Rajesh Talwar vs The State Trading Corporation Of ...
1999 Latest Caselaw 76 Del

ORDER

K. Ramamoorthy, J.

1. In the writ petition the petitioner has prayed for the following reliefs:

(i) Issue an appropriate writ, order or direction in the nature of certiorari or any other writ order or direction quashing the impugned order dated 19.5.1998 and 28.5.1998 as illegal, arbitrary and mala fide whereby the petitioner has been transferred from his present posting.

(ii) Issue a writ, order or direction in the nature or mandamus directing the Respondent No.1 to allow the petitioner to continue in the Vigilance Division.

2. CM No. 9165/98 along was taken up for disposal and the relief prayed for in the CM is as follows:

Stay the impugned order transferring the Petitioner (Annexure P 1) and direct the Respondents to allow the petitioner to continue at Marketing Manager (Vigilance).

3. In view of the fact that I am taking up only the CM, it is not necessary to go into the matter in great detail and it with suffice to notice the facts necessary for the disposal of the CM. The main case of the petitioner is that the order of transfer had been made on extraneous considerations and it is not a routine transfer for administrative reasons.

4. The petitioner was promoted as Deputy Marketing Manager on 5.7.1993 and transferred to Calcutta. His work has been very satisfactory and there had been appreciation from his superior officers. Having regard to the deportment of the petitioner and his capacity, the petitioner was called from Calcutta to make arrangements for the 50th Annual Session of the Economic & Social Commission for Asia and Pacific (ESCAP) which was held between 1.4.1994 to 30.4.1994 at Delhi.

5. On 27.1.1994, a note was put up to the Director (Pers) in the following terms:

Reg: 50th Annual session of the Economic & Social Commission for Asia and the Pacific (ESCAP) commencing at New Delhi during April, 1994.

It may kindly be recalled that on the request of the MOC conveyed vide their DO No. DIR(RC)/ESCAP/(Conf)/93 dated the 23rd Decem ber, 1994 addressed to Director (Pers) STC and subsequent discussions with the Ministry's Senior officials, STC has undertaken the responsibility of managing the transport arrangements for the aforesaid conference. The delegations from various member coun tries comprising of senior ministers, diplomats and bureaucrats numbering 550 to 600 are expected to participate in this confer ence.

2. STC on its own has already initiated various actions towards the above and fixed up a professional travelling agency (Ashok Tours & Travel an ITDC Organisation) for this purpose. These developments have been brought to the notice of Shri R. Chandra shekhar, Director, MOC in his meeting with the Director, MOC in his meeting with the Director (Pers) on 25th January, 1994. During the discussions with Shri Chandrashekhar, it was felt essential by all present in the meeting that a manager from STC who has a pleasing personality, initiatve, intelligence and responses etc. may be nominated to liaise with the Ministry, STC, Travelling Agency and other concerned on day to day basis.

3. I have identified a manager, namely Shri Rajesh Talwar, Dy. Marketing Manager, presently posted in Calcutta, who possesses all these qualities and is dependable, reliable and competent for handling this kind of assignment.

4. The view of the above, it is proposed that his services may be requisitioned on full time basis for the special assignment stated above with effect from the 1st February, 1994 till the assignment is over. We will persuade the manager concerned not to claim Daily Allowance during his stay in New Delhi for the afore said job while his services are required for immediate arrange ments, a coregroup consisting is more managers, will be constituted later.

5. Personnel Division may be advised to issue a communication to BM, STC, Calcutta with a copy to Shri Rajesh Talwar, DMM, for his deployment for the ESCAP assignment at New Delhi on full time basis from 1st February, 1994 till the assignment is fully accom plished.

Submitted please.

Sd/ (D. Kumar)

6. There was a telex message to Calcutta from the Chief Personnel Manager for the purpose of sending the Petitioner to Delhi. At the time of message it may be noticed that the petitioner was on leave due to his father illhealth. The telex message reads as under:

T E L E X

STC CALCUTTA

BM FRM L.N. KATARIA, CPM, C.O. (.)

IT HS BN DECIDED WITH THE APPRVL OF COMPETENT AUTHORITY TO UTI LISE THE SERVICES OF SH. RAJESH TALWAR, DMM, CALCUTTA FOR THE 50TH ANNUAL SESSION OF ECONOMIC & SOCIAL COMMISSION FOR ASIA & PACIFIC (ESCAP) COMMENCING AT NEW DELHI FRM FEB. 01, 1994 TO APRIL 30, 1994 (.) DURING HIS STAY IN DELHI HE WL CLAIM ONLY T.A. AS PER HIS ENTITLEMENT & WL NOT BE PAID ANY D.A. FOR ; THIS PURPOSE FOR AFORESAID JOB (.)

R G D S

7. On 16.5.1994m 16.5.1994, the Executive Director Vigilance from Mr. R.S. Sahaye, wrote to the Director (Pers) in the following terms:

Sub: Posting of Shri Rajesh Talwar, DMM, STC, Calcutta to Vigi lance Division Regarding.

In view of the increased work load in the Vigilance Division, it is considered necessary to post additional staff for this sensitive responsibility, by pickingup suitable/willing Managers, with a keen, perceptive mind. Shri Rajesh Talwar, DMM, STC, Calcutta who has been attached for assisting the Transport Divi sion during the ESCAP Conference, impressed me as a Manager who is quite capable of drafting Reports intelligently. I have also examined his ACR Dossier and found that his record is quite upto themark. Moreover, he has expressed his willingness to take up the assignment in the Vigilance Division.

Director (P) is requested to issue suitable orders posting him in the Vigilance Division, STC, to handle the increased work load.

Sd/ (R.S. Sahaye) ED (VIG)

8. On 31.5.1994, a note was put up relating to the period of service rendered by the petition in Calcutta. The note and subsequent interdepartmental correspondence would read:

Reference note dated May 16, 1994 of ED (Vigilance) regarding posting of Shri Rajesh Talwar, DMM, STC, Calcutta to Vigilance Division.

In this connection, it may be mentioned that consequent upon his opting for All India Cadre Shri Rajesh Talwar was promoted as Deputy Marketing Manager and posted to Calcutta Branch vide PA No. 30/93 dated July 5, 1993 (copy placed below) where he joined on September 27, 1993. Four other fresh optees were promoted as DMM alongwith Shri Talwar and they were also transferred out of their place of posting. Out of 4 S/Shri Dharam Vir Wadhwa, Ramesh Kumar and B.D. Sharma who did not report for duty at their place of posting within the stipulated time were reverted back to the post of Asstt. Manager and were debarred from promotion for a period of one year.

Later on with the approval of Competent Authority it was decided to utilise the services of Shri Rajesh Talwar for the 50th Annu als Session of Economic & Social Commission for Asia & Pacific (ESCAP) commencing at New Delhi from February 1, 1994 to April 30, 1994 and further vide office order dated April 29, 1994 of CGM Shri Rajesh Talwar has been associated in the committee to scrutinise and process the bills received from M/s. Ashoka Tour & Travels in respect of Vehicles hired for them for the 50th ESCAP Session and for this purpose he will remain in Corporate Office upto June 15, 1994.

From the position explained above, it will thus be seen that Shri Rajesh Talwar has worked in Calcutta Branch only for a period of approximately four months against three years tenure of posting.

Submitted for consideration please.

Sd/ (OM PARKASH) 31.5.1994 CPM(LNK)

Reference above.

Normally Managers are transferred for three years (other than Kandla) for normal Station and 2 years for hard Station i.e. Kandla. However, in the past some of the Managers were transferred back to their original place of posting before completion of their normal tenure of 3/2 years as the case may be either or personal/domestic or in the exigencies of work. List of such of the Managers who have been transferred before completion of their tenure has been prepared since 1991 and is placed below for the perusal of Dir. (I/c)(Pers.).

In the present case ED(Vig.) vide his note dated 16.5.1994 has requested that Shri Rajesh Talwar, DMM, STC, Calcutta who is presently here in connection with ESCAP may be posted to Vigilance Division as he was so much impressed about the performance of Sh. Rajesh Talwar, dossier and found his record quite uptomark.

Since in the past, recently, we have transferred two ladies with the approval of CMD, it will be desirable if the case is putup to CMD for his consideration.

9. On 7.6.1994, one of the officers has clarified as under:

Director I/C(Pers.)

DAM(RT) was temporarily transferred to Delhi in connection with the 50th Escap Session (F/1) held recently at New Delhi and placed to work under the MOC for organising, coordinating and lessoning the transport arrangements being a competent manager with enormous potential and fully conscious of his responsibili ties, he earned high admiration from the Escap delegates/officials thereby elevating the image of both STC as well as GOI(MOC) by dint of his hard and dedicated work.

ED(Vig.) vide his note dated 16.5.1994 has now requested us to transfer Shri Talwar to Vigilance Division to take care of the increased workload in his Division since the cases handled by Vigilance Division are of very sensitive in nature which should be attended to by a very competent manager.

The cases quoted by CPM(LNK) are of different types where arrangement on compassionate grounds, had acceded to the request for transferring these managers during the varied periods of their posting starting from less than a year, to New Delhi. These cases apparently cannot be equated with the case of DMM(RT); since in this case it is due to the Organisation's needs which has necessitated his availability at the Corporate office to take care of the investigations/enquiries being conducted by the Vigilance Division, well on time.

In these circumstances, the request made by ED(Vig.) may kindly be acceded to.

Submitted for approval please.

Sd/ (D. Kumar) 7.6.94

As a general principle, tenure at a place of posting should be completed before transfer can be considered. What are the overwhelming reasons in this case which necessitate a departure from the general policy?

10. On 8.6.1994, the Executive Director (Vigilance) put up a note for the CMD in the following terms;

Attention is invited to my Note dated 16.5.94 (P1/ante) wherein I had requested for issue of orders posting Shri Rajesh Talwar, DMM, STC, Calcutta to the Vigilance Division, Corporate Office to handle increased work load, where only one GM and MM are avail able to conduct inquiries and the post of CMM is lying vacant. I had an occasion to see the performance of Shri Rajesh Talwar, DMM during the ESCAP Session, when he handled correspondence in the Transport Division of the STC and have also examined his service records and considered him suitable for posting to the Vigilance Division, where the post of CMM is lying vacant.

As rightly pointed out by Director (Personnel), this posting is not on compassionate grounds (even though Personnel Division have already obtained orders of the CMD transferring 12 such persons to the Headquarters over the past) but on administrative consid erations, as the DMM has nowhere asked for posting to Delhi, but has actually been selected by the undersigned for posting to the Vigilance Division.

CMD may please approve.

Sd/ (R.S. SAHAYE) 8/6/94 ED VIG)

11. On the same note Mr. D. Kumar officer noted:

Please issue the order.

The Orders should clearly mention that Shri Rajesh Talwar, DMM in addition to his duties in Vigilance Division will continue to handle his ESCAP (Session94) assignment till they are fully accomplished.

Sd/ (D. KUMAR) 8.6.94

12. On 8.6.1994, office order No. ID:84/94 was issued in the following terms:

THE STATE TRADING CORPORATION OF INDIA LIMITED : NEW DELHI (PERSONNEL DIVISION) No. STC/A15(14)/94 June 08, 1994 OFFICE ORDER NO. ID:84/94

Competent Authority has approved the transfer of Shri Rajesh Talwar, Dy. Marketing Manager from Calcutta Branch to Corporate Office (Vigilance Division) with immediate effect. However, in addition to his duties in Vigilance Division, Shri Talwar will continue to handle his ESCAP (Session92) assignment till they are fully accomplished.

Sd/ (OM PARKASH) PERSONNEL MANAGER

13. It would appear that there had been anonymous complaint which had been brought on record, on the basis of which action was sought to be taken against the petitioner and the order of transfer was issued on 19.5.1998 and the same reads as under in the following terms:

THE STATE TRADING CORPORATION OF INDIA LIMITED: NEW DELHIM (PERSONAL DIVISION) No. STC/A15(14)/94 19th May, 1998 OFFICE ORDER NO.PD:70/98

The Competent Authority has ordered the transfer of Shri Rajesh Kumar Talwar, MM from Corporate Office, Vigilance Division to Calcutta Branch with immediate effect. He will stand relieved from Vigilance Division within a week with an advice to report to Calcutta Office.

Sd/ (N.K. Tandon) Chief Personnel Manager

14. The petitioner was admitted in the hospital at that time. On 28.5.1998, another memorandum was served on the petitioner when he was in the hospital and the same reads as under :

THE STATE TRADING CORPORATION OF INDIA LIMITED: NEW DELHI (PERSONNEL DIVISION) No. STC/A15(14)/98 May 28, 1998 MEMORANDUM

As per Office Order No. PD:70/98 dated 19th May, 1998 Shri Rajesh Talwar, MM (Vigilance Division) was to be relieved by Vigilance Division within a week of the date of issue of the above order. After having obtained the confirmation from the Vigilance Divi sion that "Shri Talwar should be automatically reporting to his next place of posting after being discharged from Hospital", Shri Rajesh Talwar is advised to proceed to Calcutta to report for duty at STC Calcutta as soon as he is discharged from the Hospi tal.

Sd/ (N.K. TANDON) CHIEF PERSONNEL MANAGER

15. The Disciplinary action had been initiated on the basis of the anonymous letters that the petitioner had been claiming LTC/medical facilities for his parents although his father was a retired employee from Army Headquarters. I have perused the records and I heard the learned counsel for the parties at length. At this stage for the prima facie consideration of the matter, I am of the view that the respondents had issued the order of transfer on extraneous considerations. There was absolutely no justification to act on the anonymous letters. An analysis of the record would also show that the complaint against the petitioner has absolutely no basis. I am of the view that the first respondent had assumed that the petitioner had improperly availed of the LTC/medical facilities and prima facie the case against the petitioner is not tenable. The same can be considered in detail at the time of hearing of the writ petition. The petitioner was entrusted with the work of handling very sensitive matters and there had been no complaint whatsoever and prima facie, I am unable to resist the conclusion that some interested persons had triggered off anonymous complaints against the petitioner to get him out of the position occupied by the petitioner. In the interests of the organisation, I am of the view that the order passed by the first respondent transferring the petitioner to Calcutta should be stayed and 1st respondent should be directed to allow the petitioner to function as Marketing Manager (Vigilance).

16. Accordingly the ad interim passed on 21.7.1998 is made absolute.

17. Post the writ petition for final disposal on 20.7.1999.