Ct vs Sl-22 Union Of India & Ors
2023 Latest Caselaw 5329 Cal

                                  WPCT 3 of 2023
                                      with
                                  CAN 1 of 2023

21.08.23        Dr. Prakash Chandra Hazra @ Dr. P.C. Hazra
  Ct-11                              v.
  Sl-22                    Union of India & Ors.
 (S.R.)
           Mr. Subir Sanyal
           Mr. Bikram Banerjee
           Mr. Sudipta Dasgupta
           Ms. Sunitra Das
           Ms. Dipa Acharyya
           Ms. S. Ghosh                             ... for the petitioner.

           Mr. Ashok Kumar Chakraborty, ASG
           Mr. Partha Ghosh
           Mr. Madhu Jana                   ... for the UOI.


                 The    present   writ   petition   has   been   preferred

           challenging an order dated 2nd January, 2023 passed by

           the learned Tribunal in an original application being OA

           No.350/1005/2020.

                Shorn of unnecessary details, the facts are that the

           applicant/writ petitioner herein was posted as Senior

           Chief Medical Officer (SAG) in the office of the respondent

no.4. On 8th May, 2020, a Deputy Director in the

Enforcement Directorate (in short, ED), namely, Mohsina

Tabassum preferred an online application for CGHS card.

The petitioner, being the CGHS card issuing authority,

considered the said application and expressed his

inability to issue the same. On 18th May, 2020, the writ

petitioner was served a summons dated 14th May, 2020

issued by the Assistant Director (ED) asking him to be

present on 19th May, 2020 with details of movable and

immovable assets and the bank details held in his name

and in the names his family members together with the

income returns for the last 3 years. In reply, the petitioner

submitted a representation on 18th May, 2020, inter alia,

praying for six weeks time for personal appearance in view

of the prevailing pandemic situation. Subsequent thereto,

the petitioner attended the office of the Special Director

(ED) on 4th June, 2020 and submitted the requisite

documents. Thereafter, on 22nd July, 2020 the said

Deputy Director issued a letter to the respondent no.3

stating, inter alia, that investigation was in progress in a

case under the Prevention of Money Laundering Act, 2002

(in short, PMLA Act) against one Snehasish Kar, UDC,

CGHS, Kolkata and that it was learnt that Sri. Kar was

having close contact with the petitioner and the petitioner

was also trying to influence the case. By the said letter,

the respondent no.3 was also requested 'to consider

transferring him out of West Bengal to any other State'.

Thereafter, by a memo dated 9th October, 2020, the

petitioner was transferred from CGHS Kolkata to CGHS

Agartala. Challenging the said order of transfer, the

petitioner preferred the original application being OA

No.350/1005/2020 in which an interim order was passed

on 21st October, 2020 directing, inter alia, that the

competent authority shall review the order of transfer

within a period of four weeks and in the meanwhile, the

petitioner shall not be compelled to comply with the said

transfer order and should be allowed to perform his

current duties in Kolkata. Pursuant to the said order, the

petitioner was informed by a memo dated 20th November,

2020 that 'the case has been reconsidered by Competent

Authority and it has been decided that as the transfer of

Dr. P.C. Hazra, CMO (SAG), CGHS Kolkata was in "Public

Interest", therefore, there may be no change in the earlier

issued transfer Order No. C.18013 / 1 / 2019- CGHS.II /

CGHS-I dated 09.10.2020.' Subsequent thereto, the

respondents filed an application for vacating the interim

order dated 21st October, 2020 and by an order dated 28th

November, 2020 the same was disposed of as infructuous.

The petitioner also filed a miscellaneous application

challenging the order dated 20th November, 2020 and by

an order dated 7th December, 2022, the same was posted

for hearing on 25th January, 2023. In the midst thereof,

by an order dated 13th December, 2022 the petitioner was

released. The transferred place was also filled up by

appointing another employee for a period of one year with

effect from 28th November, 2022. The petitioner

challenged the release order by a miscellaneous

application. By the order impugned in the present writ

petition, the original application was dismissed and the

miscellaneous application was disposed of.

Records reveal that a coordinate bench of this Court

on 24th February, 2023 passed an interim order staying

the order of transfer and the release order issued by the

respondents for a period of four weeks. The said interim

order was extended from time to time and the same is

subsisting till date.

Mr. Sanyal, learned advocate appearing for the

petitioner has criticized the judgement on the ground that

the learned Tribunal has rejected the petitioner's prayer

for setting aside the order of transfer dated 9th October,

2020 without taking into consideration the fact that the

sole reason towards issuance of the order of transfer was

the direction issued by the Deputy Director, ED, as

contained in the representation dated 22nd July, 2020.

The order of transfer was not issued due to any public

interest or any administrative exigency. Being oblivious of

such circumstances, the learned Tribunal rejected the

petitioner's prayer merely paraphrasing some judgments

of the Hon'ble Supreme Court and without applying the

law correctly to the facts of the case.

He argues that the learned Tribunal erred in law in

refusing to lift the veil and to ascertain the actual reason

towards issuance of the order of transfer. The order of

transfer attracts the principle of malice as it was based on

the direction the Deputy Director of ED, whose

application for CGHS card was refused by the petitioner.

The said order was thus an outcome of the revengeful

attitude of the Deputy Director (ED).

Drawing our attention to the averments made in

paragraph 6.3 of the reply filed by the respondents, Mr.

Sanyal submits that the respondents themselves have

admitted that 'the transfer order of the Applicant was

issued on the recommendation of the transfer committee on

the basis of letter of Office of the Special Director Eastern

Region Enforcement Director arising out of investigation

under Prevention and Money Laundering Act 2002'.

However, in the very next paragraph no. 6.4, the

respondents took a different stand stating that the letter

from the ED had no relevance with the case.

Mr. Sanyal also points out that the proceeding

under PMLA Act was initiated against one Snehasish Kar

and he was suspended by the competent authority, as

would be explicit from the document annexed at page 48

of the writ petition. He informs us that the said order of

suspension has already revoked but the petitioner has

been penalized and the respondents have refused to

revoke the petitioner's order of transfer even after re-

examination of the same. The respondents have sought to

disguise their mala fide act in a cloak of legality. In

support of such argument reliance has been placed upon

the judgments delivered in the cases of Chandra Prakash

Shahi v. State of U.P. & Ors., reported in (2000) 5 SCC

152, Basanta Kumar Roy v. IDBI Bank Limited & Ors.,

reported in 2009 SCC OnLine Cal 2709 and Punjab and

Sind Bank & Ors. v. Durgesh Kumar, reported in (2020) 19

SCC 46.

Per contra, Mr. Chakraborty, the learned Additional

Solicitor General appearing for the respondents argues

that the scope of judicial review in a matter where the

learned Tribunal upon considering the fact scenario had

arrived at specific findings, is very narrow. This Court

cannot act as appellate authority over the order passed by

the learned Tribunal. The order does not suffer from any

jurisdictional error or any manifest injustice warranting

interference of this Court.

He submits that the order of transfer was

reconsidered in terms of the interim direction of the

learned Tribunal and the competent authority arrived at a

finding that the order of transfer was issued in public

interest, as would be explicit from the order dated 20th

November, 2020. In view thereof, the petitioner is

estopped from rearguing that the authorities have been

influenced by the comments of the Deputy Director (ED).

He argues that the allegations levelled by the

petitioner were primarily against the Deputy Director and

the other ED authorities (ED) and as such they ought to

have been impleaded in the original application. In their

absence, the petitioner cannot establish the allegation of

mala fide.

He further submits that the petitioner was liable to

be transferred in a routine manner as he was in the same

post for more than 20 years. He was transferred in public

interest and that too on the basis of the recommendation

of the competent authority being the Transfer Committee.

In view thereof, there is no infirmity in the order of

transfer. In support of the arguments reliance has been

placed upon a judgment delivered by the Hon'ble Supreme

Court in the case of Sk. Nausad Rahaman & Ors. v. Union

of India & Ors., reported in 2022 LiveLaw (SC) 266.

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 authorities is proved. The facts reveal that

admittedly the application for CGHS card of the Deputy

Director (ED) was refused by the petitioner on 8th May,

2020. Within six days thereafter a summons was issued

on 14th May, 2020. Within four days thereafter on 18th

May, 2020, the petitioner submitted a representation

praying for six weeks time to appear in view of the

prevailing pandemic situation. Within eighteen days

thereafter the petitioner met with the competent authority

on 4th June, 2020 and submitted all the necessary

papers. About forty-eight days thereafter, the Deputy

Director, ED issued a memo dated 22nd July, 2020

requesting the respondent no.3 'to consider transferring

him out of West Bengal to any other State'. The transfer

order was thereafter issued on 9th October, 2020. From

the said sequence of facts, it clearly appears that the

order of transfer is inextricably bound with the refusal of

the Deputy Director's prayer for issuance of CGHS card

by the petitioner. There is no dispute as regards the

proposition of law as laid down in the judgment delivered

in the case of Sk. Nausad Rahaman & Ors. (Supra), upon

which reliance has been placed by Mr. Chakrabarty,

however, the said judgment is distinguishable on facts.

The arguments of Mr. Chakraborty that after

issuance of the order of re-examination on 20th November,

2020, the petitioner could not have reargued that the

authorities have acted on the basis of directions of the

Deputy Director and that the petitioner had failed to

establish the allegation of mala fide having not impleaded

the ED authorities are not acceptable to this Court. The

reason towards issuance of the order of transfer was

supplemented upon re-examination by stating that the

same was issued in 'public interest'. However, in

paragraph 6.3 of the reply, the respondents themselves

have admitted that the transfer order was issued on the

basis of letter of office of the Special Director Eastern

Region Enforcement Director. The respondents herein

have acted in a mala fide manner by issuing the order of

transfer not based on any factor germane for passing an

order of transfer but based on an irrelevant ground i.e. on

the basis of the direction issued by the Deputy Director,

ED, as contained in the representation dated 22nd July,

2020.

In the said conspectus, the learned Tribunal erred

in law in observing that no material had been placed on

record to establish any mala fide and that the transfer

order had been issued as per administrative exigencies.

For the reasons discussed above, the order passed

by the learned Tribunal on 2nd January, 2023 in the

original application being O.A. No.350/1005/2020, the

order of transfer dated 9th October, 2020 and the release

order dated 13th December, 2022 are set aside and

quashed. The application for vacating the interim order

being CAN 1 of 2023 is, accordingly, dismissed and the

writ petition being WPCT 3 of 2023 is disposed of.

We have been informed by the parties that in view

of the interim order passed and extended from time to

time, the petitioner is working in the post of Senior

Medical Officer till date. However, Mr. Sanyal submits

that he has not been paid the salaries for the months of

January and February, 2023.

As we have set aside the order of the learned

Tribunal as well as the order of transfer and the release

order, we direct the respondents to disburse the arrear

salaries, if any payable to the petitioner within a period of

two weeks from date of communication of this order.

There shall, however, be no order as to costs.

Urgent certified photocopy of this order, if applied

for, be supplied as expeditiously as possible.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)