CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
: BANGALORE
ORIGINAL APPLICATION No. 58 OF 2010
TODAY, THIS THE .........DAY OF FEBRUARY 2011
HON'BLE SMT. LEENA MEHENDALE ... MEMBER (A)
HON'BLE SHRI V. AJAY KUMAR .. MEMBER (J)
Sri V. Sraman,
S/o V. Narayana Rao,
Aged about 45 years,
Occ: Joint Director General of Foreign Trade,
Regional Authority, C & E Wing, 6th
Floor,
Kendriya Sadan, 17th Main, II Block,
Koramangala,
Bangalore – 560 034.
(Now on orders of transfer to New Delhi). .. Applicant
(By
Advocates M/s. Panchajanya Associates)
Vs.
1. The
Director General of Foreign Trade,
Ministry of Commerce & Industry,
Department of Commerce,
Government of India,
Udyog
Bhavan,
New
Delhi – 110 011.
2. Sri
Raminder Singh Gujral,
Occ:
Director General of Foreign Trade,
Ministry of Commerce & Industry,
Udyog
Bhavan, New Delhi – 110 011.
3. The
Zonal Joint Director General of Foreign Trade,
26,
Haddows Road, Shastri Bhavan, Annexe,
4th
& 5th Floor, Chennai – 600 006.
4. Union
of India,
Rep.
By its Secretary,
Dept.
Of Commerce,
Udyog
Bhavan,
New
Delhi – 110 011. ... Respondents
(By
Advocate Shri M.V. Rao,
Senior
Central Govt. Standing Counsel)
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O R D
E R
Hon'ble Smt. Leena Mehendale, Member (A) :
This application is filed on
27.1.2010 under Section 19 of the Administrative Tribunals Act, 1985. The applicant who is a fairly senior officer
in the Department of Commerce, had been posted at Hyderabad as Jt. DGFT ( Joint Director General of Foreign
Trade) on 14.9.2007 (his representation to Secretary, Commerce, dated 5.10.2009
attached to Annexure-A/5). Within less
than one and half years, he was transferrd to Bangalore on 22.5.2009
(Annexure-A/3) and thereafter within less than six months, he was issued a
transfer order to Cochin on 5.10.2009 (Annexure-A/4) where he has not joined
but proceed on leave. The applicant
approached this Tribunal in OA No.505/2009 on 17.10.2009 challenging both the
transfer orders viz., from Hyderabad to Bangalore and from Bangalore to
Cochin. The said OA was disposed of on
18.12.2009, permitting the applicant to submit a representation within fifteen
days to the respondent department and directing the respondent department to
consider and dispose the representation within forty five days.
2. He gave a representation to the
department on 24.12.2009 and on the same day, the respondent department has
also issued orders for him to report to the Head quarters at Delhi and wait for
further orders (Annexure-A/14).
3. Hence, by present OA No.58/2010 filed
on 27.01.2010, the applicant has prayed
for quashing the first transfer order from Hyderabad to Bangalore dated
22.5.2009 (Annexure-A/3), the 2nd transfer order from Bangalore to
Cochin dated 5.10.2009 (Annexure-A/4) and the 3rd transfer order
directing him to report to Delhi for further orders dated 24.12.2009 (Annexure-A/14). He has also prayed for quashing the charge
memos dated 26.10.2009 (Annexure-A/8) and dated 15.01.2010
(Annexure-A/17). By way of MA 151/2010,
the applicant has also prayed for quashing of Office Memorandum dated 18.9.2009
(Annexure-
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A/23)
but withdrew that request being a plural remedy. At his prayer, a stay order
has been granted on 16.2.2010 restraining the respondents from transferring the
applicant from the present post namely at Bangalore for 14 days and thereafter
the interim stay was continued from time to time.
4. In the interregnum, the respondents
have also approached the Hon'ble High Court of Karnataka in Writ Petition
No.10934/2010 for vacating the stay granted by this Tribunal, which was
dismissed by the High Court as withdrawn on 1.4.2010.
5. The prayer of the applicant is mainly
on the ground of malafide on the part of Respondent No.2 who has been impleaded
by name and is holding the designation of Respondent No.1, viz., the DGFT
(Director General of Foreign Trade).
Respondent No.3 is the Zonal Jt.
DGFT, Chennai, who is junior colleague of Respondent No.1 but, senior in
hierarchy to applicant. Respondent No.4
is the Secretary, Department of Commerce, New Delhi. The reply statement has been verified and
signed by Respondent No.1 on behalf of all the respondents and has also stated
that he has been authorised to do so.
6. It is the claim of the applicant that
the malafide has arisen out of a very serious irregularity going on in the
department, particularly at Hyderabad which may be leading to a huge loss of
import duty to the Government exchequer and may well be a huge economic
offence. Stated in brief, he describes
the irregularity as below:
(6-I). In the Export and Import policy
for the years 2004-2009, there is a chapter on Standard Input and Output Norms
(para 4(b) of the OA). During the normal
course of duties at Hyderabad, the applicant noticed that there was glaring irregularity. In the fixation of Sion :E5 of Food Products,
certain items have been included twice. At Sl. No.4 and 5, "Additive and
Bakery Ingredients are listed and allowed twice. Similarly 'Dry fruits
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[optional]'
and 'Relevant Dry fruits' occur twice at Sl.No.5(e) & 7. As per para 4(c) of the OA, the importers can
get them on concessional or no customs duty for the export product
"Biscuits" and this would result in huge loss to the exchequer
because it would entitle the importer for a double benefit. As per para 4(d) of the OA, the applicant,
who himself is a senior officer in the department and has been promoted from
lower rank and has been aware of the nitty-gritty of the department for a long
time was able to bring this fact to the notice of the DGFT. Such double entry was crucial to the importers
of Hyderabad more than of any other city in India as there are large scale
biscuit manufacturing units at Hyderabad.
(6-II). As per para 4(e & f) of the
OA, he brought this irregularity to the notice of DGFT, seeking a clarification
& rectification on 24-07-08, vide his letter No.F. No.90/misc/DFIA/AM09,
followed by reminders dated 31-07-0; 5-09-08; 18-11-08 and finally on 29-12-08
(Annexure-A/2) enclosing a copy of the order issued by him where he had
permitted import of only skimmed milk while not permitting Cocoa powder but the
opinion of Regional Jt. DGFT, Hyderabad
was different and he allowed it as seen from the enclosure dated
16.12.2008 to Annexure-A/5.
(6-III). The applicant claims that it was
communicated to him in the DGFT letter dated 14.1.2009 (Annexure-A/9) that his
request for clarification was considered by the Norms committee in its Meeting
No.30/09, held on 4-12-08, vide case No.438 which revised the Norms as below
(Para 4(e) of the OA). The Minutes of
the meeting were also enclosed with the letter.
It was stated in the minutes that:
'Jt.DGFT
Hyderabad has requested for clarification whether input items appearing at
Sl.No.4&5 and input items at Sl.No.5(e) & 7 under Sion E-5 are to be
allowed for manufacture of export product Biscuits.'
'It is noted that Ministry of Food
Processing (MFPI) have not furnished comments in this case. It is also
noted that file on which Sion E-5 was approved is not available.'
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The
existing and new revised SION No.E5 is as under:
|
Old
|
New
|
||||||
|
|
(6-IV). Thus, Additives and Other Bakery
ingredients was deleted from entry No.4 and Dry Fruits was deleted from entry
No.5. Accordingly the department issued
a notice No.127(RE-2008)/2004-2009 dated 7.1.2009 (Annexure-A/9) deleting the double entry of such input items
which would have the effect of stopping the loss to exchequer only if properly
implemented.
(6-V). It is further the claim of the
applicant that even though the department has issued this notification , it is
not being implemented, the same double benefit is continuing to the importers
in Hyderabad and he was transferred out of Hyderabad as a punishment and also
as a pre-emptive action, but for which, he would have started putting pressure
on the Regional Jt. DGFT, Hyderabad who
is the proper recovery authority to recover.
(6-VI) It is the claim of applicant in
Annexure-A/5, (a letter written to the
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Commerce
Secretary – Respondent No.4) that
(i) in response to P.N.127, the Retional
Jt. DGFT, Hyderabad had issued Demand
Notices on 23-01-09 to some of the beneficiaries for this irregularity
requesting them to pay back customs duty with interest within 15 days. He had
earlier issued DFIAs since 2006, permitting them to import ‘Cocoa Powder’ under
the Heading ‘Bakery Ingredients’ and hence along with this notice of
recovery, he had also issued an office
order directing that no further licenses should be issued to these Exporters
till they pay duty with interest on the ineligible imports.
(ii) Surprisingly, after five months, on
19.05.09, Regional Jt. DGFT had issued another contradictory direction to
issue licences to them, though they had
failed to pay duty with interest. I had
raised a strong objection for non-collection ofduties and the consequent loss
caused to Govt. revenue.
(iii) Strangely, within three days of his
raising an objection to this irregularity, DGFT ordered his transfer on
22-05-09, which were telephonically communicated to him on 25-05-09 and his
relieving orders were issued on 26-05-09, directing him to report at Bangatore
office, without availing joining
time.This act of DGFT is equivalent to an old saying, Catch the Police, leave
the Thief": because this is a case where undue benefit worth crores of
rupees would be given to the importers-exporters depending upon whether the
department undertakes recovery or looks in other direction.
The
applicant alleges that the interests of importers are ‘being protected' by his
transfer. To his knowledge, even to
date, not even a single Rupee has been recovered, out of the crores of Rupees
due from the beneficiaries of this malpractice.
7.
We find that respondents have
not replied to these averments. The applicant claims that he was transferred within a short period of
one and half years of tenure at Hyderabad, while the authorities permitted the
other Jt.DGFT at Hyderabad and other places to continue even after completion
of Three and half years at the same
station. Despite this injustice, in obedience of the DGFT orders, he had joined
at Bangalore office on 28-05-09. This
second transfer within a short span of four months of his joining the Bangalore
office is also in violation of all principles of natural justice and
administrative norms.
8. The applicant would like to evoke the
principle that honest officials must be
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protected
from the fear of harassment, so as to enable them to perform their duties
efficiently.
9. Respondent No.2 has been impleaded in
his personal capacity although in his official capacity, he is impleaded as
Respondent No.1. We take note of the
fact that the reply statement filed and signed by Respondent No.1 is also on
behalf of Respondent No.2 in his personal capacity as well as on behalf of
Respondents No.3 and 4.
10. In the reply statement, the respondents
have submitted as below:
(a) His
transfer order from Hyderabad to Bangalore was made by DGFT on observing that the
pendency of work was heavy in Bangalore and less in Hyderabad and hence the
presence of two officers of the rank of Jt.DGFT at Hyderabad was not required.
(b) His
posting at Hyderabad itself was on compassionate ground as he had requested for
two years in Hyderabad to look after his ailing father. He was not disturbed for nearly 21 months.
(c) The
contents of para 4 (a to g) of the OA are not relevant to the matter. The applicant has quoted one administrative
decision wherein certain input output norms were allowed to some exporters of
biscuits. The Foreign Trade Policy is a
dynamic one and is subject to modifications, amendments, corrections, etc. The Norms Committee deals with the input
output norms as per the parameters of the Foreign Trade Policy. The Respondents have no direct role in
fixation of the Input-Output Norms.
Further, fixing these input output norms in respect of cited case has no
relevance to the real issue which is his transfer orders and Memos for minor
and major penalty issued to him.
Therefore, the averments of the applicant are nothing but an attempt to
link up an unconnected issue with the transfer orders. Impugned transfer orders do not have any relation
to cited case nor were issued with any ill motive or malafide intentions and
hence the allegations are totally
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denied,
being a mis-representation.
(d) The
DGFT during his visit to Bangalore on 17-9-09 had noticed heavy pendency of
EODC (Export Obligation Discharge Certificates) and therefore formed a team
under the leadership of Zonal Jt. DGFT, Chennai, for an EODC clearance drive to
function for next two weeks and the applicant was supposed to attend to that
work, but, proceeded on 7 days CL from 22.9.09 onwards even though his CL
application was categorically rejected by Zonal Jt. DGFT. He further applied for EL which was also
rejected and thereafter he continues to be on unauthorised absence from
duty. In the meantime, he was also given
orders for transfer to Cochin.
(e) Since
the leave cannot be claimed as a right and since it is a normal practice to
refuse or revoke any leave if exigencies of public service so demand,
therefore, he cannot claim the leave as a matter of right. For these and other reasons, his leave becomes
unauthorised absence.
(f) The
applicant did not raise any objection for his transfer from Hyderabad to
Bangalore for the first 5 months of his working here. Only on his 2nd transfer to
Cochin, he filed his application at CAT, Hyderabad, in OA No.2755/2009 on
19.09.2009, for quashing both the orders and repatriating him back to
Hyderabad. The said OA was dismissed on
the grounds of jurisdiction. Thereafter,
the applicant approached the Bangalore Bench of the Tribunal in OA No.505/09
which was disposed of on 23.12.2009, directing him to make a representation to
the department within 15 days. The DGFT
rejected his two applications both dated 24.12.2009, one requesting transfer to
Hyderabad and another requesting sanction of EL from 22.9.09 to 31.01.2010. While doing so, the DGFT also took the
approval of the Secretary, Ministry of Commerce by way of abundant precaution.
(g) The
transfer of the applicant from Bangalore to Cochin dated 5.10.2009 was a part
of general transfers and therefore not malafide or malicious and further no
officer
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under
this general transfer was given the joining time. It is the standard practice now followed in
all departments that the officers can avail joining time at a later date. The rotation transfer policy as pronounced by
DGFT on 12.2.2008 (Annexure-A/10) is only in respect of staff, but not in
respect of senior officers. Similarly,
the transfer policy of the Department of Commerce, dated 20.10.2006 is not in
respect of field officers under DGFT.
But, only for those officers of All India Trade Services who have taken
a deputation posting in the Department of Commerce.
(h) Since
the applicant did not join at Cochin, the DGFT was constrained to depute one
Shri Shashi Kumar from Coimbatore to take additional charge at Cochin. The order dated 24.10.2009 asking applicant
to report at Delhi is not a transfer order, but only a direction to report to
Delhi for duty and await further orders and was necessitated by the fact that some other regular
appointment had been made for Cochin (Annexure-A/14).
(i) There
is additional issue of some charge memos.
Prior to his transfer order to Cochin the department had issued him memo dated 18.9.2009 informing that his CL is
not granted. Subsequently during the
pendency of OA No.505/2009, a charge memo dated 26.10.2009 was issued alleging disobedience in not
having joined from Bangalore to Cochin.
In addition, the department has issued him one more charge memo on
15.01.2010 (Annexure-A/17) for disobedience of the transfer order to cochin.
11. The learned counsel for applicant has
relied on the following judgments in support of his claim:
Public Interest not involved:
1.
Case of Ramadhar Pandey Vs. State
of UP & Ors. 1993 Supp(3)SCC 35 in which the Hon'ble Apex Court in para 16
has stated as under:
".......
We are also not in a position to discover from the other records available
before us whether the transfer of the appellant was in public interest. In the absence of a counter-affidavit or even
the relevant records, we are left with no option than to conclude that no public
interest is involved. It cannot be
gainsaid that transfer is a
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necessary
concomitance of every service; but if such a transfer could be effected only on
certain conditions, it is necessary to adhere to those conditions. In this case, "the public interest"
being absent, the impugned order of transfer cannot be supported."
1.
Case of B. Varadha Rao Vs. State
of Karnataka & Ors. - AIR 1986 SC 1955 to say that the transfer is made for
achieving an alien purpose or an oblique motive: In this case, the Hon'ble
Supreme Court at para sub-para of para 5 has stated as under:
"It is an accepted principle
that in public service transfer is an incident of service. It is also an implied condition of service
and appointing authority has a wide discretion in the matter. The Government is the best judge to decide
how to distribute and utilise the services of its employees. However this power must be exercised
honestly, bona fide and reasonably. It
should be exercised in public interest.
If the exercise of power is based on extraneous considerations or
for for achieving an alien purpose or an
oblique motive it would amount to mala fide and colourable exercise of power.
3.
In the case of Somesh Tiwari Vs.
Union of India & Ors. - 2009(2)SCC 592 -
In
this case the Hon'ble Supreme Court in Para 16 has held as under:
"Indisputably an order of
transfer is an administrative order.
There cannot be any doubt whatsoever that transfer, which is ordinarily
an incident of service should not be interfered with, save in cases where inter
alia mala fide on the part of the authority is proved. Mala fide is of two kinds – one malice in
fact and the second malice in law. The
order in question would attract the principle of malice in law as it was not
based on any factor germane for passing an order of transfer and based on an
irrelevant ground i.e., on the allegations made against the appellant in the
anonymous complaint. It is one thing to
say that the employer is entitled to pass an order of transfer in
administrative exigencies but it is another thing to say that the order of
transfer is passed in lieu of punishment, the same is liable to be set aside
being wholly illegal.
The respondents, on the other hand
have cited 10 judgments in support of their argument, which enunciate the
following principles:
1.
The case of Union of India &
Ors. Vs. H.N. Kirtania – 1989 SCC 445 and the case of Shipli Bose (Mrs.) &
Ors. Vs. State of Bihar & Ors. Where the Hon'ble Apex court has held that
"the Courts should not interfere with a transfer order wich is made in
public interest and for administrative reasons unless the transfer orders are
made in violation of any mandatory statutory rule or on the ground of mala
fide. A government servant holding a transferable post has no vested right to
remain posted at one place or the other, he is liable to be transferred from
one place to the other. Transfer orders
issued by the competent authority do not
violate any of his legal rights. Even, if
a transfer order is passed in violation of
executive instructions or orders, the courts ordinarily should not interfere
with the order instead affected party
should approach the higher authorities in the department."
In the case of Union of India &
Ors. Vs. S.L. Abbas – (1993) 4 SCC 357 – at para 6 the Apex Court has observed
as below:
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"6. An order of transfer is an incident of Government
service. Fundamental Rule 11 says that
"the whole time of a Government servant is at the disposal of the
Government which pays him and he may be employed in any maner required by
proper authority."
In the case of Employees' State
Insurance Corporation Vs. Harrison Malayalam Pvt. Ltd. - (1993) 4 SCC 361 the
Hon'ble Court has held as under:
"C. Service Law – Transfer – Scope of judicial review – Hardship
caused to the employee from the transfer – Held, not a ground for judicial
review of the transfer order.
In all the cases relied upon by the
learned counsel for the respondents, the principle enunciated by the Hon'ble
Apex Court is that the Courts/Tribunals shoult not normally interfere with the
transfer cases unless it is proved mala fide or is arbitrary, etc.
12. After hearing both sides in detail, we
find that there are four important grounds raised by the applicant to challenge
the three impugned orders of transfer:
(A) Ground of malafide:- Since the wrong inclusion of some input items
for the export product Biscuits which was pointed out by the applicant is
resulting into huge loss of revenue to the Government, but is equally
beneficial to the exporters, the DGFT has clearly acted in a way that will
favour the exporters. This is further
substantiated by the allegation of the applicant that even though the
department appreciated the wrong inclusion pointed out by him and issued
corrective notification dated 7.1.2009, no
recovery has yet taken place for the period from January, 2009 till day for the import duty concessions granted in
the past. Current import duty has
also not been collected and the concessions continue to be granted as
before.
(B) After every transfer, it is generally a
norm that the incumbent should not be disturbed atleast for 2-3 years. This norm is followed in all departments as
it is understood that an officer can give his best only if he is not dislocated
frequently. His transfer from Hyderabad
to Bangalore is within 21 months and the transfer from Bangalore to Cochin is
also within four months. Further, on his
non-joining at Cochin, he is straightaway ordered
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to
report at Delhi despite the fact that he approached this Tribunal which had
considered it fit to stay the transfer to Cochin by its order dated 5.10.2009.
This also shows malafide and vindictiveness on the part of respondent No.2 who
has the powers to issue such orders by virtue of his position as Respondent
No.1, namely, the DGFT. The action of
Respondent No.2 in not sanctioning the applicant his leave and in issuing of
the charge memo on the ground of disobedience in matters of transfer and EL, is
also a result of malafide and vindictiveness.
The charge memos dated 26.10.2009 and 15.01.2010 are based on
"allegedly oral orders issued by the DGFT Sri R.S. Gujral to the applicant
directing him to attend the pending files of export obligation" in which
no written orders have been given. It is
pertinent to note here that the reply statement made by the respondents states that
the applicant was transferred from Hyderabad to Bangalore because the pendency
at Bangalore was found to be heavy. If
that be the case, then the DGFT should have given clear-cut written
instructions rather than giving oral orders.
(C) Frequent transfers amounting to
punishment.
It is further stated at para 5.6 of
the OA that as required by Section 3(2)(iii) of CCA (Conduct) Rules, written
instructions confirming the "alleged oral instructions" have to date
not been furnished to the applicant despite his seeking for the same. Instead DGFT had merely forwarded a copy of a
letter written by Deputy DGFT, New Delhi to the Zonal Jt. DGFT, Chennai stating
that verbal instructions had been issued in the presence of the Zonal Jt.
DGFT. But the fact is that the Zonal Jt.
DGFT, Chennai and Deputy DGFT New Delhi who had written the letter were both
not present in Bangalore on the date 18.9.2009 when the alleged oral
instructions were supposed to have been given by DGFT to the applicant. Para 12 of the reply does not rebut the above
statement at para 5.6 of the OA, but clarifies that oral directions were given
to Zonal Jt. DGFT, Chennai and on 18.09.2009, an official memorandum was issued
to all Jt. DGFTs to report to Jt. DGFT, Bangalore for allotment of
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work
under the said pendency clearaance drive at Bangalore, but the applicant
exempted himself from such work by proceeding on unauthorised leave.
About the first and second transfer
orders the applicant has stated in para 5.13
that there were 14 officers who were working at the same place for more
than 3 years, but no transfer orders are passed against them. Therefore, it is clearly malafide exercise of
power because the authorities have failed to exercise power in respect of such
officials.
(D) The
fourth ground stated is of bias in favour of exporters. It is claimed that the bias arises out of the
desire of Respondent No.1 to help the importer-exporters in biscuit
manufacturing in Hyderabad where the buscuit manufacturing business
flourishes. Thus, this is a strong
allegation also supported by the details as to how even though a revision is
issued by the department modifying the revised input output norms
(Annexure-A/9), there is no adherence to
these revised guidelines and no recovery from the wrong doers has been
made. Instead, the same concession has
continued to be given in Hyderabad even till this date. This is a very strong allegation against
Respondent No.1 and Respondent No.2 who both are the same person, holding the
highest post in the hierarchy. But the
reply statement is completely silent on this point. It is claimed in the reply statement that the
transfer of the applicant from Hyderabad to Bangalore was for the reason of
heavy pendency at Bangalore. The reply
statement further adds at para 7 that the DGFT orally instructed the applicant
to reduce the pendency in respect of Export Obligation Discharge Certificate
(EODC) within seven days. It is not
understood as to how the DGFT can expect the applicant who is specifically
brought to Bangalore to finish the pendency to do so within 7 days. Further, at para 6 of the reply statement, it
is claimed that the DGFT could not have any intention to benefit the exporters
despite the mistakes pointed out by the applicant because the input output
norms are finalised by a committee and the "Respondents have no direct
role in
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fixation
of input output norms". The
learned counsel for the applicant points out that the DGFT has a definite role
in fixing the input output norms and he is in fact, the Chairman of the
Committee for fixing these norms.
Moreover, he is also the authority who finally issues the norms too.
13. We find that the reply statement does not
give parawise answer to the averments made by the applicant. It merely states that:
"the
contents of para 4(a to g) are not relevant to the matter. The applicant has quoted one administrative
decision wherein certain input out norms were allowed to some exporters of
biscuits. The Foreign Trade Policy is a
dynamic oneand is subject to modifications, amendments, corrections etc. The Norms Committee deals with the input
output norms as per the parameters of the parameters of the Foreign Trade
Policy. The Respondents have no direct
role in fixation of the Input-Output Norms.
Further, fixing these input output norms in respect of cited case has no
relevance to the real issue raised by the Applicant which is quashing of his
transfer orders and Memos for minor and major penalty issued to him. Therefore, the averments of the applicant are
nothing but an attempt to link up an issue that is not connected with the
transfer orders and Memos which are the subject matter of the petition for
which relief is sought. Impugned
transfer orders do not have any relation to cited case nor were issued with any
ill motive or malafide intentions and hence the allegations are totally
denied.
14. But, it does not give any reply to the
specific allegation that the said wrong double benefits to the importers has
resulted in huge revenue loss to the Govt. It also does not answer the allegation (in one
of the paras of the representation to Respondent No.4 at Annexure-A/5) that
even though the input output norms committee made corrections to the earlier
norms vide their order dated 7.1.2009 (Annexure-A/9), no recovery has been made
from the defaulters so far. It is silent
on further averment that currently the import duty is charged not on the basis
of new norms, but only according to the earlier faulty norms (Annexure-A/5). We find it very strange that a very senior
officer of the rank of DGFT (Addl. Secretary to the Govt. of India) has not
bothered to take any note of the allegations of a revenue loss of lakhs of
rupees to the exchequer. He also finds it fit not to reply to allegations that
he has done so in order to favour those exporters in Hyderabad.
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15. A slight digration is called for at this
stage. After the OA was filed before
this Bench, an interim order was passed on 16.2.2010 restraining the
respondents from transferring the applicant from the present post till such
period as interim orders issued continued from time to time. On 26.3.2010, because of non implementation
by the respondents, the Bench had to observe as follows:
"3. When the Court of Law has assumed Seisim
of a matter, it is the duty of the Civil authority to submit to its
jurisdiction. The Rule of law rather
than Administrative primacy is the Constitutional mandate. It may appear that the interim order issued
were deliberately flauted by the Respondents – 1 and 2. Since, prima facie, it appears that
contunacious conduct may vitiate the stand of the respondents Shri R.S. Gujral,
the Respondent No2 holding the post of Respondent No.1 is directed to file an
affidavit explaining why the order dated 16.02.2010 has not been complied with
within 14 days from the date of receipt of a copy of this order.
4.
In the meanwhile, the applicant
complains that he had not been paid his salary from September 2009
onwards. Therefore there shall be an
interim direction to the Respondents to release the salary payable to the
applicant within the next 10 days as Right to life, is the circumstances is
founded on livelihood. After such
payment a memo shall be filed by the concerned Respondent.
5.
Issue a copy of this order by
Speed Post to the Respondent No.1 and 2.
The counsel for the respondents undertakes to inform the Respondents of
the order made today. Post on 12.04.2010
for further consideration."
Although the respondents paid the
arrears of salary and also continued the applicant at Bangalore without
assigning any work, they challenged the order dated 26.3.2010 before the
Hon'ble High Court of Karnataka in WP No.10934/2010. But, have subsequently withdrawn that writ
petition on 1.4.2010. Thus the applicant
continues at Bangalore by the direction of this Tribunal.
16. One main contention in the reply was that
when the applicant was transferred from Hyderabad to Bangalore in May, 2009, he
worked in Bangalore for nearly 5 months without raising any objection. Only on his transfer to Cochin, he raised his
objection to the frequent transfers including his transfer from Hyderabad to
Bangalore. It is also contended that
since the Hyderabad Bench of CAT has disposed of his earlier OA on the ground
of
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jurisdiction,
the applicant has no right on his claim now for quashing the transfer order
from Hyderabad to Bangalore issued in May, 2009.
17. We have heard both the counsels at length
even on this point. As mentioned
earlier, the respondentes have tried to make the whole issue of first two
transfers namely, Hyderabad to Bangalore and Bangalore to Cochin look like a
routine transfer, the first being apparently to take care of heavy pendency at
Bangalore which also generates a presumption that the Respondent No.2 has faith
in the capacity of the applicant for speedy disposal. The second transfer from Bangalore to Cochin
is on the ground that while Respondent No.2 wanted very speedy disposal within
a week's time, the applicant drew himself out by proceeding on leave.
18. Although, this appears logical when seen
in the light of administrative expediency,
we also have to take note of the fact that the respondents have not
rebutted the claims made at para 4.(b,c,d,e,f,g) of the OA almost alleging that
DGFT's actions are for favouring exporters which would also lead to huge loss
of revenue. The respondents have just
stated that they are not relevant to the issues of either transfer or charge
memo for taking leave without pre-sanction.
19. We do not agree with the statement. The averments made in paras 4 (b to g) cast
direct aspersions on the bonafides of the DGFT, who is the highest officer in
that hierarchy while the applicant is also a very senior officer being 4th
in rank of the hierarchy and the only post of Additional DGFT and Zonal Jt.DGFT
in between the applicant and the Respondent No.2. The applicant has stated that the wrong input
output policy in vogue was resulting in huge loss of revenue to the
exchequer. Then he avers that the said
norms were changed by the Norms Committee which met at his instance to discuss
the points raised by him and issued a corrective notification dated 7.1.2009
(Annexure-A/9) which might have
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the
effect of bringing in a good recovery to the exchequer and saving the future
loss of revenue.
20. These are definitely the areas which an
officer ranking as high as DGFT cannot ignore.
It would be his first duty to see how such revenue loss is stalled or
else, to investigate and come to the conclusion that there are no valid
recoveries or reasons to suspect any loss of revenue. As pointed out by the applicant, he seems to
have been a party to getting the present applicant removed from the scene. Even if we were to admit that the first
transfer order from Hyderabad to Bangalore was only for the sake of
administrative exigency, we still feel that Respondent No.2 is obliged to
ensure that recoveries of import duty are made as per new norms. Further, he is also obliged to state in his
reply as to what he has done to ensure that such a recovery as was pointed out
by the applicant was made and further loss to revenue were stopped. The complete silence of the DGFT on this
issue where he neither says that he has acted through other officers to stop
such a revenue loss nor does he state that the theory of revenue loss to the
Govt. as put forward by the applicant was humbuck. Such a
complete silence gives credence to the averments and makes us to deduce
that there may be some truth in the charge of malafide in the transfer of the
applicant.
21. It is mentioned by the respondents in
reply that the applicant joined at Bangalore and has worked for nearly 5
months, thus forfeiting his right to pray for quashing that order. We cannot agree with this contention. We cannot agree that no other officer except
the transferring authority has any consideration for the administrative
exigency. It is well within the right of
any transferred employee to first obey the order and then challenge it in the
appropriate forum. Obeying of an order
does not necessarily mean accepting it as unchallengable. From the events, it can be said that the
applicant has obediently carried out
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the
order of transfer from Hyderabad to Bangalore before challenging it. By doing so, it cannot be said that he has
given up his right to challenge. So,
after joining at Bangalore, he challenged it within allowed time before the
Hyderabad Bench of the Tribunal, who observed that their jurisdiction has
ceased once he joined Bangalore. Even
the Hon'ble High Court of Andhra Pradesh confirmed this view. Therefore, the applicant now falls under the
jurisdiction of this Bench even for considering his transfer from Hyderabad to
Bangalore. Thus for the two questions,
viz.,
(1)
Can the Bangalore Bench of CAT
have jurisdiction to deal with the issue of transfer from Hyderabad to
Bangalore and
(2)
Whether the applicant can
challenge a transfer after having obeyed it?
Our considered opinion is that the
answer to both questions is "Yes".
22. We find the attitude of Respondent No.1,
who is also impleaded by name as Respondent No.2 to be intriguing. Looking as a distant neutral observer, we can
reckon the following events:
(a) His
very senior officer (i.e., applicant)
points out anamoly in input output policy which appears to be giving double
benefit to biscuit manufacturers.
(b) The
matter is referred to a committee which recomments certain changes in the input
output policy and a new notification along with corrections is issued.
(c) The
same senior officer (i.e. applicant) who is not a direct implementation officer
for such notification points out to the regular Jt. DGFT, Hyderabad that he
ought to have carried out recovery in view of the said correct notification.
(d) That
senior officer (applicant) is transferred.
(e) There
is no account before us as to whether DGFT has made any assessment of the
revenue loss that may have taken place during the period between 2004-2007 or
whether he has come to the conclusion that no recovery is called for.
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(f) There
is also no record before us to show that the DGFT consulted his other equally
senior officers on the issue.
(g) The
same senior officer (i.e. applicant) points out that even subsequent to the
notification, the earlier double concession has continued to be given to the
importers who are biscuit manufacturers and exporters thus perpetuating the
loss of revenue to the exchequer.
(h) Even
when the above sequence is brought out first
as representation to Secretary (Annexure-A/5) and then in the form of
this OA and even when Respondent No.1 is impleaded by name, he brushes aside
this information as irrelevant to the issue of transfer of the said
officer. But, has not enlightened us
whether he has examined separately as he was duty-bound being the top-most
officer of the department. Whether this
whole scenario is untrue or rubbish or whether any recovery is required to be
made from the importers and what has been the performance of the department in
that connection. It is further strange
to notice that even when the committee which met and discussed the anamoly
brought out by the applicant and confirmed the view of the applicant and issued
a notification and even though the said committee is headed by him, he has
maintained in his reply statement that he has nothing to do with the said
notification.
23. At this stage, we even feel that we would
be failing in our duty if we do not direct Respondent No.4, viz., the
Secretary, Department of Commerce, to look seriously into the brief facts
mentioned at para 4 (a to g) of the OA and in Annexure-A/5 and come to a
definite conclusion as to whether the whole story raised by the applicant about
loss of revenue is incorrect or whether really the procedure of double benefits
in the import to the biscuit manufacturers in Hyderabad zone is allowed to continue
unabated. The silence adopted by the
Department is intriguing to say the least.
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24. In conclusion, we have no hesitation in
quashing the 3 transfer orders dated 22.5.2009 (Annexure-A/3) from Hyderabad to
Bangalore, 5.10.2009 from Bangalore to Cochin (Annexure-A/4), and dated 24.12.2009 from Cochin to
Delhi. (Annexure-A/14). The Respondent No.1 should issue necessary
orders to applicant posting him at Hyderabad within fifteen days from the date
of receipt of a copy of this order. As
regards the memos issued to the applicant, the applicant is directed to submit
a detailed representation to Respondent No.4 within fifteen days from today and
the Respondent No.4 is directed to dispose of the same within thirty days from
the date of receipt of such representation by a reasoned and speaking
orders. No costs.
(V. AJAY KUMAR) (LEENA
MEHENDALE)
MEMBER (J) MEMBER (A)
psp.
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