Central Administrative Tribunal - Mumbai
Vishwas W Badhiye vs M/O Communications on 28 October, 2021
1 OA.331/2021
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
O.A.331/2021
Dated this Thursday the 28th day of October, 2021
Coram: Dr.Bhagwan Sahai, Member (Administrative)
Vishwas W. Badhiye,
Postal Assistant (CO/RO),
Kharodi, Sub-Post Office,
Mumbai - 400 095.
R/at: 701, Riddhi-Chaya CHSL,
Plot E-31, Sector-6,
New Panvel (E) - 410 206.
Mob.No.: 8779845289. .. Applicant.
( By Advocates Ms.Annie Nadar ).
Versus
1. The Union of India, through
the Secretary,
Ministry of Communications,
Department of Posts,
Dak Bhawan, Sansad Marg,
New Delhi - 110 001.
Email ID- [email protected]
2. The Chief Postmaster General,
Maharashtra Circle,
2nd Floor, Mumbai GPO,
Old Building, Mumbai - 400 001.
Email ID- cpmg [email protected]
3. The Postmaster General,
Mumbai Region,
1st Floor, Mumbai GPO,
Mumbai - 400 001.
Email ID- [email protected]
4. The Senior Superintendent of Post Offices,
Mumbai North West Division,
Kandivali East,
Mumbai - 400 101.
Email ID- [email protected]
.. Respondents.
( By Advocate Mrs.N.V. Masurkar ).
Order reserved on : 28.09.2021
Order delivered on : 28.10.2021.
O R D E R
Shri Vishwas W. Badhiye has filed this O.A. on 26.04.2021 seeking -
(i). quashing and setting aside of his transfer and posting orders dated 25.08.2020 and 26.08.2020 issued by Respondents No.3 and 4, respectively transferring him from post of Postal Assistant (CO/RO) to post of Postal Assistant (Post Offices), and order dated 22.03.2020 disposing of his representations; and
(ii). direction to the respondents to transfer him back to his cadre of Postal Assistant (CO/RO) at Mumbai Regional Office;
release his pay and allowances for 7 days in the month of October, 2020 and from 15.02.2021, 16.02.2021 and 01.03.2021 and 08.03.2021, period during which he was undergoing medical check-up by Medical Board at J.J. Hospital, Mumbai and grant him travelling allowance as per rules with 18% interest and other consequential benefits;
(iii). he also sought interim relief but after hearing the applicant's counsel on 03.05.2021 in view of he having already joined at the place of his temporary attachment, this request was rejected. The respondents have filed reply and in response to rejoinder of the applicant, they have also filed sur-rejoinder. Arguments of respective counsels were heard on 28.09.2021 and it was reserved for orders.
2. Summarized facts as stated by the applicant :
2(a). The applicant was appointed as Postal Assistant (Circle/Regional Offices), a Group 'C' post. By the impugned order he has been transferred and attached to Kharodi Post Office, Mumbai North-West Division as Postal Assistant (Post Offices). He claims that his work has always been appreciated by his superiors as recorded in his APAR for the period from 05.06.2018 to 13.12.2018 (a sincere, hardworking and committed official). For handling of examination papers of UPSC, SSC, CBSE, IGNOU etc, he was also entrusted with duties of Nodal Office Assistant.
2(b). The work of Department of Posts is included in essential services as per notification issued by Ministry of Home Affairs dated 24.03.2020. He claims to be a Type-II Diabetes patient and thus vulnerable to high risk of getting infected with Covid-19. His mother is also a diabetic. From 12.08.2020, the applicant fell sick, he visited the authorized medical attendant (A.M.A.) for Central Government employees on 25.08.2020, who referred him to a CGHS empanelled Panacea hospital in Panvel. When he was advised RTPCR test, he informed the respondents about it via call, SMS and email that he was unable to attend office on 25.08.2020.
2(c). On 25.08.2020 the respondents issued the order of his attachment as Postal Assistant (Post Offices), Mumbai North-West Division in the interest of service. The applicant was not aware of that transfer order, therefore, he attended office on 26.08.2020 when he was handed over the transfer order along with attachment order to Kharodi Post Office issued by Respondent No.4, Sr.Supdt. Of Post Offices, Mumbai North-West Division, Kandivali. At that time strength of employees at Kharodi PO was six and the applicant was 7th, thus there was no shortage of staff or administrative exigency. This office of his attachment is far away from his residence in New Panvel. Then on 26.08.2020 he submitted a representation to Respondent No.3 against his illegal transfer and attachment order, and also approached the Assistant Director, Postal Services and pleaded that his case may be considered sympathetically. However, his request was turned down. Before issuing his relieving order, one Shri Vikas Mhatre, PA (PO) from Mumbai South Division was deputed on temporary basis on the post of PA(CO/RO) occupied earlier by the applicant.
2(d). The action of the respondents in transferring him to Mumbai North-West Division and direction to post him to any needy Post Office is illegal, arbitrary, misuse and abuse of official powers. The applicant was humiliated and verbally abused by the PMG in presence of Assistant Director, Postal Services and her Personal Assistant, which is a punishable offence under Section 3(x) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 since he belongs to a Scheduled Caste.
2(e). The applicant represented to SSPO, Mumbai North-West Division via email on 29.08.2020 that he had tested positive for Covid-19 and sought leave for 14 days. Because of continued sickness he was advised rest for further 16 days. Then he again applied on 14.09.2020 for grant of leave on medical grounds from 12.09.2020. He was issued a fitness certificate by the Panacea Hospital, Panvel on 27.09.2020 and he reported at Kharodi PO on 29.09.2020, but the post of PA (PO) at Kharodi PO was already occupied by Shri Abhilash Saxena who had been working there since March, 2020 and was relieved on the same date by Respondent No.4 and charge was handed over to the applicant.
2(f). The applicant again submitted representation to Chief Post Master General on 14.10.2020 to take him back as Postal Assistant (CO/RO) at Mumbai Regional Office as he was facing hardship due to transfer from Panvel to Kharodi, journey to which takes seven hours everyday. The respondents first did not release his salary for the month of October, 2020 and it was released only later.
2(g). He was issued a letter by respondents on 03.11.2020 seeking explanation for remaining absent from duty from 29.08.2020 to 27.09.2020 and for 10 days in the month of October, 2020. He replied to it but inspite of it the respondents recorded in his service book as unauthorizedly absent. His request for grant of Travelling Allowance was rejected and representation submitted on this was also rejected. The doctors at Panacea Hospital, Panvel again advised on 21.01.2021 that he was suffering from severe backache, dyspnea, etc and on their advice he submitted leave application on medical grounds on 08.02.2021. Inspite of the case-papers and sickness certificate issued to him by Panacea Hospital, Panvel, the respondents again directed him to undergo medical examination at J.J. Hospital, Mumbai and directed Supdt., J.J. Hospital to examine him and determine whether he is fit to be in service. The Sub-Postmaster, Kharodi PO was asked not to allow the applicant to join duty without attending the Supdt., J.J. Hospital, Mumbai and his pay and allowances should be withheld till the case is decided. This shows total insensitivity and malice towards the applicant. He was advised further investigation by medical board when he was diagnosed with Bilateral paramedian discal protusion in L4-5 intervertebral level and was advised rest.
2(h). Because of non-payment of salary for the month of October, 2020 and his illegal transfer, he filed earlier O.A.No.130/2021, which was disposed of on 15.02.2021 by the Tribunal directing the respondents to consider his pending representation. It is blatant violation of Articles 14 and 21 of the Constitution of India and the respondents thereby have put at stake the livelihood of the applicant and his family. After the order of the Tribunal, he again submitted a representation on 22.02.2021.
2(i). Inspite of requesting for medical leave and submission of unfit certificate from 08.02.2021 till 14.02.2021, the respondents treated the applicant as unauthorizedly absent. Against the order of the Tribunal rejecting interim relief, the applicant filed Writ Petition No.1153/2021 before the Bombay High Court on 01.04.2021, but it was dismissed on his request. The respondents have rejected the applicant's representation by order dated 22.03.2021 stating that the applicant's transfer is only a temporary attachment made due to administrative exigency. However, they have not considered the ailments of the applicant and his high susceptibility to catch Covid-19 infection, and have displayed hostility and insensitiveness in rejecting his representation and thereby have harassed him.
3. Contentions of the applicant :
3(a). By issuing the transfer/attachment order of the applicant, the respondents have violated the transfer policy/guidelines and order issued by the Department of Posts, Ministry of Communications dated 17.01.2019;
3(b). as per letter of the Ministry of Communications dated 24.06.2015 on the subject of Deputation of Postal Assistants of CO/RO cadres to Postal/RMS Divisions and Units, the CPMG, Maharashtra Circle was directed to refrain from resorting to the practice of deputing Postal Assistants of CO/RO cadre to divisions and operative offices;
3(c). Clause 5 of transfer guidelines for Postal Assistants also states that post tenure of an employee shall be 3 years and station tenure shall be 6 years. The applicant has put in only two years of service at the Regional Office, Mumbai but even then he has been transferred. It is not a routine transfer but it is a cadre transfer from the cadre of PA (CO/RO) to PA(PO). The duties of Postal Assistants in the two offices are different. Therefore, the transfer of the applicant is punitive and stigmatic under the cloak of administrative exigency, it is not in interest of service. It has caused hardship to the applicant, affecting his mental health and well being.
3(d). In support of his contentions, the applicant has cited several caselaws.
(i). Calcutta High Court decision in case of Sri Krishna Kanto Roy Vs. Director of Primary Education, West Bengal, reported in 1990(1) CLJ 310, holding that Court should not normally interfere with the orders of transfer which are issued in exigency of service and in discharge of administrative or executive power. However, if the power is not exercised in good-faith the Court would not hesitate to interfere.
(ii). Apex Court decision in case of V. Jagannadha Rao Vs. State of A.P., reported in AIR 2002 SC 77 held that transfer is conceived in wider terms as a movement to any other place or branch of organization, transfer essentially is to a similar post in the same cadre.
(iii). Apex Court decision in case of Prasar Bharti and Ors. Vs. Amarjeet Singh and Ors., reported in AIR (2007)SC 1269, held that transfer is limited to equivalent post in the same cadre and in the same department.
(iv). High Court decision in M. Venkata Sekhar Vs. Principal Secretary to Government and Ors. dated 21.11.2012, held that transfers made in public interest must be of overriding impact and the reasons must be recorded justifying such transfers. The transfers have limited duration or tenure shall cease to be operative when incumbent is transferred on cessation of exigency.
(v). C.A.T., Lucknow Bench decision in Bachole Prasad Bajpai Vs. Union of India and ors held that temporary attachment order was silent on the grounds of public interest or medical exigency and, therefore, it was not sustainable.
(vi). C.A.T., Jaipur Bench decision in case of R.P. Nag Vs. Union of India (UOI) and Ors. decided on 25.05.2004, reported in 2005(1)SLJ 317 CAT, held that the attachment can be said to be a temporary transfer. Since attachment involves movement from one place to another, payment of any allowance does not make any difference. Therefore, the contention of the respondents in the present case that the applicant has only been attached and the D.D.O. for him is still Mumbai Regional Office is not correct.
(vii). As held by High Court of Madhya Pradesh in case of Swati Singh Vs. M.P. Kshetra Vidyut Vitran Co. Ltd., reported in MANU/MP/1760/2013 dated 03.10.2013, administrative exigency and public interest have definite meaning and the reasons must be justified, transfer order can be passed only in administrative exigency and in public interest.
(viii). C.A.T., Chandigarh Bench in O.A.1221/2019 case of Anujit Kaur Vs. U.T. Chandigarh & others dated 24.12.2019 took a view that inter-cadre transfer is not permissible unless regulated differently by rules.
(ix). In case of Pushpika Chatterjee Vs. State of West Bengal and others, Calcutta High Court in order dated 25.04.1972 held applicant's transfer as not in public interest and it was only for retaining another person on a particular post.
(x). In case of C. Ramanathan Vs. Acting Zonal Manager, Food Corporation of India and others, Madras High Court in its order dated 08.08.1979 held that transfer of the applicant, instead of taking disciplinary action against him, was made and guidelines for transfers were not followed.
(xi). In case of B. Vardha Rao Vs. State of Karnataka & Others in Supreme Court in SLP 7904/1986 dated 26.08.1986, it was observed that frequent, unscheduled and unreasonable transfers can harm the employee.
Based on the above caselaws, the applicant claims that action of the respondents in transferring him from PA (CO/RO) to PA (PO) under the garb of temporary attachment is arbitrary and it cannot be justified.
3(e). As per an article published on website of Centers for Disease Control and Prevention (CDC), USA, it has been stated that having type-1 or type-2 diabetes can make a person more likely to get severely ill from Covid-19. The age of the person is irrelevant for getting infected with Covid-19. The applicant visited Ahmedabad in September, 2020 after he was tested negative for Covid-19 to complete registration process of sale of his ancestral property. Therefore, he has not violated Covid-19 protocol and his visit to Ahmedabad has no relevance to issue involved in the matter of his transfer. The claim of the respondents that Shri Abhilash Saxena who had been attached to Kharodi P.O. had to be sent back and, therefore, the applicant was attached there is not justified. The respondents should not have rejected his leave applications submitted with delay of few days and should not have treated him as unauthorizedly absent. Thus it is clearly established the action of the respondents is full of malice and misuse of power, therefore, this O.A. should be allowed.
Contentions of the respondents :
In their reply and response to rejoinder, the respondents have contended as under :
3(f). The applicant has been purely attached on temporary basis to Mumbai North-West Division with approval of Competent Authority by order dated 25.08.2020 and as per exigency of service. The Sr.Supdt. Of Post Offices, Mumbai North-West Division has attached him with Kharodi Post Office. Thus no transfer order has been issued for the applicant, he is still working on a Group 'C' post only and his salary is also drawn by the Drawing and Disbursing Officer at Regional Office, Mumbai. Thus the applicant is still borne on the establishment of the Mumbai Regional Office.
3(g). The order of attachment issued by the respondents is not related to Recruitment Notifications. Performance of every Government employee is assessed annually in APAR which is used as inputs for assessing suitability for further advancement in career, such as confirmation, promotion, selection for assignment elsewhere, etc. 3(h). The applicant was confirmed in service from 12.02.2020 on completion of his probation by Memo dated 04.03.2021. The Postal Assistant at Regional Office, Mumbai is involved in multilevel monitoring of receipts, booking and despatches of articles at designated Post Offices, and a Postal Assistant at Regional Office does not handle those articles. The letter about appreciation of efforts were issued to all Regions on 05.07.2019 and its copy was not handed over to the applicant but even then he claims that his work was appreciated by showing the letter addressed to PMG Mumbai Region and, therefore, his claim is false.
3(i). Although the applicant was on medical leave in September, 2020, he travelled to Ahmedabad City for sale of his ancestral property without intimating or getting prior approval of the Competent Authority and thus he left the headquarters without permission during the pandemic situation. This shows his reckless behaviour, without waiting for report of his RTPCR test done on 28.08.2020 by which he was detected as Covid-19 positive and thereby he put his own life and of other colleagues in danger.
3(j). The applicant is aware about his appointment order dated 09.02.2018 which clearly stated in point (g) that appointment carries with it liabilities to serve in any part of the Circle and in special circumstances in any part of India. The appointee shall be liable for field services in time of war or national emergencies. Therefore, attaching him temporarily due to exigency of work at Kharodi PO was not wrong or illegal. Mumbai North-West Division also comes under Mumbai Region only and there is an acute shortage of staff in that Division and, therefore, to cater to the work, temporary attachment orders are issued when officials are directed to work from one office to another needy office in the interest of service due to administrative reasons. Therefore, in view of workload of Kharodi PO two Postal Assistants were deputed from other Post Offices to work there. Thus the applicant was posted there because of shortage of Postal Assistant officials in Goregaon East Post Office. The work of Kharodi PO is also being done by officials of PA Cadre and because of acute shortage of staff in Mumbai North-West Division such temporary attachments have been done. There is no malafide, arbitrariness, discrimination or illegal intention of competent authority in attaching him at Kharodi PO. All the staff members working at Regional Office, Mumbai and Circle Office, Mumbai are not the Postal Assistants (CO/RO), many staff members are also working on temporary attachment basis from PA (PO) cadre. In his place, Shri Vikas Mhatre is temporary attached to Regional Office from Mumbai South Division.
3(k). The leave applied for by the applicant from 29.08.2020 and from 12.09.2020 to 28.09.2020 was approved by the competent authority. For certain period, the leave was not sanctioned because no prior approval had been taken by him.
The applicant failed to obtain prior permission on leave headquarters and just sent emails on 14.09.2020 for 14 days leave from 12.09.2020 onwards stating that Panacea Hospital, Panvel had advised him 14 days bedrest from 12.09.2020. As reported by Sr.SPO, Kharodi Post Office the applicant frequently remained absent from duty by informing only telephonically or by SMS which resulted in disturbance of office arrangement. The Sr. SPO also reported that the applicant was absent from 08.02.2021 to 16.02.2021 and 01.03.2021 to 09.03.2021 without applying for any kind of leave and, therefore, he was shown as absent for that period. For temporary attachment there is no travelling allowance allowed as per SR-114. In addition the applicant has also been indulging in misconduct. He has remained abruptly absent from duty without getting approval of leave from the leave sanctioning authority, which is in violation of CCS (Conduct) Rules, 1964. Thus he is not sincere in performance of his duties. Since he had submitted papers about his treatment from private hospital, the respondents directed him for second medical opinion from the J.J. Hospital, Mumbai as per prescribed procedure and rules and the part salary payment for certain period in October, 2020 was released to him after the leave was sanctioned by the competent authority.
3(l). The caselaws relied upon by him are not applicable to temporary attachments. Because of habitual absentism of the applicant, the work of Regional Office, Mumbai has also suffered and, therefore, the competent Authority decided to attach him temporarily to a needy division where shortage of staff was there.
The Apex Court has settled that transfer of a Government servant appointed to a particular cadre of transferable posts from one place to another is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Even if the transfer is in violation of any such guidelines, the Court would not interfere unless the transfer is malafide or in violation of any statutory rules. Allegations of malafides have to inspire confidence in the Court or based on concrete materials and not simply based on the conjectures or surmises.
The respondents have also relied on caselaw of Bachole Prasad Bajpai Vs. Union of India and Others and R.P. Nag Vs. Union of India (UOI) and others decided on 25.05.2004 reported in 2005(1) SLJ 317 CAT.
The respondents further rely on M.P. High Court decision in Writ Appeal no.861/2020 in Shri Chandragupta Saxena Vs. Bank of Baroda & Others decided on 01.10.2020, which by relying on law settled by the Apex Court in several cases, held that the authority which made the transfer was competent and the transfer order had been issued on administrative grounds and therefore, the Writ Petition was dismissed.
Representations submitted by the applicant have been decided by PMG, Mumbai RO as replied with letter of 22.03.2021. If he was not satisfied with it, he could have filed another representation to Chief PMG, Maharashtra to whom PMG, Mumbai RO is subordinate. But did not avail of such remedy.
The applicant has attempted to distort the facts about applying for leave and its sanction. The impugned order is only of temporary attachment of the applicant issued in public interest and for administrative reasons, and it is not in violation of mandatory statutory rules. Therefore, this O.A. should be dismissed.
4. Analysis and conclusions :
I have carefully considered the averments made by the applicant in the O.A. and contentions made in the O.A., rejoinder and during arguments of his counsel as well as contentions of the respondents in the reply and during arguments of their counsel. Based on it, the conclusions emerge as follows:
4(a). The main contention of the applicant in this O.A. is against the impugned order dated 25.08.2020 issued by the Assistant Director Postal Services (I) by which, with the approval of Competent Authority, the applicant while working as PA (PO), Mumbai R.O. was attached to Mumbai North-West Division in the interest of service with immediate effect and Sr.Supdt. Of Post Offices, Mumbai North-West Division was directed to issue further posting of the applicant at needy Post Office in the Division and in pursuance to that, the order was issued by Sr.SPO, Mumbai North-West Division dated 26.08.2020 temporarily attaching the applicant to Kharodi Post Office in the interest of service till further orders.
4(b). The applicant claims that this order of the respondents is a transfer order under cloak of administrative exigency in the interest of service, it is punitive and issued with malafide. However, the reading of the impugned order clearly reveals that it is not an order of transfer or deputation of the applicant, it is an order of his only temporary attachment from Mumbai Region Office to Kharodi Post Office, Malad West.
4(c). The applicant had earlier challenged these orders of the respondents in O.A.130/2021 which was disposed of on 15.02.2021 directing the respondents to consider and decide the applicant's pending representations with reasoned and speaking order. The respondents thereafter have decided the applicant's representations by order dated 22.03.2021 rejecting them and informing him that the order of 25.08.2020 is only a temporary arrangement and his request would be considered as soon as exigency is over. The applicant challenged the order of the Tribunal in Bombay High Court by Writ Petition No.1153/2021 which was dismissed on 20.04.2021.
4(d). The main reasons contended by the applicant against the order of this temporary attachment are that there was no administrative exigency of that order, there were no vacancies in the Mumbai North-West Division at that time, and the impugned orders are against the transfer policy and instructions of the respondents themselves. He got infected with Covid-19 and he is highly susceptibility to it. He is a diabetic patient, the journey from Panvel to Kharodi takes 7 hours, even Travelling Allowance has not been paid to him and there was delay in release of salary for some period in October, 2020, there was no decision on his representation, and he was treated harshly when he approached his senior authorities for cancelling his order of transfer, inspite of his case papers related to Covid-19 infection and treatment issued by Panacea Hospital, Panvel, he was asked to approach J.J. Hospital, Mumbai, etc. 4(e). The applicant's counsel has also cited more than a dozen caselaws related to transfers and deputation to support her contentions. However, as mentioned above, the impugned orders are not of transfer or deputation of the applicant from Mumbai Region Office to Kharodi P.O., Mumbai North-West Division. It is an order of only temporary attachment of the applicant in the interest of service and for a limited duration. The respondents have assured to consider his request for withdrawing the impugned orders as soon as work exigency is over. Therefore, the caselaws relied upon by the applicant cannot help him. The instructions issued to CPMG, Maharashtra dated 24.06.2015 were for not sending RO/CO PAs on deputation to POs. They are also not relevant to the present case.
4(f). The claim of the applicant that there was no vacancy at Kharodi PO cannot be accepted because as explained by the respondents, Kharodi PO is one of the delivery Post Offices with sanctioned strength of HSG-II cadre as 1, and 4 PAs. But due to non-availability of regular HSG-II cadre SPM, the supervisory work of Kharodi PO is manned by officials of PAs cadre. Thus that Post Office is being run with acute shortage of staff and, therefore, to cater to the need of work, the Division office frequently issues orders of temporary attachment of PAs from one office to another needy office in the interest of service due to administrative reasons.
4(g). These facts submitted by the respondents clearly show that there was shortage of sanctioned staff with Kharodi PO and PAs from other offices were temporarily attached to it. In fact when the applicant joined there, another temporarily attached PA was relieved (Shri Abhilash Saxena).
4(h). The claim of the applicant that the transfer guidelines of the respondents do not permit such transfers is also not justified. As per the transfer guidelines (copy placed on record by the applicant himself at Annex-A-43), under Rule 37 of Postal Manual Volume IV, it has been stipulated that an official should not be transferred from one unit to another, either within the same Circle or another Circle unless he has completed probation period satisfactorily. The applicant was appointed by order of 09.02.2018 as PA and he was allotted to office of PMG, Mumbai Region, Mumbai. By order of 28.02.2018, he was posted to Mails Section, Mumbai Region Office. Thereafter he has been confirmed in service as PA from 12.02.2020 by order of 04.03.2021 and therefore, this stipulation is not applicable in the case of the applicant because on successful completion of probation by him, he has already been confirmed in service from 12.02.2020. In his appointment order of 09.02.2018, it has been clearly mentioned that the appointment carries with it liabilities to serve in any part of the Circle and in special circumstances, in any part of India and also for field services in time of war or national emergencies.
4(h). Under General conditions A(ix), under Rule 38, inter- Circle and intra-Circle transfer from one distinct cadre to another viz. Post Offices to Circle Office, Regional Office, SBCO, Postal Assistant to Sorting Assistant, etc or vice versa shall not be allowed. The applicant's contention that as per this stipulation, as he belongs to RO/CO cadre, he cannot be transferred and posted as PA (POs) is not justified as there is no transfer here. Since the impugned orders are neither orders of transfer nor of deputation nor even temporary attachment of the applicant to work as Sorting Assistant, this contention of the applicant is not valid.
4(i). The applicant has not been able to place on record any instructions of the respondents or guidelines prohibiting temporary attachment from one office to another office as per work requirement of office. When an employee is transferred from one office to another or sent on deputation from one office to another, the relieving office issues Last Pay Certificate, and along with Service Book of the employee which are then sent to the new office for dealing with establishment matters of the transferred or deputed employee. As the respondents have explained, in the present case the impugned order being purely of temporary attachment due to urgent work requirement of Kharodi PO, neither the LPC has been issued to the applicant nor his Service Book and other service record has been sent to the office of Mumbai North-West Region. All his establishment related matters are still being handled by the Mumbai Region Office.
4(j). The applicant has made certain highly exaggerated claims e.g. his claim of high susceptibility to Covid-19 infection and fact of his infection. This claim is based on the details on website of Centers for Disease Control and Prevention (CDC), USA, in which under over-view it has mentioned that the persons having type-1 or type-2 diabetes are more likely to get severely ill from Covid-19. However, the same site also mentions that older adults are more likely to get severally ill from Covid-19 and more than 80% of Covid-19 deaths occur in people over age 65 and more than 95% of Covid-19 deaths occur in people older than 45 years. The applicant himself is only 35 years old and even if he is diabetic, the chances of falling severely ill at relatively younger age are comparatively much less. He is not one of those few infected with Covid-19. By now about three and half crore persons got infected in India itself and about 2.5 lakh persons have died due to Covid-
19. He himself recovered quickly from it and then also visited Ahmedabad even before getting certified as fit. Therefore, his attempt to create leave about his infection is mischievous. 4(k). The applicant's claim that his journey to attend work at the Kharodi PO takes more than 7 hours is also exaggerated. Excluding the period when local train services in Mumbai were not operating, from Panvel to Andheri there is a direct train service and journey by this train from Panvel to Malad takes only about 1:45 minutes and from Malad West Railway Station to Kharodi it takes only about 10-15 minutes. About non-release of part-salary of October, 2020, the applicant himself has admitted that it has been released subsequently and the respondents have explained that part of the applicant's salary was released late after leave has been sanctioned by the leave sanctioning authority.
4(l). The applicant has also attempted to make out a grievance for non-payment of Travelling Allowance. However, he has not brought on record any evidence in terms of rules and instructions for payment of Travelling Allowance when an employee is temporarily attached to an office. The respondents have stated that there is no provision of payment of Travelling Allowance when a person is temporarily attached. However, if the applicant is able to find any provision in the relevant rules and instructions and if the other PAs temporarily attached like him are being paid Travelling Allowance, then he can submit a representation to the representations which should be considered by them in a fair manner.
4(m). The applicant's claim that there was no response to his representation is also baseless. After his earlier O.A. was disposed of directing the respondents to decide his pending representations they have decided the representations with a detailed and reasoned order dated 22.03.2021, explaining that Shri Abhilash Saxena, P.A. in the Mumbai North-West Division posted at Goregaon East Post Office was also sent on temporary attachment on Kharodi Post Office and he was sent back only when the applicant joined there, the leave due and admissible has been granted by the leave sanctioning authority and salary for the month of October, 2020 has been disbursed to him.
4(n). About his suffering from diabetes type-2 and comorbidity to Covid-19 infection, he did not inform the respondents during pre-appointment formalities. The contention of the applicant that after he submitted his case-papers related to Covid-19 positive test and subsequent treatment taken from Panacea Hospital, Panvel, there was no need for referring him again to J.J. Hospital is also not acceptable. Since the applicant remained absent without getting prior approval of leave, and underwent treatment at a private hospital, the respondents were within their authority to get the applicant properly tested/diagnosed second time for his sickness. Therefore, they referred him to J.J. Hospital, Mumbai.
4(o). As mentioned in the reply of the respondents, there have been repeated instances of irresponsible behaviour / misconduct of the applicant. For example, proceeding on leave without taking prior approval of the Competent Authority. Even when he was on leave because of Covid-19 infection and his fitness had not been certified, without informing the respondents he visited Ahmedabad on 14.09.2020 for carrying out property transactions. He has also wrongly claimed appreciation of his work when no such letter was issued to him and the communication relied upon by him was only for different regions of the respondents and not to individual employees.
4(p). The applicant has also attempted to make out an issue about harsh treatment to him when he met his seniors to get his temporary attachment order cancelled. However, this incident is after his order of attachment had been issued and therefore, the applicant cannot take plea that the respondents were biased against him and his temporary attachment has been issued because of malice. The respondents have also mentioned about his misbehaviour with his officers on that occasion. This grievance cannot be dealt with in this O.A. and he may pursue other legal remedies. He frequently applied for leave only through email to SPM, Kharodi, he was repeatedly absent from 08.02.2021 to 16.02.2021 and from 01.03.2021 to 09.03.2021 without applying for leave of any kind and, therefore, he was marked in the service record as unauthorisedly absent. I find nothing wrong in this action of the respondents.
4(q). Reliance of the respondents in the Apex Court caselaws in case of Mrs.Shilpi Bose and others Vs. State of Bihar and others, AIR 1991 SC 532, and Madhya Pradesh High Court decision on W.P.No.861/2020, is justified that the Courts should not interfere with transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory rule or on the ground of malafide.
In view of the above conclusions, I do not find any merit in this O.A. and, therefore, it deserves dismissal.
5. Decision :
O.A. dismissed. No costs.
(Dr.Bhagwan Sahai) Member (A).
H.