Central Administrative Tribunal - Cuttack
Bharat Chandra Dalei vs M/O Railways on 28 February, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH O.A.No,. 260/00012 of 2020 Reserved on : 14/02/2023 Pronounced on:28.02.2023 Coram:
has THE HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A) Bharat Chandra Dalei, aged about 50 years, S/o. Harihar Dalei at present working as Track Maintaimer, under SSE (P.WayVECoR/DNM, resident of Vill-Ramachandrapur, PS- Jenapur, Dist. Jaypur-755023.
.... Applicant For the Applicant :Mr.N_R.Routray, Counsel
-Versus-
Union of India, represented through the General Manager, East Coast Railway, Rail Sadan, Chandrasekharpur, Bhubaneswar, Tyst. Khrurda-752017, Divisional Railway Manager, East Coast Railway, Khurda Road Division, At/Po. Jatni, Dist, Khurda-752050.
Senior Divisional Personnel Officer, East Coast Railway, Khurda Road Division, At/Po. Jatni, Dist. Khurda-752050, Senior Divisional Engineer, East Coast Railway, Khurda Road Division, At/Po. Jatni, Dist. Khurda-752050, Assistant Divisional Engineer-1, East Coast Railway, At Stational Bazar, Po. College Square, Town/Dist. Cuttack-2.
Senior Section Engineer (P-Way), East Coast Railway, AvPo/Via Dhanmandal, Dist. Jajpur-754 024. oo Respondents : wee A a Be a we For the Respondents: Mr.R.K. Sahoo, Counsel OR DE R Pramod Kumar Das, Member (A The present Original Application arises out of the 0.0.No.P/Engg/07/2020 dated 08.01.2020 wherein and where under, the competent authority transferred the applicant from his present place of posting under SSE (P. Way} DNM of Civil Engineering Department of ECoRailway/KUR Division Railway to SBP Division on his existing capacity and scale of pay on administrative interest. The prayer of the Applicant is to quash the said order of transfer dated 08.01.2020 (4/2) and to direct the Respondents to allow the applicant to continue in his present place of posting.
2. The case of the applicant as inter alia averred in the OA is that he while working as Track Maintainer - | under Respondent No. 6 was having only Unit Seniority and as per instruction of Railway Board the applicant is not liable to be transferred beyond the control of ADEN, Cuttack ~ I. He further submitted that he being a SC employee as per Railway Board Guideline/Master Circular No. 24 dated 22.09.2011 (Annexure A/1) has to be posted as far as practicable in his native district or adjourning district. The applicant submitted that he came to know that an order dated 08.01.2020 (Annexure A/2) has been issued oe aN ae where he has been issued an inter divisional transfer from Khurda Division to Sambalpur Division and which has been issued with the approval of General Manager Le. Respondent No. 1 based on Railway Boards letter dated 21.11.2001 (Annexure A/3}. He submitted that the said Board letter (Annexure A/3} pertains to transfer of employees either at own request or on mutual transfer. He submitted that the applicant had not applied for the same. The applicant submitted owe representations dated 08.01.2020 & 11.01.2020 in which he submitted that the transfer is not as per guidelines and that the transfer is an order of punishment because the same has been issued only on the ground that he has lodged an FIR against SSE (P.WayVDNM Le. Respondent No. 6 on 18.11.2019,
3. Respondents in their counter inter alia averred that on 13.11.2019 during push trolley inspection of ADEN/VCTC it was noticed that lifting and packing of track was going on by labourers engaged by Agency (Contractor) under supervision of applicant without any caution order, without ensuring proper protection of track and without maintaining safety norms at site. The matter was brought to notice of higher authority who instructed transfer of the applicant, in public interest, from KUR Division to SBP Division. They submitted that maintenance of Railway Track for smooth running of Train is an lo"
"ee important parameter in Railway. The General Manager, ECoR, BBSR. is empowered to transfer staff under his control within the Zone. As per para 226 of Indian Railway Establishment Code Val in exigencies of service, it is open to the President to transfer the Railway Servant to any other department or Railway Establishment including project in or out of India. In regard to Group C and D Railway Servants, the power of the President under this Rule in respect of transfer, within India is exercisable by the General Manager in pursuance of para 226 of Indian Establishment Code Vol-I (R/1). Thus, keeping in mind safety of railway track involving safety of life of the passengers travelling in the train and failure to follow the safety rules which endangers the Railway Traffic, the applicant was transferred, in public interest, besides ordering initiation of disciplinary proceedings. It has been submitted that there will be no adverse implication regarding the seniority position of applicant since the transfer has been made on administrative ground. Further case of the Respondents is that while transferring the applicant they have kept note of the RBE No.39/1999 which speaks that while making transfer it should be ensured that proper accommodation to be provided to SC/ST employees at their new place of posting which is made available in SBP Division. The sum and substance of the case of the Respondents is that since the order of transfer has been made giving due regard to the rules'regulation and the situation prevailing in working place interference in the matter is not ealled for.
4. The Applicant has filed rejoinder in which it has been stated that ~ in the event of SC/ST emplovees, he being a SC employee, as per Railway Board instruction dated 19.06.2018 (Annexure A/8) his posting should be confined to their native district or adjourning districts or places where the administration can provide quarters. He submitted that a charge memorandum dated 27.04.2020 (Annexure A/9) has been issued on the self same ground and inquiry is going on and during the pendency of the proceeding the inter divisional transfer order has been issued. He further submitted that as per decision of Hon'ble Apex Court in case of Somesh Tiwari vrs Unien of India (2009) 1 SCC (L&S) 411 when an order of transfer is passed in Heu of punishment, the same is Hable to be set aside being wholly illegal.
3. Heard both sides and perused the records.
& It is the specific stand of the respondents that the transfer of the applicant has been done in public interest and since the applicant had failed to follow safety rules. It is also submitted in counter that the transfer was done by General Manager in pursuance to Para 226 of Indian Railway Establishment Code Vol -- 1 (Annexure R/1) and the GM is competent to transfer any staff under his control. Ga the other x hand it is the stand of the applicant that the transfer is based on punitive measures.
7. During the course of arguments learned counsel for the applicant submitted that transfer case of the applicant was not placed before transfer committes, hence it is Hlegal. He further submitted that guiding principle for inter divisional/zonal/railway transfer of employce is RBE No. 229/2009 wherein it provides that they can be done so at own request or on mutual basis only but in the instant case there was none. Leamed counsel for the respondents on the other hand submitted that guidelines dated 10.06.2014 has been followed in the case of the applicant and since the applicant was transferred from one division to another division within the same Zone, the GM is competent to transfer any staff under his control and there is no need of placement committee. The respondents further submitted that the applicant was transferred under para 226 in the exigencies of the SETVICE.
8. The relevant provision of Indian Railway Establishment Code Vol -- | as far as it relates to transfer is extracted below:
"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 oy on President to transfer the rafiwey servant to any other deportment or railway or palluway establishment incleding a project is or aut of iadia. Jn regerd te Group € ond Groep B roihwoy servants, the power of the President under this rule in respect of transfer, within india moy be exercised by the Geaeral Manager or by a lower authority to wham the power may be ne-delegeted., Railway Ministry's decision ~ Request from railway servants in Graup C & O for transfer from one railway to another an grounds of special cases of hardships may be considered favourably by Dre rolhvay administration. Such staff transferred at their request fram ane railway to another shall be ploced below all existing confirmed and officiating steff in the relevent grade in the Promotion group in the new establishment, irrespective of date af confirmation or length of officiating service of the transferred employees.
427 A competent authority may transfer a Radway servant from one post fo another provided uxt, excent:-
{2} on account of inefficiency or mishehavior, ar {2} on Ais written request, A railway servant shall nat be transferred to ar except in a case or dual charge appointed to officiate in e post carrying less pay than the poy of the past on which he holds a Hen.
er 229 Troasfer an request ~ Transfers ardered in the Interest of employees shall be within the same seniority group, or different group or a mutual exchange. If such transfers are within the same seniority group under the same railway the seniority is not affected but the transfers are inter divisional or outside the seniority group, tre railway Ministry's decision below 226 for inter railway transfers shall apply
9 -_ The relevant portion ef the note sheet dated 29.11.2019 where the GM gave his orders as regards to case of applicant is extracted below: \ a "Sub: GAP Cose No. $4 Dt. 19.12.2019 u/s 294/206 af IPC Sec 3H} {s} af SC/ST {Prevention of Atrocities Act 1989 {Amendment 2015} at GRSP/Bhadrak, FIR lodged by Sri Bharat Chandra Dalei, Track Maintainer ~ 1 against Sri Prasant Ku. Sathua, SSE/P. WayfDNM, XXXXX On case scrutiny af the above fact and clrcumstuness af the case, R is to stote here that may be the above case Aas been filed by Sri Bolei, TM-t af Gang No. 39 because of the administrative action imposed on him by suspending him. The couse of setion has arisen because of the unsafe working at site by Sri Dated that wes noticed by ADEN-I/CTC and the S8E/PWay/Dhanmondal $0 Sethua during the course of discharging their official duties and thus & may be considered os prudent enaugl in public interest ta defend the Rallwey servont Se Sathua in termw af Para 702{5) of indian Railway Establishment Code {£/14) as clarified by DGM/LAW/BBS {EAl?) by providing him the legal assistance.
PCE is requested ta Mindiy recommend the cose for approval of GM te provide legal assistance to Sri Sathana, SSE/PiWay/Ohonmandal for the above cose registered against Ain with GRPS/BNC Gi is requested te accord his kind eppravel.
CTe PCE Recommended for approval of GM to provide legal assistance from Riy Admin Please, GM 4) Legal assistance should be provided ta Shei PK Sathua on administrative expense.
2) Strictest action should be taken against Sui Dolei under DAR, preferably under Article Laf2},
3) Shrf Galel should be iswnediotely transferred owt of KUR division te S8P division for unsafe conditions created under his charge."
10, Law is well settled on the scope of interference of Tribunals/Courts in the matter of transfer. The Hon'ble High Court of No, 3311 of 2020 (Ghanshyam Dass y. State of Himachal Pradesh and another) has listed various decisions relating to the cases of transfer and summarized the findings of the Court in para 9 which read as under:
"1. Transfer is a candition of service,
2. ft does not adversely affect the status or emoluments or seniority of the employee.
3, The employee has no vested right to get a posting at @ portiouiar plece or cheose ta serve at a particular place for a particular time.
4, it is within the exclusive demain of the employer to determine as to at what place and far how long the services of o particular employee are required.
5. Transfer order should be passed in public interest ar administrative exigency, ond nat arbitrarily or for extraneous consideration or for victimization of the employes nar it should be passed under political pressure, & There is very ttle scape of fudicial 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 stotufory Rules or muta fides are established.
%. in case of mala fides, the employee has to make specific averments. and should prove the same by edducing lnpeccable evidence.
&. The person against wham allegations of mata fide is made should be impleaded as @ party by name.
g. 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 department persannel.
18. The court does net have the power to annul the transfer order only on the ground that if will cause personal inconvenience gy te the employee, his family members and children as. consideration af these views foll within the exclusive domain of the employer.
ii. if the tronsfer order & mede in mid-acodemic session af the chitdren of the employee, the Court/Tribunol cannot interfere. itis for the employer to consider such.o personal grievance."
11. Even though learned counsel for the respondents submitted that there is no need for any placement committee for considering the case of the applicant, but bare perusal of Railway Board letter dated 10.06.2014 (Annexure A/7) clearly stipulates at para 2 that "Board has, therefore decided that there should be placement committee to recommend transfer/postings of all Railway servants as per Hon'ble Supreme Courts decisions". Therefore it was imperative on the part of the respondents to place the case of the applicant before placement committee before issuing order of transfer. Bare perusal of the Indian Railway Establishment Code Vol 1 (extracted above) shows that even though at Rule 226 it is provided that the competent authority can transfer an employee in exigencies and public interest but Rule 227 provides that authority cannot transfer someone on grounds of inefficiency or misbehavior.
12. [tis seen from records that the incident happened on 15.11.2019. The repert was sent by ADEN/CTC to Sr DEN/East/KUR on same day. The applicant along with another person ie. PWI Sri Tapas Kumar Barik was placed on suspension. The FIR by applicant against we it respondent no 6 was lodged on 19.17.2019, A note sheet to give legal assistance to respondent no 6 in the said case filed by the applicant was pet up before OM for approval. It's surprising that the GM in the said note sheet (for giving approval for legal assistance) ordered to transfer him out ef Khurda Division for unsafe condition created under his charge.
13. The respondents have taken stand in the counter that the transfer has been done to ensure public safety. Since nothing is available on record to show that he has been posted to some another duty, it is likely that aller obtaining stay from this Tribunal, the applicant is posted at same station and performing the same job. He was also transferred to Sambalpur in the same post to do the same job. This Tribunal is at loss to understand how a person whose work is found to be against public salety in one division can be posted to do the same duty in other division. The respondents could have posted him to some other duty at the same station or any nearby station while they inquire into the whole matter. The applicant has been working as Trackman for near about 25 years and has been given prometion by the respondents. There is nothing on record or any averment made by the respondents to shew that he has been involved in any misconduct in the past or has been i2 warned/reprimanded or any actions has been taken against him for either compromising public safety or indiscipline.
14. As per Railway Board guidslines person belonging to SC/ST has to he posted as far as practicable to their native district or adjourning districts. The applicant who belongs to SC community was pasted only 17 km from his home town. For the sake of argument even if it is considered that the applicant should have been re-located, then the respondents could have posted him in some nearby places and not transferred him to another division ic. Sambalpur. The objective, if any, of the respondents could have been achieved by doing so. But they preferred to transfer him to another division which is far away from his native district shows the malafide intent of the respondents to punish him in that way. Further, it is also seen from the impugned transfer order dated 08.01.2020 (Annexure A/2) that the respondents have put a condition at Si No. 2 under Notes which states that "he should not seek re-transfer to the parent division in a later date", The applicant has not been transferred on his own request which debars him for secking re-transfer but has been done on administrative interest due to safety measures as per the submission of the respondents. It is surprising then how such conditions can be laid down in a transfer order when the alleged omission and commission of the applicant has ~ 5 \ Senet sense ' a ee 33 not been enquired inte and nothing has been proved against him. This clearly shows the punitive mindset of the respondents while issuing the said transter order.
iS. The note sheet (extracted above) alse shows that although GM had directed to initiate disciplinary proceedings against the applicant fer the said incident but he also in same breathe approved for transferring the applicant for the same incident which clearly establishes the averment of the applicant that the impugned transfer order Is punifive in nature. This brings to play abundant case law to the effect that a transfer should not be done on punitive grounds. This is because, while transfer is truly an administrative measure available to the employer for effective conduct of work, it cannot be availed of as being a mechanism to punish a person for which the necessary law on disciplinary procesdings should be taken recourse to not mere transfer. Transferring a person as a punitive measure tantamount to punishing a person without giving an opportunity of hearing which is viniative of Article 31 lofthe Constitution. It is for this reason that the Horbie Apex Court has repeatedly held that whenever there is a punitive reason, tranafer is not the answer because the principle of audi alteram partum which comes into play in such circumstance. Going by this reasoning the justiciable path to be taken by the respondents id should have been to initiate and complete the disciplinary proceeding and take appropriate orders after giving the applicant sufficient opportunity of being heard and defend himself. That being not done and also in view of the discussion made in above paragraphs, this Tribunal finds the action of the respondents in transferring the applicant to be malafide, illegal, arbitrary and punitive in nature. Accordingly the said impugned transfer order dated 08.01.2020 under Amnexure A/2 is quashed and set aside.
16, The OA is allowed to the above extant but in the clraumstances without any order to cast, & --
Pa of --« (PRAMOD KUMAR DAS} MEMBER (A)