Central Administrative Tribunal - Ernakulam
George Kutty V vs The Chief General Manager Telecom on 10 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 763 / 2010
Wednesday, this the 10th day of November, 2010.
CORAM
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER
George Kutty V,
HRMS No.197500003,
Deputy General Manager (IT),
I.T.Project Circle Branch Unit,
1st Floor, Telephone Exchange Building,
Kaithamukku,
Thiruvananthapuram-695 023. ....Applicant
(By Advocate Mr M.V.Thampan )
v.
1. The Chief General Manager Telecom,
Kerala Telecom Circle,
Thiruvananthapuram-695 033.
2. The General Manager(Finance),
O/o Chief General Manager, Telecom,
Kerala Telecom Circle,
Thiruvananthapuram-695 033.
3. The Chairman and Managing Director,
Bharat Sanchar Nigam Limited,
BSNL Bhavan, Jan Path,
New Delhi - 110 001. ....Respondents
(By Advocate Mr N.Nagaresh )
This application having been finally heard on 2.11.2010, the Tribunal on
10.11.2010 delivered the following:
O R D E R
HON'BLE DR K.B.SURESH, JUDICIAL MEMBER The applicant challenges Annexure A-6 order whereby he was posted to Ernakulam as DGM (Finance) with immediate effect. He would say that he even though belonged to the Accounting Service of the BSNL, he had transgressed the beehives of accounting and had gone on to software development and had been integrally involved in the development of system parameters for effective use of BSNL capabilities. His competence was recognised while posting him at IT Project Circle which is actually at Pune but in view of the project undertaken he was allowed to function from Trivandrum. He would say that his presence at Trivandrum is essential for a few days only but after examination of the pleadings it has come out that from 2005 onwards he is consistently at Trivandrum and of course and two other places as well in spells before 2009. He was apparently at Trivandrum for about 4 years from 2005. His contention is that he is suffering from an incurable illness like Crohn's disease which is an allergic ailment causing severe inflammations and ulcers in the digestive system. He would say that he is surviving on steroids for more than a decade. It relates to some kind of proteins present in certain foods. He would say that with advancing age, the problems are aggravating and the mental stress, will aggravate further. He would say that his wife is also a Central Government employee and employed nearby at Thiruvalla a little distance away from it making it difficult for her to enjoin her duties as a Government servant and that as a dutiful house wife she may have to take care of the applicant's mother who had a fracture on her hip a while back. He has only 2 more years to retire and therefore would request for a posting at Thiruvalla. He produces before us Annexure A-1 which indicates a recorded warning issued to him in view of his reluctance in handing over the source code of a programme he had developed for extraction from Trichur billing system for migrating the SSA data to CDR based billing system. The software had a deficiency which can be set at right only through utilisation of source code but for reasons best known to him, he was reluctant to hand over the source key. Apparently, it is felt by the BSNL that his propriety claims that the software cannot be corrected as he had been instrumental in its creation and accepting the salary and other perks as an officer of the BSNL while developing employment related software. However, in view of the contributions the applicant had made, he was only issued with a recorded warning, even though his action had caused the BSNL several additional months of deficiency. They would also claim that in view of the personal difficulties of the applicant, while at Trivandrum he was allowed to operate from his home at Karunagappally as the nature of the job at that time could be only through process of internet with suitable facilities made available at that locale. This the BSNL would point as an indicative factor showing that inspite of animosity and hostility expressed by him, they had treated with him at most concern.
2. The BSNL would say that on his transfer from Pune to Kerala a person of his status is not transferred to a particular post. He will only be transferred to Kerala from where he will be posted according to availability of vacancies and the public interest involved in the development of each set of offices. The applicant had requested for a posting to Thiruvalla on the basis that the said post is vacant but the BSNL would question it that the said post was not vacant at all. The DGM on leave had already come back and had resumed his duties and there is no vacancy. Besides, the BSNL had taken into consideration his past experience and had posted him in at mobile mobility wing at Ernakulam. They would say that he was never posted at Trivandrum so as to give rise to a right in him. He was only reporting for duty to the Chief General Manager at Trivandrum and when he had reported so, he had been daily commuting between Trivandrum and Karunagappally. Thus, they would say that the applicant, even while at Trivandrum had been travelling. They would also say that the applicant had not orally or in writing indicated his preference for any place though he had met the 2nd respondent on 9.8.2010. But before his representation has reached them, the decision about his posting had been approved. Therefore, they would say that his transfer is in public interest and therefore judicial intervention is not called for in the essential features of the case. We had considered the matter from all angles. The applicant's illness seems to be resident on him for the last more than a decade. The frequent travels indicate that even though this disease can vary from very mild to very acute. But in view of the fact that he had been daily commuting from Trivandrum to Karunagappally, it cannot be in a very acute situation. His domestic situation of son studying outside Kerala, bedridden mother and the wife being a Government employee working at a different place other than their place of residence may not be sufficient in itself to defeat the transfer and posting orders of a person of the status of the applicant as the administrative authority is the best judge of the requirement of service. In view of the acknowledged merit of the applicant, the indication of the administrative authorities that he is best suited for Ernakulam cannot be doubted. Besides, such senior officers are liable to be posted anywhere in India. The liability with transfer and relocation are even more evidently present as one go up the the hierarchy even though his retirement age is past approaching. Distance from Ernakulam to Karunagappally would be less than 150 Kms and it is easily accessible by regular train service. It will only be slightly more than the distance from Karunagappallay to Trivandrum. Therefore, we are not convinced that any substantial injustice has visited the applicant. We are more inclined to accept the view of the BSNL that his services are required at Ernakulam and therefore he is posted to Ernakulam.
3. The applicant would claim that his inability to provide the source code as evidence by Annexure A-5 has prejudiced the hostile animus against him and therefore as a punitive measure he has been dealt with by an unfavourable transfer. If the applicant has wilfilly held back the source code when it was sought for it, it constitute a gross misconduct. But Annexure A-1 would indicate that a very lenient view was taken as only a recorded warning was issued to him. That being so, there does not appear to be any hostile animus as reported by the applicant.
4. Therefore, there is no merit in the application and it is, therefore, dismissed. The interim order granted is vacated. The applicant shall be allowed fifteen days' time from today to join his new post at Ernakulam. There is no order as to costs.
DR K.B.SURESH K NOORJEHAN JUDICIAL MEMBER ADMINISTRATIVE MEMBER trs