Central Administrative Tribunal - Kolkata
Mr Lal Jha vs Defence on 18 June, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A.No. 350/701/2024 Date of order: 18.06.2024
Present : Hon'ble Mr Rajnish Kumar Rai, Judicial Member
SHRI LAL JHA, IOFS, son of
Shri Lakshman Jha, aged about
37 years, residing at Avani Oxford,
Phase-II, Block-III, Flat No.2B,
Jessore Road, Kolkata700055
and working to the post of Works
Manager (Quality & Engineering
Officer & Product Development) in
the Ordnance Factory, Dum Dum
(a Unit of Yantra India Limited), a
Government of India Enterprise,
Situated at Jessore Road, Dum Dum,
Kolkata-700028 under the control
and authority of General Manager,
Ordnance Factory, Dum Dum.
...........Applicant
- VERSUS-
1. Union of India, service through the
Secretary, Ministry of Defence (Defence
and Production), Government of India,
South Block, New Delhi -110001;
2. The Director General Ordnance
(Coordination and Service), Department
of Defence Production, Government of
India, Ministry of Defence, 10A, Shaheed
Khudiram Bose Road, Kolkata-700001;
3. The Chairman and Managing Director,
Yantra India Limited, A Government of
India Enterprise under Ministry of Defence,
Headquarters-Nagpur, C/o Ordnance
Factory, Ambhajari, Amravati Road,
Nagpur, Maharashtra-440021;
4. The Director/HR, Yantra India Limited
A Government of India Enterprise
2
under Ministry of Defence,
Headquarters-Nagpur, C/o Ordnance
Factory, Ambhajari, Amravati Road,
Nagpur, Maharashtra-440021;
5. The General Manager, Ordnance
Factory, Dum Dum (a Unit of Yantra
India Limited), a Government of India
Enterprise, situated at Jessore Road,
Dum Dum, Kolkata-700028
...........Respondents
For the Applicant : Mr.P.C. Das, counsel
Ms. T. Maity, counsel
For the Respondents : Mr. A.K. Chattopadhyay, counsel
ORDER
In the instant O.A., the applicant has sought for the following reliefs:-
"a) To quash and/or set aside the impugned order of transfer dated 10.05.2024 issued by the DGM/HR (Yantra India Limited HQ) against the applicant immediately after withdrawn the case before this Hon'ble Tribunal by which your applicant has been transferred from Ordnance Factory, Dum Dum to Ordnance Factory, Katni, Madhya Pradesh being Annexure A-15 of this original application which has been made without routed through the Placement Committee and also the present. DPSUs have not transfer policy which is also a violation of the Government of India, Ministry of Defence, Department of Defence Production OM dated 24.09.2021 being Annexure A-11 of this O.A;
b) To quash and/or set aside the impugned release order dated 11th May, 2024 along with modified relieve order dated 13.05.2024 issued by the respondent authority by which immediately after the order of transfer on the same day within one hour, the impugned release order has been issued against the applicant by not considering the representation submitted by the applicant being Annexure A-17 (collectively) of this original application;
c) To declare that the impugned order of transfer dated 10.05.2024 in respect of the applicant from Ordnance Factory, Dum Dum to Ordnance Factory, Katni, Madhya Pradesh is gross violation of the landmark decision of the Hon'ble Supreme Court in the case of T.S.R. Subramaniam vs- Union of India & others reported in (2013) 15 SCC 732 because it has been made without routed through the Placement Committee and also it is an utter violation of the OM dated 24.09.2021 issued by the Government of India, Ministry of Defence, Department of Defence Production being Annexure A-11 of this O.A. by which till now, the Department of Public Sector Undertaking did not frame any Transfer Policy and did not frame the service conditions of the employees and without framing the same in terms of the OM dated 24.09.2021, the present order of transfer dated 10.05.2024 in respect of the applicant is wholly bad in law and arbitrary which may be liable to be quashed and set aside.3
d) To quash and/or set aside the impugned speaking order dated 17.05.2024 issued by the General Manager/HR, Yantra India Limited, whereby the representation submitted by applicant has been rejected being Annexure A-18 of this original application.
e) To pass an appropriate order directing upon the respondents authority to retain your applicant in his present post of posting in the Ordnance Factory, Dum Dum till the framing of the Transfer Policy by the concerned DPSUs in terms of OM dated 24.09.2021.
2. The facts of the case in a nutshell is as under:-
(a) The applicant is an officer of IOFS (Indian Ordnance Factory Service) and was appointed to the post of Assistant Works Manager (Mechanical Engineering) after being selected through Union Public Service Commission vide order of appointment dated 20.03.2013 issued by the Ordnance Factory Board. Initially he was posted in the AWM(OP), Ambajhari, Nagpur and subsequently he was transferred to AWM, Ordnance Factory, Dum Dum vide Office Order dated 07.12.2013.
(b) Grievance of the applicant is that the respondents have issued a long distance transfer order dated 01.04.2022 whereby he was transferred from Dum Dum to Ordnance Factory, Bhusawal(OFBH) along with some other employees and his name appeared at Serial No.11 of the list of transferees.
The applicant made a detailed representation dated 04.04.2022 before the concerned authority requesting for his retention at Ordnance Factory, Dum Dum on personal ground i.e. illness of his wife, old aged mother and education of his child in Kolkata. The General Manager, Ordnance Factory, Dum Dum also sent recommendation to the higher authority for retention of the applicant at Dum Dum for greater interest of Ordnance Factory, Dum Dum.
(c) The representation of the applicant was rejected by the concerned respondent authority vide impugned order dated 08.04.2022. Vide 4 impugned order dated 12.04.2022 the applicant was communicated that he would be relieved from Ordnance Factory, Dum Dum on 18.04.2022. The applicant filed an O.A.No.350/688/2022 before this Tribunal for staying operation of the impugned order of transfer as well as the release order. This Tribunal passed an interim order on 18.04.2022 staying operation of the transfer order and such interim order continued for a long time.
(d) During pendency of the O.A.No.350/688/2022, the Yantra India Limited vide office order dated 13.02.2024 cancelled the earlier order of transfer dated 01.04.2022 which was issued against the applicant and such cancellation was communicated to the applicant vide letter dated 15.02.2024. The applicant was asked to inform about the same to the Tribunal. The applicant did so and accordingly the said O.A. was dismissed as being "infructuous" on 08.04.2024. Immediately thereafter the DGM/HR, Yantra India Limited , Headquarter issued an impugned order of transfer dated 10.05.2024 against the applicant whereby he has been transferred from Ordnance Factory, Dum Dum to Ordnance Factory, Katni, Madhya Pradesh.
(f) The applicant made a representation to the authority concerned on 14.05.2024 against his transfer order to Katni requesting for his retention at Dum Dum on personal grounds i.e. wife's illness and education of his minor child, but such request was not considered by the respondents. Before making representation the applicant was issued relieve order on 11.05.2024 and modified relieve order on 13.05.2024 without giving him any time to move this Tribunal and the General Manager/HR, Yantra India Limited issued 5 a speaking order dated 17.05.2024 whereby the representation of the applicant was rejected. Hence, this O.A.
3. At hearing, Learned Counsel for the applicant submitted that the transfer order dated 10.05.2024 has been issued in utter violation of the O.M. dated 24.09.2021 issued by the Government of India, Ministry of Defence, Department of Defence Production because the Department of Public Sector Undertaking i.e. the Yantra India Limited did not frame any transfer policy and service conditions as per the said O.M. Learned counsel for the applicant also submitted that the release order in respect of the applicant has been issued hurriedly without considering the personal difficulties of the applicant, therefore, the whole exercise of the respondents in this respect is bad in law and the impugned transfer order dated 10.05.2024, release order and the order of rejection of transfer order dated 17.05.2024 should be quashed.
4. Learned Counsel for the respondents has placed reliance on an instruction of the Executive Director of Ordnance Factory, Dum Dum dated 05.06.2024 which is taken on record. From perusal of the said instruction it appears as follows:-
"a) In the aforesaid INTRA-DPSU TRANSFER order dated 10.05.2024, total 29 Group A officers (list enclosed) have been transferred within the different units of the DPSU (Yantra India Limited) on the functional requirements to fulfill the organizational goals. Accordingly, the petitioner and other 03 GR. A officers have been released from Ordnance Factory Dum Dum (OFDC) on 11.05.2024 (A/N) along with their Advance of TA/DA and composite transfer grant as per rule.
b) It may be highlighted that the petitioner has drawn a sum of Rs 2.10,600/-
as a transfer grant from OFDC on 11.05.2024 for joining at OFKAT and as per the aforesaid INTRA-DPSU TRANSFER order, 03 GR. A officers from the different units of the YIL have joined at OFDC within 22.05.2024. Accordingly. Smt. Priyanka Sharma, Ex. DGM/MSF (Now DGM/OFDC) has taken the allocated duties of the petitioner (Shri Lal Jha, Ex. DGM/OFDC); Shri Ram Naresh Meena, Ex. DGM/ OFA (now DGM/OFDC) has taken the allocated duties of Shri D. K. Singh, Ex. DGM/OFDC and Shri Akash Verma, Ex. WM/OFBH (Now WM/OFDC) has taken the allocated duties of Shri Kalyan Paul, Ex. DGM/OFDC. Further, Shri Avishek Kumar, newly promoted AWM/OFDC has also taken the allocated duties of Shri Prashant Kumar, Ex DGM/OFDC. The copies of office order for allocation of duty of GR-A officer 6 dated 01.01.2024 (Lc. prior to this transfer order) and dated 22.05.2024 (i.e. after transfer action) are enclosed in Annexure- A.
c) It may also be brought to the notice of the Hon'ble Tribunal that except the petitioner (Shri Lal Jha, Ex. DGM/OFDC), all other officers have joined their new posting. Now, if the petitioner has granted the interim relief at this stage, the goals of the Defence Production Unit will be hampered badly.
d) Moreover, the petitioner was posted in Ordnance Factory Dum Dum for a long period more than 10 years and the said petitioner, was earlier transferred to O.F. Bhusawal in 2022, and at that time the said petitioner filed an OA No. 350/00688 of 2022 before the Hon'ble Tribunal Kolkata Bench. Further, in compliance to the order of Hon'ble Tribunal, the transfer order was Stayed and finally cancelled. The current transfer order is issued after 02 years and again the officer has approached the Hon'ble Tribunal for interim relief against his transfer." Learned Counsel for the respondents has submitted that transfer is an incident of service as per law laid down by Hon'ble Supreme Court in various decisions and the applicant was transferred to Katni, Madhya Pradesh in administrative interest. The competent authority is empowered to transfer the applicant from one place to another place with Yantra India Limited during the period of deemed deputation, therefore, he should have obeyed the same. Learned Counsel for the respondents has further submitted that the transfer order of the applicant was issued by following the relevant rules and regulations governing the field, therefore, the aforesaid submission of the applicant is not maintainable.
5. Heard Learned Counsel for both sides and perused the record.
7. Submission of the counsel for the applicant is that the applicant was initially appointed to the post of Assistant Works Manager on 20.03.2023 through Union Public Service Commission and assigned Group 'A' service. He was allocated the Ordnance Factory Board under the Department of Defence Production Unit under the Ministry of Defence. Further, the respondents, Union of India has taken a policy 7 decision dated 24.09.2021 vide which dissolution of Ordnance Factory Board was made to the new Defence Public Sector Undertaking and the Directorate of Ordnance (Coordination & Services) and accordingly all employees of Group A,B and C were transferred to the new seven units called Defence Public Sector Undertakings (DPSU in short. The Learned Counsel for the applicant has relied on the O.M. dated 24.09.2021 and submitted that the applicant is under deemed deputation with the Yantra India Limited and as per the aforesaid O.M., new DPSU is required to frame rules and regulations related to service conditions of the absorbed employees and to seek option from the employees on deemed deputation to that DPSU for permanent absorption within a period of 2 years. His further submission till date no rules are framed by Yantra India Limited and if no rules are framed, the right of the applicant as a Group 'A' officer working under deemed deputation is required to be considered. It is also to be asked whether the employee is interested to be absorbed in the new DPSU or continue to work as on deemed deputation which was not done in this case, therefore, the right of the applicant for consideration for absorption in DPSUs has not been addressed by framing rules and regulations related to service conditions even after more than two years of his deemed deputation, therefore, transfer of the applicant by the competent authority of Yantra India Limited is not in accordance with the spirit of the O.M. dated 24.09.2024.
8. On perusal of the record, it appears that the applicant is under deemed deputation with Yantra India Limited which is wholly governed by the Government of India and the service conditions of the Central Government employees are applicable to him. Therefore, even though no rules are framed by Yantra India Limited within the due date, the competent authority has the power to transfer the 8 applicant under the central Government rules framed for Group 'A' officers. So far as the impugned order dated 17.05.2024 is concerned, it is apparent that the representation of the applicant dated 14.05.2024 was duly considered vide the said speaking order dated 17.05.2024 where the respondents have relied upon O.M dated 24.09.2021 and observed that the applicant is a Central Government servant as per Para 5 of the O.M. dated 24.09.2021 and thus he is liable for all India Transfer as per the terms and conditions of his appointment order. The respondents have further clarified that till the time the applicant remains under the deemed deputation in new DPSU, he shall be subject to all the rules and regulations which are applicable to the Central Government servants including pay scales, allowances, leave medical facilities, career progression and other service conditions. The impugned speaking order dated 17.05.2024 has further clarified that vide Ministry of Defence O.M dated 30.11.2021 it is notified with regard to delegation of administrative powers among the Directorate and the 7 new Defence companies that full power is vested on the Board of Directors. The order dated 17.05.2024 has also clarified that normally the tenure of Group-A technical officers is 5 to 9 years and the applicant has exceeded the said tenure as he has been working at OFDC since 2013. Accordingly, this Tribunal is satisfied that grievance of the applicant has been redressed by the respondents and reasons for transfer on administrative exigency has been explained, therefore, no interference is required in the impugned order of transfer.
9. In this regard it would be pertinent to refer to a catena of decisions of Hon'ble Supreme Court in the following cases :-
(i) Shilpi Bose Vs. State of Bihar AIR 1991 SC 532, the Hon'ble Apex Court held that a transfer order, even if, is issued to 9 accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because transfer orders were passed on the request of the concerned employees. No person has a vested right to remain posted to a particular place, and unless the transfer order is passed in violation of any mandatory rule, the High Court had no jurisdiction to interfere with the transfer orders. Relevant extract is quoted as under:
"if the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the Court merely because the transfer order were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority, which did not violate any mandatory rule, therefore, the High Court had no jurisdiction to interfere with the transfer orders."
(ii) That, in Rajendra Rai vs. Union of India 1993 (1) SCC 148 and Union of India vs. N.P. Thomas 1993 Suppl. (1) SCC 704, it was said that the Court should not interfere with the transfer orders unless there is a violation of some statutory rule or where the transfer order was mala fide.
(iii) That, in N.K. Singh vs. Union of India JT 1994 (5) SC 298, the Court said, "Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers ..............."
(iv) Further, in the case of State Bank of India vs. Samarendra Kishore Endow (1994(1) SLR 516) the Hon'ble Supreme Court has held that a High Court or Tribunal has no power to substitute its own 10 discretion for that of the authority. In this case, the Apex Court had further observed that the power of judicial review is mean "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court".
(v) That, in Abani Kanta Ray vs. State of Orissa and others 1995 Suppl. (4) SCC 169 the Hon'ble Supreme Court observed, "It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer."
(vi) The Hon'ble Apex Court in the case of Union of India & Anr. Vs. G. Ganayutham, (1997) 7 SCC 463, observed as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the Court and Tribunals in our country can only go into the matter, as a secondary reviewing Court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU test. The choice of the options available is for the authority; the Court/ Tribunal cannot substitute its view as to what is reasonable."
(vii) That, in Union of India Vs. Janardhan Debanath JT 2004 (2) SC 371, the Hon'ble Apex Court held that:-
"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 malafide exercise or stated to be in violation of statutory provisions prohibiting 11 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 ............"
10. From perusal of the aforesaid citations and decisions of Hon'ble Supreme Court, it appears that court should not normally interfere in the transfer order if that is not otherwise violative of statutory provisions or passed with mala fide intention. Transfer is an exigency of service and it is in the domain of executive to place one person at a particular place for effective administration.
Hon'ble Supreme Court in the case of G. Ganayutham (supra) and Janardhan Debanath (supra) has discussed the interference of the Tribunals/courts into the executive orders passed by the administration as a secondary review court to find out the role of executive or the administrator with regard to action taken in exercise of statutory powers. In the present case, we find that the transfer of the applicant was purely an executive action exercised as per statutory power and such action was just and valid.
11. Considering the ratio held by Hon'ble Apex Court as well as submissions of Learned Counsel for the applicant and the grounds stated in the speaking order dated 17.05.2024, this Tribunal is of the opinion that there is no infirmity or illegality in the order of transfer of the applicant dated 10.05.2024 and the impugned speaking order dated 17.05.2024.
12. In view of the aforesaid facts and circumstances, the O.A. is dismissed at the admission stage being devoid of any merit. No order as to costs.
(Rajnish Kumar Rai) Judicial Member sb