Central Administrative Tribunal - Madras
K Dhamodharan vs M/O Health And Family Welfare on 14 February, 2023
i OA FOO 1/2022 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/0085 1/2022 ae Dated ne the Monday of February Two Thousand Twenty Three CORAM: HON'RLE MR T JACOB, Member(A} & HON'BLE MS. LATA BASWARA PATNE, Member () K. Dhamedharan Lab Attendant (1) NIRT--ICMR No. 1, Poondi Toligate Road Tirovallur--~ 602 001, ~. Applicant By Advocate M/s. Paul & Paul Vs 1. The Director General Indian Council of Medical Research CMR) Department of Health Research (Ministry of Family Welfare) ¥V. Ramalingaswami Bhawan PO Box No. 4911, Ansari Nagar New Dethi-- 110029, 2, The Administrative Officer (Admin) ECD-[ Depariment Indian Council of Medical Research (CMR) Department of Health Research (Ministry of Family Welfare} V. Ramalingaswami Bhawan PO Box No. 4911, Ansari Nagar New Delhi -- 1/0029. 3, The Director National Institute for Research in Tuberculosis -- ICMR. No, 1, Mayor Sathiyamoorthy Road Chetpet, Chennai - 600 031. 4, De G, Prathiksha The Chabperson National Institute for Research in Tuberculosis -TCMR No. 1, Mayor Sathiyamoorthy Road Chetpet, Chennai ~ 600 031. § The Head of the Department of Epidemiciogy YCMR -- NIRT, Thiruvalluc. & The Director NIRTH -- 1OMR NIRTH Complex Nagpur Road P.O. - Garha. Jabalpur -- 482 003, Madhya Pradesh. 7, The Administrative Officer ICMR ~ National Institute for Research in Tuberculesis No. 1, Mayor Sathyamoorthy Road OA PYVOOSSLAO2E Chetpet, Chennai - 600 031. us Respondents By Advocate Mr, R, Sankaranarayanan, Ld. ASG for Mn M Kishore Kumar SPC fad OA SHvOORS ToGo ORDER
, {Pronounced by Hon'ble Mr. Lata Baswaraj Patne, Member(J)) By this OA the applicant is sesking the following reliefs:
"a. To quash the speaking order passed by the 7° Respondent having reference Ne.
NIRT/Legal/Speaking Order/2022 dated 23.09.2022 as the same is without authority, contrary to the order passed by this Hon'ble Tribunal in OA $41/2022 b. To quash the transfer order having reference No. NIRT/MISC/2018-ECD}] dated 04.07.3022 passed by the 2" Respondent and the relieving order having Ref No. NIRT/stt/Transfer/2022-23 dated 05.07.2032 passed by the 3" respondent, and the same is comrery to Section ~ 13 (3) of the Sexual Harassinent of women at Workplace (Prevention, Prohibition and Redressal} Act, 2013.
ce. For such further or other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of. the case and thus render justice." .
2. The brief facts of the case in nutshell is as under:
The applicant was appointed as a daily wager on 29.07.1998 af National Institute of Research in Tuberclosis, ICMR. The applicant has been sanctioned consolidated pay in the year 2000 and subsequently on
03.09.2007 the applicant was made regular staff and was appointed to the post of Chowkidhar. On 15.09.2021, the applicant was appointed as President of SC and ST Employees Welfare Association. Qn OS.11.2021 4 OA SIDDURS 2082 the applicant has written a letter to the 1" respondent and requested for investigation in the metter of one Mrs. Girijalakshmi's commannty vertificate in respect of her ST caste. On 16.12.2021, the applicant has submitted reminder to the said request to the office of the respondent. In respect of his request and on investigation of the said certificate submitted by Mrs. Girljalakshmi the respondents has communicated by letter dated 19.01.2022 that her certificate was verified and found genuine. All of a sudden on 08.02.2022, the applicant received a letter calling for enquiry on 11.02.2022 pursuant to a complaint given by Mrs. Girljalakshmi against him. is the meantime, applicant was transferred on 14.03.2022 by 38 respondent to NIRT, ICMR Thirovailur. By request dated 3] 03,2022 the applicant seek transfer back from the said ransfer place to Chennai Office on the ground on his health, Subsequently the applicant has alse submitted reminder on 21.04.2023 and requested transfer. By letter dated 05.05.2022, the applicant has been called for another enquiry pursuant to the complaint made by Mrs. Girljalakshmi and alleged about sexual harassment. By letter dated 06.03.2022 the applicant requested qe respondent to furnish the complaint letter submitied by the complainant. On 11.05.2022 the applicant has received commumication letter from the Senior Admisistrative Officer and instructed to appear before the District Vigilance Committee on 19.05.2022. However it has been stated that enquiry could not be conducted due to non appearance of the applicant.
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8 OA STONORS TAB?
On 12.05.2022 the anplicant requested copy of the conmplaint. The applicant was shocked on the point that without furnishing the copy that enquiry was conducted. Subsequently the applicant has received commemication dated 13.05.2022 from head of office stating that the complaint letter was being forwarded to him and also directed to appear for the next enquiry on 20.08.2022. On 18.05.2022, the applicant has submitted a letter and explained that there was no episode of sexual harassment and the very reason for the complaint was due to the applicant's action to ascertain the genuineness of the community certificate submitted by. Mrs. Girijalakshmi. However, on 30.05.2022 enquiry was consiuded but report was not served upon the applicant. On 06.07.2022 applicant received email attached with transfer order to Jabalpur and relieving order. Immediately after the receipt of the said order the applicant has challenged the same before this Hon'ble Tribunal by fling OA $41/2022 and seeking to quash the transfer order dated 04.07 2022 passed by the second respondent and thereby relieving order dated 03,07.222 passed by the 3" respondent. Upon hearing this, Hon'ble Tribunal has disposed of OA 5341/2022 vide its order dated 15.07.2022 with a directions to the applicant to submit comprehensive representation to the respondents and further directed the respondents to consider the said representation amd pass speaking order within two months thereafter.
According to the directions of this Hon'ble Tribunal, applicant has & OA SiQMO8S L2022 submitted his detailed representation dated 28.07.2022 to the respondent no. Land 3. However the said request of the applicant was turned down by the 7" respondent vide its order dated 23.09.2022 stating therein that the said transfer order is not as a means of punishment Inn for the administrative convenience as that would Umit his interaction with Mrs. Girialakshnu and other people who are opposed to his views. Thereby the applicant's transfer order was confirmed with a direction to join his new posting immediately. Being agerteved the applicant has fled the present OA on various grounds that the transfer is punitive and without any authority and against the act,
3... ARer notice, the respondents have appeared through their counsel filed their detailed counter denying the said allegations over the said wansfer that is punitive without authority and against the act. The respondents also contended that to run the administration smoothly and looking inte the act of the applicamt and im the interest of better administration this transfer has been effected and that is by the competent authority and according to law. The competent authority has considered the adrninisiration exigencies in the present matter and taken the decision te wansfer the applicant to Jabalpur thereby no Interference from the Court is called for in the matter and they pray for dismissal of this GA devoid of merit.
? . OA M1 G/0085 1/2023 4, To refute the said counter blast, the applicant also filed his rejoinder. The respondents have filed their additional affidavit along with additional typeset. Th support of the claim of the applicant he has relied upon order passed by Hon'ble Supreme Court in the matter of Somesh Tiwari Vs UOT and Ors (20093 2 SCC 502 and M, Thiagarajan Vs. Managing Director, TN State Transport. Corporation Villuperam Lid and others (2022) SCC OnLine Mad 4416.
§, The main ground which is harped by the applicant is that the transfer order is issued by the incompetent authority in violation of statutory provision and suffered with malice in law and malafide exercise of power and punitive in nature, therefore the said transfer is nothing but arbitrary since it is punitive in nature.
&. The respondents have also fled reply to the rejoinder and pointed out that the transfer order issued by competent authority with a supportive document and itis not issued with malice or with a malafide intention. It is submitted by the respondents that after noticing such incident the applicant came to be transferred on 11.03.2022 to JCOMR NIRT Thiruvallur and relieved forthwith immediately on 14.03.2022, Even after the transfer applicant was frequently visiting IOMR Tuberculosis office at Chennai and he has not stopped the activities which has disturbed the administration, The applicant as well as Mrs. Girijalakshmi were indulging in the quarrel and spoiling the atmosphere of the office. There § OA S1O/OBS 2022 was no other alternative lef with the authorities but to transfer the applicant out of state and therefore 'considering the administrative axigencies and fo mamtiam the discipline and decorum in the administration the applicant has been transferred to Jabalpur. Since the may not be correct to sey that this transfer is with malafide, malice and punitive in nature. The transfer is a meident of service and therefore he cannat claim asa matter ofright. In support of their contentions they have relied upon the orders passed by Hon'ble High Court of Delhi in the case of Rupesh Hari Vs UOL& Ors in WRLC) 6549 of 2016, order passed by Brakulam Bench of this. Tribunal in OA S07/2020 in the case of Vi Murugesa Pillai Vs UJOl--- BSNL & Ors. and order of Principal Bench of this Tribunal in OA 2168/2021 in the case of Shantanu Mandal Vs UOD& Ors. In respect of matters pertaining to transfer with similar issue in the OA has been considered and Hon'ble High Court has upheld the decision of the Department.
f Heard both sides. Porused the OA and other materials placed on record, %. Ik is te be noted that in the year 1998 when the applicant was appointed as Dally Wages Worker and accordingly in the year 2007 he has been made regular staff In the year 2021, when he was holding as President of SC and ST Employees Welfare Association in the National ¥ OAS 10/8085 1/2023 Institute of Research in Tuberculosis he has raised over some doubt about the genuineness of the certificate of Mrs. Girljalalhismi thereby he bas requested for investigation vide its letter dated 05.11.2021 and the same has been verified and after the receipt of the report from the Revenue authorities vide its letter dated 19.01.2022 #t has been informed by the senior. Administrative Officer that the said certificate is genuine of Mrs. Girijalakshmi. Due to this relationship between the applicant and Mrs, Girijalakshmi was strained. From the bare perusal of the records it seems that there was an allegation by one another employee for sexual harassment against the applicant. In the post enquiry against the complaint made by Mrs. Girijalakshmi for sexual harassment by Whatsapp speech of the present applicant vide its order dated 11 03.2022 authorities have taken decision to transfer the applicant to Tiruvallur and relieved to join the said transfer posting. However, the respondents have observed that that the applicant has not stopped his activities and he is frequently visiting the present office and the differences between this applicant and Mrs, Giiialakshmi is spoiling entire atmosphere of the office. It was difficult to the authorities to run the administration smoothly and therefore based on inquiry report of the committee dated 08.06.2022 to the competent authority that both the employees be transferred to nwo different work places to maintain. harmony in the office premises and after observing all the acts of the applicant as well as Mrs. Girijalakshmi vide 1G OA SIQOSS1 2022 arder dated 04.07.2022 Competent Authority taken decision of transfer of both employees and. accordingly transferred the present applicant from _ ICMR, NIRT, Chennai to ICMR Jabsipur and V. M. Girijalakshmi from ICMR, NIRT, Chennai te ICMR NIE, Chennai with immediate effect by relieving them to join their respective places. The said order has been challenged by the present applicant in the first round of iigation in OA No, $41/2022 by tts order dated 15.07.2022 this Tribanal has granted the liberty to the applicant to make a comprehensive representation point out the grievances against the sald order with a direction to the respondents to conskler the representation submitted by the applicant and pass a reasoned and speaking order in accardance with law. Thereafter by order dated 23.09.2022 the respondents have considered the request of the applicant and come to the conclusion tat on account of events and intra~Assoolation rivalry and the gravity of the situation, the applicant's transfer to ICMR- NIRTH Jabalpur issued on 04.07.2022 is confirmed by the competent authority and the said transfer is for administrative conveniénee where the chances of his imteraction with Mre.Gidialakshnu or people who are opposed to his views can be virtually eliminated. The authorities also made it clear that this transfer is not by way of punishment. However applicant warned for the misconduct committed by him and should desist from repeating the same.
% It is to be noted that in respect of his contention the applicant has i ares.
OA FGOOSST/ 2022 placed his reliance over order passed by Hon'ble Supreme Court in the matter of Somesh Tiwari vs Union of India & Ors wherem Hon'ble Supreme. Court while considering the matter has alse observed that indisputably the order of transfer is an administrative order. There cannot be doubt whatsoever the transfer which is ordinarily an incident of service should not be interfered with, save in cases where there is malafide on the part of the authority is-proved and this malafide is on twe occasions one is malice in fact and second infact malice in law. After considering all the aspects Hon'ble Apex Court of India has considered all aspects and issued order in faveur of particular appellant. However, in the circumstances the facts and ratio does not suit to the present OA.
10. As in the matter of M. Thiagarajan Vs Managing Director, TN State Transport Corporation Villupuram Lid & Ors wherein court has also considered that the sald transfer order was not a simpliciter transfer, Considering the other facts on merits has set aside the transfer and also the ratio of the said case is not ntuch helpful in the present matter, lt. Qn the other hand, learned ASG, Mr. R. Sankaranarayanan appeared along with Mr. M. Kishore Kumar, Senior Pane! Counsel has pointed out that the authorities cited by the respondents on the similar issue and by cérisidetine the recammendations of the Committee, transfer order has been issued and. the same has been challenged before the Tribunal.
However the Tribunal has upheld the decision af the Department and the mm OS 3100085 LA0R3 said order has been confirmed by the Hon'ble High Court, New Delhi by dismissing the petition Med by the employee.
id. The sirlar issue has aiso been considered by the Emakulam Bench ofthis Tribunal in OA 180/00607/2020 in. respect of complaints pertaining to sexual harassment and the power of transferting the delinquent employee when the enquiry is going on and finds that nothing to interfere with the order passed by the respondent Department and the OA is dismissed accordingly. |
13. In one of the similar matter the Hon'ble Tribunal, Principal Bench, New Delhi has also considered that the transler order issued in the adyninistration and public interest based on the recommendations of the ICC. The employer has considered the same and transferred the applicant thereby confirming the said transfer order. This Tribunal find that there is no illegality or infirmity in the tranefer of employee and dismissed the OA Gled by the particular applicant.
(4. [tis io be noted that as held by the Hon'ble Supreme Court of India inthe matter of (i) Mrs. Shifpi Bose & Ors Vs. State of Bihar & Ors on 19.21.1990 the courts should not interfere with a transfer order which is rade in public Interest and for administrative reasons unless. the transfer orders are made in violation af any mandatory statutory rule or on the ground of malafide. The same position has been reiterated by the Hon, Apex courtiIn the matter of UOL & Ors Ys. Si Abbas vide order dated 27.04.1953.
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3B OA 31QOOBS1/2022iu} The Hon'ble Apex court in the matter of State of Madhya Pradesh & Ors Vs. Sri S.S.Kourav & Ors on 19.01.1995 while considering the issue of transfer on the ground of extreme hardship, has observed that the court cannot go into the question of relative hardshio.
Gi) In the case of State of UP & Anr. Vs. Siya Ram & Anr on 05.08.2004, the Hon. Apex court has held that while exercising the jurisdiction in the matter of transfer whether the transfer was in the interest of public service. that would essentially require factual acjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Gavernment servant or employee of a public undertakings has 2 fegal right fo be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not ony an incident but a condition of service, necessary toc im public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of malafide exercise or stated to be in vinlation of statutory provisions prohibiting. any such transfer, the courts or the tribunals normally cannot interfere with such order as a matter of routine, as though they were the appellate authorities substitubing their own decision for that oF the eamployer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This pasition if OAS EOGORS 23022 was highfighted by the Apex court in National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan &. Anr (2001 {83 SCC 574). me {iv} In the matter of Mohd. Masood Ahmad vs State OF U.P. & Ors on 18 Septentber, 2007 the Hon'ble Apex court has held that the High Court has nightly dismissed the writ petition since transfer ig an exigency of service and is an administrative decision and reiterated the chservations of the Apex court In In State of Punjab vs. Joginder Singh Dhatt AIR 1993 SC 2486 that "ft is entirely for the emoloyer to decide when, where and af what point of time 3 public servant is transferred froni hls oresent pasting, Ordinarily the Courts have no jurisdiction. to interfere with the order of transfer"
and In Abani Kanta Ray vs. State of Orissa 1995 (Supp.) 4 SCC 169 that "It is settled law that a transfer which is an incident of service Is not to be interfered with by the Courts uniess it is shown to be clearly arbitrary or vitiated oy mala fides or infraction of any professed orm or principis governing the transfer fv}-In the matter of UOT vs. Beepak Niranjan Nath Pandit on 07.02.2020 the Hon'ble Apex court has observed that the courts cannot interfere with the order of transfer in excess of jurisdiction.
15. In the circumstances in our considered view the transfer order dated O4.07.2022 confirmed by speaking order 23.08.2022 passed by the respondents does not call our imerference. QA needs to be dismissed.
However at the time of submissions, the Learned ASG has submitted that 18 GAT IO/OGRS 1/2022 'the applicant may submit his grievances through a yequest to the competent authority to transfer him to the nearby state if the respondents can accommodate the applicant. Therefore i view of the said supportive submissions made by the Learned ASG liberty' has been granted to the applicant to make such a representation to the competent authority to agitate his claim of transfer to the nearby state if he is willing 6 apt and if he submits the same the authorities also consider his request accordingly.
In view of above, OA Is dismissed. No order as tocosts.
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