Central Administrative Tribunal - Patna
P Tejeswar Rao vs South Eastern Railway on 30 April, 2025
1
OA. No. 051/00830/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH
CIRCUIT BENCH AT RANCHI
OA No. 051/00830/2024
MA No. 683/2024
Reserved on: -24.04.2025.
Pronounced on:-30.04.2025.
CORAM
HON'BLE MR. KUMAR RAJESH CHANDRA, MEMBER [A]
HON'BLE MR RAJVEER SINGH VERMA, MEMBER [J]
P. Tejeswar Rao, aged about-48 years Son of Late P.N. Rao, Resident
of Flat No.303 Princess Apartment Donbosco Road Hesag, Hatiya,
P.O. & P.S. Jagarnathpur, District-Ranch.
.........Applicant.
Versus
1. 1. Union of India through General Rail Manager, South Eastern
Railway P.O. Hatia, P.S. Jagarnathpur, District-Ranchi.
2. Senior Divisional Commercial Manager Ranchi cum disciplinary
authority Ranchi P.O. Hatia, P.S. Jagarnathpur, District-Ranchi.
3. Senior Divisional Personnel Officer, South East Railway, Ranchi
P.O. Hatia, Jagarnathpur, District-Ranchi.
4. Assistant Personnel Officer, South East Railway, Ranchi P.O. Hatia
Jagarnathpur, District-Ranchi.
5. Assistant Commercial Manager, South East Railway, Ranchi P.O.
Hatia, P.S. Jagarnathpur, District-Ranchi.
` ....... Respondents.
For Applicant:- Shri Gautam Kumar & Ms. Pushpanjali Kumari
Singh.
For Respondents:-Shri Amit Sinha, Ld. ASC.
ORDER
PER:- Rajveer Singh Verma, MEMBER [J]
1. The instant OA has been filed by the applicant for the following reliefs: -
"For set-aside/quash the order dated 06.09.2024 (A/4) passed in O.O. No. RNC/Commm1.724/2024 in SER/P-and Asstt. Personnel Officer for Sr. Divi, Personnel Officer S.E. Railway Ranchi and also for quashing set-aside the order dated 09.09.2024 passed in No. C/RNC/Transfer-Posting/P.T. Rao/2024 2 OA. No. 051/00830/2024 under ref. no. (i) Sr. DPO/RNC's 0.0 No. SER/P-RNC/Comml./724/2024, 06.09.2024 (ii) CTI/line/RNC's dtd. letter No.01/ CTI/ L/ RNC/09/2024 dtd. 09.09.2024 by Asst. Comml. Manager for Sr. DivI. Comml. Manager S.E. Railway, Ranchi whereby and whereunder the petitioner who is presently working as chip ticket inspector Ranchi, S.E. Railway is being transferred at Chakardharpur Division with immediate effect."
2. Brief facts of the case are that applicant has joined the railway service on 14.05.1996 as TTE and since then having unblemished carrier. At the relevant time, i.e. on 28.05.2024 he was working as Chief Ticketing Inspector (CTI)/Ranchi under CTI/line/RNC and was on duty in Vande Bhart Express running from Ranchi to Varanasi. A Rail Madad Complaint No. 2024052803975 was received against applicant regarding his misbehavior on duty CTI with sister of Shri Ramesh Jain, i.e. Ms. Jaya Dubey who was traveling on seat no. 40 of coach no. C7 in the train no. 20887 on 28.05.2024.
3. Further, the complainant Ms. Jaya Dubey lodged an FIR with GRPS/Varanasi and GRP registered a case no. 00(36)/2024 dated 28.05.2024 U/S 354(A) & 354(D) of IPC against applicant and the case was transferred to GRPS/Sasaram on the point of jurisdiction. As per CC TV footage of C-7 and E-1 coach of Train No. 20887, applicant was seen sitting close to the lady passenger, a number of times making her uncomfortable with applicant's actions and words, behaving inappropriately, leaning towards her indecently.
4. A minor penalty charge memo was issued by the Disciplinary Authority to the applicant for the allegation that "A Rail Madad Complaint No. 2024052803975 was received regarding behaviour on duty CTI with sister of Sri Ramesh Jain, i.e. Ms. Jaya Dubey who was 3 OA. No. 051/00830/2024 travelling on seat No. 40 of Coach No. C7 in Train No.20887 (Ranchi- Varanasi Vande Bharat Express) on 28.05.2024. Further the complainant lady namely M/s Jaya Dubey lodged a FIR with GRPS/Varanasi and GRP has registered a case vide no. 00(36)2024 U/S 354(A) & 354(D) IPC against the applicant and the case was transferred to GRPS/Sasaram on the point of jurisdiction. The complaint made against the applicant is that- "As per CCTV footage of C-7 and E-1 coach of Train no. 20887, you are seen sitting close to the lady passenger a number of times making her uncomfortable with your actions and words, behaving inappropriately, leaning towards her indecently. It was also noticed that the lady complainant was covering herself with scarf to make herself secure since you were frequently sitting next to her seat in contravention of decency and morality of Railway Service conduct Rule and you failed to maintain high ethical standards. Further, you had not realized the difference of class from the lady passenger for allowing her seat in Executive Class instead of Chair Car. This act of yours is totally unacceptable and has tarnished the image of Railways among its customers." After completion of the proceedings, the Disciplinary Authority vide its order dated 28.06.2024 awarded the following punishment to the applicant: -
"Reduction to a lower stage in same time scale of pay i.e. in Level-7 fixing your pay at Rs.55,200/- from existing pay of Rs.56,900/- (Level-7) for a period of 03 (three) years with further direction that
(a) on expiry of the punishment period the reduction will not have the effect of postponing future increments of your pay & (b) you 4 OA. No. 051/00830/2024 will regain your original seniority in the higher stage of pay on expiry of the punishment in terms of Rule 6 (iii-b) of RS (D&A) Rules 1968"
5. Applicant filed an appeal on 04.08.2024 before the Appellate Authority cum Additional Divisional Manager, South Eastern Railway, Ranchi however the appellate Authority vide its order date 10.09.2024. found no merit in the appeal of the applicant and the punishment imposed by Sr. Divisional Commercial Manager-cum- Disciplinary Authority is kept "Stand Good".
6. During pendency of Appeal and after awarding punishment by the Disciplinary Authority, the applicant was ordered for transfer from RNC Division to CKP Division on administrative interest along with post vide Sr. DPO/RNC Office Order No. SER/P-RNC/724/2024 dated 06.09.2024 (Annexure-4). The transfer order was issued with the approval of the Competent Authority and spare order was issued on 09.09.2024.
7. It is the case of applicant that order of transfer is absolutely wrong and illegal since the order does not reflect the reason of transfer but prima facie appears to be a double punishment to the applicant of the earlier proceedings wherein the Disciplinary Authority has already awarded the punishment vide its order dated 20.06.2024 and during pendency of his Appeal. In these circumstances the transfer order deserves to be set aside.
8. In the WS, the respondents states as under: -
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OA. No. 051/00830/2024
(i) The Applicant was also the train captain of Vande Bharat Train on dtd.28.05.2024 because he was the senior of all the duty ticket checking staff, he was responsible for the safety of all passengers, here the applicant was harassing the lady passenger with his action. The transfer of the applicant from Ranchi Division to CKP Division has taken place on the recommendation of competent authority on administrative ground and a message has been conveyed among all duty staff that any misbehaviour with any passenger in any form will not be accepted. The only request to Hon'ble court is that the Applicant should be asked to follow the transfer order without paying attention to the fact given by applicant.
(ii) During the departmental enquiry, the applicant stated that lady complainant has fabricated false case of misbehaviour but it is observed in CCTV footage that the applicant was frequently sitting next to her, interacting with the complainant lady unnecessarily and his body posture seems leaned towards lady complainant in contravention of decency and morality of as a Railway servant and thus he failed to maintain high ethical standards. The transfer of the applicant from Ranchi Division to CKP Division has taken place on the recommendation of competent authority on administrative ground and a message has been conveyed among all duty staff that any misbehaviour with any passenger in any form will not be accepted.6
OA. No. 051/00830/2024
9. Applicant has filed the rejoinder and annexed the report dated 04.10.2024 of Senior Dy SP, Railway, Gaya wherein the Investigating Officer, after investigation of the case, reached on the following conclusion:
"अबतक के अनुसंधान, घटना थल के िनरी ण, वािदनी के ारा िदये गये िल खत ितवेदन के आधार पर यह कांड धारा-354 (क)/354 (घ) के अंतगत इस कांड म बनाये गये ाथिमकी के नामजद अिभयु -टे न टी० टी० पी० तेज र राव, पे०- ० नरिसंह राव, पता- ैट नं०-303, ि ंसेस अपाटमट, हिटया राँधी, थाना- जगरनाथपुर, िजला-रॉधी (झारखंड) के िव अस ितत होना पाया जाता है।
ोंिक इस कांड के वािदनी एवं साि यों ारा भी अपने-अपने बयान म वािदनी के साथ टी०टी० ारा छे ड़खाने नहीं िकये जाने की पुि िकया गया है।
कांड का सारांश यह है िक वािदनी, िदनांक-28.05.24 को गाड़ी सं0-20857 राँची-वाराणसी बंदे भारत ए ेस के कोच नं०-सी0/07 म सीट नं0-40 पर सवार होकर वाराणसी रे लवे े शन तक के िलये या ा कर रही थी। या ा के दौरान उ टे न गया रे लवे े शन से थान करने एवं सासाराम रे लवे े शन प ँचने से करीब 15-20 िमनट पूव यािदनी के कोच म टे न म ितिनयु टी०टी० पी० तेज र राव ारा बािदनी के साथ छे ड़खानी िकये जाने का आरोप लगाते ये िल खत आवेदन िदया था, िजसके आधार पर कांड दज िकया गया था।
अनुसंधान के कम म अनु०कता ारा वािदनी का बयान िलया गया तो वािदनी ारा घटना के िदन टी०टी० पी० तेज र राय से सीट को लेकर िववाद आ था। िजसको लेकर आवेश म आकर टे न टी०टी० पी० तेज र राय के िव छे ड़खानी िकये जाने से संबंिधत िल खत ितवेदन िदये जाने की बात बतायी। साथ ही वािदनी ारा अनु०कता को इस संबंध म िल खत आवेदन िदया गया है िक या ा के िदन टी०टी० से सीट को लेकर िववाद आ था, परं तु टी०टी० ारा वािदनी के साथ छे ड़खानी नहीं िकया गया है। िजसके आधार पर गाड़ी सं0-20857 राँची-वाराणसी वंदे भारत ए ेस के टी०टी० पी० तेज र राव के िव यह घटना अस ितत होना पाया गया है। अतः अनु०कता को िनदश िदया जाता है िक इस कां ड म पुिलस अधी क, रे लवे, पटना से ितवेदन-2 ा होने पर इस कांड म अंितम ितवेदन माननीय ायालय म समिपत करना सुिनि त करगे। "
10. There is nothing on record to reach on a conclusion. That the final report/closure report has been submitted before the court of competent jurisdiction and the Hon'ble Court has accepted it. However, it is specifically mentioned in the report dated 04.10.2024 of Sr. Dy. SP that "....... During the course of investigation, the Investigating Officer has recorded the statement of complainant then complaint stated that on the 7 OA. No. 051/00830/2024 day of occurrence a quarrel was taken place with T.T.P. Tajeshwar Rao on issue of seat."
11. The conclusion drawn by the Sr. Dy. SP, Railway Gaya is in contradiction to the case of the respondents.
12. There are following main Theories of Punishment.
(i) Retributive Theory-The lex talionis, which means "an eye for an eye and a tooth for a tooth," is drawn from the Code of Hammurabi and is the most traditional example of retributivism. The majority of retributivists think that the guilty should endure pain.
(ii) Deterrent Theory-Deterrents can mean a variety of things.
Deterrence is an effort to dissuade immoral individuals from following improper and unlawful routes. This theory specifies the severe consequences, i.e., punitive acts against the wrongdoer to end the threat, out of the five doctrines of criminal law, namely, deterrent, retribution, preventative, reformation, and expiatory theories.
The object & reasons of general deterrence is to stop people from committing the same crimes as those who have already been found guilty of them. General deterrence is more concerned with educating the populace as a whole, not simply those who have been charged with a crime. The theory behind this is that if someone is given a harsh 8 OA. No. 051/00830/2024 punishment, the public will see this and be discouraged from indulging in the same or similar activities.
(iii) Preventive Theory-The primary goal of the preventive theory of punishment is to deter future criminal activity. This is accomplished by rendering the offender incapable of committing more crimes by imprisoning him or her or by causing some form of pain in retaliation for the offense they have committed.
(iv) Reformative Theory-The goal of punishment, in accordance with reformative philosophy, should be to change the offender through an individualization strategy. The humanistic idea that an offender does not instantly cease to be a live human being just because he commits crimes serves as its foundation.
13. From the perusal of averments made by the respondents in para 4 and in para 6 of their W.S., it is observed that the Respondent Authorities have ordered for transfer of the applicant after following the Deterrent Theory of the punishment and thus, the transfer order appears to be punitive in nature and not on the sole administrative reasons.
14. The counsel of the respondents has relied upon the order dated 08.09.2015 passed by the Hon'ble Principal Bench of the CAT, New Delhi in OA No. 2135/2015, titled as Dharmender Vs. U.O.I. & ors. Wherein the Hon'ble Tribunal after relying upon several decisions of the Hon'ble Supreme court passed the following order: - 9
OA. No. 051/00830/2024 "28. It is thus well settled that in the matter of transfer, the Executive retains the absolute right to transfer a person in public interest and unless there are clear cut malafides established or if it is established that the decision is in violation of a statutory rule it should not be interfered with. Therefore, interference in the cases is warranted only if the transfer orders are issued by an incompetent authority or the transfer orders are established to be based on malafides. Normally, Courts or Tribunals cannot act as appellate forums to decide on transfers on administrative grounds. Further, a government servant cannot disobey a transfer order by not reporting at the place of posting. It is his duty to first report for work where he is transferred and make a representation, if aggrieved with the transfer order.
29. However, we note that the Committee inquired into the sexual harassment charges against the applicant, recommended to transfer the applicant to some other office. This need not be in another city, provided if vacancies of LDC are available in any other office under the control of the respondents in Delhi.
30. In view of the aforesaid settled position of law, and in the circumstances and for the reasons stated above, we do not find any merit in the OA, and accordingly the same is dismissed."
15. The respondent's counsel has also relied upon the judgment of Hon'ble Supreme Court in the case of S.C. Saxena Vs. Union of India and others (2006) 9 SCC 583 wherein the Hon'ble Apex Court has held as under: -
"5. The appellant moved the Central Administrative Tribunal (for short "the Tribunal") by an application impugning the order passed by the disciplinary authority against him. His Original Application No. 2881 of 1997 was dismissed by the Tribunal by holding that there was no good reason for interfering with the view taken by the enquiry officer and the order made by the disciplinary authority.10
OA. No. 051/00830/2024 The Tribunal noticed that, despite the tall claim of the appellant that he was sick during the entire period, the doctors at Dr. Ram Manohar Lohia Hospital had specifically certified that he was fit for duty anywhere in India. In this view of the matter, the Tribunal dismissed the original application of the appellant. Being aggrieved thereby, the appellant moved the High Court by his writ petition and the High Court was pleased to give short shrift to his writ petition and summarily dismissed it. The appellant is before us hoping for better luck.
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."
16. The counsel of the applicant has relied upon the decision dated 04.10.2013 passed by the Hon'ble High Court Judicature at Madras passed in W.P. No. 12812 of 2013 and M.P. No. 1 to 3 of 2013 in the 11 OA. No. 051/00830/2024 case titled as P. Karunarakaran Vs. Union of India and others wherein it has been held that: -
"29. A careful perusal of the above four decisions of the Apex Court would show that if an order of transfer was found to be an outcome of malafide exercise of power or if the transfer was made in connection with the departmental proceedings or for extraneous considerations or for collateral purpose, the Court can interfere as against such transfer order, if the same was made in violation of the principles of natural justice. All these decisions commencing from 1991 to 2004 have, no doubt, observed that the authorities are entitled to transfer on administrative grounds/ public interest. But a perusal of the subsequent decision made by the Apex Court in Somesh Tiwary Vs. Union of India and others (2009 (2) SCC 592 para 16) would show that no such transfer can be made when the same was passed in lieu of punishment or on extraneous reasons.
32. In fact, the Hon'ble Division Bench of this Court in an unreported decision made in W.A.No.1138 of 2008 dated 24.4.2009 (cited supra) has observed that though the transfer order had been affected on administrative grounds, the same has been given a go- by in the counter affidavit filed by the respondents by stating that the transfer was passed on some adverse remarks/complaint received against the appellant. Under such circumstances, the Hon'ble Division Bench took the view that the order of transfer passed against the appellant therein was by way of punishment without giving an opportunity of hearing to him. Accordingly, the Division Bench set aside the order as the same was in violation of principles of natural justice.
33. Thus, by considering all the facts and circumstances of this case and considering the admitted position that the transfer order came to be passed only in pursuant to the incident that took place on 14.12.2012, which undoubtedly causes some allegations against the 12 OA. No. 051/00830/2024 petitioner for which disciplinary proceeding is already initiated, we are of the view that the order of transfer cannot be sustained and accordingly, the transfer order dated 21.1.2013 as well as the order of the Central Administrative Tribunal dated 9.4.2013 are liable to be set aside and the same are accordingly set aside. The writ petition is allowed. We make it clear that this order will not stand in the way of proceeding with the disciplinary proceedings initiated against the petitioner. Consequently, the connected M.Ps. are closed. No costs."
17. In Somesh Tiwari Vs. U.O.I. and ors. (2009) 2 SCC 592 the Hon'ble Supreme Court has held at paragraph 16 as follows: -
"16. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
18. It is admitted fact as stated by the Respondents in para 4 & para 6 of their W.S. (as mentioned in para 8 above) that the transfer of applicant from Ranchi Division to CKP Division has taken place on the recommendation of Competent Authority on administrative ground and a 13 OA. No. 051/00830/2024 message has been conveyed among all duty staff that any misbehavior with any passenger in ay form will not be acceptable. Therefore, it is inferred that root cause of the transfer was alleged misbehavior of applicant with complainant Ms. Jaya Dubey who was travelling on seat no. 40 of coach no. C-7 in Train No.20887 (Ranchi Varanasi Ande Bharat Express) on 28.05.2024. Thus, the transfer is of punitive in nature and in the category of Deterrent punishment.
19. Admittedly, the transfer order was issued on 06.09.2024 with relieving order dated 09.09.2024. The Disciplinary Authority awarded the punishment in Minor Disciplinary proceedings on 20.06.2024. The Appellate Authority has dismissed the appeal of applicant on 10.09.2024 and kept 'Stand good' the decision of Disciplinary Authority. Meaning thereby, the transfer order was passed after awarding punishment by the Disciplinary Authority in Departmental Proceedings and before the order of the Appellate Authority.
20. Therefore, it is an admitted case of the respondents that the applicant was transferred only because of the alleged incident that took place on 28.05.2024 with an object to convey the message among all duty staff that any misbehavior with any passenger in any form will not be accepted. Keeping in view of the contentions of the respondents, there can be no doubt that the order of transfer was made only to punish the applicant by applying deterrent theory of punishment.
21. We are well aware with the settled legal position that an innocuous order of transfer, which not only face of it appears to be made in order to further the administrative interests of an organization, but even on a 14 OA. No. 051/00830/2024 deeper scrutiny does not pose any irregular or malafide exercise of powers by the concerned authority, is generally upheld by courts, as Courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employee of Government. But in a given case, an order of transfer was not made to punish the applicant and to give message to all duty staff thus the transfer order is punitive in nature.
22. No doubt, a normal transfer order can be misunderstood as a punitive measure. But if the circumstances surrounded such as order leads to a reasonable interference that such an order was made in the colourable exercise of power and intended to achieve a different purpose as explained above.
23. Moreover, the conclusions drawn by the Sr. Dy. SP, Railway Gaya are contradictory to the case of the respondents with regard to the factum of the incident allegedly took place on 28.05.2024 in Train No. 20887 (Ranchi-Varanasi Vande Bharat Express) as the complainant has not supported her version made in the FIR No. 27/24 and made a statement to the Investigating Officer that applicant has not done any act to outrage her modesty but it was a quarrel on seat and she lodged the F.I.R. in intense emotion and anger. The statement of complainant, Ms. Jaya Dubey is affirmed by the statement of her father Shri Deepak Dubey.
24. On the basis of our above analysis, we are of the view that the impugned transfer order was made by the respondent authorities in the colourable exercise of power and with an intention to achieve the different purpose and not for the administrative interest. Therefore, the 15 OA. No. 051/00830/2024 impugned transfer order dated 06.09.2024 and relieving order dated 09.09.2024 are liable to be set aside and these orders are set aside accordingly. The respondent authorities are further directed to implement the order within 30 days from the date of receipt of copy of this order.
25. As a result, OA is allowed. No order as to cost.
26. Pending MA also stands disposed of accordingly.
(Rajveer Singh Verma) (Kumar Rajesh Chandra)
Member (J) Member (A)
bp/-