Krushna Chandra Barik v. Life Insurance Corporation Of India
2019-04-09
B.R.SARANGI
body2019
DigiLaw.ai
JUDGMENT B.R. Sarangi, J. - The petitioner, who is working as Branch Manager in Life Insurance Corporation of India, has filed this application to quash the office order dated 07.06.2018 in Annexure-5, pertaining to his transfer from Bhubaneswar to Khurda And consequential order dated 08.06.2018 in Annexure-8 rejecting his representation. He further seeks for direction to opposite party nos. 1 and 2 post him in Bhubaneswar municipal limits where medical facilities for bipolar psychiatric patients are available. 2. The factual matrix of the case, in hand, is that the petitioner, after Completion of his education, joined as an Assistant in the Office Service Department of Life Insurance Corporation of India (hereinafter referred to as 'L.I.C. of India') at Kendrapara on 05.02.1993, being successful in the entrance examination. On 13.09.2002, he was promoted to the post of Assistant Administrative Officer and posted at Halidia in Howrah district of West Bengal. Subsequently, he was transferred to the marketing side of the L.I.C. of India and posted as the Assistant Branch Manager (Sales) at Khatra Branch under Asansol Division in West Bengal on 30.08.2004. Thereafter, he was promoted to the post of Branch Manager in the cadre of Administrative Officer and posted at Bhubaneswar Division on 16.05.2009. 2.1 The daughter of the petitioner was prosecuting her study in Bachelor of Occupational Therapy at Swami Vivekananda National Institute of Rehabilitation Training & Research at Olatpur under the Ministry of Social Justice & Empowerment Government of India. The wife of the petitioner, being a psychiatric patient, became seriously ill and developed suicidal tendency, for which his daughter left the said course at Swami Vivekananda National Institute of Rehabilitation Training & Research at Olatpur and prosecuted her studies in Bachelor of Bio-Technology at Orissa University of Agriculture Technology (OUAT), Bhubaneswar, so that both petitioner and his daughter can keep a constant vigil on her (wife of the petitioner). As the condition of the wife of the petitioner, since last 10 years, became chronic and acute, she remained on constant medication and is being treated at various leading mental hospitals of Cuttack and Bhubaneswar. With this misery, the petitioner, while continuing at Branch Office, P & GS Unit, Bhubaneswar, vide order dated 07.06.2018, was transferred to Branch Office, Khurda, which is around 30 kms from the place of his residence.
With this misery, the petitioner, while continuing at Branch Office, P & GS Unit, Bhubaneswar, vide order dated 07.06.2018, was transferred to Branch Office, Khurda, which is around 30 kms from the place of his residence. Indicating his difficulties, the petitioner submitted a representation on 08.06.2018 praying to retain him at his present place of posting, as his wife was a Neuro psychiatric patient and he himself met an accident on 20.04.2015 and suffered severe damage to his spine and hip, for which he had been advised to go for endospine surgery. But his representation was rejected, vide order dated 08.06.2018, without assigning any reason. Hence this application. 3. Mr. S.K. Mishra, learned counsel for the petitioner contended that the impugned order of transfer of the petitioner from the present place of posting, i.e., Bhubaneswar to Khurda, without considering medical emergency of the petitioner as well his wife, is in violation of Transfer and Mobility Policy for Class-I Officers formulated by the L.I.C. of India. It is further contended that the order dated 08.06.2018 rejecting the representation of the petitioner has also been passed without assigning any reason. Therefore, the order of transfer dated 07.06.2018 in Annexure-5, so far as it relates to the petitioner, and consequential order dated 08.06.2018 in Annexure-8 rejecting the representation of the petitioner, cannot sustain in the eye of law and the same are liable to be quashed. 4. Mr. A.K. Mohanty, learned counsel appearing for opposite party nos.1 and 2, on the other hand, contended that the petitioner, having consciously accepted an employment, which has "Pan India Transferability" in terms of L.I.C. of India (Staff) Regulations, 1960 his plea for continuing at one place even beyond the period prescribed in the Transfer and Mobility Policy of the Corporation, cannot have any justification. It is further contended that the administrative guidelines, such as, the Transfer and Mobility Policy of L.I.C. of India does not confer any legally enforceable right and, therefore, reliance placed by the petitioner on the said policy for invoking extraordinary jurisdiction of this Court cannot sustain in the eye of law for which the writ petition is liable to be dismissed. It is further contended that the petitioner has stayed more than 9 years in a particular station.
It is further contended that the petitioner has stayed more than 9 years in a particular station. Pursuant to letter dated 12.08.2014, as per Central Vigilance Commission's guidelines Ministries/ Departments/ Organizations have to identify the sensitive posts and staff working in these posts and also ensure that they are strictly rotated after every two / three years to avoid developing vested interests. The posting of the petitioner as Administrative Officer in the P & GS unit of Bhubaneswar Division Office, being a sensitive post, and he has continued there for more than 3 years, he should have been transferred from that place and accordingly he has been transferred. Thereby, no illegality or irregularity has been committed in transferring the petitioner from Bhubaneswar to Khurda, which is at a distance of 30 kms from the place of his residence. In the circumstance, the order of transfer may not be interfered with by this Court in exercise of extraordinary jurisdiction of this Court. To substantiate his contention, he has relied upon Union of India vs. S.L. Abas, AIR 1993 SC 2444 . 5. This Court heard Mr. S.K. Mishra, learned counsel for the petitioner and Mr. A.K Mohanty, learned counsel appearing for the opposite party nos.1 & 2, and perused the records. With the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. The facts delineated above are not in dispute. The only question, which is to be considered now, is that the petitioner having spent nine years at a particular station, i.e., at Bhubaneswar whether he can be transferred under the Transfer and Mobility Policy for Class-I Officers issued by the L.I.C. of India. 7. To answer the above question effectively, it is worthwhile to refer Clauses 3, 5 (a) (d), 6, 6(a), 12(g) of the Transfer and Mobility Policy or Class-I Officers, which are relevant for the purpose of this case. "(3) Applicability: This Transfer and Mobility Policy is applicable to the officers of the Corporation up to Sr. Divisional Manager Cadre except Officers posted on deputation. For Officers posted on deputation, Deputation Policy (as approved by the Board) shall be applicable.
"(3) Applicability: This Transfer and Mobility Policy is applicable to the officers of the Corporation up to Sr. Divisional Manager Cadre except Officers posted on deputation. For Officers posted on deputation, Deputation Policy (as approved by the Board) shall be applicable. xx xx xx (5) Definitions In this Policy, unless there is anything repugnant in the subject or context: (a) Transfer: Transfer of an employee from one department to another in the same office or from one office of the Corporation to another office. (As defined in Life Insurance Corporation of India (Staff) Regulation, 1960). XX XX XX (d) Normal period of Posting: Continuous posting of officers in the cadre of ADM and above in Same Position For a period of 3 years and in Same Station for a period of 6 years (For Metros it is 10 years) and continuous posting of officers in the cadre of AAO/AO in SAME POSITION for a period of 3 years and in SAME STATION for a period of 8 years (For Metros it is 10 years) after which an officer becomes due for Redeployment/Transfer. Period spent on Deputation in the same station shall also be taken for computing NPP. (6) Maximum tenure: The maximum tenure for various cadres is as under (a) For AAO/AO: 3 years in a position/ assignment and 8 years in a particular station (10 years in case of Metros). XX XX XX (12) Transfers based on Government Oms: (g) Medical Grounds: Transfer of officers who themselves or members of their nuclear family (Wife and Dependent Children) are suffering from any of the diseases entitled for reimbursements of High Cost treatment will be considered, as far as possible, to their desired place." 8. In view of the aforesaid provisions of Transfer and Mobility for Class-I Officers, there is no doubt that the same is applicable to the petitioner.
In view of the aforesaid provisions of Transfer and Mobility for Class-I Officers, there is no doubt that the same is applicable to the petitioner. A perusal of the same would indicate that the normal period of posting of the officers in the cadre of ADM and above in same position for a period of 3 years and in same station for a period of 6 years (which is ten years for metros) and continuous posting of officers in the cadre of AAO/ AO in same position for a period of 3 years and in same station for a period of 8 years (which is ten years for metros) after which an officer becomes due for redeployment / transfer and period spent on deputation in the same station shall also be taken for computing NNP. The maximum tenure for various cadres has been indicated for AAO / AO 3 years in a position / assignment and 8 years in a particular station (which is ten years for metros). But transfer of officers, who themselves or members of their nuclear family (wife and dependent children), are suffering from any of the diseases entitled for reimbursements of high cost treatment, will be considered, as far as possible, to their desired place. The wife of the petitioner, being a psychiatric patient for more than 10 years and requires constant vigil, therefore, as per the Transfer and Mobility Policy, the petitioner is required to have a desired place of posting. 9. On 26.07.2018, the L.I.C. of India Central Office issued a circular indicating the scheme of Ex-Gratia reimbursement of medical expenses to employees in case of High Cost / Protracted Treatment. Under Clause-2 thereof, it has been specified as follows: "2 Inclusion of diseases/treatments and modification in definition: It has also been decided to include following 04 diseases / treatments under HCPT scheme: (a) Congenitial Diseases (b) Autoimmune Disorders (c) Psychiatric Diseases (d) Fanconi anemia" A glimpse on the above would indicate that phychiatric disease has also been included for treatment under the said circular.
Needless to say, pursuant to confidential letter issued on 12.08.2014 by the Zonal Manager, East Central Zone of L.I.C. of India, Patna to all the Senior Divisional Managers of L.I.C. of India, it was informed that as per the Central Vigilance Commission's guidelines Ministries/ Department/ Organisations have to identify the sensitive posts and staff working in the posts indicated therein and also ensure that they are strictly rotated after every two/ three years to avoid developing vested interests. Admittedly, the petitioner was working in P & GS Department in the Division Office, which is identified as a sensitive post, and he was continuing for more than 3 years, therefore he is liable for transfer. 10. In every service there exists a relationship of master and servant. Transfer, retirement, promotion, etc. are incidence of service. Usually the master has full power to transfer his servant whenever he wants because transfer is ordered looking at the character and quality of work the servant does. Thus, if the master is of the opinion that a particular servant is required at a particular place for a particular duty, the master has the right to transfer its servant from one place to another. This power of the master is however not absolute and should not be exercised capriciously. At the same time, the master should avoid to transfer a servant simply to accommodate any other favoured servant. Furthermore an order of transfer of a servant should be passed in public interest or in the interest of the institution itself where the servant serves. Exigencies of service also sometimes persuade the master to transfer a servant from one place to another. 11. The apex Court in Shilpi Bose vs. State of Bihar, AIR 1991 SC 532 : (1992) 6 SLR (SC) has observed as under:- "xxxxxx the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the 6 other. Transfer orders issued by the competent authority do not violate any of the legal rights.
A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the 6 other. Transfer orders issued by the competent authority do not violate any of the legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead affected party should approach the higher authorities in the department. From the above, it is evident that the executive instructions even if not followed, the Court should not interfere with the order of transfer. 12. Effective utilization of service of an employee is in the very core of administrative exigency. It is an accepted position of law that even while a service is transferable, an employee in public employment 14 cannot be transferred on mere ipse dixit of the superior authority having power to make an order of transfer. The administrative exigency and/or public interest must be fulfilled before passing the order of transfer against an employee. Transfer is a very important incidence of service and often the order of transfer though may appear to be innocuous, causes serious hardship to the concerned employee. It should be noted in this connection how best the services of an employee can be utilized must be left to the wisdom of the employer and for that purpose, to the appropriate authorities in a public service. Whether the service of an employee can be better utilized in some other place is not a justifiable issue in a court of law. It will be sufficient to sustain an order of transfer if it can be shown that the service is transferable and by the impugned order of transfer, no condition of service or the norm laid down for such transfer has been violated and that a proper consideration of administrative exigency and/ or public interest has been made by the concerned authority and on being satisfied of such administrative exigency and/or public interest, the order of transfer has been made. 13.
13. Referring to Shilpi Bose case (supra) and Gujurat Electricity Board vs. Atmaram Sungomal Poshani, (1989) 2 SLR 684 (SC) , it is held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:- a. the transfer is mala fide or arbitrary or perverse; b. when it adversely alters the service conditions in 15 terms of rank, pay and emoluments; c. when guidelines laid down by the department are infringed and lastly; d. when it is frequently done; and e. if there is a statutory infraction. Therefore, whenever a public servant is transferred, he must comply with the order but if there be any genuine difficulty in the proceeding of transfer, it is open to him to make representation to the competent authority for modification or cancellation of the transfer order. 14. The said view has been reiterated in Union of India and others vs. S.L. Abas, AIR 1993 SC 2444 , State of Punjab and others vs. Joginder Singh Dhatt, AIR 1993 SC 2486 , State of U.P. and others vs. Gobardhan Lal, AIR 2004 SC 2165 . 15. The same view has also been reiterated by this Court in Niranjan Dash vs. State of Orissa and others, (2014) 2 OLR 844 , Sudhir Kumar Praharaj vs. State Bank of India and others (W P. (C) No. 19816 of 2014, disposed of on 24.02.2015) and Narendra Kumar Jena vs. Orissa Forest Development Corporation & another (W.P. (C) No. 8398 of 2014 and batch of cases, disposed of on 26.09.2014). 16. In view of the law laid down by the apex Court, this Court should not interfere with the order of transfer, which is within the complete domain of the employer. The apex Court has time and again expressed its disapproval of courts below interfering with the order of transfer of public servants from one place to another. It is entirely for the employer to decide when, where and at what points of time an employee is to be transferred from the place where he is continuing and ordinarily Courts have no jurisdiction to interfere with the impugned order of transfer. 17.
It is entirely for the employer to decide when, where and at what points of time an employee is to be transferred from the place where he is continuing and ordinarily Courts have no jurisdiction to interfere with the impugned order of transfer. 17. The above being the settled position of law, taking into consideration the factual aspect of the present case, it is to be examined, by applying the principle of the Transfer and Mobility Policy for Class-1 Officers, whether contention of the petitioner is legally sustainable. In the instant case, due to suffering of the wife of the petitioner, steps should have been taken for posting of the petitioner at the desired place. Though transfer of the petitioner from Bhubaneswar to Khurda is at a distance of 30 kms, but taking into consideration the fact that wife of the petitioner requires constant vigil, such transfer of the petitioner ought not to have been made. As the petitioner had made a representation on the ground of illness of his wife, which appears to be a genuine ground, the same should not have been rejected mechanically without assigning any reasons. On perusal of Annexure-8 dated 08.06.2018, the order rejecting the representation filed by the petitioner, would indicate that the representation of the petitioner has been taken into consideration and it has not been found possible to accept his request. Therefore, the petitioner was advised to join in his new place of posting and as such, no reason has been assigned while passing the order rejecting the representation of the petitioner. 18. Franz Schubert said- "Reason is nothing but analysis of belief." In Black's Law Dictionary, reason has been defined as a- "faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions." It means the faculty of rational thought rather than some abstract relationship between propositions and by this faculty, it is meant the capacity to make correct inferences from propositions, to size up facts for what they are and what they imply, and to identify the best means to some end, and, in general, to distinguish what we should believe from what we merely do believe.
Therefore, reasons being a necessary concomitant to passing an order allowing the authority to discharge its duty in a meaningful manner either furnishing the same expressly or by necessary reference. 19. "Nihil quod est contra rationem est licitum" means as follows: "nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws obligatory and lasting." Therefore, recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is pertinent to note that a decision is apt to be better if the reasons for it are set out in writing because the reasons are then more likely to have been properly thought out. It is vital for the purpose of showing a person that he is receiving justice. In Re. Racal Communications Ltd. (1980) 2 All ER 634 (HL) , it has been held that the giving of reasons facilitates the detection of errors of law by the court. In Padfield vs. Minister of Agriculture, Fisheries and Food, (1968) 1 All E.R. 694 , it has been held that a failure to give reasons may permit the Court to infer that the decision was reached by the reasons of an error in law. 20. In Union of India vs. Mohan Lal Capoor, AIR 1974 SC 87 it has been held that reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan vs. State of Madhya Pradesh, AIR 1981 SC 1915 . 21.
Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice. Similar view has also been taken in Uma Charan vs. State of Madhya Pradesh, AIR 1981 SC 1915 . 21. In Travancore Rayons Ltd. vs. The Union of India, AIR 1971 SC 862 it is observed by the apex Court that the necessity to give sufficient reasons which disclose proper appreciation of the problem to be solved, and the mental process by which the conclusion is reached in cases where a non-judicial authority exercises judicial functions is obvious. When judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency. The court insists upon disclosure of reasons in support of the order on two grounds: one, that the party aggrieved in a proceeding before the court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power. 22. In Maneka Gandhi vs. Union of India, AIR 1978 SC 597 , the apex Court held that the reasons, if disclosed, being open to judicial scrutiny for ascertaining their nexus with the order, the refusal to disclose the reasons would equally be open to the scrutiny of the Court; or else, the wholesome power of a dispassionate judicial examination of executive orders could with impunity be set at naught by an obdurate determination to suppress the reasons. 23. In view of law laid down by the apex Court, since the order dated 08.06.2018 in Annexure-8 has been passed without assigning any reason, the same cannot sustain in the eye of law and is hereby quashed.
23. In view of law laid down by the apex Court, since the order dated 08.06.2018 in Annexure-8 has been passed without assigning any reason, the same cannot sustain in the eye of law and is hereby quashed. The matter is remitted back to the Senior Divisional Manager, L.I.C. of India, Bhubaneswar to reconsider the representation filed by the petitioner keeping in view ailment of his wife vis-a-vis the Transfer and Mobility Policy for Class-I Officers formulated by the L.I.C. of India and decide the same in accordance with law by passing a reasoned and speaking order as expeditiously as possible, preferably within a period of six weeks from the date of production of certified copy of this judgment, by affording opportunity of hearing to the petitioner. With the above observation and direction, the writ petition stands disposed of. There shall be no order as to costs.