Biman Kumar Roy v. S. Lakshminarayanan — 1978 DIGILAW 284 (CAL)

Judgment In this Rule the petitioner challenges an order of transfer. The facts leading to the passing of the order may be briefly noted. 2. In 1958 the petitioner joined Central Forensic Science Laboratory at Calcutta as a Lower Division Clerk. In 1962 he was promoted to the grade of Upper Division Clerk and posted to the Subsidiary Intelligence Bureau at Calcutta. In November, 1965 he was appointed as a Stenographer under the Pay Drawing Unit of Assistant Director (Internal) Subsidiary Intelligence Bureau at Calcutta and was posted to Burdwan. In November, 1966 he was transferred back to Calcutta. 3. The impugned order of transfer which is set out in paragraph 19 of the petition is dated the April 20, 1977 and is in the following terms: "Shri Biman Kumar Roy, Stenographer, Grade II under the pay drawing unit of A.D. (1) S.I.B. Calcutta is transferred to S.I.B. Kalimpong in the interest of public service." It may be mentioned that the order was sent by respondent No. 1. 4. In the petition the aforesaid order has been challenged on various grounds. The principal ground in the petition appears to be of mala fide of the respondent nos. 1 and 2 who it is alleged passed the said order under the influence and at tile instance of the respondent no. 3. Various facts and correspondence have been set out in the petition to establish that the respondent no. 2 had been inimically disposed towards the petitioner as a result whereof he had in the past refused to accede to a prayer of the petitioner for asking the Ramkrishna Mission Seva Prathistan at Calcutta to afford better facilities for the treatment and operation of the petitioner's wife while she was confined in their hospital. The respondent no. 3 also turned down an application for loan of Rs.2400/- from the General Provident Fund which the petitioner had asked for. The loan was refused on the alleged ground of non-production of the medical certificate which according to the petitioner is not required by law. It is also stated in the petition that the purported transfer of the petitioner was not made in the public interest or on account of the exigencies of public service but for a collateral purpose. The loan was refused on the alleged ground of non-production of the medical certificate which according to the petitioner is not required by law. It is also stated in the petition that the purported transfer of the petitioner was not made in the public interest or on account of the exigencies of public service but for a collateral purpose. Ground (i) of paragraph 36 of the petition may be set out in this connection: "For that your petitioner is being transferred not because of any special qualification for which in the interest of public service it is necessary to transfer your petitioner to Kalimpong, but for collateral purpose." 5. Mr. Nigam Kumar Chakraborty, learned Advocate for the petitioner submitted that although several grounds were taken in the petition this Rule could be disposed of on a short point. He drew my attention to the ground set out above wherein it has been specifically stated that the impugned order of transfer was passed for a collateral purpose and not in public interest. He drew my attention in this connection to the statements contained in the affidavit-in-opposition affirmed by Prabir Kumar Mallick on 3rd June, 1977 prior to the issue of the Rule Nisi herein, pursuant to the directions of Chittatosh Mookerjee, J. who issued the Rule Nisi subsequently. My attention is drawn in particular to paragraph 3 of the above affidavit wherein the various grounds of alleged misconduct are made against the petitioner in the various sub-paragraphs thereof. The summary of the allegation is to be found in sub-paragraph (j) and (k) of paragraph 3 of the above affidavit-in-opposition which may be set out herein-below: "j) the petitioner was found to be frequently indulging in flouting the orders of the superior officers openly and it became extremely difficult for the Respondent to maintain discipline and decorum in the Calcutta Office where about 800 employees are working. k) the petitioner had developed a habit of making unnecessary correspondence with the superior officers over irrelevant matters when his wife was under the treatment in Ramkrishna Mission Seva Pratisthan the petitioner wrote a letter to the respondent no. 2 requesting him to see that the said Seva Prathistan provide all sorts of modern and better facilities to the petitioner's wife. 2 requesting him to see that the said Seva Prathistan provide all sorts of modern and better facilities to the petitioner's wife. This is matter over which head of the office had nothing to do in particular when the Ramkrishna Mission Seva Pratisthan is a well reputed Hospital and that there were no allegation against the Hospital calling for any action." In this context, the statements in paragraph 3(1) of the said affidavit are significant may be quoted herein-below:- "That under the circumstances stated above the Respondent No. 2 Deputy Director of the said Department, instead of taking any action against the petitioner, the least that could be done is to transfer to some other office of the said organisation where the petitioner can work under different officers in a new atmosphere. For this purpose the matter was referred to the Headquarter at Delhi and after obtaining approval and/or sanction, the petitioner was transferred to Kalimpong Office in the interest of public service." 6. Relying on the above statements, Mr. Chakraborty for the petitioner argues that the statements make it clear beyond doubt that instead of punishing the petitioner by way of disciplinary action which the respondents were undoubtedly empowered to do, the petitioner was being transferred in the alleged interest of public service. In the other words, the power of transfer was being utilised as an alternative of punishment which is not permissible in law. 7. In support of the above proposition Mr. Chakraborty relied on a decision of the Court of Appeal in England in the case of Merricks v. Nott-Bower & anr. reported in (1964) 1 All. E.R. 717. At page 720 of the Report, in setting out the plaintiff's case Lord Denning, M.R. observes as follows:- "The plaintiffs then refer to the Police Act, 1919, and Police (Discipline) Regulations, 1952, made thereunder. They say that if, as here, a report is received by the Commissioner which points to a disciplinary offence having been committed, then the disciplinary machinery must be invoked unless the Commissioner decides that there is no substance in the report or no need for disciplinary measures. The disciplinary machinery is contained in a code which sets out exactly what is to be done. An investigation has to be made by an investigating officer. The disciplinary machinery is contained in a code which sets out exactly what is to be done. An investigation has to be made by an investigating officer. If the investigation shows that there is ground for preferring a charge against a police officer, he must be given notice of it, and he must be given a hearing. If he is found guilty, there is a prescribed range of punishment, such as dismissal, reduction in rank, a fine, a reprimand, or a caution. But the range of punishment does not include transfer from one place to another. There is no power to transfer by way of punishment. In the light of these regulations the plaintiffs say that the power of transfer is only to be used as part of the administrative machinery of the Force so as to ensure efficiency. It cannot be used as a means of punishment. In their case, they say, the power of transfer was misused and abused. It was used as a disciplinary measure to punish them and, by misusing it in this way, those in authority were able to by-pass all the disciplinary machinery so carefully set up to ensure a fair hearing. They were condemned and punished, they say without being heard." 8. The above paragraph where the propositions had been laid down by Lord Denning with his usual clarity of expression are sought to be relied on by Mr. Chakraborty in support of his case. I must point out however that in this case Lord Denning was concerned with on Appeal from the Order refusing to strike out the plaintiff's statement of claim other than the paragraph 7 thereof. In other words their Lordships of the Court of Appeal were merely concerned with a prima facie case and was expressing no final opinion on the question which would be the subject matter of the trial. This is evident from a sentence at page 720 of the report which says "Such being the case made, I am not prepared to say that it is unarguable." 9. It is clear therefore that Lord Denning was merely saying that the argument set out above is plausible, Mr. Chakraborty invites me to accept the case made out by the plaintiff in the above English case and come to the same conclusion that the plaintiff invited the English court to. 10. It is clear therefore that Lord Denning was merely saying that the argument set out above is plausible, Mr. Chakraborty invites me to accept the case made out by the plaintiff in the above English case and come to the same conclusion that the plaintiff invited the English court to. 10. My attention is next drawn to a decision of the Kerala High Court in the case of Balan Vadasseri v. District Panchayat Officer, Malappuram & anr. reported in 1976(1) Lab. IC 273, At paragraph 11 of the Report T. Chandrasekhara Menon, J. observes as follows:- "After hearing the counsel appearing for the parties and going through the records, I am of the view that the impugned order call for interference by this Court. No doubt, it will not be proper for this court to intervence in orders of transfer etc., made by competent authorities for administrative exigencies or other valid reasons. A Government servant is not entitled to say that he should be allowed to continue in a particular station. When he joins service, he should know that he will have to work at different stations and that he would be liable for transfer at any time. However, that does not mean that this court has no jurisdiction to intervene even in a case of transfer, where it is apparently clear that the same is not made for administrative reasons but is really a case of harassment of the Government Official concerned for same reasons or other the transfer is the result of manoeuvring by interested parties who want to see a particular employee out of the place. At paragraph 13 of the report Menon, J. came to the following conclusion. "Therefore, according to me, it will be improper to transfer merely because the President or some members of the Panchayat want it, without the authority who is making the transfer, going into the merits of the complaint made against the Executive Officer. Such transfers would really amount to punishment of the Executive Officer. A punishment can be only inflicted in accordance with the relevant provisions and statutory rules. Nor could the punishment be meted out without affording the Panchayat Executive Officer sufficient opportunity to meet the case against him." 11. I am invited to follow the proposition laid down in the above case, that a transfer by way of punishment is insupportable in law. 12. Nor could the punishment be meted out without affording the Panchayat Executive Officer sufficient opportunity to meet the case against him." 11. I am invited to follow the proposition laid down in the above case, that a transfer by way of punishment is insupportable in law. 12. My attention is next drawn to another decision of the Kerala High Court in the case of Mathew Muthalali v. Revenue Divisional Officer, Calicut & Ors. reported in 1973(1) Lab. IC 301. In that case at paragraph 9 of the Report it was observed as follows:- "It cannot be said that transfer, under no circumstances, would operate as a punitive measure. In fact, there are circumstances under which the court may appropriately interfere when an officer has been transferred and the transfer involves an element of punishment. That will be so even if on the face of the order it is not apparent that it was by way of punishment that the transfer was effected. Whatever may be the cloak or disguise in the matter of the order of transfer, it will be open to the court to go behind it look inter the background and appreciate all the circumstances which resulted in the order of transfer to determine whether though apparently innocuous, it was really meant to impose the punishment on the officer concerned." 13. Reference then is made to the decision of the Supreme Court in the State of Bihar & ors. v. Shiva Bhikshuk Misra reported in AIR 1971 SC 1011 for the proposition that the court can go behind an order to look at the real state of circumstances. 14. At paragraph 10 of the Report, the Kerala High Court set out with approval a decision of Mathew, J. in Abdul Khader v. Regional Director, 1967 Ker LT 354 wherein the following passage occurs:- "If the transfer was intended or motivated to operate as punishment, I do not think the order can stand. In deciding the question as to that was the motive operating in the mind of the respondent, one has to look into the circumstances under which the order was passed." 15. It may be mentioned that Mathew, J. in the above case set out the judgment of Lord Denning M.R. in the case of Merricks v. Nott-Bower & anr. In deciding the question as to that was the motive operating in the mind of the respondent, one has to look into the circumstances under which the order was passed." 15. It may be mentioned that Mathew, J. in the above case set out the judgment of Lord Denning M.R. in the case of Merricks v. Nott-Bower & anr. which I have set out above and approved the stand taken by the plaintiff in the above case. 16. Lastly Mr. Chakraborty relied on a decision of the Patna High Court in the case of Ramanek Choudhary v. The State of Bihar & Ors reported in 1975(2) SLR 67. After an extensive review of a large number of authorities Prasad J. at paragraph 18 of the Report observed as follows:- "In view of the guiding principles laid down in the cases referred to above, it is abundantly clear that the Court would not hesitate to interfere with an executive or administrative order which has been passed in violation of any law or of any statutory rules or in the colourable exercise of power or mala fide. It is well settled that such an order is based on entirely irrelevant considerations or not based on considerations which the authority was bound to have regard to, is ultra vires. If the order is passed for a collateral purpose in the garb of a legal purpose, it is a colourable exercise of power." 17. Mr. D.N. Das, learned Advocate for the respondents submitted that the transfer of the petitioner in the fact of this case was by way of a remedial measure. He submitted that under the Fundamental Rule 11 the respondents were entitled to pass the order of transfer. 18. Mr. Das sought to rely on a decision of the Supreme Court in the case of Government of India v. Tarak Nath Ghose reported in AIR 1971 SC 823 . In this case there is astray observation by G.K. Mitter J. that a delinquent pending the initiation of the departmental proceedings against him may be either suspended or transferred. In the above case however the Court was concerned with an order of suspension and not with an order of transfer. As such the above decision in my view is of no assistance to the respondents. 19. Mr. In the above case however the Court was concerned with an order of suspension and not with an order of transfer. As such the above decision in my view is of no assistance to the respondents. 19. Mr. Das also relied on a decision of the Punjab and Haryana High Court in the case of Suraj Mal & Ors. v. State of Haryana & anr. reported in 1973(2) SLR 863. In that case a certain number of teachers of colleges in Haryana had threatened to demonstrate for certain demands. Instead of taking any action their ring leaders were transferred to out of the way colleges to keep them out of mischief. Such transfer was upheld by the Court in the above decision. 20. This decision however does not seem to lay down any proposition of law which can assist me in the present case. Therefore I hold that the above decision is of no assistance to the respondents in this case. 21. This disposes of all the contentions raised by the parties. 22. After giving my anxious considerations to the above case, I am of the opinion that the contentions of the petitioner should prevail. Paragraph 3(1) of the affidavit-in-opposition affirmed on 3rd June, 1977 contains a clear admission that because of certain alleged misconduct and wilful disobedience of the petitioner the authorities instead of taking any disciplinary action against him, purported to transfer him from Calcutta to Kalimpong. This, in my view, clearly makes the order of transfer a substitute for an order of punishment which mayor may not have been imposed on the petitioner after proper disciplinary proceedings. If the disciplinary proceedings were initiated the petitioner would have a right of bearing which is guaranteed both under the relevant Service Rules as also under Article 311(2) of the Constitution of India. Therefore the respondents appear to be doing indirectly what they cannot do directly. To put it differently, they are transferring the petitioner by way of punishment without giving him any opportunity of being heard. I respectfully agree with the decisions set out above which hold that there cannot be a transfer by way of punishment. 23. In that view of the matter, the contention of the petitioner must succeed, on the ground that although the order of transfer is innocuous on the face of it is really by way of punishment. I respectfully agree with the decisions set out above which hold that there cannot be a transfer by way of punishment. 23. In that view of the matter, the contention of the petitioner must succeed, on the ground that although the order of transfer is innocuous on the face of it is really by way of punishment. I make it clear that I am not deciding any other point and in particular the point of mala fide in the present application. 24. In the result, this application succeeds and the Rule is made absolute to the extent indicated below. 25. There will be a Writ in the nature or mandamus directing the respondents to forthwith, recall, cancel and withdraw the impugned order dated the 20th April, 1977 which is Annexure 'D' to the petition and to forbear from giving effect thereto in any manner whatsoever. The respondents would however be at liberty to proceed according to law. There will be no order as to costs. Rule made absolute.