Bombay High Court
Mr. Nitin Pandurang Bhoyar vs The Director General And Inspctor ... on 12 July, 2021
Bench: G. S. Kulkarni
3-WP.2222.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2222 OF 2021
Mr.Nitin Pandurang Bhoyar } Petitioner
Versus
The Director General and }
Inspector General of Police }
(M.S.), Mumbai and Ors. } Respondents
Ms. Anamika Malhotra i/b. Mr. Parth Shah for
the petitioner.
Ms. Rina Salunkhe, AGP for the respondents.
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- JULY 12, 2021
PC :-
1. The challenge in this writ petition, under Articles 226
and 227 of the Constitution of India, is to a judgment and
order dated 12th May 2021 of a Judicial Member of the
Maharashtra Administrative Tribunal, Mumbai Bench, Mumbai
(hereafter "the Tribunal" for short) dismissing the petitioner's
original application bearing O.A. No. 791 of 2020 and in the
process upholding the order under challenge therein, being an
order of transfer dated 10th December 2020. By such order,
the petitioner was transferred from the post of Deputy
Superintendent of Police, Anti-Corruption Bureau, Pune to the
post of Police Inspector, Police Training Centre, Jalna.
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2. We consider it appropriate to notice that on 9 th January
2020, the petitioner was transferred from the post of Deputy
Superintendent of Police, Anti-Corruption Bureau, Pune to the
State Intelligence Department, whereupon such order of
transfer was challenged by the petitioner before the Tribunal
in an earlier original application, bearing O.A. No. 60 of 2020.
The grounds of challenge were (i) the order of transfer suffers
from lack of competence, inasmuch as, the petitioner being an
officer in the rank of Deputy Superintendent of Police, the
competent authority to approve such transfer was the Home
Minister based on a recommendation to be made by the Police
Establishment Board-1, whereas the recommendation had
been made by the Police Establishment Board-2 and there
was no approval of the Home Minister; and (ii) there was no
public interest involved in ordering the impugned transfer.
3. O.A. No. 60 of 2020 was considered by the same Judicial
Member, who has passed the order under challenge in this
writ petition. For the reasons recorded in a judgment and
order dated 30th June 2020, the Tribunal rejected the
contention of the petitioner that there was no public interest
involved in transferring him to the State Intelligence
Department; however, the original application succeeded
because of the Tribunal's acceptance of the first contention of
the petitioner that recommendation of the Police
Establishment Board-1 was lacking and also that the Home
Minister's approval had not been obtained prior to issuance of
the impugned order dated 9th January 2020. As a
consequence, the impugned transfer order dated 9th January
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2020 was quashed and the petitioner directed to be reinstated
on the post of Deputy Superintendent of Police, Anti-
Corruption Bureau. It is not in dispute that the decision of the
Tribunal dated 30th June 2020 was accepted by the
respondents in O.A. No. 60 of 2020, resulting in compliance of
the directions contained therein.
4. Insofar as the further order of transfer dated 10th
December 2020 is concerned, which has been passed after
disposal of O.A. No. 60 of 2020, it was urged on behalf of the
petitioner before the Tribunal that the same was a product of
mala fide, having been issued with a revengeful attitude to
displace the petitioner from the Anti-Corruption Bureau, Pune
at any cost after the earlier attempt came to be spurned by
the Tribunal. Two circulars dated 7th October 2016 and 18th
November 2017 were referred to, and it was the petitioner's
contention that the order of transfer was issued in violation
thereof. It was also contended that there was no public
interest involved in transferring the petitioner from Pune to
Jalna.
5. The Tribunal considered the contentions advanced on
behalf of the parties and proceeded to decline interference
upon rejecting the contentions as urged on behalf of the
petitioner. The outcome of such consideration has been noted
by us at the beginning of this order.
6. Ms. Malhotra, learned advocate for the petitioner, has
assiduously argued that the Tribunal fell in error in not
accepting the petitioner's contentions.
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7. Ms. Malhotra contends that the respondents having
suffered an adverse decision of the Tribunal in the first round
of litigation, whereby the earlier order of transfer was set
aside, they wasted no time to subject the petitioner to
transfer once again without any genuine administrative
reason. She has drawn our attention to the order of transfer
to demonstrate that it does not contain any reason. According
to her, such act on the part of the respondents exposes an
attitude of teaching the petitioner a lesson for not having
gracefully accepted the order dated 9th January 2020. This,
she contends, demonstrates malice in law as well as malice in
fact, which the Tribunal failed to correct by its intervention.
Next, it is contended that there has been no dereliction of
duty on the petitioner's part and the order of transfer has
been used as a weapon of punishment against him for having
approached the Tribunal and succeeded before it. Further, she
contends that there is no public interest involved which could
have entailed a mid-term transfer resulting in the petitioner
being shunted out of the Anti-Corruption Bureau. That apart,
she also contends that the transfer has been ordered in
violation of the circulars dated 7th October 2016 and 18th
November 2017, which required the respondents to record the
statement of the petitioner in course of a preliminary inquiry
that was conducted upon receipt of certain complaints against
him.
8. Based on the aforesaid contentions, Ms. Malhotra prays
that the judgment and order under challenge deserves to be
set aside and the petitioner posted back to the Anti-
Corruption Bureau.
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9. We have not considered it necessary to call upon
Ms.Salunkhe, learned AGP for the respondents to answer the
contentions urged by the petitioner.
10. Before we consider the contentions urged by Ms.
Malhotra, it would be appropriate to notice section 22N, which
has been introduced in the Maharashtra Police Act, 1951
(hereafter "the Act of 1951" for short) by an amendment. The
said provision, for facility of appreciation, is quoted herein
below:
"22N. (1) Any Police Personnel in the Police Force shall
have a normal tenure of two years on one post or office,
subject to the promotion or superannuation. The
Competent Authority for the general transfer shall be as
follows, namely :--
Police Competent Authority
Personnel
(a) Officers of the Indian ... Chief Minister ;
Police Service
(b) Maharashtra Police ... Home Minister ;
Service Officers of and
above the rank of
Deputy Superintendent
of Police
(c) Officers upto Police (a) Police Establishment
Inspector Board No.2.
(b) Police Establishment
Board at Range Level.
(c) Police Establishment
Board at
Commissionerate Level :
Provided that, the State Government may transfer
any Police Personnel prior to the completion of his
normal tenure, if,--
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3-WP.2222.2021
(a) disciplinary proceedings are instituted or
contemplated against the Police Personnel ;
or
(b) the Police Personnel is convicted by a court
of law ; or
(c) there are allegations of corruption against
the Police Personnel; or
(d) the Police Personnel is otherwise
incapacitated from discharging his
responsibility ; or
(e) the Police Personnel is guilty of dereliction of
duty.
(2) In addition to the grounds mentioned in sub-
section (1), in exceptional cases, in public interest and
on account of administrative exigencies, the Competent
Authority shall make mid-term transfer of any Police
Personnel of the Police Force :
Provided that, the Competent Authority may, by
general or special order, delegate its powers under this
sub-section to any of its subordinate authority.
Explanation.-- For the purposes of this sub-section, the
expression " Competent Authority " shall mean :--
Police Personnel Competent Authority
(a) Officers of the ... Chief Minister ;
Indian Police
Service
(b) Maharashtra ... Home Minister ;
Police Service
Officers of and
above the rank of
Police Sub-
Inspector
(c) Police Personnel ...Director General and
upto the rank of Inspector General of
Assistant Police Police
Sub-Inspector
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11. A bare reading of section 22N would reveal that the
same is the repository of power to transfer any police
personnel prior to completion of normal tenure as well as in
exceptional cases, in public interest and on account of
administrative exigencies. Such provision permits the
competent authority, as indicated therein, to make mid-term
transfer of any police personnel of the police force. We are,
therefore, tasked to consider whether the impugned order of
transfer was issued in compliance with the terms thereof and
whether the Tribunal was justified in declining interference. It
is trite, only on limited grounds a transfer order could be
interfered with, viz. if it is in breach of mandatory statutory
provisions or is the outcome of mala fide exercise of power for
ulterior motives or collateral purposes.
12. In the present case, the recitals in the order of transfer
dated 10th December 2020 reveal a reference to the
provisions of section 22N(2) of the Act of 1951. Obviously, in
view thereof, the order of transfer is presumed to be one
ordered in public interest and on account of administrative
exigencies.
13. The Tribunal, in the impugned judgment and order dated
12th May 2021, noticed that the contention of the petitioner
that the earlier transfer order dated 9th January 2020 not
being in public interest had been considered and negated.
Despite such contention being barred by res judicata, the
Tribunal considered the contention of the petitioner once
again. The Tribunal perused the records and returned a
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finding that the petitioner was recommended for transfer by
the Police Establishment Board-1 constituted in terms of
section 22C of the Act of 1951; that the recommendation of
the Police Establishment Board-1 was duly approved by the
Home Minister, being the competent authority for ordering
transfer of the petitioner; and that the continuation of the
petitioner in the Anti-Corruption Bureau was found
undesirable in view of the preliminary inquiry report (default
report) dated 13th November 2019. The relevant passages
from the judgment and order of the Tribunal read as follows: -
"9. Since the same issue is now again raised in this
O.A., I would like to deal with the same in some details.
In this behalf, the perusal of record reveals that while
Applicant was serving as Deputy Superintendent of
Police, ACB, Shri Rajesh Bansode, Deputy
Superintendent of Police, ACB was directed to make
preliminary enquiry in the matter of complaints lodged
by one Shri Rajesh M. Taras on 04.09.2019 and
23.09.2019. It was transpired that Applicant had
friendly relations with Shri Taras and only to favour Shri
Taras, the Applicant misused his position as Deputy
Superintendent of Police by interfering in private
monetary dispute between Shri Taras and Shri Vijay
Date. Shri Rajesh Bansode accordingly submitted
preliminary enquiry report on 30.11.2019 to Director
General, ACB (Page Nos.176 to 181 of P.B.). The
conclusion recorded by him is as follows :-
.....(extracted in vernacular)
13. Thus, the perusal of minutes of PEB clearly spells
that PEB-1 was satisfied with the preliminary enquiry
report and there was prima-facie material attributing
certain misconduct to the Applicant and on the basis of
it, he was transferred. Where the competent authority
on the basis of preliminary enquiry report satisfied
about the existence of reasons to transfer the
Applicant, such satisfaction of PEB can hardly be
questioned unless it is shown tainted with malafides.
In the present case, no such malice can be possibly
attributed to the Respondents. Needless to mention
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3-WP.2222.2021
that existence of reasons is a matter capable of
objective verification, whereas satisfaction as to reason
is a matter of subjective satisfaction. Once the test of
existence is satisfied, the subjectivity of satisfaction
cannot be gone into by the Tribunal unless it is a case
of malafide exercise of power and Tribunal cannot
substitute its opinion for that of competent authority.
.....
15. In the present case, the competent authority has
formed the opinion that the Applicant has
unnecessarily investigated private financial dispute
which was in between Shri Taras and Shri Date but
only to favour Shri Taras, the Applicant interfered in
the said matter and misused his position in ACB. In
other words, Applicant's continuation in ACB was found
undesirable rather objectionable, and therefore, to
maintain probity in the administration as well as to
maintain the image of Department, the transfer of the
Applicant was found inevitable, which can hardly be
questioned in judicial review."
14. It is true that the reasons for which the petitioner was
initially transferred by the order dated 9th January 2020 and
subsequently by the order dated 10th December 2020 are not
at variance; incidentally, the same reasons that persuaded the
Police Establishment Board-2 to recommend the petitioner's
transfer equally weighed with the Police Establishment Board-
1 to similarly recommend. In the first round of litigation
before the Tribunal, the challenge of the petitioner succeeded
only because recommendation of the Police Establishment
Board-1 was non-existent and approval of the competent
authority, i.e., the Home Minister, not obtained. However,
omission to place the matter before the Police Establishment
Board-1 and to obtain the approval of the Home Minister were
flaws, which did not affect the merits of the matter that the
petitioner was liable to be transferred in view of his conduct
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3-WP.2222.2021
being found not to be above board in course of a preliminary
inquiry. It could not have been and has rightly not been
contended by Ms. Malhotra that upon the decision of the
Tribunal in the first round of litigation tilting in favour of the
petitioner, the respondents were not empowered to follow the
right course, as mandated by the Act of 1951 and to issue a
fresh transfer order.
15. For the reasons that the Tribunal assigned while
disposing of Original Application No. 60 of 2020 as well as
dismissing Original Application No. 791 of 2020, we need to
now examine the same in the light of section 22N(2) of the
Act of 1951.
16. As we have noticed above, section 22N(2) vests wide
ranging powers for a transfer to be ordered, even mid-term,
in public interest and on account of administrative exigencies.
The order of transfer refers to section 22N(2), which is the
source of power. Failure to give specific reason for transfer, as
contended by Ms. Malhotra, cannot give rise to the conclusion
of mala fide, for, such a finding can only be made on sufficient
reliable evidence. When mala fide exercise of power qua a
transfer order is alleged, the procedure that the Court ought
to adopt for determining whether there is any worth in such
allegation is to look into the records without, however,
embarking upon a roving inquiry. No such evidence from the
side of the petitioner is before us. On the contrary, it is
evident that the Tribunal looked into the records and has
returned a finding that the petitioner's continuation in the
Anti-Corruption Bureau was considered undesirable. Any
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member of the police force who is attached to the Anti-
Corruption Bureau, is required to maintain a conduct that is
free from blemish and is above board which, according to the
preliminary inquiry report, the petitioner failed to maintain.
The records also revealed that in a private financial dispute
between two private parties, the petitioner went out of his
way to favour a party to such dispute. That was considered by
the Police Establishment Board-1 to be sufficient to warrant
his transfer out of the Anti-Corruption Bureau resulting in a
recommendation in that regard; and such recommendation
having been placed before the Home Minister, he concurred
therewith. Reliance placed by the Tribunal in this regard on
the decision of the Supreme Court in the case of Union of
India and Ors. vs. Janardhan Debanath and Ors.
reported in (2004) 4 SCC 245, appears to be apt. In such
decision, the Court held that upon receipt of a complaint of
misconduct, an employee can be transferred without holding
an elaborate inquiry.
17. Since Ms. Malhotra has alleged malice, we have perused
the averments in the original application under several sub-
paragraphs of paragraph 7 titled 'Grounds'. Apart from
alleging that the impugned order of transfer, inter alia, is mala
fide and that the same was issued with revengeful attitude,
there is no other averment of worth. While it is always easy to
allege mala fide, it is difficult to prove it. The same cannot be
held as proved based on assumption, speculation or suspicion.
The party alleging must plead and prove that the transfer
order stands vitiated due to mala fide exercise of power. We
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are ad idem with the Tribunal that in the absence of the
necessary materials and particulars, mala fide cannot be
attributed to the respondents.
18. That apart, we have noticed that the petitioner has not,
while alleging mala fide, included in the array of respondents
any of the members constituting the Police Establishment
Board-1 as party eo nomine. The Court would not examine
the allegation of mala fide if the person to whom mala fide is
attributed is before the Court.
19. Once the transfer was in public interest in terms of
section 22N, we find ourselves in agreement with the Tribunal
that omission and/or failure to comply with the terms of the
circulars dated 7th October 2016 and 18th November 2017 do
not render the impugned action vulnerable. We would hasten
to add, relying on the decision of the Supreme Court in Union
of India vs. S.L. Abbas, reported in (1993) 4 SCC 357, that
the circulars contain executive instructions which are in the
nature of guidelines but such guidelines do not confer any
legally enforceable right.
20. In view of the foregoing discussion, we find no reason
to entertain the writ petition. The judgment and order of the
Tribunal under challenge is upheld. The writ petition stands
dismissed. There shall, however, be no order as to costs.
SALUNKE
JV
Digitally signed (G. S. KULKARNI, J.) (CHIEF JUSTICE)
by SALUNKE J V
Date: 2021.07.14
22:31:02 +0530
J.V.Salunke,PS
