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2017 DIGILAW 539 (KER)

S. SURESH v. UNION OF INDIA

2017-03-20

P.V.ASHA

body2017
JUDGMENT : The petitioner, who is a Constable in the Railway Protection Force is challenging his transfer ordered as per Ext.P1 on 8.8.2016 from Chengannur to Tiruchirapilly. 2. The petitioner joined Railway Protection Special Force on 12.09.2005. His first posting was in West Bengal. In 2008 he was transferred to Thirichirappally. In the year 2013 he was transferred from RPSF to RPF, on the basis of his request and he was posted to Chennai. While working there, he requested for a transfer to Thiruvananthapuram division pointing out that he has to look after his mentally retarded sister aged 26, having 62% permanent disability. Based on his request, he was granted out of turn transfer to Thiruvananthapuram division and he joined there on 6.8.2015. According to the petitioner, the officials working in Thiruvananthapuram division were not happy with his out of turn transfer and they were cooking up various allegations as a result of which 2 FIRs were lodged against him, in the Railway Police Station, Thiruvananthapuram on 31.08.2015 and 03.09.2015. Consequently, he had to remain in judicial custody for the period from 1.9.2015 to 26.10.2015. A memo of charge was issued on 29.09.2015 covering the very same allegations as in the criminal complaint and the respondents commenced enquiry even by conducting the first sitting when the petitioner was in judicial custody. In the meanwhile, he was shifted to Chengannur and he was directed to sign the register at the Headquarters at Kottayam twice daily on all days including holidays. In the meanwhile, the petitioner was placed under suspension under Section 9(1)(i) of RPF Act, 1957 as per Ext.P8 order dated 1.09.2015, consequent to the investigation now pending against the petitioner. The petitioner submits that he challenged the departmental proceedings in W.P(c).No.36523 of 2015, in which this court has stayed the disciplinary proceedings. The petitioner filed W.P(c).No.9323 of 2016 challenging the suspension, since the respondents were not taking any action to review the order. The writ petition was disposed of directing the respondents to consider the request for review as per judgment dated 3.6.2016. Thereafter, the 6th respondent issued Ext.P10 order dated 28.06.2016 revoking the suspension and he was posted at Chengannur. But immediately he was relieved to Thiruchirappally in order to undergo belly reduction course. When he joined back after the training, the petitioner was relieved to Vijayawada on 8.8.2016 for bundobust duty in connection with Krishna Pushkaram- 2016. Thereafter, the 6th respondent issued Ext.P10 order dated 28.06.2016 revoking the suspension and he was posted at Chengannur. But immediately he was relieved to Thiruchirappally in order to undergo belly reduction course. When he joined back after the training, the petitioner was relieved to Vijayawada on 8.8.2016 for bundobust duty in connection with Krishna Pushkaram- 2016. Petitioner, submits that bundobust duty was over on 26.8.2016 and he arrived at Chengannur on 26.8.2016. But since he was sick, he was admitted in the railway hospital at Thiruvananthapuram from where he was referred to Medical College Hospital, Thiruvananthapuram. According to the petitioner, when he contacted the control room in order to report about the sickness and his requirement of medical leave, he was informed that he was already relieved from Chengannur RPF outpost by a GD entry. It was under the above circumstance that he came to know about Ext.P1 order of transfer which was passed on 8.8.2016 subsequent to which he was sent for duty to Vijayawada. This writ petition was filed at that stage pointing out that the order of transfer is contrary to the statutory rules; his mentally retarded sister was admitted in the Vocational Rehabilitation Centre for Handicapped, Thiruvananthapuram and therefore his presence was necessary in Thiruvananthapuram division and that transfer was punitive. 3. According to the petitioner, the order of transfer is actuated by malafides. Apart from that, it is in violation of Rules 93-93.10, Railway Protection Force Rules. According to the petitioner, no member of the Force shall be transferred from one station before the normal prescribed tenure as per Rule 93.2 of the RPF Rules. As per Rule 93.1 it is for the Director General to prescribe a tenure of posting for various ranks in various places. It is further stated that as per Ext.P3 order dated 31.08.2015 of the Railway Board, transfer of RPF/RPSF personnel will be in terms of Railway Board Standing Order No.102 and 110 issued by DG/RPF, according to which, total stay at a stretch at a particular station should not be more than 10 years. As per the Railway Standing order No.102 (Ext.P4) referred to in Ext.P3 order, the tenure prescribed by the Director General, for Constables is 5 years. As per paragraph 7 of Ext.P4, premature transfer is permissible only in extraordinary circumstances. As per the Railway Standing order No.102 (Ext.P4) referred to in Ext.P3 order, the tenure prescribed by the Director General, for Constables is 5 years. As per paragraph 7 of Ext.P4, premature transfer is permissible only in extraordinary circumstances. It is therefore contended that the petitioner's transfer at a time when he had not completed even one year, from Chengannur to Tiruchirappally was contrary to the statutory provisions, particularly, Rule 93.2 of the Rilway Protection Force Rules (‘RPF Rules’ for short). It is his further contention that if at all the transfer was necessary under extraordinary circumstances, such transfer orders could have been issued only by the senior DSC/DSC who has control over the post in their respective divisions. It is therefore contended that a transfer from one division to another could not have been made under para.7 of Ext.P4 and, at any rate, detailed reasons should have been recorded in such transfers. According to the petitioner, there is no extraordinary circumstance except the fact that the departmental proceedings were stayed by this court. It is stated that final reports were already filed in the criminal case against him and it is only to prevent the petitioner from effectively defending the case that he has been transferred. It is his further case that transfers in terms of Ext.P5 can be made only on recommendations of the Board mentioned therein and the Board has to adopt the criteria mentioned in Ext.P5. But in the case of the petitioner the Board has not considered his case, at any rate, on the basis of any relevant material. Therefore, it is stated that there is no reason to invoke Rule 90A contrary to Rules 92 to 93.10. The petitioner also submits that his transfer as per Ext.P1 is against a higher post of Headconstable, which is not permissible under Rules. 4. The 6th respondent has filed a counter affidavit raising the following contentions. There is an alternate statutory remedy available for the petitioner against order of transfer under Rule 109 of the RPF Rules. When a statutory remedy is available the writ petition is not maintainable in law. It is their further case that the petitioner is not entitled to any equitable relief from this court, since he has committed heinous criminal offences unbecoming of a member of the Armed Force of the Union. When a statutory remedy is available the writ petition is not maintainable in law. It is their further case that the petitioner is not entitled to any equitable relief from this court, since he has committed heinous criminal offences unbecoming of a member of the Armed Force of the Union. He has stalled further proceedings in the departmental enquiry against him under the guise of criminal case pending against him, on the strength of orders of stay passed by this court. It is further stated that the petitioner demanded illegal gratification from a railway passenger on 29.08.2015 while performing his duties at the second entry of the railway station and the passenger lodged a complaint before the Railway Police, Thiruvananthapuram Central, based on which crime no.1195 of 2015 was registered against him for an offence punishable under Section 392 of the I.P.C. Another crime No.1204 of 2015 was registered for the same offence on the basis of another complaint lodged by another railway passenger, consequent to which the petitioner was arrested and detained in police and judicial custody. He was relieved from judicial custody after bail was granted to him. Exts.R-6(1) and R-6(2) charge sheets dated 29.02.2016 were filed before the court of Chief Judicial Magistrate, Thiruvananthapuram. It is further stated that the petitioner is also an accused in Crime No.23/16 of the Cyber Crime Police Station, for committing offences punishable under Section 354(d) IPC r/w Section 67 of Information Technology Act for outraging the modesty of a female child on 14.10.2016; he misbehaved with a senior section Engineer of the Permanent Way, Kollam of the Works Branch on 4.10.2016 for which disciplinary action is already initiated. Therefore, it is stated that the petitioner behaved in an indisciplined manner, unbecoming of an uniformed member of the Armed Force of the Union. Thus according to the respondents the petitioner was transferred by the 4th respondent, the Chief Security Commissioner on 5.8.2016 on administrative grounds under Rule 90 of the RPF Rules posting him in a higher vacancy of Head Constable. According to the respondents, the petitioner cannot be allowed to take advantage of his own wrong after lowering the image and reputation of the force. According to the respondents, the petitioner cannot be allowed to take advantage of his own wrong after lowering the image and reputation of the force. It is stated that Rule 90 permits the transfer of members of Railway from one place to any other place in India in the exigencies of service or for administrative reasons or to avoid local entanglements of such members or for any other consideration and, therefore, Ext.P1 order is perfectly legal. According to them, the orders Exts.P4 and P5 relied on by the petitioner are not applicable to the petitioner's transfer and those orders are only to be read in continuation with Rule 90 of the Rules. According to them, the petitioner was sent to Vijayawada division in connection with Krishna Pushkaram based on instructions issued by the office of the 4th respondent and he was informed about the transfer after he returned from Vijayawada. It is further stated that since the petitioner went away from the office without accepting the order of transfer that was also an act of indiscipline and insubordination which requires to be punished. 5. I heard Sri. Govinda Swamy, the learned counsel appearing for the petitioner and Sri. R.C. Dias, the learned Standing Counsel for the respondents. 6. The learned Standing Counsel relied on the Division Bench decision of this court in Rajan v. Director General of Police [ 1999 (2) KLT 673 ] pointing out that no interference is called for in a case of transfer of a member of a disciplined Force. The learned counsel appearing for the respondents relied on the judgment of the Apex court in Ramadhar Pandey v. State of U.P [(1993) SCC 918] and Somesh Tiwari v. Union of India [ AIR 2009 SC 1399 ]. 7. The transfer of the members of Railway Protection Force are governed by statutory rules viz. Railway Protection Force Rules 1987 ('the Rules' for short), which are issued in exercise of powers under Section 21 of the Railway Protection Act, 1957 and Rules 90 to 93 in Chapter 7 of the Rules, 1987. As per Rule 89.2, constables come under the purview of 'enrolled members'. Rule 90 provides for transfer of members of the Force to any place in India in exigency of service or for administrative reasons or to avoid local entanglements of such members or for any other consideration. 8. As per Rule 89.2, constables come under the purview of 'enrolled members'. Rule 90 provides for transfer of members of the Force to any place in India in exigency of service or for administrative reasons or to avoid local entanglements of such members or for any other consideration. 8. Rule 91 relates to inter zonal transfer. As per Rule 91.2, all inter zonal railway transfers of the enrolled members of the Force shall be ordered by the Chief Security Commissioner concerned after obtaining the concurrence of the Director General. Rule 92 deals with periodical transfers. As per Rule 92.2 transfer of enrolled members of the Force may be ordered by the Chief Security Commissioner concerned and other officers specified in Schedule II. As per Rule 93.1 it is for the Director General to prescribe a tenure for posting for the members of the Force under him, in the interest of continuity of command, discipline and accountability. Under Rule 93.2, a member of the Force shall not ordinarily be transferred from one station to another unless he has completed the normal tenure prescribed in that station and he shall not be allowed to remain at that station for more than one year thereafter without the specific approval of the Chief Security Commissioner concerned in respect of enrolled members of the Force and of the Director General in respect of superior officers. Under Rule 93.3, no one shall ordinarily be so posted, to his home town falls within 100 km of railhead of his posting nor to a place where he holds or acquires immovable property nor he be posted back in the same capacity unless it is considered essential in public interest. Under Rule 93.4, members of the Force who have been transferred out of a particular place or division on complaint of corruption or misconduct shall not be posted back to that post or place or division even if they so requested. Under Rule 93.5, members of the Force who have got adverse entries and enjoin poor reputation shall not be posted to sensitive posts till they get good entries for 3 consecutive years. Under Rule 93.5, members of the Force who have got adverse entries and enjoin poor reputation shall not be posted to sensitive posts till they get good entries for 3 consecutive years. Under Rule 93.9, any member of the Force facing departmental proceedings and who is due for periodical transfer, on completion of normal tenure may not ordinarily be transferred unless such transfer is in public interest or where such transfer is in the interest of expeditious finalisation of disciplinary proceedings. The respondents rely on Rule 90, which provides for transfer of members of the Force in the exigencies of service or for administrative reasons or to avoid local entanglements of such members. The contentions in the counter affidavit would reveal that the petitioner has been subjected to transfer, since he has ruined the image of the Railway Protection Force and he acted in a highly indisciplined manner unbecoming a member of the Force, on the basis of the criminal cases registered against him and because the disciplinary proceedings initiated against him are stalled on the basis of an interim order passed by this court at his instance. According to the respondents, he has tarnished the image of the department and has acted in a way unbecoming of member of the Force on account of the alleged activities. 9. The transfer of the petitioner who is facing departmental action as well as trial in criminal proceedings is in violation of Rule 93.9 which prohibits transfer of any member of the Force who are facing the departmental proceedings. Rule 93.9 permits transfer only for expeditious finalisation of disciplinary proceedings or in public interest. From the counter affidavit it would appear that the transfer is ordered for stalling the departmental action, because the petitioner challenged the departmental proceedings filing a writ petition and this court stayed those proceedings, apart from the crimes registered against him. On the basis of the crime registered against the petitioner final reports are already filed in court in both the cases. The petitioner was placed under suspension. Thereafter, the respondents revoked the suspension on their own and reinstated the petitioner. The order of transfer is issued thereafter. ‘Until and unless those allegations are found proved in either of the proceedings, the petitioner is not liable to be doubted to have tarnished the image or has acted in a manner unbecoming of a member of the Force. Thereafter, the respondents revoked the suspension on their own and reinstated the petitioner. The order of transfer is issued thereafter. ‘Until and unless those allegations are found proved in either of the proceedings, the petitioner is not liable to be doubted to have tarnished the image or has acted in a manner unbecoming of a member of the Force. When the criminal case is registered at Thiruvananthapuram, the transfer of the petitioner would definitely affect the defence of the petitioner in the criminal cases. 10. It is pointed out that FIRs were registered on 31.08.2015 and 3.09.2015 and the petitioner who was placed under suspension on 1.9.2015 was reinstated on 28.6.2016. In the order Ext.P1 no reason is stated while transferring the petitioner. The petitioner joined Trivandrum division on the basis of his request only on 06.08.2015, on transfer from Chennai division. His transfer is effected as per Ext.P1 prematurely. As against the tenure posting for a period of 5 years as per Ext.P3 order issued by the Railway Board, the transfer of RPF personnel shall be in terms of standing orders 102 and 110 issued by the Director General/RPF and total staying at a stretch at a particular station shall not be more than 10 years and total cumulative stay in broken spell should not be more than 15 years. As per standing order No.102 (Ext.P4) the tenure of other enrolled members of RPF is 5 years. It is true that under standing order 102, the note provides that tenure of a posting indicated therein is in the nature of guidelines and does not preclude the administration from transferring the members of the Force at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged under Rule 90 of RPF Rules. The prohibition under Ext.P4 is for transfers of enrolled members of the Force undergoing major punishment or facing departmental proceedings/trial as part of criminal proceedings, they shall not be considered for inter zonal transfer even on request. However, it provides that they can be transferred on administrative grounds. But there is no provisions to transfer a person on the ground that criminal proceedings or disciplinary proceedings are pending against him. On the other hand, the standing orders as well as the RPF Rules provide that persons facing criminal proceedings/departmental proceedings shall not be ordinarily transferred. 11. However, it provides that they can be transferred on administrative grounds. But there is no provisions to transfer a person on the ground that criminal proceedings or disciplinary proceedings are pending against him. On the other hand, the standing orders as well as the RPF Rules provide that persons facing criminal proceedings/departmental proceedings shall not be ordinarily transferred. 11. The contention of the respondents that there is an alternate remedy of appeal available for the petitioner as against the transfer, cannot be accepted as long as those forums will not be considered the question of interim order when the petitioner is under threat of transfer order. 12. Rule 90 though provides for the transfers, in exigencies of service or for an administrative reason, the power to transfer is further subject to the provisions contained in Rules 91.2 to 93.10. When premature transfer was ordered, the reason for such transfer should have been disclosed. Apart from violation of the provisions contained in Rules 93.9 and 93.2, the order of transfer is vitiated by malice in law. 13. In the judgment in Somesh Tiwari v. Union of India [ AIR 2009 S.C 1399 ], the Apex Court was considering the case of transfer of an employee who was apprehending disciplinary as well as criminal proceedings on the basis of the reassessment of the files undertaken by him. The observations in paragraph 20 of the judgment read as follows: "20. xxxxxxx It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When and order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." In the case considered by the Apex Court the transfer was not governed by the statutory rules. In normal circumstances this court will not be justified in interfering with the orders of transfer except when it is vitiated by malafides or it is contrary to statutory rules. However, the transfer of the members of the Railway Protection Force are governed by statutory rules. Ext.P1 order is seen passed in violation of the provisions in RPF Rules. In normal circumstances this court will not be justified in interfering with the orders of transfer except when it is vitiated by malafides or it is contrary to statutory rules. However, the transfer of the members of the Railway Protection Force are governed by statutory rules. Ext.P1 order is seen passed in violation of the provisions in RPF Rules. A premature transfer of the petitioner within one year of his request for transfer to Thiruvananthapuram division, without stating any reason for transfer when criminal and departmental proceedings are pending against him, is punitive. 14. The contentions in the counter affidavit justifying the transfer would show that the reasons for his premature transfer as well as the criminal and disciplinary proceedings are the same. After subjecting the petitioner to criminal proceedings as well as the departmental proceedings, the respondents ought not have transferred the petitioner to Trichi, at a time when the charge sheets have already been filed before the criminal court, instead of disabling him from effectively defending himself in the criminal cases, by the transfer. 15. Similarly, the petitioner's transfer is to a higher post of Head Constable. No provision was pointed out to support the action in posting the petitioner against a higher post of Head Constable. Therefore, on that ground also the order of transfer is liable to be interfered with. 16. The contention of the learned Standing Counsel relying on the Division Bench judgment of this Court in Rajan v. Director General of Police [ 1999 (2) KLT 673 ], cannot be accepted because the transfers in those cases were not governed by statutory rules. Moreover, in Rajan's case (supra) the mass transfer of Police Constables was not after subjecting them to any criminal or disciplinary action. It is true that this court found that the Police is a disciplined force trusted for enforcing laws and for maintaining law and order in public interest. The following observations in the judgment in paragraphs 10 and 11 relied on by the learned Standing Counsel are relevant: "10. Police is a disciplined force. The top echelons of the department have a duty to ensure discipline of the force which ultimately is essential for the good of the public. Police is trusted for enforcing laws and for maintaining law and order in public interest. Police is a disciplined force. The top echelons of the department have a duty to ensure discipline of the force which ultimately is essential for the good of the public. Police is trusted for enforcing laws and for maintaining law and order in public interest. If the members of the staff are allowed to act in support of criminals or to sabotage criminal trials that will certainly affect the proper functioning of the department. The police administration will then be weakened and that will be detrimental to the public interest. The department certainly cannot effectively work with members of the force engaged in subversive activities which go against the policy and best interests of the department. 11. Transfer is an incident of service and no employee has any legal right against it. The contention of the appellants that the transfer is bad as they were not given any opportunity to state against the transfer nor provided with the data justifying their transfer has no force. Natural justice only implies fairness in action. Policy decisions on grounds of expediency and in the overall interest of the administration cannot be interfered with as long as it is not punitive. Courts will not always be in a position to effectively evaluate the depth and impact of the problems and situations faced by the administration. Except where the power is exercised malafide or in total abuse, the courts will be slow in interfering in such matters. It is essential that the court should act with circumspection in such matters." Even while upholding the transfer, the division bench made it clear that as long as the order of transfer is not punitive, it is not necessary to interfere with it. In this case the averments in the counter affidavit are sufficient to support the contention of the petitioner that the transfer is punitive. The Police Constables, in Rajan's case (supra) were not governed by any statutory rules as in the case of the petitioner herein, who is a member of RPF governed by statutory rules in RPF Rules in the matter of transfer. In Rajan's case (supra), transfers and postings were governed only by guidelines. Moreover, there was no departmental or criminal action against the Police men in Rajan's case (supra). Therefore, there is vast difference in the factual circumstances arising in both the cases. In Rajan's case (supra), transfers and postings were governed only by guidelines. Moreover, there was no departmental or criminal action against the Police men in Rajan's case (supra). Therefore, there is vast difference in the factual circumstances arising in both the cases. But in the present case the petitioner is governed by statutory rules. In case the petitioner has committed any misconduct, it is for the respondents to proceed against him in appropriate disciplinary/criminal proceedings in accordance with law. While the rules provide that transfers shall not be made when disciplinary action is pending or such transfer shall only be to expedite the disciplinary proceedings, the order Ext.P1 is unsustainable. The transfer is ordered in violation of clause 7 of Ext.P3, Rule 93.2 and 93.9 of the RPF Rules. Under the guise of transfer, the petitioner cannot be penalised any further, at any rate, otherwise than in accordance with rules. The petitioner cannot be incapacitated to defend his case properly, by transferring him away from the concerned court in which the case is going on. Under the above circumstances, Ext.P1 order of transfer is set aside. The writ petition is allowed accordingly.