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2005 DIGILAW 490 (CAL)

PRASANTA CHAUDHURY v. UNION OF INDIA

2005-08-04

JYOTIRMAY BHATTACHARYA

body2005
Jyotirmay Bhattacharya, J. ( 1 ) THE petitioner is an Inspector of Railway Protection Force. In February 2003, the petitioner was posted at the Railway Protection Force Post, Dankuni on being transferred from Railway Protection Force Post, Chittaranjan. On 27th May, 2005, the petitionerwas again transferred from Dankuni to Clothing store/howrah-ll at Burdwan. ( 2 ) THE said order of transfer of the petitioner from the present place of posting at Dankuni to Clothing Store/howrah-ll at Burdwan vide Annexure 'p-4' to this writ petition at page 37, has been challenged in this writ petition on the following grounds :- (i) Transfer order was issued in violation of Rules 93. 1 and 93. 2 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules ). (ii) Transfer order was issued in violation of the Standing Order no. 70 dated 27th September, 2004. (iii) Transfer order was issued in violation of sub-rule (4) of Rule 53 of the said Rules. (iv) Transfer order was issued in violation of Rule 153. 4 of the said Rules. ( 3 ) THE normal tenure of posting forthe Inspectors is four years as per the Standing Order No. 70. The note appended to Clause 3 of the said Standing order No. 70 provides that "tenure of posting indicated above is in the nature of guidelines and does not preclude the administration from transferring staff at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged in Rule 90 of Railway Protection Force rules, 1987". ( 4 ) MR. Basu, learned Senior Advocate, appearing for the petitioner, submitted that no doubt it is true that the note appended to Clause 3 of the said Standing Order authorises the concerned authority to transfer any member of the Force before the expiry of the normal tenure of posting for administrative reasons and/or in exigencies of service, but such premature transfer should not be done unless there are some grave reasons. Mr. Basu submitted that the transfer order itself does not disclose any grave reason under which the petitioner was transferred before expiry of tenure of posting. ( 5 ) BY relying upon an unreported decision of this Court in W. P. No. 11174 (W) of 2002 (Kali Kant Jha v. Union of India and Ors.), Mr. Mr. Basu submitted that the transfer order itself does not disclose any grave reason under which the petitioner was transferred before expiry of tenure of posting. ( 5 ) BY relying upon an unreported decision of this Court in W. P. No. 11174 (W) of 2002 (Kali Kant Jha v. Union of India and Ors.), Mr. Basu submitted that this Court after taking into consideration of the provision contained in rules 93. 1 and 93. 2 of the said Rules has held that in the absence of any grave reason, premature transfer is not permissible. ( 6 ) MR. Basu further pointed out that the petitioner was suspended in contemplation of a disciplinary proceeding with effect from 29th April, 2005. The disciplinary proceeding which was subsequently initiated against the petitioner, is still pending. During the continuation of the disciplinary proceeding, the suspension order was revoked with effect from 27th June, 2005 and simultaneously the impugned order of transfer was issued on 27th june, 2005. Mr. Basu submitted that in view of the provision as contained in rule 153. 4 of the said Rules an enrolled member of the Force against whom an enquiry is pending, cannot be transferred without the order of the disciplinary authority. Mr. Basu submitted that no permission has been obtained from the disciplinary authority before issuance of the said order of transfer. As such, such transfer having been issued in violation of the provision of the said Rules, cannot be sustained. ( 7 ) MRS. Mukherjee, learned Advocate, appearing for the respondents submitted that the petitioner is an inspector of the Railway Protection Force. Transfer is not only the incidence of his service, but also it is a condition of his service. As such, the transfer in the administrative interest of the employer cannot be opposed, as the petitioner has no right to stay at a particular place of posting for any period of his choice. ( 8 ) MRS. Mukherjee further submitted that the note appended to Cfause 3 of the said Standing Order makes it clear that in case of exigencies of service and/or for adminstrative reasons, transfer can be made even before the expiry of the normal tenure of posting. By referring to the order of transfer, mrs. Mukherjee submitted that here in the instant case, the transfer order itself discloses that the petitioner was transferred for administrative reasons. By referring to the order of transfer, mrs. Mukherjee submitted that here in the instant case, the transfer order itself discloses that the petitioner was transferred for administrative reasons. As such, such an order of transfer cannot be challenged. ( 9 ) MRS. Mukherjee further submitted that the transfer order was issued by the disciplinary authority pursuant to the order passed by the Chief Security commissioner. According to Mrs. Mukherjee, when the transfer order was issued by the disciplinary authority, it cannot be said that the said order of transfer was issued in violation of the provision or Rule 153. 4 of the said rules. ( 10 ) BY producing the relevant records relating to the transfer of petitioner, mrs. Mukherjee further submitted that the disciplinary authority, viz. , the divisional Security Commissioner Railway Protection Force/eastern Railway/ howrah-ll wrote a lettertothe Chief Security Commissioner on 27th May,2005 informing him about the involvement of the petitioner in coal theft at Janai road. It was also reported in the said letter that the petitioner is unable to run the post at Dankuni efficiently. As such, the Chief Security Commissione'r was requested to shift the petitioner from Dankuni. ( 11 ) FOLLOWING the said report, the petitioner was transferred from dankuni/howrah-ll to Clothing Howrah-ll at Burdwan for his alleged involvement in coal theft at Janai Road. When transfer was made on the recommendation of the disciplinary authority, it cannot be said that such transfer was made without the consent and/or permission of the disciplinary authority. ( 12 ) MRS. Mukherjee thus submitted that considering the nature of the charges against the petitioner in the pending disciplinary proceedings and the report of the Divisional Security Commissioner, the concerned authority thought it fit to transfer the petitioner to a different post under the same division instead of keeping him under suspension. Accordingly, the petitioner was transferred to the Clothing store Howrah-ll at Burdwan immediately after the withdrawal of the suspension order against him. ( 13 ) MRS. Mukherjee submitted that in this background and particularly when the concerned authority transferred the petitioner in the interest of administration, the order of transfer should not be interfered with. ( 14 ) IN reply, Mr. Basu submitted that though the actual reason for the transfer is not apparent from the order of transfer but the reasons for the transfer is very much clear from the record. Mr. ( 14 ) IN reply, Mr. Basu submitted that though the actual reason for the transfer is not apparent from the order of transfer but the reasons for the transfer is very much clear from the record. Mr. Basu further contended that if involvement of the petitioner in theft, is the real consideration for transfer, then the order of transfer has a serious adverse effect in the career of the service of the petitioner in view of Rules 93. 4 and 93. 5 of the said Rules which provide for penal consequences following such order of transfer. ( 15 ) MR. Basu further submitted that when a penal consequence is prescribed following such transfer, such order of transfer should not have been passed by the concerned authority without giving any reasonable opportunity of being heard to the petitioner. ( 16 ) IN support of such submission, Mr. Basu relied upon an unreported division Bench decision of this Court in the case of Sri Sanjib Kumar Ray v. Union of India and Ors. (M. A. T No. 2668 of 2004) wherein the Division Bench of this Hon'ble Court, in exactly a similar situation, set aside an order of transfer by holding that an employee cannot be condemned without any enquiry on the charges of corruption as the charges are very serious in nature. ( 17 ) MR. Basu also relied upon another unreported decision of this Court in the case of K. Ram v. The Union of India and Ors. (W. P. No. 2252/98)wherein a similar view was taken by this Hon'ble Court while setting aside the order of transfer. ( 18 ) VARIOUS other decisions were also referred to by Mr. Basu to show the multiplication of the same principles which were adopted by different high Courts in case of transfer of this nature. Those decisions are as follows:- (i) 1995 (II) CHN 46 (Santi Ranjan Ganguly v. State of West bengal and Ors.) (ii) 1979 (1) SLR 309 (P. Pushpakaran v. The Chairman, Coir board, Cochin and Mr. ). ( 19 ) RELYING upon the aforesaid decisions, Mr. Basu submitted that the order of transfer though was issued under the veil of administrative interest but it is really a case of penal transfer which cannot be sustained in the eye of law as an employee cannot be condemned without hearing. ). ( 19 ) RELYING upon the aforesaid decisions, Mr. Basu submitted that the order of transfer though was issued under the veil of administrative interest but it is really a case of penal transfer which cannot be sustained in the eye of law as an employee cannot be condemned without hearing. ( 20 ) HEARD the learned Advocates of the parties. Considered the materials-on-record including the record relating to transfer of the petitioner which was produced by Mrs. Mukherjee in course of hearing of this application. ( 21 ) ADMITTEDLY, the petitioner was under suspension in contemplation of the disciplinary proceeding as per Rule 134 (a) of the said Rules with effect from 29th April, 2004. A disciplinary proceeding was subsequently initiated on the charge that the petitioner not only is unable to control the crimes but also is incapable to discharge proper duties, and/or to comply with the instructions issued to the petitioner in this regard from time to time. The said disciplinary proceeding is still pending for consideration before the concerned authority. ( 22 ) SUBSEQUENTLY, however, the suspension order was revoked by the divisional Security Commissioner Railway Protection Force/eastern Railway howrah-ll with effect from 27th June, 2005. But simultaneously on the very same day he was transferred from Dankuni to Clothing Store/howrah-ll on the ground of the interest of administration. The normal tenure of posting of the petitioner as perthe Standing Order No. 70 has not yet expired. However, in view of the Note appended to Clause 3 of the said Standing Order, the authority can transfer the petitioner at any time before the completion of the tenure either in exigencies of service or for administrative reasons. ( 23 ) HERE in the instant case, though it is mentioned in the transfer order itself that the said order was issued for administrative reason but the special reason for deviation from the normal rule regarding tenure of posting has not been disclosed in the transfer order, though this Hon'ble Court has already decided in the unreported decision of this Court in W. P. No. 11174 (W) of 2002 (Kali Kant Jha v. Union of India and Ors.) that disclosure of such special reason justifying such transfer before expiry of the tenure of posting, is a condition precedent for premature transfer. ( 24 ) THOUGH the special reason is not apparent from the order of transfer but the same is evident from the records relating to such transfer wherefrom this Court finds that the reason for the transfer of the petitioner is for his involvement in coal theft and for his inability to run the said post efficiently. Such reasons are, no doubt, valid reasons for transferring one member of the force from one place to another. But should it be done without hearing the petitioner? ( 25 ) FOR ascertaining the said question, this Court thinks it proper to consider the effect of Rules 93. 4 and 93. 5 of the said Rules. For proper understanding of the said Rules, the said Rules are set out hereunder as follows:-"93. 4. Members of the Force who have been transferred out of a particular place or division on complaint of corruption or misconduct shall not be posted back to that post or place or division even if they so request. 93. 5. Members of the Force who have got adverse entries or enjoy poor reputation shall not be posted to sensitive posts till they get good entries for three consecutive years. " ( 26 ) ON plain reading of Rule 93. 4, it appears to this Court that transfer on complaint or misconduct has an adverse effect as the transferee shall not be posted back to that post, place or division from where he is transferred. Rule 93. 5 also prescribes that the member of the Force who has got adverse entries or enjoy poor reputation shall not be posted to sensitive post till they get good entries for three consecutive years. ( 27 ) THUS, when consequences fortransfer on complaint regarding corruption and misconduct are very serious, the petitioner should not have been transferred without giving proper hearing, as no employee can be condemned without hearing. ( 28 ) THUS, following the citations which were relied upon by Mr. Basu as referred to above, I hold that the impugned transfer being penal in nature, the said order cannot be sustained as no opportunity of hearing was given to the petitioner before condemning him for his involvement in theft as well as for his alleged inefficiency. ( 29 ) I, however, do not find any substance in the submission of Mr. Basu regarding the violation of Rule 153. ( 29 ) I, however, do not find any substance in the submission of Mr. Basu regarding the violation of Rule 153. 4 of the said Rules, as I find that order of transfer was issued on the recommendation of the disciplinary authority. Thus, such an order of transfer cannot be held to be illegal for want of permission of the disciplinary authority. ( 30 ) THUS, though I find that there is no jurisdictional deficiency in the authority for issuing the said order of transfer, but still then such an order of transfer cannot be sustained, as the same was issued in violation of the principles of natural justice. ( 31 ) ACCORDINGLY, the impugned order of transfer being Annexure 'p-4' to this writ petition at page 37 stands quashed. ( 32 ) I, however, make it clear that the respondents will be at liberty to pass such orders, as they consider fit and proper on the said allegation after giving reasonable opportunity of hearing to the petitioner in this regard. The writ petition, thus, stands allowed without however any order as to costs.