2013 (1) TMI 328 - Tri - Central Excise

Appeal against Transfer Order Assessee is an Assistant commissioner posted in Bhopal Zone - Minimum tenure not be less than 2 years - Applicant has been transferred from Bhopal zone to Cochin zone in less than 2 years along with his wife, who is also Assistant Commissioner - Transfer order was outcome of mala fide on the part of respondent No. 4 who desired that the applicant should give undue favour Gutkha manufacture in installing high speed Gutkha pouch packing machine avoiding physical verification of the actual running capacity of the pouch packaging machine Allegations - the applicant started harassing Gutkha manufacturer since the day he joined at Bhopal in an effort to extract undue benefit from the Gutkha manufacturer - Misconduct of insubordination - Anointing an assessee as Assistant Commissioner for a day - Interacting with electronic and print media against the rules which is in itself misconduct under the Conduct Rules - No departmental proceeding or vigilance inquiry has been ordered against the applicant Held that - The applicants have been transferred before the expiry of minimum tenure of 2 years at Bhopal at the instance of respondent No. 4 and the impugned transfer order in the garb of administrative exigency has been passed with an intention to punish the applicant for the alleged insubordination. Where the applicant is able to prima facie show that the transfer is result of mala fide and the same has been resorted to in lieu of punishment, the same is liable to be set aside being wholly illegal The respondents were not justified in transferring the applicant for the alleged serious misconduct as per recommendations of respondent No. 4 as a measure of punishment in view of the fact that no departmental proceeding or vigilance inquiry has been ordered against the applicant. In favour of applicant

Summary

Issues Involved:
1. Allegations of mala fide transfer.
2. Compliance with transfer policy.
3. Allegations of misconduct and insubordination.
4. Administrative grounds for transfer.
5. Legal implications of transfer as punishment.

Issue-wise Detailed Analysis:

1. Allegations of mala fide transfer:
The applicants, Assistant Commissioners at Bhopal, contested their transfer to Cochin, alleging it was driven by mala fide intentions of respondent No. 4. The applicants argued that the transfer was influenced by respondent No. 4, who allegedly pressured the applicant to favor a Gutkha manufacturer by installing high-speed Gutkha pouch packing machines without due verification. The applicants provided call details and transcripts to support their claim, showing respondent No. 4's direct involvement and pressure.

2. Compliance with transfer policy:
The applicants highlighted that their transfer violated the transfer policy for Group-A officers, which stipulates a minimum tenure of two years at a Class-C station like Bhopal. They joined in May 2011, and the transfer order was issued in June 2012, well before completing the minimum tenure.

3. Allegations of misconduct and insubordination:
The respondents accused the applicants of various misconducts, including not filing IPRs, keeping unaccounted cash, and harassing the Gutkha manufacturer. Specific incidents cited included appointing a service provider as Assistant Commissioner for a day, interacting with the media, and posting departmental information on Facebook. However, no departmental proceedings or vigilance inquiries were initiated against the applicants for these allegations.

4. Administrative grounds for transfer:
The respondents justified the transfer on administrative grounds and public interest, claiming it was approved by the Government. They argued that respondent No. 4's actions were in compliance with C.B.E. & C. directions and aimed at resolving grievances of the assessee (Gutkha manufacturer).

5. Legal implications of transfer as punishment:
The Tribunal found that the transfer order was issued as a punitive measure without conducting any inquiry, which is against legal principles. The Tribunal referenced the Supreme Court's judgment in Somesh Tiwari v. Union of India, emphasizing that a transfer order passed in lieu of punishment without inquiry is illegal.

Conclusion:
The Tribunal concluded that the transfer order was influenced by mala fide intentions and was punitive in nature. The order was quashed, and the applicants were directed to be reinstated in the Bhopal Zone. The Tribunal emphasized that transfer orders should not be used as a means of punishment without proper inquiry and adherence to established policies.