TT SINGtE BENCH ^ ^i^l^) IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0.^-^^- OF 2005. PETITIONER RESPONDENTS , ...^ ^ y ••€ ^^ ^^w^.) K..^< ^'^^ Dr. L. Patnaik, S/o. Sri Sachidana^da Patnaik, aged about 47 years, Assistant Manager, R/o A-69, SuryaApartments Katora Talab, Raipur, Distt: Raipur ( C G). VERSUS 1. United India Insurance Co Ltd, through its Chairman-Cum-Managing Director, Head Office, 24 , Whites Road, Chennai - 600 014. 2. The General Manager (Personnel) United India Insurance Co. Ltd, HeadOffice, 24, White Road, Chennai -600014. 3. The Asst. General Manager ( Personnel) United India Insurance Co Ltd, Head Office, 24, Whites Road, Chennai-600014. 4. The Regional Manager, United India Insurance Co Ltd, Regional Office, Pariyawas Bhavan Block No.2, & 2nd floor, Arrera Hills, Jail Road, Bhopal- 462011 ( M.P.) 5. The Divisional Manager, United India Insurance Co Ltd, Divisional Office, Krishna Complex-1 floor, Kachery Chowk, Raipur, Distt -.Raipur - 492 001 (C.G.) WRIT PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA. ,i HIGH COURT OP CHHATTISGARH. BILA8PUR W.P. N0.2794/200S Dr.L. Patnaik Vs. United India Insuraace Compaay Through its Chainnaa-cum-Managmg Director aad ofhers ORDBR ^%^ Postfor^.8.2005 -A, &. I Sd/- Sunil Kumar Sinha Judge ^' ^ HIGH COURT OF CHHATTISGARH. BILA8PUR W.P. N0.2794/200S Dr.L. Patnaik Vs. United India Insiirance Co. Ltd. , through its Chainxiaa-cum-Maiiagmg Director aad ofhers Shri P.S. Koshy, coiuisel for fhe petitioner. Shn Kaaak Tiwari, Sr. Advocate wifh Shri Anaad Kuuiar Tiwari, counsel for fhe respondents. ORDBR (2-^.8.2005) Suail Kumar Siaha, J, (1) The petitioner, who is posted as Assistant Manager, in United India Insurance Coinpany Litnited, Raipur siace 26.12.2003, has chaUenged fhe vaUdity ofhis transfer order dated 16,6.2005, whereby he has been traasferred froni Divisional OfiSce, Raipur to Regional OfSce, Lucknow. (2| The facts stated are that fhe Centoral Burcau of Investigation conducted a raid on 06.4,2005 in the Divisional OjGBce, Raipur and Branch OfiSce Bilaspiir iacluding fhe residences of Dr.B.R. Singh, Divisional Maaager, Raipur aad Shri C.J. Arora, Branch Manager, Bilaspur. On fhe date ofraid, Shri. B.R. Siagh was on leave aad the petitioner was available ia fhe ofiBce as Senior Most Officer. The petitioner subniitted aU the infomiation aad docuinents/£iles to fhe C.B.I. team as per fheir requirexnent and for all fhese ^ -^- reasons he became awitaess offhe search proceediags ofC.B.I. for fheir Case No.RC2(A)/2005/CBI/JBP registered imder sections 120-B and 420 IPC and section 13(2) read wifh section 13(l)(d) of fhe Prevention of Corruption Act, 1988, agamst Shri B.R. Siagh, beiag accused no.2 aad Mr.C.J. Arora, Branch Maaager, BUaspur beuig accused no. 1. During fhe search, prmt and electronic inedia persons were also accompaaymg the C.B.I. team and fhe entire episode of raid was covered by fhem.. The niedia persons took interview of fhe petitioner and fhe petitioner stated about the registration of Criminal Case against the Divisional Maaager, Raipur as weU as Braach Maaager, Bilaspur before fhein, It is after aU fhis, a show cause notice was issued to fhe petitioner on 08.4.2005 (Annexure P-6) leveUng charges agauist hmi fhat due to his statexnents etc.^ fhe inarket iinage of the Coinpaay was undermined. The petitioner submitted his rcply on 11.4.2005 (Annexure P-7) but even after fhat, he was served wifh a charge sheet dated 21.4.2005 vide Annexure P-8 uiitiating a departmental enquuy agamst hiin, which is stUl pending after taking his reply on 19.5.2005. It is after aU fhis, fhe petitioner aad bofh fhe ofiBcers frora divisional of&ce, Raipur and Braxich OfiSce, Bilaspur, were traasferred by a common transfer order dated 16.6.2005. The case of fhe petitioner is fhat fhe above series of events clearly reveals and rcflects fhe viadictive attitude aad inala-fide of respondents no.2 to 5 to harass fhe petitioner fhrough a conspiracy by passiag the order of toraiisfer so fhat fhe facts of corruption agamst respondent no,5 caanot be revealed properly aad fhe iavestigation ofC.BJ., cao^ be dUuted, ^ ~3>- (3) In retura, fhe respondents have contended fhat fhe traasfer is not a punishinent. It is in the reahn of adimnistrative discretion of fhe employer. No claim or proceediag can be fUed chaUengmg the inipugaed traasfer order unless inalafides have been conviaciagly/successfuUy attdbuted, or violation ofsoine statutoiy rule is displayed ia fhe petition, which having not been done, the petition caanot succeed. They have farther contended fhat fhe issuaiice of a show cause notice/charge sheet resulting iato initiation of a discipliaaiy proceedings will not aiaount to inala- fides and on fhis ground also the petitioner caanot claim the quashiag ofhis traasfer order. (4) A rejouider has also been filed ia which the petitioner has pleaded fhat whUe working at Raipur he obser^ed several serious irreguladties and open xaalpx^ctices ia flagraat violation of various operational aad admicdstrative guidelmes. The rules and procedures were twisted /mardpulated to pave ways for wrongful loss to the company aiid concomitaat gain to ofhers. H^hlightmg inaay instaaces, the petitioner contended that the impugned order of transfer has beeu issued with malafide iatentions to harass the petitioner and to put un due pressure on him so as to ensiire fhat the petitioner, who is also a witaess ia C.B.I^s case, does not depose against fhe accused officials of fhe respondents coiapany who would ofherwise get impMcated ia fhe above C.B.I case. (5) I have heard learaed counsel for the parties at length aad have also perused the records offhe writ petition. ^' H (6) At fhe hearing, learaed counsel for fhe petitioner raised two im.portaiit poiats. He fibrstly raised the ground of xnalafides aad secondly he subinitted fhat the order oftransfer has been issued ia violation of fhe traasfer aad Mobility PoUcy/guidelmes eflfective froni 1st of June 2002. First of atl, referring to fhe decision rendered in case of The State of Punfab eind anather -ffs- Gardtel Slwih emd others AER 1980 S.C^ 319, learaed counsel subinitted that fhe action of fhe respondents would show fhat fhe order of traasfer was not issued ia good faith. It has been ^sued in colorable exercise ofpowers by fhe appoiatiag aufhority which is an out coiae of xnalafide. Argiung what amounts to nialafides, he draws the attention of fhis court towards para 9 of the aforcsaid judgnient which reads as under:- ^Bad faifh which invalidates the exercise of power - soinetunes called colourable exercise or fraud on power aad oftentmies overlaps inotives, passions and satisfactions - is fhe attainment of ends beyond the saactioned purposes ofpower by simulation or pretension of gafcrung a legitimate goal. Ifthe use ofthe power is for fhe fulfilhnent of a legitimate object the actuation or catalysation by inalice is not legicidal, The action is bad where fhe true object is to reach aa end different fix)m fhe one for which fhe power is entorusted, goaded by extraiieous consideration, good or bad, but irrelevaat to fhe entrustmient. When the custodiaa of power is mfluenced ia its exercise by considerations outside fhose for proinotion of which fhe power is vested fhe Court calls it a colourable exercise axid is iindeceived by illusion^ He fiulher refers to the decision rendered ia fhe matter of Setfenetra Row -Vs- Unien aflndla emd cmother, f1993) 1 SCC 148 aad argued fhat it may not always be possible to estabUsh •>> ^- malice m fact m a stra^ht cut maaner but ia a proper case it is possible to draw reasonable iaference of inalafide action froin the pleadiags aad aatecedent facts aad circunistaiices. Learaed counsel subniitted that in fhe present case the aatecedent facts of C.B.I. raid aad fhe petitioner being a witaess ia fhe C.B.I. raid aad thereafter his iaterview before fhe print and electronic media coupled with fhe issuaace of charge sheet are sufi&cient to draw rcasonable mference of malafide agamst the employer resultmg iato traasfer of fhe petitioner. (7( Now the matter for consideration is whefher fhis order of traasfer, passed after the said iacident ofraid on 06.4.2005 by fhe C.B.I. would amount to colourable exercise of powers or aa out coiae of inalafide or not ? It is fhe case of fhe petitioner hunself fhat on fhe fateful day when the C.B.I. raid was conducted, fhe petitioner was fhe senior raost ofiScer avaUable ia his braach at Raipur. As per his own asserdon, ia the raid conducted by the C.B.I., fhe petitioner properly assisted fhein aad thereafter a crmiiaal case was rcgistered agamst the said Divisional Maaager aad Braach Maaager of fhe respondents' Company. Siace the peraons of prmt aad electoronic media were also fhere, the petitioner had to tell the truth to fheni and fhe same was published in fhe news iteni. This action on fhe part of the petitioner inay be prejudicial to fhe iaterest of fhe Divisional Manager, but how it was ^aiast the interest ofthe eniployer is not shown by hun. If a pardcular wrong is goiag on in a braach aad the head of fhe department is sittiag at a long distaace (like ^^ ^- Cheruiai ia the present case) and fhe wrong is discovered by one of fhe officers of fhe branch agaiast fhe head of fhe Branch, then certamly fhe einployer would be fhaakful to fhe eniployee who has discovered the wrong and has brought it to the notice of fhe eniployer. I do not feel fhat an assistaace of such natiire by aa honest eniployee would ia aay inanner affect the feelmgs of fhe employer to act agaiast fhe iaterest of such employee aad to interact ia a iiiaaner ofbad faifh with colourable exercise ofpowers which znay amount to inala&de agauist fhe said employee. If we examine fhe order of traasfer ia fhe back ground of aU fhe above iacidents, it would appear fhat it is aa order of traasfer of all the fhree eiaployees naaiely fhe petitioner as weU as Dr.B.R. Siagh, Divisional Mao^ager aad Shri C.J. Arora, Braach Maaager, Bilasptir. If the eniployer would have exercised its powers upon extraaeous considerations, then it would not have issued the order oftraasfer ofall fhese persons, who were involved ia fhe raid ofthe C.B.I. Puttmg differently, we inay also assume fhat ifsonie favour was to be extended eifher to Dr,B.R. Siagh or to Mr. C.J. Arora, fhen fhey would have been retamed at fheir respective places fhrowiag fhe petitioner only by passuig an order of traasfer for him. But in fhe present case, aU the ofScers have been transferrcd by a common order dated 16.6.2005 issued by the conceraed aufhonty of fhe einployer. Another iraportant factor is fhat fhe petitioner assumes the status of a witaess whereas the said two persons, accordiag to the petitioner, are fhe accused ia fhis case. The matter relates to fhe particular divisional ofl5ce ia which i fhe petitioner aad Dr.B.R. Sin.gh were working aad vadous ^ -I- charges of corruption and criminal conspiracy etc., are to be iavestigated agauist fhe Divisional Maaager Dr. Siagh and if bofh fhe persons have been fhought to be kept at different places ofher thaa fhe place of occizrrcnce, fhen it caanot be said that fhe aufhorities of fhe eiaployer have adopted a laalafide atdtude agaiast the petitioner or even agaiast fhe divisional manager ia keepiag fheni away fi-oia fhe present ofi5ce where fhe charges leveled agaiast fhe accused persons are to be iavestigated ia accordaiice wifh law. (8) In fhe decision rendered ia fhe miatter of Rajendra Roy (supra), fhe apex Court has categoricaUy said fhat for drawing a reasonable inference of nialafide action, fhere inust be firm foundation offacts pleaded aad such infercnce caanot be drawn on fhe basis of iasuiuation aad vague suggestions. In fhe present case, ifwe exauiiae the entire case ofthe petitioner considermg the chronological events pleaded by him, a reasonable ioference of nialafide action cannot be drawn. The action of fhe petitioner regarding his working ia the office aad fhe allegations leveUed by him agaiast fhe Divisional Manager aad fhereafter fhe raid of C.B.I. aad intendew ia prcss and electronic media and issuaace of a charge sheet agamst £he petitioner on certain aUegations does not xnake a firm foiindation on which a reasonable iaference of mala fide could be drawn agamst the employer. (9) It is a settted prmciple fhat no goverrmient servaat or emiployee of a pubUc luidertafcmg has any legal right to be posted forever at aay one particular place or place of his choice siace >^ -^- transfer ofa particular employee appoiated to fhe class or categoiy of traasferable posts frora one place to ofher is not only aa iacident, but a condition of seryice, necessary too ia pubUc iaterest aad ejB&ciency ia fhe publfc admiaistration. Uiiless an order of transfer as shown to be aa outcome of mala fide exercise or stated to be ia violation of statutoiy provisions prohibitmg any such traasfer, fhe Courts or fhe Tribunals normally cannot iaterfere wifh such orders as a matter of routme, as fhough fhey were fhe appeUate aufhorities substitutiag fheir own decision for that of fhe employer/maaagement, as agaiust such orders passed in the iaterest of admmistrative exigencies of the service concemed. This position has been recently laid down by the Apex Court in fhe matter of State af U.P. -Vs- Sl»a Kam. AJR 2004 S.G 4121, rcferring to fhe decisiou rcndered in fhe matter of Neitl^ndl Hudroelectric Power Corporatton Ltd, -Vs- Shri Bhaawan <md another (200U 8 SCC S74. There is no force in fhe arguments advaaced by fhe learaed counsel for fhe petitioner and the same cannot be accepted. (10) Now the second poiat raised by the learaed coiuisel for the petitioner is regarding violation of transfer and mobility poUcy/ guideliaes. Referring to fhe Division Bench decision of Bombay High Court, rendered ia fhe matter of Seshrcw Nafiarcw Unuw - Ws- State of Mctharashtra emd others 198S /ZQJLLJT 73, learaed counsel subiaitted that Uke aay ofher executive/adiainistrative power, the power oftraasfer must be exercised in good faifh aad as per the guidelines laid down in fhat behatf. He further submits IV (^ ^9- that fhe xnanageineut is boiiad by its own policy decision and it xnust enforce it faifhfuUy aad whUe iaipleiaenting fhe poUcy it cannot pick aad choose. This argunient advaaced by leamed counsel for the petitioner caanot be accepted as it has been held by fhe Boiabay High Court ia the aforesaid judgnient itself that such execiitive mstructions or a policy decision caiinot confer any enforceable legal nght nor aa order issued ia breach of it, wtU become per se iUegal. The Bombay High Court has further held fhat fhese iiistoructions could be dircctoiy ia nature and fhere could be exceptions to fhe general rule due to exigencies of sendces or due to soiae admiaistrative reasons, but fhe exception cannot be pemiitted to beconie a rule and it is equaUy weU setfled fhat Courts should not iaterfere with fhe orders of traasfers, which are issued ia fhe exigencies of service aad ia discharge of admmistrative or executive power. (please see para 5 of fhe aforesaid judgxnent). It has been held in fhe raatter of Unian of Jndte and others -Vs- SJ/. Ablms AIR 1993 S.C. ^444 that who should be traiisferred where, is a matter for the appropriate authority to decide. Unless fhe order of transfer is vitiated by malafides or is made ia violation of any statutoiy provisions^ the Court caanot iaterfere wifh it. While orderiag the traasfer, fhere is no doubt, fhe aufhonty must keep ia mind fhe guidelmes issued by fhe Goverainent on fhe subject. But, fhe guidelmes issued by fhe Goveranient do not confer upon einployee aay legally enforceable right. -J6 (11) Besides fhe above, if we examme the contents of fhe guideliaes filed as Annexure P-3, it is stated ia para 4 under Column 'C' that Normal Period of Posting (NPP) shaU meaa contmuous postmg ia aU cadres of class-I taken togefher for a period of 5 years ia respect of aU centers. Colunui ^D9 of fhe said guidelmes relates to fhe General Regulations. Para (II) of fhe Regulations provides fhat on completion of normal period of postiag (NPP), aa ofi&cer wiU be due for traasfer, but para(iii) of the aforesaid General Regulations furfher provides that anofhing contaiaed hereia shaU be construed to Umit fhe powers of the Management to traasfer aoy officer before completion ofthe normal penod ofposting." Even ifwe apply the traasfer poUcy ia its strict sense, fhis is not going to help fhe petitioner on the ground fhat the petitioner has not completed a iiormal period of postiag (NPP) of5 years at Raipur aad he would not have been transferred finom fhe said place prior to completion offhe said period. (12j In the particular facts and circumstaiices of fhis case, I am not iacUned to iaterfere with the order of teansfer issued to the petitioner on 16.6.2005. The petition has no force aad fhe same is dismissed. However, I dircct the parties to bear their own costs. Sd/- Sunil Kumar Sinha Judge /Rao/