Central Administrative Tribunal - Allahabad
Sumit Kumar vs Kendriya Vidyalaya Sanghthan on 17 July, 2020
Reserved
(On 13.07.2020)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated : This the 17th day of July 2020
Original Application No. 330/00275 of 2020
Hon'ble Justice Mrs. Vijay Lakshmi, Member (J)
Hon'ble Mr. Anand Mathur, Member (A)
Sumit Kumar, S/o Sri Parikshan Roy, R/o 224 L.I.G. Preetam Nagar,
District - Allahabad (Prayagraj) UP. Primary Teacher, P.R.T. (Music)
Kendriya Vidyalaya, New Cantt. Prayagraj (2nd Shift).
. . .Applicant
By Adv : Shri Anil Kumar Dubey
VERSUS
1. Union of India, through Secretary, Department of H.R.D. Deptt. of
School Education & Literacy, Govt. of India at New Delhi.
2. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Varanasi.
3. Principal, Kendriya Vidyalaya, New Cantt. Prayagraj - U.P.
. . .Respondents
By Adv: Shri D.P. Singh
ORDER
By Hon'ble Justice Mrs. Vijay Lakshmi, Member (J) By means of the present OA, the applicant has challenged the legality and correctness of his transfer order dated 20.03.2020 and consequential relieving order dated 24.06.2020. As an interim relief, prayer has been made to direct the respondents not to interfere in the peaceful working of the applicant in Kendriya Vidyalaya, New Cantt. and to pay him salary regularly.
2. We have heard Shri Anil Kumar Dubey, learned counsel for the applicant and Shri D.P. Singh, learned counsel for the respondents, who 2 has appeared on advance notice, through video conferencing facility on admission and have gone through the records available in pdf. form.
3. Some background facts sans unnecessary details are as follows:-
(i) The applicant was appointed in the year 2012 as Primary Teacher (PRT) Music at Kendriya Vidyalaya Sangathan, New Cantt., Prayagraj and since then he is teaching music at the same Kendriya vidyalaya. On 12.07.2019 a news was published in two news papers namely 'Amar Ujala' and 'Hindustan', Prayagraj with allegations against the applicant that he does not come to school regularly and he also beats the children, due to which one student namely Manas has received grievous injury.
(ii) After publication of the aforesaid news, the principal of Kendriya Vidyalaya, New Cantt. Prayagraj (Respondent No. 3) passed an order on the same day i.e. on 12.07.2019 directing the applicant to submit his explanation before Vice-Principal Shri Mudit Bajpai. In compliance of the aforesaid order the applicant submitted his explanation before Vice- Principal on the same day through e-mail, whereby he denied all the allegations levelled against him.
(iii) Thereafter, a warning letter was issued by Principal /respondent no.3 to the applicant on 20.07.2019 and the applicant was warned not to repeat this type of incident in future.
4. According to the applicant, on 24.06.2020, when the applicant was going to District Darbhanga (Bihar) to see his ailing mother, after intimating the Principal, through e-mail, he received impugned relieving order dated 24.06.2020 passed by Principal, through e-mail, whereby, the applicant was directed to join at Kendriya Vidyalaya, Kauhar Amethi. The 3 applicant sent an e-mail to Principal, Kendriya Vidyalaya, New Cantt. Prayagraj on 29.06.2020 requesting that the transfer order may be sent to the applicant because he has not yet received any transfer order. On application sent by the applicant, transfer order was sent to him through e- mail on 04.07.2020. In the transfer order, which was passed by respondent no.2 on 20.03.2020, it was mentioned that complaints dated 23.09.2019, 15.10.2019 and 17.10.2019 had been filed by one Mr. C.P. Tiwari, father of a student of Class V against the applicant regarding corporal punishment to the student before Deputy Commissioner, Kendriya Vidyalaya Sangathan/ respondent No.2, on which respondent No. 2 directed the Principal of Kendriya Vidyalaya, Naini to conduct a fact finding inquiry. Principal of Kendriya Vidyalaya, New Cantt. Prayagraj was also asked to submit her explanation. After receiving report of fact finding inquiry and explanation of respondent No. 3, the impugned transfer order and consequent relieving order were passed, both of which have been challenged by the applicant in this OA.
5. Learned counsel for the applicant has contended that before passing transfer order neither any regular inquiry was held by the department nor any show-cause notice was given to the applicant, whereas, the impugned transfer order dated 20.03.20 clearly indicates that the transfer order has been passed as a measure of penalty.
6. Learned counsel for the applicant further contended that if the applicant was transferred as a punitive measure after conducting a fact finding inquiry, it was obligatory on the part of the respondents to have given him opportunity of hearing. However, without such opportunity and even without any notice to the applicant, the impugned transfer order was passed which is against the principles of natural justice and therefore is 4 liable to be quashed. It is further submitted that had a prima-facie case been found against the applicant after conducting the fact finding inquiry, it should have been followed by a regular inquiry. But without adopting the correct procedure, the applicant was relieved in a hurry, that too in a situation when he was going to his home town i.e. Darbhanga (Bihar) after informing the Principal, to see his ailing mother. Learned counsel for the applicant lastly submitted that presently it is not possible for the applicant to move to another city due to fear of pandemic of Covid-19.
7. Learned counsel for the respondents has vehemently opposed the OA by submitting that the applicant is a Government servant and transfer is not only an incidence but a condition of government service. Transfer of the applicant has been affected as a measure of enforcing discipline, in public interest and in exigencies of administration. While drawing our attention to impugned transfer order dated 20.03.20. ld. Counsel for the respondents contends that the operative portion of this order clearly mentions that applicant has been transferred on administrative grounds. On the aforementioned grounds, it is contended that there is no scope to entertain this OA and to grant any relief to the applicant and the OA should be dismissed at the admission stage itself.
8. Having heard learned counsel for the parties and having gone through all the annexures including downloaded copies of various emails exchanged between the parties and the impugned orders, we are of the firm view that this OA is liable to be dismissed at the admission stage itself.
9. The law laid down by Hon'ble Supreme Court in this regard has been well settled by a catena of judgments.
5
10. In the case of Union of India and other vs. Sri Janardhan Debanath and other - 2004 (4) SCC 245 the Hon'ble Supreme Court has held as under:-
"For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated."
....................
"Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration."
11. The Hon'ble Supreme Court in another case of State of U.P. and another vs. Siya Ram another - (2004) 7 SCC 405 while relying upon it's earlier judgment rendered in National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan and Anr - 2001 (8) SCC 574 has held as under:-
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned."
12. The guidelines lines laid down by the Hon'ble Supreme Court regarding transfer of a government servant, may be summarized as under:-
i. Transfer is a condition of service.
6
ii. It does not adversely affect the status or emoluments or
seniority of the employee.
iii. The employee has no vested right to get a posting at a
particular place or choose to serve at a particular place for a particular time.
iv. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. v. Transfer order should be passed in public interest or administrative exigency and not arbitrary or for extraneous consideration or for victimization of neither the employee nor it should be passed under political pressure.
vi. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
vii. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
viii. The person against whom allegations of malafide is made should be impleaded as a party by name.
ix. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel.
x. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.
13. The applicant in the present case has been transferred on the same post in the same pay scale. Therefore, it cannot be said that punishment has been awarded to him by transferring him to another district namely Amethi, which is less than 100 Kms from Prayagraj. It is also noteworthy that since his appointment in the year 2012, the applicant is continuously serving at Allahabad / Prayagraj district in the same Kendriya Vidyalaya.
7
14. In view of the above facts and circumstances of the case and the law laid down by the Hon'ble Apex Court as cited above, we are not inclined to interfere in this matter. We do not find any force in the present OA and accordingly it is dismissed at the admission stage itself. No order as to cost (Anand Mathur) (Justice Vijay Lakshmi) Member (A) Member (J) /pc/