Calcutta High Court (Appellete Side)
Mr. Sitaram Bhattacharya ... For The vs The State Of West on 27 August, 2009
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
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27.8.2009 W.P.S.T. 1065 of 2008
Mr. Sitaram Bhattacharya ... For the
Petitioner.
Mr. Ashim Kumar Halder ... For the
State respondent.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 5th May, 2008 passed in O.A. No.1871 of 2006 by the West
Bengal Administrative Tribunal, this application has been filed.
The impugned order reads such.
" Case No. O.A. 1871 of 2006
Subir Bose -Vs.- The State of West
Bengal & Others
05/05/2008 For the applicant : Mr.Masud
Karim, Ld.
Advocate.
For the respondents: Mr.S.Mustafi,
Ld.Advocate.
Parties are present through their Ld.
Advocates.
One fresh vakalatnama is being filed on behalf of the petitioner. Let it be kept
with the record. Rejoinder is also being filed today. Let those also be kept with the
record. Copy served.
As suggested by the parties, the matter is being taken up for consideration by us.
Heard the parties at length. Perused also the materials available on record.
By this application, petitioner before us has challenged the reasoned order, and
has prayed for quashing and/or setting aside of the impugned reasoned order dated 27-03-
2006, passed by the concerned authority in terms of the direction of this Tribunal.
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From the materials available on record, it appears to us that petitioner,
challenging his order of transfer, whereby he was transferred to I.T.I., Alipurduar from
I.T.I. Howrah Homes, approached this Tribunal through one O.A. application (being
O.A. No.606 of 2005), whereupon this Tribunal in disposing of the aforesaid application
by its order dated 08-07-2005, directed the concerned authority, specially, Respondent
No.2 of the aforesaid application to treat the application of the petitioner together with all
its annexures as a representation and to dispose it of within a specified time, and to
communicate the same thereafter.
Consequent upon that, one reasoned order has been passed by the concerned
authority, wherein it was reflected that no injustice or discrimination was done against
the present petitioner in issuing the aforesaid transfer order dated 09-06-2004.
Being aggrieved by and dissatisfied with the aforesaid reasoned order, the
petitioner again approached this Tribunal through this application.
Now, coming to the merit of the application itself, and upon scrutiny of the
materials available on record, it appears to us that after issuance of the transfer order way
back in 09-06-2004, the petitioner did not join the transferred post, and after submission
of his representation to reconsider his transfer order, the concerned Respondent authority
made a request him to carry out the transfer order, and to join the post of L.D.C. at I.T.I.
Alipurdhar forthwith, and after that, prayer for transfer of the petitioner shall be
considered by them in due time.
Even after such request was made, nothing was done by the present petitioner, and
consequently, no other favourable order was passed in favour of the petitioner
transferring him elsewhere, nor any other order was made by them by modifying the
transfer order, issued against the present petitioner, transferring him to I.T.I., Alipurduar.
It is quite settled position of law that when reasoned order is being challenged
before a court or tribunal, certainly in appropriate cases, court or tribunal could interfere.
But, this cannot be claimed as a matter of right by anyone, and to have such relief, one
has to place before a court or tribunal adequate materials for persuading the court or
tribunal to interfere with such reasoned order showing materials that there has been
illegality/infirmities in passing the reasoned order.
But in the case at hand, nothing of the kind has been shown before this Tribunal so
as to hold that there has been any illegality/infirmities in passing the aforesaid reasoned
order. So, that being the position, normally we find no reason, whatsoever, to interfere
with the reasoned order passed by the concerned department.
But, in disposing of the present matter, taking cue from submissions made on
behalf of the State Respondents that the concerned authority had taken a decision that
they may consider the case of the present petitioner to transfer him to some other place in
due time, provided the petitioner at the first instance is willing to carry out the order of
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transfer or in other words, he joins the present post to Alipurduar, we pass this direction
for disposing of this application.
The present petitioner is directed to join the transferred post at L.T.I., Alipurduar
within a period of 06 (six) weeks hence. He shall submit a representation to the
concerned authority stating all his grievances within next 04(four) weeks. And in the
event of filing such representation by the petitioner, as indicated above, the concerned
authority shall take into consideration the aforesaid representation, and dispose it of in
accordance with law, as soon as possible, preferably within a period of next 04(four)
months, and if possible, they shall pass any other appropriate transfer order in favour of
the present petitioner within the aforesaid period.
Petitioner is also directed to file formal application after his joining to the
transferred post at Alipurduar for regularising his service, and in the event of filing such
application by the petitioner, the concerned authority shall take steps to regularise the
service of the present petitioner in accordance with law, as soon as possible.
With this, we dispose of this application.
Plain copy.
Sd: S.S.Ahuja Sd/- P.K.Biswas
MEMBER(A) Chairman"
This case has a chequered history. By the order dated 9th June, 2004 the writ petitioner was
transferred to I.T.I, Alipurduar from I.T.I, Howrah Homes. The petitioner made a representation
seeking recalling of the said transfer order on assigning the two main reasons; (i) he is a patient of
high myopia and was declared 40% disabled by the Zonal Medical Board (Zone D), N.R.S Medical
College and Hospital, Calcutta and for that reason, as per medical advice, he has to consult the
concerned Doctor of the said Medical College frequently. and (ii) his mother is dependent upon
him who is ailing and aged 78 years of age and there is none to look after him as the petitioner
himself is a Bachelor. This representation was not considered. The petitioner moved that issue
before the West Bengal Administrative Tribunal, Calcutta in O.A. No.606 of 2005 wherefrom he
got an order dated 8th July, 2005 by which the Tribunal directed the concerned authority,
particularly the respondent No.2, the Director, Directorate of Industrial Training, West Bengal to
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consider his original application along with its annexures as representation and thereafter to dispose
of the same in accordance with law. The petitioner filed a positive written notes of submission
summarising his contention made in different representations. A lawyer's representation was
submitted to the said respondent No.2, the Director of Industrial Training, West Bengal on the
points which are as follows.
"1. I am a patient of high myopia and have been declared 40% disabled by the Zonal
Medical Board ( Zone D) N R S Medical College and Hospital, Calcutta.
2. Since I was physically disabled as above mentioned, I made several representations
for being close to my residence at Kidderpore preferably ITI, Gariahat.
Inspite of the same I was last posted at ITI, Howrah Home and while working there I
was sought to be transferred to ITI Alipurduar inst4ead of being considered for transfer to
ITI Gariahat which I had already prayed for in view of my tremendous physical
difficulties.
Besides my physical difficulties I have an old ailing mother of 70n years of age who
is suffering from hypertension and other old age ailments and who has none other than
myself to look after her. I am a bachelor.
3. I very humbly submit that at one point of time while working at ITI, Kalyani I was
sought to be promoted as Cashier in the rank of UDC at ITI Alipurduar but due to my
suffering from serious physical disabilities as aforementioned I had no other alternative
but to express my unwillingness for transfer to Alipurduar thereby having to forego to
such promotion. My present transfer and posting is at the same place Alipurduar that I had
once given up on promotion.
In the circumstances stated above, I must humbly pray that my transfer order from
ITI Howrah Homes to ITI Alipurduar may kindly be withdrawn and a fresh transfer and
posting order be issued transferring me from ITI Howrah Homes to ITI Gariahat or any
other such ITI organisation nearer to my residence at Kidderpore for which I shall ever
remain grateful to your Honour.
I have been released from ITI Howrah Homes on or about 7.7.2004 and am now in
the wilderness not having been able to join at ITI Alipurduar and hence would also pray
before your Honour to regularize my period of absence by adjusting the same towards
leave/medical leave etc. and pass orders for granting my salary for the said period as also
disability allowance to enable me to tide over my serious financial condition.
And for this I would remain ever grateful to your Honour.
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Yours respectfully,
Sd/: Subir Bose
(Subir Bose)
Lower Division Clerk
Industrial Training Institute, Howrah
Homes now released
of
1/1, Bishu Babu Lane, Kidderpore,
Calcutta - 700 023."
In the representation as filed earlier and in the original application which was directed to be
considered as representation, the petitioner annexed the medical certificates of respective years, his
treatment details and his health condition and the health condition of his mother. The medical
certificates were also annexed in the said original application relating to his treatment of left eye
due to the illness, as already referred to myopia. The Director of Industrial Training, West Bengal
by his decision rejecting his prayer seeking recalling of the transfer order and posting him to a
place nearby to his residence, namely, at I.T.I, Gariahata. The decision of the said Director dated
27th March, 2006 rejecting his prayer to recalling the transfer order reads such.
" Government of West Bengal
Technical Education & Training Department
Directorate of Industrial Training
Bikash Bhavan, 10th floor, North Block,
Salt Lake City, Kolkata - 700 091.
No.1M-399/2005/5328(3) Dated: 27-3-2006
ORDER
Hon'ble W.B.S.A.T. ordered in case No.606 of 2005 ( Sri Subir Bose -Vs- State of West Bengal & Ors.) that the applicant should be given a hearing by the Director of Industrial Training and dispose of the matter by passing a reasoned order.
A Notice was issued to him and he was asked to appear before me on 23.9.2005. Sri Subir Bose duly appeared before the undersigned and presented his case. During hearing the applicant submitted a written note for consideration. The written note has duly been considered.
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In the year, 1999 while the applicant was serving as L.D.C. at I.T.I., Tollygunge, the applicant was served with a "SHOW CAUSE" notice vide Memo No. 1C- 488/99/7151(1) dated 19.07.1999 for dereliction of his duties as the applicant was not performing his duties assigned to him by the Principal, I.T.I., Tollygunge. Ultimately, the applicant was "WARNED".
In the year, 2002, while, the applicant was serving as L.D.C. at I.T.I. Howrah Homes, a "CHARGE-SHEET" was issued to the applicant and an enquiry against him was ordered. But the charge-sheet was not accepted by him. Such behaviour of the applicant in non-accepting the charge-sheet is tantamount to the violation of the West Bengal Government Servant's Conduct Rules, 1959. On the basis of the report of the Inquiring Officer, an order was issued imposing the penalty of withholding two annual increments.
Sri Subir Bose has been transferred from I.T.I. Howrah Homes to I.T.I. Alipurduar Vide order dated 09.06.2004 of D.I.T. not on the basis of the report of the earlier enquiry but in the interest of public Service and the transfer is a routine matter. His earlier mis- conduct did not have any bearing on the transfer order dated 09.06.2004.
The submission made by Sri Bose was given due consideration by me and it was found that no injustice or discrimination was done in issuing the transfer order dated 09.06.2004. Sri Bose should carry out the order without delay.
Sd/:
Director of Industrial Training West Bengal."
On a bare reading of the said order of the Director of Industrial Training, West Bengal it appears that the Director did not answer the grounds as taken by the petitioner, namely, (i) he is suffering from myopia and 40% disablement thereof which may cause problem of his joining in the transferred post at Alipurduar; (ii) the health condition of the mother who is ailing and aged and who has none to look after except the writ petitioner and further ground (iii) that earlier the writ petitioner was posted in a promotional post of U.D.C at Alikpurduar, but he had to forego such promotional benefit on the ground of his physical disabilities as well as the family condition. It appears that in the impugned order of Director, Industrial Training, West Bengal assailed before the learned Tribunal below, the said Officer only held that earlier punishment as imposed in departmental proceeding was not at all a factor to transfer from Howrah to Alipurduar; save and 7 except no ground was taken considering the aforesaid three points which were the positive stand as taken by the petitioner seeking recalling of the representation.
When the learned Tribunal by its earlier order dated 8th July, 2005 directed to consider the original application as representation wherein all these issues were there, the said Officer was required to consider that in that angle and to pass a reasoned decision. There is no whisper in the order that all the grounds as taken were not legally sustainable or those were not the facts.
Having regard to such, we are of the view that the learned Tribunal ought to have considered that issue in the impugned order as passed which is challenged in this writ application, being the order dated 5th July, 2008. Learned Tribunal below did not consider that aspect of the matter though when by judicial order any Officer is directed to consider the matter, that Officer is bound to consider the matter in the angle as has been canvassed in the application which was directed to be considered and in not doing such, the order surely would not be a justified order. Here is a wrong committed by the learned Tribunal below. In the impugned order, there is no whisper to that effect save and except the multiplicity and the depth of exercising the power of judicial review as has been discussed.
It is true that transfer is an incident of service. It is also true that nobody could say that he will not join in the transferred post. It is also a settled proposition of law that in a transferred matter the Court will be very slow to interfere as it is the matter which is to be considered by the administration and administration is the expert body to take decision. But there is an exception where transfer order is interfered with by a Court of law exercising the power of judicial review, namely, (i) in the case of malafide on the person; (ii) in the case when the transfer order is not passed by a competent authority and (iii) in the hardship case where hardship is being caused to 8 comply with the transfer order. In the instant case, it is coming in the third group, that is, hardship for the petitioner to comply with the transfer order. On the hardship issue, the Apex Court considered the issue in the case reported in 1988(3) SLR 347 where the Court interfered with the order of transfer as passed on the ground that the wife of the petitioner, being a heart patient, there was no treatment facilities comparable to the treatment as was available to the writ petitioner's wife passed in the case reported in 1992(2) SCC 433 where the Supreme Court interfered with the transfer order wherein it was the case of the petitioner who was a widow that she had minor children who is to be looked into and the transfer order was quashed directing posting nearby to her residence. In the case reported in 1995(3) SCC 270 the factual matrix of the case was considered by the Apex Court as hardship to comply with the transfer order. Even separation of the husband and wife is also considered as hardship by the Apex Court in the case reported in 1992(1) SCC 306.
Having regard to the aforesaid judgements, it appears that the hardship is considered to interfere with the transfer order and there is no absolute bar or embargo to exercise the power of judicial review in that angle. In the instant case, as the petitioner had set up a positive case about his physical disability due to suffering from myopia, aged and ailing mother having none to look after and foregoing of the earlier promotion in the post of U.D.C when he was posted in the same place of posting at Alipurduar, we are of the view that it was a case which was required to be by the respondent authority sympathetically. It is true that sympathy has little place in the rule of law. But it is also settled law that the law has a human face and accordingly law is now proceeding in the angle of human rights concept to identify its applicability even in the judicial review forum. Since the concerned Director has not dealt with the issues as taken in the written representation, as already quoted above, in the impugned order before the learned Tribunal there is no whisper to that 9 effect and there is no denial of the fact that the petitioner is not suffering, we are of the view that it is a case wherein the Court should interfere in exercise of the judicial review power on the ground of hardship on the reflection of the aforesaid Apex Court judgements.
Now so far as the relief is concerned, we have to consider that since in the year 2005 the order passed by the learned Tribunal in original application as moved directing the concerned authority to consider the matter and since the consideration has been done mechanically nor considering the relevant factors as was agitated and since already five years have passed from the date of passing of the order, we are of the view that it will be a further formality to direct the authority concerned to reconsider the matter as the authorities will be prone to echo their earlier views.
Reliance is placed to the judgement passed in the case K.L. Shephard -Vs.- Union of India reported in AIR 1988 SC 686 and paragraph 16 is quoted below.
" 16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that excluded employees could not represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give then an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose."10
Having regard to the facts and the relevant documents as were annexed with reference to the original application No.606 of 2005 which was directed to be considered and the representation annexed at page 73 of this writ application and also the impugned order dated 27th March, 2006 passed by the Director of Industrial Training, West Bengal, we are of the view that the impugned order passed by the said Officer, the Director of Industrial Training, West Bengal is not legally sustainable. Since the learned Tribunal has passed the order without considering the issue in that angle and perspective which is required to be considered, the order of the learned Tribunal is set aside and quashed with reference to the portion of the order whereby the Tribunal directed the petitioner to join the transferred post and thereafter to file representation for consideration of the authority.
Having regard to the relevant documents and papers, we are satisfied to apply our power of judicial review in this case and thereby to quash the order of transfer. The order of transfer accordingly is set aside and quashed.
The petitioner is allowed to join in his place of posting at ITI, Howrah within a week from this date and the respondents are directed to allow such joining and as a consequential relief, the period of absence which to be considered from the date of transfer till the date of joining will be treated as absence on leave and the respondents are directed to pass appropriate order in the light of the leave rules as applicable.
Having regard to the judgement delivered in the case Somesh Tiwari -Vs.- Union of India reported in 2009(2) SCC 592, the aforesaid order as passed having regard to the person with 11 unauthorised absence also has been considered by us whereby considering the issue in the angle of human rights concept, already legislation has been made to protect physically handicapped.
This writ application is allowed.
It is made clear that if the post of L.D.C in ITI, Howrah Homes wherefrom the petitioner was transferred, is now already filled up by a new incumbent and that no L.D.C post is available there, the petitioner will report his duty to the Director of Industrial Training, West Bengal who in turn will place the posting of the petitioner in the Industrial Training unit in or around Kolkata and its nearby.
The order has been passed in the presence of the learned Advocate appearing for the State respondent and the petitioner need not to communicate this order as it is the settled law that any judgement delivered in the presence of the learned Advocate appearing for the parties is considered as judgement in presence of the respondents concerned or the petitioner concerned.
Reliance is placed to the judgement passed in the case H.L.Treehan and others -Vs.- Union of India reported in AIR 1989 SC 568, a judgement of 3 Judges' Bench and paragraphs 11 and 12 are quoted below.
" 11. One of the contentions that was urged by the respondents Nos.1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-sec.(1) of S.11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made 'duly' as provided in sub-sec.(2) of S.11 of 12 the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word 'duly' which, according to Concise Oxford Dictionary, means 'rightly, properly, fitly' and according to Stroud's Judicial Dictionary, Fourth Edition, the word "duly" is very significant and excludes any arbitrary exercise of power under S.11(2). It is now a well established principle of law that there c an be no deprivation or curtailment of any existing right, advantage or benefit enjoyed buy a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Art.14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice.
12. It is, however, contended on behalf of CORIL, that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.L.Shephard v. Union of India, JT 1987(4) 600; ( AIR 1988 SC 686). What happened in that case was that the Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under S. 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were not taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of bveing heard. Ranganath Misra, J. speaking for the Court observed as follows :-
" We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that excluded employees could not represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give then an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose."13
Reliance is also placed to the judgement passed in the case Comptroller and Auditor General of India, New Delhi -Vs.- K.S. Jagannathan reported in AIR 1987 SC 537.
The aforesaid order is passed by us on considering the other legal principle that when statutory authority has discretion in the matter, the writ Court can also issue necessary direction when conditions therefore are not satisfying.
Reliance is also placed to the judgement passed in the case Air India -Vs.- reported AIR 1997 SC 645, Union of India -Vs.- Subir Mukharji reported in AIR 1998 SC 2247 and the case Mohabbat -Vs.- State of M.P. reported in AIR 1995 SC 1893.
Stay of operation of this order, as prayed for by the learned Advocate for the State, is refused.
Urgent xerox certified copy of this order, if applied for, be given.
(Pratap Kumar Ray, J.) I agree.
(Mrinal Kanti Sinha, J.)