Central Administrative Tribunal - Hyderabad
Sri B. Madhusudan vs Nct Of Delhi Wherein It Was Held That When ... on 3 August, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 44/2009,CP17/09 in OA 44/2009, MA212/09 & MA301/09 in OA44/09 Between: Date of order: 03 -08-2009 Sri B. Madhusudan, Sr. Audit Officer (Commercial), Office of the Principal Director of Commercial Audit and Ex-Officio Member, Audit Board, A.Gs. Office Complex, Saifabad, Hyderabad - 500 004. ... Applicant A N D 1. The Comptroller & Auditor General of India, 9-Deendayal Upadhyay Marg, New Delhi - 110 002. 2. The Principal Accountant General, (Commercial & RA), Gwalior, Madhya Pradesh. 3. The Principal Director (Commercial) Cum Member, Secretary Audit Board, O/o. The Comptroller & Auditor General of India, 9, Deen Dayal Upadhyay Marg, New Delhi - 110 002. 4. The Principal Director of Commercial Audit, and Ex-Officio Member, Audit Board, A.G. Office Complex, Saifabad, Hyderabad - 500 004. 5. Sri Rakesh Jain, Director General, O/o. The Comptroller & Auditor General of India, 9-Deen Dayal Upadhyay Marg, New Delhi - 110 002. ... Respondents Counsel for the applicant : Party-in-Person Counsel for the respondents : Ms. N. Shakthi, SC for the respondents C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. HRIDAY NARAIN,MEMBER (A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) This application has been filed by the applicant questioning the order dated 08-12-2008 of 4th respondent whereby the applicant has been transferred from Hyderabad to Gwalior with immediate effect.
2. The applicant who is appearing in person submitted that he has been transferred with malafide intention to harass him. It is also the contention of the applicant that he was subjected to frequent transfers, as a result of which the education of his children have been affected and that he also finds it difficult to perform his duties as he is always under the fear of transfer. Applicant has also pleaded malafide against 5th respondent who has been made party by name. He has also made 4th respondent as official respondent.
3. It is the contention of the applicant that whenever the applicant's promotion was due the Reviewing Officer had given adverse remarks to him in his ACR which on his representation was subsequently expunged as a result of which his promotion got delayed. In para-3 of the OA the applicant has mentioned that the Reviewing Officer had given the adverse remarks in his confidential report for the year 1995-96, which was subsequently expunged by the competent authority in the year 1997-98 as a result of which his regular promotion which was due to him was delayed by six months and his junior became senior who have been given promotion from an earlier date. The Reporting Officer again made some adverse remarks in his ACR for the year 1997-98. On his protest the same was again expunged by the competent authority in the year 2000-2001 vide proceedings No. 90 dated 22-08-2000. He further submitted that the then Principal Director of Commercial Audit and Ex- Officio Member, Audit Board, Ranchi (5th respondent herein) have influenced the office of the Comptroller and Auditor General, New Delhi to transfer the applicant as Audit Officer (Commercial), in the North Eastern Region at the office of the Principal Accountant General, Shillong, Meghalaya by exercising colorable exercise of powers with a view and only to harass the applicant in one way or the other. Even after his joining in the North Eastern Region, the 5th respondent did not stop harassing him and initiated a case under FR 17-A which was closed vide proceedings dated 12-04-2001. It is further alleged that when the full tenure to stay in the north eastern region is only two years the respondents continued the applicant for six years even though he applied for a transfer from Shillong which was not considered. After six years, the applicant was transferred from Shillong to the O/o. the Principal Director of Commercial Audit & Ex-Officio Member, Audit Board, A.Gs. Office Complex, Saifabad, Hyderabad vide proceedings dated 26-11-2002. In Hyderabad he was looking after nine public sector undertaking under his control but the 5th respondent with malafide intention again transferred to the office of the Sr. Resident Audit Officer, M/s. Rashtriya Ispat Nigam Ltd., Visakhapatnam, where the applicant had to look after only one public sector undertaking. It is the contention of the applicant that in order to demoralise him he was transferred from Hyderabad where he was looking after as many as nine public sector undertakings whereas in Visakhapatnam he has to look after only one public sector. This transfer was, therefore, made by colorable exercise of power and with malafide intention of the respondents to harass the applicant. While the applicant was looking after RINL, the then Reviewing Officer, made certain adverse remarks in the ACR for the period of 01-04-2003 to 30-11-2003 and the same was communicated to the applicant in the year 2005 and on his protest the same was again expunged in the year 2007.
4. The applicant in para 13 of the OA has categorically stated that inspite of lot of mental agony and suffering due to frequent change of quarter which adversely affected his childrens education the applicant handed over the charge at M/s. Rashtriya Ispat Nigam Ltd., on 18-08-2004 and joined the office of Senior Resident Audit Officer, M/s. Hindustan Petroleum Corporation, Visakhapatnam. Some adverse remarks made in the ACR of the applicant again for the period from 1-4-2004 to 31-10-2004 and on his protest the same was expunged by the competent authority vide proceedings dated 26.6.2006. The Reporting and Reviewing Officer again made adverse remarks in the ACR for the period 01-11-2004 to 31-03-2005 which was on his protest expunged by the competent authority by order dated 19-06-2008. The applicant submits that he has discharged his duties at HPCL with highest outstanding performance and contributed his services to the department. The 5th respondent developed grudge against him and influenced to transfer the applicant from the office of Senior Resident Audit Officer, M/s. Hindustan Petroleum Corporation Ltd., Visakhapatnam to some other place within a short period. He further contended that the respondents without considering the contribution and performance of the applicant transferred him from Visakhapatnam to the office of the Principal Director Commercial Audit, AG Office Complex, Hyderabad within a short period and this time they have issued the relieving order on 4.5.2006 without serving the transfer order. The applicant joined at Hyderabad under protest on 07-08-2006. The representation submitted by the applicant is still pending with the respondents. The representation submitted on 25-01-2007 and 8-1-2008 to the competent authority requesting to set aside the transfer order, has not been considered till date. The applicant was again transferred to the Local Audit Party and again from Local Audit Party to Resident Audit Party M/s. Praga Tools Ltd., and M/s. Indian Drugs and Pharmaceuticals Ltd. vide letter dated 06-10-2006. Applicant submitted that he was transferred and posted to sick companies. It is, therefore, the contention of the applicant that the fact that he has been transferred from place to place within short time itself shows the malafide intention to harass him. By virtue of impugned order the applicant has been transferred from Hyderabad to Principal Auditor General (Commercial & RA), Gwalior, Madhya Pradesh i.e. 2nd respondent herein with immediate effect which was orally informed to the applicant. Being aggrieved by the said transfer the applicant submitted representation to the 1st respondent on 11-12-2008 and sought for his retention in Hyderabad. The 4th respondent vide order 19-12-2008 ordered to relieve him within 15 days in terms of Head Quarter order dated 8-12-2008. The applicant submitted representation to the 4th respondent requesting to forward the representation dated 11-12-2008 addressed to the 1st respondent.
5. When the matter stood thus the 4th respondent compelled the applicant to relieve from the office of 4th respondent. The applicant, therefore, found no option but to approach this Tribunal, filed the instant OA. This Tribunal vide order dated 23-01-2009 ordered to maintain status-quo as on date which is still continuing.
6. Respondents have contested the application by filing a counter reply. Heard Mr. B. Madhusudan, appearing in person and Ms. N. Shakti, learned counsel for the respondents.
7. In the Contempt Petition the applicant submitted that the relieving order purported to have been issued by the 4th respondent has not been served upon him. The respondents got the office of the Senior Resident Audit Officer at Praga Tools Ltd. Balanagar, Hyderabad sealed and based on the orders of Sri K.P. Anand, Director requested the Unit Chief of Praga Tools Ltd., Hyderabad not to allow the applicant to enter the premises of Praga Tools Ltd. He further submitted that this has happened on 23.01.2009 after the Tribunal passed interim orders of status-quo. It is, therefore, the contention of the applicant that although the interim order of status-quo was in force respondents did not allow the applicant to work in the Praga Tools or at IDPL Balanagar where he is presently posted as Senior Resident Audit Officer. Since the applicant has not yet been relieved and he has not been allowed to work in the Resident Audit Party at PTL or IDPL, they have not paid the salary for the month of January,2009. It is, therefore, the contention of the applicant that the respondents have willfully disobeyed the orders of the Tribunal dated 23.1.2009 and 29.1.2009 which is still continuing and thereby committed contempt of this Tribunal and therefore liable to be punished for contempt of court.
8. Applicant filed two MAs being numbered as MA 301/2009 and MA 212/09. In MA 301/2009 the applicant has made a prayer to direct the respondents to draw and disburse pay and allowances for the months of March 2009 to June 2009 till the date of payment to the applicant and to treat the entire period w.e.f. 23.12.2008 till the date of orders (except for the period 16-03-2009 to 02-04-2009 during which the applicant was on E.L) as duty. In MA 212/2009 the applicant has prayed for a direction to the respondents to draw and disburse pay and allowances for the months of January, February 2009 to the applicant.
9. We will first decide the contempt petition filed by the applicant. It is the contention of the applicant that even after the interim order of status-quo was passed on 23.1.2009, which is still continuing, the respondents have not allowed the applicant to join the duty although relieving order has never been served upon the applicant, thereby, the respondents have committed contempt. The question, therefore, arises as to whether the applicant had been served with relieving order dated 08-12-2008. It is not in dispute that applicant has been served with transfer order. From material papers available in the counter reply as well as in reply to CP we find that respondents have enclosed letter of Sub Post Master, Balanagar Township stating that the speed post article booked at AGs PO on 23.12.08 has been delivered on 29.12.08 by that office. From page 26 of the counter reply filed in OA No. 44/2009 we find that a certificate has been issued by the Dy. Manager (TRG&HR), Praga Tools Ltd. stating that letter dated 29-12-2008 sent under Speed Post vide No. SP 624400185 from Indian Audit and Accounts Department, Hyderabad and letter dated 01-01-2009 sent under Registered post vide No. RL 77886 from Indian Audit and Accounts Department, Hyderabad, both addressed to Sri B. Madhusudan, Sr. Audit Officer were dropped in the office of the Resident Audit Party of Praga Tools Limited, Hyderabad on 29.12.2008 and 3.1.2009 respectively. In MA No. 212/2009 the respondents have enclosed a copy of the letter of Sub Postmaster (LSG), Balanagar Township dated 27-01-2009 addressed to The Director, Indian Audit and Accounts Department, AG's Office Complex, Hyderabad intimating that speed post article No. EN624400185 IN booked at AGs PO on 23.12.08 has been delivered on 29.12.08 by that office. Another letter of Sub Post Master (LSG) i.e. the same authority intimating that the registered letter with acknowledgment No. 7886 booked at AGs PO on 30.12.2008 has been delivered on 01-01-2009 by that office. However, applicant has denied the service of the relieving order and submits that since he was not there on these dates the same cannot be treated as completion of service. Learned counsel for the respondents Ms. N. Shakti has placed reliance on the judgment of the Principal Bench of CAT dated 14.10.1997 in the case of Smt. Uma Upreti vs. NCT of Delhi wherein it was held that when transfer order is sent on registered post and was delivered in the office shall be deemed to have been served upon on the applicant. Since the relieving order sent by speed post and registered post has been delivered in the office of Praga Tools Ltd. the same amounts to service of notice on the applicant. Since the same was delivered on 30.12.2008 much prior to the interim order was passed by the Tribunal, there is no violation of the order of the Tribunal as contended by the applicant and therefore no contempt has been committed.
10. In this context we have also taken note that in para-3 of MA 301/2009 in OA 44/2009 applicant has categorically stated that he was on casual leave with effect from 22.12.2008 to 26.12.2008 for 4 days (prefixing 20.12.2008 and 21.12.2008 being Saturday and Sunday) and 25.12.2008 being holiday on account of Christmas and suffixing 27.12.2008 and 28.12.2008 being holidays and he joined on 29.12.2008 whereas in para-18 of the said MA he has stated that since he was on official duty at IDPL as per revised tour programme with effect from 01-12-2008 to 31.12.2008 he was not in a position to comment on the exact date of sealing of RAP/PTL&IDPL. If the contention of the applicant in para-3 of the MA 301/2009 that he was on casual leave with effect from 22.12.2008 to 26.12.2008 and joined on 29.12.2008 is accepted the applicant was supposed to be in the office on 30.12.2008 and also on 1st of January,2009. Since the registered letter was delivered on 1-1-2009 and speed post was delivered on 29.12.2008 we find no reason how the applicant can say that since the letters were dropped at Praga Tools Ltd. the same was not served upon him. In case we accept the contention of the applicant in para-18 of the MA, since the applicant was on official duty at IDPL as per revised tour programme with effect from 01-12-2008 to 31.12.2008 the applicant was supposed to be at his office when the registered letter of the applicant was delivered. It is also not clear as to why the applicant has made such statements. However, in view of the principle laid down by the Tribunal as mentioned above we hold that relieving order is to be treated to have served on the applicant and therefore the action of the respondents, as alleged by the applicant in C.P, does not amount to contempt. Accordingly the CP is closed.
11. Learned counsel for the respondents Ms. Shakti submitted that transfer is the prerogative of the authority concerned and the Tribunal should not normally interfere with transfer except (i) if it is vitiated by malaifde, (ii) in violation of any statutory provision and (iii) having issued by an authority not competent to pass such an order. She further contents that since the present transfer order has been issued by the competent authority and there has been no violation of any statutory rule and it does not suffer from any malafide the transfer order cannot be interfered by the Tribunal. Ms. N. Shakti submitted that although the applicant had alleged malafide but he could not establish malafide inasmuch as he could not explain as to what is the intention of the 5th respondent to harass the applicant. In regard to the allegations made by the applicant that he had been frequently transferred with an intention to harass him it is the contention of the respondents that transfer is an incidence of service and on many occasions the applicant has been transferred within the same location which cannot be treated as transfer. In regard to his retention in North Eastern region for almost six years the learned counsel for the respondents submitted that applicant did not question the same at the relevant point of time therefore he cannot raise this point now in this OA.
12. Learned counsel for the respondents has placed reliance on the following judgments:
(1) Rajendra Roy v. Union of India and another reported in AIR 1993 Supreme Court 1236.
(2) Union of India and ors. vs. S.L. Abbas reported in AIR 1993 Supreme Court 2444.
(3) Smt. Uma Upret vs. NCT of Delhi reported in 1998(1)ATJ 7.
(4) State of U.P. and another vs. Siya Ram and Another reported in 2004 SCC (L&S) 1009 (5) State of U.P. and Others vs. Gobardhan Lal reported in 2005 SCC (L&S)55 (6) Union of India and Ors. vs. Janardhan Debanath and another reported in 2004 SCC (L&S)631.
(7) S.C. Saxena vs. Union of India and ors. reported in 2006 SCC (L&S) 1890.
13. Applicant who appeared in person has also placed reliance on several judgments which he has submitted in a compiled form.
14. On going through pleadings, material papers placed before us we find that the question that falls for our consideration is as to whether there is any malafide intention in transferring the applicant from Hyderabad to Gwalior. The competency of the authority who has ordered the transfer is not questioned. On going through the judgments relied upon by the learned counsel for the respondents we find that time and again the Hon'ble Supreme Court has held that order of transfer can be interfered by the Tribunal only when the same is vitiated by malafide or made in violation of the statutory rules or passed by an authority who is not competent to pass such an order. In regard to the allegations made by the applicant that he had been frequently transferred from one place to another within a short time, we find from the original application (OA) that applicant had been transferred on several occasions which are not denied by the respondents.
15. It is also not disputed that the applicant was transferred within the same region on many occasions. It is also admitted position that applicant had been transferred to the North Eastern region and was detained there for more than 5 years. As per OM dated 14-12-1983 when an employee is transferred to North Eastern Region he can be retained there for 2/3 years as the case may be and after completion of his tenure he can be transferred to his place of choice posting. The respondents have not explained as to why the applicant has been retained there for more than three years. We have also noticed that the applicant, on his transfer from North Eastern region was given posting at Visakhapatnam but was not retained there for some time, in fact, within a short period he was transferred to Hyderabad although he made protest through representation which was not replied to. In so far as the contention in regard to adverse remarks made by the Reviewing Officer is concerned we have seen that the adverse remarks were made in the ACR of the applicant on several occasions and every time it was expunged by the higher authority. We have also noticed that due to such adverse remarks his promotion was delayed. Learned counsel for the respondents while admitting that the adverse remarks were made many a times, submitted that the very fact that reviewing officer expunged the adverse remarks goes on to show that there was no malafide in making such adverse remarks. We do not find any force in the contention of the learned counsel for the respondents. There was no answer from the learned counsel for the respondents as to why the applicant was made to suffer by giving promotion from subsequent date on account of such adverse remarks which were expunged every time subsequently.
16. No sufficient reason has been given by the respondents for such frequent transfer of the applicant. We do not find any force in the contention of the learned counsel for the respondents that transfer in the same region should not be taken as transfer. No doubt, frequent transfers from one office to another makes it difficult for an employee to concentrate on his work as the employee is thrown to be under apprehension of transfer all the time. We are, therefore, of the view that no administrative purpose is served by subjecting an employee to frequent transfer. There is no doubt that due to frequent transfer the education of the children of the employee gets disrupted. In this context it is worth to refer to the judgment of the Hon'ble Supreme Court in the case of B. Varadha Rao v. State of Karnataka and others, ATR 1987(1)SC 396 wherein the Hon'ble Supreme Court has held as follows :
"One cannot but deprecate that frequent unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It, therefore, follows that the policy of transfer should be reasonable and fair should apply to everybody equally."
17. It will also not be out of place to refer to the judgment of the Hon'ble Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu and another, (1964)2 SCR 348 where the Hon'ble Supreme Court has observed that "frequent transfers without sufficient reasons to justify such transfers cannot, but be held as malafide" and that "it is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
18. We have also noted that there is no reply as to why the applicant was retained in North-Eastern Region over the tenure of two years. It is true that by virtue of Govt. memo dated 14-12-1983, respondents have the right to transfer the applicant who has all India transfer liability, to North Eastern Region but there is a fixed tenure of posting at a time as prescribed therein. In this context the relevant part of OM No. 20014/283-E.IV dated 14-12-1983 is extracted herein below :
"The need for attracting and retaining the services of competent officers for service in the North-Eastern Region comprising the States of Assam, Meghalaya, Manipur, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram has been engaging attention of the Government for some time. The Government had appointed a Committee under the Chairmanship of Secretary, Department of Personnel and Administrative Reforms, to review the existing allowances and facilities admissible to the various categories of civilian Central Government employees serving in this region and to suggest suitable improvements. The recommendations of the Committee have been carefully considered by the Government and the President is now pleased to decide as follows:
(1) Tenure of posting/deputation There will be a fixed tenure of posting of 3 years at a time for officers with service of 10 years or less and 2 years at a time for officers with more than 10 years of service. Periods of leave training etc. in excess of 15 days per year will be excluded in counting the tenure period of 2/3 years. Officers on completion of the fixed tenure of service mentioned above, may be considered for posting to a station of their choice as far as possible.
19. It is reiterated that respondents have not stated anywhere in their counter reply as to why he was retained there in North-Eastern Region for more than 2/3 years at a time. It, therefore, appears that not only the applicant was transferred frequently but was chosen to be posted in North-Eastern region where he was retained for more than 3 years violating the instructions contained in the Govt. memo (supra). They did not even consider the representation made by the applicant.
20. Considering the above facts and circumstances and in view of the law laid down by the Hon'ble Supreme Court in the above case, we are of the view that the applicant has been subjected to frequent transfer without any sufficient reason and the same is held as malafide. The impugned order of transfer in so far the applicant is concerned is liable to be quashed and set aside as it is not sustainable in the eyes of law. Accordingly, the impugned order dated 19.12.2008 in so far the applicant is concerned and the relieving order are hereby quashed and set aside. In so far as the pay and allowances of the applicant is concerned since the respondents did not allow the applicant to join duty, though he was ready to perform duty, the period from the date he was transferred till the date he join the duty is to be treated as on duty and he shall be paid salary as per his entitlement, as per rule. It is also mentioned that applicant was on CL for some time. The respondents shall verify the record and pay his salary accordingly as per his entitlement as per rule. Respondents shall pay the applicant salary which has not been paid within a period of 15 days from the date of receipt of a copy of this order. The applicant is directed to join the duty immediately on receipt of the copy of this order.
21. OA is allowed with no order as to costs. MA 301/2009 and 212/09 stand disposed of. Interim order is hereby vacated.
(HRIDAY NARAIN) (BHARATI RAY)
MEMBER (A) MEMBER (J)