Central Administrative Tribunal - Delhi
Dr Ashok Kumar Panda vs Central Councilfor Research In ... on 2 April, 2024
1 OA No. 3603/2023
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.3603/2023
Order reserved on: 14.03.2024
Order pronounced on: 02.04.2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Dr. Ashok Kumar Panda,
Aged about 54 years,
Son of Shri Basudev Panda,
Presently residing at 95-Indraprastha, Phase-II,
Near Kokila Enclave, Pokhariput,
Bhubaneshwar-751020
Working as Research Officer,
Central Ayurveda Research Institute,
CCRAS, Ministry of Ayush,
Government of India,
Bharatpur, Bhubaneswar-751 029
(under orders of transfer).
....Applicant
(By Advocate: Mr. T.R.Mohanty)
Versus
1. Union of India represented through
The Secretary to the Govt. of India,
Ministry of AYUSH, B-Block,
CGO Complex, New Delhi,
PIN-110001.
2. The Director General,
Central Council for Research in Ayurveda Sciences,
No.61-65, Institutional Area,
Opp. "D" Block, Janakpuri,
New Delhi, PIN-110058.
3. The Director,
Central Ayurveda Research Institute,
Ministry of Ayush,
Bharatpur, Bhubaneswar-751 029.
4. Administrative Officer (Recruitment),
Office of Director General,
Central Council for Research in Ayurveda Sciences,
2 OA No. 3603/2023
No-61-65, Institutional Area,
Opp. "D" Block, Janakpuri,
New Delhi, PIN-110058.
5. Assistant Director (In charge),
Regional Ayurveda Research Institute,
Ahmedabad, PIN-380004.
... Respondents
(By Advocate: Mr. S.N.Verma)
ORDER
By Hon'ble Manish Garg, Member (J) "Lawyers are supposed to present disputes as dramas, with parties as characters--their clients as protagonists or heroes and their opponents as antagonists or villains."- (Ref:Harry Potter, Ruby Slippers and Merlin:
Telling the Client's Story Using the Characters and Paradigm of the Archetypal Hero's Journey, (By Ruth Anne Robbins- Professor, Rutgers School of Law : 29 Seattle U. L. Rev. 767, 774-76, 779-80, 782 ( 2006).
1. The brief facts, as narrated by the learned counsel for the applicant are as under :-
1.1 The applicant, who is working as Research Officer, Central Ayurveda Research Institute, CCRAS, Ministry of Ayush has filed this OA challenging and impugning his order of transfer dated 10.07.2023 (A/1) from Bhubaneshwar to Ahmedabad and the order dated 10.07.2023 (A/2) whereby 3 OA No. 3603/2023 he has been relieved of his duties, on various grounds viz.
that this is not a chain transfer; transfer has been made without giving opportunity to furnish his option of posting as a perquisite condition as per the Transfer Policy; as a punitive one since disciplinary proceeding against him is ongoing; has not been made on the recommendation of the placement committee and therefore the order of transfer is not sustainable in the eyes of law.
1.2 It is submitted by the learned counsel for the applicant that the transfer order was issued on 10.07.2023 and he was relieved on the same date, i.e. on 10.07.2023 without giving him opportunity to hand over the charge or make any appeal before the competent authority which proves the malice of the respondents in transferring him. He submitted that no substitute has been posted in his place at Bhubaneswar. 1.3 It is noticed that the interim order was passed at the initial stage itself vide order dated 11.07.2023, relevant part of which reads as under:
"5. However while granting time to the respondents to file objection to IR, prima facie case having been found and since balance of convenience lies in favour of the applicant and he will be put to irreparable loss and hardship, this Tribunal directs the respondents to allow the applicant to continue at his present place of posting, i.e. at Bhubaneswar not withstanding the orders under Annexure A/1 & A/2 dated 10.07.2023 till next date of hearing."
1.4 It is also noticeable that Principal Bench of this Tribunal had allowed the Petition for Transfer (PT) No.135/2023 vide 4 OA No. 3603/2023 order dated 13.10.2023 transferring the matter to Principal Bench.
1.5 It is also noticed as per record of proceedings dated 18.01.2024, the following was recorded in MA No.204/2024:
"MA No. 204/2024.
When taken up, Mr. Mohanty learned counsel for the applicant states that on 21.08.2023 the matter was taken up by the Single Bench. At that time learned counsel for the applicant Mr. S.K. Nayak made a request to place the matter before a Division Bench for consideration for hearing, the Tribunal has pass the following order:-
"Heard Ld. Counsel for both the parties. Ld. Counsel for the applicant by filing MA 442/2023, prays to place the matter before the Division Bench for consideration/hearing. As the Division Bench is functioning, let the matter be listed before the Division Bench on 28.08.2023. MA 442/2023 is disposed of accordingly."
2. He states that subsequently this matter has been dealt by the Division Bench at Cuttack. However, subsequently it was requested to transfer the matter before to Principal Bench. On 06.11.2023, the matter was transferred to the Principal Bench. On receipt of the paper book at the Principal Bench it was posted before the Chairman, Principal Bench. The Chairman vide order dated 13.10.2023 passed the following order:-
"Heard learned counsel for the respective parties.
This P.T. is filed by the applicant for transferring O.A. No.377/2023 from Cuttack Bench to the Principal Bench of this Tribunal.
The subject matter of the O.A. is an order dated 10.07.2023, whereby the applicant has been transferred from Cuttack to Ahmedabad. Respondent Nos.1 & 2 are based in New Delhi. Thus, the part of cause of action arises in New Delhi also, however, the applicant has chosen to file the subject O.A. at Cuttack.
It is the contention of the applicant that he will not be in a better position to present his case at Cuttack and it would be convenient for him to pursue the proceedings before the Principal Bench of this Tribunal at New Delhi since his close friends of the legal fraternity are in New Delhi.
Mr. S N Verma, learned counsel for respondents opposes the same. He submits that the applicant has initially chosen to file the subject O.A. at Cuttack. The pleadings in the said O.A. are complete and now, at this stage, the applicant is making a plea for transferring the O.A. to the 5 OA No. 3603/2023 Principal Bench. He also submits that presently, the fullfledged Bench is available at Cuttack and having obtained the interim order in his favour, the applicant wants to prolong the matter.
In the facts and circumstances, especially the part of cause of action arises in New Delhi, I allow this P.T. in exercise of my powers under Section 25 of the Administrative Tribunals Act, 1985 and transfer the proceedings of the subject O.A. to the Principal Bench of this Tribunal. However, by taking cognizance of the submissions of learned counsel for the respondents, I direct the Registry to place the subject O.A. for final hearing on 09.11.2023, to be kept 'high on board'."
1.6 The matter was posted before the Single Bench on 30.11.2023 when it was adjourned to 01.03.2024. However, the respondents filed MA No.4647 /2023, for preponing the matter because of administrative exigency. The Single Bench vide order dated 10.01.2024 allowed the preponment of the OA as well as the MA for vacation of the stay to 18.01.2024.
"4. He states that the matter has already been dealt by the Division Bench and hence the Single Bench was not competent to pass the order of preponment in the said MA. In view of this the order should be recalled.
5. Mr. Verma, learned counsel for the respondents states that in the instant case the judicial process has been misutilised by the applicant for delay the case after getting interim relief in the form of stay on transfer. By adopting one or other process, there is an attempt to delay the hearing of the matter. For that reason, the MA for preponement was submitted and it has been rightly decided by the Single Bench. The Single Bench is competent to pass such order.
6. He substantiates his arguments by stating that there should not be misutilization of the process of litigation to delay the proceeding after getting initial stay order in the transfer case. He gives the detailed chronology of the dates;-
1. He states that on 10.07.2023 the respondents issued transfer order on the ground of administrative exigencies.
2. On 11.07.2023 applicant pleadings of stay order was given in respect of the stay transfer order.
3. Pleadings in the case was completed by August 2023 because the respondent filed counter affidavit on 21.07.2023 and applicant filed rejoinder on 14.08.2023.
7. When the matter was ripe for final hearing, the counsel for the applicant pleaded for transfer of the matter to appropriate 6 OA No. 3603/2023 Division Bench. The Single Bench vide order dated 21.08.2023 directed the registry at Cuttack to do the needful. When Division Bench was constituted and the matter was again ready for final hearing, the applicant moved an application for transfer of the case to the Principal Bench at Delhi.
8. When this matter was transferred from Cuttak Bench to Principal Bench Delhi it was ordered that this matter should be placed high on board.
9. Thereafter, the matter was placed before Single Bench here as usually transfer matters are heard in the Single Bench. In view of this, he states that the matter was posted for final hearing 'high on board' vide order dated 13.10.2023. The Chairman also had ordered that this matter will be High on Board. Then this matter was placed before Single Bench on 30.11.2023, where on Joint request of the learned counsel for the parties, matter was adjourned to 01.03.2024.
10. Mr. Verma, learned counsel for the respondents states that in this case on 30.11.2023 Mr. Ranjan Tyagi, learned counsel appeared whereas he was the authorized counsel who appeared before the Hon'ble Chairman, when the matter regarding transfer of the case was heard there.
11. However, subsequently, he moved an application for early hearing. The matter was placed before the Single Bench. This MA for preponement of date of hearing was slotted for hearing on 08.01.2024 and he further states that on 08.01.2024, 09.01.2024 the matter was listed and after two passovers there was no representation on behalf of the applicant(in the OA).
12. On 10.01.2024 after two passovers the learned proxy counsel for the applicant (in the OA) appeared and the order was passed by the Single Bench and listed for final hearing on 18.01.2024.
13. In view of the above details regarding the happening in the present case, the learned counsel for the respondents states that the process of judicial technicalities being misused to delay the proceedings further.
14. Heard both the counsels.
15. In the instant case, it is a fact that the applicant in the OA has requested to the Single Bench at Cuttack that the matter should be heard by the Division Bench as per CAT Rules of Practices of 1993, which allows such request a particular matter to be heard by the Division Bench and the same was acted upon and matter was heard by concerned Division Bench at Cuttack for couple of hearings. It was the responsibility of the Registry at the Principal Bench that the matter should have been posted before the appropriate Division Bench. Inadvertently, this matter was posted before Single Bench. However, I don't agree with the contention of 7 OA No. 3603/2023 the counsel for the applicant that the Single Bench has no authority to pass preponment of date in a case when the matter was inadvertently placed before the said Bench. There is no material damage that can happen if preponement of date is ordered in a transfer case. I agree with the contention of the learned counsel for the respondents that the judicial process in the instant case has been misustilized to delay the matter after getting the stay order in the transfer case.
16. However, the request of the applicant in the present case that the matter may be heard by a Division Bench is granted. There will be no recall of the order dated 10.01.2024.
17. In view of this, the Registry is directed to place the matter today before an appropriate Division Bench.
"DASTI"."
1.7 On 29.02.2024 and 01.03.2024 none appeared on behalf of the applicant. In MA No.4647/2023 filed by the respondents for preponement of date on the ground that interim order is operating against them. 1.8 Thereafter, another MA No.1004/2024 was filed on behalf of the respondents for placing on record additional affidavit which is placed in Part-A file along with the OA. 1.9 There is yet another one MA No.1005/2024 filed by the applicant to pass appropriate direction against the respondents/Deponent for using insensitive language in MA No.4647/2023.
1.10 Yet another MA was filed by the applicant for expunging adverse comments in the Order dated 02.03.2024.
"3. With the consent of the learned counsel for the parties, the matter was taken up for final hearing, more particularly in view of the fact that matter was kept high on board as per order dated 03.10.2023."8 OA No. 3603/2023
2. Further, narrating the facts, learned counsel for applicant impugned the transfer order dated 10.07.2023, which reads as under:
"कामाारम आदे श संख्मा 24-2023/321 सऺभ प्राधधकायी के अनभ ु ोदन से ननम्नलरखित अधधकारयमों को उनके नाभ के आगे उल्रेखित संस्थान भें तत्कार प्रबाव से स्थानांतरयत ककमा जाता है -:
क्रं.सं. अधधकायी का नाभ ककस संस्थान से ककस संस्थान भें 1 डॉ. ऐ.के. ऩांडा, केंद्रीम आमव ु ेद अनस ु ध ं ान संस्थान, ऺेत्रीम आमव ु ेद अनस ु ध ं ान संस्थान, अनस ु ध ं ान अधधकायी (आम.ु ) बव ु नेश्वय अहभदाफाद 2 डॉ.ऩाइकयाव सभ ु ेद नायामणयाव ऺेत्रीम आमव ु ेद अनस ु ध ं ान संस्थान, ऺेत्रीम आमव ु ेद अनस ु ध ं ान संस्थान, अनस ु ध ं ान अधधकायी (आम.ु ) अहभदाफाद नागऩयु उऩयोक्त स्थानांतयण जनहहत भें है । अतः उनको कामाबाय ग्रहण कयने की अवधध एवं मात्रा बत्ता ननमभानस ु ाय दे म होगा।
मह आदे श भहाननदे शक,सी के अनभ ु ोदन से जायी ककमा जा यहा है । .एस.ए.आय.सी.
2.1 Pursuant to transfer order dated 10.07.2023, a relieving order dated 10.07.2023 has also been impugned, which reads as under:
सं :एपहदनांक )6(58/11-िण्ड/.एप.ऩी/स्थाऩना/फीफीएसआय/सीएआयआई-2021/216-1 . 10.07.2020 कामाारम आदे श सं24-2023/210 .
ऩरयषद के कामाारम आदे श सं-िण्ड/.स्था/सीसीआयएएस -2017/22-45.ऩत्र सं( 24-2023/321.IV) हदनांक ( 10.07.2023प्रनत संरग्नक है के तहत )डॉअशोक .कुभाय ऩण्डा, अनस ु ध ं ान अधधकायी को तत्कार ).आम(ु प्रबाव से केन्द्द्रीम आमव ु ेद अनस ु ध ं ान संस्थान, बव ु नेश्वय से ऺेत्रत्रम आमव ु ेद अनस ु ध ं ान संस्थान, अहभदाफाद को स्थानांयण ककमा गमा है । तदनस ु ाय डॉअशोक कुभाय ऩ .ण्डा, अनस ु ध ं ान अधधकायी को हदनांक ).आम(ु ( 10.07.2023अऩयाह्न( को इस संस्थान से कामाभक् ु त )Stand Relieve) ककमा जाता है ।
9 OA No. 3603/2023उऩयोक्त स्थानान्द्तयण जनहहत भें है । अतः कामाबाय कयने की अवधध एवं मात्रा बता ननमभानस ु ाय दे म होगा ।
मह आदे श भहाननदे शक, सीसीआयएएस के अनभ ु ोदन से जायी ककमा जा यहा है ।
संरग्नक. मथोऩरय-
)याव.एभ.एभ.डॉ( ननदे शक )संस्थान( सेवा भें , डॉअशोक कुभाय ऩण्डा ., अनस ु ध ं ान अधधकायी ).आम(ु 2.4 In support of the case of the applicant, learned counsel for applicant would submit that
(i) The alleged transfer is not in public interest nor there is any administrative exigency. He seeks to rely upon para 4 of Transfer Policy, which is reproduced as under:
"4. STATION TENURE:
4.1 Normal Station tenure shall be of 7 years. An official can be posted out of Station before completion of Station tenure, but, normally not before 03 years as to meet administrative requirement."
(ii) The submission on behalf of the applicant in view of the above vacancy position is that since there are sufficient number of vacancies at Bhubaneswar and as per the vacancy position depicted in chart, there is no vacancy in Ahmedabad and Nagpur. Therefore, applicant ought to have been retained at Bhubaneswar itself.
10 OA No. 3603/2023
(iii) Relieving order was passed on the same day and has been passed in haste, therefore, it appears to be malice on the part of the respondent authority. He further contends that he was not given an opportunity to apply for TA/DA.
(iv) Learned counsel for applicant places strong reliance upon the decision rendered in OA No.4721/2014 decided on 09.10.2015 wherein the applicant‟s counsel himself was a part in person. He relies upon relevant paras of the judgment which reads as under:
"27. It has been argued by Shri R.N. Singh, learned counsel for the respondents that since it was a matter of administrative transfer where there is a need to be prompt and speedy, the movement of file was done the way it has been. However, what attracts our attention is that the speed has become so fast that the matter has moved over to the category of post-haste. Admittedly, the applicant was given no time to draw the advance towards Travelling Allowance. Once a person is unilaterally relieved, his existence insofar as that office is concerned, ceases. There are so many matters comprising the process of winding up and we find that this normal courtesy has not been extended to the applicant. The applicant, by all means, a senior officer in SAG scale and to say the least he was deserving of some courtesy in this regard. Thus, we conclude the instant issue that the transfer of the applicant was made post-haste.
xxx xxx xxx
33. We have already seen that there was post-haste in pushing through the transfer of the applicant and relieving him. To get the transfer TA is a right of every employee who gets transferred which in the instant case is denied to the applicant. We do not see as to how the argument of the learned counsel for the respondents helps the applicant when he stood relieved even prior to getting the transfer order, and there was no way he could draw his transfer TA. We have examined similar issue in a case pertaining to the same organization in Naresh Kumar Sharma versus Union of India & Ors. [OA No.294/2015 decided on 12.02.2015] wherein it has been held that a transferred employee must be provided with transfer TA advance and other transfer dues.11 OA No. 3603/2023
34. It is well admitted fact that there has been a long running battle between the applicant and the respondents which have resulted in filing of almost 213 cases. Some of these cases have also been decided by this Bench and in some of them mala fide was alleged by the applicant merely on the ground that he had been an intervener in OA NO. 1653/2010, which resulted in appointment of respondent no.2 being quashed, and we had ruled out malice merely on this ground. However, in the instant case, the story goes much beyond. We have also found that the applicant has been posted to a regional office which is one step below in the hierarchy to the Zonal office and the Zonal officer is several years junior to the applicant. We have already held in issue no.2 that whatever be the argument, the fact remains that a senior officer in SAG scale is serving in a Regional office, which is directly below the Zonal Office in hierarchy. This leaves us with no other conclusion except to say that the purpose appears to humiliate the applicant."
(v) He further placed reliance on order in MA No.1609/2011 in OA No.2059/2011, relevant part of the order reads as under:
"7. As stated above, while considering this OA both on 2.6.2011 and 10.6.2011, no interim directions were issued by the Tribunal for staying the transfer order. Since, as reported before us, the officer has already stood relieved, which is clearly borne out even by the impugned communication dated 24.5.2011 of the Ministry of Statistics and Programme Implementation, we do not find the case for interim relief as tenable. The prayer for stay in the MA is not found justified in the present context.
8. However, we note the submissions of the learned counsel that there is no intention on the part of the applicant to disobey the orders of the higher authorities, as he had requested on 10.6.2011 for grant of traveling allowance and pay advance as permissible under the Rules, which has yet not been accorded to the applicant. The learned counsel for the respondents Shri Bhardwaj assures on instructions from Shri N.K.Sharma, Section Officer, Ministry of Statistics and Programme Implementation, that the same would be done within three days from today. The learned counsel Shri Chawla also prays that the applicant should not be penalized and should be given the joining time as admissible under the law. This, in all fairness, is not opposed by the respondents' learned counsel. The joining time will be calculated when the applicant will be given Traveling Allowance & pay advance as per the Rules. This is in no way to affect the consideration of the claim of the applicant in the OA on merit. The MA is disposed of with these directions."12 OA No. 3603/2023
(vi) He also relies upon transfer policy. Relevant extract of transfer policy reads as under:
"5. RE-POSTING RESTRICTIONS:
5.1 An officer, normally, may not be re-posted to same Station within 05 years from the date of his/her last transfer from that Station.
xxx xxx xxx
9. MID-TERM TRANSFER:
9.1 Mid-term transfers will be considered only in exceptional circumstances, or on administrative grounds.
10. OFFICERS EXEMPTED FROM TRANSFER UNDER RTP:
10.1 The Officials of all grades within two years of superannuation will be exempted from rotational transfer. 10.2 The Officials likely to be promoted within one year shall be exempted from the RTP as on promotion Officials are transferred, if they have completed the prescribed tenure for the promotional post."
(vii) He would further contend that as per the additional affidavit, he sought to place reliance upon para 9 of the additional affidavit which reads as under:
"9. That Transfer and Posting Policy dated 05.11.2020 [Annexure: A-5] has been violated in the present case, inasmuch as the impugned Transfer is not a rotational transfer, the transfer was before the requisite seven years tenure at a place and the same was not recommended by the Transfer Committee. Further, Officers who are likely to be promoted within shall be exempted from Transfer. The Applicant is the Senior-Most person in India due for promotion."
(viii) He sought to rely upon Annexure A-7 of additional affidavit dated 06.04.2023 where the applicant was at Sl. No.1 in the zone of consideration to the post of Assistant 13 OA No. 3603/2023 Director (Ayurveda). He would contend that as per clause 1.2, if the applicant is under zone of consideration, the applicant ought not to have been transferred to the place of posting. In the additional affidavit in para 5, following has been stated:
"That, therefore, it becomes crystal clear that the Transfer Order cannot be in Public Interest, because if the same is implemented, while Ahmedabad and Nagpur will have zero vacancy, Bhubaneswar will have 40% vacancy. Without imputing any motives, it can be seen that the States which have NDA Governments, are being given special preference, the State ruled by the opposition (Biju Janta Dal in the present case) has been neglected. This cannot be permitted under circumstances."
(ix) Besides aforesaid, learned counsel for applicant also relies upon following case laws:
(a) Alok Johri vs. Union of India, OA No.1510/2006 decided on 13.10.2006 by Principal Bench of this Tribunal.
(b) CM No.7940/2007 in WP (C) No.1640/2007 decided on 29.05.2007 by Hon‟ble High Court of Delhi.
(c) Pravin Srivastava vs. Union of India & Ors., OA No.2059/2011 order dated 14.06.2011 passed by Principal Bench of this Tribunal.
(d) Naresh Kumar Sharma vs. Union of India and others, OA No.294/2015 decided on 12.02.2015 by Principal Bench of this Tribunal.
14 OA No. 3603/2023
(e) Tushar Ranjan Mohanty vs. Union of India and others, OA No.4721/2014 decided on 09.10.2015 by Principal Bench of this Tribunal.
(f) G.Lalita vs. Union of India, OA No.1707/2006 decided on 18.01.2007 by Principal Bench of this Tribunal.
(g) K.K.Jindal vs. General Manger, Northern Railway and others, OA No.26/1986 decide don 25.03.1986 by Principal Bench of this Tribunal.
(h) P.K.Abhyankar vs. Union of India, OA No.1014/1997 decided on 24.01.2000 by Principal Bench of this Tribunal.
(i) Lakshmi Bhavya Tanneeru vs. Union of India & Ors.,WP (C) No.5533/2021 decided on 16.11.2021 by Hon‟ble High Court of Delhi.
3. Countering the argument put forth by learned counsel for applicant, learned counsel for respondents contended that applicant is not entitled to relief sought in the present matter. 3.1 It has been contended that applicant has not come with clean hands to seek interim relief on the grounds that disciplinary proceedings are going on against him. In fact, he has tried to mislead this Tribunal. The 2nd stage disciplinary proceedings initiated against him are under - THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 read with Govt. of India‟s Decision No.13 under Rule 14 of CCS (CCA) Rules, 1965, as amended from time to time. He 15 OA No. 3603/2023 has also approached this Tribunal in this matter as well as obtained directions of the Tribunal for refraining from continuing these proceedings and this interim stay is continuing till date. Hence, the Disciplinary Proceedings are not in progress and he is neither in any disadvantageous position nor action of the respondents is of punitive nature. 3.2 In terms of CCS (Joining Time) Rules, 1988, he is entitled for 12 days joining time and during the period he was at liberty to undertake handing over/taking over exercise and complete other formalities before reporting and complete other formalities before reporting to new place of posting. 3.3 Learned counsel for respondents also draws a reference that a Committee was constituted to enquire into complaints wherein the Committee vide its report dated 20.03.2023 recommended that there is an imperative need to formulate and implement "rotational transfer policy" for regular staff in Institutes/organizations including Councils‟ Headquarters so as to dismantle vicious circle of development of magnanimity or self-interest. This would be expedient in the overall interest of the Council to immediately transfer Dr. Ashok Kumar Panda, Research Officer (Ay.) for certain obvious reasons observed by Committee. His further retention at CARI Bhubaneshwar may be detrimental as well as pervasive to the Institute and may further vitiate the desired congenial working atmosphere. Complaints/cross-complaints related 16 OA No. 3603/2023 to violation of provisions of CCS (Conduct) Rules, 1964 must be given serious note and required action may be taken against the delinquent officer/officials, at once. In so far as, the present complaint/allegations levelled against Dr. M.M. Rao, Director (Institute), CARI, Bhubaneswar, are concerned, these are incredible, without any sustainable facts/grounds and are devoid of merit and therefore the same may be rejected in totality.
3.4 It is contended that transfer is in consonance with the report of the Committee under Sexual Harassment Act. It has been stated that Dr. Sarda Ota has already been posted at Bhubaneswar at 28.06.2023 vide order dated 15.06.2023. 3.5 Further, it has been averred that applicant stands relieved from CARI, Bhubaneswar from the afternoon of 10 th July, 2023, with the directions to report for duty at RARI, Ahmedabad. In terms of CCS (Joining Time) Rules, 1988, he is entitled for 12 days joining time and during the period he was at liberty to undertake handing over/taking over exercise and complete other formalities before reporting to new place of posting. His transfer is well decided by the Administrative Authority. His replacement is already in position since 10.07.2023 and therefore, provisions of handing over/taking over quoted by him carry no weightage. Moreover, all the relevant files relating to In-Patient Department (IPD) like, Patient record forms, Nurses‟ daily duty registers, patient 17 OA No. 3603/2023 consent forms, patient diet registers, IPD staff leave application registers, regular technical report details etc. are lying with the Sister-in-Charge of the IPD and she is the custodian of all such records for registers. The Hospital In charge is only a forwarding officer for the IPD to the Director for all types of administrative approvals or actions. Even the stand relieve will not hamper any clinical research projects, outreach projects etc. Hence question does not arise regarding hampering of IPD function due to transfer and relieve of the existing IPD In charge and moreover, one of the senior most officers, i.e. Assistant Director (Ay.) has been entrusted the job of In charge of the IPD.
3.6 The fact on records is that the applicant upon receiving his order of transfer out of Bhubaneswar on 10.07.2023 straightway moved to Court of Law and like his previous actions was successful to have "interim stay". On the contrary, he was required to consult Director (Institute) for handing over the charge upon his transfer but he chose to stall the administrative action of the competent authority. He has either failed to appreciate the spirit of rules & regulations of the Government or deliberately chosen to misrepresent the facts. On receipt of orders of transfer, he could have represented against order, which he did not represent.
18 OA No. 3603/20233.7 The respondents, in support of their contention, have mainly relied upon the following decisions of the Hon‟ble Supreme Court to contend that a government servant has no vested right to remain posted at a place of his choice indefinitely:
(i) Shilpi Bose vs. State of Bihar, 1991 Supp (2) SCC 659
(ii) S.C.Saxena vs. UOI & others, Civil Appeal No.280/2003)
(iii) Union of India & Ors. vs. S.L.Abbas, AIR 1993 SC 2444
(iv) Rajinder Singh vs. State of UP, 2009 (15) SCC
(v) Gujarat Electricity Board and another vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602
4. Learned counsel for the parties have also filed written arguments, thereby reiterating their respective stand.
5. ANALYSIS "Transfer. By All Means, Let‟s talk about intent"
5.1 We have examined the color or interpretation to the "Transfer" so as to form an opinion, whether the transfer was tainted by malafide or personal bias contrary to public interest or administrative exigencies.19 OA No. 3603/2023
"Because the hero is the person in the story with whom the reader most closely identifies, the writer must grant the hero universal qualities and emotions that most readers have either experienced or understand. A hero grows and changes through the course of the journey. Heroes start out as somehow flawed at a fundamental level that affects their daily life and/or prevents them from living up to their potential. The hero, then, represents a search for identity and wholeness. Emotions and motivators at both ends of the spectrum are available to the hero; everything from love and joy to anger and a thirst for revenge to the middle emotions of loneliness, despair and the feelings of oppression. A hero is imperfect by definition, and audiences admire the hero all the more for striving to overcome these flaws." ( See: 29 Seattle U. L. Rev 776) 5.2 An attempt has been made by Mr Mohanty, learned counsel for the applicant would submit that his client in similar circumstances is morally innocent vehemently by arguing that he himself being such victim was successful in getting setting aside his own transfer order (Ref: OA No.4721/2014- titled " Tushar Ranjan Mohanty Va UOI adnd ors , Principal Bench, Central Adminstrative Tribunal, New Delhi decided on 9.10.2015). Though learned counsel does not dispute that he did join the place of posting. Placing reliance on the Tushar Ranjan Mohanty (supra), the learned counsel is redefining new law in attempt to show case by bringing fiction of transfer policy in motion by saying that the transfer of the applicant is not in conformity with clause 10.2.
5.3 While one cannot obviate from the fact that the applicant continued at same place for about 7 years 3 20 OA No. 3603/2023 months under same policy. To say the least, if the said Transfer policy is to be applied to applicant with rigors by no stretch of imagination he could have continued for more than 7 years at Bhubaneswar what to discuss, morally. 5.4 We do not have any doubt in our mind about the legal acumen which Mr. Mohanty has achieved over the years in successfully defending his own cases. However, we do not expect that such irony can crept in while pleading on behalf of his own client, i.e., we never expected that an obvious choice as author of submissions on behalf of his client wishing to present an ironic situation by equating applicant‟s case to his own. There is danger too, when lawyer‟s experience as applicant himself completely leads him to astray when he becomes his client‟s counsel. He cannot act to say that his client can be said to be presumed innocent. 5.5 THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 , CHAPTER V deals with- INQUIRY INTO COMPLAINT.
Section 12 of the said ACT, relevant for the present, reads as under :-
"12. Action during pendency of inquiry.--(1) During the pendency of an inquiry on a written request made by the aggrieved woman, the Internal Committee or the local 21 OA No. 3603/2023 Committee, as the case may be, may recommend to the employer to--
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman a may be prescribed.
(2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be."
5.6 It is not in dispute that there are serious allegations in the nature of SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (of course subject to merits and test of trial). Section 12.(1)(a) of THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 "makes it amply clear and explicit that the "transfer" of the aggrieved woman or "the respondent to any other workplace can be done during pending inquiry on recommendation of the Internal Committee or the local Committee, as the case may be, to the employer. Such recommendations dated 20.03.2023 in present case, reads as under :-
"6. Recommendations:
22 OA No. 3603/2023
6.1 There is an imperative need to formulate and implement "rotational transfer policy" for regular staff in Institutes/organizations including Councils' Headquarters so as to dismantle the vicious circle of development of magnanimity or self-interest.
6.2 This would be expedient in the overall interest of the Council to immediately transfer Dr. Ashok Kumar Panda, Research Officer (Ay.) for certain obvious reasons observed by Committee. His further retention at CARI Bhubaneswar may be detrimental as well as reasons observed by Committee. His further retention at CARI Bhubaneswar may be detrimental as well as pervasive to the Institute and may further vitiate the desired congenial working atmosphere.
6.3 Complaints/cross-complaints related to violation of provisions of CCS (Conduct) Rules, 1964 must be given serious note and required action may be taken against the delinquent officer/officials, at once.
6.4 In so far as, the present complaint/allegations leveled against Dr. M.M.Rao, Director (Institute), CARI, Bhubaneswar, is concerned, these are incredible, without any sustainable facts/grounds, pre-posterous, devoid of merit and therefore the same may be rejected in totality."
5.7 Seeking to quash a transfer order by giving a political color is least expected when called upon in our judicial powers for scope of review of administrative action. Can we look into such wild allegations on touchstone in public interest or administrative exigencies vis-a-vis de hors of transfer policy is matter of grave concern.
5.8 We pose a question to ourselves, was it really relevant to make such pleadings/deposition by way of additional affidavit which can be considered in public interest or personal interest?
5.9 What the political mileage by the personnel mentioned thereto in para 5 could have garnered in the matter of 23 OA No. 3603/2023 transfer posting that too for the post of Research officer remained un-explained and un -substantiated.
5.10 Even though both sides have cited case laws on transfer, we are guided by the most recent decision rendered by Hon‟ble Apex Court decided on 13.03.2024 in Civil Appeal No. 4129 OF 2024 (Arising out of Special Leave Petition (C) No. 22074 OF 2023) - Sri Pubi Lombi Vs. The State of Arunachal Pradesh, the Hon‟ble Apex Court has held as under :-
"9. In the case of Union of India and others Vs. S.L. Abbas; (1993) 4 SCC 357, it is clearly observed by this Court that the scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide, non-observation of executive instructions does not confer a legally enforceable right to an employee holding a transferable post. The relevant paragraph reads as under:
"7. 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. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject........"
9.1 Further, following the footsteps of S.L. Abbas (supra) this Court in the case of Union of India and another Vs. N.P.Thomas; 1993 Supp (1) SCC 704 held that the interference by the Court in an order of transfer on the instance of an employee holding a transferrable post without any violation of statutory provision is not permissible. 9.2 This Court further curtailed the scope of judicial review in the case of N.K. Singh Vs. Union of India and others; (1994) 6 SCC 98 holding that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to public interest. It was further reiterated that interference is only justified in a case of malafide or infraction of any professed norm or principle. Moreover, in the cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference to the transfer must be eschewed. It is further held that the evidence requires to prove such transfer is prejudicial and in absence thereof interference is not warranted. The law reiterated by this Court is reproduced, in following words: - 24 OA No. 3603/2023
"9. Transfer of a public servant from a significant post can be prejudicial to public interest only if the transfer was avoidable and the successor is not suitable for the post. Suitability is a matter for objective assessment by the hierarchical superiors in administration. To introduce and rely on the element of prejudice to public interest as a vitiating factor of the transfer of a public servant, it must be first pleaded and proved that the replacement was by a person not suitable for the important post and the transfer was avoidable. Unless this is pleaded and proved at the threshold, no further inquiry into this aspect is necessary and its absence is sufficient to exclude this factor from consideration as a vitiating element in the impugned transfer. Accordingly, this aspect requires consideration at the outset.
XXX XXX XXX "23. .......Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinised judicially, there are no judicially manageable standards for scrutinising all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
"24....Challenge in courts of a transfer when the career prospects remain unaffected and there is no detriment to the government servant must be eschewed and interference by courts should be rare, only when a judicially manageable and permissible ground is made out. This litigation was ill- advised."
9.3 The issue involved in the present case is somewhat similar in the case of Mohd. Masood Ahmad Vs. State of U.P. and others; (2007) 8 SCC 150wherein this Court in paragraph 8 has observed as thus:
"8. ..... In our opinion, even if the allegation of the appellant is correct that he was transferred on the recommendation of an MLA, that by itself would not vitiate the transfer order. After all, it is the duty of the representatives of the people in the legislature to express the grievances of the people and if there is any complaint against an official the State Government is certainly within its jurisdiction to transfer such an employee......"
9.4 It is not tangential to mention that this Court in the case of State of Punjab Vs. Joginder Singh Dhatt; AIR 1993 SC 2486 observed as thus: -
"3........It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting........."25 OA No. 3603/2023
9.5 It is also imperative to refer the judgement of this Court in the case of Ratnagiri Gas and Power Private Limited Vs. RDS Projects Limited and Ors.; (2013) 1 SCC 524where it reiterated one of the pertinent principles of administrative law is that when allegations of malafide are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer. The relevant excerpt is reproduced as thus:
"27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned........"
10. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India." 5.10 In above narration of facts and law, the present Original Application must fail on following counts:-
(i) There was no bar to seek TA/DA for transfer under Rules.
Latin maxim Volenti non fit injuria i.e. no injury can be done to a willing person, deserve to be applied in this case in law as well as on facts as applicant himself failed to seek TA/DA and/or joining time; rather he rushed to the Court seeking a stay). There is not even an iota of document/ representation to show that TA/DA and or joining time had been sought in writing and denied thereto any given point of time.
(ii) CCS Rules provides for joining time, 26 OA No. 3603/2023
(iii) The transfer order was neither stigmatic or malafide and is in consonance with Section 12.(1)(a) of THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 "transfer the aggrieved woman or "the respondent to any other workplace"
(iv) There is no wrong done in the event the relieving order and the transfer order are issued on the same day.
(v) Merely because there exist vacancies at particular place is no ground to seek retention as, it would be best left to the discretion of the organization more particularly, in light of recommendations of Internal Committee‟s Report. Rather it sub-serve the purpose of fair trial to applicant when there are serious allegations.
(vi) The applicant has deliberately chosen not to disclose that he has been transferred on the recommendation of Internal Committee Report to which he was fully aware of at the time of filing this OA.
(vii) Clause 10.2 of Transfer Policy does not come to the rescue of the applicant as the same is applicable in Rotational/Routine Transfer case even though the applicant would have been rightly in zone of consideration of promotion but for pending allegations. Further, clauses 12 and 21 of the Transfer Policy cannot be ignored, the present case falls within the rigors of the clauses 12 and 21.27 OA No. 3603/2023
(viii) Right to be considered for promotion is altogether a distinct and independent action to that of transfer, which is an incidence of service, thus, both cannot be equated.
(ix) There is already a memorandum dated 27.6.2022 issued under CCA Rule, 1964 (even though operation is stayed in OA No.00660/2022, Cuttack Bench, Central Administrative Tribunal).
(x) Last but not the least, the applicant has already spent 7 years 3 months at his place of posting. Even if we go by clause 4 of the Transfer Policy, which the applicant also seeks to rely upon, he does not merit relief as prayed for.
6. We are conscious that we are dealing with "Transfer" not a "Murder Trial", wherein procedural safeguards tend to protect the guilty rather than exonerate the innocent. Legal excuses made during the course of oral as well as written submissions to continue for such posting does not appeal to us.
7. CONCLUSION 7.1 In view of the above, we find no infirmity in impugned Transfer Order followed by relieving order(s). 7.2 We dismiss the present OA while expunging the remarks made in para 5 of additional affidavit. We also express our 28 OA No. 3603/2023 strong displeasure towards the applicant for making unwarranted and wholly extraneous comments in the additional affidavit. These are scandalous in nature and deserve condemnation.
7.3 Needless to say the applicant is entitled to seek TA /DA as per Rules.
7.4 All pending MA(s), if any, also disposed of.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟