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2007 DIGILAW 857 (CAL)

Pradip Kumar Saha v. Coal India Ltd

2007-12-07

L.NARASIMHA REDDY, S.P.TALUKDAR

body2007
JUDGMENT: S P. TALUKDAR, J. (1). CHALLENGING the office order dated 7th December, 2007 being annexure- "p-36" and the order dated 8th February, 2008 being Annexure- "p-39", the petitioner approached this Court by way of filing an application under Article 226 of the constitution. (2). THE Office order dated 7.12.2007 is reproduced hereunder:- "mcl/hq/ee/07/9663 07. 12. 2007 office ORDER Sri P. K. Saha (90156597) Executive Engineer (Excv) presently posted at MCL office, Kolkata, is hereby transferred and posted at Belpahar Training Institute, Lakhanpur area, with immediate effect. On being released by his present controlling officer, Sri P. K. Saha will report to the chief General Manager, Lakhanpur Area for his duties. This issues with the approval of the competent authority. Personnel Manager (EE)" (3). IT appears that the writ petitioner made an appeal before the Chairman-cum-Managing Director, M. C. L on 14th January, 2008 seeking revocation/cancellation of transfer order from M. C. L. , Kolkata Office to Belpahar Training Institute, Kalhanpur Area, M. C. L. The prayer of the petitioner for revocation of the transfer order was turned down. Mr. Sengupta, as learned Counsel for the petitioner, at the very outset, invited attention of the Court to the written complaint made by the Chairman of Coal India Ltd. addressed to the Officer-in-Charge of the Alipore Police Station, Kolkata Police. This written complaint was treated as FIR and on its basis a case was started under Sections 120b/387 of the Indian penal Code. The petitioner, as accused person, approached this Court with the prayer for anticipatory bail under Section 438 of the Code of Criminal Procedure. By order dated 18th january, 2008, the said application was disposed of and the petitioner subsequently got an order of bail. He was directed to attend Police Station. (4). MR. Sengupta, while assailing the order of transfer, categorically mentioned that it could not be a transfer simpliciter. He invited attention of the Court to the specific averments made in the Affidavit-in-Opposition. According to him, such order of transfer is mala fide and, thus, deserves to be set aside. He further contended that in order to ascertain whether such order suffers from mala fide or not, it is necessary to lift the veil. (5). BEFORE proceeding further, it may be relevant to refer to the backdrop of the case. According to him, such order of transfer is mala fide and, thus, deserves to be set aside. He further contended that in order to ascertain whether such order suffers from mala fide or not, it is necessary to lift the veil. (5). BEFORE proceeding further, it may be relevant to refer to the backdrop of the case. The petitioner was appointed as an Apprentice/junior Executive Trainee (Excavation) as far back as on 24th February, 1986. He was confirmed in the post of Engineer (X) in E-2 Grade on 11th March, 1988. Along with others, he was promoted to the post of Executive engineer (Excv.) in E-3 Grade on 22nd May, 1990. He was then transferred to NCL office, kolkata on 16.4.1992 purely on temporary basis. On 24th May, 1993, an office order was issued by the Chief General Manager (Personnel) communicating thereby certain decisions arrived at in the meeting of the Board of Directors, Coal India Ltd. On 17th August, 1993, the petitioner was placed under suspension. He filed a written application challenging such order of suspension. (6). ON 25th April, 1995, such order of suspension was revoked pending disposal of the criminal case. The office order dated 25.4.1995 was kept in abeyance by another order dated 22nd May, 1995. On 13th September, 1996, the petitioner was promoted to the E-4 grade and he was granted notional seniority. On 7th January, 1998, he was promoted to the post of Superintending Engineer (Excavation) in E-5 Grade. On 28th February, 2000, he was transferred to Nigahi Project. The order of transfer, however, was kept in abeyance by another order dated 10th April, 2000. Then, on 16.12.2003, he was transferred to Bharat cooking Coal Ltd. The said order was again kept in abeyance by order dated 19.12.2003. On 16th January, 2004, the order dated 16.12.2003 was made operative. On 17th May, 2004, the earlier writ application being W. P. No. 4536 (W) of 2004 was disposed of with certain directions to the respondent authorities. The petitioner, thereafter, submitted a detailed representation on 27th May, 2004. It was disposed of on 6th July, 2004. On 22nd July, 2004, he wrote a letter stating that he had not been paid his salary. Thereafter, on 8.3.2005 and then again, on 26.4.2005, he wrote letters to the respondent authorities stating that no official duties were assigned to him. (7). It was disposed of on 6th July, 2004. On 22nd July, 2004, he wrote a letter stating that he had not been paid his salary. Thereafter, on 8.3.2005 and then again, on 26.4.2005, he wrote letters to the respondent authorities stating that no official duties were assigned to him. (7). THE respondent No. 3 issued a show cause notice upon him on 30th June, 2005. The petitioner wrote to respondent No. 15 on 15th September, 2005 that the executive evaluation report was given to him after a delay of more than six months. On 24th September, 2005, he was transferred in his existing capacity to Mahanadi Coal Fields Ltd. On 3rd June, 2006, he was transferred to the MCL office, Kolkata. On 26th October, 2007, some works were assigned to the petitioner. His complaint was heard by the Central Information commission on 31st July, 2007. The petitioner was inflicted with the punishment of reduction to lower grade/post for two years. He preferred an appeal before the Appellate authority challenging such order of penalty by way of reduction. (8). RESPONDENT Nos. 1 to 15 contested the case by filing Affidavit-in-Opposition denying, inter alia, the material allegations made by the petitioner. The stand taken by the said respondent authorities may be encapsulated in a few sentences as follows: the petitioner was appointed as Junior Executive Trainee on 24th February, 1986 and he joined at Northern Coal Fields Limited (NCL), one of the subsidiaries of CIL on 11. 3. 1986. He being an Excavation Engineer is required to be utilized in the colliery/coalfield area. It was specifically mentioned in the letter of appointment that the petitioner would be liable to serve in any part of India and will be governed by the Rules and Regulations of service and administrative orders of the company in force from time to time. After joining, the petitioner was at Dudhichua Project, NCL till 1992. From April, 1992 to July, 2004, he was posted as Executive Engineer (Excavation) attached to NCL desk Office at Kolkata. From there, he shifted to BCCL Desk Office at Kolkata and was there as Superintending Engineer (Excavation) from July, 2004 to October, 2005. Thereafter, for 8/9 months, he was transferred from Kolkata to MCL, Shambalpur and again back to Kolkata in June, 2006. From there, he shifted to BCCL Desk Office at Kolkata and was there as Superintending Engineer (Excavation) from July, 2004 to October, 2005. Thereafter, for 8/9 months, he was transferred from Kolkata to MCL, Shambalpur and again back to Kolkata in June, 2006. Though, he received his order of transfer, which is under challenge in the present application, he did not join in the transferred place. (9). BY order dated 01/02.11.2007 passed by the Chairman-cum-Managing Director, mcl, being the disciplinary authority, a major penalty of reduction of grade/post was inflicted upon the petitioner. The substantive designation, thus, would be Executive engineer (Excvn.) in E-3 Grade. The writ petitioner was, thus, posted in Kolkata from april, 2002 to December, 2007 except for a period of 8/9 months. The impugned order of transfer was made on administrative grounds. Since he reported sick, he was not released. He was released subsequently by order dated 26th June, 2008 with a direction to report to the Chief General Manager, Lakhanpur Area for further assignment. Though he withdrew his travelling allowance amounting to Rs. 59,000/-, he had not joined in his transferred place. (10). IT was emphatically claimed by the respondent authorities that there is an acute shortage of faculties (i.e. graduate engineers in the training institute), which is hampering the training to the trainees. Requisitions were received by the Headquarters. For proper utilization of the service, he was transferred to BTI, Lakhanpur Area. (11). THE petitioner submitted a representation on 14th January, 2008 seeking revocation of the transfer order dated 7.12.2007. He claimed that he is required to look after his ailing parents and physically handicapped daughter, who stays with him since his wife lives in separation. The petitioner also made certain allegations against the management and raised his voice against corruption and irregularities. His representation, however, was rejected and it was duly communicated. The petitioner has been in Kolkata for a protracted period of 13/14 years and this could be possible by bringing outside influence and VIP recommendations. (12). THE respondent authority further alleged that the writ petitioner got himself transferred from Northern Coal fields, Singrauli to Kolkata office of NCL on account of recommendations of VVIPs. He continued to get his posting at Kolkata desk offices of ncl, BCCL and MCL through VIP references. Those were obtained from MPs and ministers by making false representations to them. (12). THE respondent authority further alleged that the writ petitioner got himself transferred from Northern Coal fields, Singrauli to Kolkata office of NCL on account of recommendations of VVIPs. He continued to get his posting at Kolkata desk offices of ncl, BCCL and MCL through VIP references. Those were obtained from MPs and ministers by making false representations to them. He managed to get a flat at Rohini complex; there is a quarter of CIL officers allotted in his name by bringing outside pressure on the alleged ground that he wanted his daughter to be treated in Kolkata. He suppressed the fact that his relationship with his wife was very bad and a criminal case was started against him on the basis of the allegations made by his wife. The petitioner was in jail custody from 19th May, 1993 to 24th May, 1993. He was placed under suspension vide office order dated 17th August, 1993. He was previously transferred by order dated 25th april, 1995 and then again, by order dated 28th February, 2000. But the said orders could not be given effect to. The earlier order of transfer dated 16. 12. 2003 also had to be kept in abeyance by an order dated 19.12.2003. By order dated 16th January, 2004, the earlier order dated 16.12.2003 had to be modified and the petitioner was posted at BCCL Desk Office at kolkata. In terms of the reasoned order passed by the CMD, CIL dated 6.7.2004 in pursuance of the order of the Honble High Court dated 17. 5. 2004 in W.P. No. 4586 (W) of 2004, the writ petitioner joined at BCCL Desk Office at Kolkata on 6.7.2004. By order dated 24.9.2005, he was transferred from the said BCCL Desk Office, Kolkata to MCL, shambalpur. He was posted there till June, 2006, but again had to be brought back to MCL office at Kolkata. Thus, except for a brief period of 8-9 months, the petitioner had been in kolkata for about 15 years. (13). CHARGE sheet dated 9.12.2005 was issued against the writ petitioner. The Articles of charges were proved beyond doubt, The Disciplinary Authority being the CMD, MCL, recommended severe punishment, namely, dismissal from service. The said file was forwarded to CMD, CIL in view of the Conduct, Discipline and Appeal Rules, 1978, which authorizes the CMD, CIL to pass such order of dismissal. The Articles of charges were proved beyond doubt, The Disciplinary Authority being the CMD, MCL, recommended severe punishment, namely, dismissal from service. The said file was forwarded to CMD, CIL in view of the Conduct, Discipline and Appeal Rules, 1978, which authorizes the CMD, CIL to pass such order of dismissal. The authority, however, made the following observations on 21st June, 2007:-"the punishment recommended is, in my considered opinion, totally disproportionate to the gravity of the proved charges. Instances of officers brining outside pressure for transfer/posting/promotion etc. is already common place despite repeated issue of instructions to bring the contents of CDA Rules to the mind of the officers in general. We cannot possibly justify use of severe penal action for such charges. DA may review his recommendations on the above background". (14). THE CMD, MCL on fresh appreciation of materials, stuck to the earlier decision of imposing major and exemplary punishment of dismissal. The file was, thus, sent to CMD, cil. It was again returned to CMD, MCL for lesser punishment. The Disciplinary authority thereafter imposed a penalty of reduction of grade/post by two grades/posts for a period of two years with immediate effect vide office order dated 1/2.11.2007. The petitioner filed an appeal on 19.12.2007. The Appellate Authority being CMD, CIL, expressed the view that it would not be appropriate for him to act as Appellate Authority. Legal advice was sought for. Thereafter, the matter was placed before the Board of directors of CIL. It took the following resolutions:-"the Board noted the details as brought out in the agenda note and detailed deliberations expressed its full faith and confidence on Chairman, CIL, and the Appellate authority. The Board accordingly insisted Chairman, CIL, to dispose of the case as per his wisdom. " (15). THEREAFTER, the CMD, CIL passed the following order:- "accordingly, I am revising the major penalty imposed by the CMD, Mcl/disciplinary Authority to reduction by two stages in the same scale of pay which he was enjoying prior to imposition of penalty. " The same would reflect the bona fide of the CMD, CIL. The respondent authority further alleged that the petitioner by filing applications under the Right to Information Act, 2005 is seeking detailed information even about personal matters of high officials. " The same would reflect the bona fide of the CMD, CIL. The respondent authority further alleged that the petitioner by filing applications under the Right to Information Act, 2005 is seeking detailed information even about personal matters of high officials. The respondent authorities categorically claimed that the order of transfer, which is under challenge in the writ application, is not mala fide, nor in violation of any statutory rules/regulations. Dismissal of the application was so sought for. (16). MR. Sengupta, as learned Counsel for the petitioner, invited attention of the Court to the manner in which various other factors relating to the writ petitioner and his service have been incorporated in the Affidavit-in-Opposition. This was in support of his contention that the same would clearly indicate the mala fide on the part of the respondent authorities; as if, the respondent authorities issued such order of transfer out of vengeance and in order to satisfy itself and by way of teaching a lesson to the writ petitioner. It was submitted on behalf of the writ petitioner that in view of the revised order of punishment, the petitioner had been put back to the post of Superintending Engineer (E-5 Grade) and as such, there could be no reason for transferring him as a E3 Grade officer. Thus, the administrative requirement, if any at all, cannot be satisfied by insisting upon implementation of the impugned order of transfer. (17). MR. Sengupta repeatedly submitted that the manner in which the respondent authorities dealt with the grievances ventilated in the Affidavit-in-Opposition clearly indicates bias. According to him, it cannot be said that such order of transfer was made in the interest of the administration or in public interest. Mr. Sengupta expressed wonder while submitting that the respondent authorities by repeatedly succumbing to the outside influences and pressure has only ridiculed itself and has none-else but itself to thank. This in his view further reflects the attitude on the part of the respondent authorities, who did not hesitate to oblige the so-called VIPs like the "mps and Ministers". It was then contended that the order of transfer, which is under challenge in the present writ application, deserves to be dealt with on its own merit and without reference to any events, which are not relevant. (18). MR. It was then contended that the order of transfer, which is under challenge in the present writ application, deserves to be dealt with on its own merit and without reference to any events, which are not relevant. (18). MR. Shakti Nath Mukherjee, as learned Senior Advocate for the respondent authority, sought to justify the detailed particulars as incorporated in the Affidavit-in-Opposition by submitting that those were required to be furnished, since the petitioner referred to all those in the writ application. According to Mr. Mukherjee, the allegations made by the writ petitioner cannot be allowed to remain unanswered or unchallenged. This prompted the respondent authority to refer to the detailed backdrop. (19). AFTER due consideration of the grievances raised in the writ application and the affidavits filed subsequent thereto as well as the stand taken by the respondent authorities in the various Affidavits filed on their behalf, I do not think that an attempt should unnecessarily be made to read something more than what meets the eyes. (20). IT is the settled position of law that an order of transfer does not ordinarily deserve to be interfered with unless it is manifestly mala fide or in violation of statutory rules. It was submitted on behalf of the respondents that not a single paragraph of the 210 pages of the writ application was referred to by learned Counsel for the writ petitioner in course of his submission. It is not in dispute that a criminal case was initiated against the writ petitioner on the basis of a written complaint made by the Chairman of the Coal India Ltd. The said written complaint, which was treated as FIR, specifically gives certain Mobile numbers and contains allegations of threats given to the said Chairman. It further shows that the caller not only threatened the petitioner but did not hesitate to hurl abuses. (21). THE petitioner, however, was granted anticipatory bail by the learned Division Bench of this Court by order dated 18th January, 2008. After giving due regard to the submission made by learned Counsel Mr. Sengupta for the petitioner and Mr. Shakti Nath Mukherjee for the respondent authority, I do not think any detailed reference to the backdrop of the said controversy is necessary. (22). THIS Court is essentially concerned about the impugned order of transfer dated 7. 12. After giving due regard to the submission made by learned Counsel Mr. Sengupta for the petitioner and Mr. Shakti Nath Mukherjee for the respondent authority, I do not think any detailed reference to the backdrop of the said controversy is necessary. (22). THIS Court is essentially concerned about the impugned order of transfer dated 7. 12. 2007 by which the writ petitioner, who was posted in the Mahanadi Coalfields Limited office, Kolkata, had been transferred and posted at Belpahar Training Institute, Lakhanpur area. It is to be seen whether such order of transfer at all deserves intervention by this court or not. It is true that the transfer is an incident of service and the authority in the best interest of the administration and in the public interest can very well transfer a person from one place to another, from one post to another. This privilege of the authority does not deserve interference. Any judicial interference in the matter of transfer may eventually create inconvenience in running of the administration. There is no reason as to why it shall not be presumed that transfers are made for better administration. But it cannot be denied that there are exceptions. Mala fide cannot be expected to be seen. In order to assess mala fide, it is necessary to take into consideration the entire facts and circumstances. The mystery can only be unveiled by going deeper. It is said that in such a situation where an order of transfer is challenged on the ground of mala fide, the Court is required to lift the veil. (23). MR. Shakti Nath Mukherjee referred to the fact that the authority concerned by way of reducing punishment clearly established that there could be no question of any vengeance. (24). MATERIALS on record clearly indicate that the writ petitioner during his long stay in Kolkata had been given desk assignment. The anxiety of the respondent authority that his technical know how as an Excavation Engineer could hardly be utilized in such assignment, cannot be brushed aside. It is not in dispute that the petitioner in order to comply with the order of transfer had already withdrawn an advance amount of Rs. 59,000/- and that was done in response to his letter dated 28th June, 2008 whereby he sought for advance amount of Rs. 1,00,000/-only. It is not in dispute that the petitioner in order to comply with the order of transfer had already withdrawn an advance amount of Rs. 59,000/- and that was done in response to his letter dated 28th June, 2008 whereby he sought for advance amount of Rs. 1,00,000/-only. Thus, his long stay in Kolkata, that too, in the assignment which by no stretch of imagination could utilize his educational qualification and technical knowledge, his withdrawal of an amount of Rs. 59,000/-in order to enable him to comply with the order of transfer as well as other facts and relevant circumstances harmoniously combine to suggest that there could be no mala fide at all. It cannot be said that the impugned order of transfer was an unconscious reflection of bias or vengeance in the subconscious mind of the respondent authority. (25). IT follows from the aforesaid discussion that the petitioner, for reasons or without, has been a beneficiary of various administrative decisions in his favour over a protracted period of time. The authorities have been consistent in favouring the writ petitioner. Now, at this stage, if the respondent authority feels that the service of the petitioner need be better utilized, how can it be said that the authority concerned is not just. (26). IT is true that the respondent authorities in the various Affidavit-in-Oppositions filed have referred to the backdrop relating to the service of the writ petitioner and the manner in which the petitioner had to be treated favourably being under pressure or otherwise. Curiously enough, the authorities did not even feel embarrassed to admit the same. (27). ALL these aspects, strictly speaking, are not required to be dealt with. For the purpose of adjudication of the controversy raised in the present application, it is just to see whether the order of transfer, which is under challenge, suffers from mala fide or whether it is in violation of the rules/regulations. This Court could not come across any such material so as to enable it to come to a finding in favour of the writ petitioner in regard to the same. (28). CONSIDERING all these aspects, this Court does not think that any interference is called for or justified. Accordingly, the present writ application being W. P. No. 5560 (W) of 2008 fails and be dismissed. There is no order as to costs.