NISHA SIVADAS, V. THE INCOME TAX APPELLATE TRIBUNAL,

OP (CAT)/75/2021

AI Insights

Nisha Sivadas, the petitioner, challenged her transfer from the Cochin Bench of the ITAT to the Principal Bench in Mumbai, as ordered by the ITAT. The Central Administrative Tribunal (CAT) initially dismissed her application, leading to this appeal in the High Court of Kerala. The High Court examined the administrative reasons behind the transfer, including the need to balance workloads across ITAT benches and the seniority and service duration of the involved officials. The court concluded that the ITAT's decision was reasonable and justified, given the circumstances and administrative requirements.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 751706 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 26-10-2021
• Assessment Year: misc
• Laws Referred To: Articles 226 & 227 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K R RAJKUMAR
• Assessee Lawyers: T C GOVINDA SWAMY; KALA GOPI
• Keywords: Income tax appellate tribunal; Office Superintendent; Public law remedy; Transfer order; Administrative functioning

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 26TH DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 OP (CAT) NO. 75 OF 2021 AGAINST THE ORDER DATED 16.10.2021 IN OA NO.180/157/2021 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM PETITIONER/APPLICANT: NISHA SIVADAS,AGED 47 YEARS W/O.C. SIVADASAKUMAR, OFFICE SUPERINTENDENT, INCOME TAX APPELLATE TRIBUNAL, KENDRIYA BHAVAN, KAKKANAD, KOCHI 682 037, RESIDING AT \"GEETHANJALI\", ROYAL GARDENS, MLA ROAD, UDAYAMPEROOR P.O., THRIPPUNITHURA, PIN-682 307. BY ADVS. T.C.GOVINDASWAMY KALA T.GOPI B.NAMADEVA PRABHU RESPONDENTS/RESPONDENTS: 1 THE INCOME TAX APPELLATE TRIBUNAL, CENTRAL GOVERNMENT OFFICES BUILDING, 4TH FLOOR, MAHARASHI KARVE MARG, MUMBAI-400 020 REPRESENTED BY ITS REGISTRAR. 2 THE ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KENDRIYA BHAVAN, KAKKANAD, KOCHI 682 037. BY ADV SRI.K.R.RAJKUMAR, C.G.C. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(CAT) No.75 of 2021 2 ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ................................................................. O.P.(C.A.T.) No.75 of 2021 [Arising out of the impugned final order dated 16.10.2021 in O.A./180/157/2021 on the file of CAT, EKM Bench] ................................................................. Dated this the 26th day of October, 2021 JUDGMENT Alexander Thomas, J. Being aggrieved by the impugned Annexure-A1 order dated 19.03.2021 issued by the competent authority of the 1st respondent – Income Tax Appellate Tribunal (ITAT), to the extent it has ordered as per Sl.No.2 thereof, that the petitioner/applicant, has been transferred from the post of Office Superintendent, ITAT, Cochin Bench to the Principal Bench of the ITAT at Mumbai, the petitioner herein had instituted Ext.P2 original application, O.A.No.157 of 2021 on 31.03.2021 before the Central Administrative Tribunal, EKM Bench with the following prayers [see page Nos.27 and 28 of the paper book of the O.P.]: “(i) Call for the records leading to the issuance of Annexure A1 and quash the same to the extent it relates to the applicant; (ii) Call for the records leading to the issuance of Annexure-A7 and quash the same; (iii) Direct the respondents to allow the applicant to continue at Cochin Bench, as if Annexure A1 had not been issued at all; (iv) Award costs of and incidental to this application; O.P(CAT) No.75 of 2021 3 (v) Grant such other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.” 2. The Tribunal after hearing both sides, has rendered the impugned Ext.P1 final order dated 06.10.2021 dismissing O.A.No.157 of 2021 finding that no substantial grounds for invoking the public law remedy have been made out, so as to justify interdiction of the impugned transfer order and that the respondent authorities have weighed relevant aspects of the matter in ordering transfer of the petitioner from Cochin to Mumbai and to retain another official, Smt.Hema Rajan who is junior to the applicant herein. It is this final verdict of the Tribunal at Ext.P1 that is under challenge before us in the instant original petition filed under Articles 226 & 227 of the Constitution of India, at the instance of the abovesaid unsuccessful original applicant. 3. Heard Sri.T.C.Govindaswamy, the learned Advocate instructed and ably assisted by Smt.Kala T.Gopi, the learned counsel appearing for the petitioner in O.P./sole applicant in the O.A and Sri.K.R.Rajkumar, the learned Central Government Counsel (CGC) appearing for the respondents in the O.P./respondents in the O.A. 4. A brief reference to the facts in this case would be pertinent. The applicant had commenced her service as Lower Division Clerk (LDC) in the service under the respondent about 25 years back and she O.P(CAT) No.75 of 2021 4 has secured promotion to the next higher category posts of Upper Division Clerk (UDC) and subsequently as Head Clerk (HC) which post was subsequently re-designated as Office Superintendent (OS) and it is common ground that she has continued all through out in her service career in various posts in the Cochin Bench of the 1st respondent Income Tax Appellate Tribunal. Originally, there was only one post in the category of HC/OS in the Cochin Bench and later one post was shifted from some other Bench of the Tribunal to the Cochin Bench and thereafter, two incumbents, viz., the original applicant as well as another woman employee, Smt.Hema Rajan have been continuing as HCs/OSs in the Cochin Bench. It appears that at the relevant time, two incumbents were continuing as OSs in the Cochin Bench, both of them are women employees, the first one being the original applicant and the second one being the abovesaid Smt.Hema Rajan who is junior to the applicant. 5. We need not get into the details of those aspects except to say that at the time of issuance of Annexure-A1 transfer order, it was found that there is only one sanctioned post of OS and two incumbents are continuing and further, four posts of OSs were vacant in the Mumbai Bench and in view of the heavy work load in the Mumbai Bench, which is the Principal Bench at least 3 to 4 incumbents should be O.P(CAT) No.75 of 2021 5 transferred and posted to Mumbai Bench as OSs and otherwise the work load should have seriously affected the administrative functioning of the Tribunal due to reasons, more than one. On these grounds the competent authority of the Income Tax Appellate Tribunal decided after taking into consideration the various aspects that the applicant herein has continued in Cochin much more than the period spent by Smt.Hema Rajan in Cochin, inasmuch as Smt.Hema Rajan is admittedly junior to the applicant and so the applicant who has been permitted to continue in Cochin for the maximum period, more particularly, in the post of OS should be transferred. On this basis, the impugned transfer order was issued as per Sl.No.2, it was ordered that the original applicant will stand transferred from the Cochin Bench to the Principal Bench at Mumbai. 6. Further, we are told that the Principal Bench of 1st respondent ITAT at Mumbai is having the maximum work load compared to various other Benches of the said Tribunal and four posts of Office Superintendents were kept vacant and that were to be filled up and that is one of the imperative needs which had to be met while issuing the impugned transfer order. After hearing both sides, we have no hesitation to countenance the said plea made by the respondents. Further, a reading of Annexure-A1 transfer order also would make it O.P(CAT) No.75 of 2021 6 clear that three incumbents including the original applicant has been ordered to be transferred from various other Benches, as OSs to the Principal Bench at Mumbai. So, by the issuance of Annexure-A1 three incumbents including the original applicant out of the total six incumbents covered by Annexure-A1 have been transferred from their present station as OSs to the Principal Bench at Mumbai. That aspect of the matter is self-evident and manifest from a mere reading of Annexure-A1 order and that it itself speaks volumes about the bona fides of the respondent authorities in taking the impugned decision. 7. Various pleas have been made by both sides. After hearing both sides, we are of the firm view that the Tribunal cannot be faulted in any manner in holding that the competent authority of the 1st respondent ITAT has acted on the basis of relevant grounds in issuing the transfer order and that the transfer being only an incident of service, is not liable for interdiction, as no case of mala fides, etc. has not been even remotely made out in any manner. We would also endorse the abovesaid considered views of the Tribunal at Ext.P1 and at any rate we are not in a position to hold that the views rendered by the Tribunal can be branded as either manifestly perverse or unreasonable. The indisputable fact of the matter is that the applicant is at least three months senior to Smt.Hema Rajan. Both of them have continued in O.P(CAT) No.75 of 2021 7 Cochin for long time. But, the longest period in Cochin has been enjoyed by the applicant compared to Smt.Hema Rajan, both in the various lower posts as well as in the present post of OS. Further, Smt.Hema Rajan is elder to the applicant and she is a widow and that she was appointed on compassionate appointment basis and she is to retire from service on 31.03.2025. Whereas, the original applicant is younger in age compared to Smt.Hema Rajan and the original applicant is to retire from service only on 31.05.2034. If the issue is one of abolition of a post and one incumbent having to be ousted from service, then certainly the juniormost will have to go out of the service pursuant to the abolition of the post. However, in the instant case, the total number of posts in the ITAT in various Benches have not been abolished and there is only one sanctioned post of OS in Cochin. So one person out of the two present incumbents will have to be transferred. Then, especially most of the Governmental Administrative Departments, may decide to transfer the incumbent who has enjoyed the maximum posting in the station concerned compared to the incumbents who have enjoyed only lesser postings in the station concerned. In the instant case, the original applicant who has enjoyed the posting in Cochin, which is much more than that undergone by Smt.Hema Rajan. Going by the age factor, date of retirement and also the fact that Smt.Hema Rajan is a widow, who O.P(CAT) No.75 of 2021 8 was given compassionate appointment, etc., the competent authority of the 1st respondent cannot be faulted for taking a decision to transfer the original applicant in terms of Annexure-A1 and it is trite that matters in relation to the realm of transfer in service jurisprudence is essentially an incident of service and it can give rise to any legally justiciable cause of action only if the transfer is regulated by statutory rules and there is flagrant violation of such statutory guidelines or there is a case of gross mala fides or the case of rank arbitrariness and acting on the basis of highly irrelevant considerations, etc. The last grounds would be normally invoked only in very rare and exceptional scenarios, while considering the invocation of remedy of public law. Hence, in the light of these aspects, we are of the firm view that the verdict of the Tribunal at Ext.P1 does not deserve any interdiction. 8. Sri.T.C.Govindaswamy, the learned Advocate instructed and assisted by Smt.Kala T. Gopi, the learned counsel appearing for the petitioner would urge that this Court may, at least consider the posting of the petitioner either to any other equivalent position in any of the southern Benches of the ITAT including Cochin and other southern Benches like Chennai, Bangalore, Hyderabad, etc. Taking into consideration of this plea, we had earlier requested Sri.K.R.Raj Kumar, the learned Central Government Counsel appearing for the respondents O.P(CAT) No.75 of 2021 9 to get specific and precise factual instructions on these aspects, who has apprised us that a statement dated 26.10.2021 has been filed today with bench mark. Sri.K.R.Raj Kumar, the learned CGC appearing for the respondents has invited our attention to para No.5 of the said statement wherein, it has been stated that the 1st respondent Tribunal is a pan India Tribunal and has various Benches all over India and that, the pendency at Cochin is far below 500 cases whereas, the pendency in Mumbai is in excess of 15000 and that, now members of the major stations could have to hear appeals of other small stations also and this requires support staff to be available at the various stations because file movements and administrative works would be higher in these stations. Further, it is pointed out by Sri.K.R.Raj Kumar, the learned CGC appearing for the respondents that as of now, there is no vacant post in the cadre of OS to accommodate the claims of petitioner either in Cochin or in any other nearby benches. 9. Faced with this situation, Sri.T.C.Govindaswamy, the learned Advocate appearing for the petitioner submits that the petitioner would immediately file a representation for ventilating her grievances for getting a posting either in Cochin Bench or in any other nearby Benches and such representation will be duly filed before the Hon'ble President of the 1st respondent Income Tax Appellate Tribunal O.P(CAT) No.75 of 2021 10 and that this Court may direct the said competent authority to consider such requests, etc. The logistics and decision making process in terms of transfer matters would be eminently within the domain of the competent transferring authority. All we would say is that in case the petitioner files any such representation, it is for the competent authority to take note of the same and consider it, in accordance with law. As indicated herein above, the verdict of the Tribunal at Ext.P1 does not deserve any interdiction at the hands of this Court in exercise of the extraordinary constitutional discretion conferred in terms of Articles 226 & 227 of the Constitution of India. In that view of the matter, it is ordered that the petition fails and the original petition will stand dismissed. Sd/- ALEXANDER THOMAS JUDGE Sd/- VIJU ABRAHAM JUDGE cks O.P(CAT) No.75 of 2021 11 APPENDIX OF OP (CAT) 75/2021 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF ORDER OF THE LEARNED CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO. 180/00157/2021 DATED 06.10.2021. Exhibit P2 TRUE COPY OF ORIGINAL APPLICATION NO. 180/157/2021 DATED 31.03.2021 ALONG WITH ANNEXURES. Annexure A1 TRUE COPY OF ORDER BEARING NO. F-300- AD/AT/2021 DATED 19TH MARCH, 2021 ISSUED FROM THE OFFICE OF THE IST RESPONDENT. Annexure A7 TRUE COPY OF THE COMMUNICATION BEARING NO. NIL DATED 27.04.2021 ISSUES FROM THE OFFICE OF THE FIRST RESPONDENT. Annexure A2 TRUE COPY OF THE ORDER BEARING NO. F-84- AD/AT/2017 DATED 10TH AUGUST 2017, ISSUED FROM THE OFFICE OF THE IST RESPONDENT. Annexure A3 A TRUE COPY OF THE SENIORITY LIST OF OFFICE SUPERINTENDENTS OF ITAT AS ON 01.01.2019 PUBLISHED BY THE RESPONDENTS. Annexure A4 A TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 28034/2/97-ESTT(A) DATED 12.6.97 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. Annexure A5 TRUE COPY OF OM NO. 28034/9/2009 -ESTT(A) DATED 30TH SEPTEMBER 2009 ARE ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING. Annexure A6 TRUE COPY OF REPRESENTATION SUBMITTED BY THE APPLICANT DATED 22ND MARCH 2021 ADDRESSED TO THE PRESIDENT, INCOME TAX APPELLATE TRIBUNAL, MUMBAI. Exhibit P3 A TRUE COPY OF REPLY STATEMENT FILED BY THE OFFICIAL RESPONDENTS DATED 23.5.2021. RESPONDENTS' ANNEXURE Annexure R1 A TRUE COPY OF THE MEMORANDUM DATED 15.02.1996. Annexure R2 A TRUE COPY OF THE LETTER DATED O.P(CAT) No.75 of 2021 12 04.03.1996. Annexure R3 A TRUE COPY OF THE ORDER DATED 14.03.1996. Annexure R4 A TRUE COPY OF THE ORDER DATED 1.04.2021. Annexure R5 A TRUE COPY OF THE ORDER DATED 28.04.2021. Annexure R6 A TRUE COPY OF THE ORDER DATED 27.04.2021. Annexure R7 A TRUE COPY OF THE TRANSFER POLICY. PETITIONER'S EXHIBITS Exhibit P4 A TRUE COPY OF THE REJOINDER DATED 27.06.2021 FILED BY THE PETITIONER IN OA 180/157/2021 BEFORE THE CAT, ERNAKULAM, BENCH. Annexure A8 A TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO. 11013/10/2013-ESTT.A. DATED 09.01.2014 ISSUED BY THE DOP& T. Exhibit P5 A TRUE COPY OF THE MA NO. 342 OF 2021 FOR IMPLEADED FILED BY THE PETITIONER IN OA NO. 157 OF 2201 DATED 27.06.2021 BEFORE THE HONBLE CAT ERNAKULAM BENCH. Exhibit P6 A TRUE COPY OF THE ARGUMENT NOTE DATED 29.06.2021 FILED BY THE RESPONDENTS IN OA NO. 157 OF 2021. Annexure A1 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS TRIBUNAL ON 05.4.2021. Annexure 2 TRUE COPY OF THE JUDGMENT IN 1997 KHC 31. Annexure 3 TRUE COPY OF THE JUDGMENT IN 1993 (4) SCC 357. Annexure 4 TRUE COPY OF THE JUDGMENT IN 2014 (4) KHC 621. Annexure 5 TRUE COPY OF THE JUDGMENT IN 2001 KHC 1195. Annexure 6 TRUE COPY OF THE JUDGMENT IN STATE OF UP AND ANR. VS. SIYARAM AND ORS. Annexure 7 TRUE COPY OF THE JUDGMENT IN 2009(9) SCC 304. O.P(CAT) No.75 of 2021 13 Exhibit P7 A TRUE COPY OF ADDITIONAL REPLY TO THE AMENDED O.A. DATED2.07.2021. Exhibit P8 A TRUE COPY OF THE MA NO. 427 OF 2021 DATED 4TH JUNE 220021 FILED BY THE RESPONDENTS IN OA NO. 157 OF 2021. Exhibit P9 A TRUE COPY OF THE ORDER DATED 06.07.2021 IN MA NO. 342/2021 AND MA NO. 427 OF 2021. Exhibit P10 A TRUE COPY OF THE MEMORANDUM BEARING NO. F 4-ADATCOCH/2021 DATED 07.10.2021 ISSUED FROM THE OFFICE SECOND RESPONDENT. "