Central Administrative Tribunal - Delhi
Shri Hari Lal vs Government Of India on 16 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.571/2009 MA No.1069/2009 New Delhi, this the 16th day of April, 2010 Honble Dr. Dharam Paul Sharma, Member (J) Shri Hari Lal S/o Late Shri Ganga Charan, R/o 63-C, (AD) Block, Pitampura, Delhi. Applicant. (By Advocate: Shri Y.P.Luckria) versus 1. Government of India Ministry of Railways, (Railway Board) Raisina Road, Rail Bhawan, New Delhi. Through Secretary. 2. General Manager Rail Coach Factory, Kapurthala (Punjab). 3. Chief Administrative Officer, Rail Coach Factory, (Rae Bareli Project) Northern Railway, Kishan Ganj, Delhi-110007. (By Advocate: Shri R.L.Dhawan) ORDER
The applicant is working as Senior Section Engineer in Rail Coach Factory, Kapurthala, Punjab (Respondent No.2). He was sent on deputation to RITES Ltd. Calcutta on 18.07.2005 as Assistant Inspecting Engineer. Respondent No.1 ordered setting up of another Rail Coach Factory, Rae Barelli, UP somewhere in 2007, which is Respondent No.3 herein, for which applications were invited from eligible officers on permanent absorption basis. In response thereto, the applicant applied for transfer on permanent absorption basis to Rail Coach Factory, Rae Barelli since it is nearer to his hometown enabling him to take care of his family needs. The applicant joined back Rail Coach Factory, Kapurthala on 18.07.2008 on completion of his tenure of deputation in RITES Ltd., Calcutta. In the mean time, the process of selection of candidates for appointment in Rail Coach Factory, Rae Barelli was completed and the applicants name was approved subject to submission of declaration conveying his willingness to be taken him on permanent absorption basis. The applicant submitted the requisite declaration which was duly accepted by Respondent No.3, whereupon necessary transfer order was issued on 23.07.2008, a copy of which is Annexure-I. The said order (Annexure I) reads as follows:-
The request transfer of Shri Hari Lal SSE/Paint as forwarded vide your office letter under reference, has been considered as per requirement of his present office. The competent authority has accorded approval to the transfer of Sh. Hari Lal in the present capacity and grade for posting in this project office.
The above named staff may accordingly be relieved/spared and directed to this office for further posting provided no DAR/Vig/SPE case is pending against him and he is not undergoing any punishment. The relieving letter must contain the photograph and signature of the employee duly authenticated by the controlling officer.
It may please be brought to the notice of the employee that this transfer & posting in RBL Project is on temporary basis and his lien & seniority will continue to be maintained by his present office.
This has the approval of CAO/RCF/RBL.
2. Thereupon, Rail Coach Factory, Kapurthala issued order dated 30.08.2008 (Annexure-II) which reads as follows:-
In terms of CAO/RBLs L. No.CAO/RCF/RBL/ESTT/POSTING/Group C dated 24.07.2008, Sh.Hari Lal, Emp.No.459402 presently working in this organization as Sr. Section Engineer/Paint, pay scale Rs.7450-1150 is hereby transferred to RCF/Rae bareilly on administrative ground in the same grade and capacity. His lien will be maintained in RCF/Kapurthala till he is permanently absorbed in RCF Project/RBL. Staff may be spared for reporting to CAO/RCF/RBL, Kishan Ganj, Delhi-110007. for further posting.
He is free from D&DR & Vig/SPE cases.
It may be ensured that while sparing the staff an attested recent passport-size photograph of the staff is affixed on the sparing orders.
This has the approval of the competent authority.
Note: Sh.Hari Lal has submitted declaration for taking his permanent absorption in RCF Project/RBL (Copy enclosed).
3. Accordingly, the applicant was relieved by Rail Coach Factory, Kapurthala- Respondent No.2 on 13.9.2008 and took over charge in new office of Rail Coach Factory, Rae Barelli on 15.9.2008. He continued to work as such from 15.9.2008 to 23.02.2009 when he received order from Respondent No.3 relieving him from duties and directing him to report to Respondent No.2. It transpired that in November,2008, Rail Coach Factory, Kapurthala received a confidential letter from RITES Ltd. Calcutta informing that the Chief Vigilance Officer, RITES has recommended for disciplinary proceedings for major penalty against the applicant for his lapses. Since the applicant had already been repatriated from RITES to Rail Coach Factory, Kapurthala, on completion of deputation period of three years, the papers were forwarded to Rail Coach Factory, Kapurthala to initiate disciplinary proceedings. Since in the mean time, the applicant had been transferred to Rail Coach Factory, Rae Barelli, Rail Coach Factory, Kapurthala in turn forwarded the papers in receipt from RITES Ltd. to Rail Coach Factory, Rae Barelli for further necessary action at their end. Upon receipt of the aforesaid papers, Rail Coach Factory, Rae Barelli transferred the applicant to Rail Coach Factory, Kapurthala on the ground that the disciplinary proceeding was apparently not mentioned at the time of his transfer, the legality of this has been assailed in these proceedings.
4. It has been strongly contended by the applicant in his application that after having accepted him for permanent absorption, the respondent No.3 could not have unilaterally sent the applicant back to Respondent-2. The Respondent No.2 and Respondent No.3 are the different offices having separate establishments and having no relation with each other. The applicant is not on deputation with Respondent No.3 but has been transferred on permanent absorption basis. So far no charge sheet has been issued to the applicant. The condition for appointment of the applicant was that no DAR/ vigilance case was pending against him and he was not undergoing any punishment. These requirements have been duly fulfilled and thereafter duly confirmed by Rail Coach Factory, Kapurthala. There was no stipulation that even if in future such an exigency emerges, the applicants selection would be cancelled Once the applicants transfer has been duly implemented, he could not have been sent back to Rail Coach Factory, Kapurthala. As a disciplined officer he had joined back Rail Coach Factory, Kapurthala. Nevertheless, that would not prejudice his challenge to the validity and legality to the impugned order. The ground, on which the applicant has been transferred back, did not exist at the time of selection and joining. Accordingly, it is prayed that the impugned order dated 23.2.2009 (AnnexureIV) may be declared illegal and without any authority and as such may be set aside and the appointment of applicant in the Office of Respondent-3 be declared valid and he having joined on permanent absorption basis may be allowed to continue to work in the Office of Respondent No.3.
5. The respondents have filed their reply opposing the application wherein it has been, inter alia, stated that the applicant had been transferred to Rail Coach Factory, Rae Bareilli on the condition that his lien would be maintained in Rail Coach Factory, Kapurthala till he was permanently absorbed in Rail Coach Factory Project Rai Bareilli and he would be called back at any time. It has been further stated that at the time of issue of Office Order dated 30.8.2008 (Annexure-II) regarding transfer of the applicant to CAO/RCF, Rae Bareilly, no vigilance case was pending in the office of Respondent No.3 as this position was duly mentioned in the letter dated 23.7.2008 (Annexure I). It has been further submitted that after sparing of the applicant from V to RCF Rae Bareilli, a confidential letter dated 26.11.2008 was received by Rail Coach Factory, Kapurthala that the applicant while working as Inspecting Engineer, RITES passed sub-standard material for which detailed investigation was done by Chief Vigilance Officer, RITES who recommended initiation of disciplinary proceedings for major penalty against the applicant for his lapses and for issuing major penalty charge sheet. Thus, at the time of transfer of the applicant to Rail Coach Factory, Rae Bareilli, it was not in the knowledge of Respondent No.2 that any vigilance enquiry was being conducted against the applicant in RITES. The applicant, who had the knowledge of such vigilance investigation, has suppressed the same while applying for transfer to RCF Project, Rae Bareilli. It is, therefore, submitted that the applicant has rightly been sent back to Rail Coach Factory, Kapurthala.
6. At the hearing, the learned counsel for the applicant has referred to a number of cases in support of the applicants claim. First of these cases is Radhakishan K. Vishnani Vs. Union of India & Others (1 (1987) ATLT 234) , wherein it has been held that if the transfer is not violative of policy or instructions governing the subject, it would be unjust to cancel the order which is already implemented. It has been further observed in this case that if the applicant was relieved without checking whether the conditions of the order were satisfied, it was not the fault of the applicant but of the officer relieving him or the railway authorities, and they should shoulder the blame for it.
7. Another case, referred to by the learned counsel for the applicant is Bibhadey Purkayastha (II (1987) ATLT (SN) 64), wherein it has been, inter alia, held that in case of mutual transfer, the applicant could not be transferred unilaterally without her consent.
8. Furthermore, transfer in contemplation of departmental enquiry was held to be punitive and hence was bad. In support of this reference was made to the case of Debendra Nath Bag Vs. Union of India and others ((1989) 11 Administrative Tribunals Cases 326).
9. Another case relied upon and referred to by the applicant s counsel is Coal India Ltd. and others Vs. Saroj Kumar Mishra ( (2007) 9 Supreme Court Cases 625), wherein the legal position has been reiterated that departmental proceeding is ordinarily said to be initiated when a charge sheet has been issued. It was further held that withholding of vigilance clearance in a case where neither charge sheet had been issued nor even the competent authority had formed an opinion for issue of charge was held to be invalid.
10. In Dharampal Verma Vs. Union of India & Ors. (1989 ATLT (CAT)100, transfer of applicant Sanitary Supervisor as Gramsevak was held bad as the functions, duties and responsibilities of two posts were not interchangeable.
11. In reply, the learned counsel for the respondents referred to Rule 226 of Indian Railway Establishment Code, Vol I, according to which Group C railway servant may be transferred by the competent authority from one railway establishment to another railway establishment project in the exigencies of service. It has been further submitted that the applicant did not submit any representation against the transfer and rushed to the Tribunal without exhausting the available remedy and thus, the applicant is not maintainable on this count. Further, the case of Gujarat Electricity Board Vs. Atmaram Sungomel Poshani (SLJ 1989 (3) SC 68) has been relied upon and referred to in this regard. It has further been submitted that at the time the request of the applicant for transfer to Rae Bareili Project was accepted, it was not known that the disciplinary proceedings have been proposed to be initiated against the applicant on the charges pertaining to his working in RITES Ltd. on deputation basis from 118.7.2005 to 17.7.2008. According to the Railway Boards instructions, non-gazetted railway servant against whom disciplinary proceedings were pending or about to start should not normally be transferred from one railway to another railway till finalization of such proceedings.
12. It has been strongly urged that the applicant has no prescriptive right to remain posted at Rae Bareili Project where he was transferred on temporary basis retaining his lien and seniority in Rail Coach Factory, Kapurthala. In support of this, the respondents counsel referred to State of UP Vs. Siya Ram (SLJ 2005 (1) SC 54; State of Madhya Pradesh Vs. S.S.Kourav (SLJ 1995 (2) SC 108 and UOI Vs. S.L.Abbas (SCC 1993 (4) 357).
13. In view of the aforesaid submissions, the learned counsel vehemently contended that the OA is liable to be dismissed being premature and not maintainable under Section 19 of AT Act as it is totally devoid of merits.
14. I have given my careful consideration to the respective submissions made by the learned counsel for both the parties. I have also carefully perused the records of the case.
15. Admittedly, the applicant was taken in Rail Coach Factory, Rae Bareili on permanent absorption basis and having been duly transferred upon satisfying the conditions of offer of appointment and having already joined the Office of Respondent No.3 for about 6 months, the applicant would have logically and legitimately expected to have continued to work there. The transfer order has already been implemented. Any adverse order unilaterally made, reverting back the applicant to his parent office without his consent or without offering any opportunity to show cause against the proposed action is open to serious objection. It is not a case of normal transfer as an incidence of service being made in administrative exigencies. The impugned order has been passed without issuing any show cause notice to the applicant and without offering him a reasonable opportunity of being heard. The impugned transfer is liable to be struck down on this ground alone.
16. The stand of the respondents reflects considerable arbitrariness. While conveying approval to the transfer of the applicant to Rail Coach Factory, Rae Bareili, Respondent No.3 stipulated that he be relieved/spared and directed to this office for further posting provided no DAR/Vig case was pending against him and he was not undergoing any punishment. This condition is duly satisfied when the applicant was relieved for joining Rail Coach Factory, Rae Bareili. This has been duly confirmed vide letter of Rail Coach Factory, Kapurthala, referred to above, The applicant accordingly joined Rail Coach Factory, Rae Bareili and started working there. The order has thus been implemented. That being, it would be unjust to cancel such an order. This finds support from the case of Radhakishan referred to above.
17. Besides, there was no stipulation that if any misconduct on the part of the applicant is detected in future for which departmental action could be recommended, then he would be liable to be reverted back to Rail Coach Factory, Kapurthala without any notice. In the absence of any such stipulation, it would not be within the competence of the Respondent No.3 to pass the impugned order especially when his transfer to the office of Respondent No.3 has been duly implemented and he has been working for there for more than six months.
18. It has. Inter alia, been contended by the Respondents that the applicant had been transferred to Rail Coach Factory, Rae3 Bareili and he would be called back at any time. This contention is not of much help to the respondents as Respondent No.2 has not exercised its power under this clause. Respondent No.2 has not called back the applicant on account of his temporary lien with the Respondent. As a matter of fact, the applicant has been unilaterally reverted to his parent office by Respondent No.3 on the ground which was not a condition of his appointment. It would have been a different scenario if Respondent No.3 declined to absorb the applicant on a consideration of his service records including that relating to the period he had worked for the respondent and then as result thereof, the applicant got reverted back to his parent office. It would be altogether a difference proposition to say that but for the reference recommending inquiry, the applicant would not have been selected and hence he relieved to join back his parent office. Such an action does not find support from the conditions of appointment as there has not been any such condition. Since the reference was received from RITES in November, 2008, by which time the applicant had already joined the office of Respondent No.3, this matter by its very nature could not have been mentioned by Respondent No.2 while relieving the applicant. Besides, such a reference simplicitor can be viewed as pending inquiry until the charge sheet is issued.
19. Admittedly, no charge sheet has been issued to the applicant until the time of hearing and as such no disciplinary inquiry can be said to be pending against him. A final view is yet to be taken by Respondent Nos. 2 and 3 on the reference received from RITES. If they come to the conclusion that the proposed inquiry is not warranted, then it may not be necessary for them to take any further action in the matter. However, if they decide to initiate an inquiry against the applicant, then it would be open to Respondent No.2 to call back the applicant for that purpose. It will be equally open to Respondent No.3 to do so or decline to absorb the applicant and ask Respondent No.2 to call back the applicant as a consequence thereof. All these have not been done in the case of the applicant. In any case, it would not be open to Respondent No.3 to pass the impugned order as has been done in the instant case that too for without issuing any show cause notice to him. Therefore, I hold that the respondents have acted without authority of law while passing the impugned order.
20. In the above premises, this OA is allowed and the impugned order is quashed and set aside with all consequential benefits. This will, however, not prejudice in any manner the respondents right to take such action in exercise of their legitimate powers in accordance with the law on the subject.
(Dr. Dharam Paul Sharma) Member (J) /usha/