CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2144/2009 This the 6th day of November, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Swetabh Suman S/O D. K. Singh, M/O Finance Group-A, R/O B-16, Northern Town, Jamshedpur-831001. Applicant ( By Shri P. P. Khurana, Sr. Advocate and with him Shri Kirtiman Singh and Ms. Seema Pandey, Advocates ) Versus 1. Union of India through Under Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Chairman, Central Board of Direct Taxes, North Block, New Delhi. Respondents ( By Shri V. P. Uppal, Advocate ) O R D E R
Justice V. K. Bali, Chairman:
Swetabh Suman, the applicant herein, an officer of the Indian Revenue Service (IRS), presently holding the post of Additional Commissioner of Income Tax, complains about his transfer from Bihar region to West Bengal region, which came about vide order dated 23.7.2009, on the only ground that the period of his posting in Bihar region is far less commensurate to the period provided in the policy of transfer framed by the respondents themselves, and if the general clause of the transfer policy of administrative grounds was to apply, the order could be passed only by the Government and not by the placement committee. The respondents, on the other hand, would resist the plea raised by the applicant by asserting that when the transfer has been ordered in public interest fully justifying the transfer even before the fixed period in the policy, the procedural wrangles may not justify cancellation of such transfer in the limited power vested with the courts and tribunals of judicial review in purely administrative matters. To deal with the issue as raised by the learned counsel representing the parties, as noted above, it would be useful to extract relevant facts leading to filing of the present Original Application under Section 19 of the Administrative Tribunals Act.
2. The applicant was recruited to Indian Revenue Service upon his qualifying the Civil Services Examination in the year 1988. He was first promoted to the post of Deputy Commissioner of Income Tax in 1988, then as Joint Commissioner of Income Tax in June, 2001, and thereafter as Additional Commissioner of Income Tax in December, 2001. Father of the applicant is stated to have expired in 1994, and his widowed mother is stated to be a chronic patient of cervix cancer, undergoing treatment at Jamshedpur. It is in these circumstances that the applicant made a request that he be transferred to Jamshedpur. He was accordingly posted at Jamshedpur in May, 2005. His only son is stated to be pursuing his education at Loyola School, Jamshedpur, who is presently in Class X. Certain misconceived allegations, it is the case of the applicant, came to be leveled against him when an FIR came to be filed under Section 13 of the Prevention of Corruption Act against him. The FIR was registered on 2.8.2005. The applicant filed a petition under Section 482 Cr.PC for quashing the FIR, wherein the High Court of Delhi restrained the respondent CBI from taking any steps to arrest him. The applicant was put under suspension on 16.9.2005 and was transferred to Chennai from Jamshedpur. He was kidnapped on 17.11.2005 while on way to his native place, Aurangabad, Bihar, and was recovered from the dense forest of Hazaribagh-Girdih on 27.11.2005 at about 8.30 p.m. by the Jharkhand Police. He identified all the kidnappers in test identification parade conducted at Hazaribagh Jail on 3.12.2005. In that connection, chargesheet came to be filed in the court of CJM, Hazaribagh. The respondent CBDT, however, treated his kidnapping as stage managed. The applicant filed a crl. misc. in the petition filed by him u/s 482 Cr.PC in the High Court, and the High Court vide order dated 23.3.2006 while issuing notice, directed that the applicant be not arrested by CBI. The order reads as follows:
Notice returnable on 17th April, 2006. Mr. Gulati accepts notice on behalf of the CBI.
Till then the petitioner be not arrested as CBI has not arrested him for eight months after the registration of the case. Dasti. The applicant challenged his suspension by way of OA No.1776/2006 before this Tribunal. Vide order dated 24.8.2007 passed in the said OA the Tribunal set aside the suspension of the applicant. While disposing of the OA, the Tribunal had inter alia observed that even though, more than two years had passed since filing of the FIR, no chargesheet had been filed. It is averred that even till date no chargesheet has been filed. It is the case of the applicant that an unsuccessful attempt was made by the respondents in setting aside the order passed by this Tribunal as the writ against the order aforesaid came to be dismissed on 11.7.2008. It was stated before the High Court that the suspension order had since already been revoked and that the applicant had rejoined his service. The High Court declined to entertain the petition. The short order passed by the High Court on 11.7.2008 reads as follows:
Learned counsel for the Petitioner states that the suspension order which is the subject matter of the decision before the Central Administrative Tribunal has since been revoked and the Respondent has rejoined service.
Under the circumstances, we decline to entertain this writ petition. The writ petition is dismissed. The applicant finally joined at Jamshedpur on 3.9.2007. His joining report was accepted. The applicant was then transferred to Purnea on 3.9.2008. This transfer order was passed upon some complaints which were false. That being so, the applicant made representation against his transfer to Purnea, which was ultimately considered by the competent authority on 3.3.2009, and it was found that the complaints made against the applicant were completely baseless and that there was no reason why he ought to have been transferred from Jamshedpur to Purnea. Special reasons as to why the applicant deserved to be retained at Jamshedpur were also recorded by the competent authority. The applicant has reproduced the noting dated 5.3.2009 in para 4.21 of the Application, and on the basis of that, it is pleaded that the main reasons for accepting his representation were (i) kidnapping and consequent threat to his life; (ii) mothers cancer treatment at Jamshedpur; and (iii) childs education. Accordingly, an order dated 5.3.2009 came to be issued by the competent authority transferring the applicant from Range-3 Purnea to Jamshedpur Range-2. Despite the order as mentioned above, the applicant has been again transferred vide impugned order dated 23.7.2009 to West Bengal region. The applicant states that he is a victim of frame-up and is being unduely harassed and victimized. It is on the facts as mentioned above that the present Application for the relief already indicated above has been filed.
3. The learned single Bench before whom the matter came up for hearing on 11.8.2009, passed an interim order that till the next date of hearing, the impugned order would not be given effect to in case the applicant had not been relieved so far. An application seeking vacation of stay came to be filed, on which we passed the following order on 23.10.2009:
Instead of disposing of MA, the Tribunal deems more appropriate to decide the main case. Pleadings are complete. List the matter for final hearing on the date already fixed.
Interim order to continue till then.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply, hotly contested the cause of the applicant. The transfer policy, it is stated, is not a piece of technical legislation and is only in the nature of guidelines, and is not statutory in nature. On the basis of judicial decisions mentioned in the reply itself, it is pleaded that this Tribunal may not interfere as conditions for judicial review would not exist in the instant case. It is pleaded that the investigating agency (CBI) brought to the notice of Chairman, CBDT that investigations are on relating to disproportionate assets of the applicant and that he has been found to have been prevailing upon the witnesses as also tempering with evidence. CBI was of the view that the applicant may go to any extent, even to the extent of removing original office records to save himself from the due process of law. CBI informed that the investigation related to the disproportionate assets case is almost complete and is in the final stages, and in that context requested that the applicant may be transferred from Jamshedpur with immediate effect and his headquarters be shifted to a location other than the State of Jharkhand, Bihar, Uttarakhand, UP and Delhi. The matter was placed before the placement committee in its meeting held on 7.7.2009, and in view of the request of CBI, the committee decided that the applicant may be transferred from Bihar region to West Bengal region with immediate effect. Recommendations of the committee were approved by the Minister of State (Revenue). It is further pleaded that as per para 3.1(b) of the transfer policy, the placement committee consisting of the Chairman of the Board, Member (Personnel & Vigilance), one Member of the Board and Joint Secretary (Administration) as Member Secretary, would be the final authority for transfer and allocation to the region of each cadre controlling Chief Commissioner of Income Tax, of officers below the rank of Commissioner, in respect of cases falling within the purview of existing guidelines. The transfer of the applicant is thus stated to be within the guidelines and fully in conformity with the transfer policy guidelines. Due procedure is stated to have been followed. The applicant is stated to have misrepresented and misinterpreted the facts, and that if such misinterpretation/ misrepresentation is entertained by courts, it would severely restrict the ability of the executive to effect transfers, which would be adverse to public interest. It is admitted position that there is a policy framed by the respondents for transfer of Group-A officers of IRS (Income Tax). The respondents would make reference to rule 13 of IRS recruitment rules by which any officer can be posted at any station in public interest. Reliance is then placed upon para 10 of the police. Paras 101, 10.2 and 10.3 read as follows:
10.1 Every officer shall be subject to Rule 13 of IRS Recruitment Rules notwithstanding anything contained in this policy, the Government may, if necessary to do so in public interest, transfer or post any officer to any station or post. No officer has any right to any post or to be posted to a particular station/Region/Area.
10.2 In between two Annual General Transfer exercises on administrative exigencies, the Placement Committee may shift a Commissioner from one charge to another charge in the same station. The Placement Committee may also shift officers of the rank of Additional Commissioners and below from one region to another.
10.3 An officer against whom CVC has recommended initiation of vigilance proceedings should not normally be posted or remain posted at the station where the cause of the vigilance proceedings originated. This restriction will remain in operation till such time as the vigilance matter is not closed. However, such an officer shall under no circumstances be posted to a sensitive charge.
5. The applicant has filed rejoinder by and large reiterating the stand taken by him in his Original Application, and controverting the pleas raised by the respondents in their counter affidavit.
6. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. We have also seen the original records and in particular, the recommendation of CBI for transfer of the applicant out of Jamshedpur, made on 26.6.2009. CBI, after making mention of the applicant seeking revocation of his suspension from this Tribunal, and his subsequent posting at Jamshedpur as Head of Income Tax Range, mentioned that during the course of investigation it has been revealed that the applicant has acquired assets disproportionate to his known sources of income worth crores of rupees at various places, namely, Bodhgaya, Dehradun, Lucknow and Noida, in the name of his mother, brother-in-law and self during a short span of time from 1.4.1997 to 5.8.2005 by abusing his official position as a public servant. It is then mentioned that the investigation has also disclosed that the applicant has been found to have been prevailing upon witnesses and also tempering with evidence, and that a glaring instance had come to notice wherein five original files from the office of CCIT, Dehradun, along with various complaints received against him by the department, were recovered by CBI from his residence at Jamshedpur. Regarding the missing of these files, a case FIR No.18/2005 had earlier been registered by the office of CCIT, Dehradun, and after recovery and seizure of the same, they were handed over to the local police at Dehradun, and a chargesheet against the applicant was filed by the police after thorough investigation. It is further mentioned that from the facts of the case, it appears that the applicant may go to any extent, even to the extent of removing the original office record to save himself from the due process of law. It is then mentioned that CBI has already filed chargesheet against the applicant and his mother u/s 120-B r/w 417, 471/468 IPC in the court of CMM, Delhi, and a second chargesheet is also being filed against the applicant and others for offences punishable u/s 120-B r/w 408 IPC regarding the affairs of Arvind Society, an NGO at his native place in District Aurangabad, Bihar. The investigation related to the disproportionate assets case is stated to be almost complete and the SPs report in the said case is being sent for seeking sanction for prosecution, after which a third chargesheet against him and other abettors who helped him in amassing disproportionate assets would also be filed. A request is then made that the applicant may be transferred from Jamshedpur with immediate effect to some non-sensitive post and his headquarters be shifted to a location other than the States of Jharkhand, Bihar, Uttarakhand, UP and Delhi. This recommendation is made by Shri Ashwani Kumjar, Director, CBI.
7. The two-fold contentions raised in support of the Application justifying continued posting of the applicant at Jamshedpur, in addition to the circumstances of the applicant, like treatment of his mother and education of his child, are that even though, in the transfer policy it may be permissible for the respondents to post an officer who may not have completed the requisite period at a particular place, in public interest, but the transfer has to be made by the Government and not by the placement committee or the Minister of State (Revenue), and the Government, it is urged, would mean the Finance Minister; as also that the impugned order of transfer is punitive in nature and thus cannot sustain. The respondents, it may be recalled, have averred that the recommendation of the placement committee was approved by the Minister of State (Revenue). The applicant in his rejoinder has pleaded that approval for his transfer by Minister of State (Revenue) would be contrary to law, inasmuch as, the approval would be required from the Finance Minister, which may be through Minister of State (Revenue) and Revenue Secretary. It is pleaded that the placement committee has the power to recommend and the Minister of State (Revenue) has the power to approve only in respect of existing guidelines, whereas the case under consideration would not fall within the purview of the existing guidelines, as the respondents have admitted on record that the transfer has been ordered on the request of investigating agency and is not an ordinary routine transfer. It is thus urged that approval was required to be given by Minister of Finance through Minister of State (Revenue) and Revenue Secretary. In other words, it is the case of the applicant that Minister of State (Revenue) had to refer the matter to the Finance Minister, and unless the Finance Minister was to sign the order, it could not be termed to be as if the transfer has been made by the Government, which alone could order transfer in public interest as per policy.
8. We do not find any merit whatsoever in the contentions as mentioned above, canvassed through Shri P. P. Khurana, learned Sr. Advocate, appearing on behalf of the applicant. The policy admittedly, deals with transfers in public interest, and once there are administrative reasons justifying transfer in public interest, we are of the view that there would be no requirement whatsoever for the respondents to wait for the fixed period of posting of a person at a particular place. The said period may be cut-short and the employee can be transferred. When the applicant is facing a serious charge of corruption having acquired disproportionate assets worth crores of rupees, and is constantly engaged in tempering with evidence and prevailing over witnesses, it would be the utmost need to post him at a place other than where the case under Prevention of Corruption Act came to be registered against him. CBI is the premier investigating agency. The allegations of tempering with evidence and prevailing over witnesses have been made by none other than the Director, CBI. It could not have been taken lightly by the respondent department. It would not be in the interest, even of the applicant, to remain posted at Jamshedpur, as he would be looked down with suspicion all through the case is to be decided by the concerned court. There could not be better administrative reasons in public interest to post the applicant out of Jamshedpur. The applicant is holding a transferable post. The policy in terms provides cutting short of a fixed tenure of a person at a particular place in public interest. The only contention raised by Shri Khurana that the Government means the Minister of Finance, without any rules being shown in that connection, does not appear to be correct. The placement committee recommended transfer of the applicant which was approved by the Minister of State (Revenue). In our view, it would be an order passed by the Government. Assuming the Government in this case is to mean only the Minister of Finance to be correct, we do not find the present to be a case which may need interference in the limited power of judicial review vested with us. Lord Greene in the famous Wednesbury case said that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited, and interference was not permissible unless one or the other of the conditions, namely, the order was contrary to law or relevant factors were not considered or irrelevant factors were considered or the decision was one which no reasonable person could arrive at, was satisfied. This principle has been recognized in this country. Reference in this connection be made to V. Ramanna v APSRTC [2006 SCC (L&S) 69]. If the order is rational or reasonable, it would not be interfered by the courts and tribunals while exercising the power of judicial review. There are number of judicial precedents taking the view as mentioned above, but mention of such judgments would unnecessarily burden the judgment.
9. Shri Khurana, we may mention in all fairness, has placed reliance upon two judgments of the Honble Supreme Court in Anirudhsinhji Karansinhji Jadeja v State of Gujarat [(1995) 5 SCC 302], and State of U.P. v Renusagar Power Co. [(1988) 4 SCC 59]. The facts in the case of Anirudhsinhji Karansinhji Jadeja (supra), insofar as, the same may be relevant for the controversy in issue, reveal that for recording of information about the commission of an offence under the Terrorist and Disruptive Activities (Prevention) Act, 1987, prior approval of DSP was required. The DSP did not give any prior approval on his own, and instead requested the Additional Chief Secretary to accord permission to proceed under the Act. DSP was held to have failed to exercise jurisdiction vested him. It was further held that it was a case of power conferred upon one authority being really exercised by another, and that if a statutory authority has been vested with jurisdiction, it has to exercise it according to its own discretion, and further that if the discretion is exercised under the direction or in compliance with some higher authoritys instruction, then it would be a case of failure to exercise discretion altogether. The judgment in State of U.P. v Renusagar Power Co. (supra) relied upon by the learned counsel, has no parity of facts with the present case. The issue raised in the case aforesaid pertained to provisions of U.P. (Electricity) Duty Act, 1952. The learned counsel has, however, placed reliance upon some observations made in para 86 of the judgment, which read as follows:
The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non-application of mind to relevant factors the exercise of power will be relegated as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. Insofar as, reliance placed upon by the learned counsel on Anirudhsinhji Karansinhji Jadeja (supra) is concerned, we have already mentioned that there is no material to show that the Government would only mean the Finance Minister, and in any case, present is not a case which may need interference by this Tribunal. Insofar as, reliance by the counsel on the observations made by the Supreme Court in State of U.P. v Renusagar Power Co. (supra) is concerned, the same would have no applicability to the issue involved in the present case.
10. The contention of Shri Khurana that since the order of transfer is punitive in nature and, therefore, the same needs to be set aside on that count only, in the context of the facts and circumstances of the present case, is equally devoid of merit. The applicant is facing trial in three criminal cases. Charges against him are serious in nature. It is in consideration of the report of CBI sent to the respondent department through its Director, that the applicant is tempering with evidence and suborning the witnesses, that the order of transfer has been made. The respondents have only considered the serious allegations made against the applicant by the investigating agency and thought it appropriate to transfer him. Shri Kuhrana, however, for his proposition as mentioned above, has placed reliance upon a judgment of the Honble Supreme Court in Somesh Tiwari v Union of India [(2009) 2 SCC 592]. The facts of the said case reveal that an anonymous complaint against appellant Somesh Tiwari was received, which was investigated by departmental authorities, but nothing adverse was found against him, and yet he was transferred. Even though, his OA challenging the transfer was dismissed by the Tribunal, in the writ filed by him, the High Court at Jabalpur held that the transfer of Somesh Tiwari on the ground that he apparently gave an impression that he worked on caste based ideology, in spite of the fact of recording a finding in the negative in the discreet inquiry conducted into the anonymous complaint, would shock the conscience of any reasonable man, to say the least. The High Court further held as follows:
It is no doubt true that the petitioner or any other member of an All India Service can be transferred to any place (sic) country and is obliged and duty bound to comply with the same, but to transfer him on the ground that some unidentified colleague feels that he is a caste is (sic), in other words only because he belongs to a particular caste, is in violation of his fundamental rights under Article 14, 15(1) and 16(2) of the Constitution of India and is also stigmatic as it would label and identify him, without adjudication or justification, as a person who works on caste bias for all times to come and would make him vulnerable to all and any such further anonymous complaints as at whatever place he is posted and could be used as a convenient tool to take any action against him or move him out as and when desired, by any person. Such an action also makes serious inroads into the personal rights of the petitioner as an individual as well as his fundamental rights of the petitioner, as the petitioner has apparently been transferred for having a working association with certain colleagues who happen to belong to his caste and which apparently has not found favour with the respondents, thereby giving a clear message to the petitioner to abstain from having any such relation with persons belonging to his own caste in future. The impugned order, if permitted to stand, would amount to opening a Pandoras box and would let loose the very evil that the Constitution seeks to contain and eradicate. The principle of Wednerbury unreasonableness was invoked. However, inasmuch as, Somesh Tiwari was not allowed salary for the period he did not join on his transfer, for that limited relief, the appeal came to be preferred by him in the Supreme Court. Reading of the judgment of the Supreme Court and the observations made by the High Court of Madhya Pradesh, as reproduced above, would clearly reveal that the primary reason for setting aside the order of transfer of Somesh Tiwari was that the allegations made against him were false, and yet he was transferred on the basis of the same very allegations, which would not only tarnish his image, but would come in his way in his future service career as well. Such are not the facts of the present case. Transfer of the applicant on the basis of criminal cases pending against him cannot be stated to be stigmatic. Surely, if the applicant is held guilty of the offences of which he has been charged, he may even be out of service, but pending trial of such criminal cases, if he is transferred, the same cannot be said to be punitive.
11. Before we may part with this order, we may only mention that even though, the applicant had gone to the High Court of Delhi seeking quashing of the FIR against him, but the limited relief granted to him yet is only anticipatory bail. He has, at least so far, not been able to get the FIR quashed against him. Insofar as, the revocation of suspension is concerned, the order came to be passed by this Tribunal only on the technical ground, i.e., the second review of his suspension which was due on expiry of 90 days from 9.12.2005 had not been carried out within the time limit prescribed and it was undertaken only on 1.6.2006, which would render his continued suspension non est and illegal in the eyes of law, and that although a period of two years had elapsed since the date of the initial suspension order, no chargesheet had been filed against the applicant. We may mention that while disposing of the OA of the applicant, we observed that the order passed by the Tribunal would not preclude the competent authority to pass fresh order in case it was felt necessary to keep the applicant under suspension for good and sufficient reasons in terms of rules and law in vogue. Insofar as, the plea of the applicant that on false allegations, an attempt to transfer him earlier in point of time proved abortive, as the competent authority found the allegations to be false is concerned, we may only mention that the allegations of mala fide against the respondents would be totally belied as when the applicant had a case, i.e., when the allegations on which he was transferred, were not found to be correct, his transfer was cancelled. However, when the allegations made by CBI have been found to be correct by the department, we find nothing wrong in transferring him out of Jamshedpur. Insofar as, the inconvenience of the applicant on his transfer to West Bengal region on personal grounds, as mentioned above, is concerned, we may only mention that there is an urgent need to transfer the applicant out of Jamshedpur, as his transfer is in public interest, and, therefore, personal inconvenience of the applicant would take the back seat.
12. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/