Central Administrative Tribunal - Hyderabad
Ab Prabhu Raj vs Nsic on 29 September, 2023
1
OA.No.491/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
ORIGINAL APPLICATION NO.021/00491/2023
RESERVED ON: 22.09.2023
DATE OF ORDER: 29.09.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
Shri A.B.Prabhu Raj, S/o A.Balraj
Aged about 55 years, Occ: General Manager-SG
Centre Head, NSIC, Technical Services Centre, Hyderabad
Transferred to NTSC, Howrah, R/o H.No.10-4-771/687
II Floor M.G.Nagar, Masab Tank, Hyderabad - 500 028.
.....Applicant
(By Advocate: Shri Rastrapal Hanmanthrao Chicalwar)
Vs.
1. Union of India, Rep. by the Chairman - cum - Managing Director
National Small Industries Corporation Ltd & under the
Ministry of Micro Small and Medium Enterprises
Okhla Industrial Estate, NSIC Bhavan, Okhla Head Office
New Delhi - 110 020.
2. Union of India, Rep. by its Secretary
Ministry of Micro Small and Medium Enterprises
Udyog Bhavan, New Delhi.
3. General Manager-SG
CMD - Secretariat, International Co-op
and Human Resources Departments
NSIC Bhavan, Head Office,
Okhla Industrial Estate, New Delhi - 110 020.
4. Chief General Manager-SG
Works/Estate and Technology Departments
NSIC Bhavan, Head Office
Okhla Industrial Estate, New Delhi - 110 020.
5. Sh.Sunil Tyagi (General Manager-SG)
CMD - Secretariat, International
Co-op and Human Resources Departments
NSIC Bhavan, Head Office
Okhla Industrial Estate, New Delhi - 110 020.
2
OA.No.491/2023
6. Sh. Navin Chopra (Chief General Manager - SG)
Works/Estate and Technology Departments
NSIC Bhavan, Head Office
Okhla Industrial Estate, New Delhi - 110 020.
7. Sh. D.K.Agarwal (CVO)
Works/Estate and Technology Departments
NSIC Bhavan, Head Office
Okhla Industrial Estate, New Delhi - 110 020.
8. Shri K. Srinivas
DGM, Zonal Manager
Zonal Office, South-II
Musheerabad, Hyderabad. ....Respondents
(By Advocate: Sri B.Siva Sankar, Sr. PC for CG and
Dr.K.Lakshmi Narasimha for private respondents)
ORDER
PER: HON'BLE SUDHI RANJAN MISHRA, JUDICIAL MEMBER The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
a) Call for all the connected and relevant records relating to the Office Order No.SIC/PERS.I/29(1)2023, (Cir.No.59/2023), dt.11.08.2023 issued and vide CGM-SG (Tech) Office Order No.SIC/HO/Tech/241, Dt.18.08.2023 issued by the Respondent No.3 & 4 and quash or set aside the same herein;
b) Consequently, direct the respondents to stay/set aside the transfer order issued on 11.08.2023 of the applicant's herein by retaining him in the same office/place in accordance with law with immediate effect and pass such other and further order or orders as are deemed fit and proper by this Hon'ble Tribunal under the circumstances of the case.
2. Brief facts of the case are that the applicant joined the services of the Corporation at NSIC Technical Service Centre, Hyderabad as General Manager (Technical) on 29.05.2017. Thereafter, he was elevated to the post of General Manager (SG cadre) after conducting Review DPC w.e.f. 23.09.2020 vide 3 OA.No.491/2023 office order dated 27.12.2021. The applicant submits that while he was discharging his duties to the satisfaction of his superiors, on 11.08.2023, the 5th respondent has placed a copy of the transfer order in the official website of the Corporation whereby the applicant is transferred from NTSC- Hyderabad to NTSC-Howrah with instructions to join NTSC-Howrah with immediate effect. When the applicant submitted a representation dated 14.08.2023 seeking reconsideration and cancellation of transfer order dated 11.08.2023 citing health problems of his aged mother and his wife, the respondents issued relieving order on 18.08.2023 relieving him from his duties w.e.f. 18.08.2023 with instructions to report for duty at NTSC, Howrah.
3. The applicant submits that respondent No.8 who is working since more than 25 years in the same office in Hyderabad is given the charge of NTSC Hyderabad with immediate effect. But the applicant who belongs to marginalised community has been transferred out within a short span of duration in Hyderabad. The applicant further submits that his presence is required to take care of his aged mother who is suffering from old age ailments and his wife, who is suffering with pneumonia by staying at Hyderabad. Without considering his genuine reasons as requested in his representation, issuing relieving order dated 18.08.2023 is purely illegal and unconstitutional and against the principles of natural justice. Aggrieved, the applicant has filed the present OA questioning the orders dated 11.08.2023 and 18.08.2023 issued by the respondents.
4. The applicant has also filed an MA.No.329/2023 stating therein that when the OA was heard for admission on 21.08.2023, the Tribunal was pleased 4 OA.No.491/2023 to pass interim order directing the respondents to dispose of the pending representation of the applicant dated 14.08.2023 by passing a reasoned and speaking order within a period of three weeks, with further direction to maintain status-quo as on today vis-à-vis transfer of the applicant. In view of the interim order passed by this Tribunal, the applicant went to the office on 22.08.2023 to discharge his duties as General Manager-SG & Centre-Head and in fact, his in/out punch was recorded in bio-metric attendance on 22.08.2023. But on the next day i.e. 23.08.2023, the premises/office cabin from which the applicant was discharging his duties was locked and the name board of the 8 th respondent was fixed. The outgoing punch could not be recorded as he was told that the biometric has been de-activated on 23.08.2023 evening. It is evident from the above that the applicant was, in fact, on the rolls of the NTSC Hyderabad Centre even on 23.08.2023. As he was not struck off the rolls from the NTSC Hyderabad centre on 22.08.2023 and 23.08.2023, the status quo order is liable to be interpreted as a direction to continue the applicant to discharge his duties as the Head of NTSC Hyderabad centre. Therefore, the applicant prayed that with a view to avoid confusion specifically to ensure that the unofficial respondents 5 to 7 do not misinterpret the purport of the order of this Tribunal, the interim order dated 21.08.2023 may be modified to that of suspension of the orders dated 11.08.2023 and 18.08.2023 till the next date of hearing, which would ensure that the order of this Tribunal is followed both in letter and spirit by the respondents.
5. On notice, the respondents No.1 & 3 to 8 have filed counter affidavit along with vacate stay petition vide MA.No.342/2023 wherein they averred that 5 OA.No.491/2023 the applicant was initially appointed as General Manager (Technology) vide appointment letter dated 03.04.2017. Later, he was promoted as General Manager (Selection Grade) vide order dated 27.12.2021. The applicant has been transferred on 11.08.2023 to Howrah and was relieved from duty vide order dated 18.08.2023. In response to his transfer and relieving orders, the applicant in his representation and emails admitted that he has relinquished the charge of NTSC Hyderabad and got relieved on 18.08.2023 with instruction to report at NTSC Howrah.
6. The respondents submit that as per the NSIC Transfer Policy, employees are liable to be transferred based on any of the conditions stipulated in clause (2) of the said policy. As per clause (6) of appointment letter dated 03.04.2017, it is very clear that the applicant is liable to be transferred to anywhere in India. Further, the transfer has been made as per administrative exigencies and requirements of the Corporation. As per the Guidelines of the NSIC Transfer Policy, a minimum period of 3 years at a location shall be maintained as far as possible in order to avoid hardship to the employee. In the present case, the applicant has completed 6 years at NTSC Hyderabad and hence he is liable to be transferred. In compliance to the order of this Tribunal, the competent authority disposed of the representation of the applicant with reasoned and speaking order dt. 26.08.2023. The allegations and averments made by the applicant regarding his caste, illness of his family members and that respondent No.8 is working since more than 25 years are not germane in deciding upon the transfer of the applicant. As can be seen from the transfer orders, it is a chain transfer affecting number of other employees who have been transferred 6 OA.No.491/2023 consecutively. Further, the applicant did not make persons affected as necessary parties as this is a chain transfer. Because of the misrepresentation of the applicant, the entire chain of transfers has been stalled and the entire administration has come to a standstill. Hence, they prayed for dismissal of the OA as well as vacating the stay order granted by this Tribunal.
7. The respondents No.1 and 3 to 8 have also filed counter affidavit to MA.No.329/2023 filed by the applicant for modification of the interim order dated 21.08.2023. In the counter affidavit, the respondents have contended that the applicant himself has admitted in his communication dated 14.08.2023 & 19.08.2023 that he got relinquished and relieved from NTSC, Hyderabad on 18.08.202. This communication itself indicates that the applicant is not honouring the order dated 21.08.2023 passed by this Tribunal by disobediently trying to mark the attendance on biometric on 22.08.2023 and on 23.08.2023. The applicant is trying to enter the office by misinterpreting the order of this Tribunal. Hence, on this ground alone, the MA.No.329/2023 deserves to be dismissed.
8. The applicant has filed rejoinders to the counter affidavits filed by the respondents in OA as well as in MA.No.329/2023. He submits that pursuant to the interim order dated 21.08.2023 passed by this Tribunal, the respondents have passed speaking order dated 26.08.2023 directing the applicant to immediately report for duty at NTSC-Howrah by misinterpreting and disobeying the order of this Tribunal. He contends that respondent No.5 is working in Head Office, Delhi since more than 30 years in the same building/department and also as HR Head even after getting 4-5 promotions. 7 OA.No.491/2023 Similarly, respondent No.6 is working in Head Office Delhi from his first posting, since more than 15 years in the same Department even after getting 3 promotions, respondent No.7 is working since more than 14 years even after getting 2-3 promotions and the respondent No.8 is working in Hyderabad South Zone-2 since more than 25 years in the same office/department/zone/place even after getting 3-4 promotions. Many officers are working in the same place for more than 15 to 20 years and they are continuing in their work places undisturbed even after getting more than 3 to 4 promotions and the respondents have transferred the applicant in a very short duration in Hyderabad Centre. In regard to the clauses mentioned in the appointment letter, it is stated by the applicant that it is a general clause saying that one is liable to be transferred to anywhere in India and it is not implemented by the management in letter and spirit and the same is subjected to favouritism and nepotism to do favour to some persons. The transfer of the applicant is done on vindictive manner only to harass him with malafide intention and there is no transparency in implementing the transfer policy dated 23.10.2009. The applicant denies that he has made any statement to the effect that he has given charge and/or relieved from Hyderabad Centre. He further denies that he has violated the status quo order dated 21.08.2023 granted by this Tribunal by marking his bio-metric attendance & signing on attendance register. The Tribunal has never restrained the applicant from marking his bio-metric attendance or restrained from attending the office and the same is amply clear as it is status quo order which otherwise means that the applicant can continue his attendance and discharge his duties in the office as usual as he attended his regular duties up till 11.08.2023. Since the respondents were misinterpreting/ disobeying the order 8 OA.No.491/2023 dated 21.08.2023 passed by this Tribunal, he was constrained to file MA.No.329/2023 seeking to implement/comply the order dated 21.08.2023 passed by this Tribunal. Since the respondents have not given any valid reason for vacating the interim status quo order, the MA.No.342/2023 deserves to be dismissed.
9. Heard Sri Rastrapal Hanmanthrao Chicalwar, learned counsel for the applicant and Dr.K.Lakshmi Narasimha & Sri B.Siva Sankar, learned senior counsels for the respondents and perused the materials placed on record.
10. The issue to be decided in this OA is whether the impugned transfer of the applicant is sustainable in law.
11. Learned counsel for the applicant argued that as per the transfer policy dated 23.10.2009, any officer of any branch/office/centre/zone with longest stay in a particular place would be considered first but whereas in the case of the applicant, the same guidelines are not applied. The applicant is singled out by transferring him to faraway place within a short span of duration by showing discrimination/biased approach and it is not done in the case of others who are working for more than 20-30 years while issuing transfer orders. The transfers are not chain transfers as has been submitted by the respondents as there are excess/additional senior most GMs working in Howrah and Chennai centres, as the HR-Head had totally ignored the NSIC transfer policy dated 23.10.2009 by not ensuring rotational deployment of personnel of different centres/offices, even distribution of surplus staff in various offices/centres taking into account the tenure at a particular location. Learned counsel for the applicant submits 9 OA.No.491/2023 that since the respondents have not shown transparency in implementing the transfer policy vide Cir.No.285/09 dated 23.10.2009, the transfer order dated 11.08.2023 transferring the applicant to NTSC-Howrah, is liable to be set aside.
12. On the other hand, the learned counsel for the official respondents submits that the transfer of the applicant is purely on administrative exigencies and requirements of the Corporation and no punitive action is involved in transferring the applicant. Further, the transfer of any official within the organisation is the prerogative of the controlling authority. The respondent is a Company registered under the Companies Act and hence and the Corporation is governed by its own policies and there is no violation of any of the policies of the Corporation. On account of the misrepresentation of the applicant, the entire chain of transfers has been stalled and the entire administration has come to a standstill.
13. It is seen that in compliance of the interim order of this Tribunal dated 21.08.2023, the respondents have passed an order dt. 26.08.2023, reiterating their contention that the transfer has been made as per administrative exigencies and requirements of the Corporation. They also stated that the applicant was relieved on 18.08.2023 i.e. prior to the order of this Tribunal dt. 21.08.2023. The respondents further stated that though the Management sympathises with the applicant on the health of his mother and wife, but as he is transferred to large metropolis i.e. Kolkata, where there are advanced medical facilities are available, the transfer order cannot be found fault with. It is also seen from the Guidelines of the NSIC Transfer Policy, that a minimum period of 3 years at a location shall be maintained as far as possible in order to avoid hardship to the 10 OA.No.491/2023 employee, whereas, in the present case, the applicant has completed 6 years at NTSC Hyderabad.
14. It is settled law that transfer is an incident of service and a Government Servant has no vested right to remain posted at a place of his choice, as held by the Hon'ble Supreme Court in a catena of judgments.
15. In Shilpi Bose v. State of Bihar, 1991 Sup (2) SCC 659, Hon'ble Supreme Court held as under:
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
As held in Shilpi Bose (supra), even if a transfer order passed is in violation of executive instructions or orders, the Court normally should not interfere with the same.
16. In Union of India & ors v. SL Abbas, (1993) 4 SCC 357, it has been held as under:
"An order of transfer is an incident of Government Service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it."11 OA.No.491/2023
Similar view was taken in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & ors, 2004 (12) SCC 299.
17. In a later judgment in Rajendra Singh vs State of U.P. & Ors, (2009) 15 SCC 178, the Hon'ble Supreme Court held as under:
"5. A Government Servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the Government Servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P. v. Gobardhan Lal; (2004) 11 SCC 402].
6. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. "
18. Recently, the Hon'ble Supreme Court in SK Nausad Rahaman & Ors. v. Union of India & Ors, in Civil Appeal No. 1243 of 2022, reported in 2022 (4) SCALE 626 has held as under:
"24 xxxx Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice.
25 Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration."
19. Thus, transfer being an incident of service and the guidelines laid down for affecting transfer not being enforceable conditions of service, an order of transfer, even if made in violation of such guidelines, would by itself does not 12 OA.No.491/2023 furnish the ground for interference by the Tribunal. Executive instructions for transfer of Government servants are in the nature of guidelines and do not confer a legally enforceable right. [Union of India & Ors. v. S.L. Abbas, (1993) 4 SCC 357:: AIR 1993 SC 2444]. If there are statutory provisions including rules governing transfer, then the employer has to exercise the power of transfer according to such rules and even the employer can deviate from executive instructions or guidelines in the exigencies of administration.
20. In view of the above position, this Tribunal does not find any merit in the OA and the same is accordingly dismissed. MA(s) pending, if any, shall stand disposed of. Consequently, the interim relief granted is vacated.
21. In the circumstances, there shall be no order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER /evr/