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1982 DIGILAW 235 (CAL)

Mukul Mitra v. Union of India

1982-07-02

MONOJ KUMAR MUKHERJEE, MURARI MOHAN DUTT

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JUDGMENT M.M. Dutt, J. In this appeal the appellant Mr. Makul Mitra, has challenged the propriety of the judgment of a learned single Judge of this Court whereby the learned Judge discharged the Rule nisi obtained by her on an application under Article 226 of the Constitution, challenging the legality of an order of transfer. 2. On October 10, 1955, the appellant was appointed a Stenographer in the Regional Passport and Emigration Office, Calcutta. Thereafter, she was promoted to a higher post of Grade IV Superintendent in an officiating capacity on April 12, 1978. She was, however, confirmed in that post. It was alleged that while she was discharging her duties of the Superintendent in November 1980, she was informed by the Regional Passport Officer Calcutta that she had got a telex massage whereby the appellant was transferred from Calcutta to Lucknow in the same capacity as Superintendent. Further, it was alleged that the said telex message was only shown to her by the Regional Passport Officer, Calcutta. On December 1, 1980 the appellant made a representation to the respondent no. 2, the Joint Secretary and Chief Passport Officer, Government of India Ministry of External Affairs, New Delhi, against the said order of transfer. It was stated in the said representation that she had been serving in the Calcutta Office for about 26 years and that her husband was an employee of Colgate Palmolive India Ltd. and posted in Calcutta. She had one marriageable daughter and a minor son. If she was transferred, there will be disruption of the family. Accordingly, she prayed that the order of her transfer might be recalled. On the next day i.e. on December 2, 1980, she applied for earned leave on the ground that she was not keeping will on account of server pain in her chest. On January 22, 1981, she applied for extension of the period of leave on the ground of her illness. On February 7, 1981 she sent a telegram to the respondent no. 2 praying for cancellation of the order of transfer. It was stated in the said telegram that she had got cardiac attack and had been under investigation and treatment. She was advised complete rest. It was further prayed that the Regional Passport Officer, Calcutta should be instructed to accept her medical certificate and pay to her the salary for the period she had been on leave. It was stated in the said telegram that she had got cardiac attack and had been under investigation and treatment. She was advised complete rest. It was further prayed that the Regional Passport Officer, Calcutta should be instructed to accept her medical certificate and pay to her the salary for the period she had been on leave. A written representation was also sent by her on March 4, 1981. In reply to her representation for cancellation of the order of transfer as made by telegram, the Under Secretary (Passport Visa Administration), Ministry of External Affairs, New Delhi sent a communication to her inter alia containing the following statement. “As regards cancellation of your transfer to Lucknow, the Regional Passport Officer, Calcutta has been advised to arrange for your medical examination by a Medical Board and the matter will be examined in the light of their report.” 3. Thereafter, it appears from the letter of Health Services, West Bengal dated September 2, 1981 addressed to Dr. C.R. Maity, Professor of Medicine (Cardiology), Medical College, Calcutta, that a Medical Board was constituted with Dr. C.R. Maity as the Chairman and Dr. U.S. Arora and Dr. P. Mondal as Members on April 10, 1981 for the purpose of examining the appellant Mukul Mitra. The Deputy Director of Health Services by his letter dated March 26, 1981 instructed the appellant to appear before the Medical Board on April 10, 1981 at 10.30 a.m. In the first part of the said latter, she was instructed to deposit certain fees for medical examination. Thereafter in the last paragraph it was stated as follows:- “The candidate is further requested to bring urine examination report from any Clinical Pathologist wherein the Specific Gravity, Albumin, Sugar Cests and Cells of Urine should be categorically mentioned. An X-ray place of his chest together with the report from the Radiologist attached to Government Hospital should be obtained at his own cost with his signature there duly attested by the Radiologist for presentation before the said Board as required under the Central Service Regulations She is also requested to bring all previous reports (in original) in support of her illness.” 4. As directed, the appellant appeared before the Medical Board on April 10, 1981 and she was examined by the Medical Board consisting of the Professor of Medicine (Cardiologist) Medical College, Calcutta, Professor of Surgery, R.G. Kar Medical College, Calcutta and the Professor of Ophthalmology, Medical College, Calcutta. The report of the Medical Board was neither forwarded to the appellant nor was the same disclosed to her. It is only after the direction given by the learned Judge the Medical report was produced by the respondents in the court below. The medical report is set out below:- “Government of West Bengal Office of the Medical Board, West Bengal Smt. Mukul Mitra Memorandum No Dated, the 10.4.1981 To We carefully examined Smt. Mukul Mitra and we are of opinion that she requires constant supervision care and medical attention on account of her hypertension, pylonephritis, diabetus mellitas and ischaemic heart diseases and that she shoulds avoid journey and remain with her relatives to tackle her health problems. We are also of opinion that emergency arising out of her disease may risk her life, and that such treatment is not available in Lucknow. Sd/- Prof. of Medicine Sd/- (Cardiologist) MC Chairman Prof. Deptt of Surgery R.G. Kar MC. Cal. (Member) Sd/• Prof. of Optha1mology Medical College, Calcutta.” 5. After the said medical examination the applicant was not told anything about the same, as started already, and nothing happened thereafter. The appellant had no other alternative than to file a writ petition before this court challenging the order of transfer. Upon the said application, a Rule Nisi was issued by the learned trial Judge. 6. During the pendency of the Rule Nisi, the learned Trial Judge by his order dated June 19, 1981 directed the appellant to appear before another medical board. As directed, the appellant appeared before the board. The board after examining the appellant submitted a report dated June 30, 1981 which is as follows:- “We have carefully examined Mrs. Mukul Mitra, Superintendent, Regional Passport and Emigration Office, Government of India, Calcutta, She has been suffering from ‘Diabetes Mellitus, Hypertension, chronic Pyolonphritis and Ischemic Heart disease’. She is under treatment for these ailments and her abovementioned conditions are at present under control. She is fit to resume to her duties but she should avoid both physical and mental strain as these factors might aggravate her condition which may lead to medical emergency.” 7. She is under treatment for these ailments and her abovementioned conditions are at present under control. She is fit to resume to her duties but she should avoid both physical and mental strain as these factors might aggravate her condition which may lead to medical emergency.” 7. The respondents appeared in the Rule Nisi and opposed the same by filing an affidavit-in-opposition affirmed by the Regional Passport Officer. In the affidavit-in-opposition, it was stated that the staff Inspection Study Team made an assessment of the work-load of Passport Organisation and submitted a report whereby the staff strength was adjusted by increasing certain posts in certain parts of India and by reducing the staff strength in other parts of India. The number of posts of Superintendent in the Regional Passport Office, Calcutta has been reduced from 4 to 2. The Union of India, accepted the staff Inspection unit report on December 31, 1980. Thereafter, in paragraph 9(a) it is stated as follows :- “That in view of excess of posts of the Calcutta Region, the Ministry was contemplating to transfer the surplus staff after acceptance of the study team by the Union of India, the petitioner being the junior-most of the Superintendents she was to be transferred to Lucknow in public interest. A copy of the order of release is annexed herewith.” 8. It thus appears from the said averments in the affidavit-in-opposition affirmed by the said Regional Passport Officer that the ground of transfer from Calcutta to Lucknow was the effect of reduction of number of posts of Superintendent in the Calcutta Office from 4 to 2 on the basis of the report of the Staff Study Team as accepted by the Union of India on December 31, 1980. It is also manifestly clear that so long as the report of the Staff Study Team or the Staff Inspection Unit report was not accepted by the Union of India, the number of posts of Superintendent in any part of India including the regional passport office, Calcutta could not be reduced and was not reduced. The order of transfer is dated November 24, 1980. i.e. before the number of posts in the Calcutta Office was reduced by virtue of the acceptance of the Union of India on December 31, 1980 the Staff Inspection Unit report. The order of transfer is dated November 24, 1980. i.e. before the number of posts in the Calcutta Office was reduced by virtue of the acceptance of the Union of India on December 31, 1980 the Staff Inspection Unit report. The ground as alleged in paragraph 9(a) of the affidavit-in-opposition could not, therefore, be the ground for transfer of the appellant from Calcutta to Lucknow. 9. Mr. D.N. Das, learned Advocate appearing on behalf of the respondents has frankly admitted before us that the reduction of the number of posts on the basis of the Staff Inspection Unit report as accepted by the Union of India could not be the ground for such transfer. Indeed Mr. Das characterised the affidavit-in-opposition as a defective one. He, however, has placed reliance on the fact that as under the conditions of service of the appellant she can be transferred anywhere in India and as the appellant has given an undertaking in that regard, the order of transfer was quite legal and valid. It is significant to be noticed at this stage that the order of transfer as communicated by the telex message did not give any reason whatsoever. It was not stated in the order of transfer that the appellant was transferred for administrative reasons or in the interest of public service. It is also submitted by Mr. Das that as the appellant has been working in Calcutta Office for the last 25/26 years she cannot raise any objection whatsoever to her transfer to any other place in India. 10. Before we consider the submissions made on behalf of the respondents justifying the order of transfer, we would like to point out that the learned Judge seems to have accepted the medical report and believed that the appellant had been suffering from various ailments as reported by the Medical Board. Indeed the learned Judge asked the authorities concerned to reconsider the case of the appellant so that she might be allowed to work in the Calcutta Office. The respondent No. 2 rejected the representation of the appellant by his order dated August 5, 1981. In this connection, we may refer to an affidavit dated 1l.3.82 filed in this Court on behalf of the respondents. The respondent No. 2 rejected the representation of the appellant by his order dated August 5, 1981. In this connection, we may refer to an affidavit dated 1l.3.82 filed in this Court on behalf of the respondents. In paragraph 19 of the said affidavit it has been inter alia stated as follows :- “In this connection, I say that in submitting the Medical report the Medical Board was even persuaded to exceed their terms of reference. The said Medical report is not at all an unbiased report or proper medical report. The Medical Board did not independently cause any relevant examination which it was required to make. It relied on materials or reports produced or procured by the petitioner. In this connection a copy of the letter No. 480/MB Dt. 26.3.1981 addressed to Smt. Mukul Mitra as forwarded (0 the Regional Passport Officer, Calcutta, and annexed as annexure-1 to the petition may be referred to. The said letter, on the face of it shows that the Medical Board relied on report already procured by the petitioner from doctors of her own choice and the Medical Board based its findings on such report procured from private medical practitioners.” 11. We have already set out the relevant portion of the letter dated March 26, 1981 of the Deputy Director of Health Services (Administration) West Bengal. In the said letter, the appellant was asked to appear before the medical board with her urine report and X-ray plate. The medical report of eminent physicians of Calcutta on the status of Professors of Medical College were considered as biased; in other words, the genuineness of the medical reports have been indirectly called in question. In our opinion, it was absolutely unjustified on the part of the respondents to criticise the medical report as biased simply because the Deputy Director of Health Services asked the appellant to appear before the Medical Board with the Urine report and X-ray plate. The affidavit has been filed before us obviously after the judgment was delivered by the learned Judge Although the learned Judge himself considered the appellant to be ill on the basis of the said medical reports, the respondents did not care to place any importance on the views of the learned Judge and treated the medical reports to be not unbiased. 12. Be that as it may. 12. Be that as it may. it is difficult to understand why the appellant was directed to appear before the Medical Board. We also fail to appreciate the attitude of the respondents in not even disclosing the medical report to the appellant, presumably because the same was in her favour. 13. Now we may consider whether there was any ground for transfer of the appellant from Calcutta to Lucknow. It has been already pointed out that the respondents have not been able to make out any ground justifying the order of transfer. It is true that the appellant is liable to be transferred anywhere in India under the conditions of her service, but that is no ground to transfer the appellant without any reason. It has been observed by the learned Judge that under the law the High Court cannot and should not interfere with an order of transfer which has been made for an administrative reason public interest or due to exigencies of service. Such observation has been made on the basis of a decision of the Supreme Court in Shanti Kumar v. Regional Deputy Director, Health Service, Patna Division, AIR 1981 SC 1577 . The learned Judge, however, overlooked that in the instant case the respondents have not been able to make out any ground for the order of transfer. The appellant has challenged the order of transfer as mala fide. We do not think that it is necessary for us to deal with the question whether the order of transfer is mala fide or not. But at the same time, in our opinion, a person cannot be transferred from one place to another without any reason whatsoever. There must be some ground, be it in the interest of public service or for administrative reasons or any other reason. But if an order of transfer does not disclose any reason, either in the order itself or in the affidavit-in-opposition, such order cannot be sustained. So far as the instant case is concerned, the position of the respondents is worse, for the ground that has been alleged in the affidavit-in-Opposition in support of the order of transfer has been found to be not true. 14. The appellant has been ill for a pretty long time and, according to the medical reports she should avoid both physical and mental stress and strain. 14. The appellant has been ill for a pretty long time and, according to the medical reports she should avoid both physical and mental stress and strain. The learned Judge has observed that he is conscious of the fact that the appellant is keeping indifferent health. He is also conscious of the fact that if the appellant is uprooted from Calcutta where she has been working continuously for over 25 years, her family life will be disrupted. As stated already, the learned Judge took the view that as the order of transfer was made for administrative reasons or interest of public service, this court should not interfere with such an order. As already pointed out by us, there is no ground for transfer of the appellant from Calcutta to Lucknow. Further, in view of the condition of health of the appellant the respondents the respondents should have taking a liberal attitude in the matter of transfer. 15. For the reasons aforesaid, we set aside the judgment of the learned Judge and make the Rule Nisi absolute. The order of transfer is quashed. Let a writ in the nature of Certiterari issue accordingly. 16. The respondents are directed to forthwith allow the appellant to join her post as the Superintendent, Grade IV of the Regional Passport Officer, Calcutta. Further, the respondents are directed to pay all arrears of salary of the appellant within a month from date. Let a Writ in the nature of Mandamus issue in regard to above. 17. The appeal is allowed. There will be no order as to costs. 18. On behalf of the respondents it is prayed that the operation of the judgment should be stayed. The prayer is disallowed. Monoj Kumar Mukherjee, J: 1 agree Appeal allowed, Order of transfer quashed.