Ashok Kumar Sharma Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. ashok kumar sharma, l.d.c. in the passport office, lucknow has challenged the order of his transfer from lucknow to bareilly passed on 16.10.96 (annexure-3) and relieving order dated 6.11.96 (annexure-4).2. the main ground of challenge is that the order is punitive in nature.3. to appreciate the contention of the learned counsel for the applicant, the brief facts of the case are given: as per the o.a., on 5.8.96 when the applicant was working in his office, he received a message from office counter that some one wants to see. when the applicant reached the counter, one of the neighbours of the applicant was found standing who requested the applicant for help in getting four passport forms of his relative, which were to be scrutinised with original document. as per the new system, the original documents were required to be produced for perusal of the counter clerk. the applicant helped the checking clerk in comparing entries made in the forms with the original documents. it was during this process that the respondent no. 3 i.e. passport officer reached on the spot and took away all the four forms from the hand of the checking clerk without giving any heed to the request made by the applicant. the respondent no. 3 humuliated the applicant and refused to hear anything in the matter. the forms were, however, returned on 7.8.96. on 7.8.96, a memorandum (annexure-7) was issued to the applicant by the respondent no. 3 levelling certain allegations and seeking explanation with the threat that the disciplinary proceedings would be started against him. on 12.8.96, the applicant gave his reply (annexure-2). the respondent no. 3 felt annoyed and approached the chief passport officer, new delhi with false and concocted facts and succeeded in getting the impugned order of transfer passed on 16.10.96. the relieving order, other impugned order, was subsequently issued on 6.11.96. the applicant sent a representation on 8.11.96 which remained undecided, hence the applicant filed the present o.a. on 27.11.96. by an interim order dated 6.12.96, the operation of the order dated 16.10.96 was stayed. the respondents were, however given time to decide the representation dated 8.11.96 by a reasoned and speaking order. the representation was subsequently decided by order dated 18.12.96 (annexure r-3 to counter affidavit).4. a single counter affidavit has been filed by all the three respondents; wherein it is admitted that an incident did take place on 5.8.96. it has been further stated that some of the staff members were habitual for collecting passport application forms from the people and to deposit at the office counter with malafide intention. the applicant was also warned several times and was advised not to indulge in such malpractices. to minimise the corruption and to avoid bad name to the organisation, surprise checking of the counter was made. the applicant was found approaching the counter with a bundle of forms. the applicant himself deposited the forms with malafide intentions. the applicant was, therefore, caught with four passport application forms and was subsequently issued the memorandum dated 7.8.96. it has been further mentioned in the counter affidavit (in short c.a.) that the transfer of the applicant was made in public interest 5. the learned counsel for the applicant has submitted that as per revised transfer policy circulated with letter dated 7.5.93 (annexure-5) and subsequently amended vide letter dated 3.9.96 "usually transfer of udcs and ldcs will be avoided. however, the transfer of udcs and ldcs to passport office located in the same state could be effected, whenever it becomes necessary in the public interest. the other terms and conditions stipulated in the transfer policy will remain unchanged." 6. the relevant portion governing the transfer of udcs and ldcs is as below: "(a) no transfer will be ordered against the wishes of an official unless he or she has completed a minimum of 5 years of stay at the station at which he or she is presently posted. (b) transfer will be effected strictly based on length of stay of an official at a station except when it becomes necessary to transfer an official for the following reasons: (i) the official concerned based on prima-facie information available against him/her is suspected to have developed/ested interests and his/her continuance at that station in likely to be prejudicial to government interest. (ii) if transfer of an official is recommended by cbi or other security agencies. (iii) on the basis of departmental proceedings, it is established that the official concerned has been found guilty of nerious irregularities and his/her continuance in that office is likely to be detrimental to public interest." 7. the submission of the learned counsel for the applicant is that the facts brought out on record, brings the case of the applicant in para (b) (iii) and not in para (b) (i). therefore, it has been submitted, in absence of departmental proceedings and finding of guilt, the order of transfer is illegal. further contention of the learned counsel is that the applicant has not been transferred in public interest but because of the incident which occurred on 5.8.96. to bring home his point, the learned counsel has drawn attention towards para 12 of the c.a. the same is reproduced as below : "that the contents of para 4.11. of the o. a. is baseless. the decision to transfer the applicant from passport office, lucknow to passport office, bareilly, was taken by the competent authority after taking into account the fact of misconduct and misbehaviour by the applicant and allegation of corrupt practices against him. the respondent no. 2 i.e. chief passport officer went through the report/complaint received from passport office, lucknow of the applicant and took the decision in public interest." 8. the learned counsel for the applicant has also drawn attention towards the order dated 18.12.96 (annexure r-3 to c.a.) by which the representation of the applicant was rejected. the submission of the learned counsel is that the transfer of the applicant has been effected, as mentioned in para 12 of the c.a. on the ground of (i) misconduct, (ii) misbehaviour, (iii) allegation of corrupt practices and (iv) report of the passport officer sent to chief passport officer.another basis for transfer of the applicant is mentioned in annexure r-3 to c.a. that "shri sharma was found depositing passport application forms of some individuals for some consideration in return." the submission of the learned counsel is that in view of the above, transfer of the applicant has not been made in public interest, but to punish the applicant without making any enquiry and without affording any opportunity to the applicant to prove his innocence. the order, it is submitted, is punitive in nature and, therefore, the same is not valid in law.9. the learned counsel for the respondents has, on the other hand, submitted that as per the impugned transfer order (annexure-3), the transfer of the applicant was made in public interest and it was not at all necessary to indicate the grounds of transfer in the order. the submission is that once the transfer order indicates that the same is in public interest, the tribunal is not to find-out the reasons of such public interest. the submission of the learned counsel is that the case of the applicant falls in para (b) (i) as the applicant had developed vested interest and, there was a prima facie information available against the applicant.10. no-doubt, the impugned order mentions the word 'public interest,' but mere use of such a word would not be sufficient to cover-up the whole background effecting such transfer. as admitted in para 12 of the c.a., the decision to transfer the applicant was taken by the competent authority after taking into account the fact of (i) misconduct, (ii) misbehaviour and (iii) allegation of corrupt practices against the applicant. further report of the passport officer contained the allegation that the applicant was depositing the passport application forms for some consideration in return. such grounds are not covered under para (b) (i). it is not disclosed in the pleadings that any departmental proceedings has been instituted against the applicant in respect of the various allegations made against the applicant. as pointed-out earlier, the incident occurred on 5.8.96 and on receipt of the report of the passport officer, the transfer order was passed on 16.10.96. thus, the basis to transfer the applicant is the report of the passport officer which contains the various allegations. no inquiry appears to have been made in respect of the allegations. the only memorandum issued to the applicant is annexure-1 dated 7.8.96 which does not mention the allegations contained in para 12 of the c.a. or the allegations contained in annexure r-3 to c.a. in view of these facts, the transfer of the applicant could have been made only after the applicant was found guilty in the departmental proceedings. in absence of any such departmental proceedings, the transfer of the applicant on the grounds mentioned in para 12 of the c.a. and allegations made in annexure r-3 would be illegal and not envisaged by annexure-5.in view of the discussions made above, it is found that the order of transfer is wholly arbitrary, invalid, punitive in nature and not in public interest. the impugned orders are, therefore, liable to be quashed and are quashed. the parties shall bear their own costs.

Judgment:
1. Ashok Kumar Sharma, L.D.C. in the Passport Office, Lucknow has challenged the order of his transfer from Lucknow to Bareilly passed on 16.10.96 (Annexure-3) and relieving order dated 6.11.96 (Annexure-4).

2. The main ground of challenge is that the order is punitive in nature.

3. To appreciate the contention of the learned counsel for the applicant, the brief facts of the case are given: As per the O.A., on 5.8.96 when the applicant was working in his office, he received a message from office counter that some one wants to see. When the applicant reached the counter, one of the neighbours of the applicant was found standing who requested the applicant for help in getting four passport forms of his relative, which were to be scrutinised with original document. As per the new system, the original documents were required to be produced for perusal of the counter clerk. The applicant helped the checking clerk in comparing entries made in the forms with the original documents. It was during this process that the respondent No. 3 i.e.

Passport Officer reached on the spot and took away all the four forms from the hand of the checking clerk without giving any heed to the request made by the applicant. The respondent No. 3 humuliated the applicant and refused to hear anything in the matter. The forms were, however, returned on 7.8.96. On 7.8.96, a memorandum (Annexure-7) was issued to the applicant by the respondent No. 3 levelling certain allegations and seeking explanation with the threat that the disciplinary proceedings would be started against him. On 12.8.96, the applicant gave his reply (Annexure-2). The respondent No. 3 felt annoyed and approached the Chief Passport Officer, New Delhi with false and concocted facts and succeeded in getting the impugned order of transfer passed on 16.10.96. The relieving order, other impugned order, was subsequently issued on 6.11.96. The applicant sent a representation on 8.11.96 which remained undecided, hence the applicant filed the present O.A. on 27.11.96. By an interim order dated 6.12.96, the operation of the order dated 16.10.96 was stayed. The respondents were, however given time to decide the representation dated 8.11.96 by a reasoned and speaking order. The representation was subsequently decided by order dated 18.12.96 (Annexure R-3 to Counter affidavit).

4. A single Counter affidavit has been filed by all the three respondents; wherein it is admitted that an incident did take place on 5.8.96. It has been further stated that some of the staff members were habitual for collecting passport application forms from the people and to deposit at the office counter with malafide intention. The applicant was also warned several times and was advised not to indulge in such malpractices. To minimise the corruption and to avoid bad name to the organisation, surprise checking of the counter was made. The applicant was found approaching the counter with a bundle of forms. The applicant himself deposited the forms with malafide intentions. The applicant was, therefore, caught with four passport application forms and was subsequently issued the memorandum dated 7.8.96. It has been further mentioned in the Counter affidavit (in short C.A.) that the transfer of the applicant was made in public interest 5. The learned counsel for the applicant has submitted that as per Revised Transfer Policy circulated with letter dated 7.5.93 (Annexure-5) and subsequently amended vide letter dated 3.9.96 "usually transfer of UDCs and LDCs will be avoided. However, the transfer of UDCs and LDCs to passport office located in the same state could be effected, whenever it becomes necessary in the public interest. The other terms and conditions stipulated in the transfer policy will remain unchanged." 6. The relevant portion governing the transfer of UDCs and LDCs is as below: "(a) No transfer will be ordered against the wishes of an official unless he or she has completed a minimum of 5 years of stay at the station at which he or she is presently posted.

(b) Transfer will be effected strictly based on length of stay of an official at a station except when it becomes necessary to transfer an official for the following reasons: (i) The official concerned based on prima-facie information available against him/her is suspected to have developed/ested interests and his/her continuance at that station in likely to be prejudicial to Government interest.

(ii) If transfer of an official is recommended by CBI or other security agencies.

(iii) on the basis of departmental proceedings, it is established that the official concerned has been found guilty of nerious irregularities and his/her continuance in that office is likely to be detrimental to public interest." 7. The submission of the learned counsel for the applicant is that the facts brought out on record, brings the case of the applicant in para (b) (iii) and not in para (b) (i). Therefore, it has been submitted, in absence of departmental proceedings and finding of guilt, the order of transfer is illegal. Further contention of the learned counsel is that the applicant has not been transferred in public interest but because of the incident which occurred on 5.8.96. To bring home his point, the learned counsel has drawn attention towards para 12 of the C.A. The same is reproduced as below : "That the contents of para 4.11. of the O. A. is baseless. The decision to transfer the applicant from Passport office, Lucknow to Passport Office, Bareilly, was taken by the competent authority after taking into account the fact of misconduct and misbehaviour by the applicant and allegation of corrupt practices against him. The respondent No. 2 i.e. Chief Passport Officer went through the report/complaint received from Passport Office, Lucknow of the applicant and took the decision in public interest." 8. The learned counsel for the applicant has also drawn attention towards the order dated 18.12.96 (Annexure R-3 to C.A.) by which the representation of the applicant was rejected. The submission of the learned counsel is that the transfer of the applicant has been effected, as mentioned in para 12 of the C.A. on the ground of (i) misconduct, (ii) misbehaviour, (iii) allegation of corrupt practices and (iv) report of the passport officer sent to Chief Passport Officer.

Another basis for transfer of the applicant is mentioned in Annexure R-3 to C.A. that "Shri Sharma was found depositing passport application forms of some individuals for some consideration in return." The submission of the learned counsel is that in view of the above, transfer of the applicant has not been made in public interest, but to punish the applicant without making any enquiry and without affording any opportunity to the applicant to prove his innocence. The order, it is submitted, is punitive in nature and, therefore, the same is not valid in law.

9. The learned counsel for the respondents has, on the other hand, submitted that as per the impugned transfer order (Annexure-3), the transfer of the applicant was made in public interest and it was not at all necessary to indicate the grounds of transfer in the order. The submission is that once the transfer order indicates that the same is in public interest, the Tribunal is not to find-out the reasons of such public interest. The submission of the learned counsel is that the case of the applicant falls in para (b) (i) as the applicant had developed vested interest and, there was a prima facie information available against the applicant.

10. No-doubt, the impugned order mentions the word 'public interest,' but mere use of such a word would not be sufficient to cover-up the whole background effecting such transfer. As admitted in para 12 of the C.A., the decision to transfer the applicant was taken by the competent authority after taking into account the fact of (i) misconduct, (ii) misbehaviour and (iii) allegation of corrupt practices against the applicant. Further report of the Passport Officer contained the allegation that the applicant was depositing the Passport application forms for some consideration in return. Such grounds are not covered under para (b) (i). It is not disclosed in the pleadings that any departmental proceedings has been instituted against the applicant in respect of the various allegations made against the applicant. As pointed-out earlier, the incident occurred on 5.8.96 and on receipt of the report of the Passport Officer, the transfer order was passed on 16.10.96. Thus, the basis to transfer the applicant is the report of the Passport Officer which contains the various allegations. No inquiry appears to have been made in respect of the allegations. The only memorandum issued to the applicant is Annexure-1 dated 7.8.96 which does not mention the allegations contained in para 12 of the C.A. or the allegations contained in Annexure R-3 to C.A. In view of these facts, the transfer of the applicant could have been made only after the applicant was found guilty in the departmental proceedings. In absence of any such departmental proceedings, the transfer of the applicant on the grounds mentioned in para 12 of the C.A. and allegations made in Annexure R-3 would be illegal and not envisaged by Annexure-5.

In view of the discussions made above, it is found that the order of transfer is wholly arbitrary, invalid, punitive in nature and not in public interest. The impugned orders are, therefore, liable to be quashed and are quashed. The parties shall bear their own costs.