Central Administrative Tribunal - Mumbai
Kshirod Kumar Parhi vs Western Railway on 24 January, 2022
1 OA No. 504/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.504/2021
Dated this Monday the 24th day of January, 2022
CORAM: RAVINDER KAUR, MEMBER (J)
Kshirod Kumar Parhi
(Son of Giridhari Parhi),
Date of Birth:16.05.1968,
Age 53 years 08 Months,
Working as:Dy.Chief Ticket Inspector (Dy.CIT)
(Group "C" Post) in the office
of DCTI/GTR, Western Railway,
Churchgate, Mumbai - 400 020,
and residing at :401, B-26,
Sector-9, Shanti Nagar,
Mira Road (East),
District - Thane,
State of Maharashtra-Pin Code 401 107.
Cell:8369807358/9594555170
email id:[email protected] ... Applicant
(By Advocate Shri R.G. Walia)
Versus
1. Union of India
Through:General Manager,
Western Railway,
Headquarters' Office,
M.K. Road, Churchgate,
Mumbai - 400 020.
2. DRM (Divisional Railway Manager)
DRM's Office, Western Railway,
Mumbai Central, Mumbai - 400 008.
3. S.D.G.M.
(Senior Divisional Railway Manager)
DRM's Office, Western Railway,
Mumbai Central,
Mumbai - 400 008. ... Respondents
(By Advocate Shri S. Ravi)
2 OA No. 504/2021
ORDER
PER: RAVINDER KAUR, MEMBER (J)
The present OA has been filed challenging the Inter-Divisional Transfer vide impugned order dated 10.08.2021 whereby the applicant working under DCTI/GTR of MMCT Division has been transferred to ADI Division under vigilance advise. The applicant is presently working on the post of Dy. CTI (Deputy Chief Ticket Inspector), a Group 'C' post. As per the applicant, his seniority is maintained and fixed for Mumbai Division and his progression in service is also based on his seniority maintained in Mumbai whereas now he has been transferred to an all- together different seniority unit (Ahmedabad Division) maintained in another Division of Western Railway. The applicant claims that it is a punitive transfer on account of pendency of departmental proceedings against him initiated by the vigilance department vide Memorandum dated 05.01.2021. He claims that he has not committed any misconduct and has termed the issuance of chargesheet as bad and motivated. He further claims that there are no allegations of corruption and no excess money was recovered from 3 OA No. 504/2021 his possession. Since the transfer order has been issued on vigilance advise, the concerned authority has not applied his mind before issuing the same.
2. The applicant further claims that the Inquiry proceedings are already going on against him at headquarters office of Western Railway, Churchgate Mumbai. Since the applicant has been transferred to Ahmedabad Division on the basis of the departmental inquiry, which will continue to be conducted at Mumbai, the transfer is only with a view that he is unable to defend these proceedings effectively.
3. The impugned order is also against the Railway Board order dated 10.06.2014 issued by the Railway Board on implementation of the judgment of the Hon'ble Supreme Court in the case of T.S.R. Subramanium & Ors. Vs. Union of India, Writ Petition (C) No.82/2011 dated 31.10.2013. The said order has not been complied with before issuing the impugned order as no placement committee in terms of Railway Board order was constituted. The applicant could not be transferred without the recommendations of such placement committee.
4 OA No. 504/2021
4. The applicant further claims that in case the impugned transfer order is effected, he is going to loose his promotion of CTI(Chief Ticket Inspector) in Mumbai. He relies upon the Indian Railway Establishment Code (IREC) Para 226 in support of his contentions and claims that as per this rule, the applicant who is a Group 'C' employee cannot be transferred out from Mumbai. He further submits that he has never been served with the transfer order and he obtained the copy of the same from a recognised union. The applicant is being victimised by vigilance department. His transfer is neither in public interest nor in administrative interest. He claims that in terms of para 226, an employee would 'ordinarily' remain employed throughout his service on the railway or Railway Establishment to which he is posted for the first time. There is no policy or rule to post the applicant out of the Division at all.
5. The applicant further contends that under Para 226 of the IREC, the power to transfer a Group Ç' and D Railway servant from one Division to another vests only with General Manager. Such power should not be exercised for extraneous 5 OA No. 504/2021 purpose or without reasonable cause. Whereas in the present case, it has been used for extraneous reason at the instance of the Vigilance Department.
The General Manager to whom the powers have been delegated by President of India, he further cannot delegate the same to CCM or any other lower authority.
6. The impugned order has been issued maliciously and purely under the dictates of the Vigilance Department which is against the law laid down by the Hon'ble Apex Court in the cases of Somesh Tiwari Vs. Union of India & Ors., 2009 (1) SCC (L&S) 411 and P.K. Jain Vs. Union of India, Central Administrative Tribunal, OA No.109/2010 decided on 30.07.2010.
7. Since no excess amount was recovered from the applicant, it shows there was no exchange or collection of any illegal money by him.
8. The disciplinary proceedings initiated by the Vigilance Department vide charge sheet dated 05.01.2021 are bad in law as the applicant has not committed any misconduct. There is no allegation of corruption and no excess money was recovered from his possession. The impugned order is termed as illegal, arbitrary and malafide. 6 OA No. 504/2021
9. The respondents have filed detailed affidavit in reply to the OA and thereafter in reply to the rejoinder filed by the applicant. They have denied all the averments and statements made by the applicant and have raised the following contentions:-
(i)The applicant was issued a major penalty chargesheet dated 05.11.2019 (Annex R-1) as per vigilance advise. The vigilance had also advised that the applicant should be transferred out of the division vide impugned order Annex A-1. In the aforesaid disciplinary proceedings, the applicant was imposed the penalty of Reduction from level 6 to level 5 by one stage for a period of one year with future effect and effecting seniority vide order dated 15.02.2021 (Annex R-2) i.e. the penalty order.
The appeal of the applicant against the said order is pending before the Appellate Authority.
(ii). Another chargesheet dated 04.01.2021 (Annex R-3)as per the vigilance advise was issued to the applicant. In this case also, the vigilance advised inter divisional transfer of the applicant. The inquiry in the 7 OA No. 504/2021 said chargesheet is in the process.
(iii) Regarding the contention of the applicant that the Hon'ble Apex Court in the case of T.S.R. Subramaniam (supra), to curb arbitrary, illegal and whimsical orders of transfer had issued directions to constitute a committee to consider the cases of transfer, the respondents have stated that in terms of Railway Board letter dated 17.06.2016 (Annex R-4) the transfer order on vigilance's recommendation need not be routed to placement committee. It is only the regular/routine transfers as per Railway Board letters dated 10.06.2014, 21.09.2015 and 21.05.2018 respectively which are routed through the placement committee. However, the transfer of the applicant is on vigilance advise in the interest of public and administration in terms of Railway Board letter dated 17.06.2016, therefore such transfer on the recommendation of the vigilance need not be routed through placement committee. Moreover, the transfer order was issued with the approval of Competent Authority.
(iv) The respondents also state that even in cases where there is vigilance advise for inter 8 OA No. 504/2021 division transfer, it is the discretion of the Disciplinary Authority after considering the facts of the case to decide whether the employee should be transferred or not. In the present case, the Disciplinary Authority decided that the applicant should be transferred out of the division.
(v) Regarding the averment of the applicant that he was not served with the copy of the impugned transfer order, the respondents state that all the orders issued by the Mumbai Central Division Railway are uploaded on the official site of Ekarmik/BCT, BCT Division of Western Railway which can be viewed by all the BCT Railway employees. The copy of impugned order dated 10.08.2021 was also uploaded on this web site.
The respondents have prayed for dismissal of the OA.
10. The applicant has filed rejoinder to the reply filed by the respondents whereby he reaffirmed his assertions in terms of the OA.
(i) It is reiterated that the applicant has never been chargesheeted or punished for any malpractice, corruption etc. There has never 9 OA No. 504/2021 been any complaint against the applicant with regard to demand or acceptance of any illegal money/gratification. The inter-divisional transfer orders are always issued where there is charge of corruption and proven malpractice which is lacking in the present case.
(ii) The applicant further stated that the impugned order is directly against the Railway Board order dated 30.10.1998 which clearly provides that the cases of staff who have repeatedly figured in substantiated vigilance cases and where penalties have been imposed with regard to corruption and malpractice may be transferred after reviewing at appropriate level on inter-divisional basis. There is no charge of corruption or malpractice against the applicant in the present case.
11. The respondents in sur-rejoinder state that DRM has full power under Para 226 of IREC relating to transfer of Non-Gazetted staff in inter-divisional transfer as mentioned in the schedule of power issued by the Railway Board and its relevant extract is R-5.
(i) The respondents have relied upon para 4.7 of Master Circular No.24 (Annex R-6)applicable to 10 OA No. 504/2021 Railway regarding transfer of Non-gazetted Railway Servants which reads as under:-
4.7 Ticket checking staff, detected indulging in malpractices, should be sent on inter-Divisional transfer, as a matter of policy. They may be transferred to an adjoining Division on the same Railway.
They may also be transferred to a Division on another Railway adjoining their parent Railway, if they make a request to that effect. The ticket checking staff, who have been so transferred out of the existing Division on complaints of corruption and later exonerated or awarded a penalty of censure should not be brought back to the parent Division, even if they so desire.
[Ref:Board's letter No.E(NG)I/80/TR/28 dated 19.02.1986 (RBE 35/86)] G.M's may, however, personally review cases of inter-Divisional transfers of Ticket Checking Staff orders on suspicion of malpractices if after proper enquiry, the staffs are fully exonerated. The review will be done personally be the Gms and the powers in this regard should not be delegated to any other authority. Where the transfer has been ordered at the instance of the Board, a reference to the Board is necessary.
[Ref:Board's letter No.E(NG)I/80/TR/28 dated 13.04.1989 (RBE 102/89)].
(ii) The respondents have relied upon the judgment of Ganesh Din Vs. Union of India, Writ Petition (c) No.6082/2005, decided on 15th September, 2006.
12. We have heard arguments of learned counsels for the parties and gone through the material available on record carefully. 11 OA No. 504/2021
13. The issue of transfer and posting has been considered time and again by the Hon'ble Supreme Court and the entire law has been settled by a catena of decisions. It is the prerogative of the competent authority to decide when, where and at what point of time, a Govt servant is to be transferred from his/her present place of posting. It is settled proposition of law that transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. An employee does not have any vested right to remain posted at a particular place of his choice.
The Hon'ble Apex Court in the case of
Gujarat Electricity Board & Anr vs Atmaram
Sungomal Poshani reported in 1989 SCR (2) 357 observed as under:
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to other is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public Administration."
In Union Of India & Ors vs H.N. Kirtania reported in 1989 SCR (3) 397, the Hon'ble Apex Court observed as under:
12 OA No. 504/2021
"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 mala fides."
In Shilpi Bose (Mrs.) and others Vs. State of Bihar and others reported in (1991) 2 Supp. 659, the Hon'ble Apex Court observed that -
"In our opinion the Court should not interfere with the transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order and instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day- to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders."
In case of State of M.P. and others Vs. S.S. Kourav and others, reported in 1993(3) SCC 270, it was held:
"The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous considerations without any factual background foundation. In this case transfer orders having been issued on administrative grounds, expediency of those orders cannot be examined by the court."13 OA No. 504/2021
In State Bank Of India vs Anjan Sanyal, CA No. 226/1997, the Hon'ble Apex Court observed as under:
"An order of transfer of an employee is a part of the Service conditions and such order of transfer is not required to be interfered with lightly by a Court of law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order."
In State Of U. P. & Ors vs Gobardhan Lal, CA No. 408/2004, the Hon'ble Apex Court observed as under:
"It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. 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 contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. 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. "
"A challenge to an order of transfer should normally be 14 OA No. 504/2021 eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
In case of Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, reported in AIR 2006 SC 2609, it has been held:
"While exercising the power of judicial review of administrative action, the Court is not the appellate authority and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Ashif Hamid v. State of J.& K. (AIR 1989 SC 1899), Shri Sitaram Sugar Co. v. Union of India (AIR 1990 SC 1277). The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere."
14. During the course of arguments, the learned counsel for the applicant has made the following submissions:-
(i) The transfer order is against the Railway Board order No.250 of 1998 dated 30.10.1998.
(ii) The transfer order is violative of the Railway Board Order dated 10.06.2014 as no 15 OA No. 504/2021 placement committee was constituted and the applicant could not have been transferred without the recommendations of such committee.
(iii) The transfer order is violative of Para 226 of IREM
(iv) The applicant who is presently working on the post of Deputy Chief Ticket Inspector, a Group 'C' post, his seniority is maintained and fixed for Mumbai Division. Now on being transferred to a different division of Western Railway, he is going to loose his seniority.
(v) The applicant has not committed any misconduct and there is no allegation of corruption against him.
(vi) The transfer is not in the public interest or administrative exigencies.
(vii) The transfer order is illegal, arbitrary, malafide and punitive as it is based on the recommendations of the vigilance advise.
15. I have gone through Para 226 of IREC which reads as under:-
"226. Transfers - Ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or another establishment in the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other Department or railway or railway establishment including a project in or out of India.16 OA No. 504/2021
In regard to Group C and Group D railway servants, the power of the President under this rule in respect of transfer, within India may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated."
On perusal of the above, it is crystal clear that generally a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on his first appointment and cannot seek transfer as a matter of right to another railway or another establishment. It further finds mention that it is only the President who shall transfer the railway servant to any other department or railway or railway establishment including a project in or out of India.
So far Group 'C' and Group ''D' railway servants are concerned, the power of the President under this rule in respect of transfer within India may be exercised by General Manager or by a lower authority to whom the power may be re-delegated.
16. The contention of learned counsel for the applicant that as per Rule 226, the applicant, who is a Group 'Ç' employee cannot be transferred out from Mumbai division, is incorrect interpretation of the Rule. There is no ambiguity in the language of the rule and it can be read 17 OA No. 504/2021 only with one meaning that Group 'Ç' and 'D' railway servant within India can be transferred to another railway or another establishment or a project in India by the General Manager to whom the power of President in respect of transfer is delegated. The power can further be re-delegated to a lower authority. In the present case, the impugned order of inter division transfer of the applicant has been issued by the DRM. As pointed out by learned counsel for the respondents to Annex A-5 i.e. the Schedule of Power issued by Railway Board, in respect of the inter-divisional transfer, DRM has full power to issue such order. So I do not find any substance in the contention of learned counsel for the applicant that by issuance of the impugned order of inter divisional transfer by DRM, there is any violation of Rule 226.
17. The other objection taken by the applicant to the impugned transfer order is to the effect that the same is indefiance of the Railway Board order No.250/1998 dated 30.10.1998 which is reproduced as below:-
18 OA No. 504/2021
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD)
-------
NO. E(NG)I-98/TR/11 NEW DELHI, dated 30.10.1998 The General Manager, All India Railways.
(As per standard list).
Sub.: Inter-divisional transfer of staff repeatedly figuring in Vigilance cases.
-------
1. The question of effecting inter-divisional transfer of staff repeatedly figuring in vigilance cases and where penalties have been imposed, was discussed in the Conference on Malpractices and Corruption in mass contact areas organized by the Ministry of Railways on 10.7.1998.
2. It has been decided that the cases of staff who have repeatedly figure in substantiated vigilance cases and where penalties have been Page 3127 imposed, should be reviewed at appropriate level and such staff transferred on inter-divisional basis.
Please acknowledge receipt.
Sd.: J.S. Gusain.
Joint Director Estt. (N), Railway Board."
The aforesaid Railway Board order provides that the staff who repeatedly figured in substantiated vigilance cases and where the penalties have been imposed with regard to corruption and malpractice may be transferred after reviewing at appropriate level on inter divisional basis. It is argued by Shri Walia that there is no charge of corruption nor there is any complaint with regard to malpractice against the applicant, therefore, the applicant could not have been subjected to inter-divisional transfer. 19 OA No. 504/2021 On the other hand, learned counsel for the respondents has brought to my notice that the applicant had faced disciplinary proceedings vide major penalty chargesheet dated 05.11.2019 with the following statement of article of charge :-
"During the vigilance check of coach No.A2 on date 10.08.2019 in train no.12472 between DRD-BDTS stations, 04 HT passengers were detected travelling in coach no.A2 manned by Shri K K Parhi without realizing the due railway charges. These irregular passengers were regularized ruing the vigilance check and an mount of Rs.2520/- was realized vide EFT No.D0861247. Thus he violated Railway Board guidelines No.98/TG-V/12/1 dtd 11.09.1998 and Para-308 of IRCM Vol.I. Thus by his above act of commission and or omission, Shri K K Parhi, Dy.CTI/BDTS violated Railway Boar's guideline issued vide No.98/TG-V/12/1 dtd 11.09.1998 and Para-308 of IRCM vol.I which tantamount in violation of Rule No.3.1(i), 3.1(iii), 3.1(xviii) & 3.1(xxi) of Railway Services Conduct Rules, 1966."
On conclusion of the inquiry proceedings, the Disciplinary Authority concurred with the Inquiry Officer's report and held that the applicant while working as Coach Conductor manning Coach Nos.A1, A2 and B1 in train No.12472 on 10.08.2019 committed gross misconduct and on his surprise vigilance check, four irregular passengers were detected in A2 coach who were regularised during the vigilance check and an amount of Rs.2520/- was recovered. It is observed in the penalty order that the applicant had 20 OA No. 504/2021 though received the inquiry report, he did not submit any defence against the alleged charges to prove his innocence. Penalty of "Reduction to lower time scale of pay by one stage for a period of one year with future effect with effecting seniority" was imposed upon him.
18. Thereafter, with the identical allegations another major penalty chargesheet dated 04.01.2021 (Annex R-3) was issued to the applicant and the Disciplinary proceedings are pending against him with the following statement of article of charges:-
"Statement of Article of charges against Shri K K Parhi, Dy.CTI/BDTS(BCT Div) (P.F. No.29401744) Annexure I Shri K K Parhi, Dy.CTI/BDTS while working in train No.14708 manning coaches A/1, B/1 to B/4 on 08.12.2019 between BDTS to ADI committed gross misconduct in as much as that:-
Shri K K Parhi, Dy.CTI/BDTS while working in train No.14708 manning coaches A/1, B/1 to B/4 on 08.12.2019 failed to regularised 30 TOT, 2 WT and 1 HT passengers travelling without proper authority in the coaches manned by him. Rs.57,370/- was recovered by regularising these passengers. Thus, violating para 101, 308 and 522(a) of IRCM Vol.I. Thus by his above act of commission and or omission, Shri K K Parhi, Dy. CTI/BDTS failed to exhibit devotion to duty and acted in a manner of unbecoming a railway servant thereby violating which tantamount in violation of Rule No.3.1 (ii)and
(iii)of Railway Services (conduct) Rules, 1966."
19. Shri Walia has vehemently argued that there is no charge of corruption and malpractice in either of the chargesheets against the 21 OA No. 504/2021 applicant nor any excess money was recovered from his possession during both the surprise vigilance checks. Therefore, there is clear defiance of Railway Board No.250/1998 and the applicant could not have been subjected to inter-divisional transfer. Admittedly, there are no charges of corruption against the applicant vide any of the two abovenoted chargesheets, however, it is to be seen as to whether the conduct of the applicant as alleged in the chargesheet dated 04.01.2021 and proven in one of the chargesheet dated 05.11.2019, where the applicant has been imposed penalty, can be said to be a malpractice. We need to understand the dictionary meaning of word 'Malpractice' which means improper, illegal or negligence behaviour.
20. The applicant has not denied that it was part of his duty to check there was no irregular passenger travelling in the coaches under his control. It was also part of his duty to ensure the tickets of passengers in the coach and to prevent illegal/unauthorized entry in the coach. He was also required to ensure that the number of passengers do not exceed the number of passengers indicated in the reservation chart. It was also 22 OA No. 504/2021 part of his duties to collect dues such as reservation charges/supplementary charges and issue EFTs.
21. In the present case on 10.08.2019, the applicant was manning coach A2 in train No.12472 between DRD-BDTs stations. During vigilance check, some HT passengers were found travelling in Coach A2 without realizing the due railway charges. Later on these passengers were regularised during vigilance check and EFT was issued. In this regard, the applicant was issued Major Penalty charge sheet dated 05.11.2019 with the allegations of gross misconduct. After due inquiry, the applicant was imposed penalty of reduction from level 6 to level 5 by one stage for a period of one year with future effect and effecting seniority vide order dated 15.02.2021. These facts are not disclosed in the OA for reasons best known to the applicant. Instead he claimed that his transfer on account of pendency of disciplinary proceedings is punitive transfer at the behest of vigilance department. As such, he has not approached the Tribunal with clean hands. Thereafter, again on 04.01.2021 the applicant was issued another Major Penalty charge 23 OA No. 504/2021 sheet with identical allegations and the proceedings are pending against him. In view of the above circumstances, I have no hesitation to hold that in both the chargesheets against him there are allegations of malpractice.
22. When the applicant was served with the first chargesheet dated 05.11.2019, the vigilance had advised for his inter-divisional transfer. However, he was not subjected to transfer at that time. It is only after penalty was imposed upon him in the said departmental proceedings and another chargesheet dated 04.01.2021 with identical allegations was issued, the vigilance department again advised for his inter-divisional transfer which led to the issuance of impugned order. Thus, The contention of the applicant that the impugned order is violative of Railway Board's order dated 30.10.1998 is without any merits and substance. Rather, Railway Board letter dated 30.10.1998 is fully applicable to the present case and impugned order is not in- defiance of the same.
23. Time and again there have been discussion on the subject of inter-divisional transfer of ticket checking staff and other staff in Mass 24 OA No. 504/2021 contact areas where such staff is repeatedly figuring in vigilance cases. Railway Board circular dated 02.11.1998 was issued only after discussion in one of such conferences and reads as under:-
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD)
-------
NO. E(NG)I-98/TR/11 NEW DELHI, dated 2.11.1998 The General Manager, All India Railways.
(As per standard list).
Sub.: Inter-divisional transfer of ticket checking staff and other staff in mass contact areas.
-------
1. In terms of existing instructions ticket checking staff detected to be indulging in malpractices, are required to be invariably sent on inter- divisional inter-railway transfer as a matter of policy.
2. The question of feasibility of effecting inter-divisional transfer of staff in mass contact areas including ticket checking staff, was discussed in the Conference on Malpractices and Corruption in Mass contact areas organized by the Ministry of Railways on 10.7.98.
3. Pursuant to the above discussion, it has been decided that while the existing policy of inter-divisional/inter-railway transfer of ticket checking staff detected to be indulging in malpractices shall continue, other staff in mass contact areas detected to be indulging in malpractices should also be transferred on inter-divisional basis.
Please acknowledge receipt.
Sd/-
Join Director Estt.(N), Railway Board."
The above circular is specifically dealing with inter-divisional transfer of ticket checking staff and other staff posted in mass contact areas who are detected to be indulging in 25 OA No. 504/2021 malpractices. This is issued with a view to ensure clean administration.
24. The Hon'ble Delhi High Court in the case of Ganesh Din Vs. Union of India (supra) dealt with the inter-divisional transfer of Group C employee of Railway and made the following observations in Paras 9 and 16 which read as under:
"9.Let us consider the said Rule and Circulars. Rule 226 contemplates the retention of a Railway employee in the Railway or Railway establishment in which he is first posted. The Rule excludes any claim or right on the part of the employee to seek transfer to another Railway or another establishment. Provision is, however, made for transfer to another Railway or another establishment in the exigency of service by the President or by the General Manager or his delegatee in case of Group 'C' and Group 'D' employees. Transfer is thus, provided for only in the exigency of service. It would show that the exigency of service which was contemplated was something more than a usual administrative transfer.
...............
16. The Railways as a matter of policy and in their wisdom have carved out a different treatment for employees, who are either posted in the ticket checking or other areas of mass contact and are found to be indulging in malpractices. Inter divisional transfer for these persons has been provided by the circular dated 2.11.1998. The transfer need not await the completion of departmental inquiry as for the other non- gazetted staff whose conduct is under examination. The objective is to root out corruption totally from the posts, which are in public contact or having public dealings. The different treatment is clearly justifiable based on a reasonable classification and an intelligible differentia. The railways cannot be faulted with for taking strong and vigorous steps to project a clean image and towards that end to effect transfer necessary in public interest. Transfer is an incidence of service and unless the transfer is vitiated by mala fides or by extraneous considerations, the Courts are loathe to interfere. Courts are not expected Page 3129 to interdict the working of the administrative system by interfering in transfers as held by the Supreme Court in the State of Madhya Pradesh 26 OA No. 504/2021 and Anr. v. Sri S.S. Kourav and Ors. . No Government servant or employee has a legal right to be posted at a particular place. Transfer apart from being an incidence of service is also a condition of service necessary in public interest for maintaining efficiency in public administration as held in National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan and Anr. .
25. The other contention of the applicant is that the respondents did not constitute any committee to consider the cases of transfer and thus have violated the judgment of Hon'ble Apex Court in the case of T.S.R.Subramaniam (supra). However, I do not find any such violation on the part of the respondents in issuing the impugned order. The respondents have placed on record Railway Board letter dated 17.06.2016 which clearly finds mention that transfers order on vigilance's recommendation need not be routed through Placement Committee. The Railway Board letter dated 17.06.2016 is reproduced as below:-
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS RAILWAY BOARD No.E(O)III-2014/PL/03 New Delhi, dated 17.06.2016 The General Manager, All Indian Railways/South Eastern Railway (As per Standard List) (Kind Attn:Dy.CPOs/G) Sub:Implementation of Supreme Court's Judgement dated 31.10.2013 in WP(C) 82/2011 - Postings/Transfers in Railways on Vigilance advice 27 OA No. 504/2021 Ref:(i) Board's letters of even number dated 10.06.14, 04.07.14 & 29.08.14
(ii)Eastern Railway's letter dated 04.04.2016 It may be recalled that detailed instructions were issued vide Board's letter of even number dated 10.06.14 & 04.07.14 for constitution of Placement Committees for posting/transfer of all Railway officers/staff. Thereafter certain clarifications were also issued vide letter dated 29.08.14.
2. On a reference received from Eastern Railway requesting Railway Board to exempt transfers on vigilance recommendation from the purview of the instructions above, the matter has been re-examined and it has now been decided by the competent authority that transfers ordered on vigilance's recommendations need not be routed through Placement Committee.
sd/-
(A.K. Sen) Director (Estt.) Railway Board"
26. The applicant has placed reliance on the judgment of Hon'ble Apex Court in the case of Somesh Tiwari (supra). I fully agree with the same. However, the facts before the Hon'ble Apex Court were different from the case in hand. In Somesh Tiwari's case, the Appellant had been transferred on anonymous complaint against him, which was though investigated but nothing adverse was found against him. Hence, while allowing the appeal, the transfer order was set aside.
27. The applicant has also relied upon the case of P.K. Jain (supra), wherein this Tribunal dealt with the issue of transfer of Railway 28 OA No. 504/2021 employee from one division to another in the interest of administration on the basis of the vigilance report. However, the Tribunal was of the view that no complaints pursuant to which vigilance investigation stated to have taken place against the applicant were produced for perusal of the Tribunal. It was also observed that the applicant therein was not served with any chargesheet or memo. Hence, termed the order of transfer as punitive and set aside.
28. Both the aforesaid judgments are not applicable to the facts of the present case as in the present case, the applicant has already faced the Major Penalty chagesheet at the instance of the vigilance or violation of Rule No.3.1(i),
3.1(iii), 3.1(xviii) & 3.1(xxi) of Railway Services Conduct Rules, 1966 (page 92 to be checked) and has also suffered penalty of 'Reduction from level 6 to level 5 by one stage on pay Rs.40,400/- for a period of one year with future effect and effecting seniority'.
29. At present also, the applicant is facing inquiry in another Major Penalty chargesheet dated 04.01.2021 with the identical allegations as in the previous chargesheet. In pursuance to the same, on the vigilance's advised, the 29 OA No. 504/2021 applicant has been subjected to inter-divisional transfer which is in the exigency of service.
30. Another contention of the applicant that he is facing departmental proceedings at Mumbai and the impugned order is with a view to prevent him from defending the same is also of no consequence. Moreover, for the convenience of the applicant, the interest of the administration cannot be compromised.
31. It is within the rights and powers of the respondents to effect inter-divisional transfer of the ticketing and other staff in mass contact, if found indulging in malpractices. In the present case, the transfer order was issued after the conclusion of the departmental proceedings and penalty was awarded to the applicant.
32. The applicant has raised concerned that due to inter-divisional transfer, he would lose his seniority fixed at Mumbai Division which will adversely effect prospects of his promotion. Again, I am of the considered opinion that in this regard, the applicant may approach the respondents vide comprehensive representation for getting his seniority protected and I expect that the respondents on receipt of such a 30 OA No. 504/2021 representation would dispose it of vide reasoned and speaking order.
33. In view of the aforesaid discussions, I find no merits in the Original Application. Hence, the same is dismissed. No order as to costs.
(Ravinder Kaur) Member (J) ma.