides other vacant posts. The second respondent's office puts up the file to consider the request of the third respondent for transfer of the applicant to Kasauli. The office records (SI. No. 89 and 90) proceeds to state that they may request the DOH to consider the request of the third respondent for transfer Ultimately, from the record it is seen, they have no objection to transfer the applicant. It appears that the said decision had been taken without reference to all that had transpired when the file relating to the issue is pending for consideration. Besides, the Director, CRI, Kasauli vide communication dated 24.7.2003 addressed to the Director General of Health Services requested for transfer of the applicant from Kasauli to anywhere else since he was continuously on medical leave. It is relevant to note in this context that the Director of Kasauli sated as follows:
....J.E. Vaccine is manufactured with the mice brain and mice are bred at this Institute under the supervision of Veterinary Officer. At present the Institute has only one filled post of Veterinary Officer out of four sanctioned posts.
In the public interest and on the advice of cardiologist Dr. Hari may be transferred from this Institute to anywhere else and suitable Veterinary Officer may be appointed at the earliest.
21. However, from the record (page 83) it is seen that the Ministry of Health and Family Welfare has considered the representation of the applicant as well as the third respondent. Earlier it was suggested that both the officers be summoned to the Headquarters for reconciliation. Taking note of the health problem faced by the applicant on his earlier transfer, the Ministry had advised the second respondent to either post the applicant at Chengalpattu or CDTL, Chennai. According to the Ministry, the present proposal of the second respondent to transfer the applicant to Kasauli again is likely to create more problem. In view of the above, it was suggested that the applicant may be posted in some other place where the post of Veterinarian exists. However, the impugned order came to be passed without considering the following:
1. The stand of the third respondent as against the order of transfer of the applicant from Kasauli to Chennai dated 19.12.2003 impugned in the earlier O.A., was that the first respondent had not applied his mind while passing the said order of transfer and that it is against public interest and against the interest of the institution.
2. The allegations against the applicant that he was harassing the third respondent and his family members and that the applicant had made allegations of mala fides against the third respondent and that the Laboratory does not require the services of the Veterinarian and that there was political interference in the transfer/posting of the applicant and the posting of the applicant at Chennai is undesirable.
3. The applicant was not allowed to join service from 19.12.2003 to 30.9.2004.
4. The applicant was directed to undergo a medical test to seen whether he is free from Tuberculosis before he could be allowed to join duty pursuant to the transfer order dated 19.12.2003.
5. The applicant was required to submit his explanation as to the report published in the New Indian Express by a Memo dated 21.11.2005 before 3.00 P.M. on that date, and by another Memo dated 22.11.2005, the applicant was asked to explain as to the writings in the Minutes by 5.00 P.M. on 23.11.2005 and the conclusion of the third respondent in his Memo dated 26.11.2005 that the applicant's sordid act of bringing disrepute to the Laboratory for his personal gain was brought to the notice of the Competent Authority for further necessary action.
6. The letter of the third respondent dated 22.11.2005 making complaints as to the conduct of the applicant.
22. From the above, it could be seen that the third respondent had taken strong objection to the reposting of the applicant to the BCG Vaccine Laboratory and continued his representation to different forums including filing of the O.P. and W.P. and representing that the post itself is not necessary and adding to a new complaint dated 22.9.2005 against the applicant, were all taken into account by the first and second respondent without inquiring into and verifying the correctness of the same. They have chosen to accept the request of the third respondent to pass the impugned order of transfer.
23. Thus from the manner in which the decision to transfer the applicant has been taken by the first respondent, we find that it is nothing but arbitrary. While the second respondent at the initial stage took objection to the third respondent going to higher authorities including representing to the Hon'ble President of India, Hon'ble Prime Minister and Hon'ble Minister for Health and Family Welfare and directly writing and communicating and filing O.A. and W.P. without approval of the superior authorities, has simply accepted the allegations of the third respondent overlooking the earlier reasons for transfer of the applicant and the stand of the Kasauli Director that the applicant would not be in a position to serve in that Institute because of the health condition. The allegations contained in the letter of the third respondent dated 22.9.2005 has been accepted on its face value without finding out the correctness or otherwise. The request of the Director, CRI, Kasauli to fill up the vacancy of the post of Veterinary Officer has come handy to order his transfer. This is made without taking into account the objection of the Director, CRI, Kasauli, that the applicant would not be in aposition to serve the Institute because of his health problem. Thus there is a total non-application of mind and arbitrary exercise of power of transfer to ease out the applicant from the present post to satisfy the third respondent's request.
24. From the file, it could be seen that the applicant also had made representations to the first and second respondents. In one such representation dated 19.9.2005, he has complained against the Director for not assigning any professional duties and setting out the responsibilities as per the provisions of the act and the terms of appointment. In comparison with that of the letters and communication of the third respondent, the representations of the applicant appears to be a routine one to the higher authorities. Per contra the representations of the third respondent appears to be in defiance of the higher authorities.
25. In the above background the first and second respondents in permitting the third respondent to file counter affidavit on their behalf is making the whole judicial adjudication a mockery. When so much of personal allegations are levelled against the third respondent and from the file, it could be seen that the third respondent is acting contrary to the known administrative discipline going to extent of filing the O.A. and W.P. against the orders of the first respondent and on the very same issue between the same party, he is permitted to file counter affidavit on behalf of the first and second respondents. It is very unfortunate that the first and second respondents are standing as silent spectators and to the functioning of the Institute at Chennai.
26. The dismissal of O.A, 133/2002 as against the transfer order made against the applicant dated 6.3.2002 does not in any way bar the first and second respondents to reconsider the order of transfer on medical grounds. Therefore, the objection taken by the third respondent to the retransfer order dated 19.12.2003 on the ground that the said order is passed against the spirit of dismissal of the O.A. 133/2002, cannot be sustained. What is relevant is the manner and the extent of objection of the third respondent to the transfer order dated 19.12.2003 going to the extent of defying the order of the first respondent by stating that the said order was passed without application of mind and that he will not give effect to that order. As a matter of fact, the applicant was hot allowed to join duty for nearly 10 months from 19.12.2003, shows that the third respondent is personally prejudiced as exhibited in his various letters written to the higher authorities. Ultimately it is the request of the third respondent to cancel the transfer order dated 19.12.2003 that is found conceded by the impugned order. The first and second respondents cannot deny that but for the complaints and objections raised by the third respondent, there is nothing against the applicant warranting his second transfer to Kasauli. The first and second respondents have also not considered the request of the third respondent that in case, viz., that if the applicant is accommodated, he may be posted as Director, Pasteur Institute of India, Kunoor, for which he has been selected against the anticipated vacancy (vide his letter dated 29.4.2004 to the second respondent). The first and second respondents have not constituted a Committee to go into the problem faced by the applicant as well as the third respondent as proposed. When the first and third respondents have taken such serious objection to the conduct of the third respondent without pursuing the said course of action, they have eased out the applicant in order to satisfy the demands of the third respondent. Therefore, the inescapable conclusion could only be that the impugned order of transfer had been issued conceding to the demand of the third respondent and not in public interest. In other words, the power of transfer has not been exercised under normal administrative exigency but as a measure of penalty.
27(a) Justice V. Khalid, as he then was, of the Kerala High Court in P. Pushpakaran v. The Chairman, Coir Board, Cochin and Anr. 1979(1) SLR 309, held as against the order of transfer as follows:
24....What is ostensible in a transfer order may not be the real object. Behind the mark of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy petral. When the Court is alerted, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. The Court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer.
25....The whole difficulty arise 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 assistance 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 innocence, are quashed by Courts....
(Emphasis added)
(b) The Constitution Bench of the Hon'ble Supreme Court in Syndicate Bank Ltd. v. The Workmen while observing that the mala fide exercise of power to transfer an officer is illegal, has held as follows:
It is true that if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for his trade union activities, the Industrial Tribunals should interfere and set aside an order of transfer, because the mala fide exercise of power is not considered to be the legal exercise of the power given by law. But the finding of mala fide should be reached by Industrial Tribunals only if there is sufficient and proper evidence in support of the finding....
(Emphasis added)
(c) In C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Madras and Ors. 1980 LLJ (Vol. I) page 1, The Hon'ble Supreme Court held that it would not be permissible to order a transfer to circumvent the prescribed process. Their Lordships held as follows:
Courts are chary to interfere with in 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 interest of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power 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 organisations. But if in a given case, an order of transfer appears to be deliberate attempt to by pass all disciplinary machinery and offend the well known principle of audi alterant partem if ex facie 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.
(Emphasis added).
(d) In K.K. Jindal v. General Manager, Northern Railway, the Principal Bench of the Central Administrative Tribunal at New Delhi interefered with the order of transfer on the ground that it was not an administrative order but an order made as a punishment. The Tribunal held as follows:
23. From the above discussion it is clear that the impugned transfer is thus for reasons other than merely administrative. That is only the ostensible conduct. Without any further enquiry they have convinced themselves that he is indulging in undesirable activities and proceed to act on that conclusion. That being the real reason, transfer ordered to byepass the enquiry needed to translate the suspiction to a positive conclusion, to our minds constitutes a colourable exercise of power. If the transfer was not sought to be justified on the grounds mentioned in the counter affidavit, perhaps it would have , been unexceptional. But since the respondents themselves categorically assert that the petitioner was transferred because he was indulging in undesirable activities, it must be held to be punitive as well as the result of a colourable exercise of power. It is also discriminatory and arbitrary.
(e) In Prabodh Sugar v. Punjab State Electricity Board and Ors. 2001(1) SLJ 31 (SC) : 2000 SCC (L&S) 731, the Hon'ble Supreme Court explained the implication and meaning of malice as follows:
Malice, in common acceptation, means and implies spite or illwill, Malice is a question of fact..."
"...the expression "mala fide" is not meaningless jargon and it has its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances....
(Emphasis added)
28. The principles laid down in the above mentioned cases are to be applied to the facts of this case. I find that the impugned order of transfer has been made to get rid of the applicant who is inconvenient to the third respondent. The request by the third respondent to cancel the order of transfer dated 19.12.2003 made in favour of the applicant is the real object to transfer the applicant. The order of transfer is based on the irrelevant considerations. The records show that the first respondent has by the impugned order conferred premium on the open resistence of the third respondent. It is a clear case of colourable exercise of power arbitrarily made. For all these reasons, the order of transfer dated 1.12.2005 and the relieving order dated 2.12.2005 are hereby set aside and the O.A. is allowed with cost of Rs. 1500. Consequent on quashing of these impugned orders, the third respondent is directed to permit the applicant to join duty forthwith.
29. Before paring with this case, I am constrained to observe that the Tribunal is dismayed at the inaction of the first and second respondents at the conduct of the third respondent in bypassing the official hierarchy and discipline expected of a Director. I hope and trust the Service and Conduct Rules are enforced in letter and spirit.