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TMI Blog2013 (1) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants 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 - 530-531 of 2012 - - - Dated:- 28-8-2012 - Dhirendra Mishra, Shri G.P. Singhal, JJ. REPRESENTED BY : Shri Manish Verma, Advocate, for the Appellant. S/Shri S.A. Dharmadhikari, SSC, Rajendra Tiwari, Sr. Advocate and Satish Dawre, Advocate, for the Respondent. [Order per : Dhirendra Mishra, Member (J)]. With the consent of the parties, the matter was finally heard for dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 4 has issued necessary telephonic instructions to the applicant to get the machines installed immediately. Subsequent call details of the conversation between the representatives of M/s. Kaipan and respondent No. 4 as also between the applicant and respondent No. 4 and the audio record 1 2 of the call details of conversation filed as Annexure-A/4 clearly and unambiguously show that respondent No. 4 was in constant touch with the representatives of M/s. Kaipan and he was instructing and pressurizing the applicant for immediate installation without verification of the packing machines of M/s. Kaipan. The fact that representatives of M/s. Kaipan were directly contacting respondent No. 4, the senior most officer of the department, on telephone at odd hours that too when respondent No. 4 was in eastern UP, bypassing the Joint Commissioner and the Commissioner, Central Excise, who were very much available at Bhopal, goes to show the extent of their relationship. The SMS sent by respondent No. 4 to M/s. Kaipan at the time when it purchased high speed sophisticated Gutkha packing machine on 25-2-2012 also buttresses the contention of the applicant that the entire exercise of press ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t information whereupon the Public Information Officer of respondent No. 3 categorically replied on 14-6-2012 that no such correspondence as apprehended by the applicant has been made (Annexure-A/12). From perusal of the performance of the applicant for financial year 2011-12, it would be evident that the applicant has exceeded the target fixed for the revenue for the year 2011-12 by 67% whereas All India Service Tax Growth for the year 2011-12 is only 35%. The applicant s performance as Assistant Commissioner (Audit) for the year 2011-12 has also been outstanding as total audit recovery for the financial year 2011-12 jumped to Rs. 15.20 crores and the API ranking improved to an all time high at All India 6th rank. Respondent No. 4 has tried to highlight one single incident of anointment of a service provider as Assistant Commissioner for a day though from the documents filed by the respondents themselves and the CD enclosed as Annexure-R/17, it is evident that the Joint Commissioner In-charge of Division No. 1 was very much present on the said date and he was interacting with Shri Rajeev Dwivedi who was anointed. There is no personal angle in the anointment of the said person an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner for a day. He also interacted with the press/media which was widely published by the print/electronic media. His interview was broadcasted nationwide by the TV channels and video clippings were also loaded on You-tube and news channel. From perusal thereof, it would be evident that the applicant projected himself as Commissioner of Central Excise. Respondent No. 3 called for explanation from the applicant vide Annexure-R/18 dated 23-2-2012 and the applicant used derogatory language against respondent No. 3/4 in his reply. The reply of the applicant is falsified from the documentary evidence of Annexure-R/13 to R/17. The applicant is not authorized to communicate information to the press and the same is in serious violation of Rule 11 of the Conduct Rules. 7. Despite specific directions from respondent No. 3/4 dated 23-2-2012 (Annexure-R/18), the applicant continued to give press release as would be evident from Annexure-R/21 R/22. The applicant also posted certain information in respect of Gutkha manufacturer in the facebook vide Annexure-R/24, R/24-A R/25 despite specific instructions dated 9th April, 2012 (Annexure-R/23) of the Ministry of Finance not to post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted making false allegation that respondent No. 3/4 is favouring the said Gutkha manufacturer with mala fide intention by resorting to dubious modus operandi of recording telephonic conversation with respondent No. 4 on 2nd and 3rd March, 2012. It is learned that the applicant also made an unsuccessful attempt by approaching the CBI, Bhopal and requested to register a case against respondent No.3 under the Prevention of Corruption Act, however, did not submit written complaint when asked for by the CBI. 10. The applicant had also approached the Hon ble High Court by way of filing Writ Petition No. 9640/2012 (S) against the order dated 26-6-2012 by which the applicant s prayer for interim relief was rejected, however, the same was dismissed as withdrawn by imposition of cost of Rs. 1,000/- on the applicant (Annexure-R/74). The allegation that respondent No. 4 was instrumental in getting the applicant transferred has been vehemently denied. The applicant s transfer order has been passed with the approval of Union Finance Minister. The applicant has also filed highly exaggerated and false figures of his achievement in tax collection as well as performance as Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Joint Commissioner, which is a blatant example of insubordination and breach of Manual of Office Procedure and Conduct Rules. From perusal of the transfer orders of Annexure-A/13 A/14, it would be evident that both the orders have been passed in a routine manner with the approval of the competent authority by the C.B.E. C. However, no mala fide has been attributed against any member of the Board or Finance Minister whereas, if any, action is challenged on the ground of mala fide, it is required to be spell out in the pleadings and by convincing proof. The answering respondent s letter dated 8th May, 2012 only gives details of certain unwarranted activities of the applicant which relates to his conduct under the Bhopal Commissionerate and the answering respondent suggested for his transfer only on the ground that his transfer may facilitate to mend his life in a new place where he can start everything de novo. The answering respondent also suggested transfer of his wife with a view that both of them may remain together without any mental stress. In any case, the letter dated 8-5-2012 written by the answering respondent is only a suggestion and it was for the Board to take a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers at Bhopal. It is in these circumstances, the assessee approached the answering respondent directly, if they had any complaint to make and the answering respondent was promptly acting thereon in order to alleviate their grievances and there was no mala fide action on the part of respondent No. 4. It is trite law that the Government servant has to obey and honour the transfer order, if he is aggrieved, he can only challenge the transfer after complying with the order. Reliance is placed on judgments in the matters of Gujarat State Electricity Board v. Atmaram Sungomal Poshani [AIR 1989 SC 1433] and Union of India v. S.L. Abbas [AIR 1993 SC 2444]. 12. Heard learned counsel for the parties. 13. Indisputably, the applicant, a physically challenged person suffering from polio in right leg, was sent to Bhopal zone on his first posting where he joined in the month of May, 2011 as Assistant Commissioner. It is also not in dispute that as per the transfer policy of Group-A Officers, minimum tenure at Bhopal, which is admittedly a Class-C station, is not to be less than 2 years and the applicant has been transferred from Bhopal zone to Cochin zone in less than 2 years along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the concerned Gutkha manufacturer initially contacted immediate superiors of the applicant with regard to his complaint including In-charge Commissioner who was at Indore as stated by the respondents. Learned counsel for the respondents have attempted to justify the overall indulgence of respondent No. 4 on the ground that the officers of the (Excise and Customs Department are supposed to be conscious of recovery of duty and, therefore, under the rules, they are expected to be courteous and helpful to the assessee, as no harassment is permissible in respect of an assessee. Therefore, respondent No. 4 promptly interfered with a view to alleviate the grievance of the assessee. However, from the documents available on record including the call details and transcript of the recorded conversation as also the letter dated 8-5-2012 filed by the respondent No. 4 as Annexure-R/56, it is manifestly clear that respondent No. 4 and the representatives of M/s. Kaipan were in regular contact with each other at the relevant period when M/s. Kaipan was to install high speed Gutkha packaging machines in its industry and respondent No. 4 was directly talking to the applicant by passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ordered against the applicant. Respondent No. 4 has also cited act of the applicant for requesting physical verification to determine capacity of production of a new high speed pouch packaging machine as an act of harassment. However, from perusal of the documents of Annexure-RJ/1 RJ/1A, it is evident that such physical verification was approved by the Commissioner of Central Excise (Audit) Branch Ahmedabad. From the pleadings of the official respondents, it is evident that the impugned transfer order has been passed as a punishment for the alleged serious misconduct of the applicant without conducting any enquiry. 17. Indisputably, an order of transfer is an administrative order and the transfer is ordinarily an incident of service which should not be interfered with unless it is shown that the transfer order has been passed by an authority not competent to pass such order or it is in violation of any statutory rule, [see Union of India v. S.L. Abbas (supra)]. However, 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, as has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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