Central Administrative Tribunal - Mumbai
Dated This Thursday vs Union Of India Through on 24 October, 2013
1 O.A. No. 163/2013. CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO. : 163 of 2013. Dated this Thursday, the 24th day of October, 2013. CORAM : Hon'ble Smt. Chameli Majumdar, Member (J). Mrs. Leela Mohan Singh, Group 'B' (Gazetted), working as Appraising Officer, Mumbai Customs Zone-I, New Custom House, Ballard Estate, Mumbai 400 001. ... Applicant. (By Advocate Mr. M.S. Murthy) VERSUS 1. Union of India through The Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, New Delhi 110 001. 2. Commissioner of Customs, Mumbai Zone-I, New Custom House, Ballard Estate, Mumbai 400 001. ... Respondents. (By Advocate Shri R. R. Shetty) O R D E R
Per Smt. Chameli Majumdar, Member (J).
The applicant, who is presently working as Appraising Officer, Mumbai Customs Zone-I, has filed this O.A. challenging the order of transfer dated 08.03.2013 whereby he has been transferred from Mulund CFS to PCA, Mumbai.
2 O.A. No. 163/2013.2. The grounds for challenging the said order of transfer are, inter alia, as follows :
That the enquiry proceeding which was initiated by the respondents pertains to the period prior to his being promoted to the post of Appraising Officer. The applicant had credible information that the transfer based on enquiry proceeding arose from a anonymous letter to the Chief Commissioner. The whole process of using the enquiry proceeding vide letter dated 15.02.2013 was a tool to include the name of the applicant in the ODI list. There are instances where the officers named in the ODI list continued to officiate in the posting held by them. Thus, no prejudice would be caused to the respondents if the applicant is allowed to continue in the present posting. The applicant has been shunted out using colourable exercise of power to ensure that the applicant is black-listed. The premature transfer order has been passed only to black-list the applicant and to demoralize him. The whole case of transfer of the applicant is nothing but mala fide and a colourable exercise of power. The respondents refused to consider the representation of the applicant dated 12.03.2013 and 13.03.2013.
3. The respondents filed written statement to 3 O.A. No. 163/2013. oppose admission and interim relief. In the written statement, the respondents annexed one letter dated 14.02.2013 addressed to the Commissioner of Customs (Gen.) and written by the Additional Director General (Vigilance). A list has been annexed to that letter showing that those officers are of doubtful integrity and vigilance investigation has been initiated and after completion of the vigilance investigation, appropriate action would be recommended against these officers. It was further mentioned that the said officers, even if apply for V.R.S. the Unit may be consulted before making any decision thereon. The respondents have also annexed another letter dated 02.02.2013 written by the Additional Commissioner (Vigilance). From the said letter it appears that the vigilance investigation was at an advanced stage and the role of these officers came to adverse notice. Considering the said fact, sensitive charges should not be assigned to the said officers pending completion of investigation by the said Unit. In pursuance of a centralized order dated 18.03.2013, the applicant was relieved w.e.f. 18.03.2013 on leave from ICD, Mulund (I). He was on sanctioned leave on 15.03.2013 and submitted medical leave application dated 18.03.2013. He was directed to report to DC, 4 O.A. No. 163/2013. PCA, General Commissionerate. The applicant prayed for quashing of the order of transfer. The applicant afterwards amended the prayer clause and included in the prayer clause that the above mentioned two letters dated 14.02.2013 and 26.02.2013 should also be quashed.
4. The respondents have also filed their detailed reply. The respondents have, inter alia, contended that the applicant has joined the Post Clearance Audit (hereinafter referred to as 'PCA') Section, Mumbai, i.e., the posting of the applicant on transfer. The applicant, however, was posted in Container Freight Station (hereinafter referred to as 'CFS'), Mulund on 28.08.2012 and he would have ordinarily been posted for a year. Upon receipt of specific advice from the Directorate General of Vigilance, West Zonal Unit, Mumbai, decision was taken to shift the applicant immediately from sensitive charge of CSF Mulund to non-sensitive charge of PCA, Mumbai. The transfer order has been issued in public interest as the applicant is an officer of doubtful integrity. D.R.I. investigation clearly established loss of revenue in fraudulent drawback claim pertaining to JNCH for the export made in the year 2002 and 2004-2005. Vigilance investigation is at an advanced stage. The present 5 O.A. No. 163/2013. vigilance investigation was initiated in the month of February, 2013, whereas another case was initiated in August 2011 wherein his statement was also recorded on 19.11.2012. The following vigilance/disciplinary cases were initiated against the officer :
(i) Slapping the Driver of Shipping Line
(ii) Misdeclaration of merchant's overtime at CFS Gate, JNCH.
(iii) Excess Cash in possession found on surprise visit by Vigilance Officer.
The respondents have further contended that from the records of the cases, it was observed that there were 13 shipping bills (export documents) which had been attended by Shri L. M. Singh, the applicant, and for which vigilance investigation was in progress.
5. The applicant filed his rejoinder. In his rejoinder the applicant contended that there was nothing in the case record of the DGOV to suggest that 13 shipping bills were incriminating for which vigilance action was initiated in view of the closure report by the DRI and CIU
6. The applicant further contended that the DGOV admitted that the final investigation report was not yet prepared so the transfer order and inclusion of 6 O.A. No. 163/2013. his name in the ODI list was only on assumption and presumption. The DRI conducted an investigation in 2005 and was able to burst a racket of the Exporters unknown to the applicant but DRI could not find any incriminating material against the officers. DRI referred the matter to Central Investigation Unit after conclusion of their investigation. The CIU directly functions under the aegis of the Chief Commissioner of Customs and their role is to investigate the involvement of the Customs Officers in evasion of customs duty under the Customs Act, 1962, as well as under the CCS (Conduct) Rules, The CIU began parallel proceedings in the year 2009 with reference to the role of the applicant and other similar officers who had attended to the exports in question. The CIU thoroughly interrogated the applicant. The applicant provided satisfactory replies to the various questions posed by the CIU officers regarding the manner he attended to the exports. On the basis of the enquiry conducted, an investigation report was prepared by the CIU. According to the applicant, no case has been made out so far as the conduct of the applicant was concerned. As a result, the CIU ordered closure of the case. Consequent to the investigation by DRI, a show cause notice came to be issued to the exporter 7 O.A. No. 163/2013. under the Customs Act, 1962, but no show cause notice came to be issued to the applicant. DGOV opened the closed case in 2013 and issued the letter dated 25.02.2013 whereby the applicant was required to tender evidence on 01.04.2013. The applicant, by his letter dated 22.03.2013 requested to make available the CIU closure Report, shipping bills and related documents and some other documents. The applicant attended the office of DGOV to inspect the documents on 01.04.2013. However, not a single document was made available to him. However, the applicant fully co-operated in the matter of investigation and answered all the questions put forth by the IO, DGOV.
7. I have heard Shri M.S. Murthy, Learned Counsel for applicant and Shri R. R. Shetty, Learned Counsel for respondents.
8. The learned counsel for applicant has submitted that the DRI conducted its investigation in 2004-2005. No show cause notice was issued to the applicant or otherwise. Thereafter, independent enquiry was made by CIU. That enquiry was completed by 2009 by CIU by a closure report. There was no reason for the Director General of Vigilance to wake up in 2013.
9. He has further submitted that a charge sheet 8 O.A. No. 163/2013. has been issued based on the stale charges. Learned Counsel for the applicant was asked whether the applicant challenged the initiation of the disciplinary proceedings or the charge sheet before this Tribunal. The Learned counsel for applicant has submitted that the applicant has not yet filed any O.A. challenging the initiation of the Disciplinary proceedings or the charge sheet.
10. The respondents were directed to produce the relevant records pertaining to charge sheet dated 06.08.2013. The learned counsel for the respondents submit that the applicant has been transferred only from Mumbai to Mumbai but from a sensitive post to a non-senstive post on the recommendations of the D.G. Vigilance. The charge against the applicant is outright negligence shown by him leading to the loss of revenue to the Government exchequer. The applicant acted in an outright negligent manner by repeatedly attending to several multiple shipping bills filed by the racketeers in the name of same exporter on the same day for claiming illegitimate draw back benefit. He failed to bring this fact to the notice of the higher authorities. He failed in conducting proper examination of the shipping bills which led to failure on his part in detecting the fraud.
9 O.A. No. 163/2013.11. Be that as it may. The two issues which are to be considered for disposal of this O.A. are :
(i) Whether the order of transfer dated 08.03.2013 has been issued as a penal action or in a mala fide manner.
(ii) Whether letters of DGOV wherein the DGOV recommended that the applicant should be posted to a non-sensitive post since his name appeared in the list of Officers of Doubtful Integrity are liable to be quashed.
12. The sum and substance of the submission of the learned counsel for applicant is that in spite of closure report by Central Intelligence Unit, it was not open to the Director General of Vigilance to resume investigation on the self same set of allegations in 2013 when nothing was found by the CIU against the applicant and other officers. I have gone through the available records produced by the applicant. From a letter written by the Additional Director General of Directorate of Revenue Intelligence and addressed to the Chief Commissioner of Customs, JCH Nhava Sheva, dated 17/18.10.2006, it appears that the addressee was requested to take necessary action against the concerned officers for dereliction of duties as deemed fit. From the report furnished by the 10 O.A. No. 163/2013. Superintendent from Central Intelligence Unit/JNCH dated 04.06.2009, it appears that the said officer held that the concerned officers should have been more careful in executing their duties so that the fraud would have been averted. It has been further held in the said report that it appeared logical to conclude that there was no aberrations on the part of the concerned officers. This report is dated 04.06.2009 and presumably this is the report which has been referred by the applicant as a closure report. From the letter of the Additional Director General dated 15.12.2009 addressed to the Chief Commissioner of Customs, Mumbai Zone-II, it appears that the suggestion was to reinvestigate the matter. It was requested that the CIU may be directed to do investigation afresh. The complete investigation report along with bio-data, assurance memorandam and draft charge sheet needed to be forwarded to DGV, New Delhi, to obtain the first stage advice from CVC. This letter is dated 15.12.2009. It further appears from the letter dated 14.12.2010 written by the Additional Director General that the A.D.G. requested to issue necessary instructions to the concerned investigating officers to examine and carry out further necessary verification and enquiries. It was also mentioned that the case was 11 O.A. No. 163/2013. under investigation with CIU, JNCH, since October, 2006, onwards and the reports furnished so far were found to contain various infirmities and deficiencies, as discussed above. Therefore, it was essential to look into the matter by the Chief Commissioner of Customs for expeditious investigation and finalisation of vigilance report as the matter was time bound. The next letter produced by the respondents is written by the Additional Commissioner (Vigilance) again addressed to the Chief Commissioner of Customs dated 11.02.2011 and has mentioned that on account of deficiencies of investigation, there was no scope for the Unit to draw any conclusion on the issue of involvement of specific officers. The latest record is a letter dated 26.08.2011 in which the Additional Director General recommended that it was essential to investigate the role of all officers involved and should be investigated fully. The Commissioner was requested to issue the necessary instructions to complete the probe at the earliest and to take necessary action against the delinquent officer. Therefore, from the communications from the DGOV addressed to the Chief Commissioner of Customs, it is evident that further investigation regarding the involvement of the officers was carried on till the 12 O.A. No. 163/2013. initiation of the disciplinary proceedings. In the meantime, the officers against whom materials were available were included in the list of Officers of Doubtful Integrity. The authorities decided to shift the officers whose name figured in the ODI list to non sensitive post without any change in their designation, pay scale or service status.
13.In view of the pendency of the disciplinary enquiry against the applicant, it is not open to him to contend that his name should not reflect in the ODI list, particularly, when it is apparent from the records produced by the authorities that investigation was not set at naught exonerating the officers from their alleged misconduct. I did not find any such clear closure report as claimed by the applicant. I also do not find any force in the submission of the applicant that DGOV ought not to have initiated further investigation, particularly, when there was loss of huge revenue in the public exchequer. From the records it is apparent that prima facie material was found against him along with other officers. For that investigation is in process. Under such circumstances, I do not think that interference with the above mentioned two letters written by the DGOV warrant any interference of this Tribunal at this stage. That apart, by the 13 O.A. No. 163/2013. impugned transfer order the applicant's transfer from one office in Mumbai to other office will not create any family disruption or change his service condition. As discussed above, the applicant has failed to make out any case of mala fide exercise of power of the competent authorities in issuing this order of transfer.
14. It is well settled by various decisions of the Hon'ble Apex Court that the Tribunal will not interfere with an order of transfer unless the order of transfer is issued in mala fide exercise of power, in infraction of statutory rules or professed transfer norms or policy. The Hon'ble Apex Court in the case of Union of India Vs. Janardhan Debanath [2004 (4) SCC 245] has observed as follows :
No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by the Court in National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan. 14 O.A. No. 163/2013.
15. From the material placed before the Court it appears that the applicant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for a oblique purpose and/or for recking vengeance against him or that the respondents seized the opportunity of transferring the applicant. The Hon'ble Supreme Court in the case of Rajendra Roy Vs. Union of India [AIR 1993 SC 1236] held that It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.
16. The Hon'ble Supreme Court has laid down some distinct principle in respect of judicial review of transfer orders, which are as follows :
(a) An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it.15 O.A. No. 163/2013.
(b) For interference of malice in law and malice in fact, there must be firm foundation of fact not only pleaded but also established.
(c) There are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertize for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. Challenge in courts of transfer when the career prospects remain unaffected and also there is no detriment to the Government servant must be eschewed and interference by courts should be rare. Such interference may be made only when a judicially manageable and permissible ground is made out.
(d) In absence of a legal and statutory right of the transferee, judicial review of the transfer of such an employee was held to be unjustified.
(e) In absence of strong and compelling grounds rendering the transfer order improper or unjustified, such an order was held not subject to judicial review.
Judicial review will be denied when the transfer did not affect the employee's service conditions, pay and other benefits attached to the post held by him.
17. The O.A. is accordingly dismissed. No order as to costs.
(Smt. Chameli Majumdar) os* Member (J)