Calcutta High Court
Somjit Banerjee vs Union Of India & Ors on 24 August, 2022
OD-4
ORDER SHEET
WPO/15/2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
SOMJIT BANERJEE
Versus
UNION OF INDIA & ORS.
BEFORE:
The Hon'ble JUSTICE SAUGATA BHATTACHARYYA
Date : 24th August, 2022.
Appearance :
Mr. Arkadipta Sengupta, Adv.
Mr. Prisanka Ganguly, Adv.
For the petitioner.
Mr. Sauvik Nandy, Adv.
For the respondent nos. 2&3/BOPT
The Court:- The present writ petition centers around order of
transfer dated 5th January, 2021 issued by the Director, Board of
Practical Training (Eastern Region). The petitioner is primarily aggrieved
by this order of transfer whereby the petitioner has been transferred to
the post of Analyst in the Extension Centre, Patna with effect from 18th
January, 2021.
The petitioner has another grievance relating to non-
payment of salary for the following days in the year 2020:
i) May, 2020 - 4 days;
ii) June, 2020 - 30 days;
iii) July, 2020 - 19 days.
With regard to non-payment of salary for the aforesaid period
it has been submitted on behalf of the petitioner that due to covid
pandemic during the said period petitioner could not attend the office at
Kolkata and he performed his duty from home online. It has further been
submitted since the petitioner performed his job online from home same
was wrongly not accepted by the respondent authorities, and,
accordingly, the salary for the aforesaid period was not paid. It has also
been submitted that the petitioner was entitled to receive the salary for
the aforesaid period.
Today, primarily the grievance of the petitioner is against the
order of transfer dated 5th January, 2021. Attempt has been made on the
part of the petitioner to question such order of transfer dated 5th
January, 2021 on the ground of mala fide. According to the petitioner,
the said order of transfer should not be considered in isolated manner
rather it should be examined keeping in mind denial of the respondent
authorities to pay the salary for the aforesaid period. It has been
submitted that the impugned order of transfer dated 5th January, 2021 is
sequel to the non-payment of salary which the petitioner suffered during
the aforesaid period. In addition thereto it has also been submitted that
in the transferred post of Analyst in Patna, there is no atmosphere and
infrastructural arrangement which would facilitate the petitioner to
discharge his duties as Analyst which should also be taken into
consideration while adjudicating the validity of the transfer order dated
5th January, 2021.
On the contrary Mr. Sauvik Nandy, learned advocate
representing the Board of Practical Training (Eastern Region) being the
respondent nos. 2 and 3, has opposed the prayer of the writ petitioner
and has defended the said transfer order. According to the respondent
authorities the job of the petitioner is transferable and the Director who
issued the order of transfer is empowered to issue such order of transfer
in terms of the relevant service conditions. In addition thereto, the plea of
the petitioner that the transfer order is mala fide has also been opposed
on behalf of the respondent authorities on the ground that the petitioner
has failed to demonstrate before this Court any aspect which goes
against the order of transfer and lead to a situation based on which
Court may come to a conclusion that there is malice in the order of
transfer.
This Court has considered the submissions made by the
learned advocates representing the parties. Before adverting to the order
of transfer based on the submissions made by the learned advocates it
needs to be recorded that it has been brought to the notice of the Court
that the salary for the month of May, 2022 was not paid to the petitioner
though the petitioner has joined the transferred post pursuant to the
said order of transfer. In terms of the direction issued by this Court the
salary for the month of May, 2022 has already been released in favour of
the petitioner.
In order to question the validity of the order of transfer the
only point it has been urged on behalf of the petitioner is mala fide. This
Court has considered the submissions and the facts which have been
pleaded that there is non-payment of salary for certain dates during the
months of May, June and July in the year 2020, but at the same time
this Court has also been apprised of the facts that from the month of
August, 2020 till the date of issuance of transfer order dated 5th January,
2021, petitioner has been regularly paid his salary. Therefore, the
argument of the petitioner that non-payment of salary for the aforesaid
period in the year 2020 ought to be taken into consideration in order to
find out whether the transfer order is mala fide or not cannot be
accepted. With regard to malice relating to the order of transfer this
Court is inclined to rely upon a judgment of the Hon'ble Apex Court
reported in (2020) 3 Supreme Court Cases 86; paragraphs 16, 17 and
18 (Rajneesh Khajuria-Versus-Wockhardt Limited And Another)
wherein it has been succinctly held by the Hon'ble Apex Court that the
plea of mala fides involves two questions, namely whether there is a
personal bias or an oblique motive and whether the administrative action
is contrary to the objects, requirements and conditions of a valid exercise
of administrative power. Therefore, the action complained of must be
proved to have been made mala fide on the anvil of such considerations.
Mere assertion or a vague or bald statement is not sufficient. It must be
demonstrated either by admitted or proved facts and circumstances
obtainable in a given case. If it is established that the action has been
taken mala fide or by fraud on power or colourable exercise of power, it
cannot be allowed to stand.
In view of enunciation of law on the point of malice as
contained in Rajneesh Khajuria (supra), this Court does not find any
element of malice in the order of transfer dated 5th January, 2021. The
petitioner has not been able to demonstrate before this Court that such
order of transfer is a mala fide action on the part of the Director of Board
of Practical Training (Eastern Region).
Accordingly, in view of the above consideration, the present
writ petition does not merit consideration and the same stands
dismissed.
However, this order shall not preclude the petitioner to make
a representation before the concerned authority of the Board of Practical
Training (Eastern Region) for payment of his salary for the aforesaid
period in the year 2020. If such representation is made by the petitioner
within a fortnight from date, the concerned respondent authority shall
take a decision, in accordance with law within a period of eight weeks
thereafter and the decision to be communicated to the petitioner within
one week.
There shall, however, be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be
supplied to the parties upon compliance with all formalities.
(SAUGATA BHATTACHARYYA, J.)
snn.
