Central Administrative Tribunal - Ahmedabad
M J Hirpara vs All India Radio on 31 January, 2022
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(CAT/AHMEDABAD BENCH/ OA No.308/2015)
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
OA No.308/2015
Dated this the 31st day of January, 2022.
Reserved on: 07.09.2021
Pronounced on:31.01.2022
CORAM:
Hon'ble Sh. Jayesh V. Bhairavia, Member (J)
Hon'ble Sh.Dr. A.K. Dubey, Member (A)
1. Mukeshbhai S/O Late Jivrajbhai Hirpara,
Draftsman Gr.III (Civil Construction Wing (CCW),
Division Office Rajkot,
Permanent Address:
251, Janakpuri Society, "Yash",
University Road, Sadhu Wasvani Marg,
Rajkot, Gujarat 360 005.
...Applicant
(By Advocate Mr. K.K.Shah)
Vs
1. Union of India,
Notice to be served through
The Secretary,
Ministry of Information and Broadcasting,
Shastri Bhavan,
New Delhi - 110 001.
2. The Director General,
All India Radio,
Aakashwani Bhavan,
Parliament Street, New Delhi - 110 001.
3. The Chief Executive Officer,
Prasar Bharti, 2nd Floor, PTI Building,
Parliament Street, New Delhi - 110 001.
4. Chief Engineer (C),
Civil Construction Wing (CCW), AIR,
5th Floor, Soochna Bhavan,
EGO Complex, Lodhi Road,
New Delhi 110 003.
5. Shri N.N.Talati,
Executive Engineer (C), Rajkot Stationed at Baroda,
Civil Construction Wing, AIR, Qtr. No.B3/4,
Aakashwani Colony, Makarpura Road,
Vadodara 390 009.
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6. Shri H.K. Padmakar,
Or his successor,
Superintending Engineer (Civil), CCW,
AIR PB (IPSB) Mumbai,
Having office at
1st Floor, Additional Office accommodation,
Doordarshan Kendra P.B.Marg, Worli,
Mumbai 400 030.
(Amended as per order in M.A No.204/2016 on 03.05.2016)
...Respondents
(By Advocate Mr. H.D.Shukla)
ORDER
PER: Hon'ble Dr. A. K. Dubey, Member (A)
1. Aggrieved by this transfer order dated 11.04.2013 and the subsequent order of relieving, the applicant has approached this Tribunal seeking quashment of the impugned orders dated 11.04.2013 posting him to Vadodara (Annexure-A/1), order dated 23.09.2014 intimating him that he has been relieved from Rajkot subdivision office w.e.f 15.10.2014 and that his request for retention for one year has already been accepted and that period was over and no further extension would be entertained (Annexure A/2), Memo dated 31.10.2014 intimating that the applicant had been relieved and directing him to explain his non joining of duty in Division office (Annexure/A-3), Memo dated 12.11.2014 directing him to report immediately (Annexure-A/4), Memo dated 06.02.2014 intimating that the entire period of absence would be treated as unauthorised entailing loss of pay and resulting into break in service (Annexure-A/5), letter dated 17.03.2015 (Annexure-A/6) and Memo dated 23.07.2015 directing him to report for duty within 15 days (Annexure- A/7). The applicant also seeks to declare order dated 29.7.2015 by way of reply to his first appeal under RTI Act (Annexure-A/17) and order dated 14.09.2015 on the issue of non payment of salary (Annexure-A/18) as null and void.
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2. As per the contentions of the applicant, his case is as follows:-
2.1 While he was working as Draftsman Grade-III in the Division Office of Civil Construction Wing, All India Radio, he was posted to Vadodara in the same rank vide order dated 11.04.2013 (Annexure-A/1). This transfer is to have been due to shifting of Division Office from Rajkot to Vadodara by DGCCWAIR Order No.2012 CW I 1862 dated 27/29-11-2012. The applicant contends that vide office order dated 21.09.2006 (Annexure-A/16), he was transferred to the Office of the Assistant Engineer, Civil, CCW,AIR Rajkot and it was also mentioned in that office order that his services would be taken by the drawing branch of the division office also without any extra monetary benefit. His say is that the Sub Divisional office, Rajkot is still existing there; vide order dated 12.11.2014 he has been relieved from Rajkot Sub division w.e.f. 15.10.2014 and since that office has not been shifted to Vadodara there was no reason for his transfer. He has also contended that the order issued by respondent No.6 dated 14.03.2016 transferring him to Bopal (Annexure-A/17) was without authority. Similarly, the respondent No.5 issued the relieving order dated 17.03.2016 (Annexure-A/18) which is again without authority. The applicant represented against the transfer (Annexure-A/19) but no decision was taken. The main contention of the applicant is that when the Rajkot Division office was shifted to Vadodara, the subdivision office where the applicant was employed was not shifted. He has also questioned the capacity of the 5th respondent to issue the order which he controverts on the basis of delegation of powers (Annexure-A/12).
In particular, reference has been made to para 12.4 of Chapter XII of CPWD Manual Volume -I dealing with transfer and deputation. Accordingly, when the DG was competent to transfer the applicant, his transfer by respondent No.5 was not in order, he contends. The applicant also claims that there is no 4 (CAT/AHMEDABAD BENCH/ OA No.308/2015) valid document conveying permission to shift the Division office from Rajkot to Vadodara after following due procedure of law. He contends this to suggest that the respondent No.5 has misused his position and power. This according to the applicant, is proved by the reply to this effect under RTI Act which says that a Divisional office is there at Rajkot and respondent No.5 was posted there. He further avers that the Assistant Engineer posted at Rajkot continues to work there and therefore, he too could have continued at Rajkot. The applicant has also questioned the treatment of the period when he did not report for duty as unauthorised without any disciplinary action.
3. The respondents have filed their reply denying the contentions of the applicant. They have stated that vide order No.2012-CW-I dated 27/29.11.2012 (Annexure-R1/) the Rajkot Division was renamed as Vadodara Division with Executive Engineers' Head Quarters at Vadodara. This order also makes it clear that there are four subdivisions under the Rajkot Division viz., Rajkot, Ahmedabad, Vadodara and Surat for the SVNIT deposit work. These entries are there in column 4 of this order. This order says that it issued with the approval of the Chief Engineer. On this basis the Rajkot division has been shifted to Vadodara along with the division staff. This arrangement was further clarified vide office order No.2012-CW-I dated 19.01.2013 (Annexure-R/2). Further, vide order dated 20.12.2012, it was further clarified that the Rajkot Divisional office so shifted to Vadodara was now operational from the given address and the Executive Engineer Civil, CCW had since joined and started functioning there (Annexure-R/3). In fact, the Chief Engineer inspecting the Division office on 23.12.2012 and the inspection report was issued on the same day (Annexure-A/4).
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4. The reply of the respondents encloses a Circular dated 07/12-03-2013 denoting the distribution of works among the Civil Divisions of the Office of Superintending Engineer, Civil, Mumbai showing Ahmedabad, Rajkot, Vadodara and Surat as the subdivisions of the Vadodara divisions (Annexure-R/5). They contend that shifting an office was a policy decision and was duly implemented. Annexure R/6 gives further details of delegation of work. The respondents contend that applicant's stand that he had not received the transfer order dated 11.04.2013 was not correct because after the issuance of the transfer order dated 11.04.2013, the applicant represented to the Executive Engineer vide his letter dated 06.05.2013 which itself was with reference to the order dated 11.04.2013. In this representation, the applicant had cited his family circumstances and requested to be retained at Rajkot subdivision for one more year (Annexure-R/7). In fact the department had indeed allowed him one more year as the authority passed the transfer order dated 23.09.2014 and accordingly, the applicant was relieved on 15.10.2014. The applicant went on leave from 14.10.2014 till 30.10.2014. However, he did not join his duties after the leave period. For not joining the duty he was issued a memo for explanation to which he replied intimating his medical problems and requesting for three more weeks from 26.10.2014. Then the applicant directly approached the Superintending Engineer for retention till March 2015. The Superintending Engineer Civil addressed his communication dated 20.11.2014 for sympathetic consideration. Thereafter the communication dated 24.11.2014 was sent by the Executive Engineer to the Superintending Engineer Civil (Annexure-R/9). After appreciation of all these, vide letter dated 03.02.2015 (Annexure-R/10) the Executive Engineer was permitted to initiate action as per rules in the light of his letter dated 24.11.2014. The respondents therefore contend that his transfer was a 6 (CAT/AHMEDABAD BENCH/ OA No.308/2015) normal administrative transfer consequent upon relocation of divisional office from Rajkot to Vadodara. More importantly, his request for retention of Rajkot for one year had already been allowed and the charge sheet was mainly for his failure in joining the duty after leave pursuant to such transfer.
5. The applicant has filed rejoinder contending the matter on the lines similar to OA.
6. The matter came up for final hearing today.
7. Heard the counsel for both parties. The counsel for the applicant had also given written submissions delineating the facts in chronological order as well as legal issues and points of arguments. He reiterated the grounds taken in the OA and rejoinder. The counsel averred that the order dated 11.04.2013 (Annexure-A/1) was not communicated to the applicant and without communication; it could not have been given effect to. For this he has relied on the judgment of Hon'ble Apex Court in State of Punjab vs Amar Singh Harika [(1966) LS (SC) 5 & AIR (SC) 1313]. The counsel also has stated in his written submission that the respondents have not produced the cadre position, transfer of the posts, competent authority's order of shifting and renaming Rajkot Division, communication about shifting of Rajkot Subdivision, etc. He has also contended that the entire episode was the product of malafide on part of the 5th respondent. The counsel submitted that the Central Government counsel cannot appear for the respondent No.5 who was arraigned as 5th respondent by name. For this, he has relied on the judgment in Ram Rakha vs. Union of India & Ors. [1998 (8) ATC 16] and N.K. Singh vs. Union of India [(1994) (LS) ( SC) 747 & (1994) (6) SCC 98]. He has also argued in his written submission that the respondent No.5 is facing complaints that are pending with the CVO Prasar Bharati. Besides, 7 (CAT/AHMEDABAD BENCH/ OA No.308/2015) he has placed reliance on the Hon'ble Apex Court's judgment in CGM Patna Telecom vs. Jagdish Narain Kumar [(1994) (LS) SC 1233].
8. In his submission the Standing Counsel for the respondents referred to the orders produced along with the reply filed by the respondents on behalf of respondent Nos.1 to 4. The counsel submitted that on the basis of the orders dated 27.11.2012 (Annexure-R/1), order dated 19.01.2013 (Annexure-R/2), content in para 3.5 (j) of CPWD Manual 2013 (Annexure-R/3) and about the duties of the Draftsman/Senior Draftsman at Annexure-R/4, it was amply clear that it was a purely valid administrative decision to shift the divisional office from Rajkot to Vadodara and to relocate the staff. Accordingly, he also argued that the order dated 22.09.2014 (Annexure-A/2) clearly mentioned that the applicant's request for retention for one year was already accepted and it was further stipulated that no further extension will be entertained.
9. After going through the records, we also find that the respondent No.5 and 6 who by name have been arraigned as respondents (although with their official designation) have not filed any reply.
10. We have carefully gone through the material and documents brought to our notice. We find that the relocation of the divisional office and consequent redeployment of staff was well within the administrative power of the respondents and from this point of view these orders are valid and lawful. The records clearly show that the applicant had initially requested for retention for one year which was duly accepted and then he was also granted medical leave. In fact the order dated 23.09.2014 (Annexure-A/2) mentions about the applicant's request dated 06.05.2013 and this request (annexure- R/7) refers to the transfer order date 11.04.2013. This means that while making a request for retention for one year on 06.05.2013, the applicant was 8 (CAT/AHMEDABAD BENCH/ OA No.308/2015) in know of the order dated 11.04.2013 and hence, any claim that the order dated 11.04.2013 was not communicated appears contrary to the fact; the applicant had acquiesced with this order. The records show that it is only on not joining the duty after extended medical leave, Memorandum for explanation was issued. The matter before us is concerning the transfer. We have respectfully gone through the judgments of Hon'ble Supreme Court referred to by the learned counsel for the applicant. Keeping in view the central issue as well as the circumstances of this case, the case laws referred to are of no help to the applicant. There is no cogent explanation for not joining on a position after the transfer even after a lapse of more than one year. Transfer being an exigency of service, we are not inclined to intervene into it in because, the applicant has not been able to show any infirmity or illegality in the transfer order warranting our interference. The O.A lacks merit and the same is dismissed. MA No.226/2016 and 300/2015 are also disposed of. No orders as to Cost.
(A K Dubey) (Jayesh V Bhairavia) Member(A) Member(J) SKV