J.B. Goel, J.
(1) Rule D.B.
(2) Both the parties have filed detailed pleadings and also documents in support of their respective contentions. We have heard learned counsel for the parties at great length and we proceed to decide this petition finally.
(3) The petitioner was appointed in respondent No.1 Corporation as Assistant Cashier in April, 1966 and in due course was promoted as Accountant in 1984 and at the relevant time he was posted at Jammu office of respondent No.1 as Accountant. He was transferred from Jammu to Udaipur vide office Order dated 20.12.1993 which was duly served on him and in pursuance thereof he was relieved from there on 22.12.1993. He did not report at Udaipur. On the other hand he made representation dated 22.12.1993 against this transfer which was followed by 2/3 more representations but his request was not acceded to and he was directed to report for duty at Udaipur which he did not do. A charge sheet dated 8.9.1994 was issued for not complying the transfer order and in due course disciplinary inquiry was held by an Enquiry Committee which submitted their report to the authority concerned. A copy of the inquiry report was sent to the petitioner. Before any further decision could be taken and without submitting reply to that show cause notice the petitioner has filed the present petition under Article 226 of the Constitution of India challenging both his transfer order as well as the disciplinary proceedings instituted against him.
(4) It is alleged that the transfer order is malafide and an act of victimisation because he was a Local Secretary of the Union of the Workers and Vice-President of the main Union of the workers of the respondent and he had high-lighted certain financial irregularities committed by Officers of the respondent Corporation in connection with the awarding of transport contract favouring certain contractor and that contract was set aside by the High Court of Jammu and Kashmir in a writ petition filed by a group of contractors. It is also pleaded that the petitioner being Office bearer of the Trade Union is a protected employee and could not be transferred against the settlement arrived at between the management and the workmen and also because of provisions of Industrial Disputes Act. It is also contended that because of family difficulties of the petitioner he should not have been transferred especially because his wife was a patient of Cancer and was under treatment at Batra Hospital, New Delhi and he had to take her there for periodical check up and treatment, besides having two daughters; one was doing her C.A. Course at Jammu and the other was studying there and the transfer order was illegal and without jurisdiction otherwise. He has also challenged the disciplinary enquiry held against him and has raised several grounds with respect to the manner in which the enquiry against him was conducted.
(5) On behalf of respondents, Shri J.L. Seth, Respondent No.4 who had issued the transfer order has filed the counter affidavit. It is denied that the transfer order has been passed on account of any malafides and/or by way of victimisation, and it is pleaded that it was passed on account of exigencies of business and on administrative grounds, inter-alia because there was no Accountant available at Afs, Udaipur where the petitioner was transferred, and no substitute was necessary for him at Jammu, that he was doing business in the name of his wife at Jammu and a number of complaints had been received against him from other workmen/employees. It is also denied that the officers concerned of the respondent had favoured any particular contractor in award of transport contract. Other pleas taken have also been denied. Reliance has inter-alia been placed on:
(1) Pushpa Gupta Vs . Engineers India Ltd. : (1995)ILLJ1023Del . (2) Trilok Chand Vs . Nidc : (1994)IILLJ1130Del . (3) ManoharLal v. State of Punjab 1984 1 LU 193. (4) Union of India & Others Vs . S.L.Abbas : (1993)IILLJ626SC . (5) Rajendra Roy Vs.UOI&Anr.; : AIR1993SC1236 (6) St. of M.P.& Anr. v. S.S Kourav & Ors. 1995 Lab.IC 1574 (7) Kishori Lal Verma v. Hindustan Zinc Ltd. & Am. 1995(2) Llj 35. (8) Mrs. Shilpi Base & Ors. v. St. of Bihar & Ors. 1991 (2) Llj 591.
(6) The scope of right of the employer to transfer the employees from one station to another and also the scope of the jurisdiction of the High Court or any other Tribunal to interfere in the matters of transfer has been considered in a number of judicial pronouncements. In Union of India and others Vs . S.L. Abbas : (1993)IILLJ626SC it has been observed that in case of All India Services transfer is an incidence of service and an employee is transferable any where in India. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration. The guidennes say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.
(7) It has further been held that the Central Administrative Tribunal whose jurisdiction is akin to that of the High Court under Article 226 of the Constitution is not an appellate authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer.
(8) In this case the respondent was transferred from Shillong to Pauri (U.P.) and his wife was employed in Shillong. The Central Administrative Tribunal set aside the transfer on the ground that guidelines issued by the Central Government were not followed. This order of the Tribunal was set aside by the Supreme Court reiterating that the order of transfer was not in violation of the statutory provisions even if administrative instructions or guidelines were ignored.
(9) In Rajindra Roy Vs . Union of India : AIR1993SC1236 , the petitioner was transferred from New Delhi to Calcutta, again it has been observed that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. It was reiterated that in a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the court and the Tribunal should not interfere with the order of transfer. The Central Administrative Tribunal did not interfere. The order of the Tribunal was upheld by the Supreme Court. In State of Madhya Pradesh & Another v. S.S. Kourav & Ors. 1995 Lab. & I.C. 1574 it has been reiterated that the courts or Tribunals are not appellate for to decide on transfers of the employees on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or. Tribunals are not expected to interdict the working of the administration system by transferring the officials to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafides or by extraneous consideration without any factual background foundation.
(10) It was further observed that Courts cannot go into the administrative expediency to post an officer at a particular place and the transfer order was not interfered with as it was found to be on administrative grounds inspire of the fact that the officer was transferred from the place of last posting within a span of about 8/9 months. Again in Mrs. Shilpi Bose & Ors. v. State of Bihar 1991(2)LU 591 it was held that the Courts should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on grounds of malafide. A Government Servant holding a transferable job has no vested right to remain at one place or the other. He is liable to be transferred. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if an order is passed in violation of executive instructions the Courts ordinarily should not interfere with the order. Instead the affected party should approach the higher authorities in the department. The order of the High Court was set aside observing that, 'if the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not , conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders.'
(11) In State of Punjab Vs . J.S. Dhutt : AIR1993SC2486 it was again emphasised that, 'that this court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servants between one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily, the courts have no jurisdiction to interfere with the order of transfer. High Court accordingly erred in quashing the order of transfer of respondent from Hoshiarpur to Sangrur. High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a case where on the face of it no injustice was caused.' The respondent corporation is a public sector corporation and an agency of the Government. These principles shall equally be applicable to its employees.
(12) In view of the aforesaid legal position it is to be seen whether the impugned order of transfer is malafide or in violation of any statutory provisions or otherwise unjustified requiring interference under Article 226 of the Constitution of India.
(13) First contention is that the transfer order is against the standing orders of the Corporation which is disputed on behalf of the respondent and interalia it is contended that it is specifically mentioned in the letter of appointment of the petitioner that his services were liable to be transferred anywhere in India.
(14) The petitioner was initially appointed as Assistant Cashier vide letter of appointment dated 20.10.1966 (Annexure R-3). This letter contains the terms and conditions of his employment. Under clause No.4 it is notified that his services will be liable to be transferred to any other place in India at the discretion of the management. It is not the case of the petitioner that this condition was not accepted by him. No standing order containing any bar against the transfer has been brought to our notice by the petitioner. To counter the plea of the petitioner that the employees in his category are not transferable, on behalf of the respondent in the counter affidavit it has been stated that numerous employees have been transferred from one place to another and instances of 12 employees including the petitioner have been given and it is also stated that petitioner has earlier been transferred thrice. It appears that the petitioner was earlier transferred from Delhi to Amritsar and he had filed a suit against his demotion v and transfer. His transfer was held to be not bonafide but the suit was dismissed vide judgment Annexure Q.8 placed on record. However, thereafter the parties had entered into a settlement vide Annexure R-5 and the petitioner had accepted the right of the management to transfer him in terms of his appointment letter and on this settlement both the demotion order as well as transfer order were rescinded. Now the petitioner is working at Jammu whereas earlier at one time he was working at Delhi. Obviously, he had been transferred there in pursuance of the conditions of his service.
(15) Then reliance has been placed on behalf of the .petitioner to the following clause Ii of some settlement between the management and the worker's union:
'SETTLEMENT:11. Transfers a. It is affirmed that the transfers are and shall be effected in good faith; b. It is not intended to make transfer as a method of harassment to workman. c. Long distance transfer in the labour and clerical categories will normally be discouraged.'
THIS clause does not prohibit transfer of an employee from one place to another and rather right of transfer is conceded to the respondent. This settlement Was prior to the other settlement referred to above (Annexure R-5). In our view this does not operate as a bar to the transfer. Then reliance has been placed on the following clause 4.5 of the Memorandum of Undertaking between the Management and the Workers of the respondent Corporation which reads as under: 'In case of re-deployment of manpower the workman to be redeployed will be retained in the same town'.
(16) On the basis of this clause it is contended that by virtue of this clause the services of the employees are not transferable to another station. The document from which this clause has been extracted has not been produced. This clause appears to apply in the case of employees which may be declared surplus for any reason or possibly due to. introduction of computerization as contended on behalf of respondents. This clause cannot be read as a bar to the transfer of a regular employee.
(17) Then it is contended that the petitioner was an office bearer of the worker's union of the Corporation and in that capacity he was a protected workman under the Industrial Disputes Act, 1947, so he could not be transferred without his consent and also consent of the union. Such a mandate against transfer is denied by the respondent. During arguments no such statutory provisions containing absolute bar against transfer of union office bearers were brought to our notice.
(18) In the case of an active worker or office bearer of the union the rules and principles governing the transfer .would not be different. In his case also the same principle will apply and unless it can be said that the transfer is motivated by some ulterior consideration no exception can be made in his case. As already noticed the general rule is that the employer has the right to transfer any employee which would obviously include an active worker or the office bearer of the union in the interest and exigencies of the business and the right of the employer to transfer is not taken away simply because the employee is an active worker or office bearer of the Union.
(19) In Kishori Lal Verma v. Hindustan Zinc Ltd. & Am. 1995 11 LLJ 35 (Raj.) a Division Bench of Rajasthan High Court has observed as under: '10. Transfer of a trade Union leader does not ipso facto imply that the transfer is an act of victimisation. Trade Union activities performed by the office bearers of the Union are solely for the benefit and welfare of the workmen and not connected with the establishment itself or the members of the public whose interest the establishments are intended to serve. The duties rendered by the office-bearers to the Union are not part of the duties rendered to the establishment. The establishment can function without the Union but the Union cannot function without the establishment. The prime duty of the employee is to serve the establishment and then only the Union. No doubt, Trade Union activity has won universal recognition and it has a twin objective, viz., safeguarding the interests of the workers and ushering industrial peace. For whatever reason the management may have deemed it fit or conducive to grant duty relief the legal status of that act is only that of a concession and not a matter pertaining to the condition of service.'
(20) Thus the petitioner as active worker of the Union has no special rights against transfer so long as his transfer is not motivated. 439
(21) It has also been contended that the impugned transfer is malafide and act of victimisation in a smuch as the petitioner had raised voice against the financial irregularities being committed by the transferring authority and other senior officers of the Corporation and for this reliance has been placed on a letter dated 29.10.1993 (AdmixtureP-2) alleged to have been sent by him to the Executive Director of the respondent corporation complaining about awarding of contract to M/s. Abc Enterprises, Jammu against norms, rules, and procedures of the Corporation. These allegations and the receipt of any such letter have been denied in the counter affidavit and it has also been alleged that this is a fake and fabricated document created much later by the petitioner to support a false plea.
(22) In Para 3 of the petition it has been alleged that in the year 1989 Power Development Corporation of the State of Jammu and Kashmir had set up electrical turbine at Pam pore which was commissioned in two phases, first phase I was commissioned in the year 1989 and the respondent Corporation had awarded work of carriage of Hsd from Jammu to Pam pore to the approved contractors initially but 'subsequently, in the year 1991 that work was given to a firm known as M/s. Abc Enterprises the partners of this firm were closely associated with the high officers of the Indian Oil Corporation including Shri B.K. Bakshi, Ex- Chairman and Shri J.L. Seth, respondent No.4 herein without calling the tenders first at the rate of Paise 59.58 per KL/KM from 1.1.1992; then at the rate of Paise 64 from October, 1992 and thereafter at Paise 78 and from 2.2.1994 the rate was again enhanced to Paise 80.50. In the counter affidavit it has been stated that the Power Development Corporation had set up two gas based power geri ration plants in the State of Jammu & Kashmir called as Unit No.1 and Pdc Unit No. 1I. Unit No.1 was commissioned in the year 1990 and at that time the law and order situation had deteriorated in the State of Jammu and Kashmir and the employees of the respondent corporation had expressed their inability and unwillingness to carry out the handling operations at the site of Unit No.1 which they had been doing earlier and then respondent corporation had asked its transport contractors whether they could handle the work being performed by the employees of the respondent Corporation, but none of the contractors individually was willing to take over the handling operations on behalf of the respondent corporation and some 8 contractors formed an association in. the name of M/s. Abc Enterprises and offered to undertake the work of handling as well as transportation of Diesel at the site of Pdc Unit Np.1. All these 8 contractors individually had good track record with the corporation and together they owned about 300 lorries and the corporation accepted their offer and gave them the contract which included transport and handling charges in April, 1991 for a period of 2 years extendable by one year. This contract was a composite contract in which M/s. Abc Enterprises transported the goods from the depot through the tankers at the Pdc Pam pore. The contract was extended for three months and in the meantime all the existing Ioc dealers and the transporters who had minimum of 2 years experience of handling and transportation of petroleum products and fulfillled the requirements of atleast owning 5 trucks registered in the State of Jammu & Kashmir were asked to make bid. Based on this criteria 43 approved contractors were found eligible but these individual transporters combined together in two groups in the name of M/s. Abc Enterprises and M/s. Kashmir Syndicate and the respondents received two tenders one on behalf of M/s. Abc Enterprises representing 12 transporters and the other of M/s. Kashmir Syndicate comprising of 28 transporters. After scrutinising the offers the contract for Unit No.1 was awarded in favor of M/s. Abc Enterprises whose rates were found to be lowest.
(23) There is nothing on the record to show that any grievance or complaint was made against this arrangement either by the petitioner or by any other aggrieved or concerned persons till the transfer order was passed on 20.12.1993. In any case, no material has been brought to this effect on the record. It also appears that Shri J.L. Seth was not the officer in 1991-1992 when the contract of Unit No.1 was awarded. It appears that the similar work for second unit was also awarded to M/s. Abc Enterprises, on the basis of their offer/letter dated 22.6.1993 (Annexure P.1). The case of the petitioner is that by means of his letter dated 29.10.1993 (Annexure P.2) addressed to the Executive Director of the respondent corporation he had made complaints in awarding this contract to M/s. Abc Enterprises. Receipt of any such letter has been denied on behalf of the respondent in the counter affidavit and it is alleged that this letter is a fake and fabricated document. No material has been brought on record to show that such letter had actually been posted and sent to the respondent. Though this contract was challenged by way of writ petition in the High Court of Jammu & Kashmir which was allowed by a Single Judge in writ petition No.602/94 M/s. Bodh Raj & Others v. Indian Oil Corporation & Ors.; Raghbir Singh & Ors. v. Indian Oil Corporation & Ors. CWP. No.649/94, dated 4.11.1994 and this has been upheld by a division bench of that High Court, in Lpa (Writ) No-219/94 on 22.5.1995 but apparently there is nothing to show that the petitioner has contributed anything in these pro-ceedings. And this writ petition was obviously filed after the transfer order dated 20.12.1993 was issued and was directed against the award of contract on 12.2.1994.
(24) The petitioner had made representation dated 22.12.1993 (Annexure P.4) addressed to the Executive Director of the respondent against his transfer and no grievance had been made in this representation that the transfer was for some ulterior motive or by way of victimisation or that he had made any complaint dated 29.10.1993 against award of the transportation contract in question. Not only this the Chief Operations Manager of the respondent in his letter dated 30.5.1994 (Ex.P.9) addressed to the petitioner had annexed a list of the correspondence which was exchanged with the petitioner and had sought confirmation from the petitioner about the truthfulness of this list. Complaint dated 29.10.1993 alleged to have been sent by the petitioner is not mentioned in this list and the petitioner in reply to this letter had not stated that he had made any such complaint to the Executive Director of the Respondent.
(25) On behalf of the petitioner our attention has been invited to petitioner's letter dated 2.11.1994 (Annexure P.15) wherein mention has been made that petitioner had earlier made a complaint dated 29.10.1993 but that will not help the petitioner as it is not admitted by the respondents that a complaint dated 29.10.1993 was received by them and it is too belated. There was no occasion for the respondents to take the plea that the said complaint was not received at all. They had earlier made clear about all the correspondence exchanged with the petitioner and the petitioner had not come forward on that earliest opportunity that he had also made complaint dated 29.10.1993. Petitioner has not produced any proof of having sent such a complaint.
(26) Learned counsel for the respondent has pointed out that not only this letter dated 29.10.1993 has been fabricated, in an attempt to create false evidence in support of the petitioner's case, the petitioner also created another forged document by omitting material part from the letter dated 18.,10.1994 sent by ShriJ.S. Kaushal, on behalf of the Deputy General Manager (HR) of the respondent corporation to Shri S.K. Duggal, S.D.M., Jammu of the respondent Corporation which has been annexed as 0-5 with the rejoinder, in as much as the original para 3 of this letter reads as under:-
'3.Please depute one officer to visit the house of Shri G.S. Puri with a copy of the enclosed letter and in the event he accepts the letter, please send us the acknowledgement. In the event he does not accept the letter please send us statement of the concerned officer confirming that he has refused to accept the letter'
(27) Whereas in Annexure Q-5 filed by the petitioner, as copy of this letter, para 3 of it reads as under:
'3.Please depute one officer to visit the house of Shri G.S. Pun with a copy of the enclosed letter and in the event he accepts the letter, please accept the letter, please send us statement of the concerned officer confirming that he has refused to accept the letter.'
OMITTING the following words:- 'send us the acknowledgement, in the event he does not accept the letter'
(28) Our attention was drawn to this discrepancy vide application under section 151 C.P.C. (C.M.No.5455/95) filed on behalf of the respondent for taking action in contempt or otherwise against the petitioner for this deliberate omission. Reply dated 11.10.1995 was filed by the petitioner to this application where the Explanationn given is asunder:
'IT is submitted that since the document was not so clear as such typed copy of the same was placed on record. ..... In fact, one line was not typed by the typist since there were a large number of documents and huge record, as such, as per oversight the said non-typing of one line was not noticed......'
(29) The original letter which may be available with the petitioner has not been brought on record for our inspection. Petitioner has filed a number of documents as Amateurs to the writ petition as well as to the rejoinder and many of them are photostat copies. We are not convinced with the Explanationn given for the aforesaid omission. By omitting the aforesaid words the sense of the matter is materially changed creating an impression that the respondents were pre-determined to create evidence against the petitioner about service of some paper. In the circumstances, it cannot be said that this was bonafide omission on the part of the petitioner. In the circumstances in the absence of any proof or corroborating evidence or circumstance we are unable to believe that complaint dated 29.10.1993 (Annexure P.2) was made by the petitioner regarding irregularity in the award of transportation contract referred to above.
(30) As held in E.P. Royappa v. State of Tamil Nadu 1974 (1) Lu 172 burden of establishing malafide is very heavy on the person who alleges it and that the seriousness of such allegation demand proof of high order of credibility. Also it has been observed in Rajinder Ro/s case (Supra) that it cannot be always possible to establish malice in fact in a straight cut manner and in an appropriate case it may be possible to draw reasonable inference of malafide action from the pleadings and antecedent facts and circumstances but for such an inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions.
(31) No material has been placed on record which may give rise to inference of malafides on the part of respondent No.4 or any other officer of respondent corporation to have prompted the petitioner's transfer.
(32) And we are not satisfied from the material placed on record that the respondent No.4 or for that matter any other officer concerned of the respondent corporation had any grudge against the petitioner which may have motivated in issuing the transfer order of the petitioner from Jammu to Udaipur. It thus cannot be said that this transfer is malafide or an act of victimisation.
(33) Then the plea of personal family difficulties has been taken. In his representation dated 22.12.1993 addressed to the Executive Director the personal difficulties pointed out were (l)that his wife-was suffering from cancer for the last 2 years and she was undergoing treatment at Batra Hospital, New Delhi and they have recommended for check up at Tata Memorial Hospital, Bombay; (2) His eldest daughter is doing Ca course and she has got a seat from Chartered Accountant .at Jammu and she cannot go Along with him at Udaipur; (3) His youngest daughter is also studying in B.Sc. first year at Jammu. In this letter he had also desired to allow him to continue at Jammu for 3 years and alternatively he may proceed on leave for 3 years. No material about the condition of his wife at that time was submitted to the department nor it was alleged that his wife needed immediate or in the near future any treatment. This request was not acceded to and inspire of several letters sent by the respondents the petitioner did not join at Udaipur and inspire of warnings given to him that disciplinary action will be taken against him. As already noticed in S.L. Abbas case that in a transferable post, transfer is a normal incident and personal difficulties are matters for consideration of the department and the transfer order issued by the competent authority does not violate the legal right of the employee and as such the petitioner could not claim vested right that he should not be transferred from Jammu. The personal difficulties pointed out are not uncommon and generally the family life of an employee is disrupted in almost all the transfers. Though his wife appears to be a patient of cancer but it is not that for her treatment the presence of the petitioner was required at Jammu. It is stated that she was being treated at Delhi as and when required. Jammu and Udaipur are almost at equal distance from New Delhi and he has not approached the authorities for change of station nearer to Delhi if Udaipur was more unsuitable than Jammu for this reason. Vide his letter dated 23.11.1994 (Annexure P.19) he came with the plea that he never had intentions of disobeying the orders of transfer but since his request of cancellation of transfer order had not been favourably considered by the management he would like to join at Udaipur at the earliest and asked for the transfer advance of Rs.4000.00 . This offer is belated and has been made after he was charge sheeted. There has been no change of circumstance in the meantime and this also shows that he was not justified in not joining at Udaipur earlier and avoiding it for a long time.
(34) As already noticed the case of the respondent corporation is that the transfer is in the exigencies of business and for administrative reasons. They have given reasons that the petitioner is doing business in the name of his wife at Jammu and there are complaints of workers against him. It is not disputed that some business is being done in the name of the wife of the petitioner though it is alleged that she is not an active partner and the business is being looked after by other partners. It is riot for this court to sit in judgment over the decision of the authorities in the matter of propriety and justification of transfer as per legal position as already noticed, in the various authorities referred to above and as such this court would not be justified in interfering with the transfer order for this reason.
(35) Then it is contended that the transfer order has not been passed by a competent authority. The contention is that his appointing authority is the General Manager whereas transfer order as well as charge sheet have been issued by Deputy General Manager who is not his appointing authority and so not competent authority. No material has been placed on record to show that the General Manager is the appointing authority of the petitioner. At the time of appointment the petitioner was appointed by Branch Personnel Officer vide letter annexure R-2. The petitioner himself in his rejoinder has admitted that the designation of the Branch Personnel Officer was first changed to Branch Personnel Manager and later on it was changed as Deputy General Manager(HR). Both the charge sheet and the transfer order have been issued by the Deputy General Manager. As such it cannot be said that the action has not been taken by the competent authority.
(36) The objection has also been taken on behalf of the respondent that this petition on this ground is highly belated and is liable to be rejected because of delay and laches. This has a great force. The transfer order was passed on 20.12.1993. He was relieved from Jammu on 22.12.1993. His representation has been rejected in or about February, 1994. Further representations were rejected and still he did not join duty at Udaipur inspire of warnings. Charge sheet dated 8.9.1994 was also issued to him for disobedience. The present petition was filed on 12.12.1994, i.e., almost after one year. This delay in the circumstances also will not justify the exercise of discretionary jurisdiction under Article 226 of the Constitution. Re.: Disciplinary Proceedings
(37) The petitioner was charge sheeted 011.8.9.1994 on the charges of insubordination, subversion of discipline and neglect of duties for non-complying orders of his transfer even after his representations had been rejected and he was time and again directed to so join his duties. Besides this it is also a charge that be refused to accept the letter dated 30.5.1994 tendered to him by Shri Atul Bhatnagar, Deputy Manager on 5.6.1994 and another letter dated 21.6.1994 tendered to him by Shri H.S. Minhas, Deputy Manager on 2.7.1994.
(38) Service of the charge sheet was denied by the petitioner and it is his case that the charge sheet was served on him only on 17.11.1994 after he had appeared before the Enquiry Committee. The Enquiry Committee comprised of two members, (1) Shri M.L. Jain, Chief Lpg Manager, Northern Region and (2) Shri Y. Sood, Senior Terminal Manager, Panipat. The Enquiry Committee held its sittings on 15.11.1994, 23.11.1994, 24.11.1994 and 1.12.1994 in which the petitioner had participated. The department had produced some documents but no oral evidence was produced. After this Committee has submitted its report on 2.12.1994, a show cause notice dated 5.12.1994 was issued to the petitioner giving him an opportunity to submit his reply, if any, on the findings of the said Enquiry Committee before deciding the question of punishment to be awarded. No reply was given by the petitioner and on the other hand he has filed this writ petition before this court. '
(39) Disciplinary inquiry is challenged on various grounds raising objections with regard to its regularity and validity of the manner in which the inquiry was conducted. It is alleged to be illegal, ultravires, without jurisdiction, malafide and in violation of principles of natural justice. Even bias has been imputed to the members of the Enquiry Committee inter-alia that they are subordinates of the disciplinary authority and are not independent. Respondents, have contested the writ petition inter-alia on the ground that the court should not interfere at this interlocutory stage. They have also denied the allegations of bias, malafide and other imputations alleged by the petitioner. It is also contended that alternative remedy is available to the petitioner and as such the exercise of jurisdiction under Article 226 of the Constitution of India is not appropriate and proper in the circumstances. It is also stated that another show cause notice dated 6.3.1995 proposing the penalty of removal from service has been issued to the petitioner.
(40) The question is whether invoking of writ jurisdiction and especially at this stage is warranted and justified in the circumstances of the case?
(41) As already noticed a show cause notice has been issued requiring the petitioner to give his reply, if any, against the findings of the Enquiry Committee. No penalty has been imposed or was proposed when the writ was filed. It is not known what penalty may or may not be imposed.
(42) In Chanan Singh Vs . Registrar Co- operative Societies Punjab and others : (1976)IILLJ98SC a show cause notice was issued to the appellant as to why disciplinary action should not be taken against him for certain items of mis-conduct imputed to him. The Secretary of the Bank enquired into that allegation and, thereafter, the Secretary issued notice to him to show cause as to why his next increment should not be stopped by way of punishment. Reply sent by the appellant was accepted and proceedings were dropped. Thereafter, the Managing Director taking the view that the Secretary had no power to inflict punishment on the employees of the bank and the proceedings resulting in exoneration of the appellant were invalid, issued a fresh show cause notice proposing the dismissal of the appellant from service. The appellant had filed a writ petition challenging the revival of the proceedings against him. Objection was taken that petition was premature since no action had been taken. It was held by the Supreme Court (1) there is no present grievance of punitive action which could be ventilated in court, (2) Even the question of jurisdiction to reopen the enquiry will and must be considered by the Managing Director and appellant's appeal was dismissed as premature.
(43) Very recently in The Managing Director, Madras Metropolitan Water Supply and Sewerage Board and Anr. Vs . R. Rajan etc. : (1996)ILLJ1046SC , where respondents R. Rajan and C.A. Rajan were Secretary and President of the appellant, and Disciplinary action had been initiated against them under the service regulations. After receipt of Enquiry Officer's report the General Manager of the Board issued notice to both of them calling upon them to submit their defense, if any, within 7 days of the receipt of the said notice and copy of the Enquiry Officer's report with deposition of the witnesses was enclosed with the said notice. At this stage respondents approached the Madras High Court by way of writ petition contending that the Board was bent upon to dismiss them from service; that they were being victimised for union activities and the General Manager who had issued show cause notices had no jurisdiction to impose the punishment of dismissal. They also raised several grounds with respect to the regularity and validity of the manner in which the inquiry against them was conducted. The appellants opposed the writ petition inter-alia on the ground that the High Court ought not to interfere at this stage of disciplinary proceedings. They denied the charge of victimisation or unfair labour practices leveled against them by the respondents. The Single Judge as well as Division Bench had held that at present stage of disciplinary proceedings no interference is warranted by the High Court under Article 226 of the Constitution of India. But the Division Bench had also opined that the Managing Director is not competent to impose penalty of dismissal from service or compulsory retirement. Both Single Judge and the Division Bench, however, had dismissed the writ petition and the appeal and in appeal the Supreme Court affirmed the view of the learned Single Judge and the Division Bench holding that at this stage of the disciplinary proceedings no interference is warranted by the High Court under Article 226 of the Constitution leaving the question of powers of the Managing Director, to impose the penalty under the Service Regulations open.
(44) Again in yet another recent judgment The Executive Engineer Bihar State Housing Board Vs . Rakesh Kumar Singh and Ors. : AIR1996SC691 the appellant Board had allotted a quarter to the 4th respondent under the provisions of the Bihar State Housing Board Act, 1982 and Regulations framed there under on hire purchase basis. Hirer was the tenant till last Installment is paid where after ownership is transferred. Respondent No.3 is competent authority for the purposes of the Act to pass orders of eviction in respect of the property of the Board in cases of sub tenancy or unauthorised occupants of the property of the Board. On the complaint of the 4th respondent praying for eviction of the portion unauthorisedly occupied by the first respondent Respondent No.3 issued a notice to respondent No.1 to show cause why an order of eviction be not passed. Instead of showing cause, the first respondent straight away approached the High Court by writ petition for quashing the show cause notice and the eviction proceedings. This was allowed. Both the show cause and the eviction proceedings were quashed. On appeal, the Supreme Court observed that, 'for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, at this stage, it should be shown that the authority has no power or jurisdiction, to entertain the disciplinary enquiry in question. In all other cases it is only appropriate that the party avail of the alternative remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also there. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases by invoking the jurisdiction under Article 226 of the Constitution of India.' It was held that adjudication in the matter involved disputed questions of fact which require investigation and invoking of jurisdiction under Article 226 of the Constitution was not proper aid the High Court committed an error in entertaining it and quashing the Show cause notice and also eviction proceedings.
(45) In the present case it has been held above earlier that the Deputy General Manager is the appointing authority of the petitioner. As such he is competent to institute the departmental proceedings and to impose penalty. The proceedings have not terminated as yet in as much as final order has not been passed by the Competent Authority and the whole matter is open for decision of the competent authority including the jurisdiction to institute the disciplinary proceedings and also objection regarding regularity and validity of the manner in which the enquiry against him was conducted and also other objections as may arise. 'Show cause notice proposing the punishment to be imposed had not yet been issued when this petition was filed and which has been actually issued on 63.1995 as alleged in the counter affidavit. Resort to proceedings under Article 226 of the Constitution of India at this interlocutory stage of the disciplinary proceedings, in our view, was in approoriate and not justified and calls for no interference at this stage. This writ petition what extent is not competent. The parties have relied on some authorities which relate to their, own facts and circumstances and most of them relate to the question as to when alternative remedy is available the resort to writ jurisdiction may or may not be appropriate. In the view we have taken and the case law referred to above it is not necessary to refer to the same here again.
(46) In view of the discussion and for the reasons given above we find no merits in this writ petition and the same is accordingly hereby dismissed. In the circumstances of the case, the parties are left to bear their own costs.