9911796707
TMI Blog2008 (12) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, 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 dated 22nd August, 2005 ; 19th October, 2005 and 28th 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 one, the Tribunal by its order dated 14th 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 germ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) dated 31st 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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