Central Administrative Tribunal - Delhi
Hemant Kumar vs Home Affairs on 16 December, 2024
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Item No. 22/ C-1 O.A. No. 3948/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3948/2023
Reserved on: 07.11.2024
Pronounced on: 16.12.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Hemant Kumar
Aged about 38 years
(Group A)
S/o Sh. Vinod Kumar
R/o. D-II/90, Near ITI Pusa,
Library Avenue, Pusa,
New Delhi-110012 ...Applicant
(By Advocate: Mr. Gautam Narayan with Mr. Karanjit Singh
Mainee)
Versus
1. Union of India
(Through Secretary)
Ministry of Home Affairs, North Block,
New Delhi-110001 ...Respondent no. 1
2. Secretary
Govt. of NCT (Service)
Services Department,
Services-I Branch,
Level 5, B-Wing,
Delhi Secretariat,
New Delhi-02 ...Respondent no. 2
3. Secretary,
Directorate of Vigilance
Govt. of NCT of Delhi
Level-4, C Wing,
Delhi Secretariat,
New Delhi-02 ...Respondent no. 3
(By Advocates: Mr. R K. Jain for R-1 and Mr. Amit Yadav for R-2
& 3)
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Item No. 22/ C-1 O.A. No. 3948/2023
ORDER (ORAL)
Hon'ble Mr. Rajinder Kashyap, Member (A):-
Since pleadings in the matter are complete, with the consent of the learned counsel appearing for the respective parties, the OA is taken up for final hearing.
2. By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in Para 8 of the OA, has prayed for the following reliefs:-
"1) Call for the records from the respondents which caused to initiate issuance of the impugned transfer order no. F. No. 14033/14/2023-UTS.I dated 19.10.2023 of the Applicant to Andaman and Nicobar Islands.
2) Set aside the transfer order no. F. No. 14033/14/2023-UTS.I dated 19.10.2023 issued under the signature of the Under Secretary, Government of India.
3) Set aside the order no. F. No. 14033/14/2023-UTS.I dated 23.11.2023 purportedly issued under the signature of the Under Secretary, Government of India.
4) Declare the Guidelines for transfer/posting of IAS/IPS officers of joint AGMUT cadre, 2016' as ultra vires and unconstitutional.
5) Pass any other order(s) as deemed fit in the circumstances and in the interest of Justice by this Hon'ble Tribunal."3
Item No. 22/ C-1 O.A. No. 3948/2023
FACTS IN THE MATTER
3. Brief facts of the case, leading to the filing of the instant OA, and evident from the assertion made in the OA, are that the applicant joined the service as an IAS Officer 2013 Batch in AGMUT Cadre. It is stated that the applicant was posted as District Magistrate (South West) Delhi in Department of Revenue since 01.06.2022. The applicant, by virtue of his being District Magistrate, was appointed as an Arbitrator by way of a Gazette notification dated 09.10.2018 in accordance with the provisions of The Arbitration and Conciliation Act, 1996. It is a matter of record that an application u/s 3G (5) of the National Highway Act, 1956 for Arbitration against the order dated 02.04.2018 of the competent authority was filed before the then DM for seeking enhancement of compensation from NHAI in lieu of acquisition of claimant‟s land in Village Bamnoli, South-
West, New Delhi. After posting of applicant as District Magistrate (South-West) the aforesaid arbitration proceedings commenced before the applicant as an arbitrator in June, 2022 and continued till November, 2022, when the order was reserved. It is also stated that the applicant, as a quasi-judicial authority, after considering detailed submissions made by the parties, the case law cited during the hearing and as per his wisdom, passed the final 4 Item No. 22/ C-1 O.A. No. 3948/2023 arbitration award on 15.05.2023 and by way of the said award the compensation to claimant stood enhanced as provided under National Highway Act, 1956. It is further stated that there was no grievance against the applicant/arbitrator during the entire course of proceedings from June, 2022 till passing of the order on 05.05.2023. However, as the aforesaid arbitration award dated 15.05.2023 went against a Public Sector Undertaking i.e., NHAI, an explanation was sought from the applicant by the Principal Secretary (Revenue) of Revenue Department and the clarification was submitted by the applicant to the Revenue Secretary. Subsequently, an application dated 03.06.2023 was filed by NHAI before the applicant/arbitrator u/s 151 CPC read with Section 33 of the Arbitration and Conciliation Act, 1996, claiming procedural defects in the arbitration proceedings. The applicant/arbitrator issued notice on the said application to the opposite private party returnable on 16.06.2023. Thereafter, counsel for the private party filed an application seeking dismissal of the application of NHAI on the ground that NHAI had sought review of the arbitral award under the guise of procedural defects in proceedings, and that the application of NHAI would not be maintainable. The claimant/private party sought determination of the issue of 5 Item No. 22/ C-1 O.A. No. 3948/2023 maintainability of the application of NHAI first, but the applicant/arbitrator held that the issue of maintainability as also merits of the application of NHAI would be decided simultaneously. The Private party/claimant approached the Hon‟ble High Court of Delhi and Hon‟ble High Court vide order dated 20.07.2023 directed the applicant/arbitrator to first decide the issue of maintainability of the review application of NHAI with a further direction to keep such order on maintainability in abeyance for a week to enable the aggrieved party to take legal recourse. In compliance of the said order of the Hon‟ble High Court of Delhi, the applicant decided the issue of maintainability and passed an order upholding the contentions of NHAI as to the maintainability of the application and posted matter for further hearing on 01.08.2023. Meanwhile, the claimant approached the Hon‟ble High Court of Delhi seeking a declaration that mandate of the Arbitral Tribunal stands terminated after passing of the award, and the Hon‟ble High Court by order dated 28.07.2023 directed the applicant/arbitrator to defer final order/decision and that claimant shall not take any step for execution of award.
4. It is further stated that an „updated status‟ was again sought by Vigilance Cell, Revenue Department, from the applicant and the response was again submitted by the 6 Item No. 22/ C-1 O.A. No. 3948/2023 applicant to the Deputy Commissioner, Vigilance, Revenue Department vide its letter along with necessary documents. It is also stated that since passing of the aforesaid award, applicant/arbitrator is being hounded and humiliated by transferring him from the post of D.M. (South-West) to Special Secretary, Administrative Reforms on 21.09.2022, and subsequently, vide the impugned order dated 19.10.2023, the applicant has been transferred to Andaman and Nicobar Islands with immediate effect, stipulating that the applicant stands deemed relieved. Suspension order has also been issued against the applicant, in terms of Rule 3 of the All India Services (Discipline & Appeal) Rules, 1969.
5. The applicant preferred a representation dated 28.10.2023 against the alleged injustice being committed to him. Thereafter, the applicant came to know that the arbitral award passed by him as an Arbitrator u/s 34 of the Arbitration and Conciliation Act, 1996 was challenged by NHAI before the Hon‟ble High Court of Delhi and the said award has been set aside by the Hon‟ble High Court vide order dated 31.10.2023, reportedly on account of violation of principles of natural justice, and therefore, no prejudice can be said to have been caused to the organization, i.e., NHAI. After getting no response from the respondents, the applicant filed an OA bearing no. 3328/2023 before this 7 Item No. 22/ C-1 O.A. No. 3948/2023 Tribunal which was disposed of vide order dated 02.11.2023 with a direction to the competent authority to decide the applicant‟s representation dated 28.10.2023 by passing a reasoned and speaking order within four weeks and till then the transfer order was stayed.
6. It is also stated that respondent no. 1 i.e. MHA vide its order dated 23.11.2023 communicated to the applicant that his representation had been rejected by the respondents stating that a proposal was received from GNCTD for recommending initiation of disciplinary proceedings against the applicant for alleged irregularities committed by him in passing an Arbitration Award in respect of land acquisition for National Highway in village Bamnoli, and that the applicant has been transferred and suspended due to administrative reasons and in public interest without any elaboration. Hence, the present OA.
SUBMISSION MADE BY RESPONDENTS
7. Counter reply has been filed by the respondents on 09.02.2024 wherein by way of preliminary submission, it has been stated that the Directorate of Vigilance, Govt. of NCT of Delhi vide their letter dated 20.09.2023 intimated that the matter related to arbitration award for the land acquisition for National Highway in Village Bamnoli was 8 Item No. 22/ C-1 O.A. No. 3948/2023 examined by GNCTD, and serious irregularities were found on the part of the applicant. The matter was placed before the Ld. Lt. Governor, Delhi, who approved to surrender the applicant, the then District Magistrate (DM) (South-West), to Services Department, GNCTD, and recommended the MHA for initiation of Disciplinary Action against him and also to refer the matter to an investigation agency/CBI for investigation.
8. It is further stated that the respondent Ministry examined the case submitted by the Directorate of Vigilance, GNCTD and called a meeting with Spl. Secretary Vigilance, GNCTD and Principal Secretary (Home), GNCTD to discuss the matter. The respondent Ministry observed that the original award passed by the then ADM (South-West) on 02.04.2018 determined the value @Rs. 53 lakhs per Acre and awarded a total compensation of Rs. 41.52 Crores (Approx.). In contrast, DM (South-West), i.e. the Applicant, awarded Rs. 46,200 per Sq Mtr., which amounts to Rs. 18.54 Crore per Acre. Further, the applicant delayed the decision inordinately on the Review Petition filed by the NHAI on 05.06.2023. It is stated that after considering the entire facts of the case and with the approval of the Competent Authority, the applicant was transferred from Delhi to Andaman & Nicobar Islands vide Respondent Ministry's 9 Item No. 22/ C-1 O.A. No. 3948/2023 Order dated 19.10.2023. Subsequently, the respondent Ministry vide order dated 20.10.2023 placed the applicant under suspension under Rule 3 of the All India Services (Discipline & Appeal) Rules, 1969 as departmental proceedings against the applicant was contemplated.
9. Thereafter, the respondent Ministry vide letter dated 20.10.2023 (Annexure-R/1), requested the Central Bureau of Investigation (CBI to conduct investigations against the applicant in connection with alleged irregularities in passing the arbitration award for land acquisition for the National Highways in Village Bamnoli, Delhi. Meanwhile, the applicant filed an OA No. 3328/2023 before this Tribunal for quashing the transfer order dated 19.10.2023 and for setting aside the suspension order dated 20.10.2023, issued by the Respondent Ministry. The Tribunal vide Order dated 02.11.2023 in OA No. 3328/2023 directed the respondent to consider and decide the representation of the applicant dated 28.10.2023 and take a decision by passing a reasoned and speaking order expeditiously. The Tribunal further directed that until a decision is taken by the Competent Authority on the representation of the applicant, his transfer order would not take effect. In compliance with the above order of this Tribunal, the respondent Ministry issued an Order dated 23.11.2023 stating that transfer/posting of 10 Item No. 22/ C-1 O.A. No. 3948/2023 IAS/IPS officers of Joint AGMUT Cadre is governed by the conditions and instructions laid down in respondent Ministry's Guidelines for Transfer/Posting of IAS/IPS officers of Joint AGMUT Cadre, 2016. Para-17 of the aforesaid Guidelines provides that respondent Ministry has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds or in public interest. Further, the respondent Ministry observed that allegations against the applicant are of grave nature and it is necessary to place him under suspension, and therefore, with the approval of the Competent Authority, it was decided to place the applicant under suspension with immediate effect.
10. It is also stated that the transfer order 19.10.2023 and suspension order dated 20.10.2023 have been issued based on facts received from the GNCTD and as per extant rules/law. Para-17 of the aforesaid Guidelines provides that respondent Ministry has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds or in public interest. It is further stated that since the allegations against the applicant are of grave nature and it was necessary to transfer him from DM South-West, therefore, with the approval of Competent 11 Item No. 22/ C-1 O.A. No. 3948/2023 Authority, he was transferred from Delhi to Andaman & Nicobar Islands vide order dated 19.10.2023. CASE LAWS RELIED UPON BY THE PARTIES
11. Learned counsel for the applicant has placed reliance on the following judgments passed by the Hon‟ble Supreme Court:-
(i) In the matter of Zunjarrao Bhikaji Nagarkar Vs. Union Of India & Ors. (1997) 7 SCC 409. Para 43 of the same reads as under:-
"43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge- sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."12
Item No. 22/ C-1 O.A. No. 3948/2023
(ii) In the matter of Ramesh Chander Singh Vs. High Court of Allahabad and Another, (2007) 4 SCC 247.
Paras 11 and 12 of the same read as under:-
"11. We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant-officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in TADA Act or NDPS Act, there was no statutory bar in granting bail to the accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently.
12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution."
(iii) In the matter of Somesh Tiwari Vs. Union of India and Others, (2009) 2 SCC 592. Paras 16 of the same reads as under:-
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Item No. 22/ C-1 O.A. No. 3948/2023 "16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
12. On the other hand, learned counsel for the respondents has placed reliance on the judgment by this Tribunal in the matter of Kamlesh Trivedi Vs. Indian Council of Agricultural Research and Another in OA No. 770 of 1987 decided on 27.04.1988. For facility of reference, operative portion of the same is reproduced as under:-
"A finding of misconduct which attaches a stigma to a public servant cannot be arrived at without inquiry and any order of transfer based upon such a finding would be bad. If a finding of misconduct is arrived at without observing the principles of natural justice and that is the "operative reason" for transfer, it is liable to be quashed. If, however, a charge-sheet is issued and statement regarding imputation of misconduct is given or a memo is issued on a complaint and the representation of the employee or statement with reference thereto is recorded, or even where no charge-sheet, or statement regarding imputation of misconduct or a memo has been issued but the concerned official's statement with regard 14 Item No. 22/ C-1 O.A. No. 3948/2023 to the allegations has been recorded, that would more than satisfy the principles of natural justice.
(Paras 14 & 21) An innocuous order of transfer can be penal in nature and can be arbitrary causing great hardship to the employee. But the fact that it causes hardship by itself may not be determinative of the order of transfer being penal. (Paras 5 & 11)."
13. In the written submissions filed on behalf of the respondent no. 1, it is stated that the charge sheet in the departmental enquiry has already been issued to the applicant on 11.09.2024 (copy of the same is enclosed with written submission). It is further stated that from the charge sheet it is clear that the applicant has acted in a manner that, through his decision, he has enriched the private parties by awarding undue monetary benefit to them. It is also stated that the departmental enquiry was contemplated against the applicant, as is clear from the order dated 20.10.2023, which had been issued only after the date of the transfer order. It is contended that to hold the departmental enquiry in a fair manner, as the applicant can influence the witnesses being holding a senior and affluent position herein, the transfer of the applicant cannot be said to be malafide or arbitrary.
14. Learned counsel for the respondent no. 1 further places reliance on the judgment of the Hon‟ble High Court of Delhi 15 Item No. 22/ C-1 O.A. No. 3948/2023 in the case of Alok Kumar Verma Vs. UOI (2022) SCC Online Del 4061, wherein the Hon‟ble High Court has dealt with term „malafide‟ in paras 4-9 of the judgment. The same read as under:-
"4. Before delving into the facts surrounding the dispute or the manner in which the transfer orders of the Petitioner were passed through which the Petitioner is attempting to show mala fide on part of the Respondents, understanding of the term "mala fide"
itself would be essential. At this juncture it would be useful to refer to the landmark judgement of the Hon'ble Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu &Anr., (1974) 4 SCC 3. The same was a case wherein the Petitioner, an Indian Administrative Service Officer in the Cadre of the State of Tamil Nadu had approached the Supreme Court under Article 32 of the Constitution, praying for a direction to the Respondents to re-post him to the Post of Chief Secretary in the State of Tamil Nadu. One of the grounds alleged by the Petitioner was that the Chief Minister acted mala fide in removing the Petitioner from the post of Chief Secretary. Justice P.N. Bhagwati as he was then, speaking for himself, Justice Y.V. Chandrachud and Justice Krishna Iyer had held as under -
"85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian 16 Item No. 22/ C-1 O.A. No. 3948/2023 society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.17
Item No. 22/ C-1 O.A. No. 3948/2023
86. It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is therefore, no answer to the charge of infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post. That might have some relevance to Article 311 but not to Articles 14 and 16. We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and in mala fide exercise of power. What was the operative reason for such transfer: was it the exigencies of public administration or extra administrative considerations having no relevance to the question of transfer? Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irrational or unjust that it could not have been made by any reasonable administration except for collateral reasons? These are the questions which call for our consideration.
xxxxxxx
90. We may now turn to the ground of challenge based on mala fide exercise of power. The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconvenient and uncompromising acts and notings and contended that the second respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true, constituted gross acts of maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second 18 Item No. 22/ C-1 O.A. No. 3948/2023 respondent in these acts of maladministration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.
91. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within our province to embark on a far-flung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus animus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any component of mala fides; whether hostility and malus animus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.
92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of 19 Item No. 22/ C-1 O.A. No. 3948/2023 credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up--these considerations are wholly irrelevant in judicial approach--but because otherwise, functioning effectively would become difficult in a democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.
93. Now extensive arguments were addressed before us by Counsel on both sides and we were taken through a mass of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent, heavy as it is, has been discharged by the petitioner. The allegations of mala fides have been dealt with fully in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those allegations once again in this judgment, as we are substantially in 20 Item No. 22/ C-1 O.A. No. 3948/2023 agreement with what the learned Chief Justice has said. But we cannot help mentioning that there are certain disturbing features which cause us anxiety. We may take by way of example the imputation in regard to the Cooum River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Cooum Improvement Project as he apprehended that there were certain malpractices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated February 25, 1970 shows informed the second respondent that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of credibility since the head of the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government Order in that behalf should therefore be obtained and communicated to him. The petitioner made an endorsement on this letter on the very next day with a remark that the Public (Secret/Confidential) Department should deal with it immediately. The Public (Secret/Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to make a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on March 3, 1970. It appears, however, that this note remained unattended until the middle of September 1970. On September 12, 1970 the Minister for Works made an endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was approved by the second respondent on September 20, 1970. The file containing the note together with the endorsements of the Minister for Works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum to be addressed 21 Item No. 22/ C-1 O.A. No. 3948/2023 by the petitioner to the Director of Vigilance. It is common ground that no memorandum in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order cancelling the inquiry. That is a matter of controversy between the parties and as pointed out above it does not fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Cooum Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated July 31, 1971 to the petitioner stating that though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, if it was with him. The petitioner immediately replied to this letter on August 8, 1971, pointing out that he distinctly remembered that the second respondent had subsequently ordered that no inquiry need be made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had subsequently ordered that no inquiry need be made, Sabanayagam did not write back challenging the correctness of this statement. The file pertaining to this matter was all throughout in the possession of the Government and even after the petitioner pointed out that it was not with him, curiously enough, it could not be traced until the filing of the petition. In fact, the absence of the file could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the place of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well.22
Item No. 22/ C-1 O.A. No. 3948/2023
94. We accordingly dismiss the petition with no order as to costs."
5. The Constitution Bench of the Hon'ble Supreme Court, while dealing with the matter of a transfer had eloquently put down the meaning of mala fide, stating that where the operative reason for State action is not legitimate and relevant, but is extraneous and outside the area of permissible considerations, it would amount to a mala fide exercise of power. Such an action would be hit by Articles 14 and 16. It was further held that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
6. In the case of Shilpi Bose (Mrs.) and Ors. v. State of Bihar & Ors., 1991 Supp (2) SCC 659, the Hon‟ble Supreme Court, while elucidating the instances in which the Courts should interfere with transfer orders made in public interest had held as under -
"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 mala fide. A government servant holding a transferable post has no vested right to remain posted at one place 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 party should approach the higher authorities in the department. If the courts continue to interfere with day- to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."23
Item No. 22/ C-1 O.A. No. 3948/2023
7. The same has been reiterated by the Hon'ble Supreme Court in the case of Rajendra Roy v. Union of India, (1993) 1 SCC 148, and Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357. Unless the Order is hit by mala fides or made in violation of statutory provisions/ service rules/ guidelines for transfer without any proper justification, the Court cannot interfere with the said Order.
8. While expounding the meaning of the term mala fide itself, the Apex Court in the case of State of Bihar & Anr. v. P.P. Sharma, IAS & Anr., 1992 Supp (1) SCC 222, had held as under:-
"50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power.
51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand."24
Item No. 22/ C-1 O.A. No. 3948/2023
9. In a recent case titled as Chandra Prakash Mishra v. Flipkart India Pvt. Ltd. & Ors., Civil Appeal Nos. 2859- 2861 of 2022, vide Judgement dated 30.03.2022 the Apex Court had held that even an erroneous, illegal, or preserve order/ action, by itself, cannot be termed as wanting in good faith or suffering from mala fide. The Appellant therein was aggrieved by the observations/ remarks of the High Court of Judicature at Allahabad relating to the acts and omissions of the Appellant when he was functioning as the Deputy Commissioner, Commercial Tax, Range-II, Sector 2, Noida. The relevant part of the Judgement has been reproduced as under -
"13. Having examined the matter in its totality, we are of the view that even if the High Court found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or omission on the part of the Assessing Authority or the Registering Authority; or that any „tactics‟ were adopted, as per the expression employed by the High Court. Every erroneous, illegal or even perverse order/action, by itself, cannot be termed as wanting in good faith or suffering from malafide."
15. It is further stated that the Hon‟ble High Court, relying upon various judgments of the Hon‟ble Supreme Court, has held in Para 41 of the Alok Kumar Verma (supra) that "As has been stated above, the threshold for establishing than an Order has been issued in a mala fide manner in matters of service, employment and transfers, is very high. The burden to prove the same rests on the person alleging it. The position of law, with regards to issues of policy and transfers is also very clear. The Courts are slow to interfere in such matter and it is not in the Court's province to embark into far-flung inquiries about acts of the respondent regarding the quality of water in the railways. In this case especially, the scope of the inquiry before this Court is limited to the grounds of 25 Item No. 22/ C-1 O.A. No. 3948/2023 mala fide which have been raised by the Petitioner. The Courts are slow to draw vague inferences from facts placed before it by a party, especially when upholding such allegations would have grave consequences. People exercising positions of power are often constrained to take actions which could adversely affect others, but these are usually necessary for executive action. If imputations against as officer holding a high office are proved without substantiating the same through relevant documentation/proof, it would make the functioning of this democracy rather difficult". 15.1. The learned counsel further states that in the present case, the applicant is himself adjudging that he had acted as per the relevant rules and he is being punished for the same only and hence the impugned order is punitive and malafide, which is not permissible in law.
16. He contends by referring to the case of Kamlesh Trivedi (supra) decided by Full Bench of this Tribunal that merely because transfer is ordered on complaints or after an enquiry into the guilt of the employee, it cannot be said to be by way of punishment. In the present case, the applicant has been transferred as the departmental enquiry was contemplated against him and as per the provisions of para 17 of the Transfer/Posting Guidelines, 2016. The applicant has also represented against the transfer order, which has also been decided and hence the applicant has also been afforded the opportunity to present his case. It is 26 Item No. 22/ C-1 O.A. No. 3948/2023 accordingly submitted that the transfer order of the applicant cannot be said to be punitive.
17. The learned counsel further adds that the judgment in the case of Zunjarrao Bhikaji Nagarkar (supra) and Ramesh Chander Singh (supra) relied upon by the applicant, relate to the issuance of charge sheet, and not transfer, and therefore, the same are not applicable to the present case. With regard to judgment in case of Somesh Tiwari Vs UOI [(2009) 2 SCC 592] relied upon by the applicant, it is submitted that the employee in the said case was transferred even nothing adverse had been found against him in the investigation on an anonymous complaint against him, while in the present case, the applicant has been transferred due to administrative reasons and in public interest and, therefore, this judgment is also not applicable to the present case of the applicant.
ANALYSIS
18. From the counter reply of respondents dated 09.02.2024, it is deduced that the Directorate of Vigilance, Government of NCT of Delhi, vide letter dated 20.09.2023 relating to arbitration award for the land acquisition for national highway in village Bamnoli found serious irregularities on the part of applicant and the competent 27 Item No. 22/ C-1 O.A. No. 3948/2023 authority decided to surrender the applicant to Services Department of GNCTD, and recommended to the Ministry of Home Affairs i.e., Cadre Controlling Authority of the applicant, for initiation of disciplinary action against him. The respondents examined the case of Directorate of Vigilance and observed that the applicant enhanced the original award passed by the then ADM (South-West) on 02.04.2018 wherein he determined the value of the land i.e., Rs. 53 lakhs per acre and awarded a total compensation of Rs. 41.52 Cr., while enhancing the value, the applicant determined the rate Rs. 46,200/- per square meters which amounted to Rs. 18.54 crores per acre. They also alleged that the applicant delayed the decision inordinately on review petition by the NHAI on 05.06.2023. The respondents held the applicant responsible for above lapses, and vide their letter dated 20.10.2023 requested the CBI to conduct investigation against the applicant in connection with irregularities in arbitration award for the land acquisition for the national highway in village Bamnoli. The applicant was transferred vide order dated 19.10.2023. He was also placed under suspension on 20.10.2023 in contemplation of a departmental proceeding against him. The respondents have also stated that the applicant has been transferred in accordance with the Guidelines for 28 Item No. 22/ C-1 O.A. No. 3948/2023 Transfer/Posting of IAS/IPS Officers of joint AGMUT Cadre, 2016. They further state that National Capital Civil Services Authority (NCCSA) has right to transfer officers within different departments of Govt. of NCT of Delhi and the said Authority does not have any authority to transfer IAS/IPS officers from one segment to another segment of the Cadre, as such power vests with the MHA. Therefore, they rejected the contention of the applicant that NCCSA has the authority to transfer him.
19. The basis of action of respondents to transfer the applicant from Delhi to Andaman & Nicobar on 19.10.2023 is ingrained in the Arbitration Award which he had pronounced in the capacity of quasi-judicial authority. The land for which dispute arose and which was subsequently referred for arbitration before the applicant (in his capacity as arbitrator) was acquired for national highways. It is clear from the judgment dated 19.02.2019 of the Hon‟ble High Court of Delhi that at one point in time, the said land was agricultural land and the same was subsequently notified as urban extension. For facility of reference, the relevant para from the above-mentioned judgment of Hon‟ble High Court of Delhi is reproduced:
"4. As regards the impugned Awards dated 2nd April 2018 of the CA, the general grievance in all three cases, is that compensation has been 29 Item No. 22/ C-1 O.A. No. 3948/2023 determined based on the circle rates for agricultural lands whereas Village Bamnoli falls in category 'G' having been urbanized by a notification dated 24th October, 1994 under Section 507 of the Delhi Municipal Corporation Act ('DMC Act'), identifying Village Bamnoli as a Low Density Residential Area ('LDRA'). According to the Petitioners, it has been further acknowledged as an urban extension by a notification dated 18th June, 2013 issued by the Ministry of Urban Development, Government of India under Section 11-A of the Delhi Development Act."
20. The arbitral award was challenged before the Hon‟ble High Court of Delhi and vide order dated 31.10.2023, the award was set aside. Therefore, the issue of enhancement of compensation does not exist anymore.
21. As stated above, the Arbitral award was given by the applicant in the capacity of quasi-judicial authority. In sum and substance, the respondents inferred the misconduct on the part of the applicant while acting as Arbitrator he enhanced the compensation for the land in question. This is also the sole reason for his transfer on 19.10.2023 and thereafter suspension on the very next day i.e. 20.10.2023. The law on this point is clear that such an action cannot be resorted to on a vague or indefinite information. Suspicion has no role in such matters. There must exist reasonable basis for the respondent authorities to proceed against the applicant. Merely because he had given an Arbitral award in the capacity of a quasi-judicial authority, which the 30 Item No. 22/ C-1 O.A. No. 3948/2023 Vigilance Directorate of Govt. of NCT of Delhi, found to be stricken with serious irregularities, cannot be a cause of transfer and subsequent suspension of the applicant. In other words, to initiate action against a quasi-judicial authority something more has to be alleged than a mere mistake of law, exempli gratia (e.g.) in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged, the impugned order of transfer is rendered illegal. Such an action by the respondents impinges upon the confidence and independent functioning of quasi-judicial authority like the applicant. The entire system of administrative adjudication, whereunder, quasi-judicial powers are conferred upon the administrative authorities, would fall to disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of constant fear of disciplinary proceedings. The Courts on several occasions have disapproved the practice of initiation of disciplinary action against the officers working in the capacity of quasi- judicial authorities merely because the orders/judgements passed by them are held to be wrong. The appellate/revisional courts have been given powers to set aside such orders. In this case, the Hon‟ble High Court of Delhi has annulled the Arbitral award given by the applicant. 31
Item No. 22/ C-1 O.A. No. 3948/2023 The respondents should have been doubly careful to initiate action against the applicant based on an order which he passed in his capacity of quasi-judicial authority.
22. Indisputably an order of transfer is an administrative action. There can be no doubt that transfer, which is an incident of service should not ordinarily be interfered with, save in cases where inter-alia malafide on the part of the authority is proved. Mala-fide is of two kinds, one malice of fact, while the second is malice in law. It is one thing to say that the respondents are entitled to pass an order of transfer in administrative exigencies, but it is quite a different thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly wrong and illegal.
23. In their counter reply dated 09.02.2024, the respondents have given the following reasons for transfer of the applicant. For facility of reference the reasons given are as follows:-
"i. That the Directorate of Vigilance, Govt. of NCT of Delhi vide their letter dated 20.09.2023 intimated that the matter related to arbitration award for the land acquisition for National Highway in Village Bamnoli was examined by GNCTD and found serious irregularities on the part of the applicant. The matter was placed before the Ld. Lt. Governor, Delhi, who approved to surrender the applicant the then District 32 Item No. 22/ C-1 O.A. No. 3948/2023 Magistrate (DM) (South-West) to Services Department, GNCTD and recommended the MHA for initiation Disciplinary Action against him and also to refer the matter to an investigation agency/CBI for investigation.
ii. That the respondent Ministry examined the case submitted by the Directorate of Vigilance, GNCTD and called a meeting with Spl. Secretary Vigilance, GNCTD and Principal Secretary (Home), GNCTD to discuss the matter. The respondent Ministry observed that the original award passed by the then ADM (South-West) on 02.04.2018 has determined the value @Rs. 53 lakhs per Acre and awarded a total compensation of Rs. 41.52 Crores (Approx.). In contrast, DM (South-West), i.e. the Applicant, awarded Rs. 46,200 per Sq Mtr., which amounts to Rs. 18.54 Crore per Acre. Further, the applicant delayed the decision inordinately on the Review Petition filed by the NHAI on 05.06.2023.
*** *** *** viii. That the transfer order 19.10.2023 and suspension order dated 20.10.2023 have been issued based on facts received from the GNCTD and as per extant rules/law. Para-17 of the aforesaid Guidelines provides that respondent Ministry has the absolute right, if necessary, to transfer or post any officers to any constituent at any time on administrative grounds or in public interest. Since the allegations against the applicant are of grave nature and it was necessary to transfer him from DM South-West, therefore, with the approval of Competent Authority, applicant was transferred from Delhi to Andaman & Nicobar Islands vide order dated 19.10.2023. The Guidelines for Transfer/Posting of IAS/IPS officers of Joint AGMUT Cadre, 2016 (already annexed alongwith the OA as Ann. A-3)."
23.1 The above reasons cited in the counter reply filed on behalf of respondent no. 1 clearly establish that the impugned transfer order of the applicant (dated 19.10.2023) is punitive and issued as a result of arbitral award given by 33 Item No. 22/ C-1 O.A. No. 3948/2023 the applicant in his capacity as quasi judicial authority while working as District Magistrate (South-West), Delhi.
24. In view of above, it is observed that in this case, the order of transfer of the applicant is issued citing irregularities committed by him in passing the Arbitration award in respect of land acquisition for National Highways in village Bamnoli, under the guise of administrative reasons and public interest. We also do not agree with the contentions of the respondents that at this juncture the applicant can influence the witnesses as he is holding senior and influential position. In this background, the transfer order issued by respondents is punitive and has been used as tool of punishment by malafide exercise of power and is liable to be held as ex facie illegal and hence the judgments cited by the respondents in support of their contentions are not applicable in this case
25. In view above, the Original application is allowed with the following orders: -
(a) Order No. 14033/14/2023-UTS.I dated 19.10.2023 transferring the applicant from Delhi to Andaman and Nicobar Islands with immediate effect and order No. F.8/01/2023/S.I./328 dated 34 Item No. 22/ C-1 O.A. No. 3948/2023 19.10.2023 vide which applicant is "Deemed Relived" are quashed and set aside.
(b) The applicant was placed under suspension on 20-10-2023. As a consequence of quashing of his transfer order dated 19.10.2023, the headquarters of applicant shall be Delhi/New Delhi.
(c) The applicant shall be entitled to all
consequential benefits.
(d) There shall be no order as to costs.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
/neetu/