Central Administrative Tribunal - Delhi
Dr. Madhu Dalela vs Union Of India on 20 October, 2013
Central Administrative Tribunal Principal Bench OA No.2705/2012 Reserved On:01.10.2013 Pronounced On:30.10:2013 Honble Shri G George Paracken, Member (J) Dr. Madhu Dalela Deputy Director, Song and Drama Division, Ministry of Information and Broadcasting, R/o 11UF, Tansen Marg, Mandi House, New Delhi-110001. Applicant By Advocate: Shri V.S.R. Krishna. Versus 1. Union of India Through the Secretary, Ministry of Information & Broadcasting, A Wing, Shastri Bhawan, New Delhi-110001. 2. Shri L. Vishwanath Additional Director Incharge of Song & Drama Division, Ministry of Information and Broadcasting, Soochna Bhawan, Lodhi Road Complex, New Delhi-110003. Respondents By Advocate: Shri R.V. Sinha. ORDER
Applicant in this Original Application has challenged the Annexure A-1 impugned Office Order dated 09.08.2012 issued by the Respondent No.1 transferring her from Song and Drama Division (S&DD for short), New Delhi to the Regional Office of S&DD at Ranchi. In the said order, the Respondent has also stated that the Applicant stood relieved from her present place of posting with immediate effect.
2. The brief background of this case is that Applicant initially joined the Respondent-S&DD as an Actress. Later on, she was appointed as Manager and then as Assistant Director in the same Division. Subsequently, on the recommendation of the UPSC, she was appointed as Deputy Director with effect from 01.08.2000 on direct recruitment basis and posted at the Regional Office, Chandigarh. From there, she was posted in the Directorate of Field Publicity, New Delhi under the Respondent No.1. Meanwhile, the post of Director in S&DD became vacant on 01.07.2010 and against that post, Respondent No.2, namely, Shri L.R. Vishwanath was given the additional charge vide orders dated 13.09.2010 and 01.06.2012 but the then Joint Director, S&DD disputed his competency to hold the charge of Director and challenged it before this Tribunal. However, according to the Applicant, Respondent No.2 was under the impression that she was responsible for the aforesaid litigation and as a result, vide his note dated 23.12.2010, he proposed to post her out of the Headquarters Office and accordingly, she was relieved from the office of the Field Publicity and posted at the Regional Office at Chandigarh again, vide Annexure A-3 order dated 27.12.2010. Applicant challenged the aforesaid order before this Tribunal, vide OA No.963/2011, and this Tribunal, vide its order dated 20.04.2011 disposed of it without going into its merit, but giving permission to her to make a representation against it. On the basis of the said representation, the Respondent No.1, vide its order dated 29.04.2011, posted her to the Headquarters Office of S&DD at New Delhi with effect from 02.05.2011. Thereafter, vide order dated 02.05.2011, the said OA was dismissed as infructuous.
3. However, according to the Applicant, after she has joined the Headquarters Office based on the aforesaid order, the Respondent No.2 started ill treating her. He passed innumerable orders in frequent succession changing her work distribution. She was also humiliated before her juniors officers/staff passing taunting remarks against her. She has also stated that the Respondent No.2 is in the habit of making out false cases against the officials/staff who are opposed to him and sheltering those who are in his coterie like Shri N. Chatterjee, Assistant Director (Admn.) and Shri Trivender Bhat. They misbehaved with her on 14.06.2012 at his behest. When the harassment by him and his coterie reached beyond tolerable limit, she made a representation dated 20.06.2012 against them to Respondent No.1, followed by a complaint dated 22.06.2012 to the SHO, Police Station, Lodhi Colony. However, in retaliation, the Respondent No.2 gave a legal notice to her on 17.07.2012 making several allegations against her and asking her to tender unconditional apology and also to publish the same in any English and Hindi daily newspaper widely circulated in New Delhi and further to compensate him for the loss of reputation and mental agony by paying a sum of Rs.50,00,000/- (Rupees Fifty lakhs only) within 7 days. According to the said legal notice, her representations dated 20.06.2012, 21.06.2012, 26.6.2012 and 09.07.2012 about him to the Secretary, Ministry of Information and Broadcasting, New Delhi are defamatory and causing damage to his reputation, dignity and honour. She was also informed by the said legal notice that, in case of any failure on her part, he will proceed against her for criminal prosecution under Section 499 and 500 of the Indian Penal Code and also civil proceedings for damages and compensation, without any further notice. Further, she has stated that when she was holding the additional charge of S&SD, Lucknow in terms of the order of the Respondents dated 04.07.2012, she noticed certain irregularities committed by Shri N. Chatterjee, Assistant Director (Admn.) and called for his explanation but in retaliation, vide order dated 09.08.2012, the said charge was taken away from her. Another instance she mentioned was that when she pointed out the irregular appointment of Shri Trivender Bhat to the post of Makeup Artist-cum-Dresser, vide her complaint dated 23.07.2012, though Respondent No.2 had to take action against him yet, due to his annoyance with her, he proposed suspension of the Applicant from service. Though the Respondent No.1 had also supported the aforesaid proposal, they could not get the approval of the Honble Minister for Information and Broadcasting who is the competent authority in the matter. As the Respondent No.2 failed in his aforesaid attempt, he proposed to transfer her again. According to the Applicant, instead of taking action on her complaint against Respondent No.2, Respondent No.1 agreed with him to transfer her to the Regional Office, Ranchi and ordered accordingly vide the impugned order dated 09.08.2011. Against the said order, she made the Annexure A-10 representation dated 13.08.2012 but the same was not considered. She has, therefore, filed this Original Application seeking a direction to quash and set aside the aforesaid impugned transfer order and to pass any such order as deem fit and proper in the interest of justice. She has also sought an interim direction to stay the aforesaid transfer order during the pendency of this OA. Finding, prima facie case in her favour, this Tribunal, vide order dated 17.08.2012, stayed the aforesaid order.
4. The Applicant has stated in this OA that the last incumbent posted in Regional Office of S&DD, Ranchi was Shri Gangurde and he was transferred to Regional Office Bhopal in February, 2008. Thereafter no regular officer in the rank of Dy. Director was posted there before the Applicant was transferred to Ranchi vide the impugned order. Thus, post of DD in Regional Office at Ranchi remained unfilled for about four and half years and in terms of the orders of the Government of India, Ministry of Finance O.M. No.7 (1) E.Co-ord./2012, dated 01.12.2012 post that is unfilled for more than one year is deemed to have abolished and only in exceptional and in rare cases, they can be approached to revive them. The said OM reads as follows:-
Expenditure Management Economy Measures and Rationalization of Expenditure.
In continuation of this Departments OM of even Number, dated 31.05.2012 (Sl.No.89 of Swamynews of July, 2012), on the subject cited above, it is further stated that posts that have remained vacant for more than a year shall not be revived except under very rare and unavoidable circumstances and after seeking clearance of the Department of Expenditure. This shall be implemented with immediate effect.
Secretaries to the Government of India and Financial Advisers are requested to ensure strict compliance of the above instructions.
5. In this regard she has also relied upon S&DD ID No.4/42011-/Admn.I dated 01.07.2013 addressed to the Ministry of I&B wherein Shri M. Rajamannar, Director, S&DD, has stated that Shri N. Chatterjee and Shri L.R. Vishwanath had suppressed the fact that the post of Dy. Director in the Regional Office at Ranchi deemed to have been abolished with the motive to get the transfer of the Applicant. The said letter is reproduced as under:-
Sub: Information sought under RTI Act, 2005 by Dr. Madhu Daleta regarding details of OA No.2705/2012.
Reference Ministrys ID No.I-11011/390/13-FS dated 14.06.2013 on the above mentioned subject. The information sought in para 2 of the said ID note is furnished as under:-
The post of Deputy Director at S&DD, Ranchi became vacant with effect from 01.04.2008 after the transfer of Shri P.A. Gangurde, Deputy Director, S&DD from Ranchi Regional Centre to Bhopal Regional Centre. In all six posts have become vacant with effect 01.04.2008, 01.08.2009, 01.01.2011, 01.05.2011, 01.03.2012 and 01.12.2012 after the superannuation retirement of the concerned offices holding these posts.
No action whatsoever was taken in S&DD to fill up the vacant posts including the post at S&DD, Ranchi. It may kindly be seen that after 01.04.2008 till November, 2012, six posts of Deputy Director became vacant. Though a file was opened in January, 2011 to fill the two promotional posts, proper action was not taken to fill up two promotional posts. As regards four direct recruitment posts, no action whatsoever was taken in S&DD. The administration in S&DD is totally defunct in this matter for which Shri N. Chatterjee, as Administrative Officer I/c of administration in the Hqrs. Office (with additional charge since February, 2009), Assistant Director (Admn.) since March, 2010 and Deputy Director (Admn.) I/c since March, 2011 and Shri L.R. Vishwanath, ADG I/c of RR&TD who was holding the charge of Director, S&DD since September, 2010 were prominently responsible.
Out of six vacant posts, five posts are vacant for more than one year. Hence, in accordance with the instructions issued by the Ministry of Finance from time to time during last many years, they are deemed as abolished. No action whatsoever was taken for revival of these posts.
It is pertinent to mention that when the Ministry of I&B asked S&DD about the vacancy position in the grade of Deputy Director in S&DD before issuing transfer order in respect of Dr. Madhu Dalela, these facts were suppressed by Shri N. Chatterjee and Shri L.R. Vishwanath with the motive to get transfer order in respect of Dr. Madhu Dalela issued.
(M. Rajamannar) Director.
6. The learned counsel for the Applicant has relied upon the following judgments of the Apex Court/Central Administrative Tribunal:-
(i) E.P. Royappa Vs. State of Tamil Naidu and Another AIR 1974 SC 555. The relevant part of the said order says that transfer based on extra administrative considerations having no relevance to the question of transfer cannot be permitted.
(ii) The Governing Body, St. Anthonys College, Shillong and Others Vs. Rev. Fr. Paul Petta of Shilong East Khasi Hills AIR 1988 SC 205. The relevant part of the said order says that in cases where the transfer of an employee seriously affects his status, prior opportunity of hearing is required to be given.
(iii) Somesh Tiwari Vs. Union of India and Others 2009 (2) SCC 592 wherein the Apex Court has held that while the transfer in administrative exigencies ought not be interfered with by the Courts, transfer as mala fide exercise of power cannot be allowed to be sustained.
(iv) Dharam Pal Singh Vs. Union of India and Others decided by the Calcutta Bench of this Tribunal on 08.09.1989 (TA 961/1986) wherein it was held that the transfer of the Applicant therein to a place where no post was available was arbitrary and hence unsustainable.
7. Respondent No.2 who has been impleaded in this case has not filed any reply by himself. However, the Deputy Director S&DD filed the reply on behalf of the S&DD stating that Respondent No.1 received at least 5 communications from Director, S&DD containing serious allegations against her conduct and past activities including corruption. Director, S&DD has also forwarded a letter dated 19.07.2012 from Government of Uttarakhand according to which police has taken action against her for her fraudulent and grave criminal activities through the International Theatre Society misusing Rs.25 lakhs of funds given as grant for the proposed International Theater Natya Academy in Dehradun. The allegations made against her were that she secured appointment by furnishing fake certificates, had a criminal record, remained in judicial custody for 14 days, received Rs.25 lakhs from the Uttarakhand Govt. to run an NGO, impersonating herself as Dr. Madhurima, did not intimate about her Membership in the said NGO, was under the scanner of CVC, declared different persons as her husband thus creating doubt about her marital status and indulged in terrorist activities. Since the civil administration and the Vigilance Section proposed to initiate and take action for her misconduct, it was considered appropriate to initiate administrative action to transfer her from Delhi to Ranchi. Respondent No.2 has also written to different police authorities about the activities of the applicant vide letters dated 24.06.2012 and 28.06.2012. Simultaneously, he has also proposed for her suspension from service.
8. The said Respondent has further submitted that transfer of an employee being an incidence of service, Courts and Tribunals may not interfere with it, unless it is shown to be arbitrary and violative of statutory provisions. Transfer order having been passed by the competent authority, it was incumbent upon the applicant to join at the new place of posting and thereafter raise her grievance before the authority competent. In this regard, it has placed reliance on the judgment of the Apex Court in S.C. Saxena Vs. UOI & anr., 2006 (9) SCC 583 wherein it was held as under:-
6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, a government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar , Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly+' remaining absent from duty.
7. The learned counsel for the appellant urged that the appellant had reported for duty on 7-7-1989 and that he had applied for leave for 10-7-1989 and 11-7-1989 and, therefore, the enquiry officer could not hold him guilty of the misconduct of continuously remaining absent unauthorisedly. It has also been attempted to impress upon us that the enquiry officer found the appellant only partly guilty and that, if the disciplinary authority wanted to differ therefrom, he should have followed the Rules, issued notice in this connection and given cogent reasons for his difference of opinion with the enquiry officer. We are not impressed by this argument. The enquiry officer rightly said that the charge could not be fully established because the evidence showed that between 7-7-1989 to 11-7-1989 the appellant could not be said to have remained absent unauthorisedly. Of course, there is no doubt that the appellant was absent unauthorisedly for the rest of the period. The enquiry officer also took cognizance of this fact and the disciplinary authority noticed it. This is not a situation where the disciplinary authority was disagreeing with the findings of the enquiry officer, which would have required following of some procedure prescribed under the Rules. On the contrary, barring five days between 7-7-1989 to 11-7-1989, during the rest of the period the appellant was absent unauthorisedly, and the enquiry officer and the disciplinary authority were in agreement thereupon.
8. A final, if we may say so, desperate argument was made that the appellant had sufficient leave to his credit and, therefore, the respondents should have taken a liberal view in the matter and permitted him to resume duty when he attempted to resume in the year 1992 by sanctioning the leave that was available to his credit. In our view, the argument cannot be countenanced. Acceding to such an argument by courts, particularly this Court, has led to and will continue to lead to gross indiscipline in public service. We are unable to accept such an argument.
9. We find no reason to interfere with the order made by the Tribunal and the High Court. The appeal is dismissed accordingly without costs, but we make it clear that the appellant cannot be held guilty of unauthorised absence from 7-7-1989 to 11-7-1989.
9. Further, according to said Respondent, the balance of convenience is not in favour of the applicant and no irreparable loss is likely to be caused to her. Therefore, she is not entitled for any of the reliefs sought for in this OA. It has also been contended that there is no reason as to why this Tribunal should exercise its power of judicial review in the matter of transfer.
10. During the course of arguments, the learned counsel for the Respondents Shri R.V. Sinha has also relied upon the following judgments of the Apex Court and order of this Tribunal in support of his argument that the Courts and Tribunals have only very limited scope to entertain any case of transfer of the Government employee from one place to another in the exigencies of service:-
(i) B. Vardha Rao Vs. State of Karnataka 1986 (4) SCC 131.
(ii) Shilpi Bose Vs. State of Bihar and Others 1991 Supp.2. SCC 659.
(iii) Union of India and Others Vs. S.L. Abbas and Others 1993 (4) SCC 357.
(iv) State of M.P. & Others Vs. S.S. Kourav and Others 1995 (3) SCC 270.
(v) State of U.P. and Another Vs. Siya Ram 2004 (7) SCC 405.
(vi) S.C. Saxena Vs. U.O.I. & Others 2006 (9) SCC 583.
(vii) Mohd. Masood Ahmed Vs. State of U.P. and Others 2007 (8) SCC 150.
(viii) Airports Authority of India Vs. Rajeev Ratan Pandey 2009 (8) SCC 337.
(ix) Tushar D. Bhatt Vs. State of Gujarat and Others 2009 (11) SCC 678.
(x) Sujata Kohli Vs. H.. of Delhi 148 (2008) DLT 17 (DB).
(xi) Order dated 21.5.2012 of this Tribunal in OA No.1388/2012 Rajesh Somaal Vs. U.O.I. & Another.
(xii) Interim order in OA No.2602/2012 Shankarsen Dash Vs. U.O.I. & Others.
(xiii) Order dated 11.09.2012 in OA No. 2244/2012 R.R. Dhavle Vs. U.O.I and Others as upheld by Honble High Court vide its judgment dated 19.10.2012 in W.P. ( C) No.6661/2012.
11. I have heard the learned counsel for the Applicant Shri S.N. Kaul and the learned counsel for the Respondents Shri R.V. Sinha. As submitted by the Respondents, the transfers and postings of its employees are, generally speaking, purely internal matters of the Department concerned. Depending upon the exigencies of service or on the basis of notified rules/policy, the Departments are free to transfer their employees, particularly those having all India transfer liability. They are just incidents in service and for that reason, they are not subject to any judicial intervention and adjudication. But all transfers are not based on fair considerations. It is a settled law that when the transfer is the outcome of mala fide exercise of power, the Courts can do interfere. It is on record to show that Shri L. Vishwanath (Respondent No.2) is instrumental in transferring the Applicant on account of his personal vendetta against her. It is unheard that the competent authority who is empowered to initiate disciplinary proceedings against an employee for any alleged misconduct is issuing legal notice threatening that if he/she does not pay Rs.50/- lakhs as compensation, he will get criminal/civil proceedings initiated against him/her. It is on record that the said Respondent tried his level best to first suspend the Applicant and keep her out of her job. But when he failed to do so as the competent authority was not satisfied or convinced with his recommendation, he immediately resorted to transfer her to the Regional Office at Ranchi when no post of Dy. Director is in existence there. The submission of the Director, S&DD Shri M. Rajamannar is on record that, with the ulterior motive for issuing the impugned order of transfer of the Applicant. Shri L.R. Vishwanath (Respondent No.2) and Shri N. Chatterjee suppressed the fact that the post of Dy. Director in the Regional Office at Ranchi has not been filled up for the last 4= years and it got automatically abolished. Thus, it is quite evident that the Respondent No.2 Shri L.R. Vishwanath is guilty of misleading the competent authority in passing the impugned order of transfer of the Applicant.
12. In the above facts and circumstances, I allow this OA and quash and set aside the order dated 09.08.2012 transferring the Applicant from Headquarters Office of S&DD to Regional Office, Ranchi.
13. Before I part with this order, in the light of the submission made by the Director Shri M. Rajamannar, S&DD, New Delhi, I am constrained to observe that the role played by Shri L.R. Vishwanath in suppressing material facts from Respondent No.1 and misleading it to get the transfer of the Applicant to a non-existent post is quite reprehensible and the Respondent No.1 shall look into the matter for taking appropriate action in the matter.
14. Further, in the aforesaid facts and circumstances of the case, I award a cost of Rs.5000/- (Rupees Five Thousand ) to the Applicant and against Respondent No.2 which shall be recovered from his pay and allowances.
(G. George Paracken) Member (J) Rakesh