Central Administrative Tribunal - Delhi
Vinay Dhingra vs Union Of India on 4 March, 2009
Central Administrative Tribunal Principal Bench OA No.315/2009 New Delhi, this the 4th day of March, 2009 Honble Dr. Ramesh Chandra Panda, Member (A) Vinay Dhingra S/o Late G. S. Dhingra R/o BG-6, 187 C, Paschim Vihar, New Delhi. Applicant (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India Through General Manager, Northern Railway, Baroda House, New Delhi. 2. The Chief Commercial Manager/G, Northern Railway, Baroda House, New Delhi. Respondents (By Advocate: Shri R. L. Dhawan) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri Vinay Dhingra, the applicant herein, has been aggrieved by his transfer made on administrative ground along with post from Delhi to Muradabad vide communication dated 26.12.2008 (Annexure A/1). He has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief{s}:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 26.12.2008 (Annex.A/1) declaring to the effect that the same is illegal, arbitrary, against the rules and consequently pass an order directing the respondents to retain the applicant in Delhi Division.
Alternative relief : That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to kept abeyance the impugned transfer order dt. 26.12.2008 till the finalization of the charge sheet dt. 19.01.2009.
Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant.
2. At the admission stage itself, learned counsel for the Applicant pleaded that the transfer was made on administrative ground though the Applicant was not served with any charge memo nor there was any penalty imposed on him. He was transferred on 26.12.2008 from Delhi to Muradabad division whereas the charge memo against him was issued on 19.01.2009. He argued that such a step to transfer the Applicant violates the Railway Board Circular No.250/1998. Accordingly, the interim relief prayed for was considered and respondents were directed to maintain status quo of the Applicant. The same interim relief has been continuing.
3. Brief facts of the case are that when the Applicant was working as ECRC at Indira Gandhi International Airport, on the basis of certain information received by the Railway authorities that reservation clerks are indulging in various malpractices by keeping heavy undeclared amount with them for exchanging the same with foreign currency and generating tickets for touts and travel agents, a surprise check was conducted on 11.08.2008by the Investigating Inspectors, Vigilance Branch, Railways. The Applicant was found to have committed certain misconducts and malpractices for which he was placed under suspension vide order dated 13.08.2008. The same suspension order was revoked on 14.11.2008 and the Applicant was transferred to Sarojini Nagar Reservation Complex vide order dated 1-12-2008. He was debarred from handling of cash vide order dated 9-12-2008 (Annexure A/3). He was served with the memorandum of charges dated 19.01.2009 for major penalty (Annexure A/4), for his failure to maintain absolute integrity, devotion to duty and acting in a manner of unbecoming of a railway servant, since he contravened the Rule No.3.1 (i), (ii) and (iii) of Railway Services (Conduct) Rules, 1966. The memo of charges were issued on 9 counts. The Railway authorities considered the magnitude of malpractices detected against the Applicant and found that on the basis of Railway Boards instruction dated 2.11.1998 (Annexure R/1) the Applicant was transferred from Sarojini Nagar Reservation Complex to Muradabad on administrative ground along with the post (Annexure R/2).
4. The Applicant has challenged a copy of the internal communication between Chief Commercial Manager/G to SPO/T&C dated 26.12.2008 (Annexure A/1), which reads as follows :
Head quarters office, Baroda House, New Delhi.
Confidential No.C 100/56/Pt.XI Dated 26.12.2008 Sub : Inter Divisional Transfer The following inter-divisional transfer are made on administrative ground along with posts :
Div. where working Now Div. proposed 1. Sh. Vinay Dhingra, ECRC/IGIA DLI MB 2. Sh. Vinay Kumar Dwivedi, HBC/UMB UMB FZR sd/- (Capt. J. P. S. Singh) Chief Commercial Manager/G SPO/T&C Copy to : GM/Vig.N.Rly.Baroda House, New Delhi for information pl.
5. Shri Yogesh Sharma, learned counsel for the Applicant, contends that the Applicant had clear and unblemished service carrier with no charges having been framed in the past but on 11.08.2008 there was a vigilance check at IGI Airport counter and an amount of Rs.27,100/- was recovered from him, which he received from a known person for issue of tickets for the members of that persons family to visit Shirdi. His contention was that this Tribunal should intervene and cancel the transfer order on 2 grounds. The first ground relates to the fact that the transfer was violative of the provisions in the Railway Circular RBE No.250/1998, which stipulates that the cases of staff who have repeatedly figured in substantial vigilance cases and where penalties have been imposed should be reviewed at appropriate level and such staff transfer on inter divisional basis can be considered. Shri Sharmas argument was that the Applicant had not been imposed any penalty nor he had been facing large number of vigilance cases. He has been facing only one charge memo issued against him in January 2009 which is even after his transfer and those charges are yet to be substantiated. Therefore, he contends that the transfer order does not confirm to guidelines issued in the RBE No.250/1998. The second ground he highlighted refers to the point that his children are studying in schools and transfer of the Applicant in the mid of the educational session would bring lot of domestic problems and as such, he demanded that the application should be allowed. He relied on the following decisions:-
Director of School Education, Madras and Others versus O. Karuppa Thevan and another [(1994) 28 ATC 99].
S. Hariharan versus Union of India and ors. [2001 (3) ATJ 449].
Shri Bhupendra Kumar and ors. Versus The General Manager, Northern Railway, New Delhi and ors.[647 ATJ 1999 (2)].
6. On the contrary, Shri R. L. Dhawan, learned counsel for the Respondents, strongly opposed and raised certain preliminary objections. First point he raised relates to the fact that the document at Annexure A/1 impugned by the Applicant is a confidential note dated 26.12.2008 from Chief Commercial Manager containing the order of the competent authority for transfer of the applicant along with the post. This was not the transfer order. The transfer order of the Applicant was issued vide letter dated 6.1.2009 (Annexure R/2) which has not been challenged by the Applicant in this OA. The second preliminary objection relates to the point that the Applicant has already submitted a representation dated 5.2.2009 (Annexure A/6) and without exhausting the departmental remedies he has rushed to the Tribunal which is not maintainable. This, he termed as premature on the part of the Applicant to visit this Tribunal. Shri Dhawan in this regard relied on the judgment of Honble Supreme Court in the case of Gujarat Electricity Board versus Atmaram Sungomel Poshani (SLJ 1989 (3) SC 68). Coming to the merits of the case, Shri Dhawan has contended that charges levelled against the Applicant are very serious in nature. He has got the shortage of Railway funds to the tune of Rs.722 (Charge-1), he had unaccounted money to the tune of Rs.27,100/-(Charge-2) and had many such malpractices and misconducts catalogued in all other charges against the Applicant. His argument was that the inter divisional transfer of the Applicant is governed by the instructions issued by the Railway Board in its letter dated 2.11.1998, as per which the staff in mass contact areas detected to be indulged in malpractices should be transferred on inter divisional basis. Opposing the contentions of Shri Yogesh Sharma, Shri Dhawan mentioned that RBE No.250/1998 and the instruction dated 2.11.1998 are independent instructions, not conflicting with each other. In this context, he relied on the decision of this Tribunal in OA No.1405/2004 with OA No.2743/2004 and OA No.1670/2004 decided on 15.03.2005 in the case of Shri Sudhir Kumar and ors. versus Union of India and others. He informed that the Rule 226 and instructions dated 2.11.1998 are the relevant rules under which the applicants case of transfer was covered. There is no illegality in such transfer order. There is no legal right for any employee to be in a place for ever. He relied on the following judgments:
Judgment of Honourable Supreme Court in State of UP versus Siya Ram (SLJ 2005 (1) SC 54).
Judgment of Honourable High Court of Delhi in WP (C) No.14596-97 of 2004 decided on 6.12.2005.between Union of India & Anr. versus A. K. Gandhi
3. Order of this Tribunal in OA No 1405/2004; 2743/2004 and 1670/2004 decided on 15th March 2005.
7. The case laws relied on by the learned counsel for the Applicant are distinguishable and not applicable in the present OA. Judgment of Honourable Supreme Court decided on 31-1-1994 in Director of School Education, Madras and Others versus O. Karuppa Thevan and another, [(1994) 28 ATC 99].deals with a case of mid session transfer where the children of the employee were studying in school but the employee was not transferred on administrative ground. In the present OA the transfer is in public interest and administrative ground. In case of S. Hariharan versus Union of India and Others decided by the Ernakulam Bench of this Tribunal on 12-7-2001 [2001 (3) ATJ 449] it is noted the charges against the employee was not held proved whereas in the present OA the Applicant has been charge sheeted after the vigilance chek was conducted at the IGI Airport which the Respondents considered proper ground to transfer him to different Division. I find from the case between Shri Bhupendra Kumar and Others versus the General Manager, Northern Railways, New Delhi and Others decided by this Tribunal the employee was not proceeded with any departmental action after the vigilance check but the transfer was effected. In the present OA the charges were framed under major penalty section. In case of the judgments relied on by the learned Counsel for the Respondents, I have noted the ratio and dicta and the relevance or other wise while discussing the issue and arriving at the conclusion in the OA.
8. Let me examine the rule position in the matter. As per Rule 226, the transfer can take place in between the Railways and between the divisions on certain exigencies of service and Rule 226 of the general conditions of service of Railway Employees are as follows :-
226. Transfers.-Ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the Railway servant to any other department or railway or railway establishment including a project in or out of India. In regard to Group C and Group D railway servants, the power of the President under this rule in respect of transfer, within India, may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated.
9. Since the Applicant was on a transferable post, in my opinion, the Respondent has the authority to transfer him which is an exigency and incidence of service and is an administrative decision. Interference by the Courts and Tribunals with transfer orders should only be in very rare cases. As repeatedly held in several decisions of the Honble Apex Court, transfer is an incidence of service and the Courts and Tribunals should not interfere. Some of the relevant judgments of the Honble Supreme Court are in the cases between B. Varadha Rao versus State of Karnataka (AIR 1986 SC 1955), Shilpi Bose versus State of Bihar (AIR 1991 SC 532), Union of India versus N.P. Thomas (AIR 1993 SC 1605), and Union of India versus S.L. Abbas (AIR 1993 SC 2444).
10. In this regard while passing this order I have relied on a recent decision of Honourable Supreme Court in Masood Ahmad Versus State of U.P.[2007 STPL(LE) 39042 SC] decided on 18-9-2007 which reads as follows:-
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) All LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC 1866; (1998 All LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
11. The instruction dated 2-11-1998 (page 55) issued by the Railway Board has extended the provision of inter division transfer to the staff in mass contact areas detected to be indulging in malpractices. The Applicant was detected, rather caught while on duty and found to have committed malpractices for which he had been served with a detailed charge memo. The Applicant gets covered by this instruction. His averment that the charge did not exist when he was transferred is only a surmise and presumption. The surprise check took place on 11-8-2008 when malpractice of the Applicant was detected. His inter divisional transfer is the 2nd while his immediate transfer to Sarojini Nagar counter was the 1st one. The Respondents would obviously take time to get the report of the checking team and prepare a proper charge memo for the competent authority to issue. The Applicants malpractices already existed after the check. That check preceded his transfer. To my mind the presumption in this case is like a bat flying in the twilight and disappearing when the light of facts come up.
12.. After detailed analysis of the case and going through the pleadings of the applicant and written submissions filed by the Respondents I find that the transfer has been done on adequate grounds and it is not on punitive in nature. They cannot take the mid educational session into account to allow the Applicant to continue at Delhi. The nature of malpractice detected is adequate ground as per the instruction dated 2-11-1998, demanding his transfer away from Delhi. This will be in the interest of the Railways and the Applicant that he starts his new posting at a new place in a clean state. Of course his old baggage of malpractice will continue to burden him. I also find that the competent authority has transferred the Applicant. The transfer is from one Division to another Division. Therefore, there is no valid or legal ground on which this Tribunal should interfere in the decision of the respondents.
13. This Tribunal passed an interim order directing the Respondents to maintain status quo which the Respondents have done. I would like to direct the Applicant that he should have joined his new post and come up to this Tribunal to ventilate his difficulties if any but he did otherwise and gave an impression that the Respondents were at fault. I find from the pleadings that the Respondents have taken sufficient time, considered the issue with patience and thought it proper to transfer the Applicant on administrative grounds. There are good and reasonable grounds for such transfer. In this context, I rely on the judgment of Honble Supreme Court in S.C. Saxena Vs. Union of India [2006 STPL(LE) 37619 SC] decided on 21-2-2006 . 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 makes 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.
14. Taking into account the total facts and circumstances of the case, I come to the considered conclusion that the Applicant has not made a case in his favour. In the result, the Original Application being devoid of merits is dismissed and interim relief granted is vacated. No order as to costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/