Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India Through on 2 December, 2013
1 OA No.693/2013 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION NO.693/2013 Monday, this the 2nd December, 2013 CORAM: HON'BLE SHRI SUDHIR KUMAR, MEMBER(A) HON'BLE SHRI A.J.ROHEE, MEMBER(J) D.C.Das, Technician G, RRMD, Mechanical Maintenance Section, BARC, Mumbai, residing at 4, Gangotri, BARC Colony, Anushakti Nagar, Mumbai-400034. ... Applicant (By Advocate Shri Vicky Nagrani) VERSUS 1. Union of India through The Secretary, Dept. of Atomic Energy, Anushakti Bhavan, Mumbai 400 094. 2. The Director, Bhabha Atomic Research Centre, Central Complex, Trombay, Mumbai 400085. 3. The Dy. Establishment Officer, Bhabha Atomic Research Centre, Personnel Division, Research Reactor Maintenance Division, Central Complex, Trombay, Mumbai 400 085. 4. The Head, Research Reactor Maintenance Division, Bhabha Atomic Research Centre, Cirus Complex, Trombay, Mumbai 400 085. 5. Mr.S.K.Chaudhari, RRMD, Technician `H', R/at Flat No.21, Alakananda, Anushakti Nagar, Mumbai-400094. 6. Mr.S.Kalamudin, Foreman C, ROD BARC, R/at Anushakti Nagar, Mumbai 400 094. 7. G.Bharadwaj Ex Head, RRMD, BARC, 2 OA No.693/2013 R/At Anushakti Nagar, Mumbai 400 094. 8. O.P.Ulhas, Maintenance Superintendent, RRMD, BARC, R/at Anushakti Nagar, Mumbai-400094. ... Respondents O R D E R
Per Shri Sudhir Kumar, Member (A) This OA has been filed by the applicant with prayers to quash and set aside the orders of the applicant's transfer and further praying for directions upon the respondents to retain the applicant at BARC as Technician `G' after cancelling his orders of transfer to NRB Tarapur which is around 50 kms. away from the place of his present posting.
2. The case of the applicant is that he is a Trade Union Leader, and he is being forced to join a particular political party, and since he had refused to join that particular political party, he has been victimised, and has been transferred. He has further stated that he has 103 year old aged mother, whom he has to look after, but still the respondents have transferred him, and the impugned order dt. 25.10.2013 ordering his transfer, and the subsequent relieving order (Annexure-A/2) dt.31.10.2013 relieving him from Research Reactor Maintenance Division, BARC, Mumbai, and directing him to report to the Chief Superintendent, NRB, Tarapur, are the result of his complaints made to the Controller of BARC dt. 3.4.2013 (Annexure-A/3) and the incident which had occurred later, because of which a medico legal case had been registered, and he had to be admitted to the Medical Division of BARC at Dispensary (West) BARC on 24.9.2013 at 5.14 p.m. 3 OA No.693/2013 (Annexure-A/14). He has submitted that he was served with a show cause notice dt.18.10.2013 through (Annexure-A/5) to which he has given his reply on 25.10.2013 through (Annexure-A/6) and had also applied for leave from 31.10.2013 to 22.11.2013 through (Annexure-A/7) leave application, but still the respondents have persisted with victimizing him, and have passed the order of his transfer dt. 25.10.2013, and the office order relieving him from 31.10.2013. He has alleged mala fide and bias against 4 private respondents, who have been named by him as private respondents R-5, R-6, R-7 and R-8 of this OA.
3. During his oral arguments praying for admission of the case, the counsel for the applicant admitted that the applicant has not joined at the place of posting to which he has been transferred, pointing out that he had applied for leave through Annexure-A/7 (colly) leave application, in which, through two leave applications, he has applied for leave for 23 days from 31.10.2013 to 22.11.2013, and for 14 days from 23.11.2013 to 06.12.2013, on the ground of urgent domestic work.
4. We have considered the submissions of the applicant's counsel, and have decided to deal with it at the stage of admission itself. As was held by the Hon'ble Apex Court in the case of S.C.Saxena vs. Union of India & Ors. {(2006) 9 SCC 583} in the first place 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. The Hon'ble Apex Court had laid down that it is the duty of the government servant to first report for work at the place where he has been transferred, and then make a representation as to what may be 4 OA No.693/2013 his personal problems. The Hon'ble Apex Court had also observed that this tendency of not reporting at the place of posting, and indulging in litigation, needs to be curbed.
5. It is, therefore, clear that the applicant has to first join his new place of posting, and then make a representation to his superior authorities regarding his personal problems, which the present applicant before us has not done. In the case of Union of India v. S.L.Abbas {(1993) 4 SCC 357 : AIR 1993 SCW 1753}, in para 7 of its judgment, the Hon'ble Apex Court had an occasion to observe that the Tribunal is not an Appellate Authority which can substitute its own judgment in place of a bona fide order of the transfer passed by an administrative authority. The Hon'ble Apex Court has also held to the same effect in the case of Shilpi Bose and Ors. vs. State of Bihar (AIR 1991 SC 532) and in National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001 (8) SCC 574) and State of M.P. and Anr. v. S. S. Kourav and Ors. (1995 (3) SCC
270) and in many other cases which may be listed as follows :
(1) Maj. General J.K.Bansal vs. Union of India & Ors. (2005 (7) SCC 227);
(2) State of Haryana and Ors. vs. Kashmir Singh and Anr. (2010 (13) SCC 306);
(3) V. JAGANNADHA RAO & ORS. vs. STATE OF A.P. & ORS. (2001 (10) SCC 401;
(4) Novartis India Ltd. vs. State of West Bengal and Ors. (2009 (3) SCC 124).
6. Therefore, in the face of the overwhelming case law and clear cut ratio laid down in many cases by the Hon'ble Apex Court on the subject of transfer, we find ourselves to be 5 OA No.693/2013 unable to entertain the the present OA of the applicant, as there is no aspect of the administrative action of his transfer, which can be judicially reviewed at this stage by us, when the applicant has himself not yet made a representation against his orders of transfer, and the official respondents have also not had an occasion to consider the points raised by the applicant against his orders of transfer, and accept or reject any such request. 7. The order of transfer itself cannot be judicially reviewed as it is the prerogative of the employer to utilize the services of its employee at the place of its choice. We are also not pursuaded by the stories that some persons had forced the applicant to join certain political party, and that such pressure being resisted by the applicant could have led to the official respondents in having passed the orders of applicant's transfer. We are also not pursuaded by the argument of the applicant that he has a 103 year old mother to look after and therefore, he should not be transferred. Since as it is he is deeply involved in union activities at his present place of posting itself, it is doubtful that he would even now be taking care of his aged mother properly. The further argument of the Ld. Counsel for the applicant that there is no proper hospital at the new place of the applicant's posting also does not carry much pursuasive value as it is clear that it is a large establishment of the Department of Atomic Energy, with Senior Scientists and others looking after the Tarapur Project, and it is impossible to perceive that inadequate medical facilities would be available at a place where such a large atomic power 6 OA No.693/2013 generation facility is located.
8. Therefore, the OA is rejected in limine, without issuing notice to the respondents.
(A.J.ROHEE) (SUDHIR KUMAR) MEMBER (J) MEMBER (A) B. 7 OA No.693/2013 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI PRE-DELIVERY JUDGMENT IN OA NO.693/2013 Hon'ble Member (J), Shri A.J.Rohee, may kindly see the above judgment for approval/signature.
(SUDHIR KUMAR) MEMBER (A) Hon'ble Shri A.J.Rohee Member (J)