Central Administrative Tribunal - Ahmedabad
A.C. Sharma vs Union Of India (Uoi) And Ors. on 13 February, 2001
Equivalent citations: 2004(1)SLJ291(CAT)
JUDGMENT A.S. Sanghavi, Member (J)
1. Heard Mr. B.P. Tanna for Tanna Associates for the applicant and Mr. S.N. Shelat, Additional Advocate General with Mihir H. Joshi and Ms. P.J. Davawala for the respondents.
2. The applicant, Mr. A.C. Sharma who is serving as Assistant Commissioner in Central Excise and Customs at Jamnagar, has by filing this O.A. under the provisions of Section-19 of the Administrative Tribunals Act, 1985 challenged his transfer order transferring him from Rajkot Commissionerate to A'bad Commissionerate and has prayed for quashing and setting aside the said order. The main ground on which the impugned transfer order is challenged is that the same has been issued by the respondents under pressure from the Union of Superintendents and Inspectors etc., and he is being victimized on account of his being an honest, upright and efficient officer. According to the applicant he was holding the dual charge of Assistant Commissioner (Anti Evasion) Headquarters, Rajkot along with a charge Of Central Excise Division, Jamnagar and in discharge of his duties, he had to displease many of his subordinate officers. He was required to look after many sensitive areas including Kandla, Dwarka, Jamnagar etc., and because of his sincerity, uprightness and devotion to the duty, many of his subordinates did not like him. He was instrumental in exposing the racket for receiving award moneys by the Superintendent of Central Excise Mr. Gangwani, who also happened to be President of the Group B Officers Association of Customs and Central Excise Commissionerate Rajkot. It was revealed in his inquiry that Mr. Gangwani had planted a bogus informer for the seizer of gold valued at Rs. 9.75 crore and on account of this exposure Gangwani was deprived of the reward which would have fetched quite a big amount. Mr. Gangwani was therefore displeased with the applicant. The applicant had also investigated the malpractices going on at Alang and had brought out the facts of non-destruction of wireless sets required to be destroyed as per rules and on his report three officers of the rank of Superintendents were suspended and major penalty charge sheets were issued against them and CBI also had initiated proceedings. He was also instrumental in finding out that another Superintendent, Mr. R.T. Vajani had hot booked the cases of evasion of duty with regard to the brass parts at Jamnagar. It was also found that in more than 12 cases no investigations were carried out by Mr. Vajani, and Mr. Gangwani who subsequently Mr. Vajani had also not taken any action. On account of the report submitted by the applicant, Mr. Vajani had been issued charge sheet for major penalty and Mr. Gangwani was also under constant apprehension of disciplinary action on account of his omissions and commissions. They were therefore agitating against the applicant. According to the applicant thereafter on dated 12.9.98 the Chief Commissioner, Customs and Central Excise, Vadodara and other Commissioners of Gujarat zone had assembled at Veraval to attend the Public Account Committee Meeting and since the inspectors Mr. Gandhi and Mr. Chhatbar had not carried out their duties assigned to them, properly, they were reprimanded by the applicant and the Assistant Commissioners, Junagadh. On the next date i.e. 13.9.98 another Superintendent Mr. Thaker of Dwarka was also reprimanded and scolded by the applicant for non-performance of his duties of proper transport arrangement for the Members of the Parliament and giving cause of this incident Mr. Gangwani and Mr. Jhala and others led a mob of officers outside the chamber of the applicant on 18.9.98 and had hurled the abuses and threats at the applicant. Again on 21.9.98, Mr. Gangwani, Mr. Jhala and other office bearers of group 'C' Executive Officer's Association, collected outside the chamber of Dr. S.L. Meena, Dy. Commissioner (P & V) and shouted slogans and gave threats to the senior officers behaving in an indisciplined manner. Thereafter on 22.9.98 Mr. Gangwani and others had met the Commissioner, Customs and Central Excise, Rajkot and served a notice of strike w.e.f. 25.9.98. Thereafter on 23.9.98 Mr. Thaker had presented himself before Mr. Dr. S.L. Meena and given his voluntary statement that he was at fault and that he had no grievance against the applicant. However, immediately thereafter, a mob of officers led by Mr. Gangwani and Mr. Jhala Gheraoed Dr. Meena and snatched away the statement given by Mr. Thaker under threat of assault. Thereafter on dated 25.9.98 entire officers and staff within the division proceeded on illegal strike and when the Commissioner of Central Excise, Rajkot along with the Dy. Director of Revenue Intelligence, A'bad and Assistant Commissioner, Central Excise, Division. II, Rajkot arrived at the office of the Commissioner in staff car, the driver of the car was dragged out and his keys were snatched away by the striking officers. All these incidents were reported on the same day by the applicant and other officers. Even the Commissioner at Rajkot had submitted his detail report on 29.9.98 to the Chief Commissioner giving full details of the events. It was also pointed out that none of the officers who was reprimanded by the applicant and others had given any complaint of any misbehavior on the part of the applicant. The Commissioner at Rajkot had again submitted another report on 29.9.98 suggesting actions to be taken against the striking officers. The striking officers on the other hand held talks with the Chief Commissioner of Vadodara and had pressed for the transfer of the applicant out of the zone. The Chief Commissioner however, had turned down the demand of the striking officers and had appointed Mr. K.C. Mamgain, Commissioner at A'bad as inquiry officer to inquire into the alleged complaints against the applicant and also into the investigation which led to the strike. Thereafter on 30th Sept., 98 the applicant was divested of the dual charge and was posted as Assistant Commissioner, Jamnagar only. According to the applicant, this was done under the pressure from the striking officers but he had not challenged the same and accepted the said order. Mr. K.C. Mamgain thereafter started inquiry and since no complaints were in existence against the applicant, the Chief Commissioner wrote to the different Associations to make available the complaint against the applicant. However, on 5.10.98 while the inquiry was going on the entire group 'B' and 'C' officers went on illegal strike and therefore on 6.10.98 a notice for derecognition of the Rajkot group 'B' Executive Officer's Association was issued by the Commissioner of Customs and Central Excise, Vadodara. Thereafter on dated 8.10.98 a meeting was arranged between the Chief Commissioner with representatives of several Associations and the Chief Commissioner had given number of assurance including the immediate transfer of the applicant from the Rajkot Commissionerate. The applicant has alleged that from the minutes of that meeting it becomes clear that decision to transfer him was taken under pressure from the striking officers and hence, transfer of the applicant is mala fide and not borne out of any administrative requirement. He has also alleged that the transfer is sought to be carried out under pressure from the subordinate staff members as they do not like the sincere and honest officers. According to him though his transfer was not supported by his colleagues and his superiors, the same has been resorted by the respondents only as a short cut to solve the immediate problem of strike. Such an action of surrendering to pressure tactics will certainly demoralize the honest officers and affect the performance of such officers in future. He has contended that the question now is not simply of his transfer but is of the matter of policy as to whether an honest officer should be snubbed by his transfer when his firm and honest actions displeases some persons who manage to bring pressure on administration by means of unlawful activities. He has also contended that the inquiry being conducted by Mr. Mamgain is still over and while it is still in progress, the respondents have taken a premature decision to transfer him suggesting thereby that the applicant was guilty. The order of the transfer therefore suffers from legal mala fide and the transfer is mala fide and made only to victimize him and the same is required to be quashed and set aside.
3. The applicant had earlier moved O.A. No. 713 of 1998 before this Tribunal challenging the same transfer order and this Tribunal vide order dated 13.10.98 had directed the applicant to make a representation to the respondents giving full facts of the case and explaining his position and had also directed the respondent No. 2 to decide the same taking into account the facts mentioned in the representation and intimate the applicant accordingly. It was also directed that till the representation was decided the applicant would continue in his present post at Jamnagar. Pursuant to that order the applicant had submitted a detailed representation on dated 16.10.98 and according to the applicant it was communicated to him on dated 20th January 1999 by the Dy. Commissioner, Customs and Central Excise, Vadodara that the Board had considered his representation and gone through the relevant reports and after examining and considering, Board had decided that along with the applicant all those officers who were found to have indulged in unruly behavior at the time of strike should also be transferred out from the Rajkot Commissionerate simultaneously. It is stated by the applicant that the Est. Order No. 1 of 1999 had been issued in respect of seven officers and also Est. Order No. 2 of 1999 had been issued by the Chief Commissioner transferring him to A'bad. According to him he is not yet been served with the order of his transfer but since he has come to know about the same, he is challenging the same on the ground stated above. He has also contended that his representation has not been dealt with properly but the respondent No. 2 and speaking order as required has been passed by the Board. They have therefore committed breach of the principles of natural justice and hence the order is violative of the Articles 14 and 16 of the Constitution of India. On all these grounds the applicant has prayed for quashing and setting aside of the impugned transfer order transferring him from Rajkot to A'bad.
4. The respondents have resisted this O.A. and in his reply affidavit Mr. R.K. Malhotra, Under Secretary, Ministry of Finance, Department of Revenue, has denied that the impugned transfer order of the applicant is in any way illegal or mala fide or issued under pressure of the unions to victimize the applicant. It is also asserted that there is no question of integrity or honesty involved in the transfer of the applicant arid without entering into the question of integrity, honesty and uprightness etc., it is submitted that the Government servant can always be transferred to any charge on administrative grounds in the interest of public service. It is contended by him that there were allegations against the applicant by Group 'B', 'C' and 'D' employees of Rajkot Commissionerate that he had used abusive language against a few of them. As there was an unrest amongst the Group 'B', 'C' and 'D' employee against the behavior of the applicant, they had proceeded on strike and Shri. K.C. Mamgain, Commissioner of Central Excise, A'bad was asked to inquire into the allegation of misbehavior and use of abusive language against his staff. Shri. K.C. Mamgain, in his report confirmed the allegations against the applicant. The earlier transfer of the applicant ordered by the Board vide office order dated 7.10.98 had been stayed by the C.A.T. vide their ex-parte order dated 13.10.98 with direction to the applicant to submit within one week a representation to the Chairman, Central Board of Excise and Customs. He has also stated that the applicant had submitted a detailed representation to the Chairman, Central Board of Excise and Customs against his transfer and the representation was duly examined by the Chairman. The report of Mr. K.C. Mamgain, C.C.E, A'bad into the allegations of misbehavior against the applicant was also taken into consideration while examining the representation of the applicant. It was ordered by the Chairman, that the applicant should be shifted out of the Rajkot Commissionerate as he had been held to have misbehaved with his staff members. According to the respondents, there is no question of demoralization of honest and sincere officers discharging their duties as functioning and administration of the department is to be considered first. According to them the Group 'B' and 'C' officers who had indulged in irresponsible behavior in the strike had also been ordered to be transferred out of the Rajkot Commissionerate. It is denied that the transfer of the applicant is at the behest of any party, whosoever, as alleged. It is also denied by the respondents that the said transfer is likely to affect the administration adversely or demoralize the inspectors who are discharging their duties. It is reiterated by the respondents that the applicant had been transferred by the Board after taking into account all the relevant aspects and that the transfer was very much in the public interest. According to them the applicant was wrongly trying to claim immunity against his transfer on the basis of alleged misconduct of others. It is also contended that the statements recorded by Mr. Mamgain do indicate of some incidents resulting into bad-blood between the applicant and his subordinates and this has affected the normal functioning of the Commissionerate. According to them the Board, in an obvious measure to keep two warring parties apart had transferred all such officers including those named in the application namely Mr. Gangwani, Jhala amongst others vide order dated 19.1.99. This was however done to see that the normal working of the administration is restored and there was no question of mala fides or victimization involved. They have also denied that the Chief Commissioner had given any assurance to the striking officers to transfer the applicant and have contended that only assurance which was given by the Chief Commissioner, was that the order of the transfer issued by the Board in respect of the petitioner would be implemented. They have prayed that the O.A. be dismissed with costs.
5. The applicant has filed rejoinder to the reply given by the respondents and the respondents have filed their sub-rejoinder affidavit also. Both the sides have filed their documents on record and the respondents have also made available the departmental file for our perusal. The learned advocate of the applicant has also been shown the notings in the file and even given a copy of the notings.
6. We have heard the learned advocates of both the parties at length and carefully gone through the various reports, notings in the file, documents adduced by both the parties on record and catenas of decisions cited at the bar. The impugned order of the transfer is assailed by the applicant mainly on the ground that the same has been issued by the respondents under pressure from the Association of subordinate staff and by way of punishment for his uprightness, sincerity and honesty with a view of pacify and appease the Association and as such the same suffers from the vice of the legal mala-fides. Before we examine the validity of the impugned transfer order we would like to point out that so far as the law of transfer is concerned, it is well established by various judgments of the Supreme Court and High Courts that if the transfer of a Government servant is made in exigencies of the service and due to administrative reasons and the transfer orders which are not mala fide and not in violation of the service rules issued in proper justification cannot be quashed by the Courts. Mr. Tanna, learned Counsel appearing for the applicant has not disputed that the scope of the judicial review in matters of transfer of a Government servant is very limited being confined only to the grounds of mala fides and violation of any specific provisions or guidelines regulating such transfers amounting to arbitrariness. However, Mr. Tanna has submitted that the history of this case as well as the facts, adduced by the applicant on record by way of various statements recorded of the several members and the reports of the superiors of the applicant etc., and even the noting on the file of the Central Board of Excise and Customs, New Delhi, leads to an inevitable conclusion that the impugned transfer order is issued by the respondents not by way of routine administrative transfer but only to succumb to the demands of the various associations who were bent upon seeing that the applicant is transferred as he had been a thorn in their carrying on their illegal activities. According to Mr. Tanna, the applicant had been responsible for exposing the racket of some of the subordinate officers to recover the reward in fictitious name and also investigating into the mal practices being adopted at Alang Ship Breaking yard and thereby inviting displeasure from the corrupt subordinate staff. He was responsible for unearthing the evasion of the Customs duty on the part of the manufacturers of the brass parts at Jamnagar etc. and the part played by the subordinate officers i.e. Superintendents and Inspectors of the Customs and Central Excise in helping the manufacturers of the brass parts in evading the duty and therefore the subordinate staff members like Mr. Gangwani, R.T. Vajani etc., who were the office bearers of the subordinate staff association were out to see that he is transferred from this Commissionerate. These officers who were not only corrupt and in disciplined but work like a mafia gang had blown up an incident of applicant reprimanding one of the superintendents Mr. M.M. Thaker, for failure to perform his duties properly during visit of some of the members of the Parliament on 13.9.98 and had on allegation that the applicant had misbehaved and used abusive and unparliamentary language instigating the other association went on a lightening strike. According to Mr. Tanna, it is an undisputed position that on dated 18.9.98, Mr. Gangwani, Mr. Jhala and Mr. Vajani etc., led a mob of the staff members to the chamber of the applicant and had hurled abuses at the applicant and gave threats to him. Again thereafter on dated 21.9.98 they had gathered outside the chamber of the Dy. Commissioner and shouted slogans and gave threats to the senior officers with loss of life and acted in highly undisciplined manner. On 23.9.98 Dr. S.L. Meena, another Commissioner had recorded the voluntary statements of Mr. M.M. Thaker who had confessed his fault and stated that he had no grievance against the applicant but immediately thereafter Gangwani and Jhala etc gheraoed Dr. Meena and snatched away the statement of Mr, Thakar under threat of assault and thereafter on dated 25.9.98 the Association had went on strike and the unruly mob of the staff members had assaulted the driver of the staff car of the Commissioner and had also abused the Commissioner of the Central Excise, Rajkot along with Dy. Director of Revenue, Intelligence, A'bad etc., The reports of these incidents were duly sent by the applicant as well as the Commissioner to their superiors faithfully recording the events as they occurred. According to Mr. Tanna, the glaring aspect of the whole thing is that no complaint was lodged by any of the subordinate staff members with the superiors or anybody else regarding the alleged misbehavior of the applicant and this was even noted by Mr. Mamgain who was appointed as an inquiry officer by the Chief Commissioner, Baroda to inquire into the incidents. Commenting upon the inquiry carried out by Mr. Mamgain in the incidents Mr. Tanna has submitted that he had even gone to the extent of inviting complaints against the applicant as there was no complaint against the applicant. Thereafter he recorded the statements of only the interested staff members and without entering into the unruly and undisciplined behavior of the staff members and without inquiring into the incidents reports submitted by the applicant and the Commissioner as well as other Assistant Commissioners, he had given only one sided report. Mr. Tanna also had some harsh words for the Chief Commissioner Mr. D.K. Acharya, Vadodara who according to him had all along acted in a manner not be fitting the superior officer of the rank of Chief Commissioner as in spite of the report of the Commissioner, Mahesh Kumar instead of taking any disciplinary action against the unruly and undisciplined staff members, he had advocates the transfer of the applicant. Referring to the letter dated 28.9.98 addressed by the Commissioner, Mahesh Kumar to the Chief Commissioner, Customs and Central Excise, Vadodra, Mr. Tanna has submitted that the Commissioner has faithfully recorded all the incidents that had occurred and even suggested the action to be taken for the consideration of the Chief Commissioner. Quoting para 1.3 and 1.4 of the letter, Mr. Tanna has submitted that the letter clearly gives full facts of the incidents and the version of the superior officers and in para-12 the Commissioner has suggested the action to be taken which were :-
(1) Withdrawal of recognition of the Superintendents Association for instigating their subordinates to go on strike and for violation of the rules of recognition of association.
(2) Disciplinary action against Shri Gangwani, Jhala and others for breach of the conduct rules and use of abusive language and forcible gherao of senior officers, and (3) Transfer of the guilty persons out of this Commissionerate.
Instead of initiating action according to the advise given by his immediate subordinate, the Chief Commissioner recommended the transfer of the applicant and even went to the extent of giving promise to the striking corrupt officers of seeing that the applicant would be transferred. According to Mr. Tanna this fact clearly reveals that the decision to transfer the applicant was taken under coercion and pressure and that the applicant was transferred not as a routine but by way of being made a scape goat. According to Mr. Tanna only after this Tribunal directed the Chairman of the Board to entertain the representation from the applicant and decide the same on merit, did the Board taken decision to transfer all the guilty staff members and initiated disciplinary action against them. However, the transfer of the applicant was not at all justified as it would mean that for getting honest, upright and competent officers removed from the place of posting the subordinate corrupt and indisciplined staff can succeed by resorting to the illegal strike. This was only demoralize the honest and upright officers who are carrying on their duty without fear and favour. According to Mr. Tanna, the stand taken by the Board Members that to separate the two warring groups, they should be transferred is clearly erroneous and not justifiable. According to him the Chairman of the Board has done injustice to the case of an honest and diligent officer. When the historical background goes to show that the applicant had made all efforts to control indisciplined behavior of all other officers, the transfer of the applicant would give rise to an impression that he was also one of the guilty parties and therefore this transfer cannot be considered to be either bonafide or in the exigencies of the services or in the public interest.
7. On the other hand Mr. S.N. Shelat, Learned Additional Advocate General has stoutly defended the action of the respondents to transfer the applicant. According to him, the said transfer is purely in public interest. It becomes difficult to carry on the administration with both sides quarreling and when the whole administration of the Customs department was paralyzed, it was absolutely necessary in the public interest to transfer both parties. Refuting the allegations that the transfer was made under pressure of various associations he has submitted that the transfer order was passed after due inquiries and after taking into account all the factors including the representation of the applicant. The paramount consideration of the department was only to see that the proper atmosphere is created and the administration is carried on in a smooth way. He has denied the allegation that it was the punitive transfer and submitted that when the administration was paralyzed, to bring normalcy, if the transfer of some officers is made it cannot be said to be a punitive action as the transfer was purely in public interest. He has further submitted that there is no basis to accept the applicant's contention that his transfer was occasioned by mala fide as no mala fides are even attributed to the Chairman of the Board of the Central Excise and Customs. He has also contended that the appellant's transfer was an ordinary incident of his service which had no adverse effect on his service career. He has neither been reduced in rank nor been given a posting which can be said to be derogative. In any case, assuming for the sake of argument that the transfer involved some hardship to the applicant the public interest will have paramount importance rather then the private interest of the applicant. The question of mala fide also does not survive as no individual has taken decision to transfer the applicant and the decision was taken by collegium of persons vizly., the Board Members and hence also the impugned transfer order cannot be quashed or set aside.
8. We have carefully considered the rival contentions and gone through the catenas of decisions cited by both the parties at the bar. We have also carefully gone through the notings in the file made available by the respondents for our perusal as well as the perusal of the applicant. We may at this juncture also point out that the office bearers of the association who were simultaneously transferred to various places in Gujarat have also moved O.A. No. 72 of 99 for quashing and setting aside their transfer order and we have heard both these matters together and are disposing of both these matters simultaneously though by separate orders. Under the circumstances we are fully conversant with the allegations and counter allegations of both the parties.
9. Before we deal with the rival contention we would like to point out the observation of the Supreme Court in the case of N.K. Singh v. UOI, 1994(6) SCC 98 =1994(3) SLJ 87 (SC). Dealing with the case of transfer in public interest and private interest the Supreme Court in para 4 of the judgment has observed as under:-
There are two aspects of the transfer of a public servant holding a sensitive and important post. One aspect relates to the private rights of the public servant as an individual pertaining only to his service carrier. The other is concerned with prejudice to the public interest irrespective of the individual interest. The element of prejudice to public interest can be involved only in transfers from sensitive and important public officers and not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough and there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it a vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. Such cases would be rare and this factor as a vitiating element must be accepted with great caution and circumspection.
10. So far the office of the Assistant Commissioner of Customs and Excise is concerned, it cannot be denied that it is an important and sensitive post. The sensitive areas of Alang, Jamnagar, Okha and Dwarka i.e. coastal belt was under the jurisdiction of the applicant and as the facts narrated above suggest that the applicant was even responsible for detecting mal practice involving non-destruction of the wireless set recovered from the ships docked at Alang for breakage purpose. Another averment of detecting the racket of receiving reward in the fictitious name when there was a seizure of gold valued at Rs. 9.75 crore fortifies the conclusion that the applicant was holding a sensitive post. Hence it cannot be denied that his transfer from this post will have an element of prejudice to public interest and if it is found that the same was issued by the competent authorities purely in public interest then the other aspects of the same being against the individual interest of the applicant pales into the insignificance.
11. The main thrust of the submissions of Mr. Tanna, learned Counsel for the applicant was that for the sins of others the applicant who is an honest, upright and bold officer is being punished. Referring to the letters dated 20.9.98 endorsed by Mr. Mahesh Kumar, Commissioner to the Chief Commissioner of Customs and the Central Excise, Vadodara, he has submitted that detail account of all the incidents was given by the Commissioner himself to his superiors and had in no uncertain terms condemned the striking employees of 'B', 'C' and 'D' group for their indisciplined and unruly behaviour, but in spite of these reports no actions were taken against the office bearers of 'B', 'C' and 'D' group association by the Chief Commissioner and on the contrary the Chief Commissioner while meeting with the representatives of the staff association had even promised to transfer the applicant from Jamnagar. This promise was converted into action when the applicant was transferred to A'bad from Jamnagar on dated 7.10.98 while none of the office bearers of the said association was proceeded against. According to Mr. Tanna this conduct of the Chief Commissioner exposes his bias and partial attitude towards the staff members and prejudice against the applicant.
12. The submission of Mr. Tanna when considered in the light of the incident reports as well as the reports of the Commissioner Mr. Mahesh Kumar, would at the first glance make the transfer order dated 7.10.98 of the applicant unjustifiable and the action of the Chief Commissioner Mr. Acharya to be partial and favoring the unruly and indisciplined office bearers of the said associations. However, we cannot jump to the conclusion that the action of the Chief Commissioner in issuing the transfer order was motivated with some ulterior design or only to appease the staff members. The Chief Commissioner being the head of the department was required to look to the interest of the department first and when the image of the department was coming down in the public eye due to the allegations and counter allegations and the strike etc. it was his responsibility to see that the normalcy is restored at the earliest and the image of the department is improved. When it was found that things were beyond his control and it was not possible to restore normalcy in the working of the department, immediately and the normalcy can be restored only by transferring some officers or others the said transfer cannot be assailed on the ground of being punitive or mala fide or in violation of the rules. It would be purely in public interest as the paramount consideration behind the transfer would be to restore normalcy in the working of the department and the decision to transfer a particular officer was prompted by bonafide intention of improving the image of the department and cause minimum damage by the continued strike. It cannot be denied that the said strike by the 'B', 'C' and 'D' groups associations was causing huge loss of revenue to the Government and great deal of hardship to the public at large. Under the circumstances, if the action of the Chief Commissioner appear to be partial one, it cannot be said to be motivated with some ulterior designs. In such situations the transfer of the applicant cannot be dubbed as punishment to the applicant as the same was made in exigencies of the services and in the public interest. The grievance of the applicant that he alone was sorted out for transfer and thereby, the transfer can be said to be a punishment to him and that the same is issued only to appease the corrupt and indisciplined officers, is not justified. It now transpires that all other office bearers of the said associations who participated in the illegal strike and in unruly behavior have also been transferred and the disciplinary proceedings against some of them are also initiated. Mr. Tanna has submitted that this has been done at a belated stage but even then the innocent person is being given punishment by way of transfer. We are unable to agree with Mr. Tanna, as it is a settled principle of law that the transfer in the exigencies of the services cannot be Rubbed to be a punishment. We may at this juncture refer to the case of T.D. Subramanium v. UOI, AIR 1982 SC 776=1982(2) SLJ 20 (SC), where in some what similar case the petitioner, a competent officer with a zeal to root out mal practices but lacking in tact in dealing with subordinates was transferred. There also the trade unions got worked up on the stiff action taken by the petitioner and went on strike and in the report of the Director General of Post who inquired into the state of affairs, it was acknowledge that the petitioner was competent officer with a zeal to root out mal practices but was lacking in tact in dealing with his subordinates and it was suggested that in the exigencies of the situations it was advisable to transfer the petitioner. When this transfer was challenged by the petitioner, the Supreme Court has quoted with approval, the observations of the Division Bench of the Cuttack High Court which are reproduced here below:
"The Government had problem. On the one hand was a competent and strict officer, though some what lacking in tact. On the other hand were a large number of employees who had not been handled tactfully by the appellant when he had tried to put things right. A certain situation existed and a solution had to be found. The solution was found in a particular manner."
13. The Supreme Court while approving the above passage has observed that apparently "tact" is also one of the qualities that a Government officer is required to possess, and in the circumstances, described above, the petitioner left no option to the authorities. However, in this circumstances, we do not think any stigma in the sense in which the word is ordinarily understood attaches to the petitioner.
14. This decision has directed application to the facts of the instant case. In the instant case also the applicant is held to be a competent, efficient and honest officer but lacking in tact in dealing with his subordinates. Some of his actions had resulted into the strike by the subordinates and even if this strike is considered to be illegal strike, solution was required to be found of the situation that existed. Since the solution was found in the transfer of the applicant the order of transfer can easily be said to be made in the exigencies of the service.
15. Mr. Tanna has however placed strong reliance on a decision in the case of Arvind Dattatraya Dhande v. State of Maharashtra and Ors. (1997)6 SCC 169=1998(1) SLJ 162 (SC), in support of his submissions that the impugned transfer is a mala fide one and required to be, quashed. We find that the decision in that case can easily be distinguished as in that case the Excise Inspector whose work was highly commended was transferred on the complaint lodged against him by the country liquor vendors and at the behest of the concerned Minister. It was a case of transfer motivated with the object of seeing that illegal trade carried on by some of the highly influential persons is not harmed by the person of a competent and honest officer and that his transfer was carried out on account of the complaint given by the Guaradia Minister to the Minister for State Excise and also by one Shewala, President of the Country Liquor Association. The Supreme Court has quashed the transfer order saying that the transfer is not in public interest but is a case of victimization of an honest officer at the behest of the aggrieved complainants carrying on the business in liquor and toddy. So far the instant case is concerned the facts are quite different. As discussed above the transfer of the applicant was necessitated on account of the situation that arose from indiscrete handling of the things on the part of the applicant and same was therefore in public interest. When the transfer is made in the large public interest, it cannot be said to be motivated by mala fide intention or cannot be termed to be a victimization.
16. So far the approach of the Chairman of the Central Excise Board to this problem is concerned, the notings on the departmental file clearly reveals that the Chairman as well as the Board had taken a balance view of the matter after considering ail the facts of the case. No doubt this Tribunal had directed the Chairman, Central Board of Excise and Customs while disposing of the O.A. No. 713 Of 1998 to entertain the representation from the applicant and decide the same taking into account the facts mentioned in the representation. The notings on the departmental five reveal that after receiving the representation from the applicant the respondent No. 2 had invited parawise comments not only from the Chief Commissioner, Vadodara but also from the Director General of Vigilance and after receiving their comments, detail analysis of the same was made and the result of the same is stated in para 11 of the notings which read as under:-
11. The following seems to emerge from the detailed position discussed above :-
(i) S/Sh. Vajani, Gangwani & party who are office bearers of the Rajkot Commissionerate are corrupt officials and they have to face disciplinary/departmental proceedings on account of some of the actions taken by Sh. A.C. Sharma, AC.
(ii) Sh. A.C. Sharma also seems to have lost his cool at the time of visit of PAC and might have used some words which normally should not be used with staff members.
(iii) S/Sh. Vajani & Gangwani seems to be taking advantage of the inflamed feelings of other officials of the Commissionerate and exploiting the situation in their favour by inciting people to proceed on strike so as to press for transfer of Sh. Sharma, AC.
(iv) There seems to be lot of indiscipline amongst Gr. 'B', 'C' & 'D' employees & the Gr. 'A' officers of Rajkot Commissionerate are generally not happy with their behaviour.
12. Although the Department is within its right to transfer any officer to any place. Sh. A.C. Sharma seems to have taken as if he has been transferred under pressure from Staff Associations led by S/Sh. Gangwani & Vajani and is feeling aggrieved and frustrated. Since apart from the misbehaviour of Sh. A.C. Sharma, AC, a few Supdts. & Inspectors also seem to be responsible for creating problems in the Commissionerate by inciting the other members of the staff and indulging in their trade union type activities, it would be better if along with Sh. Sharma, all those officials who have been found to have indulged in unruly behaviour at the time of strike are also transferred out of Rajkot Commissionerate so that none of the Staff Associations including Gr. 'A' officers feel that they have suffered at the hand of others."
17. The conclusion drawn in these paras and the action recommended are approved by all the Members of the Board as well as the Chairman and pursuant to this approval necessary orders of the transfer of the applicant as well as the staff members were issued. Since the matter has been dealt with by the highest authorities and not by one person alone, it cannot be said that the action taken of transferring the applicant from Jamnagar to A'bad was with an intention of mala fides. We are also satisfied that the authorities have not acted in prejudicial, or biased manner and the impugned transfer order is not vitiated on account of mala fides or in violation of any statutory rules. The authorities have taken a balance view of the situation and their view as well as the subsequent orders cannot be said to be arbitrary or issued in. colorable exercise of power. We have referred to, the departmental, file only to mention that there is nothing therein to suggest that the transfer of the applicant was unusual. On the contrary, we find the department had taken a balance view of the situation. When the transfer is found to be justified in view of the public interest there is no scope of judicial review of the same with reference to the private rights of the applicant. There is thus no basis to accept the applicant's contention that his transfer was occasioned by mala fides or that it was in any manner contrary to the statutory rules.
18. Several decisions have been cited by Mr. Tanna as well as Mr. S.N. Shelat, Learned Additional Advocate General but we find that it is not necessary to refer to the same as the grounds for judicial review of the transfer and the limits thereon are well settled and not in dispute. At this juncture we may quote the observations of the Supreme Court in the case of N.K. Singh (supra). At para 24 of the decision the Supreme Court has stated as under:-
24. The private rights of the appellant being unaffected by the transfer, he would have been well advised to leave matter to, those in public life who felt aggrieved by his transfer to fight their own battle in the forum available to them. -The appellant belongs to a disciplined force and as a senior officer would be making several transfers himself. Quite likely many of his men, like him, may be genuinely aggrieved by their transfers. If even a few of them follow his example and challenge the transfer in Courts, the appellant would be spending his time defending his actions instead of doing the work for which he holds the office. Challenge in Courts of a transfer when the career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by Courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill advised.
25. We do hope that this would be a passing phase in the service career of the appellant and his cruader's zeal would be confined to the sphere of his official activity for improving the image and quality of public service of the police force, in which he holds a high office. By achieving that purpose he would render much greater public service. These observations arc opposite in the present context.
19. We have nothing more to add to what the Supreme Court has already said. We find that the impugned transfer order is not vitiated on account of mala fide or on account of violation of any statutory rules and since the same has been issued in the public interest with full justification the same cannot be quashed and set-aside. We, therefore reject this O.A. with no order as to costs. In view of the final disposal of the O.A., M.A. 568 of 99 and M.Ast. 632 of 99 also stands disposed of.