Central Administrative Tribunal - Chandigarh
Komal Krishan S/O Late Shri Jai Bhagwan vs Union Of India Through The General ... on 27 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH O.A.No.1405-PB-2012 Pronounced on: 27.8.2013 Reserved on : 22.08.2013 CORAM: HONBLE MR. RANBIR SINGH, MEMBER (A) Komal Krishan S/o Late Shri Jai Bhagwan, age 38 years, working as Deputy Chief Inspector of Tickets as Saharanpur of DRM Office Ambala Cantt, resident of Arjan Nagar, Near Dudhadhari Gurudwara, Rajpura, District Patiala, Punjab. . Applicant Versus 1.Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2.Union of India through the General Manager (Personnel), Northern Railway Baroda House, New Delhi. 3.Senior Divisional Commercial Manager, Commercial Branch, DRM Complex, Ambala Cantt. 4.Divisional Railway Manager (P), Northern Railway, Ambala Cantt. 5.Sh. Daljit Singh Bhatia, Dy. Chief Vigilance Officer Northern Railway, Baroda House, New Delhi. 6.Sh. Gian Mehta, Divisional Personnel Officer, Northern Railway, DRM Complex, Ferozepur. Respondents Present: Mr. Rohit Seth, Counsel for the applicant. Mr. R.T.P.S. Tulsi, Counsel for the respondents. O R D E R
HONBLE RANBIR SINGH , MEMBER (A) The applicant has filed this Original Application seeking the following relief:-
(i) Quash order dated 29.11.2012 issued by the DRM (P), Northern Railway, Ambala Cantt, by which the applicant has been transferred with post from Ambala Division to Lucknow Division allegedly on administrative grounds, although the truth is that to the knowledge of applicant the respondents have already contemplated disciplinary proceedings against him, order is in violation of policy guidelines dated 25.03.1967 (Annexure A-10) which specifically provides for not transferring of an employee from one railway administration to another and the said policy has been upheld in cases of similarly placed persons by Principal Bench of Honble Tribunal in O.A.No. 546 and 547 of 2000 decided on 8.12.2000 as well as in many other cases, the order of transfer is punitive and carries stigma on applicant as it has been issued due to a vigilance raid on applicant which was manipulated and was a result of malafide of respondents no. 5 and 6 with connivance of respondent No. 3 as the applicant had made a complaint against the respondent No. 6 which pertains to bad character, the applicant had declined to oblige relative of respondents No. 5 a day before vigilance raid and the applicant had made respondent No.3 a party by name in a writ petition filed before Honble Punjab and Haryana High Court and had raised grievance of being harassed and humiliated, all these officers have served in Ambala Division, are known to each other, are annoyed with applicant, moreover the transfer has been made with post which shows there is no vacancy at Lucknow, transfer is at a time when two children of applicant are studying in end of the academic session and their education will suffer immensely.
(ii) Direct the respondents to allow the applicant to continue working at the present place of posting till the conclusion of the disciplinary case contemplated against him as his transfer is in violation of the policy, without any availability of vacancy of Lucknow, is in mid academic session, is punitive and in violation of law laid down by Honble Apex Court and Honble Tribunal and is result of malafide intentions of the respondent No., 5 and 6 in connivance of Respondent No. 3, conduct a fair and impartial enquiry into the matter to grant fair opportunity and treatment to the applicant who is being victimized by vested interest having failed to oblige officers, having raised his voice against corrupt officials and as applicant has always been fair and square while conducting his duties.
2. As per the O.A., the applicant was appointed as Ticket Collector on compassionate grounds on 15.6.1995. He was promoted as Travelling Ticket Examiner on 31.3.1999 and as Deputy Chief Inspector on 1.12.2009. Six disciplinary / criminal cases were registered against him and except one, he was acquitted in all cases. He has been put on test many times and almost every time, except once he has come out clean and he is victim of annoyance of the officials as he does not oblige them. He alongwith his wife had filed CWP No. 3276 of 2011 against respondent no. 3 and others for a direction to them not to harass and humiliate him and for payment of compensation. It was withdrawn on an assurance that his grievance would be redressed. On 1.6.2011 he had to give in writing that he does not want any information in writing.
3. The applicant was made to make an entry on 14.9.2011 in Commercial Control Diary against Sh. Gian Mehta (DPO) by Commercial Controller regarding having been caught with a girl and threat given by him. He gave a report dated 15.9.2012 (A-2). He took statement of Sh. Mohinder Prasad Yadav, Coach Attendant on 15.09.2012 regarding the incident relating to DPO, having witnessed the episode. He issued excess fare ticket No. 658130 to one passenger on 3.10.2012 who refused to sign on it with a remark that he was relative of Sh. D.S. Bhatia, earlier posted as DCM Ambala. The said passenger contacted to Sh. Bhatia on telephone and wanted the applicant to speak to him for not charging excess fare. On 3.10.2012, the applicant had given in writing about this incident with mention of the other incidents. Vide another application of even date, he informed that he could not sign on roster register before performing duty in Train No. 13151 from Saharanpur to Ludhiana as he was sent suddenly to do said duty and the Train had already started at 9.30 PM and was moving when he reached the station.
4. The applicant further states that on 4.10.2012 the Vigilance Staff came for checking in the train after Meerut in Chhattisgarh Express in which the applicant was on duty. This was the first every vigilance check conducted on the applicant. Normally a check through a decoy customer is done against officers whose work is under cloud in the light of complaints made against him unlike the case of the applicant. At the relevant time the applicant at approximately 10.30 P.M. was having verbal feud with a decoy customer who was insisting the applicant to receive Rs.200/- from him instead of the amount which was being asked for by him as per norms i.e. Rs.500/- as fine + Rs.102/- for tickets as difference of fare between general and sleeper class. Simultaneously, he was giving ticket to two persons from Meerut to Ludhiana since those travelers had told the applicant that the man (decoy customer) will keep on arguing with applicant and as such he should give them ticket in the meantime. They paid Rs.650 out of which the cost of ticket was to be deducted i.e. Rs.624/- and the balance returned. Again the decoy customer came in between and pressed the applicant to finish of his deal for Rs.200/- and at the same time the Vigilance Staff came in and took away the reservation chart, amount and excess fare ticket. The passenger insisted that since they have paid the money, their ticket should be given, but they were told that the TT will make the ticket after checking is finished and they should wait. Later, the vigilance staff got down with the applicant at Saharanpur, completed the formalities to make a class and the applicant was advised not to spoil relation with senior officers. On the same night at Jagadhari Station the two travellers who were yet to be issued tickets by applicant having paid for it made a complaint No. 28, 29 and 30 in the complaint book of same train.
5. The O.A. goes on to state that Sh. Gagan Dogra (Vigilance Inspector HQ, New Delhi) had sent a message to Commercial Control, Ambala from running train on 4.10.2012 regarding vomiting and loose motion to the applicant and for arrangement of a Doctor at Saharanpur. This message was further sent to Deputy Station Superintendent, Saharanpur, vide No. 27. At Saharanpur, the applicant was taken by Vigilance Officers to Chamber of Station Superintendent where in such worse physical condition his signatures were obtained on various papers under tremendous pressure and shocking state of mind and body coupled with extreme medical condition due to which the applicant was in a bad shape. The applicant intimated about the incident to Chairman, Railway Board, New Delhi on 9.10.2012. However, he was placed under suspension by Sr. DCM, Ambala on 23.10.2012 (A-5). He made a complaint on 5.11.2012 (A-6) to the CCM, Baroda House, New Delhi and Railway Minister against illegal suspension and for conducting enquiry. It was followed by another representation dated 17.11.2012 (A-7) to Senior DCM.
6. The respondents have issued order dated 29.11.2012 under signatures of the DRM (P) Northern Railway, Ambala vide which applicant has been transferred to Lucknow Division from Ambala Division, along with the post. To his knowledge, disciplinary proceedings have already been initiated against the applicant. Transfer of an employee during pendency of disciplinary proceedings is not sustainable in view of policy decision of Railways issued on 25.3.1967 (Annexure A-10). The transfer of applicant is punitive and carries stigma against the applicant. The same is arbitrary and is based upon malafides of respondents No. 5 and 6 who have worked in Ambala Division with the help of Senior DCM who was also a party by name in CWP No. 11034/2011 filed by applicant. His two children are in the mid-academic session. His case is squarely covered by decision of Principal Bench of C.A.T. New Delhi in O.A.No. 546 of 2000 and O.A.No. 547/2000 in which such a transfer order was quashed and set aside. The applicant is on medical leave since 26.11.2012.
7. The grounds for relief with legal provisions raised by the applicant in support of his claim are as under:-
(a)As per Railway Board Circular dated 25.3.1967 (A-10) a Railway employee cannot be transferred whose conduct is under investigation till finalization of the disciplinary proceedings.
(b)Similar cases i.e. O.A.No. 2401 of 1998 and O.A.No. 546 of 2000 were allowed on 19.1.2000 and 8.12.2002 by a coordinate Bench (C.A.T. New Delhi) of this Tribunal relying upon circular dated 25.3.1967.
(c)The transfer of the applicant has been made on the basis of conspiracy between the respondent no. 3 who was made a party by name in CWP mentioned above in which allegation of harassment and humiliation was levelled.
(d)The applicant is honest and upright person and has made a lot of complaints as he does not obliges any one due to which he has earned enmity of his seniors and others.
(e)If any disciplinary proceedings were to be initiated, he should have been given an opportunity of hearing. In the absence thereof order stands vitiated in view of law laid down in Jagdish Chander Vs. State of Haryana, 1991 (1) RSJ, 285 (P&H). The transfer order is punitive in nature.
(f)The impugned order is violative of guidelines and as such stands vitiated in view of law laid down in 1987 (2) SLR 19 (P&H) Dina Nath Arora vs. State of Punjab; 1983 (3) SLR 783 Asu Singh Vs. State of Rajasthan, 1993 (4) SC 87 Home Secretary U.T. Chandigarh Vs. Darshjot Singh Grewal and 1987 (2) SLR 19 Dina Nath Arora Vs. State of Punjab.
(g)There is no public interest in impugned order of transfer and as such it is not maintainable in view of decision in 1993 (4) SLR, 349 (SC) Ramadhar Pandey Vs. State of U.P. and 1997 (4) SLR 779 Arvind Dattatraya Dhande vs. State of Maharashtra.
(h)The action of respondents is arbitrary and cannot be sustained in view of decision in 1995 (1) SCT, 2541- Indian Airlines Technical Assistants Union Vs. The Chairman and Managing Director, Indian Airlines and 1997 (1) SCT, 768 Shri Jee Sales Corporation and Another Vs. Union of India.
(i)Mid term transfer is violative of law laid down in 1996 (1) SLR, 225 Director of School Education Vs. U. Karuppa Thevan and mid-term transfer was stayed in 1988 (5) SLR, 417 Dipal Kumar Roy Vs. UOI etc.
(j)The impugned order is illegal, arbitrary, discriminatory, malafide, punitive, against the policy, violative of Articles 14 and 16 of the Constitution of India.
8. Respondents No. 1 to 4 have filed a common reply statement. They submit that the case of the applicant is squarely covered by the policy letter dated 2.11.1998 read with Rule 226 of IREC Vol. I which reiterates the policy of internal divisional / inter-railway transfer of ticket checking staff detected to be indulging in malpractices as also the other staff in mass contact areas. There is basic commonality of facts and circumstances involved in the present case and that of the petitioner in Ganesh Din Vs. UOI. The legal validity of Circular dated 2.11.1998 was upheld by Honble Delhi High Court in CWP No. 6082 of 2005 in the case of Shri Ganesh Din Vs. Union of India & Others (Annexure R-1) in which it was held that as per policy decision / circular dated 2.11.1998, the transfer need not await the completion of departmental inquiry. The case is also covered by law laid down in 2004 (2) SLR 15 - Union of India Vs. Janardhan Debnath and by this Tribunal in O.A.No. 3190PB-2012 and O.A.No. 470-PKB-2012 which were dismissed on 2.7.2012. The allegations against respondents No. 5 and 6 are based on false statements, tempered documents and without the required proof. Malafide has to be judged from the plausibility of the allegations made by a person who has been found to have been indulging in malpractices. The allegations were made by the applicant after having been caught red handed during vigilance check involving a team of officers. The impugned order has been passed after case file passed through various hierarchical superior of respondents No. 5 and 6. A roving inquiry cannot be made by a court of law. The applicant has been issued charge sheet dated 29.11.2012 (R-2) and he can defend himself in disciplinary proceedings. The applicant has tried to fabricate evidence and temper with the record after having been found indulging in malpractices and bringing discredit to the railway service. He is a habitual offender and compulsive litigant. He had made an application on 22.1.2007 admitting his guilt and seeking mercy (Annexure R-5). On 2.2.2007 he was awarded penalty of withholding of increment permanently, which was revoked by the competent authority. The applicant had himself withdrawn the CWP No.3276 of 2011 by filing a C.M. 11034/2011. It is apparent from Annexure R-3, EFT No. 658130 that applicant made remarks to save himself and implicate his superiors. He is guilty of tempering. He is guilty of making a false statement. Decoy check was based on source information that TTEs manning Chhattisgarh Express were indulging in carrying ticketless/irregular passengers and as such a decoy check was conducted which is a matter of disciplinary proceedings. The transfer is as per rules and law.
9. I have heard learned counsel for the parties and perused the material on the file.
10. The learned counsel for the applicant has placed reliance on 2005 (4) SCT 726 Dr. Dev Parkash Chugh Vs. State of Punjab etc. in support of the proposition of law that once the Government frames a policy it cannot plead that the same is not mandatory and is bound to follow the same and it cannot deviate from the same unless there are sufficient reasons recorded in writing or in public interest and if is not so, the transfer order cannot be sustained. He has placed reliance on SCA No. 9154 No. 9154 of 1993 - B.N. Lauva Vs. State of Gujarat & Another decided on 24.12.1993 in which Gujarat High Court has held that if a transfer is made with some ulterior motive or with malafide intentions, the Court can look into such order in exercise of powers under Article 226 of the Constitution and the authority is bound to explain the compelling reasons and circumstances for not following the guidelines. Reliance was placed in 1988 (2) SLR 545 S.V. Singh Vs. UOI etc. to state that transfer of an officer when he is quarreling with another would not be a solution or a fair action of Government. There must be cogent administrative reasons for an order of transfer. It must be fair and for administrative reasons and cannot be used as an alternative to disciplinary proceedings or an order of suspension. If order of transfer is punitive, court can interfere. Reliance is placed on Rajasthan High Court decision in 1983(3) SLR, P-783 Asu Singh Vs. State of Rajasthan in which it was held that Govt. is bound to follow guidelines and if transfer is made with malafide intentions it cannot be sustained in the eyes of law. Reliance is placed on Apex Court decision in 1993 (2) SCT 65 Rajendra Roy Vs. Union of India wherein it was held that in appropriate cases it is possible to draw reasonable inference of malafide action from the pleadings and antecedents facts and circumstances. Placing reliance on 1993 (4) SCT 415- Home Secretary, U.T. v. Darshjit Singh Grewal (SC), it is argued that respondents are liable to follow their own guidelines. Reliance is also placed on 1973 (1) SLR 910 Union of India vs. K.P. Joseph & Others, in which it was held that administrative order can confer rights and impose duties and court will enforce that right. To say that an administrative right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because administrative orders can abridge or take away rights that court imported the principle of natural justice of audi alteram partem into this area.
11. Per contra, the learned counsel for the respondents placed reliance on 2004 (2) SLR Page 15 Union of India & Others Vs. Sri Janardhan Debanath & Another to argue that a transfer made on account of misbehaviour is also sustainable as it can be made to enforce discipline. It was held that allegations against the employee were serious in nature and as such there was no need to hold any enquiry to find out as to whether there was misbehaviour or not. It was held that transfer of respondents in public interest could not have been interferred with by the High Court. He has placed further reliance on 1974 (1) SLR, Page 497 to argue that Government has power to transfer an officer from one place to another which may not giver him same amplitude of powers. It does not make the transfer arbitrary and open to attack under Articles 14 and 16 of the Constitution. Burden of establishing malafide lies heavily on the person who alleges it. Court would be slow to draw dubious inferences from incomplete facts particularly when imputations are grave and are made against a person having high responsibility. Copies of decisions in O.A.No. 546/2000 and 547/2000 titled Sarvjeet Singh Walia Vs. The Secretary, Ministry of Railways etc. decided on 8.12.2000 by Coordinate Bench of this Tribunal at New Delhi were pressed into service. In that case the employee was transferred in pursuance of Rule 226 of IREC in pursuance of a Vigilance Check conducted earlier. His transfer was upheld by observing that the respondents were free to initiate disciplinary proceedings and were free to transfer him in public interest. Similar view has been taken by this very Tribunal in O.A.No. 725-PB-2007 titled Iqbal Singh Sidhu Vs. UOI etc. decided on 30.1.2008 in which it was held that if a railway employee is inefficient, is facing some vigilance case, or is involved in mass malpractices, then he can be transferred to another division. On his request also, he can be transferred inter-division wise. I have considered the submissions made on behalf of both the sides.
12. In E.P. Royappa v. State of Tamil Nadu and Ors., AIR, 1974 S.C. 555, transfer has been described as a condition of service, but in B. Vardharajan v. State of Karnataka, AIR 1986 S.C. 1955 and in a number of other cases, transfer has been described as an incidence of service. Every employer is possessed with the power to transfer his employees and the exercise of this power is ordinarily not interfered by the Courts. The employer's prerogative to transfer an employee from one place to another place and even from one post to another post is well recognized. Employer in general and the public employer in particular (Government and its instrumentality) has a right to determine the suitability of every employee for a particular job and choose the place of his/her posting. It is primarily for the employer to decide as to where it can make the best use of the services of a particular employee. In our constitutional set up, representatives of the people have also a say in the matter of posting/placement of the employees/officers. The Government is also possessed with the power to affect transfer of an employee/officer from one place to another if it finds that the services of the employee/officer can be better utilized at another place. Interference by the Courts in such like matters can be made on limited grounds of patent violation of the provisions of law or mala fides. Of course, it will depend on the facts of each case whether the plea of mala fides raised by the employee for challenging his transfer has been substantiated or not. The primary burden to prove the charge of mala fides is always on the person who alleges the same and the graver are the allegations of mala fide the heavier is the burden of proof on the petitioner. In regard to violation of policy guidelines, it has been held that a simple violation of the transfer policy or the administered instruction cannot ipso facto result in the invalidation of the order of transfer. This principle is clearly borne out from the decision of the Supreme Court in Shilpi Bose v. State of Bihar, A.I.R. 1991 S.C. 532. However, in a case of patent violation of transfer policy coupled with substantial allegations of mala fides or colourable exercise of power the Court may call upon the government to explain the rationale of transfer and in such a case a bald plea that the transfer has been affected in public interest or on administrative ground will not be a sufficient answer. The respondents will have to show some cogent ground for deviating from the transfer policy to meet out the charge of arbitrariness.
13. In CWP No.14638 of 2012 Vijay Kumar & Another Vs. UoI etc. decided on August 02, 2012 by the Honble High Court of Punjab and Haryana, the challenge was to the order passed by this Tribunal upholding the inter-divisional transfer during disciplinary proceedings. While clinching the issue, the Honble High Court had observed as under : -
The sole contention of the learned counsel for the petitioners is that in view of the letter dated 25.3.1967 (Annexure A-5) issued by the Railway Board, an employee facing disciplinary proceedings should not normally be transferred from one Railway Division to another Railway Division till the finalization of the departmental proceedings. On the other hand, the case of the respondents is that in view of the Circular dated 2.11.1998 (Annexure P-6) issued by the respondent- Board, which revised the earlier transfer policy, which permits that even during the disciplinary proceedings there is no bar for inter-divisional transfers. It was also alleged that the validity of the Circular/Instructions dated 2.11.1998 was upheld by the Delhi High Court in CWP No.6082 of 2005 titled Shri Ganesh Din Versus Union of India and others, decided on 15.09.2006. The learned Tribunal, after considering the aforesaid issue raised by the learned counsel for the parties, dismissed the Original Applications while coming to the conclusion that there is no such bar that inter-divisional transfer is not permissible even if an incumbent is facing departmental proceedings. In our view, the reasoning given by the learned Tribunal while relying upon the aforesaid decision of the Delhi High Court is perfectly valid and does not require any interference in this writ petition. Even otherwise, we are of the opinion that there is no bar for inter- divisional transfers if the transfer of an delinquent employee is necessary in public interest. Such employees can be transferred from one division to another, if the competent authority comes to the conclusion that their transfer is necessary in public interest. Such transfer should not be interfered by the Courts. In this case transfer of both the petitioners was made in public interest in order to provide clean administration in mass contact areas and was in the exigency of service. Thus, we do not find any ground to interfere in the order of the Tribunal.
14. The factual foundation for the allegation of malafide against Respondents No. 5 and 6 has not been established. In any case, the impugned order of transfer was issued by Respondent No. 4 with the approval of the Chief Commercial Manager, on the advice of General Manager, against whom no allegation of malafide has been made. There is no violation of statutory provisions. The order of transfer is not in lieu of punishment. No grounds have been established justifying judicial interference in this matter, which is within the domain of the executive.
15. Accordingly finding no merit, this O.A. is dismissed. No costs.
(RANBIR SINGH) MEMBER(A) Place: Chandigarh Dated:17.8.2013 HC*