Central Administrative Tribunal - Delhi
Sh. A.K. Gupta, Sh. K.S. Parmar And Sh. ... vs Union Of India (Uoi) And Ors. Through The ... on 3 January, 2008
ORDER Meera Chhibber, Member (J)
1. By this OA applicants have challenged order dated 09.5.2007 (page-15 to 17), speaking orders passed by respondents pursuant to direction given in OA No. 2876/2005 Ashok Kumar Gupta v. Union of India and Ors. decided on 18.9.2006 (page 21) and order dated 13.12.2005 whereby applicants were transferred to Allahabad Division while respondent No. 3 was transferred to Jhansi Division from Agra Division (page-29).
2. The brief facts as alleged by three applicants are that they were posted as Head Booking Clerk, Head Parcel Clerk and Head TTE in Agra Division but they were transferred to different Divisions vide order dated 24.12.2005 affecting their seniority and in contravention of Railway Board's letter dated 25.1.1969. Being aggrieved they filed different OAs. The said OAs were disposed of by directing the respondents to complete the departmental proceedings within a stipulated period and consider their posting back as per Railway Board's letter dated 25.1.69 and pass detailed and speaking order. Till such time, transfer order was stayed. However without deciding departmental proceedings, respondents passed order dated 15.3.2007, therefore, applicants had to file CP. During pendency of CP, DRM passed order dated 20.4.2007 cancelling the order dated 23.3.2007 (page-28).
3. It is stated by the counsel for applicant that since transfer order was cancelled by the DRM, keeping in view applicants conduct and that they had not indulged in any malpractice thereafter, Chief Commercial Manager could not have issued order dated 15.5.2007 assuming the power of GM cancelling the order dated 20.4.2007 passed by DRM, North Central Railway, Agra. It is in these circumstances present OA has been filed by all the three applicants challenging the orders passed by Chief Commercial Manager.
4. It is submitted by the counsel for applicant that Chief commercial Manager was not competent to transfer the applicants specially when DRM had cancelled the implementation of transfer order.
5. Orders dated 15.5.2007 are in contravention of Railway Board's letter dated 25.1.1969 wherein it is clearly mentioned that inter divisional transfer should be made only when it is inescapable.
6. It is also stated that since applicants have already been punished by bringing them at the initial grade in spite of their innocence this transfer would amount to double punishment apart from affecting their seniority.
7. Respondents have opposed the OA. They have submitted that both the orders dated 09.5.2007 and 15.5.2007 have been passed in accordance with Railway Board's policy as per letter dated 13.4.1989. They have explained that as per the policy guidelines of the Railway Board, a Railway servant can be transferred from one unit of seniority to another seniority unit in the public interest and to maintain the discipline among the staff. The applicants were found indulging in the malpractices by the Vigilance Department/Team of the Headquarter in accepting excess amount from the passengers. The applicants were charge-sheeted and departmental proceedings were initiated against them in accordance with the rules and principles of natural justice. All the applicants have been found guilty of the grave charges in the departmental enquiry conducted by the departments. All the applicants apparently had developed nexus with the local staff and the Railway users, it had therefore become imperative to break this nexus, which was causing immense, harm and damages to the railway administration. Thus, all the applicants have been transferred by the department in the larger public interest.
8. As far as orders dated 15.5.2007 are concerned, they have explained, they have been passed in compliance with orders dated 08.9.2006 and 18.9.2006 passed by the Tribunal. They have further submitted that order dated 23.3.2007 was an internal communication by the concerned Hqr. to the Agra Division but it was inadvertently communicated to the applicant. Accordingly, it was withdrawn, therefore, reliance has wrongly been placed by the applicants on the said order.
9. They have submitted that transfer order dated 13.12.2005 has not been effected till date. They are still working on the same post and in the same unit. Applicants are challenging the transfer order on one ground or the other, without any merits. They have further explained that respondent No. 4 is Senior Divisional Personnel Officer, a senior administrative officer of the Division, who only communicated the transfer orders passed by the competent authority, whereas, the speaking order was passed by the competent authority i.e. Chief Commercial Manager, who is the Head of the Department of all employees in the Commercial Branch of the Headquarter/Division. It is also specifically submitted in this regard that the Chief Commercial Manager (CCM) is fully competent to pass the transfer orders in accordance with the rules and policy guidelines. They have denied that CCM is subordinate authority to the DRM. On the contrary they have explained that CCM and DRM, both are equal administrative / controlling authority having equal status. They have thus prayed that OA may be dismissed specially when all the applicants have been found guilty of the charges in the enquiry conducted by the department.
10. Applicants have reiterated their stand in the rejoinder. Counsel for the applicant relied on judgments dated 27.8.2007 passed in OA No. 2457/2006 along with OA No. 153/2007 and also judgment dated 26.9.2006 passed in OA No. 848/2006 while respondents have relied on judgment dated 06.12.2005 passed in W.P. No. 14596-97/2004 and judgment of Hon'ble Supreme Court in the case of Union of India and Ors. v. Janardhan Debanath and Anr. .
11. I have heard both the counsel and perused the pleadings as well as judgments relied upon by both the counsel.
12. At the outset it must be mentioned that the dates mentioned by applicant in the OA do not match with the orders annexed with the petition but ignoring that, case is being decided on merits.
13. Admittedly all the three applicants were transferred to other divisions as they were alleged to be involved in malpractices. Applicants challenged their transfer by filing separate OAs. Those OAs were disposed of by directing the respondents to pass final order in the pending disciplinary proceedings within four weeks from the date of receipt of a copy of the order. Subject to the outcome, respondents were directed to consider transferring the applicant back to his original unit of seniority. Till then status quo as already maintained was to be continued (page-23).
14. Counsel for the applicant strenuously argued that since this Tribunal had directed the respondents to complete the departmental proceedings before passing the order, no orders could have been passed because applicants' revision was not yet decided. However, perusal of the pleadings shows that there is no such pleading to this effect therefore this contention could have been rejected on this ground itself. Even otherwise, I feel directions given in first OA are unnecessarily being stretched by the counsel for applicants. Direction cannot be read in isolation. It has to be read with reference to the context. Perusal of judgment dated 18.9.2006 passed in OA 2875/2006 shows that transfer was impugned on the ground that though disciplinary proceedings were concluded but no final order had been passed. It was in those circumstances that OA was disposed of by directing the respondents to pass a final order in the pending disciplinary proceedings. By no stretch of imagination, can it be said that no order could have been passed by the respondents till applicants' revision was pending as is being suggested. This contention is absolutely misconceived. The same is accordingly rejected.
15. Counsel for the applicant next contended that since transfer order was cancelled by the DRM, CCM was not competent to pass the transfer orders. However, perusal of orders shows that initial transfer order was issued on 13.12.2005 by the DPO but in the order itself it was mentioned, order has been issued with the approval of competent authority (page-29). This order was stayed by the Tribunal till final orders were to be passed in the pending disciplinary proceedings, so naturally speaking orders were required to be passed after the final order in departmental enquiry. It seems without passing final order in departmental enquiry, order dated 23.3.2007 was passed whereby initial order of transfer was directed to be implemented, therefore, when applicants filed contempt petition, another order was passed on 20.4.2007 whereby order dated 23.3.2007 was cancelled. It is, therefore, wrong to suggest that initial transfer order was cancelled as alleged by the applicants by the DRM. In fact since DE had not culminated into a final order, order dated 23.3.2007 couldn't have been passed as per Tribunal's directions given in first OA, therefore, order dated 23.3.2007 was cancelled in these circumstances which is clear even from the order passed in contempt petition. Respondents had apologized and had withdrawn the order by explaining these facts. Ultimately final order was passed in the DE. Applicants were found guilty and were punished. It was, therefore, required to pass a speaking order as per Tribunal's directions. Order dated 15.5.2007 was passed in these circumstances mentioning all these facts and it was ordered that initial order of transfer dated 13.12.2005 be maintained. I do not find any illegality in this order. So long transfer order is issued in larger public interest, it can neither be termed as illegal nor as arbitrary.
16. The question is whether CCM could have issued this order or not. Counsel for the applicant submitted CCM is not competent authority because earlier order dated 20.4.2007 was issued by DRM. However, respondents have explained that Sr. Divisional Personnel Officer is senior administrative officer of the Division who communicated the transfer order passed by competent authority i.e. Chief Commercial Manager as he is the head of the Department of all employees in the Commercial Branch of the Hqrs / Division. They have stated specifically that CCM is fully competent to pass the transfer orders in accordance with the rules. They have also explained that CCM and DRM both are equal administrative / controlling authority having equal status i.e. the divisional Railway Manager is controlling authority at division level whereas Chief Commercial Manager is Head of Department of Commercial Branches of overall Headquarters. In rejoinder applicants have not disputed the fact they came under Chief Commercial Manager, therefore, naturally CCM would be the competent authority. Since CCM and DRM have same status, the contention of applicant's counsel is without any merit. The same is accordingly rejected.
17. Counsel for the applicant next submitted that enquiry was not completed within the stipulated period. Applicant can't be allowed to take this contention because all this while, they never objected as they were enjoying the status quo order. It is only after speaking order dated 15.5.2007 was passed that applicants are raising this contention. The fact remains that all the three applicants were caught red handed. Applicant No. 1' Ashok Kumar Gupta was found guilty for demanding and accepting Rs. 30/- over and above the due railway charges for booking luggage on luggage ticket from the decoy passenger. Applicant No. 2' Sh. K.S. Parmar was also found guilty for demanding and accepting more money than the actual fare from decoy passenger. Similarly, applicant No. 3' Sh. V.S. Meena was also found guilty for not charging the passengers, therefore, it is clear that all the three applicants were indulging in malpractices. In these circumstances, if respondents have ordered their inter-divisional transfer, it can't be said to be illegal. Hon'ble High Court of Delhi had occasion to deal with such cases in the case of Sh. Jagdish Singh Brar v. Union of India and Sh. Sumit Vig v. The Secretary, Railway Board. In both the cases, Hon'ble High Court observed as follows:
The present writ petition is directed against the judgment/order dated 3rd June, 1999, passed by the Principal Bench, Central Administrative Tribunal, New Delhi, in O.A. No. 103/99. Counsel for the petitioner submits that while passing the aforesaid judgment/order, the Central Administrative Tribunal mis-appreciated the rules of the Indian Railway Establishment Code as also the various circulars issued by the Railway Board. In this connection, reference was made to the circular issued by the Railway Board dated 13th April, 1967 as also the circular dated 30th October, 1998.
We have carefully considered the submissions of the learned Counsel appearing for the petitioner in the light of the record available with us. We are of the considered opinion that so far as Rule 226 of the Indian Railway Establishment Code is concerned, the same does not debar the Respondents from transferring non-gazetted staff from one division to another division inasmuch as the said rule does not categorically prohibit such transfers although, it provides that such transfers shall not ordinarily be made. Even otherwise, the circular issued by the Railway Board on 2nd November, 1998 provides that inter-railway transfer of ticket checking staff detected to be indulging in malpractices is also possible and permissible on inter-divisional basis. The petitioner has stated in paragraph 3.9 of the writ petition that the petitioner was performing the duties of Booking Clerk, Ticket Collector, Parcel Clerk, Goods Clerk as also the duties of train passing as a Station Superintendent.
In that view of the matter and in our considered opinion, the directions of the circular dated 2nd November, 1999 (sic: 2.11.1998) squarely apply to the petitioner.
18. Similarly, in Sumit Vig's case (supra) reference was made to all the circulars on the question of inter-divisional transfer. Reference was also made to Full Bench judgment wherein it was held as under:
1. In terms of RBE No. 250/98, dated 30.10.1998 inter-divisional transfer can be effected of the staff of the Indian Railways. The said Circular is not confined to transfer of ticket checking staff figuring in substantiated vigilance cases alone.
2. RBE No. 251/98 dated 2.11.1998 permits inter-divisional transfer of the staff in mass contact areas also, in addition to ticket checking staff when they are detected to be indulging in malpractices.
3. The expression also used in RBE 251/98 dated 2.11.1998 is not confined to cases where a person is repeatedly figuring in vigilance cases and where penalties have been imposed. In accordance with its plain grammatical meaning, it only extends the earlier instructions with respect to all the ticket checking staff and other staff in a mass contact areas.
4. The other question that staff could be transferred on inter-divisional basis on the basis of mere complaints does not arise in the facts of the case because a departmental inquiry has already been initiated against the present applicant, which is pending.
It is relevant to note that instructions on the above subject have been issued from time to time. On 19.2.1986 instructions were issued as follows:
4.7 Ticket checking staff, detected indulging in malpractices, should be sent on inter-Divisional transfer, as a matter of policy. They may be transferred to an adjoining Division on the same Railway. They may also be transferred to a Division on another Railway adjoining their parent Railway, if they make a request to that effect. The ticket checking staff, who have been so transferred out of the existing Division on complaints of corruption and later exonerated or awarded a penalty of censure should not be brought back to the parent Division, even if they so desire.
Then came the circular dated 30.10.1998 which reads as follows:
Subject : Inter-divisional transfer of staff repeatedly figuring in vigilance cases.
( No. E (NG) I-98/TR/11, dated 30.10.98)
1. The question of effecting inter-divisional transfer of staff repeatedly figuring in vigilance cases and where penalties have been imposed, was discussed in the Conference on Malpractices and Corruption in mass contact areas organized by the Ministry of Railways on 10.7.98.
2. It has been decided that the cases of staff who have repeatedly figured in substantiated vigilance cases and where penalties have been imposed, should be reviewed at appropriate level and such staff transferred on inter-divisional basis.
Thereafter circular dated 2.11.1998 was issued which reads as under:
1. In terms of existing instructions ticket checking staff detected to be indulging in malpractices, are required to be invariably sent on inter-divisional inter-railway transfers as a matter of policy.
2.The question of feasibility of effecting inter-divisional transfer of staff in mass contact areas including ticket checking staff, was discussed in the conference on malpractices and corruption in mass contact areas organized by the Ministry of Railways on 10.7.98.
Pursuant to the above discussion, it has been decided that while the existing policy of inter-divisional/inter-railway transfer of ticket checking staff detected to be indulging in malpractices should also be transferred on inter-divisional basis.
The last circular on the subject was circular No. 11 to master circular No. 24 which refers to the instructions of 19.2.1986, 30.10.1998 and 2.11.1998 and this reads as follows:
4.The instructions for periodical transfer of Railway employees cover two broad categories of staff:
(i) (a) and (b) xxxxxxx However, the instructions regarding inter-divisional/inter-railway transfer of staff detected to be indulging in malpractices -or substantiated vigilance cases shall continue to be strictly complied with.
19. It was held that circular dated 2.11.1998 was issued in continuation of instructions dated 19.2.1986 and it does not draw its strength from instructions dated 30.10.1998. It was also held that the circular dated 2.11.1998 is based on public policy that ticket checking staff and other staff in mass contact areas could be transferred on inter-divisional basis where they are detected to be indulging in malpractices. Ultimately, the said OA was dismissed. This judgment dated 05.9.2006 in OA No. 1090/2006 was challenged by the applicant before Hon'ble High Court of Delhi. The judgment was upheld by Hon'ble High Court by observing as follows:
The provision is meant to address the situation to curb malpractices among the railway staff in areas of mass contact.
20. It is thus clear that inter-divisional transfer has already been upheld by Hon'ble High Court of Delhi. Even in case of A.K. Gandhi, which was relied upon by the counsel for applicant, counsel for the respondents produced judgment dated 06.12.2005 passed in W.P. No. 14596-97/2004 titled as Union of India v. A.K. Gandhi, wherein it was held as under:
No concrete material has been placed on record for bringing the case of malafide in the present case. It is sought to be submitted by the counsel appearing for the respondent that the order of transfer is in violation of the statutory rules. We are, however, unable to agree with the aforesaid contention as Rule 226 of the Indian Railway Establishment Code, Volume-I gives power to the competent authority to transfer a railway servant to inter zonal railway in the exigencies of service. In the present case the transfer is made in the exigencies of service as it was decided by the petitioners that the respondent should be transferred out so as to take him out from the place where a case of malpractice was detected against him. The transfer order was made on the ground that his transfer was in public interest to provide clean administration in mass contact area. We are unable to persuade ourselves to hold that the aforesaid order of transfer was not made in the exigencies of service. The aforesaid reason for transfer would itself make it crystal clear that the transfer of the respondent was made in the exigencies of service. A power is also vested in the competent authority to pass the order of transfer in the case of a railway employee detected to be indulging in mal practices in mass contact area on inter-divisional basis. The said circular when read with the provisions of Rule 226 of the Indian Railway Establishment Code, Volume-I supports the action taken by the petitioners herein transferring the respondent to Ferozepur Division.
21. In view of above, the judgment of Tribunal was set aside. It is thus clear that inter divisional transfer of such persons who were detected to be indulging in malpractices has been upheld by the Hon'ble High Court of Delhi. In this view of the matter, I find no illegality in the order dated 15.5.2007 because in the instant case also applicants have been found guilty of indulging in malpractices, therefore, they have been transferred to cleanse the railway administration or in the language of Hon'ble High Court to curb malpractices among the railway staff in areas of mass contact.
22. It also can't be said to be double penalty because punishment has been given for the misconduct committed by applicants, while transfer was issued to clean the administrative set up in larger public interest. In fact applicants have been successful in keeping the transfer in abeyance because of orders passed in their earlier OA. Now that they are punished, they must comply with the transfer orders.
23. Counsel for the applicant heavily relied on judgment dated 27.8.2007 in the case of Sh. Suresh Chand Meena v. Union of India and Ors. However, perusal of same shows in the said case applicants therein had challenged their punishment. Their OAs were allowed with all consequential benefits. It was thus in those circumstances that Tribunal held that proceedings initiated against said applicants were without justification. Secondly, transfer was issued after many years. Both these facts are missing in the present case, therefore, the said judgment doesn't advance the case of applicants at all. In fact it doesn't apply in the present facts of the case.
24. In fact Hon'ble Supreme Court has repeatedly held that Courts and Tribunal should not interfere in matter of transfer in a routine manner as 'who is to be posted where' are the matters, which should be left to the administrative authorities.
25. In view of above discussion, I find no merit in the OA. The same is accordingly dismissed. No order as to costs.