Ajay Kumar Khandewal v. Director General Central Industrial Security Force (CISF), New Delhi
2019-07-02
P.B.BAJANTHRI
body2019
DigiLaw.ai
JUDGMENT : P.B. Bajanthri, J. 1. In the instant petition, petitioner has assailed the order of transfer dated 29.03.2019 at Annexure-A passed by the respondent No. 1. 2. Petitioner is in the cadre of Senior Commandant, Aviation Security Group (for short ASG), Central Industrial Security Force (for short CISF). When he was working at New Delhi, he was transferred to ASG Bangalore on 28.03.2018. Now he has been displaced prematurely on 29.03.2019 from ASG, Bangalore to GP HQ Chennai. Aggrieved by the order of transfer from ASG, Bangalore to GP Head Quarters, Chennai, petitioner is before this Court. 3. Learned counsel for the petitioner submits that aggrieved by the order of transfer dated 29.03.2019 issued by 1st respondent, petitioner submitted representation on 30.03.2019 and it was rejected on 02.04.2019. Further learned counsel for the petitioner submits that petitioner's transfer is contrary to the guidelines for Posting/Transfer of Gazetted Officers in CISF dated 27.07.2015 at Annexure-C. Sub-Clause (iii) of Clause 3 of Guidelines for Posting/Transfer of Gazetted Officers in CISF is reproduced herein: "The normal period of posting at one station/unit (including SSG), shall be for 3 years extendable by another one year due to administrative/operational exigencies." 4. Thus, petitioner has completed only one year. Consequently, the order of transfer is liable to be set aside. It was further contended that petitioner's son is studying in 11th standard, hence, which has caused hardship, there is no public interest and records have been created on 29.03.2019, relating to certain alleged misdeeds stated to have been committed by the petitioner. It is further submitted that if the petitioner's transfer is in the public interest due to alleged misdeeds, in such circumstances without holding any enquiry transferring the petitioner amounts to punishment. In support of his contention, he relied on decision of this Court in the case of Dr. M. Sumithra vs. The Bangalore University Jnana Bharathi and Another, (2006) ILR (Kar) 1122 paragraph-10 read as under: "10. It is settled law that for proved misconduct it is open to the employer to impose a punishment. But that misconduct is to be proved in a manner known to law. Before an order of transfer on the ground of misconduct is to be passed, the employer was under a duty to issue a charge sheet setting out the charges/misconduct alleged against the petitioner.
But that misconduct is to be proved in a manner known to law. Before an order of transfer on the ground of misconduct is to be passed, the employer was under a duty to issue a charge sheet setting out the charges/misconduct alleged against the petitioner. After holding an enquiry, if the misconduct was held to be proved, then it was open to the respondents to pass an order of transfer even by way of punishment. Admittedly, in this case, no enquiry is held. Except by issuing a notice without disclosing what is the misconduct alleged against her, by calling upon her to read certain paragraphs in the report of the Committee, she could not have been held guilty of the misconduct. The material on record clearly establishes the order of transfer impugned in this writ petition is not an order of transfer simplicitor. It is an order of punishment. It is an order which is passed by taking into consideration totally extraneous matters and therefore it is liable to be quashed." 5. Further, petitioner's counsel contended that respondent No. 1 has filed statement of objections; it should have been filed by the petitioner instead of respondent No. 3. On these grounds, order of transfer is liable to be set aside. Hence, he prays for allowing the petition. 6. Per contra, learned counsel for the Official respondents vehemently contended that petitioner's transfer is in the public interest. No doubt, guidelines for Posting/Transfer of Gazatted Officers in CISF is dated 27.07.2015 has been taken note of. It was pointed out that Transferring Authority has taken note of Sub-Clause (2) of Clause 14 of guidelines for Posting/Transfer of Gazatted Officers in CISF that DG, CISF may transfer an officer whenever felt necessary in public interest and on administrative/operational exigencies/ requirement. In the support of this, on earlier occasion he had furnished sealed cover containing three documents, which are produced today also. It is internal communication between superior officers of the petitioner relating to certain serious lapses stated to have been committed by petitioner. The alleged misdeeds have been examined by more than one officer before effecting transfer. Therefore, order of transfer is in the public interest. It was also contended in the statement of objections at paragraphs 8 and 9, that sensitivity issue with regard to safety and security of millions of passengers has been taken into consideration while effecting the transfer.
The alleged misdeeds have been examined by more than one officer before effecting transfer. Therefore, order of transfer is in the public interest. It was also contended in the statement of objections at paragraphs 8 and 9, that sensitivity issue with regard to safety and security of millions of passengers has been taken into consideration while effecting the transfer. It was also contended that petitioner's representation dated 30.03.2019 has been rejected on 02.04.2019 and petitioner has not challenged the rejection of his representation. 7. In support of the transfer order, learned counsel for the respondents relied on decision of Hon'ble Supreme Court reported in the case of Major General J.K. Bansal vs. Union of India and Others, (2005) 7 SCC 227 paragraph-12. 8. Heard learned counsel appearing for both the parties. Transfer in relation to service, reduced to simple terms, means a change of place of employment within organization. It is an incident of public service and, generally, does not require the consent of the employee. 9. Exigencies of administration or administrative exigency only means the need or demand for running a good administration. The responsibility for good administration is that of the Government. Maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. Therefore, Government alone is a best suited to judge as to the existence of exigencies of such a service requiring appointments by transfer. The term "exigency" being understood in its widest and pragmatic sense. 10. In the case of punitive and stigmatic transfer, question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is a prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained which amounts the misbehavior. The Courts can interfere in respect of transfer order only on three counts namely if any malafide, violation of statutory provisions and competent authority. In the present case, transfer of employees/ officers which effected in terms of guidelines issued by the Government. 11. Petitioner's transfer from Bangalore to Chennai is in the public interest, which is not disputed by the petitioner. It was contended that he has been displaced from Bangalore on account of certain alleged allegations said to have been discussed and shared among his superior officers.
11. Petitioner's transfer from Bangalore to Chennai is in the public interest, which is not disputed by the petitioner. It was contended that he has been displaced from Bangalore on account of certain alleged allegations said to have been discussed and shared among his superior officers. If the petitioner's transfer is on account of certain alleged misdeeds, in such an event without holding enquiry, the petitioner shall not be transferred in view of the decision of this Court reported Dr. M. Sumithra vs. The Bangalore University Jnana Bharathi and Another stated supra. Other contention relating to hardship that his son is studying in 11th Standard and question of premature transfer cannot be a grounds for challenging the order of transfer since the petitioner is aware that transfer is in the public interest, in terms of Sub-Clause (2) of Clause 14 of the guidelines dated 27.07.2015. In this background, question of considering this writ petition insofar as interference with regard to order of transfer, whether on allegations an employee can be transferred from one place to another place or not does nor arise. 12. Perusal of three documents, which are produced in sealed cover, it is evident that there were serious allegations alleged against the petitioner while working in the ASG, Bangalore. Incidents have been classified by the competent authority while perusing allegations, which is Appendix-A. Following are the alleged allegations on petitioner is taken into consideration. 1. Special report on voice clipping viral on Whatsapp in R/o CISF No. 170401874 L/CT/GD Pratekhsa Pandey of A Company: (1) Special report on undesired activity by Inspector on duty. (2) Special report of misbehavior with Rajya Sabha M.P. (3) Sexual harassment of minor girl by SI/Exe Sandeep Kumar. (4) Accidental firing by SI/Exe S. Hariharan. (5) Failure in Decoy check at ASG Bangalore. (6) Deserting of L/ASI/Exe Komalpreet Kaur from the Unit Lines without sanction of leave. 13. When petitioner was on duty in the ASG, Bangalore, he failed to supervise the duties discharged by his subordinates, whereby inconvenience has caused to the Department so also to the General Public. Petitioner being in a discipline armed force like CISF, he should have been careful in handling the post held by him. His transfer has been passed with reference to the previously mentioned alleged allegations and it is in the public interest.
Petitioner being in a discipline armed force like CISF, he should have been careful in handling the post held by him. His transfer has been passed with reference to the previously mentioned alleged allegations and it is in the public interest. Under Clause 14, Sub-Clause (ii) and (iii) of guidelines, competent authorities empowered to displace an officer prematurely in the interest of public. It is to be noted that under Section 15 of the CISF Act, 1968, guidelines have been issued. Section 15 reads as under:- "15. Officers and Members of the Force to be considered always on duty and liable to be employed anywhere in India: (1) Every member of the Force shall, for the purpose of this Act, be considered to be always on duty and shall, at any time be liable to be employed at any place within or outside India. (2) Save as provided in section 14, no member of the Force shall engage himself in any employment of office other than his duties under this Act." 14. Further Introduction in the guidelines reads as under: "1. INTRODUCTION As per Section 15 of CISF Act, 1968, every member of the Force shall, for the purpose of this Act, be considered to be always on duty and shall, at any time, be liable to be employed at any place within India. In view of the administrative/operational requirements of the Force, the following guidelines are hereby issued regarding the posting/transfer of Gazetted Officers of CISF The tenure of postings prescribed in this Circular are only by way of guidelines and can be increased/curtailed on administrative/operational exigencies." 15. Petitioner's counsel relied upon the decision in the case of Dr. M. Sumitra, cited supra, is a matter relating to civilian. But present petition is the case of disciplined force like CISF. Supreme Court in the case of Major General J.K. Bansal vs. Union of India and Others, (2005) 7 SCC 227 at paragraph-12 has distinguished civilian with the armed persons. Extract of paragraph 12 reads as under: "12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members or armed forces is far more limited and narrow.
Extract of paragraph 12 reads as under: "12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members or armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made." 16. In this backdrop the contentions of the petitioner that transfer is premature, on allegations amounts to punishment and causing hardship are not tenable. Filing of objections to the petition by respondent No. 3 instead of respondent No. 1 is not tenable, since 1st respondent must have authorized respondent No. 3. There is no plea of malafide against respondent No. 1. In view of the above factual aspects no interference is called for in respect of petitioner's transfer from Bangalore to Chennai. 17. In view of the decision of Hon'ble Supreme Court, cited supra, wherein, large number of decisions have been taken for the purpose of transfer of an officer of the armed force. Therefore, decision of this Court in the case of Dr. Sumitra, cited supra, do not assist petitioner's plea. Petitioner has not made out case even though his transfer is based on allegations; one has to give preference to the public interest rather to an individual interest. Petitioner being an officer who was posted in ASG, Bangalore, was required to discharge his duties relating to super sensitivity of the Bangalore International Air Port. Prima-facie competent authority has considered public interest to transfer the petitioner Hence, no interference is called for in respect of order of transfer. 18. Writ petition stands dismissed.