Central Administrative Tribunal - Ernakulam
A.G. Krishnakumar (Under Orders Of ... vs Union Of India on 21 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/00118 of 2015
&
MA No. 143 of 2017
Tuesday this the 21st day of March, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
A.G. Krishnakumar (under orders of transfer)
aged 35 years S/o A. Gopalan Nair, Atoor House,
Potta PO, Chalakudy, Trissur District-680722
Relieved as Trackman, O/o SSE Permanent Way,
Lingampalli, Secunderabad Division
South Central Railway.
. . . Applicant
(By Advocate Mrs. Shameena Salahudheen)
Versus
1 Union of India, represented by the Secretary
to Government, Ministry of Railways,
Rail Bhavan, New Delhi.1
2 The Chairman, Railway Board,
New Delhi-110 001.
3 The General Manager, Southern Railway
Chennai.3.
4. The Chief Personnel Officer, Southern Railway
Chennai.3.
5 The Divisional Railway Manager, Southern Railway,
Trivandrum Division, Trivandrum.14.
6 The Divisional Personnel Officer, Southern Railway,
Trivandrum Division, Trivandrum.14 . . . Respondents
(By Advocate Mrs. P. K. Radhika)
This application having been finally heard on 13.03.2017, the Tribunal
on 21.03.2017 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member The applicant a Trackman working in South Central Railway in the Pay Band Rs. 5200-20200 with GP of Rs. 1800/- and one Jay Prakash Kumar another Trackman from Trivandrum Division were mutually transferred after duly processing their combined application made in 2014. The applicant was relieved from his unit as per Annexures A4 and A5. But he was not permitted to join in Trivandrum Division on the premise that the applicant who belongs to UR category and his partner who belongs to OBC category are of two different categories and so mutual transfer cannot be permitted. Annexures A1 and A2 orders were thus served on the applicant. Those two orders are challenged in this Original Application. The applicant contends that as per Annexure A6 the Railway Board has clarified that no reservation is available to OBC category and they come under the definition of General/UR. But the third and fourth respondents on a wrong interpretation on the categories came to the conclusion that Annexure A3 need not be implemented. Since the respondents refused to permit the applicant to join in Trivandrum Division he approached this Tribunal
2. An interim order was passed by this Tribunal on 11.2.2015 permitting the applicant to join at Trivandrum Division on provisional basis. The respondents 3 to 6 were directed to permit the applicant to join in that Division. Since it was submitted on behalf of the applicant that the respondents failed to obey the interim order passed by this Tribunal, an order was passed by this Tribunal directing the respondents 4 to 6 to appear in person before the Tribunal and to show cause why proceedings for contempt should not be taken against them. On 20.3.2015 an application was filed by the respondents for dispensing with the personal appearance of respondents 4 to 6. It was stated by the respondents that the applicant was permitted to join at the Trivandrum Division on 17.3.2015 on provisional basis on the basis of the interim order dated 11.2.2015. A copy of the order was made available to the Tribunal. It was so recorded.
3. The claim for mutual transfer is opposed by the respondents contending that mutual transfers are processed on the basis of expressing mutual consent of the parties. Complaints were made questioning the mutual transfers between employees not belonging to identical communities.
4. MA 143/2017 was filed by the applicant for a direction to be issued to the respondents to regularize the period from 23.1.2015 to 17.3.2015 and to disburse the salary due to the applicant. The applicant contends that he was unjustly denied permission to join the office at Southern Railway and only by the direction issued by this Tribunal he was permitted to join the office on 17.3.2015. Therefore, it is a case where the applicant is entitled to get the pay and allowances for the said period.
5. The respondents resisted the claim contending that the inter- railway mutual transfer in this case is between employees of different communities and so the applicant's mutual transfer order was kept pending. The approval from the Southern Railway for the mutual transfer was not communicated. The applicant was permitted to join at Trivandrum Division only subject to the final outcome of OA 118/2015.
6. We have today disposed of OA No. 91/2015 which dealt with an identical issue. We follow the orders passed in that OA 91/2015. Hence facts are not dealt with in detail in this case.
7. We have heard the learned counsel appearing on both sides and have also gone through the pleadings on record.
8. The points for consideration are -:
(a) Are not the respondents bound to allow the applicant to join duty pursuant to Annexures A3 and A4 orders issued by the the South Central Railway?
(b) Whether the respondents are justified in refusing the applicant to join duty? and
(c) Whether the respondents are justified in denying the pay and allowances of the applicant for the period from 27.1.2015 till 17.3.2015?
9. As stated earlier only when direction was issued to the respondents 4 to 6 to appear in person for non-compliance of the interim order passed by this Tribunal, the respondents passed the order and permitted the applicant to join at Trivandrum Division on 17.3.2015. The learned counsel for the applicant would submit that there was no justification for the respondents to deny the applicant to join at Trivandrum Division. It is vehemently argued by the learned counsel for the respondents that Annexures A3 dated 5.9.2014 and Annexure A4 dated 19.1.2015, the order by which the applicant was relieved, were passed by the South Central Railway without getting concurrence or approval of the Southern Railway. Southern Railway and South Central Railway are part of Indian Railways and though the Southern Railway and South Central Railway may be having different Headquarters they cannot pass the buck on to the other for the fault committed by one of those organs. The applicant cannot be found fault with and he cannot be denied the right to join and to get the pay and allowances for the period he had to work based on the orders of mutual transfer, Annexures A3 and A4. The excuse found out by the respondents that there was no concurrence by Southern Railway cannot be countenanced because it is not for the applicant to say whether the order passed by the South Central Railway ie., Annexures A3 and A4 were in order or whether it was done in violation of any statutory rule.
10. The learned counsel for the applicant would submit that the request for mutual transfer and the orders of mutual transfer are opposed by the respondents on the premise that the applicant belongs to UR whereas his counter part Jay Prakash Kumar belongs to OBC and so there cannot be transfers between UR and OBC. In this connection, the applicant's counsel would submit that the roster position would be affected only if the transfer request is made by one of the parties belonging to UR or OBC against SC/ST category. Since there is no reservation for promotion to persons belonging to OBC there is no legal impediment in allowing mutual transfer. Of course, the matter is now pending before the Hon'ble Supreme Court. The order of transfer would be subject to the final outcome of the SLP.
11. But so far as the claim for regularization of the period, the plea raised by the respondents cannot be accepted. The respondents should have a humane and reasonable approach. There was no fault on the part of the applicant. He appeared before the concerned officer on 27.1.2015 to join that office based on Annexure A4 order. Admittedly he was denied the right to join as can be seen from Anenxure A1 order itself. The fact that the applicant had already been relieved as can be sen from Annexure A4 proceedings dated 19.1.2015 would make it clear that the applicant cannot go back to that office (South Central Railway only because Southern Railway refused to allow the applicant to join there). The stand so taken by the respondents cannot be justified. The applicant should have been permitted to join there and then orders could have been passed re-transferring the applicant or for any other purpose if the rule permits but not otherwise. Here, the respondents have taken an adamant attitude not to allow the applicant to join in the Trivandrum Division on the premise that they were not consulted by the South Central Railway before Annexures A3 and A4 orders were issued. The applicant cannot be made a scape goat for the so called lapses on the part of the South Central Railway, if for any reason the orders were issued without consulting the Southern Railway.
12. It is also worthwhile to note that even after the interim order was passed by this Tribunal the respondents were not inclined to obey the same but only when they were asked to show cause and appear before this Tribunal as to why action under the Contempt of Courts Act should not be initiated against them, they reluctantly allowed the applicant to join the post. That also would show that the respondents were at fault in not permitting the applicant to join the Trivandrum Division on the day when he went to join pursuant to Annexures A3 and A4 orders. Considering the facts and circumstances of the case, we found it just and proper to issue direction to the respondents in this OA itself to regularize the period of service from 27.1.2015 to 17.3.2015 and to disburse the pay and allowances due to the applicant. There would be no justification for driving the applicant to file another O.A especially because this is one corollary to and flowing from what has been ordered by this Tribunal by way of an interim order.
13. In view of what is stated above, this OA is allowed. The MA No. 143/2017 is also allowed. The applicant shall be allowed to continue to work in the Station (Southern Railway) where he had joined pursuant to the direction issued by this Tribunal but it would be subject to the final decision that may be rendered by the Hon'ble Supreme Court. The respondents are further directed to regularize the period from 27.1.2015 to 17.3.2015 and to disburse the pay and allowances due to the applicant for the said period as well. It shall be done within six weeks from the date of receipt of a copy of this order. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps