DINESH CHANDRA SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitu tion challenges an order January, 11, 1977 (annexure '2' to the petitioner) by which the petitioner then working as an Auditor in the office of the Con troller of the Defence Accounts, General Command Meerut was transferred to Babina. In addition, it challenges the proceedings initiated against him through memorandum dated April 16, 1977 (annexure '2-A' to the petition) requiring him to show cause against the imputations of misconduct or mis behaviour on which action was proposed to be taken against the petitioner and of which annexure 2-B has been appended as a copy. The case of the petitioner, in substance, is that while he was working as an Auditor in the office of the Controller of Defence Accounts at Meerut, an order was passed on January 4, 1977 by the 4th respondent (Deputy Director of Defence Accounts) requiring the petitioner and some other Auditors form ing Group VI to sit upto 6 P. M. with effect from January 4, 1977 till further orders to clear the outstanding work of the Group. This was through Section Order No 269 of that date (annexure '3' to the petition ). The petitioner complied with this order that day but objected to be detained till 6 P. M. day after day on the ground that he had some domestic problems which made it extremely inconvenient for him to do so. The petitioner's case is that respondent No. 6 (Smt. H. K. Pannu) who was the Deputy Director of Defence Accounts did not like the objection made by the petitioner and mis behaved with him. Further on her direction, another Junior Officer also misbehaved with the petitioner so that the petitioner was greatly disturbed He made a representation (annexure '4' to the petition) on January 7,1977 which was followed by a representation by his wife (annexure 5, to the petition) on January 10, 1977. In both these representations, the misbehavior meted out to the petitioner was given out and it was prayed that enquiry be institut ed in the matter of the rude and objectionable behavior of the 6th respon dent and the other Officer, Namely Sri H. S. Kumar. The petitioner suffered shock on account of the treatment meted out to him and under medical advice proceeded on leave. Meanwhile, it is said the petitioner was transferred by an order dated January 11, 1977 to Babina arbitrarily and with a view to harass him further. The petitioner's representations for cancellation of the transfer made to the Controller of Defence Accounts, Meerut yielded no favourable result. The respondents insisted upon the petitioner joining his new place of posting. The petitioner, however, did not do so. This led to the memorandum dated April 16, 1977 (annexure 2-A to the petition) by which proceedings for the petitioners alleged misconduct and misbehaviour were initiated. The petitioner then filed the present petition on May 20, 1977 which was admitted by this Court to fuller hearing on July 19, 1977. The prayer of the petitioner for staying the operation of the order of transfer out of Meerut and further proceedings in pursuance of the memorandum dated April 6, 1977 was, how ever, rejected by this Court. Two counter-affidavits have been filed in the case on behalf of the respondents. The first of these is by R. Patnaik who was Controller of Defence Accounts at Meerut. The other is by Smt. H. K. Pannu the 6th respondent. The petition has been argued at some length by Sri Satya Narain Misra appearing for the petitioner. The first submission made by him is that the order increasing the office hours and order of transfer were contrary to the relevant instructions on the subject as contained in the Defence Accounts Department Office Manual issued under the authority of the Controller General of Defence Accounts. The petitioner was, therefore, not liable to be compelled to follow them so that no charge of misconduct could be made against him on that account. The second submission of Sri Misra is that in any case, the order of transfer being mala fide and having been made for a collateral purpose of giving vent to the displeasure of the 6th respondent and not having been made in the normal exigencies of service deserved to be quashed. Thirdly, according to Sri Misra, the sequence of events in which the order of transfer came to be made clearly established that it had been passed as a measure of punishment rendering it invalid without compliance with the prescribed procedure in that regard. Lastly, that the impugned order of transfer was discriminatory in character for persons who had stayed at Meerut for longer duration had been left intact and the petitioner had been arbitrarily picked out for removal from Meerut. It has also been urged that the sole basis of the proceedings initiated against the petitioner by the memo randum dated April 6, 1977 being the invalid order of transfer of the peti tioner to Babina, the entire proceedings so initiated deserved to be quashed. The Paragraphs of the Office Manual relating to hours of attendance, pointed out by tri Misra, run thus:- "236. The normal hours of attendance at office are from 10 a. m. to 5. 30 p m. daily with an interval from 1. 30 p. m. to 2 p. m. for liffin or relaxation. On 2nd Saturdays the office will be closed. The above hours are a guide to work on rather than a rigid limitation. Controllers may, therefore, at their discretion, authorise an earlier opening hour or a reduction in the Tiffin or midday recess as a local arrangement but in no case will the total working hours be reduced below 36 hours a week. The changes in office hours should, however, be reported to the C. G. D. A subject to the above condition, the hours of attendance of accountants and clerks attached to units and formations may also be altered by Controllers if such a course is specially desired by Officers Commanding. 237. Unless special permission is granted for late attendance, every member of the establishment is expected to be not merely in office but at work in his seat at the commencement of the office hours, viz 10 a. m. 246. The staff should apply themselves diligently to their work so that they are able to complete the quota of work allotted to them within the normal working hours. If any particular item of work requires their attendance either before or after office hours or on gazetted or other holidays, they can be called upon to put in extra hours without claim to any additional remuneration. " Normally attendance of the staff on holidays or outside office hours should not be ordered without the sanction of the Controller, who will obtain the orders of the C. G. D. A. if the working of extra hours is likely to be for pro longed or indefinite periods. The submission of Sri Misra is that having regard to the provisions aforesaid, the direction that the staff including the petitioner mentioned in the order dated 4-1-1977 shall sit till 6 p. m. "with effect from 4-1- 1977 till further orders" was illegal and the petitioner was, according to the submission, justi fied in taking objection to it. A perusal of the aforesaid paragraphs reveals that the normal hours of attendance at the office between 10 a. m. to 5. 30 p. m. are normally not to be altered without the sanction of the Controller. These paragraphs admittedly have no statutory force and are in the nature of administrative instructions. The requirement that sanction of the Controller should be obtained before requiring attendance of the staff outside office hours is, thus, not an inflexible rule for paragraph 246 itself envisages that normally the sanction is to be obtained. Any breach, assuming there was one, of this part of paragraph 246 could not make the order dated January 4, 1977 (annexure '3' to the petition) invalid. The submission, therefore, that the petitioner could not be called upon to sit beyond the normal working hours because of the failure of the authority making the order in obtaining the sanction of the Controller cannot be accepted. Besides, it appears from the order itself that it has been passed with a view to clear the outstanding work of the group to which the petitioner belonged. It is not the case of the petitioner that there was no outstanding work of the group, which had to be completed so that there was no justification for issuance of that order. The next submission in regard to the order of transfer of the petitioner to Babina may now be examined, The case of the petitioner, as noticed earlier is that the order of transfer was passed because he objected to the direction requiring him to attend office outside the normal working hours and on which account the 6th respondent became annoyed with him. In paragraphs 11, 12 and 13 of the petition, it has been averred that the objec tion of the petitioner to the extended office hours particularly through the representations made by him annoyed the sixth respondent so much that the petitioner was threatened with transfer to some unpopular station apart from misbehaving with him. The counter- affidavit sworn by R. Patnaik, the Cont railer of the Defence Accounts asserts that the petitioner was transferred in the interest of service on administrative grounds. Apparently, therefore, the respondents have controverted the case of the petitioner that the transfer was made for collateral purposes or with a view to punish the petitioner for his objection to attend office outside the normal working hours. The allega tion that the order of transfer had been actuated as mala fide has also been controverted. However, if the sequence of events leading to the order of transfer is seen, it would appear that it had been made presumably on account of the petitioner's protest regarding the extended office hours. The direction to the members belonging to group 6 to sit beyond office hours was made on January 4, 1977. On January 7, the petitioner made a representation to the Controller of Defence Accounts through proper channel pointing out therein that be had been ill-treated by the sixth respondent and an Officer subordinate to her, namely, Harish, Santosh Kumar. Further, that this was on account of the petitioner's objection to stay in the office beyond the normal working hours due to family circumstances. The petitioner's wife also made a written protest through her letter dated January 10, 1977 about the treatment meted out to her husband addressed to the Controller of the Defence Accounts. Meerut. On January 11, 1977 came the impugned order of transfer. The proximity between the protest made by the petitioner against being required to attend the office beyond the normal working hours and the order of transfer, with the intervening representations, does lend credence to the petitioner's case that the order of transfer was not made in the normal course. The assertion in paragraph 7 of the counter affidavit of Patnaik that the petitioner was transferred in the interest of justice on administrative grounds has been sworn on the basis of knowledge derived from records. No record, substantiating the assertion, has, however, been appended to the counter-affidavit. The respondents did not bring before the Court any material to justify the claim that the order of transfer was made in the interest of service on administrative grounds even though the petitioner, in his rejoinder affidavit sworn as far back as on August 16, 1977 asserted that there was no material to justify the stand that the order of his transfer was made on administrative ground. The stand of the petitioner, with reference to the administrative instruc tions contained in the Office Manual, is that in the first instance, persons, with longer duration of stay at a place are transferred out of the District in which they are working and that there were others with longer stay at Meerut who had not been transferred away. This in essence, has been admitted in the counter-affidavit of Patnaik wherein it has been stated in paragraph 7 that "it was true that some clerks having longer stay at Meerut are still working there". Apart from asserting that the Controller of Defence Accounts was competent to transfer any member of his staff in his audit jurisdiction for administrative reasons and in the interest of justice and that all members of Defence Accounts Department had accepted that they would serve any where in and outside India whenever required, the respondents have not given any material either in the counter-affidavit or otherwise to justify the transfer of the petitioner outside Meerut as a special case while persons who had been posted there for longer duration had been left out. This also indicates that a departure was made from the normal practice while directing the transfer of the petitioner to Babina. The aforesaid circumstances indicate that the transfer of the petitioner to Babina, closely following the petitioner's protest against being required to attend office beyond the normal working hours, was not made in the normal course in the interest of service as alleged but had been directed for some other reason. The power to transfer the petitioner outside Meerut, which the respondents undoubtedly, had could only be exercised by them in the interest of service and not for any collateral reason as seems to have been done in the instant case. The allegation that in making the order of transfer, the respondents were actuated by mala fide does not, however, appear to be correct. The allegation of mala fides against the sixth respondent made by the petitioner has been denied on oath by that respondent. No cogent material has been placed on record by the petitioner from which the mala fides of the sixth respondents can be said to be established. Besides the allegation of mala fide must also fail in view of the manner in which the petitioner's case was dealt with by the respondents subsequently to the impugned order of transfer, The transfer order (annexure '2' to the writ petition) directed that the petitioner would be treated to be off duty at Meerut in the afternoon of January 11, 1977, and that he was to join has new place of posting in the fore-noon of January 20. 1977. The petitioner, admittedly, did not join at Babina and applied for leave on medical grounds. On February 14, 1977 he wrote to the Controller General of Defence Accounts through proper channel that he had recovered from his illness and was submitting fitness certificate dated February 11, 1977 to the Controller of Defence Accounts, Central Command. Meerut. The respondents regularised the absence of the petitioner from duty by grant of leave upto February 11, 1977. The Accounts Officer attached to the office of the Controller of Defence Accounts, Central Command, Meerut intimated the petitioner that since the petitioner had failed to resume duty on February 11, 1977 even after being declared fit to do so, he was being treated as absent without leave from after that date. The respondents cannot be said to have been actuated by any malice against the petitioner in these circumstances. The grievance of the petitioner that the order of transfer dated January 11, 1977 had been passed as a measure of punishment against him need not be gone into for, as held earlier, the order, though not mala fide in fact was passed not in the normal course in the interest of service but for some extra neous considerations. That would be enough to hold that it was not a valid order, more so, when no justification was disclosed for the departure in the matter of transfer, in the case of the petitioner, from the normal practice of transferring out those who had a longer duration of stay at a particular station. Now about initiation of proceedings against the petitioner through the memorandum dated April 6 1977 (annexure 2-A to the writ petition ). The accompanying statement of imputation of misconduct or misbehavior on which action was proposed to be taken against the petitioner (annexure '2-B' to the writ petition) shows that the main allegations against the petitioner are that he continued to disobey the order requiring him and other members of our group to sit late beyond office hours which amounted to infringement of the provisions of sub rule (iii) to Rule 3 (1) to C. C. S. Conduct Rules, 1964 and of his disobedience of the order of transfer to Babina by not joining at that station and continuing to remain absent from duty even after expiry of medical leave. The petitioner made applications for cancellation of his transfer to Babina. The request of the petitioner in this regard was not accepted, From some of the letters addressed to the petitioner by the office of the Controller of Defence Accounts, Central Command, Meerut of which of copies have been filed by the petitioner as annexures to the writ petition, it appears that the petitioner was informed about the refusal by the respondents of the request to cancel the order of transfer of the petitioner to Babina. Further, the petitioner was advised to join duties at Babina. In fact, through the letter dated April 11, 1977 (anuexure '9' to the writ petition), the Assistant Con troller of Defence Accounts, Meerut informed the petitioner that copies of the petitioner's application dated January 7, 1977 and January, 20, 1977 were also forwarded to the Controller General of Defence Accounts, New Delhi and the gist of the latter's letter conveying his decision had already been intimated to the petitioner. Further, that the petitioner's threat to go on hunger strike would attract provisions of Rule 7 (ii) of the C. C. S. (Conduct) Rules, 1964 and action would be taken against the petitioner if he resorted to unauthorized form of agitation in connection with his transfer. It was also mentioned in the letter that he should report for duty at his new place of posting failing which the petitioner would render himself open to disciplinary action for unauthorised absence and disobedience of order. Notwithstanding repeated suggestions that the petitioner should join at his new place of posting, the petitioner did not do so. The counsel for the petitioner has stated that the petitioner has not done so till now. The conduct of the petitioner in failing to report for duty at Babina, in spite of being declared medically fit to resume duties and inspire of repeated advice by the respondents in this regard is such which disentitles him from any relief in the matter of the enquiry which has been initiated against him through the memorandum dated April 6, 1977 whether the petitioner was justified in refusing to sit late beyond the office hours or not and whether his failure to report for duty at Babina, calls for any disciplinary action against him or not are questions which are pending departmental enquiry. As such, it will not be proper to express any opinion on those questions in this judg ment. However, the present is not a fie case in which the equitable jurisdic tion of this Court should be exercised in favour of the petitioner at this stage in regard to the departmental proceedings initiated against him through the memorandum dated April 6, 1977. In the result, the petition succeeds in part. The order of transfer dated Janaury 11, 1977 (annexure '2' to the writ petition), in so far as it relates to the petitioner is quashed. The prayer for quashing the proceedings initiated by the memorandum dated April 6, 1977 (annexure '2-A and 2-B' to the writ petition) is refused. Parties are directed to bear their own costs. .