Central Administrative Tribunal - Jaipur
Unknown vs Union Of India Through General Manger on 24 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 758/2013
DATE OF ORDER: 24th February, 2014
CORAM
HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER
Ramesh Chand Meena S/o Shri Pooran Chand Meena, aged about 40 years, R/o Village and Post Barnala, Tehsil Bamanwas, District Sawai Madhopur (Rajasthan), at present employed on the post of Enquiry Cum Reservation Clerk (ECRC) Railway Station, Shrimahaveerji, West Central Railway, Kota Division, Rajasthan.
Applicant
Mr. Arun Sharma, counsel for applicant.
VERSUS
1. Union of India through General Manger, Western Central Railway, Jabalpur, M.P.
2. Senior Divisional Personnel Officer, Western Central Railway, Kota Division, Kota.
3. Senior Division Commercial Manager, Western Central Railway, Kota Division, Kota.
4. Station Superintendent, Shrimahaveerji, Western Central Railway, Kota Division, Kota.
Respondents
Mr. P.K. Sharma, counsel for respondents.
ORDER (Oral)
The brief facts of the case, as stated by the learned counsel for the applicant, are that the applicant was transferred from Shrimahaveerji, Kota Division to Bhopal Division vide order dated 23.01.2012 (Annexure A/7). Being aggrieved by this order, the applicant filed an OA No. 648/2013 before this Bench of the Tribunal, which was disposed of vide order dated 17th September, 2013 by this Tribunal directing the applicant to file representation before the respondents within three days from the date of that order and the respondents were directed to consider and decide the same by passing a reasoned and speaking order according to the provisions of law expeditiously but not later than a period of two weeks from the date of receipt of a copy of the representation from the applicant. In pursuance of the order of the Tribunal, the applicant filed representation before the respondents. The respondents have considered and decided the representation of the applicant vide order dated 08.10.2013 (Annexure A/1) and rejected the same. Being aggrieved by the rejection order dated 08.10.2013 (Annexure A/1) and transfer order dated 23.01.2012 (Annexure A/7), the applicant has filed the present Original Application.
2. The applicant prior to his transfer to Bhopal Division was posted as Enquiry cum Reservation Clerk (ECRC) at Shrimahaveerji, Western Central Railway, Kota Division. On 27.10.2011, he was allowed to leave headquarters; he left for Karauli where his family resides. On 28.10.2011 which was his rest day, he visited Railway P.R.S. Office, Karauli for some work relating to his T.A. Bills.
3. He further submitted that while on 28.10.2011, the applicant was at the Railway P.R.S. Office Karauli, a surprise check was conducted by the Vigilance Team. The applicant was suspended following some vague charges for the incident on the same day itself his suspension order was revoked on 20.01.2012. He was allowed to resume his duties which he did till 24.01.2012. Thereafter, the applicant fell sick and he remained sick for long. The applicant was called upon by the respondent no. 4 on 14.07.2013 and he was served a charge-sheet on 25.06.2013.
4. He also submitted that after being declared fit by the Railway Doctor on 28.08.2013, the applicant joined his duties. He performed his duties on 28.08.2013 at Shrimahaveerji, subsequently, he was orally informed that his services have already been transferred to Bhopal Division vide order dated 23.01.2012. He received the transfer order on 13.09.2013.
5. Learned counsel for the applicant submitted that the rejection order of the representation of the applicant dated 08.10.2013 (Annexure A/1) is illegal, arbitrary and unjust. Transfer of the applicant is not in the interest of administration in any way. It has been issued on the basis of the recommendations of the Vigilance Department. Copy of the recommendations of the Vigilance Department has not been supplied to the applicant to know as to what was the basis for recommending the applicant to be transferred to a different division.
6. He also submitted that the transfer of the applicant is by way of punishment on the basis of the alleged charges proposed against the applicant. Any transfer by way of punishment is illegal and that shows that the administration had already made up its mind against the applicant without any enquiry.
7. Learned counsel for the applicant argued that the transfer order of the applicant clearly states that a major vigilance case is pending against the applicant, which is under process and awarding of penalty will depend upon the outcome of the disciplinary case. It will be difficult for the applicant to defend himself in this case from a far of place like Bhopal. All the witnesses and material will be available at Karauli. Therefore, the transfer order dated 23.01.2012 (Annexure A/7) and rejection order of the representation of the applicant dated 08.10.2013 (Annexure A/1) be quashed and set aside.
8. In support of his contention, learned counsel for the applicant placed reliance upon the following case law: -
(i) N.S. Bhullar and another vs. the Punjab State Electricity Board and Others (C.W.P. No. 1537 of 1990, decided on 21.12.1990 by the Honble Punjab and Haryana High Court, reported in 1991 (1) SLR 378.
(ii) Somesh Tiwari vs. Union of India and Others, Civil Appeal No. 7308 of 2008 (arising out of SLP (Civil) No. 3516 of 2007) decided on 16.12.2008 by the Honble Supreme Court of India, reported in 2009 (3) SLR 506.
9. On the other hand, learned counsel for the respondents did not dispute the basic facts of the case. However, he submitted that on 28.10.2011 a surprise check was conducted by the Vigilance Team at Railway P.R.S. Office, Karauli and the applicant was found responsible during vigilance check, therefore, a charge-sheet was issued to the applicant,. He was also directed to comply with the transfer orders to Bhopal Division. A disciplinary enquiry is still pending against the applicant though the Inquiry Officer has completed the enquiry but the Disciplinary Authority has yet to take final decision.
10. The respondents have considered the representation of the applicant and after due consideration, his representation against his transfer to Bhopal Division has been rejected by the respondents vide order dated 08.10.2013 (Annexure A/1).
11. Learned counsel for the respondents pointed out that even group C employees can be posted anywhere in the Indian Railway and that his transfer to Bhopal Division has been issued by the competent authority. The applicant has been transferred to Bhopal Division in the interest of administration and that he will not lose his seniority and other benefits as admissible in case of transfer in the interest of administration. He admitted that the applicant has been transferred to Bhopal Division on the recommendations of the Vigilance Department. The order dated 08.10.2013 (Annexure A/1) is a reasoned and speaking order, therefore, stating that the respondents have acted arbitrarily or illegally is totally vague and baseless. The disciplinary proceedings against the applicant are in progress. The order passed by the respondents is legal and, hence, the Original Application has no merit and it should be dismissed.
12. Heard learned counsel for the parties, perused the documents available on record and the case law referred to by the learned counsel for the applicant.
13. It is admitted between the parties that on 28.10.2011, there was a vigilance check at Railway P.R.S. Office, Karauli and the applicant was suspended on the recommendations of the Vigilance Team though subsequently reinstated on 20.01.2012. The applicant also admitted that he had gone to Railway P.R.S. Office Karauli and was sitting there with the reservation clerk. I have carefully perused the rejection order of the representation of the applicant dated 08.10.2013 (Annexure A/1). Learned counsel for the applicant did not dispute that the transfer orders to Bhopal Division has been issued by the competent authority and that the applicant can be transferred to Bhopal as per the condition of service of the applicant. However, he submitted that the transfer order has been issued on the recommendations of the Vigilance Department and it has been issued as a punishment, therefore, his transfer order is illegal and arbitrary.
14. Learned counsel for the respondents admitted that the applicant was transferred to Bhopal Division on the recommendations of the Vigilance Department though the transfer order of the applicant to Bhopal Division is not in the nature of penalty. This transfer order has been issued in the interest of administration; therefore, there is no infirmity in the transfer order.
15. I have carefully perused the case law referred to by the learned counsel for the applicant. In the case of Somesh Tiwari vs. Union of India and Others (supra), the petitioner was transferred to Shillong, which was considered to be a harsh posting as a punishment on the basis of an enquiry in which he was not found guilty of any alleged misconduct. But in the present case, the disciplinary enquiry is still pending against the applicant and, as such, transfer of the applicant to Bhopal cannot be termed as a harsh posting as a punishment. Therefore, the ratio decided by the Honble Supreme Court in the case of Somesh Tiwari vs. Union of India and Others is not applicable in the facts and circumstances of the present case.
16. However, the ratio decided by the Honble Punjab and Haryana High Court in the case of N.S. Bhullar and another vs. the Punjab State Electricity Board and Others (supra) would be applicable in the present case. The Honble Punjab and Haryana High Court has held that normally the Tribunal / Court cannot interfere if the transfer is made on administrative grounds in the public interest. However, where the transfer is not made in a routine manner but for collateral purpose and by way of punishment, the Court is competent to interfere and quash the same. The relevant para 15 of the order of the Honble High Court in the case of N.S. Bhullar and another vs. the Punjab State Electricity Board and Others (supra) is reproduced as under: -
15. As already observed in the beginning, the scope of interference by the High Court in such matters is very limited but where facts which are admitted are patent then the Court would certainly interfere if it comes to the conclusion that the administrative order was passed for a collateral purpose. We hold that the order of transfer, Annexure P-I, qua the petitioners was not straight and simple administrative order of routine transfer but was for collateral purpose and by way of punishment. In the aforesaid case, the Honble Punjab and Haryana High Court has held that the administrative order was passed for a collateral purpose and, therefore, it was not a straight and simple administrative order of routine transfer but was for collateral purpose and by way of punishment, and, therefore, the transfer order was quashed.
17. In the present case, the applicant has been transferred to Bhopal Division on the recommendations of the Vigilance Department. I am of the opinion that the transfer of the applicant in the present case is also not a straight and simple transfer order on administrative ground but it has been issued on the recommendations of the Vigilance Department. The Inquiry Officer has come to the conclusion that the applicant did not do any irregular work while being at Railway P.R.S. Office Karauli nor he gave any direction for issuing of tickets. Even then his presence in the booking office is itself was an irregular act and he has found him guilty for violation of Rule 3.1 (iii) of Railway Services (Conduct) Rules, 1966 though the disciplinary authority has not yet taken a final decision. Therefore, under the facts and circumstances of the present O.A., I am of the view that the transfer order of the applicant from Kota Division to Bhopal Division requires modification. However, the applicant cannot be allowed to be retained at Shrimahaveerji looking to his conduct at Railway P.R.S. Office Karauli, therefore, the respondents are directed to modify his transfer order dated 23.01.2012 (Annexure A/7) and post him anywhere within the Kota Division within a period of one month from the date of receipt of a copy of this order.
18. It is made clear that the Tribunal has not made any comments on the merits of the pendency of the disciplinary proceedings against the applicant. The respondents are at liberty to proceed further with the departmental enquiry against the applicant according to the provisions of law.
19. With these observations and directions, the Original Application is disposed of with no order as to costs.
(ANIL KUMAR) ADMINISTRATIVE MEMBER kumawat