- (1.) The applicant Union of India through General Manager South Eastern Railway and other officials of the Railways have filed above application against the judgment and order of the learned Central Administrative Tribunal (hereinafter in short learned Tribunal) dated 3rd March 2008. The learned Tribunal by its aforesaid judgment has quashed order of transfer of the first Respondent who is a Doctor in Railway hospitals having found the said order of transfer being vitiated with mala fide. The short fact which has been categorically recorded by the learned Tribunal leading to filing of this application is as follows: At the end of December, 2007 while serving in the post of Deputy CMD in the South Eastern Railway in Calcutta, Respondent No.1 had been served with an order issued under the signature of Mr. A.K. Nandy, Deputy CPO (GAZ) for the Chief Personnel Officer by which he has been sought to be placed in the post of Senior DMO (Casualty), thereby he was shifted from the office of the CMO, South Eastern Railway. Immediately, thereafter, the applicant met the Medical Director Dr. Bikramaditya Swain and requested him to withdraw the said order by reason of the fact that applicant was a very reputed Doctor in the South Eastern Railway at Garden Reach holding prestigious position and the order of transfer to the post of Senior DMO (Casualty) which is less important than the earlier one and this order is also was causing humiliation to him as a medical professional. However, the MD on such request reacted with hostility and he threatened the applicant with dire consequences. The applicant had no other option but to obey the said order of posting and the applicant was directed to leave Calcutta for Annual Training Camp at Territorial Army Camp at Adra for 3 weeks. After completion of the said training he resumed at Garden Reach in the said post of Senior DMO (Casualty) but on the very next day the applicant was informed that an order of transfer was issued transferring him to Bhaga, Adra Division. By another order being Memo No. G/8/39C/530 dated 25.01.2008 issued under the signature of the Medical Director/GRC the applicant has been spared in the afternoon of 26th January 2008 to report at Adra. Another incumbent, Dr. D. Pal, Senior DMO Bhaga, Adra Division has been directed to move only on being relieved by the applicant after joining Bhaga, South Eastern Railway. Being aggrieved by the said order of transfer he approached the Tribunal contending that the said order of transfer is mala fide and further not for administrative necessity and this was issued only to harass him to accommodate a particular doctor. The allegations of mala fide has been particularised in the application before the Tribunal. The said application was contested by the applicants before us. It appears that allegation of mala fide and arbitrariness are directed against a number of persons so they were made parties in the application. Directions for filing affidavits were given by the learned Tribunal. In spite of direction other officials against whom allegation of mala fide were made, did not come forward to file any affidavit. A statement of reply was filed before the Tribunal on behalf of South Eastern Railways representing Union of India. The said reply countering allegations of the applicant is not in affidavit form but is merely a bare statement, however, verified simply by one A.K. Nandy Deputy Chief Personnel Officer (GAZ) South Eastern Railway on behalf of other respondents. In the said reply allegation contained in the petition has been denied and disputed. We find that another reply appearing to be exhaustive one was filed by the respondent Railway but it is not clear from the records why the same was filed. The learned Tribunal appears to have taken note of the statement and averment made in the first reply. The sum and substance of the allegations made in the application before us, by Railway that the learned Tribunal has unduly interfered with the order of Transfer, being an administrative one. It is said that the learned Tribunal failed to take note of the explanation given for issuing order of transfer. There has been no mala fide and in fact the allegation of mala fide is devoid of particulars moreover the same has not been proved. The learned Tribunal ought not to have accepted the allegations mechanically. On factual score it has been explained as to why transfer of the first respondent was necessary. One of the senior doctors viz. Dr. Pal who was at Bhaga Railway Hospital for long 20 years and making several representations for his shifting from Bhaga to Calcutta. In order to shift him the first respondent has to be chosen, as Doctors who are staying at Garden Reach are in specialised department, and they cannot be asked to go because there will be serious problem thereat. The department in which first respondent was working at Garden Reach is absolutely general in nature and he has to accommodate a senior person who has been for long 20 years at a particular place. The allegations of mala fide levelled against a number of officials has no nexus and no relation with the order of transfer.
(2.) Mr. Dipak Kumar Basu, Senior Advocate, Mr. Jayanta Banerjee, Ms. Soma Roychoudhuri, learned advocates highlighting facts mentioned in the application submits that allegations of mala fide have not been proved and the learned Tribunal has proceeded on the basis of inference merely. They submit that allegations of mala fide must be pleaded with particulars and be established with proof. It cannot be a matter of inference, but the learned Tribunal has quashed order of transfer merely on inference. The finding of the learned Tribunal is based on no evidence. If this judgment and order of the learned Tribunal is not set aside by this Court there will be serious administrative chaos as there is no Doctor at Bhaga because Dr. Paul who has been at Bhaga for long 20 years has been shifted. It is further submitted by them that the learned Tribunal has ignored the principle laid down by the Supreme Court which guides the exercise of power of the Tribunal and Court on the order of transfer on the ground of mala fide. They rely on the following decisions of the Supreme Court to support their submission viz. 2007(8) SCC 150, AIR 2004 SC 2165, AIR 2004 SC 1373 and 1993 SCC (1) 54. He submits further that the applicant without exhausting departmental remedy rushed the learned Tribunal.
(3.) Mr. Surojit Samanta learned advocate for the first respondent contends that the learned Tribunal on fact found that it is clear case of mala fide behind the order of transfer. This Court in exercise of power of judicial review should not interfere with fact findings. The persons against whom the allegations of mala fide were made did not come forward to file any affidavit to refute the allegations. The reply before the Tribunal was verified by Deputy Personnel Officer and his denial of allegations made against other official personally is of no value. Therefore the allegation of mala fide against the other person in view of non filing of the reply stands admitted on the principle of non-traversial.;