Central Administrative Tribunal - Kolkata
Goutam Saren vs National Test House on 20 June, 2022
' 1 OA 352/2020 O00 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA 0.A/350/00352/2020 . Date of Order: 26:06: 2022 Coram: . Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member in the matter of : Sri Goutam Saren, son of Suklal Saren, Ex Mail Man at RMS "H" Division, residing at Village Bankra (Dakshin Para), Post Office- GIP Colony, Police Station-Domjur, Howrah, Pin-711112., ses aeeasnees Applicant -Versus- 1) Union of India, serviced through the Secretary, Department of Consumer Affairs, Food & Public Districution, Government of Andia, Krishi Bhawan, Rafi Marg, Connaught « Place, New Delhi-110001. 2) The Director General, National Test 'House (HQ), Block CP, Sector V, Kolkata- 700091. 3) Mr. 8B. R. Mondal, Scientist C (Electrical), NTH(ER), National Test House, Block CP, Sector V, Kolkata-700091. dot a 2 OA 352/2020 4) Dr. Prasanta Kanjilal, Director NTH(ER), National Test House, Block CP, Sector V, Kolkata-700091. 5) Smt. Mira Bhattacharya, AO-II for Chairman of the Investigation Committee, | NTH(ER), Kolkata, National Test House, Block CP, Sector V, Kolkata-700091. 6) Mr. N. Kujur, AO-Il (HQ), for the Director General, NTH, National Test House, Block CP, Sector V, Kolkata-700091. 7) Dr. S. N. Bandopadhyay, Scientist C (Chemical), NTH (ER), 2" Floor, National Test House, Block CP, Sector V, Kolkata- 700091. 8) Dr. Mrs. Sharmistha Ghosh, Deputy Controller of Patents & Designs, Boudhik Sampada Bhavan, CP 2, CP Block, Sector V, Bidhannagar, Kolkata, West Bengal-700091/ 9) Smt. Sudipta Mallick, Scientist B . (CHEM), National Test House, Block CP, Sector V, Kolkata-700091. 10) Smt. Ankita Biswas, $.A./Civil, National Test House, Block CP, Sector V, Kolkata-700091. hah, oe 3 OA 352/2020 For The Applicant(s): Mr. S. Ghosh, Counsel For The Respondent(s): Mr. S. Paul, Counsel ORDER
Per: Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member The applicant, who is a Scientific Assistant (Phy. Civil) with the respondent authorities, has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, to seek the following relief :-
a"
a) An order directing the respondents, their agents, -
subordinates and successors to and each one of them to act in accordance with law and to pass an appropriate order so as to recall the impugned orders of transfer against your applicant dated 06.03.2020 in view of the fact that the Act ie., Sexual Harassmen: of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 does not provide for punitive action against the accused unless the allegations leveled against him have been prima facie substantiated;
b) An order for appointment of a impartial forum to investigate the mala fide and concocted complaints made against your applicant by the respondent no. 10 herein alleging Sexual Harassment and if so be found to be untrue, to direct the pertinent cuthority and/or the competent office to initiate "action against the said complainant under Section 14 of the said Act;
c) To pass an order directing the respondents to transmit the entire records of the case to this Learned Tribunal and to certify them and on being so certified be considered so that conscionable justice may be administered by granting the relief for hereniabove;
d) An order directing the respondents from proceeding with any - action against your applicant during pendency and/or prior to disposal of the present application."
Heard both Learned Counsel. Examined pleadings and documents on record. Written notes of arguments have been filed by both Learned Counsel.
hak a 4 OA 352/2020 3, The factual matrix which arises in the context of the instant original application can be summarized in the following three sub-categories :-
(i) That, a complaint dated 03.04.2019 was received from private respondent no. 10, alleging sexual misconduct against the applicant. Accordingly, an Investigation Committee was constituted so as to ensure fulfillment of the conditions enshrined in Section 19 (a) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter referred to as Act 14 of 2013), so as to ensure a safe working environment at the workplace which shall include safety from the persons that the employees come into contact with at the workplace.
A meeting of the Committee was held on 10.04.2019. On 11.04.2019, both the respondent (the applicant herein) as well as the complainant were present and after recording their deposition, one week's time was given to both for preparation of evidence. The applicant thereafter submitted a sealed envelope to the Committee on 16.04.2019. Respondents would contend that the applicant, did not provide any document or evidence in support of his claim.
The Investigation Committee, thereafter, met on 22.04.2019, 15.05.2019 and on 17.05.2019. The respondent (the applicant herein) however, did not verify his recorded statement or submit any signed written statement despite opportunities granted on 15.05.2019. Thereafter, the Committee, having examined the evidence furnished by the complainant as well as the witnesses of both the complainant and the respondent (the applicant herein), concluded that the applicant's complaints were only an act of counter allegation to he ' N ' .
5 OA 352/2020thwart the allegations of sexual harassment brought against him. The said Investigation Committee submitted its preliminary investigation report on 01.07.2019 (annexed at Annexure-WNA/1 of written notes of arguments of. cfficial respondents) opining that, the complainant's allegations have been proved as genuine. The said Committee further opined that, the respondent's (the applicant herein) attitude is detrimental for conducive working environment, especially for women scientists in the respondent organization. Faving noted that the applicant did rot submit any signed written statement, and that his arrogant behavior and attitude prevented timely completion of the enquiry process, the Committee recommended further necessary action by the competent authority as per the provisions of the CCS (CCA) Rules.
The Internal Complaint Committee which was constituted on 23.01.2020 (annexed at Annexure-R/6 to the reply) submitted its final report on 15.10.2020 with the following recommendations :-
"to take action against Shri Gautam Soren for sexual harassment treating it as a misconduct as per service rule applicable in compliance of Section 13(3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (No. 14 of 2013 which prescribe the employer to take steps in accordance with service _ rules applicable)."
That, thereafter, a charge sheet was issued under Rule 14 of CCS (CCA) Rules, 1965 on 27.01.2021 (annexed at Annexure-WNA/2 of written notes of | arguments of official respondents), and, as the applicant did not submit his written representation or statement of defence within the specified period, the authority held an ex-parte inquiry and ultimately imposed, on 13.04.2021, a major penalty of "reducing basic pay of Sri Gautam Soren to the minimum of the existing pay scale for a period of five years with further direction that he bar a 6 OA 352/2020 will not earn increments of pay during the period of such reduction and the reduction will not have the effect of postponing the future increments of pay as . per rule 11 (v) of the CCS (CCA) Rules, 1965" (annexed at Annexure-WNA/4 of written notes of arguments of official respondents).
Although the applicant would deny any knowledge of or receipt of the charge sheet or any notices thereto, the respondent authorities would produce, by way of speed post tracker, record of substituted service and messenger peon book, that such notices were actually served on him in accordance with law.
(ii) The applicant, has been raising various issues against the respondent organization from time to time. The applicant would annex his reference to such irregularities vide his representations dated 03.12.2019 (annexed at Annexure-A/4 to the OA), 24.12.2019 (annexed at Annexure-A/7 to the OA), 09.01.2020 {annexed at Annexure-A/7 to the OA), 20.01.2020 (annexed at Annexure-A/8 to the OA), 23.01.2020 (annexed at Annexure-A/8 to the OA), 11.02.2020 (annexed at Annexure-A/12 to the OA), 14.02.2020 (annexed at Annexure-A/13 to the OA), 17.02.2020 (annexed at Annexure-A/14 to the OA) and 24.02.2020 (annexed at Annexure-A/16 to the OA). The respondent authorities would, on the other hand, also provide a chronological sequence of such complaints that the applicant has raised against the various authorities in the respondent organization.
08.04.2019 - Against Ms. Ankita Biswas (Respondent No. 10) for obsessive actions and other.
09.04.2019- Against Dr. S. K. Manna Nb A:
7 OA 352/202016.04.2019 - Against Mr. Ajeet Kumar, SO (Civil), MR. K.K. Paul (TA) and Dr. S. Neogi, Scientist C (Civil), etc. 29.04.2019 - Against Mr. Ajeet Kumar, SO (Civil), MR. K.K. Paul (TA) and Dr. S. Neogi, Scientist C (Civil), etc. 08.05.2019- Against Dr. S Neogi and other members of Civil Lab. 16.05.2019 - Against Establishment and recruitment rules. 16.05.2019- Against Dr. S. Neogi & Dr. S.K. Manna.
23.05.2019- Against Dr. S. Neogi 29.05.2019- Against Dr. S. Neogi 04.06.2019 - Against Dr. S. Neogi 20.06.2019 - Against Ms. A Biswas & Sh R.A. Khan 04.07.2019 - Against Ms. A Biswas & Sh R.A. Khan 11.07.2019 - Against Ms. A Biswas & Sh R.A. Khan 12.07.2019 - Against Ms. A Biswas & Sh R.A. Khan 11.07.2019 - Against Ms. A Biswas & Sh R.A. Khan 05.08.2019 - Against Ms. A Biswas & Sh R.A. Khan 03.12.2019 - Against Director, NTH (ER) 24.12.2019 - Against Director, NTH(ER) lt is noted here that, the first complaint made by the applicant against the respondent organization alleging several irregularities was reportedly preferred on 08.04.2019 , which is after the date of the initial complaint dated | 03.04.2019 by the private respondent no. 10.
A three-member Committee was set up to deal with such repeated complaints by the applicant, and, such Committee, vide its order dated 20.02.2020 (annexed at Annexure- A/15 to the OA), disposed of his complaints with the following orders :-
be 8 OA 352/2020 ww) soe "Government of India " Ministry of Consumer Affairs, Food & Public Distribution Department of Consumer Affairs Office of the Director General National Test House Block- CP, Sector V. Kolkata 700 091 CONFIDENTIAL ' No. NTH HQ/Complaint/2019-20 Date: 20.02.2020 OFFICE MEMORANDUM Ref: 1. Letter received from Shri G. Saren, S. A. (Civil), NTH(ER) dated 03.12.2019.
2. Letter received from Shri G. Saren, S. A. (Civil), (ER) dated 24.12.2019.
Whereas, a complaint was received under Reference (1) cited above, stating that two Office Orders were issued by the Director (ER), NTH advising Shri G Saren, SA (Civil), NTH(ER) to look after CPWD related jobs on 05.04.2019 and 12.04.2019 respectively, without any additional laboratory job.
Whereas, in Shri Saren's consideration the CPWD related work performed by him, is unnecessary for the office and not as per duties mentioned by SSC(ER).
Whereas. Shri Saren alleged that the Director(ER) refrained him to apply his expertise in core area and suppressed his voice against the "Traditional Irregularities" by curtaining his superiors in the Civil Laboratory.
Whereas, a complaint was received under Reference (2) cited above, stating the Director(ER) made intentional delay in setting up Inquiry Committee and did not produce Shri Saren's letter dated 08.05.2019 to the Chairman of the Inquiry Committee.
Whereas, Shri Saren was not aware about the progress of the enquiry and whether all complainants who lodged complaints against him, were summoned or not.
Whereas, an enquiry was set up against Shri Saren's above complaints and the same was investigated and found that in all matters his complaints are unfounded and do not have any merit.
Whereas, in another Investigation Report of a three membered committee, pertaining to Shri Saren's allegations dated 08.05.2019, against other SAS, SOs, Lab I/C and staff members of Civil Laboratory, the committee found all of his complaints to be meritless and opined to dismiss the case.
In view of the above, Shri G Saren, S. A. (Civil), NTH(ER) is hereby cautioned not to lodge such baseless complaints and repetition of such kind of acts will attract the visions of CCS. Conduct Rules.
Sd/-
(U. Thanu) . Director General, NTH"
The respondent authorities would also furnish, during hearing, the proceedings of the three-member Inquiry Committee which had unanimously ME 9 OA 352/2020 .opined that, "all such complaints have been found to be meritless", liable to be dismissed, and, that the complainants may be asked to maintain office decorum and to adhere to the CCS (Conduct) Rules.
(iii) During the course of the preliminary investigation on the allegation of sexual misconduct, i.e., on 12.04.2019, the applicant had been shifted to | another laboratory to monitor the work of CPWD. The respondents would allege that, instead of concentrating on the assigned work, the applicant created issues earlier unheard in the said unit.
While the proceedings of the Internal Complaint Committee was under
progress, the complainant/ orivate respondent no. 10 furnished a written request dated 25.02.2020 (annexed at Annexure-R/2 to the Reply) which was further recommended by the Chairperson of the Internal Complaint Committee as per Section 12 (1) of the Act 14 of 2013 as under :-
"Date: 05.03.2020 To The Director General, National Test House, Salt Lake, Kolkata-700091 Subject: Request for transfer of accused.
Sir, With due respect, it is understood that Shri Gautam Saren, SA(Civil), NTH(ER). Kolkata was transferred to LM Lab. vide Office Order No. 53/2019 dated 05.04.2019 to reduce pendency of samples and again was directed to get attached with Shri B. R. Mondal, Sc.C{Elect.), NTH(ER), Kolkata vide Office Order No. 58/2019 dated 12.04.2019 to look after all CPWD related works for . Civil Division in view of the complaint of harassment by her male colleague in her own Division ° lodged by Miss Ankita Biswas, SA(Civil), NTH(ER), Kolkata on 3rd April 2019.
This transferred was done as a preventive measure for protection of Miss Ankita Biswas and also providing an opportunity to Shri Gautam Saren to rectify himself. Inspite of this he did not correct himself, but resorted again to more violent activities by deliberate pushing and stamping on Ankita's feet (Complaints of Miss Ankita Biswas dated 02.01.2020 & 17.01.2020 are enclosed herewith). After these two incidents Miss Ankita Biswas was really feeling unsafe and put a written request to the Internal Complaints Committee to make some arrangement for the transfer of Shri Gautam Saren to another region (Ankita's letter Dated 25.02.2020 is enclosed herewith). at.
a O 10 OA 352/2020 By these type of acts, it is proved beyond doubt that Shri Gautam Saren did not rectify himself and continued his detrimental activities in a more aggressive fashion. His act of aggressiveness has instilled a fear on the part of all the lady officials in the office and as such his continuation in Kolkata might bring out further cases sexual harassment in a bigger form. His violation of CCS Conduct Rules may please be noticed of.
As per Sec, 12(1) of "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (No. 14 of 2013) for 'Action during pendency of inquiry', Internal Complaints Committee regarding sexual harassment hereby recommend Shri Goutam Saren, SA (Civil) to be transferred to any other workplace (other region) immediately without delay , Thanking you, Enclo: As above.
Yours faithfully, Sd/-
(SUDIPTA MALLIK], Sc.B (Chem.)/ Chairperson of internal Complaints Committee for Investigation of Sexual Harassment"
The authorities, thereafter, transferred the applicant vide their orders dated 06.03.2020 to NTH, Jaipur (annexed at Annexure- A/17 to the OA) on receipt of which, the applicant applied for medical leave and also approached this Tribunal. The applicant stated that he was unable to join on account of the pendency of the Covid situation. The respondents however, would highlight that, his transfer orders were issued on 06.03.2020, his medical leave expired on 19.03.2020 and the lockdown on account of Covid started only from 23.03.2020.
The applicant was repeatedly directed to resume his duties, but reportedly, the applicant refused to receive any documents issued to him by speed post or through the official messenger.
Vide a peremptory letter of the authorities dated 29.08.2020, the applicant was notified that, if he fails to join his duties or to take steps to regularize his leave for the interim period, such period would be treated as dies non. Such letter was returned with the postal note as "refused". Accordingly, treating his Mh 11 OA 352/2020 QO 7 _absence as unauthorized, the competent authorities issued another charge memorandum dated 15.12.2020 which returned as "undelivered" and a penalty order was thereafter issued on 17.03.2021, which the applicant refused to accept, as per the records of the respondent authorities.
4. The applicant's primary cause of action is against the transfer order dated 06.03.2020 as further reiterated in the written notes of his Learned Counsel. At page 14 of the same, Learned Counsel would record that "the petitioner was transferred to NTH (NWR) Jaipur and was asked to join there on 09.03.2020 which is the subject matter of this present case". This Tribunal would, hence, proceed to examine the claim of the applicant in regard to the alleged irregularity of his / transfer.
5. The applicant would challenge his transfer basically on three grounds:-
(i) The transfer of the applicant was punitive in nature given that it was initiated on the basis of the recommendation of the Chairperson of the Internal Complaint Committee set up for investigation of sexual misconduct.
(ii) According to the applicant, actions under Section 12 (1) of the Act 14 of 2013, can only be taken after substantiating the charges of the complainant, prima facie and, that the respondents have overreached their jurisdiction in transferring the applicant.
(iii) The transfer is the result of malafide intentions of respondents as the applicant has been acting as a whistleblower against alleged irregularities of the respondent organization.
6. It is trite that transfer is an incident of service and, so long as the authority acts keeping in view the administrative exigency and taking into consideration the public interest as the paramount consideration, it has unfettered powers to effect transfer subject to observance of norms and certain discipline. The Tribunals are not expected to interdict the working of the administrative system by transferring officers to suitable places of posting as it is the prerogative of the administration to take such appropriate decisions.
beh 12 OA 352/2020 Al In this regard, reference is made to the judgment of the Hon'ble Apex Court in the case of E.P. Royappa vs. State of T.N. (1974) 4 SCC 3, which is appropriate at this juncture, and, wherein it has been held as under :-
"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilize the services of its | employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest.
FOP Dee On a Nee re nen eae Edd eOe ee SOT EH DO CCE EER OSD DER DFH OED DER EER SED SEO ODDEST In the matter of Union of India vs. H. N. Kirtania (1989) 3 SCC 445, the Hon'ble Apex Court has held as under :-
" Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mata fides."
The above dictum was reiterated in Shilpi Bose vs. State of Bihar (1991) Supp | 2 SCC 659 referred to by the respondents, wherein the Hon'ble Apex Court has held as under :-
"4. in our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. Oe eee ren man nar ee eee nee srs aet ere Oe eat TOE DUEL EEO DED DIP OEP EOS CRCEDSEREOPE SON SREREE Such views find resonance in the case of Union of India vs. S. L. Abbas (1993) 4 SCC 357, wherein the Hon'ble Apex Court has stated as under :-
(with emphasis supplied) "6, 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". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is ae 13 OA 352/2020 ral -' not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, -- though the Tribunal does say so merely because certain quidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of quidelines. They do not have statutory force.
X XX XXKX XXXX XXX XXXX XX XXXX XXX XXX XX XXX XK XX The Administrative Tribunal is not_an_appellate authority sitting in judqment_over the orders of transfer. It cannot substitute its own judgement for that_of the authority competent to transfer."
In the case of State of M.P. vs. S. S. Kourav (1995) 3 SCC 270, further relied upon by the respondents, the Hon'ble Apex Court has observed as under :-
i .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 mala } fides or by extroneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place." In CGM Telecom N. E. Telecom Circle and Another (1995) 2 SCC 532, the Hon'ble Apex Court has held as under :- | "7. It is needless ito emphasise that a government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be 14 OA 352/2020 0 a disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimapur."
In the case of Union of India vs. Ganesh Dass Singh (1995) Supp (3) SCC 214, the Hon'ble Apex Court observed as under :- (with emphasis supplied) "4, In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Depot. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons."
In Abani Kanta Ray vs. State of Orissa 1995 (sup) 4 SCC 169, the Hon'ble Apex Court has held as under :-
"10. 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 mala fides or infraction of any professed norm or principle governing the transfer.(See N. K. Singh vs. Union of India). The transfer of D. N. Mishra in this background being clearly in public interest, there was no permissible ground available to the Tribunal for quashing it. We are constrained to observe that the Division Bench of the Tribunal which made the impugned order dated 26-08-1993 quashing the transfer of D. N. Mishra on the ground of malice of the appellant as the Chairman of the Tribunal did so against the material on record and the facts beyond controversy which borders on judicial impropriety. "a ' In National Hydroelectric Power Corporation Ltd. vs. Bhagwan and Shiv Prakash (2001) 8 SCC 574, it has been held as under :-
CoD rae ouer recesses eee ton DenDeEDer rer Den cee oes oreneresee Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the Made ' 15 OA 352/2020 CO - 'appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."
In State of U.P. vs. Gobardhan Lal (2004) 11 SCC 402, the Hon'ble Apex Court has stated as under :-
"7 0 Sheen One een eme eee ten SET OEh OES TEESE EO OHDONOSES ERE DSS STC UCS HEH OEDD Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."
In Union of India vs. Janardhan Debanath and Anr. 2004 (4) SCC 245, it has been held as under :- {emphasis supplied) "The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions--status, service prospects financially--and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or transmission and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to_ maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration."
In State of U.P. vs. Siya Ram, (2004) 7 SCC 405 , also relied upon by the respondents, the Hon'bie Apex Court has stated as under :-
Pen neasenTer rer ree oeetocenecuoseoeerereere 16 OA 352/2020 . at .' 'The courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned."
In the case of Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey, (2004) 12 SCC 299, the Hon'ble Apex Court has held as under :-
"4, Transfer which is an incidence of service is not to be interfered with by courts unless it is . shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray vs. State of Orissa). Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the court cannot interfere with it (see Union of India vs. S. L. Abbas). Who should be transferred and posted where is a matter for the administrative authority to decide."
The Apex Court in the case of Somesh Tiwari vs. Union of India (2009) 2 SCC 592, relied upon by applicants, has further ruled that, if the transfer is based on any anonymous complaint or if the same is in lieu of punishment, the transfer order could be held as invalid. The Court, has in particular, held as under :-
"
LG. cessssssvsecssrenssseenesvecseenessessescssenseesaveesees The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint.
FED ORO RRA OOO R ER OEE INET ERS EC PER ECC EUS EEE ERO O DEERE ORT EDA NOE SED DED OED EEN DES SeT EEE RES ERE SES OOF In the case of Rajendra Singh vs. State of Uttar Pradesh (2009) 15 SCC 178, the Hon'ble Apex Court reiterated its earlier views as under :-
"8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not . only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No government can function if the government servant insists that once appointed or posted in a particular oe 17 OA 352/2020 . place or position, he should continue in such place or position as long as he desires (see State of U.P. vs. Gobardhan Lal).
' 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides,"
Hence, the law regarding interference by Court in transfer/posting of an employee, is well settled in terms of such judicial decisions and the conclusions may be summarized as under :-
a. Transfer is a condition of service.
b. It does not adversely affect the status or emoluments or seniority of the employee.
c. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular period of time. d. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. e. Transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee nor it should be passed under political pressure. f. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory rules or malafides are established. g. In case of malafide, the employee has to make specific averments and should prove the same by adducing impeccable evidence. h. The person against whom allegations of malafide is made should be impleaded as a party by name.
in 18 OA 352/2020 C 'i, Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental! personnel.
j. The Court does not have the power to annul the transfer order only on the ground that it will cause inconvenience to the employee, his family members and children, as consideration of such personal grievance is the exclusive domain of the employer.
7. In the instant case, while the applicant would allege that the transfer was | punitive in nature, we find that there has been a distinct departmental proceeding initiated against him which has culminated on 13.04.2021 in reducing z, 4 the applicant's basic pay to the minimum of the existing pay scale for a period of five years with further direction that he will not earn increments of pay during the period of such reduction and the reduction will not have the effect of postponing the future increments of pay as per rule 11 (v) of the CCS (CCA) Rules, 1965.
Accordingly, it cannot be said that this transfer was used as a cloak to camouflage
- the intended punitive action of the respondents.
At the outset, a distinction needs to be made between a "punitive transfer"
and an "order of transfer". In the case of punitive transfer, the employee is transferred in lieu of proceedings against him for misconduct and subsequent penalty. Such orders of transfer which are used as a cloak for punishment would reflect malafide exercise of power. If there are allegations of misconduct against an employee, the appropriate course would be to initiate disciplinary proceedings and to penalize the employee as per service rules. Further, a transfer in such circumstances would only encourage the employee to further his misconduct at the transferred place of posting and such transfer would only strengthen his ° appetite for indiscipline.
nh, "
19 OA 352/2020
e -" "As held in C. C. Kar vs. State of West Bengal, 1985 0 Supreme(Cal) 363, there is no power to transfer by way of punishment. This view was reiterated in Syndicate Bank Ltd. vs. Workmen in AIR 1966 SC 1283 and in State of Uttar Pradesh vs. Jagdeo Singh 1984 (2) SLR 148 (SC).
If the transfer order, however, precedes the proceedings initiated against the employee for misconduct, the very act of transfer cannot be termed to be penal. This view was held in Amar Singh vs. State of Madhya Pradesh 1982(3) SLR 529 | (AL-DB).
Accordingly, in the light of Amar Singh (supra), the transfer order dated 06.03.2020 cannot be interpreted as a punitive transfer, rather it is a transfer which has been directed to maintain basic decorum, ethics and healthy working atmosphere in the workplace.
8. The applicant's next contention is that the provisions of Section 12 (1) of the Act 14 of 2013 can only be implemented after the Internal Complaint Committee has concluded its findings. The provisions of Section 12 of the Act 14 of 2013 is quoted as below :- (with supplied emphasis) "12, Action during pendency of inquiry. -
(1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to --
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman as may be prescribed. (2) The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
(3) On the recommendation of the Internal Committee or the Local Committee, as the case - may be, under sub-section (1), the employer shall implement the recommendations made hot,
--
'4 20 OA 352/2020Q _', under sub-section (1 ) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be."
This Section 12 (1) of the Act 14 of 2013 is therefore applicable during the | pendency of the enquiry, and, on a written request by the aggrieved woman. In the instant context, the transfer was directed during the pendency of the enquiry which concluded in October 2020, such transfer was ordered on the written request by the aggrieved woman dated 25.02.2020 (annexed at Annexure-R/2 to the reply). The Chairperson of the Committee has summarized the reasons for his, transfer in her recommendation dated 05.03.2020 in which, the Chairperson has observed that, the applicant's aggressiveness has instilled fear on the lady officers in the office which violates the provisions of Section 19 (a) of the Act. Section 19 (a) of Act 14 of 2013 provides that the employer has the following mandatory duties with respect to the workplace :-
"19. Duties of employer. - Every employer shall-
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
(f) make available such information to the internal Committee or.the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
her "
= 21 OA 352/2020_ (h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place; --
(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal Committee."
Hence, in ensuring a safe working environment for women scientists, the respondents could not be alleged to have overreached their jurisdiction.
This Tribunal, would also be guided herein by the ratio in Janardhan ) | Debanath (supra), which states that unless the transfer has adverse effects on service conditions of the employee, utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in service. The Hon'ble Court has further held that the prima facie situation of the authority concerned, and the contemporary reports about the occurrence, would be sufficient to order the transfer of the employee to regain discipline in the working conditions of the concerned office.
The proceedings of the preliminary investigation committee and that of the Internal Complaint Committee (annexed at Annexure-WNA/1 of written notes of arguments of respondents) reveal that there was a crying need to restore respect for lady colleagues, to restore office discipline, work ethics and to revive the morale of the lady scientists of the respondent organization. Hence, the ratio of Debnath (supra) would squarely apply in this situation.
9. The applicant would allege that his transfer is the outcome of the malafide intent of authorities on account of the fact that he was a whistleblower against alleged irregularities of the respondents. The Hon'ble Apex Court, in Ganesh Das Singh (supra) has ruled as under :-
oA, "
te 22. OA 352/2020
The respondent also alleged that his superiors were annoyed on account of his trade union activities and the complaints made by him in that capacity about the functioning of the
- Depot. The Tribunal did not accept the respondent's contention that the transfer was made on account of the complaints made by the respondent about the functioning of the Depot. However, the Tribunal appears to have been influenced by the respondent's assertion that his trade union activities had influenced the transfer. Accordingly, the Tribunal held that the transfer order had been made in colourable exercise of power. The transfer was accordingly © quashed.
4, In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons - particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Depot. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. it is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons.
5. Consequently, the appeal is allowed and the impugned order of the Tribunal is set aside. No costs.
"a > We note therefrom that such allegations are not within the scope of permissible judicial review. |
10. The applicant would bring forward judicial orders to question the delay in concluding the proceeding of the Internal Complaint Committee as well as other irregularities thereof. As the instant cause of action is primarily to assail his | transfer order, this Tribunal will not enter into the issues relating to the conduct of the proceedings of the Internal Complaint Committee as that would constitute a separate cause of action.
11. The applicant's allegations against the transfer on the ground that it is punitive or that it violates the legal provisions of the Act 14 of 2013 is therefore not substantiated. No statutory provisions or norms were violated in issue of such transfer order. The transfer order, having preceded the disciplinary action, z bg, on 23 OA 352/2020 cannot be held to be punitive. The applicant has not been able to successfully prove any malafide against the respondent authority or private respondent no. 10 as his complaints alleging irregularities in the respondent organization were initiated after the allegation of sexual misconduct against him. Moreover, the rulings in Amar Singh (supra), Debnath (supra) and that in Ganesh Dass singh (supra) would squarely apply in this case. Hence, this Tribunal would be of the considered view that, there is no reason to intervene with the transfer order, so impugned.
12. The OA is therefore, considered to be devoid of merit and is dismissed accordingly.
There will be no orders on costs.
a a"
| | fo \ (Dr. Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member sl