Central Administrative Tribunal - Delhi
Dr (Mrs) Shashi Prabha Kailash vs Union Of India Through on 21 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.4219/2010 New Delhi, this the 21st day of July, 2011 CORAM: HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Dr (Mrs) Shashi Prabha Kailash, W/o Shri Kailash Chandra Verma, R/o 203, Sector 14, Urban Estate, Rohtak (Har) .Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Union of India through The Secretary, Ministry of Information & Broadcasting, Govt. of India, New Delhi 2. The Director General, All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi 01 3. D.D.A (P), All India Radio, Akashvani Bhawan, Sansad Marg, New Delhi .Respondents (By Advocate: Shri S.M. Arif) O R D E R
The applicant was appointed as A.R.O. and subsequently she got promotion as Deputy Director Audience Research in A.I.R., New Delhi. According to the applicant when she was posted in AIR in the year 2006, one Shri Arvind Kumar Dhanvick working in the same Department for 18 years started threatening her and also disrupted the office decorum and discipline. It is the case of the applicant that Shri Arvind Dhanvick working under her not only abused the applicant but also threatened to kill her and she had to lodge a complaint against him at Parliament Police Station, New Delhi and also to the National Commission for SC. It is alleged by the applicant that Shri Arvind Kumar Dhanvick used the Dias of SC/ST Welfare Association within the premises of AIR to make objectionable, insulting and false comments about her, thus she was compelled to surrender his services and also the services of one Shri Ram Niwas vide official complaint-cum-note dated 28.9.2010.
2. Raising the afore-mentioned plea, the applicant has contended that instead of taking action against Shri Arvind Dhanvick, Investigator, the respondents issued order dated 1/4.11.2010 transferring her from AIR, New Delhi to AIR Lucknow. According to the applicant when she has been transferred to Lucknow, in order to accommodate Shri Arvind Dhanvick in Delhi itself, Shri Shafat Hussain, Investigator Gr. I is shifted from ARU, Doordarshan Kendra, New Delhi to ARU, AIR, New Delhi. Challenging the order or her transfer to Lucknow, the applicant made a representation dated 10.11.2010 to The Director General, All India Radio. She also filed Original Application No. 3803/2010 before the Principal Bench of the Central Administrative Tribunal, assailing the aforementioned order of her transfer. This Tribunal passed order dated 15.11.2010 deciding the aforementioned Original Application by directing the respondents to consider the representation made by the applicant against the order of her transfer and pass appropriate orders thereon. Till the disposal of the representation of the applicant and for 10 days thereafter, the respondents were restrained from giving effect to the transfer order. The operative portion of the order passed by the Tribunal in OA No.3803/2010 is as under:
4. In the facts and circumstances of the case, the present Application is disposed of at the admission stage itself without going into the merits of the case and without prejudice to the rights of the respondents by issuing directions to the respondents to consider the applicants representation against her transfer and pass appropriate order thereon by a reasoned and speaking order. Until such a decision is taken, the respondents shall not give effect to their order dated 10.11.2010 regarding relieving of the applicant and 10 days thereafter.
3. Complying with the aforementioned order, the respondents issued order dated 1.12.2010 disposing of the representation dated 10.11.2010 made by the applicant against the transfer order, taking the view that the applicant has been transferred to Lucknow for maintaining congenial atmosphere at AR Unit, AIR Delhi. The relevant portions of the said order dated 1.12.2010 passed by the respondents deciding the representation of the applicant read as under:
And whereas, representation given by Dr. Shashi Prabha Kailash dated 10/11/2010 has been duly considered and it is observed that she has been transferred to Lucknow for the maintenance of congenial atmosphere at AR Unit, AIR Delhi. It is further observed that she &other officials at AR Unit, AIR Delhi Office made allegations & counter allegations against each other vitiating the peaceful atmosphere in the office.
And whereas, so far as posting of husband & wife is concerned, the same is a guideline & not a statutory provision. An employee having transferable post can be posted anywhere in public interest, and her transfer has been made in public interest. Besides, she has already completed her tenure in Delhi by remaining posted for more than four years.
And whereas, it is also observed that the other official who has made counter allegation is also posted out from AR Unit, AIR Delhi vide order no.07/12/2010 dated: 01/11/2010.
And whereas, with regard to her projection that education of her children would be disrupted if she is posted out during the mid session of schooling, it is observed that as per entries in her service book she has not communicated the existence of her children, their standard in educational institution, place of study and age thereof for entry in her Service Book as such this projection is not found tenable.
4. Assailing the speaking order, the applicant has filed the present Original Application raising the contentions:- (i) A fact finding inquiry was conducted into the allegations and counter allegations made by the applicant and Shri Arvind Kumar Dhanvick and in the said inquiry disciplinary action was recommended against Shri Dhanvick while there was no adverse finding against the applicant; (ii) Respondents have shown undue favour to Shri Dhanvick inasmuch as they have retained him in Delhi itself and transferred the applicant to Lucknow. The order of transfer of the applicant has been passed under pressure of Shri Dhanvick without approval of the D.G.; (iii) For any misconduct, an employee may be subjected to disciplinary action and the transfer is not the remedial measure against indisciplined employees; (iv) The applicant is in Delhi for 4 years only while Shri Dhanvick is working in Delhi for the last 18 years; and (v) Husband of the applicant is working in Delhi in the same Department and her children are studying in Rohtak, thus she should not have been transferred to Lucknow.
5. Opposing the OA filed by the applicant, the respondents have filed a detailed counter reply contending therein that the applicant has not been transferred to Lucknow as a punishment and her transfer is only in administrative exigencies. Para-1 of the reply on merits reads as under:
1. That the contents of para No.1 of the O.A. are wrong and denied. It is wrong to say that the applicant has been ordered to be transferred from A.I.R. New Delhi to A.I.R. Lucknow as a penalty. It is further wrong to say that her transfer is illegal, unjust, arbitrary and against the government instructions. It is humbly submitted that the transfer of the applicant from New Delhi to Lucknow is on administrative exigencies.
6. It is the stand of the respondents also that the applicant had made complaint against Shri Dhanvick and Shri Dhanvick made complaint against her. Admitting the fact of complaints and counter complaints by the applicant and Shri Dhanvick, the respondents have pleaded that by squabbling with each other and making complaints, the applicant and sHri Dhanvick were polluting the atmosphere in the Office and thus both of them have been posted out of A.R.U., AIR, New Delhi to maintain congenial atmosphere in the Office.
7. In view of the rival contentions advanced on behalf of the applicant and respondents, following propositions need to be determined by me:-
Whether the order of transfer of the applicant is punitive?
Whether in order to maintain congenial atmosphere in the Office, the respondents could have transferred both the applicant and Shri Dhanvick and whether such an order can be called stigmatic?
Whether in view of the facts of the case, this Tribunal can interfere with the order of transfer?
Whether in view of posting of husband and wife in Delhi, the applicant is entitled to be retained in Delhi itself?
8. As far as the first contention is concerned, a perusal of the transfer order dated 01/04.11.2010 itself reveals that the same has not been issued as a punishment order nor the same could be so issued. From the speaking order dated 1.12.2010, it is apparent that the applicant has been transferred to Lucknow for maintenance of congenial atmosphere at AR Unit, AIR, Delhi, as admittedly the applicant and Shri Dhanvick were indulging in making complaints and counter complaints against each other and were polluting the atmosphere in the Office. The order of transfer issued to maintain congenial atmosphere in the Office has to be considered as an order in the interest of administration and not as a punishment order. In the case of Kulbir Krishan vs Union of India & Anr (O.A. No.1929/2006) decided on 5.6.2007, somewhat similar proposition came up for consideration before a Division Bench of this Tribunal. In the said case the applicant, Shri Kulbir Krishan and one Shri Yashwant Malhotra were indulging in allegations and counter allegations against each other. The Union of India had shifted both the officers from SSB. Shri Kulbir Krishan approached the Principal Bench of this Tribunal raising the contention that the order of his transfer was punitive. The Tribunal rejected his contention taking a view that the strained relation between the two officers were personal to each other and were not connected with the performance of their official duties and would not be stigmatic to their service career. Part of Para 32 of the judgment reads as under:
32. We have given our thoughtful consideration to the issue and have come to the conclusion that strained relations between two officers was personal to each other, wholly unconnected with performance of their official duties and would not be stigmatic to their service career and that is indeed the stand of respondents as well. It is unequivocally stated in the written statement that the repatriation of the applicant is not at all punitive and stigmatic and as such there is no question of stigma attached to his repatriation. The applicant has indeed shown his worth and has been appreciated for his work and conduct from time to time. From the averments made in the written statement it appears that the applicant is performing his duties well. There is no mention of any specific act of indiscipline indulged by the applicant that might have resulted into his repatriation. The reason, as mentioned above, is only infighting between two officers, not connected with their official duties and personal to them, which somehow resulted into a gradual deterioration of atmosphere in the organization. The counsel for the applicant is unable to refer to any stigma attached to the applicant, either on the basis of record or on the basis of pleadings, but for last para of the written statement which reads as under: xxxxxx Following the aforementioned judgment of the Division Bench of the Tribunal presided over by Honble Chairman, I find that the order of transfer of the applicant is not punitive. Neither the order of transfer nor the speaking order cast any stigma on the applicant. The allegations and counter allegations made by the applicant and Shri Dhanvick against each other are personal to them and thus it would not be correct to hold that the order of transfer of the applicant or the order of the respondents rejecting the representation of the applicant are stigmatic.
9. As far as the interference by the Tribunal with the order of transfer is concerned, it has very limited jurisdiction. It is stare decisis that the Courts must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive and it should be very reluctant to interfere with the transfer orders as long as they are clearly illegal. Very recently, on 6.10.2010 while deciding the case of State of Haryana & Ors vs Kashmir Singh & Anr. etc. etc. the Honble Supreme Court ruled that the transfer and posting should be left to the discretion of the concerned State Authorities which are in best position to assess the necessities of the administrative requirements of the situation. Para 14 of the judgment reads as under:
14. Transfer ordinarily is an incidence of service, and the Courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the concerned State authorities which are in the best position to assess the necessities of the administrative requirements of the situation. The concerned administrative authorities may be of the opinion that more policemen are required in any particular district and/or another range than in another, depending upon their assessment of the law and order situation and/or other considerations. These are purely administrative matters, and it is well-settled that Courts must not ordinarily interfere in administrative matters and should maintain judicial restraint vide Tata Cellular vs. Union of India AIR 1996 SC 11.
10. As far as the plea of the applicant regarding posting of husband and wife at the same station is concerned, the proposition is squarely covered by the decision of the Honble Supreme Court in the case of Bank of India vs. Jagjit Singh Mehta {(1992) 1 SCC 306} followed in Union of India vs S.L. Abbas {(1993) 4 SCC 357}. In the said case the Honble Supreme Court categorically ruled that ordinarily and as far as practicable, husband and wife employed should be posted at the same station, but the interest of administration cannot be sacrificed for their personal convenience and the departmental authorities have to consider the aspect of requirement of posting of husband and wife at same station with the exigencies of administration. The Honble Supreme Court also observed that the two spouses can be posted together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. Para 9 and 10 of the judgment in the case of UOI vs S.L. Abbas (supra) read as under:
9. Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta, (1992) 1 SCC 306: (1992 AIR SCW 170) rendered by a Bench of which one of us (J. S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein (para 5 of AIR):-
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places.......No doubt the guideline requires the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondent's contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/ guidelines are not followed, much less can it be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.
11. Besides the aforementioned legal positions, I have also the judgment of the Honble Delhi High Court in the case of Dr. A.K. Bhardwaj vs Union of India & Ors (Writ Petition (C) No.519/2009 decided on 29.7.2009) before me. In the said judgment the order of transfer of the applicant on account of disputes between the different categories of Doctors was considered in the interest of administration. Paras 3, 6, 9 and 10 of the judgment read as under:
3. Aggrieved by his transfer Petitioner filed an Original Application bearing OA No.2477/2008 before the Central Administrative Tribunal, Principal Bench, New Delhi (for short referred to as Tribunal) alleging therein that his transfer order was passed with malafide intention and be quashed being punitive. In the Central Health Services (CHS), there were two categories of doctors 9.e. (a) regularly appointed doctors (b) doctors whose services had been regularized. Petitioner belongs to latter category. On account of disputes between the aforementioned different categories of doctors, Petitioner was transferred. As per the Petitioner transfer was arbitrary and there was use of colourable exercise of power by the Respondent. Transfer was punitive and stigmatic. Petitioners transfer would affect his promotion prospects. Transfer order was passed by the incompetent authority.
xxxx xxxx xxxx xxxx xxxx
6. On the basis of material produced before it by the parties to the lis, Tribunal held that the Petitioner was transferred in public interest. Report of Medical Superintendent revealed that Petitioner had been misbehaving with senior and junior doctors and departmental action was contemplated. In absence of proper and comfortable environment in the hospital on account of disharmony between the doctors, it is the patient who suffers. Tribunal was also of the view that Central Health Service was a well knit cadre of doctors, therefore, seniority of the Petitioner would not suffer due to transfer. Tribunal also held that since order was issued by the Under Secretary with the approval of competent authority it was proper. xxxx xxxx xxxx xxxx xxxx
9. Learned counsel for the petitioner has placed reliance on judgments titled Ramadhar Pandey vs. State of U.P. & Ors Reported in 1993 Supp (3) Supreme Court Cases 35, and Arvind Dattatraya Dhande Vs. State of Maharashtra & Ors. reported in (1997) 6 Supreme Court Cases 169 to buttress his arguments that the transfer order is loaded with malafides and is punitive in nature. We have perused the above judgments and find that the same are in different facts. In our view these judgments are not applicable to the facts of the present case. In Arvind Dattatraya Dhandes case (supra) the concerned officer has conducted a raid at the business premises of an influential businessman and had even got registered a criminal case against him for indulging in adulteration of toddy thereby endangering the lives of consumers. The businessman lodged a complaint with the Minster for District as well as State Minister for Excise. By exercising political influential he got the officer transferred. In these facts Supreme Court held that transfer was not in public interest and was done in order to victimize an honest officer. In Ramadhar Pandeys case (supra) the issue involved was intra cadre transfer of an officer. The facts of this case are totally different. We have already noted that presence of the Petitioner in the hospital was vitiating the atmosphere and for this reason it was thought fit to transfer him in some other hospital in Delhi
10. We are of the view that Petitioner has failed to show that his transfer order is loaded with malafides and has been passed in order to victimize him. Petitioner is a member of Central Health Service and his post is transferable anywhere in India or abroad in terms of notification No. GSR 460 (E) dated 8th October, 1996 of Ministry of Health and Family Welfare. In our view, transfer of an employee is not only an incidence inherent in terms of his appointment but is also implicit as an essential condition of service in absence of any specific indication to the contra in the law governing the service condition. A Government servant holding a transferrable post has no vested right to remain posted at one place or the other as per his choice. Transfer order issued by a Competent Authority does not violate any of his legal rights. It is well settled that a transfer order has not to be interfered with unless the same is vitiated by malafides and is in violation of any statutory provision. In this case the petitioner was holding a transferable post. Accordingly, action of the respondent in transferring the petitioner cannot be faulted.
12. It is settled position of law that the order of transfer cannot be issued with an intent to punish an employee. In the present case, it is not so that the respondents have issued the transfer order as a punishment. Respondents have only transferred the applicant to Lucknow just to maintain congenial atmosphere in the Department. Being bound by the judicial pronouncements by the Honble Supreme Court, Honble Delhi High Court and the Division Bench of this Tribunal, I decline to interfere with the order of transfer of the applicant dated 1/4.11.2010 and also with the speaking order dated 1.12.2010. However, it would be open to respondents to examine the inconvenience and personal difficulties being faced by the applicant in view of the transfer order, inasmuch as her husband is posted in Delhi and Shri Arvind Kumar Dhanvick, who was her subordinate, is also retained in Delhi. In case the respondents find it feasible and in the interest of administration, they may consider modifying the order of transfer. The OA is disposed of. No costs.
(A.K. BHARDWAJ) Member (J) /pkr/