IN THE ADMINISTRATIVE TRIBUNAL

ORIGINAL APPLICATION NO.806 OF 2019

DISTRICT :

Shri Sachin Dilip Bari. ) Age : 38 Yrs., Occu.: Sub-Divisional ) Police Officer, Daund, District : Pune and )

Residing at Flat No.302, Prathamesh ) Building, 'A' Wing, Dev Palm Society, ) Gopalwadi, Daund, District : Pune. )...Applicant

Versus

The State of Maharashtra. Through the Secretary, Home Department, Mantralaya, Mumbai.

The Director General of Police. ) Shahid Bhagat Singh Marg, Colaba, ) Mumbai. )

3. Smt. Aishwarya Sharma. ) Dy. Superintendent of Police, ) C/o. Superintendent of Police, ) Solapur Rural, Solapur, Collector ) Compound, Sidheshwar Peth, ) District : Solapur. )...Respondents

Mr. A.V. Bandiwadekar, Advocate for Applicant. Mrs. K.S. Gaikwad, Presenting Officer for Respondents.

CORAM A.P. KURHEKAR, MEMBER-J DATE : 03.'X.2019

2 0.A.806/2019 JUDGMENT

1. The Applicant has challenged the impugned transfer order dated 14.08.2019 whereby he is transferred from the post of Sub Division Police Officer (SDPO), Daund, Pune (Rural) to the post of Deputy Superintendent of Police (Dy.S.P.) in the Office of Director General of Police (DGP), State of Maharashtra, Mumbai invoking jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985.

2. In nutshell, the facts giving rise to this application are as under:-

The Applicant is serving in the cadre of Deputy Superintendent of police (DY.S.P.) and by order dated 01.01.2019, he was posted as Sub Division Police Officer (SDPO), Daund, Pune (Rural). He had hardly completed eight months as SDPO, Daund and abruptly, by impugned order dated 14.08.2019, he was transferred on the post of Dy.S.P. in the Office of DGP, State of Maharashtra. The Applicant has challenged the impugned transfer order contending that it is mid-term and mid-tenure transfer in contravention of provisions of Act, 1951 (hereinafter referred to as 'Police Act 1951' for brevity). In the impugned transfer order, he shown transferred on the recommendation of Police Establishment Board-1 (PEB) under Section 22N of 'Police Act 1951'. He contends that no case is made out to transfer him under Section 22N or 22N(2) of `Police Act 1951'. By impugned transfer order, in his place, the Respondent No.3 is posted. He, therefore, contends that the transfer order is ex facie illegal and liable to be set aside and prayed to set aside the impugned transfer order dated 14th August, 2019.

3. The Respondent No.1 resisted the application by filing Affidavit- in-reply inter-alia denying that the impugned transfer order suffers 3 O.A.806/2019 from any illegality. The Respondents sought to justify the transfer order contending that the Superintendent of Police (S.P.), Pune (Rural) had submitted the default report dated 01.08.2019 which was received in the Office of DGP on 02.08.2019 about serious misconduct and negligence on the part of Applicant in the matter of investigation of Crime No.720/2018 registered under Sections 302, 201, 120-B of Indian Penal Code. The S.P, Pune (Rural) recommended for transfer of the Applicant from his present post. The report was placed in the meeting of PEB held on 06.08.2019 and in view of default report, the PEB unanimously resolved to invoke the provisions of Section 22N(2) of 'Police Act 1951' and to transfer the Applicant on administrative ground and in public interest. The Competent Authority namely Hon'ble Chief Minister approved the recommendation of PEB and accordingly, the Applicant was transferred to Mumbai. As such, the Respondent sought to justify the transfer order contending that it was necessitated in view of serious default report received against the Applicant.

4. When the matter was taken up for admission for considering the prayer of interim relief, the learned P.O. has filed Affidavit of Shri Kulwant Kumar Sarangal, Additional Director General of Police (Establishment) in the Office of DGP, who happens to be Member Secretary of PEB. This Affidavit was pressed into service at the time of hearing on interim relief to show that the default report was the basis for transfer of the Applicant though the reason is not forthcoming or mentioned in PEB minutes. In Affidavit, he stated that the default report was placed before the PEB and considering serious default on the part of Applicant, the PEB resolved to transfer the Applicant. In view of Affidavit filed by Member Secretary of PEB, the Tribunal felt it appropriate to expedite the matter and to decide the same on merit. Accordingly, the matter has been expedited for decision on merit. 4 0.A.806/2019 5. Shri A.V. Bandiwadekar, learned Advocate for the Applicant has pointed out that there is absolutely no whisper or any reference of alleged default report in the minutes of PEB which are at Page 101 of Paper Book, and therefore, the story developed by the Respondents that the transfer was made on default report is after-thought and an attempt is being made to supplement the reasons contrary to the minutes of PEB. He has further pointed out that, as per minutes of PEB, the transfer of 31 Officials including the Applicant were recommended in view of the instructions issued by Election Commission of and the Applicant's case admittedly, does not fall within the parameters or instructions given by Election Commission of India in letter dated 11.07.2019. He, therefore, urged that the impugned transfer order is ex-facie unsustainable and liable to be set aside.

6. Per contra, Smt. K.S. Gaikwad, learned Presenting Officer submits that, in fact, the transfer of the Applicant was on the basis of default report received from S.P, Daund, Pune (Rural). She sought to contend that the default report was very much before the PEB and having regard to the serious misconduct of the Applicant relating to crime u/s 302 of IPC the transfer was necessitated. To bolster up her contention, she placed reliance on the Affidavit of Shri Kulwant Kumar Sarangal, Member Secretary of PEB-1. Thus, according to her, even if there is no reference of alleged default report in PEB minutes, in view of Affidavit filed by Shri Sarangal stating that default report was placed before the PEB, the impugned transfer cannot be faulted with, as the PEB being Competent Authority unanimously recommended for the transfer. In this behalf she sought to place reliance on the decision of Hon'ble High Court in Writ Petition No.14200/2016 (State of Maharashtra Vs. Siddharth Kasbe) decided on 20.01.2017. She further pointed out that the recommendation of PEB was later approved by the Hon'ble Chief 5 0.A.806/2019 Minister. On this line of submission, she prayed to dismiss the O.A .

7. Admittedly, the Applicant had joined as SDPO, Daund on 01.01.2019 and had not completed normal tenure of two years as contemplated under the provisions of 'Police Act 1951'. As such. there is no denying that it is mid-term and mid-tenure transfer Undoubtedly, the PEB can make mid-term transfer in public interest and on account of administrative exigency as contemplated under Section 22N(2) of 'Police Act 1951'.

8. In view of the submissions advanced at the Bar, the crux of the matter is whether the PEB had recommended the transfer of the Applicant on default report, so as to qualify the same in public interest and on account of administrative exigency, as contemplated under Section 22N(2) of 'Police Act 1951'.

9. Before proceeding ahead, at this juncture, it would be apposite to see the minutes of PEB-1, which are at Page No.101 of P.B. which are very crucial in the facts of the present case, which are as follows :-

"Confidential

Following transfers of officers and modifications in the Government order No. RPS-1719/ P.K.144/ Pol-I(A), Home Dept., Govt Of Maharashtra dated 11.07.2019 and Govt. Order No. RPS- 0118/P.K.238(1)/Pol-1(A), Home Dept., Govt. Of Maharashtra, dated 29.07.2019, are recommended by PEB-I for consideration of the competent authority. Recommendations also include names of officers who are required to be transferred to give effect to direction contained in Clause 3(iv) of the CEC issued vide its Letter No 437/6/1/INSP/ECl/FUNCT/MCC/2019, dated 11.07.2019, that any officer who is due to retire within the coming six months, shall not be associated with any election related duty. To comply with the aforementioned direction of the CEC, some of the officers have been recommended for transfers who have not yet completed their effective tenure in their present assignments so that they could replace the said officers to conduct the Assembly Elections peacefully. 0.A.806/2019

Sr. Name of the Officer Present Posting Recommendation No. of PEB-1 2. Sachin Bari SDPO Daund, Dy.S.P, D.G. Pune Rural Office, M.S, Mumbai.

Sd/- Sd/ Scl/ Sd/- Sd/ (Kulwant K. (P.B. Singh) (Sanjay Barve) (S.K. Jaiswal) (Sanjay Kumar) Sarangal)

Addl. Director Director General Commissioner of Director General of Addl. Chief Secretary General of Police of Police Police, Mumbai City Police, Maharashtra (Home), Maharashtra (Estt) Maharashtra Anti Corruption Member State, Mumbai. State State, Mumbai Bureau, M.S., Member Chairman Member Secretary Mumbai. Member

10. In view of the aforesaid minutes, 31 Police Personnel including the Applicant were transferred. The name of Applicant is at Serial No.2 in the above Chart. It is explicit from the minutes of PEB that the meeting of PEB was conveyed only for the transfers of Police Personnel falling with the parameters laid down by Election Commission of India in letter dated 11.07.2019.

11. Now, let us see the relevant contents of letter dated 11.07.2019 issued by Election Commission of India addressed to Chief Secretary of Government of Maharashtra recommending the transfers of the Government Officers, who falls in Para No.3 of the letter. Para No.3 of the letter is as follows :-

"3. Accordingly, it is hereby advised that in respect of all government officers directly connected with the conduct of elections, the following may be ensured :-

(i) that she/he is not posted in her/his home district (ii) that she/he has not completed three years in that district during last four (4) years or would be completing 3 years on or before 31st October, 2019.

(iii) that no DEO/RO.ARO/Police Inspectors/Sub-Inspector or above is posted back or allowed to continue in the AC/district where he/ she was posted during the General/Bye elections held in the Assembly/Parliamentary Constituency prior to 31st October, 2017. 7 0.A.806/2019

(iv) that the officers/officials against whom the Commission had recommended disciplinary action in past and which is pending or which has resulted a penalty or the officers who have been charged for any lapse in any election or election related work in the past, may not be assigned any election related duty Further, any officer, who is due to retire within the coming six months, shall not be associated with any election related duty."

12. It is manifest from the minutes of PEB set out above that the subject matter of transfer of Police Personnel which was placed before the PEB for transfer orders was pertaining to Police Personnel, who falls within the parameters stipulated by Election Commission of India in letter dated 11.07.2019 as reproduced above. Admittedly, the Applicant's case does not fall within the ambit of parameters stipulated by Election Commission of Indian in its letter dated 11.07.2019. Smt. K.S. Gaikwad, learned P.O. fairly concede that the Applicant's case does not fall in the said parameters. It is thus quite clear that the PEB proceeded on the footing that on all these 31 Police Personnel were required to be transferred on account of instructions of Election Commission of India and accordingly, transferred them Except reason of instructions of Election Commission of India, no other reason is forthcoming in the minutes of PEB. Suffice to say, there is absolutely no reference of alleged default report against the Applicant in the minutes of PEB much less the discussion thereon. Thus, there is absolutely no whisper of alleged default report. Furthermore, there is also absence of mention of transfer on administrative ground in respect of any the Police Personnel and on the contrary, all Police Personnel were shown transferred having fallen in the parameters laid down by Election Commission of India in its letter dated 11.07.2019.

13. True, in case of serious misconduct, the PEB is competent to transfer Police Personnel under Section 22N(2) of 'Police Act 1951', but it must be reflected in PEB minutes. Needless to mention that PEBs are established by amendment in Maharashtra Police Act in 8 0.A.806/2019

2015 in view of directions issued by Hon'ble Supreme Court in (2006) 8 SCC 1 (Prakash Singh and others Vs. Union of India and others) to ensure that the Police Personnel should get normal tenure at one place of posting and there should be transparency in the matter of transfers and transfer should not be effected as per whims of Executive. This being the position, the PEB was under obligation to consider default report to ponder over it and take suitable decision of transfer, if situation warrants the transfer of concerned Police Personnel on administrative ground or in public interest. As such, the Competent Authority i.e. PEB was required to record its reason in minutes. The recording of reasons is not mere formality but requirement of principles of natural justice. The basic rule of law and natural justice require the recording of reasons in support of order passed by authority so that if the same is challenged in the Court or Tribunal, one should be in a position to evaluate the reasons. Thus, there has to be reasons for decision and the Courts or Tribunal should not be kept guessing for reasons. However, in the present case, as stated above, there is absolutely no whisper of alleged default report in PEB minutes and on the contrary, the Applicant is shown transferred in pursuance to the guidelines/instructions issued by Election Commission of India, which is admittedly not applicable to the transfer of the Applicant.

14. Having faced with the difficult situation of absence of mention of default report in PEB minutes, the Government tried to salvage the damage and sought to explain it by filing Affidavit of Shri Sarangal, Member Secretary of PEB that the default report was discussed in the Committee and it was the ground for transfer. To say the least, this is an attempt to patch-up serious lacuna and it is nothing but after- thought version. Had alleged default report was discussed in the meeting, then it ought to have figured in the Agenda or in PEB minutes. It is rather difficult to believe that the members of PEB who are senior Police Officers as well as Additional Chief Secretary, Home 9 0.A.806/2019 would forget to make reference of important document of default report in the minutes. The Tribunal presume that they being senior Police Officers are quite aware of the importance of the minutes and the minutes are not recorded in caviler manner. As such, there is no escape from the logical inference that no such default report was in fact placed before the PEB nor it was a ground of transfer.

15. Interestingly, though Mr. Sarangal on Affidavit states that the default report was placed before PEB, his Affidavit is totally silent as to why then it was not discussed in PEB. In absence of any such explanation, the Affidavit stating that the default report was placed before the PEB and it was a reason for transfer cannot be accepted as a gospel truth. On the contrary, there are reasons to believe that no such report was before the PEB and only attempt is made to develop the case later on.

16. Indeed, as rightly pointed out by Shri A.V. Bandiwadekar, learned Advocate for the Applicant that in view of decision of Hon'ble Supreme Court in 2003 SCC (L 85 S) 951 (Chandra Singh & Ors. Vs. State of Rajasthan & Anr.) the legality or otherwise of the order passed by statutory authority has to be judged on the face thereof and the reasons therein cannot be supplemented by an Affidavit. Suffice to say, the legality of the order has to be tested on the basis of reasons mentioned in the order and it cannot be supplemented by Affidavit. The ratio of the Judgment is perfectly attracted in the present case.

17. The learned P.O. sought to rely on the decision of Hon'ble High Court in Writ Petition No.14200/2016 (Kasbe's matter cited supra). It was arising out of the decision rendered by this Tribunal in 0.A.829/2016 decided on 24.11.2016. In that case, a Police Personnel was shown transferred under the caption of 'administrative ground'. In that case, as per Respondent, the transfer was actually 10 0.A.806/2019 on the ground of default report. However, in PEB minutes, the reason was shown 'administrative ground'. The Tribunal allowed the O.A. with the finding that there was no material to show that the default report was actually placed before the PEB and was discussed. However, the Government carried the matter to Hon'ble High Court by filing Writ Petition which has been allowed on 20.01.2017. The perusal of Judgment of Hon'ble High Court reveals that along with Petition, the Affidavit of Mr. Pradip Sawant, who was Member Secretary of PEB was filed. It is in that context, the Hon'ble High Court accepted the contention of Respondent having noticed that there was already reference of default report in the opening Paragraph of the recommendation of PEB. As such, in that case, there was reference of alleged default report in the opening Paragraph of recommendation of PEB and it is in that context, the Affidavit filed by Shri Pradip Sawant was accepted to sustain the transfer order. However, in the present case, as stated above, there is absolutely no whisper of default report at anywhere in PEB minutes. On the contrary, the Applicant is shown transferred on the ground of guidelines of Election Commission of India, which is not existent. Furthermore, in Kasbe's case, the transfer was shown on administrative ground and the administrative ground was explained by filing Affidavit of Member Secretary. Whereas, in the present case, the Applicant is shown transferred on the ground of guidelines of Election Commission of India, which are admittedly not applicable to the transfer of the Applicant. This being the position, in my humble opinion, the Judgment in Kasbe's case is of no assistance to the Respondents.

18. The learned P.O. further referred to the decision of Hon'ble Supreme Court in (2004) 3 SCC 245 (Union of India Vs. Janardhan Debanath). In Para No.14, the Hon'ble Supreme Court held as follows :- 11 0.A.806/2019

"14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct."

19. In the present case, the alleged default report received against the Applicant itself is not considered by PEB and the transfer is made on non-existent ground in view of the minutes of PEB set out above. There could be no dispute about the proposition of law enunciated by

the Hon'ble Supreme Court and transfer order could have been

justified, had the same was passed on default report by applying the decision of Hon'ble Supreme Court. However, it is not so and the

transfer is made on totally unfounded and non-existent ground in

terms of minutes of PEB. Therefore, the Judgment in Janardhan

Debanath's case is of little assistance to the Respondents.

20. Shri A.V. Bandiwadekar, learned Advocate for the Applicant rightly pointed out that in note placed before Hon'ble Chief Minister for the approval of Applicant also there is absolutely no whisper or reference of transfer on alleged default report. It is noticed that there

is no such reference of default report in the note approved by the Hon'ble Chief Minister. This factor again reinforces the conclusion

that the transfer was not at all on default report and Respondents later developed the story of transfer on default report only to support

the transfer order. ■ 12 0.A.806/2019

21. The totality of aforesaid discussion leads me to conclude that the impugned transfer order is not sustainable in law and the same is clearly indefensible. Hence, I proceed to pass the following order.

ORDER

(A) The Original Application is allowed. (B) The impugned transfer order dated 14.08.2019 is quashed and set aside. (C) The Respondent Nos.1 and 2 are directed to repost the Applicant on the post he is transferred from within two weeks from today. (D) No order as to costs.

(A.P. KURHEKAR) Member-J

Mumbai Date : 03. 0.2019 Dictation taken by : S.K. Wamanse.