Central Administrative Tribunal - Ernakulam
P.A. Sayed Mohammed vs Union Of India on 16 November, 2015
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION No.180/00185/2015
&
ORIGINAL APPLICATION NO. 180/00320/2015
MONDAY, this the 16th day of November, 2015
CORAM :
HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER
OA/180/00185/2015:
P.A. Sayed Mohammed, aged 32 years,
s/o Hassan Kunju,
Health & Malaria Inspector Grade -II,
Southern Railway, Palakkad Junction,
Residing at : Cholasseriyil House,
Nellimattom P.O., Kavalangadu,
Kothamangalam, Ernakulam Dist. ..... Applicant
(By Advocate Mr.T.C.Govindaswamy)
versus
1. Union of India, represented by the
General Manager, Southern Railway,
Head Quarters Office, Park Town P.O.,
Chennai -600 003.
2. The Chief Personnel Officer, Southern Railway,
Head Quarters Office, Park Town P.O.,
Chennai -600 003.
3. The Chief Medical Superintendent,
Railway Hospital, Southern Railway,
Palghat Division, Palghat -678 002.
4. The Sr. Divisional Personnel Officer,
Southern Railway, Divisional Office,
Palghat -9
5. Assistant Health Officer, Railway Hospital,
Southern Railway, Palghat -678 002.
6. Ms.Rathy R., Leave Reserve Health &
Malaria Inspector Grade -II, Southern Railway,
Palakkad - 9. .... Respondents
[By Advocate Mrs. P.K.Radhika (R1-5),
Advocate Mrs. Shameena Salahudheen (R6)]
OA/180/00320/2015:
Smt. Rathi R., aged 32 years, w/o Ajith Chandran,
Health & Malaria Inspector Grade-II,
Southern Railway, Palakkad Junction,
Residing at 'KAVYAM', Sekharipuram P.O.,
Palakkad -678 010 ..... Applicant
(By Advocate Mrs. Shameena Salahudheen)
versus
1. Union of India, represented by the
General Manager, Southern Railway,
Chennai -600 003.
2. Chief Personnel Officer, Headquarters office,
Personnel Branch, Southern Railway,
Chennai -600 003.
3. Chief Medical Director, Headquarters Office,
Personnel Branch, Southern Railway,
Chennai -600 003.
4 The Chief Medical Superintendent,
Railway Hospital, Palghat Division,
Southern Railway,
Palghat -678 002.
5. The Senior Divisional Personnel Officer,
Divisional Office, Southern Railway,
Palakkad Division, Palakkad-9.
6. Assistant Health Officer, Railway Hospital,
Palakkad Division, Southern Railway,
Palghat -678 002.
7. Divisional Railway Manager, Southern Railway,
Palghat Division, Palakkad -9
8. Sri P.A.Sayed Mohammed,
Health & Malaria Inspector Grade -II,
Southern Railway, Palakkad -9. . . . . Respondents
[By Advocate Mrs. P.K.Radhika (R1-7),
Advocate Mr.T.C.Govindaswamy (R8)]
These Original Applications having been heard on 16.10.2015, this Tribunal
on 16-11-2015 delivered the following:
COMMON ORDER
Per HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER These two cases are being disposed of by way of this common order since the applicants in both the cases are involved in the impugned order of transfer and posting issued by the respondent Railway.
2. For the purpose of easy reference, parties and documents in both these cases are referred to as arrayed in OA No. 185/15 except when they are referred to specifically.
3. Applicants in both the cases are Health & Malaria Inspectors (H&MI). Grievance of the applicant in OA No. 185/15 is that when he was transferred from South Central Railway to the Southern Railway on an inter-railway transfer he was posted at Palghat Jn vide Annexure A/7, but without even applying for a transfer he was transferred to Mangalore Central within a short time vide Annexure A/1 order. He states that when he joined Palghat on 22.9.2014 he had shifted his family and made all arrangements for staying at Palghat which is more close to native place.
4. Applicant in OA No. 320/15 is an H&MI working in the post of Leave Reserve H&MI at Palghat Jn. When she proceeded on maternity leave she had applied for transfer to the regular post of H&MI at Palghat Jn. On her return from maternity leave though she was posted in the regular vacancy of H&MI at Palghat Jn, vide Annexure A/8 (A/1 transfer order impugned in OA No. 185/15), due to filing of OA No. 185/15 she was not in a position to join the regular post of H&MI at Palghat. She is particularly aggrieved by Annexure A/1 order (in OA No. 320/15)dt 20.04.15, directing her to work at Kannur as Leave Reserve H&MI from 25.04.14 to 01.05.15. In both the cases interim orders have been granted by this Tribunal. The interim order in OA No.185/15 was to keep in abeyance the order issued to the applicant transferring him to Mangalore whereas in OA No. 320/15 the interim order was that the applicant shall be retained in Palghat.
5. While working as Health & Malaria Inspector (H&MI) at Guntakkal in the South Central Railway, applicant in OA 185/15 applied for inter- railway transfer to Southern Railway vide Annexure A/5. He was given inter- railway mutual transfer as H&MI to the Madras Division of Southern Railway. Accordingly when he reported at the Headquarters Office of the Southern Railway at Madras, he was posted as H&MI at Mangalore Central within the Palghat Division of Southern Railway, vide Annexure A/6. It is worthwhile to quote the Annexure A/6 office order issued by the Southern Railway:
Photograph SOUTHERN RAILWAY OFFICE ORDER No.MD/103/2014, DATED : 19.09.2014 Sub: Inter Divisional request transfer and Inter-Railway mutual transfer of Shri Chebrolu Mohan Kumar (UR), H&MI/MAS Division, Southern Railway with Shri P.A.Sayed Muhammed (OBC), H&MI/GTL Dn./SC Rly. Medical Department. Ref: (1) This Railway's letter of even No. dated 09.07.14.
(2) GM(p)/SC Rly's memo No. SCR/P.HQ/222/MD/SM&CM dt 27. . .14 (3) DRM(P)/GTL/SC Rly.lr. No. SCR/P-GTL/222/MD-8/SM/PA dt 15.09.2014. (4) This Rly's O.O. No. MD/102/2014 dt.19.9.2014.
Shri N.S. Jinesh H&MI, MAQ of PGT Dn. Is transferred and posted as H&MI Thalassery (Stn) of PGT Dn. at his own request. He is not eligible for any privileges on transfer account as his transfer is ordered at his own request. I. Shri P.A.Sayed Muhammed (OBC) H&MI in Pay Band Rs. 9300-34800 with Grade Pay Rs. 4200/- GTL Dn/SC Rly. having been relieved from SC Railway on 15.09.2014 vide DRM(P)/GTL Dn.SC Rly letter under reference (III) cited consequent on his inter-Railway mutual transfer with Shri Chebrolu Mohan Kumar (UR), H&MI/MAS Dn. S.Rly, has reported to headquarters Office/ Southern Railway on 16.09.2014 (F/N).
On reporting to Southern Railway, he is posted to MAQ of PGT Dn. as H&MI in Pay Band Rs. 9300-34800 with Grade Pay Rs.4200/-, under CMS/PGT vice Shri N.S.Jinesh of Para 1 above.
The period from 16.09.14 is treated as waiting for orders. He is not eligible for any benefits on transfer account including joining time as the transfer is ordered at his own request.
The employee will take his seniority in the new seniority unit to which he is transferred as H&MI in Pay Band Rs.9300-34800 + Grade Pay Rs. 4200/- as per extant instructions applicable to mutual transfer.
He should not seek re-transfer to his parent Railway (i.e) SC Railway at a later date. However his lien will be maintained by that Railway till he is confirmed in this Railway. His transfer is ordered subject to the condition that he is free from DAR/SPE/Vigilance cases pending against him.
This has the approval of CMD/MAS.
Headquarters office, sd/-
Personnel branch (K.Babu)
CHENNAI-600 003. Assistant Personnel Officer/Engg.
For Chief Personnel officer No.P(S)/676/VIII/IRT/H&MI/Vol.IV Dated : 19.09.2014. Copy to : . . . . .
The employee concerned - He is directed with instructions to report to DRMP/PGT.
(Bold letters supplied) 6 Inspite of the specific and clear order of posting him at Mangalore Central, respondent No.4 issued A/7 order posting him against an existing vacancy of H&MI at Palghat. According to the respondents, A/7 decision was taken by respondent No.4 as per the approval of the competent authority as indicated in Annexure R/2 letter dt 24.9.15 issued by respondent No.3, the Chief Medical Superintendent of the Palghat Division. While the applicant was so working at Palghat Jn. he received Annexure A/1 impugned order of transfer. It is stated in Annexure A/1 that such transfer was being ordered on his request. However, vide Annexure A/2 corrigendum dt 23.1.15 it was clarified that the transfer of applicant from Palghat Junction to Mangalore Central is to be to be treated as 'on administrative ground' instead of request transfer.
7. The applicant in OA No. 320/15 states that she was appointed as H&MI on 12.12.12 vide Annexure A/2 order in the Palghat Division against an existing vacancy where she was posted in the Leave Reserve vacancy. Thereafter she got married. On 16.6.2014 she entered on maternity leave and gave birth to baby boy on 6.7.14. In the meantime there arose a vacancy of regular post of H&MI due to the transfer of Smt. Reena in September 2014 to Tirunelveli. The applicant was the first person to request for the regular post of H&MI at Palghat Jn (vide A/3 & A/4 requests). Though her request was sanctioned by the respondent railway vide A/8 order (Annexure A/1 in OA No. 185/15), due to the filing of OA No. 185/15 she could not take up the regular post of H&MI at Palghat and she was treated by the respondents as leave reserve H&MI. Being a leave reserve she is obliged to attend to the duties of the H&MI officials in other places when they take leave.
8. Respondent Railway filed a reply contending that the applicant in OA No. 185/15 was temporarily posted at Palghat in the existing vacancy of applicant in OA No. 320/15 who had gone on maternity leave. According to the railway, this was done considering the prevailing situation at Palghat Divisional Headquarters, after discussing the matter with Railway Manager, Palghat. 9. Heard the counsel for the parties. Mr.T.C.Govindaswamy, learned counsel for the applicant in OA No.185/15 and for respondent No.8 in OA No. 320/15; Mrs. Shameena Salahudheen for the applicant in OA No. 320/15 and for respondent No.6 in OA No. 185/15 and Mrs. P.K.Radhika, learned counsel for the respondent Railway. Perused the record produced in both the cases.
9. At the outset of her arguments, counsel for the Railways Mrs.P.K.Radhika submitted that the post of H&MI is a zonal - level post and the controlling authority for the said post is the zonal office. in this case the zonal office is the Southern Railway Headquarters at Chennai.
10. It is not in dispute that Applicant in OA No.185/15 has been transferred and posted on the basis of an inter- railway mutual transfer vide A/5 &A/6 office orders. It appears that on the basis of such orders he reported at the Personnel Branch of the Divisional Office, Palghat and the Senior Divisional Personnel Officer Palghat ( Respondent No.4 in OA 185/15) decided to post him at Palghat junction station against existing vacancy vide Annexure A/7. It reads:
No.J/PJ/P 676/X/MES/Vol.II Dt. 25.09.2014.
CHL/PGT
Sub:- Inter Railway Mutual transfer of Shri Chebrolu Mohan Kumar (UR) H&MI/MAS Division, southern Railway with Shri P.A.Sayed Muhammed (OBC), H&MI/PGT Dn./SC Rly.medical Department.
Ref:- CPO/MAS O.O. No. MD/103/2014 DATED 19.09.2014 Shri P.A.Sayed Muhammed (OB) H&MI in Pay Band Rs.9300-34800 with Grade Pay Rs. 4200/-, GTL Dn./SC Rly relieved from SC Railway on 15.09.2014 and reported in this office on 22.09.2014 and posted at PGT Jn., Station against an existing vacancy. His date of joining may be advised to this office.
This has the approval of the competent authority Regular office order will follow (photo of applicant) Specimen Signature Sd/-
(SUDHAGARAN C) APO(E) Sr. Divisional Personnel officer S.Railway, Palghat.
Obviously, the H&MI post being a post controlled by the Zonal Office, respondent No.4 (Senior Divisional Personnel Officer was obliged to post the applicant in OA No. 185/15 at Mangalore Central station itself as directed in Annexure A/6 in that OA. But as there was a vacancy of H&MI at Palghat Jn., he was posted at Palghat Jn. temporarily vide Annexure A/7 and as decided by the authorities at Palghat division vide Annexure R/2. Annexure R/2 reads:
Southern Railway No.J/MD.8/2014-15 Divisional Office/Medical Branch Palghat, Date: 24/09/2014 NOTE Sr.DPO/PGT Sub: Posting of Sayed Muhammed P.A., H&MI in Palghat Division. Ref: O.O.No. MD/103/2014 dated 19/09/2014. Vide reference above P.A.Sayed Muhammed (OBC) H&MI in pay band Rs.9300-34800 with grade pay Rs.4200/- is posted to MAQ in Palghat Division. However, taking the prevailing situation at Palghat Divisional Headquarters and as discussed with DRM/PGT, the said H&MI will work at Palghat Jn. Station, against an existing vacancy and till further communication in this aspect. This does not have any bearing on the present working condition at MAQ.
Sd/-
CMS/PGT (underlining supplied)
11. Thus it is clear that applicant in OA No. 185/15 basically did not have any right to be posted at Palghat Jn. As ordered by the Headquarters office of the Zonal Railway he was to be posted at Mangalore Central. It is stated by the respondent railway that his posting in Palghat Jn. in the existing vacancy was by way of a temporary arrangement. It is not clear from the record as to whether Respondent Nos. 3 & 4 had taken permission from the Zonal office to accommodate the applicant in OA 185/15 to the post at Palghat Jn. contrary to the order in A/6. Annexure R/2 Office Note (produced in OA No. 185/15) appears to be a plausible and meek justification for the detour made from the directions in Annexure A/6 order.
12. Respondents in OA No. 320/15 clearly states that such posting was done in the existing vacancy of applicant in OA No. 320/15 who had proceeded on maternity leave. If this is true, the applicant in OA No.185/15 has no right at all to be posted at Palghat. As per the provisions of the Maternity Benefit Act, 1961, when a women absents herself from work in accordance with the provisions of the Maternity Benefit Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.
13. In the instant case, the applicant in OA No. 320/15 was working as leave reserve H&MI at Palghat Jn. As per the provision of the Maternity Benefit Act, when she left the post for the purpose of child birth, when she returns she is entitled to be given the same place of posting from where she took leave and proceeded on maternity leave. Maternity benefits being a beneficial legal provision for women employees, the principles and philosophy behind the 1961 Act has to be liberally adopted in all establishments especially in those controlled by the Govt. of India and as per the provisions of Article 12 of the Constitution of India.
14. In OA No.185/15 the applicant says that he was transferred from Palghat to Mangalore vide Annexure A/1 not on the basis of any request made by him. In view of the express order of his posting at Mangalore Central there was no need for any request for shifting him Palghat Jn. Being an order from the Zonal office, the officials in the Divisional Office at Palghat arrayed as respondents are also bound by Annexure A/6 order, though in the meantime they made some temporary adjustments for him at Palghat Jn by way of Annexure R/2 and A/7. According to him he had shifted his family to Palghat and therefore it is difficult for him to shift again to Mangalore. This Tribunal finds no merit in that contention. It has to be noted from the wordings in Annexure A/7 and R/2 that they are temporary internal arrangements. Hence applicant in OA 185/15 cannot make any claim on the basis of Annexure A7.
15. It seems that he has sought the intervention of Trade Unions also for getting his posting at Palghat permanent. Annexure A/9 in OA No. 185/15 is a copy of communication sent by the Divisional Secretary of Southern Railway Mazdoor Union - Chennai addressed to Respondent No. 3. It reads:
CMS/PGT Date : 26/12/2014.
Sir,
Sub:- Transfer of H & MI:-reg.
Ref:- O O No.J/MD 16/2014
This union got a representation from Sri Sayed Mohammed P.A., H&MI/PGT. In his representation he stated that he had joined to PGT through mutual transfer from South Central Railway and joined PGT against a vacancy vide letter No.J/P 676/X/MES/Vol II dated 25.9.2014. But now as per the above reference letter he is transferred to MAQ stating that request. But sorry to state that he has not requested for a transfer to MAQ, moreover he has settled his family at PGT and now he is running the family smoothly.
Moreover Smt.Rathy R. is joined in the Railway only two years back moreover Sri Sayed Mohammed has worked for six years in a other Railway and recently only he go transfer in Palakkad. This unions view is that at present we will not post anybody to MAQ because MAQ area is going to be merged with Kokan Railway. If the administration is very particulars to post a H & MI to MAQ Smt. Rathy R, can be posted, because she is new to Railway and in service she is junior to Sayed Mohammed. Not only that Sri Sayed Mohammed is posted against a vacancy, and how he will be shifted from PGT. So this union demand that Sri Syed Mohammed may not be shifted from PGT ad he may be retained at PGT itself.
Thanking you, Yours faithfully, Sd/-
(P.Unnikrishnan) (underlining supplied)
16. It appears that by Annexure A/9 the Union has recommended the case of the applicant in OA No. 185/15 without noticing certain realities and legal obligations on the part of the employer to a woman employee who had returned from maternity leave. It appears that the Union has turned a Nelsonb�s eye to Annexure A/6 order, issued by the Zonal office at the time when he was taken into the service of Southern Railway by A/5 inter railway mutual transfer, whereby he was posted to Mangalore. Union has not adverted to the fact that Annexure A/7 order is transient in nature in view of Annexure R/2 office note. The Union seems to have also failed to take note of the fact that the applicant in OA No.320/15 had proceeded on maternity leave and that it was in that vacancy the applicant in OA 185/15 was temporarily posted. The Union seems to have further failed to take note of the relevant provisions in Maternity Benefit Act 1961 and the policy to be followed by the Government / Railway in the matter and posting of women employees who return from maternity leave. It appears that the applicant had misled the Southern Railway Mazdoor Union for issuing an Annexure A/9 intimidating letter to Respondent No. 4 in OA 185/15. Probably he was under
the impression that by the intervention of the Union he could consolidate his temporary posting at Palghat Jn, catapulting the Applicant in OA. 320/15 to Mangalore and thereby he could avoid the Annexure A6 posting at Mangalore Central. This Tribunal feels disturbing to see that the Union in Annexure A/9 has made a demand for transferring a woman employee on her return from maternity leave, from her original posting at Palghat Jn to Mangalore on the ground that she is junior and that the applicant in OA185/15 had put in a longer service at Guntakkal, forgetting that fact that he has come to the Southern Railway on loss of seniority and that she is now senior to him in his new posting. No railway authority and, for that matter, not even an employeesb� union shall be a party to an adverse posting in respect of a woman employee who seeks posting at the same place from where she had gone for maternity leave.
17. It appears that there were vacant posts of H&MI at Palghat Jn. It is seen from the records in OA No. 320/15 that the applicant therein had requested for posting her as a regular H&MI rather than as a leave reserve H&MI. Since she was already in service while she made such a request and as she is senior to the applicant in OA 185/15, her claim should have been given priority over the claim made by him through the Union (see Annexure A/9 in OA 185/15). Applicant in OA No. 185/15 being an inter-railway mutual transferee he joined the new railway at the bottom seniority. Hence he cannot claim any benefit of seniority he had in his post in the railway from where he had been transferred, except for the benefit of promotion as laid down by the Apex Court in Renu Mullick (Smt) case; 1994 1 SCC 373.
18. It appears that though the applicant in OA 320/15 had been given the regular post of H&MI, the said decision of the railway could not be implemented because of the interim order in OA No. 185/15 secured by the applicant therein. It appears to this Tribunal that the applicant in OA No. 185/15 was trying to stymie the efforts of the applicant in OA No. 320/15 to get back her posting at Palghat on her return from maternity leave. This is absolutely a reprehensible act on the part of the applicant in OA No. 185/15. It is highly disturbing to note that the Union also sided with him unfairly as discernible from Annexure A/9 (in OA No. 185/15).
19. In the result, this Tribunal finds no merit in the case of the applicant in OA No. 185/15. Applicant in OA No. 320/15 is entitled to be posted at Palghat. Since she has been posted at Palghat as H&MI vide A/9 (in OA 320/15) she has to be posted in the post shown therein at Palghat Stn. Respondents are directed to ignore Annexure A/9 communication in OA 185/15 and to consider implementing Annexure Nos. A/6 and A/1 orders of posting the applicant in OA No. 185/15 at Mangalore Central itself. This exercise shall be completed by the respondents Railway officials within 30 days from the date of receipt of a copy of this order. Ordered Accordingly.
20. OA No.180/00185/15 is dismissed. OA No.180/00320/15 is allowed to the extend as stated as above. No costs.
(U.SARATHCHANDRAN) JUDICIAL MEMBER jm