Central Administrative Tribunal - Delhi
Prithi Pal Singh vs Union Of India on 9 May, 2014
IN THE CENTRAL ADMISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No 3915/2012 New Delhi this the 9th day of May, 2014 Honble Mr. A.K.Bhardwaj, Member (J) Prithi Pal Singh, S/o Late Lal Singh, R/o H.No.7, Link Road, Karan Bagh, Jammu. . Applicant (By Advocate Mr. Rajshekhar Rao ) VERSUS 1. Union of India, Through Special Secretary, Internal Security, The Ministry of Home Affairs, New Delhi. 2. Director General, Narcotics Control Bureau HQrs. R.K.Puram, New Delhi. 3. Deputy Director General, Narcotics Control Bureau, HQrs, R.K.Puram, New Delhi. 4. Mr. Rohit Katiyar, Zonal Director, NCB, Zonal Unit Mumbai. Respondents (By Advocate Shri S.M.Zulfiqar Alam) O R D E R Honble Mr. A.K.Bhardwaj, Member (J) :
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has questioned the order dated 01.05.2012 of his posting to Guwahati Zonal Unit of Narcotics Control Bureau (NCB) on administrative grounds and his repatriation to S.S.B Hqrs, R.K.Puram in terms of order dated 6.11.2012. Admittedly, the applicant was employed in Sashastra Seema Bal (SSB) (Armed Border Force) in 1992. He was appointed in NCB on deputation as Technical Assistant in February, 2011 and was posted at New Delhi. In acceptance of the request made by him, he was posted to Zonal Unit Jammu w.e.f. 25.2.2012. However, subsequently he was transferred to NCB Gowahati Zonal Unit in terms of the impugned order. In the present OA, the applicant has questioned the order of his transfer being malafide. He has impleaded Mr. Rohit Katiyar, as respondent No.4 in the OA by name. During the course of arguments, learned counsel for applicant submitted that since the applicant refused to accede the illegal demand of respondent No.4 and/ or cooperate in his illegal action, he was made to suffer. No specific act of malice of said respondent could be pointed out by him. On being repeatedly asked to highlight any act of respondent No.4, which may amount to malafide, learned counsel read out of para 4.11 to 4.13 of the OA which read as under:-
4.11. That eventually when he was unable to hear the humiliation being meted out to him by Respondent No.5 who continued to harass the Applicant without any basis whatsoever and presumably in view of the Applicants refusal to accede to his illegal demands and/or cooperate in his illegal actions, the Applicant was left with no option but to seek out his superior officers for redressal of his grievances. Therefore, vide letter dated 23.4.2012, the Applicant made a request for a personal interview with the DG, NCB in order to highlight the wrongdoings and official grievances that he had observed in the Zonal Unit at Jammu. The said Application was forwarded to the Zonal Director on 24.04.2012 through proper channel by Respondent No.5.
4.12. It is pertinent to mention here that, immediately following the Applicants request for a personal interview with the DG, NCB, without any justification and/or basis whatsoever, he was served with a transfer order dated 1.05.2012 purportedly issued in furtherance of an NCB Hqrs. Office Order No. 11/1(416)2012/Estt 591 dated 1.05.2012, informing him that he had been ordered for posting to Guwahati Zonal Unit on administrative grounds with immediate effect. The Applicant was informed that he was to be relieved from the Unit on 4.05.2012 (A/N) and that he was, therefore, required to submit the clearance/no dues certificate from all concerned within two days and, most importantly, to hand over charge of the Y room to Sh.Hardeep, I.O.
Pertinently, the said Order was stated to have been issued as per telephonic direction of the then Zonal Director, Respondent No.5. 4.13. That while the applicant was still recovering from the shock of the said transfer order which clearly appeared to be motivated by extraneous considerations and wondering as to the consequences of having to leave for far off Guwahati leaving his aged and ailing parent for whose benefit he had sought deputation at Jammu only, the applicant was served with a further Order dated 2,05.2012 issued in suppression (sic) of the earlier order dated 1.05.2012 informing the applicant that he was being posted to NCB Guwahati Zonal Unit from the Jammu Zonal Unit w.e.f. the very same day, i.e. 2.05.2012 (FN), Strangely, the previous direction requiring the applicant to obtain no due certificate and hand over charge of the Y room ( which was an extremely sensitive and important responsibility) was omitted despite it being a standard and mandatory practice followed in all cases, Clearly, the intent was to have the applicant removed from Jammu forthwith and without any regard for applicable rules. The timing, the haste and the manner in which this entire procedure was orchestrated clearly reeks of mala fide and amply demonstrates that the decision to send the applicant as far away from Jammu as possible was clearly motivated by extraneous consideration and appeared to have a direct and proximate nexus with the applicants request for an interview with the Director General, NCB. The only allegation made by applicant in para 4.11 is that the respondent No.4 continued to harass him presumably in view of his refusal to illegal demands and/or to cooperate in his illegal actions. The allegations made by the applicant are as vague as these could be. As has been viewed in Parbogh Sagar Vs. Punjab State Electricity Board and Ors ( 2000 (5) JT 378), malice and malafide can only be appreciated from the records of the case in the facts of each case and there cannot possibly be any set guidelines in regard to the proof of malafides. Malafides, where it is alleged, depend upon its own facts and circumstances. Also in Kiran Gupta Vs. State of UP (2000(2) SCSLJ 392), Honble Supreme Court viewed that the allegations of malafide cannot be accepted, unless there is material to support the same.
2. In Indian Railway Construction Co Ltd Vs. Ajay Kumar (2003 (2) SCSLJ 109), it was held that one who alleges malafide has to establish the same. In the present case, the applicant has not produced any material to establish the same. Thus, the impugned order of transfer cannot be held to be vitiated on this ground. Admittedly, there was misunderstanding between the applicant and Mr. Rohit Katiyar, Zonal Director, NCB and the applicant indulged in making complaints to the senior officer. In such circumstances, to maintain congenial atmosphere in Gowahati Zonal Office, it had become essential to transfer the applicant.
3. In the case of L.B.Shahdadpuri Vs. UOI & Ors (1992(2) ATJ page 582), a Co-ordinate Bench of this Tribunal at Mumbai ruled that even in order to have a proper and congenial atmosphere and in public interest and to avoid inconvenience to public, the respondent could transfer an official and it could not be called as a punitive transfer. In the aforementioned case it was also viewed that Courts or Tribunal cannot sit in appeal over the administrative decisions of transfer of government officials. Relevant excerpts of said judgment (para 5 and 7 to 10) read as under:-
5. It is now clearly well settled by recent decisions of Supreme Court that Courts or Tribunals cannot sit in appeal over administrative decisions of transfer of government officials. The transfer is an incidence of service. Therefore, the Supreme Court has clearly stated in number of recent decisions that order of transfer can be challenged only on two grounds viz., its being in violation of statutory rules or mala fide (vide (1) AIR 1992 SC 2444-Union of India & Ors v. S.L.Abbas, (2) 1995, SCC L&S 666-State of Madhya Pradesh & another v. S.S.Kaurav & Ors, (3) AIR1993 SC 1236- Rajendra Roy v. Union of India. In the present case there is no allegation that the impugned order of transfer is contrary to any statutory rules. No such argument was addressed before me.
The only ground alleged is that it is arbitrary, punitive in nature, mala fide etc. As far as the allegations of mala fides are concerned, except a bald allegation, I do not find any material in the OA to show that the applicant has any personal enmity or ill will with the Regional Director who passed the order of transfer. Therefore, this is not a case of transfer being mala fide at all. The Regional Director has come recently to Bombay only three months prior to the impugned order of transfer. The applicant has nowhere alleged that there was any hostility or ill will or bitterness between him and the Regional Director. Therefore, on the face of it, the argument about the order to transfer being mala fide has no legs to stand.
6. xxx xxx xxx
7. Some of the decisions cited by the learned counsel for the applicant do not bear on the facts and circumstances of the present case. I will refer to the decisions relied on by the learned counsel for the applicant.
In 1974 (1) SLR SC 497, E.P. Royappa v. State of Tamil Nadu & Ors., a Chief Secretary of the Madras Government had challenged his transfer on the ground of mala fides. He further challenged the transfer on the grounds that it is contrary to the rules since his post is an ex cadre post which was not an IAS cadre post. The Supreme Court rejected the ground of mala fides on some instances he had given about disagreement between him and the then Chief Minister. May be, in the general observations the Supreme Court has observed that Article 14 must be applied even in case of administrative orders. But, on facts the Supreme Court rejected the claim of the Chief Secretary challenging transfer. A person who was holding the post of a Chief Secretary of a State, who is the Chief Executive of the State, had been transferred in the first instance as a Deputy Chairman of a Committee and again subsequently he was transferred as a Special Officer on duty. The Supreme Court has rejected the assertions of the Officer in that case and did not interfere with the order of transfer.
The learned counsel for the applicant placed strong reliance on the judgment of a learned Single Judge of Bombay High Court reported in 1998 (2) SLR (Bombay) 418 ( Shamrao Chandrappa Kamble v. Deputy Engineer ( B&C) Panchayat Samiti, Miraj, Sanli and Ors., where no doubt the High Court has observed that a punitive transfer can be quashed. But, we must read the observations of the High Court with reference to the peculiar facts of that case. There is no dispute that if an order to transfer is punitive in nature it has to go. But the question is whether in the facts and circumstances of a particular case, the order of transfer is punitive or not has to be decided. In the case before the Bombay High Court, the facts are eloquent. There was a dispute between the transferred employee and the immediate officer under whom he was working and his superior was asking him to do some private works beyond official duties. The High Court has gone into details fact and circumstances of that case and on facts came to the conclusion that it was a punitive transfer and therefore quashed the same.
In the present case, I have already pointed out that the applicant does not make any allegation against the officer who has transferred him. His only case is that if the officer has received some complaints he could not have transferred him unless an enquiry is held and the applicant is found guilty. In my view, the above cited decision is not applicant to the facts of the present case.
8. Then reliance was placed on a decision of Chandigrarh Bench of the Tribunal reported in 1993(2) ATJ 321 (Shri Avinash Chandra v. Union of India & Ors) where again a Single Member Bench of this Tribunal has held that on received complaints and without giving an opportunity to the officer for explanation, the transfer should not have been made and it is punitive in nature. In that case, after receiving some complaints against the official, the department made an informal enquiry and then transferred the officials. The file was not made available to the Tribunal at the time of hearing of the OA. The nature of the complaint against the two applicants was not made known. Then the application in that case was not asked to explain the complaints against them. In those circumstances, the Tribunal came to the conclusion that it is a punitive transfer and therefore liable to be quashed.
In the present case, the applicant himself admits that after receiving number of complaints zerox copies of the complaints were furnished to the applicant and his explanation was taken. Therefore, on facts it cannot be said that applicant has not been heard. It is not necessary that in every case the matter should not end in a regular departmental enquiry. We can take judicial notice that in many cases departmental enquiries go on for years together. Can I be said that when grave allegations are made against the officials he should be kept in same place for years together till the disciplinary enquiry is completed.
Then reliance was paced on a decision of a Division Bench of this Tribunal in the case of S.A.Engineer v. Union of India & Ors, reported I 1997 (2) SLJ306, I have gone through the facts of that case and the allegations show that there previous cases between the parties and number of disputes between the applicant and higher officer. On facts, the Tribunal came to the conclusion that it is an illegal transfer and liable to be quashed.
9. As already stated, the question whether in a given case the transfer is punitive or in public interest must be examined in the facts and circumstances of that particular case. No hard and fact rule can be laid down on a matter like this. The learned counsel for the respondents has placed before me the file pertaining to the transfer of the applicant. It contains number of anonymous complaints and one written complaint on a latter head of a Chartered Accountant Firm against the applicant. Then there is a report dt.7.1.1999 just one day prior to the impugned order of transfer dt. 8.1.1999 by the Regional Director to the Joint Secretary of the Deptt. of Company Affairs. In this, the Regional Director has mentioned that he has received some anonymous complaints and also one specific complaint against the applicant, not only against the applicant but also against the Registrar of Companies, Mr. Prabodh. He has given number of reasons as to why he feels that in the interest of administration he wants to transfer both of them. Now I am told that Mr. Prabodh is transferred to Calcutta and under the impugned order, the applicant is transferred to Ahmedabad. The letter of the Regional Director shows that he wants to have extreme transparency in the office and speeding up of the work and streamlining the whole set up. He has noticed that there is delay in attending to applications and documents in the office. There are complaints about undesirable behaviour of applicant in dealing with the public. In order to avoid inconvenience to the public and in public interest and administrative exigencies, he has decided to transfer these two officials viz. the applicant and the Registrar of Companies to different places and has reported the matter to the head of the Department even prior to the order of transfer. He has also mentioned that considering the background of the applicant and the frequency of complaints of freedom given to him by the ROC, without going to the truth or otherwise to the allegations, he feels that in the interest of administration the applicant should be transferred.
Therefore, it is not a case of the applicant being transferred as a punitive measure. Having regard to the back ground of complaints if the administration feels to have a congenial working atmosphere and to avoid inconvenience to the public and if he wants to transfer an official it cannot be said that the transfer is punitive in nature. Even now enquiry has to be held, it may take two years, three years or even more. Even then, it cannot be final since it can be challenged before the appellate authority and then before a judicial forum. The administration cannot be left without any power of transferring an official if it feels that in larger administrative interest a transfer is necessary without going to the truth or otherwise of allegations against a particular officer. The ultimate test is public interest and administrative exigency and not individual or personal difficulties of an official.
The argument is that if there are complaints against an official he cannot be transferred since it amounts to punitive transfer unless a proper and regular enquiry is held and he is found guilty. Even if we accept this argument as correct, in my view, an order of transfer cannot be passed by way of punishment. Rule 11 of CCS (CCA) Rules provide as to what are the penalties or punishments that can be imposed after an official is found guilty. Then transfer is no where mentioned as one of the punishment in that rule. Therefore, if after finding an official as guilty and the Disciplinary Authority passes an order that in view of his being held guilty by way of punishment he is being transferred, it can be seriously challenged on the ground that there is no power for the Disciplinary Authority to inflict an order of transfer by way of penalty since it is not one of the penalties mentioned in Rule 11. Therefore, we find that in the case of serious allegations against an official he cannot be transferred prior to enquiry since it amounts to punitive transfer and he cannot be transferred after enquiry since transfer is not one of the punishments in Rule 11 of the CCS (CCA) Rules. In my view such an interpretation on the exercise of power cannot be given. Ultimately it is a question for the administration to decide having regard to the facts and circumstances of the case and to have a clean and sufficient administration whether it is necessary to transfer an official or not. It may be having regard to some complaints against an official, the administration may feel that to have a proper and congenial atmosphere and in public interest and to avoid inconvenience to public, he may transfer an official and it cannot be called as a punitive transfer.
10. The learned counsel for the applicant pointed out some personal difficulties of the applicant like his father is not well, about eviction of quarters, his wife working at Bombay etc. These are personal difficulties which are to be pressed before the Competent Authority or higher authority as pointed out by the Supreme Court in recent decisions, these personal difficulties are not grounds for a Court or Tribunal to interfere with an order of transfer. There are many guidelines for effecting orders of transfer, but the guidelines are meant to be obeyed by the officer and if it is not obeyed, grievance may be made to higher officer, but certainly not to a judicial Tribunal. In view of the latest legal proposition, I do not find that the applicants case of challenging the transfer is not sustainable in law (vide S.L.Abbas -AIR 1993 SC 2444).
In NCB, the appointment of applicant was only on deputation for a limited period and admittedly he has been repatriated to SSB, i.e his parent office on his own request.
4. In Kunal Nanda Vs. Union of India and Anr ( 2000 (6) JT 574), it has been held that a deputationist has no right to hold the post and can be repatriated to his parent department at any time. For easy reference, the relevant excerpt of the judgment is extracted hereinbelow:-
6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for permanent absorption in the department where he works on deputation is based upon any statutory Rule, Regulation or Order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation. The reference to the decision reported in Rameshwar Prasad v. M.D., U.P. Rajkiya Nirman Nigam Ltd., (1999) 8 SCC 381 : 1999 AIR SCW 3427 : AIR 1999 SC 3443 : 1999 Lab IC 3285 : (1999 All LJ 2220) is inappropriate since, the consideration herein was in the light of statutory rules for absorption and the scope of those rules. The claim that he need not be a graduate for absorption and being a service candidate, on completing service of 10 years he is exempt from the requirement of possessing a degree need mention, only to be rejected. The stand of the respondent-department that the absorption of a deputationist being one against the direct quota, the possession of basic educational qualification prescribed for direct recruitment i.e., a degree is a must and essential and that there could no comparison of the claim of such a person with one to be dealt with on promotion of a candidate who is already in service in that department is well merited and deserves to be sustained and we see no infirmity whatsoever in the said claim.
5. In view of the aforementioned judgment of Honble Supreme Court and also the fact that the applicant had himself made a request for repatriation, I do not find any infirmity in the impugned order dated 01.05.2012. In view of the fact that the applicant indulged in making complaint against his superior, the impugned order of transfer is not abased and is valid independently. In view of the repatriation of the applicant to SSB on his own request, I find no infirmity in the order of repatriation dated 06.11.2012. Even otherwise also the challenge to the order of transfer from one unit to another of NCB is otherwise infructuous. In the circumstances, the OA is found devoid of merit and is accordingly dismissed.
( A.K.Bhardwaj) Member (J) sk