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2009 DIGILAW 674 (CAL)

Subir Bose v. STATE OF WEST BENGAL

2009-08-27

MRINAL KANTI SINHA, PRATAP KUMAR RAY

body2009
Judgment : RAY, J (1.) Heard the learned Advocates appearing for the parties. (2.) Assailing the order dated 5th May, 2008 passed in O.A. No. 1871 of 2006 by the West Bengal Administrative Tribunal, this application has been filed. (3.) The impugned order reads such. "Case No. O.A. 1871 of 2006 Subir Bose -Vs.-The State of West Bengal and Others 05/05/2008 For the applicant: Mr. Masud Karim, Ld. Advocate. For the respondents : Mr. S.Mustafi, Ld. Advocate. Parties are present through their learned Advocates. One fresh Vakalatnama is being filed on behalf of the petitioner. Let it be kept with the record. Rejoinder is also being filed today. Let those also be kept with the record. Copy served. As suggested by the parties, the matter is being taken up (or consideration by us. Heard the parties at length. Perused also the materials available on record. By this application, petitioner before us has challenged the reasoned order, and has prayed for quashing and/or setting aside of the impugned reasoned order dated 27-03-2006, passed by the concerned authority in terms of the direction of this Tribunal. From the materials available on record, it appears to us that petitioner, challenging his order 6t transfer, whereby he was transferred to I.T.I., Alipurduar from I.T.I. Howrah Homes, approached this Tribunal through one O.A. application (being O.A. No. 606 of 2005), whereupon this Tribunal in disposing of the aforesaid application by its order dated 08-07-2005, directed the concerned authority, specially, respondent No. 2 of the aforesaid application to treat the application of the petitioner together with all its annexures as a representation and to dispose it of within a specified time, and to communicate the same thereafter. Consequent upon that, one reasoned order has been passed by the concerned authority, wherein it was reflected that no injustice or discrimination was done against the present petitioner in issuing the aforesaid transfer order dated 09-06-2004. Being aggrieved by and dissatisfied with the aforesaid reasoned order, the petitioner again approached this Tribunal through this application. Consequent upon that, one reasoned order has been passed by the concerned authority, wherein it was reflected that no injustice or discrimination was done against the present petitioner in issuing the aforesaid transfer order dated 09-06-2004. Being aggrieved by and dissatisfied with the aforesaid reasoned order, the petitioner again approached this Tribunal through this application. Now, coming to the merit of the application itself, and upon scrutiny of the materials available on record, it appears to us that after issuance of the transfer order way back in 09-06-2004, the petitioner did not join the transferred post, and after submission of his representation to reconsider his transfer order, the concerned respondent authority made a request him to carry out the transfer order, and to join the post of L.D.C. at I.T.I. Alipurdhar forthwith, and after that, prayer for transfer of the petitioner shall be considered by them in due time. Even after such request was made, nothing was done by the present petitioner, and consequently, no other favourable order was passed in favour of the petitioner transferring him elsewhere, nor any other order was made by them by modifying the transfer order, issued against the present petitioner, transferring him to I.T.I., Alipurduar. It is quite settled position of law that when reasoned order is being challenged before a Court or Tribunal, certainly in appropriate cases, Court or Tribunal could interfere. But, this cannot be claimed as a matter of right by anyone, and to have such relief, one has to place before a Court or Tribunal adequate materials for persuading the Court or Tribunal to interfere with such reasoned order showing materials that "there has been illegality/infirmities in passing the reasoned order. But in the case at hand, nothing of the kind has been shown before this Tribunal so as to hold that there has been any illegality/infirmities in passing the aforesaid reasoned order. So, that being the position, normally we find no reason, whatsoever, to interfere with the reasoned order passed by the concerned department. But in the case at hand, nothing of the kind has been shown before this Tribunal so as to hold that there has been any illegality/infirmities in passing the aforesaid reasoned order. So, that being the position, normally we find no reason, whatsoever, to interfere with the reasoned order passed by the concerned department. But, in disposing of the present matter, taking cue from submissions made on behalf of the State Respondents that the concerned authority had taken a decision that they may consider the case of the present petitioner to transfer him to some other place in due time, provided the petitioner at the first instance is willing to carry out the order of transfer or in other words, he joins the present post to Alipurduar, we pass this direction for disposing of this application. The present petitioner is directed to join the transferred post at L.T.I., Alipurduar within a period of 06 (six) weeks hence. He shall submit a representation to the concerned authority stating ail his grievances within next 04(four) weeks. And in the event of filing such representa-tion by the petitioner, as indicated above, the concerned authority shall take into consideration the aforesaid representation, and dispose it of in accordance with law, as soon as possible, preferably within a period of next 04(four) months, and if possible, they shall pass any other appropriate transfer order in favour of the present petitioner within the aforesaid period. Petitioner is also directed to file formal application after his joining to the transferred post at Alipurduar for regularising his service, and in the event of filing such application by the petitioner, the concerned authority shall take steps to regularise the service of the present petitioner in accordance with law, as soon as possible. With this, we dispose of this application. Plain copy. Sd : S.S.Ahuja Sd/- P.K. Biswas MEMBER(A) Chairman" (4.) This case has a chequered history. By the order dated 9th June, 2004 the writ petitioner was transferred to I.T.I, Alipurduar from I.T.I, Howrah Homes. With this, we dispose of this application. Plain copy. Sd : S.S.Ahuja Sd/- P.K. Biswas MEMBER(A) Chairman" (4.) This case has a chequered history. By the order dated 9th June, 2004 the writ petitioner was transferred to I.T.I, Alipurduar from I.T.I, Howrah Homes. The petitioner made a representation seeking recalling of the said transfer order on assigning two main reasons ; (i) he is a patient of high myopia and was declared 40% disable by the Zonal Medical Board (Zone D), N.R.S Medical College and Hospital, Calcutta and for that reason, as per medical advice, he has to consult the concerned Doctor of the said Medical College frequently, and (ii) his mother is dependent upon him who is ailing and aged 78 years of age and there is none to took after him as the petitioner himself is a Bachelor. This representation was not considered. The petitioner moved that issue before the West Bengal Administrative Tribunal, Calcutta in O.A. No.606 of 2005 where from he got an order dated 8th July, 2005 by which the Tribunal directed the concerned authority, particularly the respondent No. 2, the Director, Directorate of Industrial Training, West Bengal to consider his original application along with its annexures as representation and thereafter to dispose of the same in accordance with law. The petitioner filed a positive written notes of submission summarising his contention made in different representations. A Lawyers representation was submitted to the said respondent No. 2, the Director of Industrial Training, West Bengal. The points as taken in representation are as follows. "1. I am a patient of high myopia and have been declared 40% disabled by the Zonal Medical Board (Zone D) N R S Medical College and Hospital, Calcutta. 2. Since I was physically disabled as above mentioned, I made several representations for being close to my residence at Kidderpore preferably ITI, Gariahat. Inspite of the same I was last posted at ITI, Howrah Home and while working there I was sought to be transferred to ITI Alipurduar instead of being considered for transfer to ITI Gariahat which I had already prayed for in view of my tremendous physical difficulties. Besides my physical difficulties I have an old ailing mother of 70 years of age who is suffering from hypertension and other old age ailments and who has none other than myself to took after her. I am a bachelor. 3. Besides my physical difficulties I have an old ailing mother of 70 years of age who is suffering from hypertension and other old age ailments and who has none other than myself to took after her. I am a bachelor. 3. I very humbly submit that at one point of time while working at ITI, Kalyani I was sought to be promoted as Cashier in the rank of UDC at ITI Alipurduar but due to my suffering from serious physical disabilities as aforementioned I had no other alternative but to express my unwillingness for transfer to Alipurduar thereby having to forego to such promotion, My present transfer and posting is at the same place Alipurduar that I had once given up on promotion. In the circumstances stated above, I must humbly pray that my transfer order from ITI Howrah Homes to ITI Alipurduar may kindly be withdrawn and a fresh transfer and posting order be issued transferring me from ITI Howrah Homes to ITI Gariahat or any other such ITI organisation nearer to my residence at Kidderpore for which I shall ever remain grateful to your Honour. I have been released from ITI Howrah Homes on or about 7.7.2004 and am now in the wilderness not having been able to join at ITI Alipurduar and hence would also pray before your Honour to regularize my period of absence by adjusting the same towards leave/medical leave etc. and pass orders for granting my salary for the said period as also disability allowance to enable me to tide over my serious financial condition. And for this 1 would remain ever grateful to your Honour. Yours respectfully, Sd/: Subir Bose (Subir Bose) Lower Division Clerk Industrial Training Institute, Howrah Homes now released of 1/1, Bishu Babu Lane, Kidderpore, Calcutta-700 023." (5.) In the representation as filed earlier and in the original application which was directed to be considered as representation, the petitioner annexed the medical certificates of respective years, his treatment details and his health condition and the health condition of his mother. The medical certificates were also annexed in the said original application relating to his treatment of left eye due to the illness, as already referred to. The Director of Industrial Training, West Bengal by his decision rejected his prayer seeking recalling of the transfer order and posting him to a place nearby to his residence, namely, at I.T.I, Gariahata. The medical certificates were also annexed in the said original application relating to his treatment of left eye due to the illness, as already referred to. The Director of Industrial Training, West Bengal by his decision rejected his prayer seeking recalling of the transfer order and posting him to a place nearby to his residence, namely, at I.T.I, Gariahata. The decision of the said Director dated 27th March, 2006 rejecting his prayer to recall the transfer order reads such. Government of West Bengal Technical Education and Training Department Directorate of Industrial Training Bikash Bhavan, 10th Floor, North Block Salt Lake City, Kolkata- 700 091. No, IM-399/2005/5328(3) Dated : 27-3-2006 ORDER Honble W.B.S.A.T. ordered in case No.606 of 2005 (Sri Subir Bose v. State of West.Bengal and Ors.) that the applicant should be given a hearing by the Director of Industrial Training and dispose of the matter by passing a reasoned order. A Notice was issued to him and he was asked to appear before me on 23.9.2005. Sri Subir Bose duly appeared before the undersigned and presented his case. During hearing the applicant submitted a written note for consideration. The written note has duly been considered. In the year, 1999 while the applicant was serving as L.D.C. at I.T.I., Tollygunge, the applicant was served with a "SHOW CAUSE" notice vide Memo No, 10-488/99/7151(1) dated 19.07.1999 for dereliction of his duties as the applicant was not performing his duties assigned to him by the Principal, I.T.I., Tollygunge. Ultimately, the applicant was "WARNED". In the year, 2002, while, the applicant was serving as L.D.C. at I.T.I. Howrah Homes, a "CHARGE SHEET" was issued to the applicant and an enquiry against him was ordered. But the charge-sheet was not accepted by him. Such behaviour of the applicant in non-accepting the charge-sheet is tantamount to the violation of the West Bengal Government Servants Conduct Rules, 1959, On the basis of the report of the Inquiring Officer, an order was issued imposing the penalty of withholding two annual increments. Sri Subir Bose has been transferred from l.T.I. Howrah Homes to l.T.I. Alipurduar Vide order.dated 09.06.2004 of D.l.T. not on the basis of the report of the earlier enquiry but in the interest of public Service and the transfer is a routine matter. His earlier mis-conduct did not have any bearing on the transfer order dated 09.06.2004. Sri Subir Bose has been transferred from l.T.I. Howrah Homes to l.T.I. Alipurduar Vide order.dated 09.06.2004 of D.l.T. not on the basis of the report of the earlier enquiry but in the interest of public Service and the transfer is a routine matter. His earlier mis-conduct did not have any bearing on the transfer order dated 09.06.2004. The submission made by Sri Bose was given due consideration by me and it was found that no injustice or discrimination was done in issuing the transfer order dated 09.06.2004. Sri Bose should carry out the order without delay. Sd/: Director of Industrial Training West Bengal." (6.) On a bare reading of the said order of the Director of Industrial Training, West Bengal, it appears that the Director did not answer the grounds as taken by the petitioner, namely, (i) he is suffering from myopia resulting 40% disablement which may cause problem of his joining in the transferred post at Alipurduar; (ii) the health condition of the mother who is ailing and aged and who has none to look after except the writ petitioner and further ground (iii) that earlier the writ petitioner was posted in a promotional post of U.D.C at Alipurduar, but he had to forego such promotional benefit due to his physical disabilities and family condition. It appears that in the order of Director, Industrial Training, West Bengal assailed before the learned Tribunal below, the said Officer only held that earlier punishment as imposed in departmental proceeding was not at all a factor to transfer htm from Howrah to Alipurduar. Save and except that, no consideration made considering the aforesaid three points which were the positive stand taken by the petitioner seeking recalling of transfer order. (7.) When the learned Tribunal by its earlier order dated 8th July, 2005 directed to consider the original application as representation wherein all those issues were taken, the said Officer was required to consider those and to pass a reasoned decision. There is no whisper in the order that all the grounds as taken were not legally sustainable or those were not the real fact. (8.) Having regard to such, we are of the view that the learned Tribunal ought to have considered those points in the impugned order as passed which is under challenge in this writ application, being the order dated 5th July, 2008. (8.) Having regard to such, we are of the view that the learned Tribunal ought to have considered those points in the impugned order as passed which is under challenge in this writ application, being the order dated 5th July, 2008. Learned Tribunal below did not consider that aspect of the matter though when by any judicial order, any Officer is directed to consider the matter, that Officer is bound to consider the matter in the angle as canvassed in the application which was directed to be considered and in not doing such, the order surely would not be a justified order. In the impugned order, there is no whisper to that effect save and except the ambit of exercising the power o(judicial review has been discussed. (9.) It is true that transfer is an incident of service. It is also true that nobody could say that he will not join in the transferred post. It is also a settled proposition of law that in a transfer matter the Court will be very slow to interfere with, as it is the matter which is to be considered by the administration who is the expert body to take decision. But there is an exception, where transfer order is interfered with by a Court of law exercising the power of judicial review, namely, (i) in the case of malafide; (ii) in the case when the transfer order is not passed by a competent authority and (iii) in the case as to be hardship faced to comply with the transfer order. In the instant case, it is coming in the third category, that is, hardship to comply with the transfer order. (10) On the hardship issue, the Apex Court considered the issue in the case reported in (1988)3 SLR 347 where the Court interfered with the order of transfer as passed on the ground that the wife of the petitioner, being a heart patient, there was no treatment facilities in the place of transfer comparable to the treatment as was available to the writ petitioners wife, and in the case reported in (1992)2 SCC 433 where the Supreme Court interfered with the transfer order wherein it was the case of the petitioner who was a widow that she had minor children who were to be looked into and the transfer order was quashed directing posting nearby to her residence. In the case State of Madhya Pradesh v. S. S. Kourav reported in (1995)3 SCC 270 the factual matrix of the case was considered by the Apex Court as hardship to comply with the transfer order. Even separation of the husband and wife is also considered as hardship by the Apex Court in the case Bank of India v. Jagjit Singh Mehta reported in (1992)1 SCC 306 . (11.) Having regard to the aforesaid judgments, it appears that the hardship issue is considered to interfere with the transfer order and there is no absolute bar or embargo to exercise the power of judicial review in that angle, in the instant case, as the petitioner had set up a positive case about his physical disability due to suffering from myopia, aged and ailing mother having none to look after and foregoing of the earlier promotion in the post of U.D.C when he was posted in the same place of posting at Alipurduar, we are of the view that it was a case which was required to be by the respondent authority Sympathetically. It is true that sympathy has little place in the rule of law. But it is also settled law that the law has a human face and accordingly law is now proceeding in the angle of human rights concept to identify its applicability even in the judicial review forum. Since the concerned Director has not dealt with the issues as taken in the written representation, as already quoted above, in the impugned order before the learned Tribunal there is no whisper to that effect and there is no denial of the fact that the petitioner is not suffering, we are of the view that it is a case wherein the Court should interfere in exercise of the judicial review power on the ground of hardship on the reflection of the aforesaid Apex Court judgments. (12.) Now so far as the relief is concerned, we have to consider that since in the year 2005 the order passed by the learned Tribunal in original application as moved directing the concerned authority to consider the matter and since the consideration has been done mechanically nor considering the relevant factors as was agitated and since already five years have passed from the date of passing of the order, we are of the view that it will be a further formality to direct the authority concerned to reconsider the matter as the authorities will be prone to echo their earlier views. (13.) Reliance is placed to the judgment passed in the case K. L. Shephard v. Union of India reported in AIR 1988 SC 686 and paragraph 16 is quoted below. "16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post decisional hearing. On the other hand, the normal rule should apply. It was also contended on behalf of the respondents that excluded employees could not represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give then an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose." (14.) Having regard to the facts and the relevant documents as were annexed with reference to the original application No. 606 of 2005 which was directed to be considered and the representation annexed at page 73 of this writ application and also the impugned order dated 27th March, 2006 passed by the Director of Industrial Training, West Bengal, we are of the view that the impugned order passed by the said Officer, the Director of Industrial Training, West Bengal is not legally sustainable. Since the learned Tribunal has passed the order without considering the issue in that angle and perspective which is required to be considered, the order of the learned Tribunal is set aside and quashed with reference to the portion of the order whereby the Tribunal directed the petitioner to join the transferred post and thereafter to file representation for consideration of the authority. (15.) Having regard to the relevant documents and papers, we are satisfied to apply our power of judicial review in this case and thereby to quash the order o1 transfer. The order of transfer accordingly is set aside and quashed. (16.) The petitioner is allowed to join in his place of posting at ITI, Howrah within a week from this date and the respondents are directed 1o allow such joining and as a consequential relief, the period of absence which to be considered from the dale of transfer till the date of joining will be treated as absence on leave and the respondents are directed to pass appropriate order in the light of the leave rules as applicable. (17.) Having regard to the judgment delivered in the case Somesh Tiwari v. Union of India reported in (2009)2 SCC 592 , the aforesaid order as passed having regard to the person with unauthorized absence also has been considered by us whereby considering the issue in the angle of human rights concept, already legislation has been made to protect physically handicapped. (18.) This writ application is allowed. (19.) It is made clear that if the post of L.D.C in ITI, Howrah Homes where from the petitioner was transferred, is now already filled up by a new incumbent and that no L.D.C post is available there, the petitioner will report his duty to the Director of Industrial Training, West Bengal who in turn will place the posting of the petitioner in the Industrial Training unit in or around Kolkata and its nearby. (20.) The order has been passed in the presence of the learned Advocate appearing for the State respondent and the petitioner need not to communicate this order as it is the settled law that any judgment delivered in the presence of the learned Advocate appearing for the parties is considered as judgment in presence of the respondents concerned or the petitioner concerned. (21.) Reliance is placed to the judgment passed in the case H. L Treehan and others v. Union of India reported in AIR 1989 SC 568 , a judgment of 3 Judges Bench and paragraphs 11 and 12 are quoted below. "11. One of the contentions that was urged by the respondents Nos. 1 to 4 before the High Court at the hearing of the writ petition, as noticed above, is that unguided and arbitrary powers have been vested in the official by sub-sec.(1) of S. 11 for the alteration of the terms and conditions of service of the employees. It has been observed by the High Court that although the terms and conditions of service could be altered by CORIL, but such alteration has to be made duly as provided in sub-sec.(2) of S. 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word duly which, according to Concise Oxford Dictionary, means rightly, properly, fitly and according to Strouds Judicial Dictionary, Fourth Edition, the word "duly is very significant and excludes any arbitrary exercise of power under S. 11 (2). It is now a well established principle of law that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed buy a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing conditions of service of a Government servant will offend against the provision of Art. 14 of the Constitution. Admittedly, the employees of CORIL were not given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular cannot, therefore, be sustained as it offends against the rules of natural justice. 12. It is, however, contended on behalf of CORIL, that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post decisional opportunity of hearing does not subserve the rules of natural justice. 12. It is, however, contended on behalf of CORIL, that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post-decisional opportunity. In this connection, we may refer to a recent decision of this Court in K. L. Shephardv. Union of India, JT (1987)4 600 ; ( AIR 1988 SC 686 ). What happened in that case was that the Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under S. 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were not taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the Court observed as follows : "We may now point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamaiion hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand, the normal rule should apply, It was also contended on behalf of the respondents that excluded employees could not represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give then an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give then an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose." (22.) Reliance is also placed to the judgment passed in the case Comptroller and Auditor General of India, New Delhi v. K. S. Jagannathan reported in AIR 1987 SC 537 . (23.) The aforesaid order is passed by us on considering the other Legal principle that when statutory authority has discretion in the matter, the writ Court can also issue necessary direction when conditions therefore are satisfying. (24.) Reliance is also placed to the judgment passed in the case Air India v. reported AIR 1997 SC 645 , Union of India v. Subir Mukharji reported in AIR 1998 SC 2247 and the case Mohabbatv. State ofM. P. reported in AIR 1995 SC 1893 . (25.) Stay of operation of this order, as prayed for by the learned Advocate for the State, is refused.