Kailash Chander Kaushik vs The Institute Of Company ...
2022 Latest Caselaw 9222 Bom

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         Digitally
         signed by
         TRUSHA
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR
MOHITE
         TUSHAR
         MOHITE
         Date:
                                      CIVIL APPELLATE JURISDICTION
         2022.09.16
         16:33:08
         +0530


                                       WRIT PETITION NO.4579 OF 2022


                      1. Mr.Kailash Chander Kaushik
                         Age - 55, Occ.Joint Director of ICSI
                         Resident of B-201, Sector 34,
                         Sky Avenue, Plot No.7, 8, 17, 17, 18
                         Kamothe, Navi Mumbai 410 209
                         E:- [email protected]
                         M:- 88797 50509                      .... Petitioner

                         Versus

                      1. The Institute of Company
                         Secretaries of India
                         Through its President

                      2. The Secretary of The Institute
                         of Company Secretaries of India

                      3. Joint Secretary HR
                         of The Institute
                         of Company Secretaries of India
                         All having address at:-
                         ICSI house, 22 institutional area
                         Lodi Road, New Delhi - 110 003

                      4. Director ICSI CCGRT,
                         Plot No.101, Sector - 15,
                         Institutional Area, CBD Belapur,
                         Navi Mumbai - 400 614                .... Respondents


                      Mr. J.P. Cama Sr.Counsel a/w Mr.Vishwanath Patil a/w Mr.Kewal
                      Ahya i/b Mr.Ashwin C. Hawelikar for the Petitioner

                      Mr.Sudhir Talsania, Sr.Counsel a/w Mr.Chaula Solanki a/w
                      Ms.Rinky Kanojia i/b M/s.H.H.Nagi and Associates for the
                      Respondents




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                          CORAM:     S.V. GANGAPURWALA &
                                     MADHAV J. JAMDAR, JJ.

                  RESERVED ON:       AUGUST 22, 2022

               PRONOUNCED ON:        SEPTEMBER 14, 2022

JUDGEMENT : (PER : S.V.GANGAPURWALA, J.)

1 The Petitioner is challenging the office order dated 19.01.2022

passed by the Respondents thereby transferring the Petitioner to

Hyderabad.

2 Mr.Cama, the learned Senior Advocate for the Petitioner

strenuously contends that the order of transferring the Petitioner is

not issued for any exigency of service or in the interest of

administration but issued in colourable exercise of power as

Petitioner has unearthed the rampant misappropriation of funds

and corruption in the Respondent Institute. The Petitioner is a flag

bearer in exposing the corruption and misappropriation of funds in

Respondent no.1. The same is also reported in audit report. The

learned Senior Advocate submits that because of the Petitioner

unearthing and disclosing the rampant corruption and

misappropriate of funds in the Respondent no.1, the Petitioner is

subjected to frequent transfers i.e. 9 times during his service tenure

from 2009 to 2022.

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3        The learned Senior Advocate further submits that the

impugned transfer order of the Petitioner is without application of

mind and logic. The Petitioner hails from the administrative

background with combined experience of 23 years working with the

Indian Air Force and 13 years with Respondent. Therefore,

transferring the Petitioner to research and academic wing is not in

the interest of the Respondents.

4 The learned Senior Advocate further submits that the order of

transfer is inconsistent with the transfer policy as mandated under

the ICSI Service Rules, 1979. As per the transfer policy, employees

who have spent more than five years in the Directorate / Chapter /

Regional Office may be considered for transfer or as per the

exigencies / requirement of the Institute. The transfer order is in

the flagrant violation of the said rules. The Petitioner is posted at

ICSE - CCGRT, CBD Belapur, Navi Mumbai in September 2020. On

31.01.2022 impugned order is issued transferring the Petitioner as

HOD in CoE as Joint Director. It is further submitted that the wife of

the Petitioner is a patient of 'Acute depression' and is under

treatment at Navi Mumbai. The Petitioner's unmarried daughter

has a job at Navi Mumbai. The Respondent no.1 purposely and

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vindictively has withheld the promotion of the Petitioner since 2020

and an Officer Junior in cadre who is charged with misappropriation

of funds and found guilty of sexual harassment case by JMFC,

Belapur, Navi Mumbai was promoted. The order of transfer of the

Petitioner is for alien purpose and the same is malafide and

colourable exercise of power and against the public policy.

5 The learned Senior counsel relies on the judgment of the Apex

Court in the case of Punjab and Sind Bank and Ors. vs. Durgesh

Kuwar (Mrs.)1 wherein it is held that if the Petitioner is victimized

this court would interfere with the order of transfer.

6 Mr.Talsania the learned Senior Advocate for the Respondents

submits that the order of transfer is due to administrative

exigencies. The Petitioner is not the only person to be transferred.

The transfer order would demonstrate that 13 persons are

transferred. It is not correct on the part of the Petitioner to suggest

that the Petitioner was transferred 9 times. The employees of

Respondent no.1 are governed by Schedule - E transfer policy of

ICSI Service Rules, 1979. The Petitioner was initially appointed on

February 4, 2009 at CBD Belapur, Navi Mumbai and was internally

transferred in the same City of Mumbai on April 2013 and was

1 (2020) III CLR 164

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serving there till July 2014. The Petitioner, as such, completed his

five years in the City of Mumbai. The Petitioner was transferred to

Delhi in August 2014 and thereafter, he was transferred to Mumbai

again in February 2016. Thereafter, in the year 2018, the Institute

required the Petitioner to look after the work at CoE, Hyderabad.

The Petitioner was transferred to Delhi as per the requirement of the

Institute by Deputy Head Administration in the capacity of Joint

Director and was internally transferred from ICSI-NIRO, Delhi in

April 2019 and again in Delhi from NERO to ICSI Delhi. Hence, for a

period from June 2018 to August 2020, Petitioner was in Delhi. In

August 2020 Petitioner requested for his transfer from Delhi to CBD

Belapur, Navi Mumbai. Hence, on request of Petitioner, he was

transferred to CBD Belapur, Navi Mumbai in September, 2020.

From February, 2016 till May 2018 Petitioner was in Mumbai and

since February 2018 he was stationed at WIRO, Nariman Point.

However the work assignment was of Hyderabad in Delhi. The

Petitioner did not complete five years of service as he had requested

for transfer in August 2020. The said request was considered by the

Management and on his request was transferred to CBD, Belapur,

Navi Mumbai. This would demonstrate that the Respondent does

not have any ill motive against the Petitioner. It is false to say that

because of the Petitioner unearthed case of corruption, the

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Petitioner is transferred. Auditors had brought to the notice of

Respondent no.1 instances of financial irregularities. Council of

ICSI, on 17.09.2016, took serious note of the financial and other

irregularities reported through draft Audit Report and constituted

an Investigation Committee, interalia, to investigate such financial

and other irregularities. The Council, in its meeting held on

27.03.2017, decided to file disciplinary case against Mr.Joshi and

Mr.Vyas and against the employee CS Priyanka Das. The learned

Senior counsel submits that this court may not exercise its power of

judicial review in case of transfer. Transfer is not with malafide

intention or against the rules. Promotion is as per the eligibility

based on merit / seniority. The learned counsel relies upon the

judgment of the Apex Court in the case of Gujarat Electricity Board

and Another vs. Atmaram Sungomal Poshani 2 and submits that the

transfer of a government servant appointed to a particular cadre of

the transferable posts from one place to the other is an incident of

service.

7 We have considered the submissions canvassed by the learned

Senior counsel for the parties. The scope of judicial review in the

matters of transfer is in a narrow compass. This court would

normally not interfere with the order of transfer unless the transfer

2 (1989) 2 SCC 602

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is actuated with malafide intention or in gross violation of statutory

provision.

8 The Petitioner to claim that he was transferred frequently has

placed a list of transfers. The same is reproduced as under :

Sr.No.     Place of Posting                               Month & Year
N.A.       ICSI-CCGRT (Initial Posting)                   February, 2009
           CBD Belapur, Navi Mumbai
           (Assistant Director Administration)
01         ICSI-CCGRT to WIRO                             April, 2013
           Nariman Point, Mumbai
           (Head of WIRO)
02         WIRO to ICSI-HO                                August, 2014
           New Delhi
           (Deputy Head of Administration)
03         ICSI-HO to WIRO                                February, 2016
           Nariman Point

(Regional Director in the capacity of Joint Director) 04 WIRO to CoE, Hyderabad, February, 2018 Hyderabad (Special assignment given to Petitioner as Joint Director) 05 ICSI-HO at Delhi June, 2018 (Deputy Head Administration in the capacity of Joint Director) 06 ICCI-NIRO April, 2019 Delhi (Regional Director of NIRC in the capacity of Joint Director) 07 NIRO to ICSI-HO January, 2020 (Head Administration in the capacity of Joint Director) 08 ICSI-CCGRT September, 2020 CBD Belapur, Navi Mumbai (Joint Director) 09 CoE, 31.01.2022 Hyderabad (Transferred as HOD in CoE as Joint Director)

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9 As has been narrated by the Respondents that the Petitioner in

his first posting from 2009 till July 2014 was at Mumbai. In August

2014 was transferred to New Delhi and in 2016 was posted back at

Navi Mumbai. Thereafter was transferred to Hyderabad in

February, 2018 and was transferred to Delhi and he was in Delhi

upto January 2020. The Petitioner was thereafter, transferred to

Belapur at his request. Within two years of he being posted at Delhi,

Petitioner made request for transfer to Navi Mumbai. The request

of the Petitioner for transfer was considered positively by the

Respondents.

10 Transfer Policy provides that the employees who have spent

more than five years may be considered or as per the exigencies /

requirement of the Institute. The said policy further states that the

transfer of an employee will invariably be made against the

requirement. The criticality of the manpower for both the

Directorate / Regional / Chapter Office shall also be kept in view

while ordering such transfers.

11 The transfer of the Petitioner under the impugned order is not

a solitary instance for transfer of the employee i.e. the Petitioner but

13 employees are transferred under the said order. The same is

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reproduced as under :

S.No. Name & Designation From To To join latest by

1. Mr.Sanjay Kumar Nagar CCGRT WIRO 03.02.2022 Joint Secretary

2. Dr.Rajesh Kumar Agrawal WIRO CCGRT 08.02.2022 Director

3. Mr.Kailash Chander CCGRT ICSI-Centre of 31.01.2022 Kaushik Excellence (COE), Joint Director Hyderabad

4. Mr.Chitij Directorate of Directorate of 31.01.2022 Executive Assistant Council Affairs Membership

5. Mr.Munesh Bindal Oral Coaching Directorate of 24.01.2022 Junior Executive and Online Council Affairs Assistant Classes Cell

6. Mr.Abhishek Kumar Directorate of Directorate of 24.01.2022 Senior Office Assistant Administration, Student Services Lodi Road

7. Mr.Narsingaraju Gadla SIRO ICSI-Centre of 14.02.2022 Senior Executive Excellence (COE), Assistant Hyderabad

8. Mr.Gopi Chand Directorate of Directorate of 21.01.2022 Office Assistant Law Examination

9. Mr.Rajnish Kumar Surya Directorate of Directorate of Law 24.01.2022 Office Assistant Council Affairs

10. Mr.Chiranjeeb Sarma Roy NE-Guwahati Ranchi Chapter 31.01.2022 Senior Office Assistant Chapter

11. Mr.Shashi Bhushan Ranchi Chapter NE-Guwahati 08.02.2022 Prasad Chapter Senior Office Assistant

12. Mr.Vinay Kumar Ghaziabad RTI Cell 24.01.2022 Executive Assistant Chapter

13. Mr.Vishal Bhasin RTI Cell Directorate of 31.01.2022 Senior Executive Human Resource Assistant

12 The Petitioner to substantiate his contention that the transfer

is malafide and on account of the fact that he is instrumental in

unearthing the corruption and misappropriation does not seem to be

proper from the facts on record. Auditors have also pointed out the

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misappropriation. The Respondent council has taken action against

the erring employees. In case the Respondent had some ill motive

against the Petitioner they would not have considered the request of

the Petitioner for a request transfer from New Delhi to Navi Mumbai

in 2020.

13 In the case of Punjab and Sind Bank and Ors. vs. Durgesh

Kuwar (Mrs.) (Supra) relied by the Petitioner, the Apex Court has

observed that it is the settled principle that transfer is an exigency

of service. An employee cannot have a choice of postings.

Administrative circulars and guidelines are indicators of the manner

in which the transfer policy has to be implemented. However, an

administrative circular may not in itself confer a vested right which

can be enforceable by a writ of mandamus. Unless an order of

transfer is established to be malafide or contrary to a statutory

provision or has been issued by an authority not competent to order

transfer, the Court, in exercise of judicial review, would not be

inclined to interfere.

14 In view of the aforesaid observations of the Supreme Court, the

only ground for consideration would be, as to whether there is

violation of statutory rules or the transfer is malafide one. From the

facts discussed above, it does not appear that transfer is malafide

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one nor it appears that it is in total breach of the rules. The rules

state that the transfer would be upon completion of five years.

However, it also states that the transfer of the employee will be

invariably made against the requirement. The requirement of the

employee at a particular place is best left to the employer. The

transfer does not appear to be malafide one.

15 The Petitioner shall join the transferred place within three

weeks from today.

16 In light of the above, no case for interference is made out. Writ

Petition as such is dismissed. No costs.

(MADHAV J. JAMDAR, J.)                      (S.V. GANGAPURWALA, J.)




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