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2017 DIGILAW 390 (ORI)

Abdulrab I. Soudagar v. Union of India

2017-04-11

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : VINEET SARAN, J. 1. Heard Dr. Ashok Kumar Mohapatra, learned Senior Advocate appearing on behalf of the appellant and Sri Bimbisar Dash, learned Central Government Counsel for the respondents. 2. The appellant is a Constable in the Central Industrial Security Force (CISF). Being aggrieved by the order of his transfer dated 14.06.2016 from CISF Unit, Damanjodi, Koraput, Odisha to CISF Unit, BLSM, Bhawanathpur, the appellant filed writ petition bearing W.P.(C). No.10602 of 2016, which was dismissed by order dated 23.06.2016 holding that the transfer is an incidence of service and in absence of any mala fide exercise of power, the writ Court would not interfere with the order of transfer. Challenging the same, this writ appeal has been filed on 29.06.2016 and on 01.07.2016 an interim order staying the order of transfer dated 14.06.2016 was granted, which was extended from time to time. 3. A counter affidavit has been filed by the respondents, copy of which was served on learned counsel for the appellant on 04.10.2016 and despite time having been granted, no rejoinder affidavit has been filed. 4. Submission of learned counsel for the appellant is that the appellant was posted in CISF Unit, Damanjodi, Koraput, Odisha in April, 2015 and after a little over one year, he has been transferred to a place in Jharkhand and that too without being given the benefit of joining time. Thus, it is contended by the learned counsel for the appellant that such act of the respondents not permitting the appellant to avail joining time would amount to illegal and inhumane action, which would in effect amount to mala fide action of the respondents. 5. During course of argument, Dr. Mohapatra, learned Senior Advocate appearing for the appellant submitted that on 7th October, 2015 a punishment order of ‘censure’ was awarded, which is under challenge in W.P.(C) No.10602 of 2016, and during pendency of the writ petition, impugned order of transfer was passed. It is, thus submitted on behalf of the appellant that the transfer order has been passed with mala fide and illegal intention, which deserves to be quashed. In support of his submission, reliance has been placed upon the decisions in the case of Somesh Tiwari Vs. Union of India and others, AIR 2009 SC 1399 and Manasi Mishra Vs. Union of India & Ors., 2013 (II) ILR-CUT-377 6. In support of his submission, reliance has been placed upon the decisions in the case of Somesh Tiwari Vs. Union of India and others, AIR 2009 SC 1399 and Manasi Mishra Vs. Union of India & Ors., 2013 (II) ILR-CUT-377 6. Per contra, Sri Dash, learned Central Government Counsel appearing for the respondents has submitted that the appellant being in security service, is liable to be transferred to any place within India or even outside, depending upon the operational exigencies and requirements at different places. It is also submitted that the place where the appellant was posted, there have been some mishaps due to security lapses. Specific averments have been made in the counter affidavit with regard to doubtful activities of the appellant in connivance with one ex-CISF Constable, namely, Md. Jaleel, who was residing in the CISF campus on the strength of interim order of this Court, even after his dismissal from service, to which no reply has been filed by the appellant. It is submitted that there was a special report that the appellant, along with said ex-Constable was creating indiscipline in the campus and there was security risk of leakage of information about movement of the security personnel through said ex-Constable because of his close association with the appellant. Such special report has been filed along with the counter affidavit, to which also no reply has been filed by the appellant. 7. Admittedly, the appellant is in the disciplined force and he has to abide by the order passed by the superior officers. The reason for the transfer is not to be disclosed to the employee. However, in the counter affidavit, the respondents have explained the exigency and requirement of the appellant to be transferred, regarding which we are satisfied. No doubt, some joining time could have been given; but that by itself would not be sufficient to mean that the order of transfer is bad or had been passed with mala fide intention. 8. It is further argued on behalf of the appellant that the order of transfer has been passed by the authority, who was not competent to pass such order and he has placed reliance on Rule-74 of the CISF Rules, 2001 and also certain circulars. 8. It is further argued on behalf of the appellant that the order of transfer has been passed by the authority, who was not competent to pass such order and he has placed reliance on Rule-74 of the CISF Rules, 2001 and also certain circulars. However, learned counsel for the respondents raised objection with regard to reliance placed on Rule-74 and circulars issued, as in such regard no such specific ground has been taken, either in the writ petition or in the writ appeal. On being questioned, learned counsel for the appellant has pointed out certain grounds, more particularly averments made in paragraph-34 of the writ appeal, which is quoted hereunder: “34. That, the Appellant has already completed the HARD AREAS in North East and hypersensitive unit of LWE (Left Wing Extremism) Areaa, and therefore, should not be posted in Bhawanathpur, which also comes under LWE Are. The Appellant has been transferred (sic) beyond the after 31st March, which is contrary to the CIRCULAR and as a punishment.” However, in our opinion, the above ground is not specific with regard to the point argued by the appellant. We are testing the correctness of the order passed by learned Single Judge and when such a ground was not raised before the learned Single Judge, the same cannot be entertained in the writ appeal. Further, the grounds to be argued, are required to be specifically pleaded, either in the writ petition or in the writ appeal, so that respondents could also know as to on what grounds the challenge has been made. In absence of the same, we are not inclined to entertain such submission of learned counsel for the appellant, as no specific pleadings are there in that regard. 9. In the case of Somesh Tiwari (supra), the appellant was an Officer of Indian Revenue Service. While continuing as Deputy Commissioner of Central Excise, Bhopal, the respondents therein, who were apprehending disciplinary action as well as criminal proceedings to be initiated by the appellant, made anonymous complaint against him. Although the complaint made against the appellant therein was found to be false, recommendation was made to transfer the appellant on administrative exigency. Thus, the appellant was transferred to Shillong. Such an action was deprecated by the Hon’ble Supreme Court. In the case law of Manasi Mishra (supra), this Court has only reiterated the principles decided in Somesh Tiwari’s case (supra). Thus, the appellant was transferred to Shillong. Such an action was deprecated by the Hon’ble Supreme Court. In the case law of Manasi Mishra (supra), this Court has only reiterated the principles decided in Somesh Tiwari’s case (supra). The facts involved in the aforesaid cases are not akin to the present case. Hence, the ratio laid down in the said decisions would not be applicable to the case at hand. 10. ‘Mala fide’ alleged must be specifically pleaded and proved by the person who makes it. The impugned order of transfer does not appear to be mala fide on the face of it. The Court cannot read into the intention of the person alleging mala fide, to give an interpretation in absence of specific pleading to that effect. The CISF personnel should always be alert and treated to be on duty when on deployment as situation may require for their movement/transfer for operational exigency. On perusal of record, we find no specific allegation has been made, which would constitute mala fide against the appellant. 11. Considering the averments made in the counter affidavit, which are to be taken as true, as no rejoinder affidavit has been filed even though time was granted, we are of the opinion that the transfer order in case of the petitioner has been passed in accordance with law and for sufficient reasons. Thus, no interference is called for with the order passed by the writ Court, which is perfectly justified. Accordingly, the writ appeal is dismissed.