Uoi & Ors. vs Hardwari Lal
2011 Latest Caselaw 302 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C) No.10898/2009

%                             Date of Decision: 19.01.2011

UOI & Ors.                                                           .... Petitioners

                             Through Dr. Ashwani Bhardwaj, Advocate

                                        Versus

Hardwari Lal                                                      .... Respondent

                             Through Mr. S.C.Verma, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.     Whether reporters of Local papers may be                         YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                           NO
3.     Whether the judgment should be reported in                       NO
       the Digest?


ANIL KUMAR, J.

*

1. The present petition is filed under Article 226 of the Constitution

of India for the issuance of a writ in the nature of Certiorari for

quashing the order passed by the Principal Bench, Central

Administrative Tribunal, New Delhi dated 29th May, 2009 in O.A. No.

953/2009 titled Hardwari Lal Vs Union of India & ors and to dismiss

the O.A filed by the respondent against posting and transfer order being

establishment order No. 33/2009 dated 27.3.2009 posting the

respondent from Delhi II to LTU.

2. The Tribunal was of the view that at the time of appointment of

the respondent one of the condition was that the respondent would

serve in Delhi Collectorate (now Commissionerate) and no request for

transfer to any of the Collectorate (now Commissionerate) would be

considered. Relying on CBEC letter dated 11th August, 2003 it has also

been observed that if an officer of the Board is transferred on loan basis

from one organization to another organization without prior consent of

the employee, the transfer shall be illegal. According to Tribunal, LTU is

an all India unit with branches in Delhi also and it is not a part of Delhi

Commissionerate. The Tribunal has further reasoned that the Delhi

unit is under the administrative control of CBDT which clearly signifies

that it is not under the control of CBEC administratively over the

respondent. Merely because the salary of the respondent and others

service condition are not affected in any manner, posting/transfer of the

respondent could not be done in derogation of the policy laid down by

CBEC Commissionerate dealing with the matters of central excise and

customs and whose units are specified. Since LTU is not treated as part

of Delhi Commissionerate, posting/transfer of the respondent to LTU

could not be done and also because the respondent could not be

transferred outside the Commissionerate. One of the reasons relied on

by The Tribunal was that merely because there is participation of

officers of CBEC in LTU would not mean that LTU will be part of the

Commissionerate. In the opinion of the Tribunal since the service

condition of the respondent had been altered without affording him a

reasonable opportunity, the posting/transfer of the respondent to LTU

is illegal and thus the posting/ transfer order of the respondent was set

aside.

3. The brief facts to comprehend the disputes are that the

respondent was appointed as an Inspector of Central Excise in April,

1985 whose parent department is Central Excise Commissionerate

which comes under the control of Central Board of Excise and Customs

(CBEC). In the memorandum of appointment, Clause 12 stipulates that

the Head of the Department has full discretion to forward or withhold

any of his applications for appointment in another department or office

or elsewhere and Clause 15 provides that on the appointment in this

Collectorate (now known as Commissionerate), no request for transfer

from the Collectorate to any other Collectorate will be considered. After

appointment as inspector, the respondent was promoted in the Grade of

Superintendent Grade-B vide Establishment Order No.65/2003.

4. Pursuant to the proposal to set up Large Taxpayer Units (LTUs) to

serve large taxpayers paying excise duty, corporate tax/income tax and

service tax under a single window, a Circular No. 833/10/2006-CX was

issued by the Government of India, Ministry of Finance, Department of

Revenue, Central Board of Excise & Customs (F.No. 201/24/2006-

CX.6) addressed to All Chief Commissioners of Customs and Central

Excise, All Commissioners of Customs and Central Excise and others

informing about the creation of LTU and functions and powers of Chief

Commissioner which were proposed to be from CBDT or CBEC. All

aspects of business in relation to Central Excise and Service Tax such

as filing of returns, scrutiny of returns, audit, giving various

permissions, etc., has to be carried out by LTU for all the constituent

units of a large taxpayer throughout the country. LTUs were to be

established in phased manner in Bangalore, Chennai, Delhi, Kolkata

and Mumbai. The said circular also contemplated that the LTUs would

be headed by the Chief Commissioner of Central Excise from CBDT/

CBEC. Other Group „A‟, „B‟, „C‟ officers and supporting staff would be

posted by CBEC/ CBDT. The Chief Commissioner, LTU has to assign

Client Executive for each taxpayer from amongst the Additional/ Joint/

Deputy/ Asstt. Commissioner posted in LTU, and the said Client

Executive would have single point interface with the large taxpayers for

all purposes. The officers posted will have all India jurisdiction in

respect of all registered premises of a large taxpayer registered in that

particular LTU.

5. As a LTU was also formed in Delhi being a part of CBEC and the

staff was to be posted by CBEC, the posting/transfer order of the

respondent herein was passed on 27/03/2009 from Commissionerate

of Central Excise, Delhi to LTU. The respondent was therefore, relieved

on 02/04/2009. Respondent, however, on 06/04/2009 challenged his

posting/transfer order by filing an Original Application. The respondent

alleged his transfer to LTU to be illegal contending that his service

liability extends to the Commissionerate of Delhi. However, he has been

transferred to LTU which is outside his Commissionerate, without

taking his prior consent which according to him was mandatory based

upon a letter issued by the Ministry of Finance, Department of Revenue,

CBEC dated 11.08.2003 which provides that the transfer of officers on

loan basis is to be effected with the prior consent of the officer

concerned. The petitioners opposed the O.A contending inter-alia that

LTU is as much a part of CBEC as Central Excise, Commissionerate of

Delhi and the respondent has not been transferred to a foreign

establishment/organisation. Therefore, no prior consent of the

respondent as per circular dated 11th August, 2003 is required for

posting/transfer. Also, the petitioners contend that the transfer of the

respondent is not on loan basis but a transfer on regular basis.

6. Since the respondent had alleged that he had been posted to a

foreign department, i.e., LTU, the petitioners contended that LTU is

working under the aegis of CBEC like the Central Excise, Delhi

Commissionerate and the respondent has not been transferred to some

other organization/establishment on loan basis, as LTU is a part of

CBEC. Since the LTU is a part of CBEC for all intent and purposes no

consent from the respondent was required. The petitioners also

asserted that Group-A, B, C Officers along with supporting staff had to

be posted in LTU by CBDT and CBEC. Consequently, posting of the

officers and the staff therein by CBEC is the cadre posting and it

cannot be construed as posting outside the organization.

7. The Chief Commissioner of Central Excise, Delhi Zone being the

cadre controlling authority, in accordance with the circular dated 5th

October, 2006, has provided officers and its supporting staff to LTU.

Referring to memorandum dated 11th August, 2003 of CBEC, it was

contended by the petitioners that it is applicable for posting of officers

in other organizations on loan basis, which is not the case in case of

respondent as he has been posted/transferred in a regular manner and

he would be drawing his salary and other requisite allowances

allowable to him from LTU, Delhi. Posting of the respondent was stated

to be not on cost recovery/loan basis. Reference was also made to the

fact that a number of officers of Delhi Central Excise Zone have been

posted to LTU without obtaining their consent as the LTU is integral

part of Delhi Commissionerate.

8. The petitioners also asserted that the Central body in the case of

excise organizations is CBEC and the Commissionerate of Central

Excise and Customs are the field units. The Director General and other

units like LTU are the constituents of CBEC. Impugning the order of

the Tribunal, the petitioners in the writ petition specifically averred that

the Tribunal has misconstrued the Circular dated 5th October, 2006,

pursuant to which Large Taxpayers Unit (LTU) have been created by the

Ministry of Finance, Department of Revenue. It has been contended

that the salary of the officers of Central Excise and Service Tax posted

in LTU is paid by the Income Tax Department, however, other

administrative matters like posting/transfer of all officers of Central

Excise are under the control of Chief Commissioner, Central Excise,

Delhi Zone (CBEC). All the salaries for all the officers are drawn by

CBEC and CBDT under their administrative control as per the

arrangement made by the Department of Revenue, Ministry of Finance.

Posting of the respondent in the LTU also does not affect his seniority

nor there is any change in his cadre and consequently, it could not be

inferred that the respondent has been transferred on loan basis or on

deputation. Reliance was also placed on the fact that the staff posted

in LTU from Central Excise and Service Tax is not paid any deputation

pay/deputation allowance or any other incentive for their posting.

9. The learned counsel for the petitioners also emphasized that

Notification No. 14/2002 relied on by the Tribunal was issued in 2002

and at that time, LTU was not in existence as it came to be constituted

pursuant to the Circular dated 5th October, 2006. In any case, if the

Notification No. 14/2002 does not include LTU of Delhi as within the

jurisdiction of Chief Commissioner of Central Excise, it cannot be

construed as a separate constituent. The said notification only

specified different constituents under the Delhi Commissionerate at

that time. It is further contended that if the officers from any of the

constituents of Circular Notification No. 14/2002 are transferred to any

other constituent as indicated in Column-2, the consent is required.

However, if LTU is neither in Column-2 of the Circular nor in Column-

3, the plea of the respondent cannot succeed and LTU cannot be

construed to be a different body independent of Delhi Collectorate (now

Delhi Commissionerate). It is also apparent in the facts and

circumstances, according to the contentions of the learned counsel for

the petitioners that the LTU is a part of CBEC and CBDT and they are

all parts of Department of Revenue, Ministry of Finance. The petitioners

denied the applicability of Circular dated 11th August, 2003 of CBEC in

the present facts and circumstances.

10. The learned counsel for the respondent reiterated the pleas and

contentions raised before the Tribunal and justified the order of the

Tribunal contending that LTU is a different constituent and posting of

the respondent to LTU will make him liable to any Commissionerate

throughout the country. During the arguments, the learned counsel for

the respondent also relied on two communications. First

communication, dated 17th March, 2009, Reference No. A-

12034/2/2009 is a communication from Under Secretary to Govt. of

India to Mr. H.K. Sharan, Chief Commissioner of Central Excise,

Kolkata Zone, approving the proposal of Chief Commissioner of Central

Excise, Kolkata for treating posting of Group B, C & D officers in LTU,

Kolkata as outside Kolkata posting like Bolpur and Siliguri (under non-

CCA category) and restricting the benefit to three years. The other

communication relied on by the respondent is a letter dated 19th May,

2009 from Administrative Officer, Central Excise and Service Tax to the

ITO (LTU), New Delhi. This communication stipulates that LTU, Delhi

is under the administrative control of CBDT/Income Tax, Delhi and

pays salary and allowances to the officers of Central Excise and Service

Tax and bears all establishment cost for Central Excise and Service

Tax.

11. Though, these documents were not produced by the respondent

before the Tribunal nor any permission was taken by the respondent to

produce these documents, however, since these documents have been

produced during the arguments and the learned counsel for the

petitioners has not denied these documents and has rather contended

that these documents support the pleas and contentions of the

petitioners., they are being considered. From the perusal of the letter

dated 17th March, 2009, pertaining to the request of Chief

Commissioner of Central Excise, Kolkata Zone, about the posting of

Group B, C & D officers in LTU, Kolkata as outside Kolkata, rather

reflects that posting in LTU Kolkata normally is to be considered as a

posting within the Commissionerate of Kolkata. Since such posting is

considered to be within the Commissionerate, that is why for the

special reasons prevalent in that area and other circumstances, specific

permission was sought to treat the posting of Group B, C & D officers

in LTU, from Bolpur which is constituent of Kolkata Commissionerate

as of outside Kolkata. Under the Circular No. 14/2002 Bolpur is

shown as under the Commissionerate of Kolkata but from the letter

dated 17th March, 2009, it appears that the posting at Bolpur was

permitted to be treated as outside Kolkata Commissionerate posting. No

such permission has been sought or granted in respect of Delhi II to

LTU nor has been granted. Siliguri is not shown as constituent of the

Kolkata Commissionerate under the Circular notification No. 14/2002.

Even for such a constituent which is not shown in the Circular of 2002,

specific permission has been granted for posting of employees from

such constituent to LTU, Kolkata as outside the Kolkata

Commissionerate. In the circumstances, what emerges is that the

posting from various constituents of Kolkata Commissionerate as

reflected in Notification No. 14/2002 to LTU are not the postings

outside the Kolkata Commissionerate and for treating the posting from

some of the constituents as outside the Kolkata Commissionerate,

specific request was made and permission was sought, which was

allowed and only thereafter LTU, Kolkatta has been treated differently

and outside Kolkata Commissionerate in respect of two constituents. A

fortiori from the constituents of Delhi Commissionerate which includes

Delhi-II where the respondent was working, his posting to LTU, Delhi

will not be a posting outside the Delhi Commissionerate in the facts

and circumstances.

12. The copy of the letter dated 17th March, 2009 was also sent to the

Chief Commissioners of Central Excise, Bangalore, Chennai, Mumbai

and Delhi with a stipulation that the posting in the metro city in the

LTU will be treated as posting outside that city for the purposes of

transfer policy. The learned counsel for the petitioners has clarified

that this posting of the respondent from Delhi-II to LTU, Delhi is not

under transfer policy. The learned counsel has clarified that under the

transfer policy a person can be transferred from various other sub

constituents of Delhi to Panchkula which is also a constituent of Delhi

Commissionerate for a particular period in accordance with the transfer

policy and vice-a-versa, however, that will not cover the LTU. The

transfer from constituent Delhi I to Delhi-V does not come under the

transfer policy and the stipulation in the communication dated 17th

March, 2009 is only pertaining to transfer policy and cannot be relied

on by the respondent to negate the pleas and contentions of the

petitioners. Similarly, the letter dated 19th May, 2009 relied on by the

respondent does not substantiate the pleas and contentions of the

respondent.

13. This is also apparent from the order dated 27th March, 2009 of

the respondent posting him from Delhi-II to LTU that it does not

stipulate that the respondent is sent on loan basis or on deputation. If

the order of posting does not stipulate that the respondent has been

sent on loan basis, the circular dated 11th August, 2003 would not be

applicable as it is applicable in those cases only where an officer is sent

on loan basis from one organization/establishment to other

organization/establishment which requires prior consent of the officer

concerned.

14. The facts and circumstances as detailed hereinabove does not

lead to any inference that organization/establishment of

Commissionerate of Delhi and LTU are distinct and separate. In the

circumstances, the reasoning of the Tribunal that the respondent was

sent on loan basis is contrary to the document produced on record and

the condition which would not be a part of the posting/transfer order of

the respondent could not be read into it nor it can be inferred in the

facts and circumstances as has been inferred by the Tribunal.

Consequently, the Tribunal has committed an error, which cannot be

sustained in the facts and circumstances. If the posting of the

respondent was not on loan basis, neither the circular dated 11th

August, 2003 would be applicable in the case of the respondent nor it

can be held that any illegality has been committed in consonance with

the requirement of OM dated 11th August, 2003 in the facts and

circumstances. If the said OM dated 11th August, 2003 is not applicable

in the case of respondent, no prior consent of the respondent was

required for his posting from Delhi II to LTU.

15. Reliance of the Tribunal on the letter of appointment of the

respondent especially Clauses 14 & 15 is also misplaced. Rather

Clause-14 of the appointment letter of the respondent contemplates

that the respondent had agreed to serve wherever required in the

jurisdiction of Delhi Collectorate (now Commissionerate), which may be

constituted from time to time. If LTU was constituted in 2006 and it is

under administrative control of Commissionerate of Delhi, the

respondent rather cannot decline to sub-serve in LTU in terms of

Clause14 of his appointment letter and his consent is not required for

his posting to LTU. Even Clause15 of the appointment letter cannot be

construed against the petitioners as it only puts a restriction on the

rights of the respondent to claim transfer from the Collectorate at Delhi

(now Commissionerate) to any other Collectorate (now

Commissionerate). However, in view of the subsequent circular,

specially the circular dated 11th August, 2003, with the consent of the

employee, he can be transferred from one Collectorate (now

Commissionerate) to other Collectorate (now Commissionerate).

16. The reasoning of the Tribunal that by posting the respondent to

LTU under the Commissionerate of Delhi will alter the service condition

of the respondent is also not justified on the basis of the documents

produced on record. The learned counsel for the respondent has not

been able to convince us that posting of the respondent to the LTU will

result into change in his service condition, especially in view of the

specific averments by the petitioners that appointment of the

respondent in LTU will not change his salary and allowance even if it is

paid from the Income Tax Department, which department is also under

the control of Central Board of Direct Taxes(CBDT) and the Delhi unit

of LTU is under the administrative control of CBDT. The petitioners

have categorically asserted that there would be no change in the service

conditions of the employee of the CBEC and consequently of the

respondent.

17. The learned counsel for the respondent has also contended that

on posting to LTU at Delhi, the respondent would be liable for posting

anywhere in the country and has relied on para-5 of the Circular No.

833/10/2006-CX dated 5th October, 2006 stipulating creation of Large

Taxpayers Unit (LTU). Para-5 of the said circular is as under:-

"5. The officers posted in LTU will have All India jurisdiction in respect of all registered premises of a large taxpayer registered in that particular LTU. The erstwhile Central Excise or Service Tax commissionerate officers will have concurrent jurisdiction. However, the interaction with these units will be limited to specific functions requiring physical presence of the officer for purposes as warehousing, sealing or any other work as assigned by the LTU."

18. Perusal of Clause-5 of circular dated 5th October, 2006 rather

shows that the officers posted in LTU will have jurisdiction in respect of

all registered premises of a tax payer concurrent with Central Excise or

Service Tax Commissionerate officers. It cannot be construed to mean

that the respondent would be liable to be transferred to any other

Commissionerate. Even while working as an officer in a constituent,

Delhi-II if the respondent would have a tax payer having properties in

different jurisdiction, the procedure applicable in such a case will be

applicable in case of a tax payer in LTU. The interpretation as given by

the learned counsel for the respondent is apparently not sustainable

and cannot be used in support of plea of the respondent that LTU is a

different organization/establishment and once he joins there he would

be liable for transfer throughout the country in different

Commissionerate without his consent.

19. In the totality of the facts and circumstances, and for the reasons

detailed hereinabove, it cannot be held that the consent of the

respondent was required for posting him to Delhi- II to LTU in terms of

Circular dated 11th August, 2003 and he has been posted/transferred

to LTU under Delhi Commissionerate on loan basis nor it can be held

that the posting of the respondent from Delhi-II to LTU is a transfer

from one organization to another organization.

20. In the circumstances, the order of the Tribunal dated 29th May,

2009 in OA 953/2009 titled as Hardwari Lal v. Union of India is not

sustainable and apparently suffers from errors holding that posting of

respondent from Delhi II to LTU required his prior consent. The writ

petition is, therefore, allowed and the said order is set aside and

consequently, the finding of the Tribunal that the order of posting and

transfer of the respondent dated 27th March, 2009 cannot be sustained

in law is also set aside and it is held that the respondent is liable to be

posted to LTU (Delhi) from Delhi-II in terms of order dated 27th March,

2009 without his prior consent.

With these observations, the writ petition is disposed of.

However, the parties are left to bear their own costs in the facts and

circumstances.

ANIL KUMAR, J.

January 19 , 2011                               VEENA BIRBAL, J.
'rs'