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Citation Codes
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Case Number
Advocates
  • (By Advocate: Shri Javed Ahmed)
  • (By Advocate: Shri B.S Jain)
Judges
  • S.K Naik, Member (A)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • (By Advocate: Shri Javed Ahmed)
  • (By Advocate: Shri B.S Jain)
Judges
  • S.K Naik, Member (A)
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Smart Summary

Structured Summary of the Tribunal Opinion

Factual and Procedural Background

The applicant challenges his transfer from Delhi to Darjeeling. This is the second round of litigation concerning the transfer. In an earlier petition (OA-971/2004) the Tribunal directed the respondents on 19.4.2004 to treat that OA as a fresh representation and to dispose of it by a speaking and reasoned order within a month, and to ensure the applicant was not disturbed until disposal.

Pursuant to that direction, the respondents issued an Office Memorandum dated 11.5.2004 refusing the request for cancellation of the prior transfer order and indicating the applicant would be relieved on transfer by 31.5.2004. The applicant impugns that 11.5.2004 order in the present OA. A Vacation Bench on 11.6.2004 granted interim status quo which later stood merged with the main order.

The Tribunal notes the facts had been discussed in the earlier OA and that the respondents had considered the applicant's representation and issued a reasoned order declining relief.

Legal Issues Presented

  1. Whether the Office Memorandum dated 11.5.2004 (refusing cancellation of transfer) is legally maintainable.
  2. Whether the transfer was malafide or punitive in nature such that the Tribunal should interfere.
  3. Whether the absence of a formally prescribed transfer policy/rules by the Department renders the transfer arbitrary or invalid.
  4. Whether the applicant's medical grounds justified cancellation or postponement of the transfer.

Arguments of the Parties

Applicant's Arguments

  • The impugned order (11.5.2004) and the earlier transfer order are assailed mainly on three grounds: (a) there is no prescribed transfer policy by the Department under which the applicant was transferred; (b) the applicant was singled out while other employees with longer periods of stay were not transferred (allegation of "pick and choose"); and (c) the transfer was passed with malafide intention.
  • The applicant also relied on medical grounds (illness) in support of his representation seeking cancellation or deferment of the transfer.

Respondents' Arguments

  • Although no formal written transfer policy/rules exist, transfers are considered by a Committee headed by an officer of Joint Secretary level with two other senior officers; therefore, transfers are not ordered without any system.
  • The Committee considered the applicant's case and recommended transfer in public interest and due to exigencies of work after considering the applicant's overall background and conduct.
  • There were vacancies at the Darjeeling unit (three vacancies against sanctioned strength of five Junior Engineers) and exigencies required filling at least one vacancy.
  • Regarding alleged "pick and choose", the Committee considered seniority and experience; some senior officers were retained in the Ministry for administrative reasons and in the larger public interest.
  • The applicant had allegedly displayed insubordination, disobedience to superior officers, sarcastic remarks, and had purportedly tampered with official records (Aug–Dec 2002). He was given opportunities to improve and was asked to explain; only after failure to improve was the matter placed before the Committee which recommended transfer to enforce discipline.
  • The respondents deferred the transfer up to 31.3.2004 on health grounds when the applicant represented, giving him five months; this, they contend, demonstrates absence of malafide or vindictiveness.
  • The respondents relied on a Supreme Court judgment (Union of India v. Janardhan Debanath) to submit that transfers which do not adversely affect status, service prospects, or pay, and are not punitive, ordinarily do not merit interference and departments should be given latitude to enforce discipline and meet administrative exigencies.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Union of India & others v. Sri Janardhan Debanath & another, Civil Appeal No.1010-1011 of 2004 (Arising out of SLP(C) Nos.20002-20003/2003), decided 13.2.2004 The principle that transfers which do not adversely affect status, service prospects, or pay, and do not visit the person with penal consequences, are not to be treated with the same scrutiny as dismissals/terminations; courts should generally refrain from interfering with transfers made in public interest or for administrative exigencies, particularly to enforce discipline. The Tribunal relied on this authority to hold that the applicant's transfer, which did not adversely affect his service conditions or amount to punishment, did not warrant interference. The Court accepted the principle that the Department should be given latitude to enforce discipline and meet administrative exigencies, and applied it to dismiss the OA.

Court's Reasoning and Analysis

The Tribunal undertook the following analytical steps based on the record and arguments:

  • Noted the procedural history: earlier OA (OA-971/2004) had been treated as a representation and directed to be disposed of; respondents issued a detailed order (11.5.2004) declining cancellation of transfer; the present OA challenges that order and an interim status quo had been granted earlier which was later merged.
  • Identified the narrow grounds on which the Tribunal may interfere with transfers: (a) where transfers violate any rule prescribing transfers/standing orders, or (b) where transfers are shown to be malafide or punitive. The Tribunal described this as consistent with a "catena of judgments."
  • Examined applicant's allegation of malafide: found no specific allegation or evidence that any official bore a grudge or acted out of vindictiveness; noted respondents had deferred the transfer for five months on health grounds, indicating consideration rather than bias.
  • Considered the medical evidence: concluded the medical certificate only advised regular treatment for the applicant and his wife but did not show that such treatment was available exclusively in Delhi, so the medical plea did not compel cancellation.
  • Addressed the absence of a formal written transfer policy: accepted respondents' explanation that a Committee headed by a Joint Secretary with senior officers constitutes a system for transfer decisions and thus the process could not be characterised as arbitrary merely because there was no formal rule document.
  • Weighed the "pick and choose" allegation: acknowledged that some more senior staff remained in Delhi for administrative reasons; the Tribunal accepted the respondents' explanation that retention of some senior staff was motivated by administrative concerns and public interest.
  • Evaluated conduct-related grounds: recorded the respondents' assertions regarding the applicant's alleged insubordination, disobedience, sarcastic remarks, and tempering with records; noted that the Department afforded opportunities to the applicant to improve before seeking a transfer to enforce discipline.
  • Applied the Supreme Court authority (Janardhan Debanath): held that when transfers are not stigmatic or punitive and do not adversely affect service conditions, courts/tribunals should not interfere; departments are entitled to latitude to enforce discipline and address administrative exigencies.
  • Concluded that the applicant failed to establish malafide, violation of any transfer rule, or any other reason to warrant intervention; accordingly the OA lacked merit.

Holding and Implications

Holding: The Tribunal DISMISSED the Original Application (OA) for lack of merit and ordered that the interim order dated 11.6.2004 stood merged with the main order. The dismissal was made without any order as to costs.

Implications: The direct effect is that the applicant's challenge to the Office Memorandum dated 11.5.2004 fails and the respondents' transfer decision stands as upheld by the Tribunal. The opinion does not purport to lay down any new precedent beyond applying existing principles (including reliance on the cited Supreme Court decision) that transfers which do not adversely affect service conditions and are not punitive ordinarily do not merit interference by the Tribunal.

Signed by: S. K. Naik, Member (A)

Show full summary ...

    Rama Nand v. Union Of India

    Applicant is before this Tribunal in a second round of litigation challenging again his transfer from Delhi to Darjeeling. His earlier OA-971/2004 challenging the order dated 31.12.2003 was disposed of by a coordinate Bench of this Tribunal in 19.4.2004 with a direction to the respondents to consider the case of the applicant by treating the said OA as a fresh representation and dispose of the same by a speaking and reasoned order within a month. Respondents were also directed to ensure that the applicant is not disturbed till the disposal of his representation.

    2. In pursuance thereof, respondents have issued an Office Memorandum dated 11.5.2004 stating therein that the request for cancellation of transfer from Delhi to Darjeeling ordered earlier, cannot be acceded to and that he will be relieved on transfer by 31.5.2004. This order dated 11.5.2004 is impugned in the present OA. By an interim order passed on 11.6.2004 by the Vacation Bench, status quo as of that date was ordered to be maintained.

    3. Since the facts of the case have already been discussed and taken care of in applicants earlier OA, I do not deem it necessary to repeat the same hereagain. I have heard the learned counsel for the parties and perused the pleadings.

    4. Learned counsel for the applicant has assailed the impugned order as well as the transfer order mainly on three grounds, namely there is no transfer policy prescribed by the respondent-Department by which the applicant has been transferred, employees with much longer period of stay have not been touched by the respondents while the applicant has been singled out for the transfer and the impugned order has been passed with malafide intention.

    5. The respondents have contested the claim of the applicant. Replying to the contention that the Department has no transfer policy, learned counsel states that even though no rules for formal transfer policy have been formulated by the Department for implementation, there is a Committee consisting of an Officer of the level of a Joint Secretary with two other senior officers who consider all the matters concerning transfer and thus, it cannot be said that the transfers are being ordered without any system. The case of the applicant was also considered by the Committee who, in its wisdom, recommended his transfer in public interest and in exigencies of work after considering the total background of the work and conduct of the applicant. He has further stated that as against the sanctioned strength of five posts of Junior Engineer at Darjeeling, there are three vacancies and the exigencies of service warranted the filing up of at least one vacancy. On replying to the charge that the respondents have resorted to a method of pick and choose and have transferred the applicant while a number of other Junior Engineers with a longer stay have been left untouched, the learned counsel has fairly conceded that the Committee has considered this aspect also but some of the Junior Engineers senior to the applicant and more experienced have been retained in the Ministry again due to administrative reasons and in the larger public interest. Elaborating the background under which the applicant has made himself liable for such a decision, the learned counsel has contended that the applicant has suppressed some of the material facts relating to his behaviour of insubordination, disobedience of orders given to him by superior officers and passing of sarcastic remarks against them. Besides, he has resorted to misdeed of tempering with the official records for personal gains during August- December 2002. The learned counsel, however, submits that despite shortcomings, the applicant was given ample opportunity to improve upon his conduct and when he failed only thereafter, he was asked to explain his position. When the applicant failed to mend his ways to improve his performance, the respondents submitted the matter before the Committee who recommended his transfer to enforce discipline and to maintain the decency and decorum in public service. This was, the learned counsel contends, necessary in the administrative exigencies to ensure smooth functioning of the Administration and the same could not be called in question as being malafide or arbitrary. That the respondents were neither vindictive nor issued the order with any malafide intention can be seen from the fact that when the applicant made a representation for the cancellation of his transfer order on health grounds, the transfer order was deferred upto 31.3.2004 and he was given five months to take care of his health problems and report for duty at Darjeeling thereafter. Meanwhile, he has filed the present OA and has managed to obtain the stay order. Had the respondents any bias against the applicant, they would not have considered his request and deferred the transfer order by five months. The allegation of the transfer having been ordered with malafide intention, therefore, is totally baseless, the learned counsel contends.

    6. Finally, the learned counsel has referred to a recent judgment of the Honble Supreme Court passed in Civil Appeal No.1010-1011 of 2004 (Arising out of SLP(C) Nos.20002-20003/2003) decided on 13.2.2004 in the case of Union of India & others v. Sri Janardhan Debanath & another vide which the Honble Apex Court had set aside the judgment of the Honble Guwahati High Court. In that case before the Honble Apex Court, a set of employees of the Postal Department had been transferred from Agartala to Meghalaya Division. When the Tribunal declined to interfere in the matter, they challenged the Tribunals order before the Agartala Bench of the Guwahati High Court on the ground, inter alia, that the transfer order was passed as a measure of penalty. The Union of India has taken the stand that the transfer was ordered in public interest and on account of exigencies of Administration. It had also been pointed out that the employees had not only misbehaved with the Director (Postal Services) but had also abused her in filthy language, etc. This conduct was held to be unbecoming of an employee and with a view to enforce discipline and to avoid recurrence of such unfortunate incident, they were transferred. When the matter was agitated before the Tribunal, it refused to grant any relief but Honble High Court accepted their prayers and held that the transfer was impermissible. The Honble High Court held that apart from violation of FR 15 and Rule 37, it was a measure of penalty. The Apex Court, however, did not agree with this view of the High Court. It would be of relevance to quote as to what the Apex Court had to say in the matter:- The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions  status, service prospects financially and same yardstick  norms or standards cannot be applied to al category of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.

    7. Relying on this judgment, the learned counsel for respondents has argued that since the transfer of the applicant does not adversely affect the service conditions, such as, status, service prospects and pay, etc. of the applicant, it could not be termed as either malafide or punitive and calls for no interference by this Tribunal.

    8. I have heard the arguments advanced by the learned counsel for the parties carefully and also have perused the records of the case. This is a second round of litigation. Earlier a direction had been given in OA-971/2004 on 31.12.2003 directing the respondents to treat that OA as a representation and dispose of the same by a speaking and reasoned order. In pursuance thereof, they have passed a detailed order but have not acceded to the request of the applicant. The only ground on which the Tribunal can intervene in matters of transfer, as has been held in catena of judgments, would be only if an order of transfer has been passed in violation of any rule prescribing transfer/standing orders, if any, or on grounds of such transfers being ordered malafide The learned counsel for applicant has tried to make out a case under the latter category. However, as has been pointed out by the learned counsel for respondents, the order of transfer cannot be said to have been made malafide. No specific ground/allegation has been made against any official who would bear any grudge against the applicant. Besides, the respondents have, when represented, given the applicant more than adequate time, i.e., five months by deferring the order of transfer on health grounds. The applicant has tried to make much out of his ailment and it will not help him as the medical certificate referred to above by him only states that the applicant and his wife are advised to undergo regular treatment but it cannot be held that such treatments are available only at Delhi and no where else.

    9. With regard to the argument that there is no such transfer policy, the respondents have explained the position that there is a system under which a Committee headed by a Joint Secretary level officer considered the same and thus there is a system, which cannot be said to be arbitrary. Insofar as the plea that persons with longer stay continue at Delhi is concerned, I find that the applicant has been picked up for transfer under peculiar circumstances. As has been held by the Apex Court in the judgment cited (supra), if the allegations against the applicant were that his conduct was unbecoming and that he indeed was required to be transferred in the exigencies of service to enforce discipline, decency and decorum in public service, the latitude has to be left with the Department concerned.

    10. Under the circumstances, I find no merit in this OA and the same is accordingly dismissed without any order as to costs. Interim order passed by this Tribunal on 11.6.2004 stands merged with this main order. ( S. K. NAIK ) MEMBER (A) /sunil/

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    Comments

    Rama Nand v. Union Of India
    (Jul 19, 2004)