CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH : NEW DELHI

O.A. NO. 1707/2006
New Delhi, this the 18th day of January, 2007

HONBLE MR. MUKESH KUMAR GUPTA, MEMBER

(J)

Smt. G. Lalita,
W/o Shri G.V.S.S. Murthy,
Senior Investigator (Ad-hoc)
Central Statistical Organisation,
Ministry of Statistics & Programme Implementation,
Sardar Patel Bhawan, Sansad Marg,
New Delhi-110001
Applicant
(By Advocate: Shri Sanjay Kumar Das)
Versus
Union of India
Through the Secretary,
Ministry of Statistics & Programme Implementation,
Sardar Patel Bhawan, Sansad Marg,
New Delhi-110001
Respondent
(By Advocate: Shri R.N. Singh proxy for Shri R.V. Sinha)

ORDER

Challenge is made to order dated 25th July, 2006

whereby applicant has been transferred to Kolkata along
with the post.

2. Factual matrix is that applicant appointed as

Computer in the Central Statistical Organization
(hereinafter referred as CSO) vide order dated
12.07.1990, promoted as Junior Investigator in 1995, was
 2

further promoted as Senior Investigator on ad-hoc basis

vide order dated 01.02.2001. Based on 5th CPC
recommendations, a Subordinate Statistical Service was
constituted and she opted to be part of said service. 4
officials, including applicant filed OA No. 2137/2002
seeking regularization and counting of ad hoc service in
said grade, was disposed of vide order dated 29.05.2003
with direction to consider her claim in accordance with
law whenever regular vacancy arises and further that
applicant shall not be reverted unless someone promoted
on ad hoc basis to Grade IV of ISS is reverted. Vide
impugned order dated 25.07.2006, applicant on the
sanctioned strength of National Accounts Division, CSO,
Delhi was transferred to CSO (Industrial Statistics Wing)
Kolkata. Immediately thereafter i.e. on 27.7.2006, a
Memorandum was issued, directing her to explain as to
why disciplinary action under rule 14 of CCA (CCS) Rules,
1965 be not initiated for submitting forged documents in
disciplinary case against Shri Y.K. Kalsi. It would be
expedient to notice the said Memo, which reads as
under:-

WHEREAS, a disciplinary proceeding

under Rule 14 of CCA (CCS) Rules 1965 was
initiated against Shri Y.K. Kalsi, a JAG Level
officer of ISS for his unauthorized absence. On
completion of inquiry the Inquiry Officer gave
his findings on 7.7.2005. A copy of Inquiry
report alongwith a note of disagreement by the
Disciplinary Authority with reference to Article
II and III of the chargesheet was forwarded to
the Charged Officer on 7.12.2005 with the
 3

request that he might give his representation, if

any, within 15 days. No response was received
from the Charged Officer. A communication
dated 1.3.2006 was received from Shri T.R.
Mohanty, the Defence Assistant of the Charged
Officer in this case giving comments on the
Inquiry report and disagreement indicated by
the Government. The said communication was
not on behalf of the Charged Officer. Therefore,
Shri T.R. Mohanty was requested to furnish a
letter of authorization from Shri Y.K. Kalsi
authorizing him to submit the said
communication.
WHEREAS, a letter dated 31.3.2006 was
received from Shri Y.K. Kalsi that comments on
inquiry report and disagreement note
submitted by Shri T.R. Mohanty was authorized
by him. The letter was sent from the residential
address of Shri T.R. Mohanty, former Defence
Assistant and was handed over to Under
Secretary (ISS) by Smt. G. Lalitha, Statistical
Officer, CSO (NAD) on 12.4.06. As the
signature of Shri Y.K. Kalsi appeared to have
been forged by someone, all relevant
documents were handed over to the Examiner
of Question Documents (EQD) for verification.
The report of EQD confirmed that signature of
Shri Y.K. Kalsi in the letter dated 31.3.2006
stated herein, was forged.
NOW, Smt. G. Lalitha, is hereby, directed
to explain as to why disciplinary action under
Section 14 of CCA (CCS) Rules should not be
taken against her for submitting the said
forged document in the disciplinary case
against Shri Y.K. Kalsi. Explanation of Smt. G.
Lalitha should reach the undersigned with 7
days of the receipt of this communication.
Sd/-
(A.K. Saxena)
Joint Secretary to the Govt. of India
 4

(emphasis supplied)
3. In response thereto, she made detailed
representation dated 31.07.2006 stating in specific that
Sh. T.R.Mohanty, Defence Assistant of Sh. Y.K.Kalsi never
asked her to submit any letter on his behalf to Under
Secretary (ISS) or anyone in the Ministry. Citing personal
family problems prayer for cancelling said transfer was
also made. Another detailed representation dated
01.08.2006 was also addressed to National Commission
for Women pointing out high handedness of authorities in
issuing said transfer order. Vide para-8, it was specifically
stated that hints were given that she could return back to
New Delhi on making statement against Sh. Mohanty
(Annexure A/5). In any case, the transfer order is punitive
and liable to be quashed and set aside, contended Shri
Sanjay Kumar Das, learned counsel for applicant. It was
also pointed out that applicant has got two minor children
aged 11 and 6 years, who are studying in 6 th and 1st
standards respectively. Besides this, her husband is
working with Lok Sabha Secretariat, which is not a
transferable post. Her husband also made a
representation to Honble Minister for State (Independent
Charge), Ministry of Statistics & Programme
Implementation in this regard.

4. The impugned transfer order stems from an

allegation of misconduct, which is the very foundation of
said impugned order, as evident from show cause notice
dated 27.7.2006. This being a punitive order, is liable to
 5

be quashed and set aside. It amounts to imposing

punishment of transportation for a term of more than 20
years. Even though order dated 25.07.2006 appears to be
the transfer simpliciter but when examined in the light of
subsequent Memorandum dated 27.7.2006 as well as the
stand taken by Respondents in the reply filed to the OA, it
would be clear that it casts a stigma and carries penal
consequences. The entirety of circumstances preceding
or attendant on the impugned transfer order must be
examined and the overriding test will always be whether
the alleged misconduct is a mere motive or is the very
foundation of the order. The present transfer order is
liable to be set aside as the form of the order is a mere
cloak or camouflage for an order based on misconduct.
The impugned transfer order is non-est in law and is a
nullity. The post held by applicant cannot be transferred
to any other station as two posts of Senior Investigators
in Industrial Statistic Wing, CSO, Kolkata, were abolished
based on recommendations made by Staff Inspection
Unit, which carried a detailed and minute study of the
work requirement. Applicant had been specifically trained
for the needs of the National Accounts Division, CSO, and
could not logically be expected to work in the Industrial
Statistics Wing, CSO of whose work she has no
knowledge. National Accounts Division and the Industrial
Statistics Wing are two different & distinct
divisions/wings having separate budget heads, which are
not inter-changeable. Even Memorandum dated
 6

27.7.2006 did not allege that applicant had forged the

letter or she knew that it was forged or that she intended
that the alleged forged letter should be passed off as
genuine. She has been punished without holding a fair
trial or without affording her any opportunity of
defending herself. Strong reliance were placed on AIR
1976 SC 1766 : 1976 (3) SCC 334 Regional Manager v.
Pawan Kumar Dubey, AIR 1957 SC 886:1958 SCR 509
Hartwell Prescott Singh v. Uttar Pradesh
Government & Ors., 1970 (2) SCC 871 : AIR 1971 SC
1011 State of Bihar Vs. S.B. Mishra, AIR 1968 SC 1089
: 1968 (3) SCR 234 State of Punjab v. Sukhraj
Bahadur, 1969 (2) SCC 158 : AIR 1970 SC 77 Debesh
Chandra Das v. Union of India, AIR 1963 SC 531 :
1963 (3) SCR 716 Madan Gopal vs. State of Punjab,
AIR 1974 SC 2192 : 1974 (2) SCC 831 (7-Judges)
Shamsher Singh v. State of Punjab, AIR 1979 SC 429 :
1979 (1) SCC 477 Manager, Government Branch
Press vs. D.B. Belliappa, AIR 1984 SC 636 : 1984 (2)
SCC 369 Anoop Jaiswal vs. Govt. of India, AIR 1985 SC
84 : 1985 (1) SCC 56 Nepal Singh vs. State of Uttar
Pradesh, AIR 1986 SC 1626 : 1986 (3) SCC 277 Jarnail
Singh v. State of Punjab. In Jarnail Singh (supra), after
making survey of earlier decision, it was observed that:

It is the substance of the order i.e. the

attending circumstances as well as the basis of
the order that have to be taken into
consideration. In other words, when an
allegation is made by the employee assailing
 7

the order of termination as one based on

misconduct, though couched in innocuous
terms, it is incumbent on the Court to lift the
veil and to see the real circumstances as well
as the basis and foundation of the order
complained of.
(emphasis supplied)
5. Learned counsel further laid great stress that the
impugned transfer order cannot be termed in public
interest, a condition precedent for exercise of such power.
Placing strong reliance on AIR 1967 SC 1260 State of
Uttar Pradesh v. Madan Mohan Nagar, it was urged that
the impugned order clearly attaches a stigma & any
person who reads the order dated 25.7.2006 along with
order dated 27.7.2006 would immediately consider that
there is something wrong with her. Said orders naturally
conclude that applicant was found to be undesirable and
that must necessarily import an element of punishment
which is the basis of the order and is its integral part. The
aforesaid judgment was relied in the context of earlier
judgment of the Honble Supreme Court in Jagdish
Mitter vs. Union of India AIR 1964 SC 449, noticed
therein to suggest that the impugned order casts an
aspersion or attach a stigma. Reliance was also placed on
2002 LAB. I.C. 3285 Bhagwan Verma vs. Secretary,
Board of High School and Intermediate Education,
U.P., particularly to para 9 to suggest that from the
language used in the impugned order of transfer, it was
evident that her transfer was punitive and had been
 8

passed without holding a preliminary enquiry and was

based on bald and sweeping allegations.

6. Respondents, on the other hand, resisted the claim

laid stating that applicant has already joined her duties at
Kolkata on 7th August, 2006 and, therefore, the challenge
made to order dated 25.07.2006 has been rendered only
of academic in nature. On merits it was stated that due to
involvement of applicant: in forgery case of
signature, her continuance in the Ministry (New
Delhi) was not found desirable because of
investigations are under progress. The impugned
transfer is neither a matter of punishment nor same casts
any stigma. Some work of statistical function was
transferred to CSO (I.S. Wing Kolkata), hence there was a
requirement of a person to be posted there. Reply para-6
further stated that: in view of the fore-goings it was
considered essential to transfer her in Government
interest along with the post. The competent authority had
taken into account all relevant facts related to public
interest and the same did not suffer from any infirmity.
The post of Senior Investigator is sanctioned in the CSO
and not exclusively to National Accounts Division.
Recently some additional works had also been entrusted
to CSO, I.S. Wing, Kolkata. As the allegation of forgery is
under investigation and she is also a party to the case, a
show cause notice dated 27.7.2006 was issued, which did
not amount to imposition of penalty. The transfer order is
purely administrative requirement and as per the
 9

provisions, which is otherwise the prerogative of the

Government. Shri R.N. Singh, learned proxy counsel
placed strong reliance on 2001 (8) SCC 574 National
Hydroelectric Power Corporation Ltd. vs. Shri
Bhagwan & Anr, 1993 (4) SCC 357 Union of India &
Ors vs. S.L. Abbas, JT 2004 (2) SC 371 Union of India
& Ors vs. Sri Janardhan Debanath & Anr. to suggest
that applicants transfer does not require any
interference by this Tribunal. The learned counsel also
placed on record a note submitted by Under Secretary
dated 4.12.2006 suggesting that the preliminary inquiry
was conducted by DDG, submitted his report on
7.10.2006, and a decision is being taken by the
competent authority on the said findings.

7. I have heard Ld. Counsel for parties & perused the

pleadings & material placed on record carefully.

8. The issue which arises for consideration is,

therefore, whether the impugned Order dated 25th July,
2006 is punitive or in public interest?

9. The matter was also listed FOR BEING SPOKEN on

5.1.2007, when the respondents disclosed that there is no
progress made on the Note dated 4.12.2006, as noticed
herein-above, and the competent authority has yet not
taken decision thereon. Further, applicants husband
representation was rejected, which fact had been
informed to Member of Parliament vide communication
dated 3rd August, 2006. Ld. Counsel for respondents
 10

clarified that copy of aforesaid communication was

neither endorsed to applicant or her husband, as the
same was preferred through the said MP. Said
communication reads as:

Kindly refer to your letter dated July 27, 2006

forwarding representation from Shri
G.V.V.S.Murthy seeking to cancel the transfer
orders issued to Smt. G.Lalita, Senior
Investigator, CSO (IS Wing) in this Ministry and
to retain in Delhi. I have had the matter
examined.
The transfer order has been issued to Smt.
G.Lalita on administrative grounds. I hope you
would appreciate the position.

10. Ld. Counsel further, on query raised clarified that

since representation made by her husband had been dealt
with on merits, her representation dated 31.7.2006, was
not required to be dealt with. Applicant in person
informed the Tribunal that she has been selected on
deputation for one year, and at present is not working at
Kolkata. It has rightly been pointed out that applicants
representation dated 31.7.2006 was later in time than her
husbands representation, which was dated 27.7.2006 &
by that time the Memo dated 27.07.2006 had not been
served upon her & therefore, there was no reason or
justification in ignoring the said detail representation.
The fairness demanded that the said representation ought
to have been considered particularly when she had
alleged that someone from Deptt. wanted to struck a deal
 11

with her & required her to make statement against

Mohanty.

STIGMA
11. Learned counsel strongly relied on the observations
made and the ratio laid down in Jagdish Mitter (supra), as
noticed in State of Uttar Pradesh v. Madan Mohan Nagar
(supra) to stress that law laid down therein squarely
applies to the facts of present case. Observations made
read thus:

In our opinion this case is covered by the

principle applied in Jagdish Mitter vs. Union of
India AIR 1964 SC 449. It is true that that was
a case of temporary servant, but that does not
matter. The order in that case reads as follows:
Shri Jagdish Mitter, a temporary 2nd
Division Clerk of this Office having been
found undesirable to be retained in
Government service is hereby served with
a months notice of discharge with effect
from November 1, 1949.
Gajenderagadkar, J., as he then was, speaking
for the Court, said:
No doubt the order purports to be one of
discharge and as such can be referred to
the power of the authority to terminate
the temporary appointment with one
months notice. But it seems to us that
when the order refers to the fact that
the appellant was found undesirable
to be retained in government service,
it expressly casts a stigma on the
appellant and in that sense must be held
to be an order of dismissal and not a mere
order of discharge.
 12

Later, he observed:
It seems that anyone who reads the
order in a reasonable way, would
naturally conclude that the appellant
was found to be undesirable, and that
must necessarily import an element of
punishment which is the basis of the
order and is its integral part. When an
authority wants to terminate the services
of a temporary servant, it can pass a
simple order of discharge without casting
any aspersion against the temporary
servant or attaching any sigma to his
character. As soon as it is shown that the
order purports to cast an aspersion on the
temporary servant, it would be idle to
suggest that the order is a simple order of
discharge. The test in such cases must be:
does the order cast aspersion or attach
stigma to the officer when it purports to
discharge him? If the answer to this
question is in the affirmative, then
notwithstanding the form of the order, the
termination of service must be held, in
substance, to amount to dismissal.
(emphasis
supplied)

Learned counsel strongly contended that when order

dated 25.07.2006 is read along with order dated
27.07.2006, real circumstances, foundation & motive for
passing said orders become crystal clear, which casts a
stigma.

12. Further contention raised was that impugned order

being in punitive in nature deserves to be quashed. It was
further maintained that it is trite that this Tribunal has
power to lift the veil and go behind the Order to
 13

determine the above. On bestowing my thoughtful

consideration to the facts noticed, rival contentions raised
vis--vis the material on record, I am of the considered
view that in given circumstances it is not necessary to lift
the veil as the real circumstances, motive and foundation
for such transfer were disclosed by the respondents not
only vide Memo dated 27th July, 2006 but also in reply
filed to present OA, as noticed hereinabove. The
applicants continuance in Delhi was not found
desirable due to her alleged involvement in forgery
case of signature. It is admitted case of parties that
neither any criminal proceedings were ever initiated nor
she was placed under suspension. In my considered view
when the respondents recorded their view about her
undesirability, it casts sigma. When report of the
Examiner of Question Documents, Chandigarh was
received on 10.7.2006 & DDG, submitted his preliminary
inquiry report on 17.10.2006, & respondents concluded
the alleged incident/act amounts to criminal misconduct,
as revealed vide Note dated 4.12.2006, why they did not
take any final decision in the matter & dragged their feet?
Instead of taking prompt, swift & speedy action, the
respondents adopted & took recourse to easy method.
Allegation of forgery of signature, which is a criminal
offence cannot be examined & proved in departmental
proceedings.
 14

PUBLIC INTEREST
13. It has been further maintained that impugned order
has not been passed in public interest. When
Respondents failed to produce any material or record to
show any application of mind in passing said orders, the
natural consequence is that Court should draw an
inference that there was no public interest served in
passing said orders. Incidentally, this question had been
considered by the Honble Supreme Court in Ramadhar
Pandey, 1993 Supp (3) SCC 35, the relevant excerpt of
which reads as under:

16. What is to be considered is whether

there is any public interest involved in the
transfer of the appellant as Joint Secretary. We
have already extracted the order by which the
appellant came to be transferred. Clause 2(b)
of the Fundamental Rules as amended by Uttar
Pradesh Fundamental (Second Amendment)
Rules, 1981 provides that notwithstanding
anything to the contrary contained in these
Rules, the Governor may in public interest
transfer a government servant to a post in
another cadre or to an ex-cadre post. The order
dated July 8, 1992 does not recite any public
interest. 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 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
 15

being absent, the impugned order of transfer

cannot be supported.
(emphasis
supplied)

In the present case, transfer order dated 25.7.2006

does not recite any public interest & it is only in the reply
affidavit such plea was put forth.

TRANSFER OF POST
14. The applicant has been transferred to Kolkata along
with the post. It is an admitted fact that National
Accounts Division and Industrial Statistics Wing are two
distinct and independent Wings. Job contents are far
apart each other. They have separate budget and posts
are not inter-changeable. A person posted in National
Accounts Division could not mechanically be expected to
work in Industrial Statistics Wing. It is an admitted fact
that Staff Inspection Unit, Ministry of Finance recently
conducted scientific study, cut down 2 posts of Sr.
Investigator in the CSO (Industrial Statistics Wing)
Kolkata. Apart from stating that some work of Statistical
function was transferred to CSO (Industrial Statistics
Wing) Kolkata, neither any material nor any document or
record was produced to support the said contention. Said
plea raised, is a ploy to give it a colour as of public
interest, which is otherwise found to be wanting. If some
work had been transferred to CSO (Industrial Statistics
Wing) Kolkata, details thereof should have been provided
and disclosed at least by producing some records. Such
 16

are not the facts. Recently a Division Bench of Punjab &

Haryana High Court in 2006 (2) ATJ 191 Vinod Kumari
& Ors. v. State of Haryana & Ors., noted the police
rules by which the cadre of Constables and Head
Constables was limited to the district level and ASI/SI at
range level and held that their transfers beyond the
police district level and range level were not sustainable
in law. It is well known that the budget in relation to
government establishment is approved by the Parliament,
and posts are created for a particular office for the duties
and responsibilities assigned to be done there in public
interest, usually after scientific work study. Salary is then
paid by debit to the public exchequer. There is no
material, I may note at the cost of repetition, on record to
show that there was any application of mind in
transferring the post after establishing existence of work
corresponding to the post by Respondents to ensure that
public interest would actually be served by such decision
and merely to characterize and to brand the order in
public interest and that too in the reply affidavit is not
sufficient, particularly when the action of the authorities
is challenged in the court of law. It had been pointed out
that very recently applicant has been selected on
deputation for a period of one year and posted in Delhi. If
applicants transfer along with the post to Kolkata was
necessary in the given circumstances, then why she has
been relieved on deputation. Respondents have also not
explained as to how the post vacated by her has been
 17

filled up or being managed. In other words, one can

reasonably conclude that there was no public interest in
transferring applicant to Kolkata along with post.

FAIRNESS
15. The entire edifice for applicants transfer had been
built upon the incident of her act of handing over some
papers relating to a departmental enquiry against Shri
Y.K. Kalsi. There is no allegation in the entire
Memorandum dated 27th July, 2006 or in any other
documents including the reply affidavit filed that
applicant attempted to pressurize any witness or destroy
documentary evidence or she is, in any way, involved in
committing alleged forgery. It is also not disputed that
Shri Y.K. Kalsi made a representation and specifically
stated that he had authorized Shri T.R. Mohanty, his
defence assistant, to furnish comments on enquiry report
and disagreement indicated by the Government. When
such are the facts, I am of the considered view that
Senior functionaries in the Government failed to analyze
these aspects with open mind dispassionately and a non-
issue has been made an issue of far reaching
consequences without any justification. In other words,
the respondent acted in haste. Fairness in public
administration is a rule to ensure that the vast power in
the modern State is not abused but properly exercised.
The State power is used for proper and not for improper
purposes. The authority is not misguided by extraneous
or irrelevant considerations. Fairness is also a principle to
 18

ensure that statutory authority arrives at a just decision

either in promoting the interest or affecting the rights of
persons. It is well known phrase that justice should not
only be done but be seen to be done (refer 1990 (2)
SCC 48 - Management of M/s. M.S. Nally Bharat
Engineering Co. Ltd. vs. State of Bihar & Ors.).

16. The judgment cited by Respondents is inapplicable

in the facts and circumstances of the case. In Janardhan
Debanath (supra), the Court made observation that the
question of holding an enquiry to find out whether there
was mis-behaviour or misconduct unbecoming of an
employee is un-necessary and what is needed is the
prima-facie satisfaction of the authority concerned on
the contemporary reports about the occurrence
complained of. In the present case, the allegation of
delivering a note containing false signature was made
after the transfer order had been effected & no
Memorandum issued or enquiry conducted for such prima
facie satisfaction before taking the extreme step. Other
judgments cited by respondents are also inapplicable in
the peculiar facts & circumstances of the present case.

17. Taking a cumulative view of the matter, particularly

in the light of discussion made herein-above, I am of the
considered view that impugned transfer order dated 25th
July, 2006 cannot be sustained in law as it not only casts a
stigma but also not issued in public interest. Rather it
could be safely concluded that it is the outcome of
 19

colourable exercise of power, which resulted in

miscarriage of justice. Accordingly OA is allowed. Order
dated 25th July, 2006 is quashed & set-aside with all
consequential benefits. However there shall be no order
as to costs.

(Mukesh Kumar
Gupta)
Member (J)
/PKR/