Central Administrative Tribunal - Delhi
650 Ducruz Compound vs Union Of India on 12 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. NO. 2530/2008 New Delhi, this the 12th day of February, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Ramakant Sharma S/o Shri S.P. Sharma Sorting Assistant O/o HRO RMS X Division, Jhansi (UP). Residential address 650 Ducruz Compound, Masihaganj-Sipri Bazar, Jhansi. ..Applicant By Advocate: Shri D.P. Sharma. Versus 1. Union of India through Secretary, Ministry of Communication and I.T., Department of Posts, Dak Bhawan Sansad Marg, New Delhi. 2. The Chief Postmaster General, U.P. Circle, Lucknow. 3. Shri Umesh Verma Director Postal Services, O/o the Postmaster General, Agra Region, Agra. 4. The Superintendent of RMS, X Division, Jhansi. Respondents By Advocate: Shri S.M. Arif. ORDER
Applicant has challenged order dated 22.8.2008 (page 4) whereby he while working as Sorting Assistant in the office of Railway Mail Service (hereinafter referred to as RMS) X Dn. Jhansi has been transferred to Bulandshahar Postal Dn. as Postal Assistant under Rule 37 of Postal Manual Volume IV on administrative grounds.
2. It is strenuously argued by the counsel for the applicant that he could not have been transferred from RMS to Post Office as nature of duties is absolutely different. Even otherwise, the order is mala fide as it is based on the complaint given by a person, who was himself unauthorized person because he could not have travelled in the mail van. Since transfer is ordered on account of misconduct, it is punitive in nature as such it could not have ordered without verifying the facts. In any case, the complaint itself is lodged after a delay of one year, therefore, it could not have been acted upon. The order is without jurisdiction because it could not have been issued without taking prior approval from the Chief Post Master General (hereinafter referred to as CPMG). Learned counsel for the applicant invited my attention to the complaint dated 26.5.2008 (page 16) to show that the incident was of 1.6.2007 whereas complaint was made almost after one year which shows things have been manipulated. He placed reliance on the judgment of Rajendra Chaubey Vs. U.O.I. & Another reported in 493 Swamys CL Digest 1995/1, Bhagwan Bux Singh Vs. U.O.I. & Others reported in 402 Swamys CL Digest 1996/2 and Labh Singh Vs. U.O.I. & Others reported in 446 Swamys CL Digest 1996/1.
3. Respondents have opposed this O.A. They have submitted a complaint dated 26.5.2008 from Shri A.K. Yadav, (Senior Superintendent of Post Offices hereinafter referred to as SSPOs), Hoshangabad, M.P. was received regarding misbehaviour by the applicant with him on 1.6.2007. The complaint was got inquired through the ASRM X Ist Sub Division, Jhansi. The charges of misbehaviour and allowing the unauthorized passengers to travel in the section were found proved as per inquiry reports dated 23.6.2008, 6.8.2008 and 5.9.2008, therefore, a charge sheet was issued under Rule 16 of the CCS (CCA) Rules, 1965 to the applicant on 6.8.2008.
4. Apart from it, there are number of other instances to show the rowdiness of applicant in RMS e.g. the inspecting officers of RMS X Div. raided X-29 IN and X-27 IN Sections on 31.7.2008 and unauthorised commercial goods were captured from the abovenoted RMS Sections. The RMS officers after depositing these goods in Mail Agency, Jhansi in the morning of 1.8.2008 approached the inspection room for performing daily routine. In the meantime, some persons approached to Shri D.S. Pandey, IRM X-II Sub Division and Shri V.K. Mishra, ASRM in IQ at about 7 hours in the morning. One of the persons asked Shri Pandey to give his goods. On this Shri Pandey, asked his name, which was told as Jeevan. However, Shri Pandey refused to return the goods, therefore, he talked to the Superintendent X Div. RMS, who is respondent No.4 herein. The respondent No.4 herein informed Shri Jeevan that no goods can be returned to him, which are captured in raid. Applicant was found to be involved in enforceably snatching the confiscated goods.
5. In another case the applicant had submitted the work papers including daily report of X-27 dated 27/28.2.2008, very late which were received in the office of HRO Jhansi on 18.8.2008. They have submitted that these work papers were kept with him from 28.2.2008 to 17.8.2008. They have explained that the work papers so referred were received by the applicant and could not be transferred/dispatched to the office of HRO as they were retained in his personal custody which is a serious offence in the working of RMS. The matter was got inquired and the applicant herein was found responsible for it as per the inquiry report letter No.INV/MISC/08-09 dated 10.9.2008. In yet another matter, the applicant herein worked as MA/3-A, Jhansi RMS dated 30.6.2008 and one Mail Bag containing Post Office Account Bag from Jhansi Head Office to Ranipur S.O. was dispatched without entry in the Mail List, which was received by Ranipur SO, after seven days on 8.7.2008. The applicant herein is solely responsible for the said lapse also.
6. Similarly in another case, the applicant herein worked as Mail Agent/3A, Jhansi RMS dated 4.7.2008 and received 3 speed post cartoons from ICBPO to APO Jhansi entered in the mail list of MP-32 IN/5 dated 4.7.2008 but the said speed post cartoons were received in torn condition to MA/I Jhansi RMS dated 5.7.2008 through MA/3A, Jhansi RMS dated 4.7.2008. It is relevant to note that the applicant herein had received the speed post cartoon in good condition but when the same were transferred to MA/1, they were in torn condition, for that also the applicant herein is responsible. In a similar type of instance, as submitted hereinabove, the applicant herein snatched away the commercial articles from one of the RMS Inspector, which was seized during the raid in the section of the applicant herein. The said matter has been disclosed in the report of the squad dated 2.9.2008.
7. Similarly the checking squad consisting of Shri Sudhakar Mishra, then ASRM X Div. Jhansi, Shri R.S. Pandey, then ASRM Agra Fort RMS and Shri Lalji Ram, then IRM, Agra Fort had also captured on surprise checking of Mail Van X-29 OUT/3 dated 16.9.1997, when the applicant was incharge of the said Section at Mathura Junction Railway Station with 6 outsiders, those were found sleeping in the RMS Mail Van/Compartment. The applicant was charge-sheeted for the said lapses and awarded the punishment of stopping one next increment of pay for three months without future effect vide Memo No.K1-4/Vig./RKS/97 dated 30.9.1998. For these lapses, adverse entry was also communicated to the applicant vide SRM letter dated 1.6.2008. The applicant was also charge-sheeted vide Memo No.D2-16/51/RKSharma/08 dated 14.8.2008 for not performing his duties properly.
8. By quoting above instances respondents have stated that it is clear that the applicant was not performing his duties properly and sincerely in the RMS at Jhansi and further misbehaving with his superiors, therefore, his transfer outside the RMS was very much essential and as such he was transferred to Buland Shahar on 22.8.2008 in public interest under Rule 37 of Postal Manual Volume-IV.
9. They have also stated that the applicant was delivered sealed envelope containing order dated 22.8.2008 on 25.8.2008 which is evident from the letter of HRO Jhansi. However, applicant refused to sign the charge report and order book, therefore, he was treated as relieved from the establishment of X-Dn and his last pay certificate along with service book has been sent to Buland Shahar. They have thus submitted that applicant has been transferred on administrative grounds under Rule 37 of the Manual, therefore, it calls for no interference.
10. Replying to the averments of applicant, respondents have stated that since misbehaviour of applicant with SSPOs, Hoshangabad, M.P. was proved in an inhouse enquiry, they have rightly transferred him in order to maintain discipline. Reliance is placed on the judgment of Honble Supreme Court in the case of Union of India and Others Vs. Shri Janardhan Debanath and Another reported in 2004 (4) SCC 245.
11. They have further stated that under Rule 37, there is no need of any approval. In any case power has already been delegated to the Post Master General (PMG) for inter regional transfers by the CPMG as back as in 1997 itself.
12. As far as training for Postal Assistant is concerned, respondents have stated that though there is difference in the working of Postal Assistant and Sorting Assistant but in the case of mail, dispatch, sorting and booking of RL, speed post and other articles duties are similar as in the RMS. They have submitted that the applicant would be imparted training of Postal Assistant as and when required or needed by the Divisional Superintendent. They have thus prayed that OA may be dismissed.
13. I have heard both the counsel and perused the pleadings.
14. Counsel for the applicant strenuously argued that applicant could not have been transferred from RMS to Post Office. However Rule 37 of Postal Manual Volume-IV specifically states that all officials of the department are liable to be transferred to any part of India unless it is expressly ordered otherwise for any particular class or classes of officials. Of course such transfers must be in public interest. Moreover, applicant has himself annexed page-31, which shows that a person can also seek transfer from one arm of service to another within or outside the circle with the personal approval of the Head of the Circle meaning thereby that transfer from one arm to the other arm is permissible.
15. It goes without saying that if a person can seek transfer from one arm to the other, definitely department can also order the transfer of employee from one arm to the other in public interest, therefore, the basic argument of applicant that he could not have been transferred from one arm to the other is falsified by his own annexures. Counsel for the applicant could not show any rule, which bars such a transfer, therefore, this contention is rejected.
16. The next question is whether transfer can be quashed on the ground of being punitive or deserves to be sustained on the ground that it is issued in public interest. Respondents have already quoted number of instances to show that applicants performance in RMS was far from being satisfactory. On top of it, he had misbehaved with a senior officer of the post offices, which fact was proved in the enquiry as is evident from page-68.
17. Though this definite finding came subsequently on 05.9.2008 but prima facie respondents were satisfied after inhouse enquiry that applicant had misbehaved with a senior officer, therefore, in these circumstances if applicant was transferred it cannot be quashed on the ground that it is punitive.
18. Complaint of Senior Superintend of Post Offices dated 26.5.2008 reads as under:-
From A.K. Yadav Sr. Superintendent Postoffices Hoshangabad Division Hoshangabad-461001 To, Shri Umesh Verma Director Postal Services U.P. Circle, Agra-282001 Sub.: Complaint of misbehaviour of Shri R.K. Sharma Set X Dn. In G.T. Express on 01-06-2007 Respected Sir, I joined Hoshangabad, on promotion from Morena in February 2007. I left my wife in the rented house Darpan Colony Gwalior, to shift her with luggage on 31-03-2008.
My neighbour Shri Srivastava SE informed on phone on 01.06.2007 that my wife is serious. I got my leave sanctioned from the CPMG and on account of not getting the reservation, I purchased the ordinary ticket, and the staff of Hoshangabad requested to Shri Chhotey I/C M.P. Division Set (RMS). He allowed me to sit in Section. The G.T. Express started at 18 Hrs. on 01.06.2007 and reached to Jhansi at 12.10 hrs. in night. Shri Chhotey MP Division transferred the charge to Shri R.K. Sharma X Division. As soon as the train reached to Jhansi, Shri R.K. Sharma came to the compartment, with one lady and 2 gents. I was sleeping on the seat, he told me to go out, and started to make arrangement of sleeping on the seats of the lady and the gents. I showed my I.C. to him. He told me to go out. I told him, I will drop at Gwalior and will remain sitting on the seat. Shri Chhotey M.G. MP Division requested to Shri Sharma with folded hands that he is our SSP, Shri Sharma told not even a dog of MP Division will travel and he disgracefully turned me out. Because my wife was ill, therefore, I was in trouble, and there was the time of 12 Hrs. of night and I was required to attend my wife. Therefore I was sitting in RMS.
I am feeling greatly insulted from the above happening. Due to this happening I remained at Gwalior upto 30.6.2007.
Sir, it is requested to kindly get the matter enquired into.
With regards, Yours, Dated: 25-05-2008 (A.K. Yadav) Sr. Supdt. of POs Hoshangabad Dn.
Hoshangabad 461001
19. It goes without saying that if misbehaviour is not checked in time, it can spread like a cancer which would vitiate the working atmosphere, therefore, it needs to be arrested immediately by taking such steps that others also get a lesson not to misbehave.
20. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in the case of Union of India & Ors. vs. Sh. Janardan Debnath & Anr., reported in 2004 (4) SCC 245. In the said case also respondents were transferred under Rule 37 of Postal Manual Volume-IV as they had misbehaved with the senior officer. Tribunal dismissed the OA but Honble High Court allowed the Writ Petition. When matter was carried to Honble Supreme Court by the Department, it was held as follows by their Lordships The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether the use of word undesirable casts a stigma or constitutes one by way of punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially - and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. On the question whether enquiry was necessary before ordering transfer it was held the allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any mis-behaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was mis-behaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. Honble Supreme Court further observed as follows:-
The High Court while exercising jurisdiction under Articles 226 and 227 of the Constitution of India had gone into the question as to whether the transfer was in the interest or public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. 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 another 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 mala fide exercise or stated to be in violation of statutory provisions prohibiting 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, as against such orders passed in the interest of administrative exigencies of the service concerned.
21. The judgment of Honble High Court was finally set aside by the Honble Supreme Court.
22. It is thus already held by Honble Supreme Court that on the ground of misbehaviour with senior officers, an employee can always be transferred under Rule 37 of Postal Manual and it is not necessary to hold an enquiry otherwise the purpose would be defeated.
23. In view of the settled position by the Honble Supreme Court the judgments given by the Tribunal and relied upon by the counsel for applicant are not relevant.
24. As far as public interest is concerned, it has again been held by Honble Supreme Court in the case of State of U.P. Vs. Siya Ram reported in AIR 2004 SC 4121 the contention was that respondent could not have been transferred without completing the enquiry, it was thus mala fide and punitive. It was held by Honble Supreme Court that the question whether transfer was in public interest could not have been looked into by the High Court as that would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. 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.
25. Honble Supreme Court has repeatedly held that transfer is an incidence of service. Who is to be posted where are the matters to be decided by the Administration. Courts should not interfere in day to day functioning of the executive unless order is shown to be contrary to any statutory rules or is mala fide.
26. In State of M.P. Vs. Sri. S.S. Kaurav and Others reported in 1995 (3) SCC 270 it was held as under:-
The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation.
27. In above backdrop, if the facts of present case are tested, we find respondents have given sufficient instances to show that applicant was not working satisfactorily in RMS Wing and he had indulged in misbehaviour also, therefore, it is definitely a case of transfer in public interest. Applicant has not been able to show any violation of rules. As far as mala fides are concerned, though it has been alleged but except making bald statement, no material is placed on record to show why respondent No.3 would be biased against the applicant. Law on the point of mala fides is well settled. At this juncture it would be relevant to refer to the judgment of Honble Supreme Court in the case of E.P. Royappa vs. State of Tamil Nadu reported in AIR 1974 SC 555, wherein it was held as under:-
The burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility.
28. Similarly in State of Maharashtra Vs. Dr. Budhikota Subbarao rerported in 1993 (3) SCC 71 it was held that mala fides have to be not only stated but proved also by the person, who comes to the Court and alleges mala fides.
29. In State of U.P.& Ors. vs. Gobardhan Lal, 2004 (2) SC SLJ 42,it was held that: Even challenge to transfer on account of malafide must be such as to inspire confidence in the court or based on concrete materials. Mere allegations of malafide or on consideration borne out of conjecture or surmises without any strong and convincing reasons cannot be a ground to interfere with the order of transfer.
30. In the instant case neither any foundation has been laid down nor any instances have been quoted to show how respondent No.3 was biased against the applicant, therefore, this contention is rejected.
31. Respondents have also shown us that the powers were delegated to the PMG as back as in 1997 to carry out inter regional transfers. They have also produced the records to show that approval was indeed taken in this case from the PMG before issuing the transfer of applicant, therefore, it cannot be stated that the order of transfer is issued without jurisdiction, therefore, this contention is also rejected being without any merit.
32. In the last but not the least, we must record that respondents have admitted that there is some difference in the working of Postal Assistant and Sorting Assistant but have explained that as far as mail, dispatch, sorting and booking of RL, Speed Post is concerned, they are same as in RMS and if need be, applicant would be imparted training. I am sure, respondent would impart the required training to the applicant so that he is not put to any disadvantage. It was also sated by the counsel for respondents that his seniority would also not be affected, therefore, this transfer would not cause any prejudice to the applicant.
33. In view of above discussion, it is now settled law that scope of interference in transfer matters is very limited. Since this case does not fall in any of the exceptions, as carved out by the Honble Supreme Court, it calls for no interference. The OA is accordingly dismissed. No costs (MRS. MEERA CHHIBBER) MEMBER (J) Rakesh