General Manager, North Eastern Railway, Chief Commercial Manager, North Eastern Railway, Divisional Commercial Manager-I, North Eastern Railway and Divisional Railway Manager (Personnel), North Eastern Railway vs Shri Niwas Dubey and The Central Administrative Tribunal

Anjani Kumar and Sudhir Agarwal, JJ.—Petitioners aggrieved by the order dated 15th February, 2007 passed by the Central Administrative Tribunal, Allahabad (hereinafter referred to as the ''Tribunal'') allowing Original Application No. 758 of 2006 of respondent No. 1, Shri Niwas Dubey have filed this writ petition under Article 226 of the constitution of India.

The facts leading to filing of the present writ petition in brief art that the respondent No. 1 was deputed to work as Vigilance Inspector in Vigilance Organization of the Railways and thereafter he was transferred from Varanasi to Baliia on the post of Commercial Superintendent. By the order dated 3rd January, 2006 the Divisional Commercial Manager (I), Varanasi placed him under suspension in contemplation of departmental enquiry. The respondent No. 1 challenged the order of suspension before the Tribunal in Original Application No. 564 of 2006 on the ground that before taking disciplinary action against him the consultation of Central Vigilance Commission was necessary but no such consultation was made before placing him under suspension on 24th June, 2005. During the pendency of the Original Application No. 564 of 2006, respondent No. 1 was issued a charge sheet dated 18th May, 2006. But subsequently the order of suspension was revoked on 21st June, 2006 and charge sheet was also canceled on 26th July, 2006. The aforesaid orders obviously rendered the Original Application infructuous. However, the petitioners while revoking the order of suspension simultaneously transferred respondent No. 1 from Varanasi Division to Izzatnagar Division. Aggrieved by the said order of transfer, respondent No. 1 filed the aforesaid Original Application which has been allowed by the Tribunal by the order impugned in the present writ petition on the ground that ex facie the order appears to have been passed for co-lateral purposes and also in violation of Railway Board Circular providing consultation of the Central Vigilance Commission before such transfer.

Learned Counsel for the petitioner contended that the respondent No. 1 was transferred on administrative ground and therefore, It was not proper for the Tribunal to interfere with the transfer order. He further said that an order of transfer could not have been invalidated merely on the ground that it violated a circular issued by the Railway Board. In support of his submission he relied upon the decisions of the Apex Court in the case of Union of India (UOI) and Others Vs. Sri Janardhan Debanath and Another, and another decision in the case of State of Madhya Pradesh, and Another Vs. S.S. Kourav and Others, .

We have considered the aforesaid submission, but we do not find any force in the submission. It is evident from the record and not disputed by the petitioners that the respondent No. 1 was firstly placed under suspension on 3rd January, 2006 against which he filed Original Application No. 564 of 2006 alleging therein that order of suspension was in violation of statutory provisions of Railway Board, restricting disciplinary action against the member of Vigilance Organization without consultation of Central Vigilance Commission. After about more than four months the petitioners also issued charge-sheet to respondent No. 1 on 18th May, 2006 but thereafter abruptly revoked the order of suspension on 21st June, 2006 and also canceled the charge-sheet on 26th July, 2006. No reason is forthcoming for the aforesaid action taken by the petitioners. Simultaneously the petitioners passed order dated 23rd June, 2006 issued by the Divisional Railway Manager, Varanasi whereby the respondent No. 1 is said to have been transferred from Varansi Division to Izzatanger Division on administrative ground. The order dated 23rd June, 2006 refers to the letter dated 14th June, 2006 of Chief Commercial Manager. The said letters having been placed on record, petitioners have not stated anywhere as to what was the administrative ground on which the respondent No. 1 was transferred, though in the order itself the transfer has been effected on administrative ground. But in para 10 of the counter affidavit tiled before the Tribunal, the petitioners have stated that the transfer is in administrative interest as per administrative need but did not refer to the administrative grounds. From me attending circumstances and in the absence of any material placed by the petitioner, we are also, of the view that the order of transfer of respondent No. 1 from Varanasi Division to Izzatnagar Division is not bonafide but for co-lateral and extraneous reasons. The Tribunal alter considering the record and pleadings has also recorded a finding of fact noticing that the impugned order of transfer can neither be said to be in public interest nor in administrative exigency, it is true that normally the Court should not interfere with transfer unless it is found to be malafide or against me statutory provisions but in the present circumstances, in our view, the impugned order is vitiated on the ground of malice in law. The Apex Court in the case of H.M.T. Ltd. Rep. by its H.M.T. Ltd. rep. by its Deputy General Manager (HRM) and Another Vs. Mudappa and Others, explained the legal meaning of malice which is as under:

The Court, also explained the concept of legal malafide. By referring to Words and Phrases Legally Defined, 3rd Edn., London Butter worths, 1989, the Court stated;

The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an, action." This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse''. In other words, ''it is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is deliberate act in disregard of the rights of others''.

The Court also explained the concept of legal malafide in Smt. S.R. Venkataraman Vs. Union of India (UOI) and Another, and it was held thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally, out without just cause or excuse, or for want of reasonable or probable cause.

The aforesaid view has been followed and reiterated in State of Andhra Pradesh and Others Vs. Goverdhanlal Pitti, Chairman and M.D., B.P.L. Ltd. Vs. S.P. Gururaja and Others, Punjab State Electricity Board Ltd. v. Zora Singh and Ors. reported in AIR 2006 SC 132 , and R.S. Garg Vs. State of U.P. and Others, The judgments cited by counsel for the petitioner in to facts and circumstances of the case have no application in as much as in the case of Union of India and Ors. v. Janardhan Debanath and Anr. (Supra) the question for consideration before the Apex Court was whether an order of transfer on account of inefficiency or mis-behaviour is valid in view of the Fundamental Rule 15. Similarly, in S.S. Kourav and Ors. (supra) the Court held that a transfer would not be interfered with merely for the reason it has caused certain hardships to the employee concerned. The issue involved in the present case is different and therefore, none of the judgments cited by counsel for the petitioner lands support to his case.

In our view, the order of the Tribunal warrants no interference. The writ petition lacks merit and it is accordingly dismissed.