Central Administrative Tribunal - Kolkata
Manish Kumar vs S E Railway on 28 June, 2019
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O.A. 350/00778/ 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
O.A. 350/00778/ 2019 Order dated: 28.06.2019
Coram Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
Manish Kumar Applicant.
Versus
Union of India & Ors. Respondents.
For the applicant Mr. S.K.Bhowmik, Mr. P.C.Das, Counsel
For the respondents Mr. R.K.Sharma, Counsel 'W
ORDER (ORAL)
Bidisha Banerjee, Member (J):
Heard Ld. Counsels for both the;,parties.. r ;r: ■ •it
2. The applicant is presently posted under Sr. Section Engineer (C&W)/Santragachi, S.E. Railway as Helper-ll, Ticket No. 72. He .submitted a Mutual Transfer application with one Mukul Singh, Helper, working, under SSE (C&W), DSEY, Asansol Division, Eastern Railway, in 2014. But his transfer application was not considered/forwarded as per guidelines of Employees Charter, immediately thereafter. After waiting for three years, having lost all hope of his transfer to Asansol, he made up his mind to remain at Santragachi and submitted an application that his transfer application made earlier be cancelled.
After obtaining necessary permission from the authority concerned, he even purchased a flat from his personal savings as well as with the help of Bank loan from Allahabad Bank. On 15.02.2019, his wife delivered a female baby at Central Hospital, Garden Reach, Kolkata. Meanwhile, a Mutual Transfer Order, which was O.A. 350/00778/ 2019 supposed to be effected by 2015, was issued on 12.02.2019. He once again made a request to DRM/KGP, Sr. DPO/KGP, copy to DRM/ASN and Dr/ DPO/ASN .V showing his inability to move and requested that the Mutual Transfer order be cancelled. Despite such request, the other applicant Sri Mukul Singh, Helper Working under SSE (C&W)/DSE/Asansol, was released from there to join at KGP Division. Aggrieved, he has come up with this O.A. to seek the following relief:
1) An order or direction be issued directing the respondents to cancelled/rescind rthe purported letter issued on 15.02.2019 by DRM(P)/KGP.
ii) An' order or direction be issued directing the respondents and each of them not to disturb the service of the appjicgnttgs Helper under SSE (C&W)/SRC by any way, any means whatsoever"' Hi) Any other or further order., ' LV.'t
3. On 27.06.2019, we asked Respondents to clarify the following:
"Respondents to satisfy upon instructions as to why the request for cancellation of his earlier mutual transfer was not acted upon within a reasonable time before issuing such transfer order.
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List on 28.06.2019.
Respondents are also directed not to relieve the applicant, if not already relieved till the next date of listing".
4. Ld. Counsel for the Respondents upon instructions furnished the following I"'-' reasons by way of a communication dated -26.06.2019, which is extracted hereunder:
"To The Sr. Divl. Mech. Engineer/Kharagpur The Area Manager/Santragachi S. E. Railway Sub:- Inter Railway Mutual transfer in between Sri Manish Kumar, Helper Gr.-ll of SSE/(C&W)/SRC, KGP Division, S.E.Railway with Sri Mukul Singha, Helper-Gr.-ll, SSE (C&W)/DSEY, ASN Divn., E. Railway.
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O.A. 350/00778/ 2019
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Ref:- This office letter No. SER/P-KGP/EM/223/7/ Transfer Cell/MK & MS/2019/47 dt 12.02.2019.
In response to the above subject it is informed that the reliever of Sri Monish Kumar has already been reported to this division but till date Manish Kumar yet not been released from your unit.
In this context it is stated that as per railway guideline no back tracking has been entertained on any circumstances and staff concerned may be spared within seven days.
It is requested to let this know whether the staff concerned may be released immediately further any delay or otherwise.
This may be treated as most urgent.
-Sd-
Asstt. Personnel Officer-!! For Sr. DM. Personnel Officer S.E. Railway; Kharagpur Copy to SSE(C&W)/SRCfor information and necessary action.
-Sd-
For Sr. DM. Personnel Officer S.E.Railway, Kharagpur
5. The provisions of RBE 53/2006 are extracted for clarity.
"Estt. Sri. No. 76/2006 RBE No.53/2006 No. P/R/14/167/A/Pt.l Dated: 12-05-2006 Inter Railway and Intra-Railway transfers on mutual exchange.
Railway Board's letter No. E[NG]l-2006/TR/6 dated 21.04.2006 (RBE No.53/2006) is as under:-
As the Railways are aware in terms of extant procedure in vogue vide para 310 of Indian Railway Establishment Manual Vol.l, 1989, transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. Instances have come to notice where employees make request for such mutual exchange transfer and later on back out when orders are issued and even after one of the two employees gets relieved to join the new place.
2. Board have reviewed the matter and decided that as mutual transfers are ordered with the consent of both the parties, it should be made clear right at the time of forwarding applications for mutual transfer that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances. Strict adherence to this procedure may please be ensured."
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-6- O.A. 350/00778/ 2019 C-«" "
The Board's order, we note that, is explicit that backing out is not permissible "after the orders are issued", while in the present case the employee (applicant), after waiting for two years, prayed that his request for mutual transfer be treated as cancelled. ..C>tcu C.-.'J
6. We would further discern from Annexure-A/6 at page 19, that the time limit fixed for granting NOC for own request transfer including mutual transfer was within 15 working days of receipt of application (either forwarding of application or rejection of case), which has not been strictly adhered, to by the officers of the Railways. Further we note that RBE 131/2017; that deals with time limit for disposal of mutual request transfer application, is explicit. It is extracted herein below -for clarity:
,,No..E(NG)l-2017/TR/24 New Delhi, dated 22.09.2017 The General Managers All Zonal Railways & Production Units (As per standard list).
Sub- Inter-Railway Mutual Transfer.
In continuation of this office letter of even number dated 15.09.2017 (RBE No. 130/2017), the procedure for Mutual Transfer is further simplified. Hereafter, for Divisionally controlled posts, applications for Mutual Transfer duly signed by both applicants in the proper format, from a Division of one Railway to Division on another Railway need not be routed through the HQ offices. It shall be dealt directly only by the Divisions concerned.
For HQ controlled posts, the prevailing procedure shall continue.
2. Activity and prescribed Timelines:
SN Activity •Timeline
!(i) Forwarding of Applications by Supervisors to !l 0 days
the Personnel Department of the Division :
it should be verified at this stage that the ; prescribed application form is complete in all irespects duly signed by both employees and the iinformation given therein is correct. loi) Forwarding by Divisional Personnel Department:- pi5 days ;(a) Division controlled posts Divisional Personnel Department will forward the request application with necessary documents directly to the Division concerned to which transfer1 1C*. no.
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-7' O.A. 350/007787 2019 jis sought. The name and designation oFtKef officer | signing the letter should invariably be mentioned | jin the forwarding letter. rd-.' , f(b) ;HQ controlled posts !Personnel Department will forward the application jwith all necessary documents to Zonal HQ,|Clji.O ' j ; joffice). • v , [(iii)(Forwarding by Headquarters Person]15 days j(For HQ controlled posts):- I On receipt of the application duly forwarded from ■ iDivisionAA/orkshop, the HQ Personnel Department | i loffice will forward it to the Zonal Rly/PU .
i [concerned. ri,« Note : Mutual Exchange is between two employees pf-the some | igrade and cadre .This must be verified by the Personnel j
Department at every stage of processing of applications. j(iv) jConveying of Acceptance The counterpart ;10days;
i [HQ/Division to issue their acceptance to forwarding : !
!HQ/Division (as the case may be). j
i(vj [issue of Transfer Order On receipt of consent 115 days'
! Ifrom the receiving HQ/Division, the transfer, orders '
-should be issued.
;(vi) Relieving/Sparing: - Once the transfer order is d 5 days
[issued; employees should be relieved immediately j with the senior employee being relieved first. This | j jwill be the responsibility of Branch Officer/Head-of ; i [Department concerned under whom the staff-is i • working (Board's letters No. ERP/Portal -' . Transfer/2013 dated 30.04.2014 and No. E(NG)I- :2007/TR/26 dated 04.12.2007 refers). ' 1 j(vii) [Dispatch of LPC and Service Records ;15days j Personnel Department concerned should ensure [ | that the LPC and Service Record of the employee(s) are sent expeditiously to the new i Division/Zone etc. in terms of Board's letter number; ; E(NG)I-2001 /TR/16 dated 21.11.2001. Attested 'Xerox copy of the Service Record should be given ' to the employee concerned. ■ Note : (ij At the stage of forwarding of applications, files need not be' routed through concerned Branch Officer/HOD. The consultation with- [Branch Officers/MODS concerned in Division/HQ shall be done at the istage of relieving only.
l(ii) Necessary modifications to Schedule of Powers (SOP) should be imade accordingly.
3. As the mutual transfers are ordered with the consent of both the employees, it should be made clear right at the time of forwarding applications that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances (Board's letter No.5(NGIl-2006/TR/6 dated 21.04.2006 refers).
4. It may specifically be noted that forwarding of application cannot be done by any level lower than the Divisional Personnel Officer (DPO) or Sr DPO in the Divisions and WPO in the Workshops. Dy CMM, WMs, AENs and other such Officers/Unites should invariably route the request applications through their corresponding Personnel Officer ang should not forward any application to other Division/Unit directly 0 O.A. 350/00778/ 2019
5. All other terms and conditions regulating mutual transfer of Railway employees will continue to remain in force.
21Please acknowledge receipt.
Hindi version will follow. rn.2- A 3 s
(PM. Meena)
Deputy Director-ll/Estt.(NG)l
Railway Board"
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In the light of the aforesaid provisions fixing a specific time limit for A*nsff:cci-
forwarding request, consideration and disposal of mutual transfer.request, we ^- . tr note that no plausible reasons have been furnished to justify the following:
(i) Abnormal delayed action (in 2017-18) on a request for mutual transfer made in 2014;
(ii) Protracted inaction on the prayer made by the applicant in December, 2017 to treat the mutual transfer request as cancelled, before the same was acted upon, in May, 2018;
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(iii) Delayed forwarding of mutual transfer request of 2014 in May, 2018 after the request for cancellation, purportedly made in December, 2017, was received;
(iv) Abnormal delay in forwarding request for cancellation of mutual transfer application, made in December, 2017, on 07.03.2019 by the SSE (C&W), Santragachi that too after 12.02.2019 order (Annexure-A/6) was issued;
(v) The reason why the applicant shall be made to bear the brunt of such delayed action.
7. From the communication dt. 26.06.2019 (quoted supra), we would further discern that as on 27.06.2019 when this Tribunal directed the Respondents not to relieve applicant, he was very much there in Santragachi serving as Helper II and his reliever Mukul Singha had not joined in his place.
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-V O.A. 350/00778/ 2019
8. In the aforesaid backdrop, we direct the Railway authorities to allow the & applicant to be posted at his present place of posting cancelling his prayer for ■V mutual transfer. The Respondents shall, however, be at liberty to act in accordance with law.
O.A. is disposed of accordingly. No costs.
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(Dr. Nandita Chafterjee) (Bidisha Banerjee)
Member (A) Member (J)
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