Delhi High Court
Ram Chand Sharma vs Union Of India & Ors. on 23 May, 2019
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.05.2019
+ W.P.(C) 11073/2017 & C.M. Nos.45304/2017 (for stay) &
14147/2019 (for interim direction)
RAM CHAND SHARMA ..... PETITIONER
Through Mr.Amavendra Sharan, Sr. Adv. with
Mr.Sanchit Garv, Adv.
versus
UNION OF INDIA AND ORS. ..... RESPONDENTS
Through Mr.Rajan Sabharwal, Adv.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J (ORAL)
1. The petitioner has preferred the present writ petition to assail
the order dated 25.10.2017, whereby he has been transferred from
Kashmere Gate Out Post, Delhi East Division to Firozpur Division.
He also seeks a writ of mandamus to direct the respondents to
continue his posting at Delhi till he completes five years at the said
posting in Delhi.
2. At the outset, we may observe that the petitioner was posted at
the Kashmere Gate Out Post, Delhi East Division on 03.06.2014. The
petitioner himself states in ground 'C' of his writ petition that he
would complete his tenure of five years in the post on 29.05.2019,
which is six days away.
3. The challenge raised by the petitioner to his transfer is premised
on a plea of legal mala fides. His case is that a complaint was made
against him which was inquired into, confidentially, without his
participation and without putting him notice or giving him any
opportunity to defend himself. The petitioner's plea is that he was
transferred out, on the basis of the findings of the said confidential
inquiry.
4. In support of his case, the petitioner has sought to place reliance
on Somesh Tiwari Vs. Union of India & Ors. (2009) 2 SCC 592 and
in particular on paragraph 16 of the decision which reads as follows:-
"16. Indisputably 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 authority is proved. Mala fide is of two kinds
- one malice in fact and the second malice in law.
The order in question would attract the principle of
malice in law as it was not based on any factor
germane for passing an order of transfer and
based on an irrelevant ground i.e. on the
allegations made against the appellant in the
anonymous complaint. It is one thing to say that
the employer is entitled to pass an order of transfer
in administrative exigencies but it is another thing
to say that the order of transfer is passed by way of
or in lieu of punishment. When an order of transfer
is passed in lieu of punishment, the same is liable
to be set aside being wholly illegal."
5. On facts, there is no dispute. The respondents have filed their
counter affidavit wherein it is stated that Shri P.N. Rai, Assistant
Security Commissioner/Delhi Main, had conducted a confidential
inquiry in respect of the complaints received against the petitioner.
One such complaint made on 08.01.2016 was addressed to the then
Hon'ble Minister for Railways. On receipt of the complaint, the Sr.
Div. Security Commissioner/RPF/DLI-East was directed vide HQ
Office Letter dated 04.04.2016 to keep a close watch on the activities
of the petitioner and to ensure that he is not involved in the official
work of RPF/Delhi Main in any way. A copy of the report dated
24.10.2017 submitted by Shri P.N. Rai, Assistant Security
Commissioner, Delhi Main in respect of the confidential inquiry
conducted by him has been filed with the counter affidavit as
annexure R-2. As per this report, the petitioner was found to be
interfering into the working of the Delhi Post indirectly and,
therefore, he was directed to be transferred out from RPF outpost
Kashmere Gate in administrative interest.
6. Having heard Mr.Sharan, learned senior counsel for the
petitioner, perused the record and considered the decision in Somesh
Tiwari (supra), we are of the opinion that there is no merit in this
petition. The complaint against the petitioner related to his only
administrative functions as a consequence of his interfering in the
working of the Delhi Main indirectly, which fact was confirmed by
the findings of the confidential inquiry. The petitioner was not
accused of any misconduct. Interference by one officer in the
functioning of other functionaries in the office is certainly an
administrative issue which has to be dealt with by the administration.
In our view, there was no need to involve the petitioner in the
confidential inquiry, since the same was not in respect of any
misconduct for which the petitioner could be proceeded with
departmentally, and subjected to punishment. Merely because the
petitioner's transfer has been triggered by the complaint which, on
discreet inquiry, was found to be true, it does not mean that he had to
be put to notice and explanation called before action was taken
thereon to transfer him. Transfer, by itself, is not a punitive decision
in respect of the person transferred.
7. The facts of Somesh Tiwari (supra), on which reliance has
been placed by learned senior counsel for the petitioner, were very
different. This was a case where the appellant therein was targeted by
employees who were posted in the office of the respondent in Bhopal.
They apprehended disciplinary and also criminal action at the hands
of the appellant, and consequently, an anonymous complaint was
made against him alleging caste bias on his part. This complaint was
examined and found to have no merit. Yet, the appellant was
transferred out. It is in the aforesaid background that the Supreme
Court made its observation in paragraph 16 as quoted hereinabove.
The facts of that case are clearly distinguishable inasmuch, as, in the
present case, it is not the case of the petitioner that the complaint
against him was anonymous. Moreover, on discreet inquiry the
complaint was found to be having merit since it was found that the
petitioner was interfering with the functioning of other functionaries
in the office. Thus, the transfer of the petitioner was clearly made on
account of administrative exigencies and could not be labelled as
punitive. Even otherwise, we find that based on his averments in the
writ petition, the petitioner's tenure of five years, which according to
him was curtailed vide the impugned order, would come to an end in
the next five days itself i.e. on 28.05.2019. We may note that by
virtue of the interim order passed by this Court on 13.12.2017, the
petitioner has continued to remain in Delhi and, therefore, at this
stage, he can have no real grievance qua the impugned transfer order.
8. For the aforesaid reasons, we find no merit in this petition. The
petition and pending applications are dismissed.
9. Dasti.
(VIPIN SANGHI)
JUDGE
(REKHA PALLI)
JUDGE
MAY 23, 2019/aa
