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)
1. The Director General of Foreign Trade,
Ministry of Commerce & Industry,
Department of Commerce,
Government of India,
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,
New Delhi – 110 011. ... Respondents
(By Advocate Shri M.V. Rao,
Senior Central Govt. Standing Counsel)
- 2 -
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-
- 3 -
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
- 4 -
[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.'
- 5 -
The existing and new revised SION No.E5 is as under:
(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
- 6 -
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
- 7 -
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
- 8 -
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
- 9 -
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
- 10 -
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:
- 11 -
"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
- 12 -
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
- 13 -
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
- 14 -
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.
- 15 -
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
- 16 -
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
- 17 -
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
- 18 -
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.
- 19 -
(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.
- 20 -
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)