MALAY SENGUPTA, A. C. J. ( 1 ) IT is a petition under article 226 of the Constitution of india challenging an order of transfer and also urging for an appropriate-writ directing investigation by any independent agency into the allegations made by the petitioner. ( 2 ) THE fact of the case is short but not very simple. The petitioner is a defence personnel with the rank of Lt. Colonel. He is posted as Commandant in 17 Assam Rifles located at Pegong within North Sikkim with the charge of Second-in-Command and Drawing and disbursing Officer. He is so since 15. 2. 1995. The respondent Nos. 3 and 4 are one and the same. He is the Commandant of 17 Assam Rifles. The respondent No. 2 is in overall charge of the Assam Rifles as its Director general. The Commandant (respondent no. 4) left the station on temporary duty to shillong and the petitioner had to take over charge from him of the office of Commandant with effect from 18. 3. 1996 (forenoon ). Respondent no. 4 returned from such temporary duty in the afternoon of 30. 3. 1996 and took over charge of the Commandant from the petitioner. ( 3 ) UNDER the petitioner or the respondent No. 4 were the respondent Nos. 7 and 8. They were of the ranks of Assistant Commandant and Sub. Major respectively. Respondent No. 7 was holding the post of engineer Officer and Quarter Master at Pegong while respondent No. 8 was to handle cash and to deal with government treasury at the same station. Respondent No. 8 proceeded on leave with effect from 23. 3. 1996 and during his period of leave respondent No. 9 took over charge- of the office and duties of respondent No. 8, and the responsibility of cash etc. , kept in the Regimental Treasury chest, fell on the respondent No. 9. Formal handing over of charge between respondent nos. 8 and 9 took place on 23. 3. 1996. At that time both these respondents reported to the petitioner that the cash in the treasury: chest was verified and found correct. In the charge report there was no indication of any unaccounted for amount lying in the chest. ( 4 ) SUDDENLY on 25. 3. 8 and 9 took place on 23. 3. 1996. At that time both these respondents reported to the petitioner that the cash in the treasury: chest was verified and found correct. In the charge report there was no indication of any unaccounted for amount lying in the chest. ( 4 ) SUDDENLY on 25. 3. 1996 (afternoon) the respondent No. 9 reported to the petitioner that under the instruction of respondent No. 7 he took out a sum of Rs. 50. 000/- from the chest and handed the same over to one Shri samdup Lepcha on the forenoon of 24. 3. 1996. On further query from the petitioner the respondent no. 9 disclosed that existence of a sum of Rs. 1,15. 000. 00 in the chest was intimated to him by respondent No. 8 on 23. 3. 1996 at the time of taking over and making over of the charge. It was stated to respondent No. 9 that the amount belonged to M/s. Kamlesh Trading Company, Siliguri for making over the same to Shri Samdup lapcha. The amount was accordingly kept in the regimental chest though it was not reflected in the register itself. This fact was known to respondent Nos. 4, 5, 6 and 7 but the petitioner, though in overall charge of the regimental chest, was kept in complete darkness. The respondent No. 9 stated the above fact in writing and noted that Rs. 50,000. 00 was paid to Samdup Lepcha on 24. 3. 1996 and the balance of Rs. 65,000. 00 was still lying in the chest. ( 5 ) THE petitioner could gather on preliminary enquiry that an order was placed with m/s. Kamlesh Trading Company for supply of wood. He could not supply the wood in terms of the supply order but he made some arrangements with the knowledge and consent of the authorities other than the petitioner,to get the goods supplied from Shri samdup Lepcha against payment which was to be made by M/s. Kamlesh Trading Company and for that purpose he paid the aforesaid sum of Rs. 1,15,000. 00 initially to respondent No. 5 on 17. 3. 1996. The amount then reached the chest through respondent nos. 6, 7, and 8. The petitioner, however, was not informed about such a transaction and arrangement. The respondent No. 4 had full knowledge about the same. ( 6 ) ON 29. 3. 1,15,000. 00 initially to respondent No. 5 on 17. 3. 1996. The amount then reached the chest through respondent nos. 6, 7, and 8. The petitioner, however, was not informed about such a transaction and arrangement. The respondent No. 4 had full knowledge about the same. ( 6 ) ON 29. 3. 1996 the petitioner made a written complaint to the Commandant who came down to Siliguri by that time. When respondent No. 4 arrived back to the battalion headquarter at Pegong on 30. 3. 1996 (afternoon) the petitioner apprised htm of the situation. As in the entire process involvement of respondent No. 4 was apparent, he got hostile towards the petitioner. He did neither take any step nor hold any enquiry. The petitioner, therefore, filed a written complaint with the Director General. Assam Rifles (Vigilence Branch) on 24. 7. 1996 followed by a fresh complaint or reminder on 11. 8. 1996 after he received an order dated 10. 8. 1996 from respondent No. 4 to hand over the above noted balance of Rs. 65,000. 00 to respondent No. 7. After sometime, on 22. 11. 1996 an order was communicated by wireless transferring the petitioner to 11 Assam rifles with the direction to report there by 15. 12. 1996. ( 7 ) BEING aggrieved by the aforesaid order of untimely transfer and also for inaction over the complaints lodged by the petitioner, the petitioner filed the present writ petition in this court on 4. 12. 1996 for cancellation of his order- of transfer and also for causing an enquiry into the allegations through any independent agency. ( 8 ) THE respondents contest the contentions of the petitioner by way of filing affidavit-in-opposite. The petitioner filed affidavitin-reply to the same. The respondents further filed a supplementary affidavit, reply to which was submitted by the petitioner. An additional affidavit was also filed by the petitioner giving out details of economic irregularities or of fences, besides the same referred to in the main writ petition, alleged to have been committed by respondent No. 4 and others. An affidavit-in-reply to the additional affidavit of the petitioner has also been filed by the respondents. After conclusion of the hearing of arguments respondents filed a rejoinder to the reply to the supplementary affidavit of the petitioner and also a reply to the additional affidavit filed on behalf- of the petitioner. An affidavit-in-reply to the additional affidavit of the petitioner has also been filed by the respondents. After conclusion of the hearing of arguments respondents filed a rejoinder to the reply to the supplementary affidavit of the petitioner and also a reply to the additional affidavit filed on behalf- of the petitioner. ( 9 ) PETITIONER referred to Clauses 317, 343, 518 and 519 of the Defence Service regulation to show that private financial transactions with any contractor is not permissible and that when any infringement in this respect is noticed or any financial irregularity comes to the notice of an officer he should promptly bring it to the notice of the superior officer for appropriate action. Attention has also been drawn to Army Rule 177 to contend that a court of Enquiry should be set up whenever such allegations come to the notice of the authorities, to collect evidence for satisfaction of the Officer Commanding whether there is any prima facie material for proceeding with the investigation of charges and trial by Court Martial as provided under the Army rules. ( 10 ) IT has been submitted on behalf of the petitioner that in the instant, case the petitioner first approached the respondent no. 4 in March, 1996 but no action was taken with respect to the complaints. After waiting for nearly four months for any action from the patt of respondent No. 4, the petitioner had. to approach respondent No. 2 in July, 1996 with identical complaints. Here too no action was taken. Ultimately an enquiry by Colonel v. V. Mathai, Chief Signal Officer, Assam rifles had been ordered for in February. 1997 only after receipt of a direction from this court under its Order dated 5. 12. 1996. Thus it is clear that respondent No. 2 has ultimately conceded to the proposition that the allegations are to be probed into. When it is so we need not go into detail of the arguments advanced by the petitioner that an enquiry is a must when Such allegations are brought. We should simply note that this court cannot appreciate the delay for about eleven months in arranging an enquiry into the allegations. ( 11 ) THOUGH it has not been spelt out under which provisions the enquiry has been ordered for, but we may hold that it is under rule 177 of the Army Rules. We should simply note that this court cannot appreciate the delay for about eleven months in arranging an enquiry into the allegations. ( 11 ) THOUGH it has not been spelt out under which provisions the enquiry has been ordered for, but we may hold that it is under rule 177 of the Army Rules. A question has been raised on behalf of the petitioner that his allegations are against respondent No. 2 and respondent No. 4 who are senior officials with the rank of Colonel and above, in such a case the enquiry should be held by an assembly of officers holding rank above the ranks of respondent Nos. 4 and 2. It has been pointed out that the Enquiry Officer so appointed is of the rank of Colonel and that the enquiry has been ordered for by an individual officer and not by any aseembly of officers. ( 12 ) RULE 177 of Army Rule contemplates enquiry by an assembly of officers. Clause 518 of the Defence Service Regulation prescribes, that the presiding officer should be senior in the rank and other members atleast equal in rank to that of the delinquent officer, in the instant case we find a deviation from the same. In a latest circular bearing No. 201006/r/a1 dated 24. 4. 1995 issued on behalf of the Chief of Staff indicates "it will be advisable to have a total of three members including the presiding officer". We have already noted that under Clause 518 of the defence Service Regulation, the presiding officer has to be senior in rank to the delinquent officer. Thus, order for enquiry by a singular officer of the rank of Colonel, as has been done in this case, cannot be endorsed. It would not be out of place to mention that the government of India adopted almost the same principle and it was communicated under 0. M. No. 7/12/70 Est. (A) dated 6. 1. 1971 of GI, gs Department of Personnel. ( 13 ) NOW comes the main point at issue. The petitioner thinks that there is a nexus between the allegations brought by him and the transfer order received by him. M. No. 7/12/70 Est. (A) dated 6. 1. 1971 of GI, gs Department of Personnel. ( 13 ) NOW comes the main point at issue. The petitioner thinks that there is a nexus between the allegations brought by him and the transfer order received by him. He alleges that by his action he made the respondent No, 4 hostile towards him and the respondent No. 4 being close to respondent No. 2 could manage to get the transfer order issued to feed fat his grudge against the petitioner and al$o to keep the petitioner a way from the scene. To prove acquaintance of respondent no. 4 with respondent No. 2 he has pleaded that respondent No. 2 has been instrument in the appointment of the wife of respondent no. 4 in a school in an unlawful and irregular manner. She got the patronage of respondent no. 2 in some other manner too. It might be that respondent No. 4 is a favoured child of respondent No. 2, but it is difficult to conceive that because of the alleged intimacy between these two officers of very unequal rank, a high official like respondent No. 2 would dance at the tune of respondent" No. 4. ( 14 ) THE petitioner's transfer was somehow untimely. But the transfer order shows that it is for public interest and for administrative exigency. The court should not normally interfere in such cases of transfer. In the case of N. K Singh v. Union of India we find that the court may interfere in cases where mala fide behind the order of transfer is apparent on the face of it. In S. Sanfcaranarayanan v. State of Karnataka, the Supreme Court held that inference of mala fide cannot be drawn from mere differences of opinion between the transferred officer and the transferring authority. Malice or mala fide can be inferred only on the basis of factual matrix and not merely on the basis of insinuations, conjectures and surmises. In E. P. Royappa's case, the Supreme court held identical views. ( 15 ) WE have already noted that mere surmise does not serve the purpose. For proving ma/a fide, cogent evidence is necessary. Not only that the nature of evidence to establish mala fide must be very strong and convincing, it must be adequate to rebut the premsumption of bona fide attached to governmental actions. ( 15 ) WE have already noted that mere surmise does not serve the purpose. For proving ma/a fide, cogent evidence is necessary. Not only that the nature of evidence to establish mala fide must be very strong and convincing, it must be adequate to rebut the premsumption of bona fide attached to governmental actions. The cases of Papnasam labour Union v. Madura Coats, and of state of U. P, v. Dr. . V. N. Prasad is relevant in this respect. We may also refer to the decision reported in Union of India v. S. L. Abbas where it has been indicated that a court cannot take the role of appellate authority and therfore cannot substitute the decision of the transferring authority by its own judgment. If it is done so. it would be in excess of the jurisdiction of the court. ( 16 ) THE learned counsel for the petitioner referred to the decisions reported in g. S. West Bengal Civil Defence Service officers Guild v. State of West Bengal and om Prakash Sharma v. State of Rajasthan where a Single Bench of Calcutta High Court and the same of Jaipur Bench of Rajasthan high Court interfered into and set aside orders o'f transfer. The facts of these two cases differ widely from the fact of the instant case. In these cases mala fide against the order of transfer was clearly proved and, therefore, the court very rightly interfered with the same. ( 17 ) IN the instant case it is very much true that the petitioner dug out a number of instances of administrative and financial irregularities. He very promptly pointed out those anomalies and sought for an enquiry into the same. But nothing was done within a reasonable time. His first complaint was on the 29th or 31st of March, 1996 without any result whatsoever. Even when he approached the viglence Cell under respondent No. 2 on 11. 8. 1996 no action was taken. Enquiry was ordered for only when the court passed a specific direction to that effect in this writ petition under an interlocutory order dated 5. 12. 1996. By way of explanation it has been stated by respondent No. 2 that he did not take any action over the complaints as the respondent No. 4 found the same to be illaonceived and reported to him in that manner on 25. 5. 1996. 12. 1996. By way of explanation it has been stated by respondent No. 2 that he did not take any action over the complaints as the respondent No. 4 found the same to be illaonceived and reported to him in that manner on 25. 5. 1996. It is really funny that a senior officer like respondent No. 2 acts upon a Report from respondent No. 4 over a matter where the allegations were directed against respondent No. 4 himself. Such casual, if not partial, attitude of the respondent No. 2 over such an issue of grave momentousness can never be appreciated. ( 18 ) IN spite of the abnormal conduct and indifferent attitude by the high officials like respondent Nos. 4 and 2 we must note that it is difficult to connect the order of transfer with the elements of mala fide. After all by this time the petitioner's stay at the present station has covered a period of two years and transfer at this stage cannot be said to be quite abnormal in nature. Transfer is an incident of service and it should be taken gracefully specially when it has been categorically ensured before this court that the impugned transfer is not with any slur or stigma and it is a normal transfer in public interest and under administrative exigency. Therefore; the petitioner should not at this stage have any grudge against the impugned order of transfer. ( 19 ) THOUGH we do not propose to interfere with the impugned order of transfer at this stage, we feel that the allegations made by the petitioner should be probed into very independently. Stay of respondent No. 4 at this station during the enquiry night have some undesirable reflection on the enquiry. But it is not within the ambit of this court to direct removal of respondent No. 4 from the scene of enquiry. It is only hoped that the authorities would see if the respondent No. 4 could be kept away from the station during the enquiry proceeding if that is feasible administratively. ( 20 ) IN the main writ petition the petitioner pointed out some administrative and financial irregularities. That time he took leave to bring out further instances which he ultimately did in the form of additional affidavit. ( 20 ) IN the main writ petition the petitioner pointed out some administrative and financial irregularities. That time he took leave to bring out further instances which he ultimately did in the form of additional affidavit. All these allegations are very grave in nature and should be enquired into for the greater interest of the Defence Administration. It is, therefore, proposed that an enquiry be made over all Such allegations. ( 21 ) WE have already noted that the enquiry should be made by a board of two or three officers presided over by an officer senior to the respondent No. 4. The Board so constituted, would enquire into all the allegations brought by the petitioner. The petitioner should compile all the allegations brought by him in his writ petition and in the additional affidavit and forthwith forward the same to the respondent No. 2 to enable him to include all of them in the terms of reference to the court of Enquiry. ( 22 ) IT has been argued on behalf of the respondents that this writ petition has been filed p'rematuredly, as the petitioner had some alternative remedy available under Section 27 of the Army Act. This provision might have been applied in case of the order of transfer but not with regard to the complaints lodged by the petitioner. Section 27 applies where the concerned officer Does not receive the redress to which he considers himself entitled'. But here the petitioner does not claim redress for himself while be brings the allegations against a few of the officials. ( 23 ) TO conclude we hold that transfer order against the petitioner might be given effect to, but the petitioner should be given full opportunity to substantiate his allegations before the court of Enquiry or before any other authorities at proper time. He should be given opportunity to collect necessary materials and to keep them under sealed cover for production before the court of Enquiry. The packet may be kept in custody of the court as it has been done in case of few other documents, for passing the packets over to the court of Enquiry as and when needed. ( 24 ) ON behalf of either of the parties several decisions, other than those referred to and discussed above, have been cited. The packet may be kept in custody of the court as it has been done in case of few other documents, for passing the packets over to the court of Enquiry as and when needed. ( 24 ) ON behalf of either of the parties several decisions, other than those referred to and discussed above, have been cited. Those are Udit Narayan v. Board of Revenue, ram Chand v. Union of India, G. Sarana v. Lucknow University, Papnasam Labour union v. Madura Coats (supra), Mahavir auto Stores v. Indian Oil Corporation, u. P. Auas Evam Vikas Parishad v. Gyan 'devi, State of Punjab v. Ramjilal, Sushma dixit v. Director Technical Education, Union of India v. Ganesh Dass and A Kasturiranga v. FCI. Since those are either irrelevant or on the same points as have been discussed in the earlier paragraphs' we do not propose to discuss these decisions in detail. ( 25 ) WITH these observations the writ petition is disposed of on contest without any order as to costs. Petition disposed of (I) transfer upheld (ii) enquiry ordered. --- *** --- .