Central Administrative Tribunal - Patna
Satya Prakash vs Railway on 23 March, 2023
-1- OA/050/00224/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00224/2020
Reserved on: 01.03.2023
Pronounced on: 23.03.2023
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Satya Prakash, Son of Shri Shyam Nandan Prasad, Radiographer
Radiographer under Chief
Medical Superintendent, North Frontier Railway, Katihar
Katihar-854105 (Bihar).
.... Applicant.
By Advocate: - Mr. M.P. Dixit
-Versus
Versus-
1. Union of India through the General Manager, North Frontier Railway,
Maligaon (Guahati), Pin Code-781001.
781001.
2. The General Manager (Personnel), North Frontier Railway, Maligaon
(Guahati), Pin Code- 781001.
3. The Principal Chief Medical Director, North Frontier Railway, Maligaon
(Guahati), Pin Code-781001.
4. The Divisional
isional Railway Manager, North Frontier Railway, Katihar (Bihar),
PIN Code-854105.
5. The Senior Divisional Personnel Officer, North Frontier Railway, Katihar
(Bihar), Pin Code-854105.
6. The Senior Divisional Personnel Officer, North Frontier Railway, Katihar
(Bihar), Pin Code-854105.
7. The Chief Medical Superintendent, North Frontier Railway, Katihar
(Bihar), Pin Code-854105.
8. The Senior Divisional Financial Manager, North Frontier Railway, Katihar
(Bihar), Pin Code-854105.
9. The Assistant Chief Medical Superintendent,
Superintendent, North Frontier Railway,
Katihar (Bihar), Pin Code-854105.
.... Respondents.
By Advocate(s): - Mr. H.P. Singh, Sr. SC
ORDER
Per S.K. Sinha, A.M:- Applicant pplicant has preferred this OA being aggrieved ggrieved with the order dated 12.07.2019 of GM(P), NF Railway (Annexure A/10) transferring him from Katihar to Tinsukiya and
-2- OA/050/00224/2020 cancelling the earlier order dated 30.05.2019 of his mutual transfer to Dhanbad Division. The applicant has also assailed the order dated 09.03.2020 of ACMS Katihar relieving him him from Katihar on transfer to Tinsukia (Annexure A/8). The applicant's prayers in the OA read as under:
under:-
" 8.1 That your Lordships may graciously be pleased to quash and set aside the impugned Order dated 09.03.2020 together with order dated 12.07.2019 issued by the Respondent No. 9 and 2 respectively as contained in Annexure-A/8 Annexure and A/10.
8.2 That your Lordships may further be pleased to quash and set aside the impugned order dated 12.07.2019 issued by the Respondent No. 2 as contained in Annexure-A/10 Annexure whereby the order dated 30.05.2019 as contained in Annexure A/3 concerning acceptance of Mutual Exchange transfer of applicant for Dhanbad Division has been cancelled.
8.3 That your Lordships may further be pleased to direct/command the respondents to sparespare the applicant for Dhanbad Division in compliance to their own order dated 30.05.2019 as contained in Annexure A/3 concerning acceptance of Mutual Exchange transfer of applicant without any further delay with all consequential benefits.
8.4 Any other relief ief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant. "
2. Brief facts leading to o the OA are that applicant, applicant who was appointed as Radiogr Radiographer apher under SE Railway in 2013, 2013 came to Katihar Division under NF Railway on 0 07.06.2018 7.06.2018 on mutual transfer.
Within six months of his joining at Katihar, Katihar applicant made further request for mutual transfer to Dhanbad Division, ECR with Shri Sanjeev Kumar, Radoigrapher. The request for mutual transfer was accepted and order to that effect was passed ed on 30.05.2019 (Annexure A/3) A/3). While still continuing at Katihar, applicant was
-3- OA/050/00224/2020 placed under suspension by the Senior Divisional Medical Officer on n 09.07.2019 (Annexure A/4), and a charge memorandum for holding departmental proceeding against him under Rule 9 of the Railway Servants (Disciplinary & Appeal) Rules, 1968 was issued on 30.07.2019 .2019.. The article of charge stated that during the course of medical examination off RRB shortlisted candidates of CEN 01/2018 at Divisional Railway Hospital, Katihar, atihar, applicant pplicant demanded and accepted a bribe of Rs 500/- from a decoy candidate in presence of independe independent nt witnesses. On 12.07.2019, the office of GM (P) , NF Railway ordered for applicant's transfer to the office of Chief Medical Superintend Superintendent, Tinsukia insukia cancelling the earlier order of mutual transfer dated 30.05.2019. Additional dditional Chief Medical Superintendent uperintendent (ACMS CMS) Katihar, vide order dated 09.07.2020, relieved applicant w.e.f. 06.07.2020 in terms of the impugned transfer order .
3. Applicant's licant's case is that the impugned transfer order dated 12.07.2019 was issued while he was under suspension and that the law does not permit transfer of employees under suspension. Applicant has also pleaded that Railway Board guidelines do not provide for cancellation of mutual transfer order once issued and hence, the cancellation of his mutual transfer order with Sanjeev Kumar was in violation of the guidelines. Applicant has also maintained that the impugned transfer order dated 12.07.20 12.07.2019 19 was never communicated to him and that he was informed of the
-4- OA/050/00224/2020 transfer order only through the relieving order. Applicant has further pleaded that the departmental proceeding initiated vide charge memorandum dated 30.07.2019 was pending against him and that during pende pendency ncy of the proceeding he should not have been transferred outside the Division.
4. Contesting ontesting the OA OA, respondents filed Written Statement tatement maintaining that the competent authority of Railway vigilance department had conducted a decoy operation to check the veracity of a complaint relating malpractices by doctors and other staff including the applicant at Katihar Division Railway hospital. During the operation on 05.07.2019, applicant demanded and accepted Rs 500/- as bribe for clearing the X ray test from the decoy candidate. During the operation operation,, conduct of one Dr. Dr Rajesh Kumar and six other medical staff was also found suspicious suspicious.. In view of the report and advice of Vigilance department, it was decided to ttransfer ransfer all the officials allegedly involved in the malpractice including Dr. Dr Rajesh Kumar to faraway places in interest of administration. Dr. Rajesh Kumar and others have subsequently joined the places of their transfer. Regarding applicant, it was decided dec to cancel his Inter Railway mutual transfer order dated 30.05.2019 and instead transfer him to another Division within the NF NF Railway in view of the departmental proceeding contemplated against him. The post of Radiographer bein being a Headquarter controlled post, post, GM(P)/Maligaon ,
-5- OA/050/00224/2020 NF Railway exercised his authority and transferred the applicant from Katihar Division to Tinsukia Tinsukia. Later, applicant applicant was relieved from Katihar Division on 07.03.2020 and the case file relating his departmental proceedi proceeding ng was also sent to Tinsukia Division in accordance with the provisions of the RS (D&A) Rules, 1968.. 4.1 Respondents have pleaded that applicant's transfer to Tinsukia was on administrative grounds and on account of his alleged involvement in corruption corruption. Transfer of a Railway official facing a departmental proceeding was in accordance with the Railway guidelines and that Railway Board letter no. E(D&A) 69 RG-6-12 12 dated 18.06.2019 laid down that a departmental proceeding can be shifted to the place of tr transfer ansfer where a new disciplinary authority would continue with the proceedings further. 4.2 Respondents have referred the judgment of this Tribunal in OA No. 596/2018 which was disposed of in accordance with the law settled by Hon'ble Supreme Court in the case of S C Saxena vs. UOI &Ors [ (2006) 9 SCC -583] 583] that a transferred Government servant is first required to join at the place of transfer and thereafter represent if he feels that the transfer has been done due to erroneous consideration considerations. Respondents ondents have also relied re upon the judgment of this Tribunal in OA No. 264/2020 and 265/2020, 265/2020 which were filed by the other staff who were transferred out from Katihar after the decoy operation for their suspicious conduct , dismissing the OAs .
-6- OA/050/00224/2020
5. In rejoinder, applicant pleaded that he had been transferred to Tinsukia though there was no vacant post of Radiographer there. Hence Hence, the order transferring him to Tinsukia was malicious and punitive.
6. Respondents filed sur-rejoinder rejoinder mentioning mentioning that Radiographer of the Medical Department was a centralized cadre controlled at HQ and declared a floating cadre. The post of Radiographer was automatically re re-pinpointed pinpointed to the Division where an incumbent Radiographer was transferred.
7. After admission, we heard the rival counsel and considered their submissions and materials on record.
8. It transpires from the pleadings and submissions during the hearing that main issues for adjudication in this OA before us are whether (a) applicant's transfer sfer to Tinsukia Division vide order dated 12.07.2019 was in accordance with the rules/law;
rules/law and (b) whether the order canceling the mutual transfer order dated 30.05.2019 of the applicant was lawful.
9. Mr. M. P. Dixit , counsel for applicant has submitted that applicant had been transferred to Dhanbad Division, EC Railway on mutual transfer basis vide order dated 30.05.2019 and the department was required to relieve him within a week. But the respondents arbitrarily cancelled the mutual transfer order and
-7- OA/050/00224/2020 transferred erred him to Tinsukia Division vide the impugned order dated 12.07.2019. Learned counsel also raised the issue that applicant's transfer to Tinsukia was ordered when he was under suspension . L/C maintained that transfer during sus suspension pension was against the settled law. He also mentioned that there was only one post of Radiographer at Tinsukia which was already filled up.
up Hence, the he transfer of applicant to Tinsukia was without post and hence, bad in law. Learned counsel further argue argued d that the decision to transfer the applicant was taken on the advice of Vigilance Department which had no statutory role and hence the order was ag against the law.
10. Mr. H. P. Singh, SSC, appearing for respondents reiterated the respondents respondents' avermentss in the written statement and argued that applicant's transfer to Tinsukia Division was on administrative grounds because he was found demanding and accepting bribe of Rs 500/- for clearing the X ray test of a decoy candidate. One doctor and other sta staff whose role was also found suspicious in the decoy operation were transferred to other stations and they had joined their places of transfers transfers.. Applicant's suspension was revoked on 06.03.2020 and the order sparing him from Katihar Division was issued on 09.03.2020. Mr. Singh also maintained that the departmental proceeding file of the applicant had been sent to Tinsukia Division in accordance with the Rail Railway way Board guidelines where the Proceedings would continue after applicant's joining joining..
-8- OA/050/00224/2020 Regarding the non
non- availability of any vacant post of Radiographer at Tinsukia, SSC maintained that Radiographer cadre was a floating cadre and the post of Radiographer wa wass transferred with the incumbent individual. SSC presented an order of NF Railway dated 10.06.2022 that the post of Radiographer (Level 5 & Level 6) was floating cadre posts and argued that there was no violation of any law in transferring the applicant to Tinsukia Division.
11. In rebuttal, Mr. M. P. Dixit contested the assertion of SSC that Radiographer was a floating cadre.
12. Mr. M. P. Dixt has referred to the observation of Hon'ble Supreme Court in Bahadursinh Lakhubhai Gohil vs Jagdishbhai M Kamalia [ (2004) 2 SCC 65] at para 26 that " if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires." L/c contested that tra transfer nsfer order being issued on the advice of Vigilance department was thus not lawful. We are unable to accept Mr Dixit's assertion that Vigilance department had no statutory role to advice the respondents relating applicant's transfer. It is undisputed that the referred Vigilance department is an integral part of Railway set up and responsible for investigation of complaints received from various sources, preventive vigilance like surprise inspections, regular surveillance/scrutiny of procurement and contract matters and coordination with the Central Bureau of
-9- OA/050/00224/2020 Investigation (CBI) etc. c. The decoy operation at Katihar Divisional Hospital was part of its statutory role. Its report to the Zonal/Divisional Railway authorities sharing the operation's outcome and advice to improve mprove functioning cannot be called beyond their their statutory role.
13. On the issue of transfer during suspension/ departmental proceeding Mr. Dixit placed reliance upon the observation of Hon'ble Madras High Court in Writ rit Petition No. 26022 022 of 2015 (Divisional Railway Manager & Ors. Vs Registrar CAT, Madras Bench & Other). Para 33 33-36 36 of the judgment , relevant to the instant case is reproduced below for the sake of brevity.
"33.
33. As per the Railway Servants (Discipline and Appeal) Rules, the non-- gazetted railway staff, against whom, a disciplinary case is pending or is about to start, should not normally be transferred from one Railway/division to another Railway/division, till after the finalisation of departmental/criminal proceedings, irrespective irrespective of whether the charges merit imposition of a major or a minor penalty. However, if the employee is under suspension and an investigation is likely to take some time and the authority competent to revoke suspension is of the view that the presence nce of the Railway servant may prove detrimental to the collection of evidence, etc., or that he may tamper with the evidence, the competent authority may transfer him on revocation of the suspension. Reading of the abovesaid Rules makes it clear that a person person can be transferred on revocation of suspension.
34. In the case on hand, the order, dated 27.11.2014, transferring the 2nd respondent, is stated to be on administrative grounds. Though the said order, dated 24.11.2014 does not mention that the 2nd respondent respondent was under suspension, it cannot be disputed that transfer has been effected was during suspension. Conclusion of this Court is fortified by an order, dated 27.01.2015, by which, suspension made effect from 01.11.2014, has been revoked, in exercise of the powers conferred by clause (C) of Sub rule 5 of Rule 5 of the Railway Servants (Discipline and Appeal) Rules, 1968.
-10- OA/050/00224/2020
35. Though the inter-divisional divisional transfer order, dated 24.11.2014 and revocation order, dated 27.01.2015, are stated to have been served served only on 29.01.2015, on the grounds, inter alia that the 2nd respondent reported sick at Railway Health Unit and returned to duty only on 01.11.2014 and therefore, it could not be served, the fact remains that transfer has been effected, only during suspension, suspension, cannot be disputed.
Decision made in P.Karunakaran's case (cited supra), is squarely applicable to the facts of this case. There is no infirmity in the order of the Tribunal.
36. In the result, the Writ Petition is dismissed. No costs. Consequently, Consequently, connected Miscellaneous Petition is also closed."
14. It is undisputed that applicant was placed under suspension vide order dated 09.07.2019 (Annexure A/4) and the impugned order transferring him to Tinsukia Division was issued on 12.07.2019 (Annexure A/10). The suspension order was revoked on 06.03.2020 06.03.2020..
Itt is crystal clear that on the date when transfer order was issued, the suspension order was in force. We are of the view that instant case is squarely covered by the judgment of Hon' Hon'ble Madras High Court in WP No. 26022 of 2015 (supra) and hence the judgment can be applied to the instant case.
15. In challenging the order of his transfer, applicant has also also raised the issue of non non-availability availability of vacant post of Radiographer at Tinsukia and the departmental instruction not to transfer the charged official during the conduct of departmental proceedings. However, respondents have countered these arguments stat stating ing that Radiographers cadre was a centralized and floating cadre and that a post (of Radiographer) moved form on place to other with the transfer of incumbent official.. Also, respondents have referred to
-11- OA/050/00224/2020 Railway Board guidelines that on transfer of the ch charged official,, Departmental proceedings can be transferred to another unit where the new Disciplinary Authority would ensure further conduct of the inquiry inquiry. We do not wish to go into the details and merits of these se arguments rguments once we have held that the iimpugned mpugned transfer order during the suspension period was unsustainable in terms of the judgment of Hon'ble Madras High Court (Para 13) in WP No. 26022 of 2015 (supra) (supra).
16. Regarding the cancellation of applicant's mutual transfer fer order issued on 30.05.2019 vide the impugned transfer order dated 12.07.2019. The impugned order reads as under
under:-
"NORTHEAST NORTHEAST FRONTIER RAILWAY OFFICE ORDER NO. 23/2019 The following transfer and posting orders of Ch OS/G & Radiographer under CMS/KIR is hereby issued to take ke immediate effect SN Name of the staff Designation & Old Place of posting New Unit Unit as 1 Sri Deep Lal Ch OS/G/KIR under Ch.OS/G/LMG under Hansda CMS/KIR CMS/LMG 2 Sri Satya Prakash Radiographer/KIR Radiographer/DBRT under under CMS/KIR CMS/NTSK Further, regarding transfer on mutual ground in connection with SL. No. 2, GM(P)/MLG's O/O No 21/2019 dt. 30.05.2019 is hereby treated as cancelled.
This above order is issued with the recommendation of the Placement Committee and approval of competent authority.
(G.K. Kalita) SPO/Engg For General Manager(P)/MLG Maligaon, dated 12-07.2019 "
17. Applicant has argued that Railway rules do not permit for cancellation of mutual transfer order. RBE No. 53/2006 provides that
-12- OA/050/00224/2020 after issuance of internal transfer order no request for backtracking from the mutual exchange arrangement will be entertained. TThis his restriction applies to the concerned officials who earlier gave willingness for mutual transfer. This order does not restrict option of the competent authority in Railways to cancel an order of mutual transfer in exigencies of administration. RBE N No. 08/2019 at para 3 provides as under:-
"3. Powers :- DRMs have full powers to effect Mutual transfer of divisionally controlled post. CWMs are vested with full powers for Workshop controlled posts. As regards Head Quarter controlled posts, the General Manager is competent authority or any lower authority to whom powers have been delegated."
Southern Railway guidelines 97/2014 dated 07.07.2014 on mutual transfer expresses a need for Vigilance and DAR clearance for consideration of mutual transfer request. M Moreover, oreover, we have held that during suspension period a transfer order was not sustainable . What happens to the mutual transfer order if one of the officials is subsequently suspended or served a charge memorandum under the RS(D&A) Rules? Railway Board guidelines issued on 31.05.1983, issued on the subject of Headquarter of suspended employees reads as under:
under:-
"12)
12) Board's letter No. E(D&A)83 RG 6-17 6 dated 31.5.1983 Sub: Headquarters of a suspended Railway Servants & Attendance of the employee under suspension :
An officer under suspension is subject to all other conditions of service applicable generally to Railway servants and cannot leave the station without prior permission. As such the headquarter of a railway servant should normally be assumed to be his last place of duty. However, where
-13- OA/050/00224/2020 an individual under suspension request for change of headquarter, there is no objection to a competent authority changing the Headquarter, if it is satisfied that such a course will not put the Railway Administration to any extra xtra expenditure like grant of T.A. etc. or other complications.
An employee under suspension is not required to attend to his work but he cannot leave his Headquarters without prior permission of the competent authority. There is, however, no question of his giving daily attendance and marking his presence."
presence.
18. It is evident from above circular that for an official under suspension, his last place of duty should normally be the Headquarter during suspension. The discretion to change the headquarter of a suspended official rests with the concerned administrative officials.
19. Railway Board also issued guidelines on 25.03.1963 that a non-
non-
gazetted staff should not normally be transferred from one Railway/Division till after finalization of the departmental proceeding. The Railway Board order reads as under:
under:-
"4) Railway Board's order No. E(D&A) 65R46-6 65R46 dated 25-03-1967.
Sub: Transfer of staff whose conduct is under investigation:
Non-gazetted gazetted staff should not normally be transferred from one Railway /Division till after the finalization of the departmental or criminal procedure, irrespective of whether the charges merit imposition of a major penalty or a minor penalty."
20. Since the applicant was suspended on 09.07.2019, and a departmental proceeding was subsequently initiated against him with charge memorandum issued on 30.07.2019 30.07.2019, he could not have been allowed to proceed on the mutual transfer. We find no legal lacuna in the order of respondent authorities in cancelling his mutual transfer order.
-14- OA/050/00224/2020
21. In the background of factual matrix and legal aspects discussed above, we are of the considered view that the applicant's transfer to Tinsukia Division vide order dated 12.07.2019 was punitive and unsustainable and against the law. However, the cancella cancellation tion of applicant's mutual transfer dated 30.05.2019 vide the same impugned order dated 12.07.2019 was in accordance with the rules/guidelines.
22. Thus, the OA succeeds partly. The applicant's transfer to Tinsukia Division (Annexure 10) vide order dated 12.07.2019 is quashed and set aside. Simultaneously, we uphold the cancellation of mutual transfer order dated 30.05.2019 vide the impugned order dated 12.07.2019.
23. OA stands disposed of with above observations.. Pending MA(s),, if any, also stand dispos disposed of.
Sd/- sd/- [ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.