IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16350 of 2012 ====================================================== Vijendra Kumar, S/o Late Ram Tapeshwar Singh, resident of Village- Anandpur, P.S.- Bihata, Distt.- Patna at present residing at Mohalla- S.K. Nagar House No.- 4 Road No.- 5, P.S.- Budha Colony, Distt.- Patna. .... .... Petitioner
1. The Food Corporation of India through the Chairman-cum- Managing Director, 16-20 Barakhambha Lane, New Delhi.
2. The Executive Director (East Zone) Food Corporation of India 10- A. Middleton Row Kolkata- 71.
3. The General Manager (Region) Food Corporation of India, Regional Office Arunachal Building, Exhibition Road, Patna.
4. The Dy. General Manager, Food Corporation of India, Zonal Office (East) 10A, Middleton Road, Kolkata.
5. The Manager (Personnel), Food Corporation of India, Regional Office Patna.
.... .... Respondents
====================================================== For the petitioner : Sri Naresh Malhotra, Sr. Advocate with Mr. Mukesh Kumar No.-1, Advocate.
For the respondents : Mr. Prabhat Kumar Verma, Sr.Advocate. ====================================================== P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER
6 11-10-2012 This writ petition has been filed by the petitioner challenging order dated 25.08.2012 by which the Manager (Personnel) on behalf of General Manager (Region) of the Food Corporation of India, Patna (hereinafter referred to as 'the Corporation' for the sake of brevity) transferred the petitioner from Bihar Sharif to Orissa along with others with a direction that they were relieved on the same date with a direction to report for duty to the General Manager, FCI Regional Office, Orissa.
Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 2
2. Learned counsel for the petitioner stated that he joined service of the Corporation on 16.01.1978 on the post of Assistant Grade-III and now he is posted at Bihar Sharif on the post of Assistant Grade-II from where he has been transferred to Orissa by the above mentioned impugned order.
3. Learned counsel for the petitioner submitted that according to the Transfer Policy Guidelines Circular No.EP-03- 2002-33 dated 21.11.2002 of the Corporation (a Government of India Undertaking) the normal tenure for posting of an employee at one station is three years as per clause 3 (i) and clause 8 thereof provides that irrespective of the category an employee be generally posted as per his choice in the last two years of services, whereas clause 10 thereof provides that the office bearers of any of the Union/Staff Association including recognized Unions are not exempted from transfers, but subject to administrative convenience the President and the General Secretary of the recognized Unions at the All India, Zonal and Regional levels, may not be transferred outside the station during the period the employee holds such position. He further submitted that petitioner was a Zonal President (East Zone) of the Union recognized by the Corporation and this was his first tenure.
Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 3
4. Learned counsel for the petitioner claimed that earlier petitioner was transferred from Patna to West Dinajpur on 30/31.07.2009, which was challenged by him before this Court vide CWJC No.16200 of 2009 but the said writ petition was disposed of by a Bench of this court vide order dated 20.04.2010 directing the General Manager (Region) of the Corporation to consider the contents of the allegation petition dated 30.03.2009 against the petitioner and other documents annexed to the said writ petition and its counter affidavit and thereafter issue comprehensive request asking the competent authority of C.B.I. to investigate into the allegation of illegal use of godown space in Gaya and Sasaram area of Bihar Region and if the allegations were found true, to register a case and the said enquiry must be completed within a reasonable time in any case within six months from the date of receipt of a copy of that order and in the event the petitioner was absolved in the said enquiry, he should be brought back to the Bihar Region.
5. Learned counsel for the petitioner averred that pursuant to the above mentioned order of the High Court, petitioner was brought back to the Bihar Region vide order dated 07.03.2011 and was posted at District Office Patna on 30.03.2011 and from there he was transferred to Bihar Sharif in Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 4
the month of May 2011 where he joined and was performing his duty. He further averred that only after a few months of his posting at Bihar Sharif, the impugned order dated 25.08.2012 was passed by the authorities transferring him from Bihar Sharif to Orissa without giving any administrative reason in the order of transfer.
6. Learned counsel for the petitioner asserted that petitioner's name was never involved in the reports and wild allegations were levelled against him only because the petitioner was posted at that place, although he had committed no offence at all. Even in pargraph-21 and annexure to the counter affidavit of the respondents, the petitioner was nowhere mentioned. Furthermore, no departmental proceeding or any case has been initiated against the petitioner as yet and in any view of the matter the petitioner has been working on a post, which is not concerned with procurement of paddy whereas the fault has been found only in the procurement of paddy. Moreover, the Corporation itself has granted letter of appreciation to the petitioner on 08.06.2011.
7. Learned counsel for the petitioner argued that the respondents cannot take help of clause 9 of the aforesaid guidelines as no case was initiated against the petitioner, hence Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 5
the respondents are trying to ignore the guidelines on some points and are trying to rely on other points as there is no other rule or procedure prescribed except the aforesaid guidelines. On the aforesaid point learned counsel for the petitioner relied upon a decision of a Bench of this Court in case of Rajendra Prasad vs. State of Bihar & another, reported in 1995 (2) P.L.J.R.
8. On the other hand, learned counsel for the respondents stated that any clause of the guidelines cannot confer any legal right to the employee for challenging his transfer and any clause of the guidelines will always be subject to administrative convenience as the word used therein is not 'shall' rather it is the word 'may'.
9. Learned counsel for the respondents submitted that there is no question of administrative bias of the authorities against the petitioner as the transfer of petitioner was approved by the Executive Director (East Zone) of the Corporation and that order was with respect to not only the petitioner rather it was with respect to seven persons and all of them were relieved from Bihar Sharif on the same date i.e. 30.08.2012 as all of them were posted in Bihar Sharif Depot of the Corporation out of whom the petitioner was In-Charge and irregularities at the Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 6
Depot had come to the notice of the internal vigilance of the Corporation and accordingly investigation report was submitted by the Committee on 06.08.2012 with respect to all the aforesaid seven persons including the petitioner, who was In-Charge of the Depot and hence charge sheet was going to be issued against all of them and departmental proceeding was to be initiated soon.
10. Learned counsel for the respondents agued that in the aforesaid circumstances, the continuance of petitioner and other six employees of the Corporation, who were posted at the godown where the irregularities had been noticed was not proper and the administrative exigencies required that all the seven employees posted there, be transferred, which was rightly done by the impugned order.
11. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that the petitioner is an Assistant Grade-II in the Corporation and in the year 2009 he was posted at Patna where he received his transfer order dated 30/31.07.2009 transferring him to the District Office, FCI West Dinajpur (West Bengal) and the said transfer was challenged by him vide CWJC No.16200 of 2009 and after considering the arguments of learned counsel for Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 7
the parties a Bench of this Court came to the conclusion that Corporation had been established in the light of the provisions of the Food Corporation of India Act, 1960, for the purpose of facilitating the availability of the food grain in the country at a reasonable price so as to cater the need of the poor masses of the country. Godowns had been raised to achieve the purpose for which the Corporation had been established. The purpose for which Corporation had been established, however, was being defeated on account of illegal use of the godown space. Accordingly, the said writ petition was disposed of by a Bench of this Court vide order dated 20.04.2010 (Annexure-1) with the following directions:-
"In order to ensure that the godown space of the FCI is not misused for illegal purposes, this Court deems it expedient to direct the General Manager (Region), Respondent no.3 to consider the contents of the allegation petition dated 30.3.2009, Annexure-9, the contents of the Outward Gate Pass contained in Annexure-14, the report dated 6.5.2009, Annexure-15, the report of the Executive Director dated 12.3.2008, Annexure-D to the counter affidavit as also other connected material received against M/s Manoj Kumar, Sukhdeo Paswan, petitioner and others and thereafter issue comprehensive request asking the competent authority of C.B.I. to enquire into the allegation of illegal use of godown space in the Gaya and Sasaram area of the Bihar Region and if the allegations are found true, to register a case, copy whereof be also forwarded to this Court. The enquiry be completed within a reasonable time, in any case within six months from the date of receipt of a copy of this order.
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It is made clear that in the event, petitioner is absolved in the enquiry made in the light of this order then he should be brought back to Bihar region."
12. It is also not in dispute that thereafter the petitioner was brought back to Patna and was posted at Bihar Sharif on 27.05.2011 where he was made In-Charge of the Depot of the Corporation and about 15 months thereafter the impugned order dated 25.08.2012 had been passed transferring the petitioner from Bihar Sharif to Orissa, which is under challenge in the writ petition.
13. No doubt, clauses-3, 10 and 17 of the above mentioned Transfer Policy Guidelines reiterated by learned counsel for the petitioner provide that the normal tenure of stay of an employee at a station will be three years and that the President and the General Secretary of the recognized Unions of All India, Zonal and Regional levels may not be transferred outside the station during the period the employee holds such position and that the request from employees, who are due for retirement within two years, for transfer to their home states/towns or other stations, where they want to settle after retirement may be considered by the competent authority, but in all the aforesaid clauses word 'may' is used as such provisions cannot be justifiably made absolute without considering the Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 9
14. Furthermore, clause 4 (ii) of the aforesaid Guidelines provides that these instructions did not bar competent authority at the Headquarters in effecting the transfer of any employee at any time keeping in view the administrative requirements and exigencies of work. Moreover, clause 9 thereof provides that an employee, who is involved in a vigilance case in major penalty charges, should be transferred out of District/Region/Zonal Office, as the case may be and the request for change of transfer from such employees should not be entertained by the authority concerned. The aforesaid provisions along with the objectives of transfer policy are clearly to regulate the placement and rotation of employees to various offices/stations judiciously and in the best interest of the Corporation and to ensure that these are done in an objective and transparent manner to enable proper discharge of the functions of the Corporation.
15. It is specific case of respondents that Zonal Vigilance Squad had found major irregularities and lapses at Bihar Sharif Depot of the Corporation in its report dated 25.06.2012 and it opined that the said irregularities must be immediately investigated thoroughly by the Regional Vigilance Patna High Court CWJC No.16350 of 2012 (6) dt.11-10-2012 10
Squad to avoid misappropriation of stock that had happened earlier at the Depot where misappropriation of stock was to the tune of more than Rs.12 crores and for which the matter had also been referred to the C.B.I.
16. In the aforesaid circumstances, all the seven staffs working at Bihar Sharif Depot of the Corporation including the petitioner have been transferred by the Zonal Executive Director as it was merely an inter zone transfer due to the aforesaid administrative exigency, which cannot be legally ruled out. Furthermore, it had been also stated in the counter affidavit that very soon charge sheet was going to be issued against the concerned persons and the departmental proceeding was also going to be initiated against them without any delay under the major penalty clause of Regulation 58 of the FCI (Staff) Regulations, 1971 against the concerned staff.
17. In the aforesaid facts and circumstances and the specific provisions of law, this court does not find any illegality in the impugned order of the authorities concerned nor does it find any occasion to interfere into the matter. Accordingly, this writ petition is dismissed.
Harish/- (S.N. Hussain, J)