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2018 DIGILAW 166 (ORI)

Sitansu Mohan Mohanty v. State of Odisha

2018-02-08

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the order dated 21.08.2017 (Annexure-6) and order of rejection dated 12.09.2017 (Annexure-12), have been sought to be quashed and the petitioner may be allowed to continue in the present place of posting. 2. Brief facts of the case is that the petitioner was initially appointed as Clerk in Finance Department under opposite party no.2 and joined at IDCOL Ltd., IKIWL Kalinga, while continuing he was transferred to IFCAL, Jajpur Road vide order dated 11.09.2007 and thereafter he was transferred to the Corporate Office at Bhubaneswar on 05.12.2008 on the ground that he was present before the Vigilance Office at Cuttack for pursuing the Vigilance cases pending against the officials. The petitioner, hence was posted in the Security Department at IDCOL, Bhubaneswar and joined as such on 06.12.2008 and was assigned with no work till 12.05.2010. However, on 13.05.2010 to 15.03.2016 he was assigned with the work as Security-in-charge which he has successfully discharged. He was then transferred vide order dated 14.3.2016 to the Estate Department. The petitioner thereafter was transferred to IKIWL, Barbil on 30.05.2016. The petitioner has approached this Court by filing writ petition being W.P.(C) No.9772 of 2016 challenging the order of transfer and this Court while disposing of the writ petition vide order dated 03.06.2016 has directed the opposite party no.1 to consider and dispose of the representation of the petitioner vide Annexure-2 within a period of one month from the date of production of copy of the order, till disposal of the representation, no coercive action shall be taken against the petitioner. The authority has passed an order on 16.06.2016 rejecting the representation of the petitioner on the ground that the transfer needs no interference, since it was made on the administrative exigencies and in the public interest. The petitioner thereafter has been transferred on deputation and posted at IDCOL Corporate Office with headquarter at Bhubaneswar vide order dated 07.01.2017. The petitioner while discharging his duties at Bhubaneswar has been transferred and posted at IKIWL with headquarter at Matkambeda, Badbil with immediate effect and accordingly relieved from Bhubaneswar on 21.08.2017 in order to resume his duty. The petitioner thereafter has been transferred on deputation and posted at IDCOL Corporate Office with headquarter at Bhubaneswar vide order dated 07.01.2017. The petitioner while discharging his duties at Bhubaneswar has been transferred and posted at IKIWL with headquarter at Matkambeda, Badbil with immediate effect and accordingly relieved from Bhubaneswar on 21.08.2017 in order to resume his duty. The petitioner has represented against such transfer but however to no effect, hence he approached this Court against the order of transfer by filing the writ petition being W.P.(C) No.17787 of 2017 and this Court while disposing of the writ petition vide order dated 30.08.2017 has directed the opposite party no.2 to dispose of the representation in accordance with law within a period of four weeks and till disposal of the representation, no coercive action shall be taken against the petitioner. The authorities in the light of the order passed in W.P.(C) No.17787 of 2017, has passed the order on 12.09.2017 by rejecting the representation on the ground that the petitioner originally belongs to IKIWL and IKIWL is in dire need of manpower, his services are badly needed in IKIWL, as such it has been stated therein that the order of transfer is an administrative exigencies. It has also been stated therein that to meet the hindrances of educational session disruption of the children, he has been allowed to retain the allotted quarters at Bhubaneswar till end of the Academic Session 2017-18, if so advised. The petitioner being aggrieved with the order dated 21.08.2017 (Annexure-6) and 12.09.2017 (Annexure-12) is before this Court on the ground that the order of transfer is by way of mala fide and only to victimize the petitioner since he has made series of the complaint before the authority for commission of financial irregularities and that is the reason he has been transferred frequently. 3. Learned counsel for the petitioner submits that the frequent transfer is nothing but by way of malice. 3. Learned counsel for the petitioner submits that the frequent transfer is nothing but by way of malice. He submits that in both the orders i.e. the order passed on 16.06.2016 in the light of the order passed in W.P.(C) No.9722 of 2016 or the order dated 12.09.2017 passed in the light of the order passed in W.P.(C) No.17787 of 2017, the reason mentioned therein exactly the same, as such it can well be said that the authority while disposing of the representation has not applied its mind, the reason which was on earlier occasion, has been reiterated in the subsequent order which is impugned in this writ petition. 4. Mr. S. Mohanty has appeared to represent opposite party no.2 and submits that the order of transfer is by way of administrative exigencies. The petitioner after his appointment was posted at IKIWL, Badbil and whenever his service has been required at Headquarters at Bhubaneswar, he has been transferred on deputation basis but assessing his requirement in the local office, where he has originally been posted, he has been transferred to Badbil and again brought to Bhubaneswar and while working at Bhubaneswar on deputation, when the authorities have thought that the service of the petitioner is urgently required at the place where he was originally posted, he has been transferred vide order of transfer dated 21.08.2017, hence there is no mala fide on the part of the authorities. He submits that the transfer by way of deputation does not confer any right upon the petitioner to claim that he be posted all time to come at Corporate Office, Bhubaneswar, keeping the fact into consideration that his posting was done at the time of initial appointment at Barbil. It has further been submitted that after the acceptance of VRS of the concerned employee as per the Scheme floated by the Corporation due to financial crunch, due to shortage of staff at Barbil, it was the dire need with the opposite parties to post the petitioner at the place where he was posted at the time of initial appointment, hence nothing illegality has been committed by the authorities of the Corporation. He further submits that the petitioner is a man of nuisance as would be evident from the averment made in the writ petition that he is making frivolous complaint against the highest authority of the Corporation but even then the petitioner has not been subjected to any disciplinary action which itself suggests that the authorities in no way is acting with the mala fide intention, otherwise penal action would have been taken against the petitioner. He further submits by establishing the intent of bona fide that even in the order of rejection dated 12.09.2017, the utmost care has been given by leaving it open to the petitioner to make request to retain in the official accommodation during academic session which also suggests that there is no mala fide on the part of the authorities. He submits that the transfer is the incidence of service and in the rarest of the rare case, it can be judicially reviewed by the High Court sitting under Article 226 of the Constitution of India. He further submits that the main thrust of argument of the petitioner is that the authority i.e. the CMD, IDCOL is acting with the mala fide intention but it is settled that mala fide cannot be alleged against the post rather it is against the person but nothing has been stated against any of the individual person since they are not party in the proceeding, as such the contention of the petitioner that the order of transfer is only to harass him, is absolutely incorrect. 5. Learned counsel for the petitioner in response has submitted that frequent transfer itself suggests that the authorities are behind the petitioner and the obvious reason is that he is making complaint against the financial irregularities committed by the authorities of the Corporation. 6. Heard the learned counsel for the parties, perused the documents available on record and on appreciation of the rival submission of the learned counsel for the parties, this Court thinks it proper before going into the illegality and propriety of the decision taken by the authority in issuing order of transfer or rejecting the representation of the petitioner filed in pursuance of the order passed by this Court, it would be relevant to go through the legal settled position as has been held by the Hon’ble Supreme Court in the case of State of Punjab and others vrs. Joginder Singh Dhatt, AIR 1993 SC 2486 at para-3, which is being quoted herein below:- “We have heard the learned counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily, the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.” The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Hon’ble Supreme Court in the cases of Rajendra Roy vrs. Union of India and another, 1993 (1) SCC 148 , National Hydroelectric Power Corporation Ltd. vrs. Shri Bhagwan and another, (2001) 8 SCC 574 , State Bank of India vrs. Anjan Sanyal, (2001) 5 SCC 508 , the principle of law as laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction sitting under Article 226 of the Constitution of India, unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the orders, were not competent to pass the orders. Recently in the judgment reported in the case of Mohd. Masood Ahmad vrs. State of U.P. and others reported in (2007) 8 SCC 150 , the Hon’ble Supreme Court after considering the series of judgments rendered by the Apex Court has held at para-7, which is being reproduced herein below:- “The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy vrs. Union of India and another, 1993 (1) SCC 148 , National Hydroelectric Power Corporation Ltd. vrs. Shri Bhagwan and another, (2001) 8 SCC 574 , State Bank of India vrs. Union of India and another, 1993 (1) SCC 148 , National Hydroelectric Power Corporation Ltd. vrs. Shri Bhagwan and another, (2001) 8 SCC 574 , State Bank of India vrs. Anjan Sanyal, (2001) 5 SCC 508 . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vrs. State of U.P., (1997) 3 ESC 1668 and Onkar Nath Tiwari vrs. Chief Engineer, Minor Irrigation Deptt., (1997) 3 ESC 1866, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.” In another judgment rendered in the case of M.V. Thimmaiah and others vrs. Union Public Service Commission and others, (2008) 2 SCC 119 , the Hon’ble Supreme Court has held at para-19, that the allegation of mala fide cannot be entertained, unless the person against whom mala fide is alleged, has been impleaded as a party. It also finds that the allegation of mala fide is very easy to be leveled and very difficult to substantiate it, specially in the matter of selection or whoever is involved in the decision-making process. People are prone to make such allegations but the courts owe its duty to scrutinize the allegation meticulously because the person who is making the allegation of animus does sometimes bona fidely or sometimes mala fidely due to his non-selection. He has a vested interest and unless the allegations are substantiated beyond doubt, the court cannot draw its conclusion and accordingly rejected the allegation of the mala fide. In the judgment reported in the case of State of U.P. and others vrs. He has a vested interest and unless the allegations are substantiated beyond doubt, the court cannot draw its conclusion and accordingly rejected the allegation of the mala fide. In the judgment reported in the case of State of U.P. and others vrs. Gobardhan Lal reported in (2004) 11 SCC 402 , the Hon’ble Supreme Court has held that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service and unless the order of transfer is shown to be an outcome of a mala fide exercise of power of violative of any statutory provision or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. In the judgment reported in the case of State of Haryana vrs. Kashmir Singh reported in (2010) 13 SCC 306 , the Apex Court has observed that the transfer ordinarily is the incidence of service, and the Court should be very reluctant to interfere in transfer orders as long as they are not clearly illegal, their Lordships further held that administrative exigencies cannot be judged by the judicial authority in the following words, at para-14 which is being quoted for ready reference. “In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administration matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. Courts should not, in our opinion, interfere with purely administration matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Holmes, J. of the US Supreme Court pointed out, there must be some free play of the joints provided to the executive authorities.” Thus, it is evident from these judgments that, an order of transfer of a Government Officer is no doubt justiciable, but such transfer orders can be interfered/interdicted in res jurisdiction in rare and exceptional cases. Broadly, a transfer order can be interfered with; (i) if such order issued by an authority not competent to do so; (ii) If there is violation of any statutory law; (iii) If there is gross discrimination between the writ petitioner vis-à-vis similarly situated officers/employees; and (iv) If the transfer order is being actuated by any mala fide. 7. So far as the fact of the instant case is concerned, the petitioner’s main argument is that he has been victimized. Learned counsel for the petitioner in order to strengthen his argument to prove mala fide has submitted that it is a case of frequent transfer. The petitioner has been transferred on 13.05.2016 from Corporate Office to IKIWL, Matkambeda, Badbil again brought to the Corporation on 7.1.2017, then again transferred to IKIWL, Badbil and as such this is nothing but to harass the petitioner, reason being that he has made complaint against the higher authorities of the Corporation for commission of financial irregularities on their behalf. The other ground to prove mala fide has been taken that in both the orders in terms of the order passed by this Court i.e. 16.06.2016 and 12.09.2017, the reasons exactly are same in both the orders which shows their mala fide and non-application of mind, while disposing of the representation, as has already been held by the Hon’ble Supreme Court that to allege mala fide is very easy but proving is very difficult. It has also been held therein that in order to prove mala fide, the individual functionary against whom mala fide is being alleged is a party necessary to the proceeding since mala fide cannot be attributable to the post rather towards the individual. 8. It has also been held therein that in order to prove mala fide, the individual functionary against whom mala fide is being alleged is a party necessary to the proceeding since mala fide cannot be attributable to the post rather towards the individual. 8. This Court, after considering the scope of judicial review in the administrative decision of the authority for making interference in the order of transfer, has found that it is not a case where the order of transfer is without jurisdiction, it is not a case, where the order of transfer is contrary to the statutory rule, it is not a case that there is gross discrimination between the writ petitioner vis-à-vis similarly situated officers rather the petitioner has insisted upon that the order of transfer has actuated by mala fide. 9. This Court, after appreciating the arguments advanced on behalf of the parties and going across the material available on record has found that the petitioner was appointed under the Corporation and posted at the IKIWL, Matkambeda, Badbil and was transferred to Jajpur, I.F.C.A.L. on 11.09.2007 and then transferred to the Corporate Office at Bhubaneswar on 05.12.2008 and he joined on 06.12.2008 in the Corporate Office in the Security Department and was assigned with no work till 12.05.2010. However, on 13.05.2010 to 15.03.2016 he was assigned with the work as Security-in-charge which he has successfully discharged. He was then transferred vide order dated 8.3.2016 to the Estate Department. The petitioner thereafter was transferred to IKIWL, Barbil on 30.05.2016 against which he has made representation to cancel the order of transfer on the ground of illness, the study of daughters etc. When the representation having not been considered, he approached this Court by filing writ petition being W.P.(C) No.9772 of 2016 and this Court while disposing of the writ petition vide order dated 03.06.2016, has directed the opposite party no.1 to consider and dispose of the representation of the petitioner however by way of an interim measure the authorities are restrained to take coercive action against the petitioner. The authorities after rejecting the representation vide order dated 16.06.2016 on the ground that the order of transfer is of normal course with administrative exigencies on account of the fact that there is acute shortage of manpower at IKIWL, Barbil due to VRS and retirement of huge numbers of working personnel. The authorities after rejecting the representation vide order dated 16.06.2016 on the ground that the order of transfer is of normal course with administrative exigencies on account of the fact that there is acute shortage of manpower at IKIWL, Barbil due to VRS and retirement of huge numbers of working personnel. The other reason was assigned that final bid for 51% stakes in IDCOL and have submitted an Investment Plan of 300 crore in 1st phase and 3000 crore in subsequent phases for which the Finance Department of IKIWL needs to be strengthened and since the petitioner who originally belongs to IKIWL & has good knowledge & experience in finance matter, his service & experience is badly necessary in IKIWL. The petitioner, accordingly has given his joining at IKIWL, Matkambeda, Badbil and thereafter his joining was accepted with advise to report for duty before the Director (Works) for his day-to-day work, as would be evident from the office order dated 22.07.2016. The petitioner has again transferred on deputation and posted at IDCOL Corporate Office with headquarters at Bhubaneswar vide office order dated 7.1.2017. He, thereafter has been transferred and posted at IKIWL, Matkambeda, Barbil from the corporate office, Bhubaneswar and accordingly he was relieved from his duties i.e. on 21.08.2017. 10. The petitioner has protested against the said order of transfer on various grounds; including the ground of illness but when the authorities have not considered, he again came to this Court by filing writ petition being W.P.(C) No.17787 of 2017 which was disposed of vide order dated 30.08.2017, but without expressing anything on merit, the opposite party no.2 was directed to dispose of the representation in accordance with law with an interim order to the effect that no coercive action shall be taken against the petitioner. The authorities have passed the order on 12.09.2017 rejecting the representation for the reason that there is acute shortage of manpower at IKIWL, Barbil due to VRS and retirement of huge numbers of working personnel since the petitioner originally belongs to IKIWL & IKIWL is in the dire need of manpower, his services are badly needed in IKIWL with an option to the petitioner to apply to retain the allotted quarters at Bhubaneswar till end of the Academic Session 2017-18, if so advised, as such it is evident that the petitioner’s initial place of posting was at Matkambeda Barbil and whenever his services has been required in the corporate office, since he according to the view of the higher authorities is an efficient Officer, has been posted at Headquarter at Bhubaneswar, some time on transfer and some time on deputation basis. 11. The petitioner is alleging that in both the orders dated 16.06.2016 and 12.09.2017, exactly the same order has been passed by the authority which suggests that the authorities have acted with mala fide intention but that cannot be said to be acceptable argument for the reason that the original place of posting of the petitioner was at Barbil and for short interval of time, the Corporation in order to take the service of the petitioner, has posted him at Headquarter, in which there is no illegality, since the employer is best person to judge to take service of the employees for smooth functioning of the administration of the establishment and when it came to the mind of the competent authority that his service is also required at Badbil, he has been sent back at Badbil, considering the fact that he was originally been appointed and posted at Barbil, hence merely assigning the same reason, cannot be said to be an act of mala fide on the part of the opposite parties. It can also not be said to be mala fide, as because the reason on account of separation under VRS is not a disputed fact and it is also not undisputed that huge amount has been invested at IKIWL Barbil, as such the efficient officer is required to be posted there. 12. In view of such a factual aspect, in my considered view, the petitioner could not be able to prove the mala fide on the facts. 12. In view of such a factual aspect, in my considered view, the petitioner could not be able to prove the mala fide on the facts. It can also not be proved on account of the fact that no individual functionary of the Corporation has been impleaded as party and for proving the mala fide, the petitioner ought to have been impleaded the individual functionary as a party to the proceeding since mala fide cannot be against the post rather it is always against individual functionary and in absence a party to the proceeding, mala fide cannot be said to be proved. 13. This Court, after taking into consideration the legal position as per the various judgments rendered by the Hon’ble Supreme Court, is of the view, that the petitioner has failed to prove the intent of mala fide in the facts and circumstances of the instant case and as such the order of transfer and also the order of rejection, cannot be judicially reviewed by this Court sitting under Article 226 of the Constitution of India on the ground of exercise of mala fide as has been alleged by the petitioner. In view thereof, the petitioner has failed to make out a case in his favour. Accordingly, the writ petition fails and is dismissed. 14. Before parting with the order, it is necessary to pass order in the Misc. Case No.1007 of 2018 which has been filed by the petitioner for seeking a direction upon the opposite parties to disburse the arrear of salary, in view of the interim order passed by this Court on 13.10.2017, since according to him the salary has not been paid. After perusal of the miscellaneous application, it is evident that the copy of the same has been served upon Mr. Mohanty, learned appearing counsel for the Corporation but no rebuttal reply has been filed. In course of argument also, the averment made in the misc. case has not been rebutted. After perusal of the miscellaneous application, it is evident that the copy of the same has been served upon Mr. Mohanty, learned appearing counsel for the Corporation but no rebuttal reply has been filed. In course of argument also, the averment made in the misc. case has not been rebutted. It is evident from the record that this Court while entertaining the writ petition has passed an order by way of an interim measure not to take any coercive steps against the petitioner and as such this Court in order to maintain the sanctity of the interim order dated 13.10.2017 consider to pass an order in this regard and also taking into consideration the fact that if the petitioner will be relieved from the headquarter of the Corporation at Bhubaneswar and joined at Badbil, then he has to run from Badbil to the Head Office of the Corporation for getting his salary, since according to the learned counsel for the Corporation, the petitioner is to get his salary from Barbil, keeping these facts into consideration, it is necessary to pass an order directing the Corporation to disburse the arrear of salary from the date of passing interim order i.e. w.e.f. 13.10.2017 till the date of working within one week from the date of production of the certified copy of the order, since the petitioner has worked in the Corporate Office at Bhubaneswar, otherwise it will against the spirit and intent of interim order passed by this Court. The Corporation after disbursing the arrears of salary shall immediately relieve the petitioner and the petitioner is directed to join in terms of the order of transfer dated 21.08.2017 within one week from the date of relieving. Accordingly, the Misc. case is disposed of.