Central Administrative Tribunal - Delhi
Smt. G. Lalita W/O Shri G.V.S.S. Murthy, ... vs Union Of India (Uoi) Through The ... on 18 January, 2007
ORDER Mukesh Kumar Gupta, Member (J)
1. Challenge is made to order dated 25th July, 2006 whereby applicant has been transferred to Kolkata along with the post.
2. Factual matrix is that applicant appointed as 'Computer' in the Central Statistical Organization (hereinafter referred as CSO) vide order dated 12.07.1990, promoted as Junior Investigator in 1995, was further promoted as Senior Investigator on ad-hoc basis vide order dated 01.02.2001. Based on 5th CPC recommendations, a Subordinate Statistical S ervice was constituted and she opted to be part of said service. 4 officials, including applicant filed OA No. 2137/2002 seeking regularization and counting of ad hoc service in said grade, was disposed of vide order dated 29.05.2003 with direction to consider her claim in accordance with law whenever regular vacancy arises and further that applicant shall not be reverted unless someone promoted on ad hoc basis to Grade IV of ISS is reverted. Vide impugned order dated 25.07.2006, applicant on the sanctioned strength of National Accounts Division, CSO, Delhi was transferred to CSO (Industrial Statistics Wing) Kolkata. Immediately thereafter i.e. on 27.7.2006, a Memorandum was issued, directing her to explain as to why disciplinary action under Rule 14 of CCA (CCS) Rules, 1965 be not initiated for submitting forged documents in disciplinary case against Shri Y.K. Kalsi. It would be expedient to notice the said Memo, which reads as under:
WHEREAS, a disciplinary proceeding under Rule 14 of CCA (CCS) Rules 1965 was initiated against Shri Y.K. Kalsi, a JAG Level officer of ISS for his unauthorized absence. On completion of inquiry the Inquiry Officer gave his findings on 7.7.2005. A copy of Inquiry report alongwith a note of disagreement by the Disciplinary Authority with reference to Article II and III of the chargesheet was forwarded to the Charged Officer on 7.12.2005 with the request that he might give his representation, if any, within 15 days. No response was received from the Charged Officer. A communication dated 1.3.2006 was received from Shri T.R. Mohanty, the Defence Assistant of the Charged Officer in this case giving comments on the Inquiry report and disagreement indicated by the Government. The said communication was not on behalf of the Charged Officer. Therefore, Shri T.R. Mohanty was requested to furnish a letter of authorization from Shri Y.K. Kalsi authorizing him to submit the said communication.
WHEREAS, a letter dated 31.3.2006 was received from Shri Y.K. Kalsi that comments on inquiry report and disagreement note submitted by Shri T.R. Mohanty was authorized by him. The letter was sent from the residential address of Shri T.R. Mohanty, former Defence Assistant and was handed over to Under Secretary (ISS) by Smt. G. Lalitha, Statistical Officer, CSO (NAD) on 12.4.06. As the signature of Shri Y.K. Kalsi appeared to have been forged by someone, all relevant documents were handed over to the Examiner of Question Documents (EQD) for verification. The report of EQD confirmed that signature of Shri Y.K. Kalsi in the letter dated 31.3.2006 stated herein, was forged.
NOW, Smt. G. Lalitha, is hereby, directed to explain as to why disciplinary action under Section 14 of CCA (CCS) Rules should not be taken against her for submitting the said forged document in the disciplinary case against Shri Y.K. Kalsi. Explanation of Smt. G. Lalitha should reach the undersigned with 7 days of the receipt of this communication.
Sd/-
(A.K. Saxena) Joint Secretary to the Govt. of India
3. In response thereto, she made detailed representation dated 31.07.2006 stating in specific that Sh. T.R.Mohanty, Defence Assistant of Sh. Y.K.Kalsi never asked her to submit any letter on his behalf to Under Secretary (ISS) or anyone in the Ministry. Citing personal family problems prayer for cancelling said transfer was also made. Another detailed representation dated 01.08.2006 was also addressed to National Commission for Women pointing out high handedness of authorities in issuing said transfer order. Vide para-8, it was specifically stated that hints were given that she could return back to New Delhi on making statement against Sh. Mohanty (Annexure A/5). In any case, the transfer order is punitive and liable to be quashed and set aside, contended Shri Sanjay Kumar Das, learned Counsel for applicant. It was also pointed out that applicant has got two minor children aged 11 and 6 years, who are studying in 6th and 1st standards respectively. Besides this, her husband is working with Lok Sabha Secretariat, which is not a transferable post. Her husband also made a representation to Hon'ble Minister for State (Independent Charge), Ministry of Statistics & Programme Implementation in this regard.
4. The impugned transfer order stems from an allegation of misconduct, which is the very foundation of said impugned order, as evident from show cause notice dated 27.7.2006. This being a punitive order, is liable to be quashed and set aside. It amounts to imposing punishment of transportation for a term of more than 20 years. Even though order dated 25.07.2006 appears to be the transfer simpliciter but when examined in the light of subsequent Memorandum dated 27.7.2006 as well as the stand taken by Respondents in the reply filed to the OA, it would be clear that it casts a stigma and carries penal consequences. The entirety of circumstances preceding or attendant on the impugned transfer order must be examined and the overriding test will always be whether the alleged misconduct is a mere motive or is the very foundation of the order. The present transfer order is liable to be set aside as the form of the order is a mere cloak or camouflage for an order based on misconduct. The impugned transfer order is non-est in law and is a nullity. The post held by applicant cannot be transferred to any other station as two posts of Senior Investigators in Industrial Statistic Wing, CSO, Kolkata, were abolished based on recommendations made by Staff Inspection Unit, which carried a detailed and minute study of the work requirement. Applicant had been specifically trained for the needs of the National Accounts Division, CSO, and could not logically be expected to work in the Industrial Statistics Wing, CSO of whose work she has no knowledge. National Accounts Division and the Industrial Statistics Wing are two different & distinct divisions / wings having separate budget heads, which are not inter-changeable. Even Memorandum dated 27.7.2006 did not allege that applicant had forged the letter or she knew that it was forged or that she intended that the alleged forged letter should be passed off as genuine. She has been punished without holding a fair trial or without affording her any opportunity of defending herself. Strong reliance were placed on Regional Manager v. Pawan Kumar Dubey Hartwell Prescott Singh v. Uttar Pradesh Government and Ors. State of Bihar v. S.B. Mishra of Punjab v. Sukhraj Bahadur Debesh Chandra Das v. Union of India Madan Gopal v. State of Punjab (7-Judges) Shamsher Singh v. State of Punjab Manager, Government Branch Press v. D.B. Belliappa Anoop Jaiswal v. Govt. of India Nepal Singh v. State of Uttar Pradesh Jarnail Singh v. State of Punjab. In Jarnail Singh (supra), after making survey of earlier decision, it was observed that:
It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the Court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of.
5. Learned Counsel further laid great stress that the impugned transfer order cannot be termed in public interest, a condition precedent for exercise of such power. Placing strong reliance on State of Uttar Pradesh v. Madan Mohan Nagar, it was urged that the impugned order clearly attaches a stigma & any person who reads the order dated 25.7.2006 along with order dated 27.7.2006 would immediately consider that there is something wrong with her. Said orders naturally conclude that applicant was found to be undesirable and that must necessarily import an element of punishment which is the basis of the order and is its integral part. The aforesaid judgment was relied in the context of earlier judgment of the Hon'ble Supreme Court in Jagdish Mitter v. Union of India , noticed therein to suggest that the impugned order casts an aspersion or attach a stigma. Reliance was also placed on 2002 LAB. I.C. 3285 Bhagwan Verma v. Secretary, Board of High School and Intermediate Education, U.P., particularly to para 9 to suggest that from the language used in the impugned order of transfer, it was evident that her transfer was punitive and had been passed without holding a preliminary enquiry and was based on bald and sweeping allegations.
6. Respondents, on the other hand, resisted the claim laid stating that applicant has already joined her duties at Kolkata on 7th August, 2006 and, therefore, the challenge made to order dated 25.07.2006 has been rendered only of academic in nature. On merits it was stated that due to involvement of applicant: in forgery case of signature, her continuance in the Ministry (New Delhi) was not found desirable because of investigations are under progress. The impugned transfer is neither a matter of punishment nor same casts any stigma. Some work of statistical function was transferred to CSO (I.S. Wing Kolkata), hence there was a requirement of a person to be posted there. Reply para-6 further stated that: in view of the fore-goings it was considered essential to transfer her in Government interest along with the post. The competent authority had taken into account all relevant facts related to public interest and the same did not suffer from any infirmity. The post of Senior Investigator is sanctioned in the CSO and not exclusively to National Accounts Division. Recently some additional works had also been entrusted to CSO, I.S. Wing, Kolkata. As the allegation of forgery is under investigation and she is also a party to the case, a show cause notice dated 27.7.2006 was issued, which did not amount to imposition of penalty. The transfer order is purely administrative requirement and as per the provisions, which is otherwise the prerogative of the Government. Shri R.N. Singh, learned proxy counsel placed strong reliance on National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan and Anr. Union of India Ors v. S.L. Abbas Union of India and Ors. v. Sri Janardhan Debanath and Anr. to suggest that applicant's transfer does not require any interference by this Tribunal. The learned Counsel also placed on record a note submitted by Under Secretary dated 4.12.2006 suggesting that the preliminary inquiry was conducted by DDG, submitted his report on 7.10.2006, and a decision is being taken by the competent authority on the said findings.
7. I have heard Ld. Counsel for parties & perused the pleadings & material placed on record carefully.
8. The issue which arises for consideration is, therefore, whether the impugned Order dated 25th July, 2006 is punitive or in public interest?
9. The matter was also listed for being spoken on 5.1.2007, when the respondents disclosed that there is no progress made on the Note dated 4.12.2006, as noticed herein-above, and the competent authority has yet not taken decision thereon. Further, applicant's husband representation was rejected, which fact had been informed to Member of Parliament vide communication dated 3rd August, 2006. Ld. Counsel for respondents clarified that copy of aforesaid communication was neither endorsed to applicant or her husband, as the same was preferred through the said MP. Said communication reads as:
Kindly refer to your letter dated July 27, 2006 forwarding representation from Shri G.V.V.S.Murthy seeking to cancel the transfer orders issued to Smt. G.Lalita, Senior Investigator, CSO (IS Wing) in this Ministry and to retain in Delhi. I have had the matter examined.
The transfer order has been issued to Smt. G.Lalita on administrative grounds. I hope you would appreciate the position.
10. Ld. Counsel further, on query raised clarified that since representation made by her husband had been dealt with on merits, her representation dated 31.7.2006, was not required to be dealt with. Applicant in person informed the Tribunal that she has been selected on deputation for one year, and at present is not working at Kolkata. It has rightly been pointed out that applicant's representation dated 31.7.2006 was later in time than her husband's representation, which was dated 27.7.2006 & by that time the Memo dated 27.07.2006 had not been served upon her & therefore, there was no reason or justification in ignoring the said detail representation. The fairness demanded that the said representation ought to have been considered particularly when she had alleged that someone from Deptt. wanted to struck a deal with her & required her to make statement against Mohanty.
STIGMA
11. Learned Counsel strongly relied on the observations made and the ratio laid down in Jagdish Mitter (supra), as noticed in State of Uttar Pradesh v. Madan Mohan Nagar (supra) to stress that law laid down therein squarely applies to the facts of present case. Observations made read thus:
In our opinion this case is covered by the principle applied in Jagdish Mitter v. Union of India . It is true that that was a case of temporary servant, but that does not matter. The order in that case reads as follows:
Shri Jagdish Mitter, a temporary 2nd Division Clerk of this Office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949.
Gajenderagadkar, J., as he then was, speaking for the Court, said:
No doubt the order purports to be one of discharge and as such can be referred to the power of the authority to terminate the temporary appointment with one month's notice. But it seems to us that when the order refers to the fact that the appellant was found undesirable to be retained in government service, it expressly casts a stigma on the appellant and in that sense must be held to be an order of dismissal and not a mere order of discharge.
Later, he observed:
It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant, it can pass a simple order of discharge without casting any aspersion against the temporary servant or attaching any sigma to his character. As soon as it is shown that the order purports to cast an aspersion on the temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal.
Learned Counsel strongly contended that when order dated 25.07.2006 is read along with order dated 27.07.2006, real circumstances, foundation & motive for passing said orders become crystal clear, which casts a stigma.
12. Further contention raised was that impugned order being in punitive in nature deserves to be quashed. It was further maintained that it is trite that this Tribunal has power to lift the veil and go behind the Order to determine the above. On bestowing my thoughtful consideration to the facts noticed, rival contentions raised vis a vis the material on record, I am of the considered view that in given circumstances it is not necessary to lift the veil as the real circumstances, motive and foundation for such transfer were disclosed by the respondents not only vide Memo dated 27th July, 2006 but also in reply filed to present OA, as noticed hereinabove. The applicant's continuance in Delhi was not found desirable due to her alleged involvement in forgery case of signature. It is admitted case of parties that neither any criminal proceedings were ever initiated nor she was placed under suspension. In my considered view when the respondents recorded their view about her undesirability, it casts sigma. When report of the Examiner of Question Documents, Chandigarh was received on 10.7.2006 & DDG, submitted his preliminary inquiry report on 17.10.2006, & respondents concluded the alleged incident/act amounts to criminal misconduct, as revealed vide Note dated 4.12.2006, why they did not take any final decision in the matter & dragged their feet? Instead of taking prompt, swift & speedy action, the respondents adopted & took recourse to easy method. Allegation of forgery of signature, which is a criminal offence cannot be examined & proved in departmental proceedings.
PUBLIC INTEREST
13. It has been further maintained that impugned order has not been passed in public interest. When Respondents failed to produce any material or record to show any application of mind in passing said orders, the natural consequence is that Court should draw an inference that there was no public interest served in passing said orders. Incidentally, this question had been considered by the Hon'ble Supreme Court in Ramadhar Pandey 1993 Supp (3) SCC 35, the relevant excerpt of which reads as under:
16 'what is to be considered is whether there is any public interest involved in the transfer of the appellant as Joint Secretary. We have already extracted the order by which the appellant came to be transferred. Clause 2(b) of the Fundamental Rules as amended by Uttar Pradesh Fundamental (Second Amendment) Rules, 1981 provides that notwithstanding anything to the contrary contained in these Rules, the Governor may in public interest transfer a government servant to a post in another cadre or to an ex-cadre post. The order dated July 8, 1992 does not recite any public interest. We are also not in a position to discover from the other records available before us whether the transfer of the appellant was in public interest. In the absence of a counter-affidavit or even the relevant records, we are left with no option than to conclude that no public interest is involved. It cannot be gainsaid that transfer is a necessary concomitance of every service; but if such a transfer could be effected only on certain conditions, it is necessary to adhere to those conditions. In this case, 'the public interest' being absent, the impugned order of transfer cannot be supported.
In the present case, transfer order dated 25.7.2006 does not recite any public interest & it is only in the reply affidavit such plea was put forth.
TRANSFER OF POST
14. The applicant has been transferred to Kolkata along with the post. It is an admitted fact that National Accounts Division and Industrial Statistics Wing are two distinct and independent Wings. Job contents are far apart each other. They have separate budget and posts are not inter-changeable. A person posted in National Accounts Division could not mechanically be expected to work in Industrial Statistics Wing. It is an admitted fact that Staff Inspection Unit, Ministry of Finance recently conducted scientific study, cut down 2 posts of Sr. Investigator in the CSO (Industrial Statistics Wing) Kolkata. Apart from stating that some work of Statistical function was transferred to CSO (Industrial Statistics Wing) Kolkata, neither any material nor any document or record was produced to support the said contention. Said plea raised, is a ploy to give it a colour as of public interest, which is otherwise found to be wanting. If some work had been transferred to CSO (Industrial Statistics Wing) Kolkata, details thereof should have been provided and disclosed at least by producing some records. Such are not the facts. Recently a Division Bench of Punjab & Haryana High Court in 2006 (2) ATJ 191 Vinod Kumari and Ors. v. State of Haryana and Ors., noted the police rules by which the cadre of Constables and Head Constables was limited to the district level and ASI/SI at range level and held that their transfers beyond the police district level and range level were not sustainable in law. It is well known that the budget in relation to government establishment is approved by the Parliament, and posts are created for a particular office for the duties and responsibilities assigned to be done there in public interest, usually after scientific work study. Salary is then paid by debit to the public exchequer. There is no material, I may note at the cost of repetition, on record to show that there was any application of mind in transferring the post after establishing existence of work corresponding to the post by Respondents to ensure that public interest would actually be served by such decision and merely to characterize and to brand the order in public interest' and that too in the reply affidavit is not sufficient, particularly when the action of the authorities is challenged in the court of law. It had been pointed out that very recently applicant has been selected on deputation for a period of one year and posted in Delhi. If applicant's transfer along with the post to Kolkata was necessary in the given circumstances, then why she has been relieved on deputation. Respondents have also not explained as to how the post vacated by her has been filled up or being managed. In other words, one can reasonably conclude that there was no public interest in transferring applicant to Kolkata along with post.
FAIRNESS
15. The entire edifice for applicant's transfer had been built upon the incident of her act of handing over some papers relating to a departmental enquiry against Shri Y.K. Kalsi. There is no allegation in the entire Memorandum dated 27th July, 2006 or in any other documents including the reply affidavit filed that applicant attempted to pressurize any witness or destroy documentary evidence or she is, in any way, involved in committing alleged forgery. It is also not disputed that Shri Y.K. Kalsi made a representation and specifically stated that he had authorized Shri T.R. Mohanty, his defence assistant, to furnish comments on enquiry report and disagreement indicated by the Government. When such are the facts, I am of the considered view that Senior functionaries in the Government failed to analyze these aspects with open mind dispassionately and a non-issue has been made an issue of far reaching consequences without any justification. In other words, the respondent acted in haste. Fairness in public administration is a rule to ensure that the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. It is well known phrase that justice should not only be done but be seen to be done (refer Management of M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar and Ors.).
16. The judgment cited by Respondents is inapplicable in the facts and circumstances of the case. In Janardhan Debanath (supra), the Court made observation that the question of holding an enquiry to find out whether there was mis-behaviour or misconduct unbecoming of an employee is un-necessary and what is needed is the prima-facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of. In the present case, the allegation of delivering a note containing false signature was made after the transfer order had been effected & no Memorandum issued or enquiry conducted for such prima facie satisfaction before taking the extreme step. Other judgments cited by respondents are also inapplicable in the peculiar facts & circumstances of the present case.
17. Taking a cumulative view of the matter, particularly in the light of discussion made herein-above, I am of the considered view that impugned transfer order dated 25th July, 2006 cannot be sustained in law as it not only casts a stigma but also not issued in public interest. Rather it could be safely concluded that it is the outcome of colourable exercise of power, which resulted in miscarriage of justice. Accordingly OA is allowed. Order dated 25th July, 2006 is quashed & set-aside with all consequential benefits. However there shall be no order as to costs.