Central Administrative Tribunal - Ernakulam
Attakoya.M vs Administration Of The Ut Of Lakshadweep on 17 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.181/00040/2015
Tuesday, this the 17th day of May, 2016
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
Attakoya.M.,
Proof Reader cum Translator,
Lakshadweep Government Press, Kavaratti.
Residing at Mashaikena Pura, Kavaratti - 682 555.
U.T of Lakshadweep. . . . . . Applicant
(By Advocate Mr.Sandesh Raja K)
Versus
1. Administration of the UT of Lakshadweep,
represented by the Administrator, Secretariat,
UT of Lakshadweep, Kavaratti - 682 555.
2. The Director of Printing,
Department of Stationery and Printing,
Secretariat, UT of Lakshadweep, Kavaratti - 682 555.
3. The Secretary, Department of Stationery and Printing,
Secretariat, UT of Lakshadweep,
Kavaratti - 682 555. . . . . . Respondents
(By Advocate Mr.S.Radhakrishnan)
This application having been heard on 23 rd March 2016, the Tribunal
on 17th May 2016 delivered the following :
ORDER
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER As per the pleadings in the amended O.A the applicant is aggrieved by Annexure A-5 Office Order which relieves him from the post of Proof Reader cum Translator at Lakshadweep Government Press, Kavaratti to Unit Press at Agatti. According to him in 2001 due to administrative exigencies the post of Proof Reader cum Translator in the Government Press (LGP), Kavaratti was temporarily shifted to Agatti Unit and the applicant also was transferred to Agatti vide Annexure A-1 order dated 19.10.2001. After working in Agatti for more than a decade he was transferred to Headquarters Press at Kavaratti along with post vide Annexure A-2 order dated 18.12.2012. Applicant states that Annexure A-2 order was issued with the approval of the Administrator as seen in Annexure A-3 File Notings which clearly state that the post of Proof Reader cum Translator was created for the Headquarter Press ie. LGP at Kavaratti. Though the applicant was transferred to Kavaratti, Respondent No.2 was not ready to acknowledge him as an employee of the Headquarters Press at Kavaratti and therefore was not disbursing salary from LGP, Kavaratti and did not grant the transfer allowance. The applicant therefore made Annexure A-4 representation. Respondent No.2 thereafter issued Annexure A-5 order dated 19.2.2015. Applicant was on casual leave on 20.2.2015. Annexure A-5 order was served to the applicant with Annexure A-6 relieving order dated 20.2.2015 by post. As the applicant is suffering from diabetics and blood pressure he took medical leave for one month from 21.2.2015. He sent application for medical leave along with medical certificates by registered post to Respondent No.2 but the latter refused to accept the same as seen from the postal endorsement on the returned envelope, photocopy of which is marked as Annexure A-7. Applicant further states that on 19.12.2012 Respondent No.2 issued Annexure A-8 corrigendum to Annexure A-2 order stating that there was no shifting of any post from Headquarters Press or Unit Press. Applicant alleges that Annexure A-8 corrigendum issued by Respondent No.2 is without authority and without jurisdiction. He, therefore, prays for :
1. Call for the records leading to the issue of Annexure A-5 and Annexure A-6 orders and to set aside Annexure A-5 and Annexure A-6 to the extent Annexure A-5 and Annexure A-6 transfers the applicant as proof reader cum translator from Kavaratti to Agatti.
2. To direct the 2nd respondent to accept the leave application of the applicant of the applicant from 21.2.2015 to 21.3.2015 and the sanction the same.
3. To issue appropriate direction or order to set aside Annexure A-8 corrigendum issued by the 2nd respondent to the extent it affects the applicant.
4. To declare that the post of proof reader cum translator is a post sanctioned and still existence in the Central Press, Kavaratti.
5. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
6. Award the cost of these proceedings.
2. A reply statement was filed by Respondent Nos.1-3 contending that the post of Proof Reader cum Translator was not shifted from Agatti to Kavaratti. Instead, the applicant was shifted from Agatti to Kavaratti on work arrangement basis. A corrigendum was issued on 19.12.2012 vide Annexure R-1 (a). By Annexure A-2 order the applicant was not transferred from Agatti to Kavaratti instead he was shifted on work arrangement basis and post is originally lying with Unit Press, Agatti and hence salary and other establishment matters were dealt with by Deputy Collector, Agatti. As the Disbursement Authority existed at Agatti and not at Kavaratti, the applicant cannot claim salary from Kavaratti. Transfer benefits are applicable only to transferred employee and in the case of the applicant he was not transferred but was shifted on work arrangement basis and therefore transfer benefits are not available to him. Regarding Annexure A-7 representation, it was not processsed through proper channel.
The letter addressed to the Director did not indicate whether it is from a Government employee or not and therefore the Director was not bound to accept any letter in that format. Respondents further contend that Annexure A-3 File Notings was superseded by subsequent department communications and the relevant extracts of the File Notings has been produced as Annexure R-1 (b). The respondents prays for rejecting the O.A.
3. Heard Shri.Sandesh Raja K, learned counsel for the applicant and Shri.S.Radhakrishnan, learned standing counsel for the respondents. Perused the record produced by both sides.
4. The dispute in this case is whether the applicant was posted on a work arrangement basis and whether the impugned Annexure A-5 order by which he was directed to report at Agatti unit, cancelling the work arrangement by which he was working at Kavaratti, was in order. Annexure A-1 is the order dated 19.10.2001 transferring the applicant from LGP Kavaratti to the LGP Agatti Unit with effect from 19.10.2001. Thereafter he was working continuously in Agatti and later, on his request, he was transferred from Agatti in 2012 vide Annexure A-2 order. In view of the contentious nature of this case this Tribunal is of the view that Annexure A-2 order requires to be examined closely. It reads:
Administration of the Union Territory of Lakshadweep Directorate of Printing & Stationery Kavaratti - 682 555.
F.No.1/8/2011-LGP/990 Dated 18th December 2012 ORDER Sub : Lakshadweep Government Press - Kavaratti - Transfer and Posting of Press Staff - Orders issued.
On the shifting of certain posts from Headquarters Press and Unit Press the following transfer and posting of staff is ordered with immediate effect in public interest.
Name and Designation From Island To Island Sl.No. 1 Smt.K.Raziya Beegum, Section Holder Kavaratti Agatti 2 Shri.M.Attakoya, Proof Reader cum Translator Agatti Kavaratti 3 Shri.B.Muhsin, Section Holder Kavaratti Kadmat
The officers concerned are requested to relieve the individuals according to the availability of conveyance with the direction to report before their new stations immediately.
This issues with the approval of the Administrator vide Dairy No.3277 in F.No.1/8/2011-LGP dated 22.10.2012.
Sd/-
(H.R.Singh) Director (P&S) (Underlining supplied)
5. According to the respondents Annexure A-2 order was a work arrangement and there was no shifting of post. They therefore contend that the impugned Annexure A-5 order was issued in cancellation of the work arrangement made in Annexure A-2.
6. Applicant states that in Annexure A/2 the Lakshadweep Administration had taken a conscious decision for shifting and transferring of the applicant from Agatti to Kavaratti. In support of this contention he has produced copies of the file notings of File No.1/8/2011-LGP. He relies on para 120 of the above file notings which reads as follows :
Kindly see the para from 117 N/F 34 onwards. The Hon'ble Administrator has approved the shifting and transfer of Mrs.Raziya Beegum Section Holder to Agatti and Shri.M.Attakoya, Proof Reader cum Translator, Officer in Charge of Press Unit from Agatti to Kavaratti and Shri.Muhsin, Section Holder to Unit Press, Kadmat as Officer in Charge.
(Italics supplied)
7. Respondents contend that a corrigendum to Annexure A-2 transfer order was subsequently issued vide Annexure A-8 order. Annexure A-8 reads :
Administration of the Union Territory of Lakshadweep Directorate of Printing & Stationery Kavaratti - 682 555 F.No.1/8/2011-LGP Dated : 19th December 2012 CORRIGENDUM In the Order F.No.1/8/2011-LGP/990 dated 18th Dec. 2012 regarding Transfer and Posting of press staff from one island to another.
'It is informed that there is no shifting of any post from H.Q press or unit press.' Sd/-
(H.R.Singh) Director (P&S)
8. According to the applicant, Respondent No.2 - the Director of Printing - had no power to shift any post in the Government Press without express sanction of the Administrator. Learned counsel for the applicant submitted that Annexure A-3 file notings show that sanction has already been obtained from the Administrator for shifting the post, vide the aforequoted para 120 of Annexure A-3 file notings. He submitted that therefore Annexure A-8 is illegal and arbitrary order without any authenticity or approval by the Administrator, Respondent No.1.
9. Shri.S.Radhakrishnan, learned standing counsel referred to para 124 to 129 of Annexure R-1 (b) file notings and submitted that there was approval of the Administrator for issuing Annexure A/8 'corrigendum'. Referring to the Apex Court decisions in Bahadursinh Lakhubhai Gohil v. Jagdishbhai Kamalia and others (2004) 2 SCC 65 and State of Uttaranchal and another v. Sunil Kumar Vaish and others (2011) 8 SCC 670 submitted that the file notings do not give rise to any right to any person. In Sunil Kumar Vaish's case (supra) the Apex Court had elucidated the position thus :
23. It is settled law that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be (Articles 77(1) and 166(1). Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in the manner specified in the rules made by the President or the Governor, as the case may be (Articles 77(2) and 166 (2). In other words, unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77 (1) and (2) or Articles 166 (1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77 (2) or Article 166 (2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned ad the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (see State of Punjab v. Sodhi Sukhdev Singh, Bachhittar Singh v. State of Punjab, State of Bihar v. Kripalu Shankar, Rajasthan Housing Board v.
Shri.Kishan, Sethi Auto Service Station vs. DDA and Shanti Sports Club v. Union of India.)
10. True, file notings are expressions of opinion of the official who writes such notings. In this case although the Administrator, who stands in the shoes of the President/Governor in respect of the affairs of the Union territory of Lakshadweep, has issued Annexure A/2 formal order regarding the decision reflected in para 120 of Annexure A-3 file notings. Nevertheless, the file notings clearly reveal that the Administrator had taken a conscious decision to shift the post of Proof Reader cum Translator and transferred the applicant to Agatti. By no stretch of imagination the same can be termed as a 'work arrangement'. Even though Annexure A/8 corrigendum, stated to be with the approval of the Administrator, has been issued by Respondent No.2 - the fact remains that Annexure A-2 was a transfer order in view of the specific wording in Annexure A-2 extracted above. A reading of Annexure A-2 clearly shows that it is a transfer and posting, even if it is to be presumed that there was no shifting of post.The contention of the respondents that it was only work arrangement is not reflected either in Annexure A-2 or in the Annexure A-8 corrigendum subsequently issued. Annexure A-1 transfer order transferring the applicant from LGP, Kavaratti to Agatti in 2001 strongly indicates that there was a post of Proof Reader cum Translator existing at LGP Kavaratti. Therefore, even though there was no shifting of the post as stated in Annexure A-8 corrigendum, the fact remains that Annexure A-2 was an order transferring the applicant to Kavaratti in the post of Proof Reader- cum- Translator.
11. As observed above, there is nothing to indicate that Annexure A-2 was merely work arrangement. Therefore, the wordings in the impugned Annexure A-5 order which states that the 'work arrangement' of the applicant at Kavaratti was cancelled and hence he is relieved from there is based on a non existant fact and it appears to be an arbitrary exercise of power by Respondent No.2. It appears to this Tribunal that the term 'work arrangement' used in Annexure A-5 was a brain child of Respondent No.2 who appears to be very arrogant and arbitrary in his nature, as evidenced from his refusal to receive a registered post, a photocopy of its envelope is is marked as Annexure A-7 in this case.
12. It may be true that the applicant, being aggrieved and agitated over the impugned transfer, has decided to proceed on leave on medical grounds. According to him, he had enclosed the leave application and the medical certificates in Annexure A-7 envelope and sent the same by registered post to Respondent No.2 which was flatly refused by the said official. The conduct of Respondent No.2 in refusing the Annexure A-7 registered post appears to be an unusual and abnormal behaviour, unbecoming of a Government servant. Government Offices receive a good number registered articles sent by post. The action to be taken on such letters is based on its contents. Here, the blatant refusal of Annexure A-7 by Respondent No.2 indicates his biased mind towards the applicant with an anticipated knowledge of the contents of the registered post.
13. Bias is a vitiating element in administrative decisions. Bias is of three types (1) pecuniary bias (2) personal bias (3) official bias ie., departmental bias, policy bias or bias to special matter. (see State of UP v. Mohammad Nooh (AIR 1958 SC 86) In the instant case, right from Respondent No.2's attempts to depart from the AdministratC3r's decision seen in para 120 of Annexure A-3 file notings and the subsequent steps he had initiated for issue of Annexure A-8 corrigendum (see Annexure R-1 (b) file notings) it appears to this Tribunal that Respondent No.2 was acting with a closed mind to ensure that the applicant's posting at Kavaratti vide Annexure A-2 should somehow or other be cancelled. Therefore it appears that he came with a new idea of picturising Annexure A-2 order as a 'work arrangement' inspite of the express wordings in Annexure A-2 that it is a transfer and posting and came up with Annexure A-5 order of 'relieving' the applicant to Agatti. This Tribunal is of the view that the act of Respondent No.2 constitute a legal bias and hence Annexure A-5 warrants interference by a process of judicial review.
14. Annexure A-3, especially Annexure R-1 (b) file notings clearly indicate the role of Respondent No.2 in bringing out Annexure A-8 corrigendum. File notings, of course, do not confer any right to applicant to lay a claim upon. Nevertheless, such file notings serve as ample proof of manifestation of the mindset and opinion of the officials who are the authors of such file notings. In Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram, (Co-Education) Higher Secondar School and others (1993) 4 SCC 10 the apex court observed :
'11. . . . . . For appreciating a case of personal bias or bias to the subject matter the test is whether there was a real likelihood of a bias even though such bias has not in fact taken place. De Smith in his Judicial Review of Administrative Action, (1980) at page 262 has observed that real likelihood of bias means at least substantial possibility of bias. In R.v. Sunderland Justices [1924] 1 KB 357 (373) it has been held that the Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. In R versus Sussex Justices [1924] 1 KB 256 (259) it has been indicated that answer to the question whether there was a real likelihood of bias depends not upon what actually was done but upon what might appear to be done. In Halsbury Laws of England, (4th Edn.) Vol.2, para 551, it has been indicated that the test of bias is whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias. The same principle has also been accepted by this Court in Manak Lal v. Dr. Prem Chand [1957] SCR 575. This Court has laid down that the test is not whether in fact, a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.'
15. This Tribunal, therefore, has no hesistation in allowing this O.A to the extent of setting aside the impugned Annexure A-5, Annexure A-6 and Annexure A-8 documents. Respondent No.2 is directed to recieve the contents of Annexure A/7from the applicant and to consider his application for leave for the period from 21.2.2015 to 21.3.2015 and to pass a reasoned order thereon. Ordered accordingly. Costs of this proceedings shall be paid to the applicant by respondent No.1 which shall be recovered from the then incumbant of Respondent No.2 (Dated this the 17th day of May 2016) (U.SARATHCHANDRAN) JUDICIAL MEMBER asp