Union Of India & Ors vs Anil Kumar & Ors on 4 January, 2012

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Calcutta High Court (Appellete Side)

Union Of India & Ors vs Anil Kumar & Ors on 4 January, 2012

Bench: Ashim Kumar Banerjee

                                               1

                                IN THE HIGH COURT AT CALCUTTA
                                Constitutional Writ Jurisdiction
                                         Appellate Side
Present :
The Hon'ble Justice Ashim Kumar Banerjee
               -And-
The Hon'ble Justice Soumen Sen

                                   W.P.C.T. 24 of 2011
                                          With
                                   W.P.C.T. 55 of 2011
                                     Union of India & Ors.
                                           -Versus-
                                      Anil Kumar & Ors.

For Petitioners             :        Mr. P.S. Bose
Union of India                       Mr. Bidyut Kumar Roy

For Respondent              :        Mr. Surajit Samanta

Ms. Madhumita Roy Judgment on :- January 04, 2012.

The genesis of the controversy lies with the order of transfer issued by the Railway to the petitioner by which he was transferred from Eastern Railway to Southern Railway. The Tribunal held, it was not permissible. Hence, the petition before us by the Railway.

The second writ petition by the Railway pertains to the modified order of transfer issued after setting aside of the earlier order of transfer by the Tribunal. The Tribunal again set aside the second order of transfer by which the petitioner was transferred from one place to the other within Eastern Railway.

The Railway by the above two petitions challenged the order of the Tribunal. The Railway contended before us that the Tribunal erred in holding that the orders of transfer were issued as a result of vindictive and mala fide attitude on the part of the Railway. The matter came up before the Division Bench on August 24, 2011 when 2 the Division Bench, presided over by one of us (A.K. Banerjee, J.) heard the matter in part. The matter again came up on September 29, 2011. The Court found that the matter was unnecessarily being prolonged at the instance of the respondent. Since the adjournment was prayed for on behalf of the respondent, the Railway prayed for interim protection. The Division Bench observed as follows :-

"Question thus remains, as to what would be the interim mode of arrangement with regard to the order of transfer. The principal challenge of the petitioner, as we find from the petition, is against inter zonal transfer. Such question has to be decided on affidavits as directed above. Hence, the Railway should keep the impugned order of transfer in abeyance for the time being. They would, however, be at liberty to transfer the petitioner to any other place within Eastern Railway and in case such order of transfer is passed the petitioner would be bound to join the said post without prejudice to his rights and contentions in the present petition."

We granted liberty to the Railway to transfer him to any other place within Eastern Railway and asked the respondent to join the transferred post without prejudice to his rights and contentions. The respondent was not happy. He approached the Apex Court. The Apex Court dismissed the Special Leave Petition as we find from the order dated November 18, 2011. We are told, after dismissal of the SLP the respondent joined his transferred post, which was issued by the Railway in modification of the original order of transfer. We are further told, during the period when the respondent was busy at Delhi with his SLP he was proceeded departmentally for unauthorized absence for the said period.

We have heard Mr. P.S. Bose, learned Senior Advocate appearing for the Railways and Mr. Surajit Samanta, learned Counsel appearing for the respondent.

Since the respondent has already joined his transferred post, we feel, Railway should take a lenient attitude. At the same time we must hold that Railway, as an employer, is always entitled to run their administrator in their wisdom and 3 transfer is a process which cannot be called in question unless there was definite allegation of mala fide.

Be that as it may, the respondent is working in his transferred post. We do not find any plausible grievance, which the respondent can still have. At the same time the Railway should ignore his insubordination, if any, while making him absent unauthorizedly.

The judgment and order of the Tribunal passed in O.A. 948 of 2010 and O.A. 2177 of 2010 are quashed and set aside. Since, the original order of transfer stands modified the same may not be put to operation.

The respondent is granted liberty to apply for extraordinary leave for the period when he was at Delhi to pursue his case before the Apex Court. In case such application is made, the Railway Authorities should consider it sympathetically and grant extraordinary leave and thereby drop the disciplinary proceeding, if any, initiated in the meantime for the said purpose.

We once again make it clear that we have not decided the subject issue on merit. We have also not decided the authority and propriety of the Railway to have inter-zonal transfer that would be left open to be decided in an appropriate proceeding, if occasion so arises in future.

We hope and expect that the Railway would not continue to have any indifferent attitude towards the respondent because of the protracted litigation. At the same time we would expect the respondent No. 1 being a responsible Officer would continue to serve the Railway strictly following the Service Rules.

With these observations, both the tribunal applications are disposed of without any order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.

( Banerjee, J.) ( Soumen Sen, J.) akb

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Calcutta High Court (Appellete Side)