The applicant is an Accountant Member of the ITAT, Chandigarh who, having joined the employment aforementioned on 25.8.2003, came to be transferred to the ITAT, Chandigarh Bench on 25.10.2010. He has been, vide order Annexure A-I dated 23.1.2012, ordered to be transferred to the Rajkot Bench of the ITAT. The transfer is indicated to have been ordered “in public interest”.
3′ The applicant has applied for the invalidation of the impugned transfer order by averring that it is punitive in character because he had a difference of opinion in a judicial matter with private Respondent No.4, who made a complaint against him. An inquiry was conducted by the Senior Vice President of the ITAT at Delhi who, without affording an opportunity of a hearing to him, indicted him and, then, opted to become a part of the collegium of the ITAT (the other two members being the President and the other Vice President of the Tribunal respectively), which recommended his transfer.
(OA No. 87-CH of 2012)
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 87-CH of 2012 Chandigarh, this the 27th day of February, 2012
CORAM: HONORABLE MR. JUSTICE S.D.ANAND, MEMBER (J) HONORABLE MR.KHUSI RAM, MEMBER (A)
D.K. Srivastava, aged 59 years, S/o Shri N.S.Srivastava, Accountant Member, Income Tax Appellate Tribunal, Chandigarh, resident of House No.302, Sector 7-A, Chandigarh.
1 .Union of India, through Secretary to Government of India, Ministry of Law & Justice (Department of Legal Affairs) Shastri Bhawan, Dr.Rajendra Prasad Road, New Delhi-110001
2. Shri G.E.Veerabhadrappa, President, Income Tax Appellate Tribunal, 4th Floor, M.K. Road, Mumbai 400020
3. Shri G.D. Aggarwal, Vice President, Income Tax Appellate Tribunal, 10th Floor, Lok Nayak Bhawan,. Khan Market, New Delhi-l 1003
4. Ms. Sushma Chowla, Judicial Member, Income Tax Appellate Tribunal, Kendriya Sadan, Sector 9, Chandgiarh.
HON’BLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
Though a conjunctive perusal of the pleadings raised by the parties and the documentation available on record (including the confidential cover produced by the official respondents) indicates an unsavoury and uneasy situation prevalent at the Chandigarh Bench of the Income Tax Appellate Tribunal (hereinafter referred to as ‘the ITAT’) and the litigating parties are found to be engaged in an unenviable endeavour to wash the proverbial dirty linen in public, the adjudicatory exercise in this O.A. has to compulsively come about on the touchstone of legality. The prevalence of the factual scenario, indicating almost complete want of trust and faith inter-se, ought to be foreign to each segment of dispensation of justice which (system), for optimum and unbiased delivery requires an ambience based upon balanced and conscientious approach. For reasons of propriety, we are not noticing any part of the mutual acrimony as between the personnel who are a part of the dispensation at the local Bench of ITAT. We, though without sounding accusatory in any manner, express our deep sense of exasperation at the prevalent scenario. We hope and trust that the sentiments expressed by the President of the ITAT in the course of his letter dated 4.1.2012 for ensuring bonhomie at the local Bench of the ITAT, would be pursued to its logical conclusion.
2. The applicant is an Accountant Member of the ITAT, Chandigarh who, having joined the employment aforementioned on 25.8.2003, came to be transferred to the ITAT, Chandigarh Bench on 25.10.2010. He has been, vide order Annexure A-I dated 23.1.2012, ordered to be transferred to the Rajkot Bench of the ITAT. The transfer is indicated to have been ordered “in public interest”.
3′ The applicant has applied for the invalidation of the impugned transfer order by averring that it is punitive in character because he had a difference of opinion in a judicial matter with private Respondent No.4, who made a complaint against him. An enquiry was conducted by the Senior Vice President of the ITAT at Delhi who, without affording an opportunity of a hearing to him, indicted him and, then, opted to become a part of the collegium of the ITAT (the other two members being the President and the other Vice President of the Tribunal respectively), which recommended his transfer.
4. Further averments, made in the context of the plea for invalidation of the impugned transfer order, are that he has not completed his tenure at ITAT Chandigarh and that his wife is undergoing certain treatment at Chandigarh.
5. The further plea, raised by the applicant, is that the impugned transfer order deserves to be, quashed as not being in accord with the guidelines laid down by the Hon’ble Apex Court in AJAY GANDHI & ANR. VS. B.SINGH & DRS (2004) 186 CTR(SC) 506 : (2004) 265ITR 451 Sc.
6. The official respondents, and also the private respondents denied the allegations of malafides. The former set of respondents averred that the transfer had been ordered in public interest. It is not denied that a complaint made by private respondent No.4 had been gone into by the Senior Vice President of the Tribunal at Delhi. Further averment is that no hearing as such was required to be afforded to the applicant as the impugned transfer is not by way of punishment.
7. I The private respondent No.4 denied the allegations of malafides and averred that the boot is, in fact, on the other leg inasmuch as it is the applicant herein (and certain other members of the ITAT, Chandigarh), who had been subjecting her to harassment. In that context, it is averred that there were different bunches of (identical) appeals which came to be assigned to different combinations of Benches. A particular bunch came to be heard by a Bench consisting of the applicant and the private respondent on 3/4.11.2011. The applicant (while being a part of another Bench with a different Member) heard arguments in the other bunch on 22.11.2011. The earlier bunch came to be allotted to the private respondent for dictation. She prepared a draft on 4.11.2011 and forwarded it to the applicant who retained it with him till 30.12.2011 and, thereafter, returned it to her with an endorsement that the other Bench, consisting of the applicant and another Member, had taken a contrary view in the course of their decision announced on 26.12.2011. The plea made is that it was inappropriate on the part of the applicant to retain the draft judgment (forwarded by her) till 30.12.2011 and, then, to return it with endorsement dated 30.12.2011 to the effect that a contrary view had been taken by a Coordinate Bench in the matter of other bunch on 26.12.2011.
“Procedure in cases of dissent
6. If the preliminary discussion between the Members after the hearing of a case indicates the likelihood of a disagreement, the Member dictating the order may make out a draft order in the first instance and send it to the other Member for consideration. If the other Member agrees, the draft will be finalized. Otherwise, he may draft his own order and show it to his colleague. After each Member had an opportunity to go through the draft as prepared by the other Member, the respective orders should be finalized and signed, preferable on the same day or soon thereafter. In case of dissenting orders, the Senior Members will draft the points of difference between the two Members for reference to the President. The point of difference of opinion drafted by the Senior Member shall be signed by the other Member. Only in cases where it becomes absolutely essential even after mutual discussion, the other Member may draft separately the points of difference of opinion. In such cases, both the sets of questions will be referred to the President along with a request to refer to the Third Member also the difference or the points of difference. Perhaps such a situation can be avoided if point/s of difference confines to the conclusion to be arrived at.
Members should, as far as possible, try to avoid differing in opinion on small issues of fact and also as to the decision on a Reference Application or Miscellaneous Application.
Even in a case where one of the Members desires to pass a separate but concurring order, he should send a draft of the proposed order for the perusal of the other Member before it is signed.”
15. Insofar as the averment qua the impugned order having come about on the basis of a complaint is concerned, it may be noticed that the applicant has only been transferred from one Bench to another. If an order in the disciplinary facet had come about, the applicant would have had a valid and legitimate grievance. The mere fact of transfer from oneBench to another does not entitle the applicant to raise an acceptable grievance for obtaining invalidation of the impugned transfer. This view of ours is in respectful accord with the view of the learned Division Bench in the case of Rajinder Singh (supra). The relevant para of the judgment is extracted here under:-
“(13). On the basis of the above, we hold that the exercise of the power of transfer by the employer cannot be declared as illegal merely because the transfer is effected on the basis of complaint and before transferring the employee, an inquiry consistent with the principles of natural justice is not held and an opportunity of hearing is not afforded to the employee. Ordinarily, the employer is free to effect transfer on the basis of complaint or such other source about the contents of the complaint/ adverse report. Even this may not be necessary in a case where the employer forms a bonafide opinion that retention of the employee at a particular place even for a short period will cause injury to public interest.”
16. In the course of the judgment, the Division Bench had also noticed the following observations made by Hon’ble Mr. Justice V.K. Bali (as His Lordship then was) in the reference order:-
“In my considered view simply because there are complaints against an employee and he had not been heard prior to his transfer, the order of transfer cannot be styled to be either arbitrary, unreasonable or capricious or even based upon extraneous considerations. Giving right of hearing in my considered view, would be rather counter-productive when the complaints are of serious nature. Right of hearing in its very nature would take a considerable time because the said complaint shall have to be put to the delinquent officer to which he would have a right to reply. In the very nature of things the reply shall have to -be considered and in case the reply given by the person concerned requires facts to be established, evidence shall have to be recorded. A right of hearing has not to be an empty formality and if the said right of hearing involves a lengthy procedure which procedure in fact is already in offing by way of proceedings against the officer in a departmental inquiry then in a given case the right of hearing might go on till such time the inquiry is pending against the officer. If, therefore, we stress the right of hearing a little further and in the manner indicated above in order to test the plausibility of such right to be given or not then it necessarily involves finding of facts by the competent authority by arriving at a conclusion which in the nature of things cannot be done without recording evidence. The procedure of hearing, therefore, taken to its logical end, in my view would frustrate the very purpose of transferring officer against whom the complaints are pending and or which complaints the employee wants to make a regular inquiry. The facts of the present case would go to show that the petitioner during inquiries to be conducted against him has been reinstated and if he is permitted to be posted at the same place then the inquiry may not be an independent one particularly when the complaints are made by the subordinate of the officer involved and the public with whom he has to deal. It would be very difficult for a subordinate or for the public to depose against an officer while he is on the hob. The apex Court considered the scope of power of interference of the High Court under Article 226 of the Constitution of India in the matter of transfer in a recent judgment in Union of India and others v. Shri H.N. Kirtania, 1989 (3) Judgment Today 131, and observed that transfer of a public servant made on administrative ground or in public interest should not be interfered unless there are strong grounds rendering. the transfer order illegal on the ground of violation of statutory rules on the ground of mala fides. Transfer is only an incipience of service and no one has a right to continue at a particular place of posting and it is within the jurisdiction of the employer to post him wherever he chooses in. the exigencies of service. The settled law on the point is that there is a limited scope for courts to go into the administrative order of transfer and It is only if it is tainted with mala fides or is based upon collateral purposes or is a color able exercise of powers stemming from mala fides that the Court can interfere.
Dated: February) 27th 2012