IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Date of Decision: February 21, 2011 1. CWP No. 14623-CAT of 2009 Baldev Krishan …Petitioner Versus Union of India and others …Respondents 2. CWP No. 183-CAT of 2010 Baldev Krishan …Petitioner Versus Central Administrative Tribunal, Chandigarh Bench, Chandigarh and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Harpreet S. Giani, Advocate, Amicus Curiae. Mr. Namit Kumar, Advocate, for respondent Nos. 1, 3 and 4 (in CWP No. 14623 of 2009) and for respondent Nos. 2 to 4 (in CWP No. 183 of 2010) 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of CWP Nos. 14623 of 2009 and 183 of 2010, which have been filed under Article 226 of the Constitution against the orders dated 24.7.2009 and 11.12.2009 respectively, passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’). The CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 Tribunal dismissed the original applications filed by the applicant- petitioner. In the first OA, he challenged his transfer order dated 30.1.2009, transferring him from Abohar to Zira. In the second OA, the applicant-petitioner sought the relief of equal treatment between the Sub Post Master and him as also staying of the enquiry proceedings initiated against him. 2. The factual position as gathered from the perusal of these petitions is that the applicant-petitioner belongs to reserved category of Scheduled Caste. On 1.1.1992, he joined the service and posted in the Post Office, Abohar as Postal Assistant. In the year 2003, he was posted as a Treasury Clerk-II in the Post Office, Abohar. It is alleged that right from the day one, Shri Waryam Singh Bhullar, who was the Sub Post Master in the Post Office, Abohar and also the Secretary of the All India Postal Employees Union, was having grudge against the applicant-petitioner. The reason for nourishing the grudge was that in December 2000 there was a postal strike called by the Postal Union in which the applicant- petitioner did not participate and joined the duty during strike. 3. Further case of the applicant-petitioner is that there were two keys of the treasury in the Post Office, out of which one used to be kept by Shri Waryam Singh Bhullar and the other by the applicant-petitioner. In this manner, both of them were in the joint custody of the treasury and both could open the same by using their keys. It is claimed that on 10.9.2003, the applicant-petitioner deposited the amount of sold postal stamps with Shri Waryam Singh Bhullar, which was duly checked and verified by him and a certificate regarding correctness of the cash book of the Treasury 2 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 Clerk was also issued by him. It has also been pointed out that Shri Waryam Singh Bhullar, who was the incharge of the Post Office, Abhoar, use to requisition the postal stamps exceeding the maximum limit of ` 70,000/-. 4. It has further been alleged that with a view to implicate the applicant-petitioner in a false case due to personal vendetta, on 11.9.2003 at about 9.30 a.m. Shri Waryam Singh Bhullar called and told him that there was a shortage of postal stamps valuing ` 37,000/- and asked him to deposit the shortfall. But the applicant- petitioner refused to do so because he had already deposited the entire amount of postal stamps sold by him, which was duly checked and verified by Shri Waryam Singh Bhullar. Upon this, the applicant-petitioner was threatened to be implicated in false case of misappropriation of Government fund. Thereafter, in connivance with one Vinod, Shri Waryam Singh Bhullar prepared a forged receipt dated 12.9.2003 for a sum of ` 36,869.50 paise, showing that the said amount was deposit by the applicant-petitioner. 5. On 16.9.2003, the applicant-petitioner was placed under suspension. On 29.12.2003, a charge sheet under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1964 (for brevity, ‘the Rules’) i.e. for imposition of major penalty was issued to the applicant-petitioner for the alleged misconduct of shortfall of postage stamps and stationery balance of ` 36,869.50 paise (Annexure P-1 with CWP No. 183 of 2010). On 30.12.2003, the applicant-petitioner was reinstated. On 2.1.2004, the applicant- petitioner wrote a letter to the Superintendent of Post Offices, Ferozepur and sought personal hearing. Instead of giving personal 3 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 hearing, vide letter dated 29.1.2004, he was directed to submit his defence statement within three days failing which further action was to be taken against him (Annexures P-7 & P-8 with CWP No. 183 of 2010). On 5.2.2004, an Enquiry Officer was appointed to inquire into the charges levelled against the applicant-petitioner (Annexure P-9 with CWP No. 183 of 2010). 6. It is pertinent to mention here that Shri Waryam Singh Bhullar was also served with a charge sheet dated 14.1.2004 but the same was issued under Rule 16 of the Rules (Annexure P-2 with CWP No. 183 of 2010). However, on 13.2.2004, the Superintendent of Post Office, Ferozepur Division, Ferozepur, passed an order letting him off with the penalty of Censure (Annexure P-3 with CWP No. 183 of 2010) 7. The grievance of the applicant-petitioner is that due to indifferent attitude towards him by various persons in the department, harassment and mental torture has been caused to him, which forced him to file a complaint/petition before the National Scheduled Caste Commission, State Office, Chandigarh (for brevity, ‘the Commission’). Thereupon the Commission sought comments of the Postal Authorities and also impressed upon them not to harass the applicant-petitioner vide their communications dated 13.2.2004, 10.3.2004 and 11.6.2004 (Annexures P-1, P-2 and P-3 with CWP No. 14623 of 2009). According to the applicant- petitioner this has infuriated the Postal Authorities and despite the recommendations made by the Commission for giving same treatment as was given to Shri Waryam Singh Bhullar, inasmuch as, he was let off with only the punishment of Censure, on 14.1.2004, a 4 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 letter was addressed to the SHO, Police Station, Abohar City for registration of criminal case against the applicant-petitioner. According to the applicant-petitioner the fact that the Postal Authorities were bent upon to implicate him in the criminal case is evident from various Demi Official letters sent to the Senior Superintendent of Police, Ferozepur. As a matter of fact, on 13.7.2004 and 19.10.2004, the Superintendent of Posts, Ferozepur Division, sent Demi Official letters to the Senior Superintendent of Police, Ferozepur, for registration of FIR against the applicant- petitioner in the matter of misappropriation of Government money. However, on 19.4.2005 it was informed by the police authorities that no action is required to be taken against the applicant- petitioner because the amount was already deposited in the Government treasury. Despite this, on 10.6.2005 and 29.8.2005, further Demi Official letters were sent insisting upon the Senior Superintendent of Police, Ferozepur, to register a criminal case against the applicant-petitioner. Eventually, an FIR No. 291, dated 3.10.2005 under Section 409 IPC was registered against him in the Police Station City, Abohar, on the basis of the complaint made by Shri K.L. Khanna, Post Master General Punjab, Chandigarh. However, after conducting the inquiry by the Superintendent of Police (D), Ferozepur, and after obtaining legal opinion from the District Attorney, a cancellation report dated 20.2.2007 has been filed in FIR No. 291, dated 3.10.2005. 8. The matter does not end here. According to the applicant-petitioner when the respondent authorities failed to implicate him in the false criminal case, they devised a novel 5 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 method to further harass him. On 30.1.2009, the Superintendent of Post Offices, ferozepur Division, Ferozepur, passed an order transferring him from Abohar to Zira against the vacant post under the garb of interest of service (Annexure P-6 with CWP No. 14623 of 2009). It is claimed that this was in utter violation of various Government instructions issued because the employees having longest stay than the applicant-petitioner were not transferred. 9. It has also been pointed out that faced with the indifferent attitude and harassment meted out at the hands of the respondent authorities on various counts, the applicant-petitioner also filed a case before the Chairman, National Commission for Scheduled Castes. The said Commission also sought comments from the Chief Post Master General, Punjab Circle, vide communications dated 27.3.2006 and 25.8.2008. It is only thereafter that on 17.11.2008, the Superintendent of Post Offices, Ferozepur, issued directions to the Inquiry Officer to cancel the inquiry proceedings till further orders, as is evident from order dated 17.11.2008 passed by the Inquiry Officer (Annexure P-11 with CWP No. 14623 of 2009). The applicant-petitioner also filed a complaint dated 29.9.2008, under Sections 420, 466, 467, 468, 469, 471, 217, 218, 166, 167 and 120-B IPC and under Section 3(VIII/IX) and (X) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act against Waryam Singh Bhullar and six others in the Court of Additional Civil Judge (Senior Division) Abohar, for taking action against them (Annexure P-12 with CWP No. 14623 of 2009). He also instituted a suit for damages of ` 9,00,000/- for his malicious prosecution against Waryam Singh Bhullar and others 6 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 (Annexure P-13 with CWP No. 14623 of 2009). Other than this he also filed various complaints to the police against one Shri Vinod Kumar, Postal Assistant, Abohar, for threatening him on account of filing of aforestated complaint and suit. 10. The applicant-petitioner has also sought to raise the plea that he has been suffering from back bone disk pain for the last 12 years and it is very difficult for him to travel from Abohar to Zira, which covers a distance of 200 Kms. Besides this, his younger daughter is suffering from the disease of Kidney and Urine whereas his other daughter is suffering from eye problem. Both of them are undergoing treatment at Abohar. In support of these assertions, he has placed various medical prescriptions on record. 11. Eventually, the applicant-petitioner filed OA No. 117/PB/2009 before the Tribunal challenging his transfer order dated 30.1.2009. On 26.2.2009, the Tribunal stayed operation of the transfer order and the applicant-petitioner re-assumed his duties at Abohar on 27.2.2009. However, on 24.7.2009, the Tribunal after placing reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of Government of Andhra Pradesh v. G. Venkata Ratnam, (2008) 9 SCC 345 and Mohd. Masood Ahmad v. State of U.P., (2007) 8 SCC 150, dismissed the aforesaid OA. In the said judgments it has been held that transfer is an incidence of service and interference by the Court should only be in very rare cases where either the order has been passed on mala fide intentions or against service rules or if the authorities concerned who issued the order were not competent to do so. The Tribunal came to the conclusion that in applicant-petitioner’s case 7 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 the transfer order has been passed by the competent authority in public interest, the same is perfectly legal and no interference of the Court is warranted (Annexure P-23 with CWP No. 14623 of 2009). Challenging the order dated 24.7.2009, the applicant-petitioner approached this Court by filing CWP No. 14623 of 2009. On 18.9.2009, the Ist Division Bench while issuing notice of motion also ordered for maintaining status quo pending further orders from this Court. 12. The inquiry proceedings against the applicant-petitioner, which were stopped till further orders in pursuance of letter dated 17.11.2008 sent by the Superintendent of Post Offices, Ferozepur, were resumed, inasmuch as, a notice dated 21.10.2009 was sent to the applicant-petitioner by the Inquiry Officer intimating that inquiry proceedings would be held on 6.11.2009. On the said date the Defence Assistant of the applicant-petitioner did not appear and one last opportunity was afforded to him to attend the inquiry failing which the inquiry proceedings were to be conducted ex parte. 13. The applicant-petitioner also filed another application being OA No. 951/PB/2009 before the Tribunal seeking equal treatment as was given to the Sub Post Master Shri Waryam Singh Bhullar and to stay the inquiry proceedings as an interim measure. It was projected before the Tribunal that charge sheets were issued to the applicant-petitioner as well as Shri Waryam Singh Bhullar for the same lapse i.e. shortfall of postal stamps of ` 36,869.50 paise but in the case of the applicant-petitioner it was issued for the alleged violation of Rule 4(i) of F.H.B. Volume-I; Rule 3(I)(i)(ii)(iii) of the CCS (Conduct) Rules, 1964; Rule 31(a) of F.H.B. Volume-II and 8 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 Rule 50 of the Postal Manual Volume VI Part-I, whereas in the case of Shri Waryam Singh Bullar it was simply issued for violation of Rule 85 of the Postal manual Volume-VI Part III and Rule 3(I)(ii) and (iii) of the CCS (Conduct) Rules, 1964. However, the Tribunal did not agree with the contentions raised by the applicant-petitioner and concluded that the charges levelled against him and Shri Waryam Singh Bhullar are separate and distinct. The Tribunal also negated the argument of mala fide holding that the applicant- petitioner failed to establish the charge of mala fide intention against the respondents. In that regard, the Tribunal has placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of Purushotam Kumar Jha v. State of Jharkhand, JT 2006 (7) SC 46. Accordingly, the Tribunal also dismissed the second OA filed by the applicant-petitioner, vide order dated 11.12.2009, which is subject matter of challenge in CWP No. 183 of 2010. 14. In the written statement filed on behalf of respondent Nos. 1, 3 and 4 in the transfer matter i.e. CWP No. 14623-CAT of 2009 it has been pointed out that on 23.2.2008, Sub Divisional Inspector (Postal), Abohar Sub Division, Abohar, visited the Abohar Post Office and found the applicant-petitioner absent from duty. He attended the office at 10.15 a.m. When the Sub Divisional Inspector asked the reason for attending the office late, instead of giving reply the applicant-petitioner he started talking loudly by using abusive/filthy language. In that regard the Sub Divisional Inspector recorded his remarks in his office order book dated 23.2.2008, which has been duly countersigned by 16 staff members (R-2). The matter was reported to the Superintendent of Post Offices, 9 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 Ferozepur Division, Ferozepur, vide letter dated 23.2.2008 (R-3), who in turn submitted another report to the Postmaster General, Punjab Region, Chandigarh, vide letter dated 7.8.2008, giving details of past record of service of the applicant-petitioner and strongly recommended to consider his case for transfer under Rule 37 of the Postal Manual Volume-IV to some far flung division in the interest of service (R-4). Thereafter the Postmaster General, Punjab Region, after taking into consideration all the facts and circumstances asked the Superintendent of Post Offices, Ferozepur, vide letter dated 1.12.2008, to take disciplinary action against the applicant-petitioner for creating indiscipline in the office on 23.2.2008 and also shift him to any other office in the division. In this manner, the applicant-petitioner was transferred from Abohar Post Office to Zira Post Office, vide order dated 30.1.2009. The allegations of harassment and humiliation etc. have been denied. With regard to the criminal case registered against the applicant- petitioner, it has been pointed out that though the police filed a cancellation report but the Court has ordered re-investigation into the issue and the said case is still pending. Thus, it has been emphasised that the applicant-petitioner has suppressed the material facts with regard to the reason of his transfer as also about the pendency of the said FIR with the competent Court. It has also been denied that any instructions have been violated. It has been submitted that the applicant-petitioner is in the habit of making frivolous complaints/court cases against those officials/officers who are involved in the Departmental Inquiry or in lodging the FIR against him. In para 38 of the written statement it has been 10 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 specifically stated that the integrity of the applicant-petitioner is such that he cannot be posted at any single hand post office or even at any double hand post office. His services can be utilised in subordinate capacity only. No rejoinder to the above assertions has been filed by the applicant-petitioner. 15. A written statement on similar lines on behalf of respondent Nos. 2 to 4 has been filed in the other writ petition, namely, CWP No. 183-CAT of 2010. The answering respondents have also raised a preliminary objection that the said writ petition is pre-mature because till date no punishment has been awarded to him as the inquiry proceedings against him are still pending. Therefore, it cannot be alleged by the applicant-petitioner that he has been meted out with indifferent treatment. It has also been stated that keeping in view severity of the offence committed by the applicant-petitioner he has been proceeded against under Rule 14 of the Rules whereas Shri Waryam Singh Bhullar, the then Sub Postmaster Abohar was proceeded against under Rule 16 of the Rules. Appropriate penalty has already been awarded to Shri Bhullar during his service. According to the respondents, the applicant-petitioner has left no stone unturned to vitiate and delay the departmental inquiry by using dilatory tactics from time to time. It is only because of the tactics adopted by applicant-petitioner that the departmental proceedings could not be completed despite lapse of over six years. On merits it has been stated that the applicant- petitioner was required to deposit the surplus cash with Treasury Clerk-I and not to Shri Waryam Singh Bhullar, as has been wrongly stated by him. Moreover, Shri Bhullar has already been punished 11 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 for the act of misconduct of non-verification of the stock physically while signing the Treasurer’s Cash Book and not taking care of the limits of keeping postage exceeding the authorised balances. 16. The first petition (CWP No. 14623-CAT of 2009) pertains to transfer of the petitioner from Abohar to Zira. The Tribunal has rejected the Original Application on the ground that the petitioner did not have any right to be posted at a particular place and transfer in larger public interest is permissible. It has further been found that Superintendent of Post Office, Ferozepur, is fully competent to issue the transfer order of any Postal Assistant under the jurisdiction of Ferozepur Postal Division and there were no mala fide involved. The Tribunal has also placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of G. Venkata Ratnam (supra) and Mohd. Masood Ahmad (supra) and has accordingly held that transfer is an incidence of service. We are in full agreement with the view expressed by the Tribunal. The transfer has been ordered in the larger public interest and by a competent authority. Such a transfer does not lead to an inference that it has been ordered to inflict any punishment. In support of the aforesaid view reliance may be placed on the recent judgments of Hon’ble the Supreme Court rendered in the cases of Union of India v. Muralidhara Menon, (2009) 9 SCC 304 and Rajendra Singh v. State of Uttar Pradesh, (2009) 15 SCC 178. The transfer even otherwise is permissible because the petitioner is facing a departmental inquiry. Therefore, the first writ petition is liable to be dismissed and the order passed by the Tribunal deserves to be upheld. 12 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 17. In so far as the second writ petition (CWP No. 183-CAT of 2010) is concerned, the petitioner has claimed that he should be given equal treatment as has been meted out to Shri Waryam Singh Bhullar, the then Sub Post Master, Abohar. The Tribunal has rejected the said claim by holding that the charges against Shri Waryam Singh Bhullar were lack of supervision, inasmuch as, he allowed the retention of postage stamps/stationary balance by the applicant-petitioner in excess of his authorised limit of ` 70,000/- during the period from 1.7.2003 to 10.9.2003, which led to embezzlement of ` 36,869.50 paise by the applicant-petitioner. It was also alleged that he failed to physically verify the said balance and without checking the same he has been signing as verified. The lack in supervision has facilitated the embezzlement and fraud committed by the applicant-petitioner. On the contrary the charges against the applicant-petitioner relate to patent violation of Rule 4(i) of F.H.B. Volume-I, Rule 3(I)(i)(ii)(iii) of CCS (Conduct) Rules, 1964, Rule 31(a) of F.H.B. Volume-II and Rule 50 of Postal Manual Volume VI Part-I, whereas against Shri Waryam Singh Bhullar, as noticed above, charges relate to violation of the supervisory duty of the work of a subordinate employee like the applicant-petitioner. The view of the Tribunal is discernible from the following paras of the judgment of the Tribunal:- “6. From the above, it is apparent that the charges in both the charge-sheets are not the same. They are not only different in essence but also relate to infringement of different provisions of the rules and regulations. Therefore, the argument of the applicant for 13 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 claiming equal treatment with the SPM is not supported by the evidence placed on record and is therefore not tenable. The law of equity does not apply in the present case since the two charge-sheets sought to be equated are not similar. 7. The applicant has also leveled the charge of malafide intention of the respondents in re-starting the enquiry against him. He has stated that he has been charge-sheeted because he did not participate in the strike call given by the Union in December, 2000 and because he had obtained a stay order from the Hon’ble High Court against his transfer orders. However, these charges do not appear to be tenable since the charge sheet had been issued on 30.1.2009, which was later stayed. The incident of the strike call given by the Union in December, 2000 was also there prior to the date of issuance of the charge sheet. It is also relevant to note in this context that the charges in the charge-sheet issued to the applicant are not vague and generalized but specific in nature and relate to entries in Govt. records in respect of cash amounts very clearly spelt out in the charge-sheet and which are verifiable in nature. In any case, the allegation of malafide intention has to be made with a great deal of responsibility and along with supporting evidence. In the present case the applicant has failed to establish the charge of malafide intention against the respondents with any degree of credibility. 14 CWP Nos. 14623-CAT of 2009 & 183-CAT of 2010 Without such supporting evidence, we find that in the facts and circumstances of this case, no malafide intention of the respondents is made out. ……” 18. Having heard learned counsel for the parties we are of the considered view that no ground is made out to treat the applicant-petitioner equal to Shri Waryam Singh Bhullar, the then Sub Post Master, Abhoar, because there is no allegation of embezzlement against him whereas the applicant-petitioner is facing charges of embezzlement of public funds amounting to `36,869.50 paise. The allegation of mala fide have been rightly rejected by the Tribunal by holding that the applicant-petitioner has failed to establish the charges of mala fide intention against any of the respondents with any degree of credibility. The reliance of the Tribunal on the judgment of Hon’ble the Supreme Court in the case of Purushotam Kumar Jha v. State of Jharkhand, JT 2006 (7) SC 46, is