Central Administrative Tribunal - Chandigarh
Dev Prasad vs M/O Labour on 10 October, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.NO.060/00659/2019 Orders pronounced on: 10.10.2019
(Orders reserved on: 30.09.2019)
CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HON'BLE MS. ARCHANA NIGAM, MEMBER (A)
Dev Prasad aged 42 years
son of Late Sh. Lalta Parsad,
H. No. 1766, Sector 7-C,
Chandigarh-160019 (Class-IV).
Applicant
By: MR. ANIL SHUKLA, ADVOCATE.
Versus
1. Union of India through its Secretary, Ministry of Labour and
Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-
110001.
2. The Director General, Govt. of India, Ministry of Labour and
Employment, Labour Bureau, SCO 28-31, Sector 17-A,
Chandigarh-160016.
3. Sh. N.K. Santoshi, Deputy Director General, Ministry of Labour
and Employment, Shram Shakti Bhawan, Rafi Marg, New Delhi-
110001.
4. Sh. Sunil Chaudhary, DDG, Labour Bureau, SCO 28-31, Sector
17-A, Chandigarh-160017.
5. Sh. Kailash G. Sharma, Director, Labour Bureau, SCO 28-31,
Sector 17-A, Chandigarh-160017.
By: MR. SANJAY GOYAL, ADVOCATE, FOR RESPONDENTS NO.1&2
MS. PUNEETA SETHI, ADVOCATE, FOR RESPONDENTS
NO.3TO5.
... Respondents
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ORDER
HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
1. The applicant has filed this Original Application under section 19 of the Administrative Tribunals Act, 1985, seeking quashing of impugned order dated 22.4.2019 (Annexure A-7) vide which he has been transferred from Chandigarh to Chennai and to quash order dated 17.6.2019 (Annexure A-13), vide which his representation against indicated transfer has been rejected.
2. The facts of the case, which led to filing of the O.A., and as projected by the applicant, are that applicant was appointed and has been working as Multi Tasking Staff (MTS), in Labour bureau, Chandigarh, since 8.1.2002 and has served for more than 17 years by now at Chandigarh and claims that he has clear record of service, except one or two-charge sheets and punishment orders dated 11.7.2016 and 6.2.2018, which are under challenge in separate proceedings pending in this Tribunal. The applicant submitted two complaints regarding fraud, against higher officers including Respondent No.4 and 5, both dated 1.3.2019. He was asked vide letter dated 22.3.2019 to appear in person before Under Secretary, ESA Section, Ministry of Labour & Employment, New Delhi, on 27.3.2019, to record his statement. He could not attend the enquiry. Ultimately, he appeared on 5.4.2019, as per Entry Card (Annexure A-5). On 5.4.2019, when he appeared, Respondent no.3 got signature of applicant by saying that it is Attendance letter, whereas his signatures were taken on a resignation letter, written on 4.4.2019 (Annexure A-6A). He moved an application to the SSP on 6.4.2019 (Annexure A-6). On 5.4.2019, he was pressurized to withdraw the complaint against Respondents no.4 and 5. He also made complaint against Respondent No.3. The Officer, who got his resignation by fraud, 3 has been transferred from Headquarter. However, respondent no.3 managed transfer of the applicant to Chennai, though he himself has been retained at New Delhi. He submits that his transfer is outcome of malafide intentions, as he dared to file complaint against the corrupt practices of higher officers. Earlier also, he was transferred to Mumbai - Shimla on the ground that he remained absent from duty, without permission of his superiors and then he was called back to Chandigarh. He claims that order has not been passed in administrative exigency but due to complaints made by him. His wife and old mother are under treatment in PGIMER, and his minor children are studying at Chandigarh. The request made by applicant for cancellation of his transfer has been rejected, hence the O.A.
3. The respondents no.1 &2 have filed a joint written statement submitting that allegations of malafide made by applicant are baseless and false. They submit that applicant has tendered apology / admitted in writing that he made false allegations with a promise that he will not make such complaints in future. The complaint made by him was found to be fake/false during proceedings conducted by Respondent No.1. He is a work shirker, habitual absentee, an undisciplined employee, and is in habit of making false complaints. The allegations made by him are very vague. The applicant even after relieving on 22.4.2019, mischievously sought medical leave from 3.5.2019 to 17.5.2019, from AMA for 15 days rest. He submitted further leave application. In reply to a letter, AMA informed that he is authorized to issue certificate for a maximum period of 10 days, as per rules. As per him, the applicant was granted only 5 days rest w.e.f. 3.7.2019 to 7.7.2019. There is no ill will or bias against him. The Divisional Heads of almost all sections, where he was posted, had to give up on him due to his conduct / non 4 performance of his assigned duties and disobedience of lawful directions of his superior officers. The apology letter dated 16.92.016 with letter dated 1.10.2016 is Annexure R-3 (coolly). They have given history of disciplinary action taken against him in part like he was charge sheeted in 2004 for damaging office equipments, false complaints against his superiors etc. which were accepted by him in letter dated 7.12.2004. In 2013, he remained unauthorisedly absent from duties from 30.7.2013 to 2.12.2013 and marked attendance in one go in Attendance Register on 2/3.12.2013 and claimed his presence in the office. Central Forensic Science laboratory, Shimla, gave report, which was contrary to claim of applicant. He has been issued memorandums from time to time (Annexure R-5 Coolly). He made false complaint for selection of DOEACC, an organization under Govt. of India, for work relating to outsourcing of data handling, which was found to be false. Allegation against R.no. 5 was that he withdrew T.A. from office and utilized the same without paying penal interest, whereas it was for official tour and when he could not proceed, the interest as per T.A. rules was duly paid. In fact R. No.3 met applicant for fist time only on 5.4.2019 when his complaint was being examined, in which there was nothing against respondent no.3. Thus, both of them had not even seen each other prior to 5.4.2019, yet applicant filed a complaint and claims allegations of malafide against him. The tone and tenure of letter dated 5.4.2019 shows that there was no compulsion, whatsoever, on him. Performance of R.No.3 has been outstanding and resultantly, he has not been even relieved till date and had there been any ulterior motive on his part, he could have been sent out. Order dated 22.4.2019, has been passed by competent authority, Respondent no.2. When applicant apologized on 16.9.2016, he was sent back from to Chandigarh and not otherwise. He 5 has been transferred in administrative reasons. There is no allegation against respondent no.2.
4. Respondents No.3 to 5 have also filed a separately joint reply. They submit that the action taken by them is in bonafide discharge of their official duty and they have no grudge of any kind, whatsoever, against the applicant. They deny the allegations leveled by applicant and submit that he is a work shirker. The other submissions are on similar lines, as reply submitted by official respondents.
5. We have heard the learned counsel for the parties at length and examined the pleadings on file with their able assistance.
6. The learned counsel for the applicant vehemently attacked the impugned orders on the ground that same have been passed with malafide intentions of respondents no.3to5 and as a measure of punishment only and cannot be sustained in the eyes of law. It is argued that since the applicant is a whistle blower, and made numerous complaints, he cannot be transferred as a measure of punishment more so when he belongs to lowest strata of society being employed only as a MTS. This was repelled by learned counsel for the respondents on the ground that applicant is in habit of making such false and frivolous complaints as he is a work shirker and his transfer has been ordered in public interest.
7. We have considered the submissions of respective counsels minutely.
8. It is apparent from the record that applicant has history of departmental cases/memorandums issued against him in the past. Earlier, also he made complaints and was transferred out and when he tendered apology, he was transferred back to Chandigarh. Now again, he made complaints and then has chosen to withdraw the same and 6 has tendered apology once again on 5.4.2019 stating that he made complaint out of ignorance and on instigation of two persons mentioned therein and he would be careful in future. In the O.A. he has impleaded three officers as private respondents to prove that due to their malafide intentions, he has been shifted out. However, in view of withdrawal of complaints filed by him, it is difficult to relate the sequence of events towards any kind of malafide intentions. In these circumstances, we are not, at all, convinced to accept the plea taken by applicant that he has been victimized by the respondents or that he has been shifted out with malafide intentions. To us, the applicant appears to have been shifted out to ensure a cordial atmosphere in the office.
9. The plea taken by learned counsel for the applicant that his minor children are studying at Chandigarh and his mother and wife are undergoing treatment at PGIMER, is a personal problem, which is to be seen by the respondents, and this Court, in exercise of its judicial power, cannot interfere in such personal problems, as these are to be considered and examined by the departmental authorities, as per law, which has indeed been done as representation of the applicant, in pursuance of directions of this Tribunal has been considered and stands rejected.
10. Indeed, the applicant has tried to project that since the transfer order has been passed with malafide intentions, therefore, it cannot be sustained in the eyes of law. However, we find that there is no link between the complaints made by the applicant and the transfer orders issued by the authorities, as the main basis for shifting of the applicant is to maintain a congenial atmosphere for the applicant as well as the respondents, which can very well be termed to be in public interest and in exigency of service.
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11. It is well settled by now that interference in transfer matters at the hands by the High courts or Tribunals is very limited and they can interfere only in certain circumstances like where the order is in violation of some statutory guidelines and is malafide or is ordered as a measure of punishment. If these elements are missing, then a Tribunal or court of law cannot interfere in transfer orders of the officials and these elements, to say the least, are missing in the case in hand.
12. The basic ground raised by applicant is of malafide. It is now well settled principle of law that malafide is very easy to allege, but difficult to prove as the onus to prove mala fide lies on the person who alleges it. The Hon'ble Apex Court in the case STATE OF PUNJAB & ANOTHER VS. GURDIAL SINGH & OTHERS (1980) 2 SCC 471 has ruled as under:-
"9. The question then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfaction - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated. "I repeat..... that all power is a trust- that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power of extraneous to the 8 statute, enter the verdict or impels the action mala fides on fraud on power vitiates the acquisition or other official act."
13. The same view was reiterated by by this Tribunal in BHAGWANT KAUR VS. UNION OF INDIA ETC. [O.A.No. 060/00800/2016 decided on 16.2.2017.
14. In the instant case, the Competent Authority has transferred the applicant from Chandigarh to Chennai, on administrative grounds, and in public interest, after considering the fact that he is a work shirker and most of the sections are not even ready to utilize his service due to frequent complaints made by him. Apparently, such transfer orders cannot and should not be interferred with by the courts. A Government servant holding a transferable post is liable to be transferred and he has no right to remain posted at one place or the other. Such transfer orders issued by the competent authority do not violate any legal right. If the courts continue to interfere with day-to-day transfer orders issued by Government and its subordinate authorities, there will be a complete chaos in the administration which would not be conducive to the public interest. This matter is no more res integra and is now well settled.
15. An identical question came to be decided by Hon'ble Supreme Court in case SHILPI BOSE VS. STATE OF BIHAR AIR 1991 SC 532. Having considered the scope of judicial interference in transfer matter, the Apex Court has observed as under:-
"4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not 9 interfere with the order instead affected party should approach the higher authorities in the department."
16. Similar view was taken by Hon'ble Supreme Court in the cases of UNION OF INDIA V. S.L. ABBAS 1993 (4) SCC 357; by a three-Judge Bench of Hon'ble Supreme Court in MAJOR GENERAL J.K. BANSAL VS. UNION OF INDIA & ORS. (2005) 7 SCC 227 and STATE OF M.P. AND ANOTHER VS. S.S. KOURAV AND OTHERS (1995) 3 SCC 20.
18. In the case of S.C. SAXENA VS. U.O.I. & OTHERS (2006) 9 SCC 583, it was held by Hon'ble Apex Court that a Government servant cannot disobey a transfer order by not reporting back at the place of posting and then go to a court to ventilate his grievances. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Not only that, the same view was reiterated by Hon'ble Supreme Court STATE OF U.P. VS. GOBARDHAN LAL (2004) 11 SCC
402.
17. It is thus, clear, that it is a transfer made in public interest. It has been issued by competent authority (Respondent No.2). There is no allegation against Respondent No.2 nor he has been impleaed as a party in personal capacity. The applicant cannot take benefit of immunity from transfer on the plea that he is a whistle blower. If such like pleas are allowed in a light hearted manner, then every employee would start filing complaints against higher officers and claim that he or she cannot be transferred as he or she is a whistle blower.
18. In the wake of aforesaid discussion and legal proposition, this O.A. turns out to be devoid of any merit and is dismissed.
19. The parties are, however, left to bear their own costs.
20. Pending M.A., if any, also stand disposed of accordingly. 10
21. However, before parting, we would like to observe that after joining at new place, the applicant may submit a representation for transfer him to some nearby place, which may be considered sympathetically by the respondents.
(SANJEEV KAUSHIK) MEMBER (J) (ARCHANA NIGAM) MEMBER (A) Place: Chandigarh Dated: 10.10.2019 HC*