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TMI Blog2013 (1) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No. 4 who nourishes ill-will against applicant Shrawan Kumar Bansal. 4. Shri Manish Verma, Learned Counsel for the applicant vehemently argued that the applicant has been sent on the first posting to Bhopal zone where he joined on 20th May, 2011 (Annexure-A/1). As per the transfer policy applicable to Group-A officers, minimum tenure at Class-C station (Bhopal) is 2 years. The transfer order of the applicant is an outcome of mala fide on the part of respondent No. 4 who wanted the applicant to extend undue favour to one Gutkha manufacturer by installing high speed Gutkha Pouch Packing Machine by avoiding physical verification of the pouch packing machine whereas, the applicant was not inclined to take any decision without due examination, diligence and appropriate precautionary steps to protect the Government revenue in accordance with the Pan Masala Packing Machines Rules, 2008 (for short 'the Rules, 2008'). The applicant has also come to know that show cause notices are being issued on the high speed Gutkha pouch packing machines by the other revenue oriented officers in other places in India also. New machine to be installed by M/s. Kaipan Panmasala Pvt. Ltd., i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has unnecessarily dragged the name of Shri M.C. Thakur, Member, C.B.E. & C. in the present controversy which is belied from the call details as there is no incoming call from the board office on 2nd March, 2012 as claimed by respondent No. 4 in his affidavit. Since respondent No. 4 has admitted on affidavit with regard to his conversation with representatives of M/s. Kaipan as also with the applicant, the contention of the applicant is established that respondent No. 4 was instructing him to favour the private Gutkha manufacturer in immediate and prompt installation of high speed Gutkha packing machine without verification. On account of pressure of respondent No. 4, machine was provisionally installed by the applicant on 5th March, 2012, however, the applicant requested the Commissioner, Customs and Central Excise to provide Chartered Engineer for ascertaining manufacturing speed and production capacity of the machine in the interest of the revenue, however, respondent No. 4 sought explanation from the applicant for the above act though request was made to the Commissioner. So far as the other allegation that the applicant has posted certain departmental information with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 (3) M.P.L.J. 162] and Rameshwar Prasad (VI) v. Union of India [(2006) 2 SCC 1]. 5. Shri S.A. Dharmadhikari, learned counsel appearing on behalf of respondents No. 1 to 3 would argue that the applicant's transfer from Bhopal Zone to Cochin Zone is on administrative ground and in public interest and the same has been issued with the approval of the Government. There is no allegation of mala fide against the C.B.E. & C. or Union Finance Minister and wild allegations have been made against respondent No. 4. Since respondent No. 4 in compliance of the directions of the C.B.E. & C. ascertained through his Commissioner the status of pending IPRs of Group-A officers of the zone and found that none of the applicant's IPR has been accepted as he did not file IPRs of his previous department and he is also not giving reasons for keeping huge cash of Rs. 7 lakhs declared in his return of assets and liabilities on first appointment and he asked the applicant to submit the desired documents for acceptance of his IPRs, the applicant nourishes ill-will towards respondent No. 3/4. He did not respond to the communication of Annexure-R/2 and did not file IPRs for the year 2010 to avoid furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid action before the Commissioner vide Annexure-R/27. The applicant was also reprimanded by respondent No. 3 as also the then Commissioner Harmeet Singh for harassing the said manufacturer. High Speed Gutkha Packaging Machines were installed by M/s. Kaipan after due permission on 2-12-2011 when the applicant was on leave, however, the applicant started harassing the said manufacturer after he joined his duties and memos were sent to the Range Superintendent to ascertain speed of production of Gutkha per minute per machine though there is no provision for determination of speed of Pan Masala Packaging Machine under the Rules, 2008. Subsequent conduct of the applicant also speaks about the harassment by the applicant to the said M/s. Kaipan, as would be evident from the documents of Annexure-R/42 to R/45. 9. M/s. Kaipan was to install 5 new packaging machines in the beginning of March, however, on account of illegal acts of omission and commission on the part of the applicant, the installation was delayed by 5 days which resulted in pecuniary loss of Rs. 25,85,000/- to M/s. Kaipan and the said manufacturer submitted a written complaint against the applicant for harassment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Advocate assisted by Shri Satish Dawre, Advocate appearing on behalf of respondent No. 4 advancing similar arguments emphasized on conduct of the applicant in not submitting IPRs filed by him in his previous department i.e. Post and Telecom Accounts and Finance Service where he worked from 2002 - 2009 despite persuasion and advise for the same by the higher officers and started nourishing animosity towards respondent No. 4 for pursuing the said matter. The aforesaid failure of the applicant is in violation of Rule 18 of the Conduct Rules. However, respondent No. 4 did not report this failure to the Board hoping that the applicant shall submit IPRs as required to clear the doubtful position created by the 'proforma filled by him showing his assets and liabilities, as respondent No. 4 did not have any bias against the applicant. On 1-3-2012, M/s. Kaipan requested the applicant to install his machines which were likely to be unloaded on 2nd March, 2012, however, the said application was treated to be an application for unloading instead of application for installation as per rules. In these factual background, respondent No. 4 was apprised by the representatives of M/s. Kaip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the applicant is in fact normal behaviour of an officer of the rank of Chief Commissioner who is absolutely prompt and conscious in alleviating grievance of the assessee, if the same can be done or is required to be done under the rules and the law and the same only shows that the answering respondent's effort was to alleviate the grievance of M/s. Kaipan in that respect. The act of the applicant in interacting with media, issuing press releases and posting information of the department in the facebook is in violation of the Conduct Rules as well as instructions issued by the Board from time to time which constitute misconduct. The applicant, instead of submitting his explanation for interacting with media, submitted in his reply that respondent No. 4 should directly deal with media if it was so necessary though excerpts of newspaper enclosed as Annexure-R/12 to R/16 of the affidavit clearly reveals his misconduct. The applicant's behaviour during the relevant period was erratic and inconsistent with the Manual of Office Procedure and Conduct Rules. He was very much aware that he may be transferred on account of anointing a person as Assistant Commissioner for a day or leak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer. To establish the allegation of mala fide, the applicant has detailed the background in which the said M/s. Kaipan Pan Masala approached respondent No. 4 to prevail upon the applicant to ensure prompt installation of high speed packaging machines between 2nd March, 2012 and 5th March, 2012 when respondent No. 3/4 was in eastern UP. The applicant has also filed transcript of the conversation with respondent No. 4 as also with the Joint Commissioner which he had clandestine recorded. The details of conversation filed as Annexure-RJ/2 as well as conversation recorded by the applicant have not been disputed by respondent No. 4. The applicant was posted as Assistant Commissioner at Bhopal at the relevant time. As per the hierarchy of the department, respondent No. 4 is the head of the Bhopal Zone and his immediate subordinate happens to be the Commissioners of the different zones including the Bhopal zone whereas, the Joint Commissioner is direct subordinate of the Commissioner and the applicant as an Assistant Commissioner works under the Joint Commissioner. 14. Admittedly, the representatives of M/s. Kaipan directly contacted complained with respondent No. 4 who was located ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eracting with press on 2nd February, 2012 and harassment of Gutkha manufacturer against the rules. Respondent No. 4 has also pointed out towards insubordination of the applicant as also towards certain other acts by which he ordered sealing of 5 machines of M/s. Kaipan on 29-7-2011 which was against the provisions of the rules. It has been further alleged that harassment of the applicant to the said Gutkha manufacturer continued thereafter also. However, no action has been taken against the applicant for his serious misconduct mentioned in the complaint of Annexure-R/56 and instead respondent No. 4 has recommended only transfer of the applicant from Bhopal Zone on administrative ground with a suggestion that they may be assigned the task of not having any executive work. Respondent No. 4 while recommending transfer of Mrs. Pratima Bansal, wife of Mr. S.K. Bansal has also alleged that she is misusing her powers and rejecting the genuine claims of the exporters against the circulars and clarifications. 16. The official respondents in their zeal to justify the impugned transfer order, in their voluminous reply, have made very serious allegations of misconduct against the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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." 18. In the instant case also, the official respondents in their voluminous reply have made series of allegations of serious misconduct against the applicant as detailed in the foregoing paragraphs, however, no departmental proceeding or vigilance inquiry has been ordered against the applicant. Respondent No. 4 in his reply to the OA as also in his complaint dated 8-5-2012 reiterated various allegations against the applicant which constitute misconduct not only against the applicant but against his wife Mrs. Pratima Bansal also the applicant of O.A. No. 531/2012, however, he has only recommended their transfer from Bhopa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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