Central Administrative Tribunal - Hyderabad
Shaik Mastan Vali vs Employees Providend Fund Organisation ... on 23 August, 2022
OA/386/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
OA/021/386/2022
Date of CAV : 29.07.2022
Date of pronouncement : 23.08.2022
Hon'ble Mr. Ashish Kalia, Judl. Member
1. Shaik Mastan Vali, S/o.Shaik Dawood,
Aged about 54 years,
Occ: Senior Social Security Assistant (Group-C),
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
2. Talapala Sivaji, S/o.Edukondalu,
Aged about 40 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
3. Adivi Chandrasekhar,
S/o. Venkata Rama Krishna Rao,
Aged about 48 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
4. MerajothuSreenu Naik,
S/o. Gandhi Naik, aged about 36 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
5. Srinivasa Kumar Penugonda,
S/o. PSR. Anjaneyulu, aged about 43 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar,
3rd Line, Guntur, Andhra Pradesh.
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OA/386/2022
6. GarikamukkalaSarath Kumar,
S/o. Ravi Kumar, aged about 35 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
7. Vepati Kiran Rao,
S/o. Venkata Krishna Rao, aged about 37 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
8. Mohammed Aleem,
S/o. Md. Ibrahim, aged about 49 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
9. Vemula Raghunandana Kumar,
S/o. Late Ramanuja Rao, aged about 43 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
10. A.L.K. Rama Prasad,
S/o. Satyanarayana Gupta, aged about 53 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
11. DesavathHanumantharao Naik,
S/o. Late Bodia Naik, aged about 44 years,
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
12. KandratiNagaraju,
S/o. Krishna Rao, aged about 47 years,
Occ: Senior Social Security Assistant (Group-C),
O/o. Regional Provident Fund Commissioner,
Guntur Region, Krishna Nagar, 3rd Line, Guntur,
Andhra Pradesh.
13. EesaRamanjaneyulu,
S/o. Vishnu Narayana, aged about 41 years,
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OA/386/2022
Occ: Senior Social Security Assistant,
O/o. Regional Provident Fund Commissioner,
Kadapa Region, Railway Station Road,
Yerramukkapalli, Kadapa,
Andhra Pradesh.
...Applicants
(Byadvocate :Sri KRKV. Prasad)
Vs.
1. Union of India rep. by
The Secretary, Ministry of Labour& Employment,
Shram Shakti Bhavan, New Delhi.
2. Employees Provident Fund Organisation rep. by
The Central Provident Fund Commissioner,
Bhavishya Nidhi Bhavan, 14-Bhikaji Cama Place,
New Delhi - 110 066.
3. The Additional Central Provident Fund,
Commissioner (HRM),
Employees Provident Fund Organisation,
Central Office, BhikajiCama Place,
New Delhi - 110 066.
4. The Additional Central Provident Fund Commissioner,
(Andhra Pradeh), Employees Provident Fund Organisation,
Zonal Office, Door No.26-4-16, 17, 2nd floor,
Gnanolive Street, Gandhi Nagar,
Vijayawada - 520 003.
5. The Regional Provident Fund Commissioner-I,
Regional Office, Guntur,
Krishna Nagar, Guntur, Andhra Pradesh.
6. The Regional Provident Fund Commissioner - I,
Regional office, Kadapa,
Railway Station Road,
Yerramukkapalli, Kadapa, Andhra Pradesh.
... Respondents
(By Advocate:SmtA.P. Lakshmi, SC for EPFO)
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OA/386/2022
ORDER
(As perHon'ble Mr. Ashish Kalia, Judl. Member) The OA is filed seeking the following reliefs:
"..........to call for the records pertaining to Office Order No. HRM-V/Misc./2021/8281, dated 14.06.2022; and (ii) set aside and quash the said order along with any other consequential proceeding, duly declaring the action of the respondents in transferring the applicants from outside Guntur Region to other regions as illegal, arbitrary; and (iii) direct the respondents to retain the applicants at the present place of posting granting all consequential benefits and pass such other order or orders in the interest of justice."
2. The brief facts of the case are that the applicants are working in Guntur/ Kadapa Regions of Andhra Pradesh Zone as Senior Social Security Assistants/ Social Security Assistants in Employees' Provident Fund Organization (EPFO). During the period from 29.01.2021 to 03.02.2021, the Central Bureau of Investigation (CBI) officials of Visakhapatnam Branch along with Assistant Director (Vigilance), EPFO, Hyderabad conducted a raid in the Regional Office, Guntur. In the process, mobile phones of the staff were seized and the staff were questioned on the data available in the mobile phones. Thereafter, the CBI, Visakhapatnam issued four FIRs showing the names of 18 employees vide RC No.5 to 8/2022 on 01.02.2022. The applicants have filed Criminal Petitions seeking quashing of the respective FIRs in the High Court of Andhra Pradesh at Amaravathi raising various legal grounds. It is the contention of the applicants that the crime registered is not in consonance with the facts and circumstances of the case and the data collected from the mobile phones does not prima facie show that the ingredients of the Criminal Sections reported in the FIRs viz 4 OA/386/2022 Section 120-B IPC r/w Sec.7 & 8 of PC Act, 19888 (as amended in 2018) are satisfied. While so, vide impugned order dated 14.6.2022, the applicants were transferred from Andhra Pradesh Zone to other zones on administrative grounds. Feeling aggrieved, the applicants have approached this Tribunal. The applicants have relied upon the judgement of the Hon'ble Supreme Court in TSR Subramanian & Others vs UOI [(2013) 15 SCC 732] in which it was held that transfers should be effected as per the recommendation of the Transfer Committee. The applicants have also relied upon the judgement of the Hon'ble Supreme Court in Somesh Tiwari vs UOI [(2009) 2 SCC 592] and also the judgement dated 10.6.2009 of the Hon'ble Madras High Court in the case of R. Mohansundaram vs the Principal Chief Conservator of Forests.
3. Notices were issued and the respondents have filed a detailed reply wherein they have stated that CBI, Visakhapatnam had conducted a surprise check in the office of EPFO, Regional Office, Guntur during 29.1.2021 & 3.2.2021. On verification of the mobiles, it was found that the applicants have shared UAN numbers, passwords and OTPs of different EPF beneficiaries with different PF consultants and private persons. It is stated that the applicants are receiving illegal gratification/ undue advantage in lieu of doing the EPFO official work. The CBI has registered FIRs dated 1.2.2022 against the applicants and the CBI investigation is under progress. It is submitted by the respondents that the Central Board of Trustees, in exercise of powers conferred by Sub-Section (7) of Section 5D of Employees' Provident Fund and Miscellaneous Provisions Act, 1952 made the Employees' Provident Fund (Officers and Employees' Conditions of 5 OA/386/2022 Services) Regulations 2008 to regulate the conditions of service of the officers and employees of the Board. Rule (5) of the Employees' Provident Fund (Officers and Employees' Conditions of Services) Regulations 2008 reads as under:
"5. Power to transfer - Transfer of staff from one region to another or from regional office to headquarter and vice versa in similar posts shall be made by the Central Provident Fund Commissioner or an authority delegated by the Central Provident Fund Commissioner."
Rule 11(4) of the Employees' Provident Fund (Officers and Employees' Conditions of Services ) Regulations 2008 reads as under:
" 11. Liability of Transfer:-
(4) Notwithstanding anything contained in sub-regulations (1) to (3) above any employee may be transferred from one region to another region or to Central office of the organization or vice versa on administrative grounds or in the public interest.
It is the contention of the respondents that the transfer order dated 14.6.2022 was issued with the approval of the Central Provident Fund Commissioner, who has been authorized under Rule 5 of the Regulations 2008 to transfer officials on administrative grounds. Therefore, it is completely legal and justified and is issued in public interest.
4. The applicants have filed a rejoinder reiterating all the grounds taken in the Original Application. On the direction of this Tribunal, the respondents have filed Additional Reply wherein it is stated that the Hon'ble High Court vide interim order dated 18.4.2022 in W.P. No.2718/2022, allowed the CBI to continue investigation against the applicants herein. The respondents have also filed a Gazette Notification to 6 OA/386/2022 show the liability for transfer. The relevant portions are extracted hereunder:
"11. Liability for Transfer (1) Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) Every employee of the Organisation carrying a scale of pay of a Group B (Non-Gazetted) post under the Central Govt. and Group C and D employees shall be liable to serve anywhere in the respective regions in which they are appointed Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (4) Notwithstanding anything contained in sub-regulations (1) to (3) above, any employee may be transferred from one region to another region or to Central office of the organization or vice-versa on administrative grounds or in the public interest."
5. On the direction of this Tribunal, respondents have filed a clarificatory statement almost reiterating the actual position and submitted that most of the applicants have worked in different offices of the erstwhile State of Andhra Pradesh (i.e. Telangana and Andhra Pradesh as on date) and so, naturally they are having their network and nexus across the offices falling under the political state boundaries of Andhra Pradesh and Telangana where they can easily exercise their influence and keep maintaining unholy nexus and practices uninterruptedly. As such, it is unavoidably and inevitably required to transfer them to the offices away from the places of their influence and nexus in order to safeguard the interest of the poor beneficiaries. Keeping all this in view, the Central Provident Fund Commissioner, who 7 OA/386/2022 is the competent authority to transfer the applicants from one Region to any other Region has decided on administrative grounds and in public interest to transfer the applicants to the stations away from the arears of their influence, network and nexus in order to ensure that they may not spoil the environment of the local office and Region and cause damages to the interest of the poor subscribers, old aged pensioners, widows, children, orphans and so on.
6. The applicants have filed Rejoinder to the Additional Reply filed by the respondents denying the every stand taken by the respondents in the Additional Reply and submits that the expression 'Region' denotes Guntur Region as per the Regulation 11(2) as far as the applicants are concerned.
7. Heard the learned counsel for the parties and perused the pleadings on record.
8. The applicants are challenging the action of the respondents in transferring them from Andhra Pradesh Region to different Regions, stating that the said transfers are malafide. The applicants were transferred to faraway places ranging from 1500 kms to 2100 kms. According to the applicants, the respondents are not empowered to do so. Learned counsel for the respondents submits that the word 'Region' has wider implication like the State of Maharashtra covers Goa also. Similarly, North East Region covers entire North Eastern States. The applicants are well aware of the Notificationissued by the respondents in this regard and these clauses were reflected in their appointment orders 8 OA/386/2022 also. Lastly, it is submitted that the applicants can be transferred under Regulation 11(4) which says "Notwithstanding anything contained in sub-regulations (1) to (3) above, any employee may be transferred from one region to another region or to Central office of the organization or vice-versa on administrative grounds in the public interest." Learned counsel for the applicants relied upon the judgement of the Hon'ble Supreme Court in TSR Subramanian & Others vs UOI (supra) and tried to impress upon this Tribunal that transfer should be effected on the recommendations of the Transfer Committee. The judgement of the Hon'ble Supreme Court of India in Somesh Tiwari vs UOI (supra) relied upon by the learned counsel for the applicants is of no help to the applicants as their transfer is not a routine one. They have been transferred to far off places in order to protect the UAN Numbers & OTPs of different EPF beneficiaries, which they were sharing with certain PF consultants and private persons by receiving illegal gratifications.
9. The Hon'ble High Court of Himachal Pradesh in Sunita Devi vs State of H.P. in CWP No.1978/2019 held on 18.3.2020 that "transfer is a condition of service. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be 9 OA/386/2022 passed under political pressure. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established." In U.O.I and Ors. vs. S.L. Abbas [(1993) 4 SCC 357] & in Mrs. Shilpi Bose and Ors vs. State of Bihar and Ors.[AIR 1991 SC 532] also, the Hon'ble Supreme Court took the same view.
10. It is very much clear from the above cited judgements that an employee can be transferred without his consent also. In the present case, the respondents have transferred the applicants purely on administrative exigency and in the public interest as the applicants are found to be sharing official information to the P.F. consultants and private persons through electronic media, which is a criminal act being investigated by the CBI. This Tribunal finds force in the submission of the respondents that under the Rules, an employee can be transferred from one Region to another Region or to the Central Office on administrative exigency or in the public interest. This Tribunal is of the view that the impugned transfer order was passed in accordance with the rules and regulations of the EPFO. No case is made out by the applicants for interference by this Tribunal. Therefore, the O.A. being devoid of merit is dismissed. Interim Order shall stand vacated. No order as to costs.
(ASHISH KALIA) JUDICIAL MEMBER /pv/ 10