Central Administrative Tribunal - Bangalore
G Bibekananda vs South Western Railway on 1 July, 2024
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OA.No.170/00273/2023/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00273/2023
ORDER RESERVED ON: 24.06.2024
ORDER PRONOUNCED ON: 01.07.2024
CORAM:
HON'BLE MR. JUSTICE B.K. SHRIVASTAVA, MEMBER(J)
G. Bibekananda
S/o Late Baidyanath Nayak
Aged about 43 years
Senior Ticket Examiner
South Western Railway,
Bengaluru - 560 023 ... Applicant
(By Advocate Shri K. Shivakumar)
Vs.
1. Union of India Rep. by
General Manager,
South Western Railway,
Rail Soudha,
Gadag Road, Hubballi - 580 020
2. Senior Divisional Commercial Manager
South Western Railway,
Divisional Office,
Bengaluru - 560 023
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OA.No.170/00273/2023/CAT/BANGALORE
3. Senior Divisional Personnel Officer
South Western Railway,
Divisional Office,
Bengaluru - 560 023. ...Respondents
(By Shri K. Gajendra Vasu, Sr. Panel Counsel)
ORDER
PER: JUSTICE B.K. SHRIVASTAVA, MEMBER (J)
This OA has been filed on 20.06.2023 under Section 19 of the Administrative Tribunals Act, 1985 against the order dated 25.05.2023 (Annexure - A3) passed by the respondents by which the matter of transfer of the applicant was again considered in compliance with the order dated 23.01.2023 passed by this Tribunal in OA No. 394/2021. By the impugned order the respondents did not find any reason to review the aforesaid order.
2. It is not in dispute that the applicant was working as "Senior Ticket Examiner" in South Western Railway at Yeshwanthpur Railway Station. The applicant was involved in a vigilance case on 10.04.2019. Therefore, he was suspended from 29.05.2019 to 02.06.2019. Thereafter, he was transferred to Sleeper Depot, Bengaluru city on 02.08.2019. A Major Penalty Charge Sheet was 3 OA.No.170/00273/2023/CAT/BANGALORE issued on 28.11.2019 and the regular enquiry was conducted. On 05.08.2021, the respondents issued the transfer order (Annexure - A1) by which the applicant was transferred from Bengaluru Division to Hubballi Division. The applicant filed OA No. 394/2021 before this Tribunal and the Division Bench of this Tribunal decided the aforesaid OA on 23.01.2023. The direction was given to the Respondent No.1 to review the case of the transfer order of the applicant on the basis of RBE No. 102/89 dated 13.04.1989. In compliance of the aforesaid order the respondents considered the case of applicant and passed the impugned order (Annexure - A3) dated 25.05.2023.
3. As per applicant's case, the respondents did not consider the prayer of the applicant in the impugned order dated 25.05.2023. The incident took place on 10.04.2019 and after 4months the applicant was transferred to Bangalore city from Yeshwanthpur. The charge sheet was issued on 28.11.2019. After about 28 months without any valid reason the transfer order has been issued. The applicant has been transferred by Annexure - A1 in which it is stated that "He is transferred on administrative ground on vigilance case to Hubballi Division." According to the applicant, the vigilance case ended with the issue of charge sheet and conducting 4 OA.No.170/00273/2023/CAT/BANGALORE of departmental enquiry. In the enquiry, the charges on the question of integrity of applicant were not proved. Therefore, the transfer order could not be passed on the vigilance angle.
4. The respondents opposed the prayer of the applicant and submitted the reply statement on 19.01.2024. It is submitted that Major Penalty Charge Sheet was issued and the applicant was punished. The matter has been considered by the competent authority in the light of the circular stated in the CAT order. The respondents did not commit any mistake by passing the impugned order (Annexure - A3) dated 25.05.2023. Therefore, this OA is liable to be dismissed.
5. The other details and facts are already mentioned in the previous order dated 23.01.2023 passed in OA No. 394/2021. The counsel draws attention towards the observation made by the Division Bench of this Tribunal in the previous order. It will be proper to mention paras 7 to 12 of the aforesaid order which are as under:-
"7. In the present case, the applicant has not been completely exonerated. He has been awarded a minor penalty. However, a perusal of the penalty order passed by the Disciplinary Authority (DCM/SBC) has revealed that the 5 OA.No.170/00273/2023/CAT/BANGALORE Enquiry Officer had arrived at a finding that 'demand' of bribe by the CE is held as "Not Proved", and thereby the violation of integrity is disproved by the IA (Enquiry Officer).
8. The DA, while accepting the findings of the Enquiry Officer and the reasoning for holding integrity and unbecoming as "Not Proved", has held the CE to "have violated devotion to duty to a partial extent that too without establishing any malafides" on the part of the CE. He has, after coming to this conclusion, imposed a Penalty of reduction to a lower stage by two stages in the time scale of pay for a period of 3 (three) months with cumulative effect.
9. It is also noticed that inter-divisional transfer of the applicant was done on 5.08.2021, after a period of more than 2 years from the date on which the 7 OA.No.170/394/2021/CAT/Bangalore Bench incident had taken place on 10.4.2019. The reasons cited for the delay in issuing the transfer orders, as given by the respondents, are not convincing at all, and cannot be accepted.
10. It would therefore be appropriate that keeping the above points in view, the General Manager (Respondent No.1), is directed to review the case of the transfer order of the applicant issued on the basis of the vigilance case as per RBE 102/89 Board's letter No. E(NG)I/80/TR/28 dated 13.04.1989.
11. Respondent No.1 shall provide an opportunity of hearing to the applicant and shall take an appropriate decision in the matter in an expedite manner.
12. The OA stands disposed of in terms of above. However, there shall be no orders so as to costs."6
OA.No.170/00273/2023/CAT/BANGALORE
6. It appears from para 10 of the aforesaid order that the direction was given to consider the case in the light of RBE No. 102/89 Board letter No. E (NG) I/80/TR/28 dated 13.04.1989. During arguments, the applicant submitted the copy of the aforesaid circular. In the aforesaid RBE No. 102/89 the following instructions have been given:-
" As the Railways are aware, in terms of the existing orders, ticket checking staff detected to be indulging in mal- practices are required to be sent on inter-divisional transfer as a matter of policy. It was also clarified under Board's letter of even number dated 19/2/1986 that the ticket checking staff who were transferred out of the division on complaints of corruption and were later exonerated or awarded a penalty of censure, may not be brought back to the parent division, even if they so desire.
2. This issue came up for discussion in the Departmental Council under JCM on 30/31-12-1986 when it was agreed that particulars of special cases of hardship will be furnished by the Staff Side which cases would be examined on merits.
3. The matter has since been reviewed by the Board and it has been decided that General Managers may review the cases of inter-divisional transfers of staff ordered by them on suspicion of mal-practices, if after proper enquiry, such staff are fully exonerated. A reference to the Railway Board will be necessary only in cases where the transfer has been ordered at 7 OA.No.170/00273/2023/CAT/BANGALORE the instance of the Board. The review will be done by the General Manager personally and these powers will not be delegated further."
7. As per respondents, the matter has been examined in the light of the aforesaid circular and the facts of the case. In the penalty order 28.11.2022 the concerned authority passed the punishment order by which the pay of the applicant was reduced by two stages from Rs. 32,900/- to Rs. 31,000/- for a period of 3 months in Level- 05 with cumulative effect from the date of issue of the penalty advice. It is also an admitted fact that the applicant did not challenge the aforesaid order by filing the appeal before Senior DCM / SBC, hence, the aforesaid order attended finality. It appears from the aforesaid order that the authority came to the conclusion that the acceptance of Rs. 200/- was found to be true while the demand was not proved. The aforesaid facts have been considered in the impugned order dated 25.05.2023 (Annexure - A3). In paras 4 to 11 of the aforesaid order it is stated:-
"4. I have gone the records placed on the relevant file. From the records, it is apparent that the applicant Shri Bibekananda Grahacharya, Senior Ticket Examiner/YPR, while working as a Senior Ticket Examiner at Yesvantpur Railway Station was subjected to the decoy check on 10.04.2019 by the Vigilance 8 OA.No.170/00273/2023/CAT/BANGALORE team. He was caught red-handed while accepting ₹ 200/- from a decoy passenger, without issuing a receipt. Subsequently, the Vigilance team recovered the marked decoy currency notes from the employee.
5. In view of above, applicant was taken up under Railway Servants (D&A) Rules, 1968 and suspended from duty. Subsequently, the suspension was revoked on 02.06.2019. Further, the applicant was transferred to Bangalore city from Yeshwantpur on 02.08.2019, within the Bangalore Division itself.
6. A major penalty charge sheet was issued on the applicant on 28.11.2019. Subsequently, inquiry was conducted. On conclusion of the inquiry, the portion of 'acceptance' was held proved. Resultantly, Disciplinary Authority has imposed the major penalty of reduction by two stages from Rs.32,900/- to Rs.31,000/- for a period of three (03) months in Level-05 with cumulative effect. Moreover, it is ascertained that the applicant has not preferred any appeal.
7. On the advice of Vigilance Department, the charged employee was ordered to be transferred to Hubli Division, in terms of Para 4.7 of Master Circular No.24. However, when the process of issuing transfer order was going on, an extraordinary situation arose due to Covid-19 pandemic and the transfer order could not be issued. Finally, transfer order could be issued only on 05/06.08.2021. He did not carry out the transfer order. The applicant challenged the transfer order itself before the Hon'ble Central Administrative Tribunal, Bangalore Bench.9
OA.No.170/00273/2023/CAT/BANGALORE
8. Pursuant to the directions of Hon'ble CAT, I have also gone through RBE No.102/1989, dated 13.04.1989. From the reading of para.3 of this circular, it is very apparent that, only in the cases of full exoneration, General Manager has powers to review the inter-divisional transfer orders. In the instant case, I find that the applicant has not been fully exonerated, rather the applicant was imposed with a Major Penalty.
9. In terms of para 2 (iii) & 2 (iv) of RBE No. 158/2019, a request for posting back to the parent division may be considered by General Manager after a lapse of at least 6 years beyond the date of completion of the period of punishment, and the delinquent employee will not be posted at the station on which the irregularities originally detected. The punishment period has been completed on 28.02.2023. He will be eligible to be considered for transfer back to parent Division only after 6 years i.e after 28.02.2029.
10. In terms of para No. 4.7 of Master Circular No.24, Ticket checking staff found indulging in malpractices, should be sent on inter-divisional transfer as a matter of policy.
11. In the present case, the applicant has not been completely exonerated. As per the findings of the inquiry, 'demand' of bribe is not proved. However, 'acceptance' of illegal gratification is proved. Therefore, as per the RBE No. 102/1989, dated 3.04.1989, review cannot be done."
8. The applicant cited Somesh Tiwari v/s Union of India & Others (2009) 2 SCC 592. It appears from para 6 of the aforesaid order that the transfer order was passed upon the anonymous 10 OA.No.170/00273/2023/CAT/BANGALORE complaint which was not found to be true. Any punishment was not granted to the applicant upon the complaint. Upon the baseless complaint, the applicant was transferred, therefore, relief was granted by the Court. But in the present case, the punishment has been awarded to the applicant and the applicant did not challenge the aforesaid punishment before any of the competent authority by filing the appeal.
9. The aforesaid circular RBE No. 102/89 dated 13.04.1989 is applicable in the case of "full exoneration" of the employee. Para 3 of the aforesaid circular is clear about the aforesaid position. In the present case, the applicant was not fully exonerated. On the other side, the applicant was punished and the punishment was not challenged by the applicant. Therefore, the benefit of the aforesaid circular is rightly being denied by the respondents in the impugned order.
10. It is also submitted by the applicant counsel that after 28 months, the transfer order has been passed. He also draws attention towards para 9 of the previous order dated 23.01.2023 passed in OA No. 394/2021. But in view of this Tribunal, the reason of passing the order has been explained by the respondents. In para 7 of the impugned order, the concerned authority mentioned the fact 11 OA.No.170/00273/2023/CAT/BANGALORE that the process of issuing transfer order was going on, an extraordinary situation arose due to Covid-19 pandemic and the transfer order could not be issued. In the case of limitation during corona - "in reference (2022) 3 SCC 117," the Hon'ble Supreme Court considered the difficulties during the corona period and granted the general condonation of delay during the period from 15.03.2020 to 28.02.2022. Therefore, looking to the aforesaid situation, sufficient reason is available for not passing the transfer order at earlier stage.
11. Therefore, in view of this Tribunal, there is no any reason for interference in the transfer order. The transfer order has been passed upon the strong basis and the reason of delay in passing the transfer order is also explained. The matter has been considered properly by the respondents.
12. Looking to the aforesaid discussion, the OA having no any force, hence, OA is dismissed.
(JUSTICE B.K. SHRIVASTAVA) MEMBER (J) /ms/