Central Administrative Tribunal - Bangalore
Sathish Kumar A vs South Western Railway on 23 July, 2021
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OA.No.170/144/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/00144/2021
&
MISCELLANEOUS APPLICATION NO.170/00083/2021
ORDER RESERVED ON 24.06.2021
DATE OF ORDER: 23.07.2021
CORAM:
HON'BLE SHRI SURESH KUMAR MONGA, MEMBER (J)
(On video conference from Central Administrative Tribunal, Chandigarh Bench,
Chandigarh)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
(On video conference from his residence at Bangalore)
1. Sathish Kumar A.
S/o Acharya Manu
Aged 29 years
Track Maintainer
O/o Senior Section Engineer
South Western Railway
Chennapatna, R/o #1034, SJH Road
Vidyaranyapuram
Mysuru-570008.
2. Vishwas Y.K.
S/o Kempa Bomma
Aged 34 years
Track Maintainer
O/o Senior Section Engineer
South Western Railway, Mandya
R/o #474, Visweshwaraiah Road
Yeliyur-571402.
3. Chandrashekara B.
S/o Bheemaiah
Aged 32 years
Track Maintainer
O/o Senior Section Engineer
South Western Railway, Mandya
R/o Devaradoddi Village
Anjanapura Post-562159
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OA.No.170/144/2021/CAT/Bangalore Bench
Ramanagara Dist. .....Applicants
(By Advocate Shri K.Shivakumar - through video conference)
Vs.
1. Union of India
Rep. by General Manager
South Western Railway
Rail Soudha, Gadag Road
Hubballi-580020.
2. Divisional Railway Manager
South Western Railway
Bengaluru-560023. ....Respondents
(By Advocate Shri N.Amaresh - through video conference)
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
i. Direct the respondents to relieve the applicants to carry out their transfer to Rail Wheel Factory in terms of the office order dated 05.07.2019 (Annexure-A2) immediately and ii. Grant any other relief or reliefs as deemed fit and proper in the interest of justice and equity.
2. The applicants have also filed MA.No.83/2021 making therein a prayer to condone the delay of 07 months in filing the Original Application.
3. Despite several opportunities having been granted to the respondents to file reply to MA.No.83/2021, they failed to file the same.
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OA.No.170/144/2021/CAT/Bangalore Bench
4. In the interest of justice, prayer made in the OA.No.83/2021 is allowed for the reasons stated therein by condoning the delay.
5. The facts of the case as pleaded by the applicants are as follows:
a) The applicants are working as Track Maintainers in Level-1 (GP Rs.1800) in South Western Railway.
b) A notification was issued on 12.04.2019 by the Principal Chief Personnel Officer, South Western Railway, Hubballi calling options from the employees in level-1 of all departments of South Western Railway for transfer to Rail Wheel Factory, Yelahanka, Bengaluru on request transfer basis. It was stated in the notification that the option is to be exercised on or before 26.04.2019 and the option once exercised would be final. The applicants exercised their option for transfer to Rail Wheel Factory, Yelahanka along with others in response to the said notification.
c) After scrutiny of the applications, the approval of the General Manager was communicated to the divisions by the Headquarter's office for transferring the employees. The Bengaluru division issued an office order on 05.07.2019 stating that 'the approval is hereby communicated for inter Railway transfer of the following 39 employees in level 1 of various departments of Bengaluru division of South Western Railway as Helpers in level 1 to Rail Wheel Factory, Yelahanka on their own request on bottom seniority basis subject to terms and conditions laid down in the RWF/YNKs memorandum dtd.03.06.2019'. In this office order, the applicants' names are figuring at Sl.No.34, 23 & 32 respectively. 4
OA.No.170/144/2021/CAT/Bangalore Bench
d) The respondents issued one more office order on 18.07.2019 communicating approval for transfer of 27 employees of Bangalore division. In a subsequent office order dated 05.07.2019, employees placed at Sl.no.1 to 20, 26, 29 & 36 were relieved and the employee figuring at Sl.No.8 in the office order dated 18.07.2019 was also relieved overlooking the seniority of the applicant. The employees were told that the employees placed in the list would be relieved as per their position in the list. However, it was not followed by the respondents and the employees were selectively relieved as per their choice.
e) The Railway Board issued an instruction on 26.11.2019 about relieving of Railway employees in case of request transfer. In the last para of the order it has been stated as under:
"Where delay in relieving of the employee after orders are issued exceeds/is likely to exceed 3 months, the case should be put up by Sr.DPO/WPO to DRM/CWM as the case may be giving specific reasons for the delay and likely date of relief."
This was also not followed in the case of the applicants by the Bengaluru division and neither the reason for not relieving the applicants nor the likely date of relief were made known(Annexure-A4).
f) Further the Principal Chief Personnel Officer of South Western Railway at Hubballi, has advised on 01.10.2020 that the General Manager has decided that the relieving would be done by respective Personnel Officers without routing the file through Branch Officers. This has also not been followed by the Bengaluru Division.
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OA.No.170/144/2021/CAT/Bangalore Bench
g) Since the applicants are technically qualified and their transfer to Rail Wheel Factory would be of much help for their elevation in the career and there is no opportunity for their elevation in the present post, they exercised option for transfer on bottom seniority. Though their request was considered and orders issued by the respondents there was no sign of them being relieved on transfer. Though the applicants were relieved from their field office to the personnel department, the personnel department returned them back to their field office without assigning any reason. The relief letter issued by the field offices are collectively placed as Annexure-A6. Though the Divisional Railway Manager had endorsed to the Personnel officer of Bengaluru Division the fact of the relief letters issued by the field offices to the applicants to relieve them immediately, it has simply been ignored by the authority.
h) In the case of the applicants, the branch officer of the applicant sent him back on 15.06.2020 stating that he had been relieved without adhering to seniority list. But overlooking the seniority, the following employees were relieved by the respondents for the reasons best known to them. i. Sl.No.26, 29 and 36 (Junior to applicant No.2 in the office order dated 05.07.2019).
ii. Sl.No.8 in the office order dated 18.07.2019 (junior to all the applicants).
iii. Yuvaraj, Trolley man figuring in the office order dated 19.07.2019. 6
OA.No.170/144/2021/CAT/Bangalore Bench In the case of the second and third applicants, they were relieved back to their field offices by the Personnel Officer of the Bengaluru division on 30.07.2019 without assigning any reason.
i) As their grievances were not solved, the first applicant submitted representations to the General Manager (1st respondent) on 26.11.2020 and 28.12.2020. Similarly applicant no.2 also submitted representations to the General Manager on 31.01.2020, 31.08.2020, 26.11.2020, 28.12.2020, 21.01.2021 and to Divisional Railway Manager on 03.02.2021 and the applicant No.3 submitted representation to the General Manager on 31.01.2020. But no action has been taken so far on any of their representations.
6. The respondents in their reply statement have averred as follows:
a. A notification No.SWR/P.220/Options RWF-2019 dated: 12.04.2019 was issued by PCPO/SWR/UBL calling options from all the employees in Level-1 (GP Rs.1800) of South Western Railway for transfer to Rail Wheel Factory, Yelahanka, Bengaluru on request transfer basis. The same was notified by Personnel Department/Bengaluru Division vide a Notification No.B/P.676/M&E/CP/Options/RWF, dated: 15.04.2019. b. In response to the above, the applicants along with other employees of this Division have exercised option for the same and accordingly their applications were forwarded to this office by their immediate supervisors/SSEs/PWAY vide letter dated: 24.04.2019 and 25.04.2019. 7
OA.No.170/144/2021/CAT/Bangalore Bench The applications received from all the departments have been forwarded to PCPO/SWR/UBL vide this office letter dated 02.05.2019. Further to the above, integrated seniority of all the employees of SBC Division viz; TM-IV/Helper/Safaiwala (containing 272 employees), in Level-1 who have exercised option to RWF/YNK against the notification dated:
15.04.2019 was prepared and the same was sent to PCPO/SWR/UBL vide this office letter dated 24.05.2019(Annexure-R1). In the integrated seniority list, the applicant-1, Sathishkumara. A is available at Sl.No.83, applicant-2,Vishwas.Y.K. is available at Sl.No.69 and applicant-3, Chandrashekar.B is available at Sl.No.81.
c. Office orders were issued for 126 employees, out of which 113 employees are belong to Engineering Department alone. The employees have been relieved in a phased manner duly maintaining their priority as per the instructions of Sr.DEN/Co-ord from time to time vide Sr.DEN/Co-ord letters dated: 25.07.2019, 02.08.2019 & 23.08.2019. d. The applicants have been relieved by the respective supervisors to this office as follows:
i. Shri Sathish Kumara A. was relieved by SSE/P.Way/CPT vide their letter No.B/P.677/Transfers/CPT, dated 13.06.2020 and the employee has reported to this office on the same day. As per the instructions of Sr.DEN/W/SBC vide his letter No.B/W.135/Transfer, dated 15.06.2020 the employee was sent back to his unit since the employee was relieved by SSE/PWAY/CPT without adhering to priority.8
OA.No.170/144/2021/CAT/Bangalore Bench ii. Likewise, Shri Vishwas Y.K. and Chandrashekar B., TM's/MYA were relieved by SSE/P.WAY/MYA vide their letter dated 24.07.2019. Both the employees have reported this office on 25.07.2019. As per the instructions of Sr.DEN/Co-ord the employees were sent back to SSE/PWAY/O/MYA since they were relieved without the consent of controlling officer (Sr.DEN/Co-
ord) by SSE/PWAY/MYA and also without adhering to priority. Since the priority of the applicants is not reached for considering them to relieve to RWF/YNK they were sent back to their respective units to make sure the employees are relieved as per their priority.
e. There is acute shortage of Track Maintainers in this Division. There is overall vacancy of 21.16% (MYA and CPT section). There are many works under progress like CTR, Deep Screening, TRR(S), New blast siding works in MYA Section in addition to routine maintenance work. Track Maintainers being safety related job employees could not be relieved. That total 113 employees were supposed to be relieved to RWF/YK, out of which 40 nos. of Track Maintainers of this Division have already been relieved except unwilling employees. It is submitted that 41 nos. of Woman Track Maintainers have also been relieved as special transfer case against change of category to other departments in the Division till date. This lead to huge number of vacancy of Track Maintainer category. In such scenario it is very difficult to maintain the Track as activities like daily patrolling by Key Man, Gate Man for LC gates, monsoon patrolling etc. all essentially need man power apart from 9 OA.No.170/144/2021/CAT/Bangalore Bench regular maintenance of track. Safety being the paramount importance, the above said employees were not relieved due to huge vacancies. f. Once further RRC recruitment for Track Maintainers takes place and new Track Man joins to the section the transfer case of the above said employees to RWF/YNK will be considered on priority basis.
7. The applicants have filed their rejoinder wherein they averred as follows:
a. The relieving is to be done by the Senior Divisional Personnel Officer without routing the file through Branch Officer. Thereby there was no necessity to seek the permission of the Branch Officer. So the Personnel Branch has acted against the orders of the General Manager. b. Besides, though the Divisional Railway Manager (Respondent No.2) had endorsed on the face of the relieving memo of the applicants to relieve them immediately, no cognizance has been given by the Personnel Branch for the endorsement of the DRM.
c. The Railway Board order dated 26.11.2019 has categorically stated that where delay in relieving of the employee after orders are issued exceeds 3 months, the case should be put up to DRM by the Sr.DPO by giving specific reasons for delay and likely date of relief. In the case of the applicants though there is a delay of 9 months this has not been followed.
d. It has been admitted by the respondents that the juniors have been relieved out of priority. But the reason stated by them that they had 10 OA.No.170/144/2021/CAT/Bangalore Bench applied for one way transfer separately and not in response to the notification calling option for transfer to RWF is not convincing as their applications were not placed in their reply to substantiate their stand. If they had not applied in response to the notification then how their names were included in the list of approval communicated by the General Manager needs clarification.
e. In para 5 of the reply, it has been stated that there was acute shortage of Track maintainers in the division and these applicants were not relieved due to huge vacancies. If the vacancies are the only reason for relieving the applicants, the respondents are bound to answer as to how they could relieve several employees selectively keeping so many vacancies. As per the knowledge of the applicants, about 88 track maintainers have been relieved from this division from June 2019.
f. The respondents have stated as if these three applicants are relieved the track maintenance work will come to a grinding halt. Even after filing their reply to the OA on 26.03.2021, they have relieved the track maintainers of the very same section that too for posts such as General Assistant, the post which is considered as more important by the respondents for day to day functioning of Railways.
g. They have further stated in their reply that major works are in progress in Mandya and Channapatna section. If so how so many Track maintainers from the very same section were relieved is not known and to be clarified by the respondents.
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OA.No.170/144/2021/CAT/Bangalore Bench
8. Heard the learned counsels for the parties.
9. The facts of the case reveal that the applicants had been transferred on inter- railway transfer basis from various departments of Bangalore Division of South Western Railway to Rail Wheel Factory, Yelahanka, on their own request on bottom seniority basis subject to the terms and conditions laid down in the Rail Wheel Factory/ YNK's Office Memorandum dated 03.06.2019. This order was issued on 05.07.2019 with the due approval of the General Manager. However, even after a span of almost more than 2 years, the applicants have still not been relieved from their posts to enable them to join at the Rail Wheel Factory.
10.The reasons given by the respondents for not relieving the applicants from the present posts are there is acute shortage of Track Maintainers in the division and they would be relieved once their replacement is found.
11.However, as stated by the respondents themselves, more than 40 Track Maintainers of the Bangalore Division have already been relieved. Separately, 41 nos. of Woman Track Maintainers have also been relieved as special transfer case against change of category to other departments in the Division till date. Hence, the argument given by the respondents that these three applicants cannot be relieved on the grounds that it would adversely affect the routine maintenance work of Tracks does not appear to be convincing at all. It is obvious from the replies given by the respondents that there has been a lack of communication between the personnel department and the line department, which has led to a situation where the orders of transfer issued by the General Manager in the year 2019 have not yet been implemented. The General Manager concerned is authority ultimately 12 OA.No.170/144/2021/CAT/Bangalore Bench responsible for the management of the railway work and it is strange to observe that the personnel officers are not relieving the applicants despite a lapse of more than two years.
12.This delay adversely affects the future service prospects of applicants since they would be joining their new assignment in the Rail Wheel Factory on bottom seniority basis. The people joining on the posts earlier than them in the Rail Wheel Factory would apparently become senior to them for no fault of the applicants. In such a situation, the entire process of not relieving the applicants in time despite the orders of transfer being issued more than two years back seems to be without any rational basis and a colourable exercise of power by the Personnel Department of the Railways.
13.Keeping in view the above facts, the OA is allowed and the respondents are directed to ensure that the applicants are relieved and the Office Order dated 05.07.2019 is implemented within a period not exceeding one month from the date of receipt of a copy of this order.
14.However, there shall be no orders so as to costs.
(RAKESH KUMAR GUPTA) (SURESH KUMAR MONGA)
MEMBER(ADMN) MEMBER(JUDL)
/ps/