Delhi High Court

Chitra vs Central Warehousing Corporation ... on 3 December, 2015

Author: V. Kameswar Rao

$~18

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: December 3, 2015

+                    W.P.(C) 10768/2015, CM No.27687/2015
CHITRA                                                  ..... Petitioner
                          Through: Mr.Manoj K.Srivastava, Adv. with
                                     Mr.Ram Nath, Adv.

                           Versus

CENTRAL WAREHOUSING CORPORATION & ORS ..... Respondents

Through: Mr.K.K.Tyagi, Adv. with Mr.Iftekhar Ahmad, Adv.

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO

V. KAMESWAR RAO, J (Oral)

1. The challenge in this writ petition is to the order dated October 12,

2015, whereby the petitioner, who was working as a Superintendent, Central

Warehouse, Kirti Nagar was transferred to Regional Office, Jaipur.

2. It is the submission of the learned counsel for the petitioner that the

transfer order has been effected with the mala-fide intention. He would

state, the petitioner had initially raised an issue of sexual harassment, which

was forced to be withdrawn by the respondents. He also states that the

petitioner had made a detailed representation, which was forwarded by the

Regional Manager to the Corporate Office but has not been considered and

replied till date. That apart, it is his case that the respondent No. 3, who had

a grudge against the petitioner, has downgraded her appraisal reports/ACRs.

That apart, it is the case of the petitioner, that assuming that the transfer

order has been effected for certain misconduct, the same could not have

been issued without holding a regular departmental enquiry under the

Conduct Rules. He has also pleaded violation of the posting policy. He

would rely upon the followings judgments in support of his contention:

1. State of U.P. and Others Vs. Jagdeo Singh, 1984 (Supp) Supreme Court Cases 413

2. Pratap Singh Chauhan Vs. State of H.P. and Ors., 2012 (7) SLR 612 (H.P.)

3. S.V.Singh Vs. Union of India and Others, Constitutional Writ Jurisdiction No. 909 (W) of 1987, decided on 15.6.1987

4. Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer and Others, (2005) 1 Supreme Court Cases 625

3. Mr.K.K.Tyagi, learned counsel appearing for the respondents, on

advance notice, would justify the transfer of the petitioner, on the basis of

the incident that has taken place on September 17, 2015, which resulted in a

complaint by the respondent No. 3, wherein, the respondent No. 3 has

alleged that the petitioner had entered her room and abused her for getting

removed the plants in the way of boundary wall being constructed by the

Engineer of the constructed site. He states, the petitioner also slapped her in

front of official guards as well as one Translator sitting in the room.

According to Mr. Tyagi, this complaint was enquired into by the Regional

Manager by constituting a Committee. The Committee gave its report

which was forwarded to the Corporate Office along with the

recommendations. This report was considered by the Competent Authority,

Director (Personnel) in the Corporate Office, resulting in the transfer of the

petitioner to Jaipur, by noting that there are only 20 Superintendents in

position, as against sanctioned strength of 45. It was also observed that the

major penalty proceedings be initiated against the petitioner. Mr. Tyagi

would rely upon the judgments of the Supreme Court in the cases reported

as (2004) 4 SCC 245 Union of India and Ors. Vs. Janardhan Debanath

and Anr. and AIR 1993 SC 2444 Union of India and Ors. Vs. S.L.Abbas in

support of his contention.

4. Having heard the learned counsel for the parties, I may only state that

this writ petition was initially listed on November 23, 2015 when this Court

directed the respondents to produce the relevant file, wherein, decision was

taken to transfer the petitioner to Jaipur. On the next date of hearing, i.e.

November 24, 2015, the relevant note sheets were produced. On the said

date, the matter was deferred for today. Today, the respondents have

produced the relevant note sheets and the report of the Committee.

5. I have perused the same.

6. Insofar as the submission on malafides against the respondents, are

concerned, suffice to state, there is no allegation against the Director

(Personnel) the Competent Authority, who has taken the decision to transfer

the petitioner, nor he is a party in these proceedings, either by designation or

by name. The submission needs to be rejected.

7. Insofar as the submission that she was forced to withdraw her

complaint of sexual harassment or the downgrading of the ACRs, are

concerned, the same has no relation with the order of transfer. As has been

argued by Mr. Tyagi, the foundation of the transfer order of the petitioner is

primarily the conduct of the petitioner qua the respondent No. 3. The only

issue which requires consideration is, given the foundation of the transfer

order, whether the same is justified and in administrative exigency.

8. First dealing with the judgments referred to above, in the case of State

of U.P. and Ors. Vs. Jagdeo Singh (supra), the Supreme Court was

concerned with the facts, wherein, the respondent, who was working as a

Station House Officer at the Chandpur Police Station in Uttar Pradesh, was

transferred to the Kotwali Police Station as a Second Officer. He protested

against that posting since it involved the loss of the special emolument.

Later on, he was transferred to Fatehgarh. He made a representation that he

was entitled to be posted as a Station House Officer, Fatehpur, but that

representation was rejected on the ground that his name was not approved

for posting as a Station House Officer in the district of Fatehgarh. The

respondent was transferred again as a Second Officer to Kanpur. Finding

that his representation had been rejected, he filed a writ petition in the High

Court of Allahabad, seeking that the order transferring him as a Second

Officer of a Police Station be quashed. The writ petition having been

allowed by the High Court, State of U.P. filed the appeal before the Supreme

Court. The Supreme Court in para 2 of the judgment, had noted, the stand

of the State of U.P. in its counter-affidavit that the respondent was found

negligent in the discharge of his duties. As a consequence, the respondent

was reverted from the post in which he was incharge of the police station

and a misconduct entry was made in his character roll on May 5, 1971. It

was because of the finding of negligence against the respondent, and the

misconduct entry that the respondent in the said case was transferred from

Fatehpur to the Fatehgarh Police Station in July 1973 where he was posted

as a Second Officer and not as a Station House Officer. The Supreme Court

held, the provisions of Section 7(d) of the Police Act, 5 of 1861, were

therefore attracted. Section 7(d) provided to the extent material that the

Inspector General or any other officer named therein may award to a

member of the Police Force any one or more of the punishments mentioned

in clauses (a) to (d), if he is found to have discharged his duties in a careless

or negligent manner. Clause (d) of Section 7 speaks of the punishment of

removal from any office of 'special emolument'. The respondent therein

was drawing a special emolument as a Station House Officer of which he

was deprived by way of punishment. It was on that limited ground, the

Supreme Court confirmed the order of the High Court, in favour of the

officer. The Supreme Court in para 3 of the said judgment has observed as

under:

"3. We must make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment, even if it involves the loss of a special emolument. if a police officer is transferred from one charge to another in the ordinary course of administrative exigencies, the provisions of Section 7 of the

Police Act will not be attracted because a transfer simpliciter is not punishment. It is only when the transfer is made by way punishment, as in the instant case, that Section 7 would come into play".

9. The facts of the aforesaid case are different from the facts of the

present case and are distinguishable. In the aforesaid case, the posting of the

officer who was working as Station House Officer as a Second Officer,

resulted in the withdrawal of the special emolument, which the officer was

getting as a Station House Officer, which according to the Supreme Court,

could have been withdrawn as a punishment and having withdrawn the

special emolument, the transfer is punitive. It is not the case of the

petitioner that the Conduct Rules stipulates, a transfer is a punishment. He

concedes to the fact that the transfer is an incidence of the service. If that be

so, the aforesaid judgment of the Supreme in the case of State of U.P. and

Ors. Vs. Jagdeo Singh (supra) has no applicability and would not help the

petitioner.

10. Insofar as the judgment in the cases of Pratap Singh Chauhan

(supra) and S.V.Singh (supra) are concerned, suffice to state, in view of the

opinion of the Supreme Court in UOI and Ors. Vs. Janardhan Debanath

and Anr. (supra), on which reliance was placed by Mr. Tyagi, learned

counsel for the respondents, they have no application. In this case, the facts

are almost identical, wherein, the respondents before the Supreme Court,

who were working in the Postal Services Department were transferred from

Agartala Division to Meghalaya Division. Feeling aggrieved by the order,

they had moved the Central Administrative Tribunal, Guwahati Bench. The

Tribunal, after hearing the parties, directed the parties to consider the

representations made by the two lady applicants who were co-applicants

along with the respondents within one month. So far as the respondents

before the Supreme Court were concerned, no such direction was made by

the Tribunal. The said respondents filed writ petitions before the High

Court, primarily on the ground; (a) that the transfer orders of two

respondents were in violation of provision of Rule 37 of the Posts and

Telegraphs Manual, Vol. IV read with DG Posts Letter, dated August 23,

1990; (b) the transfer is in violation of Rule 15 of the Fundamental Rules;

prospects of the writ petitioners; and (d) the transfer order was passed as a

measure of penalty. The petitioner before the Supreme Court i.e. Union of

India took the stand that the transfer was done in public interest and on

account of exigencies of administration. It was pointed out that the

respondents not only misbehaved with the Director (Postal Services), a

senior lady officer, she was confined and dragged from one room to another

and this was done with a view to force her to withdraw the charge sheet

against the Deputy Postmaster. She was abused in filthy language. The

High Court accepted the prayers of the respondents and held that transfer

was impermissible in terms of Rule 37 and was in violation of FR 15. It was

the conclusion of the High Court that the transfer was a measure of penalty

and the seniority and the promotional prospects were likely to be affected.

In appeal, the Supreme Court, has in para 14 has held as under:

"14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum

and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs".

11. From the above, it is clear that the Supreme Court has, in clear terms

held that, for the purposes of effecting a transfer, the question of holding an

enquiry to find out whether there was mis-behaviour or conduct unbecoming

of an employee is unnecessary and what is needed is the prima facie

satisfaction of the authority concerned on the contemporary reports about

the occurrence complained of.

12. In the case in hand, the incident was enquired into by a Committee. A

prima facie opinion was there before the competent authority about the

incident, which formed the basis for transfer. The plea of Mr. Srivastava

that if such an incident happened, she could not have transferred, need to be

rejected. It is not the case of the petitioner that on her transfer to Jaipur, her

service conditions would be affected.

13. I have been informed that the petitioner remained posted in Delhi

since her appointment. It is also not in dispute that her services were liable

to be transferred anywhere in the country. During the course of the

submissions, the Court had put to Mr. Tyagi, the petitioner being a woman

employee, whether the respondents would consider the appropriate posting

nearer Delhi; it was his submission that, in case, the petitioner seeks a

transfer to a place near Delhi, she is within her right to make a

representation in that regard, which would be considered by the authorities,

but, that would not preclude her to join the place of current posting.

14. One of the submission of Mr. Srivastava is that the respondents have

violated the provisions of their own posting policy, which vide, clauses 6, 7

and 11(a) stipulate as under:

"6. Normally transfer shall be ordered in the month of March/April so that the individuals can take up positions at the new place of posting before the commencement of the academic session and the education of the children is not adversely affected. However, for administrative and specific reasons, if transfer is considered imminent, the same can be ordered any time during the year. For computing the period given at para 11 below, cases up to 30th June of the year shall be considered for planning the transfers.

7. Normally employee on promotion shall not be retained at the same place of posting. However, to avoid hardship to the employees, as far as possible, they shall be posted nearby States/adjoining Regions subject to availability of vacancy.

                 XXX         XXX           XXX
        11.      Following   periodicity    shall   normally   be
        maintained while ordering transfers:-
        (a)      Employee in Groups A&B-Not exceeding three
        years if in a sensitive post and five years in other
        posts...."

15. The clause 6 of posting policy, has no applicability as it is not the

case of the petitioner that in the mid academic session of her children, the

transfer order has been passed. Insofar as clause 7 of the posting policy is

concerned, it is his submission that persons, who have been promoted, have

not been transferred out of Delhi. As I have noted the reasons for transfer of

the petitioner, such a plea, is not available to her. In any case, it goes

without saying that the exigency of administration would be paramount for

the competent authority to transfer an officer and the same cannot be

interfered with. Insofar as clause 11(a) of the posting policy is concerned,

the same is directory as is clear from the words „Following periodicity shall

normally be maintained while ordering transfers: (a) Employees in Groups

A & B--Not exceeding three years if in a sensitive post and five years in

other posts‟. Further, as noted above, the petitioner remained in Delhi since

her appointment in the respondent-organization. Even if five years have not

elapsed in the present place of posting, no right has accrued to the petitioner

in terms of clause 11 (a) of the policy. The reliance placed by Mr.

Srivastava on the judgment of the Supreme Court in Bannari Amman

Sugars Ltd. (supra) has no application in the facts.