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2001 DIGILAW 76 (CAL)

Ajiun Ch. Routh v. Union of India

2001-02-14

HRISHIKESH BANERJI, TARUN CHATTERJEE

body2001
JUDGMENT 1. By the instant writ application the petitioner challenges the order dated 7th December, 1998, passed by the Calcutta Bench of the Central Administrative Tribunal dismissing the petitioner's application whereby he challenged the order of his transfer from Calcutta to Haldia. 2. The petitioner who has been working as a Mazdon in the office of Garrison Engineer. (respondent No.6), Fort William, Calcutta, was transferred from Calcutta to Haldia by an order dated 4th August, 1998. 3. The petitioner's case is that in view of the Transfer Policy framed by the respondents, he cannot be transferred out of Calcutta as he is a Group 'D' employee. It is further stated that he would be put to great hardship if he is transferred to Haldia as he has a large family to maintain and he himself is a heart patient and is under treatment in Calcutta. 4. The respondents submit that on the advice of the Chief Engineer by his letter dated 1st August, 1998, the petitioner was transferred to Haldia by the impugned order dated 4th August, 1998; that his transfer was made in public interest and in the exigencies of the service and that Haldia, the place where the petitioner has been transferred on administrative ground is within the jurisdiction of C.W.E., Calcutta area. It is stated by the respondents that there is no illegality in the order of transfer of the applicant to Haldia. 5. The Tribunal, on consideration of the material on record refused to interfere with the transfer order and observed that the respondents authorities, after considering the entire position, came to the conclusion that in the administrative interest, the petitioner should be transferred from Calcutta to Haldia. 6. The order of the Tribunal has been challenged, inter alia, on the ground that the Tribunal failed to appreciate that the impugned order of transfer was not a routine transfer on administrative ground but was in violation of the norms of transfer and posting and is tainted with mala fides. 7. The following decisions have been cited by the learned Counsel for the petitioner in support of his contentions raised in this writ petition : (1) S.V. Singh v. Union of India (Calcutta) reported in 1988 (2) SLR 545 (2) 1984 (2) SLR 328, Sheshrao Nagarao Umap v. State of Maharashtra & Ors. 7. The following decisions have been cited by the learned Counsel for the petitioner in support of his contentions raised in this writ petition : (1) S.V. Singh v. Union of India (Calcutta) reported in 1988 (2) SLR 545 (2) 1984 (2) SLR 328, Sheshrao Nagarao Umap v. State of Maharashtra & Ors. (3) 1989 (1) SLR 309, C. Ramanathan v. A.Z.M.F.C.I., Madras (4) 1985 (2) CHN 20 , In re: G. C. Kar ; (5) 1979 (1) SLR 309 , P. Pushoakaran v. Chairman, Coir Board (Ker.). 8. In 1988 (2) SLR 545 (supra), it was held that the writ Court in exercise of its power under Article 227 of the Constitution could crack the shell to see for itself whether there was in fact any malice or mala fide move behind the order of transfer. 9. In 1984 (2) SLR 328, also it was held that the power of transfer must be exercised honestly, bona fide and reasonably and not for achieving an oblique motive which would amount to mala fide and colourable exercise of power. 10. In (6) 1980 (1) SLR 309, it was held that a transfer made on irrelevant consideration in utter disregard of policy decision to give vent to the ill feelings which the Transferring Authority was harbouring against the employee would be liable to be quashed. 11. In 1979 (1) SLR 309 , it was held that an order of transfer passed more as a punishment that on account of administrative necessity, is mala fide and is liable to be set aside. 12. In 1985 (2) CHN 20 , it has been held that an order of transfer would be illegal and invalid if it is passed :- (a) for a collateral purpose in the garb of ostensible purpose of public interest with improper motive and bias; (b) by way of punishment; (c) in violation of a statutory rule or instruction; (d) as the effect of penal consequences of reduction in rank or status. 13. It was further held in the said decision that in such cases, the Court can lift the veil to see and determine for itself whether the order of transfer was bona fide or not. 14. 13. It was further held in the said decision that in such cases, the Court can lift the veil to see and determine for itself whether the order of transfer was bona fide or not. 14. Let us consider whether the impugned order of transfer is bona fide or not and whether application of the principles enunciated in any of the decisions cited above would render the impugned order of transfer mala fide or penal in nature. 15. Under the guidelines for transfer of Group 'D' employees of the MS, longest stayee is to be posted out. Referring to the decision in the case of (7) Union of India & Ors. v. S. L. Abbas reported in AIR 1993 SC 2444 , the Tribunal observed that the Supreme Court in the said case held that guidelines do not confer upon an employee any legally enforceable' right and that if any transfer was made by not observing the guidelines, the Court or Tribunal could not interfere with the same unless it was vitiated by mala fides or was made in violation of any statutory provision. Guidelines being not statutory provisions, the order of transfer of the petitioner cannot be said to be illegal only because the petitioner is not the longest stayee although the transferring authority is of the opinion that in the administrative interest, the petitioner should be transferred to Haldia. 16. Now let us consider the contention of the learned Advocate appearing for the petitioner that the context of the order of transfer itself shows that the same was issued by way of punishment and was, therefore, mala fide. It is submitted that the order itself discloses that the petitioner was involved in undesirable activities and, therefore, the authorities were free to take disciplinary action against him for such undesirable activities but instead they took recourse to the order of transfer to avoid a disciplinary proceeding. The aspersion attaches a stigma to the petitioner which could be normally done if the petitioner was found guilty in a disciplinary proceeding. 17. Referring to the order of transfer, the Tribunal observes as follows : "It is, thus, seen that the background of transfer of the applicant to Haldia was that he was involved in certain undesirable activities. Since the transfer order itself discloses certain complaints against the applicant. I have gone through the entire departmental file produced by the respondents. 17. Referring to the order of transfer, the Tribunal observes as follows : "It is, thus, seen that the background of transfer of the applicant to Haldia was that he was involved in certain undesirable activities. Since the transfer order itself discloses certain complaints against the applicant. I have gone through the entire departmental file produced by the respondents. I find that there were certain complaints against the applicant which were enquired into and, thereafter, the respondents came to the decision that the applicant should be transferred out of Calcutta in administrative interest." 18. We find that the applicant who is in a transferable service has been transferred in the same capacity and status and there has been no reduction in rank and status. In such circumstances, we are of the view that the Tribunal was justified in holding that the order of transfer was not mala fide but was made in the interest of administration which has been clearly made explicit in the order of transfer itself. 19. The transfer in the administrative interest for the involvement of the employee in some activities which according to the employer are not desirable cannot be said to be penal in nature. 20 Imputation of undesirable activities in the order of transfer does not by itself vitiate the said order as mala fide inasmuch as for administrative interest it was open to the employer not to take recourse to disciplinary proceedings and it has been rightly held by the Tribunal that it is not always mandatory on the part of the employer to conduct disciplinary proceeding whenever any complaint is received against an employee. In view of the above, we do not find any ground for interfering with the impugned order passed by the Tribunal dismissing the petitioner's application and, accordingly, the writ petition is rejected. There will be no order as to costs.