Central Administrative Tribunal - Chandigarh
Ved Parkash Aged 54 Years Son Of Sh. M. R. ... vs State Of Haryana on 5 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.169-CH-2013 Pronounced on: 05.09.2013 Reserved on : 04.09.2013 CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A) Ved Parkash aged 54 years son of Sh. M. R. Sharma, Enquiry-cum-Reservation Supervisor, Railway Reservation City Booking office, Bus Stand, Sector 17, Chandigarh R/o House No. 655, Near New Gopal Krishan Mandir, Darya, Chandigarh. Applicant By: Mr. R.K. Sharma, Advocate. 1.Union of India through General Manager, Northern Railways, Baroda House, New Delhi. 2.Chief Commercial Manager, Northern Railway, New Delhi. 3.Divisional Railway Manager (P), Northern Railway, Ambala Cantt. By: Mr. G.S. Sathi, Advocate. Respondents O R D E R
HONBLE RANBIR SINGH , MEMBER (A) This O.A. has been filed against Order O.F.No. 764/Dec/12 dated 1.1.2013 issued under endorsement No.758E/2/Tfr & Pstg/11/EC dated 1.1.2013 (Annexure A-1) whereby the applicant while working as ERS/CDG PG. II 9300-34800+ 4200 GP under CRS/CDG has been transferred from Ambala Division to Lucknow Division on administrative grounds along with the post.
2. The relief sought is as follows :
(i) Order O.F.No. 764/Dec/12 dated 01.01.13 (Annexure A-1) (Not communicated to the applicant so far) issued by respondent No. 3 on the advice of GMP/NR/New Delhi and approval of CCM, Northern Railway, New Delhi, whereby the applicant has been ordered to be transferred from Ambala Division to Lucknow Division on administrative ground along with post, outside his seniority unit, by way of punishment in an arbitrary manner and quashing thereof including the letters of GMP/NR/New Delhi and CCM, New Delhi mentioned therein, be quashed.
(ii) Directions be issued to the respondents to allow the applicant to continue at Chandigarh/Ambala/Kalka or any other nearby place in Ambala Division.
3. The following grounds have been taken for the relief sought :-
(a)The action of the respondents in transferring the applicant from Ambala Division to Lucknow Division is harsh, illegal, arbitrary, violative of principles of natural justice, unsustainable in the eyes of law and liable to be quashed with the directions to respondents to allow the applicant to continue at Chandigarh.
(b)The order of transfer will prove a major penalty for him and that too for the allegations which are not yet proved in inquiry.
(c)Throughout his service career, the applicant was never involved in any disciplinary or criminal proceedings nor he was issued any charge-sheet, memo or warning. His work and conduct has always remained above board and excellent. Therefore, there is no reason to unsettle the applicant especially when any charge against him has not yet been proved.
(d)The applicant is having liability of his wife who is a diabetic patient and the applicant himself is a diabetic patient and both of them are undergoing treatment at the PGI, Chandigarh.
(e)The respondent department is a big organization and the applicant is not indispensable and anybody else can be posted at Lucknow.
(f)The applicant has been transferred along with the post. This is preempting that he will be punished. In any case, it is not a case where somebody has to replace the applicant and vice-versa. Thus, no loss is going to be caused to the respondents if the operation of the impugned transfer order is stayed.
(g)The action of the respondents in transferring the applicant from Ambala Division to Lucknow Division, is harsh, illegal, arbitrary, violative of principles of natural justice, unsustainable in the eyes of law as he has been punished even before holding him guilty in a disciplinary case.
(h)There is no nexus with the object south to be achieved by transferring him to Lucknow particularly when enquiry is at Chandigarh.
(i)It is well settled that action of the state even in the administrative matter has to be fair and in consonance with the provisions of Article 14 of the Constitution of India. Reliance has been placed on 2008 (3) SCT 364 Man Singh Vs. State of Haryana.
4. The respondents have filed a common reply statement in which it has been stated that as per Circular dated 2.11.1998, Railway Employees who are found to be indulging in malpractices are liable for inter-divisional transfer and the legal validity of the said instructions has been upheld by Honble Delhi High Court in CWP No. 6082 of 2005 Shri Ganesh Din Vs. Union of India & Others. It has been held that the transfer need not await the completion of departmental inquiry.
5. The respondents have further contended that the applicant has been transferred from Ambala Division to Lucknow along with the post. It is wrong and denied that the transfer has been done by way of punishment in an arbitrary manner outside the seniority unit. A preventive check was conducted by the Northern Railway Vigilance at current reservation counter / Railway Station, Chandigarh on 24.8.2012 while applicant was performing his duties. Based on that Vigilance check a disciplinary action has been initiated against the applicant. Keeping in view the facts coming to the picture during vigilance check, the Railway Administration acted within its jurisdiction to order posting of the applicant against cash- strapped job. The applicant has been transferred from Ambala Division to Lucknow on administrative grounds along with the post. He will not lose his seniority. Departmental enquiry is under process. The averments made by the applicant do not constitute legally enforceable right for the applicant to stall his transfer which has been ordered by the competent authority in accordance with the extant provisions.
6. The applicant has filed a rejoinder in which the contentions made in the O.A. have largely been reiterated. It has been stated that authorities have not considered the reply submitted by him, else the proceedings would have been dropped. The transfer of the applicant shows malafide intention of the respondents to punish him even before charge could be proved against him. There is no public interest involved. The transfer order has been issued on extraneous considerations. The shifting of the applicant was palatably wrong and there is no administrative ground or public interest to transfer the applicant. Placing reliance on 1993 Sup(3) SCC 35 Ramadhar Pandey Vs. UOI etc. the applicant contends that what is to be considered is whether there is any public interest involved in his transfer. The impugned order does not recite any public interest except making vague and sweeping allegations. The respondents have not indicated even a single instance of existence of public interest. Referring to 1999 (4) AWC 3065, (2000) 1 UPLBEC 574 Salek Chand Vs. State of U.P. & Others, the applicant contends that the Court can, and should, in a case where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer.
7. I have heard the learned counsel for the parties and perused the pleadings.
8. The learned counsel for the applicant has gone to great length to draw my attention to Notice No.Vig/4/UMB/368/12 dated 31.7.2013 of Sr. Divisional Commercial Manager, Divisional Office, Ambala Cantt, which states that as far as connivance with touts of the charged officer is concerned, prosecution has miserably failed to prove the COs alleged malafide or connivance, but he is no doubt responsible for procedural lapses in this charge. He has also referred to confidential letter No.Vig/5/UMB/368/12 dated 26.3.2013 according to which the first charge is proved and article 2 is partly proved.
9. Per contra, the learned counsel for the respondents has drawn our attention to transfer order dated 27.8.2013 in O.A.No. 1405-PB-2012 (Komal Krishan Vs. UOI etc.) in which transfer under similar circumstance was upheld.
10. The impugned order has been issued by the Divisional Railway Manager (P) Ambala Cantt as advised by the General Manager, Northern Railway, with the approval of the Competent Authority i.e. Chief Commissioner Manager, NDLS. Nobody has been personally impleaded for malafide. Even in the O.A. and the rejoinder, nobody has been named for harbouring malice against the applicant. It is clear that the applicant has been transferred by the Divisional Railway Manager (P), after securing approval of the General Manager and Chief Commercial Manager. It is to be inferred that they would have applied their mind. The order states that it is on administrative grounds. This order is not in lieu of punishment. The departmental proceedings would deal with the matter of punishment. There is no violation of any statutory provisions. There is nothing arbitrary, unreasonable, illegal or perverse in the order of transfer. There is no case established for holding that the transfer is for extraneous consideration. If in administrative wisdom it has been found that considering his conduct the applicant should be transferred out of the Division then it is not a case for judicial interference. The mere fact that no action has been taken against him in the past would not prevent the administrative authorities from transferring the applicant. As far as the matter relating to treatment at Chandigarh is concerned, the applicant is free to furnish all the facts before the controlling authorities who are expected to deal with the same.
11. In view of the aforesaid, there is no scope for judicial interference in this matter. The O.A. is, therefore, dismissed accordingly. No costs.
(RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated: 05.09.2013 HC*