Central Administrative Tribunal - Patna
Pramod Prasad Singh vs Eastern Railway on 2 September, 2024
1 OA No. /051/00324/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
RANCHI CIRCUIT BENCH, PATNA
O.A. No. 051/00324/2021
Reserved on: 22.08. 2024
Pronounced on:02.09.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Pramod Prasad Singh son of Late Ajab Lal Singh, Senior Section
Engineer (Electric)/G (In-charge), South Eastern Railway, TATA,
Resident of Flat No.409, Ambition Tower, Near Nagar Nigam, Aditpur,
District-East Singhbhum (Jharkhand)-831002.
.......... Applicant.
-Versus-
1. Union of India through the Secretary, Railway Board,
Patna
Ministry of Railway, Government of India, Rail Bhawan, New
Bench
Delhi - 110 001.
2. The General Manager, South Eastern Railway, Garden Reach,
Kolkata-700043.
3. The Divisional Railway Manager, South Eastern Railway,
Chakradharpur-833102 (Jharkhand).
4. The Divisional Railway Manager (Personnel), South Eastern
Railway, Chakradharpur - 833 102 (Jharkhand).
5. The Senior Divisional Electrical Engineer/G, South Eastern
Railway, Chakradharpur-833102 (Jharkhand).
6. Sri Sanjeet Kumar Singh, Senior Section Engineer
(Electric)/G/AC (Incharge), South Eastern Railway, TATA,
District-East Singhbhum (Jharkhand)-831002.
........Respondents
For Applicant:- Sh. M.P. Dixit, Advocate.
For Respondents:- Sh. Amit Sinha, Addl. CGSC.
2 OA No. /051/00324/2021
ORDER
PER:- AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. Heard learned counsel appearing for the parties through physical mode.
PRAYER
2. By way of present Original Application filed under Section 19 of Administrative Tribunals Act 1985, applicant has sought the main relief (as extracted from the OA) as under:-
"8.1. That your Lordships may graciously be pleased to quash and set aside the order dated 20.082021 as contained in Annexure A/1 issued by Respondent no.5 Patna Bench qua the applicant and respondent no.6.
8.2 That your Lordships may further be pleased to declare the order dated 18.08.2021 as contained in Annexure A/2 issued by Respondent no.5 with respect to seizure of financial power and discontinuation as over all in-charge.
8.3 That your Lordships may further be pleased to direct/command the respondents to allow the applicant to continue as Senior Section Engineer/Elect/G (In-charge), Tata without any disturbance with all consequential benefits. 8.4 Any other relief or reliefs as may deem fit and proper by this Hon'ble Tribunal including the cost of proceeding may be allowed in favour of the applicant."
FACTS IN BRIEF
3. Briefly stated facts as adumbrated by applicant in the instant OA are that applicant is working on the post of Senior Section Engineer (Electrical)/General, (In-charge), South Eastern Railway, Tata and while posted as Senior Section Engineer (Electrical)/General, (In- charge), South Eastern Railway, Tata has received Memorandum of Charges dated 06.07.2021 under Rule-9 of the Railway Servant (Discipline & Appeal) Rules, 1968 [hereinafter referred to as Rules, 3 OA No. /051/00324/2021 1968] issued by Respondent no.5. Respondent No.5 constituted three- member committee of Senior Section Engineers, which submitted report dated 17.08.2021 exonerating the applicant from charges alleged. Respondent no.5 further issued order dated 18.08.2021 and has seized financial power of applicant without any basis. Respondent no.5 without considering report dated 17.08.2021 had detached applicant from overall In-charge and also transferred him vide Impugned Order dated 28.08.2021 (Annexure A/1). Applicant has submitted representation dated 29.08.2021 against Impugned Orders (Annexures Patna Bench A/1 & A/2). When Respondent no.5 did not respond to applicant's representation dated 29.08.2021, applicant preferred another representation dated 08.09.2021 to Respondent no.3.
4. The sum and substance of case of applicant in the present OA as set-out by applicant is that the applicant is senior to private respondent no.6 and cannot be posted under his junior.
5. Per contra, the respondents contested the claim of applicant by filing Written Statement. The respondents have stated that major penalty Charge-sheet dated 06.07.2021 alleging grave misconduct relating to working of applicant as Senior Section Engineer (Electrical)/G/In-charge, Tata whereby applicant has supplied quantities in DMTR of Railway supplied cables, issued to the contractor, for execution of Schedule-II (Erection) of Item No.14 to 18 were not tallying with that of quantities recorded in Measurement Book No.6638 as well as in the final bill. As per applicant's admission a total 4 OA No. /051/00324/2021 quantity of 4239 meters Railway supplied cable was issued to the Railway contractor for execution of Schedule-II (Erection) of Item No. 14 to 18 but only 4233 meters has been recorded in final Measurement Book and the balance 6 meters cable was found beyond trench. The total quantity of Railway supplied cable was recorded as 3778 meters in the same Measurement Book and during second time of entries of final measurements in Measurement Book. The allegation is relating to mismatching in length of Railway supplied cables which was recorded in excess during first time entries in the Measurement Book as Patna Bench compared to that of the entries made during second time. The verification of DMTR and Ledger of the work, it was found that final measured quantities as recorded in Page No.66382-663892 for Schedule-II (Item No.12 to 18, 31 & 40 of LOA) during second time entries in measurement book are less than the final measurement recorded during the first time in measurement book No.6638, which clearly shows that applicant has deliberately done this entries with malafide intention and negligence of duty.
6. Based on inspection report dated 23.06.2021 as well as earlier misconduct of the applicant, the competent authority decided vide letter dated 18.08.2021 to seize the financial powers of the applicant and discontinued him as an overall in-charge of the Section. Moreover, the instant case was also under investigation of Vigilance Department. Moreover, clarification of applicant has been recorded at South Eastern 5 OA No. /051/00324/2021 Railway Vigilance Office, Kolkatta on 17.01.2022 wherein applicant has admitted charges.
7. Respondents further stated that said Memorandum dated 06.07.2021 has been modified in terms of Chief Vigilance Officer, Kolkata's letter dated 17.05.2022 due to some Article of Charges were not included in Memorandum dated 06.07.2021. Accordingly, a fresh Charge Memorandum dated 11.07.2022 has been issued to applicant. It is pertinent to mention here that replacement from Sr. Section Electrical Engineer (G)/Tatanagar in-charge to Sr. Section Electrical Patna Bench Engineer(G)/AC/Tatanagar under control of Assistant Electrical Engineer (G)/TATA to take corrective/preventive action for safe guard to Railway to avoid any recurrence of such irregularities/losses of revenue in future and abide the instructions issued by Railway Board from time to time. Respondents contended that claim of the applicant is false and fabricated since applicant, vide order dated 20.08.2021, has been transferred in the same capacity and posted as SSEE/G/AC/TATA under the control of Assistant Electrical Engineer (G)/TATA and not under respondent No.6, as alleged.
8. Rejoinder has been filed by applicant denying the averments made in the W.S. Applicant while reiterating the averments made in the OA has stated that it is incorrect that applicant has been posted under the control of Assistant Electrical Engineer (G)/TATA but not under respondent no.6. Applicant has stated that the aforesaid statement is misleading and is an effort to confuse this Hon'ble Tribunal whereas 6 OA No. /051/00324/2021 applicant based on certain documents issued after the Impugned Order which clearly speaks that the Assistant Divisional Electrical Engineer/G/TATA has issued direction on 12.10.2021 directing SSEE/G/AC/TATA (who is junior to the applicant) to utilize the applicant as per requirement which falsify the statement of the respondents. Instead of recalling the Impugned transfer order, Assistant Divisional Electrical Engineer/G/TATA issued another order to work in co-ordination with SSEE/G/AC/TATA (who is junior to applicant) and to work in shift duty from 19.11.2021 which is a Patna Bench humiliation to the applicant as he has been downgraded in status.
SUBMISSION ON BEHALF OF THE APPLICANT
9. Shri MP. Dixit, learned counsel for applicant vociferously canvassed and arguments can be summarized as -
(i) By way of Impugned Order dated 20.08.2021, applicant has been transferred from post of Senior Section Engineer (General)/Tata/(In-charge) working under ADEE(G)/Tata in PB-
Rs.9300-34800 with GP Rs.4600/- and posted as Senior Section Engineer/General/AC/Tata under control of ADEE(G)/Tata in place of private respondent no.6 junior to applicant. So also in the same order private respondent no.6 has been posted as Sr. Sec. Engineer (G)/AC/Tata/I-C. The respondents vide Impugned Order dated 18.08.2021 (AnnexureA/2) has seized financial authority and discontinued as an overall in-charge with immediate effect and during pendency of major penalty charge- 7 OA No. /051/00324/2021 sheet stopped from doing any works contract papers involving financial implications.
ii) The Impugned Orders are vitiated as applicant being senior to private respondent no.6, cannot be transferred and posted under junior. Applicant was in-charge but now has to work under junior and same is punitive. The Assistant Divisional Electrical Engineer/G/Tata issued letter dated 12.10.2021 to utilize the applicant as per requirement, meaning thereby to work under junior, so also monthly salary attendance sheet prepared by Patna Bench junior. The status of applicant has changed and impugned orders are to be quashed being illegal and humiliating. SUBMISSIONS ON BEHALF OF OFFICIAL RESPONDENTS
10. Shri Amit Sinha, learned Additional Central Government Standing Counsel appearing for respondents contended and summarized as -
i) Vigilance Organization investigated irregularities committed by applicant and a major penalty charge-sheet dated 21.02.2017 for mismatching length of Railway supplied cables and recorded entries in measurement book. Resultantly, penalty order dated 30.05.2019 was imposed. So also again on 23.06.2021 inspection of bill passing authority for physical verification was done by the then Senior Divisional Electrical Engineer (G) with seven Members including applicant. The applicant during inspection accepted irregularity physical 8 OA No. /051/00324/2021 verification dated 23.06.2021 (Annexure R/2 filed with short reply). Applicant while working as Senior Section Engineer (Electrical)(G)/Tata/In-charge has conducted misconduct as such quantities of DMTR and major penalty charge-sheet dated 06.07.2021 issued to applicant alleging grave misconduct as to mismatch in cable supplied and issued to the contractor for execution of works contract. Mismatching in length of cables recorded prima facie grave misconduct and vide Impugned Order dated 18.08.2021, financial powers discontinued of the applicant Patna Bench as an over-all In-charge of the Section. The applicant admitted the alleged misconduct at SER, Vigilance Office, Garden Reach, Kolkatta on 17.01.2022 and fresh charge-sheet dated 11.07.2022 issued to applicant.
ii) Applicant committing grave misconduct in works contract measurement done by him of length of Railway supplied cables recorded in M.B. is deliberate, admitted act in negligence in duties.
iii) Railway Board has issued R.B.E. No.156 of 1988 dated 21.07.1988, has statutory force stipulates that employee undergoing penalty as a result of a vigilance case is not posted against any post involving public dealing in areas prone to corruption. Impugned Orders are in consonance with RBE No.156 of 1988.
9 OA No. /051/00324/2021
iv) Applicant has been transferred in same capacity and posted on substantive post SSE/G/AC/Tata under control of Assistant Electrical Engineer/G/Tata, not under any junior. Applicant status is same SSE/G/AC/TATA under control of Assistant Divisional Electrical Engineer/G/Tatanagar, same post, same salary, same bill unit, working in coordination with the colleagues.
v) Impugned transfer Order dated 20.08.2021 is neither suffers from vices of malafides, nor from breach of statutory rule Patna Bench and orders are within jurisdiction, no interference is warranted.
11. No further point is pressed at the Bar by learned counsel appearing for the parties.
ANALYSIS
12. This Tribunal has bestowed anxious considerations on the rival submissions of learned counsel appearing for the parties and perused the material on record as well as considered precedent relied upon by the parties.
THE ISSUE
13. From above submissions of learned counsel appearing for the parties and material placed on record, relevant norms, RBE and precedent, the short question which arises for consideration -
"Whether the Impugned Orders dated 20.08.2021 (Annexure A/1) and dated 18.08.2021 (Annexure A/2) require any judicial interference?"10 OA No. /051/00324/2021
14. Before dealing with rival contentions advanced at the Bar, it is apposite for relevant portion of Railway Board Circular and binding precedence on the scope of judicial interference in transfer matters in exercise of power of judicial review by Hon'ble Supreme Court - for ready reference reads as:-
RBE NO.156/88 DATED 21.07.1988 Sub: Transfer of staff-Measure to check possible malpractices.
With a view to guard against possible malpractices in transfers of staff, Ministry of Railways Patna on the advice of Central Vigilance Commission have Bench decided that whenever a transfer order is issued on the basis of complaints, CBI/Vigilance enquiries etc. by the competent authority and thereafter it is proposed to cancel the transfer order without the employee having actually carried out the transfer order or to bring back the employee concerned to the original place of posting within one year, the competent authority should obtain the approval of the next higher authority after giving full details regarding the reasons requiring change in the transfer orders. It should also be the endeavour of Railway Administration that an employee undergoing penalty as a result of vigilance case is not posted against any post involving public dealing especially in areas prone to corruption.
Please acknowledge the receipt.
Sd/-
(K.B.Lall) Joint Director, Estt.(N) Railway Board [Emphasis supplied]
15. This is a trite law that scope of judicial interference in transfer matters in exercise of power of judicial review is limited:-
(i) Transfer is issue of violation of statutory rules.
(ii) Malafide exercise of power.
(iii) Transfer order is without jurisdiction.11 OA No. /051/00324/2021
16. So also, Hon'ble Supreme Court in catena of judgments expressed view regarding limited scope of judicial review by the Court/Tribunal in the matters of transfer, for ready reference reads as:-
"1. In B. Varadha Rao v. State of Karnataka, (1986) 4 SCC 131:AIR 1986 SC 1955 the Apex Court has held as under:--
"5...If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : (1974) 2 SCR 348 : (AIR 1974 SC 555) for the positivistic view that 'equality is antithetic to arbitrariness' and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed:
"It is an accepted principle that in public service transfer is Patna Bench an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly, bona, fide and reasonably. It should be exercised in public, interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers cannot but be held as in fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."
The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a Government servant, any of his conditions of service making the impugned order appealable under R. 19(1)(a) of the Rules.
6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a Government servant and drive him to desperation It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable 12 OA No. /051/00324/2021 and fair and should apply to everybody equally. But, at the same time., it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates. vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer."
2. In Mrs. Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659: AIR 1991 SC 532 their Lordships have ruled thus:--
"4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any Patna Bench mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders,"
3. In Rajendra Roy v. Union of India, (1993) 1 SCC 148 : AIR 1993 SC 1236 then- Lordships of the Apex Court have ruled thus:
"7.... It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the order of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department We are in agreement with the Central Administrative Tribunal that the appellant has not been able to lay any firm foundation to substantiate the case of malice or mala 13 OA No. /051/00324/2021 fide against the respondents in passing the impugned order of transfer. It does not appear to us that the appellant has been moved out just to get rid of him and the impugned order of transfer was passed mala fide by seizing an opportunity to transfer Shri Patra to Orissa from Calcutta. It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions, In this case, we are unable to draw any inference of mala fide action in transferring the appellant from the facts pleaded before the Tribunal."
4. The Apex Court in Union of India v. S.L. Abbas, (1993) 4 SCC 357 : AIR 1993 SC 2444 has expressed the view as Patna under:--
Bench "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. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.
8. xx xx xx
9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306 : (AIR 1992 SCW 170) rendered by a Bench of which one of us (J.S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (para 5 of AIR):--
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference, may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the 14 OA No. /051/00324/2021 two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different Patna places......No doubt the guideline requires the two spouses Bench to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
5. In the case of State of M.P. v. S.S. Kourav, (1995) 3 SCC 270 in paragraph 4, the Apex Court has expressed the view in the following terms:--
"4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheel so fad ministration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation, In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
5. xx xx xx
6. It is further contended that in an unfortunate situation the respondent's wife committed suicide leaving three children and he 15 OA No. /051/00324/2021 would suffer extreme hardship if he has to work in the tribal area. This Court cannot go into that question of relative hardship. It would be for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration. If there is any such hardship, it would be open to the respondent to make a representation to the Government and it is for the Government to consider and take appropriate decision in that behalf."
6. In State of U.P. v. Siyaram, (2004) 7 SCC 405 it has been held as under:--
"5. The High Court while exercising jurisdiction under Arts. 226 and 227 of the Constitution of India (in short the 'Constitution) had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted Patna Bench forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer as shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan ((2001) 8 SCC 574).
6. The above position was recently; highlighted in Union of India v. Janardhan Debanath (2004) 4 SCC 245). It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest.
7. In view of the settled position in law the judgment of the High Court is indefensible and is set aside."
[Emphasis supplied] 16 OA No. /051/00324/2021
17. In case of Rajendra Singh & Another vs. State of Uttar Pradesh & Ors. [2009 (15) SCC 178] their Lordships held as under:-
"9.. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In the case of Shilpi Bose (Mrs.) & Ors. v. State of Bihar & Ors. this Court held :
"4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one Patna place to the other. Transfer orders issued by the competent Bench authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to- day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
7. In N.K. Singh v. Union of India & Ors., this Court reiterated that:
6....the scope of judicial review in matters of transfer of a Government Servant to an equivalent post without adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides or violation of any specific provision.."
[Emphasis supplied]
18. Applying the aforesaid principles of law, statutory service rules to answer the controversy involved in the present case on hand, applicant is holding substantive post of Senior Section Engineer/G/Tata. On vigilance investigation, a major penalty charge- sheet dated 21.02.2017 was served on applicant for committing gross illegalities and irregularities in execution of works contract. The Senior Divisional Electrical Engineer (G), Chakradhar/disciplinary authority, 17 OA No. /051/00324/2021 after providing reasonable opportunity of hearing to applicant, charges found proved and applicant was held guilty of grave misconduct. Penalty order dated 30.05.2019 was issued inflicting penalty of reduction of pay by two stages in same level, i.e. Level-7 for period of one year with non-cumulative effect.
19. Applicant has not improved his working and while holding post of Senior Section Engineer (G)/Tata/In-charge has again committed gross illegalities alleging grave misconduct in execution of works Patna contract - quantities of DMTR and Ledger work also railway supplied Bench cables issued to Contractor for execution of work was not tallied with quantities in measure book No.6638 as well as final bill. The eight member Inspection Committee with applicant as one of the Members has physically verified actual execution of work of maintenance of Electrical General Service under Senior Section Engineer (G)/Tata - SER jurisdiction. The minutes of Inspection dated 23.06.2021 (Annexure R/2) in presence of applicant clearly establishes the fact that railway cables supplied to contractor and no such type of cable laying found as claimed by applicant while working as SSEE/G/Tata. So also in the measurement book, length for cable has been recently recorded. The chronological dates of entries not have been maintained in the ledger, so also by committing illegalities, entries were made later on. Proof of any erection work has not been maintained in the office. So also no DPR of the work executed by the contractor has been 18 OA No. /051/00324/2021 maintained. In the presence of applicant, inspection was conducted and applicant has admitted the aforesaid fact.
20. On receipt of physical inspection report dated 23.06.2021, applicant has accepted the irregularities noticed by the inspection team. The applicant has been found involved in repeated grave misconduct and in public interest Senior Divisional Electrical Engineer (G), Chakradharpur, SER has issued the Impugned Order dated 18.08.2021 taking cognizance of irregularities of applicant in execution of works Patna contract, financial authorities and overall in-charge in case of applicant Bench was discontinued. So also vide Impugned Order dated 18.08.2021 (Annexure A/2), applicant was divested and directed not to execute any process/record of measurement of any works contract papers or any other documents involving financial implication till finalization of SF5. In public interest at large, Impugned Order dated 18.08.2021 (Annexure A/2) has been issued and there is no illegality or infirmity and the same is held to be justified.
21. The Impugned Transfer order dated 20.08.2021 has also been issued whereby applicant has been shifted by way of local arrangement at the same station on administrative exigency in public interest at large in the same capacity with same status and at the same station under the control of Assistant Divisional Electrical Engineer (G)/Tata.
22. RBE No.156 of 1988 dated 21.07.1988, as extracted above, applicant being involved in committing irregularities in spite of 19 OA No. /051/00324/2021 inflicting penalty on 30.05.2019, on vigilance investigation charge- sheet dated 06.07.2021 for major penalty has again been issued and in view of RBE No.156/1988 (supra) was also in public interest at large, decision was taken vide Impugned order dated 20.08.2021 to post applicant with same status, same pay with independent work under the control of Assistant Divisional Electrical Engineer (G)/Tata as applicant was facing allegation in work related to public dealing.
23. The fact of the matter that applicant working as Senior Section Patna Engineer (G)/Tata, charge-sheet dated 06.07.2021 issued alleging Bench graved misconduct in execution of works contract and earlier to said charge-sheet in similar nature of allegations, applicant has already been inflicted penalty vide order dated 30.05.2019, applicant has been seized with financial power as allegation relates to irregularities in execution of works contract. So also applicant has been shifted in administrative exigency and in public interest in the same capacity with same status and posted as SSEE(G)/Tata under the control of Assistant Divisional Electrical Engineer (G)/Tata. Applicant has not been posted on lower post as he is holding the same substantive post of Senior Section Engineer. On face of record vide Impugned Order dated 20.08.29021 (Annexure A/1), applicant has been posted with his status, unchanged and there is no change in his service conditions as well.
24. So far as the main grievance of applicant and sole contention that applicant has been posted under his junior/private respondent no.6 is concerned, is misconceived. This Tribunal has examined and on face of 20 OA No. /051/00324/2021 record applicant is holding the same post in same pay with same status having independent work under the control of Assistant Divisional Electrical Engineer (G)/Tata and not under control of any junior or private respondent no.6.
25. Hon'ble Supreme Court in case of Union of India vs. S.L. Abbas [1993 (4) SCC 357: AIR 1993 SC 2444] - has categorically held as under:-
"who would be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Patna court cannot interfere with it."
Bench [Emphasis supplied]
26. In view of law laid down in the case of S.L. Abbas (supra), as extracted above, this Tribunal is of the considered opinion that the above law is clearly attracted and applicable in the given facts of the present case and there is no illegality, malafide or arbitrariness established and, hence, no interference is warranted.
27. Shri M.P. Dixit, learned counsel appearing for the applicant has also laid much emphasis on the decision of this Tribunal in case of Shubhranshu versus Union of India & Anr. [OA No.323/2020 decided on 15.12.2020].
28. But with great respect it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of facts of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in case of Dr. 21 OA No. /051/00324/2021 Subramanian Swamy versus State of Tamil Nadu and others, (2014) 5 SCC 75. Relevant paragraph reads as under:-
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for that what it actually decides, and not what logically follows from it. The court should not place reliance on decisions without discussing as to how the factual situation fits in with the facts and situation of the decision on which reliance is placed."
[Emphasis supplied]
29. Now examining the facts of in Shubhranshu case (supra), applicant in the above OA has been working as Chief Administrative Patna Bench Officer, Rail Wheel Plant, Bela and has been transferred as Chief Mechanical Engineer (Planning) ECR. The status of the post of Chief Administrative Officer, RWP Bela is higher than Chief Mechanical Engineer (Planning)|, Hajipur. The applicant was approved for appointment for post of General Manager and equivalent in Zonal Railways for year 2019-2020 but vide Impugned Order transferred to a lower grade post and had to work under junior. The post was held to be of lower grade and modification was issued and this Tribunal categorically held that applicant remained transferred to a lower grade post i.e. PCME (Planning) not equivalent to post of GM, ECR and Principal Head of Department was junior. In view of the above, this Tribunal vide order dated 15.12.2020 in case of Shubhranshu case (supra), has interfered and respondents modified order but some infirmities remained whereas facts of present case on hand are different as applicant has been shifted in the same station on the same post, same status and there is no lowering down of status of applicant. The law laid 22 OA No. /051/00324/2021 down and ratio of order dated 15.12.2020 in case of Shubhranshu case (supra) is not at all applicable in the facts of the present case.
CONCLUSION
30. In view of the above and considering the entirety of facts and circumstances and legal proposition settled by catena of judgments of Hon'ble Supreme Court cited herein above. This Tribunal is of the considered view that applicant has failed to make out prima facie case and has also miserably failed to establish infringement of any legal right. Accordingly, the issue is decided against the applicant. Patna Bench
31. The Impugned Orders dated 20.08.2021 (Annexure A/1) so far relates to applicant and private respondent and dated 18.08.2021 (Annexure A/2) are upheld being justified and same do not suffer from any infirmity, remain unassailable and applicant is not entitled for any relief sought for in the present OA.
32. Resultantly, the Original Application being devoid of merit accordingly dismissed.
33. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stand disposed of.
34. There shall be no order as to cost.
(Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
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