2012 (3) TMI 48 - Tri - Indian Laws

Difference of opinion of members of Tribunal - Plea filed by applicant being Accountant Member of the ITAT, Chandigarh for invalidation of the transfer order by averring that it is punitive in character alleged difference of opinion in a judicial matter with private Respondent No.4, who made complaint against him Held that - In present case, applicant retained draft judgement of private Respondent No.4 for more than one month, which does not appear to be appropriate and then returned it with contrary view. Applicant must have followed the procedure to be adopted by a Member who wishes to dissent from a draft judgment thus, applicant cannot himself be said to be free from blame. Further, we have not been persuaded to fault the wisdom exercised by the collegium in the matter of making a recommendation for transfer of the applicant from Chandigarh Bench of ITAT to the Rajkot Bench. Therefore, O.A. is held to be denuded of merit appeal dismissed.

Issues Involved:
1. Validity of the transfer order.
2. Allegations of malafides and procedural impropriety.
3. Applicability of guidelines and judicial precedents on transfers.
4. Requirement of a hearing before transfer.

Issue-wise Detailed Analysis:

1. Validity of the transfer order:
The applicant, an Accountant Member of the ITAT, was transferred from the Chandigarh Bench to the Rajkot Bench. The transfer was indicated to be "in public interest." The applicant contested this transfer, claiming it was punitive due to a difference of opinion in a judicial matter with a private respondent who complained against him. The Tribunal emphasized that transfer is an incident of public service and should not be interfered with unless there is evidence of perversity, extreme arbitrariness, or bias.

2. Allegations of malafides and procedural impropriety:
The applicant alleged that the transfer was punitive and based on a complaint by a private respondent. The official respondents and the private respondent denied these allegations. The Tribunal noted that while the applicant found fault with the involvement of the Vice President of the Tribunal at Delhi in the collegium, there was no indication of bias from the President or the other Vice President who recommended the transfer. The Tribunal found no evidence to support the applicant's claims of malafides.

3. Applicability of guidelines and judicial precedents on transfers:
The applicant argued that the transfer order did not comply with the guidelines laid down by the Hon'ble Apex Court in AJAY GANDHI & ANR. VS. B.SINGH & ORS. The Tribunal referred to judicial precedents, including a Division Bench decision in RAJINDER SINGH VS. STATE OF PUNJAB & OTHERS, which held that the power of transfer by the employer cannot be declared illegal merely because it is based on a complaint and without a hearing. The Tribunal emphasized that transfer is a part of public service and should not be interfered with unless there are strong grounds of illegality or malafides.

4. Requirement of a hearing before transfer:
The applicant contended that he should have been granted a hearing before the transfer. The Tribunal referred to the decision in RAJINDER SINGH, which stated that an opportunity of hearing is not required in transfer matters unless the transfer is disciplinary in nature. The Tribunal concluded that the applicant's transfer did not necessitate a hearing as it was not a disciplinary action but a routine administrative decision.

Conclusion:
The Tribunal found no merit in the applicant's claims and upheld the transfer order. It emphasized the need for maintaining an appropriate ambience in the ITAT and suggested that the competent authority consider further measures to ensure this. The O.A. was dismissed, and no order as to costs was made.

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