Somesh Tiwari vs Union Of India & Ors

3. Inter alia, on the premise that the employees posted at the Bhopal office of the respondents apprehending disciplinary as also criminal proceedings at the hands of the appellant on the basis of the reassessment of the files undertaken by him, an anonymous complaint was made alleging caste-bias on his part, pursuant whereto an order of transfer was passed against him on or about 22nd August, 2005.

4. Prior thereto he had filed a representation stating that, as he had been undergoing some treatment, he should be retained at Bhopal. Appellant, however, contended that in view of the fact that he had taken action against some erring officers, they were instrumental in sending the said anonymous letter on the basis whereof no action should have been taken in the light of the circular letters issued by the Central Vigilance Commission. 2

5. It is, however, accepted that an enquiry was conducted by an Assistant Commissioner, Directorate of Vigilance, into the said anonymous complaint wherein allegations made against the appellant were not found to be true but still recommendations were made that he be transferred from Bhopal. Only on that basis he was transferred to Shillong.

6. He indisputably made a representation praying that on compassionate and humanitarian grounds, he may be retained at Bhopal for at least one year. The said representation was not responded to.

7. In the aforementioned factual backdrop, he filed an O.A. before the Central Administrative Tribunal, Jabalpur Bench which was marked as O.A. No. 897 of 2005. By an order dated 27th September, 2005, having regard to the fact that the representation filed by the appellant had not been disposed of by the authorities of the respondents, it was directed :-

8. By an order dated 19th October, 2005 the said representation was rejected.

10. As the said representation was rejected by an order dated 27th October, 2005, appellant filed another O.A. before the Central Administrative Tribunal, Jabalpur, being O.A. No.1042 of 2005.

14. Aggrieved by and dissatisfied therewith appellant filed a writ petition before the High Court of Madhya Pradesh at Jabalpur. As during the pendency of the said writ petition, a disciplinary proceeding was initiated against the appellant on the premise that he had not joined the post at Ahmedabad, the High Court passed an interim order on 17th April, 2006, directing :-

19. 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.

20. 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 in lieu of punishment, the same is liable to be set aside being wholly illegal.

The competent authority of appellant did not consider his initial representation. Admittedly an order of stay was passed by the Central Administrative Tribunal while disposing of O.A. No. 897 of 2005 dated 27th September, 2005.

22. Indisputably he did not join his post at Shillong. We, although, are of the opinion that the appellant, thus, should have joined at his transferred post, he.did not do so as a result whereof he might have committed a misconduct. But while invoking the doctrine of `no work no pay', as urged by Mr. Quadri, the superior courts must strike a balance. With a view to do 12 justice to both the parties, the court was required to consider the conduct of both the parties.

(Emphasis supplied)

28. We, keeping in view the fact, that on the one hand the appellant did not join his posting at Ahmedabad, although no order of stay was passed and on the other wholly unwarranted and reprehensible conduct on the part of the authorities of the respondents, are of the opinion that interest of justice would be subserved if during the period from 28th December, 2005 till his joining his post at Bhopal, the appellant is treated to be on leave and the respondents are directed to pass an appropriate order invoking the leave rules applicable in this behalf. It is ordered accordingly.

29. The impugned judgment of the High Court is modified to the aforesaid extent. The appeal is allowed to the aforementioned extent. Respondents shall bear the cost of the appellant counsel's fee assessed at Rs.50,000/-.