Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7308 OF 2008
(Arising out of SLP (Civil) No. 3516 of 2007)
Somesh Tiwari …. Appellant
Versus
Union of India and others ….
Respondents
J U D G M E N T
S.B. SINHA, J.
Leave granted.
1. A short but an interesting question that arises for consideration in this
appeal is as to whether the High Court while quashing an order of transfer
passed against the appellant was correct in directing that he would not be
entitled to salary for the period commencing 15 days after the modified
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order of transfer to Ahmedabad was passed till the date he again joined his
duties at the original place.
2. The basic fact of the matter is not in dispute. Appellant is an officer
of Indian Revenue Service. He was posted as a Deputy Commissioner of
Central Excise at Bhopal.
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
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against him on or about 22 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.
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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.
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No. 897 of 2005. By an order dated 27 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 :-
“4. Accordingly, we direct the Respondent No.2
to consider and decide the representation of the
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applicant dated 29 August, 2005 (Annexure A-5)
and take a decision by passing a speaking, detailed
and reasoned order within a period of 4 weeks
from the date of receipt of a copy of this order.
Till the decision is taken by the Respondent No.2
on the representation of the applicant, he will not
be disturbed from the present place of posting.
The learned counsel for the applicant is directed to
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send a copy of this order as well as the copy of the
petition to the Respondent No.2 immediately.”
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8. By an order dated 19 October, 2005 the said representation was
rejected.
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9. Another representation was filed by the appellant on or about 25
October, 2005, stating :-
“I don’t know whether any/some adverse report
(reports) were sent by this Commissionerate or by
Chief Commissioner office because if there were
complaints against me, those were neither
communicated to me nor I was given any
opportunity to hear. It would not be surprising if
any adverse report/reports were sent against me in
such atmosphere of conspiracy against me.
Hence it is my humble pray that if any
report/reports were sent by this office of Chief
Commissioner office or Board or other forum,
concerned file be shown to me along with supply
of documents (i.e. copy of the complaints,
proceedings of enquiry, enquiry report etc.). If no
enquiry or complaint, that also be intimated to me
though the letter so that I can prove my innocence
before the Hon’ble Court (in case board turns
down my representation inspite of direction given
by CAT Jabalpur) or before 28.10.2005 which is
earlier.”
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10. As the said representation was rejected by an order dated 27
October, 2005, appellant filed another O.A. before the Central
Administrative Tribunal, Jabalpur, being O.A. No.1042 of 2005.
11. Indisputably during the pendency of the said O.A., respondents while
considering the matter of promotion, posting and transfer in the grade of
the Assistant Commissioner of Customs and Central Excise, passed order
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dated 28 December, 2005 inter alia transferring/posting on administrative
consideration, transferred the appellant from Shillong to Ahmedabad. An
application for amendment of the O.A. was thereafter filed, which was
allowed.
12. The orders under challenge before the Tribunal were, thus, the orders
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dated 22 August, 2005 ; 19 October, 2005 and 28 December, 2005.
13. Inter alia on the premise that the appellant had not reported at
Ahmedabad and furthermore that the order of transfer was an administrative
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one, the Tribunal by its order dated 14 March, 2006 held :-
“19. On perusal of the records, I find that the
order of transfer is on administrative
exigencies. The applicant has All India
transfer liability. An order of transfer
should normally be eschewed and should
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not be countenanced by the Tribunal as
though they are Appellate Authorities over
such orders, which could assess the niceties
of the administrative needs and
requirements of the station concerned. This
is for the reason that Tribunals cannot
substitute their own decisions in the matter
of transfer for the of (sic) competent
authorities of the State and even allegations
of malafide when made must be such as to
inspire confidence in the court or as based
on concrete materials and ought not to be
entertained on the more making of its or on
consideration borne out of conjectures or
surmises and except for strong and
convincing reasons, no interference could
ordinarily be made an order of transfer.
20. Since the applicant’s request has been
considered and he has been transferred from
Shillong to Ahmedabad, even then the
applicant has not reported for duty at
Ahmedabad and he is still challenging the
order of transfer (A-1). The applicant has
been transferred under the modified order
and the earlier orders merge with the present
modified order. The applicant did not honor
the impugned modified order of transfer.
Now he is asking for recasting of the
original order dated 22.8.2005 including the
modified order. I find that there are no
allegations against any impugned order of
transfer is an administrative order. The
authorities can extract service of the
applicant wherever they want. When the
action of the Respondents is within their
purview, I am not inclined to interfere with
the impugned orders.
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21. I considered the averments made in the
pleadings and also the arguments of the
learned counsel for the parties. I am of the
considered view that there is no illegality or
irregularity committed by the Respondents
while passing the impugned orders. They
have exercised their powers within their
purview. The Tribunal need not interfere
with the impugned orders. The applicant
has not made out a case for grant of reliefs
and accordingly the OA is dismissed. No
costs.”
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
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Ahmedabad, the High Court passed an interim order on 17 April, 2006,
directing :-
“since the transfer of the petitioner to Ahmedabad
is sub-judice in this Court, for the time being
disciplinary authority will not take any
disciplinary action against the petitioner.”
15. The High Court by reason of the impugned judgment and order dated
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25 September, 2006 while opining that the order of transfer could not be
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passed on the basis of an anonymous complaint, which on enquiry having
been found to be incorrect, held :-
“Though, when individually considered, the
impact of the incorrect mention of the fact that the
petitioner belongs to Madhya Pradesh and does
not know English in the order rejecting the
Petitioner’s representation, except for indicating
the extent of absence of application of mind by the
respondents, is not fatal. However, the transfer of
the petitioner on the ground that he apparently
gave an impression that he worked on caste-biased
ideology, in spite of the fact of recording a finding
in the negative in the discreet inquiry conducted
into the anonymous complaint would shock the
conscience of any reasonable man to say the
least.”
It was furthermore opined that as the allegations of having a caste-
bias were not found to be true, the order of transfer having been issued by
way of punishment was unjustified, stating :-
“It is no doubt true that the petitioner or any other
member of an All India Service can be transferred
to any place (sic) country and is obliged and duty
bound to comply with the same, but to transfer
him on the ground that some unidentified
colleague feels that he is a caste is (sic), in other
words only because he belongs to a particular
caste, is in violation of his fundamental rights
under Article 14, 15(1) and 16(2) of the
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Constitution of India and is also stigmatic as it
would label and identify him, without adjudication
or justification, as a person who works on caste-
bias for all times to come and would make him
vulnerable to all and any such further anonymous
complaints as whatever place he is posted and
could be used as a convenient tool to take any
action against him or move him out as and when
desired, by any person. Such an action also makes
serious in roads into the personal rights of the
petitioner as an individual as well as his
fundamental rights of the petitioner as an
individual as well as his fundamental rights, as the
petitioner has apparently been transferred for
having a working association with certain
colleagues who happen to belong to his caste and
which apparently has not found favour with the
respondents, thereby giving a clear message to the
petitioner to abstain from having any such relation
with persons belonging to his own caste in future.
The impugned order, if permitted to stand, would
amount to opening a Pandora’s box and would let
loose the very evil that the Constitution seeks to
contain and eradicate.”
16. While striking down the order of transfer by invoking the principle of
‘Wednesburry Unreasonableness’, it was directed :-
“25. At this stage, it is to be noted that the
petitioner in spite of being transferred from
Bhopal to Ahmedabad has not gone and joined his
place of posting till date and that there is an
interim order of this Court preventing the
respondents from taking any disciplinary action
against the petitioner for not joining his place of
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posting at Ahmedabad. Under the circumstances
while we quash the order of transfer of the
petitioner from Bhopal to Ahmedabad we feel
constrained to direct that the petitioner shall not be
entitled to salary for the period commencing
fifteen days after the modified order of transfer to
Ahmedabad i.e. the order dated 28.12.2005 till the
date he again joins duties at Bhopal.”
17. Mr. B.S. Rajesh Agrajit, learned counsel appearing on behalf of the
appellant, submitted that keeping in view the fact that the High Court
despite arriving at a finding that the order of transfer was mala fide and an
abuse of the process of the court, could not have directed that he be not paid
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his salary for the period commencing 15 days after the modified order
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dated 28 December, 2005 was passed till he joined the post, and thus the
impugned judgment of the High Court is wholly unsustainable as no reason
has been assigned in support thereof.
18. Mr. Wasim A. Qadri, learned counsel appearing on behalf of the
Union of India, however, took us through the entire records and submitted
that as despite the fact that no order of stay was granted by the Tribunal, the
appellant did not join his post at Ahmedabad, the High Court was correct in
its view for invoking the principle of ‘no work no pay’. It was argued that
an order of transfer, unless set aside, remains valid in law and in that view
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of the matter, it was obligatory on the part of the appellant to join his post at
Ahmedabad so as to allow the respondents to take work from him.
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.
21. An enquiry was initiated against the appellant in terms of the
allegations contained in an anonymous letter. Having regard to the
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directives of the Central Vigilance Commission, no enquiry could have been
initiated against him but it is beyond any doubt or dispute that in the said
enquiry, the allegations were found to be untrue.
Despite the same not only an order of transfer was passed but to a
station, which, according to the respondents themselves, was ‘harsh’.
The competent authority of appellant did not consider his initial
representation. Admittedly an order of stay was passed by the Central
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Administrative Tribunal while disposing of O.A. No. 897 of 2005 dated 27
September, 2005.
By reason of the said order passed by the Central Administrative
Tribunal, it was obligatory on the part of the respondents to dispose of his
representation. When it was rejected, he filed a fresh Original Application.
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
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justice to both the parties, the court was required to consider the conduct of
both the parties.
Respondents knew that the matter was pending before the Tribunal.
They did not approach the Tribunal to obtain leave for passing the second
order of transfer. They passed an order of transfer while considering the
cases of promotion and transfer of a large number of officers. The order of
transfer suffered from a total non application of mind in so far as it
proceeded on the premise that the appellant had already joined his post at
Shillong. Even it was not stated that the said order of transfer was being
passed in modification of the earlier order of transfer or upon
reconsideration of the matter afresh on humantarian ground or otherwise.
We may place on record an extract from the note sheet of Member (P&V)
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dated 31 October, 2005 which reads as under :-
“AC(P) (i.e. petitioner) has tried to fix
responsibility on some superintendents for
loss/closure of some files about investigations
against assessees, those superintendents, who
happened to belong to SC/ST category on being
thus pressured, has complained to the police and
other agencies alleging harassment of backward
classes by Sh. Somesh Tiwari, a Brahmim, these
complaints were found to be baseless and the
police had not pursued the matter. Having failed
at the local level it is possible that these officers
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had lodged the complaint at Delhi which resulted
Sh. Tiwari’s transfer. Sh. Tiwari is an honest and
well intentioned officer….. It is proposed to give
him less harsh posting.”
(Emphasis supplied)
23. Removal of the appellant from Bhopal to a place which is ‘less harsh’
was thus recommended, which had evidently been acted upon. It is thus
demonstrable that ‘Shillong’ was considered to be a harsh posting.
24. For appreciating the effect of such an order, we may also notice the
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order dated 19 October, 2005 which has been reproduced by the High
Court in its impugned judgment, the relevant portion whereof reads thus :-
“2. As per Para 9.1 of the New Transfer Policy,
Government may, if necessary in public interest,
transfer or post any officer to any station or post.
Para 9.2 of the policy stipulates that, an officer
against whom the CVC has recommended
initiation of vigilance proceedings, should not
normally be posted or remain posted at the station
where the cause of the vigilance proceedings
originated. He shall also not be posted on a
‘sensitive’ charge. This restriction will remain in
operation till such time the vigilance matter is not
closed.
3. In the case of Shri Tiwari, he belongs to
Madhya Pradesh and on enquiry into complaint of
working on caste-biased ideology he was to be
over-dependent upon a set of officers, apparently
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giving an impression that he (is) working on caste-
biased ideology. These circumstances have
necessitated his transfer from Bhopal Central
Excise Commissionerate to Shillong
Commissionerate.”
25. No vigilance enquiry was initiated against him. The order of transfer
was passed on material which was not existent. The order, therefore, not
only suffers from total non application of mind on the part of authorities of
respondent No.1, but also suffers from malice in law.
26. The High Court while exercising its jurisdiction under Article 226 of
the Constitution of India must consider the fact of each case. Mechanical
application of the normal rule “no work no pay” may in a case of this nature,
be found to be wholly unjust. No absolute proposition of law in this behalf
can be laid down.
27. This Court in Commissioner, Karnataka Housing Board v. C.
Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-
“32. The matter can be looked at from another
angle also. It is true that while granting a relief in
favour of a party, the Court must consider the
relevant provisions of law and issue appropriate
directions keeping in view such provisions. There
may, however, be cases where on the facts and in
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the circumstances, the Court may issue necessary
directions in the larger interest of justice keeping
in view the principles of justice, equity and good
conscience. Take a case, where ex facie injustice
has been meted out to an employee. In spite of the
fact that he is entitled to certain benefits, they had
not been given to him. His representations have
been illegally and unjustifiably turned down. He
finally approaches a Court of Law. The Court is
convinced that gross injustice has been done to
him and he was wrongfully, unfairly and with
oblique motive deprived of those benefits. The
Court, in the circumstances, directs the Authority
to extend all benefits which he would have
obtained had he not been illegally deprived of
them. Is it open to the Authorities in such case to
urge that as he has not worked (but held to be
illegally deprived), he would not be granted the
benefits? Upholding of such plea would amount to
allowing a party to take undue advantage of his
own wrong. It would perpetrate injustice rather
than doing justice to the person wronged.
34. We are conscious and mindful that even in
absence of statutory provision, normal rule is 'no
work no pay'. In appropriate cases, however, a
Court of Law may, nay must, take into account all
the facts in their entirety and pass an appropriate
order in consonance with law. The Court, in a
given case, may hold that the person was willing
to work but was illegally and unlawfully not
allowed to do so. The Court may in the
circumstances, direct the Authority to grant him all
benefits considering 'as if he had worked'. It,
therefore, cannot be contended as an absolute
proposition of law that no direction of payment of
consequential benefits can be granted by a Court
of Law and if such directions are issued by a
Court, the Authority can ignore them even if they
had been finally confirmed by the Apex Court of
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the country (as has been done in the present case).
The bald contention of the appellant-Board,
therefore, has no substance and must be rejected.”
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
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justice would be subserved if during the period from 28 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/-.
………………………..J.
( S.B. SINHA )
………………………..J.
( CYRIAC JOESPH )
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New Delhi
December 16, 2008
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