Central Administrative Tribunal - Delhi
Hon Ble Mr. A.K.Bhardwaj vs Union Of India Through on 22 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 178/2014 MA 307/2014 MA 745/2014 New Delhi this the 22nd day of July, 2014 Honble Mr. A.K.Bhardwaj, Member (J) Ashok Kumar Aggarwal, Age 51 years S/o Shri R.B. Aggarwal, R/o 56, Ashoka Road, New Delhi. Applicant (By Advocate Shri S.K. Gupta) VERSUS Union of India through 1. Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Chairman, Ministry of Finance, Central Board of Direct Taxes, North Block, New Delhi. . Respondents (By Advocate Shri R.N.Singh ) O R D E R
The applicant a 1985 batch IRS (Income Tax Officer) has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, questioning the order F.No. A-22012/1/2013-Ad.VI dated 10.01.2014 whereby he was transferred from Delhi CCA to West Bengal CCA and order F.No. P-238/Relieving/Jt.CIT/CCIT (CCA)/2013.14/4791 dated 16.01.2014 whereby he was relived with immediate effect to report to the office of the Chief Commissioner of Income Tax (CCA), Kolkata.
2. The facts of the case in brief are that on being selected in IRS, the applicant joined the training at NADT Nagpur on 17.12.1985 and on completion of the training he was posted as ITO (Grade A) in Delhi on 16.05.1987. Subsequently, the post was re-designated as ACIT w.e.f. 01.04.1988. From 24.06.1991 till 16.09.1995, the applicant remained posted as PS to Minister of State for Mines and from 16.05.1995 to 06.05.1996 he remained posted as PS to Minister of State for Planning and Program Implementation.
3. From 06.05.1996 he availed Earned Leave for four months and on expiry of the leave, the applicant was permitted to go on deputation as Deputy Director (Delhi Zone) in Directorate of Enforcement w.e.f. 06.11.1996. The term of appointment of deputation was four years but was curtailed to two years and applicant joined back CBDT w.e.f. 31.12.1998.
4. Thereafter, he was placed under suspension by virtue of an order dated 28.12.1999 on account of his arrest in a CBI case. He challenged the suspension order before this Tribunal by way of OA No. 783/2000 which was disposed in terms of the order dated 17.01.2003 with the following directions:-
14. Resultantly, we quash the impugned order of suspension and direct:-
nothing said herein in any expression regarding the seriousness of the charges; and the quashing of the impugned suspension order will not debar the competent authority from passing a fresh order in accordance with law as may be deemed appropriated in the facts of the case.
5. The view taken by the Tribunal in the said order was that whenever a person is placed under deemed suspension under sub-rule (2) of Rule 10 of the Rules, the appointing authority or the concerned authority necessarily has to pass an order if deemed appropriate suspending him and the deemed suspension would become confined to the period of the detention and not beyond that. Para 8 of the said order reads as under:-
8. From the aforesaid, it is obvious that whenever a person is placed under deemed suspension under sub-rule (2) of Rule 10 of the Rules, the appointing authority or the concerned authority necessarily has to pass an order if deemed appropriate suspending him. The deemed suspension would be confined to the period of detention and not beyond that. The concerned authority has to apply its mind and pass an appropriate order whether in the facts and circumstances of the case having regard to the nature of the offence and the position held by the delinquent employee, the concerned person is to be suspended or not. We reiterate that it is within the domain of the appointing authority to pass an appropriate order in this regard. When the facts of the present matter are examined on the touch-stone of the above said principle, it is obvious that the suspension order indeed cannot be sustained. Reasons can be delineated. After the said order passed by the Tribunal, the Govt. of India, Ministry of Finance & Company Affairs, Department of Revenue, CBDT issued an order dated 25.04.2003 revoking the suspension of the applicant subject to out come of the writ petition being filed before the Honble High Court of Delhi against the order of the Tribunal. They also issued another order F.No. C-14011/7/2000-V&L dated 25.04.2003 placing the applicant under suspension with immediate effect.
6. The applicant filed yet another OA No. 495/2012 before this Tribunal questioning the suspension order dated 24.05.2003. To keep the facts straight it would be worth to note that prior to said OA the applicant had also filed OA No. 1105/2003 which was dismissed and when he challenged the order of dismissal passed by the Tribunal before the Honble High Court, he was given liberty to approach the Tribunal to challenge his continuous suspension on the basis of subsequent events. The order passed by Honble High Court is dated 11.08.2010. Thus the applicant had filed OA 2842/2010 which was decided on 16.12.2011 with a direction to consider the revocation of his suspension. As the Respondents had not passed the speaking order, the applicant moved MA 59/2012 seeking execution of the order and on coming to know about the said MA, the respondents filed MA No. 61/2012 seeking six months time to implement the order. Para 21 of the order dated 16.12.2011 passed in OA 8422/2010 read as under:-
21. In totality of the facts and circumstances of this case, we dispose of this Original Application by directing the respondents to convene a meeting of the review committee within a period of two weeks from today to reconsider revocation or continuation of suspension of the applicant after taking into consideration the factors as fully detailed above. If the view of the review committee and that of the competent authority may still be to continue the suspension of the applicant, speaking order in that regard shall be passed. Reasons although in brevity may be stated, but the points raised by the applicant, and as mentioned above, shall have to be met. If the grievance of the applicant may still subsist, it shall be open for him to file fresh Application challenging the order to be now passed. In peculiar facts and circumstanced of the case, costs of the litigation are made easy.
In implementation of the aforementioned order of the Tribunal, the competent authority having received the recommendation of the Review Committee passed order dated 12.01.2012 continuing the suspension of the applicant. Since before issuing said order the input from CBI had not been obtained, on receipt of report from CBI dated 27.01.2012, the Review Committee gave fresh recommendation for continuance of suspension of the applicant and competent authority issued a fresh order dated 03.02.2012 extending his suspension. It was after said order that the applicant filed OA 495/2012 (ibid) questioning the order of suspension dated 25.04.2003 and the orders of continuance of the same. The said OA was disposed of by the Tribunal in terms of the order dated 01.06.2012 with a view that the direction issued by the Tribunal OA No. 2842/2010 decided on 16.12.2011 had not been compelled with and the continuance of the suspension of the applicant was not tenable. Para 47 of the judgment read as under:-
47. Considering the totality of the facts and circumstances of the case, we are of the considered opinion that (i) the directions of the Tribunal issued to the respondents in OA No. 2842/2010 decided on 16.12.2011 have not been complied with in both letter and spirit while passing the impugned orders dated 12.01.2012 and 03.02.2012; and (ii) the continuance of the applicants suspension is not tenable. In the result, the orders dated 12.01.2012 and 03.02.2012 are quashed and set aside with direction to the respondents to revoke his suspension and to reinstate him in service. The applicant would be entitled to legally admissible consequential benefits.
7. The order was challenged before Honble High Court in WPC No. 5247/2012 which was disposed of in terms of judgment dated 17.09.2012. Para 16 to 20 of the judgment read as under:-
16 We would highlight that the record of the petitioners containing noting after the Tribunal had passed the impugned order would reveal that the Special Review Committee met on July 24, 2012 and recommended that respondents suspension be revoked and he be posted to a non-sensitive post. We may also note that a day prior thereto i.e. on July 23, 2012 the Department of Legal Affairs in the Ministry of Law and Justice has rendered a four page opinion taking a view that keeping in view the fact that the order dated February 03, 2012 was in total violation of the Tribunals order dated December 16, 2011 there is hardly any chance for a Writ Court to interfere, and regretfully we find that a writ petition has been filed.
17. On the subject of a civil servant being accountable for his acts during discharge of official duties, none can deny his being accountable; but it also has to kept in mind that the process of accountability cannot be stretched indefinitely, i.e. it should not become a process where the probity of the civil servants is not being tested but it is his patience which is being tested.
18. No doubt, delay in completing departmental proceedings is by itself is no grounds to quash a suspension order, but at the same time, the issue of delay has to be factored along with such other contentions which the suspended civil servant projects with reference to the facts. It then becomes the duty of the decision making authority to take an informed decision, which would mean to take note of the admittedly relevant facts and circumstances, which in this case are the six facts and circumstances, highlighted by the Tribunal in its order dated December 16, 2011, all of which do not find a mention in the decision which has been quashed by the Tribunal, and for which we would only state even CBI has failed to comment upon; resulting in an uncanny feeling generated in a judicial mind: the neither CBI not the department has an answer to the same.
19. We accordingly dismiss the writ petition in limine and while so doing we allay the fears in the mind of the petitioners to pay back-wages.
20. No costs.
8. Finally, the respondents preferred civil appeal No. 9454/2013 before Honble Supreme Court against the aforementioned judgment of Honble High Court. The appeal was decided in terms of the judgment dated 22.11.2013. As noted in para 4 of the judgment the argument put forth by learned senior counsel for respondent in the appeal was that the applicant had served for a period of 14 years and faced suspension for the equal duration i.e. 14 years and was due to retire after 9 years.
9. In para 24 of the judgment Honble Supreme Court recorded its astonishment that in spite of quashing of the suspension order and direction issued by the Tribunal to re-instate the applicant herein his suspension was directed to be continued for a period of six months subject to review and outcome of the challenge to the order of the Tribunal before High Court. Para 24 of the judgment reads as under:-
24. It is astonishing that in spite of quashing of the suspension order and direction issued by the Tribunal to re-instate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunals order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide impugned judgment and order dated 17.09.2012. Even then the authorities did not consider it proper to revoke the suspension order.
10. In para 31 of the judgment Honble Supreme Court opined that it was not permissible for the respondents to consider the renewal of the suspension order or to pass a fresh suspension order without challenging the order of the Tribunal dated 01.06.2012 and their such an attitude tantamount to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court. The said para reads as under:-
31. In view of the above, we are of the considered opinion that it was not permissible for the respondents to consider the renewal of the suspension order or to pass a fresh suspension order without challenging the order of the Tribunal dated 01.06.2012 and their such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court.
11. In para 34 of the said judgment it was recorded that the case of the applicant was a clear cut case of legal malice. After the aforementioned order passed by the Honble Supreme Court, the Respondents issued order F. No. C- 14011/7/2000-V&L (Vol.VII) dated 06.01.2014 which reads as under:-
F. No. C- 14011/7/2000-V&L(Vol.VII) Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes ***** New Delhi, Dated 6th January, 2014 O R D E R Shri Ashok Kumar Aggarwal, JCIT(85042) was placed under suspension vide this Ministrys order F. No. C- 14011/7/2000-V&L(Vol.VII) dated 25.04.2003 as extended from time to time.
2. The Honble Supreme Court in its judgments dated 22.11.2013 in CA No. 9454/2013 has dismissed the special leave petition of the department on the basis that the appellants have acted in contravention of the final order passed by the Tribunal dated 01.06.2012 and also the office memorandum and statutory rules and therefore the order of suspension passed against the respondent Shri A K Aggarwal do not stand the test of legal scrutiny.
3. The Competent Authority has reviewed the suspension of Shri Ashok Kumar Aggarwal in the light of Honble Supreme Courts judgment dated 22.11.2013 in CA No. 9454/2013 as well as the recommendation of the Review Committee, as provided in Government of Indias DoP&T notification GSR No. 2 and DoP&Ts OM No. 11012/4/2003-Estt.(A) dated 07.01.2004, has in compliance with the judgment of the Honble Supreme Court, decided to revoke the suspension of Shri Ashok Kumar Aggarwal.
4. In accordance with the relevant Court decisions, the revocation of suspension would not entitle Shri A.K. Aggarwal the claim of back wages and further the revocation is subject to the outcome of the review petition being filed by the department before the Supreme Court in this matter.
(By order and in the name of the President of India)
-Sd-
(Dr. Prashant Khambra) Under Secretary to the Govt. of India
12. Having revoked the suspension of the applicant on 06.01.2014, within four days, the respondents issued the impugned transfer order, hence the present OA. On 20.01.2014 when the OA came up for hearing, this Tribunal passed the following order:-
OA No.178/201420.01.2014 Present: Shri S.K. Gupta, counsel for the applicant.
Shri S.K. Gupta, learned counsel for the applicant, submitted that the respondents are bent upon to subjecting the applicant to repeated persecution. Making reference to order dated 25.4.2003 (Annexure A-5 (Colly)), he submitted that way back in the year 1999, the applicant was placed under suspension and even when on 25.4.2013 (Annexure A-5 (Colly.)) passed in pursuance to the directions of this Tribunal, the suspension was revoked on the same day, he was placed under suspension again. In this regard, he has referred to another Order dated 25.4.2013 itself (Annexure A-5 (Colly.)) and specifically pointed out that the date of the orders of revocation of suspension and fresh order of suspension is same. He espoused that the illegality of the action of the respondents of issuing the order of suspension and revocation on the same day could be accepted by this Tribunal while deciding OA No.495/2012. He read out para 47 of the said order dated 1.6.2012. (While the present Order is being dictated, Shri S.K. Gupta, learned counsel for the applicant, submitted that prior to order dated 1.6.2012, there was a series of proceedings and non-reference to those may not be construed that the applicant has concealed the same from the Tribunal).
2. According to the learned counsel for the applicant, aforesaid order of the Tribunal was challenged before the Honble Delhi High Court in Writ Petition (Civil) No.5247/2012 and was upheld. According to him, SLP No.9454/2013 preferred by the respondents before the Honble Supreme Court, it could be observed that once this Tribunal had quashed the suspension order, even if there was an interim order passed by the Honble Supreme Court, it was not open to the appellants to renew the suspension order and to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012. Para 31 of the Honble Supreme Court reads as under:-
31. In view of above, we are of the considered opinion that it was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the court.
3. Finally, he referred to the transfer/posting guidelines for officers of the Indian Revenue Service (Central Board of Direct Taxes) dated 16.2.2010 and submitted that all Group A officers shall be liable for transfer at the commencement of the financial year, if they have as on 31st December of the preceding year completed 8 years of continuous stay in field posting in the eight metropolitan stations viz, New Delhi, Mumbai, Ahmedabad, Bangalore, Hyderabad, Pune, Chennai & Kolkata. According to him the applicant was posted in Delhi,CCA only in the year 1998 and in the year 1999, he was placed under suspension, thus, he had not spent even a year in the said CCA. Making a reference to the clarifications on transfer/placing Guidelines for officers of IRS, CBDT, 2010, he submitted that the period spent under suspension cannot be taken into account while reckoning the tenure of the officer at a particular station. Para 11 of the said clarifications, as referred to by the learned counsel for the applicant, reads as under:-
Sl. No. Issues of clarifications Clarifications 11.1 71 EOL or any other authorized Long leave like Medical Leave, Maternity Leave, Child Care Leave etc. No (if the stay is in the same station) 11.2 72 Dies Non Yes 11.3 73 Proceeding on deputation at the same station of posting No 11.4 74 Deputation at a station other than same station of posting Yes 11.5 75 Foreign Deputation Yes 11.6 76 On duty or other Training at the same station No 11.7 77 On duty or other training at a station other than the station of posting Yes 11.8 78 Foreign Training Yes 11.9 79 Foreign Study Leave No (para 8) 11.10 710 Under suspension No 11.11 711 Posting at the place elaborated at Para 4.6 (except posting in CBDT) of the T&P Guidelines No (If the stay in the same station) 11.12 712 Posting in CBDT from Delhi No (for Delhi cooling off) 11.13 713 Posting in CBDT from a place other than Delhi Yes (for cooling off from that station/region) 12 714 Delhi to Mumbai (and vice versa) cooling off period Para 4.13 of the T&P Guidelines lays, inter-alia, that direct posting within the Department from Delhi to Mumbai and vice-versa shall not be permitted. Moreover, between these two regions shall be permitted only after the officer concerned has had a break of two years.
4. Learned counsel for the applicant submitted that so far he has not been relieved from Delhi CCA.
5. Issue notice to the respondents, returnable on 3.2.2014.
6. In the meantime, status qua regarding posting of the applicant in Delhi, CCA is maintained.
Order DASTI. Subsequently, the applicant filed MA No. 745/2014 seeking clarification of the said order. In terms of the order dated 15.04.2014, the MA was directed to be listed before this Bench.
13. On 27.05.2014 both the parties pressed for disposals of the MA 745/2014 as well as also the OA simultaneously and Mr. S.K. Gupta, learned counsel for the applicant commenced his arguments on merits submitting:-
In view of the clause 4.2 and 4.3 (i) of the transfer guidelines for placing officers of IRS (CBDT) dated 16.02.2010 r/w clause 4.6 and 4.7 thereof, the applicant could not have been transferred out of CCA Delhi, as in terms of the clarification of said guidelines for posting IRS officers, the period under suspension has to be considered as break period from continuous stay.
Since after joining the service on completion of training on 16.05.1987, the applicant remained posted as PS to Ministry of State for mines between 16.05.1987 to 16.09.1995, PS to Ministry of State for Planning and Program implementation between 16.09.1995 till 06.05.1996 and on deputation in Directorate of Enforcement from 06.11.1996 till 31.12.1998, he remained posted in Delhi CCA only for a period of four years, thus did not complete the stay of 18 years in Delhi CCA or 8 years in New Delhi, therefore, he could not have been transferred to CCA Calcutta.
The observation and direction of the Honble Supreme Court made in para 23, 24, 31, 36 and 42 of the judgment dated 22.11.2013 could not have been ignored by the Respondents. The transfer order is arbitrary and vitiated by legal malice. In the order dated 14.11.2006 passed by the Tribunal in OA 1248/2006 the aforementioned transfer policy has been affirmed.
Having kept the applicant under suspension for a long period of 14 years, the respondents have dealt with him unfairly and have subjected him to further prosecution by issuing the impugned transfer order.
The direction given to applicant to comply with transfer order within few days of revocation of suspension reflect malafied attitude of the respondents towards him.
Normally the transfer in CBDT/Income Tax Department are affected based upon the recommendations of Placement Committee and in the absence of any such recommendation for his transfer, the respondents could not have issued impugned order transferring the applicant.
While disposing of Criminal Appeal Nos. 1837/2013 and 1838/2013, Honble Supreme Court has requested the learned Special Judge to proceed with the trial pending against the applicant from the stage existed at the time of its stay and conclude the same at the earliest, thus the transfer of the applicant would not only delay the trial, but would also be against the interest of the administration, as in order to attend the hearing of his case, the applicant will have to take frequent leave from CCA Kolkata.
In view of the order dated 14.11.2006 passed in OA 1285/2006, the respondents could not have transferred the applicant before completion of 18 years of service in CCA Delhi and as submitted by him, he has only completed four years service in the said CCA.
14. On the other hand, Mr R.N.Singh, learned counsel for respondents submitted:-
(i) In view of the legal position settled regarding transfers of the Government employees, this Tribunal should not interfere with the transfer orders;
(ii) It is not for the applicant to dictate as to how and where he should be posted by the competent authority;
(iii) In view of the order of the Tribunal dated 01.06.2012, the applicant has to be posted to a non-sensitive post from where he cannot have any access to the relevant records and can also not get an opportunity to influence the witnesses;
(iv) The impugned orders of transfer and relieving are in accordance with the rules and instructions and there is no infirmity therein. Finally, Mr. Singh referred to the portion of his reply, where he has quoted certain judgments of Honble Supreme Court as under:-
(i) S.C.Saxena Vs. Union of India and Ors (2006) 9 SCC 583)
(ii) Shilpi Bose Vs State of Bihar & Ors (AIR SC 532)
(iii) Union of India Vs. S.L.Abbas (1993) 4 SCC 357)
(iv) National Hydroelectric Power Corpn.
Limited Vs. Shri Bhagawan (2001) 8 SCC 574)
(v) Major General J.K.Bansal Vs. Union of India and Ors. (2005) 7 SCC 227)
(vi) State of M.P and Another Vs. S.S.Kourav and Ors ( 1995) 3 SCC 270)
(vii) State of U.P Vs Gobardhan Lal ( 2004) 11 SSC 402).
15. In the rejoinder filed by him, learned counsel for the applicant reiterated the aforementioned submissions and complained that the respondents have violated interim order passed by this Tribunal.
16. The respondents also filed additional affidavit dated 26.05.2014 that merely because it is not indicated in the impugned transfer order that it is in public interest, it cannot be presumed that the same not in public interest as it is fundamental principle of administration and governance that every action taken by the Government is in public interest, until and unless established otherwise.
17. I heard the learned counsel for parties and perused the record. As can be seen from the detailed counter reply dated 23.04.2014, the categorical stand taken by the respondents is that the transfer and posting of the officers of Income Tax Department are done as per the provisions of Transfer & Placement Guidelines-2010, keeping in mind the instructions of the Government of India issued by the Department of Personnel & Training to the possible extent after examining each case on its own merit. For easy reference, relevant excerpt of the reply is reproduced hereinbelow:-
The transfer and/or posting of the officers of the Income Tax Department are done as per the provisions of Transfer & Placement Guidelines-2010 keeping in mind the extant instructions of the Government of India issued by the Department of Personnel and Training (DOP&T) to the extant possible after examining each case on its own merit. Thus, it would be apposite to verify from the Transfer policy that in what circumstances, the IRS officers can be transferred. The policy contain 9 (nine) clauses. The first clauses is introductory and provide that all transfers and posting of Group A officers shall be effected by the Placement Committee of the Board, or on its recommendation or by local Placement Committee, as the case may be, as far as practicable in accordance with the guidelines. Clause 2 defines the Placement Committee. Clause 4 talks of region and tenure. Clause 6 talks of posting on compassionate grounds and Clause 7 talks of transfer on administrative grounds/public interest. In terms of the provisions contained in the policy, an IRS officer covered by it can be transferred- (i) on annual general transfer or completion of tenure mentioned in para 4.3 (i) (ii); on their own request or on administrative grounds/in public interest in terms of para 4.3 (ii), 7.1, 7.2 and 7.3, (iii) on compassionate grounds in terms of clause 6.1 and (iv) on spouse ground in terms of clause 6.2.
18. From the above, it is clear that in what circumstances a Revenue officer covered by the transfer guidelines can be transferred.
Mr.S.K.Gupta, learned counsel for the applicant argued with vehemence that in view of the clause 4.2 and 4.3 (i) read with clarification on transfers/placement guidelines for officers of IRS, CBDT, 2010 issued by the Central Board of Direct Taxes (Ann.A-2 collectively), the applicant has rendered only four years service in CCA Delhi and could not have been subjected to transfer out of the CCA before completion of 18 years of service. The specific plea raised in para 4.14 of the Original Application that the suspension period need to be excluded from continuous stay referred to in para 4.3 (i) of the Transfer Guidelines is not disputed by the respondents but they pleaded that the tenure mentioned in Clause 4.3 (i) specifies over all limit for any officer to continuously stay in field/exempted posting in Delhi and does not confer any right or entitlement on the officer to demand that he should mandatorily be provided posting for 8 years in field /exempted posting in places like Delhi. It is further stated by the respondents that the officers may be transferred out before the completion of their tenures on their own request or on administrative grounds for public interest. For easy reference, para 4.14 to 4.15 of the reply are extracted hereinbelow:-
4.14 to 4.15: The contents of the corresponding paras of the OA, except those being matter of record, are wrong, misleading and misconceived and hence vehemently denied. With regard to applicants contention that his transfer to West Bengal is not tenable as he has not completed 8 years of stay in field and exempted postings in Delhi, it is important to submit the phrases employed in Cl.4 (i)(a) and 4.4.(ii):-
Officers shall be liable for transfer on completion of tenures specified therein. Thus, as it is self evident from the plain reading that this clause only specifies overall limit (8 years) for any officer to continuously stay in field posting/exempted postings in Delhi. It nowhere confers any right or entitlement on the officers to demand that she/he should mandatorily be provided postings for 8 years in field/exempted postings in places like Delhi.
Further, in this context, it is pertinent to submit the following clauses in TPG-2010.
Clause 4.3.(ii): the officers may, however, be transferred out before the completion of their tenures on their own request or on administrative grounds/public interest. Clause 7.1 : Notwithstanding anything contained in these Guidelines, the Placement Committee may, if it considers necessary to do so in public interest and in furtherance of organizational objectives, transfer, retain or post any officer to any station/Region or a specific post. The transfer and/or posting of the officers of the Income Tax Department are done as per the provisions of Transfer & Placement Guidelines-2010 keeping in mind the extant instructions of the Government of India issued by the Department of Personnel and Training (DOP&T) to the extent possible after examining each case on its own merit.
19. In the additional affidavit dated 26.05.2014, the respondents further reiterated that the transfer of the applicant is on administrative ground in public interest and the public interest need to be presumed unless specifically rebutted. For easy reference, para 4.14, 4.15 and 4.18 of the additional affidavit are reproduced as under:-
4.14, 4.15 & 4.18. That in reply to the contents of the corresponding paras, it is submitted that:-
Simply because it has not been stated in the transfer order that the impugned transfer has been made in public interest, it does not ipso facto turn or make that transfer as having been done/made not keeping public interest in mind. If that were the case, then the Government would have written copious amounts of words to substantiate that every action taken by it in public interest.
It is fundamental principle of administration and governance that every action taken by the Government is in public interest, until and unless established otherwise on the basis of facts that it is not so.
It is highlighted again that what is envisaged and stated in the provisions of TPG-2010, in contradistinction to the claim of the applicant officer, are the maximum tenures [period(d) up to which an officer can stay/be posted in a particular station/region, not the minimum tenures that have to be necessarily given to an officer once posted to that station region. These provisions neither give any right to the officer to be posted to that station/region for that particular period nor the right that he/she cannot be transferred before the maximum period of stay. This is clear from a plan reading of Para 4.3(ii) which states that the officers may, however, be transferred out before the completion of their tenures on their own request or on administrative grounds/in public interest. The applicant himself agrees to the fact that he can be transferred before the completion of his tenure at a given station.
Further, there is no injunction upon the government to transfer an officer from one station to another even before the completion of his/her tenure at a station. On the contrary, there is a specific enabling provision in TPG-2010 by which the government can transfer any officers to any post or station. Para 7.1 states that notwithstanding anything contained in these guidelines, the Placement Committee may, if it considers necessary to do so in public interest and in furtherance of organizational objectives, transfer, retain or post any officer to any station/region or a specific post.
The case of the applicant is covered by provisions of para 4.3 (ii) (having been done in public interest) and para 7.1 (furtherance of organizational objectives by posting to deficient region).
Transfer of an officer can be challenged only on the ground of malafide or violation of any statutory rule or ground. The applicant has not been establish by any evidence or otherwise such a malafide or violation of any statutory rule in his transfer from Delhi to West Bengal.
In Shilpi Bose Vs. State of Bihar & Others: AIR 1991 SC 532: 1991 Supp (2) SCC 659, the Honble Apex Court had observed as follows:-
4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of malafide. A government servant holding a transferable post has no vested right to remain posted at one lace or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected arty should approach the authorities in the department. Thus, in sum and substance the stand of the respondents is that the applicant is not transferred on AGT, but has been transferred on administrative ground in public interest. There can be no quarrel that the stay at a particular station/CCA mentioned in clause 4.3.(i) is the maximum stay and not the minimum guaranteed stay. However, once the respondents have not denied that the suspension period need to be excluded from the continuous stay mentioned in the said Clause and it is not their stand that the transfer of the applicant is on AGT on completion of tenure, I need not to enter into the controversy. But I need to see is whether the transfer of the applicant can be called on administrative grounds in public interest or has been issued with intention to over reach the judicial order including the one passed by Honble Supreme Court. Undoubtedly, as has been espoused by the respondents in their counter reply dated 23.04.2014, in view of the law declared by Honble Supreme Court in Mrs. Shilpi Bose & Ors Vs. State of Bihar ( AIR 1991 SC 532), Union of India and Ors Vs. S.L.Abbas ( 1993)4 SCC 357) and State of U.P. & Ors Vs. Goverdhan Lal ( 2004 (3) SLJ 244) even if there are guidelines issued to regulate the transfer of the employee in a particular category, the power of the competent authority to issue the transfer order in public interest cannot be fettered. It is also true that the public interest in the matter of transfers is a question of subjective satisfaction of the competent authority. Similarly, no Government servant or employee of Public Undertaking has any legal right to be posted forever at any particular place, as the transfer of the employee appointed to transferable post from one place to other is not only an incident, but a condition of service, necessary in public interest and efficiency in the public administration. As has been noted hereinabove, in para 1 of the transfer/placement guidelines dated 16.02.2010, it is provided that all transfers and postings of Group A officer shall be effected by the Placement Committee of the Board or on its recommendation, or by a local placement committee, as the case may be.
20. In the present case in para L of the OA, the applicant has taken a specific plea that there is no recommendation of Placement Committee for transfer of the applicant. The such plea has specifically been denied by the respondents. Para 5(A) to 5 (L) of the reply read as under:-
5 (A) to 5(L): that none of the grounds taken by the applicant in the corresponding paras of the OA is tenable in the eyes of law. The allegations in the corresponding paras are wrong, misleading and misconceived and hence vehemently denied. It is submitted that the order was issued after due consideration of the facts of the case in accordance with the Transfer & Placement Guidelines (TPG)-2010 by the members of the Placement Committee in its meeting. It is wrong to say that no recommendation of the Placement Committee was obtained.
However, when the respondents themselves have taken a specific stand in their detailed reply that the transfer of the applicant need to be regulated in terms of the guidelines noted hereinabove and in the present case the impugned orders are issued in terms of the provisions of clause 4.3 (ii) read with Clause 7 of the transfer guidelines, i.e. on administrative ground in public interest, they should not have contradicted their own stand by also taking a plea that they could have issued the transfer order even in disregard to the guidelines. In fact, the respondents themselves have empathetically espoused in their counter reply and additional reply that the transfer order is in terms of the guidelines and in public interest, as the tenure mentioned in clause 4.3 (i) is not the minimum tenure but the maximum tenure and the transfer can be ordered even before expiry of the said period in terms of clause 4.3 (ii) of the guidelines itself on administrative ground in public interest. In view of the stand taken by the respondents in their reply itself, I need to see whether in the facts of the present case, even after the orders passed by the Honble Supreme Court taking a view that the suspension of the applicant was unjustified, the transfer of the applicant within four days of his reinstatement in implementation of Honble Supreme Courts orders can be termed as in public interest and not an attempt to over reach the judicial orders, including the one passed by Honble Apex Court. As pointed out by the learned counsel for applicant, while upholding the order of Honble Delhi High Court in Union of India and Anr Vs. Ashok Kumar Aggarwal (Applicant herein) passed in W.P. (C) 5247/2012, their Lordships of the Honble Supreme Court felt astonished that in spite of quashing of the suspension order and direction issued to re instate the applicant herein by the Tribunal, the suspension was directed to be continued. Para 24 of the judgment passed by Honble Supreme Court in Civil Appeal No.9454/2013 reads as under:-
24. It is astonishing that in spite of quashing of the suspension order and direction issued by the Tribunal to re-instate the respondent, his suspension was directed to be continued, though for a period of six months, subject to review and further subject to the outcome of the challenge of the Tribunal's order before the High Court. The High Court affirmed the judgment and order of the Tribunal dismissing the case of the appellants vide impugned judgment and order dated 17.9.2012. Even then the authorities did not consider it proper to revoke the suspension order.
21. In para 34 of the order, Honble Supreme Court viewed that the respondents acted against the applicant with clear cut legal malice. Para 34 and 36 of the judgment read as under:-
34. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was considered by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745, observing:
"25. The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts.
26. Passing an order for an unauthorised purpose constitutes malice in law."
xxx xxx 36. It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitable cases and very sparingly. The law is to be tempered with equity and the court can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a
given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so. (Vide: Pritam Singh v. The State, AIR 1950 SC 169; Taherakhatoon (D) by Lrs. v. Salambin Mohammad, AIR 1999 SC 1104; and Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr., AIR 2010 SC 2077). After the aforementioned order passed by Honble Supreme Court, there is no doubt that in the case of applicant, the respondents had acted with legal malice as also in disregard of the judicial order of the Tribunal. As can be seen from the G.I.M.H.A., letter No. 43/56/64-AVD dated 22.10.1964, the public interest is the guiding factor in deciding to place a Government servant under suspension, and the disciplinary authority has the discretion to take a decision in this regard taking all factors into account. For easy reference, the letter is reproduced hereinbelow:-
Guiding Principles for placing a Government servant under suspension.- It has been decided that public interest should be the guiding factor in deciding to place a Government servant under suspension, and the Disciplinary Authority should have the discretion to decide this taking all factors into account. However, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. There are only intended for guidance and should not be taken as mandatory:-
(i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
(ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
(iii) Where the continuance in office of the Government servant will be against the wider public interest other than those covered by (i) and (ii) such as there is a public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) Where allegations have been made against the Government servant and the preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.
NOTE (a).- In the first three circumstances, the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case is made out.
NOTE (b).- Certain types of misdemeanour where suspension may be desirable in the four circumstances mentioned, are indicated below-
(i) any offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official power for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty;
(v) refusal or deliberate failure to carry out written orders of superior officers.
In respect of the type of misdemeanour specified in sub-clauses (iii), (iv) and (v), discretion has to be exercised with care. From the aforementioned, it is clear that during pendency of the criminal trial/ disciplinary proceedings a Government servant is kept under suspension in public interest.
22. In Ashim Kumar Chattopadhyay Vs. Union of India and Ors (1996) 1 ATJ CAT (Calcutta) 85), this Tribunal viewed that in order to serve public interest instead of transferring an employee, the authority should keep him under suspension. Relevant excerpt of the order reads as under:-
20. The unhappy situation can be avoided if the railway Board considers to transfer the petitioner under an authority wherein other charged officials are also working. Incase this involves the petitioners transfer back to his original station under the Controller of stores, CLW, Calcutta, and there is genuine possibility that the petitioner can influence the witnesses and tamper with evidence on record, then the alternative remedy would be to put the petitioner under suspension under the rules. But simultaneously it should be ensured that an unified authority should conduct the DA proceedings so that the proceedings can be concluded within a reasonable but specific time frame. Thus, once this Tribunal found no justification of continuance of the applicant under suspension and directed the respondents to revoke his suspension and the said order was upheld right upto the Honble Supreme Court, now the respondents cannot say that the transfer of the applicant is necessary to serve public interest on account of pendency of the criminal case against him. Para 42 of the order passed by the Honble Supreme Court dismissing the appeal reads as under:-
42. Considering the case in totality, we are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules.
In view thereof, we do not find any force in this appeal. The appeals lacks merit and is accordingly dismissed. There will be no order as to costs. Even otherwise also, once a criminal trial is pending against the applicant and the Honble Supreme Court has viewed that the same should be concluded at the earliest and as per requirement of the criminal procedure, the applicant need to participate in the said trial, on his transfer to CCA Kolkata, he will have to take leave frequently to participate in the trial. Thus for this reason also, the transfer of the applicant cannot be considered either in the interest of administration or in public interest. Rather, it would be against the public interest to transfer the applicant to a place from where he will have to move to Delhi frequently to attend the trial. It is not the case of the respondents that the applicant who is facing a criminal trial involving the allegation of forgery of documents and possessing disproportionate assets is required to take charge of such responsibility in CCA Kolkata, which no other officer can take. As can be seen from the aforementioned letter of the MHA where continuance in office of the Government servant is likely to prejudice the investigation, trial or inquiry and there is apprehension of tampering with witnesses or documents, he may be placed under suspension. Thus, when Honble Supreme Court is of the view that the applicant needs not to be continued under suspension, it cannot be viewed by the respondents that there is apprehension of tampering the witnesses and documents by him. The submission of the learned counsel for applicant that the transfer order dated 10.01.2014 passed within four days of reinstatement of the applicant, pursuant to the final order passed by Honble Supreme Court, amounts to an attempt by the department to demonstrate that if a person succeeds in getting relief against it in one matter, it has other arms to subject him to persecution can also be not termed as without merits. The transfer of the applicant would also defeat the direction of the Honble Supreme Court issued for expedition conclusion of the trial of the criminal case pending against the applicant.
23. In view of the aforementioned, the plea of respondents that the impugned orders have been issued on administrative grounds in public interest cannot be accepted. Thus, the impugned orders F.No.A-22012/1/2013-Ad.VI dated 10.01.2014 and F.No.P-328/Relieving/ Jt. CIT/ CCIT (CCA) / 2013-14 / 4791 (Annexure A-1 Colly) dated 16.01.2014 are quashed. The OA is allowed. The respondents would keep the applicant posted in CCA Delhi on a non- sensitive post. No cost.
MA 745/2014In view of the above order passed in the OA, it is made clear that for the intervening period, the applicant would be treated as posted in CCA Delhi with all consequential benefits including salary from 10.1.2014.
( A. K. Bhardwaj) Member (J) /anju/sk/