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2006 DIGILAW 384 (GAU)

Santanu Dutta v. General Manager, N. F. Railway

2006-04-25

I.A.ANSARI

body2006
JUDGMENT I.A. Ansari, J. 1. In terms of the administrative instructions, issued, on 16.1.1980, by the Railways, a proposal for transfer of an office-bearer of a recognised trade union including the branches thereof should be communicated by the Railways to the trade union concerned with liberty given to the trade union to bring to the notice of the Divisional office and if necessary, to the General Manager, any objection that the trade union may have against such proposed transfer. These administrative instructions further require that in the case of transfer of an office-bearer of a recognized trade union, sufficient time should be given to the trade union to make alternative arrangements for carrying out its work or for making its representation against such proposed transfer. 2. While working as Enquiry-cum-Reservation Clerk, at Dimapur Railway station, under the control of Respondent No. 4, the Petitioner has been transferred, vide order, dated 10.6.2005, to Lower Haflong, which also falls under the control of the Respondent No. 4. On the ground what while transferring the Petitioner, the administrative instructions, contained in the letter, dated 16.1.1980, aforementioned, have been violated inasmuch as the Petitioner is an elected Branch, Secretary of the NF Railway's Union, Dimapur Branch, but before the said transfer order, dated 10.6.2005, was passed, no opportunity to the Petitioner's trade union was given to have their say in the matter, the Petitioner has approached this Court, with the help of the present writ petition made under Article226 of the Constitution of India, to get the said transfer order, dated 10.6.2005, set aside and quashed. The Petitioner has impugned the transfer order with further allegation that the impugned transfer order suffers from mala fide and ulterior motives. 3. Resisting the writ petition, the Respondents have submitted to the effect, inter alia, that while conducting investigation, the Central Bureau of Investigation ('the CBI'), detected, on 24.2.2005, some irregularities having been committed by the Petitioner and has, accordingly, registered a case, in this regard, on 15.5.2004, against the Petitioner and as investigation is pending and the CBI has suggested that for effective investigation, the Petitioner may be transferred from Dimapur, for, the Petitioner, being an influential person, may temper with the investigation, the impugned transfer order was issued. This transfer order, according to the Respondents, is wholly for administrative reasons, not mala fide and not with ulterior motives. 4. I have heard Mr. This transfer order, according to the Respondents, is wholly for administrative reasons, not mala fide and not with ulterior motives. 4. I have heard Mr. K. Meruno, learned senior Counsel, appearing on behalf of the Petitioner, and Mr. B.N. Sharma, learned Counsel, appearing on behalf of the Respondents. 5. While considering the present writ petition, what is pertinent to note is that it is not in dispute that the CBI has registered a case against, amongst others, the present Petitioner. It is also not in dispute that the CBI had suggested transfer of the Petitioner on the ground that the Petitioner, being influential, might temper with the investigation. 6. As a matter of fact, while the Respondents have specifically averred in their counter-affidavit that the Petitioner had obtained interim order from this Court by suppressing the material facts from this Court, the Petitioner has, nowhere, denied, in his affidavit-in-reply, that he was unaware of the request made by the CBI for his transfer from his place of posting at Dimapur. It is in such circumstances that the present writ petition needs to be considered. 7. True it is, as submitted on behalf of the writ Petitioner, that the executive instructions aforementioned do not permit transfer of a member of the employees Union without affording an opportunity to the Union concerned to make a representation against the proposal to transfer an office-bearer of the Union. What is, however, of utmost importance to note is that the instructions, dated 16.1.1980, aforementioned are instructions with regard to the general policy of transfer, which are to be adhered to in ordinary and normal circumstances. The guidelines aforementioned do not apply to extraordinary or emergent situations. In fact, para 2 of the instructions, dated 16.1.1988, clearly states that the guidelines aforementioned do not 'apply to transfers on special conditions ordered in the public interest'. This apart, para 7.2 of the instructions, dated 16.1.1980, aforementioned states, "7.2. The procedure need not be followed in case where the transfer of a Railway employee is considered 'necessary by the SPE/Vig. Organization of the Railway. In such a case papers should be seen by the General Manager personally before the transfer is decided. The Trade Union is also advised of the transfer but it is not necessary to give notice for this purpose. Organization of the Railway. In such a case papers should be seen by the General Manager personally before the transfer is decided. The Trade Union is also advised of the transfer but it is not necessary to give notice for this purpose. Similarly, in a case where the civil and police authorities have recommended immediate transfer of a Railway employee who is an office bearer of a recognized Union on the ground that he was indulging in undesirable activities and thereby affecting efficient functioning of the Railway, there is no objection to deviation from the normal procedure." 8. From a bare reading of the contents of para 2 of the said administrative instruction, dated 16.1.1980, coupled with what para 7.2 of the said instructions states, it becomes more than abundantly clear that the instructions issued to the effect that the transfer of an office-bearer of a railway employee's trade union shall not be made without having given an opportunity to the union concerned to have their say in the matter and without letting the union concerned adequate opportunity to make alternative arrangements are general in nature and meant for normal circumstances and that these guidelines need not be adhered to in extraordinary situations, particularly, when an investigating agency, apprehending tempering of evidence, suggests immediate transfer of a railway employee, who may be an office-bearer of a recognized union. 9. Coupled with the above, what is also equally important to note is that though the Petitioner has made allegations of mala fide against the Respondents, no particulars have been furnished by the Petitioner to even scantly indicate, far less prove, that the impugned transfer order is actuated for reasons other than administrative. There is nothing in the materials on record or in the averments made in the pleadings of the writ Petitioner to show that transfer of the writ Petitioner from Dimapur to Lower Haflong is a result of annoyance of the Respondents/authorities concerned following any trade union activities of the Petitioner. In such circumstances, it is impossible to infer, far less hold, that the Petitioner's transfer is either mala tide and/or illegal or with ulterior motives. 10. Transfer of a Government employee is not merely an incidence of service, but a condition of service and transfer is necessary not only in public interest, but also for maintaining efficiency of the public administration. 10. Transfer of a Government employee is not merely an incidence of service, but a condition of service and transfer is necessary not only in public interest, but also for maintaining efficiency of the public administration. Unless an order of transfer is shown to be an out come of mala fide exercise of powers or is shown to be in violation of statutory provisions prohibiting such transfer, High Court shall not, ordinarily, while exercising jurisdiction under Article 226, interfere with such orders, for, an aggrieved employee, if required, can approach appropriate higher authority with his grievances against the transfer and the High Court cannot, while exercising jurisdiction under Article 226, play the role of appellate authority and determine the merit an order of transfer emphasising these prominent aspects of service jurisprudence, the Apex Court, in Hindustan Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Ors. (2001) 8 SCC 574 , held, thus, "5. ...It is by now well settled and often reiterated by this court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary 'too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an out-come of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned." 11. Similar views have been expressed in State of U.P. and Anr. v. Shiya Ram and Anr. (2004) 5 SCC 405, wherein the Apex Court reiterated the position of law, in this regard, by observing, thus, 5. Similar views have been expressed in State of U.P. and Anr. v. Shiya Ram and Anr. (2004) 5 SCC 405, wherein the Apex Court reiterated the position of law, in this regard, by observing, thus, 5. ...No government servant or employee of a public undertaking has any legal right to be posted forever at anyone particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an out-come of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Ors. (2001) 8 SCC 574 . 6. The above position was recently highlighted in Union of India v. Janardan Debanath (2004) 4 SCC 245 . It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest. 12. As a matter of fact, even administrative guidelines regulating transfers or containing transfer policies, at best, afford an opportunity to the Government servant concerned to approach their higher authorities for redress; but the guidelines and/or the policy of transfer cannot have the consequence of depriving or denying the competent authority to transfer a government servant to any place in public interest as may be found necessitated by exigencies of service as long as the official status of the transferred person is hot affected adversely and there is no infraction of any career prospects, such as, seniority, scale of pay and secured emoluments. The order of transfer made, even in transgression of administrative guidelines, cannot be lightly interfered with, for, such guidelines do not confer any legally enforceable rights unless, of course, the transfer order is shown to be vitiated by mala fide or is made in violation of any statutory provision. Even allegations of mala fide, when made must be such as to inspire confidence in the court or are based on concrete materials. Allegations of mala fide ought not to be entertained except for strong and convincing reasons. Clarifying this position of law, the Supreme Court, in State of U.P. and Ors. v. Gobardhan Lal (2004)11 SCC 402 , held as under: 7. ...Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression, of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory/provision. 8. ...This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer. 13. As early as in Mrs. Shilpi Bose v. State of Bihar and Ors. 1991 Supp (2) SCC 659, the Apex Court had clarified law with regard to transfer by observing, thus, "4. 13. As early as in Mrs. Shilpi Bose v. State of Bihar and Ors. 1991 Supp (2) SCC 659, the Apex Court had clarified law with regard to transfer by observing, thus, "4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." See also State of Madhya Pradesh and Anr. v. S.S. Kourav and Ors. AIR 1995 SC 1056 , Union of India and Ors. v. S.L. Abbas AIR 1993 SC 2444 and State of Punjab and Ors. v. Joginder Singh Dhatt AIR 1993 SC 2486 . 14. What crystallizes from the above discussion is that unless an order of transfer is shown to be in mala fide exercise of powers or with ulterior motive or is in violation of statutory provisions prohibiting such transfer, the High Court shall not ordinarily, while exercising jurisdiction under Article226, interfere with such orders. While making the transfer order, though the authority concerned must bear in mind the relevant guidelines or the policy of transfer, such administrative instructions are not in themselves enforceable by way of a writ petition. Administrative guidelines regulating transfer really give an opportunity to the affected Government servant to approach his higher authority for redressal of his grievances and the High Court, not being an appellate authority, cannot sit as an appellate authority on the wisdom of the transfer order made in exigency of service. Administrative guidelines regulating transfer really give an opportunity to the affected Government servant to approach his higher authority for redressal of his grievances and the High Court, not being an appellate authority, cannot sit as an appellate authority on the wisdom of the transfer order made in exigency of service. Moreover, allegations of mala fide, in the absence of specific particulars and in the absence of materials, which would inspire confidence of the court, must be ignored and interference with transfer on unsubstantiated allegations of mala fide must be eschewed. 15. In the light of what have discussed above, when I revert to the factual matrix of the present case, it clearly emerges that the Petitioner's transfer was not actuated by mala fide nor was it, strictly speaking, in violation of the guidelines aforementioned. That apart, the Petitioner's transfer was entirely based on administrative reasons. In the facts and circumstances, such as the present one, no interference with the impugned transfer order is called for in exercise of this Court's powers under Article 226. 16. In the result and for the foregoing reasons, this writ petition fails and the same shall stand dismissed. The interim directions passed in this case, on 23.8.2005, commanding the parties concerned to maintain status quo, shall accordingly stand vacated. 17. No order as to costs. Petition dismissed.