Central Administrative Tribunal - Ernakulam
Surya Ganga Prasad V vs Department Of Fisheries on 8 May, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/0009/2023
Monday, this the 8th day of May, 2023
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Surya Ganga Prasad V, S/o Vanaparthi Thamma Rao
Aged 38 years, Assistant Engineer (Works)
National Institute of Fisheries Post Harvest Technology &
Training, P.B.No. 1801, Kochi 682 016
Residing at: Quarter No.5, NIFPHATT Living Centre
I.F.P.Road, Kochi -682 016. Mob: 94948 32856
Email: [email protected]
- Applicant
[By Advocates: Mr. T.C.Govindaswamy, Ms.Kala T. Gopi,
Mr.Sudhir Kumar B, Ms.Nishitha Balachandran,
Ms.Renuka M.R.]
Versus
1. Union of India, represented by The Secretary
to the Government of India, Ministry of
Animal Husbandry, Dairying & Fisheries
Department of Fisheries, New Delhi - 110 011.
2. The Director, National Institute of Fisheries
Post Harvest Technology & Training
(NIFPHATT) P.B.No. 1801, Kochi - 682 016.
3. The Deputy Secretary (Admn), Ministry of Animal
Husbandry, Dairying & Fisheries, Department of Fisheries
No.36, Chanderlok Building, 1" Floor, Janpath Road
New Delhi-110001.
4. Dr Shine Kumar C.S., The Director, National Institute of
Fisheries Post Harvest Technology & Training
P.B.No.1801,. Kochi-682 016. - Respondents
[By Advocate : Mrs. O.M.Shalina, SCGSC]
The applications having been heard on 21.02.2023, the Tribunal
on 8th May 2023 passed the following:
O.A No.9/2023 2
ORDER
Applicant is the Assistant Engineer (Works) in National Institute of Fisheries Post Harvest Technology and Training, for short, NIFPHATT, hereinafter referred to as the Institute. He challenges the correctness of Annexure-A1 office order dated 10.01.2023 by which he has been posted to Administrative Ministry on loan basis, initially for a period of three months. It is also stated in Annexure-A1 that he stands relieved from the Institute in the afternoon of 13.01.2023.
2. According to the applicant, he started working as Assistant Engineer (Works), which is a Group-B gazetted post, under the 2 nd respondent, on 14.12.2015. In that capacity, he is the Head of Civil Engineering Division of the Institute and is in-charge of all works relating to Civil Engineering. He has an Overseer and also a Lower Division Clerk, an M.T.S, a Draftsman, a Caretaker-cum-Cook and a Carpenter under his control. He is also in-charge of maintenance and repairs of the entire office building, jetty area, Institute living centre residential quarters, guest house, staff quarters at Pullepady which come about 56 nos. and the entire Vishakapatnam Unit. He has also to liaison with CWD officials for civil engineering works as per the budget allocation. He claims that he discharges his duties with extreme rectitude and honesty, without giving room for complaints from any quarters. Earlier, one Jaisingh Meena was the Director in-charge of the Institute who has been replaced O.A No.9/2023 3 by the 4th respondent. The said Jaisingh Meena has approached this Tribunal challenging the appointment of the 4 th respondent as the Director. Ever since the 4th respondent had taken charge of the Director, he is treating the applicant with venom on account of the fact that the applicant was in good relationship with Jaisingh Meena, who was holding the office of the Director. The 4th respondent has been behaving in a very rude and inimical manner towards the applicant, causing the applicant substantial inconvenience and mental tension, practically preventing him from discharging official duties efficiently and sincerely. His rating had always been outstanding for all his period of service. But the 4 th respondent is behaving in a manner prejudicing the interests of the applicant. He has withdrawn the Lower Division Clerk posted under his control and posted him in the Commercial Section. Similarly, at first Smt.Shini K.A., MTS was put in another section and later she was also withdrawn from the section and the post remains vacant. The Overseer under him has also been transferred, the post of Draftsman remains vacant and thus a situation has been created, which prevented him from discharging his duties efficiently. It is also the complaint of the applicant that he is being humiliated and threatened in the presence of other officers of similar rank, whenever meetings are called. He has been isolated and put to humiliation in the presence of other officers and ultimately he was served with memo on 05.01.2023 asking him to give O.A No.9/2023 4 explanation. He has also been put to training duty. Annexure-A1 order was passed in such a circumstance only intended to trouble him.
3. He is a native of Andhra Pradesh and lives in Kochi with his wife and two children aged 9 and 7. His wife is a chronic pancreatitis patient, who has undergone major surgeries and is on treatment from 2010 onwards who has severe health complications. The children are studying in Kendriya Vidyalaya in 4 th and 2nd standards. Following the receipt of Annexure-A1, he gave Annexure-A6 representation, but is has not been considered at all.
4. According to the applicant, issuance of Annexure-A1 is arbitrary, discriminatory, contrary to law and actuated by malice and violative of the Constitutional principles enshrined in Articles 14, 16 and
21. It is issued with malice, illwill and out of personal vengeance. The Administrative Ministry, to which he has been transferred on loan basis is an entirely different organisation and Annexure-A1 is issued without authority. Even if it is assumed that it has been issued on the basis of any direction from the Ministry, there is no justification or legal backing in posting him in the Administrative Ministry. There is no administrative exigency and hence the O.A.
5. At the time of admitting the O.A., the learned counsel for the applicant had pressed for granting an interim stay of operation of Annexure-A1. But at that time, learned Senior Central Government O.A No.9/2023 5 Standing Counsel submitted that the order has been kept in abeyance until further orders. In the light of the same, no interim order was passed.
6. Thereafter, the respondents 1 to 3 filed a reply statement. According to them, the O.A. has been filed with several averments, assertions and allegations which are irrelevant to the issue involved and that the reply does not touch such irrelevant aspects. According to them, Annexure-A1 was issued following an e-mail received by the 2 nd respondent, copy of which is marked as Annexure-R1(A). Accordingly, the applicant was sought to be relieved from 13.01.2023. Referring to Annexure-R1(B), they said that now the order has been kept in abeyance until further orders. The respondents also denied the allegations in the O.A. According to them, the Institute comes under the Ministry of Fisheries, Animal Husbandry and Dairying, Government of India and that such a posting was made on loan basis in administrative exigencies. The applicant is the section head of the work section in the Institute. His duties include construction and maintenance of office buildings, residential buildings, plants, workshops, slipway and other works assigned by the higher authorities. Further it is stated that, earlier the applicant was found unauthorisedly absent on several occasions and was served with memos for his omissions and commissions from time to time. True copy of memo issued on 18.04.2022 has been exhibited as O.A No.9/2023 6 Annexure-R1(C). In response to the same, he gave a reply on 10.05.2022 stating that physical verification of stock as on 31.03.2022 was prepared. In the light of the same, no action was taken. The O.A. filed by Sri.Jaising Meena, challenging the appointment of the 4 th respondent as Director has no connection, whatsoever, with the present O.A. From the averments in the O.A it is clear that the applicant had been in good relationship with Jaisingh Meena. It is found that during the period of Jaising Meena, the applicant was permitted to tour to Visag for 79 days resulting in him availing additional financial benefits of Rs.1,52,060/- as T.A./D.A. The applicant remained absent from duties for a period 50 days from 06.05.2021 to 19.01.2021- 13 days, 14.07.2021 to 05.08.2021- 23days, and from 07.10.2021 to 20.10.2021- 14 days without any leave application. During the 3rd spell of continuous absence of 14 days he had submitted an application for only 3 days casual leave and 2 days restricted holidays for intermittent days, which cannot be taken into account. He himself was holding the additional charge of Accounts Officer, the leave sanctioning authority. However, from the records it is found that the then Director did not take action for the unauthorised absence from duty by the applicant. Thus the Administrative Ministry instructed the Institute to take appropriate action for regularising unauthorised absence of the applicant. Necessary action is being taken. The contention that Annexure-A1 order was passed or actions have been O.A No.9/2023 7 taken against the applicant on the wrong information furnished by the 4 th respondent is incorrect. Civil works undertaken or supervised by the applicant are found to be lagging. Physical verification of stock of consumables of processing section, canned fish store and dry fish store was not done. He is also guilty of disobeying the instructions from the competent authority and had acted in a very irresponsible manner. It was observed that he did not conduct verifications during previous years. Nevertheless, since the matter is irrelevant, further details are not being given. The allegations that his supporting staff members were withdrawn etc. are denied. There is no post of Pump Operator in the Institute, but pump operating is being done by the inmates of the quarters itself, including Gazetted Officers. The allegations are unsubstantiated. Annexure-A1 order was passed pursuant to the Annexure R1 A1 e-mail received. Annexure-A6 representation of the applicant has been promptly sent to the Ministry.
7. According to the respondents, a Government servant like the applicant is a whole time servant at the disposal of the Government and therefore he can be employed in any manner required by proper authority without claim for additional remuneration, for which the consent of the Government servant need not be obtained. The allegations in the O.A. are baseless and therefore it is liable to be dismissed. Annexure-A1 order was passed in administrative exigency and O.A No.9/2023 8 is not liable to be interfered with. It has already been kept in abeyance until further orders.
8. The applicant filed a rejoinder reiterating the contentions in the O.A. and also denying the averments in the reply statement. According to him, Annexure-A1 was shown issued based on Annexure- R1(A). But Annexure-R1(A) is issued on the basis of a personal letter or atleast a demi-official communication issued by one Sushil Kumar Jha to Dr.Shine Kumar in his capacity as the functionary of the MPEDA. It has nothing to do with the Institute. In other words, Annexure-R1(A) is not based on proper authority. In the rejoinder, considerable space has been used for baffling the spelling mistakes of a word in Annexure-R1(A). It is also stated that Annexure-A1 is the outcome of personal displeasure of the 4th respondent towards the applicant. He has also cited instances in which the applicant was issued Memos and the representations given by the applicant against the same. So the crux of the rejoinder is that Annexure-A1 is not supported by any provision or statute and is motivated by the personal displeasure of the 4 th respondent against the applicant and that the Deputy Secretary has no authority to transfer an Assistant Engineer to an administrative section, that the applicant has no acquaintance with the works in the establishment and therefore he has pleaded for rejecting the reply and to quash Annexure-A1.
9. Heard Sri.T.C.Govindaswamy, the learned counsel for the O.A No.9/2023 9 applicant and Smt. O.M.Shalina, the learned Senior Central Government Standing Counsel for the respondents 1 to 3. According to the learned counsel for the applicant, the Institute has units only in Kochi and Visakhapatnam and the applicant is stationed in Kochi. From Annexure- R1(A) which is the basis for issuing the impugned order -Annexure-A1, it is clear that it is motivated by malice. Annexure-R1(A) is not an official communication, but has been sent from the personal e-mail of Sushil Kumar Jha, Deputy Secretary, to the e-mail address of the 4 th respondent in MPEDA. According to the learned counsel, there is no basis for transferring him on loan basis to New Delhi to look after establishment matters. He is not conversant with such works nor an expert in administrative matters. There is no reason why his name was preferred. According to the learned counsel, it has to be read along with Annexure- A4 memo issued by the 2 nd respondent to the applicant. For the mere reason that the applicant had close association with the former Director, with whom the 4th respondent has started litigation, there is no provision for transferring a person on loan basis. He has not been transferred to a particular post. Everything has been managed by the 4 th respondent out of malice. The counsel also relied on the decisions in State of Punjab and others v. Inder Singh and others [(1998) SCC (L&S) 34], Ramadhar Pandey v. State of U.P. and others [(1993) SCC (L&S) 918] and the decision of the Principal Bench of this Tribunal in O.A. 826/2008 dated O.A No.9/2023 10 14.07.2008.
10. According to the learned Standing Counsel, such an order is supported by FR.11 and SR 6(b). It is a temporary transfer so that he is not entitled to get transfer T.A. and joining time. Such kind of work arrangement has to be made in any office. The Institute is a unit under the Administrative Ministry of Fisheries, Animal Husbandry and Dairying. Referring to Annexure-R1(A), the counsel pointed out that it is not a personal communication, but an official communication. The learned Standing Counsel pointed out that in such cases, provisions are available for granting temporary accommodation in a Government hostel. Referring to Central Government General Pool Residential Accommodation Rules, 2017 she pointed out that given the status of the applicant he is entitled to get accommodation in hostel for single suit with kitchen. She also took to me a copy of the Office Memorandum dated 30.12.2022 which is the compendium on instructions regarding grant of house rent allowance to Central Government employees. According to the learned Standing Counsel, there is no malice in issuing Annexure-A1. Temporary transfer was necessitated to deal with urgent establishment matters of the Institute.
11. Evidently, the applicant is a Civil Engineer and the head of the Civil Engineering division of the Institute. He is the head of the division and is conferred with the responsibilities of the Institute. It is not in O.A No.9/2023 11 dispute that he is in-charge of all works relating to Civil Engineering of the Institute. In that capacity, he has to look after the maintenance and repair works of the office buildings, official quarters, jetty, guest house etc. of both the Cochin and Visakhapatnam units. He has also to liaison with CWD officials for getting civil engineering works done. Now Annexure-A1 indicates that pursuant to Annexure-R1(A) issued by the Deputy Secretary (Admn), Department of Fisheries, Ministry of Fisheries, Animal Husbandry and Dairying, he has been posted to the Administrative Ministry on loan basis, initially for a period of three months. It is also stated that he has been relieved from the afternoon of 13.01.2023 with a direction to report for duty before the said Deputy Secretary. The applicant is peeved by Annexure-A1 order.
12. As a background it has been stated that the applicant is not moving on well with the 2 nd respondent; the present incumbent is one Dr.Shine Kumar C.S., who has been impleaded as the 4 th respondent. At the time of admission, separate notice has not been issued to the party respondent.
13. From the averments it has come out that Jaisingh Meena, the former Director, has moved this Tribunal challenging the appointment of the 4th respondent as Director on deputation basis. The applicant has a case that on account of the fact that he was in the good books of Jaisingh Meena, the Director is treating him with venom, that on numerous O.A No.9/2023 12 occasions, despite the fact that he is discharging his duties with rectitude and honesty, he was humiliated and threatened in the presence of other officials. Annexures-A4, A7 and A10 have been highlighted to support this attitude of the Director against him.
14. In the rejoinder, the applicant has unduly stretched the mistake in the spelling of a word appeared in Annexure-R1(A). While examining the legality and correctness of Annexure-A1, it does not seem that this Tribunal should dilate on such silly aspects nor the Tribunal is interested in the petty kitchen disputes between the Director and the Civil Engineer. I also do not intend to go into the allegations that the applicant is being isolated and humiliated, that his subordinate employees have been withdrawn and posted elsewhere with clear motive etc.
15. Apparently, the applicant being a Civil Engineer, is the head of the division. His head quarters seems to be Kochi, though he is in-charge of the Visakhapatnam unit as well. Now the core question is whether such a person is liable to be sent out on loan basis to the Ministry. Annexure-R1(A) indicates that several cases of NIFPHATT concerning establishment matters are pending with the department for quite a long time consequent on the relief of Smt.Santosh Dalyan, Section Officer and Sh.Suan Under Secretary, out of the department, the department has not yet received their substitute. Thus the service of an employee of the O.A No.9/2023 13 Institute having working knowledge in administration, preferably the applicant has been requested to be made available in the Ministry on loan basis for a period of three months. This mail was sent on 10.01.2023, on that date itself Annexure-A1 order was issued.
16. Even though the learned Standing Counsel has referred to FR- 11 and SR 6(b), I am not convinced that these provisions would support such an order posting an Assistant Engineer for attending establishment matters pending in the Ministry. As noticed earlier, the applicant is a Civil Engineer dealing with construction, maintenance and repair works of the building and other structures of the Institute both in Kochi and Visakhapatnam. Establishment matters are not his cup of tea. If FR-11 is taken for the reason that a Government servant is paid from the Government exchequer, he can be employed anywhere, if the competent authority so decides. It cannot be gathered that when a Civil Engineer is ordered to be taken out from his station of employment and posted in the Ministry for dealing with establishment matters, the decision was taken by the competent authority in right earnest. Such an emergent situation cannot be inferred from Annexure-R1(A).
17. Even for attracting SR 6(b), it is a transfer and it cannot be used to say that SR VI-B can be invoked for the purpose of posting such an officer beyond the scope of his employment.
18. From the version of both sides, it is clear that memo has been O.A No.9/2023 14 issued against the applicant alleging misbehaviour, misconduct etc. I have no doubt that such misbehaviour and misconduct from the side of a subordinate officer against the official hierarchy cannot be encouraged. If the misconduct and misbehaviour are grave, the competent authority shall not hesitate to initiate disciplinary proceedings against the delinquent. But that cannot be achieved by putting the alleged delinquent to some other duty which he is not expected to undertake, that too in a far off place.
19. Transfer is an incident of service. The employee cannot insist that he has a vested right to work in a particular station. All the same, the employee should have transfer liability, which is very important. Here, the respondents have no case that the applicant has any transfer liability. He is the head of the Civil section of the Institute; at the time he may have to go to Visakhapatnam also. He has no liability to be transferred to some other place or some other units, beyond the scope of his employment and areas of duty. Here, a Civil Engineer has been asked to attend establishment matters in the Ministry in the place of a Section Officer and an Under Secretary who were transferred. The contention that establishment matters relating to the Institute are pending for long, is not justifiable for putting a Civil Engineer on 'other duty', that too without his consent. It is here that malice alleged by the applicant in issuing Annexure-R1(A) followed by the impugned order O.A No.9/2023 15 comes to the fore.
20. Having noticed the sored relationship between the applicant and the Director, there are reasons to suspect under currents in issuing Annexure-R1(A) and Annexure-A1.
21. In effect, he has been put on other duty to attend establishment matters. Materials are not available to show that the applicant is conversant with establishment matters. Merely for the reason that he might have put in additional charge of the Accounts Officer, ipso facto does not lead to the conclusion that he has expertise in dealing with establishment matters.
22. Moreover, as pointed out by this Tribunal in order dated 14.07.2008 in O.A.826/2008, it is a posting on deputation from one organisation to another, which should have been followed after obtaining the consent of the officer. No such the said consent has been obtained.
23. It may be true that on being transferred to Delhi, he will be given temporary accommodation etc. But such a temporary transfer has no statutory backing. It is motivated by extraneous considerations and the out-come of the cold war prevailing in the office. There are reasons to think that it is a deemed punishment on account of the allegations raised against the applicant. Such an order cannot stand judicial scrutiny.
24. No doubt, if there are materials to suspect misconduct and misbehaviour on the part of the applicant, instead of initiating O.A No.9/2023 16 disciplinary proceedings he cannot be punished by granting such a temporary transfer. Therefore, despite the fact that it has been put on hold, Annexure-A1 is liable to be interfered with. Annexure-A1 is quashed.
25. Before parting with, it seems that the applicant and the Director are in an attitude of mongoose and snake. Being a subordinate, the applicant is bound to obey the lawful directions issued by the Director. At the same time, if there are materials to infer unauthorised absence, misbehaviour, misconduct etc. on the part of the applicant, it is open to the competent authority to initiate disciplinary proceedings against him. Instead, adopting such shortcut methods like passing of Annexure A1 cannot be appreciated.
The Original Application is allowed. No costs.
(Dated, this the 8th May, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A No.9/2023 17 List of Annexures Annexure-A1: A true copy of the office order bearing No.1/2023 dated 10.01.2023 issued by the second respondent.
Annexure-A2 : A true copy of the office order bearing No.25/2022 dated 01.07.2022, issued by the second respondent. Annexure-A3: A true copy of the office order No.42/2022 dated 31.10.2022.
Annexure-A4: A true copy of the memo bearing No.A6/2-92/2018/60 dated 05.01.2023, issued by the 2nd/4th respondent. Annexure-A5: A True copy of the schedule for on the Job Training in Fisheries Post Harvest Technology from 1.7.2022 to 11.7.2022, 14.11.2022 to 25.11.2022 and 4.1.2023 to 16.1.2023.
Annexure-A6: A true copy of the representation submitted by the applicant through proper channel dated 11.01.2023 Annexure-A7: A true copy of the memo bearing No.NIF/A5/7-3/2015 Vol.II/97 dated 20.01.2023, issued by the Accounts Officer.
Annexure-A8: A true copy of the reply to Annexure-A7 submitted by the applicant on 24.01.2023.
Annexure-A9: A true copy of the another representation dated 07.02.2023 addressed to the 2nd respondent.
Annexure-A10: A true copy of the memo bearing No. No.NIF/A5/7- 3/2015 Vol.II/195 dated 13.02.2023, issued by the Accounts Officer.
Annexure-A11: A true copy of the reply dated 13.2.2023 addressed to the Deputy Secretary(Admn) in the Ministry of Animal Husbandry, Dairying & Fisheries.
Annexure-A12: A true copy of the reply dated 16.2.2023 addressed to the second respondent.
O.A No.9/2023 18Annexure-A13: A true copy of the office order bearing No.6/2023 dated 12.01.2023 issued by the Accounts Officer.
Annexure R1(A): True copy of the Administrative Ministry's e-mail dated 10.01.2023 Annexure R1(B): True copy of the the Office Order dated 12.01.2023 issued by the 2nd respondent Annexure R1(C): True copy of the memo dated 18.04.2022 issued by the Accounts Officer **********************