CAT dismisses ED officer's challenge against his transfer upholds agency's discretion

Kochi, Aug 11 (PTI) The Central Administrative Tribunal (CAT) has dismissed the plea of an ED officer posted in Kochi against his transfer to Jammu and Kashmir, saying it was the employer's "discretion" to decide where the employee should work.
    The Ernakulam bench of the CAT issued an order on Monday in the case of P Radhakrishnan, a 55-year-old deputy director working in the Kochi zonal office of the Enforcement Directorate (ED).
    The officer has supervised investigations into sensitive cases being probed by the federal agency in Kerala like the Karuvannur bank "fraud" and the diplomatic gold-smuggling case.
    The ED headquarters had transferred him to its zonal office in Srinagar in June, after it received a vigilance complaint against him.
    Radhakrishnan subsequently moved the CAT and challenged his transfer order.
    The CAT had then ordered an interim stay on his transfer.
    The bench of Judicial Member Justice K Haripal said in its final order that a transfer is "an incident of service" and no one has any "vested" right to seek a transfer to a particular place or seek his retention in a particular station.
    It said it is the "discretion" of the employer to decide where the employee should work.
    "Such a prerogative of the employer, ordinarily, is not a subject matter of judicial review. The court or tribunal is not an appellate forum to assess the discretion exercised by the employer.
    "On all these considerations, such a plea raised by the applicant cannot be upheld," the bench said.
    The ED officer contended that he was "unnecessarily" transferred in an "arbitrary" manner to a place at a distance of 3,390 km without disclosing any public interest or administrative exigency and that the transfer will "destabilise" his family.
    He claimed that his transfer was a result of administrative discretion being exercised "improperly".
    The ED informed the bench that the transfer order was issued after a named complaint was received against the officer.
    "The applicant was transferred in special circumstances, after getting a complaint about his alleged acts of harassment, threatening and extortion raised against him.
    "During the course of enquiry into such allegations, it is only fair that the applicant has to be kept out of the region," the ED submitted, saying these charges needed to be enquired in a fair and judicious manner.
    The CAT observed that of the total 32 years of service of the officer, 30 years were spent in the southern region, including 28 years in Kerala.
    It said in such a situation, the officer cannot say that he has been transferred "prematurely" to Srinagar and the transfer order cannot be called "punitive".
    "The Original Application is devoid of merits and is dismissed. Interim orders are vacated," the bench ordered.
    It further said that the officer had an all-India transfer liability.
    "He had continued for long spells of service in the same office. He cannot have any vested right to continue in the Kochi office," it said.
    The bench also pulled up the ED for its "belligerence" and "intolerance" in filing its replies against the applicant's plea to the CAT as well as the interim order issued by the tribunal.
    "The tone and tenor of the reply statement is suggestive that the officers of the Enforcement Directorate have an assumed immunity from such orders," it said, adding that the agency's replies were not in "good taste" and were "reckless".
    "The ED is not above law or omnipotent. When such an application is filed before this tribunal, which is the competent forum, do they expect that it should be thrown overboard or dismissed in limine?" it asked.
    The bench said it was because of the "misdemeanour" of the ED officers that the officer concerned was allowed to continue in the same region for 30 years and such postings were against vigilance directives.

(This story has not been edited by THE WEEK and is auto-generated from PTI)