Central Administrative Tribunal - Mumbai
Benkatesh Sharma vs M/O Railways on 24 September, 2021
1 OA.798/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI.
O.A.798/2019
Dated this Friday the 24th day of September, 2021
Coram: Dr.Bhagwan Sahai, Member (Administrative)
Ravinder Kaur, Member (Judicial).
Benkatesh Sharma,
S/o Krishan Murari Sharma,
aged 55 years, lastly posted at
Sewri Railway Station as Chief
Booking Supervisor (G),
Central Railway, Mumbai and
residing at B-302, Om Sarvodya
Mandir Building, Sayadiri Nagar,
Near Birla School, Kalyan (West),
Dist. Thane - 401 301. .. Applicant.
( By Advocate Shri Ramesh Ramamurthy ).
Versus
1. Union of India, through
the General Manager,
Central Railway, CST,
Mumbai - 400 001.
2. The Chief Commercial Manager,
Central Railway,
Head Quarter, CST, Mumbai - 400 001.
3. The Sr. Divisional Commercial
Manager, Mumbai Division,
Central Railway, CST,
Mumbai - 400 001.
4. The Chief Personnel Officer (T&C)
Central Railway, Head Quarter,
CST, Mumbai - 400 001.
5. The Senior Divisional Personnel
Officer, Mumbai Division, Central
Railway, Head Quarter, CST,
Mumbai - 400 001. ... Respondents.
( By Advocate Shri V.S. Masurkar ).
Order reserved on : 03.09.2021
Order delivered on : 24.09.2021
2 OA.798/2019
O R D E R
Per: Dr. Bhagwan Sahai, Member (A)
Shri Benkatesh Sharma, last posted as Chief Booking Supervisor (G) at Sewri Station, Central Railway, Mumbai filed this O.A. on 26.11.2019. In this O.A. he has sought -
(a) quashing and setting aside of reply letter dated 04.07.2019 and the order of his transfer dated 24.07.2017; and
(b) providing of cost of this OA.
As interim relief he has sought stay on the above two orders of the respondents and directions to them to allow him to join as Chief Booking Supervisor in Mumbai Division (Commercial Branch) of Central Railway, Mumbai.
2. The main averments made in the OA and contentions of the applicant's counsel in the rejoinder and arguments are as follows:
(a). when the applicant was posted as Chief Booking Supervisor (General) at Sewri Station in Mumbai, on 22.11.2016 an incident happened when one of Head Booking Clerks Shri D.K.Singh working from 06:00 AM to 02:00 PM shift at ticket issuing counter, after closure of shift, left for home without depositing the ticket booking cash of that day with the Chief Booking Supervisor (Cash) Mr. Dhurve and the cash was deposited on the next day 3 OA.798/2019 without any financial loss to the Railways. As Chief Booking Supervisor (G) duty of the applicant did not involve supervision of the commercial staff working at the Sewri Railway Station at that time and he was not directly involved in keeping a check or ensuring that the cash is deposited by the ticketing staff at the end of the shift. There was a separate Chief Booking Supervisor (Cash) whose only duty was to ensure that each booking staff on duty in every shift deposits the ticket collection cash before leaving the work place.
The applicant had joined at Sewri Station only few months prior to that incident. The Head Booking Clerk Shri D.K.Singh inadvertently took the Railway booking cash to the residence and deposited back on the next day, after the applicant had made the necessary entry regarding non-deposit of cash in the Railway Station Diary and with RPF Chowky at the station and there was no loss to the Railway and because of that incident Chief Booking Supervisor Shri Dhurve was transferred from Sewri Railway Station to Kharghar Railway Station for his negligence in performing his duties as Cash Supervisor, and no action was taken against the applicant at that time.
4 OA.798/2019
(b). Because of the above incident, Vigilance Department, Central Railway, CST Mumbai in February 2017 asked the Commercial Department to transfer the applicant and three other employees including Shri D.K.Singh and Shri Dhurve from Mumbai Division to other divisions. Inter-divisional transfers can be ordered in the Railways only by the Headquarters office (Chief Commercial Manager, Chief Personnel Officer or the General Manager) and therefore, the letter written by the Vigilance Department for taking the said action was not correct. The Commercial Department had not proposed transfer of the applicant out of the Sewri Station but the Vigilance Department forced the Headquarters Office in the Commercial Department of the Central Railway to transfer the applicant and three other employees to other divisions, which amounts to clear interference in the normal working of the Commercial Department. Therefore, the transfer order of 24.07.2017 was as a punishment.
(c). The Headquarters Office letter dated 23.06.2017 issued for transferring the applicant and the transfer order of 24.07.2017 have not been served on him, so the reasons for it are not known to him. Therefore, his transfer is not in the interest of administration and was not a routine or periodical transfer which is not disputed by the 5 OA.798/2019 respondents in their reply. The applicant became aware of his transfer when it was served on the other employees involved in that order. So he submitted representations on 22.09.2017, 17.11.2017 and 24.11.2017 to CCM and Senior DCM for cancelling it but he did not receive any reply immediately and it was received only on 04.07.2019. Even after the transfer order dated 24.07.2017, the applicant was not relieved and he continued to work as Chief Booking Supervisor at Sewri Station and was paid salary till December, 2017.
(d). In his representations he had pointed out that his wife was not keeping well, his daughter was studying in 11th Standard in Ulhasnagar and the transfer in the middle of academic year would disrupt his family life. Therefore, he requested for posting him in Mumbai Division only.
(e). Since there was no response to his representations, he filed earlier O.A.788/2017 challenging the transfer order. This was heard on 18.12.2017 and he was granted liberty to move the Tribunal for interim relief in case any relieving order is issued to him. The respondents issued his relieving order on 09.01.2018, received by him on 10.01.2018. Based on it he filed M.A.27/2018 seeking stay to the transfer order but the Tribunal took a view that since he had already been 6 OA.798/2019 relieved, it was not necessary to pass any interim order and the matter would be finally heard and decided.
(f). In reply to that O.A., the respondents had cited the Railway Board letter dated 03.04.2012 i.e. transfer policy which indicates that for inter- divisional transfer on advice of vigilance, the employee concerned should be heard by the Chief Personnel Officer before final decision is taken. That Railway Board letter also mentioned that as far as possible, transfers be effected in the same urban agglomeration or to a different station. But the applicant was not transferred within the same Division. There was no negligence or dereliction of duty on his part and only because of pressure from the vigilance department, the Sr. DCM issued a charge-sheet to him on 02.01.2017 alleging slack supervision on his part. That charge-sheet was not issued by the Disciplinary Authority on account of any misconduct of the applicant but issued only under pressure of the vigilance. While the charge in the charge-sheet is limited, in the order of 04.07.2019 a new reason has been given by the Sr. DCM that because of non-remittance of cash by the Head Booking Clerk on the same day and for depositing it on next day, there was possibility of exchange of demonetised cash. This was not the 7 OA.798/2019 charge in the charge-sheet or part of the pleadings before the Tribunal or the High Court.
(g). Because of inter-divisional transfer from Mumbai to Nagpur Division, his service record, retiral benefits, etc would have to be drawn only from Nagpur Division, for which will have to go to Nagpur from Mumbai. The transfer to Nagpur Division was without indicating a particular station of posting. Since the Nagpur Division comprises parts of Maharashtra, Karnataka, Telangana and Madhya Pradesh, he could be posted at any remote station.
(h). The order dated 04.07.2019 was issued during pendency of Writ Petition No.4737/2019. As per High Court order of 07.11.2019, the applicant was permitted to withdraw the writ petition to challenge the order of 04.07.2019 before the Tribunal, keeping all the contentions open, as the earlier order of the Tribunal dated 05.03.2019 was not an order passed on merits. The decision of Sr. DCM on his representations was without jurisdiction. The respondents have deliberately and totally ignored the directions in the Railway Board letter of 03.04.2012 and, therefore, it is necessary for the Tribunal to interfere with the transfer order and the applicant should be permitted to join at a station in Mumbai Division. 8 OA.798/2019 Since the applicant was relieved only on 09.01.2018 in pursuance of the transfer order of 24.07.2017, it shows that the respondents (Commercial Department) were not in favour of his transfer from Mumbai to Nagpur Division.
(i). The contention of the respondents is not correct that the applicant failed to ensure remittance of Railway cash on 22.11.2016 as it was not his job and it was the job of Chief Booking Supervisor (Cash), Shri Dhurve. The duties of the applicant were not defined and they did not include remittance of Railway cash. He did not come in contact with public while working as Chief Booking Supervisor (G). For the above incident, Shri Dhurve was transferred from Sewri to Kharghar Station without disturbing the applicant. The letter from Headquarters office dated 23.06.2017 has not been placed on record, it was only an internal communication without disclosing the reason for it. Thus the respondents have totally suppressed the material relevant facts to create incorrect impression about the nature of dispute in the present O.A.
(j). The Supreme Court decision in case of S.C. Saxena does not apply to the applicant's case because the applicant approached the Tribunal in O.A.788/2017 before the transfer order was 9 OA.798/2019 effected. The contention of the vigilance department is only recommendatory. But the Competent Authority did not take an appropriate decision on that recommendation and merely rubber stamped it for transferring the applicant. Since it was not an independent decision of the Competent Authority, his transfer order is totally malafide.
3. In the reply and during arguments of their counsel, the respondents contend that - 3(a). the applicant failed to ensure remittance of Railway cash, so a charge-sheet dated 02.01.2017 was issued to him and then based on the letter from headquarters office dated 23.06.2017 instructing the Mumbai Division to transfer the applicant out of the Division, the transfer order of 24.07.2017 was issued, on administrative grounds. The applicant has been transferred to Nagpur Division in the same grade and capacity which will not result in any loss of his seniority in the Nagpur Division. The earlier O.A.788/2017 challenging the transfer order was disposed of by the Tribunal on 05.03.2019 directing the respondents to dispose of his pending representations. Thereafter his representations were considered and the order dated 04.07.2019 was issued by the Sr. DCM, CSMT which is as per the rules. The applicant was relieved on 09.01.2018 from Sewri Station and on 10.01.2018 10 OA.798/2019 from Mumbai Division to report to Nagpur Division; 3(b). the applicant is bound by service rules of the Central Railway and transfer being a condition of service he can be transferred to any of the Divisions in the interest of administration; 3(c). since the applicant was found involved in malpractice, he was transferred from Mumbai Division to Nagpur Division as per rules applicable to staff working on sensitive posts in Commercial Department. In the consolidated instructions of the Railway Board in RBE No.48/2012 dated 03.04.2012, it has been provided that Ticket Checking Staff as also other staff in mass contact areas, detected to be indulging in malpractices should be sent on inter-divisional transfers as a matter of policy and accordingly the applicant has been transferred from Mumbai Division to Nagpur Division. The above mentioned policy is not only for ticket checking staff, it covers other staff also and it is not against Article 14 of the Constitution. Therefore, this OA has no merit and it should be dismissed with cost. The allegations of the applicant in para 4(j) and (q) of the OA are without any substance and therefore, denied. 3(d). The respondents have relied on the following Apex Court decisions in support of their contentions:
11 OA.798/2019
(i) State Bank of India Vs. Anjan Sanyal & Ors, 2001(3) SC 436;
(ii) State of Madhya Pradesh & Others Vs. S.S. Kourav & Ors., JT 1995(2) SC 498;
(iii) Union of India Vs. S.L. Abbas, AIR 1993 SC 2444
(iv) Full Bench CAT, Vol.I page 80. Kamlesh Trivedi
(v) N.K. Singh Vs. Union of India, reported in (1994) 28 ATC
246.
(vi) UOI Vs. Janardhan Debnath reported in AIR 2004 SC 1632 = 2004(2) SLR (SC) 15.
(vii) S.C. Saxena Vs. UOI & Ors. Reported in (2006) 9 SCC 583
(viii) Mohd. Masood Ahmed Vs. State of UP reported in (2007) 8 SCC 150.
(ix) Rajendra Singh Vs. S/o UP reported in 2010 (1) SLR (SC) 633 and
(x) N.K.Chawla Vs. Union of India and Others, reported in 2013 (1) (CAT) SLJ (Bombay) 133, holding that Government to give clean administration must have powers of governance.
4. Analysis and conclusions:
We have carefully considered the averments made in the OA and contentions of the applicant as well as respondents in their reply and arguments of their counsels. Based on our analysis, the conclusions emerge as follows:
(a). The applicant was transferred from Mumbai Division to Nagpur Division as per order dated 24.07.2019 and then he was relieved on 09.01.2018 from Sewri Station and on 10.01.2018 from Mumbai Division. Since then he has been unauthorizedly absent. The earlier OA No.788/2017 filed by the applicant on 08.12.2017 challenging his transfer was disposed of by order dated 05.03.2019 directing the respondents to decide the applicant's pending 12 OA.798/2019 representations. Against that order of the Tribunal, the applicant filed Writ Petition No.4737/2019 on 25.03.2019 and thereafter he withdrew it on 07.11.2019 to challenge the order of the respondents on his representations dated 04.07.2019 before this Tribunal.
(b). This order of 04.07.2019 was issued by the Sr. DCM, CSMT Mumbai rejecting his representations based on the Railway Board's instructions in letter dated 03.04.2012 emphasizing that the Ticket Checking Staff as also other staff in mass contact areas, detected to be indulging in malpractices should be sent on inter-divisional transfers as a matter of policy. That order mentioned about vigilance check on 22.11.2016 at Sewri Railway Station when the applicant working as Chief Booking Supervisor (G) had failed to ensure remittance of the accounted railway cash after completion of duty hours of the staff working on the ticket counters which resulted in short remittance of Rs.73,106/- and as per rules and procedures, CBS(G) is personally responsible for the safe custody, correct accounting and remittance of cash and to ensure the same by daily inspection of cash books. It was further mentioned that currency notes of Rs.500/- and Rs.1,000/- demonetized on 08.11.2016 although were permitted to be accepted at Railway 13 OA.798/2019 counters for ticketing purpose, there was high possibility of exchanging demonetized cash by any staff or others if not accounted to treasury immediately which the applicant had failed to ensure and therefore, his involvement in such misappropriation cannot be ruled out. Such possibility of exchange of demonetized currency notes because of applicant's slack supervision is detrimental to the interest of nation and therefore, on recommendation of the Vigilance Branch, he was transferred to Nagpur Division.
(c). The claim of the applicant that he was not concerned with the supervision of cash and its remittance at the end of working hours by staff on the same working day is false. This falsehood is revealed by his own submission in para 4(c) of the OA in which he has himself stated that he had made necessary entry regarding non-depositing of cash in railway station diary and with the RPF Chowky at the station and the cash was deposited by Shri D.K.Singh on the next day after the entry made by the applicant himself in the Railway station diary. As claimed by the applicant if he was not concerned with the supervision of remittance of cash received during the shift of the staff on counters, then he could not have made the above entry about non- deposit of cash.
14 OA.798/2019
(d). The order of the respondents dated 04.07.2019 rejecting the representations also very clearly mentioned that as per the rules and procedures, Chief Booking Supervisor (G) is personally responsible for safe custody of accounted cash and remittance of the cash, and to ensure it by daily inspection of the cash books. Since these are the duties of the applicant working as Chief Booking Supervisor (G), his claim that he was not concerned with remittance of collected Railway cash has no substance.
(e). The charge-sheet issued to the applicant on 02.01.2017 also clearly mentioned in the statement of charges of misconduct that the applicant failed to ensure custody of Railway cash after completion of duty hours of staff working on counters and he failed to ensure the remittance of accounted Railway cash to the Bank on the following day. This clearly revealed slack supervision of the applicant.
(f). The further claim of the applicant in the O.A. that he was not having duty of supervising the staff nor he was incharge of cash at the Sewri Railway Station on 22.11.2016 and it was not part of his duties as no order was issued in that regard by the Railway administration is fallacious. He has also not brought on record a copy of his 15 OA.798/2019 assigned duties as Chief Booking Supervisor (G).
(g). For inter-divisional transfers, in RBE letter No.48/2012 dated 03.04.2012, in Para 3 it has been clearly mentioned that instructions also exist vide this Ministry's various earlier letters that Ticket Checking Staff as also other staff in mass contact areas, detected to be indulging in malpractices should be sent on inter-divisional transfers as a matter of policy. Therefore, the claim of the applicant that as he did not belong to Ticket Checking staff, he cannot be transferred to any division based on detection of malpractices is totally false.
(h). A perusal of the case record of the respondents has a letter from Chief Commercial Manager, Central Railway, CSMT, Mumbai dated 22.02.2017 stating that decoy check was conducted at Booking Office at Sewri Station on 11.11.2016 and 22.11.2016 and because of serious misconduct, transfer of four staff members including the applicant was recommended to other divisions. Thus the decoy checks were conducted not only on 22.11.2016 but also on 11.11.2016 when short remittance of Railway cash on those two dates was detected. The letter further mentioned that four staff members were involved in that short remittance of Railway cash and, therefore, major 16 OA.798/2019 punishment charge-sheet should be issued to them by Sr. DCM, Mumbai. Based on these decoy checks and vigilance report, the headquarters proposed on 13.02.2017 and 27.02.2017 for inter-divisional transfers of four staff members (including the applicant) and initiation of major punishment proceedings against them.
(i). The communication further mentioned that temporary misappropriation by the Booking Staff had been done in collusion with Chief Booking Supervisor in charge. Based on this, the order of 19.04.2017 was issued for inter-divisional transfer of the applicant and others. The vigilance report was put up to the Competent Authority at headquarters and it was advised that the decision of the headquarters (Personnel) were to remain unchanged and thereafter the transfer order dated 24.07.2017 was issued, with the approval of the Competent Authority and the transfer order itself mentioned that it was issued in the interest of administration. Therefore, the contention of the applicant that the transfer order was forced by the vigilance branch is not correct, it was issued by the Competent Authority based on its own opinion, and not solely based on the vigilance report. After the applicant received the transfer order on 09.01.2018, he himself surrendered his FRC pass and 17 OA.798/2019 identity card to Station Master, Sewri and was relieved from Sewri on the same date and on 10.01.2018 by DRM (P) Headquarters. So his claim that he was not served the transfer order is a lie.
(j). From the case record and contentions of the respondents it is clear that the transfer of the applicant and three other staff members was ordered because of detection of their indulgence in malpractices not only on one occasion i.e. on 22.11.2016 as mentioned in O.A. but also on 11.11.2016. Therefore, this transfer was as per the relevant Railway Board instructions and was fully justified. The applicant's claim that his transfer was not due to administrative exigency has no merit.
(k). On the subject of transfer of Government employees, a gist of the Apex Court views in the following decisions is relevant for this case too. Some of these caselaws have been correctly relied upon by the respondents.
(i) Mohd. Masood Ahmed Vs. State of U.P. & Ors., (2007)8 SCC 150 - transfer is an exigency of service and is an administrative decision. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with 18 OA.798/2019 the order of transfer. The Apex Court decision in case of Abani Kanta Ray Vs. State of Orissa, 1995 (Supp.) 4 SCC 169, was cited stating that it is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides or infraction of any professed norm or principle governing the transfer. It was further mentioned that scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in many cases such as State Bank of India Vs. Anjan Sanyal (2001) 5 SCC 508, Rajendra Rao Vs. Union of India (1993) 1 SCC 148, National Hydroelectric Power Corporation Ltd. Vs. Shri Bhagwan (2001) 8 SCC 574 and the principle laid down is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is malafide or that the service rules prohibit such transfer, or that the authorities who issued the orders were not competent to pass the orders.
(ii). N.K. Singh Vs. Union of India, 1995 AIR 423 - challenge in Courts of a transfer when the 19 OA.798/2019 career prospects remain unaffected and there is no detriment to the Government servant must be eschewed and interference by Courts should be rare, only when a judicially manageable and permissible ground is made out.
(iii). State of Madhya Pradesh & Ors. Vs. S.S. Kourav & Ors., 1995 AIR 1056 - the Courts or Tribunals are not appellate forums to decide on transfers 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 malafides or by extraneous consideration without any factual background.
(iv). Union of India and Ors. Vs. S.L. Abbas, 1993 AIR 2444 - an order of transfer is an incident of Government service. Fundamental Rule 11 says that the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority. The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own 20 OA.798/2019 judgment for that of the authority competent to transfer.
(v). S.C. Saxena Vs. Union of India & Ors., (2006) 9 SCC 583 - a Government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. The tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
(vi). Sushil Kumar Singh Vs. Union of India & Ors., CAT, PB, O.A.No.3621/2011 dated 23.12.2011 - once the Government employee is transferred, even if he has grievances, he should join the place of posting and thereafter submit representations to the competent authority to consider the grounds.
(l). When we analyze the case of the present applicant in view of the above Apex Court decisions, we find that the transfer order of the applicant was based on the detection of repeated malpractices on his part i.e. his failure in ensuring remittance of Railway cash collected at the ticket booking counters at the end of everyday and depositing it with the Bank on the next date. His transfer order has been issued by the Competent 21 OA.798/2019 Authority after taking into consideration report of the vigilance branch and based on its own opinion. The service rules of the applicant do not prohibit such transfer. This transfer does not entail any adverse effect on service prospects of the applicant. The relevant orders of the Railway Board for such cases very clearly stipulate that such staff found to be indulging in malpractices must be transferred from one division to another division and, therefore, the transfer order of the applicant does not suffer from any malafides. We also conclude that the transfer order of the applicant is not arbitrary action of the respondents. It has been issued based on the detected instances of malpractices and, therefore, the O.A. has no merit at all and it needs dismissal with cost as it is only a wasteful litigation indulged in by the applicant.
5. Decision:
The O.A. is dismissed with cost of Rs.5,000/- to be recovered by the respondents from the applicant within one month after receipt of a copy of this order.
(Ravinder Kaur) (Dr.Bhagwan Sahai)
Member (J) Member (A).
H.
22 OA.798/2019