1 aswp-7960-11 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7960 OF 2011 Harish Maganlal Baijal .. Petitioner Vs. The State of Maharashtra Through the Additional Chief Secretary and ors. .. Respondents Mr. R.A. Dada, Senior Counsel with Mr. Pratik Seksaria i/by M/s. L.J. Law for petitioner. Mr. V.R. Dhond, Senior Counsel with Mr. A.B. Vagyani for respondent nos. 1 and 2. Mr. A.V. Anturkar with Mr. S.S. Deshmukh for respondent no. 3. CORAM: B. H. MARLAPALLE & SMT.NISHITA MHATRE, JJ. OCTOBER 21, 2011. ORAL JUDGMENT (PER B. H. MARLAPALLE,J.):- 1. Heard Mr. Dada, the learned Senior Counsel with Mr. Pratik Seksaria for the petitioner and Mr. Dhond, the learned Senior Counsel with Mr. Vagyani for respondent nos.1 and 2. Mr. Anturkar appears with Mr. Deshmukh for respondent no.3. 2 aswp-7960-11 2. This petition filed under Articles 226 and 227 of the Constitution impugns the order dated 8/9/2011 passed by the Maharashtra Administrative Tribunal (the Tribunal for short) in Original Application No. 556 of 2011 filed by the petitioner. 3. Rule. Respondents waive service. The petition has been heard finally. 4. The petitioner was holding the post of Deputy Commissioner of Police (Traffic), Mumbai and on 1/6/2009 he came to be transferred as Superintendent of Police Anti Corruption Bureau (ACB), Nashik. The post of Superintendent of Police, ACB, Nashik is for the entire revenue division of Nashik consisting of five districts. The petitioner was served with an order of transfer dated 26/5/2011 as Dy. Commissioner of Police, Thane and as it was a mid-term transfer cutting short his three years tenure (ordinarily) stated in the Maharashtra Government Servants Regulation of Transfers and Prevention of Delays in Discharge of Official Duties Act, 2005 (the Transfer Act for short), he challenged the said order in O.A. No. 556 of 2011. By an ad-interim order dated 30/5/2011 the Tribunal was 3 aswp-7960-11 pleased to stay the transfer order. At the same time, respondent no.1 was granted liberty to consider the petitioner’s transfer afresh in accordance with law, if so necessary. While the O.A. was pending, the impugned transfer order dated 26/5/2011 was cancelled and the petitioner was re- transferred in the very same post i.e. Deputy Commissioner of Police, Thane. Consequently, the O.A. came to be amended so as to challenge the fresh transfer order dated 24/6/2011. After hearing both the parties, the Tribunal by the impugned order held that there was no merit in the challenge to the transfer order dated 24/6/2011 specially with regard to the transfer being punitive and also the same being arbitrary and with mala fides. Being aggrieved by the view taken by the Tribunal in dismissing the OA No. 556 of 2011, the petitioner has approached this court. 5. So far as the transfer order dated 26/5/2011 was concerned, the Tribunal, while noting that the transfer order was issued for “administrative reasons”, in its interim order dated 30/5/2011 observed, “The issue is whether the administrative reason for which he has been transferred has been specified and recorded in writing by the competent Authority and brought to the notice of next higher competent Transferring Authority so that the 4 aswp-7960-11 said next higher competent Transferring Authority can take an informed decision on the proposal for transfer. Since specific administrative reason for which the applicant in this case has been transferred and respondent no.2 has been ordered to take his place has not been recorded either in the impugned order or in the relevant file, interim relief in terms of para 10(a) of the OA is granted.” 6. In the impugned order, after considering the exhaustive arguments of respective parties, the Tribunal recorded its reasoning in para 22 as under:- “22. With regard to the above, it is clear from the judgment of Janardhan Debanath and Others quoted herein above that whenever there is an allegation of misbehaviour or conduct for the purpose of transfer there is no question of holding an enquiry as clearly observed in paragraph No.15 of the said judgment. Even in the case of Director of School Education, Madras explicitly provides that no law required an employee to be heard before his transfer when the authorities make the transfer for the exigencies of the administration. It should be noted here that the Commissioner of Police, Nasik is not the superior officer of the applicant, he was only asked to give a report with regard to the allegations against the applicant. The proper authority is the Director General of Anti Corruption 5 aswp-7960-11 Bureau and in fact in his letter dated 22.6.2011, he had made it amply clear that the applicant ought to be immediately transferred out of Anti Corruption Bureau. Merely because all the higher authorities choose to only counsel the applicant with regard to his conduct, does not mean that the material ought not to be taken into account for the purpose of transfer. In the above, one cannot say that the respondents did not have any material whatsoever with regard to the proposal of transfer. The letter of Director General of Anti Corruption Bureau dated 22.6.2011 itself makes it clear the seriousness of the conduct of the applicant and especially when the applicant had chosen not even controvert the same directly to the Director General of Anti Corruption Bureau or even in the present proceedings. Ms. Mahajan had submitted that the applicant will controvert the same as and when show cause notice is issued. It is rather strange that when serious allegations were made by the Director General of Anti Corruption Bureau directly to the applicant still he has chosen till date not to respond to the same, except by writing a letter dated 22/6/2011 to the Additional Chief Secretary (Home) praying that he should not be transferred wherein the conversation of the applicant with the Director General, ACB on 21/6/2011 is also referred.” 7. It is clear that in the first paragraph of the transfer order dated 6 aswp-7960-11 24/6/2011, the earlier transfer order dated 26/5/2011 has been cancelled. In the second paragraph, though the Tribunal did not agree in the impugned order that the transfer order dated 24/6/2011 was punitive, it is abundantly clear from the wording itself that the petitioner came to be transferred on account of the alleged complaints and on considering his behaviour. The punitive nature is writ large in the second para of the said order. Para 1 and 2 of the impugned transfer order read as under:- “lanHkZ dz-1 ;saFkhy vkns’kkUo;s Jh-cSty Ikksyhl vf/k{kd ,-lh-ch-ukf’kd ;k inko#u iksyhl mik;qDr] Bk.ks ‘kgj ;k inkoj >kysyh cnyh jn~n dj.;kr ;sr vkgs- 2- Jh-cSty ;kaP;kfo#/n ‘kklukdMs izkIr >kysY;k rdzkjh o orZ.kqd fopkjkr ?ksÅu iz’kkldh; dkj.kkLro ‘kkldh; drZO;s ikj ikMrkauk gks.kk&;k foyackl izfrca/k dj.;klkBh vf/kfu;e 2005 e/khy rjrqnhuqlkj egkjk”Vª iz’kkldh; U;k;kf/kdj.kkus fn-30-05-2011 jksth fnysys vkns’k fopkjkr ?ksÅu Jh-cSty ;kaph iksyhl vf/k{kd ,-lh-ch-ukf’kd ;k inko#u iksyhl mik;qDr] Bk.ks ‘kgj ;k inkoj iqufoZpkjkarh iqu% cnyh dj.;kr ;sr vkgs- ” 8. It was submitted before the Tribunal that the transfer order dated 24/6/2011 was punitive in nature, was founded on the alleged complaints received against the petitioner, though all these complaints were on record before the first transfer order dated 26/5/2011 issued and the 7 aswp-7960-11 petitioner was not given any opportunity to explain or submit his say on any of these complaints. By relying upon the decision of the Supreme Court in the case of Somesh Tiwari vs. Union of India [(2009) 2 SCC 592], it was submitted on behalf of the petitioner that before the transfer order was issued, the complaints were required to be enquired into and in the absence of such an exercise, the transfer order suffered from malice. It was also pointed out that the subsequent report dated 22/6/2011 made by the Director General of ACB could not have been considered, unless the petitioner was called upon to submit his explanation. It was also pointed out that on 26/2/2011 the petitioner had also submitted a representation to the Additional Chief Secretary – Home, Government of Maharashtra and the same was not considered when the file was put up before the Chief Minister as the Competent Authority for issuance of the special transfer order under Section 4(5) of the Transfer Act. 9. On behalf of the State Government, it was submitted that the transfer order dated 24/6/2011 did not suffer from any infirmities, leave alone malice, there were specific complaints received against the petitioner, those were taken into consideration along with the report submitted by the 8 aswp-7960-11 Director General, ACB and it was thought fit to shift the petitioner from his present post and post him as the Deputy Commissioner of Police, Thane. The fresh transfer order was passed after duly taking into account various factors and circumstances and more particularly the complaint date 3/2/2011 of Dr. Nikhil Gupta, Director of the Maharashtra Police Academy and one anonymous complaint addressed to Shri Anna Hazare and the report dated 22/6/2011 submitted by the Director General of ACB. It was also submitted that the entire file, after it was cleared by the Minister for Home, was placed before the Chief Minister on 26/3/2011 and as the Competent Authority under Section 4(5) of the Transfer Act, the Chief Minister granted his approval for the fresh transfer and consequent thereto, the order dated 24/6/2011 came to be issued. The earlier order dated 26/5/2011 did not specify any reasons except saying that it was issued for administrative reasons and, therefore, the Government reconsidered the petitioner’s case on the liberty granted by the Tribunal by its interim order dated 30/5/2011 and after being satisfied with the material on record, fresh transfer order has been issued by cancelling the earlier order. It was also urged that the complaints, so received, prima facie, indicated that it was undesirable to continue the petitioner in the post of Superintendent of Police, ACB, Nashik and, therefore, he has been transferred to Thane. 9 aswp-7960-11 There is no illegality in the fresh order of transfer and it was not necessary to enquire into the complaints received against the petitioner before the transfer order was issued. In this regard the learned Senior Counsel for the State relied upon the decision in the case of Union of India vs. Janardhan Debanath and ors. [AIR 2004 SC 1632]. The Tribunal accepted the submissions of the State Government while dismissing the challenge to the fresh transfer order. 10. We are, therefore, required to consider whether the order passed by the Tribunal calls for interference. It is well settled that transfer of a government servant is an incident of service and the courts should not interfere with such transfer orders, ordinarily. A government servant holding a transferable post has no vested right to continue at a particular posting or at one place or the other. However, in the State of Maharashtra the transfer orders are governed by a special statute i.e. the Transfer Act and if the procedure, as set out in the said Act, is not followed while issuing the transfer order, such order would be unsustainable. Similarly, if an order of transfer suffers from malice or if it has been issued by way of victimization or by way of a penal action, the court would be justified in setting aside such orders. In the case of National Hydro-electric Power 10 aswp-7960-11 Corporation Ltd. Vs. Bhagwan [AIR 2001 SC 3309], the Supreme Court held that unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the appellate authorities substituting their own decision for that of the management. On the point of malice as the ground to interfere with the order of transfer, the Supreme Court in Somesh Tiwari’s case (Supra) stated, inter alia, thus, “Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. On the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed 11 aswp-7960-11 in lieu of punishment, the same is liable to be set aside being wholly illegal.” 11. It was submitted by Mr. Dada, the learned Senior Counsel for the petitioner, while reiterating the arguments advanced before the Tribunal that the petitioner was victimized, the so called complaints against him were got up, they were not enquired into and on the other hand, some fictitious record was prepared to condemn the petitioner. Mr. Dada referred to the track record of the petitioner from the time he has been posted as the Superintendent of Police, ACB, Nashik as stated in the representation dated 22/6/2011 submitted by the petitioner to the Additional Chief Secretary, Department of Home. The petitioner had conducted 78 successful raids in the year 2009 and in the year 2010 he had conducted 146 such raids on the public servants. Out of these 146 raids, six of the officers caught in the trap were of the rank of Deputy Collectors, 15 were of Class – I, 22 were of Class – II and 121 were of Class – III. 138 of these Government officers came to be suspended from service. It was further submitted that on account of these raids conducted by the petitioner, false and anonymous complaints came to be filed and they have been acted upon, which is not permissible as per the law laid down from time to time by the Supreme Court and more particularly on account of the directions issued in the case 12 aswp-7960-11 of Prakash Singh and ors. vs. Union of India and ors. [(2006) 8 SCC 1]. 12. Regarding the report dated 22/6/2011 submitted by the Director General, ACB to the State Government on 21/6/2011, it is pointed out that a trap was laid on the Chief Executive Officer of Srigonda Municipal Council while accepting an amount of Rs.45,000/- from a contractor and the raiding party was led by Shri Sahane, Police Sub Inspector and on the same day the petitioner around 4.30 p.m. reported to the Director General – ACB telephonically. The petitioner informed on phone that the power of attorney of the contractor or the person acting on behalf of the contractor was an essential document and, therefore, the raiding officer was looking for such a document. On this the Director General got annoyed and said on phone, “You made a false trap. You have messed up the entire trap and now you want to have a back dated power of attorney. What bloody non sense you are talking.” The petitioner tried to explain that he was not suggesting to prepare a back dated power of attorney and was only trying to inform the Director General that the raiding officer was asked to look for the power of attorney granted earlier and it was a necessary document. The petitioner also objected strongly to the word “bloody” used by the Director General who did not expect such a 13 aswp-7960-11 reply and, therefore, he made a report purportedly on 22/6/2011 and submitted to the Additional Chief Secretary. It was also pointed out that the said report which has been heavily relied upon by the Tribunal is one sided story and that too under a strong annoyance and unless the petitioner was called upon to explain his side, it could not have been acted upon or considered even as a material for issuing the fresh transfer order. It was further pointed out that on 21/6/2011 itself the petitioner addressed a letter to the raiding officer and submitted a detailed representation on 22/6/2011 to the Additional Chief Secretary. Mr.Dada referred to the endorsement made by the Director General, ACB in his report dated 22/6/2011, which reads as under: “The government may kindly take serious note of the conduct of this officer in encouraging creating of false record in the investigation of cases. In the light of the facts mentioned above it is undesirable to continue him in the ACB as his conduct is not conducive to impartial, balanced and honest investigation of cases in the Bureau and hence it is strongly recommended that he should be transferred out of the Bureau immediately. It is also further recommended that this officer may not in future be given any assignment which involves investigation of important cases like the crime branch, CID etc.” 14 aswp-7960-11 It was submitted that the said endorsement has virtually condemned the petitioner even without being heard. It was acted upon by the Addl. Chief Secretary (Home), Maharashtra State, Mantralaya, Mumbai in his note submitted to the Chief Minister. Mr.Dada referred to the Government Resolution dated 25th July 2008 issued in obedience of the directions issued by the Supreme Court in Prakash Singh’s case (Supra) and submitted that unless the report dated 22/6/2011 was investigated by a committee headed by a retired Judge of this Court, it could not have been acted upon or even used in support of the transfer order issued under Section 4(5) of the Transfer Act. It was also submitted that when the second transfer order dated 24/6/2011 was issued, the State Government did not refer the report dated 22/6/2011 either to the Police Establishment Board or to the committee headed by a retired Judge of this Court and in any case unless the Police Establishment Board recorded its opinion on the said complaint or even otherwise on the transfer of the petitioner, the impugned fresh order of transfer is illegal and suffers from malice in law. 13. Mr.Dhond, the learned Senior Counsel submitted that the first transfer order dated 26/5/2011 was a general transfer order covering 74 15 aswp-7960-11 police officers and it could not be said that the petitioner was picked up and victimized. It was also submitted that out of 74 police officers, 55 were transferred as special cases under Section 4(5) of the Transfer Act and they were not the general transfers made after a tenure of three years. In any case on account of the order passed by the Tribunal on 30/5/2011, the transfer order was withdrawn. The complaints received against the petitioner were considered and a detailed report was placed before the competent authorities as stated in Section 4(5) of the Transfer Act and the Government was of the opinion that a special case was made out for the transfer of the petitioner from the post of Superintendent of Police, ACB, Nashik and, therefore, the fresh transfer order was issued cancelling the first transfer order and issuing a fresh transfer so as to post the petitioner in an equivalent post at Thane. The procedure as required under Section 4(5) of the Transfer Act has been fully complied with, elaborate reasons are seen on the notings in the files which were submitted before the competent authorities. The behaviour of the petitioner was such that it was desirable to transfer him and post him somewhere else and this opinion formed by the State Government does not suffer from any malice. The nature of the complaints as well as the report submitted by the Director General, ACB has been taken into consideration and a prima facie material being 16 aswp-7960-11 available on record the petitioner has been transferred and there is no reason to hold that he has been punished by the fresh transfer order. Mr.Dhond emphasised on the complaint by Dr. Gupta made on 17/2/2011 as well as the report dated 22/6/2011 submitted by the Director General of ACB in support of his contentions that the order passed by the Tribunal does not call for any interference and the Tribunal has recorded its satisfaction with the second transfer order and the same did not suffer from any illegalities. Mr.Dhond also urged that the complaints will be duly investigated and as of now it could not be said that the petitioner has been punished without investigating into the complaints against him. Our attention was invited to the correspondence from the Home Ministry so as to suggest that the complaints were under investigation and the reports were called from the concerned authorities. 14. In the case of Prakash Singh (Supra), the Supreme Court directed, inter alia, as under: “Police Establishment Board (5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below 17 aswp-7960-11 the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions / transfers / disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.” Following the above directions the State of Maharashtra, as noted earlier, has issued two different Government Resolutions on 25th July 2008. By one GR the State Government constituted the Police Establishment Board at the State, Regional and Commissionerate levels. The Police Establishment Board at the State level with which were are concerned is headed by the Director General of Police with other four 18 aswp-7960-11 senior officers as members. By the second GR the State Government has constituted the State Level Police Complaint Authority (SLPCA) to be headed by a retired Judge of this Court or a retired Police Officer who had held a post in the rank of Director General of Police or the retired Chief Chief Secretary / Additional Chief Secretary / Principal Secretary in the State Government. Out of the other three members, Secretary to the State Government also finds his place along with an eminent person appointed by the State Government. The Additional Director General of Police nominated by the State Government functions as the Member Secretary. However, as per the oral instructions received by Mr.Dhond, though the GR dated 25th July 2008 has been issued constituting the complaints authority, the said authority has not yet been constituted, in fact. This is shocking to say the least. 15. The State Government’s decision to issue the second transfer order under Section 4(5) of the Transfer Act is based, as has been noted by the Tribunal, on the complaint submitted by Dr. Nikhil Gupta, one anonymous complaint addressed to Shri Anna Hazare and more importantly the report submitted by the Director General, ACB on 22/6/2011. The file notings, copies of which have been placed before us do 19 aswp-7960-11 indicate that when the file was placed before the Chief Minister on 23/6/2011 the report submitted by the Director General, ACB was on record and the Additional Chief Secretary noted in his submissions as under : “DG anti-corruption ;kauh Sri Baijal uk record falsify dj.;klaca/kh let