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2021 DIGILAW 89 (MP)

Ritu Jhadhav v. Union of India

2021-02-02

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With the consent of the parties the matter is final heard. The present petition is being filed aggrieved by the communication of movement order dated 18.09.2020 issued by the respondent No. 3 through one ASI and SI of the ASG UNIT during duty hours of the petitioner at around 5.30 in the evening whereby the petitioner was asked to deposit her weapons immediately in order to proceed to the transferred place at CISF Unit ASG Bhopal on the very same date. It has argued that gender equality is merely a subject even in this era and honest and sincere working women like petitioner are being victimized under patriarchal dominance by people like respondent No. 3, just because the petitioner raised her voice towards malpractices prevailing in the system and has refused to be a party in compromise with the so many hidden inappropriate and illegal activities that could put citizen's of the country and interest of the nation at peril and since petitioner did not succumb to the pressure created upon her by the respondent-authorities she has been subjected to transfer. It is submitted that the transfer order is not being communicated physically to the petitioner. The same has been sent on whatsapp during the duty hours at 5.30 in the evening. 2. Petitioner is a Lady Sub-Inspector posted at C.I.S.F. Unit at Airport, Gwalior and was discharging her duties with utmost devotion, sincerely and honesty at the present place of posting since her date of posting i.e. 10.05.2018. It is alleged that the entire dispute arose when during her duty time at night shift on 31.10.2019, the petitioner has stopped one Dumper Vehicle carrying Gitty (Stone Aggregate) to enter the city parking area of Airport premises at Gwalior, without there being any permission from the competent authority in writing and since the authority and the contractor were hand in gloves with all the senior authorities therefore, they managed the entry of the vehicle in Air Port premises on verbal communication. On which the petitioner did not agree and exaggeratedly asked the permission from the competent authority which has triggered the matter. A false and frivolous complaint was registered against her rudely behaviour on 01.11.2019. On which the petitioner did not agree and exaggeratedly asked the permission from the competent authority which has triggered the matter. A false and frivolous complaint was registered against her rudely behaviour on 01.11.2019. The complaint was forwarded by the Airport Director to respondent No. 3 on the same day and taking cognizance of the complaint on the very same day, the petitioner has been placed under suspension with immediate effect. However, after the intervention of the higher authorities, the suspension was revoked but on the basis of preliminary enquiry, petitioner was inflicted with punishment of deduction of five days basic pay from her salary which has been put to challenge by the petitioner by filing another writ petition before this Court being W.P. No. 13932/2020 which is pending consideration. 3. It is argued that when the petitioner was on duty on 18.09.2020 in view of the subsequent development made by the authorities one ASI and SI of the unit approached her and asked her to deposit her weapons and to proceed to the transferred place and thereafter the moment order and relieving order was forwarded to her by her junior colleague on whatsapp, which are the orders impugned in the present petition. It is submitted that petitioner is a honest and hard working Govt. servant serving on the Airport which is a very sensitive area wherein the entry of all kinds of vehicles are prohibited until and unless the permission in writing is shown. The petitioner while discharging her duties honestly has stopped the Dumper vehicle from entering into the premises of the Airport. Therefore, she was been subjected to harassment. It is submitted that she is having three small children. Two daughters in eight years, six years and one son four years and her husband is posted as ASI at S.P. Office, Gwalior and has just recovered from COVID positive infection. But, inspite of knowing the status of the family of the petitioner, the authorities have not showing any mercy to the petitioner and she has been subjected to transfer at Bhopal. 4. It is pointed out that due to the outbreak of Covid pendamic-19, the respondent-department issued instructions to defer the transfers till 31.03.2021 in order to minimize hardships of personnel but the aforesaid guidelines have not been followed in the case of the petitioner. 4. It is pointed out that due to the outbreak of Covid pendamic-19, the respondent-department issued instructions to defer the transfers till 31.03.2021 in order to minimize hardships of personnel but the aforesaid guidelines have not been followed in the case of the petitioner. It is argued that transfer of the petitioner is an outcome of malafides on the part of the respondents and also stigmatic in nature as the same has been an outcome of the act of the petitioner which was being done in utter discharge of her duties. It is argued that this is a glaring example of gender harassment and patriarchal dominance in which authorities are trying to mentally outrage the modesty of an honest and sincere lady Sub Inspector of the uniformed and disciplined services and in such circumstances by transferring the petitioner in the name of administrative exigency is unwarranted. 5. Counsel for the petitioner placed reliance on the judgments passed by the Supreme Court in the case of Indian Railway Constructions Co. Ltd. Vs. Ajay Kumar as reported in (2003) 4 SCC 579 . 6. Further, reliance is paid on a Supreme Court judgment in the case of Somesh Tiwari Vs. Union of India and Others as reported in (2009) 2 SCC 592 , wherein in paragraphs 16 and 21 are relevant which reads as under:- "16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds-one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. 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. 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 an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." "For appreciating the effect of such an order, we may also notice the order dated 19th October, 2005 which has been reproduced by the High Court in its impugned judgment, the relevant portion whereof reads thus:- "2. As per Para 9.1 of the New Transfer Policy, Government may, if necessary in public interest, transfer or post any officer to any station or post. Para 9.2 of the policy stipulates that, an officer against whom the CVC has recommended initiation of vigilance proceedings, should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. He shall also not be posted on a 'sensitive' charge. This restriction will remain in operation till such time the vigilance matter is not closed. 3. In the case of Shri Tiwari, he belongs to Madhya Pradesh and on enquiry into complaint of working on caste-biased ideology he was to be over-dependent upon a set of officers, apparently giving an impression that he (is) working on caste-biased ideology. These circumstances have necessitated his transfer from Bhopal Central Excise Commissionerate to Shillong Commissionerate." No vigilance enquiry was initiated against him. The order of transfer was passed on material which was not existent. The order, therefore, not only suffers from total non application of mind on the part of authorities of respondent No. 1, but also suffers from malice in law." 7. Counsel for the petitioner has placed further reliance upon a judgment rendered by the Hon'ble Supreme Court in Civil Appeal No. 8989 of 2019 (Rajneesh Khajuria Vs. M/s. Wockhardt. Ltd. & another decided on 15.01.2020 and the reliance has been placed in case of Dr. S.P. Kapoor Vs. State of Himachal Pradesh and Others as reported in AIR 1981 S.C. 2181 . 8. It is argued that such type of transfers are unwarranted and the interference by the Courts are required in the matter. M/s. Wockhardt. Ltd. & another decided on 15.01.2020 and the reliance has been placed in case of Dr. S.P. Kapoor Vs. State of Himachal Pradesh and Others as reported in AIR 1981 S.C. 2181 . 8. It is argued that such type of transfers are unwarranted and the interference by the Courts are required in the matter. It is submitted that the normal tenure of her service is not over as she has joined the services at the present place of posting only on 10.05.2018. In such circumstances, the transfer of the petitioner is contrary to the judgments passed by the Hon'ble Supreme Court in the aforesaid cases and violative of guidelines issued by the authorities and is an outcome of malafides on part of the respondents. Hence, she has prayed for quashment of the impugned order. 9. Per contra, counsel appearing for the respondent by filing the return has vehemently opposed the contention of the petitioner. It is submitted that the CISF (Central Industrial Security Force) is a Central Armed Force, an armed force of the Union of India is in sensitive section such as Airports, Ports, Department of Atomic Energy, Department of Space, Metro Power, Steel etc. The Force is also deployed in Internal Security duties and election duties. In view of the duties and responsibilities described above, CISF personnel are liable to be deployed at any place within India and abroad. The Force, therefore, requires postings/transfers of personnel subject of security considerations, availability of vacancies and on operation, administrative & disciplinary considerations on a regular basis. It is submitted that the transfer of the petitioner is merely on administrative grounds and after approval from the competent authority. 10. It is pointed out that the movement order regarding posting of the petitioner from ASG Gwalior to ASG Bhopal dated 18.09.2020 was issued and sent through Inspector/Exe. G.L. Meena, SI/Exe. Hetram Siyag and Lady/Constable Sayawanti Uikey to be served upon the petitioner. But the petitioner refused to accept the same which is another example of indiscipline of the petitioner which is not permissible in disciplinary Force like CISF. Therefore, the authorities were not left with any option except to serve the orders through whatsapp on the petitioner. As the petitioner's transfer is a routine course of service and as per the requirement and looking to the need they have been subjected to transfer. Therefore, the authorities were not left with any option except to serve the orders through whatsapp on the petitioner. As the petitioner's transfer is a routine course of service and as per the requirement and looking to the need they have been subjected to transfer. Transfer can only also been made in case there is some indiscipline being shown by any of the employees. At the most the petitioner could have approach the senior officers by way of taking recourse to the grievance redressal mechanism. But she has not done so and she approached this Court directly by filing this petition. When the transfer order was served upon the petitioner, she called the Police by dialing 100 number and called her husband who is serving in the office of the Superintendent of Police, District Gwalior. She has also levelled false allegations of abuse and misbehavior against the SI. Hetram Siyag, which on subsequent enquiry and after carefully going through the CCTV footage it was found that the allegations were not proved. She insisted on lodging a formal complaint against SI Hetram Siyag. When she has asked her to deposit her weapon and to proceed to comply with the transfer order. She has also complaint that as she was unwell and when she was provided a vehicle to go to hospital but she has refused to do so which clearly indicates that she was having no genuine medical problem. She was adamant not to receive the movement order of transfer to ASG, Bhopal. 11. As far as the contention of the petitioner regarding the so called incident is said to have taken place at Airport premises on the intervening night when she was on service is concerned, the incident has taken place on 31.10.2019 owing to which the petitioner was already placed under suspension on a complaint being made by the senior authority, a separate petition was filed for challenging the order of suspension order which is pending consideration. It is submitted that a lenient view had been taken by the authorities and the petitioner has been posted at her home town i.e. Bhopal which is the nearest place to Gwalior. In such circumstances, there should not be any grievances to the petitioner to comply with the movement order. It is submitted that a lenient view had been taken by the authorities and the petitioner has been posted at her home town i.e. Bhopal which is the nearest place to Gwalior. In such circumstances, there should not be any grievances to the petitioner to comply with the movement order. It is pointed out that the Director General, Central Industrial Security Force issued guidelines for transfer and posting of CISF personnel in various Sectors of CISF vide Circular No. 22/2017 dated 25.09.2017 which provides, "In view of the duties and responsibilities described above, CISF personnel are liable to be deployed at any place within India and abroad. CISF has units all over the country in almost all the States. As per the provisions contained in Section-15 of CISF Act-1968 (as amended from time to time), every member of the Force shall be considered to be always on duty and shall, at any time be liable to be employed at any place within or outside India. Therefore, on administrative grounds and in the interest of operational necessities of the Force, he/she can be posted anywhere in India or abroad". 12. In such circumstances, the authorities are having a right to post any of the employees of anywhere in India or abroad. The conduct of the petitioner in not accepting the movement order and further all such activities to avoid receiving the transfer order again showing the indiscipline act of the petitioner which has not tolerable in the disciplined forces like CIFS, SAF. In such circumstances, no interference in transfer order is called for. 13. The petition has been drafted beautifully taking aid of the other incident which have been taken place at Airport premises for which the petitioner has been placed under suspension. The petitioner is trying to club both the incidents together and tried to demonstrate that the transfer order is an outcome of such incidents. It is further pointed out that petitioner is in habit of making such complaints. Earlier she has filed a complaint of sexual harassment on 16.04.2019 to the senior authorities which was subsequently withdrawn by the petitioner. The aforesaid complaint was withdrawn despite of the fact that the cognizance was taken by the sexual harassment committee has been constituted to enquire into the allegations levelled by her in the complaint but as the complaint itself was false, petitioner subsequently withdrawn the complaint. 14. The aforesaid complaint was withdrawn despite of the fact that the cognizance was taken by the sexual harassment committee has been constituted to enquire into the allegations levelled by her in the complaint but as the complaint itself was false, petitioner subsequently withdrawn the complaint. 14. In another case the petitioner has made an allegation of harassment against previous CASO, ASG Gwalior Shri Sadiq Masih, Assistant Commandant/CASO to higher formation on 13.06.2018 but the same was again taken back by the petitioner on 24.06.2018. It was pointed out that the petitioner has been posted at ASG Gwalior from CISF Unit BHEL, Jhansi at her own request. She was given out of turn outliving permission by the Respondent No. 3 to stay with family. But she has not working with devotion and is trying to take advantage by her husband's position who is posted at Gwalior in Police Department in S.P. Office Gwalior. All the complaints made by the petitioner are false and frivolous and are already under enquiry and the petitioner is already suspended for the aforesaid incident. In such circumstances, no interference in the transfer order should be made. 15. Counsel appearing for the respondent has placed reliance on a judgments of the Supreme Court in the case of State of U.P. And Others Vs. Gobardhan Lal as reported in (2004) 11 SCC 402 and in the case of Dr. Nagorao Shivaji Chavan Vs. Dr. Sunil Purushottam Bhamre and Others as reported in 2019 Vol. 13 SCC 788 and has argued that the transfer order cannot be interfered in a routine fashion by the Courts. Even the policy of transfer Annexures R/2 and R/3 are clearly provides the guidelines for transfer. 16. Heard the learned counsel for the parties and perused the record. 17. From the perusal of the record it is seen that the petitioner is working under the CISF staff and was posted at sensitive area at Airport. The transfer order which is being given to the petitioner i.e. order impugned whereby she was asked to deposit the weapons and move to the transferred place of posting i.e. Bhopal. The transfer order is shown to be on administrative exigencies. The case of the petitioner is that she has been subjected to transfer on eminent basis considering the incident that the petitioner has stopped the vehicle Dumper carrying Gitty from entering into the Airport premises without permission. The transfer order is shown to be on administrative exigencies. The case of the petitioner is that she has been subjected to transfer on eminent basis considering the incident that the petitioner has stopped the vehicle Dumper carrying Gitty from entering into the Airport premises without permission. Thereafter a complaint was made with respect to her indisciplined behaviour to the senior authorities of the Airport, upon which cognizance was taken against the petitioner and the petitioner has been placed under suspension, as indiscipline was not tolerable in the disciplined Forces like CISF. She has already challenged the suspension order through a separate petition being W.P. No. 13932/2020 which is pending consideration before this Court. It is seen from the record that there is specific denial to the fact that the transfer order was not communicated to the petitioner rather it was served on whatsapp, it is pointed out in the reply that Inspector/Exe. G.L. Meena, SI/Exe. Hetram Siyag and Lady/Constable Sayawanti Uikey were sent to the petitioner to serve the transfer/movement order but she has refused to accept the same, therefore, the transfer order was sent through whatsapp to the petitioner having no other means to serve the petitioner. The petitioner has created nuisance at the time of receiving the transfer order. She has also created nuisance when she was asked to deposit her weapons and to obey the transfer order. Transfer being a condition of service of an employee and transfer of employee like petitioner who is working under the CISF are governed by the guidelines which clearly provides that transfer can be made in any of the places in India and even abroad if required. The transfer order clearly shows that it is passed on the basis of administrative exigencies. The petitioner has been transferred at the nearest place i.e. Bhopal which is also the home town of the petitioner. In such circumstances, transfer of the petitioner could not be interfered with. As far as the allegations regarding gender discrimination and allegation of harassment and transfer being punitive nature is concerned, there is no such material available on record to establish the same. The transfer of the movement order was shown to be as dated 18.09.2020. The petitioner must have been relieved. 18. As far as the allegations regarding gender discrimination and allegation of harassment and transfer being punitive nature is concerned, there is no such material available on record to establish the same. The transfer of the movement order was shown to be as dated 18.09.2020. The petitioner must have been relieved. 18. As far as the other grounds raised by the petitioner are concerned the same are sympathetic grounds for consideration for which the petitioner is having a remedy on filing a representation to the authorities for redressal of the grievances. The same shall be decided and considered by the authorities. The law with respect to transfer is subsequently cleared by a decision of a Division Bench of this Court as well as in the case of R.S. Chaudhary Vs. State of M.P. I.L.R. (2007) M.P. 1329, wherein the Division Bench is held as under:- "Transfer Policy formulated by State is not enforceable as employee does not have a right and courts have limited jurisdiction to interfere in the order of transfer. Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful. In case of violation of policy, proper remedy is to approach authorities by pointing out violation and authorities to deal with the same keeping in mind the policy guidelines". and thereafter in the case of Mridul Kumar Sharma Vs. State of M.P. Reported in I.L.R. (2015) MP 2556, has held as under: "Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification, or cancellation of the transfer order. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. If the order of transfer is not stayed, modified, or cancelled the concerned public servant must carry out the order of transfer. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other". 19. The Hon'ble Supreme Court in the case of Govardhan Lal (supra) has held as under:- "8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer." 20. The Hon'ble Supreme Court in the case of Dr. Nagorao Shivaji Chavan (supra) has held as under :- "12. Notwithstanding the provisions contained in Section 3 which uses the expression that "ordinarily the tenure is three years", in our opinion in exceptional circumstances in a given case, or in the case of administrative exigencies, transfer is permissible, and no absolute bar on transfer is created by virtue of the provisions contained in section 3 read with section 4. In the facts and circumstances of the case and also considering the past record of respondent No. 1 of not joining the place where he was transferred for five years, no interference with the order of transfer is called for." 21. In such circumstances, no interference in the transfer order can be made. Therefore, this Court is not inclined to entertain the petition against the transfer/movement order. The petition is rejected to the aforesaid effect. In such circumstances, no interference in the transfer order can be made. Therefore, this Court is not inclined to entertain the petition against the transfer/movement order. The petition is rejected to the aforesaid effect. The only relief which can be extended to the petitioner is that the petitioner may approach before the concerning authorities by filing a detailed representation raising all her grievances and in case such a representation is filed, the authorities are directed to dwell upon the representation and pass a self contained speaking order settling all the grievances of the petitioner and the outcome be communicated to the petitioner, within a period of one month from the date of receipt of certified copy of this order. Petition stands disposed of.