Allahabad High Court
Union Of India And 3 Others vs Ravindra Kumar Pandey And 3 Others on 18 November, 2020
Bench: Munishwar Nath Bhandari, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- WRIT - A No. - 8743 of 2020 Petitioner :- Union Of India And 3 Others Respondent :- Ravindra Kumar Pandey And 3 Others Counsel for Petitioner :- Sanjay Kumar Om,Asgi S.P. Singh (Sr. Advocate) Counsel for Respondent :- Shyamal Narain Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Piyush Agrawal,J.
1. By this writ petition, a challenge has been made to the order dated 11.9.2020 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in O.A. No. 330/00318 of 2020. By the impugned order, the transfer order dated 19th February, 2020, has been kept in abeyance till the disposal of the original application.
2. Learned ASGI submitted that the applicant-non petitioner was transferred to Ballia unit by an order dated 19th February, 2020. The order aforesaid was initially conveyed on telephone followed by registered post. The applicant-non petitioner knowing about the transfer order took medical leave since 20th February, 2020. The medical certificate does not prove his presence in the hospital on 20th February, 2020. In any case, challenge to the order of transfer was made on the ground of malafide of Smt. Parul Gupta, Joint Deputy Director, Subsidiary Intelligence Bureau, Ministry of Home Affairs, Varanasi.
3. It was alleged that on 19th February, 2020, Smt. Parul Gupta asked the applicant-non petitioner to give a favourable report for an advocate to be on penal of the department, who was otherwise recommended for elevation. The applicant-non petitioner had already prepared the report which was unfavourable to the advocate thus shown his inability to change the report. Smt. Parul Gupta become furious and used abusive language in the meeting and gave threatening of dire consequences. Immediately thereupon she transferred the applicant-non petitioner, initially to Agra and thereupon to Ballia. Transfer of the applicant-non petitioner to Agra was not permissible as it was not within the competence of Smt. Parul Gupta. The allegation is further for ante dating of transfer order as it has never been served upon the applicant- non petitioner on or before May, 2020. Taking all facts into consideration and more specifically the fact that even after the order of transfer dated 19th February, 2020, the salary was drawn for a period of two months whereas if an employee has been transferred then the salary is not drawn for a period of two months or for any period. The Tribunal, accordingly passed an interim order to keep transfer in abeyance.
4. Learned ASGI submits that very foundation of making allegation against Smt. Parul Gupta was an adverse report against the advocate. The so called adverse report was not placed on record to prove the allegation. The allegation against Smt. Parul Gupta is further for using abusive language and threatening the applicant-non petitioner with dire consequences in the meeting held on 19th February, 2020. If that was so, the applicant- non petitioner should have made a complaint to higher authorities against Smt. Parul Gupta but there is no complaint on record to prove the incidence on 19th February, 2020. Thus, even the allegation of using abusive language and threatening with dire consequences is without any proof. In the normal circumstances, if any employee receives threatening, would immediately make a complaint to the higher officer but nothing was done by the applicant- non petitioner, despite alleged serious incidence.
5. It is further submitted that the applicant- non petitioner is the one who remained posted at one and the same place for almost 22 years barring small gaps in between. The post held by the applicant-non petitioner is otherwise transferable.
6. The allegation of ante dating of the order has been made without realising that by the order dated 19th February, 2020, it is not only the applicant but one Rajiv Kumar was also transferred. The said Rajiv Kumar joined the post on 25th February, 2020 itself. This proves that the order was not ante dated, yet an argument was advanced making allegation of ante dating of the order said to be of May, 2020.
7. In fact the transfer order was sent at the residence of applicant through post but was not accepted by the family members and to avoid the compliance of the transfer order, the applicant went on medical leave. If the documents on record are looked into i.e. the letter dated 20th February, 2020, it refers to a visit of a hospital but document in proof thereof has been submitted. The effort of the applicant was just to avoid compliance of the transfer order. The fact aforesaid has also been ignored by the Tribunal. There are many other grounds to support the order of transfer but at this stage, if all the issues are raised and decided by this Court, prejudice may cause to the applicant- non petitioner as the original application otherwise is pending consideration. Thus, prayer of the learned ASGI is to cause interference in the order of the Tribunal with a direction of early disposal of the original application. The Union of India undertakes to file a detailed counter within whatever reasonable period is fixed by this Court. Prayer is, accordingly, to allow the writ petition.
8. The writ petition has been seriously contested by the counsel for the side opposite. Learned counsel submitted that all the allegations made by the applicant- non petitioner are substantiated by the documents on record. A copy of the unfavourable report of the advocate was not produced on record to save the learned advocate from consequences, adverse to him. It was in the interest of the lawyer concerned and not for any other reason. The use of abusive language and threatening of dire consequences is a fact which took place on 19th February, 2020. In the normal circumstances, a subordinate would not dare to make complaint against higher officer. The petitioner did not make complaint for that reason alone but it does not mean that incidence, as alleged, did not take place. In fact the pleading of the original application is very specific as whatever words were used by Smt. Parul Gupta has been specified therein. It should not be ignored only for the reason that in follow up to the incidence, a written complain was not given by the applicant.
9. It is further submitted that the allegation of ante dating of the order is well proved. If an employee is transferred by the order dated 19th February, 2020, would be served with it immediately. No material was placed to show dispatch of letter within reasonable time. In fact, the relieving as well as the transfer order was received by the applicant-non petitioner in May, 2020 which cannot happen if the order was of 19th February, 2020.
10. Coming to the issue of Rajiv Kumar, other employees transferred by the same order, reference of the short counter affidavit has been given. It is stated that even Rajiv Kumar joined the post in the month of June, 2020. Since Union of India has admitted joining of Rajiv Kumar in June, 2020, the allegation about ante dating of the order gets proved.
11. Learned counsel further submitted that issue is pending consideration before the Tribunal, thus, he agrees to suggestion of the learned ASGI, that at this stage, this Court may not make comment on the merit of the case otherwise a prejudice would be caused to either side. It is submitted that let interference in the order be made but it should be without a comment on merit, rather a direction may be given to the Tribunal to decide the original application within specified period not later than four months from the date of receipt of certified copy of the order. The Union of India should be directed to file a detailed counter affidavit within a specific period with a liberty to the applicant to file rejoinder thereupon.
12. At this stage, both the counsel for the parties agreed that let the order of the Tribunal be interfered but without making any comment on merit, as otherwise, it will affect the pending original application. A direction has been sought jointly for early disposal of the original application and for which maximum period of four months has been suggested.
13. Taking into consideration the last prayer jointly made by the counsel for the parties, the impugned order passed by the Central Administrative Tribunal is set aside without commenting on merit. It is, however, with the clarification that the original application would be decided within a period of four months from the date of receipt of a copy of this order and to expedite the hearing, the Union of India would file detailed counter affidavit within a period of eight weeks. If any rejoinder affidavit is required, the applicant can seek appropriate opportunity but would not be of more than two weeks from the date of receipt of the detailed counter affidavit. The Tribunal would then fix a date for hearing of the original application with its disposal within a period of four months from the date of receipt of the copy of the order. The arguments of the parties recorded in this order were to decide the petition on merit but looking to the agreement between the parties to send the matter back to the Tribunal for its decision on merit, we have not made comments on merit. The Tribunal would be expected to decide the matter after giving proper hearing of the parties.
14. The writ petition is disposed of with the aforesaid.
Order Date :- 3.11.2020 samz