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2016 DIGILAW 409 (CAL)

Union of India v. Srikanta Saha

2016-05-11

NISHITA MHATRE, RAKESH TIWARI

body2016
ORDER : Nishita Mhatre, J. The Eastern Railways and its officers have challenged the judgment of the learned Single Judge dated 22nd February, 2016 holding the transfer of the respondent to be punitive in nature and that it had been effected without following the due process of law. Costs assessed at 1000 GM have been directed to be paid by the Railways to the West Bengal State Legal Services Authority. 2. The respondent was transferred on 2nd February, 2016 with immediate effect in the interest of administration. A memorandum dated 15th January, 2016 which is in the nature of inter office note indicated that there was a complaint against the respondent. A superior officer by his letter on the previous day had issued an order at the command of the competent authority to spare the respondent immediately for reporting at another place for duty. Aggrieved by this direction transferring him to another place, the respondent challenged this transfer order by filing W.P. 2998(W) of 2016. 3. It was the contention of the respondent in the writ petition that the respondent was entitled to continue at least for five years. However, transfers due to the exigencies of service or for administrative reasons envisaged in Rule 90 of the Railway Protection Force Rules, 1987 (hereinafter referred to as "the RPF Rules, 1987") were not precluded. It was the contention of the respondent that he had been transferred because of the complaint pending against him and not for "exigencies of service" or "administrative reasons". 4. The learned Single Judge accepted the contention of the respondent. By a note that Directive No.32 issued on 18th September, 2014 by the RPF under Rule 28 of the RPF Rules, 1987 read with Section 8 of the Railway Protection Force Act, 1957, the learned Single Judge came to conclusion that the respondent who was Sub-Inspector in the RPF was entitled to continue in his place of posting for 5 years unless there were exceptional circumstances. He was also of the view that instead of merely mentioning the phrases "exigencies of service" or "administrative reasons", when an exception to the Rule is carved out the employee is entitled to know the situation which prompted the exception or why he had been singled out for the exception. The Court felt that once a modicum of reasons was indicated, the exercise of judicial review over such reasons would be limited. The Court felt that once a modicum of reasons was indicated, the exercise of judicial review over such reasons would be limited. It was observed further that when no reasons were indicated to effect a premature transfer, the Court would have to look into the surrounding circumstances, since indisputably a complaint was pending against the respondent and an enquiry had not been instituted. It is in these circumstances that the learned Single Judge found that Rule 90 of the RPF Rules, 1987 had no application to the facts in the present case. 5. Mr. Partha Sarathi Bose, the learned Counsel appearing for the appellants, has taken exception to the observations of the learned Single Judge in the impugned judgment. He submitted that the learned Single Judge was prompted to act against the RPF by awarding costs only because the RPF chose to defend its action. The learned Counsel pointed out that the learned Single Judge has deviated from the judgments of two Division Benches of this Court which dealt with transfers under the RPF which were governed by Rule 90 of the RPF Rules, 1987. He then submitted that the action of the railways to transfer the respondent was in terms of Rule 90 and not Rule 135 of the RPF Rules, 1987. He drew our contention to Rule 135 of the RPF Rules, 1987 which provides that public interest is the guiding factor for deciding whether to suspend an employee, prior to initiating a disciplinary action. It is open for the RPF to consider at that stage whether the purpose would be served if the employee was transferred from his post or sanctioned leave instead of suspending him. 6. It is apparent from the record that it was because of the complaint against the respondent that he had been transferred from his place of work before the tenure of 5 years was completed. It is also evident that no disciplinary enquiry was initiated when the transfer order was issued. Mr. Bose urged that if there was contemporaneous material recorded by the organization indicating why the transfer was being effected, the Court ought not to have interfered with the same. It does not appear that this material was ever brought to the notice of the learned Single Judge nor has it been brought for our perusal. 7. Mr. Bose urged that if there was contemporaneous material recorded by the organization indicating why the transfer was being effected, the Court ought not to have interfered with the same. It does not appear that this material was ever brought to the notice of the learned Single Judge nor has it been brought for our perusal. 7. The provisions of Rule 90 of the RPF Rules, 1987 empower the RPF to transfer members of the RPF from one post to another on the basis of "exigencies of service" or "for administrative reasons" or to avoid "local entanglements" or "for any other consideration". It is difficult to ascertain what is meant by "local entanglements" when that phrase is not defined. The phrase "for any other consideration" also leaves untrammelled power with the RPF to transfer a member of the force from one place to the other. However, it is obvious that the general power of transfer detailed in Rule 90 of the RPF Rules, 1987 cannot be exercised when the transfer has been made as a punitive measure. 8. We do not see any reason to differ with the view taken by the learned Single Judge. The submission of Mr. Bose that the learned Single Judge has not agreed to consider the judgments of the Division Bench is unsustainable. The learned Single Judge has distinguished those judgments from the facts in the present case and has concluded that they were not applicable at all. 9. Mr. Bose has cited before us the judgment in the case of Union of India & Ors v. Janardhan Debanath & Anr reported in AIR 2004 SC 1632 in which the Supreme Court has observed that transfers were not to be ordered except when advisable in the interest of public service. The Court observed that unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of service concerned. This judgment, in our opinion, lays down the general principles of how transfers should be effected. This judgment, in our opinion, lays down the general principles of how transfers should be effected. However, there is a rider that if the transfer is mala fide or in violation of any statute, the Court can interfere with such transfers. Here, in the present case, it has been established that the transfer was punitive in nature and was contrary to the provisions of the RPF Rules and therefore, in our opinion, the learned Single Judge has rightly struck it down. 10. The other judgment referred to by Mr. Bose is Major General J.K. Bansal v. Union of India & Others reported in AIR 2005 SC 3341 where the Supreme Court after considering its earlier judgment has held that the scope of interference by the Court with orders passed against the members of the armed forces is limited and narrow, and therefore the Court should be slow in interfering with an order of transfer of such persons and unless an exceptional case has been made out. This judgment again has no application to the present case as the transfer is contrary to the RPF Rules. 11. The next judgment referred to by Mr. Bose is East Coast Railway & Anr v. Mahadev Appa Rao & Ors reported in AIR 2010 SC 2794 in support of his contention that if a file is contemporaneously maintained indicating the reasons for the transfer, the transfer made in exercise of administrative/executive or statutory powers cannot be interfered with by the Court. This judgment again is of no relevance as we have not been shown any contemporaneous record. In fact, the record which has been brought to our notice is in the nature of a note dated 15th January, 2016 indicating that there was a complaint against the respondent and a superior officer had issued a letter to that effect on 14th January, 2016. Therefore, we are in agreement with the view of the learned Single Judge that it was established without doubt that the transfer was punitive and that it was sought to be effected without any disciplinary proceeding being instituted. 12. We have no hesitation in upholding the judgment of the learned Single Judge. The costs assessed at 1000 GM also in our opinion do not require to be interfered with. 12. We have no hesitation in upholding the judgment of the learned Single Judge. The costs assessed at 1000 GM also in our opinion do not require to be interfered with. Imposition of costs is a discretionary order and unless it is shown to be made mala fide there is no need for the Division Bench to interfere with the order. 13. The appeal is dismissed. The application for stay being CAN 2531 of 2016 is also dismissed as infructuous. 14. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities. Later: Mr. Bose, the learned Counsel appearing for the Appellants, seeks a stay of the order. We are not inclined to grant such a stay in view of our observations in our judgment.