JUDGMENT [ENTITY], J.
(1) The present petition has been filed by Bureau of Indian Standards Officers Association, through its General Secretary, and Shri [ENTITY], who is the President of the Association. The petitioners have impugned the Order of transfer dated June 1,1993, transferring petitioner no. 2 from New Delhi to Bhopal and it is contended that the said order of transfer is opposed to public policy and in violation of [SECTION] of the [ACT]. It is arbitrary, malafide and violative of [SECTION] and [SECTION] of the [ACT].
(2) Petitioner no.2 has been working as Joint Director at Head Quarters of Bureau of Indian Standards, hereinafter referred to as 'the Bureau', till the impugned order of transfer was passed on June 1, 1993 (Annexure D to the petition). The petitioners have felt aggrieved with the order of transfer for the reason that respondent no.2 has exercised his power of transfer mala fide and in order to break down the legitimate activities of petitioners' Association, which has been working for the overall welfare of its members as well as for keeping the professional standards of the Bureau above board.
(3) The petitioner Association has averred that certain articles appeared in Nav Bharat Times, 'Delhi Edition', in its Issues dated May 24, 1993, May 25, 1993 and May 26, 1993 respectively. The first two articles appeared on the front page of the newspaper, whereas, the last one appeared on the last page of the newspaper. The first two articles sought to highlight the corrupt practices, prevalent in the Bureau by its responsible officers and an attempt by respondent no.2 to shield those officers from disciplinary proceedings. The third article was the response of the Director General to the questions, raised by the correspondent pertaining to the corruption charges he had dealt with in the first two issues. The relevant details of various allegations have been referred to in paragraph 3(11) of the writ petition. It may not be necessary to reproduce them in detail, as these averments already form part of the writ petition.
(4) Suffice it will be to say that certain senior functionaries of the Bureau have been charged with gross acts of corruption and the complaints are pending investigation with Central Vigilance Commission. It is further submitted that the petitioners' Association, vide its confidential letter dated October 29, 1992, has sought investigation from Central Vigilance Commissioner against Shri [ENTITY], who was alleged to be responsible for corrupt practices in respect of the allegations that some of the officers of the Bureau had unduly favored M/s In cab Industries. Shri [ENTITY], who is respondent no.3 to the present petition, it is alleged, is the Chairman of Transfer Committee and has also been responsible for mala fide transfer of petitioner no.2 to Bhopal. Petitioners have further averred in paragraph 6 that respondent no.2 had sent communication on May 21, 1993, asking petitioner no.2 not to write to Central Vigilance Commission making allegations against the senior officers. He was also sad about the fact that the Ministry had sought clarifications on various communications. The said respondent felt that the activities of the Association were in contravention of recognition conditions, stipulated in letter dated January 27, 1969. It has been further alleged that on publication of the reports in the newspaper the respondent no.2 geared up to unleash rein of terror over the office bearers of the Association and the first victim of the same was its President,petitioner no.2 herein.
(5) The petitioners have accordingly challenged the order of transfer dated June 1, 1993, of petitioner no.2 on the ground that it is a colourable exercise of power in order to victimise the petitioners for their association activities, which are very much within the legal framework.
(6) The respondents have filed their respective counter affidavits. It has been stated that a common policy has been adopted by the respondents to transfer all the officers,who fell in the zone of consideration. There is no arbitrary action on their part to transfer petitioner no.2, who fell within that zone. The said respondents have been holding discussions with the officers' Association for deciding the cases of officers for transfer to various places having regard to the necessity for improving the efficiency and experience so as to secure optimum efficiency in the Bureau. It was only on recommendation and consultation with the Association that it was agreed that all the officers, who have been posted at Head Quarters till December, 1976 or prior to that period, should be transferred. Respondent no.2 had initially declined transfer of petitioner no.2, but the situation warranted his subsequent transfer and there is no mala fide, which can be attributed on the facts and circumstances of the present case. Accordingly, it has been asserted that it was only on account of cut off date, agreed to with the Officers Association that all the officers, who had been posted at Head Quarters on or before December, 1976,andwerestationed at Delhi, had been given present orders excepting Mr. [ENTITY], Joint Director, who has not been transferred on medical grounds. Besides, in case the petitioner no.2 was not transferred, then the transfer was required to be made from the cadre of officers, who have been stationed at Head Quarters after December, 1976, which would have been in violation of guidelines, agreed to between the Association and respondent no. 1.
(7) The respondents have not denied that allegations were made as a matter of fact for alleged corrupt practices and certain articles appeared in Delhi Edition of Nav Bharat Times on 24th, 25th and 26th May, 1993.It is,however, contended that the contents of the reports are distorted and full of wrong information. The allegations, in any case, are under investigation and respondent no.2 has further ordered that the allegations against respondent no.3 be examined and the same are under examination by Chief Vigilance Officer. It is further contended that petitioner no.2 is in the employment of the Bureau and the appointment letter dated February 9, 1976, clearly indicates that he will be required to serve anywhere in India.
(8) In his counter affidavit, respondent no.2 has categorically denied the allegations of mala fide, made by the petitioners and has reiterated that power to transfer petitioner no.2 has been exercised bonafide and it was not exercised with the intent to break down the legitimate activities of the petitioners' Association, having regard to the fact that Vice President of the Association, namely, Shri [ENTITY], who prior to the transfer having been affected, was posted at Bhopal is now being brought to Head Quarters, i.e. New Delhi in consonance with the placement and transfer policy for Group 'A' officers. It is further submitted that due to shortage of manpower at Bhopal and also keeping in view the fact that there was no other officer, who could be considered for transfer, in terms of the guidelines, agreed to with the Association, the retention of petitioner no.2 at New Delhi, was not possible.
(9) Respondent No.3 has also filed the counter affidavit, reiterating that as petitioner No.2 fell in the zone of consideration for transfer out of Delhi, he was, therefore, recommended for such transfer.
(10) Learned counsel for the petitioners has vehemently argued that transfer of petitioner no. 2 from the Head Quarters at New Delhi to Bhopal is an act of mala fide on the facts of the present case and with an oblique motive to victimise the petitioners from association activities and is an act of vendetta for exposing and highlighting the corruption issues against some functionaries of the Bureau, as petitioner no.2 was held responsible for such exposure.
(11) Reference is made to the judgment of the Supreme Court in [PRECEDENT] to press the point that the order, which was passed mala fide amounted to fraud on power and could not be allowed to stand as the dominant purpose for the transfer itself was unlawful. Reliance is placed on the following passage in paragraph 6 of the judgment :- "IT was really the first aspect of ultra vires that was stressed by Lord [ENTITY] when in [PRECEDENT] at p. 378 of the report he spoke of a power exercised for a purpose or with an intention beyond the scope of or not justified by the instrument creating the power. In legal parlance it would be a case of a fraud on a power, though no corrupt motive or bargain is imputed. In this sense, if it could be shown that an authority exercising a power has taken into account- it may even be bona fide and with the best of intentions, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Sometimes Courts are confronted with cases where the purposes sought to be achieved are mixed.- some relevant and some alien to the purpose. The courts have, on occasions, resolved the difficulty by finding out the dominant purpose which impelled the action and where the power itself is conditioned by a purpose, have proceeded to invalidate the exercise of the power when any irrelevant purpose is proved to have entered the mind of the authority (See [PRECEDENT] as also Lord [ENTITY] observed in [PRECEDENT] at p.807. This is on the principle that if in such a situation the dominant purpose is unlawful then the act itself is unlawful and it is not cured by saying that they had another purpose which was lawful."
Paragraph 8 of the above judgment may be cited to support the proposition that mala fide in the sense of improper motive need not be established only by direct evidence or it must be discernible from the order impugned and it reads as under;- "DOUBTLESS,he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by Government of its powers. While the indirect motive or purpose, or bad faith or personal ill-will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the appellant has to establish in this case,though this may sometimes be done (see [PRECEDENT]. The difficulty is not lessened when one has to establish that a person in the position of a minister apparently acting in the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim.We must, however, demur to the suggestion that, mala fide in the sense of improper motive should be established only by direct evidence that is that it must be discernible from the order impugned or must be shown from the nothings in the file which preceded the order. If bad faith would vitiate the order,the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts."
(12) Reference is next made to the judgment of the Supreme Court in The [PRECEDENT] , wherein, it has been held that. if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for trade union activities, the Industrial Tribunals should interfere and set aside such order of 'transfer. The nature of proof and the evidence, which is required to support the contention that the impugned order was passed as a mala fide exercise of power is explained in the following paragraph:- "IT is true that if an order of transfer is made mala fide or for some ulterior purpose, like punishing an employee for his trade union activities, the Industrial Tribunals should interfere and set aside such an order of transfer,because the mala fide exercise of power is not considered to be the legal exercise of the power given by law. But the finding of mala fide should be reached by Industrial Tribunals only if there is sufficient and proper evidence in support of the finding. Such a finding should not be reached capriciously or on flimsy grounds as the Industrial Tribunal has done in the present case. This view is borne out by the decision of this Court in [PRECEDENT]."
(13) The learned counsel has referred to the judgments of the Supreme Court in [PRECEDENT] [PRECEDENT] .-These cases are based on their own facts and have no bearing to the contentions raised in the present petition.
(14) Strong reliance is placed on the judgment in [PRECEDENT] , and reference is made to paragraphs 118 and 119, which may be reproduced as follows:- "118.Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an -authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S.[ENTITY] v.State of Punjab, . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the . position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord [ENTITY] in [PRECEDENT], 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bonafide for the purpose for which they are conferred.' It was said by [ENTITY], C.J. in [PRECEDENT] that: "No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would be certainly be held to be inoperative."
In [PRECEDENT] at pp. 712-13 Lord [ENTITY], LJ. said. "No judgment of a Court,no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." See also, in Lazarus case at p.722 per Lord [ENTITY], C.J.: "'Fraud' vitiates all transactions known to the law of however high a degree of solemnity." "All these three English decisions have been cited with approval by this Court in [ENTITY]'s case. 119.$ In [PRECEDENT], , it was laid down that the Courts had always acted to restrain a misuse of statutory power and more readily when improper motives underlie it. Exercise of power for collateral purpose has similarly been held to be a sufficient reason to strike down the action. In [PRECEDENT], it was held that it was not necessary that any named officer was responsible for the act where the validity of action taken by a Government was challenged as mala fide as it may not be known to a private person as to what matters were considered and placed before the final authority and who had acted on behalf of the Government in passing the order. This does not mean that vague allegations of mala fide are enough to dislodge the burden resting on the person who makes the same though what is required in this connection is not a proof to the hilt, as held in [PRECEDENT], the abuse of authority must apear to be reasonably probable."
(15) The learned counsel, appearing for the respondents, has contended that the transfer is a mere incident of service and no mala fide can be attributed in exercising such power in the circumstances of the present case. He has reiterated the averments made by the respondents in the respective counter affidavits to the effect that there is no personal mala fide,which can be attributed and the transfer of petitioner no.2 was in consonance to the agreement with regard to the cut off date,which was arrived at between the officers Association and the respondents that all the officers, who had been posted at Head Quarters on or before December, 1976, and were stationed at Delhi, were liable to be transferred. In this context, he has referred to the note of discussions dated April 23,1993, which the Management held with the officers Association, and the same is filed as Annexure R.3 to the counter affidavit of respondent no. 1. This may be reproduced as under:- "AS directed by Dg, met the representatives of [ENTITY] on 22 April 1993 (AN) for further discussions on the various issues relating to transfer of officers. During the discussions, [ENTITY] reiterated that the management should take the following actions:- a) A policy for placement of DDGs should be formulated at the earliest. b) Need based transfers of Cadre officers should take place simultaneously with the movement of DDGs. c) In respect of the need-based movement of officers from Hq consequential to the posting of officers on their own request at Hq, it was suggested by the Association that at this stage only those officers who have been posted at Hq since Dee 1976 or before may be moved. This was suggested by [ENTITY] in view of the voluntary retirement of three officers from Hq which will create some more vacancies at HQ. If this suggestion is agreed to, Shri [ENTITY], Shri [ENTITY], Shri [ENTITY] and Shri [ENTITY] out of the list of officers recommended for transfer by the Transfer Committee will have to be retained at HQ. Dg may consider the above view points of [ENTITY] and give further directives."
([SECTION]) The counsel has next argued that there is no bar to the transfer of the President or any other office holders of the Association, if such officers fall within the purview of transfer policy. The President may be elected from the Head Quarters or from any other station in India and it is not necessary that the President elected must always be based in Delhi.
(17) Reference is made to the judgment of this Court in [PRECEDENT] decided on August 22, 1990, by Hon'ble Mr. Justice [ENTITY] and Hon'ble Ms. Justice [ENTITY], wherein the transfer policy of the respondents was upheld. The following paragraph in this regard may be reproduced :- "TRANSFER is an 'incidence' of service particularly where the service is an All India Service. It is not necessary in law that the transfer policy should be specifically laid down in the service regulations. No officer has a right to be appointed or posted at a particular place of his choice permanently. The policy enunciated by the Bureau is eminently reasonable and is in public interest. Every officer who is working in the service has not only a right but duty,to get himself familiarized with the scientific activities carried out at the head quarters including standard formulation activities carried out at the headquarters. Thus the transfer policy does not suffer from any arbitrariness or vindictiveness."
There is no doubt that the transfer is a mere 'incidence' of service and no officer has a right to be appointed or posted at a place of his choice permanently. Petitioner no.2 was appointed in Head Quarters at New Delhi in the year 1976, where he continued to remain till he was transferred by the impugned order dated June 1,1993. It was specified in the appointment order dated February 9, 1976, in clause 7 that petitioner no.2 will be required to serve anywhere in India. The transfer was on record for quite some time and it was not as a result of sudden decision on the part of the management to victimise the petitioner no.2 for his trade union activities, as is sought to be contended by counsel for the petitioners. It is reiterated that there is no arbitrary action in transferring the petitioner, as he is the only person available and all those officers who have been similarly situated have since been transferred. The respondents have accordingly contended that the recommendations made by the Transfer Committee, as on February 18,1993, regarding transfer of petitioner No.2 was kept in abeyance for sometime at the Association's request since he is the President. However, due to shortage of manpower at Bhopal, and keeping in view that there was no other officer who could be considered for transfer in terms of the agreed guidelines, the retention of petitioner no.2 was not possible. In the circumstances, no malafide motive can be attributed to the respondents. The options for stations of transfers from Officers including petitioner no.2 were also obtained, as is apparent from the reading of the following circular dated March 29, 1993:- "Further to Pmd Department circular dated 4 March 1993 inviting options for station of transfer from officers and subsequent discussions with the representatives of [ENTITY] on the subject, it has now been decided to obtain options for transfer from those officers at headquarters who have been posted at headquarters since December 1978 or before. Accordingly, the officers listed in annexure are requested to send their options in the enclosed proforma to the undersigned at the earliest,but not later than 6 April, 1993, through their departmental heads. sd/- ([ENTITY]) Director (Personnel Management)"
(18) There is no doubt that certain articles appeared in the daily newspaper 'Nav Bharat Times', which dealt with the corruption issues against some senior officers of the respondents. The said articles were written by one Shri [ENTITY]. The respondents have not denied the publication of these articles. In fact, it has not been pleaded that the petitioner no. 2 was responsible and author of the allegations, which were contained in the newspaper articles. The respondents have, however, reiterated that the allegations made are under investigation of the Central Vigilance Commission, as well as, the Authorities and suitable action will be taken in due course.
(19) Reliance is placed on the judgment of the Supreme Court [PRECEDENT] , wherein it was held that the burden of establishing mala fides is very heavy on the person, who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
(20) In the present case, the sole ground, on which petitioners have based their case, is that newspaper reports raised corruption issues against the respondents and in view of the role, played by the Association in highlighting these issues, petitioner no.2, who is the President of petitioner No.1, was transferred to Bhopal. This was also with a view to scuttle the trade union activities of the petitioners. These circumstances do create suspicion, 'but suspicion cannot take the place of proof. Proof needed in the present context is always of high degree and the plea of mala fide, which has been placed before us, cannot be held to come to that level. The judgment of the Supreme Court, as referred above, has been relied upon by the Division Bench of this Court in [PRECEDENT], wherein the plea of mala fide was rejected on the ground that'a mere allegation that respondent no-4 (the then Chief Minister)was actuated by improper motive, based on surmises, contained in a few Press clippings, cannot be made basis of investigation by the Court.' The judgment in Express Newspapers Pvt. Ltd. (supra) also reiterates the proposition that vague allegations of mala fide are not enough and abuse of authority must appear to be reasonably probable.
(21) In [PRECEDENT] , it was held that Courts should normally not interfere with transfers, while exercising jurisdiction under [SECTION] of the [ACT]. Reference may be made to paragraph 4 of this judgment:- "IN our opinion, the courts should not interfere with a transfer order 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 the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. 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 be conducive to public interest "
(22) The judgment of the Supreme Court, as cited by learned counsel for the respondents in [PRECEDENT] , is of relevance because it was a case of transfer, which the Court was dealing with. The following passage from paragraph 7 of the judgment reads as follows:- "AFTER considering the respective contentions of the parties, it appears to us that the appellant has not been able to substantiate that the impugned order of transfer was passed mala fide against him for an oblique purpose and/or for wreaking vengeance against him because respondent no.2 was anxious to get rid of him and he seized the opportunity of transferring him from Delhi to Calcutta by transferring Shri [ENTITY] back to [ENTITY] from Calcutta. It is true 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. Unless such order is passed mala fide 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. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala tide by seizing an opportunity to transfer Shri [ENTITY] to [ENTITY] from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions "
The judgment in that case was followed by the Single Bench of this Court in [PRECEDENT]
(23) To similar effect is the judgment of the Apex Court in [PRECEDENT] wherein it has been held that where the order of transfer is not violative of any statutory rule or that the transfer order, suffers on the ground of mala fide, the same cannot be set aisde.
(24) In the facts of the present case, the petitioners have not discharged, the burden of proof resting on them to impugn the order on the ground of mala fide. The respondents have filed their counter affidavits reiterating that the transfer of petitioner no.2 was routine and in accordance with the policy of transfer and there is no personal malice against him. There is no infraction of any statutory provision by transferring the President of the association from Headquarters nor the same has been pleaded. We have also perused the record and find it difficult to sustain the plea of mala fides, merely on the basis of Press reports, which do not even indicate that petitioner no.2 was the author of such reports. The 'high degree of proof, which is necessary to uphold such a contention, has not been placed before us by the petitioners.
(25) For the aforesaid reasons, the writ petition fails and is dismissed. There will be no order as to costs.