Delhi High Court
Rajesh Talwar vs State Trading Corporation & Ors. on 30 November, 1999
Equivalent citations: 2000IAD(DELHI)681
Author: N.G. Nandi
Bench: N.G. Nandi
ORDER N.G. Nandi, J.
1. In this writ petition under Article 226 of the Constitution of India,the petitioner has been challenging the transfer order, dated 19.5.1998 and 28.5.1998 as illegal, arbitrary and mala fide whereby the petitioner has been transferred from his present posting in Delhi to Calcutta branch with immediate effect.
2. On 6.6.1974, the petitioner joined the State Trading Corporation (STC)- Respondent No.1 as Junior Assistant. On 1.7.1977 the petitioner was promoted as an Assistant. On 18.1.1980 the petitioner was appointed to the post of Office Manager. On 3.7.1989 he was promoted as an Assistant Manager. On 5.7.1993 the petition was promoted as Deputy Marketing Manager and transferred to Calcutta; that in April 1994, 50th Annual Session of Economic and Social Commission for Asia and Pacific (ESCAP) was commencing in New Delhi; that the delegations from various member countries comprising of Senior Ministers, Diplomats and Bureaucrats were to participate in the conference; that the transport arrangements were to be undertaken by respondent No. 1; that the petitioner was called upon to take up this challenging assignment and respondent No.1 called the petitioner from Calcutta for this purpose; that due to sincere and hard work but in by the petitioner, the transport arrangement for the said conference went on very smoothly and the Additional Secretary, Minister of Commerce by his letter dated 2.5.1994 appreciated the work done by the petitioner.
3. The case of the petitioner is that during the period, 1993-1994, various irregularities in import deal done by STC came into lime light. It was found that there was collection amongst some officers working in STC, who caused immense loss to the corporation. At that stage, Mr. R.S. Sahaye, IPS, who was the Executive Director (Vigilance), recommended the petitioner for the same work and accordingly, the petitioner was transferred to Delhi and posted in the Vigilance Division of STC and in course of the duties, the petitioner brought into light several cases wherein certain employees of STC by means of corrupt practices had caused great loss to the corporation. The enquiry was conducted by Shri R.S. Sahaye, Executive Director (Vig.), who gave his report and mentioned therein that certain officers had played role in the deal with STC ; that CBI, on preliminary inquiries, registered a case RC No. 1(A) /96-ACU-I dated 5.1.1996 suspecting certain officers; that the petitioner was appointed as Enquiry Officer to conduct the enquiry against Shri V.P. Singh, who was appointed as General Manager (Vig.). On the basis of the enquiry report submitted by the petitioner, it was recommended by the authority that a note be put in the personal file that Shri V.P. Singh is unit to hold any sensitive assignment; that apart from the aforesaid enquiry, there were two other enquiries which were conducted by the petitioner against Shri V.P. Singh, one with regard to STD/ISD calls by Shri V.P. Singh, that on 25.9.1997 the petitioner was promoted from Deputy Marketing Manager to Marketing Manager; that on 19.2.1998 the petitioner was informed that respondent No. 1 had received an anonymous complaint against him to the effect that the petitioner has been claiming LTC/medical facilities for his parents although his father was a retired employee from Army Headquarters. Govt. of India was in receipt of pension amount exceeding Rs. 500/- per month that the petitioner was asked to furnish his comments and the comments were submitted by the petitioner against the said allegations; that the petitioner is governed by the STC Employees Medical Benefit Scheme ; that under Rule 1.3(ii) the parents of the petitioner were dependent upon him; that on the basis of the comments submitted by the petitioner, the General Manager (Vig.) was satisfied that the allegations against the petitioner were malicious and motivated and he further pointed out that no further action. In the matter needs to be called for;that the C.M.D., however, appears to be under pressure from the various corners to see that the petitioner is removed from his present post for his honesty and integrity was a matter of hindrance to many officers ; that without making any enquiry and without issuing any memo of charges to the petitioner, the CMD on 15.5.1998 passed an order to transfer the petitioner from the Vigilance Division to STC's Regional Office at Calcutta with immediate effect; that after receiving the said order on 20.5.1998 the petitioner continued in the same post till 25.5.98 when on 26.5.1998 the petitioner had to be admitted in Anand Hospital; that the petitioner was diagnosed for hypertension and depression; that the respondents were in great anxiety to see that petitioner was relieved from his present posting; that two officials were deputed to check the position of the petitioner in respect to his admission in hospital etc. that the petitioner was served with Memorandum dated 28.5.1998 at 9.30 p.m. in hospital calling upon him to automatically report to his next place of posting after being relieved from the Hospital and the petitioner was not even called upon to valid over the charge.
4. Respondent No.1 vide counter-affidavit,contends that the transfer order of the petitioner has been issued due to the exigencies of the administration ; that the petitioner belongs to All India Cadre with transfer liability for posting in India as well as in Foreign Branches, therefore, the order of transfer is not liable to be challenged by way of writ petition; that the order of transfer of the petitioner has been passed by the competent authority in the ordinary course of business and as per exigencies of the administration .The said order of transfer does not visit the petitioner with any adverse consequence on the service career and promotional prospects and that no judicial review is called for; that the Ministry of Commerce, who was handling the 50th Annual Session of Economic and Social Commission for Asian and Pacific (ESCAP) held in New Delhi in April 1994, directed the STC to make arrangements for the delegates. The petitioner who happened to be on leave at New Delhi got himself temporarily posted at New Delhi through Shri D. Kumar who was handling this assignment on behalf of STC w.e.f. 1.2.1994 till this assignment was over inspite of the fact that there were many Deputy Marketing Manager/Marketing Managers and Chief Marketing Managers who could handle this job much more efficiently then the petitioner as there was no dearth of capable Managers at Corporate office (New Delhi) but since the petitioner was more concerned to be at his base station i.e New Delhi with his family, he even agreed to the proposal of the management that he will get only TA of this assignment and will not get DA during his stay at New Delhi for this assignment. As a matter of fact, since his transfer to Calcutta branch, the petitioner was in search of an opportunity that he should get back to C.O (New Delhi) as soon as possible; that seeing the record of the petitioner, the Branch Manager, Calcutta, while writing his C.R. for the year 1993-94, reported in his C.R as under :
"NOT DONE ANY WORK AT CALCUTTA BRANCH SINCE HE WAS ON LEAVE FOR MAJORITY OF HIS POSTING."
That the petitioner somehow was managing his posting at New Delhi at the earliest opportunity; that the Manager posted to handle this assignment alongwith other Managers from Corporates Office (New Delhi) were working in odd hours as per job requirement for discharging their duties. It is not that only the petitioner was given the letter of appreciation all the Managers who were deputed for this work were given such letter of appreciation by the Additional Secretary, Ministry of Commerce ; that as a matter of fact, ESCAP Secretariat is a separate entity and has nothing to do with the STC and since the petitioner was on temporary transfer, he was procuring such letters of appreciation from various sources, including the then Chief General Manager, Ministry of Commerce and ESCAP, Secretariat for making a fool-proof case that he is a very hard worker and can handle the work efficiently which, normally, any employee at Corporate Office (New Delhi) would have handled as efficiently as the petitioner; that as a matter of fact, the duties performed by the petitioner in ESCAP Secretariat was for a hort-period and only in connection with the transportation facilities which was altogether different that the general duties of a manager being performed in STC of his level ; that such performance of petitioner has no impact whatsoever on the job requirement within the STC that the enquiry about the various trade deals of STC is a routine function of vigilance division. It is denied that it is the honesty and sincerity of the petitioner, which had been the criterion for his posting in vigilance division. The petitioner's posting in vigilance Division has been justified by Executive Director (Incharge of Vigilance Division) for the reasons of sharing the work load when at that time only one G.M. and Marketing Manager were available in the Vigilance Division to conduct enquiries and one post of Chief Marketing Manager was lying vacant; that the petitioner is indulg-ing in self praise without any factual basis ; that the petitioner was not the only Manager working in Vigilance Division. The Vigilance Division is headed by General Manager (Vig), who is reporting to Executive Director (Vig.) and there are other managers including the petitioner ; that every employee is supposed to maintain at all time absolute integrity, sincerity and devotion to duty. Each employee is expected to perform the duties assigned honestly and efficiently and do nothing which amounts to unbecoming of a public servant; that the General Manager (Vig.) had also over looked the facts and did not bring to the notice of the authorities various circulars issued by the Corporation from time to time thereby supplied the incorrect information. It was only at the instance of the authorities that they had referred the matter to Personnel Division and they have supplied correct information. From the officers working in Vigilance Division. high degree of integrity is expected and the facts being so clear about of LTC/medical benefits for his parents by giving wrong declaration and misguiding the authorities. Since the petitioner's integrity had come under a cloud; the competent authority, vide his note dated 15.5.1998 decided to transfer the petitioner from Vigilance Division to STC's regional office at Calcutta and also required medical facilities as well as LTC claim by the petitioner for his parents, who were not eligible under LTC/medical Benefit Scheme, to be recovered from the petitioner, that the transfer of the petitioner to Calcutta has nothing to do with the enquiry and that it is an administrative matter.
5. I have heard the submissions advanced by the learned counsel for the petitioner as well as the learned counsel for the respondent and also considered the written submission placed on record by the petitioner.
6. The petitioner has been challenging his impugned transfer to STC's regional office at Calcutta on the grounds of arbitrariness, mala fides and illegality inasmuch as the other officials, who have not been transferred even once from the time of their appointment and that the impugned transfer is against respondent's own policy and that medical benefits and LTC for his parents were permissible under the Rules and circulars of STC and no enquiry having been conducted as regards these allegations.
7. It will be seen from the above that the challenge to the impugned transfer on the count of mala fide is mainly for the reason that the petitioner happened to conduct departmental enquiries against Shri V.P. Singh, General Manager (Vig) and the impugned transfer order being against therespondent's own policy.
8. The law relating to transfer of an employee is well settled by catena of judgments, pronounced from time to time by the Apex Court, that the transfer is an incident of service and an administrative function and the employee is the best judge about the requirement and posting of its employee.The Courts are not to interfere with the discretion of the employer in the matter of transfer except on the grounds, namely: (1) the transfer is an act of malafides on the part of the employer; and (2) when the transfer is made in violation of any statutory provision.
In the case of Union of India Vs. S.L. Abbas the Supreme Court observed that "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 is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the Appropriate Authority must consider the same having regard to the exigencies of administration."
In the case of N.K. Singh Vs. Union of India it has been observed by the Apex Court that "assessment of worth must be left to the bona fide decision of the superiors in service and their honest assess-
ment accepted as a part of service discipline.Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderable requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala-fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise 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." In the aforesaid decision, the Supreme Court further observed that "challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be and eschewed interference by Courts should be rate, only when a judicially manageable and permissible ground is made out."
9. In the present case, it is not disputed that the petitioner belongs to All India Cadre with transfer liability for posting anywhere in India and in foreign branches. Copy of the impugned transfer order dated 19.5.1998 has been produced as Annexure-1. Same reads:
"The Competent Authority has ordered the transfer of Shri Rajesh Kumar Talwar MM from Corporate Office, Vigilance Division to Calcutta branch with immediate effect. He will stand relieved from Vigilance Division within a week with an advise to report to Calcutta office.
It will be seen from the above impugned transfer order that the career prospects of the petitioner are not adversely affected at all nor does the same visit the petitioner with any adverse consequence including the promotional prospects."
10. It has been vehemently argued by learned counsel for the petitioner that because the petitioner conducted sensitive departmental enquiries and especially the vigilance enquiry against Mr. V.P. Singh and as the petitioner submitted enquiry reports against Mr. V.P. Singh, he incurred wrath of the officers, culminating into his transfer to the Regional Office at Calcutta. It may be appreciated that the petitioner was not the only manag-er working in the Vigilance Division of respondent No.1 at the relevant time and the petitioner as one of the Managers, in the Vigilance Division, has to carry out any kind of enquiries entrusted by the division head. Conducting the vigilance enquiry is a part of the duty, which the petitioner, as working in the vigilance division was required to conduct. Conducting the vigilance enquiry/departmental enquiry entrusted by the head of department is nothing special or extraordinary and simply because the petitioner conducted vigilance enquiry against Mr. V.P. Singh, G.M (Vig.) that cannot be regarded as a reason leading to the passing of the impugned transfer order. It need hardly be said that in public administration, no body is indispensable and every employee is supposed to at all time maintain absolute integrity, sincerity and devotion to duty and each employee is expected to perform the duties assigned to him/her honestly and efficiently.
It will be seen from the above that the allegation of malafide is an inference, to be drawn from the circumstances pointed out above. Simply because other officers allegedly not transferred for years together out of Delhi that by itself can not be indicative of arbitrariness and no inference can, therefore, legitimately be drawn of arbitrariness on the part of respondent No.1 in transferring the petitioner to regional office at Calcutta by the impugned transfer order.
11. One of the arguments, advanced on behalf of the petitioner, is that the impugned transfer order of the petitioner to the regional office at Calcutta is against the respondents circulars and policy. In this regard reference may be made to the preamble to the "TRANSFER GUIDELINES FOR MANAGERIAL CADRE OF ALL INDIA CADRE" (page 98). It reads:
PREAMBLE:
The transfer guidelines would be followed as far as possible, subject to Management reserving the right of any deviation on administrative grounds.
12. Learned counsel for the petitioner has invited attention to para 7.2, which provides that those managers, who have not had any transfer since promotion/entry into managerial cadre, will be moved out first, based on seniority. Para 7.3 provides that the transfers will also be done in such cadre on the basis of seniority of the manager in the cadre, seniors moving out first. Para 7.4 provides that after completing the, transfers will be brought back to his preferred station subject to availability of vacancy in that grade, and will not be transferred for a period upto three years. Para 7.7 provides that the transfer will first be made from the categories of direct recruits, managers returning from foreign posting and accelerated promotees. In order of priority managers will be transferred only after these categories exhausted.
It is not in dispute that the petitioner's first transfer was on promotion as Deputy Marketing Manager and transferred to Calcutta on 5.7.1993. As far as the Guidelines/Policy referred to above are concerned, admittedly, there is no statutory provision violated. In transferring the petitioner from Delhi to Calcutta. The petitioner is having all India transfer liability and page 98 referred to above, are merely guidelines. It need hardly be said that such guidelines/instructions which have admittedly no statutory force, do not confer any right on the employee to challenge the transfer order on the ground of violation thereof. Merely because the guidelines are violated that by itself will not be sufficient to quash the transfer order, as being malafide. Looking to the preamble of the Guidelines, reproduced above, the order of transfer on administrative ground can still be passed even if it is in violation of such guidelines, which have no statutory force and the administrative exigencies have to give way to the guidelines.
13. In the above view of the matter, the impugned transfer in my opinion can not be successfully challenged either on the ground of mala fides, arbitrariness or violation of guidelines, which have no statutory force.
14. In the result, the petitioner, being devoid of merits, is liable to be dismissed. Since the operation of the impugned transfer order came to be stayed by this court vide order dated 28.1.1998. It would be in fitness of things, if petitioner is directed to comply with the impugned transfer order dated 19.5.1998 and 28.5.1998 within two weeks from today. Order accordingly.