Bimal Chandra Das @APPELLANT@Hash Union Of India And Ors

Suman Shyam, J.

Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. R.M. Deka, learned counsel appearing for the writ petitioner. I have also

heard Mr. B. Sarma, learned Standing Counsel, N.F. Railway, appearing for the respondents.

The writ petitioner herein is employed as an Inspector in the Railway Protection Force and is presently posted at the Railway Headquarter at

Maligaon. He was earlier elected as the General Secretary of the All India Railway Protection Force Association (in short AIRPFA), N.F. Railway,

which is a recognized Trade Union under the Indian Railways. While the petitioner was serving as Inspector and posted in the Armourer, Maligaon

Headquarter, the respondent no. 4 i.e. the Staff Officer to the Principal Chief Security Commissioner, Railway Protection Force, N.F. Railway,

Maligaon, Guwahati, had issued order dated 25/05/2018 transferring the petitioner from Maligaon Headquarter and posted him as Divisional

Inspector/KIR under Katihar Division on administrative ground. Thereafter, by the order dated 28/05/2018, the petitioner was released from his duty

so as to enable him to join at his new place of posting at Katihar. The aforesaid transfer order dated 25/05/2018 has been assailed by the petitioner by

filing the instant writ petition, primarily on the following grounds:-

Firstly, the petitioner being an Office Bearer of the AIRPFA, he was entitled to certain protection in the matter of transfer. According to the

petitioner, the procedure laid down by the notification dated 10/07/2009 issued by the Railway Board requiring the authorities to communicate to the

concerned Union as regards the proposal for transfer has been violated in this case. Secondly, the petitioner claims that the transfer order is in

violation of Directive No. 32 (revised) notified by the Railway Board on 28/12/2017, which mandates that the transfer of an employee is required to be

carried out on or before 31 st March.

The petitioner contends that his two daughters are studying in Class VII and V and are in mid academic session and, therefore, if he is compelled to

join at Katihar, the academic career of his daughters will be hampered. Thirdly, the petitioner has also contended that the transfer of an office bearer

against whom a disciplinary proceeding is pending, could not have been made by ignoring the provision of the Rules and without the approval of the

Director General of the Force and to such extent, the respondent no. 4 was not competent to issue the impugned order. The petitioner has also alleged

malafide against the respondents on account of the fact that the order of transfer has been issued in violation of the standing circulars of the Railway

Board and before completion of his normal tenure of posting in the present place.

The respondent nos. 2, 3 and 4 have filed joint affidavit inter-alia stating that the writ petitioner has spent 20 years out of 22 years of his service in

Assam and he has been serving in his present place of posting at Maligaon Headquarter, which is within 1.5 KM radius from his permanent residence

at Kamakhya Gate, Guwahati-9 since last 8 (eight) years. Therefore, this is not a case of frequent transfer. It is also the contention of the respondents

that the petitioner was elected as the General Secretary of the AIRPFA in the month of March, 2014 for a period of 3 years and on the expiry of his

term in office, the petitioner is no longer entitled to any protection on the ground of his being the office bearer of the Association. The respondents

have also categorically averred that the order of transfer has been issued in public interest and with due approval of the respondent no. 3 i.e. the

Director General, Railway Protection Force.

Mr. K.N. Choudhury, learned senior counsel appearing for the petitioner has straneously argued that the petitioner has been voicing his protest

against the arbitrary decisions of the authorities in suppressing the claims of the local residents of Assam and North Eastern Region in the matter of

employment in the force and that is the reason why the authorities have chosen to penalize the petitioner by transferring him. According to the Mr.

Choudhury, the order of transfer has been issued as a punitive measure only to disrupt the normal life of the petitioner. By referring to the circular

dated 10/07/2009 as well as the Directive No. 32, Mr. Choudhury has argued that his client has continued in office even after the completion of 3

years since as per the Rules, he would continue to hold office of General Secretary until a new office bearer is elected. Therefore, the respondents

were under an obligation to communicate its decision to transfer the petitioner to the Union.

By referring to Rule 93.3 of the Railway Protection Force Rules, 1987, Mr. Choudhury has argued that under the said Rules, any member of the

force who is facing departmental proceeding and is due for periodical transfer on completion of his normal tenure would not ordinarily be transferred

unless the transfer is in public interest or in the interest of expeditious finalization of the disciplinary proceeding. In the present case submits Mr.

Choudhury, the conditions under the Rule 93.3 are satisfied so as to prevent the transfer order and, therefore, the authorities ought not to have

transferred the petitioner before conclusion of the disciplinary proceeding pending against him.

The learned Standing Counsel, Railways Mr. Sarma on the other hand, has produced the records to contend that not only is the transfer order

issued with the approval of the Director General of the Force but the same was also preceeded a discreet inquiry conducted by the authorities which

suggested that transfer of the petitioner was necessary in the exigencies of administration. Mr. Sarma has also produced the

“Confidential Reportâ€​ prepared by the Deputy Inspector General (MAC) in a sealed cover to buttress his argument that the petitioner has not only

been engaged in activities which are adverse to the interest of the force but he has also been obstructing the finalization of the disciplinary proceeding.

Mr. Sarma submits the writ petitioner is holding a transferable post and, therefore, there is nothing in the Rules which would debar the authorities from

transferring the petitioner on completion of his normal tenure.

With a view to negate the arguments advanced by the petitioner's counsel to the effect that the order of transfer was punitive in nature, Mr. Sarma

contends that the grounds mentioned in the confidential report pertains to such conduct and behaviour of the petitioner including the obstruction

created in conclusion of the departmental proceeding, which facts are well within his knowledge and therefore, there has not been any violation of

principles of natural justice in this case. In support of his aforesaid argument, the learned counsel for the respondents has relied upon the following

decisions :-

(i) N.K. Singh Vs. Union of India and others [1994 (6) SCC 98]

(ii) Rajendra Singh etc. etc. Vs. State of UP and others [2009 (15) SCC 178]

(iii) Union of India & Ors. Vs. Sri Janardhan Debnath & Anr. [2004 (4) SCC 245]

(iv) P.R. Sumiyon Vijayraj Vs. Union of India and Ors [(2005) 3 GLR 353]

In his reply argument, learned counsel for the petitioner has argued that his client was never served with a copy of the confidential report and,

therefore, the decision to transfer him on the basis of such report, without giving him an opportunity to defend his interest, was in utter violation of the

principles of natural justice and, therefore, would call for interference by this Court. In support of his above argument, Mr. R.M. Deka has relied upon

a decision of the Supreme Court rendered in the case of State of Assam and others Vs. Mahendra Kumar Das and others reported in 1970(1) SCC

709.

I have considered the arguments advanced by the learned counsel for both parties and have meticulously gone through the materials available on

record.

In this case, there is no dispute about the fact that the writ petitioner was elected as the General Secretary, AIRPFA in the month of March, 2014

for a term of 3 years. The term of the petitioner in office has since expired. However, according to the petitioner, he would continue to hold office

until such time a new office bearer is elected since the same is provided under the Rules. It is on such count, the petitioner had claimed that the

procedure laid down by the Circular dated 10/07/2009 would be attracted in his case. Since heavy reliance has been placed on the circular dated

10/07/2009, I deem it appropriate to extract the relevant portion of the circular as under :-

“As per provisions laid down in Board's letters No. E (L) 60/UTI-31 dated 19.02.1960 and No. E(LR)III/200 etc; any proposal for transfer an

office-bearer of a recognized Railway Union (AIRPFA and its constituent Zonal Body & Divisional Bodies in case of RPF) has to be communicated

to the union concerned which may bring to the notice of Divisional Officer and if necessary later to the General Manager (DG/RPF in case of

RPF/RPSF staff) any objection they may have against the proposed transfer. In case of no agreement at lower levels, decision of the General

Manager (DG RPF in case of RPF Association) is to be final.

However, where it is decided after consideration of the appeal by the General Manager (DG/RPF in case of RPF Association) not to cancel the

transfer, the transfer may be allowed to pend till the next election of Office bearers subject to a maximum period of one year. However, in case of

Office bearer, being involved in a Special Police Establishment (SPE)/Vigilance case and where the civil and police Authorities have recommended

immediate transfer of staff, who is an office bearer of a recognized Railway Union, on the ground of indulging in undesirable activities and affecting

efficient function of Railway, the procedure laid down in the preceding paragraph need not be followed.â€​

A reading of the circular dated 10/07/2009 would go to show that the same does not create an absolute bar on transfer of any Office bearer of a

recognized Railway Union but merely lays down certain guidelines which have to be followed while such transfer is affected. By another circular

issued on 17/06/2003, the Railway Board had laid down that the President/Secretary of the Association who has completed his tenure at a place may

be allowed to continue at his place of posting till he holds office. Permission to continue beyond the tenure shall be granted by the CSC in the case of

Divisional President/Secretary and DG in the case of Zonal President and Secretary.

A conjoint reading of the aforesaid circulars leave no room for doubt that even if an office bearer wants to continue in the present place of posting

beyond his normal tenure, a request to that effect would have to be made to the competent authorities, which has admittedly not been done in the

present case. Moreover, the circular dated 10/07/2009 categorically mentions that the transfer of a office bearer may be allowed to pend till the next

election of the Office bearer is held subject to a maximum period of one year, which period has already expired in the case of the writ petitioner. That

apart, it is also the admitted position of fact that there is a vigilance case and a criminal case pending against the petitioner, which in the opinion of the

authorities, is affecting the efficient functioning of the Railways. Therefore, even under the circular dated 10/07/2009, relied upon by the petitioner,

there would be no necessity to follow the procedure laid down in the preceding paragraph while issuing an order of transfer, in the facts of this case.

Coming to the ground of mid-academic session taken by the petitioner, it is seen from the record that his daughters are studying in Class VII and

V and the petitioner is living with his family members in his permanent residence at Maligaon. It is no doubt correct that the directive No. 32 mentions

that an order of transfer be issued before 31 st March of each year so as not to disrupt the education of the children but from the language employed

therein, it is apparent that those guidelines are directory in nature. In the present case, the transfer order had been issued in the month of May, 2018

but it is the petitioner who had chosen not to join in his new place of posting. Moreover, his children are still studying in lower classes and it is not the

case of the petitioner that no good schools are available at Katihar. Having regard to the facts and circumstances of the case, I am of the opinion that

no prejudice has been caused to the petitioner on account of the impugned order of transfer in so far as the issue of his children's education is

concerned.

Coming to the next issue raised by the petitioner, it is seen from the record that his transfer has been carried out under the instruction of the

Director General. Therefore, the ground taken in the petition that the transfer order is illegal having been issued by an authority incompetent to do so,

also does not have any legs to stand.

As noted above, it is true that a confidential inquiry was carried out by the departmental authorities, based on which a decision was taken to

transfer the petitioner to Katihar. Although, such report was submitted before this Court in a sealed cover, yet, the petitioner's counsel was permitted

to inspect the said document. However, during the course of argument, the learned counsel has not taken any stand against the said report nor has he

denied the knowledge of the grounds mentioned therein. Although the learned counsel for the petitioner has relied upon a decision of the Supreme

Court in the case of Mahendra Kumar Das (Supra) to contend that the exercise was in violation of the principles of natural justice, yet, I find that in

that case a disciplinary proceeding was initiated against the delinquent and an order of dismissal was passed without affording him a reasonable

opportunity of being heard during the inquiry proceeding. It was in such factual backdrop that the aforesaid decision was rendered in the case of

Mahendra Kumar Das (Supra). But in the present case, it is merely an order of transfer which was issued by taking note of the circumstances which

were already within the knowledge of the petitioner. There is neither any stigmatic observation made against the petitioner nor is there any violation of

the condition of his service resulting from the confidential report. Therefore, I am of the view that the decision cited by the petitioner's counsel would

have no application in the facts of the present case.

It is trite law that transfer is an incident of service and the scope for interference with the order of transfer by the Writ Court in exercise of power

under Article 226 of the Constitution of India is very limited. The scope of judicial review by the High Court in such matters is limited to only such

cases where the order of transfer has been issued in violation of statutory provisions or with a malafide intent of causing injury to the employee or

when the same amounts to changing the conditions of service of the person concerned. Merely if because an order of transfer is issued in deviation of

certain guidelines, that cannot by itself be sufficient ground for the Writ Court to declare the order as invalid in the absence of any malafide being

established on the face of the record.

In the case of Rajendra Singh (Supra), the Supreme Court has held that a Government servant has no vested right to remain posted at a place of

his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one

place to other. The observations made by the Supreme Court in paragrpah 4.6, would be relevant and is, therefore, quoted herein below :-

“4.6. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory

provisions or suffers from malafides.

In the case of Shilpi Bose (Mrs) & Ors Vs. State of Bihar & Ors (AIR 1991 SC 532), this Court held :

In our opinion, the courts should not interfere with a transfer order which is 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 malafide. 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. The High Court overlooked these aspects in interfering with the transfer order.â€​

Dealing with the question as to whether an order of transfer issued on the ground of mismanagement and display unbecoming behaviour can be

termed as punitive, the following observations have been made by this Court in the case of P. R. Sumiyon Vijayraj Vs. Union of India reported in 2005

(3) GLR 353 :-

“15. It is settled law that transfer is an incident of service and the same cannot be treated to be punitive if the Govt. servant is transferred out from

one place of posting to another due to his mismanagement and unbecoming behaviour. If the behaviour and conduct of the public servant become

undesirable and unbecoming causing embarrassment to the concerned department/establishment, the competent authority shall have the liberty to take

any action like transfer. The Court cannot substitute its own decision in the matter of transfer for that of the superior authority. The transfer of an

employee, unless shown to be an outcome of mala fide exercise of power or prohibited by service rules or passed, by an incompetent authority, is not

subject to judicial interference as a matter of routine. The scope of the judicial review of such transfer order is very narrow.â€​

Applying the ratio laid down in the decision referred to above, I am of the view that merely because the authorities have carried out a discreet

inquiry before reaching the conclusion leading to the transfer of the petitioner, the transfer order cannot be termed as punitive nor can it be said to

have cast a stigma upon the petitioner. As noted above, the petitioner has already served at the same station i.e. Maligaon Headquarter at Guwahati

for more than 8 years. As per the departmental guidelines in force, the normal tenure of posting at one place is 3 years and, therefore, since the

petitioner has completed 8 years at one place, there can be hardly any doubt about the fact that this is not a case of premature transfer. In other

words, the petitioner has completed his normal tenure long back and, therefore, was in any case due for transfer. Under the circumstances, the order

of transfer in the opinion of this Court, cannot be held to be illegal on the grounds mentioned in the writ petition.

For the reasons stated hereinabove, I am of the view that no case is made out warranting interference with the transfer order dated 25/05/2018.

Consequently, the writ petition is held to be devoid of any merit, the same stands dismissed.

Return back the records to Mr. B. Sarma, learned Standing Counsel, NF Railway. There would be no order as to costs.