REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7308    OF 2008 (Arising out of SLP (Civil) No. 3516 of 2007)

Somesh Tiwari ….    Appellant

Versus

Union of India and others …. Respondents

J U D G M E N T

S.B. SINHA, J.

Leave granted.

1. A short but an interesting question that arises for consideration in this

appeal is as to whether the High Court while quashing an order of transfer

passed against the appellant was correct in directing that he would not be

entitled  to  salary  for  the  period  commencing  15 days  after  the  modified

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order of transfer to Ahmedabad was passed till the date he again joined his

duties at the original place.  

2. The basic fact of the matter is not in dispute.  Appellant is an officer

of Indian Revenue Service. He was posted as a Deputy Commissioner of

Central Excise at Bhopal.

3. Inter  alia,  on the  premise that  the employees  posted at  the  Bhopal

office  of  the  respondents  apprehending  disciplinary  as  also  criminal

proceedings at the hands of the appellant on the basis of the reassessment of

the files undertaken by him, an anonymous complaint was made alleging

caste-bias  on  his  part,  pursuant  whereto  an order  of  transfer  was  passed

against him on or about 22nd August, 2005.   

4. Prior thereto he had filed a representation stating that, as he had been

undergoing some treatment,  he should be retained at  Bhopal.   Appellant,

however, contended that in view of the fact that he had taken action against

some erring officers, they were instrumental in sending the said anonymous

letter on the basis whereof no action should have been taken in the light of

the circular letters issued by the Central Vigilance Commission.   

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5. It  is,  however,  accepted  that  an  enquiry  was  conducted  by  an

Assistant Commissioner, Directorate of Vigilance, into the said anonymous

complaint wherein allegations made against the appellant were not found to

be true but  still  recommendations were made that  he be transferred from

Bhopal.  Only on that basis he was transferred to Shillong.   

6. He indisputably made a representation praying that on compassionate

and humanitarian grounds,  he may be retained at Bhopal  for at  least  one

year.  The said representation was not responded to.   

7. In the aforementioned factual backdrop, he filed an O.A. before the

Central Administrative Tribunal, Jabalpur Bench which was marked as O.A.

No. 897 of 2005.  By an order dated 27th September, 2005, having regard to

the fact that the representation filed by the appellant had not been disposed

of by the authorities of the respondents, it was directed :-

“4. Accordingly, we direct the Respondent No.2 to  consider  and  decide  the  representation  of  the applicant dated 29th August, 2005 (Annexure A-5) and take a decision by passing a speaking, detailed and  reasoned  order  within  a  period  of  4  weeks from the date of  receipt  of a copy of this  order. Till the decision is taken by the Respondent No.2 on the representation of the applicant, he will not be  disturbed  from the  present  place  of  posting. The learned counsel for the applicant is directed to

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send a copy of this order as well as the copy of the petition to the Respondent No.2 immediately.”

8. By an  order  dated  19th October,  2005  the  said  representation  was

rejected.  

9. Another  representation  was  filed  by the appellant  on or  about  25th

October, 2005, stating :-

“I  don’t  know whether  any/some  adverse  report (reports) were sent by this Commissionerate or by Chief Commissioner office because if there were complaints  against  me,  those  were  neither communicated  to  me  nor  I  was  given  any opportunity to hear.  It would not be surprising if any adverse report/reports were sent against me in such atmosphere of conspiracy against me.  

Hence  it  is  my  humble  pray  that  if  any report/reports  were  sent  by  this  office  of  Chief Commissioner  office  or  Board  or  other  forum, concerned file be shown to me along with supply of  documents  (i.e.  copy  of  the  complaints, proceedings of enquiry, enquiry report etc.).  If no enquiry or complaint, that also be intimated to me though the letter so that I can prove my innocence before  the  Hon’ble  Court  (in  case  board  turns down my representation inspite of direction given by CAT Jabalpur) or before 28.10.2005 which is earlier.”

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10. As  the  said  representation  was  rejected  by  an  order  dated  27th

October,  2005,  appellant  filed  another  O.A.  before  the  Central

Administrative Tribunal, Jabalpur, being O.A. No.1042 of 2005.   

11. Indisputably during the pendency of the said O.A., respondents while

considering the matter of  promotion, posting and transfer in the grade of

the Assistant Commissioner of Customs and Central Excise, passed order

dated 28th December, 2005 inter alia transferring/posting on administrative

consideration, transferred the appellant from Shillong to Ahmedabad.  An

application  for  amendment  of  the  O.A.  was  thereafter  filed,  which  was

allowed.   

12. The orders under challenge before the Tribunal were, thus, the orders

dated 22nd August, 2005 ; 19th October, 2005 and 28th December, 2005.   

13. Inter  alia  on  the  premise  that  the  appellant  had  not  reported  at

Ahmedabad and furthermore that the order of transfer was an administrative

one, the Tribunal by its order dated 14th March, 2006 held  :-

“19. On perusal  of  the  records,  I  find  that  the order  of  transfer  is  on  administrative exigencies.   The  applicant  has  All  India transfer  liability.   An  order  of  transfer should  normally  be  eschewed  and  should

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not  be  countenanced  by  the  Tribunal  as though they are Appellate Authorities  over such orders, which could assess the niceties of  the  administrative  needs  and requirements of the station concerned.  This is  for  the  reason  that  Tribunals  cannot substitute their own decisions in the matter of  transfer  for  the  of  (sic)  competent authorities of the State and even allegations of malafide when made must be such as to inspire confidence in the court or as based on  concrete  materials  and ought  not  to  be entertained on the more making of its or on consideration  borne  out  of  conjectures  or surmises  and  except  for  strong  and convincing  reasons,  no  interference  could ordinarily be made an order of transfer.  

20. Since  the  applicant’s  request  has  been considered and he has been transferred from Shillong  to  Ahmedabad,  even  then  the applicant  has  not  reported  for  duty  at Ahmedabad and he is  still  challenging the order of transfer (A-1).   The applicant  has been  transferred  under  the  modified  order and the earlier orders merge with the present modified order.  The applicant did not honor the  impugned  modified  order  of  transfer. Now  he  is  asking  for  recasting  of  the original order dated 22.8.2005 including the modified  order.   I  find  that  there  are  no allegations  against  any impugned  order  of transfer  is  an  administrative  order.   The authorities  can  extract  service  of  the applicant  wherever  they  want.   When  the action  of  the  Respondents  is  within  their purview, I am not inclined to interfere with the impugned orders.  

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21. I  considered  the  averments  made  in  the pleadings  and  also  the  arguments  of  the learned counsel for the parties.  I am of the considered view that there is no illegality or irregularity  committed  by the  Respondents while  passing  the  impugned  orders.   They have  exercised  their  powers  within  their purview.   The  Tribunal  need  not  interfere with  the  impugned  orders.   The  applicant has not made out a case for grant of reliefs and accordingly the OA is  dismissed.   No costs.”  

14. Aggrieved by and dissatisfied therewith appellant filed a writ petition

before  the  High  Court  of  Madhya  Pradesh  at  Jabalpur.   As  during  the

pendency of the said writ petition, a disciplinary proceeding was initiated

against  the  appellant  on  the  premise  that  he  had  not  joined  the  post  at

Ahmedabad, the High Court passed an interim order on 17th April,  2006,

directing :-

“since the transfer of the petitioner to Ahmedabad is  sub-judice  in  this  Court,  for  the  time  being disciplinary  authority  will  not  take  any disciplinary action against the petitioner.”  

15. The High Court by reason of the impugned judgment and order dated

25th September, 2006 while opining that the order of transfer could not be

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passed on the basis of an anonymous  complaint, which on enquiry having

been found to be incorrect, held :-

“Though,  when  individually  considered,  the impact of the incorrect mention of the fact that the petitioner  belongs  to  Madhya  Pradesh  and  does not  know  English  in  the  order  rejecting  the Petitioner’s  representation,  except  for  indicating the extent of absence of application of mind by the respondents, is not fatal.  However, the transfer of the  petitioner  on  the  ground  that  he  apparently gave an impression that he worked on caste-biased ideology, in spite of the fact of recording a finding in the negative in the discreet  inquiry conducted into  the  anonymous  complaint  would  shock  the conscience  of  any  reasonable  man  to  say  the least.”

It was furthermore opined that as the allegations of having a caste-

bias were not found to be true, the order of transfer having been issued by

way of punishment was unjustified, stating :-

“It is no doubt true that the petitioner or any other member of an All India Service can be transferred to any place (sic) country and is obliged and duty bound  to  comply  with  the  same,  but  to  transfer him  on  the  ground  that  some  unidentified colleague feels that he is a caste is (sic), in other words  only  because  he  belongs  to  a  particular caste,  is  in  violation  of  his  fundamental  rights under  Article  14,  15(1)  and  16(2)  of  the

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Constitution  of  India  and  is  also  stigmatic  as  it would label and identify him, without adjudication or justification, as a person who works on caste- bias  for  all  times to  come and would make him vulnerable to all and any such further anonymous complaints  as  whatever  place  he  is  posted  and could  be  used  as  a  convenient  tool  to  take  any action against him or move him out as and when desired, by any person. Such an action also makes serious  in  roads  into  the  personal  rights  of  the petitioner  as  an  individual  as  well  as  his fundamental  rights  of  the  petitioner  as  an individual as well as his fundamental rights, as the petitioner  has  apparently  been  transferred  for having  a  working  association  with  certain colleagues who happen to belong to his caste and which  apparently  has  not  found  favour  with  the respondents, thereby giving a clear message to the petitioner to abstain from having any such relation with persons belonging to his own caste in future. The impugned order, if permitted to stand, would amount to opening a Pandora’s box and would let loose the very evil  that the Constitution seeks to contain and eradicate.”

16. While striking down the order of transfer by invoking the principle of

‘Wednesburry Unreasonableness’, it was directed :-

“25. At  this  stage,  it  is  to  be  noted  that  the petitioner  in  spite  of  being  transferred  from Bhopal to Ahmedabad has not gone and joined his place  of  posting  till  date  and  that  there  is  an interim  order  of  this  Court  preventing  the respondents  from  taking  any  disciplinary  action against the petitioner for not joining his place of

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posting at Ahmedabad.  Under the circumstances while  we  quash  the  order  of  transfer  of  the petitioner  from  Bhopal  to  Ahmedabad  we  feel constrained to direct that the petitioner shall not be entitled  to  salary  for  the  period  commencing fifteen days after the modified order of transfer to Ahmedabad i.e. the order dated 28.12.2005 till the date he again joins duties at Bhopal.”

17. Mr. B.S. Rajesh Agrajit, learned counsel appearing on behalf of the

appellant,  submitted  that  keeping  in  view  the  fact  that  the  High  Court

despite arriving at a finding that the order of transfer was mala fide and an

abuse of the process of the court, could not have directed that he be not paid

his  salary for  the period  commencing  15th days  after  the  modified  order

dated 28th December, 2005 was passed till he joined the post, and thus the

impugned judgment of the High Court is wholly unsustainable as no reason

has been assigned in support thereof.  

18. Mr.  Wasim A.  Qadri,  learned  counsel  appearing  on  behalf  of  the

Union of India, however, took us through the entire records and submitted

that as despite the fact that no order of stay was granted by the Tribunal, the

appellant did not join his post at Ahmedabad, the High Court was correct in

its view for invoking the principle of ‘no work no pay’.  It was argued that

an order of transfer, unless set aside, remains valid in law and in that view

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of the matter, it was obligatory on the part of the appellant to join his post at

Ahmedabad so as to allow the respondents to take work from him.   

19. Indisputably an order  of transfer  is  an administrative order.   There

cannot  be  any  doubt  whatsoever  that  transfer,  which  is  ordinarily  an

incident of service should not be interfered with, save in cases where inter

alia mala fide on the part of the authority is proved.  Mala fide is of two

kinds – one malice in fact and the second malice in law.   

20. The order in question would attract the principle of malice in law as it

was not based on any factor germane for passing an order of transfer and

based  on  an  irrelevant  ground  i.e.  on  the  allegations  made  against  the

appellant  in  the  anonymous  complaint.  It  is  one  thing  to  say  that  the

employer is entitled to pass an order of transfer in administrative exigencies

but it is another thing to say that the order of transfer is passed by way of or

in  lieu  of  punishment.   When  an  order  of  transfer  is  passed  in  lieu  of

punishment, the same is liable to be set aside being wholly illegal.   

21. An  enquiry  was  initiated  against  the  appellant  in  terms  of  the

allegations  contained  in  an  anonymous  letter.   Having  regard  to  the

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directives of the Central Vigilance Commission, no enquiry could have been

initiated against him but it is beyond any doubt or dispute that in the said

enquiry, the allegations were found to be untrue.   

Despite the same not only an order of transfer was passed but to a

station, which, according to the respondents themselves, was ‘harsh’.   

The  competent  authority  of  appellant  did  not  consider  his  initial

representation.   Admittedly  an  order  of  stay  was  passed  by  the  Central

Administrative Tribunal while disposing of O.A. No. 897 of 2005 dated 27th

September, 2005.   

By reason  of  the  said  order  passed  by  the  Central  Administrative

Tribunal, it was obligatory on the part of the respondents to dispose of his

representation.  When it was rejected, he filed a fresh Original Application.

22. Indisputably he did not join his post at Shillong.  We, although, are of

the opinion that the appellant,  thus,  should have joined at his transferred

post,  he.did  not  do  so  as  a  result  whereof  he  might  have  committed  a

misconduct.  But while invoking the doctrine of ‘no work no pay’, as urged

by Mr. Quadri, the superior courts must strike a balance.   With a view to do

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justice to both the parties, the court was required to consider the conduct of

both the parties.   

Respondents knew that the matter was pending before the Tribunal.

They did not approach the Tribunal to obtain leave for passing the second

order of transfer.  They passed an order of transfer while considering the

cases of promotion and transfer of a large number of officers.  The order of

transfer  suffered  from  a  total  non  application  of  mind  in  so  far  as  it

proceeded on the premise that the appellant had already joined his post at

Shillong.  Even it was not stated that the said order of transfer was being

passed  in  modification  of  the  earlier  order  of  transfer  or  upon

reconsideration of the matter afresh on humantarian ground or otherwise.

We may place on record an extract from the note sheet of Member (P&V)

dated 31st October, 2005 which reads as under :-

“AC(P)  (i.e.  petitioner)  has  tried  to  fix responsibility  on  some  superintendents  for loss/closure  of  some  files  about  investigations against  assessees,   those  superintendents,  who happened to  belong to  SC/ST category on being thus pressured, has complained to the police and other  agencies  alleging  harassment  of  backward classes by Sh. Somesh Tiwari, a Brahmim, these complaints  were  found  to  be  baseless  and  the police had not pursued the matter.  Having failed at the local level it is possible that these officers

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had lodged the complaint at Delhi which resulted Sh. Tiwari’s transfer.  Sh. Tiwari is an honest and well intentioned officer…..  It is proposed to give him less harsh posting.”   

(Emphasis supplied)

23. Removal of the appellant from Bhopal to a place which is ‘less harsh’

was thus recommended, which had evidently been acted upon.  It is thus

demonstrable that ‘Shillong’ was considered to be a harsh posting.    

24. For appreciating the effect of such an order, we may also notice the

order  dated  19th October,  2005  which  has  been  reproduced  by the  High

Court in its impugned judgment, the relevant portion whereof reads thus :-

“2. As per Para 9.1 of the New Transfer Policy, Government may, if  necessary in  public interest, transfer or post any officer to any station or post. Para  9.2  of  the  policy  stipulates  that,  an  officer against  whom  the  CVC  has  recommended initiation  of  vigilance  proceedings,  should  not normally be posted or remain posted at the station where  the  cause  of  the  vigilance  proceedings originated.   He  shall  also  not  be  posted  on  a ‘sensitive’ charge.  This restriction will remain in operation till such time the vigilance matter is not closed.

3. In  the  case  of  Shri  Tiwari,  he  belongs  to Madhya Pradesh and on enquiry into complaint of working  on  caste-biased  ideology  he  was  to  be over-dependent upon a set of officers, apparently

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giving an impression that he (is) working on caste- biased  ideology.  These  circumstances  have necessitated  his  transfer  from  Bhopal  Central Excise  Commissionerate  to  Shillong Commissionerate.”

25. No vigilance enquiry was initiated against him.  The order of transfer

was passed on material which was not existent.  The order, therefore, not

only suffers from total non application of mind on the part of authorities of

respondent No.1, but also suffers from malice in law.  

26. The High Court while exercising its jurisdiction under Article 226 of

the Constitution of India must consider the fact of each case.  Mechanical

application of the normal rule “no work no pay” may in a case of this nature,

be found to be wholly unjust.  No absolute proposition of law in this behalf

can be laid down.  

27. This  Court  in  Commissioner,  Karnataka  Housing  Board  v.   C.

Muddaiah, [(2007) 7 SCC 689 ] laid down the law, thus :-

“32.  The  matter  can  be  looked  at  from another angle also. It is true that while granting a relief in favour  of  a  party,  the  Court  must  consider  the relevant  provisions  of  law and issue  appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in

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the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where  ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not  been  given to  him. His  representations  have been illegally and unjustifiably turned down.  He finally approaches a Court  of Law. The Court  is convinced  that  gross  injustice  has  been  done  to him  and  he  was  wrongfully,  unfairly  and  with oblique  motive  deprived  of  those  benefits.  The Court, in the circumstances, directs the Authority to  extend  all  benefits  which  he  would  have obtained  had  he  not  been  illegally  deprived  of them. Is it open to the Authorities in such case to urge  that  as  he  has  not  worked  (but  held  to  be illegally  deprived),  he  would  not  be  granted  the benefits? Upholding of such plea would amount to allowing a party  to  take undue advantage  of  his own  wrong.  It  would  perpetrate  injustice  rather than doing justice to the person wronged.  

34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work  no  pay'.  In  appropriate  cases,  however,  a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order  in  consonance  with  law.  The  Court,  in  a given case, may hold that the person was willing to  work  but  was  illegally  and  unlawfully  not allowed  to  do  so.  The  Court  may  in  the circumstances, direct the Authority to grant him all benefits  considering  'as  if  he  had  worked'.  It, therefore,  cannot  be  contended  as  an  absolute proposition of law that no direction of payment of consequential  benefits can be granted by a Court of  Law  and  if  such  directions  are  issued  by  a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of

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the country (as has been done in the present case). The  bald  contention  of  the  appellant-Board, therefore, has no substance and must be rejected.”

28. We, keeping in view the fact, that on the one hand the appellant did

not join his posting at Ahmedabad, although no order of stay was passed

and on the other wholly unwarranted and reprehensible conduct on the part

of  the  authorities  of  the  respondents,  are  of  the  opinion  that  interest  of

justice would be subserved if during the period from 28th December, 2005

till his joining his post at Bhopal, the appellant is treated to be on leave and

the respondents are directed to pass an appropriate order invoking the leave

rules applicable in this behalf.  It is ordered accordingly.

29. The  impugned  judgment  of  the  High  Court  is  modified  to  the

aforesaid  extent.    The  appeal  is  allowed  to  the  aforementioned  extent.

Respondents shall bear the cost of the appellant counsel’s fee assessed at

Rs.50,000/-.   

………………………..J.   ( S.B. SINHA )

………………………..J.   ( CYRIAC JOESPH  )

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New Delhi December 16, 2008

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