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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
RAMESH RANGANATHAN, N.S. DHANIK, JJ.
Dr. Parveen - Petitioner
Versus
Director General, Indian Council of Forestry Research & Education and others - Respondents
Writ Petition No.99 of 2019 (S/B) With Stay Application No.3074 of 2019
Decided On : 19-03-2019
TRANSFER - CENTRAL ADMINISTRATIVE TRIBUNAL - JURISDICTION - MALAFIDES - SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 - SECTION 12(1) AND (3) - WHISTLE BLOWERS PROTECTION ACT, 2011 - GENERAL FINANCIAL RULES, 2007 - RULE 286(3) - WRIT OF CERTIORARI - ADMINISTRATIVE EXIGENCIES - ADMINISTRATIVE REASONS - TRANSFER POLICY - GUIDELINES - JUDICIAL REVIEW - PUBLIC INTEREST - PUBLIC ADMINISTRATION - TRANSFERABLE POST - SERVICE CONDITIONS - PUBLIC SERVANT - GOVERNMENT UNDERTAKING/INSTITUTE - EMPLOYEE - TRANSFER ORDER - MALICE - MALA FIDE EXERCISE OF POWER - BURDEN OF PROOF - VAGUE ALLEGATIONS - INFERENCE OF MALAFIDE - REASONABLE INFERENCE - PECULIAR FACTS AND CIRCUMSTANCES - FACTUAL ADJUDICATION - DISCRETIONARY JURISDICTION - ABUSE OF AUTHORITY - ALIEN PURPOSE - MOTIVE - INTENTION - PERSONAL ANIMOSITY - SPITE - ILL WILL - INDIRECT OR IMPROPER MOTIVES - DIRECT AND CIRCUMSTANTIAL EVIDENCE - ADMISSION - SURROUNDING CIRCUMSTANCES - PRESUMPTION OF BONAFIDES - CHARGE OF BAD FAITH - MALUS ANIMUS - DUBIOUS INFERENCES - VAGUE AND BALD ALLEGATIONS - INCHOATE PLEADINGS - HEAVY BURDEN - STRONG AND CONVINCING EVIDENCE - SPECIFIC AND DEFINITE ALLEGATIONS - LAST PAY CERTIFICATE (LPC) - ADMINISTRATIVE GROUNDS - ADMINISTRATIVE NECESSITIES - EFFICIENCY - PUBLIC INTEREST - TRANSFERABLE POSTS - INCIDENT OF SERVICE - CONDITION OF SERVICE - NO VESTED RIGHT - NO CHOICE - NO LEGAL RIGHT - NO PARTICULAR PLACE - NO PLACE OF CHOICE - NO PERMANENT POSTING - NO LONG-DRAWN OUT PROCESS OF REASONING - NO ELABORATE ARGUMENT - NO ERRONEOUS REFUSAL TO ADMIT ADMISSIBLE AND MATERIAL EVIDENCE - NO ERRONEOUS ADMISSION OF INADMISSIBLE EVIDENCE - NO FINDING OF FACT BASED ON NO EVIDENCE - NO OBVIOUS MIS-INTERPRETATION OF RELEVANT STATUTORY PROVISIONS - NO IGNORANCE OF RELEVANT STATUTORY PROVISIONS - NO DISREGARD OF RELEVANT STATUTORY PROVISIONS - NO EXPRESS FOUNDING ON REASONS WHICH ARE WRONG IN LAW - NO ERROR OF LAW APPARENT ON THE FACE OF THE RECORD - NO ERROR WHICH STRIKES ON THE MERE LOOKING - NO NEED FOR A LONG-DRAWN OUT PROCESS OF REASONING - NO SELF-EVIDENT ERROR - NO MANIFEST AND CLEAR ERROR - NO ERROR WHICH NO COURT WOULD PERMIT TO REMAIN ON RECORD.
Fact of the Case:
The petitioner, a Scientist in Grade "E" at the Forest Research Institute (FRI), Dehradun, was transferred to Jodhpur. She challenged the transfer order, alleging malafides and violation of various statutory provisions, including the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Whistle Blowers Protection Act, 2011. The Central Administrative Tribunal (CAT) dismissed her application, holding that the transfer was made for administrative reasons and was not vitiated by malafides. The petitioner filed a writ petition in the High Court, challenging the CAT's order.
Finding of the Court:
The High Court held that the CAT's order did not suffer from any error apparent on the face of the record warranting the exercise of its certiorari jurisdiction. The Court found that the transfer was made for administrative reasons, and not as a measure of punishment or in violation of any statutory provision. The Court also held that the petitioner had failed to establish malafides on the part of the respondents. The Court dismissed the writ petition.
Issues: 1. Whether the CAT erred in holding that the transfer was made for administrative reasons and was not vitiated by malafides? 2. Whether the transfer order violated the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Whistle Blowers Protection Act, 2011?
Ratio Decidendi: 1. The High Court held that the CAT did not err in holding that the transfer was made for administrative reasons and was not vitiated by malafides. The Court found that the transfer was made in the exigencies of service and in the interest of administration, and that there was no evidence of malafides on the part of the respondents. 2. The Court held that the transfer order did not violate the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Whistle Blowers Protection Act, 2011. The Court found that the petitioner had not been transferred as a measure of punishment for raising issues of sexual harassment or for being a whistleblower, and that she had not been denied any of the benefits or protections provided under these Acts.
Final Decision: The High Court dismissed the writ petition, upholding the CAT's order.
RAMESH RANGANATHAN, J.
1. The petitioner has invoked the jurisdiction of this Court, under Articles 226/227 of the Constitution of India, seeking a writ of certiorari to quash the order in OA No.616/2018 dated 19.02.2019 passed, by the Central Administrative Tribunal, Allahabad Bench, Circuit sitting in Nainital; a writ of certiorari to quash the transfer order dated 14.05.2018, and relieving orders passed on 14.05.2018, 18.05.2018 and 08.10.2018; and to pass an order of stay of the impugned order of transfer, and of the order of the Tribunal.
2. Facts, to the limited extent necessary, are that the petitioner was hitherto transferred to Jorhat, Assam by proceedings dated 21.08.2015. This order of transfer was effected in the backdrop of a pending sexual harassment complaint, and several representations filed by her and her husband, to various authorities, seeking a probe regarding awarding fake Ph.D. degrees to a clique of IFS officers, plagiarism etc in the Indian Council of Forestry Research & Education (for short “ICFRE”). Questioning her transfer as vitiated by malafides, the petitioner approached the Central Administrative Tribunal, Allahabad Bench, Nainital Circuit Bench (for short “CAT”) by filing OA No.4081 of 2015.
3. By an elaborate order in O.A. No.4081 of 2015 dated 13.07.2016, the CAT set-aside the impugned orders of transfer as vitiated by malafides. The CAT observed that the objective of the transfer was to punish and remove the applicant, who had become inconvenient to the respondents; the petitioner, a lady, had acted with courage in raising ssues relating to fake Ph.D. degrees, and large scale plagiarism prevailing in the Institute; her transfer was the result of the issues being raised by her; it was for the authorities to constitute a High Power Committee to inquire into these charges, and to set their house in order ; while the order of transfer did not lower her rank or reduce her salary, it was likely to cause much inconvenience to her as she had adopted a child recently who would be removed from familiar surroundings; she could not be punished, in any event, for raising issues like sexual harassment, fake Ph.D. degrees and plagiarism; the applicant was a whistle blower; and though she had staked no claims to it, in as many words, she was entitled to the protection under the Whistle Blowers Protection Act, 2011, and the numerous decisions relating to whistleblowers.
4. The impugned order of transfer was quashed, the period of absence of the petitioner was directed to be adjusted against some leave due as per the provisions of the Leave Rules; the first respondent was asked to consider setting up a High Power Committee to review the working of the Institution, and ascertain the veracity of the charges levelled by the applicant; and, in case, the charges were found frivolous, it was for the respondents to take appropriate action against the applicant.
5. Aggrieved thereby, the ICFRE invoked the jurisdiction of the Delhi High Court by filing Writ Petition (C) No.6736 of 2016. The Delhi High Court passed an interim order on 02.08.2016 staying the operation of the order of the CAT, Nainital Circuit Bench. Aggrieved thereby, the petitioner carried the matter in appeal to the Supreme Court which, by its order in Special Leave to Appeal (C) No.26267 of 2016 dated 14.09.2016, stayed the operation of the interim order passed by the Delhi High Court in Writ Petition (C) No.6736 of 2016 dated 02.08.2016. Thereafter, by order in I.A. Nos.2-3 in Civil Appeal No.9179 of 2016 dated 24.10.2016, the Supreme Court disposed of the appeal, as also the pending applications, holding that the interim order passed earlier on 14.09.2016 should be maintained. The High Court was requested to decide Writ Petition (C) No.6736 of 2016 as expeditiously as its business would permit. The Civil Appeal and all Interlocutory Applications were, accordingly, disposed of.
6. On a letter dated 12.04.2018 being addressed by the Institute, to
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