Central Administrative Tribunal - Madras
M Parthiban vs Bharat Sanchar Nigam Ltd on 30 November, 2021
Parad CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAT BENCH BASS 10/0091 /209) Dated ant " , thelvedday of November, 2023 PRESENT Hon'ble Mr. Swarup Rumer Mishra, Member(s} Hon'ble Nr. TJaceb, Member(A) M. Parthiban, 48 years, S/o. Muragen, Novd4, Raja Street, Poonga Nagar, Thiruvellar- GOs OGY Truvasar Qisteies. oo BES Sy Advacate Mr B. Sankera Subbu Vs i, The Chief General Manager, Chennai Telephones {SSNL) No.78, Purasavakkam High Road, Chennai-so0 G10:
3The Sanior General Manager Finance, Gio, BSNL, No.7? 8, Purasavelcam High Road, Millers foad, oes , . CResnekeeo on. | -oResnondenn By Advocate Mr. M. Kishore Kumar CAV On 28.07. 2024.
QROER (Pronounced by Hon'ble Mr. Toacob, Member{ Ay} Heard. The applicant has fled this QA under Section FO of the Administrative Tribunals Act, 1988 seeking the folfawing reliet Nig pass an order directing the rsspendents ty call for the records in Order No. POPCHTOSS2-18020-20R1 dated OSG. S021 on the Ale af Firat Respondent harain and quash the sant as Hisqel and direct the respandents fo Boat the apmicant CAG Planing and MM and IRA to GM CEA and Senay (Wve Executive Engineer in the Gffice of the BGM Manning and Development, BSNL CHTD,Chennals34 te secure the ends of Justios and thus render fustica."
2. The brief facts of the case ag submitted by the apeiicanr are aa follows:
The applicant was appointed ea Junior Accounts Ofer on . OLLLS010 and was promoted as Arcounis Officer on IS. 2078 and, therasfter, he was promoted as Chief Accounts Offeer of 3.1 2020. He bails fram S.C, Community and he discharged his duties faithfully, While 8G, One Janaki, Accounts Officer made a false comolainé ts tex First respondent dated 28.10.2080, When Janakl was asked to oroduce « imencie! Cell cancellation onder to enable JA0's $8 join In the section, the -
aid Jemak( fook exception and shouted at the aggficant and ts cower OER her misdeeds, made a false complaint on 36.10.2020, which was Mevated to the level of seeual harassment but without follawing procedures, The impugned punishment of Transfer to AD TR HQ-COSA was awarded without any iswful justifiestion. Henre. the OA.
LO Foo goc$ ent?
"30fB a. The applicant has sought the aforesaid mafia, inter sla, sor Hie following grourei< The impuqned order of transfer is arbitrary, egal and vicladve of Article 311 (2) of the Constitution of india.
A, Respondents have Sled detailed reply & is submitted that applicant's substantial cadre is an Accounts Officer and was given looking after duties of Chief Accounts Officer vide onder dated 03.01.2020 and pasted gy Manning. SMaterial Management Unit (PEaMM) with po. monetary or associated benefits.Based on a complaint of "Marassmast of warren: in work place" by one of his subordinate officers of the anicant, Sert. Janaki, Accounts Offecer, matter was referred to a Conrittes which submitted ts report vide letter dated 23.31.2020 after examining 9 officials inchuding the applicant Wh the folowing observations/recommendations:
"Using un-parllamentary/abusive language against female sub-ordinates does not constitute sexual harassment, but Ko hes created a hostile work environment and mental stress to female subordinates which calls for apprepriste disciplinary action under conduct rules. Alss, in the first place, the Charged Officer may be immediately transferred to some other section. The competent aulbority may take necessary action accordingiv"
In this backdrop, the applicant was tanslerred to Accounts Oeicer CFR.
HQ) COBA order dated 05.01.2021 within city limits of Chennai.
Subsequent to which, applicant procesded an leave. Hoyweares Re ys RnR IES doti2 reliewed thas be eariler ud core PAUL -BOOk. aktermoon Aeith the instrachions fo sanart ie Sr General Manager {TR}.
~' e ie iS subrnited fat Ho isdn this backedron, the Soicant was transferred fo Accounts Officer {TR HO} COSS vide anier dated x = OS.OL2O8) (Annexure-R3), within city liedis of Chennai The distance betwuen the garler place of working and the new place is just S4 Kms.
The agwlicant is mot pul inte any type of lass as exniaived below! Teer: : Romarks igs dhe transfer auiside olla} No: Ht is within Chennai Oa b}is Ghe seplicant pul inte any!b}) Ne, the -- applicanr:
monelury ines continues to draw 305s HAS ee as before c} is the transfer In the interastic) Yea. of Service LARA SAN RASS NA RAN NS NSN SNS 8} OQoes tye soplicant belong told) Yes. He can be transferred all India transfer Nebilty cadre anywhere in the country
e) Js Roe transfer arbltvary,'s) No, i is purely based on! Malafide ihe recommendations of the Committees % is transfer incidence of f) Yes service =:
choose' basis hh} Is the transfer to favour mndih} Devindtely No actomrmeniaie another officar i:
His places _
i) Goes the transfer affect the) | condiiion of bis service coe o & Applicant has submitted @ representation dated GF.G1,. 2081 66 the "hit Genera! Manager requesting fer cancelation af Ysaseftr and Reversion of post which was duly disposed by Boe ooas eG ar SoS letter dated 04.02.21 and the same has been refused by the. applicant sent through Speed Post. The same action has been repeated by the applicant while communivating the disposals forhie siralar representations tated 07.01.2021 and 21.03.2021 addressed te the Sr General Manger (Finance) and Genera! Manager {HR} respectively vide jeSers dsted 04.02.2021. The saplicant also submitted a simiar representation to the Director, the National Commissian of Schergled Caste which: was forwarded to CGM, Chennai Telephones by letter dated 19.01.2021 giving 5 daystime calling for the action taken. A reply was sant by letter dated 05.2.2) explaining the circumstances that lead to transfer of the applicant and thet the actions taken by the organization have no relevance io his community, The applicant made another Istter dated G1.02.21 te 5M, Chennai Telephones requesting t allow him in the same position and tp cancel the order dated OS.0L.2081 and further similar representation dated 26.2.2021 to the Director, National Commission for Schedule Caste, _ Chennai which was forward to OGM, Chennai vide letter dated ULOS 21 calling for action taken repert within a fortnight. The competent sathority considering bis representations, appraved for restening the looking after duties of Chief Accounts ONfcer (O40) to the applicant vite order dated i7.3.2021 which wes earlier withdrawn vide onder dated OS UH 2631 and posted him as CAO (Tranemission Maintenances Transmission instalation} CBA, in short CAO(TXM/TXD) CBA. A balanced decision has been taken by the competent authority which is In the best Interest af the organization and to the Individual. [tis further submitted thet SMPHOVER Goes Ne w 8 obEs eny vested night (0 Ge posted sf Re particular olace, Henes, the resporudanis pray for dismissal of the O4 as i is devoid af merits, og * The applicant has Sled rejoinder and the respondent hes Sled realy ft % idler The saspondent has refiad an varigus jucgemunts of dhe © S mr rs ho rake None Suprema Court in sugsert of their submissian, S. Neard lesrmad counsel for beth aides and have carefully gone through the materials placed on record.
%. _Yhe learned counsel appearing for the applicant contended that the transfer Is flable to be set aside as & WAS peased with @ male-Ade tention ard if is panitive in nature. He further submitted that Qhough in the Qnougned onder of transfer f was stated that the on ¥ z Bdministrative grauneds, iy te counter the resnordens have slated the reason for transfer and, therefore 8 would prove Ut as & punishment, the apmicant was transfirred end, hence, the transfer ds Ueble to be sat aside, iG. Aceording to the fearned counsad appearing for the respondents, in the counter, it has been stated the reason Yor transfer dnd Noe Seen specifically stated there is no stigmas attached ty the transfer and in dvs case, he order was pasoed purely an acministrative grounds and i was AOL @ Case of puniiive transier ii 2 IS settled proposition of jaw that a teasfer order can 3 & challenged only on the gmund of mala-fde or punitive or withsut Jurisdiction. In this case, as pointed by the learned ccunsel SPDeANAY fer the respondents, in the affidavit Med in support of the OA, oe tage tert ee) not stated anything ahout the mala-fide ar punitive nature of the transfer arder and only In the course of STGUIMONE, Gis stated that the order of transfer is Nable to be set aside an the graumd that © was issued with mala- fide intention and & is in the nature of pushintent, ig. The Honourable Supreme Court in the Judgment reported i 200S(3) MLI 227 = AIR 2009 SC 1389 in the case of Sarnesh Tiasrl vs, Union of India. and others hela as follows:
"The order In question would attract the princale of mallee In law ae it was not based on any fector germane for passing an order of transfer ang based on an. brelevant ground . 1. or te allegations made against the eposlant in Be anonymous complaint. ft fe one thing to Saye that the employer is antited to pase an order af transfer In administrative exigencies but it is another thing to say that the order of transter is passed by way of ar in feu of punishment. When an. order of transfer is passed in Bey of punishment, the same is flable ty be set aside being wholly flegal."
Therefore, we will have te see whether the impugned order of transfer bs punitive In nature or issued with mala-fide intention, i3. . Further, in the Givisixe Bench of Madras High Court, in the unreported Judgment, dated 24.08. 2006 fy WAN E38 ay 2008, similar view was sisa taken by the court. (A Micheal Raj ve. Director General of Palice and others) aad held thus:
"Though in the imeugned order of transfer i io stated grounds, the same fas been given a ge-hy in the counter afiiavit fled by the respondents as stated ameve. AS gar the avermants contained In the sodnter affidevit, the transfer was passed on sone Sdwerse remarkaycomplsinis received against the sooeliant anc iso on the basis of Bee report sent by the Olrector iseneral of Police fo the Inspector General of West Sone, Sod in gucheircumstances we are af the consiisred wew that the ander of transfer saased against the appellant is by way of punishment and Gat amy ogpartunity of hearing fo the Rr.
too without giving petitioner"
Therefarg, from the above judgments, i i seen that when the bansfer ardor was made on the basis of the repont or an the basis of the charges 'svellad against the applicant, the same is punitive one when the order Was made without giving angertunity, the onder is Hable to he gat aids,
8. Further, in the judgment reported In AIR 1964 SC 962 In the case S ~ nn + of. S.Rowlee, represented by Power af Atiemrey holder, Sa C.ApparsaRowiee vs. The State of Andhra Practash and athers, if has been healed that Ne ae are.
& tis trun that aflegatiens of mata Ades aad of improper motives on the part of those in poy ae frequently made and thelr frequency has Increased In racent times. [ris also somewhat unfortunate that allegations of is nature which have no foundation in fect, are made in several of the cases which have come an Before the Susreme 5 xf hd se Court and other courts and Hols found that they have beer made merely with a view to cause prejudice or in the tape that whether they. have hasis in fact or not, some of it at least might stick, Consaquantly, it has become the duty of the Court fo scrutinise these allegations with care so as te avoid being in aay ranner influenced by them, is cases where they have no foundation iy fact. Tx this task which is thus cast on the courts it would conduce {© @ more satisfactory dleposal and consideration of time, if these against whom allegations are made came forward to place before the court either their denials or their version of the matter, So thet the court may be in a position te judge as to whether the onus that lice upon those who meke allegations of mais fides on the parioot authorities have discharged els burdes of proving I. In the absence of such affidavits or af materials placed befars the court by these authorides, the court is left te dade of the veracity of the allegations merely on taste of probability with nothing more substantial by way of answer® iS.As held by the Honourable Supreme Court, the allegations of mala-fide and the reason for holding that the order is by way of punishment have to be specifically stated se as to enable the opposite side to give reply and is the absence of such affidavits ar materisis, the Court cannot go inte the such allegations, foley ae iS. Further in the counter the resuondent has stated the reason which is quoted above and considering al these aspects, i cannst be stated that the order of Gransfer is mala-flde one arel ib was passed as x gunishoieedt.
Be 8 8 matter of fect, in the jucgotent resorted in f2004)4 SUC 448 in the make of Union of India and others va. Janardhan Debanath end arathen the Honourable Supreme Court has held that unless the order of traneier is Shown to be an outcome of malofide exercise or stated ta be in Winlation of stulutory provisions prafibiting any such tra Haver, the Court or "ge the Tribunals normally cannot interfere with such orders as @ matter of .
rougne.
if. Burther, In the judament reported in (2008) 4 SCO 243, in the case of Union of India and others vs. Janardhan Debanath and another tee Honnurable Supreme Court held as folinws:-
"The mrianmer, nature and extent of exercise to he undertaken by courts/iribunais in a case te adjuige whether the use of the word "undesinable® casts a stigma or congiitutes a punishment woule depend upon the consequences Sowing from the order and as to whether it adversely affectad any service comdidians- stgtus, service armspects Rmencially- and the same yardstick, sorms or 'Standards canneat be gooted to al categarics oof cases. Transfers unless they invelve any such adverse impact or visit the persone concerned with any penal consequences, are not required to be subjected te same type of scrutiny, approach and assessmant as in the case of dismissal, discharge, reversion. gr lsrmiss should be left with dhe and almost Jathude arhment concerned to enforce discipline, decency and decorum in public service. owhich sre indisputably essential to maintain quality af public sendcs and meat untoward aaininistrative exigencies fo ansure smooth functioning of the administration."
is. Whether there was any misiohawiour is a question which can Se transfer, the quastion of halding an enquiry to Nine out whether there was misbehaviour or conduct unbecoming of an employee ig unnecessary and what is needed is the prime tacks satisfaction of the authanNes concemed oo the contemporary reports ghaut the eccurrence complained af and if the requirement, as submitted oy the respondents, of folding an elaborais enquiry is to bs insisted upon, the very purpose of transferring an employee in public interest or exigencies of ariministration ty enforce decorum and ensure probly weuld get frustrated, The question whether the respondents cauid be transferred to a divierent didsion is @ matter for the employer fo consider depending upon the administrative necessities and the extent of solution for the prablems faced by the adininletration, & is not for the Supreme Court te direct sas way or the others."
Therefore, tbe Honourable Suprame Court hae held Hist the andar af transfer cannet be sald to be puniGve iy agture and the holding of an SEVERN SRS SAN SSSA SSERAA SSS ESSN ROCA AS COA atinnanenectinnsine OLD ots 2 tee ero i respotants aret ik caret be bonne employes: im public interest and duc 8 aodgencios af administhatinn asd ie anforce decom and ensure probity 8 reanafer order cart be passed.
Thorafors, the analinante fag Oot proved that the order of tranefer was pesged wilh moeie-fide ingention or punitive in nature and the Po Ragangene geen" ok Shea ae tere sates vor trarerter im the caunler arkos wth woul 0 is fF east af the appicent and Uic tive in sature merely ?
bersuse sons Instances against he ane sant were slated in the counter
25. Hence, we de not fret any ment in is G8 and, scoordingly, fis