- (1.) IN the writ petition, the petitioner, the Deputy General Manager (Turnkey Project) of the M/s. Hindusthan Cables Ltd, the respondent No. 2, a company and a Government of INdia undertaking and at present registered with the BIFR has challenged the order of transfer dated 16/18th July, 2008 transferring him from Kolkata to Hyderabad Unit primarily on the ground that it was mala fide. Prayer has been made in the application, having G.A.No.1327 of 2009, for a direction upon the respondent No.2 to allow him to avail himself of the Voluntary Retirement Scheme which was in vogue from 1st November, 2009 to 30th November, 2009, since on 23rd November, 2009 he had filed an application seeking voluntary retirement.
(2.) THE facts which require to be considered and which have been highlighted during argument are that on 18th July, 2007 the petitioner received a letter from the Personnel Department of the respondent No.2 requesting him to submit his graduation certificate on the ground that the said certificate was missing from his service file. THE petitioner by letter dated 20th July, 2007 requested the Personnel Department to let him know the reasons behind the request for submission of the said certificate even after his employment for the past sixteen years. On the same day, the petitioner was informed by the Personnel Department that it was pursuant to the letter dated 6th July, 2007 and the subsequent reminder dated 13th July, 2007 at the instance of the Vigilance Department. According to the petitioner, as he was being victimised and/or defamed amongst the officers and his colleagues, he addressed a letter dated 31st July, 2007 requesting the Vigilance Department to let him know the reasons as to why he was being asked to submit his graduation certificate. However, as the letter dated 31st July, 2007 failed to elicit any answer, a reminder was sent on 7th August, 2007 to the Deputy General Manager (Vigilance), the respondent No. 4. However, it too went unanswered. Incidentally, in the meantime, by letter dated 23rd July, 2007, the petitioner had submitted a copy of the graduation certificate. Now feeling frustrated, the petitioner filed an application dated 21st August, 2007 under the Right to Information Act, 2005 (for short the Act") with the Public Information Officer of the respondent No.2 reiterating the said request. Since no information was obtained, on 15th October, 2007 the petitioner applied before the First Appellate authority of the respondent No.2, but without any success. Aggrieved, on 1st February, 2008 the petitioner filed a second appeal before the Chief Information Commissioner, the Central Information Commission, New Delhi under section 19(3) of the Act. Pursuant thereto, the Central Information Commissioner by his order dated 4th June, 2008 held that the denial of information was unacceptable and the Public Information Officer of the respondent No.2 was directed to furnish the information. Consequent to the said order, the office of the Public Information Officer of the respondent No.2, by its letter dated 16th June, 2008 informed that a complaint was received against the petitioner on 27th June, 2007 alleging multiple irregularities/ allegations and in connection with one such allegation an investigation had been undertaken by the Vigilance Department and the Personnel Department had requested the petitioner to furnish a copy of the graduation certificate. According to the petitioner, under the guidelines of the Central Vigilance Commission any anonymous complaint must be filed and investigation has to be conducted within three months and a report has to be submitted. THEreafter, by letter dated 8th July, 2008 information was sought for on behalf of the petitioner from the Chief Vigilance Officer, the respondent No.3, regarding the name of the complainant, with regard to the steps taken pursuant to the complaint and whether the rules and regulations have been followed or not. According to the petitioner he came to know from a reliable source that there had been a group of officers in the office of the respondent No.2 who had taken animosity against him because of his honesty and sincerity in discharging his official duties. THE respondent No.3 was also involved in the said unholy nexus of officers plotting against him and in order harass him a consorted effort was made by all such vindictive officers to remove a the copy of his graduation certificate from the petitioner's service record through surreptitious means to create a false case against him so that his employment with the respondent No.2 could be put into jeopardy. THEreafter on or about 21st July, 2008 the petitioner was handed over the impugned order of transfer dated 16th/18th July, 2008. Mr. Soumya Majumder, learned Advocate for the petitioner, reiterating the statements in the writ petition has submitted that it has not been rebutted in the affidavit-in-opposition of the respondents that the Hyderabad unit of the respondent No.2 where the petitioner had been transferred, is not functioning. Submission is that the respondents in their affidavits have not annexed documents in support of administrative exigencies resulting in passing the order of transfer. That apart, on 8th July, 2008 a letter was written on behalf of the petitioner to the respondent No.3 regarding the complaints and soon thereafter, the transfer order dated 16th/18th July, 2008 transferring the petitioner from Kolkata to Hyderabad was issued. According to the petitioner since the impugned order does not record that it was issued on the ground of exigency and the letter dated 8th July, 2008 was closely followed by the impugned order of transfer dated 16th/18th July, 2008, the impugned order of transfer is mala fide. Mr. Bhattacharya and Mr. Gangopadhaya, learned Advocates appearing for the respondents have submitted that there is no averment in the petition about the persons who are conspiring against the petitioners. The petitioner has merely speculated that he has been made a victim. Moreover, the intention of transfer was to provide the petitioner a place where he would be allotted duties and thus it was not a punitive transfer. That the order of transfer was hot punitive is evident since the designation of the petitioner was not changed and existing scale of pay was maintained. Submission has been made that mere absence of a few words that it was in public interest does not make the order of transfer invalid. On a query, as to why the respondents failed to furnish before the second appellate authority the Office Memorandum dated 14th September, 2005 issued by the Central Vigilance Commissioner whereby it was directed that the identity of the complainant was to be kept secret, it has been fairly submitted that it should have been brought to the notice of the said authority.
(3.) LEARNED Advocates for the parties have relied on several judgments which shall be dealt with appropriately in this judgment. It is seen from facts that on 18th July, 2007, the petitioner was directed to furnish a copy of the graduation certificate. On 20th July, 2007 the petitioner requested the respondent No.2 to let him know the reasons of such request. On the same day he was informed that it was at the instance of the Vigilance Department. On 31st July, 2007 and on 7th August, 2007 the petitioner requested the authorities to let him know the reasons for such submission which met with no success. Aggrieved on 21st August, 2007 he filed an application under the Right to Information Act, 2005 which met with no result. Thereafter, an application was made before the appellate authority. It met with the same fate. A second appeal was preferred. The second appellate authority by its order dated 4th June, 2008 directed the Chief Information Officer of the respondent No. 2 to furnish the information. Consequently, the respondent No.2 by its letter dated 16th June, 2008 intimated that it was pursuant to a complaint dated 27th June, 2007, as already noted. Thereafter, by letter dated 8th July, 2008 issued on behalf of the petitioner, the Chief Vigilance Officer, the respondent No.3, was requested to let him know the steps taken pursuant to the receipt of the complaint and whether rules have been followed or not. Soon thereafter, the petitioner received the order dated 16th/ 18th July, 2008 transferring him from Kolkata to Hyderabad unit. The question is whether the impugned order transferring the petitioner from Kolkata to Hyderabad is fraught with malice. In this regard the order dated 4th June, 2008 passed by the second appellate authority, some of the paragraphs in the petition and in the affidavit-in-opposition should be closely examined. It is pertinent to note the second appellate authority in its order dated 4th June, 2008 had made significant observations while dealing with the facts which are as follows: "4. The CPIO has refused to provide the information under section 8(1) (h) of the Act on the ground that the disclosure of information would impede the process of investigation. He has however not indicated the specific grounds for initiation of such investigation." (Emphasis supplied) Thereafter its "Decision" is as under: "5. The CPIO has not indicated as to how the disclosure of such information as the purpose or the reason for obtaining a certificate would interfere with ongoing investigation, if any. The denial of information under section 8(1) (h) of the Act is therefore unacceptable. The CPIO is, therefore, directed to furnish the information asked for within 15 days from the date of issue of this decision." (Emphasis supplied) ;