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2016 DIGILAW 186 (CAL)

Srikanta Saha v. Union of India

2016-02-22

SANJIB BANERJEE

body2016
JUDGMENT : This is a minor matter but the needless truculence with which the matter has been conducted on behalf of the respondents earns the respondents the substantial costs indicated at the end of this order. The challenge in the petition is to an order of transfer of February 2, 2016 which reads thus: “In terms of IG-Cum-CSC/RPF/ER/KKK’s F.O. No. 14/16 dated 01.02.16 and letter No. SC.30/33-E/TR/HWH-I dated 01.02.2016 Sri Srikanta Saha, Sub-Inspector of CI/HWH-I is hereby transferred and posted to CLW/CRJ with immediate effect in the interest of administration.” There is another inter-office note or memorandum of January 15, 2016, which has been relied upon by the petitioner. The relevant document shows that there was a complaint against the petitioner and there was a letter issued by a superior officer on January 14, 2016. The text of the document of January 15, 2016 is follows: “As ordered by the Competent Authority, you are advised to spare SI/Srikanta Saha of CIB/HWH-I immediately to report to IPF/FP for further duty. “Compliance report must be submitted to this office by return dak.” Thus, it is evident that the transfer order of February 2, 2016 was issued pursuant to the dictates of January 15, 2016 and such order of January 15, 2016 was made in connection with a complaint received against the petitioner. It is established without any doubt that a punitive order of transfer has been made qua the petitioner without any disciplinary proceedings being instituted. The petitioner refers to Directive No. 32 dated September 18, 2014 issued by the Railway Protection Force under Rule 28 of the Railway Protection Force Rules, 1987 read with Section 8 of the Railway Protection Force Act, 1957. The relevant directive is in supersession of Standing Order Nos. 102 and 110 and Directive No. 30. The relevant notification permits a person of the petitioner’s rank to remain five years at a particular post. At the foot of the table indicating the desired tenure of service at every posting, the relevant notification sets out the following note: “Note: Aforesaid tenures are prescribed as guidelines. They shall not preclude transfers at any time in exigencies of service or for administrative reasons as envisaged in Rule 90 of RPF Rules, 1987.” It is, thus, evident that there is no inviolable rule that an RPF employee must be posted for the tenure as indicated in the relevant notification without exception. They shall not preclude transfers at any time in exigencies of service or for administrative reasons as envisaged in Rule 90 of RPF Rules, 1987.” It is, thus, evident that there is no inviolable rule that an RPF employee must be posted for the tenure as indicated in the relevant notification without exception. The notification envisages the premature transfer of an RPF employee, subject to the exigencies of service or for administrative reasons. When there are no guidelines as to transfer, an order of transfer is presumed to be for the administrative exigencies of the employer and courts scarcely interfere therewith unless mala fides are established. When there are guidelines pertaining to the tenure of a posting, a premature posting must indicate some modicum for reasons in addition to mere lip service to jargons like “exigencies of service” or “administrative reasons”. When an exception to a rule is carved out, the employee is entitled to know what situation prompted the exception or why that particular employee has been singled out for the exception. Once a modicum of reasons is indicated, the exercise of judicial review over such reasons would be limited; but when no reasons are indicated to effect a premature transfer, the court will look at the surrounding circumstances. In the present case, it is evident that without instituting any disciplinary proceedings against the petitioner, a punitive order of transfer has been made at the dictates of a superior, following a complaint received in respect of the petitioner. The respondent authorities refer to previous orders of this Court passed in apparently similar circumstances. The underlying submission is that since this Bench is bound by such previous pronouncements, no misadventure should be attempted. Such submission and the obvious insinuation are dealt with the scorn that they deserve. In WP 27686 (W) of 2014 (Rakesh Mohan v. Union of India) decided on November 19, 2014, an order of transfer of September 11, 2014 was challenged as it did not conform to the then Standing Order No. 102. The court noticed that there was a footnote below the table which provided for premature transfer on grounds of exigencies of service or interest of administration. The court noticed that there was a footnote below the table which provided for premature transfer on grounds of exigencies of service or interest of administration. The court observed that if a transfer order “smacks of flavour of punishment, the same cannot be said to be valid” and recorded the conclusion of the court that the order of transfer impugned therein “does not impress this Court that the same is punitive in nature …” The court, however, did not record any other aspect of the matter and maintained the order of transfer. In the resultant appeal, MAT 2228 of 2014 with CAN 130 of 2015, decided on February 25, 2014, the appellate court noticed the submission of the RPF that “the appellant abandoned his place of posting without any information to the Administration” and that departmental action had been instituted against the employee in that case by issuing a charge-sheet. The appellate order turned on the fact that departmental proceedings had already been instituted against the employee and did not dwell on the perceived illegality of the order impugned in such circumstances. In the other order cited, rendered in WP 9148 (W) of 2013 (Juel Minj v. Union of India) on July 10, 2013, an order of transfer was again challenged which was said to be contrary to Standing Order No. 102. In that case, voluminous records and papers were recorded to have been produced in court showing serious allegations against the petitioner therein, “involving corruption and other acts of moral turpitude.” It was in such circumstances that the court refused to go into the challenge without further discussing the law applicable on the subject. In the resultant appeal, FMA 3007 of 2013 with CAN 8899 of 2013, decided on September 20, 2013, the appellate court recorded that the petitioner was suspended and a charge-sheet had been issued to him. The appellate court expressed surprise that in such circumstances, the petitioner “wants to remain at the same place, which cannot be allowed for administrative reason.” No law was discussed apart from a reference to Rule 93.4 of the RPF Rules, 1987 and the fact that the disciplinary proceedings against the appellant therein had already been instituted. The situation in this case is not governed by either matter. The situation in this case is not governed by either matter. Apart from the fact that mere orders have been shown which do not disclose any law and may not have a binding impact under the doctrine of precedents, it is evident that the appellate orders in both cases were made at a stage when disciplinary proceedings had been instituted against the writ petitioner and it was found to be better for the administration of justice that the writ petitioner not remain at the same post. In the first of the judgments cited, the court also found that the order of transfer was not made as a measure of punishment. In the second of the matters, the court noticed the serious charges against the petitioner and refused to entertain the petition on merits. A word must be said about the doctrine of precedents before discussing the law on the present subject. A judgment is to be treated as a precedent for what it actually decides and it is an authority only for such purpose and not what it is deemed to have decided or what it may have overlooked or incidentally dealt with. In view of the vehemence on the part of the RPF authorities to overstate the doctrine of precedents, it may be profitable to consider the judgments reported at (1901) AC 495 (Quinn v. Leathem) and LR (1944) KB 718 (Young v. Bristol Aeroplane Company Limited). Both the accepted authorities on the doctrine of precedents have received the approval of Constitution Benches in this country, including the full complement of the then Supreme Court in the famous judgment in Bengal Immunity Co. Ltd v. State of Bihar reported at (1955) 2 SCR 603 . As far as the order of transfer is concerned, it need not be repeated that in judicial review the court scarcely sits in judgment over the administrative reasons that may be furnished in a matter of any routine transfer. However, when there are guidelines which are laid down providing for a particular tenure and the guidelines are made subject to exceptions, the existence of an exceptional situation has, prima facie, to be asserted before the order of transfer can be accepted. It is elementary that the exigencies of the circumstances faced by an employer or the immediate administrative requirements of the employer may prompt an exceptional transfer to be made. It is elementary that the exigencies of the circumstances faced by an employer or the immediate administrative requirements of the employer may prompt an exceptional transfer to be made. But a line or a sentence by way of explanation should always be furnished in such exceptional cases rather than paying mere lip service to the grounds of exception indicated in the guidelines without an attempt to satisfy such grounds. Such a course of action would also be a safeguard against arbitrariness and whimsical transfers. In the present case, the order of transfer of February 2, 2016 does not indicate any reasons for it to be inferred that the exigencies of any situation or other administrative reasons exist to justify the same. Indeed, the previous document of January 15, 2016 shows that the order of transfer is upon the dictates of a superior following the receipt of a complaint. It is the admitted position that no disciplinary action has been instituted against the petitioner. It is, thus, evident that a purely punitive order of transfer has been passed against the petitioner, which cannot be sustained. For the reasons as indicated, WP 2998 (W) of 2016 is allowed by setting aside the impugned order of transfer of February 2, 2016. However, this order will not prevent the respondents from initiating any departmental action against the petitioner in accordance with law and, thereupon, passing an order of transfer for administrative reasons upon a modicum of such reasons being indicated. Since it was obvious on the basis of the material disclosed in the petition that this was a punitive order of transfer but much court time has been wasted, the petitioner will be entitled to costs assessed at 1000 GM. In addition, the RPF will pay costs assessed at 1000 GM to the West Bengal State Legal Services Authority within a fortnight from date.