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2011 DIGILAW 212 (GAU)

Pabitra Kumar Das v. State of Assam

2011-03-15

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. While serving as Executive Engineer, PWD, Lakhimpur State Road Division, the Petitioner has been transferred and posted by the impugned order, dated 10.06.2010, as Executive Engineer, PWD, Sonitpur AACP Division. By the impugned order, Respondent No. 5 herein who had been functioning as Executive Engineer (Civil), PWD, on deputation to Finance Department, as Deputy Director (Technical) in the Directorate of Financial Institution, has been reverted to his parent department and posted as Executive Engineer, PWD, Lakhimpur State Road Division, i.e., the post, which the Petitioner is presently holding. Aggrieved by the said order of transfer, the Petitioner has impugned the same in this writ application, made under Article 226 of the Constitution of India, seeking to get the said transfer order set aside and quashed. 2. The Petitioner's case is, in brief, thus: By order, dated 19.12.2008, the Petitioner came to be posted as Executive Engineer, PWD, Lakhimpur State Road Division, and though he has not completed three years of normal tenure at the said place of posting, he is sought to be transferred by the impugned order, dated 10.06.2010. The said transfer order has been made at the behest of one contractor, namely, Sri Naruttam Changmai (who stands impleaded as Respondent No. 8) and the one Sri Parimal Sen, a Junior Engineer at Lakhimpur State Road Division. The said Sri Parimal Sen, who stands impleaded as Respondent No. 7, has been working as Junior Engineer, for the last 27 years. He has also been holding the charge of the office of the SDO (Technical), though he is not eligible to function as the SDO (Technical) inasmuch as the minimum rank for the said post of SDO is Assistant Executive Engineer and a Junior Engineer is not qualified to hold the said post of SDO (Technical). It is the SDO (Technical), who is responsible for technically checking the bills. It is the SDO (Technical), who is responsible for technically checking the bills. Upon joining the post as Executive Engineer, PWD, Lakhimpur State Road Division, when the Petitioner found irregularities in the discharge of duties of Respondent No. 7 and having also learnt that Respondent No. 7 was very closely associated with Respondent No. 8 and had been helping Respondent No. 8 in getting erroneous bills passed, the Petitioner objected thereto and brought one Sri Nobel Deuri, Assistant Executive Engineer, Ghilamara Sub-Division, in the post of SDO (Technical), but till the date of filing of the writ petition, Respondent No. 7 had not handed over the charge of the office of the SDO (Technical) to Sri Nobel Deuri. The Petitioner had also deducted, from the bills of Respondent No. 8, some amount as liquidated damages for not completing the contract works allotted to the Respondent No. 8, namely, Sri Naruttam Changmai, and, thus, Respondent Nos. 7 and 8 have combined together and it is as a result of their collusion that the Petitioner has got transferred from Lakhimpur State Road Division. The said order of transfer is also illegal inasmuch as the transfer of a Government employee needs, according to the relevant policy decision and guidelines, approval of the Chief Minister if the employee, sought to be transferred, has not completed three years of normal tenure at the given place. In the case of the Petitioner, no such approval was, however, obtained. The impugned transfer order, reiterates the Petitioner, is the fall out of his resistance to the illegal and arbitrary actions of Respondent Nos. 7 and 8 and it is they, who got the Petitioner transferred. The Petitioner is under medical treatment and he has been advised complete bed rest on his health ground. The transfer order, therefore, needs to be interfered with. By an order, dated 30.06.2010, passed in this writ petition, the impugned order of transfer has been stayed. 3. The writ petition has been resisted by the State Respondents, namely, Respondent Nos. 1, 2, 3 and 4. The writ petition has also been resisted by Respondent No. 5, and Respondent No. 7, who, as an Assistant Engineer, has allegedly been helping Respondent No. 8, who is a contractor. As far as Respondent No. 8 is concerned, he has chosen not to resist the writ petition. 4. 1, 2, 3 and 4. The writ petition has also been resisted by Respondent No. 5, and Respondent No. 7, who, as an Assistant Engineer, has allegedly been helping Respondent No. 8, who is a contractor. As far as Respondent No. 8 is concerned, he has chosen not to resist the writ petition. 4. As far as the Respondent No. 5 is concerned, his case is simpler than those of the other Respondents inasmuch he contends that the transfer order is in accordance with law and it does not suffer from any mala fide or arbitrariness, the same has been made in public interest and that he has been reverted from deputation to his parent department in accordance with law and has been transferred to hold the post, which the present Petitioner was occupying. It is the further case of the Respondent No. 5 that pursuant to the order of transfer, which stands impugned in this writ petition, he had already handed over the charge of his office, which he was holding on deputation. The Respondent No. 5 was posted as Executive Engineer, PWD, Haflong Road Division, and thereafter, he has been, by order, dated 02.02.2011, posted as Executive Engineer, PWD, Dhemaji Rural Road Division and he has accordingly joined the said post at Dhemaji. 5. It may also be noted that by an order, dated 04.03.2011, the present Petitioner has been appointed by the Deputy Commissioner, Lakhimpur, as the Assessing Officer of the Model Code of Conduct Cell, constituted by order, dated 11.02.2011, with further direction that the Petitioner shall assist the Assistant Commissioner, Lakhimpur, who is the overall officer-in-charge of the Model Code of Conduct Cell. 6. Turning to the case of the State Respondents, namely, Respondent Nos. 1, 2, 3 and 4, it may be pointed out that their case is reflected in paras 4 and 5 of their counter-affidavit. The averments made in paras 4 and 5 are, therefore, reproduced below: 4. That the statements made in paragraphs 5, 6 and 7 of the writ petition being wholly baseless and misconceived the deponent denies the correctness of the same. Further, the deponent categorically denies that the allegation that the Petitioner has been transferred at the behest of Respondent Nos. 7 and 8. As stated hereinabove, the Petitioner has been transferred on the ground of unsatisfactory performance. Further, the deponent categorically denies that the allegation that the Petitioner has been transferred at the behest of Respondent Nos. 7 and 8. As stated hereinabove, the Petitioner has been transferred on the ground of unsatisfactory performance. It is brought to the notice of this Hon'ble Court that at a time when general public of Lakhimpur district is facing serious problems because of the flood situation, the Petitioner, who is required to be more active and prompt in discharging his duties in such a situation, have been found very irregular in his duties and also found to be absent frequently in district headquarters. Further, the deponent humbly begs to state that the allegation made by the Petitioner regarding Sri Parimal Sen, Junior Engineer holding the post of SDO (Tech) is also not correct as there is no post called SDO (Technical) in the said divisional office and there is no Government order posting Sri Parimal Sen as SDO(T/C). However, there is a post of AEE(T/C) in the office of the Executive Engineer, Lakhimpur State Road Division which is lying vacant at present. Furthermore, the Petitioner by virtue of being the Executive Engineer of the Lakhimpur State Road Division is also the DDO and competent authority for passing bills, preparation of estimates of his division etc. He is also the controlling authority of his staff. Therefore, though not admitting, if there exists any nexus as alleged, the Petitioner has to be solely responsible for the same. However, as the Petitioner has been transferred before completing three years in his present place of posting, prior approval of the Hon'ble Chief Minister, Assam has been taken in File No. RBEB.85/87Pt-III. 5. That the statements made in paragraphs 8 and 9 of the writ petition being misconceived are denied by the deponent. The deponent in this regard humbly begs to state that since Lakhimpur district is a highly flood prone area and since from the month of April to September is the flood period, there is a standing order of the Government not to leave Headquarter at any circumstances except on exceptional emergency during such flood period. Unfortunately, the Petitioner instead of discharging his duties in this flood period, on the pretext of having high blood pressure (Annexure-4 page 15 to the writ petition) is evading from his duties at the Headquarters. Unfortunately, the Petitioner instead of discharging his duties in this flood period, on the pretext of having high blood pressure (Annexure-4 page 15 to the writ petition) is evading from his duties at the Headquarters. The said fact itself, justifies the stand of the answering Respondents in the matter. 7. In substance, what the State Respondents, namely, Respondent Nos. 1, 2, 3 and 4 submit is as under: The Petitioner has not been transferred at the behest of Respondent Nos. 7 and 8; rather, he has been transferred on grounds of unsatisfactory performance, Lakhimpur is a highly flood prone area and there is standing order of the Government not to leave the headquarter under any circumstances except on emergency, but the Petitioner, instead of discharging his duties during the period of flood, has been evading his duty on the pretext of having high blood pressure. At the time, when the general public of Lakhimpur had not been facing serious problem because of the flood, the Petitioner was found very irregular in his duties and also found to be absent frequently from his district headquarters. There is no post of SDO (Technical) in the said division. There is, however, a post of AEE (T/C) in the office of the Executive Engineer, Lakhimpur State Road Division, which is lying vacant at present. The Petitioner, as the Drawing and Disbursing Officer, could have taken action against his subordinates if there is any element of truth in the allegations made by him against Respondent No. 7. Though the Petitioner has not completed three years of his normal posting, he has been transferred, in the circumstances indicated hereinbefore, with the approval of the Chief Minister. 8. Coming to the case of Respondent No. 7, it may be noted that according to Respondent No. 7, the impugned order has not been passed at his behest and/or at the behest of Respondent No. 8. Respondent No. 7 has been merely discharging his duties in the office of the Assistant Executive Engineer. It is true that it is the SDO (Technical), who is responsible for checking the bills. Respondent No. 7 has been merely discharging his duties in the office of the Assistant Executive Engineer. It is true that it is the SDO (Technical), who is responsible for checking the bills. Though the said Sri Nobel Deuri, Assistant Executive Engineer, was asked to take over the charge of the office of the Assistant Executive Engineer the, said Nobel Deuri had not come to take over the charge and, hence, there is no truth in the assertion of the writ Petitioner that the Respondent No. 7 had refused to hand over the charge of the office of the SDO (Technical) (as the Petitioner describes or the post of AEE (T/C), which the State Respondents describe) to said Nobel Deuri. In fact, it was by order, dated 24.08.2007, passed by the then Executive Officer that the Respondent No. 7 had been holding the charge of the discharging the duties of the office of the Assistant Executive Engineer (Technical). There has never been, any collusion between the Respondent Nos. 7 and 8 and Respondent No. 7 has nothing to do with the transfer of the Petitioner. The Petitioner's allegation that it is because of the influence, which has been exerted by Respondent Nos. 7 and 8, that the Petitioner has been transferred to Tezpur is false and incorrect. The relevant averments, made by the Respondent No. 7, which appear in his affidavit-in-opposition, read as under: 6. That the aforesaid statements made in the writ petition at paragraphs 5 and 7 are false and incorrect and the same are hereby denied by the deponent. With regard to the allegation that the deponent is holding the charge of SDO (Technical) for which he is not eligible, it is stated that firstly, the deponent, by the order dated 24.08.2007 of the then Executive Engineer was allowed to take over the charge of Assistant Executive Engineer (Technical Consultant) from the earlier senior Junior Engineer Sri Nareswar Pegu. As per the said order, the aforesaid arrangement was a purely temporary arrangement till the joining of the respective relievers. The question of being eligible to hold a post is only in respect of permanent and substantive appointment and not for temporarily discharging the duties by holding charge. The deponent was allowed to hold charge in exigencies of service due to the non-availability of the appropriate incumbent. The question of being eligible to hold a post is only in respect of permanent and substantive appointment and not for temporarily discharging the duties by holding charge. The deponent was allowed to hold charge in exigencies of service due to the non-availability of the appropriate incumbent. Accordingly, the deponent by following the appropriate procedure, received the charges of the Assistant Executive Engineer (Technical Consultant). 7. That with regard to the allegation that in spite of one Sri Nobel Deuri being asked to take over the charge of Technical Consultant of the Division, the deponent had not handed over the charge, it is stated that the same is incorrect and it is deliberate misrepresentation of fact by the writ Petitioner. The writ Petitioner by his Office Order No. 7 of 2009-10 dated 09.04.2009 had requested Sri Nobel Deuri to take over the charge of Technical Consultant of the Division from the deponent. But inspite of the same. Sri Deuri did not come forward to take over the charge and neither he had reported in the office of the Executive Engineer. Thereafter, the writ Petitioner by another Office Order No. 32 of 2008-09 (SIC) dated 23.07.2009 had issued an order that the deponent is entrusted with the work of technical checking of all bills and estimates in addition to his own duties. Pursuant to the said order of the writ Petitioner, the deponent continues to discharge of work of technical checking of bills. 9. In order to show that there has been an illegal nexus between the Respondent Nos. 7 and 8, he (the Petitioner) has been transferred as a result of the collusion between the Respondent Nos. 7 and 8 and that Respondent No. 7 had refused to handover the charge of the office of the SDO (Technical), i.e., AEE(T/C), the Petitioner has placed on record a letter, dated 18.09.2009, to the Petitioner by said Sri Nobel Deuri (who was to replace the present Petitioner), alleging to the effect that Respondent No. 7 had refused to hand over the charge. The Petitioner has also placed on record a copy of the letter of the Account Officer, addressed amongst others, to the Respondent No. 7, alleging to the effect that he (Respondent No. 7) had been engaging huge number of MR and WC workers regularly. The Petitioner has also placed on record a copy of the letter of the Account Officer, addressed amongst others, to the Respondent No. 7, alleging to the effect that he (Respondent No. 7) had been engaging huge number of MR and WC workers regularly. A letter, dated 21.01.2009, has also been placed by the Petitioner, whereby the Petitioner had directed the Respondent No. 7 to offer his explanation as regards an accident, which had occurred wherein one person had died and another person had been injured, the said accident, according to the letter, dated 21.01.2009, having taken place due to negligence in supervision of the work of the road, in question, by the Respondent No. 7. 10. The Petitioner has further placed on record a letter, dated 16.03.2010, whereby he has written to the Respondent No. 7 that despite instructions given to him, he has not handed over the charge to the officer to whom he was directed to hand over charge. In order to sustain his accusation that the Respondent No. 7 had been passing the bills of the Respondent No. 8 without even being competent in law to do so, the Petitioner has placed on record copies of the bills, which had been earlier submitted by Respondent No. 7 without obtaining signatures of the Assistant Executive Engineer, though no bill can be passed by a Junior Engineer until the time it is countersigned by the Assistant Executive Engineer. 11. We have heard Mr. N. Dutta, learned Senior counsel, assisted by Ms. S.P. Hussain, for the Petitioner, and Mr. J. Patowari, learned Standing Counsel, PWD, appearing on behalf of the Respondent Nos. 1 to 4. Heard also Mr. M. Bhuyan, learned Counsel for the Respondent No. 5 and Mr. A.M. Buzarbarua, learned Counsel for the Respondent No. 7. 12. While considering the present writ petition, it is of great significance to note that having noticed the fact that Respondent No. 7 has remained undisturbed in his place of posting, at Lakhimpur, for last more than two decades, this Court raised certain queries and responding thereto. Mr. Patowari, learned Standing Counsel, appearing on behalf of the Respondent Nos. 1 to 4, has produced a copy of notification, dated 31.01.2011, which indicates that Respondent No. 7 has, now, been transferred and posted as, Junior Engineer (Civil), at Dhemaji SR Division, which was erstwhile Sub-Division of the district of North Lakhimpur. Mr. Patowari, learned Standing Counsel, appearing on behalf of the Respondent Nos. 1 to 4, has produced a copy of notification, dated 31.01.2011, which indicates that Respondent No. 7 has, now, been transferred and posted as, Junior Engineer (Civil), at Dhemaji SR Division, which was erstwhile Sub-Division of the district of North Lakhimpur. As regards the question as to why the Respondent No. 7 was never posted out earlier, there is no satisfactory response from the State Respondents except that Junior Engineers are not, ordinarily, transferred from their respective place of posting. To a specific query made by this Court if Junior Engineers, as a matter of policy, hold non-transferable posts, the State Respondents replied in the negative. Thus, the Respondent No. 7, despite existence of a policy of his transfer, just like any other Government employee, on completion of tenure of three years, retained at one and the same place for more than two decades and this dichotomy could not be convincingly explained by the State Respondents. 13. Be that as it may, the question for consideration before this Court is whether the impugned transfer order suffers from any illegality, mala fide non-application of mind and/or contrary to the Government's policy decision. It needs to be noted, in this regard, that according to the State Respondents and also according to the records, which have been made available, approval of the Chief Minister was, indeed, obtained before the transfer was made. The impugned transfer order cannot, therefore, be interfered with on the ground that the said transfer order has been made without approval of the Chief Minister, though such an approval is warranted in terms of the relevant Government policy and guidelines. 14. What, however, remains to be determined and decided is the legality of the transfer order in the facts and circumstances of the present case. While considering this aspect of the matter, it may, once again, be noted that according to the State Respondents' affidavit, the Petitioner has been transferred on the ground of unsatisfactory performance. This statement has been made on affidavit by none other than the Chief Engineer of the department concerned. It is, therefore, clear that if the state Respondents' affidavit does not disclose complete facts, one cannot, but draw the inference that the facts do not exist as alleged by the State Respondents. 15. This statement has been made on affidavit by none other than the Chief Engineer of the department concerned. It is, therefore, clear that if the state Respondents' affidavit does not disclose complete facts, one cannot, but draw the inference that the facts do not exist as alleged by the State Respondents. 15. It needs to be noted, now, that according to the affidavit, which the Respondent No. 3 has sworn, the allegation, which he has made against the Petitioner as regards the Petitioner's unsatisfactory performance, is based on the information received by the Respondent No. 3. As regards the source of in-formation, the State Respondents are vague if not completely silent inasmuch as the affidavit does not clearly disclose if there is any material to show that the Petitioner's transfer was because of his own satisfactory performance. The affidavit, thus, filed resisting the writ petition is vague and does not disclose necessary materials. Perforce the Court has to look into the record and the same has been examined by the Court. What the records reveal is that a letter was sent to the Minister, PWD, Assam, i.e., the Minister of the concerned department, on 02.02.2010, by the Minister of Parliamentary Affairs, Assam, suggesting that the Petitioner be transferred as there are lots of public allegations raised against the Petitioner, because the Petitioner has been found very irregular in attending his duties and this had been delaying implementation of the public schemes. Similar letter was also addressed by the Parliamentary Affairs Minister to the Commissioner & Special Secretary of the Department concerned, namely, PWD, Assam. A letter was also given by the Parliamentary Affairs Minister to the Chief Minister repeating the same allegations and suggesting the transfer of the Petitioner, whereupon the Chief Minister requested the concerned Minister, i.e. the Minister, PWD, to look into the matter. Following what has been indicated above, a note sheet was prepared on record stating to the effect that the present Petitioner was very irregular in attending his duties and it hampered the implementation of public scheme, there are also public allegations against the Petitioner as stated by the Minister, Parliamentary Affairs, and that the Minister, Parliamentary Affairs, has recommended to post out the Petitioner. Based on this letter, further notes were prepared and laid before the concerned Minister, namely, Minister, PWD, who, in turn, sent a note to the Chief Minister of the State, on 31.05.2010, stating to the effect that the Petitioner had not been able to maintain the pace specially under PMGSY schemes and the works are suffering badly. Thus, the proposal for transfer of the Petitioner, in terms of the impugned order, was made. The proposal was accordingly approved on 03.06.2010, by the Chief Minister and the impugned transfer order was issued. 16. Close examination of the record reveals that the transfer order was made on the basis of the allegation made by, and the suggestion received from the Parliamentary Affairs Minister, who was not the Minister concerned for the Public Works Department. Surprisingly, however, though the contents of the letter of the Parliamentary Affairs Minister have been reiterated, there has been at no stage, any query made by the Department concerned, i.e., PWD. There is not even a shred of paper or report or any contemporaneous material indicating that the Petitioner's performance was found to be unsatisfactory. The basis for the impugned transfer order, therefore, remained the said letters of the Parliamentary Affairs Minister. Even the Parliamentary Affairs Minister gave no contemporaneous material to support the allegation and/or fortify the allegations made by him against the Petitioner. While it is the responsibility of every department of the Government to take action against its employee, it also casts a corresponding duty, had every Department of the Government, to protect an employee of the Department if the employee happens to be innocent. The Department concerned, in the present case, could not have, therefore, absolve itself of the responsibility to ascertain the truth or correctness of the allegations made against the Petitioner. No satisfaction, prima facie or otherwise, was recorded by any of the authorities of the department to which the Petitioner belongs. That the Petitioner's transfer was entirely at the behest of the Minister, who was not the Minister concerned with the work of the Petitioner cannot be guided. It is not the suggestion of this Court that on the letter or on the request of a Minister of a Department other than the Department to which a Government employee belongs, such an employee cannot be transferred. It is not the suggestion of this Court that on the letter or on the request of a Minister of a Department other than the Department to which a Government employee belongs, such an employee cannot be transferred. What is, however, curious to note is that no material or no report existed on record to show that the Petitioner's performance was found to be unsatisfactory. Apart from the fact that such accusation against the Petitioner was stigmatic in nature, an order of transfer cannot be passed without application of mind. There was, as the records reveal, non-application of mind by any of the authorities of the Department concerned, i.e., the PWD. Even in the note, which the Minister, PWD, had submitted to the Chief Minister, there was absolutely no indication as to why he had expressed the view that the Petitioner had not been maintained the pace of works in the Division concerned. 17. An order of transfer, which suffers from lack of application of mind, in its entirety, cannot, but be termed as arbitrary and such an order cannot be allowed to stand good on record. 18. Mr. Bhuyan, learned Counsel for the Respondent No. 5, has, referring to the case of Union of India and Ors. v. Janardhan Debnath and Anr. reported in (2004) 4 SCC 245 , contends that a transfer order can be made if an employee is found undesirable at a given place of posting. There can be no two opinions as regards the submission, which Mr. Bhuyan, has made. What is, however, necessary is that a Government employee's career be not left at the whims and fancies of any of his superior officer or of the State. Rule of law abhors arbitrariness. A decision, which is arrived at without applying mind, cannot, but be termed as arbitrary. Even in the case of Janardhan Debnath (supra), which Mr. Bhuyan relies upon, the Court, while laying down that a person can be transferred if he is found to be undesirable at a given place of posting observed: The allegations made against the Respondent are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned Counsel for the Respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the Respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs. 19. In the case of hand, as I have already indicated above that there is not even a prima facie satisfaction arrived at by any one as to the truth or correctness of the allegations, which have been received against the Petitioner, the transfer order must be held to suffer, if I may reiterate, from complete non-application of mind. Such an order being nothing but arbitrary and illegal, must, therefore, be struck down. 20. In the result and for the foregoing reasons, this writ petition succeeds and the impugned order, dated 10.06.2010, is, therefore, set aside and quashed. 21. Before parting with this writ petition, it is, however, made clear that whatever have been observed by this Court in the proceeding paragraphs of this judgment, are observations made on the basis of the materials available on record and this Court shall not be taken to have held that the Petitioner cannot be transferred before he completes the normal tenure of three years as the Executive Engineer in Lakhimpur, even if the situation so warrants. 22. Let the records be handed over to the learned Standing Counsel. Petition allowed.