Central Administrative Tribunal - Allahabad
Satish Chand Gupta Aao/8326557 vs Union Of India on 4 February, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 04th day of February, 2011
Original Application No. 1358 of 2009
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. D.C. Lakha Member (A)
Satish Chand Gupta AAO/8326557, BSO Jhansi, S/o Sarman Lal Gupta, R/o 9/8+9 R.A. North, Near Rewa Canteern, Kali Puja Maidan, Cantt District-Jhansi.
.. Applicant
By Advs. : Shri N.K.Sharma
Shri A. Srivastava
V E R S U S
1. Union of India, through Secretary, Ministry of Defence, West Block, New Delhi.
2. Controller General of Defence Account (CGDA), West Block-V, R.K. Puram, New Delhi.
3. The Principal Controller of Defece Accounts (Central Command) Cariappa Road, Lucknow Cantt.
4. The Deputy Controller of Defence Accounts (An)(Central Command) Carriappa Road, Lucknow Cantt.
5. Account Officer (GE), Cantt. Jhansi.
6. The DCDA I/C, Area Account Office (CC), Kanpur.
.... Respondents
By Advs. : Shri N.P Singh
Shri Ajay Bhanot
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial)
1. The facts in brief are that the Applicant with 100% disablement of both lower limbs (legs) since 1987 is presently posted as Assistant Account Officer (AA)) in the office of Barrack Store Office (BSO) Jhansi. The CGDA, New Delhi granted exemption to the applicant from transfer from Jhansi which was communicated vide CDA, CC, Meerut No.AN/1/1078/TFR/93 dated 04.08.1993 (Annexure A-5 ref.) and since then, though alert notices regarding transfer were issued to the Applicant at regular intervals, due to his serious aliment (cannot move without wheelchair and requires a constant which is fulfilled by wife and daughter) he has not been transferred out of Jhansi. The Applicant is unable to attend his natural calls like attending to natures call etc. without the physical help of some one and due to this reason the applicant in fact, avoids to go out of Jhansi for a day or so and do not take meal to avoid motion. The wife of the Applicant is also employed at Jhansi as lecturer (Sanskrit) in Suraj Prasad Government Girls Inter College, Jhansi. The Honble High Court Allahabad directed to Additional Director of Education (Madhyamik), U.P. Allahabad to allow his wife to continue serve within Municipal Limit of Jhansi (Annexure A-6 ref.) as the applicant is serving at Jhansi.
2. The Applicant was served with transfer order dated 15.09.2009 whereby he has been transferred from AAO, BSO Jhansi to AAO, (CC) Kanpur by the Respondent Dy CDA (AN), Lucknow. The Applicant made a representation through proper channel to PCDA (CC), Lucknow on 17.09.2009 and requested for cancellation of aforesaid transfer order (Annexure A-8 refers.). This was followed by another representation dated 30.09.2009 to the CGDA vide Annexure A-9. Thereafter, he filed an Original Application No.1165 of 2009 before this Honble Tribunal and challenged the aforesaid transfer order dated 15.09.2009. The said O.A. was finally disposed of by this Tribunal on 09.10.2009 with the direction that the competent authority should dispose of the representation, by a speaking order (Annexure A-10 refers.). The Applicant was on medical leave w.e.f. 07.10.2009 for minor operation of Septic and he recovered from his illness on 15.10.209 and thereafter he joined his duty on 15.10.2009. When on 16.10.2009 Applicant went to the office, the main entrance gate of the GE campus was found closed and he was not permitted to enter campus/office premises and the gate keeper informed the Applicant that the gate would not be opened and he would permitted to only with the permission of LAO (Army), Jhansi. A notice stating OUT OF BOND FOR S.C. GUPTA EX AAO, BSO JHANSI was affixed on the wall of the premises, adjacent to main gate.
3. Thereafter, Applicant sent a letter/representation to CGDA, New Delhi and other authorities on 16.10.2009 (Annexure A-14 refers). On 19.10.2009 when Applicant again went to his office then again same things were repeated with him and he again sent letters dated 19.10.2009 to the Respondents.
4. Respondents have denied the case of the applicant and by filing Counter Affidavit it is stated that the Applicant has concealed the material fact that he has already been relieved vide order dated 08.10.2009 and moreover in place of the Applicant one Mr. Sanjeev Kumar, Assistant Accounts Officer has already joined at AAO, BSO District Jhansi and he is rendering his services in favour of the Department without any break from 06.10.2009. Now, the conditions due to the attitude are going in a completely adverse position which deteriorate the prestige of the Department and the same has been complained and reported by the local office of Garrison Engineer, Jhansi wherein the office of the Department of Respondent No.4 is situated (Annexure CA-1 refers).
5. The Applicant absented himself intentionally on 07.10.2009. After inspecting the records of this Honble Court it is revealed that on dated 07.10.2009 the Applicant was at Allahabad without seeking any outstation leave from the Competent Authority of the Department and moreover the applicant put his signature on the verification clause of the Original Application No.1165 of 2009 wherein it is clearly mentioned that he is making his endorsement regarding the contentions as raised in the Original Application at Allahabad itself.
6. It is also settled law that transfer is an incidence of service and as such order of transfer is not required to be interfered with by the Court of Law unless the Honble Court finds that either the order is mala fide or that service rules prohibit such transfer or that the authority. All India Transfer Liability is the basic service condition of the department but the applicant was not being transferred due to exemption from transfer. In response to the communication emanated from respondent No. 3 indicating the disturbances caused by the applicant, Respondent No.2 itself considered the matter and directed Respondent No.3 to post the Applicant within the ambit of the administrative powers of the PCDA (CC) Lucknow i.e. Respondent No.3 (Annexure CA-2 dated 21.08.2009 refers).
7. As per records held in the office, the Applicant has availed Leave Travel Concessions for different stations at several occasions as per following details:-
Sl.No. Station Visited Year of Visit/Tour 1 Jhansi to Katra/Jammu 1990
2.
Jhansi to Pune 1994 3 Jhansi to Jammu 2000 The applicant is habitual of disregarding the orders and instructions of his local superiors, Army authorities and the main office, taking undue advantage of his physical condition, which is evident from the aforementioned submissions and as such the work and conduct of the Applicant cannot be narrated as satisfactory. Requests of as may as ten of Assistant Accounts Officers for their transfer to Jhansi, are still pending for want of vacancy at Jhansi station. On 15.10.2009, the applicant entered in the office, captured the chair of AAO, BSO snatched the Dak Pad from the dealing auditor and opened the computer and changed the password with the intention to hamper the smooth functioning of the office. The Applicant left the office only after the intervention of the Military Police and as such the act of indiscipline cannot be expected from a person holding a responsible post of Assistance Accounts Officer. For this act of Indiscipline/Misconduct, the Applicant has recently been charge sheeted under Rule 16 of the CCS (CC&A) Rules, 1965.
8. Applicant filed his Rejoinder Affidavit wherein it has been stated that the Applicant came under the exempted category. The C.A.-2 letter dated 21.08.2009 has been written by Shri Sanjeev Kumar IDAS which itself proves that biasness of the Respondents.
9. Counsel for the applicant argued at length bringing out the entire history of the case; as to the permanent exemption from transfer out of Jhansi of the applicant issued by the CGDA; as to the judgment of the Honble High Court that his wife shall not be moved out of the place where the applicant is employed; as to the earlier OA, the interim order passed by the Tribunal and the recalcitrant attitude of the respondents in not complying with the interim order, thus, courting themselves for contempt of court proceedings.
10. Counsel for the respondents, referred to various decisions of the Apex Court and High Courts to hammer home his point that the scope of judicial review in respect of transfer matters is limited and that discipline in the institution cannot be compromised for under any circumstances and that the applicant has been taking undue advantage of the courts orders. He has also invited our attention to the counter wherein the move of the applicant to Allahabad had been highlighted.
11. Arguments were heard and documents perused. This order is confined only to the OA and not the contempt petition for which a separate order is passed.
12. It is seen from the pleadings that the applicant, though a 100% physically challenged individual could religiously utilize his LTC for various years and that he had been moving to Allahabad also including on a day when the case had been listed. Thus, notwithstanding his physical discomforts, when need arises he could move about. And, the counsel for the applicant at one point also submitted that the applicant may be in a position to move to Babina, which is very near Jhansi but as per the respondents, there is no vacancy at present in that place. This goes to prove that the applicant is not totally reluctant to move out but desires to be within the proximity of Jhansi and the respondents are also not bent upon to move the applicant far away from Jhansi and could locate the nearest place Kanpur for transfer of the applicant. Had there been a vacancy at Babina, they would have certainly effected the transfer to that place. This would go to show that there has been a sense of mutual understanding. Even in the course of arguments, there has been manifest expression of an intention by the parties to accomplish justice by settling the differences, assisted and promoted by constructive suggestions by the counsel for the parties. Now what is required is to pin point the law on the subject and telescoping the same on the facts of the case and to arrive at a just decision keeping in mind certain peculiar circumstances of this case.
13. The applicant has been heavily relying upon the exemption granted by the CGDA in support of his case. The same may have to be first examined. The said exemption reads as under:-
Memorandum The CDA The LAO (A) From (CC) To Jhansi No. AN/1/117B/TRF/93 Station Meerut date 04.08.93 Sub: Transfer DAD ESH Shri S.C. Gupta 3A 8326557 Ref. Your No. J/a/Transfer II of 18.05.93 The request of Shri S.C. Gupta SAA/C No.8326557 for exemption from Transfer Ex Jhansi being physically handicapped as contained in his application dated 19.1.93 has been considered carefully and agreed to by the CCDA New Delhi.
The individual may please to informed accordingly.
Go. (AN) has seen.
SAO (AN)
14. The above memorandum has not been issued under the signature of the very CGDA. It only communicates the decision of the CGDS. This memorandum refers to a representation filed by the applicant before the CGDA in response to which the CGDA granted the exemption. The applicant has not annexed the same in this OA. We are not sure whether his request is for retention at Jhansi for all times to come or for a particular period. There appears no reference to rule or regulation or instructions on the basis of which the exemption had been granted if at all there is such exempted category. It is to be borne in mind that under the rules, the applicant is under an all India Transfer liability. This exemption so granted, in any event, does not indicate that the same is eternal nor could it be beyond the scope of modification at a later date depending upon the circumstances. True, one can presume that as long as the physical disability exists, the exemption could be permitted but here again, the same may have to be subject to two riders (a) that the continuation of the applicant at Jhansi does not frustrate the vested rights of any other individual and (b) the applicant does conduct himself in a way that his continuance in the same station is justified and his services are found satisfactory. Respondents have stated that there are as many as ten persons in the queue waiting for transfer to Jhansi which has only two posts of A.A.Os. Again, the way in which the applicant conducts himself while functioning in a responsible gazetted post cannot be ignored especially when he is enjoying some extra concession, as in this case the exemption from transfer. These two aspects are therefore to be duly addressed for proper adjudication of this case.
15. It is settled law that no one has any vested right to compel the organization to post them in a particular place. In the case of Rajendra Singh v. State of U.P.,(2009) 15 SCC 178 : the Apex Court has held as under:-
8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the 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 implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal)
15. In so far as maintenance of discipline in the organization is concerned, the same does not any special mention. Any action which is detrimental to the interests or prestige of the employer clearly undermines discipline within the organization and also the efficient functioning of that organization. See M.H. Devendrappa vs Karnakata State Small Industries Development Corporation (1998) 3 SCC 732. Thus, the respondents are not unjustified in expressing their concern over the discipline of the institution, vide Annexure CA-1 addressed to the Principal CDA. It was in pursuance of the above letter that the Joint CGDA had advised the Principal CDA to take suitable action within his authority. Annexure CA 1 reads as under:-
602029/ /E1 Pers 30 Jul 2009 Dear Shri Rao I am writing this DO letter regarding performance of Shri S.C. Gupta, AAO BSO Jhansi. Shri S C. Gupta AAO has been doing the duties of AAO BSO Jhansi since 204. In the recent past the individual has became burden on the organization rather than as asset. From the past one week the individual is not accepting any letter/correspondence from this office and sub divisions, on one pretext or the other. This aspect is greatly affecting the efficiency of this office and cresting dissatisfaction among personnel in the station. As per feed back received from the environment no work is done by AAO BSO unless favor are done to him in material or otherwise. The attendance of the individual is rather poor and irregular. The individual is taking undue advantage of his physical handicap and even challenges that no one can change his way of work and you all have to live with it. It is requested that the individual may be advised to perform satisfactorily or a replacement may be posted, so that day to day functioning of this office is not affected. With thanks Shri V.V. Rao, IDAS Principal Controller of Defence Accounts (Central Command) Lucknow.
16. Here, of course, lies the following subtle points:-
(a) When certain complaints against an officer are received, the same would not normally be taken in their face value but some amount of verification is essential. If the nature of complaint is grave, disciplinary action, if justified, could well be taken.
(b) It is not known whether it was at the instance of the CGDA that the Joint CGDA had given green signal to the Principal CDA, as the exemption granted was by the CGDA and in all fairness any deviation therefrom should appropriately be from the same authority and not any authority subordinate to it.
17. A balance has now to be struck at this juncture. As the communication from the Principal CDA had been addressed only to the Joint C.G.D.A, and as the exemption has been granted by the CGDA, the matter has to be considered by the CGDA who may examine the matter judiciously, keeping in view the extent of physical disability of the applicant on the one hand the functional requirement and the administrative exigencies on the other.
18. Once the C.G.D.A. comes to a definite conclusion on the above lines, the decision may be communicated to Respondent No. 3, i.e. the Principal CDA, who would act on the line of the decision communicated to him. Till then, the applicant shall not be disturbed from his present place of posting.
19. The matter does not end here. There may be some problem relating to regularization of the period from the date the interim order has been passed till date. The applicant contends that he was not relieved, while the respondents plea is that he stood relieved. Contempt petition has been pending in regard to alleged non compliance of the order of the Tribunal. Respondents, as a special case, shall retain the applicant till such time the CGDA arrives at a judicious conclusion (by shifting a post from some other stations where vacancy existed during this period) and the past period from the date interim order was passed till now be regularized by way of grant of leave admissible/leave not due to the applicant, and salary for the said period, based on the nature of leave granted, should be released to the applicant.
20. A copy of this order be directly sent to the C.G.D.A. for his action as spelt out earlier.
21. With the above directions, the O.A. is disposed of and under the circumstances, there shall be no orders as to costs.
(D.C. Lakha) (Dr. K.B.S. Rajan)
Member-A Member-J
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