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2023 (9) TMI 170
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....ated 29th of April, 2023 Vide Annexure P/1, may kindly be quashed and set aside. B That the Hon'ble Court may kindly be pleased to allow the petitioner to continue at O/o Joint Commissioner, HP State Excise and Taxation SEZ Parwanoo District Solan, Himachal Pradesh till completion/finalization of Work of auction and sale of the remaining assets of M/s Indian Technomac Private Limited, which is likely to be completed by April, 2024 if no hindrance is created from any quarter in the process." 2. Petitioner has alleged the impugned transfer notification to be arbitrary, unconstitutional, result of nepotism and against the transfer policy adopted by the Stated Government. As per the petitioner, the impugned notification is actuated with malafide intention and oblique motive. It is further alleged that there is neither any administrative exigency nor the public interest in transferring the petitioner from Parwanoo to Shimla and the only purpose of such exercise is to accommodate respondent No. 3 in his home district. 3. The case as built by the petitioner is that in January, 2014, he was promoted to the post of Assistant Excise and Taxation Commissioner and was posted....
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....way of CWP no. 2331 of 2019 on the ground that it was not feasible for the petitioner to comply with the directions passed in the Company Petition No. 13 of 2014 while being posted at Shimla. In CWP No. 2331 of 2019, an order came to be passed on 4.12.2019 in following terms: "We have heard this matter for some time in the light of reply to the writ petition filed on behalf of respondent-State. Petitioner may have completed his tenure as Deputy Commissioner, State Taxes and Excise, District Sirmaur at Nahan, H.P, however, in view of order dated 8.8.2019, passed by learned Single Judge in Company Application No.54/15, filed in Company Petition No. 13 of 2014, the petitioner being Deputy Commissioner, State Taxes and Excise, District Sirmaur, H.P., has been nominated by name as authorized officer for conducting sale in association with the secured creditors and official liquidator of the assets of the company M/s Indian Technomac Pvt. Limited. We are in agreement with learned counsel, representing the petitioner that conducting the sale of the assets of the company is a laborious task and it is not possible for the petitioner to discharge such responsibility while b....
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....iracy and got involved the petitioner in uncalled for departmental and vigilance inquiries on the allegation of extending undue benefits to certain assessee(s). 10. Petitioner had been able to recover an amount of Rs. 6,36,23,651/- by selling the assets of M/s Indian Technomac Pvt. Ltd. He was fervently pursuing the matter with respect to the sale of assets of M/s Indian Technomac Pvt. Ltd. But he again has been ordered to be transferred vide impugned notification, which petitioner alleges to be a link in the chain of events evidencing a conspiracy to keep the petitioner away from the affairs of Indian Technomac Pvt. Ltd. 11. Respondents No. 1 and 2 have contested the claim of the petitioner. The allegations of any motive to transfer the petitioner from Parwanoo to Shimla have specifically been denied. It is submitted that there was no ulterior/oblique motive to transfer the petitioner, who had completed his normal tenure at Parwanoo. It is further submitted that even CWP No., 2331 of 2019 was dismissed by this Court on 07.01.2020 by holding that no case for interference was made out as the petitioner had completed his normal tenure. In addition, the right of the employer to ....
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....f suppression of any fact and has tried to explain the reason for not making any averment with respect to order dated 7.01.2020 passed by the Court in CWP No. 2331 of 2019 by stating that he had placed on record notification dated 06.01.2020, whereby his transfer was cancelled and since order dated 07.01.2020 was passed taking into consideration notification dated 6.01.2020, it was not found necessary to make averment with respect to order dated 07.01.2020 passed in CWP No. 2331 of 2019. It has also been submitted that the conduct of sale of assets of the company is a laborious task and it is not possible for anyone to discharge the same in the absence of office, record and staff. As per petitioner, the notification dated 18.01.2021 Annexure P-8 was issued by the competent authority on the basis of order dated 04.12.2019 passed in CWP No. 2331 of 2019, therefore, the said order dated 04.12.2019 was more relevant than the order dated 07.01.2020 passed in CWP No. 2331 of 2019. Rest of the contents of the reply have been denied and those of the petition have been reiterated. The thrust of the petitioner, by way of detailed averments made in rejoinder is to impress upon those other off....
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....r that matter, a vested right to claim a transfer or posting of their choice. 26. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration." 17. The scope of judicial review of transfer under Article 226 of the Constitution is also very limited. In Mohd. Masood Ahmad vs. State of U.P. & Others, (2008)1 SCC 180, the Hon'ble Supreme Court has held as under: - "7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P.(1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, ....
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....tablish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal illwill is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting malafide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (See S. Pratap Singh v. The State of Punjab, [1964] 4 SCR 733). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easi....
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...., or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 51. The action taken must, therefore, be proved to have been made mala fide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand." (emphasis supplied) 26.2 We may also refer to the decision of this Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Ors. (2005) 7 SCC 764 where the Court declared that allegations of mala fides need proof of high degree and that an administrative action is presumed to be bona fide unless the contrary....
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....any motive of the government in transferring the petitioner from Parwanoo to Shimla. Mere fact that the official respondents have passed orders four times to transfer petitioner within a span of last seven years is not sufficient to infer any motive of the employer in doing so, much less a motive which can be termed as oblique or ulterior. Even the transfer policy adopted by the State Government does not reserve any privilege of being not transferred before a minimum period of time for Class I, Gazetted officer(s). Rather, the flipside of the facts as have merged can be the unwillingness of the petitioner himself to be get detached from the affairs of Indian Technomac Limited. 23. Except for self-proclaimed necessity of petitioner to look after the affairs of sale of assets of M/s Indian Technomac Pvt. Ltd., there is no cogent material to warrant such assumption. As per the petitioner himself, the Indian Technomac Pvt. Ltd. Company was in default of about Rs. 2100 crores by way of evasion of taxes. Petitioner has been at the helm of affairs for selling the assets of M/s Indian Technomac Pvt. Ltd. Company with a purpose to effect recovery of the State dues for the last about six ....