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Lachman Dass Vs. Shiveshwarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 597-D of 1965
Judge
Reported inAIR1967P& H76
ActsEvidence Act, 1872 - Sections 3; Constitution of India - Articles 226 and 311; Indian Railway Establishment Code - Rules 146 and 2011
AppellantLachman Dass
RespondentShiveshwarkar and ors.
Appellant Advocate I.M. Lal, Adv.
Respondent Advocate R.L. Aggarwal,; Prem Paul Enand and; Nanak Chand, Ad
DispositionPetition dismissed
Cases ReferredKrishena Kumar v. Comptroller and Auditor General of India C. W. No.
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........reads as under:'ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or railway establishment. in the exigencies of service, however, it shall be open to the president to transfer the railway servant to any other department or railway or railway establishment including a project in or out of india. in regard to non-gazetted railway servants, the power of the president under this rule, in respect of transfer within india, may be exercised by an agent or by a lower authority to whom the agent may re-delegate his power.' the petitioner is admittedly a non-gazetted railway servant and as such in terms of the later part.....
Judgment:
ORDER

H.R. Khanna, J.

1. Lachhman Das petitioner by means of this petition under Article 226 of the Constitution of India has challenged the legality of the order by which he was transferred to Ferozepore Division as Enquiry and Reservation Clerk. The validity of the order by which the increment of the petitioner was stopped for two years, and the period of his suspension was directed to be treated as non-duty period, has also been assailed.

2. The brief facts of the case are that the petitioner was appointed as Supervisor in the Department of Catering Establishment on 1st July 1956. On 11th January 1958 the petitioner was appointed Assistant Manager Catering. On 24th September 1962 the petitioner was promoted as Manager Catering. The petitioner was suspended with effect from 20th June 1964 and an enquiry was held against him on the allegation that on 11th June 1964, while on duty, he was found lying in a drunken state, smelling of country liquor along with three other persons. There was also allegation about his connivance at the sale of unauthorised private material by the vendors. The petitioner denied the allegations against him. According to the petitioner, the Enquiry Officer did not find the petitioner guilty of any charge. The disciplinary authority then considered the matter and, after discussing the material on record, observed as under:

'Summing up my discussion of evidence, I arrive at the conclusion that Shri Lachman Das had undoubtedly taken liquor but the quantity consumed could not be ascertained without a medical test so as to declare in unequivocal words that he was not fit to perform his normal duties. Giving him the full benefit of his doubt. I impose the penalty of withholding his increments permanently for two years.'

On 3rd September 1965 an order posting petitioner as Assistant Manager in the Catering Establishment was passed. It was also directed that the period of his suspension from 20th June 1964 to 24th February 1965 shall be treated as non-duty period. Subsequently, it was realised that the order about the demotion of the petitioner as Assistant Manager was contrary to Railway Board's Confidential instructions. Order was then made as a result of which the petitioner was restored to the same grade which he was holding at the time of his suspension. As the railway authorities did not think it administratively desirable to continue the petitioner in the catering department, order for his transfer to Ferozepore Division as Assistant Licensed Porter Inspector was made on 16th September 1965. The above order was later modified and it was directed that the petitioner shall take over in Ferozepore Division as Enquiry and Reservation Clerk.

3. According to the allegations of the petitioner, the above enquiry was started against him and the order about his transfer was made mala fide because he had incurred the wrath of Shri Kapur Singh, Vigilance Officer, who has been impleaded as respondent No. 2. The order of transfer has also been challenged on the ground that according to the conditions of his service the petitioner is not liable to serve in any department other than catering department. The order regarding the stoppage of increments for two years and about treating the period of his suspension as not on duty, it is claimed, has also not been validly made.

4. The petition has been resisted by the respondents, and the affidavits of Shri Kapur Singh respondent No. 2 and Shri A. K. Bhaduri, Senior Personnel Officer of Northern Railway, has been filed. I have heard Mr. Lall on behalf of the petitioner and Mr. Radhey Lal Aggarwal on behalf of the respondents, and am of the view that there is no merit in the petition.

5. So far as the allegation about the mala fide nature of the enquiry and order of transfer is concerned, I find that, according to the petitioner, in February 1964 respondent No. 2, who is Assistant to Shri Shiveshwarkar, Additional Member Vigilance in the Ministry of Railways, New Delhi, respondent No. 1, called upon the petitioner to make arrangements for a free sumptuous lunch for respondent No. 2 and his friends, and to issue a false receipt about the payment of the charges. When the petitioner declined to do so, respondent No. 2 held out a threat to the petitioner and subsequently engineered complaints against him. In reply to the above, Shri Kapur Singh respondent No. 2 has denied all the allegations made against him and has described them as totally false. It has also been denied that respondent No. 2 is Assistant to respondent No. 1. In the face of the above denial in the affidavit of Shri Kapur Singh respondent No. 2 it is not possible to hold that the enquiry against the petitioner was engineered by respondent No. 2. Apart from that, I fail to understand as to how respondent No. 2 could influence the superior officers of the petitioner in giving a finding against him and making an order regarding his transfer. I would, therefore, hold that the petitioner has failed to show that the impugned orders have been made mala fide.

6. Argument has also been advanced that all the respondents have not filed their affidavits in reply to the petition. In this respect it may be observed that apart from Shri Shiveshwarkar and Shri Kapur Singh, the other three respondents are Chief Commercial Superintendent, Divisional Personnel Officer Northern Divisional Office, and Shri Moti Lal who has now been appointed as Unit Manager Catering in place of the petitioner Allegations of personal nature have been made only against Shri Kapur Singh respondent No 2 and he has filed an affidavit controverting the allegations against him. So far as the other respondents are concerned, the affidavit filed by the Senior Personnel Officer of Northern Railway, in my opinion, is quite enough and it is not necessary in view of the absence of any personal allegations against them that they should have filed their individual affidavits. In any case no prejudice is shown to have been caused to the petitioner by the failure of those respondents to the their persona] affidavits.

7. The main question in the present case, which has been argued, is about the validity of the order transferring the petitioner from Delhi to Ferozepore Division. The contention advanced on behalf of the petitioner is that as he was Manager Catering before the enquiry was held against him he should have, after the conclusion of the enquiry, been posted back to the same post and that he should not have been transferred to Ferozepore Division either as Assistant Licensed Porter Inspector or as Enquiry and Reservation Clerk. Reference in this connection is made to the Railway Board's Schedules entitled 'Authorised Scales of Pay' according to which Manager Catering and Assistant Manager Catering belong to Group No. 61, while Enquiry and Reservation Clerks belong to Group No. 64, and Licensed Porter Inspectors belong to Group No. 68-A.

In this connection I find that Rule 146 of Indian Railway Establishment Code, which has been issued by the President in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution, reads as under:

'Ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or railway establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or railway or railway establishment including a project in or out of India. In regard to non-gazetted railway servants, the power of the President under this rule, in respect of transfer within India, may be exercised by an Agent or by a lower authority to whom the Agent may re-delegate his power.'

The petitioner is admittedly a non-gazetted railway servant and as such in terms of the later part of the rule the power of transfer in respect of the petitioner could be exercised by an agent or lower authority to whom the agent may re-delegate his power. According to Rule 2011 a competent authority may transfer a railway servant from one post to another. There follows a proviso but we are not concerned with that. It is not disputed that the post to which the petitioner has been transferred carries the same scale of pay as the post of Manager Catering which was held by the petitioner before the enquiry. As such I find that there was no legal bar to the impugned order of transfer being made in respect of the petitioner in the exigencies of service.

From the affidavit of Shri A. K. Bhaduri it would appear that some other departmental enquiry and case of misappropriation have been started against the petitioner by the Special Police Establishment and the case is now pending in the Court of Additional Sessions Judge, Delhi. As the petitioner was found indulging in embezzlement and misappropriation it was not considered desirable to keep him in the Catering Department which is a sensitive post as it involves contact with the public and monetary transactions. It was, therefore, ordered that he be transferred to a post in Ferozepore Division carrying equivalent grade. It would thus seem that the order about the transfer of the petitioner has been made keeping in view the exigencies of service and the antecedents of the petitioner and I find nothing legally objectionable to that.

8. Argument has been advanced that the authority, which made the order for the transfer of the petitioner, was not legally competent to do so. No such objection was taken in the petition and I agree with Mr. Aggarwal that the petitioner should not be allowed to agitate this matter at the hearing of the petition. Had such an objection been raised, the respondents might have adduced material to rebut such contention. Even, as things are, I find that the material on record indicates that the order in respect of the petitioner has been made by a competent authority. Annexure 'Q' to the petition, which was issued by the Divisional Personnel Officer for the transfer of the petitioner to Ferozepore Division, contains a note within it that the authority for the issue of that notice was the order of CCS i.e., the Chief Commercial Superintendent, dated 24th September 1965. According to entry No. 5 of Appendix XXXII of Indian Railway 'Establishment Code, the power to transfer a railway servant from one post to another has been delegated by the President to all heads of departments. Appendix XXXVIII gives the list of officers who have been declared to be heads of departments and according to this Appendix heads of departments include the Chief Commercial Superintendents. It would follow from the above that the Chief Commercial Superintendent was competent to pass an order in respect of the petitioner. As the indications on the record are that the impugned order was made by the Chief Commercial Superintendent, it cannot be said that it was not made by the competent authority.

9. Mr. Lall ha' then referred to the later part of Rule 146, reproduced above, according to which, in regard to non-gazetted railway servants, the power of transfer under the rule may be exercised by an Agent or by a lower authority to whom the Agent may redelegate his power. It is urged that part of the rule, Recording to which an Agent may re-delegate his powers to a lower authority, is liable to be struck down because it contravenes the maxim 'delegatus non potest delegare' according to which a delegated authority cannot be re-delegated. The above maxim was considered by their Lordships of the Supreme Court in the case of Barium Chemicals Ltd. v. The Company Law Board, Civil Appeal No. 381 of 1966, dated 4-5-1966: (AIR 1966 SC 295), and it was observed that the above maxim must not be too far (sic) and that it did not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. It was further observed that a discretion conferred by a statute on authority is intended to be exercised by that authority and by no other but the intention may be negatived by any contrary indications in the language, scope or object of the statute. In the present case the rule expressly makes a provision that the power of transfer can be delegated to a authority lower than the Agent In the face of the clear language used in the rule, there is no escape from the conclusion that the rule contemplates that such a delegation of power is permissible. The rule can also, in my opinion, be not struck down for being not in consonance with a maxim.

10. Apart from the above I am of the view that the question about the transfer of an official is primarily for the authorities concerned. A variety of factors may weigh with the authorities while considering the question of transfer, viz., the suitability of the official for the post, his aptitude, past conduct, reputation, the period for which he has been on that post and a number of other grounds which may be clubbed together under the head 'exigencies of service'. It is not for this Court in a petition under Article 226 to go into the matter and adjudicate about the advisability or propriety of the transfer. The Court can only interfere if the transfer is violative of any legal provision or is otherwise mala fide. Except in such a limited contingency, the order of transfer is neither open to judicial review nor justiciable.

11. In G. K. Tandon v. Judicial Commr. State of Ajmer, AIR 1957 Raj 230, a Division Bench of that Court held that Fundamental Rule 12-A, read with Fundamental Rule 15, which corresponds to Rule 2011 reproduced above, authorises the transfer of a Government servant from a permanent post in any service or department to a permanent transfer from one service or department. Such permanent transfer from one service or department to another service or department can be made, irrespective of the wishes of the Government servant concerned. Somewhat similar question arose before Kapur J. in Krishena Kumar v. Comptroller and Auditor General of India C. W. No. 509-D of 1965, D/- 28-1-1966 (Punj). The petitioner in that case challenged the order of his transfer. It was held that the regulations did not confer a justiciable right on the petitioner. His petition challenging his transfer was, consequently, dismissed.

12. So far as the order is concerned in respect of the stoppage of the increment of the petitioner for two years and about treating the period of his suspension as non-duty period, I find that the authority concerned found that charge against the petitioner had been partly proved. In the circumstances, the authority concerned was well within its rights to pass that order. It has not been shown to me that the aforesaid order suffers from any infirmity.

13. The petition, consequently, fails and is dismissed, but, in the circumstances, I leave the parties to bear their own costs.


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