LT COL (RETD ) H S SHARMA Vs. A K PURI
LAWS(UTN)-2013-6-80
HIGH COURT OF UTTARAKHAND
Decided on June 27,2013

Lt Col (Retd ) H S Sharma Appellant
VERSUS
A K Puri Respondents

JUDGEMENT

BARIN GHOSH,.J. - (1.) IN the writ petition, petitioner has challenged two orders, namely, the orders dated 14th November, 2006 and 28th May, 2007. Petitioner has contended that all consequential orders passed subsequent to those orders be also declared illegal. The order dated 14th November, 2006 is a transfer order. By that order, petitioner, who was working in Hardwar Unit, was transferred to Tiruchy Unit in his existing grade and pay with immediate effect. By the order dated 28th May, 2007, disciplinary proceedings initiated against the petitioner were concluded, and thereby, petitioner was removed from service. In relation to the first order, it was contended that the same has been passed by an authority incompetent. It was next contended that the said order of transfer is a malafide order and, lastly, it was contended that there was no just reason for effecting the transfer. Petitioner himself has relied upon internal rules. Clause 8.1 thereof provides that cases of inter unit transfers of all executives are required to be referred to the corporate office for approval and orders will be issued by the Corporate Personnel Department in consultation with the unit management. It was contended that there was no proposal from Hardwar Unit for transferring the petitioner and, accordingly, question of giving approval thereto did never arise. The fact remains that the respondents have not been able to bring on record any document, which would suggest that the proposal to transfer the petitioner was mooted by Hadwar Unit, where the petitioner was working immediately before his transfer. However, what is required to be referred to the corporate office for approval is unit transfers of all executives and not a proposal or proposals to transfer to be mooted by the units before the corporate office. It has come on record that Tiruchy unit represented in 2005 that two of its Law Officers are going to retire in the year 2007 and, accordingly, they be permitted to fill up the anticipated vacancies. Similar representation was also made in the year 2006. Those representations were made to corporate office. It has also come on record that the corporate office felt in its wisdom that instead of initiating steps for recruitment, it would be appropriate to have one Law Officer from Hardwar Unit to be transferred to Tiruchy Unit. It, accordingly, effected such transfer. The next question is, whether, while effecting such transfer, the Corporate Personnel Department consulted the management of Hardwar Unit. There is no document, which would suggest such consultation. However, the fact remains that if such consultation was not made, a right vested in the unit management in terms of the internal rules was defeated and, accordingly, the unit management can be said to be aggrieved thereby and not the petitioner, who has been transferred. We are, therefore, unable to hold that the transfer being the subject matter of challenge was unauthorized. It has been contended that the transfer has been effected, inasmuch as, it was the petitioner, who had brought to the notice of the management various activities of various persons attached to the unit at Hardwar, which were detrimental to the employer and, accordingly, people having a say in the management of Hardwar Unit organized the transfer and, accordingly, the transfer is malafide. The fact remains that the petitioner gave an opinion as a lawyer in respect of a particular contract. This opinion was not acted upon. That is a management decision. It has not been shown that the petitioner acted as a whistle blower in respect of any matter pertaining to Hardwar Unit or any person working in Hardwar Unit. Therefore, the contention that the transfer was malafide is not accepted. The question is, whether there was really any necessity to effect the transfer. Some reasons, as above, have been given for effecting the transfer. The reason appears to be that since two Law Officers working in Tiruchy were to be retired in 2007, it was thought fit to transfer the petitioner in the month of November 2006, so that Tiruchy Unit does not suffer. This decision is a business decision. This decision may not be a very sound business decision, but it cannot be contended that in the facts and circumstances with which the management was apprised, no prudent person could take such a business decision. That being the situation, it is not within the purview of the writ court to say that the business decision was wrong and, accordingly the transfer was wrong. We, accordingly, find no force in the writ petition, in so far as the same relates to the order of transfer dated 14th November, 2006.
(2.) PETITIONER , who is appearing in person, submitted that there was requirement of two E2 grade officers at Tiruchy. He further submitted that at Hardwar, there was an officer, who was an E2 grade officer, whereas the petitioner was an E4 grade officer. It was contended that there was no just reason for not transferring the available E2 grade officer at Hardwar to Tiruchy. The fact remains that these officers were all attached to the Law Department. The fact remains that the officers in Tiruchy, who were to retire in 2007, were E6 grade officers. Certainly, no attempt was being made to substitute E6 grade officers by E2 grade officers. It is true that when there was a requirement of E2 grade officer at Tiruchy and there was an E2 grade officer available at Hardwar, it would have been convenient to have that E2 grade officer available at Hardwar transferred to Tiruchy, but it has been stated that the said officer was not transferred taking into account the fact that she was a lady and had a two -year -old child. This decision once again cannot be said to be such a decision, which could not be taken in the facts and circumstances of the case. The fact remains that the law officer is required to discharge the duties pertaining to law with which the employer is concerned. While the petitioner was transferred, he was transferred in his grade. It has not been brought on record that there is a policy decision of the employer that E2 grade officer will be responsible in relation to a particular type of work and an E4 grade officer will be responsible for other types of work. In other words, an E2 grade Law Officer may be doing the same work as that of an E4 grade Law Officer. We, therefore, find no scope of interference as E2 grade officer was not transferred, instead an E4 grade officer was transferred. Petitioner has contended that the available E2 grade officer at Hardwar joined in the year 1999, whereas the petitioner joined subsequent thereto. It was contended that, in those circumstances, the said E2 grade officer, who had joined before the petitioner had joined, should have been transferred. The rules framed by the employer do not suggest that the transfer when is to be effected for the need of the employer, the same must be based on the policy of first in first out.
(3.) THAT being the situation, we are unable to hold that the said E2 grade officer, having had joined before the petitioner joined at Hardwar Unit ought to have had been transferred and not the petitioner. Furthermore, there appears to be no substance in the challenge of the order of transfer dated 14th November, 2006. The fact remains that the transfer order was issued on 14th November, 2006 and the relieving order was issued on 15th November, 2006. Petitioner has contended and which contention has not been seriously denied by the employer that the relieving order was made over to the petitioner at 9.30 A.M. of 15th November, 2006. It appears that the petitioner made a representation, which was received by the employer on 17November, 2005. In that, he had indicated, for the reason recorded therein, that it would be appropriate, in the facts and circumstances of the case, to recall the order of transfer. A request to that effect was also made. The principal ground of the representation was that the petitioner, though, was asked to join other places other than Hardwar when he had appeared for interview, to which petitioner had emphatically refused, inasmuch as, family of the petitioner is settled at Hardwar. It was contended that the mother of the petitioner is of advanced -stage (70 years) and was suffering from major diseases. It was stated that father of the petitioner is of 73 years and he also needs personal supervision and care. It was also stated that the petitioners wife was not keeping well and needed frequent medical attention. It was stated that the son of the petitioner is a school going child and is also preparing for RIMC entrance examination, which is due in the month of December and the petitioner personally coaches him. It was also stated in the said representation that the work load at Hardwar Unit is so heavy that an ex legal employee had to be hired. It was stated that even another officer had to be brought to the Law Department from some other Department. It was contended that taking into all these facts into consideration, the order of transfer be recalled. This representation was made to the Head Office. Soon thereafter, petitioner wrote a letter to Hardwar Unit, and thereby, sought thirty days joining time in order to effectively hand over the charge. By reason of this holding out, his representation requesting for recalling of the transfer order, as it appears to us, came to be of no use. Despite having had sought for thirty days extended time, because in writing the extension was not granted, as it appears to us, petitioner did not join his transferred post. In the meantime, he went on applying for medical leave. Those were based on doctors certificates, some of which were issued by a hospital in Delhi and others principally by private doctors and a few, of course, by the hospital of the employer situate at Hardwar. On 24th January, 2007, Tiruchy Unit of the employer issued a charge -sheet to the petitioner. The allegation therein was that despite the petitioner having been transferred to Tiruchy Unit by the order dated 14th November, 2006 and despite he having been relieved by the Hardwar Unit on 15th November, 2006, he has not joined his transferred post. Subsequently, by a letter it was held out, in continuation of the said charge -sheet, that despite several requests made, petitioner did not join his transferred post and, accordingly, has disobeyed orders passed by his superiors. Petitioner gave a reply to the charge -sheet as well as to the said letter. Thereafter, an Inquiry Officer was appointed, who fixed the first sitting on 12thMarch, 2007, when the petitioner did not attend. On 13th April, 2007 the Inquiry Officer fixed the next date of sitting on 26th April, 2007 and asked the petitioner to attend the said sitting and, held out that in default, the sitting will be held ex parte. It was also indicated that it shall be open to the petitioner to appear before the Company Medical Officer to establish that he is so sick that he cannot participate in disciplinary proceedings. On 26th April, 2007, petitioner did not attend. The inquiry was, accordingly, held ex parte, whereupon an inquiry report was submitted to the Disciplinary Authority. A copy of the inquiry report was sent to the petitioner, to which the petitioner gave three responses. Those were considered, and thereupon, by the order impugned dated 28th May, 2007, petitioner has been removed from service. Petitioner contends that Tiruchy Unit was not, nor could be the Disciplinary Authority of the petitioner, inasmuch as, petitioner had not joined the Tiruchy Unit. We do not accept the said contention. In law, when the petitioner was transferred from Hardwar Unit to Tiruchy Unit and, in pursuance thereof, he was relieved by the Hardwar Unit, petitioner stood attached to Tiruchy Unit and, accordingly, Tiruchy Unit alone became entitled to exercise disciplinary power over the petitioner. It was also contended by the petitioner that disciplinary proceedings were initiated mala fide and only for the purpose of denying medical leave to the petitioner. The fact remains that despite having been transferred and despite the petitioner having not been accorded medical leave, petitioner did not join his duties at Tiruchy Unit until before the original charge -sheet was issued, despite several reminders were given to him to join his duties at Tiruchy Unit. It is being contended that the documents, in support of the charge -sheet, were not made available to the petitioner. However, in the writ petition, no attempt has been made to highlight even one prejudice suffered by the petitioner in consequence thereof. The order of transfer is not disputed. The order relieving the petitioner is not disputed. There is no assertion that before the charge -sheet was issued, petitioner had joined his duties. It is true that the petitioner applied for grant of medical leave, but the petitioner has not been able to show one single document, wherefrom it will be evident that he was accorded medical leave. Petitioner has not been able to show that rules governing his service conditions entailed grant of medical leave no sooner the petitioner had applied therefor. In law, as known to this Court, medical leave has to be accorded. On the ground that he was sick, while the petitioner could not join his duties prior to the date of issuance of charge -sheet, which was issued on 24th January, 2007 and, also subsequent thereto, despite several requests were made to the petitioner, but he applied to the Hardwar Unit of the employer on 29th January, 2007 to enable him to contest election. The object of the said letter was to maintain his lien in the office on the post held by him after he is elected. The fact remains that on that date, petitioner was not holding any post in Hardwar Unit of the employer and, accordingly, question of retaining any lien in any such post did not arise. Be that as it may, the fact remains that on 29th January, 2007, petitioner was fit to contest an election. Petitioner submitted that a person in Jail can seek election. It is not a question of right of a citizen to seek election. It is a question of, ascertaining in the backdrop of the facts and circumstances of the case how much credence can be given to the claim of the petitioner that he was so seriously ill that though he could travel to Delhi by bus or train from Hardwar to attend to his physical ailments, but he could not go to Tiruchy for the purpose of joining his post or for the purpose of establishing before the Company Doctor attached to the Company Hospital at Tiruchy that he is so sick that he cannot either join to serve or to participate in the disciplinary proceedings. Be that as it may, the fact remains that, in the backdrop of the materials as were available to the Inquiry Officer, reporting by the Inquiry Officer that the charges stand proved cannot be interfered with by the Court, inasmuch as, it is impossible for the Court to come to the conclusion that on the basis of informations, as were available to the Inquiry Officer, no prudent person could opine in the manner the Inquiry Officer has opined. That being the situation and such opinion having not been interfered with by the Disciplinary Authority and, on the contrary, Disciplinary Authority having acted on the basis of such opinion that the charges stand proved, there is no scope of interference in exercise of power of judicial review.;


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