1. The issue is identical is all the four O.As. concerning the legitimacy of the impugned order dated 10.9.2002 transferring the four applicants from Agartala Postal Division. The text of the order is reproduced below: '"The Chief Postmaster General, North Eastern Circle, Shillong hereby ordered the transfer/posting of the following officials of Agartala Postal Division under Rule 37 of P&T Manual Vol. IV to have immediate effect and in the interest of service.
The above four (4) officials who are being transferred out of Agartala Postal Division should be relieved within 14th September, 2002 positively. If they are not relieved within the stipulated date, they will be deemed to have, been relieved.
The Sr. Supdt. of P.Os., Meghalaya Division, Shillong will immediately issue the posting order in respect of Shri Janardhan Debnath and Shri Haru Das Gupta. The Supdt. of P.Os., Dharmanagar Division will also immediately issue the posting order in respect of Smti Aniva Dutta and Smti Ajita Dutta." The applicants assailed the order of transfer as arbitrary, discriminatory and unlawful vitiated by improper exercise of power.
2. In view of the commonality of the factual matrix, the facts mentioned in O. A. No. 307 of 2002 are referred to hereinbelow for the purpose of adjudication of all the four applications.
The applicant in O.A. No. 307/2002 claimed to be the Treasurer of the Agartala Division, Branch of All India Postal-Employees Union, Group C; the applicant in O.A. No. 308/2002 similarly claimed to be the President of Agartala Division, Branch of All India Postal Employees Union, Group C; the applicant in O.A. No. 309/2002 claimed to be the Divisional Secretary of Agartala Division, Branch of All India Postal Employees Union, Group C and the applicant in O.A. 310/2002 claimed to be the Vice President of Agartala Division, Branch of All India Postal Employees Union, Group C. The applicants, inter alia pleaded about the General Strike of Postal Employees that took place from 5.12.2000 to 18.12.2000 for fulfilling the economic demand of the employees of the Postal Department. It was also stated that the aforementioned strike was declared illegal by the authority, but due to mass-employees participation, the authority could not initiate any disciplinary action against the Postal Employees including the applicants. The respondent No. 6 joined as a Director of Postal Services, Agartala Division on 20.12.2000. According to the applicants the respondent No. 6, on her joining as such tried to interfere in the Trade Union activities of the applicant's Association/Union work and threatened the Postal Groups C and D employees, who are the members of the Union. The applicants also referred to the incident that took place on 5.8.2002. It was also pleaded that on 29 and 30 July, 2002 the respondent No. 6 as Director, Postal Services, Agartala Division issued charge sheets to Shri Mrinal Kanti Das, Postal Assistant and Shri Kanti Ranjan Debbarma Deputy Post Master, Agartala Head Office. It was stated that for the aforementioned action of the respondent No. 6 the general employees of the Postal Department, Agartala Division expressed their unhappiness. According to the applicants a delegation of ten members of the All India Postal Employees Union Group C and D and National Union of Postal Employees Group C and D met the respondent No. 6 in her Chamber at 11.00 A.M.under the leadership of the applicants and others with a request tp withdraw the charge sheets issued under the relevant rules against the two employees. The respondent No. 6 misbehaved with the Union leaders including the applicants and threatened them at the discussion. The applicants also referred to a communication dated 6.8.2002 sent by the respondent No. 6 addressed to the Chief Secretary, Government of Tripura. According to the applicants the allegations made by the respondent No. 6 against the applicants and the associates in the letter dated 6.8.2002 were false and fabricated and the same was done only to harass the applicants and the members of the Union to dissuade them from continuing with their Union activities for the interest of the Postal employees. It was also pleaded that on the information received from the respondent No. 6, the Chief Post Master General, N.E.Circle, Shillong sent two officers, namely the Director, Postal Services (HQ), Office of the Chief Post Master General and an Assistant Director of the Office of the Chief Post Master General for an enquiry about the alleged incident that took place on 5.8.2002. The two officers came to Agartala on 29.8.2002 and discussed with the applicant and other employees who were in the delegation at the time of discussions in the chamber of the respondent No. 6. According to the applicants after enquiry nothing was found, however, surprisingly by the impugned order dated 10.9.2002 the applicants were illegally transferred. Hence the present applications assailing the impugned order of transfer as violative of Rules 37 and 37A of the P&T Manual and F.R. 15. The applicants also assailed the order of transfer as arbitrary, discriminatory and malafide and contended that the said order was not passed in public interest.
3. We issued notice on the respondents on 23.9.2002 and also issued notice as to why interim order should not be granted. On the returnable date, i.e. 26.9.2002 we passed an interim order keeping in abeyance the impugned memo dated 10.9.2002 and ordered the respondents to submit written statement/objection in writing. Accordingly, the matter was posted to 10.10.2002 for admission. The respondents submitted written statement opposing the applications and also submitted a Misc. Petition No. 133/2002 in O.A. No. 307/2002 praying for vacation and/or modification of the interim order dated 26.9.2002.
4. We have heard Mr. U.B. Saha, learned Sr. Counsel for the applicants, assisted by Mr. M.K. Misra, Advocate, at length. We have also heard Mr.
A. Deb Roy, learned Sr. C.G.S.C. as well as Mr. B.C. Pathak, learned Addl. C.G.S.C. appearing on behalf of the respondents. The learned Sr.
Counsel for the applicants took pain in placing before us the materials on record in support of his case. The learned Sr. Counsel also referred to the provisions of Rule 37 of the P&T Manual as well as the provisions of F.R. 15 and 22. Referring to the factual constituents, the learned Sr. Counsel for the applicants submitted that the impugned order was passed as a measure of punishment and the alleged allegations mentioned in the complaint were the foundation of the order of transfer which was per se punitive in character. The learned Sr. Counsel submitted that the order of transfer was grounded on malafide and extraneous considerations and therefore, the same was liable to be set aside and quashed. The learned Sr. Counsel had also drawn our attention to the judgment rendered by the Ahmedabad Bench of the Tribunal and submitted that the Ahmedabad Bench by judgment and order dated 21.12.1995 in O.A. Nos. 250, 267, 268 of 1994 and like cases held that the department itself had kept in abeyance the operation of Rule 37 itself and therefore, the impugned order of transfer in those cases were set aside and quashed. The learned Sr. Counsel also referred to the decision rendered by the Gauhati High Court in Lilaram Bora v.Union of India and Ors., 1982(1) GLR 366; Ramzan Ali Ahmed v. Taiyab Ali Ahmed, 1998(2) GLT 242 and Nikunja Ch Deka v. Assam Agricultural University and Ors., 1992 (2) GLT 555.
5. The learned Counsel for the respondents opposing the claim of the applicants referred to the facts mentioned in the written statement as well as to the Misc. Petition No. 133/2002 praying for vacation of the interim order. The learned Counsel for the respondents submitted that the impugned order of transfer was passed due to administrative exigency so that the administration could run smoothly and subserve the public interest. Mr. A. Deb Roy, learned Sr. C.G.S.C., stated that the transfer of a Government servant is an incidence of the service and that a Government servant does not possess a right not to be removed from a place of posting. The Tribunal inexercising power under Section 19 of the Administrative Tribunals Act, 1985 is not to act as an Appellate Authority. Mr. B.C. Pathak, learned Addl. C.G.S.C., referring to the fact situation, submitted that the impugned order was passed on administrative grounds and since the said order was not violative of the statutory rules or consitutional provisions, the Tribunal would refrain from interfering with the administrative decision passed by the authority bonafide. Mr. B.C. Pathak also sought to distinguish the cases referred to by the learned Sr. Counsel for the applicants.
6. Transfer is always understood and construed as an incidence of service and therefore, it does not result in any alteration of the conditions of service. F.R. 15 (a) empowers the authority to transfer a Government servant from one post to another; provided that except-(1) on account of inefficiency or misbehaviour, or (2) on his written request, a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14. But then, all powers must conform to the norms enshrined in Article 14 of the Constitution of India. Non-arbitrariness is an essential ingredient of Article 14 of the Constitution. A malafide exercise of power or for that matter arbitrary exercise of power or a transfer order passed malafide is obviously unlawful. The order is to be tested in the context of the fact situation. Chapter II of the P&T Manual Vol. IV regulates the transfer and posting. Under Rule 37 all officials of the department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Transfers should not, however, be ordered except when advisable in the interests of public service. Postmen, village postmen and Class IV servants should not, except for very special reasons, be transferred from one district to another. All transfers must be subject to the conditions laid down in Fundamental Rules 15 and 22. Under Rule 37-A transfers should generally be made in April of each year so that the education of school going children of the staff is not dislocated. In emergent case or cases of promotion these restrictions will naturally not be applicable.
7. Mr. U.B. Saha, the learned Sr. Counsel for the applicants particularly emphasised the complaint lodged by the respondent No. 6 by her communication dated 6.8.2002 addressed to the Chief Secretary and also to the note submitted by the Inquiry Officer and the Director of Postal Services dated 5.9.2002. It would be appropriate in this context to refer to the communication dated 6.8.2002 submitted by the respondent No. 6 to the Chief Secretary, which reads as follows: "This is to report to you the ugly incident involving gherao and assault on Director Postal Services, Agartala on 5th August, 2002: On 5th August I went to my office at around 10 A.M. A little thereafter, the union leaders, Mr. Janardan Debnath and Mr. Haru Dasgupta and others came to my chamber arid demanded that the charge sheet issued by the department to Shri Kanti Debbarma, Deputy Post Master, must be withdrawn immediately as he is due to retire soon. I explained that the power to withdraw a charge sheet is vested with the Chief Post Master General (Chief PMG) who is at Shillong. They were however very vociferous and insistent, upon which I suggested that a representation may be submitted which I could forward to the Chief PMG for necessary action. They refused to do so, and insisted upon me to withdraw it at once.
At this stage, I spoke on phone to the Director Postal Services (HQ) in the o/o Chief PMG Shillong who also spoke to Shri Janardan Debnath explaining to him that they may submit a representation to his office through the DPS Agartala. To this also, they did not agree and became more agitated and started shouting slogans and using objectionable language.
Thereafter (another 5 minutes or so) I got up and walked towards the door. Shri Haru Dasgupta and another employee (an Extra Depttl Stamp Vendor--union leader of the ED Agents--posted at Secretariate Post Office whose name I can't recall) blocked the door physically, and two ladies Smt. Aniva Dutta and Smt. Ajita Datta held me by the upper arms and dragged me into another room. I was so taken aback, that I screamed loudly, crying for help. Nevertheless, they forced me into a corner of the room and illegally detained me there.
I also saw that outside my chamber, in the corridor, there were about 100 odd people stationed. In this room several ladies and men gheraod me. Mr. Haru Dasgupta repeatedly taunted me and gave inciting speeches against me with wrongful and malicious statements.
From time to time, Shri Janardan Debnath would come to me and give ultimatum to sign the papers for withdrawing the charge sheet. He said that as soon as I sign it, I will be allowed to go. I just kept quiet each time.
I then went towards the window and on seeing some police constables below, I shouted and screamed for help, beating the window grills with my hands to draw their attention. I may mention that the West Police Station is right opposite the Head Post Office and the office of DPS, but no one came from the police station to help. At this Mrs. Aniva Datta told me caustically 'Madam, this is Tripura. No police will come to help you' I suppose this statement speaks volumes about the state of affairs.
At around 1.30 P.M. again, Mr. Janardan Debnath came up to me and said to me in a confidential tone that the situation is reaching boiling point and if I do not sign the papers immediately, it will explode and no one will be in a position to protect me from the crowd outside.
Gradually, the situation changed for the worse. The postal staff started leaving the room and in their place dangerous looking men and women gathered around me. I sensed that the situation is becoming more tense and mortally dangerous for me, so when Mr.
Janardan Debnath came to me again, I requested to be allowed to speak to the Chief PMG so that I may be able to sign the papers for withdrawal of the charge sheet. Thereafter, I spoke to the Chief PMG who at first did not agree. It was only after I convinced him that I was in grave danger, he said that I could sign whatever was necessary for my safety and security. I then signed the papers withdrawing the charge sheet, and only then, was I allowed to go.
I am deeply tormented and shocked by this incident and appeal to your kind self to take necessary action in the matter. The safety and security of the Central Govt. Officers posted in Tripura is the responsibility of the State Govt. In fact, I fear for my life and that of my family including my two small children, and I humbly submit for necessary security for self and family. It is due to this deep sense of fear and shock and fearing for the safety of my children that I have not lodged a formal FIR with the police. As a lady officer serving with sincerity and dedication in this far flung North Eastern Region of the country and working hard to improve the Postal Services in the State, this incident came as the most fearful inghtmare to me." The learned Sr. Counsel for the applicant also brought to our notice the communication sent by respondent No. 6 addressed to the Chief Post Master General, N.E. Circle, Shillong drawing the attention of the Chief Post Master General. In the aforesaid communication, the respondent No. 6 reported her version of the events that took place on 5.8.2002. In the said communication the respondent No. 6 only reflected the apprehension of the Director of Postal Services, Agartala (respondent No. 6) because of the events that took place.
Admittedly, the Union leaders who approached the respondent No. 6 on 5.8.2002 demanded for withdrawal of the charge sheet issued against one of the Deputy Postmaster, who was due to retire soon. In the communication the respondent No. 6 also narrated what transpired on that day which was similar to that reflected in her communication addressed to the Chief Secretary on 6.8.2002. Some of the passages of the communication addressed to the Chief Post Master General are reproduced below: I explained that the 'disciplinary cases' are totally beyond the purview of the unions and moreover the power to withdraw a charge sheet is vested with the Chief PMG who is at Shillong. They were however very vociferous and insistent, upon which I suggested that a representation may be submitted which I could forward to the Chief PMG for consideration. They refused to do so, and insisted upon me to withdraw it at once and their protests also starting taking an ugly turn.
Thereafter (another 5 minutes or so) I got up and walked towards the door. Shri Haru Dasgupta and another employee (an Extra Depttl (GDS) Stamp Vendor--union leader of the ED Agents-posted at Secretariat Sub-Post Office whose name I can't recall) blocked the door physically, and two ladies Smt. Aniva Dutta (who works in Accounts branch of Agartala HO) and Smt. Ajita Datta (Divisional Office) held me by the upper arms and dragged me into another room. I was so taken aback, that I screamed loudly, crying for help. Nevertheless, they forced me into a corner of the room and illegally detained me there.
I also saw that outside my chamber, in the corridor, there were about 100 odd people stationed. In this room several ladies and men gheraoed me. Mr. Haru Dasgupta repeatedly taunted me and gave inciting speeches against me with wrongful and malicious statements.
This continued for quite some time. From time to time, Shri Janardan Debnath would come to me and give ultimatum to sign the papers for withdrawing the charge sheet. He said that as soon as I sign it, I will be allowed to go.
I then went towards the window and on seeing some police constables below, I shouted and screamed for help, beating the window grills with my hands to draw their attention. I may mention that the West Police Station is right opposite the Head Post Office and the office of DPS, but no one came from the police station to help. At this, Mrs. Aniva Datta told me caustically 'Madam, this is Tripura. No police will come to help you.' I suppose this statement speaks volumes about the state of affairs.
At around 1.30 P.M. again, Mr. Janardan Debnath came up to me again and said to me in a confidential tone that the situation is reaching boiling point and if I don't sign the papers immediately, it will explode and no one will be in a position to protect me from the crowd outside.
Mr. Saha also referred to Annexure F, annexed in M.P. No. 133/2002.
The same was a communication dated 9.8.2002 addressed to the Chief Postmaster General, N.E. Circle, Shillong by the Member (Personnel).
By the said communication the Member suggested certain remedial steps like cancellation of any orders got signed/issued from DPS under duress and threat. Mr. Saha submitted that by the said communication, the authority, in fact directed the appropriate authority to take punitive measure against the applicants. No such direction is discernible from the said communication. The said communication only reflects the reaction in response to the events that took place on 5.8.2002. The Member (Personnel) only offered some of his suggestions. As a matter of fact the authority on its own also caused an enquiry into the whole matter as reflected in Annexure B of the written statement. The administrative enquiry only posted the factual situation as was found by the Inquiry Officer.
The said enquiry was not relating to any enquiry on misconduct. It was only an enquiry on the events that took place on 5.8.2002, which was reported by the respondent No. 6.
8. The order of transfer was passed on administrative exigency to bring order and harmony. The order in question, in the fact situation cannot be held to be an order that was passed as a punitive measure. In Lilaram Bora (supra), the High Court interferred because the order of transfer was made based on the complaint which was the foundation of the order. The aforesaid case was distinct from the present case. Here the applicants were transferred on administrative grounds. In Lilaram Bora's case the High Court had succinctly observed that had there been a case of undesirability of the applicant's stay at the Gauhati Airport for administrative reason (harmony among the staff posted at one place......), the conclusion might have been different as was indicated in the judgment. No law requires an employee to be heard before his/her transfer for the exigencies of administration. Reference Director of School Education, Madras v. O. Karuppa Thevan and Anr., 1996(1) SLR 225 (226). Admittedly, the transfers of the applicants are not in violation of F.R. 15 and 22. So long a transfer is made on account of exigency of administration and not from a higher post to a lower post the transfer would be a valid one and not open to attack on the ground of Articles 14 and 16 of the Constitution of India. (Reference: E.P. Rayappa v.State of Tamil Nadu, 1974(2) SLR 348). The transfer did not involve any reversion to attract interference by the Tribunal. The impugned order of transfer was seemingly passed bonafide and no discernible grounds are assigned to contradict the bonafide. We are also not pursuaded to accept the arguments of Mr. Saha to the effect that Rule 37 is no more in operation. Mr. Saha did not dispute that no such order was passed by the authority deleting Rule 37 from the statute rules. The decision rendered by the Ahmedabad Bench of the Tribunal in O.A. No. 250/1994 and like cases referred to by Mr. Saha are distinguishable on facts. As per the judgment, the transfers were not within their own cadre and within the limits prescribed for such cadre. The decision rendered by the High Court in Nikunja Deka's case (supra) involved a transfer passed malafide since the petitioner in that case was not in the good books of the Vice Chancellor and the Vice Chancellor wanted to get rid of him from the campus at Jorhat. The case referred in Ramzan Ali Ahmed (supra) is a case on facts. Transfer of the appellant in the said case jeopardised the applicant's tenure of service. That was a case in which the transfer was made from a non-plan school to a plan school. That was also a proven case of colourable exercise of power.
9. Mr. U.B. Saha, the learned Sr. Counsel for the applicants, also submitted that each of the applicants are office bearers of the Union and as per the policy of the Government the applicants ought not to have been transferred out from Agartala. The learned Sr. Counsel also submitted that the applicants only sought to ventilate their grievances and that all of them acted in discharge of their trade union activities. We find it difficult to accept the plea of Mr. Saha justifying its right. There are more ways of killing a cat than by chocking it with cream. Trade Union activities is also to be confined within the parameters of law by which each citizen is protected. Trade activities are not above law, such stir are also required to conform to law, keeping in mind the peace and dignity of each individual. The official guidelines guide, law only binds. On the given facts and circumstances, the authority only took the impugned measure to bring peace and harmony in the establishment.
10. Though we uphold the order of transfer on the facts and circumstances of the case, we have given our anxious consideration on the plea of the applicants, namely Smt. Aniva Dutta in O.A. No. 307 of 2002 and Smt. Ajita Dutta in O.A. No. 310 of 2002. Both the applicants are ladies who are having their families at Agartala. In the circumstances, we are of the opinion that those two applicants, namely Aniva Dutta and Ajita Dutta may submit their representations ventilating their grievances before the competent authority and if they make such representations within two weeks from the date of receipt of this order, the authority may sympathetically consider their grievances and pass appropriate order, keeping in mind the administrative exigencies. In such eventuality, the authority shall consider their representations preferably within a month from the date of receipt of such representations. Till completion of the aforesaid exercise in respect of the applicants in O.A. No. 307/2002 and O.A. No. 310/2002, the stay of the order of the transfer shall continue in respect of those two applicants.
11. Needless to recite that the Courts or Tribunals are not Appellate Forums to decide on transfers of officers on administrative grounds. As was observed by the Supreme Court in State of M.P. and Anr. v. S.S.Kourav, (1995) 3 SCC 270=1995(2) SLJ 109 (SC); "It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated by malafides or extraneous consideration without any factual background." 12. On evaluation of the facts and the factual matrix, we are of the opinion that the impugned order of transfer was passed on administrative ground and the same was passed bonafide. The impugned transfer order is not vitiated by arbitrariness or malafide exercise of power.
13. Subject to the observations made above, the applications stands dismissed and the interim order dated 26.9.2002 stands vacated in respect of O.A. No. 308/2002 and O.A. No. 309/2002.