Central Administrative Tribunal - Delhi
Tara Chand (Udc) vs Union Of India on 24 December, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 2582/2013 MA 2339/2013 New Delhi this the 24th day of December, 2013 Honble Mr. A.K.Bhardwaj, Member (J) Tara Chand (UDC), Villge Bhatola, Post Office Baroli District and Tehsil Faridabad, Haryana. Applicant (By Advocate : Shri Ajesh Luthra ) VERSUS 1. Union of India, Through Foreign Secretary, Ministry of External Affairs, South Block, New Delhi. 2. Consul General, CGI, Toronto Also at PA-1, Section, Ministry of External Affairs, South Block, New Delhi. 3. Preet Pal Singh (Consul) Office of CGI Toronto Also at PA-2 Section, Ministry of External Affairs, South Block, New Delhi. Respondents (By Advocate Shri Rajinder Nischal) O R D E R
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has questioned the order dated 24.07.2013 issued by the Consul (HOC) Consulate General of India, Toronto relieving him of his duties at the CGI, Toronto in the forenoon of 24.07.2013 providing that he would leave Toronto for Delhi on 1.08.2013 after availing the preparation time of 8 days from 24.07.2013 to 31.07.2013. Mr. Ajesh Luthra, learned counsel for the applicant contended:-
The relieving order is bad as the same has been issued without giving any opportunity of hearing or show cause notice to applicant.
The respondents have not even cared to consider the letter dated 24.07.2013 submitted by the applicant for being provided with at least the reason for being relieved from CGI, Toronto and not even providing any copy of the transfer order.
The relieving of the applicant from CGI at Toronto is fall out of caste based discrimination.
Being a Scheduled Caste, the applicant is subjected to caste based remark and also treated inhumanly in as much as he was forced to remain in solitary confinement and nobody was allowed to interact with him.
Though he worked to the best of his capability, the employees, like Mr. Soumitra Kumar Mandol, Preet Pal Singh acted in derogation of the rules and made allegation against him.
2. In the counter reply filed on behalf of respondents, the aforementioned stand taken on behalf of applicant is denied and it is pleaded that the applicant has intended to malign the reputation of Consul General and its employees. The applicant was deployed in the Consular Section against the post of UDC and was assigned the work of processing passport renewal applications for Indian nationals. It could be detected that he cleared two cases of refugees who were not entitled for such service and for renewal of their passport, thus was shifted and assigned the seat which included the checking of black lists for processing visa applications and issue of surrender certificate. While discharging such function, again instead of processing for renewal of 51 passports of Indian nationals, the applicant processed them for surrender certificate, thereby canceling their Indian citizenship in the PRIDE (Passport Related Information Data Exchange) which resulted in problem to the passport holders who could not travel to India even in emergency/death of their relatives. Being responsible for maintenance of Consular cash book, he did not make the entry in the cash book for almost three months and committed a major lapse. Thus, he was assigned the job of checking of PAC (Prior Approval Category) of passport and weeding out the Consular record so that the remaining records could be scanned and digitized, i.e. a time bound exercise to be undertaken by the Consulate under the instructions of the Ministry. However, the applicant did not perform the said duty. During his employment in Consular Section, the applicant committed frequent mistakes and refused to undertake the work entrusted to him. The other officials in the Consulate who otherwise do a fair share of work had to assume additional responsibility for finishing the tasks assigned to applicant and rectifying the mistakes made by him. Shri Soumitra Mondal, another official against whom the allegations have been made by the applicant also belongs to Scheduled Caste category. The Consulate has hired a janitorial company for cleaning the premises on a regular day-to-day basis and hence the allegation made in para 4 (viii) of the Original Application that the applicant was forced to clean the room of Shri Preet Pal Singh, carry basket full of rubbish wastes, are incorrect. The Consul General is the head of the post and is accountable for efficient service to the public. The transfer of the applicant could be with his approval only and the allegations of malafide made against the respondent No.3 are of no consequence. The applicant has a history of creating indiscipline and had to be issued 5 memos/notes on 4.1.2013, 4.2.2013, 5.2.2013, 25.04.2013 and 4.07.2013 for serious lapses. He had accepted the order of his relieving and conveyed his willingness to travel on 1.08.2013 after availing 8 days preparation leave willingly. In the result, his journey tickets were booked for travel by air. He has also given a note dated 24.07.2013 requesting for conversion of his wifes emergency passage and his sons home leave passage to transfer passage upon his transfer to headquarters. His request was considered positively and was processed accordingly. The tenure for posting abroad by the Ministry could be extended or curtailed for functional reasons in public interest in terms of Rule 24 (2) of Part 1 of IFS (Pay, Leave, Compensatory Allowance and Other Conditions of Service) Rule, 1961 as amended from time to time. According to respondents, it is the applicant himself, who conveyed that he would like to send his personal effects by sea route and asked the administration to arrange the packers to come to his residence on 29th or 30th July, 2013. They have also denied that the other members of the Consulate ever harassed him and stated that Shri Anil Dobhal, IB Security Assistant went back to headquarters at his own request on medical grounds and Shri Brijpal, IB Security Assistant left the post on transfer on completion of his tenure and is presently posted to Embassy of India, Yangon.
3. Mr. Rajinder Nischal, learned counsel for respondents placed reliance on the judgments of Honble Delhi High Court in Param Hansh Mishra Vs. Union of India and Ors ( 2008 (2) SLJ 93 (Delhi) decided on 17.08.2007 and Honble Supreme Court in Airports Authority of India Vs. Rajeev Ratan Pandey and Ors ( JT 2009 (10) SC 472) decided on 17.08.2009. He further referred to the averments contained in para B of the reply, wherein a reference has been made to certain orders of this Tribunal. For easy reference, said para is extracted hereinbelow:-
The transfers are made to meet functional requirements, officers in MEA are required to serve anywhere in India and abroad as and when needed to do so by the Government. Transfer is an incident of service. It is obstinacy of applicant not to move from Toronto. Such obstinacy of an employee cannot be given precedence over administrative exigency. As per 24 (2) of Part 1 of IFS (Pay, Leave, Compensatory Allowance and Other Conditions of Service) Rules, 1961 ( as amended from time to time). The normal period of posting of a member of the Service at each category of post shall be as specified by the Government. The normal period of posting may be curtailed or extended by the Government in the exigencies of the public service. Transfer of Shri Tara Chand is done on functional grounds. If officers start defying transfer orders, the whole administrative machinery will collapse. In OA 1715/2012 of Shri S.Balachandran Vs. UOI in CAT (PB) New Delhi, the Honble Tribunal had impugned the order of Transfer and recorded that there is no law which requires reason to be recorded for transferring an employee. However, in the present case the transfer has been decided on justifiable reasons for posting the applicant out of CGI, Toronto. The applicant has no legal right to continue at a particular place as per his liking. In National Hydro Electric Power Corporation Vs. Sh. Bhagwan ( 2001) 8 SCC 574, the Honble Supreme Court has held that no Government servant has any legal right to the post forever at any particular place. In case of Maj. Gen. J.K.Bansal Vs. UOI ( 2005) 7 SCC 227 it has been held that the Court should not interfere with the order of transfer which is made for public interest and for administrative exigency. A similar view was taken in an earlier decision in the case of UOI Vs. H.Kitanya ( 1989) 3 SCC 445. Since the applicant was relived from the CGI, Toronto, at the time of grant of stay order, the cost of keeping the applicant in an expensive city like Toronto without work is costing the exchequer Rs.7500 a day.
4. In rejoinder, Mr. Luthra, learned counsel for the applicant submitted that the normal tenure of posting of applicant at Toronto should be three years and his pre-mature transfer back to headquarters just after nine months is punitive. He submitted that the refugees are not given any service by the Consulate and such cases are dealt with only by Shri Prit Pal Singh. The key of the Consular room wherein the PRIDE system are kept were taken away from the applicant on 31.01.2013, the processing of 51 passports took place in early February. The system could be accessed only by S/Shri Prit Pal Singh and Saumitra Mondal. Cash book was handled by Shri J P S Rawat. The job of weeding out of old records was indeed carried out by the applicant and Shri Mohammed. He also submitted that no such memos as referred to in para 4(xi) of the reply were served upon the applicant and he could know about the same only when he could see the counter reply of the respondents. Finally, he argued that the respondents need to conduct a detailed enquiry into the allegation made against the applicant before relieving him from the Consulate General of India, Toronto. In view of the stand taken on behalf of applicant, on 29.11.2013, this Tribunal directed the Consular General of India, Toronto to look into the matter and take a fair view. On 28.11.2013, Mr. Rajinder Nischal, senior standing counsel for Union of India produced a letter dated 11.11.2013 of Mr. Murugesan Ramaswamy along with the view of the Consulate General of India at Toronto. Having received the contents of said letter, Mr. Luthra, learned counsel for the applicant submitted that besides the Toronto, the Consulate General of India has its functions in other cities, namely, Vancouver and Ottawa, thus if the applicant was considered unsuitable at CGI, Toronto, possibility could be explored for utilizing his services at other places. Nevertheless, he submitted that such suggestion was made only to facilitate the solution sought to be explored by the Tribunal without going into the merits of the case and could not be treated as his consent to move out of CGI, Toronto. In view of the stand taken on behalf of applicant Mr. Rajesh Vaishnav, Director (Administration) and two other officers were summoned and were required to clarify their stand regarding the possibility of accommodation of applicant at Vancouver or Ottawa in the Chamber. The officers maintained that they would prefer to contest the OA on merits. Finally, after the aforementioned development, counsel for parties reiterated their submissions (ibid) on merits.
5. I have heard learned counsel for parties at length and perused the record. Normally an employee may not be subjected to frequent transfers, particularly when a normal tenure of posting at a particular station is suggested. However, at the same time, it is settled position of law that the transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another, is an ordinary incident of service and does not result in alteration of any of the conditions of service to his disadvantage and his transfer to a similar post in the same cadre is a normal feature and incident of Government service. In Param Hansh Mishra Vs. Union of India and Ors (2008 (2) SLJ 93 (ibid)), Honble Delhi High Court ruled as under:-
It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to his disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. xxx xxx
5. Again in Union of India v. S.L. Abbas 1993 SCC 2444, the Apex Court held that the guidelines issued by the Government and the policies, if any, regarding transfer of employees from one place to the other do not create any enforceable legal right in favor of the employee to insist that he should be continued at a particular place for any particular period or time. Orders of transfer will not, therefore, be interfered with simply because the same are in violation of the policy or guidelines. The petitioners argument that his transfer from Delhi to Jaisalmer is in violation of the guidelines regarding postings in Air Force, therefore, needs notice only to be rejected. Though, when there are certain guidelines regulating the transfer of an employee in a particular service or cadre and same are followed in respect of certain employees, any disregard to these in any particular case may not be countenanced, unless there is some reason or cause to do so, but in the present case, there is no such situation. The respondents have explained sufficient cause in their counter reply (ibid) for not retaining the applicant at CGI (Toronto).
6. As far as the plea of applicant regarding principles of natural justice is concerned, albeit there is no such law which provides for holding of enquiry to substantiate the reasons on the basis of which a Government servant is transferred, still to be fair to applicant, on 29.11.2013, I directed the Consulate General of India at Toronto to look into the stand taken by applicant in his rejoinder. After looking into the matter, The CGI also viewed that the transfer of the applicant out of CGI (Toronto) was in exigency of service. Before transferring an employee, the concerned authority need not hold a detailed enquiry to substantiate the correctness of the grounds for transfer or to give an opportunity to transfer the employee to disprove the allegation. As and when the employee finds that the order of his transfer or relieving is vitiated by colorable exercise of power, he always has remedy to make representation to the Superior Authority. The pendency of such representation may not be a ground to keep the order of transfer or relieving in abeyance, rather when the authority competent to transfer a Government servant (supervisory authority) is of the view that he is not suitable for the position in the department occupied by him at a given point of time and his transfer is in the interest of administration as well as exigency of service, it is always desirable that he joins duty at the new place of posting immediately. Such steps are also warranted to maintain congenial atmosphere in the organization.
7. As far as the plea of applicant regarding non-consideration of letter dated 24.07.2013 is concerned, it is so far well settled that the violation of principles of natural justice or the pendency of departmental enquiry against an employee at the time of order of transfer can be no ground to interfere with the transfer on the pretext that such transfer is stigmatic or tainted. In R.K.Sharma Vs. Union of India and Ors (OA 749/2013 decided on 09.05.2013), this Tribunal circumscribed the scope of interference with the transfer. Para 19 to 21 of the order read as under:-
In view of the aforementioned, as far as the scope of interference with transfer is concerned, following negative/positive aspects are well established.
Positive aspects (the grounds on which transfer order may be interfered ) (a ) it is vitiated by mala fide;
(b) not made in public interest but made for collateral purpose with oblique motive and in colourable exercise of power (B.Varadha Rao Vs State of Karnataka & Ors- vitiated by abuse of power) (c ) passed for extraneous considerations without any factual background or foundation.
prohibited by service rules; passed by the incompetent authority or; (i) being vindictive (Public Service Tribunal Bar Association Vs. State of UP and Ors- para 38 ) Negative aspects ( grounds not sufficient to interfere with transfer order) Order of transfer may not be interfered even if;
passed in violation of executive instructions/order result in relative hardship;
it is discriminatory (UOI and Ors Vs. N.P.Thomas (AIR 1993 SC 1605)- transfer of a Government personnel holding transferable post cannot be held to be vitiated on the ground that some of his juniors are retained at the same station and his transfer is against the policy of the Government that husband and wife should be posted in the same station;
Violative of the principles of natural justice;
There is pending complaint and departmental enquiry against the transferee (Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors. (2011) 12 SCC 137).
The relevant excerpts of the judgment of Honble Supreme Court in Registrar General, High Court of Judicature of Madras Vs. R.Perachi & Ors. (2011) 12 SCC 137, followed by this Tribunal, read as under:-
31. As seen above, the transfer was purely on the administrative ground in view of the pending complaint and departmental enquiry against first respondent. When a complaint against the integrity of an employee is being investigated, very often he is transferred outside the concerned unit. That is desirable from the point of view of the administration as well as that of the employee. The complaint with respect to the first respondent was that he was dominating the administration of the District Judiciary, and the District Judge had reported that his retention in the district was undesirable, and also that departmental enquiries were pending against him and other employees, with respect to their integrity. In the circumstances the decision of the then Chief Justice to transfer him outside that district could not be faulted.
8. In Airports Authority of India Vs. Rajeev Ratan Pandey and Ors (JT 2009 (10) SC 472), it has been held thus:-
5. In the case of State of U.P. v. Gobardhan Lal(2004) 11 SCC 402, while dealing with a matter of transfer, this Court observed that allegations of mala-fides must inspire confidence of the Court and ought not to be entertained on the mere asking of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference would ordinarily be made with an order of transfer. That the burden of proving mala-fides is on a person leveling such allegations and the burden is heavy, admits of no legal ambiguity. Mere assertion or bald statement is not enough to discharge the heavy burden that the law imposes upon the person leveling allegations of mala-fides; it must be supported by requisite materials. In the present case, as noticed above, at the threshold, no allegations of mala-fides have been pleaded in the writ petition. It is only by way of a supplementary affidavit that allegations of mala-fides have been put forth by the Respondent No. 1 but even such allegations are not supported by any material whatsoever. In a matter such as the present one where plea of mala-fides is not made in the writ petition and the assertion of mala-fides is made for the first time in a supplementary affidavit which too is not supported by any convincing and cogent material, the plea of mala-fides hardly deserved acceptance, prima facie, justifying stay of operation of a transfer order. The High Court has referred to a decision of this Court in the case of Arvind Dattatraya Dhande v. State of Maharashtra & Ors. (1997) 6 SCC 169 but in what we have said above, that decision cannot be applied to the facts of the present case. In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer policy in transferring the Respondent No. 1 from Lucknow to Calicut. In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly, be it at interim stage or final hearing. This is so because the courts do not substitute their own decision in the matter of transfer. In the present case, High Court fell into a grave error in staying the transfer order which, if allowed to stand, may cause prejudice to the administrative functioning of the appellant.
9. As far as the allegation of malafide against the respondent No.3 is concerned, I could ask the CGI, Toronto to look into the matter but even the said authority was of the view that the applicant needed to be transferred out. Since, it is not Shri Prit Pal Singh but it is CGI who is competent to transfer the applicant. The allegation of the applicant of caste (based) cannot be countenanced, for the simple reason, that Mr. Soumitra Mondal against whom such allegation is made also belongs to SC category.
10. In view of the aforementioned, interference with the impugned order is declined. However, it is made clear that non-interference with the said order of transfer of the applicant, may not be construed as acceptance of the correctness of the grounds enumerated by respondents in their counter reply for any other purpose in service career of the applicant. In other words, the relieving of the applicant from CGI, Toronto being inefficient may not be taken into account for any purpose other than that of the impugned transfer and relieving.
Subject to the aforementioned observations, OA stands disposed of. No costs.
(A.K. Bhardwaj ) Member (J) sk