Central Administrative Tribunal - Delhi
Kesavada K vs The General Manager on 28 April, 2010
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1414/2009
New Delhi this the 28th day of April, 2010.
Honble Sh. N.D. Dayal, Member(A)
Kesavada K.,
Head Clerk,
Refund Branch, Station Bldg.,
New Delhi.
R/o S-3, Satyadeep Apartment,
8/2, Raj Nagar, Ghaziabad. . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. The General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. The Dy. CPO,
Northern Railway,
Baroda House,
New Delhi.
3. The Chief Commercial Manager/RF
Northern Railway,
Baroda House,
New Delhi.
4. The Sr. Commercial Manager/Refund,
Northern Railway, Baroda House,
New Delhi. .. Respondents
(through Ms. Jasmine Ahmed, Advocate)
O R D E R
The learned counsel for the applicant has submitted that the applicant is mainly aggrieved by the impugned order dated 12.05.2009 of transfer whereby he has been transferred from Delhi to Ambala on administrative grounds along with the post. He has, therefore, pressed the relief sought in Para-8(a) for quashing and setting aside the inter-divisional transfer order. The prayer at Para-8(b) to quash and set aside the appointment of Inquiry Officer has not been pressed and it is apparently not a consequential relief. When this matter was taken up on 22.05.2009 it was directed that the order of transfer shall not be given effect to.
2. It has been submitted that the applicant has been working to the satisfaction of his superiors, his confidential reports are without adverse entry and there is neither any complaint against him nor any disciplinary proceedings have been initiated or are pending. However, at the same time it is stated that a charge sheet dated 05.03.2009 has been issued to him on the basis of alleged misconduct for carrying Smt. Poonam Gupta on the railway berths booked in the name of his wife. A copy of the charge sheet has been placed at Annexure P-2. It is not the applicants case that this charge sheet, which was issued before the applicant filed the present OA, has been dropped.
3. It has been argued that no reasons have been shown for the transfer order which only mentions administrative grounds and therefore it is alleged that extraneous considerations have operated against the applicant. The documents enclosed with the OA are confined to the transfer order, charge sheet with its enclosures and an order dated 23.12.2008 issued by the Northern Railway, New Delhi by which Inter-Divisional transfer of certain persons had been reviewed and the orders changed to transfer to any other place within the Delhi area/Division. It is not explained in what background the transfers were modified. Such material placed on record cannot substantiate an allegation of extraneous considerations.
4. The applicant says that transfer orders have not been issued by the General Manager but by the Dy. CPO although the power for inter-divisional transfer in respect of Group-C & D lies with the General Manager. A perusal of the transfer order indicates that it may have been signed for the Dy. CPO but the same has been passed in terms of GM/Vigs confidential letter dated 22.04.2009. The applicant further states that he does not work in, nor has he done any malpractice in mass contact area. Since as per Railway Board Circular it is the Ticket Checking Staff detected to be indulging in malpractices and staff in mass contact area similarly detected, who can be transferred on inter-divisional basis, these instructions do not apply to the applicant. His liability is limited to transfer within the division only.
5. The applicant submits that he has a school going girl child and his transfer being in mid-school session should be pended as also done in other similar cases in terms of Circular dated 07.10.1985. No copy of such circular has been produced and 12.5.2009, the date of transfer, would not exactly qualify as being in the middle of the academic session.
6. It is contended that the settled law is that transfer order cannot be issued on the basis of misconduct or as a punitive measure or to accommodate some other person. The applicant relies upon the following judgments to argue that mala fide exercise of power and transfer of an honest person against whom complaint was not substantiated would not be justifiable:-
(i) E.P. Royappa Vs. State of T.N., AIR 1974 SC 555
(ii) Shesh Rao Naga Rao Umap Vs. State of Maharashtra & Ors.,SLR-1984-2-page 328
(iii) Arvind Dattatraya Dhande Vs. State of Maharashtra & Ors.,1997-6-SCC-169.
In so far as malafide is concerned, none has been impleaded by name and therefore such an allegation does not seem to have been made with any seriousness, nor the material placed on record, noticed above, could be of any assistance in this regard.
7. The applicant further contends that the transfer is not covered by the periodical transfer policy and is violative of the principles of natural justice as well as unfair and unjust. No information on periodical policy is produced.
8. By their counter-affidavit, the respondents have clarified that in pursuance of the Tribunals order dated 22.05.2009 the transfer of the applicant to Ambala has not been given effect to. The articles of charge levelled against the applicant by the charge sheet dated 05.03.2009 are emphasized and it is stated that as a result the applicant could not be given work of sensitive nature. They have justified the decision to transfer the applicant as his continuation in the present job was considered undesirable. It is argued by the learned counsel for respondents that the applicant was found indulging in mal practice in a mass contact area because he was carrying Smt. Poonam Gupta on the train in the place of his wife unauthorizely and was thus defrauding the Railway administration/misusing privilege pass and tarnishing the image of the Railways in public amongst the passengers who were traveling in the said train. Therefore, he had indulged in mal practice in an area which was a mass contact area. In such cases, as per Railway Board letter of 02.11.1998 the transfer is invariably implemented on inter-divisional basis and he had been transferred in public interest. The arguments put forward by the applicant in the OA have been denied but it is stated that depending upon the final outcome in the disciplinary proceedings an official may request for transfer back, which is also open to the applicant.
9. By his rejoinder the applicant disputes the stand of the respondents and reiterates that the allegation against him is not in the nature of any misconduct during duty in any mass contact area. As such the Circular of 02.11.1998 would have no application. He has therefore been wrongly transferred during pendency of the departmental proceedings. The learned counsel for the applicant submits that the applicant would be willing to move on transfer within Delhi Division as his real grievance is against the inter-divisional transfer which would affect his seniority and promotion. However, no details have been provided to show how such civil consequences would flow contrary to law.
10. The respondents have filed an additional affidavit by leave of the Court to add to the pleadings Annexures R-1and R-2. Annexure R-1 is a copy of certain Railway circulars including the circular dated 02.11.1998 on inter-divisional transfer of ticket checking staff and other staff in mass contact area. Annexure R-2 is an order on transfer back to original Railway after inter-divisional transfer. This annexure also includes WPC No. 14596-97 of 2004 decided on 06.12.2005 by the Honble High Court and relates to inter-divisional transfer of Railway officials.
11. It is noticed from the Railway circular dated 02.11.1998 that inter-divisional transfer is envisaged in the case of ticket checking staff detected to be indulging in malpractices and it also permits similar transfer in respect of other staff in mass contact areas detected to be indulging in malpractices. The judgment of the Honble High Court of Delhi deals with the case of a Booking Clerk at New Delhi against whom disciplinary proceedings were initiated by a major penalty charge sheet in connection with a vigilance check, and while such proceedings were pending the order of transfer was passed transferring him along with the post from Delhi Division to Ferozpur Division on administrative grounds in public interest. The Court noted that the disciplinary proceedings had concluded by punishment against the Booking Clerk and therefore no proceeding was pending at that point in time. It was observed that a transfer could always be made on administrative grounds and Rule 226 of the IREC Volume-I inter-alia gives powers to the Competent Authority to transfer a railway servant to inter-zonal railway in the exigencies of service. It was found to be an exigency of service that the transfer had been made to take the clerk out from the place where mal practice was detected against him. The transfer was to provide clean administration in mass contact area which would also be in the exigencies of service. The Court also noted the relevant circulars permitting transfer on inter-divisional basis, which read along with Rule 226 above were found to support the inter divisional transfer.
12. The learned counsel for respondents has argued that the applicant may not have been posted to work in a job where there was mass contact with the public and passengers, but his actions had the same effect as any mal practice committed by staff actually working in mass contact area would have had. It may be that this is not a case where the applicant was to be taken out from the place where mal practice was detected because he was working as Head Clerk/CCM/Refund Office, Northern Railway, but his transfer has been ordered in public interest to provide clean administration. It could not be said that this was not in the exigencies of service. The learned counsel has emphasized that the confidence of the people had to be restored in the Railways.
13. The learned counsel for the applicant has placed the following judgments also before the Court but without any discussion as to the relevance of the same:-
(a) S. HariharanVs. UOI & Ors., 2001(3)CAT 449
(b) Shri Bhupenendra and Ors. Vs. The General Manager, Northern Railway, New Delhi and Ors., 1999(2)CAT 647 T.L. Gupta Vs. UOI & Ors., 2003(2) CAT 658 Jagat Singh Hooda Vs. UOI & Ors., OA-782/2009,CP-541/2009 Decided by the Principal Bench on 07.01.2010.
Upon going through them I find that the facts of these cases are at variance and cannot be said to be identical to the facts of the present case.
14. It is significant to note that the Railway circular as well as the judgment of the Honble High Court brought to notice by the respondents speak of inter-divisional transfer in respect of ticket checking staff and other staff in mass contact areas detected to be indulging in malpractice. There is no Railway instruction or any administrative or statutory provision brought to notice which prohibits the transfer of staff on inter-divisional basis even if the competent authority considers it necessary and appropriate keeping in view the gravity of the malpractice or betrayal of trust and extent of loss of confidence in the employee. There is no such constraint in Rule 226 noticed above with regard to making inter-divisional transfers. I am of the considered view that so long as the transfer is not contrary to law, the discretion available with the competent authority to order inter- divisional transfer cannot be put into any strait jacket keeping in view the varying nature of administrative needs and exigencies that may arise.
15. In UOI and Ors. Vs. Janardhan Debanath & Anr., (2004) 4 SCC 245 the Honble Supreme Court was dealing with a case where the employees were considered undesirable as they had misbehaved and keeping in view the need to enforce discipline, decency and decorum as well as maintain quality of public service besides ensuring smooth functioning of administration, they had been transferred to another division within the same postal circle. The Court noted that utmost latitude should be left with the department in such a matter. Further, it was held in Para-14 of the judgment as under:-
14. The allegations made against the respondents are of serious nature and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purpose of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is a prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is the matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the court to direct one way or the other (emphasis supplied).
16. In view of the above, I am not inclined to accede to the prayer of the applicant. The O.A. is therefore dismissed. Interim order is vacated. No costs.
(N.D. Dayal) Member(A) /vv/