Bombay High Court
Sanjeev Bhagwanrao Kokil vs The State Of Maharashtra on 9 October, 2012
Author: A.M. Khanwilkar
Bench: A.M.Khanwilkar, V.K.Tahilramani
1 1677.12.doc
SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.1677 OF 2012
Sanjeev Bhagwanrao Kokil,
Age 57 years, Occ:Senior Police Inspector,
R/at.Police Officer's Quarters,
2/4, Carter Road, Bandra (West),
Mumbai - 400 050. ...Petitioner
Versus
1. The State of Maharashtra,
[Summons to be served on the
Learned Government Pleader appearing
for the State of Maharashtra under
Order 27 Rule 4 of the Code of
Civil Procedure, 1908]
2. The Commissioner of Police,
Brihan-Mumbai having office at
L.T.Marg, Opp.Crawford Market,
Mumbai - 400 001
[Summons to be served on the
Learned Government Pleader appearing
for the State of Maharashtra under
Order 27 Rule 4 of the Code of
Civil Procedure 1908]
3. Padmakar G.Juikar,
Age adult, Occ: Government service as
Senior Polcie Inspector transferred from
Crime Branch, Mumbai to M.R.A. Marg
Police Station, Mumbai 400 001. ...Respondents
......
SQ Pathan 1/27
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2 1677.12.doc
Mr.A.V.Anturkar with Mr.Prathamesh Bhargude i/b Mr.Sugandh
B.Deshmukh for Petitioner.
Mr.P.M.Palshikar, A.G.P. for Respondent Nos.1 & 2.
Respondent No.3 present in-person.
......
CORAM:- A.M.KHANWILKAR AND
SMT.V.K.TAHILRAMANI, JJ.
JUDGEMENT RESERVED ON: 5.10.2012
JUDGMENT DELIVERED ON: 9.10.2012
JUDGMENT (PER A.M. KHANWILKAR, J.):
1. This Writ Petition, under Article 226 of the Constitution of India, takes exception to the judgment and order passed by the Maharashtra Administrative Tribunal dated 4.5.2012 in Original Application No.174 of 2011. The Tribunal rejected the Original Application preferred by the petitioner challenging the letter dated 7.2.2011 issued by Respondent No.2 and consequential order of Respondent No.1 published on 5.4.2011. The factual matrix as reproduced by the Tribunal in the impugned judgment is not disputed. The same reads thus:
"2. The Applicant was posted as a Senior Police Inspector at M.R.A. Marg Police Station, Mumbai. By a letter dated 24 th January, 2011, Respondent No.2 conveyed to Respondent No.1 the approval of the State Government to a proposal to transfer the Applicant for posting in Amravati City and to replace him at M.R.A. Marg Police Station, SQ Pathan 2/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 3 1677.12.doc Mumbai by Respondent No.3. Accordingly, Respondent No.1 published an order in the Police Notice dated 25 th January, 2011 giving effect to the decision of Respondent No.2 as conveyed by its aforesaid letter. However, Respondent No.2 wrote a letter to Respondent No.1 on 7th February, 2011 stating that the approval of Government was actually for the transfer of the Ap0plicant to Armed Police L-Division, Mumbai and the earlier letter dated 24th January, 2011 mentioned Amravati City by an inadvertent error and directing that the order dated 25 th January, 2011 issued by Respondent No.1 posting the applicant to Amravati City should be cancelled and a revised order posting the Applicant in Armed Police L-Division, Mumbai should be issued. In compliance with this direction, Respondent No.1, by an order published in the Police Notice dated 5th April, 2011, cancelled his earlier order published on 25 th January, 2011 qua the Applicant and posted him in the Armed Police L-Division, Mumbai. Being aggrieved, by this CA, the Applicant has impugned the said letters dated 24th January, 2011 and 7th February, 2011 issued by Respondent No.2 and the consequential orders published by Respondent No.1 in the Police Notice dated 25 th January, 2011 and 5th April,2 011. His prayer is that these letters and orders be quashed and set aside and he be granted all consequential service benefits.
3. As has been noted above, the letter of Respondent No.2 dated 24th January, 2011 conveying the approval of Government to the transfer of the Applicant to Amravati City has been superseded by its subsequent letter dated 7th February, 2011. Similarly, the order of Respondent No.1 published in the Police Notice of 25 th January, 2011 inter alia transferring the applicant to Amravati City was cancelled qua the Applicant by the order of Respondent No.1 published in the Police Notice dated 5th April, 2011. Consequently, the said letter dated 24 th January, 2011 and order published on 25th January 2011 are non est and the prayer for them to be quashed and set aside does not survive and is rejected as redundant. Hereafter, therefore, this judgment considers the prayer to quash and set aside only the aforesaid letter dated 7 th February, 2011 issued by Respondent No.2 and the consequential order of Respondent No.1 published on 5th April, 2011."
(emphasis supplied)
2. The Tribunal rejected the argument of the petitioner that the impugned communications cum order were in the nature of transfer order.
SQ Pathan 3/27 ::: Downloaded on - 09/06/2013 19:15:38 :::4 1677.12.doc Instead, the Tribunal held that the petitioner, having been transferred from M.R.A. Marg Police Station to Armed Police L-Division, Mumbai, it did not entail in change of headquarter and was, therefore, not a case of transfer within the meaning of Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 (hereinafter referred to as `the Act of 2005'). For this, reliance was placed on the unreported decisions of Division Bench of this Court in Shri R.P. Shivdas vs. State of Maharashtra & Ors. 1 and R.S. Kalal vs. State of Maharashtra2. The Tribunal also rejected the argument of the petitioner that the transfer order was vitiated because the matter was not placed before the appropriate Board constituted under the Resolution dated 25.7.2008 to consider the proposal to transfer the petitioner in the backdrop of complaints against him, which was the basis for his transfer.
It also rejected the argument that the proceedings before the Police Establishment Board were vitiated because non-member officers participated in the meeting. It also rejected the argument of the petitioner that the Establishment Board did not record reasons for the impugned transfer. The next argument of the petitioner that the transfer order issued 1 Writ Petition No.3301 of 2010 decided on 11.10.2010 2 Writ Petition No.8898 of 2010 decided on 30.11.2010 SQ Pathan 4/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 5 1677.12.doc against the petitioner suffered from the vice of malafide and malice as also that the same was arbitrary and unjustified, was also rejected. Taking overall view of the matter, the Tribunal rejected the challenge to the impugned communications.
3. The petitioner, has challenged the said decision of the Tribunal and in effect, the impugned transfer order transferring him from M.R.A. Marg Police Station to Armed Police, L-Division, Mumbai. According to the petitioner, he was last transferred on 22.5.2009 within Mumbai from one post to another. Further, by virtue of section 3 of the Act of 2005, being tenure transfer, the petitioner could not have been transferred before expiry of 3 years therefrom. However, the petitioner was transferred vide order dated 26.1.2011 issued under the signature of Dr.Chering Dorje, DCP, Zone I, Mumbai, Exhibit K from M.R.A. Marg Police Station to Amravati City for administrative reasons. Once again, the petitioner was transferred because of the impugned order dated 7.2.2011 issued under the signature of Section Officer, Home Department, Government of Maharashtra, exhibit N, to Armed Police L-Division, Mumbai. These two transfer orders have been issued in quick succession, within a short time. In any case, both these SQ Pathan 5/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 6 1677.12.doc orders were issued before expiry of tenure transfer of three years from 22.5.2009. He then contended that even if the factual position mentioned in the impugned communication dated 7.2.2011 to the effect that due to error, the earlier transfer order mentioned as petitioner being transferred to Amravati instead of Armed Police L-Division, Mumbai was to be accepted as correct, even so, this communication is in the nature of transfer order.
That order has been passed in breach of the mandate contained in section 3 of tenure posting and also without following the procedure u/s 4, in particular, under proviso (ii) of sub-section (4) and sub-section (5) thereof.
Further, no satisfaction has been recorded by the Competent Authority within the meaning of section 4(5) of the Act. No special reason has been recorded in the impugned transfer order except that the transfer was "for administrative reasons". That cannot be considered as exceptional case in which powers u/s 4(5) can be invoked. Further, contends the petitioner, the respondents have tried to support the impugned transfer order on grounds which are not so mentioned in the transfer order itself. Thus, those grounds cannot be looked at for considering the matter in issue. For this he places reliance on Nandkishore Ganesh Joshi vs. Municipal Corporation, SQ Pathan 6/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 7 1677.12.doc KDMC & Ors.3 He further submits that keeping in mind the stand taken by the respondents, it is obvious that the petitioner has been transferred on complaints made against him. The transfer of the petitioner, therefore, could be considered only after the complaints were duly placed before the Board constituted as per the G.R. Dated 25.7.2008, exhibit U at pages 263 to 266. That procedure has not been complied with. In substance, it is contended, that the impugned transfer is a punitive transfer and is passed without giving opportunity to the petitioner to offer his explanation qua the complaints received against him. Lastly, it is submitted that the impugned judgment of the Tribunal having been rendered by one Judge, who was a non-judicial Member, the same suffers from the vice of Corum Non Judice, keeping in mind the observations of the Apex court in the case of UOI vs. R.Gandhi4.
4. The respondents have countered the above submissions and have instead supported the conclusion of the Tribunal. With reference to the grievance of the petitioner that appropriate procedure under Section 4(5) of the Act of 2005 has not been followed or that the Competent Authority 3 (2004) 11 SCC 417 4 (2010) 11 SCC 1 SQ Pathan 7/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 8 1677.12.doc referred to in Section 4(5) read with Section 6 of the Act of 2005 has not recorded its satisfaction, reliance is placed on the proposal regarding transfer of the petitioner at pages 239 to 241, which was considered by the concerned Authorities at different level upto the Chief Minister of the State, on the basis of which, the impugned order came to be passed. The said proposal reads thus:
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9 1677.12.doc 2½ rdzkjnkjkaP;k vkjksikuqlkj voS/k LVWky clfo.;kdjhrk xSjoktoh iS'kkph ekx.kh dsysyh vlwu rh dkgh izek.kkr iw.kZ dsysyh vlY;kus l/;k eqlkfQj[kkU;kr iqohZizek.ksp voS/k LVkWy clfoysys vkgsr- 3½ QaVq'k ukokph efgyk oiksfu ;kaP;korhus iSls xksGk djrs ;kl nqtksjk ns.kkjs dks.khgh leksj vkysys ukgh- ijarq lnj efgyk iksyhl Bk.;kl fu;fer oiksfUk d{kkr cjkp dkG Fkkacysyh vlrs-
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The respondents have also countered the argument of the petitioner that no reason has been recorded in the impugned order including that the reason noted in the impugned transfer order was not sufficient for invoking powers under Section 4(5) of the Act of 2005. The respondents contend that no new ground has been mentioned in the reply affidavit. According to the Respondents, the argument of the petitioner is founded on complete misreading of the averments contained in Paragraph 27 of the reply affidavit filed before the Tribunal. For, it reiterates the reason already recorded in the transfer order and not an attempt to justify the impugned order on some other ground at all. According to the Respondents, there was no infirmity in the procedure followed before issuance of the impugned order against the petitioner, which warrants interference. With regard to the argument of the petitioner about impugned judgment of the Tribunal is bad on account of principle of Corum Non Judice, the respondents contend that SQ Pathan 10/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 11 1677.12.doc even this argument cannot be countenanced as, no objection was taken by the petitioner during the hearing of the matter before the non judicial member of the Tribunal, nor the petitioner has challenged the validity of the Rules framed in exercise of powers under the Administrative Tribunals Act, permitting the non judicial member to decide the proceedings. According to the Respondents, the Petition deserves to be dismissed being devoid of merits.
5. Having considered the rival submissions, we have no hesitation in taking the view that if the petitioner fails to substantiate his argument that the impugned communications purporting to be transfer order have been issued without following the procedure established by law, in particular, Section 4(4) proviso (ii) and 4(5) of the Act of 2005, it may not be necessary for us to examine any other contention. Indeed, the basis for answering the said contention which we may adopt, may not have been specifically considered by the Tribunal. But, that would not preclude the High Court while entertaining challenge of this nature to affirm the ultimate conclusion reached by the Court or Tribunal of first instance on that basis.
In fact, the grievance about non-compliance of procedural requirement SQ Pathan 11/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 12 1677.12.doc under Section 4(4) Proviso (ii) and 4(5) of the Act of 2005 was pointedly raised before the Tribunal and has been answered by the Tribunal against the petitioner. We may, therefore, straightaway examine the said grievance.
Before that, we would deem it apposite to reproduce the provision.
"4. (1) No Government Servant shall ordinarily be transferred unless he has completed his tenure of posting as provided in section 3.
(2) The competent authority shall prepare every year in the month of January, a list of Government servants due for transfer, in the month of April and May in the year.
(3) Transfer list prepared by the respective competent authority under sub-section (2) for Group A Officers specified in entries (a) and (b) of the table under section 6 shall be finalised by the Chief Minister or the concerned Minister, as the case may be, in consultation with the Chief Secretary or concerned Secretary of the Department, as the case may be :
Provided that, any dispute in the matter of such transfers shall be decided by the Chief Minister in consultation with the Chief Secretary.
(4) The transfers of Government servants shall ordinarily be made only once in a year in the month of April or May:
Provided that, transfer may be made any time in the year in the circumstances as specified below, namely :--
(i) to the newly created post or to the posts which become vacant due to retirement, promotion, resignation, reversion, reinstatement, consequential vacancy on account of transfer or on return from leave;
(ii) where the competent authority is satisfied that the transfer is essential due to exceptional circumstances or special reasons, SQ Pathan 12/27 ::: Downloaded on - 09/06/2013 19:15:38 :::
13 1677.12.doc after recording the same in writing and with the prior approval of the next higher authority.
(5) Notwithstanding anything contained in section 3 or this section, the competent authority may, in special cases, after recording reasons in writing and with the prior permission of the immediately preceding Competent Transferring Authority mentioned in the table of section 6, transfer a Government servant before completion of his tenure of post."
6. For considering this question, we would assume that the impugned communications dated 7th February, 2011 Exhibit `N' and 5th April, 2011, read with 26th January, 2011, are in the nature of transfer order within the meaning of Act of 2005. It is indisputable that although Section 3 envisages tenure posting and tenure transfer not to be less than three years on a given post, however, that does not extricate the Competent Authority from transferring the Government servants in the State service including the All India Service Officers of Maharashtra Cadre, to transfer them in special cases before completion of tenure posting. That power is inherent in the Appropriate Authority and can be exercised against the Government servants to transfer them being incidence of service, wherever permissible, if the administrative exigency so warrants. This position is restated in Section 4(4)(ii) and 4(5) of the Act of 2005.
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7. Sub-section (4) of Section 4 predicates that the transfers of Government servants shall ordinarily be made only once a year in the month of April or May. Clause (ii) of proviso under sub-section (4), enables the Competent Authority, when satisfied that the transfer is essential due to exceptional circumstances or special reasons, after recording the same in writing and with the prior approval of the next higher Authority, to transfer the concerned Government servant even before the normal period of month of April or May. The quintessence for exercising that power is the satisfaction of the Competent Authority that the transfer is necessitated due to exceptional circumstances or special reasons which it has to record in writing and before giving effect thereto, prior approval of the next higher Authority has to be obtained. Similarly, sub-section (5) of Section 4 opens with a non-obstante clause. It envisages that notwithstanding anything contained in Section 3 or Section 4, as the case may be, the Competent Authority has power to transfer a Government servant before completion of his tenure posting in special cases. That can be done after recording reasons in writing and with the prior permission of the immediately preceding Competent Transferring Authority mentioned in the table of Section 6. Thus, the question to be considered is: whether the SQ Pathan 14/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 15 1677.12.doc present case falls within the category of special case or case involving exceptional circumstances or special reasons.
8. Let us, therefore, turn to the impugned communication. The letter dated 7th February, 2011, mentions that the State Government has approved the proposal to transfer the petitioner because of complaints received against him whilst working in M.R.A. Marg Police Station. It further states that the communication of the Government dated 24th January, 2011 incorrectly mentions "Amravati City" instead of "L-Division". Therefore, instead of `Amravati City', it should read as "Armed Police L-Division, Mumbai" and the transfer order of Amravati City be cancelled and fresh order be issued and forwarded to the State Government forthwith.
Considering the above, it is not a case of two transfer orders issued against the petitioner in quick succession, as is contended. Rather, it is a case of issuing corrigendum or correction of the transfer order dated 26.1.2014 which in turn, was issued on the basis of State Government communication dated 24th January, 2011. This transfer was based on the proposal mooted by the Competent Authority which has been considered by the Authorities at different levels [Section Officer, Under Secretary, Principal Secretary SQ Pathan 15/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 16 1677.12.doc (Appeals & Security), Minister (Home)], right upto the Chief Minister.
After approval of the proposal by all these Authorities, it was decided to transfer the petitioner from M.R.A. Marg Police Station to Armed Police L-
Division within Mumbai. The statutory authorities having applied themselves to the issues mentioned in the proposal and having thought it appropriate to transfer the petitioner as a special case and in exceptional circumstances, it would certainly qualify the test laid down in Section 4(4) proviso (ii) and/or 4(5) of the Act. That is the subjective satisfaction of the concerned authorities. Sufficiency of the material considered by the Authorities for recording their satisfaction, cannot be the basis for the Court to doubt their wisdom. The first requirement, be it under clause (ii) in proviso to section 4(4) or for that matter, section 4(5), in our opinion, has been fulfilled in the fact situation of the present case. It is nobody's case that the transfer order passed against the petitioner has not been issued by the Competent Authority.
9. The next requirement is of recording of reasons by the concerned Authority. The tenor of the proposal and the manner in which it has been couched, itself manifests the reasons which necessitated transfer of the SQ Pathan 16/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 17 1677.12.doc petitioner from M.R.A. Marg Police Station to some other post, albeit within Mumbai. The fact that the highest authority has merely made endorsement of "proposal approved" on the proposal, does not mean that there is non-compliance of the requirement of recording reasons in writing.
If the superior authorities and in particular, the Chief Minister, having made the endorsement "proposal approved", it presupposes that he agreed with every aspect mentioned in the proposal. If he were to disagree with any of the fact or reason stated in the proposal, he would have certainly made noting in that behalf. Even if he wanted to add further fact or reason in addition to the ones mentioned in the proposal, he would have made a noting in that behalf. Suffice it to observe that the fact that the Chief Minister, who is the final authority, having merely made endorsement "proposal approved", in no way, results in non-compliance of the requirement of recording reasons in writing as predicated in section 4(5) or for that matter section 4(4) proviso (ii) of the Act.
10. The last requirement under these provisions, is that, the transfer order may be passed only with the prior approval of the next higher authority or with prior permission of the immediately preceding Competent SQ Pathan 17/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 18 1677.12.doc Transferring Authority (CTA) mentioned in the table of section 6, as the case may be. In the present case, it is indisputable that the prior approval of the concerned Authority has been obtained before issuing the transfer order against the petitioner. A priori, it would necessarily follow that there is no infraction either of section 4(4) proviso (ii) or section 4(5) of the Act, in any manner. On this finding, enquiry into other issues will be wholly unnecessary and the challenge to the impugned transfer order must fail.
11. Counsel for the petitioner was at pains to persuade us to take the view that the independent satisfaction has not been recorded by the specified Competent Authority. We have already dealt with this aspect hitherto and for the same reason, that argument will have to be negated. He also vehemently argued that no reason is recorded in the communication dated 7.2.2011 purported to be the impugned transfer order. We have already adverted to the contents of the said communication at exhibit-N. It essentially highlights that due to clerical error, incorrect place of posting of the petitioner was mentioned in the State Government communication dated 24.1.2011 for which reason, the transfer order issued against the petitioner on the basis of the said communication be cancelled and a fresh transfer SQ Pathan 18/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 19 1677.12.doc order be passed against the petitioner to transfer him from M.R.A. Marg Police Station to Armed Police L-Division on non-executive post within Mumbai. On the basis of this communication, the transfer order is passed which records reason for transfer as "for administrative reason". The proposal for transfer of petitioner mooted at the different levels right upto the Chief Minister also mentions the same reason for transferring the petitioner to another post from M.R.A. Marg Police Station. Thus, it is not a case of no reason recorded at all. The reason is found in the order itself.
The fact that the reason noted as "for administrative reason", can be no less an exceptional circumstance or special reason or for that matter, as a special case. Whether the reason which weighed with the Authority for arriving at subjective satisfaction would qualify it as exceptional circumstance or special reason or a special case, would depend on facts of each case. It is not possible to computerise or reduce into immutable formulae the diverse considerations on the basis of which this discretion must be exercised.
Administrative reason, as aforesaid, is no less special reason or exceptional exigency to be redressed.
12. Accordingly, we find no merits in the argument that the transfer SQ Pathan 19/27 ::: Downloaded on - 09/06/2013 19:15:38 ::: 20 1677.12.doc order issued against the petitioner is bereft of any reason. Moreover, the reason recorded as "for administrative reason" qualifies the criterion specified under Section 4(4) proviso (ii) and 4(5) of the Act.
13. That takes us to the argument of the petitioner that the respondents have attempted to support the impugned transfer order on other additional reasons not referred to in the order itself. For that, reliance has been placed on portion of paragraph 27 of the affidavit filed before the Tribunal. The same reads thus:
"It is apparent from the said report that the oral functioning of the applicant as a Sr.Police Inspector at M.R.A. Marg Police Station, Mumbai, the applicant has levelled the allegations against the superior officers. However, the functioning of the applicant may not be ignored since both the superior officers have submitted the adverse reports of the applicant. Therefore, after receipt of the report of the superior officers the Commissioner of Police was satisfied that it was a fit case to transfer the applicant from M.R.A. Marg Police Stn. By invoking the provisions of Sec.4(4)(ii) and 4(5) of the Transfer Act."
14. In our opinion, the respondents are justified in contending that the argument of the petitioner is founded on misinformation and misreading of the reply affidavit. The above quoted portion of the reply affidavit cannot be read out of context. The reply affidavit will have to be read as a whole.
SQ Pathan 20/27 ::: Downloaded on - 09/06/2013 19:15:39 :::21 1677.12.doc If so read, it restates the reason already recorded in the transfer order namely; it was essentially to transfer the petitioner "for administrative reason". That reason is not only noticed in the transfer order but also in the proposal. Thus, the stand taken in the reply affidavit is no different than the reason which weighed with the concerned Authorities to direct transfer of the petitioner. Accordingly, reliance placed on the exposition in the case of Nandkishore Ganesh Joshi (supra) is of no avail in the fact situation of this case.
15. To get over this position, counsel for the petitioner submitted that it was not open to the respondents to rely on the reasons stated in the proposal on the basis of which impugned transfer order came to be passed. To buttress this contention, reliance is placed on exposition in paragraph 21 of the reported decision which reads thus:
"A statutory authority, as is well known, when it acts in terms of a statute, is bound by its action. It cannot supplement or supplant the reason later on by way of affidavit. Furthermore, we find that apart from the fact that no such question had been raised by the Commissioner in his letter dated 9-5-2011, the reasons sought to be assigned in the counter-affidavit either are unjustified or irrelevant. A statutory committee should not be denied access to the documents to which it is entitled to, even according to the State Government."SQ Pathan 21/27 ::: Downloaded on - 09/06/2013 19:15:39 :::
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16. For the reasons already recorded by us hitherto, this argument will have to be stated to be rejected. For, it has been held that the transfer order passed against the petitioner, in no uncertain terms, records the reason for mid-term transfer of the petitioner "for administrative reasons". It is not a case of no reason recorded in the transfer order at all. Further, the Department would be justified in supporting its administrative action on the basis of contemporaneous office record such as the proposal for transferring the petitioner which preceded the issuance of transfer order in question. If, even that document did not contain the reason required to be noted for the purpose of Section 4(4) proviso (ii) or 4(5), then, it would be a different matter. In that case, it may not be possible for the Department to supplement or supplant the reason later on by way of affidavit. Suffice it to observe that the argument under consideration is devoid of merits.
17. The next argument of the petitioner which needs consideration, is that, the impugned transfer order was punitive transfer and could not have been passed without giving opportunity to the petitioner. No doubt, the proposal refers to several instances which warranted the transfer of the SQ Pathan 22/27 ::: Downloaded on - 09/06/2013 19:15:39 ::: 23 1677.12.doc petitioner from the post held by him in M.R.A. Marg Police Station. But the transfer order on the face of it, does not mention those instances - but only records the necessity of transfer of the petitioner for administrative reasons. Considering the background in which the proposal was considered by the Authorities upto the highest level in the State Government, as the inquiry was required in respect of adverse matters reported against the petitioner, it was thought appropriate to transfer the petitioner from the present post to facilitate a fair and independent inquiry. Moreover, merely because the impugned order results in transfer of the petitioner on that basis, that does not per se result in punitive transfer of the petitioner, considering the fact that the petitioner has been transferred within Mumbai City only. It is not a case where the petitioner has been transferred to some remote and inaccessible part of Maharashtra by way of punishment.
Suffice it to observe that the transfer was necessitated for administrative reasons and in the facts of the present case, it cannot be considered as punitive transfer at all. Notably, the proposal against the petitioner has been routed through the Police Establishment Board constituted under Government Resolution dated 25th July, 2008 and has been approved at the highest level in the Government. Accordingly, it cannot be considered as a SQ Pathan 23/27 ::: Downloaded on - 09/06/2013 19:15:39 ::: 24 1677.12.doc punitive transfer, as is contended. In view of this finding, it may not be necessary to deal with the other contentions of the petitioner - that the proposal ought to have been placed before the Police Complaints Authority constituted under another Government Resolution dated 25 th July, 2008. In that, we are in agreement with the opinion expressed by the Tribunal, that the purpose of constituting the two boards (i.e. Police Establishment Board and State Police Complaint Authority), in terms of the directions given by the Apex Court in Prakash Singh & Ors. vs. Union of India (UOI) & Ors.4, is markedly different. The proposal regarding transfer of police officer, even if initiated in the background of complaints received against him, is not required to be placed before the Police Complaints Authority.
The scope of powers of the State Police Complaints Authority has been delineated in paragraph 2 of the concerned Government Resolution dated 25th July, 2008. The same reads thus:
"The State Police Complaints Authority shall exercise powers and perform functions as under:
i) look into the complaints against police officers of the rank of Deputy Superintendent of Police/Asst. Commissioner of Police and above in respect of misconduct, dereliction of duty, misuse of power, corruption, negligence or any matter which may be referred to it by the State Government.
4 (2006) 8 SCC 1 SQ Pathan 24/27 ::: Downloaded on - 09/06/2013 19:15:39 ::: 25 1677.12.doc
ii) require any person to furnish information on such points or matters as in the opinion of the authority may be useful for or relevant to the subject matter of enquiry;
iii) make appropriate recommendations to the State Government on any case enquired into it;"
18. On the other hand, the scope of powers of the Police Establishment Board have been delineated in paragraph 1(A)(B) of the concerned Government Resolution of the same date, i.e. 25th July, 2008, which reads thus:-
"1 A. The Police Establishment Board at the State level shall exercise powers and perform functions as follows:
a) The Board shall decide all transfers, postings, promotions and other service related matters of officials of and below the rank of Inspector of Police. However, transfers will be decided within the purview of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in discharge of duties Act, 2005;
b) The Board shall be authorized to make appropriate recommendations to the State Government regarding postings and transfers of officers of and above the rank of Deputy Superintendent of Police and State Government shall give due weightage to those recommendations;
c) The Board shall also function as a forum of appeal for disposing of representations from officers of and below the rank of Police Inspector regarding their promotions, transfer, disciplinary proceedings or their being subject to illegal or irregular orders subject to the provisions of further appeal to Government as per existing rules and operation;
d) The Board shall be authorised to make appropriate recommendations to the State Government, on the grievance received from the Police officers of and above the rank of Dy. S. P. regarding their promotions, disciplinary proceeding and other service matters after analysing the same as per the prevailing rules and regulations;SQ Pathan 25/27 ::: Downloaded on - 09/06/2013 19:15:39 :::
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e) The Board shall generally review the functioning of the State Police;
f) The Board shall exercise such other functions as may be assigned to it by the State Government from time to time.
1 (B). The State Government may modify any of the decisions of the Board after recording its reasons for doing so."
(emphasis supplied)
19. Thus understood, not placing the proposal before the State Police Complaints Authority would not and cannot vitiate the decision making process resorted to in the fact situation of this case.
20. Considering the above, we have no hesitation in taking the view that the Impugned transfer order issued against the petitioner, for transferring him from M. R. A. Marg Police Station to Arms Police, L-Division is just, proper and legitimate. No infirmity has been noticed in the decision making process or in the competence of the Authority taking such decision, as a result of which, the impugned order has been issued.
21. Thus, we uphold the conclusion reached by the Tribunal that the Original Application filed by the petitioner to challenge the said transfer order deserved to be dismissed. Having said this, it is not necessary for us SQ Pathan 26/27 ::: Downloaded on - 09/06/2013 19:15:39 ::: 27 1677.12.doc to burden our Judgment with the argument that the decision of the Tribunal, which is challenged in the present Petition, suffers from the vice of Corum Non Judice.
22. While parting, we make it clear that we have upheld the conclusion reached by the Tribunal in dismissing the Original Application for reasons recorded in this Judgment alone. In other words, we are not burdening this Judgment in considering the infirmity in the decision of the Tribunal, pointed out to us on other matters.
23. Accordingly, this Petition fails. The same is dismissed.
( SMT.V.K.TAHILRAMANI, J.) (A.M.KHANWILKAR, J.) SQ Pathan 27/27 ::: Downloaded on - 09/06/2013 19:15:39 :::