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TMI Blog2008 (12) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the employees posted at the Bhopal office of the respondents apprehending disciplinary as also criminal proceedings at the hands of the appellant on the basis of the reassessment of the files undertaken by him, an anonymous complaint was made alleging caste-bias on his part, pursuant whereto an order of transfer was passed against him on or about 22nd August, 2005. 4. Prior thereto he had filed a representation stating that, as he had been undergoing some treatment, he should be retained at Bhopal. Appellant, however, contended that in view of the fact that he had taken action against some erring officers, they were instrumental in sending the said anonymous letter on the basis whereof no action should have been taken in the light of the circular letters issued by the Central Vigilance Commission. 5. It is, however, accepted that an enquiry was conducted by an Assistant Commissioner, Directorate of Vigilance, into the said anonymous complaint wherein allegations made against the appellant were not found to be true but still recommendations were made that he be transferred from Bhopal. Only on that basis he was transferred to Shillong. 6. He indisputably made a repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.1042 of 2005. 11. Indisputably during the pendency of the said O.A., respondents while considering the matter of promotion, posting and transfer in the grade of the Assistant Commissioner of Customs and Central Excise, passed order dated 28th December, 2005 inter alia transferring/posting on administrative consideration, transferred the appellant from Shillong to Ahmedabad. An application for amendment of the O.A. was thereafter filed, which was allowed. 12. The orders under challenge before the Tribunal were, thus, the orders dated 22nd August, 2005 ; 19th October, 2005 and 28th December, 2005. 13. Inter alia on the premise that the appellant had not reported at Ahmedabad and furthermore that the order of transfer was an administrative one, the Tribunal by its order dated 14th March, 2006 held :- 19. On perusal of the records, I find that the order of transfer is on administrative exigencies. The applicant has All India transfer liability. An order of transfer should normally be eschewed and should not be countenanced by the Tribunal as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. The High Court by reason of the impugned judgment and order dated 25th September, 2006 while opining that the order of transfer could not be passed on the basis of an anonymous complaint, which on enquiry having been found to be incorrect, held :- Though, when individually considered, the impact of the incorrect mention of the fact that the petitioner belongs to Madhya Pradesh and does not know English in the order rejecting the Petitioner's representation, except for indicating the extent of absence of application of mind by the respondents, is not fatal. However, the transfer of the petitioner on the ground that he apparently gave an impression that he worked on caste-biased ideology, in spite of the fact of recording a finding in the negative in the discreet inquiry conducted into the anonymous complaint would shock the conscience of any reasonable man to say the least. It was furthermore opined that as the allegations of having a caste-bias were not found to be true, the order of transfer having been issued by way of punishment was unjustified, stating :- It is no doubt true that the petitioner or any other member of an All India Service can be transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, submitted that keeping in view the fact that the High Court despite arriving at a finding that the order of transfer was mala fide and an abuse of the process of the court, could not have directed that he be not paid his salary for the period commencing 15th days after the modified order dated 28th December, 2005 was passed till he joined the post, and thus the impugned judgment of the High Court is wholly unsustainable as no reason has been assigned in support thereof. 18. Mr. Wasim A. Qadri, learned counsel appearing on behalf of the Union of India, however, took us through the entire records and submitted that as despite the fact that no order of stay was granted by the Tribunal, the appellant did not join his post at Ahmedabad, the High Court was correct in its view for invoking the principle of `no work no pay'. It was argued that an order of transfer, unless set aside, remains valid in law and in that view of the matter, it was obligatory on the part of the appellant to join his post at Ahmedabad so as to allow the respondents to take work from him. 19. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer. They passed an order of transfer while considering the cases of promotion and transfer of a large number of officers. The order of transfer suffered from a total non application of mind in so far as it proceeded on the premise that the appellant had already joined his post at Shillong. Even it was not stated that the said order of transfer was being passed in modification of the earlier order of transfer or upon reconsideration of the matter afresh on humantarian ground or otherwise. We may place on record an extract from the note sheet of Member (P V) dated 31st October, 2005 which reads as under :- AC(P) (i.e. petitioner) has tried to fix responsibility on some superintendents for loss/closure of some files about investigations against assessees, those superintendents, who happened to belong to SC/ST category on being thus pressured, has complained to the police and other agencies alleging harassment of backward classes by Sh. Somesh Tiwari, a Brahmim, these complaints were found to be baseless and the police had not pursued the matter. Having failed at the local level it is possible that these officers had lodged the complaint at Delhi which resulted Sh. Tiwari's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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