Central Administrative Tribunal - Ernakulam
Mr. P.K.Harikumar vs The Director on 15 February, 2016
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH, ERNAKULAM
O.A.No. 180/702/2015
Monday, this the 15th day of February, 2016
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
Mr. P.K.Harikumar,
S/o Balakrishnan Nair,
Assistant Chief Tehnical Oficer,
Krishivigyan Kendra of Central Marine Fisheries Research Institute
(CMFRI),
Narakkal, Kochin 682505
under orders of transfer to Field Centre of Central Marine
Fisheries Research Institute, Puri 752 002. ..... Applicant
(Applicant Mr. P.K.Madhusoodanan, Advocate)
vs.
1. The Director, Central Marine Fisheries Research Institute,
(Indian Council of Agricultural Research),
Ernakulam North (P.O.), Kochi 682018.
2. Chief Administrative Officer,
Central Marine Fisheries Research Institute,
(Indian Council of Agricultural Research),
Ernakulam North (P.O.) Kochi 682018.
3. Indian Council of Agricultural Research,
represented by its Secretary,
Indian Council of Agricultural Research,
Krishi Bhavan, New Delhi 10 001 . . . Respondents
(Respondents by Mr. P. Santhosh Kumar, Advocate)
This Application having been finally heard and reserved for orders on
12.02.2016, the Tribunal on 15.02.2016 delivered the following:
ORDER
The Applicant is challenging Annexure A/1 order transferring him from Krishi Vigyan Kendra(KVK) of Central Marine Fisheries Research Institue ( CMFRI, for short), at Narakkal to the Field Research Centre of CMFRI at Puri, in Odisha. The case of the applicant is as follows:
Applicant started his career as Technical Assistant in Delhi under the respondent No.3. He was transferred to Kochi on his Annexure R.4 (f) request in May 2000. In the meantime he was granted five merit promotions and presently he is the Assistant Chief Technical officer T-7-8, in category III. While he was working in CMFRI Headquarters at Kochi he was a Member of the Grievance Committee of CMFRI. He had filed O.A. 1008/2010 before this Tribunal challenging the attempt of the respondents to induct about 1000 candidates from the open market in the intermediary posts of Senior Scientists. He states that because of the aforesaid steps taken by him the respondents, especially the Head of Fishery Einvironment & Management Division (FEMD), CMFI, Kochi, began to harrass him. According to him this has resulted in adverse entries and down-grading in his APARs. He challenged the down- graded APARs before this Tribunal in OA 471/2012. The Head of the Department (HoD) of FEMD began to pick up quarrel with him and ridiculed him amidst his fellow employees. Therefore he sent Annexure A/3 confidential letter to the first respondent, Director of CMFRI. He received Annexure A/4 communication from the Chairman of the Inquiry Committee constituted to inquire into the allegatiions made by him in Annexure A/3. He sent Annexure A/5 reply and thereafter vide Annexure A/6 Offfice Memorandum, an inquiry was conducted. Seeing that the members of the inquiry committee are hands- in-glove with the aforesaid HoD of FEMD, he requested that the inquiry be conducted by an external agency. An inquiry was conducted on 21.1.2013. The Applicant was not given the details of the inquiry proceedings. Meanwhile he received Annexure A/8 communication transferring him from FEMD of CMFRI Kochi to KVK, Narakkal to perform the duties of Phytoplankton culture. Later he came to know that it was on the basis of the recommendations contained in the Annexure A/9 report of the aforesaid Inquiry Committee he was transferred to KVK Narakkal. He challenged Annexure A/8 transfer before this Tribunal in OA 175/2013 which was disposed of with a direction to give an opportunity to him to file a representation before the respondent No.1. It was further directed that the aforesaid representation be disposed of by respondent No.1. He submitted representation dated 23.12.2014 but without any avail. While at KVK Narakkal basic facilities including chair and table were not given to him. Hence he submitted Annexure nos. A/11 to A/13 requests for providing minimum facilities to perform his duties . As a last resort he sent Annexure A/15 detailed request to the Head of Mariculture Division. But instead of providing necessary facilities he was served with Annexure A/17 Memorandum dated 2.5.2013, initiating disciplinary proceedings against him. An inquiry was conducted against him and he was given Annexure A/19 report of the inquiring authority . Though he submitted an explanation vide Annexure A./20, no decision has been taken so far on Annexure A/19 report. Thereafter he was served with two Memoranda Annexure A/21 and Annexure A/22 dated 23.7.2015 which were intended only to harass him. The impugned transfer from KVK, Narakkal to Puri is only to wreak vengeance on him for submitting Annexure A/20 explanation. Although Annexure A/1 is styled as an innocuous transfer order, it is accuated by malice, arbitrariness, illwill and is without any public interest or exigency of service involved in it. While several other Technical Officers have been retained in Kochi he has been hand-picked to be transferred to Puri and hence the impugned transer is arbitrary.
He prays for the reflief as under:
'8 (a) Set aside Annexure-A1;
(b) Issue necessary directions to the respondents to retain the applicant at Central Marine Fisheries Research Institue at Kochi.
(c) Issue necessary directions to the respondents to provide adequate facilities as sought for in Annexsure A-15 to enable the applicant to perform his duties in the Mariculture Division effectively.
(d) Issue necessary directions to the respondents to reinstate and retain him at CMFRI, Kochi forthwith untrammeled by the Order in Annexure -A.1
(e) Award costs of these proceedings and
(f) Grant such other and further reliefs as this Tribunal deems fit and proper in the interest of justice. '
2. A detailed reply statement was filed by the respondents stating as follows:
Transfer of the applicant to Puri was based on Annexure R4 (a) request made by the Principal Scientist in the Field Cente CMFRI, Puri, Odisha to provide 3-4 techical staffs, two survey assistants, two suporting and two administrative staff. Applicant being a senior technical staff with post-graduate qualification in Botany he was transferred to Puri. He has joined duty at Puri on the forenoon of 11.09.2015. While he was working at KVK, Narakkal he was not attending to the duties assigned to him and had resorted to a behaviour spoiling the working atmosphere by discouraging other staff from doing their official work which was viewed as a destructive act against the institute. An inquiry committee was constituted to inquire into the Annexure A/3 allegations he made against his HoD. The inquiry committee submitted Annexure A/9 report observing that applicant was making false complaints against colleagues and senior officers. The committee recommended to take actiion against him for violation of CCS (Conduct) Rules. As it was noted by the committee that applicant was vitiating the work and the cordial atmosphere in FEMD, he was shifted from the FEMD to KVK Narakkal. Annexure A.21 Memorandum was issued to the applicant as per service rules as he was unauthorisedly absent from duty. Annexure A.22 Memorandum was also issued to him as he used indiscreet language in his letter dated 07.07.2015. According to the respondents the impugned transfer was not by way of punishment or for harassing the applicant but it was as per the exigencies of service as indicated in Annexure R/4(a) request made by the Principal Scientist, CMFRI Field Centre, Puri. The respondents pray for rejecting the O.A.
3. A rejoinder was filed by the applicant producing Annexure A/23 to Annexure A/28 copies of the documents relied on by him to which an additional reply statement was filed by the respondents, and also had produced Annexures R.1 (g) to R1 (m) documents. This was met with by the applicant by an additional rejoinder.
4. Heard Mr. V.K. Madhusoodanan, learned counsel for the applicant and Mr. Santhosh Kumar, learned counsel for the respondents. Perused the record.
5. Shri Madhusoodanan relied on a decision of the Kerala High Court in Pushpakarn v. Coir Board 1978 KHC 135. Shri Santhosh Kumar referred to N.K. Singh v. Union of India and Others AIR1995 SC243, a recent desion in Rajendra Singh and Ors. v. State of U.P.and Ors. 2009 (15) SCC 178 and also Registrar General High Court of Judicature at Madras v. R.Perachi and Ors. 2011 (2) SCC ( L&S) 643.
6. It is seen from the pleadings of the applicant that he has instituted a good number of litigations against the respondents not only in relation to his own service matters including his pay, ACR but also against the steps taken by the respondents to recruit around 1000 scientists at intermediary level. It does not seem to be in dispute that he was a member of Grievance Committe of CMFRI. Shorn of the details of the other service related litigation he had undertaken, suffice it to say that the relationship between the applicant and the respondent officials has not been smooth. According to the applicant the respondents were victimising him by way of the impugned transfer for the numerous litigation he had filed against the authorities and also were wreaking vengeance against him for the grievance petitions he had sent to the Director against the behaviour and conduct of his HoD in the FEMD at CMFRI, Kochi.
7. The inquiry ordered on his grievance petion against the aforesaid HoD has resulted in Annexure A/9 report. It contains strong adverse remarks against the conduct of the applicant suggesting disciplinary action against him and also for transferring him from CMRI Kochi. Accordingly the applicant was transferred to Narakkal. The applicant contends that while at KVK Narakkal he was again harassed by the official respondents by not providing of him even the basic facilities like chair and table. Respondents on the other hand say that the applicant had been negligent in doing the work he was entrusted at KVK, Narakkal and that on a visit by the Director at KVK, Narakkal he was found to be unauthorisedly absent. This has led to issuance of Memorndum to the applicant. In the meantime a disciplinary proceedings were already initiated against him. Annexure A/19 is the report submitted by the inquirying authority. All these matters strongly indicate that the applicant was sailing in troubled waters and that the impugned transfer order was slapped on him to rid him off Kochi treating him as a 'stormy petral'.
8. In this connection Sri. Madhusoodhanan, learned counsel for the applicant referred to a vintage decision of the Kerala High Court in Pushpakaran v. Chairman, Coir Board (supra) wherein his Lordship Khalid J (as he then was) observed :
'24. The right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes it is more dangerous than other punishments. Recent history bears testimny to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy petrel. When the Court is alerted, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. This Court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer.'
9. Mr. P. Santhosh Kumar learned counsel for the respondents referring to N.K Singh v. UOI (supra), Rajendra Singh and Ors. v. State of U.P. and Ors. (supra) submitted that it is the look out of the departmental authorities to have an assessment of the applicant and his abilities. He further submitted that the applicant was transferred to Puri not out of any malafide intentions but on account of the need of the establishment including the administrative exigencies. He referred to Annexure R/4(a) request of the Puri centre of the CMFRI requesting for providing techinical assistants at the Field Centre, Puri.
10. It is settled law that the courts and Tribunals will exercise its power of judicial review of the order of transfer only if the impugned transfer is vitiated by malafides or is violative of any rules or when the order of transfer was issued by an incompetent authority. In the instant case, the applicant says that besides malafides as stated above, he was transferred in the mid-academic year. It is true that normally transfers are not effected during the mid-academic year as it would affect the school going children, especially those who are appearing in the Board/Public Examinations. However, when the transfer is made on administrative grounds or exigencies of service, even the administrative instructions not to transfer such employees during the mid- academic year will not come to the rescue of the employees becuse such administrative instructions do not confer any indefeasible right on them. [ see State of U.P. v. Gobardhan Lal (2004) 11 SCC 402] .
11. It is also judicially well settled that a Government Servant has no vested right to remain posted at one place or other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also is implicit as an essential condition of service, in the absence of any specified condition to the contrary. This was the view expressed by the apex court in Rajendra Singh & Ors. (supra) and in Gobardhan Lal's case (supra). It is also settled position in UOI v. S.L. Abbas AIR 1993 SC 2444, that Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer and that it cannot substitute its own judgement for that of the authority competent to transfer. Thus, only when the impugned order of transfer is bad for malafide action / violative of any statutory rule / or has been issued by an incompetent authority the court/tribunal will exercise its power of judicial review.
12. On an over-view of the factual matrix in this case, it can be seen that the conduct of the applicant towards his superior officials was quite unbecoming of a disciplined and responsible government servant. The letters he wrote from Narakkal demanding for an improved working ambience are examples of his impertinent language used against superiors which smacks gross indiscipline and lack of maturity. Annexure A/3 complaint he wrote to the Director against his HoD has resulted in Annexure A/9 inuqiry report which strongly recommends for his transfer outside the Kochi Headquarters.
13. According to the applicant, the aforesaid circumstances are malafide acts of the respondents to issue Annexure A/1 order transferring him to a distant place at Puri - nearly 2000 kms away from his home state. According to him this is a punitive measure with malafide intention which calls for a judicial review. According to him Annexure R/4(a) request by the Principal Scientists in the Odisha Centre of CMFRI, Puri sent a year ago has been used as ruse by the respondents for transfering him to such a distant place and that too at the fag end of his service which has only 3 years left. But a careful examination of the conduct of the applicant while he was in the CMFRI Kochi and at KVK Narakkal clearly reveals that the respondents were justified in taking a decision to tranfer him out of Kerala, though the impugned transfer oder does not mention the real reason. This Tribunal is of the view that the impugned tranfer is not vitiated by malafide action. On the other hand the respondents used a convenient and polite alibi of Annexure R/4(a) to transfer him probably to avoid the tag of the stigma that he was tranferred on account of his conduct unbecoming of a disciplined government servant.
14. It may be true that Annexure A/1 order does not reveal the real raison d'etre of the transfer. In Ram Prathap v. State of Rajasthan and Ors. 1982 (1) SLR 278 the Rajasthan High Court held that transfer order need not contain a speaking order unless the statute so provides. In the instant case also although Annexure A/1 does not contain the real reasons of the respondents for transferring the applicant, the pleadings of both parties and the record speak volumes on the justifiability of transferring the applicant outside Kochi. Annexure A/9 report has indeed strongly recommended for his transfer. Though he was transferred to Narakkal subsequent to Annexure A/9, the fighting tendency of the applicant continued as is evident from the language he used in Annexure A/15 letter addressed to the Head in-charge of Mariculture Division of CMFRI. If an employee is found to be disrupting the cordial atmosphere and smooth working of the Institute, the competent authority is vested with the power to transfer him from that station. It can be seen from Annexure A.19, that disciplinary action was initiated against the applicant and that the inquiring authority had submitted Annexure A/19 report holding that the charges levelled against him have been proved. Nevertheless, it is not clear from the record as to why a decision was not taken by the disciplinary authority. In such an atmosphere it is only reasonable to presume that respondents have justifiably resorted to Annexure R4(a) letter as a convenient tool to mend his ways by transfering him to a distant place, without casting a stigma on him. Maintaining good working atmosphere by resorting to transfer of the employ (who causes disturbance by sending communications with intemperate language) is also a part of the exigencies of service. The record of this case show that respondents have adequate materials for justifying Annexure A1 tranfer order. Applicant states that he is left with only three years' service before his retirement. However, in the above circumstances this Tribunal does not consider it as a mitigating factor for the relief he has sought in this OA.
15. Taking stock of the totality of the facts and circumstances of this case, this Tribunal is of the view that applicant is not entitled to the relief sought for in this O.A. Accordingly the O.A. is dismissed. Parties shall suffer their own cost.
(U.SARATHCHANDRAN) JUDICIAL MEMBER sj*