Central Administrative Tribunal - Ernakulam
Siby Antony (Under Orders Of Transfer) vs Union Of India on 21 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/00091 of 2015
&
MA No. 142 of 2017
Tuesday this the 21st day of March, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Siby Antony (under orders of transfer)
aged 49 years S/o Antony Vettykeeruparambil House,
ThekkekaraPO, Mancompu, Alleppy District-688503
Relieved as Trackman, O/o SSE, Permanent Way,
Ongole, Vijayawada Division, South Central Railway.
. . . Applicant
(By Advocate Mrs. Shameena Salahudheen)
Versus
1 Union of India, represented by the Secretary
to Government, Ministry of Railways,
Rail Bhavan, New Delhi.
2 The Chairman, Railway Board,
New Delhi-110 001.
3 The General Manager, Southern Railway
Chennai.3.
4. The Chief Personnel Officer, Southern Railway
Chennai.3.
5 The Divisional Railway Manager, Southern Railway,
Trivandrum Division, Trivandrum.14.
6 The Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.14
... Respondents
(By Advocate Mrs. P. K. Radhika)
This application having been finally heard on 13.03.2017, the Tribunal on
21.03.2017 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member This OA was filed seeking quashment of Annexures A1 and A2 and for a direction to be issued to the respondents to implement Annexure A3 order by permitting the applicant to join at Trivandrum. Annexure A3 is the order dated 5.9.2014 issued by the South Central Railway by which approval of the competent authority was communicated for inter-railway mutual transfer to the applicant herein (Track Maintainer IV) in Pay Band Rs. 5200-2000 plus Rs.1800 (GP) working under SSE/P.Way/OGL of BZA Division South Central Railway with Shri N. Munaswamy Nidu, Trackman in Pay Band Rs. 5200-20020 + Rs. 1800 GP working under SSE/P.Way/ALLP of TVC Division of Southern Railway. In compliance with the direction contained in Annexure A3, the applicant was relieved by Annexure A4 order dated 19.1.2015. But the applicant was not permitted to join at Trivandrum at the transferred Station (Trivandrum - Southern Railway). Annexure A1 order was passed by the respondents on 28.1.2015, whereby quoting a letter dated 22.1.2015 the Southern Railway informed the South Central Railway that the Southern Railway has not processed the inter-railway mutual transfer since the applicant and Munnu Swamy Naidu belong to different communities. Further by Annexure A1 the respondents intimated the South Central Railway that the applicant who is a Trackman of BZA Division of South Central Railway 'is directed back to your division today'. By Annexure A1 the Southern Railway ultimately passed the following:
'Hence Shri Siby Antony (OBC) Trackman of BZA Division of SCR is directed back to your Division today. Any further development on the matter shall be advised to your office for appropriate action'
2. The applicant challenges the said order.
3. Annexure A2 is also challenged. Annexure A2 is the order issued by the respondents on 20.11.2014 which says that the inter-railway mutual transfer application of the applicant has not been received so far and that Munnu Swamy Naidu who is the mutual partner of the applicant cannot be processed due to different community as per RBE Circular No. 164/2014. The applicant contends that there was no justification for denying the applicant to join the Trivandrum Division and accordingly he moved this Tribunal.
4. The contention that there can be no mutual transfer of one OBC candidate and UR candidate has been taken exception to by the applicant pointing out that for promotion OBC has no reservation and so OBC and UR candidates are to be reckoned alike for inter-railway mutual transfer unlike in the case of one partner being SC or ST which would cause imbalance in the reservation roster.
5. An interim order was passed by this Tribunal on 12.2.2015 directing the respondents to allow the applicant to join in Trivandrum Division on provisional basis. Since the direction was not complied with an application was file before this Tribunal by the applicant. Consequent thereto an order was passed on 13.3.2015 directing respondents 4 to 6 to appear in person before the Tribunal and to show cause why proceedings for contempt should not be taken against them. The matter was posted to 25.3.2015. On 20.3.2015 an application was filed by the respondents for dispensing with the personal appearance of Respondents 4 to 6. It was submitted that the applicant was permitted to join at Trivandurm Division on provisional basis as per the interim order dated 12.2.2015.
6. The respondents contend that they (Southern Railway) did not issue any transfer order in respect of the applicant. It is further contended that the South Central Railway had relieved the applicant without waiting for the Southern Railway's orders. A circular No.164/2014 dated 13.10.2014 was issued by the respondents restraining mutual request transfer between employees of different communities pending the outcome of the SLP. With respect to mutual transfer, whether inter-divisional or inter-railway it is being processed on receipt of the application expressing mutual consent of both the parties, there being no maintenance of any priority list for the same. On joining, their seniority in the new unit is to be regulated as per the instructions in paragraph 310 of Indian Railway Establishment Manual. A situation had arisen wherein mutual transfers between employees not belonging to identical communities were presented as complaints purportedly built on the basis of the judgment of the Hon'ble Supreme Court in R.K Sabharwal - AIR 1995 SC 1371. One such complaint was considered by the Tribunal in OA 851/1999. Though the Tribunal set aside the mutual transfers there was no direction to the Railways not to allow mutual transfers between employees belonging to different communities. The matter was taken up before the Hon'ble High Court. A judgment was delivered in that case (OP 2159/2012) on 7.6.2005. Subsequently an order was passed by the Tribunal in OA 612/2005 in which the respondents contended that a policy decision was taken allowing mutual transfers between employees of different communities. It was decided that the transfers on mutual exchange basis should be allowed to employees belonging to the same category ie., General with General, SC with SC, ST with ST. It was also decided that transfers on bottom seniority of recruitment grade need not be restricted with reference to point in the post based rosters. Another Railway Board order was issued on 22.10.2007 explaining that the mutual transfer in the recruitment grade should also be allowed without restrictions, provided the post and grade are filled in respect of recruitment from open market. If the posts in the grade are partly by promotion and partly by direct recruitment both employees seeking mutual transfer should have been recruited directly from open market. The intention being that both of them should be borne in the post-based rosters maintained for direct recruitment.
7. Annexure A4 judgment was acted upon and mutual transfer orders referred to therein were given effect to subject to the outcome of the O.As pending before this Tribunal. The order passed by the Tribunal in OA 12/2013 which was upheld by the Hon'ble High Court in OP (CAT) 5/2014 & OP (CAT) 3559/2013 has been appealed against and the matter is now pending before the the Hon'ble Supreme Court as SLP(CC) No. 18781/2014 and parties are directed to maintain status quo as it obtained on today.
8. Subsequently complaining of non-payment of salary for the period the applicant was prevented from joining duty, he has filed MA 142/2017 stating that this cause of action has actually arose from the order passed in OA 91/2015. It is stated that the applicant was relieved from Vijayawada Division of the South Central Railway on 19.1.2015 and he reported at Trivandrum Division on 22.1.2015 but he was not permitted to join but instead he was served with Annexure A1 order dated 28.1.2015.
9. The original application was filed before this Tribunal on 3.2.2015. On the basis of the interim order passed on 12.2.2015 he was permitted to join in Trivandrum Division only on 17.3.2015, that too after ordering personal appearance of respondents 4 to 6. The joining of the applicant at Trivandrum Division was delayed only due to the wrong attitude of the respondents. He has been regularly working at Alleppey Station from the date of his joining where he was posted. But the period of service of the applicant from 22.1.2015 to 17.3.2015 has not been regularized and he has been denied salary for the said period.
10. The same has been opposed by the respondents contending that the relieving order was passed by the South Central Railway without getting concurrence from Southern Railway and as such the applicant could not be permitted to join duty at Trivandrum.
11. The points for consideration are -:
(a) Are not the respondents bound to allow the applicant to join duty pursuant to Annexures A3 and A4 orders issued by the the South Central Railway?
(b) Whether the respondents are justified in refusing the applicant to join duty? and
(c) Whether the respondents are justified in denying the pay and allowances of the applicant for the period from 22.1.2015 to 17.3.2015?
12. We have heard the learned counsel appearing on both sides and have also gone through the pleadings on record.
13. As stated earlier only when direction was issued to the respondents 4 to 6 to appear in person for non-compliance of the interim order passed by this Tribunal, the respondents passed the order and permitted the applicant to join at Trivandrum Division on 17.3.2015. The learned counsel for the applicant would submit that there was no justification for the respondents to deny the applicant to join at Trivandrum Division. It is vehemently argued by the learned counsel for the respondents that Annexures A3 dated 5.9.2014 and Annexure A4 the order by which the applicant was relieved were passed by the South Central Railway without getting concurrence or approval of the Southern Railway. Southern Railway and South Central Railway are part of Indian Railways and though the Southern Railway and South Central Railway may be having different Headquarters they cannot pass the buck on to the other for the fault committed by one of those organs. The applicant cannot be found fault with and he cannot be denied the right to join and to get the pay and allowances for the period he had to work based on the orders of mutual transfer, Annexures A3 and A4. The excuse found out by the respondents that there was no concurrence by Southern Railway cannot be countenanced because it is not for the applicant to say whether the order passed by the South Central Railway ie., Annexures A3 and A4 were in order or whether it was done in violation of any statutory rule.
14. The learned counsel for the applicant would submit that the request for mutual transfer and the orders of mutual transfer are opposed by the respondents on the premise that the applicant belongs to OBC whereas his counter part Munna Swamy Naidu belongs to UR and so there cannot be transfers between OBC and UR. In this connection, the applicant's counsel would submit that the roster position would be affected only if the transfer request is made by one of the parties belonging to UR or OBC against SC/ST category. Since there is no reservation for promotion to persons belonging to OBC there is no legal impediment in allowing mutual transfer. Of course, the matter is now pending before the Hon'ble Supreme Court. The order of transfer would be subject to the final outcome of the SLP.
15. But so far as the claim for regularization of the period, the plea raised by the respondents cannot be accepted. The respondents should have a humane and reasonable approach. There was no fault on the part of the applicant. He appeared before the concerned officer on 20.1.2015 to join that office based on Annexure A4 order. Admittedly he was denied the right to join as can be seen from Anenxure A5 order itself. The fact that the applicant had already been relieved as can be sen from Annexure A4 proceedings dated 19.1.2015 would make it clear that the applicant cannot go back to that office (South Central Railway only because Southern Railway refused to allow the applicant to join there). The stand so taken by the respondents cannot be justified. The applicant should have been permitted to join there and then orders could have been passed re- transferring the applicant or for any other purpose if the rule permits but not otherwise. Here, the respondents have taken an adamant attitude not to allow the applicant to join in the Trivandurm Division on the premise that they were not consulted by the South Central Railway before Annexures A3 and A4 orders were issued. The applicant cannot be made a scape goat for the so called lapses on the part of the South Central Railway, if for any reason the orders were issued without consulting the Southern Railway.
16. It is also worthwhile to note that even after the interim order was passed by this Tribunal the respondents were not inclined to obey the same but only when they were asked to appear before this Tribunal and show cause as to why action under the Contempt of Courts Act should not be initiated against them, they reluctantly allowed the applicant to join the post. That also would show that the respondents were at fault in not permitting the applicant to join the Trivandrum Division on the day when he went to join pursuant to Annexures A3 and A4 orders. Considering the facts and circumstances of the case, we found it just and proper to issue direction in this OA itself to regularize the period of service from 22.1.2015 to 17.3.2015 and disburse the pay and allowances due to the applicant. There would be no justification for driving the applicant to file another O.A especially because this is one corollary to and flowing from what has been ordered by this Tribunal by way of an interim order.
17. In view of what is stated above, this OA is allowed. The MA No. 142/2017 is also allowed. The applicant shall be allowed to continue to work in the Station (Southern Railway) where he had joined pursuant to the direction issued by this Tribunal but it would be subject to the final decision that may be rendered by the Hon'ble Supreme Court. The respondents are further directed to regularize the period from 22.1.2015 to 17.3.2015 and to disburse the pay and allowances due to the applicant for the said period as well. It shall be done within six weeks from the date of receipt of a copy of this order. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps