Central Administrative Tribunal - Delhi
Sh. K.V.R. Raju vs Union Of India & Ors. Through on 28 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA NO.1912/2009 MA NO.1269/2009 MA NO.1374/2009 MA NO.1375/2009 New Delhi, this the 28th day of August, 2009 HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) 1. Sh. K.V.R. Raju Aged 49 years, S/o Late K.S.V. Raju 34B, AG-1 Block, Vikaspuri, New Delhi-18. 2. Sh. J. Aggarwal, aged 52 years, S/o Kalyanmal Aggarwal, 296 D, Pocket-C Mayur Vihar, Phase-II, Delhi-91. 3. Sh. Rishi Pal Singh aged 50 years, S/o Sh. Chandrapal Singh B-17 G, Delhi Police Apartments, Mayur Vihar Phase-I, Delhi -91. Applicants. (By Advocate: Shri M.K. Bhardwaj) Versus Union of India & Ors. Through: 1. The Chairman NPC & Secretary Ministry of Commerce and Industry Department of Industrial Policy and promotion (DIPP) Udyog Bhavan, New Delhi. 2. Sh. N.C. Vasudevan, Director General National Productivity Council, Lodhi Road, New Delhi -110003. Respondents. (By Advocates: Shri K. Sultan Singh, Sh. Atiar Singh and Sh. D.D. Lahiri) :O R D E R:
This is the second round of litigation by the Applicants. The first round of litigation in OA No.1631/2009 was on the issue of the Applicants transfer from Delhi to other places which was considered and decided by this Tribunal on 29.6.2009 with the directions to the Respondents to examine their pending representations and the averments made in the OA and to pass speaking order. Consequently, in compliance with the directions of this Tribunal the Respondents examined and passed a detailed speaking order dated 14.7.2009 in case of each Applicant. Being aggrieved, the Applicants have assailed the said orders dated 14.7.2009 and came to the Tribunal for the second time under Section 19 of the Administrative Tribunals Act 1985 in this OA with the following prayers:
(i) to quash and set aside the impugned order dated 14.07.2009. (Annexure-A) to quash and set aside the impugned transfer order dated 14.5.2009 and relieving order dated 29th May 2009 Annexure A-1 and A-2) to pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
2. In MA 1269/2009, filed along with the OA, all 3 Applicants have joined in the OA as Applicants. In MA 1274/2009 filed on 30.7.2009, they have prayed the Tribunal to direct the Respondent to release their salary from June 2009 onwards. On 3.8.2009, the Applicants filed MA No.1375/2009 enclosing there with copy of the charge memo issued to Applicant No.1 with the prayer to direct the Respondents to withdraw the charge memo.
3. The Applicants also prayed for interim relief to stay the effect of the impugned orders. On 21.7.2009 at the admission stage, while the notice was issued to the Respondents, Status quo as on date was allowed to continue to till the next date of hearing and the same has been continuing to date.
4. On receipt of the notice, the Respondents filed the written submissions on 3rd August 2009 and the Applicants filed their rejoinder on 12.9.2009. I finally heard the case on 19.8.2009 and perused the pleadings.
5. Shri M.K. Bhardwaj, the learned counsel for the Applicants gave a comprehensive background of the issues and raised the following contentions; (i) As per the directions of the Tribunal in OA No.1631/2009 the Hard Case Committee should have been constituted by the Official Respondent to consider the Applicants representations but the said committee was not constituted. (ii) Respondent did not take into account the suggestion of the Ministry of Agriculture on the continuance of the Original Core Team Members of the project assigned to the NPC under National Food Security Mission (NFSM). The Applicants being the Member of the Core Team, their transfer from NPC Headquarter would affect the project assigned to NPC under NFSM. (iii) The Transfer and Placement Policy of the NPC envisages the need based transfers on 2 grounds viz. (a) at the time of promotion and (b) in case of administrative exigencies on adhoc basis. Applicants transfer, Shri Bhardwaj contended, did not fit into the referred grounds and the transfer was violative of the Transfer and Placement Policy. (iv) The Applicants are senior employees and the places where they have been posted like Patna and Kolkata do not have such business of the NPC to be looked after by senior executives. (v) He also contended that the action of the Respondent No.2 was malice in fact and malice in law, so much so he highlighted the examples of (a) the Applicant No.1 was to attend APO Eco Product International Fair at Manila from 19-21 March 2009 after due approval of the Competent Authority but he was replaced by a junior officer 48 hours before he was to catch has flight. This he terms as humiliation meted out by the Respondent No.2; (b) the Applicants office rooms were disconnected from the air conditioning, computer network and other facilities which they considered as the coercive action by the Respondent No.2 to force the Applicants to leave Delhi for the place of posting; and (c) even the Applicant was chargesheeted by the Respondent No.2 vide Memorandum dated 21.7.2009, on the very date when this Tribunal directed the Respondent to maintain status. This was termed as vindictive action of the Respondent No.2.
6. On contra, Shri Sultan Singh, assisted by Shri Atiar Singh and Shri D.D. Lahiri, the learned counsel representing the Respondents argued the case and very strongly opposed the contentions raised by Shri M.K. Bhardwaj, the counsel for the Applicants. Outlining the functioning of NPC, as a Central Autonomous Body in the field of consultancy, Shri Sultan Singh contended that the Applicants had been occupying posts with all India transfer liability. NPC is a self sustaining organization and DG NPC is appointed by the Government of India, who knows the organizational capacity and needs and is competent to transfer the officers to fulfill the objectives of NPC mandated to it. He submits that the Respondent No.2 being DG of NPC has no ill will and malice against the Applicants. Since the NPC has 13 offices spread over the country, Shri Singh contended that the officers would be positioned not only to supervise the existing projects but to mobilize new projects for NPC. He also contended that the representations of the Applicants on the basis of the directions of this Tribunal were examined by a Committee of Senior Officers which was higher to the Hard Case Committee. He submitted that after due consideration and analysis, final order had been passed. The place like Kolkata and Patna are very important from the point of view commerce and business. The experienced hands are required to mobilise new projects for NPC. Further, Shri Singh submitted that the Applicants have been continuing for more than 18 years at Delhi and as such they were due for transfer from Delhi to the places where appropriate level of works can be discharged by them. He stated that the orders did not discriminate the Applicants since out of 9 officers transferred in two different orders, 6 of them had already joined, only the 3 Applicants remain to join in their respective places.
7. With regard to the malafide raised against the Respondent No.2, the counsel representing NPC also submitted that they represented the Respondent No.2 and submitted that no malafide had been committee by the Respondent No.2. With regard to the disciplinary action initiated against the Applicant No.1, the counsel for Respondent submitted that the orders of the Tribunal passed on 21.7.2009 granting status quo to continue in its order was received by the Respondent only on 24.7.2009 but the Applicant was issued a charge memo on 21.7.2009 for not joining the place of posting. As such it was not in anyway disobedience to the order passed by the Tribunal. Hence, he submitted, the issue of charge memo against the Applicant No.1 should not be considered as a malafide action by the Respondent No.2. Further, he submitted that officer to visit abroad would be authorized by the competent authority. A substitute of the Applicant was sent to Manila as per the order passed by the competent authority. Therefore, he submits that no willful humiliation has been shown against the Applicant. With regard to the disconnection of AC, Computer Network to the office rooms of the Applicants at Delhi, it was stated that a committee has been constituted by the Respondent No.2 to enquire into the matter and action would be taken by the Respondents on the basis of the report of the committee. In support of his contentions he relied on the judgment of Honble High Court of Delhi in WP (Civil) No.519/2009 between Dr. A.K. Bhardwaj Versus Union of India & Others decided on 29.7.2009 in which the order of this Tribunal in OA No.2477/2008 was upheld and transfer of the Petitioner on administrative ground was held as valid.
8. Shri Bhardwaj in support of his contentions relied on the judgment of Honble High Court of Delhi in WP ( C) 1361-62/2005 between Union of India and others Versus R.S. Sharma and WP 18552-18555/2004 between Union of India and others Versus K.S. Bhatia . I find there is no parity between the facts in this OA and the Writ Petitions relied on. In both Writs, the transfer was consequent to the promotion where as in this OA, transfer in due to administrative exigencies.
9. Reliance was also laid by Shri Bharwaj on the orders passed by Bangalore Bench of this Tribunal in the case of Mahesh Joshi Versus Union of India and Others in OA No.383/2006 decided on 2.2.2007. Facts of this case reveals that the transfer was effected on the basis of certain proven malafides. Though in the present case certain malafides have been ascribed against the Respondent No.2, I have to examine whether those malice in facts and in law are in the OA are sustainable. If not, the order in the OA 383/2006 will not be applicable for the present OA.
10. The order of the Coordinated Bench of this Tribunal in OA No.1542/2009 between Shri Sudhir Chopra Versus Union of India & Others decided on 16.6.2009 was relied upon by the counsel for Applicant. I find that transfer order was quashed since that was violative of the Provisions of the Prescribed Rules. In the present OA, I do not find any violation of the Transfer and Placement Policy of NPC. As such Shri Sudhir Chopra Case (supra) is distinguishable
11. It is undisputedly admitted that the Applicants are working in the posts with all India transfer liability. Further, it is admitted fact that the Applicants have been working at NPC Headquarter, Delhi for more than 18 years. It is also a fact that as per the transfer policy the NPC employees are liable to be transferred after about 4-5 years of work in the respective places. In this context the settled legal position is that employees transfer power comes within the domain of the executive and Court/Tribunals should not normally interfere unless the transfers are violative of the transfer policy or the transfers effected are based on malafide intention of the authorities or incompetent authority has transferred or arbitrariness and discrimination can be attributed to the transfer. In the present case the competent authority has transferred the Applicant and, therefore, this aspect is completely rule out. The Para17.1.5 of the Review Committee Report of the NPC (available on page 87) indicates that transfer can be affected from one place to another place after completion of over 4-5 years. The Applicants have, undisputedly, been working in the Head Quarter at Delhi for 18 to 20 years and their transfer was long overdue. As stated by the counsel for Applicant, the need based transfers are to be effected at the time of promotion or in case administrative exigencies on adhoc basis. The Respondents very clearly bring out that this is the case of transfer on administrative exigencies for which 9 officers have been transferred to various places. Therefore, there is no violation of the existing rules/guidelines of the NPC in transferring the Applicants from Delhi to other places.
12. The only issue that remains, is the malafide levelled against the Respondent No.2 (Shri N. C. Vasudevan). In case of allegation of malafide the burden of proof vests with the party alleging such malafide. Here it is the Applicants who are to convince me about the alleged malafide. I examine here whether there is any basis in the 3 counts of allegations leveled against Respondent No.2. The first set of malafide are that the Applicant No.1 was to attend APO Eco Product International Fair at Manila from 19-21 March 2009 but in his place a junior officer was sent. Therefore, he felt that he was humiliated since 48 hours before he was to catch his flight his visit was cancelled. The Respondents denied this allegation. On the contrary, counsel for the respondents submitted that the deputation of an officer to APO Eco Product International Fair was done by competent authority within a stipulated time and, therefore, no willful malice had been caused by Respondent No.2. With regard to the second ground of malafide alleged against the Respondent No.2, the allegation had been ordered to be enquired into to know how and why facilities in the AC and Computer Network to official rooms of the Applicants were disconnected? Therefore, it is inferred that Respondent No.2 is genuinely concerned to find out the reasons for such disconnection and persons responsible for the same would be appropriately dealt by the Respondent No.2. This assurance was given during the hearing by the counsel for Respondent. Therefore, this malafide does not stand to reason. With regard to the third malafide that the Applicant was charge-sheeted by the Respondent No.2, violating the directions of the Tribunal to maintain status quo, during the hearing, it was shown to me that Respondent No.2 received the order of the dasti notice dated 21.7.2009 (issued on 22.7.2009) on the Respondents only on 24.7.2009. Though the charge-sheet was ordered on 21.7.2009, since the Applicant did not join the place of the posting till 21.7.2009, the Tribunal order was passed on 21.7.2009 but Dasti was issued on 22.7.2009. In this background it cannot be construed that the Respondent No.2 acted in malafide manner to issue a charge memo against the Applicant No.1 the very date on which this Tribunal passed the status quo maintenance order. In the above circumstances, I do not find, there is any basis for the alleged malafides against the Respondent No.2.
13. One of the plea taken by the Applicant counsel relates to the fact that the Hard Case Committee was not constituted by the Respondent to examine the grievances of the Applicant. The argument put forward by the counsel for Respondent indicates that the said Committee as per the guidelines has to submit a report to be considered by the higher authorities. In the present case, their grievances have been directed by this Tribunal to be examined by the Hard Case Committee or in any other manner as may be considered. The Competent Authority constituted a Committee of Senior Officers under Clause 81 (i) of the NPC Service Rules and on the basis of the Committee findings the Competent Authority did not find any reason to modify the transfer order. I find that the grievance of the Applicants as envisaged by the Tribunal order has been properly considered by the appropriate committee. Thus, I do not find any ground adduced by the Applicant as logical in this regard.
14. Since the Applicants were on transferable posts, in my opinion, the Respondents have the authority to transfer them. Transfer is an exigency and incidence of service and is an administrative decision. Interference by the Tribunal with transfer orders should only be in very rare cases. As repeatedly held in several decisions of the Honble Apex Court, transfer is an incidence of service and the Courts and the Tribunals should not interfere. The said ratio was set in the judgments of the Honble Supreme Court in number of cases viz, (i) B. Vardha Rao Versus State of Karnataka (AIR 1986 SC 1955), Iii) Shilpi Bose versus State of Bihar (AIR 1991 SC 532), (iii) Union of India versus N. P. Thomas (AIR 1993 SC 1605), and (iv) Union of India vesus S. L. Abbas (AIR 1993 SC 2444). In this regard, the learned counsel representing the Respondents relied on judgment of Honourable Supreme Court in Masood Ahmad Versus State of U. P. [2007 STPL (LE) 39042 SC] decided on 18-09-2007. I would like to extract the relevant para of the judgment, which reads as follows:
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao Vs. Union of India (1993) 1 SCC 148; (AIR 1939 SC 1236), National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan (2001) 8 SCC 574; (AIR 2001 SC 3309), State Bank of India vs. Anjan Sanyal (2001) 5 SCC 508; (AIR 2001 SC 1748). Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh vs. State of U.P. (1997) 3 ESC 1668; (1998) AII LJ 70) and Onkarnath Tiwari vs. The Chief Engineer, Minor Irrigation Department, U. P. Lucknow (1997) 3 ESC 1866; (1998 AII LJ 245), has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 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 orders, were not competent to pass the orders.
15. In the first round of litigation between the parties this Tribunal directed the Respondents to pass a speaking order on their representations which the Respondent-NPC has done. Though the Applicants are not satisfied with the order, they should have joined their place of posting and come up to this Tribunal but they rushed again to the Tribunal. Out of 4 Applicants in OA No.1631/2009, one has already joined and the remaining 3 Applicants have again approached this Tribunal. Initially they gave an impression that the Respondents were at fault. I find from the pleadings that the Respondents have taken sufficient time, considered the issues and representations with patience and after analyzing each point in appropriate manner have passed speaking orders on their representations. I find that the orders are procedurally firm and valid in law. I hold the view that the Applicants should have first joined their place of posting and then approached the Tribunal if their grievances were not addressed by the Respondent No.1. It is not the case in this OA. In this context, my view is fortified by the judgment of Honble Supreme Court in S. C. Saxena Vs. Union of India [2006 STPL (LE) 37619 SC] decided on 21.2.2006 which reads thus;
. In the first place, a government servant cannot disobey a transfer order not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and makes a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
16. Considering the above facts and circumstances of the case, I find that the Respondent NPC is competent to transfer its officers keeping in its mind the mandate of commercial activities with human face. I also find that the speaking orders passed by the Respondents are very comprehensive and analytical. As discussed within, I do not find any malice in fact or in law against the action of the Respondent No.2 in transferring the Applicants.
17. With regard to the disciplinary action initiated against them by the NPC, it is the fact that they have not joined their place of postings. Once they join, the disciplinary action lose its significance. What will remain for decision by the NPC is the regularization of their period of absence (date of relief to date of joining). I direct the Respondent NPC to grant them the admissible leave to which they are eligible.
18. In view of the above discussion, and considering the total facts and circumstances of the case I come to the considered conclusion that there is no merit in the Applicants plea for my intervention in their transfer from NPC, Delhi to their respective place of posting. In the result, the Original Application being devoid of merits is hereby dismissed, and the interim order is vacated. The Applicants are directed to join their respective place of posting within 7 days from today. The Respondent No.1 is directed to consider the closure of the charge memo issued against the Applicant, only after their joining the place of posting. No costs.
(Dr. Ramesh Chandra Panda) Member (A) /jk/