Central Administrative Tribunal - Mumbai
Anil Digambar Bawane vs Petroleum And Explosives Safety ... on 8 October, 2024
1 OA No.844/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.844/2023
CORAM: HON'BLE MR. SHRI KRISHNA, MEMBER (A)
Dated this Tuesday the 08th October, 2024
Anil s/o Digambar Bawane
Aged 52 years Occ. Accountant o/o
Deputy Chief Controller of Explosives
NAPES and TS Gondkairy Petroleum
Safety Organization r/o Flat No. 202,
Ashlesha Apartment, Nagar Kamakshi
Ring Wathoda Road, Bramhanand
Vidyalaya Nagpur 440035
M-9975816907 ... Applicant
(By Advocate Shri A.M. Sudame)
VERSUS
1. Union of India
Through Secretary Ministry of
Commerce and Industry Vanijya
Bhavan 16 Akbar Road New Delhi-11001
[email protected]
2. The Chief Controller of Explosives
Petroleum & Explosives Safety
Organization CGO Complex Block
A 5th Floor Seminary Hills Nagpur 440006
[email protected]
3. Deputy Chief Controller of Explosives
Petroleum & Explosives Safety
Organization o/o Dy. Chief
controller of Explosives National
Academy for Petroleum
and Explosives Safety and ... Respondents
(By Advocate Shri Bhaskar D. Pandit)
Page 1 of 18
2 OA No.844/2023
Order reserved on:24th September, 2024
Order pronounced on:08th October, 2024
ORDER
The applicant was working as Accountant in the office of Deputy Chief Controller of Explosives NAPES & TS Gondkhairy at Nagpur. He has been transferred to Kolkata by impugned order dated 10.10.2023. He has filed this OA to cancel and quash and set aside the impugned order dated. 10.10.2023.
2. Brief facts as stated by the applicant in the OA are that the applicant was appointed in the post of Accountant with the respondents and posted at office of Joint Chief Controller of Explosives North Circle, Faridabad. He was transferred from Faridabad on 31.03.2004 and posted in Nagpur. He was again transferred to Faridabad on 27.02.2007. He was again transferred from Faridabad to Agra on 22.07.2009. He was again transferred from Agra to Nagpur on 07.06.2010.
3. He submits that since inception of his service, he has been an Accountant and has never been granted any promotion except benefits of Modified Assured Career Progression.
4. It has been submitted that the complaint was received against one Shri. H.P. Sangole, Controller of Explosives, incharge of Testing Station (PESO) Gondkhairy and certain other private persons alleging that the officers in collusion with the private Page 2 of 18 3 OA No.844/2023 persons illegally fell Teak Wood Trees and other full-grown trees from the official compound and illegally sold the same. The Chief Controller of Explosives via his email dated 19.07.2023 directed constitution of an enquiry committee for submitting detailed report about cutting of trees without prior permission from the Chief Controller of Explosives, Nagpur. The applicant was one of the members of the committee constituted vide order dated 09.02.2023. The committee conducted an enquiry and submitted its report.
5. The respondent no. 1 issued an Office Memorandum dated 09.02.2023 thereby providing separate transfer policies for Group 'A' Officers of Indian Petroleum and Explosives Safety Services (IPESS) and Group 'B' and 'C' Officials of PESO. The first policy pertains with the officers of IPESS while the second policy pertains to Group 'B' and 'C' Officials of PESO. As per the policy of transfer of Group 'B' and 'C' officers, it provides for creation of an Annual Rotational Transfer Committee under the chairmanship of Chief Controller of Explosives alongwith 3 other officers as enumerated in Para 8 of the policy. The procedure to be followed by the Committee is provided in detail in 'Para 9' according to which an extensive exercise for rotation transfer is to be undertaken on annual basis.
6. The office of Chief Controller of Explosives would invite Page 3 of 18 4 OA No.844/2023 applications for transfer on 28th February of the Annual Rotational Transfer year, clearly mentioning the opening date and closing date and details of online portal. Every employee/official desirous of seeking transfer has to apply online only no physical application can be preferred. The policy further details each and every step which is to be undertaken while deciding a request for transfer. Thus, w.e.f February 2023, all the transfers in the respondent department are to be made in accordance with the policy dated 09/02/2023.
7. The Controller of Explosives issued a memorandum dated 20.03.2023 informing all the officers in Group 'A', 'B' and 'C' that module on transfer in respect of the officials of the PESO has been hosted on the support site and all the officials and staff members of PESO were directed to update their personal information and submit their options. On 12/04/2023, the Chief Controller of Explosives issued a Memorandum thereby calling upon all the Joint Chief Controller of Explosives to prepare a tentative list of staff members (Group B and C Officials) under their respective jurisdiction, who are proposed for transfer.
8. On 27/04/2023 the Chief Controller of Explosives, Nagpur issued an order thereby transferring in all 34 officials. It is pertinent to note that in compliance of the transfer policy, the Applicant had uploaded his details on the support portal in the Page 4 of 18 5 OA No.844/2023 manner prescribed. The Applicant had on the account of illness of wife and the fact that the Applicant has three daughters studying in school, had provided option of Nagpur, Wardha and West Circle, Mumbai so that he can tend to needs of his family as well as perform his duty. The order dated 27/04/2023, by which 34 officers were transferred does not contain the name of the Applicant.
9. It has been averred that after April 2023, there was no issue in so far as transfer of the Applicant as the applicant was regularly performing his duty at the Gondkhairy. Suddenly, the impugned order is issued by transferring the Applicant from Gondkhairy to Kolkata on the basis of an email from Joint Chief Controller of Explosives East Circle Kolkata (10/10/2023). The order of transfer was served upon the Applicant at his residential premises at around 8:00 PM along with the order of transfer, the applicant was served with an order relieving him from Gondkhairy. The haste with which the events transpired, gives out an impression that the transfer was not due to administrative exigency, but for some external reasons.
10. The applicant made representation dated 11.10.2023 to the Chief Controller of Explosives, requesting to cancel transfer and post the Applicant in the office of respondent No. 3, which was neither considered nor replied by respondent No.3. Page 5 of 18 6 OA No.844/2023
11. It has been averred that post of Accountant in the office of Chief Controller of Explosives, Nagpur is lying vacant. The applicant had earlier made an application dated 03/11/2020 for transfer from NAPES and TS to HQ Nagpur. The Deputy Chief Controller of explosives by his communication dated 03/11/2020 informed the Applicant, that his request will be considered. However, the same has not been considered.
12. It has been submitted that there was no complaint against the applicant. The service record of the applicant is clean and unblemished. As such no administrative Exigencies exist to transfer the Applicant from Nagpur to Kolkata. It has been submitted that transfer order is punitive in nature and therefore in violation of and contrary to the transfer policy. The transfer of the applicant is not in public interest. It is a mid-term transfer which is not justified. It is settled position of law, that while effecting a mid- term/mid-session transfer, requirement thereof i.e. exceptional case, public interest or administrative exigency must exist. In the present case, the impugned order is silent, cryptic and does not specify the reason for such transfer, as the entire transfer exercise was conducted and completed in the month of February to April.
13. It has been submitted that the post of accountant in Kolkata Page 6 of 18 7 OA No.844/2023 has been vacant since more than 15 years, as such the same cannot be termed as an administrative exigency to transfer the Applicant in mid-session out of Nagpur. It has been submitted that impugned transfer order is in violation of Article 14 of the Constitution of India as respondents have not followed the rule of transfer policy and transferred him by pick and choose. The action of the respondents is malafide and colorable exercise of power.
14. On notice, the respondents have filed their reply and contested the OA. It has been submitted that transfer is an exigency of service and is an administrate decision. It is a condition of service. It is entirely for employer to decide when, where and at what point of time a public servant is transferred from his present posting. Therefore, ordinarily the court have no jurisdiction to interfer in the order of transfer as the scope of judicial review of transfer is very limited. Therefore, the OA deserved to be dismissed.
15. The counsel for the applicant submitted rejoinder stating that the post of Accountant at Kolkata to which the applicant has been transferred was lying vacant continuously from 2008 till 2023, for a period of more than 15 years, the post was not filled by the department, because there was no work of the Accountant at Kolkata due to computerization and also because due to continuously not filling up of the vacant post of the accountant, Page 7 of 18 8 OA No.844/2023 the post had lapsed and did not exist.
16. It has been submitted that the applicant was not transferred in the annual general transfer which was issued in April, 2023. It was only after the applicant was made a part of the committee by office order dated 19.07.2023, for investigating into report of unauthorized felling of trees, and the report of felling of trees was flashed in the newspapers, the officers in the said committee blamed the Applicant, who was the only Class III (group C) employee and to shield the illicit tree felling activities and to protect the accused persons involved in the said matter, the power of transfer was used for collateral purpose and oblique motive by transferring the applicant to a far off place like Kolkata, so that the applicant is harassed, tortured and victimized. Thus, the order of transfer is not in public interest or in administrative interest but for collateral purpose to punish the applicant on mere suspicion of giving information of tree felling to the press for which he was not at all responsible or involved.
17. It has been submitted that the Joint Chief Controller of explosive Kolkata issued an email for posting of an accountant to the Chief Controller of Explosive on 10.10.2023 at 05: 39 PM at the close of office hour. The applicant's order of transfer was issued and the officials of the department carried the same to the applicant's home and served on him the order at about 08:00 PM. Page 8 of 18 9 OA No.844/2023 It is all the more surprising that the applicant was relieved from his office on the same date. The above conduct of the respondents smacks of malice, ill-will and grudge and points out that the transfer was not in public interest/administrative interest, but to punish the applicant on the suspicion of alleged press report regarding illegal felling of trees in the premises of the academy. The applicant was neither due for transfer nor liable for transfer. The post on which applicant was working is still vacant and no officer has been posted in his place.
18. The respondents in turn have filed sur-rejoinder reiterating the submission made in the reply. However, the applicant's averments that he has been transferred only on the suspicion that being part of investigating committee constituted to report on the illegal felling of trees he might have leaked the information regarding illegal felling of tress.
19. During the arguments the learned counsel for the applicant reiterated the submission made in OA and rejoinder and also submitted a copy of notification dated 22.07.2024 issued by petroleum and explosive safety organization Nagpur by which 4 post of accountant at Nagpur, Faridabad, Agra and Chennai have been advertised for the post of Accountant to support the claim that post in Nagpur, Faridabad, Agra and Chennai is still lying vacant. He has also placed reliance on the judgement of the Page 9 of 18 10 OA No.844/2023 Hon'ble Supreme Court in the case of Somesh Tiwari Vs Union of India and others (2009) 2 SCC 592. Learned counsel for the respondents on the other hand submitted a copy of Memo dated 10.09.2024 giving the details of efforts made to fill up the post of accountant at Kolkata from the year 2006 to 2022 to argue that the post was lying vacant at Kolkata from the year 2006 as they were not able to fill up post at Kolkata. Therefore, the applicant has been transferred as office work was suffering in the absence of regular accountant. He has placed reliance on the decision of Hon'ble Supreme Court in the case of Mohammad Masood Ahmad Vs State of UP, Civil Appeal No. 4360/2007, decision dated 18.09.2007 in civil appeal No. 4360/2007 decided on 18/09/2007 and decision of the Hon'ble Supreme Court in the case of Union of India Vs S. L. Abas (1993) SCC (4) 357.
20. I have heard both the learned counsel at length and perused the pleadings and documents filed on record.
21. I find that the transfer policy dated 09.02.2023 provides in 'para 8' for Annual Rotational Transfer Committee. It says that there will be an Annual Rotational Transfer Committee constituted by PESO, Hq Nagpur for considering cases of Annual transfers, promotion, vacancies, created on superannuation and sudden vacancies created due to unforeseen circumstances (death, VRS etc). The committee consist of Chief Controller of Explosives as Page 10 of 18 11 OA No.844/2023 Chairman, Senior most Jt. CCE as member secretary, Chief Vigilance Officer, PESO as member and Jt. Chief Controller of Explosives (on rotation in alphabetical order of name of city station of Circle office) as member. It has been further provided that meetings to consider annual transfers shall be held annually in the manner as mentioned in 'para- 9' of the policy. Circular for inviting application for transfer will be issued by Office of the Chief Controller of Explosives by 28th February of the Annual Rotational Transfer (ART) year. All eligible officers/officials will submit their requests online along with supporting documents, if any, within a period of 2 weeks from the opening date of online application. Orders for annual transfer shall ordinarily be issued within 3 working days by office of CCE, PESO on receipt of the recommendation of ARTC. Para 11 of the policy deals with residuary jurisdiction and power to relax. It provides that in administrative exigencies and public interest, the CCE, PESO may order any transfer in case of Group 'B' and 'C' official beyond this policy under intimation to DPIIT.
22. It is an admitted fact that the applicant was not transferred in the annual rotational transfer which was issued on 27.04.2023. The impugned order has been issued on 10.10.2023 in which only the applicant has been transferred. It is a single order and, Page 11 of 18 12 OA No.844/2023 therefore, there is no dispute on the fact that it is a mid term transfer. The order states that impugned transfer has been effected with the reference of Jt. CCE Kolkata memorandum dated 10.10.2023 and due to administrative exigency. Therefore, it needs to be examined whether there was any administrative exigency which can justify the mid term transfer of the applicant.
23. It is not in dispute that there was illegal felling of trees without prior permission from Chief Controller of Explosive, Nagpur and a committee was constituted vide office order dated 19.07.2023. The committee members constituted for the said enquiry were as under: -
1. "Shri. S.D. Mishra, Controller of Explosives (Chairman)
2. Shri. Ninad Gawade, Dy. Controller of Explosives (Member)
3. Shri. P.S. Verma, Dy. Controller of Explosives (Member)
4. Smt. Megah Dakhane, STA (Member)
5. Shri. A.D. Bawane, Accountant.
The above committee members are requested to submit the detail report for the above activity within a week. So that the same should be forwarded to Chief Controller of Explosives, Nagpur in times."
A perusal of the above constitution reveals that the applicant was the lowest functionary in the committee. The averment made by the applicant in his rejoinder that he has been transferred merely on the suspicion of the leaking of the report of the committee to the press as not been controverted by the respondents in the sur- rejoinder. Further, the averment of the applicant in the rejoinder Page 12 of 18 13 OA No.844/2023 that conduct of the respondents smacks of malice, ill-will and grudge and points out that the transfer was not in public interest/administrative interest, but to punish the applicant on the suspicion of alleged press report regarding illegal felling of trees in the premises of the academy has also not been denied by the respondents in the sur-rejoinder.
24. The respondents have filed a memo dated 10.09.2024 giving the details of the vacancy position of the Accountant in Kolkata. It reveals that the post was lying vacant since 31.10.2004. Thus, from 31.10.2004 to the date of issue of impugned order on 10.10.2023, the post was lying vacant for 19 years. If there was any urgencies to fill up the post at Kolkata, the same would have been done in the annual rotational transfer which was issued on 27.04.2023.
25. It is further seen that Jt. CCE Kolkata sent an email on 10.10.2023 at 05.39 pm enclosing therewith a memorandum dated 10.10.2023 which reads as under:
" Sub: Posting of "Accountant" in the office of the Jt. Chief Controller of Explosives, East Circle, Kolkata - regarding. One post of "Accountant" in the office of the Jt. Chief Controller of Explosives, East Circle, Kolkata is lying vacant for a long time and day to day office work is being hampered for the same. The Chief Controller of Explosives is requested to kindly grant necessary order for posting of "Accountant" in the office of the Jt. Chief Controller of Explosives, East Circle, Kolkata."
26. A perusal of above letter reveals that Jt. CCE Kolkata has Page 13 of 18 14 OA No.844/2023 mentioned that the post is lying vacant for the long time and day to day office work is being hampered for the same. He requested to grant necessary order for posting of Accountant in Kolkata. No urgencies have been made out in the above letter which can justify the mid term transfer more so when the post was lying vacant since 2004 and work was being managed without a regular accountant.
27. The speed with which the respondents proceeded to transfer the applicant by issuing the impugned order is really surprising. The email was received at 5.39 pm. The order was issued on the same day and the applicant was relieved on the same day without giving him even one day to organize his things at his old office for handing over the charge and it is all the more surprising that the order was served upon the applicant at his residence at 08.00 pm on the same date.
28. The respondents have failed to explain and justify such a haste in transferring the applicant and immediately relieving him within no time and serving the relieving order same day at his residence by taking the refuse under the word administrative exigency.
29. Administrative Exigency is not a mere word which can be invoked at the will of the authorities. The administrative exigency has to be established in order to take administrative exigency. Page 14 of 18 15 OA No.844/2023 The observation of Hon'ble Supreme court in the case of Somesh Tiwari (Supra) are extracted herein as under:
18. In a case where there are materials from which the Court can inter malice in fact or mala fide, if it appears to the Court that there are such malice or mala fide when allegations are made and materials are produced to form certain opinion, the Court has to make an endeavour to remove the curtain and pierce the veil and find out the truth. In order to do so, Court has every right to make an assessment of the matter placed before it and arrive at a conclusion even on facts. When the malice or mala fide sought to be covered under the grounds of administrative exigencies or executive reasons, there may not be any straight-cut evidence to establish malice or mala fide.
In such circumstances, the Court is empowered to draw inference on the basis of the facts disclosed and materials produced before the Court and arrive at a conclusion, which according to its opinion may not be of much doubt and could be supported by justifiable reasons. The Court cannot shut its eyes and avoid its responsibility when materials are placed before it. It cannot refuse to activate itself, in a given circumstances, in order to find out the truth with a view to dispense justice. People come to the Court to seek justice. Court has a responsibility to dispense justice. The party against whom allegations are made is expected to cover up its decision or action and dress it upon in a manner to give it a colour of justification. Whether the action is colourable has to be discovered by the Court on the basis of materials looking behind the apparent.
19. In Aravind Dattatriya v. State of Maharashtra, it was held that it is most unfortunate that the Government demoralizes the officers who discharge their duties honestly and diligently and bring to book the persons indulging in black marketing and contrabanding liquor and that the transfer in the said case was not in public interest but was a case of victimization of an honest officer and that the order of transfer was a mala fide exercise of power aimed at demoralizing an honest officer discharging his duties Page 15 of 18 16 OA No.844/2023 of a public office. In the facts and circumstances of this case, as contended by Mr. Mukherjee, it appears to the Court that there are materials to conclude that this is also a case of victimization since the petitioner had the courage of detecting the shortage of stock of coal, irregularity of purchase of stowing sand and transportation costs etc. An order of transfer within a span of four months, when the petitioner was instrumental in bringing to surface the irregularity in the administration, definitely appears to be an attempt to ease him out of the scenario. These facts appear to be squarely overed by the ratio laid down in Aravind Dattatriya (supra).
20. In Rajendra Ray v. Union of India, the Apex Court had held, that it may not always be 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 of facts and circumstances. But for such inference there must be firm foundation of facts, pleadings and established. Inference cannot be drawn on the basis of insinuation and vague suggestions. Having regard to the facts and circumstances of this case, there are materials from which a reasonable inference can be drawn about the malice in fact or the mala fide, as discussed hereinbefore. The inference that this Court is attempting to draw appears to be based on firm foundation as disclosed in the pleadings and the materials placed before this Court by the respective parties.
21. In C. Ramanathan v. Acting Zonal Manager, PCI, Madras, the Madras High Court had held that in a given circumstances in order to find the mala fide in the order of transfer sought to be asserted by the Government, the Court has to crack the shell of Innocuousness with which the order of transfer is wrapped up and to pierce the veil to find the operative reason behind the order of transfer. In the said case the Court had found that the order was a colourable exercise of power surcharged with bad faith and motivated by irrelevant considerations. In S.V. Singh v. Union of India, this Court had held that the Court is required to investigate as to whether the order of Page 16 of 18 17 OA No.844/2023 transfer is tainted with malice or motive or can be said to be an order passed in administrative exigencies. The Writ Court can crack the shell to see for itself whether there is, in fact, any malice or mala fide move on the disclosure of documents by the parties. A definite motive would be a necessary Ingredient to bring the charge of malice.
22. In S. Pratap Singh v. State of Punjab, the Apex Court had held that every power vested in the public body or authority has to be used honestly, bona fide and reasonably. When a dominant purpose is found to be unlawful then the action itself is unlawful. It cannot be cured by showing that it had another purpose, which was lawful. A power is vested in the authority to accomplish a definite public purpose, i.e., to ensure probity and purity in the public services. But if the context suggests that such power is exercised for achieving an alien purpose, then such action would be mala fide and colourable and liable to be struck down. It can be said to be a colourable exercise of such power. The mala fide cannot be established by direct evidence. It may not be discernible from the order impugned or from the note made in the file preceding the order. If bad faith vitiates the order, the same can be deduced as a reasonable and inescapable inference from proved facts. If such power is exercised by the Government, which Is exclusive power to do so, the same can be inferred within such a circumstances even though denied by the authorities on the face of its assertion of absence of oblique motive. The Court is not precluded from enquiring into the truth of the allegations made affording appropriate reliefs to the party aggrieved by the abuse of the power.
23. Applying the above test in the present case, it appears, as discussed above, that there was malice in fact and mala fide behind the issuance of the order of transfer.
The facts and circumstances of the case clearly establishes that impugned transfer order was issued because of mere suspicion that the applicant might have leaked the report of the Page 17 of 18 18 OA No.844/2023 enquiry committee to the press which is without any basis. The reliance placed by the respondents on the decision in the cases of Mohammad Masood Ahmed Vs State of UP (Supra) and in the Union of India Vs S. L. Abas (Supra) is not applicable to the fact of the case. Therefore, I am of the view that decision of Hon'ble Apex Court in the case of Somesh Tiwari (supra) is squarely applicable.
30. In view of the above facts and circumstances, the impugned order is found to be totally unjustified and cannot be sustained in the eyes of law. Therefore, the same is quashed and set aside. The Original Application is allowed. The respondents are directed to comply with the above order within a period of four weeks from the date of receipt of certified copy of this order. Pending MAs, if any, stand closed. There shall be no order as to cost.
(Shri Krishna) Member (A) /dr/ Page 18 of 18