Manipur High Court

Khekhomba Wangkhem vs The Union Of India Through The ... on 11 January, 2021

                      IN THE HIGH COURT OF MANIPUR
                                  AT IMPHAL

                            W.P.(C) No.1022 of 2018
         Khekhomba Wangkhem, aged about 36 years, S/o (L) W. Modhu
         Singh, at present serving as Deputy Commandant/CASO, CISF Unit
         ASG, Imphal Airport, having a permanent resident at Chingmeirong
         East, P.O. Lamlong & P.S. Lamphelpat, Imphal East District, Manipur-
         795010.


                                                                 ... Petitioner
                                     -Versus -

     1. The Union of India through the Secretary, Ministry of Home Affairs,
        Government of India, North Block, New Delhi-110001.
     2. The Director General, Central Industrial Security Force, CGO
        Complex, Lodhi Road, New Delhi-110003.
     3. The Assistant Inspector General (PERS), Central Industrial Security
        Force, CGO Complex, Lodhi Road, New Delhi-110003.


                                                             ... Respondents

4. Shri N. Pau Sang Mung, Deputy Commandant/EXE (Notice may be served through Respondent No.2).

...Proforma Respondents

B E F O R E HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH

For the Petitioner : Mr. I. Denning, Advocate.

For the respondents : Mr. S. Vijayanand Sharma, Sr. PCCG.

Date of Hearing : 09.09.2020,22.10.2020,03.11.

2020 & 18.11.2020.

          Date of Judgment & Order    :   11.01.2021




W.P. (C) No. 1022 of 2018                                                 Page 1
                              JUDGMENT & ORDER
                                  (CAV)

[1]            Heard Mr. I. Denning, learned counsel appearing for the

petitioner and Mr. S. Vijayanand Sharma, learned Sr. PCCG appearing for

the respondents.

[2] In the present writ petition, the petitioner is challenging the

order dated 18.10.2018 issued by the Assistant Inspector General (PERS)

transferring the petitioner from ASG, Imphal to ONGC, Nazira, Assam. The

petitioner has challenged the said transferred order on the following

grounds:-

(a) The impugned transfer order had been

issued in violation of the guidelines for

posting/transferring of gazetted officers in CISF

issued by the authorities under CISF Circular No.

14/2015;

                       (b)   The       petitioner   had   been    subjected   to

                       frequent transfer;

(c) The impugned transfer order is punitive and

stigmatic in nature;

(d) The transferred order had been issued

malafide and in arbitrary manner or in colourable

exercise of power; and

W.P. (C) No. 1022 of 2018 Page 2

(e) The person who filed the counter affidavits

on behalf of the respondents is neither a party in

the present writ petition nor is he a competent or

authorised person to file the counter affidavits on

behalf of the respondents. Accordingly, the

averment/contention made in the counter affidavits

filed on behalf of the respondents cannot be taken

into consideration while deciding the present writ

petition and the averment made by the petitioner in

his pleadings should be taken as uncontroverted

and the writ petition should be allowed.

[3] In connection with the first ground raised by the petitioner, it

has been submitted that the office of the Director General, CISF (Ministry

of Home Affairs) issued a circular No. 14/2015 laying down guidelines for

posting/transferring of gazetted officers in CISF.

In Para 2(ii) of the said circular, it is provided that annual

transfer orders shall normally be issued by 1st of March. In Para 3(i) of the

said Circular, it is provided that one hard area posting of 2(two) years

(extendable by one more year) during the first 8(eight) years of service as

far as possible and under Para 3(ii) of the said circular the hard areas for

posting are given and as per the said circular all the Units of North East

and J&K are identified as hard areas. Under Para 3(iii) of the said circular it

is provided that the normal period of posting at 1(one) station/Unit shall be

W.P. (C) No. 1022 of 2018 Page 3 for 3(three) years extendable by another 1(one) year due to

administrative/operational exigencies.

[4] The learned counsel for the petitioner submitted that the

petitioner had been transferred and posted to his present place of posting

i.e., ASG, Imphal by an order dated 09.10.2017 and hardly after completion

of 1(one) year in his posting at ASG, Imphal, the respondents have issued

the impugned transfer order dated 18.10.2018 transferring and posting the

petitioner from ASG, Imphal to ONGC, Nazira, Assam before completion of

the period of posting of 3(three) years in complete violation of the tenure

posting as contained in Para 3 (iii) of the aforesaid circular No. 14/2015. It

is therefore, contended on behalf of the petitioner that on this count alone,

the impugned transfer order deserves to be quashed and set aside.

[5] In connection with the second ground raised by the petitioner,

it has been submitted that in the last 7(seven) years of service, the

petitioner has been transferred and posted 5(five) times and that too

without completion of tenure at every posting. It is accordingly submitted on

behalf of the petitioner that the petitioner has been subjected to frequent

transferred and in arbitrary manner and accordingly, impugned order

deserves to be quashed and set aside on this count also.

[6] In connection with the third ground raised by the petitioner, is

is submitted that under the impugned transfer order dated 18.10.2018,

altogether 6(six) DC's including the petitioner had been given transferred

and posting. Except for the writ petitioner, all the other 5(five) persons had

been transferred and posted from airport to airport, while the petitioner was

W.P. (C) No. 1022 of 2018 Page 4 singled out and deny posting to another airport. According to the petitioner,

such form of transfer amounts to punishing the petitioner without any fault

on his part and such transferred is clearly punitive in nature. It is also

contended on behalf of the petitioner that in the affidavits filed by the

respondents such words like "undesirable", "adverse confidential report",

"possible corruption", etc., are used as a reasons for issuing the impugned

transfer order. According to the petitioner such used of words before any

enquiry being held and any finding being arrived at amounts to stigmatising

the petitioner. Accordingly, it has been submitted that the impugned

transfer order deserves to be quashed and set aside on this count also.

[7] In connection with the fourth ground raised by the petitioner, it

has been submitted that the petitioner was posted at Imphal Airport after

the authorities considered and accepted his request for posting at home

state on the ground of health of the petitioner's mother, demised of his

father and the petitioner's marriage. It is vehemently submitted that the

impugned transfer order has been issued without allowing the petitioner to

complete the full tenure of such request posting and that too without

providing an opportunity of being heard or without considering the

representation dated 11.10.2018 and only to accommodate the respondent

No. 4. Such action of the authorities, according to the petitioner, is illegal,

arbitrary, bias, malafide and unconstitutional.

[8] In connection with the last ground raised by the petitioner, it

has been submitted that the deponent who filed the counter affidavits on

behalf of the respondents is neither a party in the present writ petition, nor

W.P. (C) No. 1022 of 2018 Page 5 is he a competent or authorised person to file the counter affidavits on

behalf of the respondents in connection with the present writ petition.

Accordingly, it has been submitted that all the averments made by the said

deponent in the counter affidavits filed on behalf of the respondents cannot

be taken into consideration and the averment made by the petitioner in his

pleadings should be taken as uncontroverted and accordingly, the writ

petition should be allowed.

[9] In support of his contentions regarding malafide and the

colourable exercise of power, the counsel for the petitioner had relied on

the following judgments reported in (1974) 4 SCC 3 "E.P. RoyappaVs State

of Tamil Nadu &Anr. (Para 85)., (2009) 2 SCC 592 (Head Note C and Para

16 and 21), (2005) 4 GLT 371 (Para 15 to 18), (2001) 1 GLT 468 ("Head

Note") and (1998) 2 GLT 242 (Para 11 to 13).

[10] In support of his contentions regarding the transfer order

being stigmatic and punitive in nature, the counsel for the petitioner had

relied on the following judgment reported in (2004) Supple in GLT 827

(Paras 38, 39, 41, 42) and (2004) 4 SCC 245 (Para 11, 12).

[11] In support of his contentions regarding consequence of non

denial or uncontroverted facts by filing counter affidavits and consequence

of filing affidavits by a third person, the counsel for the petitioner had relied

on the following judgment reported in (2011) 1 GLT (SC) 46 (Para 16 &

18), (2012) 7 SCC 389 (Para 17 & 19) and (1998) 2 GLT 281 (Para 20).

[12] Lastly, the counsel for the petitioner submitted that the

affidavits filed on behalf of the respondents are not properly verified and

W.P. (C) No. 1022 of 2018 Page 6 such affidavits cannot be treated as an affidavits in the eye of law. In

support of his contentions, the learned counsel had relied on the judgment

reported in (1991) 2 GLR 231 (Para 10 & 11) and (1998) 2 GLT 193 (Para

7).

[13] In answer to the first ground raised by the petitioner, it has

been stated by the respondents in their counter affidavit that the impugned

transfer order had been issued transferring the petitioner from ASG, Imphal

to ONGC, Nazira, Assam on the basis of adverse confidential report of a

serious nature made against the petitioner so as to enable the

authorities to hold a preliminary enquiry to find out the truth or correctness

of such allegations made against the petitioner. It has also been contended

that the petitioner being Unit Commander of CISF Units, ASG, Imphal and

as all the proposed witness are posted in Imphal under the petitioner's

command, the proposed preliminary enquiry against the petitioner would be

greatly prejudiced unless the petitioner is transferred out of Imphal, since

an officer sub-ordinate to the petitioner would be hesitant to dispose

against his senior officer in all fairness. It is stated by the respondents that

it was for this bonafide reason only that the decision for transfer of the

petitioner was taken as per rules.

It is pointed out by the counsel for the respondents that under

Para 14(ii) of the Circular No. 14/2015, it is provided that the DG, CISF

may transfer an officer whenever felt necessary in public interest and on

administrative/operational exigencies/requirements. It has been submitted

that in exercise of such power under Para 14(ii) of the said circular and

W.P. (C) No. 1022 of 2018 Page 7 only for enabling to hold a preliminary enquiry against the petitioner, the

competent authorities had issued the impugned transfer order and

accordingly, there is no illegality or irregularity in issuing the impugned

transfer order.

As prayed for by the counsel for the respondents, this Court

has also perused the relevant officer files submitted by the respondents

before this Court under sealed cover and on perusal of the said file this

Court is satisfied that the impugned transfer order had been issued on the

basis of adverse confidential report of a serious nature made against the

petitioner and for the purpose of holding the preliminary enquiry to find out

the truth or correctness of the allegations made against the petitioner.

[14] In answer to the second ground raised by the petitioner, it has

been stated by the respondents in their counter affidavit that the petitioner

was appointed in CISF on 02.09.2011 and after completion of basic training

at NISA, Hydrabad, he was posted to CISF Unit BSL Bokaro from

17.12.2012 to 29.04.2015. Thereafter, he was posted to CISF Unit BIOM

Kirandul complex during general transfer effected in 2015. It has also been

stated that the petitioner was conferred with local rank of Deputy

Commandant and posted at the same Unit against the vacant post of

AC/JAO by an order dated 29.04.2016. Subsequently, the petitioner was

transferred from BIOM Kirandul to BIOM Bacheli by an order dated

23.08.2016 since the said vacant post of AC/JAO had been filled up. As

there was no vacancy, the petitioner on promotion as regular DC/EXE was

adjusted in the same location as he did not complete the tenure of his hard

W.P. (C) No. 1022 of 2018 Page 8 posting tenure there. On completion of his tenure in hard area, the

petitioner was posted to CISF, ASG, Imphal, i.e., his home State by an

order dated 09.10.2017 on the request made by the petitioner. Hence, it is

contended that by the counsel for the respondents that the contentions of

the petitioner that he has been transferred frequently does not hold any

ground.

On perusal of the records, this Court found that except for the

transfer as explained by the respondent in their counter affidavits, the

petitioner has not been subjected to any frequent transfer and there is no

ground or materials to support the contentions that the petitioner has been

subjected to frequent transfer.

[15] So far as the third and fourth ground raised by the petitioner is

concerned, this Court do not find any materials on record to substantiate

the allegations made by the petitioner that the transferred order is punitive,

stigmatic and it has been issued malafide and in colourable exercise of

power. As stated hereinabove, the transferred of the petitioner has been

effected on the basis of serious allegations of confidential nature made

against the petitioner and with a view to hold a preliminary enquiry against

the petitioner to find out the truth and correctness of such allegations.

Holding of a preliminary enquiry to ascertain the truth and correctness of an

allegations made against the petitioner cannot be termed, by any stress of

imagination to be punitive or stigmatic. Transferring the petitioner on the

basis of serious allegations made against him and to facilitate holding of a

W.P. (C) No. 1022 of 2018 Page 9 preliminary enquiry against him cannot be termed as punitive, stigmatic or

colourable exercise of power or malafide.

[16] With regard to the fifth ground raised by the petitioner, it has

been pointed out by the counsel for the respondents that as per the gazette

notification published on 24.03.1990 under Para (ii)-Section 3-Sub-Section

(i), the notification dated 14.02.1990 bearing G.S.R. 167 was published,

wherein the list of persons who are authorised to depose on behalf of the

Union of India has been listed. The relevant portion of the said notification

are as Under:

"New Delhi, the 14th February 1990"

"G.S.R. 167- In the exercise of the power conferred by rule 1 of the order XXVII of the first schedule of the code of civil procedure 1908 (5 of 1908) and in suppression of the Notification of the Government of India in the Ministry of Law No. SRO 351 dated 25-1-1958 and 165 dated the 1st September 1953, the central government hereby appoints:-

(i) The officers specified in the schedule annexed hereto as persons by whom the plaints and written statement in suits in any court of civil jurisdiction or (in writ proceeding ) by or against the central Government shall signed;

(ii) Those of the officers referred to in sub-clause (i) who are acquainted with the facts of the case, as persons by whom such plaints and written statements shall be verified."

SCHEDULE

"I. GENERAL.

Any Secretary, Additional Secretary, Special Secretary, Joint Secretary, Deputy Secretary, Under Secretary to the Government of India or Desk Officers/Section Officer.

                        II.       ..
                        III.      ............

                   XIX. MINISTRY OF HOME AFFAIRS

W.P. (C) No. 1022 of 2018                                                             Page 10
                         1. Central Intelligence Bureau

                        2. ..

                        3. ..

                        4. Central Industrial Security Force


                             Director General

                             Inspector General

                             Deputy    Inspector     General     Central    Industrial
                             SecurityForce

Assistant Inspector General in the Headquarter Office."

Subsequently, the Department of Legal Affairs, Ministry of

Law and Justice, issued another notification dated 09.07.1992, making an

amendment to the 1990 notification with respect to "Schedule XIX" relating

to Ministry of Home Affairs for sub heading "4. CISF" and entry relating

thereto and a Commandant was also included as a person who is

authorised to deposed on behalf of the Union of India. The said

amendment notification dated 09.07.1992 was published in the official

gazette notification dated 25.07.1992 and relevant portions are reproduced

as under:

"New Delhi, the 9th July 1992"

"G.S.R. 332- In exercise of the powers conferred by rule 1 of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), the Central Government hereby makes the following further amendment in the Schedule to No. S.R.O. 167 dated the 14th February relating to the signing and verification of the plaints and written statements in the suits in any court of civil jurisdiction by or against the Central Government, namely:-

W.P. (C) No. 1022 of 2018 Page 11 In the Schedule to the said notification, an item XIX relating to Ministry of Home Affairs for Sub-heading "4 Central Industrial Security Force" and entry thereto, the following shall be substituted namely:-

"4. Central Industrial Security Force:

Director General

Deputy Inspector-General

Assistant Inspector-General

Commandant/Principal, Central Industrial

Security force Recruits Training School/

Centre".

In view of the aforesaid notifications, this Court finds that the

Commandant, CISF, who filed the counter affidavits on behalf of the

respondent is a competent person to represent and file counter affidavits

on behalf of the respondents.

[17] This Court has also perused the authorities cited by the

counsel for the petitioner and after careful perusal, this Court is of the

considered view that none of authorities relied on by the counsel for the

petitioner is applicable to the facts and circumstances of the present case.

The simple issue to be decided in the present writ petition is

whether transfer of the petitioner on the basis of serious allegations made

against him and with a view to facilitate a preliminary enquiry against the

petitioner to find out the truth and correctness of such allegations can be

said to be arbitrary or illegal. On this question, the petitioner failed to point

out any arbitrariness or illegality in effecting such transfer and this Court

also did find any ground for interfering with the impugned transfer order. In

W.P. (C) No. 1022 of 2018 Page 12 view of the above, this Court declines to interfere with the impugned