Central Administrative Tribunal - Allahabad
The Applicant Has Alleged Mala Fide In ... vs Union Of India & Ors (Air 2009 Supreme ... on 12 June, 2014
Vacation Court Reserved O.A. No.330/00700/2014 Dt 12.06.2014 Honble Ms. B. Bhamathi AM Shri M.S. Pipersenia is present for the applicant. Shri R.B. Singhal, Senior Advocate assisted by Shri Ajay Singh is present for respondents.
At the very outset both the learned counsel for parties averred that the controversy involved in the instant OA is identical in nature to that of OA no 699 of 2014 and learned counsel for the applicant argued the aforesaid case as leading case.
Interim relief Present Stay Application has been filed by the applicant to stay the operation of the order dated 19.05.2014 and relieving and transfer order dated 19.05.2014 and the respondents may be directed to permit the applicant to work as Scientist C at Kanpur.
The applicant has alleged mala fide in the transfer orders issued by respondent No.3 (Director, D.M.S.R.D.E. (Defence Material Store Research and Development Establishment, G.T. Road, Kanpur-208004- arrayed as respondent No.4 by name also) The case of the applicant is that the applicant is a Mechanical Engineer posted at Kanpur since 1985. He is presently the head of three Divisions viz Engineering & Manufacturing Division (EMD), Centre and Advanced Technology Group (CAD). The respondent No.3 was posted as Scientist C in DMSRDE Kanpur on 28.04.1984 and was appointed as Director DMSRDE, Kanpur on 01.01.2011. The applicant had given several complaints of alleged financial and administrative irregularity against respondent No.3 and respondent No.2 forwarded the complaints to respondent No.3. He filed the complaints against respondent No.3 vide letter dated 12.11.2013, 18.11.2013 and 28.11.2013. He was informed vide letter dated 4.2.2014 that a three member of Fact Finding Inquiry Committee (FFIC) has been constituted for making inquiry into the complaints. Respondent No.3 himself informed vide letter dated 05.03.2014 about the visit of FFIC but the report was never given to the applicant even after an RTI application was filed by applicant. But the applicant was transferred/relieved and ordered to move to Kanpur by the impugned orders all dated 19.05.2014 in public interest. A letter was issued by the respondent No.2 for his performance assessment 2014 and the date of interaction was fixed on 27.05.2014 at Delhi. But the applicant was transferred prior to the date of interaction to Kanpur. He has also stated that his two daughters are studying at Kanpur and the transfer took place in mid session. He has stated that five other persons working in Kanpur between 1981 to 1983 are continuing in Kanpur and this is discrimination against the applicant showing mala fide. The case of the applicant is that the order of transfer has been issued on mala fide grounds after the complaints made by applicant against respondent No.3. Further, under Rule 11 of CCS (CC&A) Rules the Fact Finding Committee was illegally constituted because it had persons junior to the applicant. The FFIC report was also not furnished to the applicant. The FFIC recommended the transfer of the applicant while allegedly exonerating the respondent No.3. In the SCA filed by the respondents, it has been claimed that the photocopy of the FFIC Report has been provided to the applicant, whereas the document enclosed is not the FFIC Report. His representations have also not been responded to. Also in a letter addressed by respondent No.3 to the DG (NS&M) dated 30.01.2014, the respondent No.3 had sought the transfer of the applicant by way of punitive action against the applicant for making complaint, thereby establishing case that the transfer is motivated and mala fide. In support of his case, applicant placed reliance on the judgment of Honble Supreme Court in the case of Somesh Tiwari vs. Union of India & Ors (AIR 2009 Supreme Court 1399).
The case of the respondents is that the impugned order has been passed by Joint Director for DGR&D, for DG (R&D), who is the competent authority for issuing the order of transfer. Respondent No.3 has not issued the orders and hence any allegation of mala fide against respondent No.3 does not lie. In fact, the respondent No.3 reports to DG (NS&M) and not to DG (R&D). No averments of mala fide have been made by the applicant on the part of DG(R&D) through his pleadings nor has he been made a party. There is also nothing in the pleadings to show that the DG (R&D) has acted under the influence of respondent No.3. DGR&D has applied his mind independently and issued orders for the applicants transfer in public interest. The personnel can be moved on the basis of need among the various laboratories and for better utilization in R&D activities. The FFIC report has also not been challenged in the O.A. to show any proof of abuse of authority and unless the report is challenged, the allegation may be treated as vexatious. The applicant is also in the habit of filing frivolous complaints. He had earlier filed complaint against the Director when posted at Gwalior, then against predecessor of respondent no.3 and now against respondent No.3. The respondent has also highlighted the sensitive nature of the institution of DRDO, dealing with national security matters. In support of his case counsel for the respondents filed several rulings to make out the case that the transfer orders should not be interfered with by the Tribunal/Court, which are as under:-
(i) National Hydroelectric Power corporation Ltd. Vs. Shri Vhagwan & Anr.; (2001) 8 Supreme Court Cases 574.
(ii) Major General J.K. Bansal vs. Union of India & others; (2005) 7 Supreme Court cases 227.
(iii) Union of India and others vs. S.L. Abbas; (1993) 4 Supreme Court Cases 357.
(iv) Shilpi Bose & others vs. State of Bihar and others; 1991 Supp (2) Supreme Court Cases 659.
(v) S.C. Saxena vs. Union of India & Ors; (2006) 9 Supreme Court Cases 583 I have gone through the pleadings in the O.A., RA and SRA filed on behalf of the applicant and also perused the annexures filed in support of the O.A., RA and SRA. I have also gone through the CA and SCA filed on behalf of the respondents and also gone through its annexures.
In the light of the directions of the Honble High Court of Allahabad and keeping in view the critical ramification pertaining to a sensitive national security organization, I have limited myself to merely consider the case as it impacts the prayer for interim relief, although the pleadings are complete in this case. Adjudicating the case for final orders according to the merits of the case would require far deeper consideration.
It is admitted, as per settled position of law, on the part of both parties that Courts/Tribunals should not interfere with the orders of competent authorities, but it would not extend to cover cases, where malafide is made out. The question to be looked into for the limited purpose of disposal of stay application is whether there is any prima facie case of malafide on the part of respondents. The applicant gave complaints against respondent no 3. In response, a FFIC was constituted by the higher authorities to see if, from an administrative and vigilance point of view, any prima facie case has been made out. There was no basis or scope, at this stage, for invoking provisions of the CCS CCA Rules, which is a matter of disciplinary proceeding against individual public servants. The FFIC report (CA-3) is not on record as claimed by respondents in the SCA, but a brief facts of the case has been kept in place of the Committee report. It is fact that the FFIC report was not given to the applicant under the RTI Act. The Parliament considered it fit to exempt DRDO, and such other National Security Organizations from the purview of the RTI Act under section 24 Schedule 2. We also note that the documents filed by the respondents with the CA and SCA show that the respondent no 3 has himself provided para wise remarks (in response to references on the applicants complaints received by respondent No 3 from higher authorities, including that of the DG, NS&M) and the responses (correspondences available on record) have been sent to where they should go i.e. his DG (NS&M) to whom he reports. The annexures to the above mentioned para wise/detailed responses show that the remarks are invariably accompanied by documents to substantiate his actions, showing also due application of mind in furnishing the replies to his superior authorities, to whom he is accountable. In the final correspondence dated 30.1.2014, the respondent no 3 has requested that the applicant may be transferred out of Kanpur after finding his presence in Kanpur establishment and repeated filing complaints and RTI applications disturbing in discharge of duties, even as actions are being taken in response to the complaints. When authorities have the right to report against any undesirable activity and when such report result in transfer orders can they be considered mala fide?. This can by no means called malafide. This is part of normal governance and such request can be made when things exceed tolerance limits. It was not in the power of respondent 3 to transfer and therefore a request was, formally, made. It cannot be presumed that the office of DG R&D from where the transfer order was issued was motivated and malafide, based on the request of respondent 3. For the DG (R&D) administrative interest was a priority consideration, which constitutes public interest. The applicant found the necessary space to express what he wanted to say by way of complaints on issues which he perceived to be wrong. But he cannot dictate how the complaints will be perceived, assessed and analyzed or would lead to what comes, not in line with his own perceptions. No public servant can hold superior officers to ransom by repeated complaints, once respondents have done and are seen to have taken necessary action, as deemed fit. Freedom to question was available and accessed by the applicant, but freedom to seek to settle issues or complaints raised through unbecoming behaviour tantamount to misusing of rights by employees. This principle pertains to sensitive or strategic organizations or any other organization. The difference may be in degree but not in kind. The Director responded to DG (NS&M) on the reference about the complaints and did not shy away from responding, because he acted on the basis of his official accountability. The higher authorities also responded by setting up an FFIC to look into the complaints and in this manner did give cognizance to the complaints. If the authorities, which involved the Vigilance, the O/O DG NS &M, DRDO, DG R &D, the Ministry of Defence etc. (all of whom were kept informed through the various correspondences) saw in their wisdom no substance in the allegation, then this cannot be questioned as merely arising from alleged malafide of Respondent no 3. Notwithstanding the above, persistence in pursuit of such responded complaints, can be seen as disturbing in discharge of duties by public servants, who are targeted, and can be a cause of either initiating disciplinary action or transfer in public interest. The respondents chose the latter option for taking administrative action. When such actions are taken in public interest, they are in the very nature of things, exceptional actions in response to exceptional situations, as in the case of the applicant and are not liable to be seen as discriminatory, since they are to be uniformly applied only in all cases where administrative considerations are involved and not in other cases. It is settled position in adminstrative jurisprudence that transfer, even if effected in public interest is not a punishment. Further, the personal grounds for staying the transfer of applicant does not deserve any consideration. It is observed that it is not mid session for educational purposes of children, whereas the time is now for beginning of new sessions for fresh admission.
It has been averred in the OA that the allegations are still under investigation in the vigilance. Hence, I do not deem the matter to have concluded. The promotion of applicant is a subject matter of another OA filed before this Tribunal. Hence, keeping in view the foregoing, I am conscious that I have gone into the merits of the case only to the extent that it is required to adjudicate the prayer for interim relief and not the main relief itself.
In view of the above, the prayer of interim relief in respect of instant OA and OA 699 0f 2014 is rejected.
List this case on 11.07.2014.
(AM) Sushil 10