Central Administrative Tribunal - Mumbai
Sandeep Kisan Kanade vs Field Operation Division on 8 December, 2022
tite MARNE my A ME DIS Ch, Nodes Central Administrative Tyibinal Mumbai Bench, Mumbai OA. Ne. 2358/2022 sin | Order reserved on 22°" November, 2022 Order pronounced on 08" December, 2022 Hon'ble Mrs. Harvinder Kaur Oberoi, Member () Mr. Sandeep Kisan Kanade Age 48 years, Holding the post ot Senior Statistical Officer in National Statistical Office (FOD}, Kendriya Sadan, 2" Floor, A and B Wing, Akurdi, Pune, Residing at Sant Tukaram | Nagar, Near PCMC Water tank, Morya Colony, Survey No.215, Bhosari Pune-411 039. Mobile No.- 9822216973 Email Td: skkanade9 73 @emailcom . Applicant (Mr. P. Uday PW arunjikar, Adyorate) Versys t. The Union of Indis Minisiry of Statistics and Programme implementation, New Delhi Through Secretary, Churshid Lal Bhavan, Janpath, New Dethi- Liggel - saoretaryGimespl.govin - Pea meh Id OLA 2. Deputy Director, Subordinate Staustical service Division, Having office at Room No 414, &horshid Lal Bhavan, Janpath, New Deibi- Geol. Email Id: sss [email protected] in 3. G The Additional Director General National Statistics Office, (Filed of Operation Division}, ankhwiki Bhavan, Shahadara, Adjacent to Kark ardooma Court, New Dethi- 110032 Email id: ade [email protected] .. Respondents (Mi. RR. Shetty, Advocate) ORDER
This is the second round of litigation. The applicant has filed the present OA under section 19 of the Administrative Tribunals Act, 1985, seeking following relief-
"a. This Hon'ble Tribunal may be pleased to call for the records and proceedings of the order passed by the Respondent no.2 dated i6™ march, 2022 and after going through the same and after satistying the legality, validity and propriety of the same may be pleased to quash and set aside", ho md neg cB Ss mt oO Pfacts of the case as narrated in the OA are that the applicant was selected through Staff Selection Commission as a Junior Technical Assistant (ITA) in the month of * January, S001 and was initially appofved as a Amior Technical slotamnt (Reationa « Atfiee of the Yedlan Bin: see Assistant (Statistic) ta the office of the indian Bureau Mines Minieice at ral and &dlaes ak Resins : bi ANS Ministry of Coal and Mines at Nagpur. n the year 2005, he WAS pasted to National Statistical Office, FOI, AoSPY, Pune as Aes O.A. No 2358/2022 vista an investigator (Statistics). From 2008 il today, he is working as aon ; Sy rm, ra = ane in the deparimeni of the respondents. He was promoted as Senior Statistical Off icer in the year 2013. Thereafter, different 3 By an order dated 22.10.2020, the respondents constituted a three member cormmittee for in nvestigating the complaint made by one Shweta Singh, SSO against one Smt. Garima Singh, SSO. He was also a member of the said investigating committee. By a léiter dated 27.11.2020, he has informed the concerned officer of the respondents that ane meinber, namely Shri M.S. Chorghade, SSO, was not coming for investigation. By an office memorandum dated 19.01.2021, the office directed him to complete the said enquiry/investigation and to submit a report within five days. In its compliance, he carried out the investigation and submitted his report along with statements to the office of the respondents. On 10.02.2021, all of a sudden, the office of the respondent addressed a memo to him and directed to submit a written explanation within three days. During the said period, he made a complaint on 04.12.2020 against one P.G. Kute, who Was working as a field investigator on contractual basis under his supervision, for giving fraud bills of tour and for claiming.
amouni from the department of the said tour. Surprisingly, on 24.12.2020, a memo was addressed to him and he was further directed to submit a written explanation within three da ys. Gn the same date, vide an office memorandum, he was also infnyremen thet he he 3 Sy Jepte tent fram the mact Ba my ey epi informed that he had been removed from the post of In-chaz ge fo from one of his charges. Allegedly, for one or other reasons, sedi at te jeisenss > aD Coed a the Director of Nationel Statistical Office, Pune, namely My, Alok Kumar, is harassing him through: his officers, as a result, he siarted suffering from phobia and taking treatment fom @ psychiatrist, On 24.09.2021, he raised his grievance ta his superior authority and filed a detailed complaint stating that he due to harassment from the Director, Mr. Alok Kamar, addressed his resignation letter to the _SSpondenss The the same was intimated to him by a letter dated 12.10.2021.
€. All of a sudden, the order dated 21.01.2022 was issued by respondent No.2, whereby he was transferred on administrative grounds to Hubli, about which he came to know from the webstte of the respondent Ministry and till date the said order is not served upon him and he has not handed over the charge to the concerned depariment/person. [t is stated that he never sought transfer to Hubli and pointed out that by the said transfer his family would be affected as his family is in Pune and he has two school going children, a son aged i] years and a daughter aged 11 years. His son was appearing for 12° exam through CBSE board which was scheduled to be held on 25" April, 2022 to 15" June, 2022, and in view of that, he made a representation io the respondent No.2 on 24.01.2022, . Ne had approached this Tribunal earlier by way of OA represemiation within one direction fo the sat OA. Noits go SNEE respondents fo consider sach representation along with the Ke oe 3 VY rong ~. sin earlier representation dated 24.01.2022 by passing a reasoned oY and speaking order within a period of six weeks and the iranster order with respect to him was stayed.
r & In pursuance to tins Tribumal's order, he made a detailed representation to the respondents authority on 3% February, 2022 and in the meantime sought information under the RYT Act on 3™ February, 2022, as ta on which administrative grounds, transfer from Pune to Hubli has been made, On 18"
February, 2022, the office of the respondent No.2 informed him that no such specific information is available with the office and on 16" March, 2022, he received the relieving order, along with a short and cryptic order passed by respondent No.2 pursuance to this Tribunal's order. In view of the abave, he seeks the intervention of this Tribunal vide the present OA.
cs On the other hand, the respondents have filed their reply and submitted that the services rendered by the applicant have been either dismal or seriously wanting. He was also found to be iniumidating officials, including a lady officer, in the office at Func. After a detailed investigation, the committee came to ihe conclusion that he was, in fact, guilty of tryme to browbeat and intimidate the lady officer and that his conduct has not oeon above board, therefore, the cammiliee advised that it would be in the interest of administration to shift him out of Pune to Hubli office, This fed to the passing of impugned order against which the applicant invoked the jurisdiction of this z nt ay gy tagp ugraye AS STA Ria AAO R74 r os disy Pribunal by way of OA No44/2022 which came to be disposed TN EU ¥ oe cry of vide Us order deted 31.01.2022 directing the respondents nol tO operate the transfer order and to decide the applicant's represeniation dated 24.01.2022 by passing a reasoned and speaking order which has already been done and has culminated in issuance of the impugned order ander challer nge ihe present OA.
& Besides that, his conduct has also been found to be seriously objectionable even during pendency of the present OA, On 07.04.2022, when official work was assigned to him, he, vide his email dated 07.04.2022 at 01:56 PM, declared that he would be going on two weeks medical leave citing back pain as a reason. As the medical certificate supphed by him was not issued by an Authorised Medical Attendant (AMA), vide OM dated 08.04.2022, he was informed that the medical certificate submitted by him was not acceptable. He did not submit any medical certificate on receipt of the said OM until 18.04.2022 when he, by ar email, sent a medical certificate dated 18.04.2022 from Sassoon General Hospital whereby he was advised 30 days rest wed 18.04.2022 on the nimendation of the Assistant Professor on the purported - ground that he was suffering from viral fever with bronchitis wo and lumbago. The Regional CfRce (RO), Pume, immediate ely oer! ata ee dee 7 aye % se " adSdeal sovtes lec called upon him to submit himself for second medical opinion Cees: wet neon Rett Vaontial and aves anteacd rom Civ Surgeon, Sassoon Medical Hospital and wag aske ¢ smear hofnrs: ay Vecdyeer] § oe "? 2 a io appear before the Medical Superintendent on 22.04.2022 bur Qioens atSies an OP AA CRESS ad Ab FOU offices OF 2008 22 aad Fe.
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% pad be 4 et, eo 7 aa B rane sie a, FERRY "ad resi on medical opinion i by Sassoon General Hospital, Pune. He has additionally written an email in which he claimed that he was undergoing treatment for the last one vear for his back problems, however, he has never submitted any medical certificate or medical bill to the RO, Pune. After being relieved from RO, Pane, vide order dated 24,01. 2022, he reported to office an 02.02.2022 as per the directions issued by this Tobunal in OA No44/2022. Later, vide the Ministry of Stausiics and Programme Implementation (SSS Division} order dated 16.03.2022, he was once again relieved from the RO, Pune, with a direction to report io RO, Hubli. Thereafter, he once again invoked the jurisdiction of this Tribunal and obtained stay on the transfer order on 29.03.2022, whereatter, he reported at RO, Pane, on 01.04.2022, Again, when office work was assigned to him at 12:08 PM on 07.04.2022, he immediately informed about his medical leave and submitted medical certificate which was not issued by the AMA, claiming that he was suffering from back pain.
§, Respondents have submitted that the main administrative reason for transferring him is that he has been found to be intimidating official colleagues and disturbing the werk environment. He has, particularly, been found to be intimidating a lady officer, working in the same office. He has also been found to be recording the teleshonic conversation of his official colleagues and circulating the same on WhatsAop inorder {6 create a rif amongst officers and staff. Nis acts were deirumental fo the smocth fimetioning of the eeempemdente atSlew nan ae Af wahiek <a "
FOSpoOmnents oF CE, CH AeCOuNt oF which, ce COTO sefent oo authority concluded that his further continuance at RO, Pune, will defmitely hamper the smooth functioning of the office.
f@ He is also myolved in film production work on account S of which his perforrmance im the office is f AS & matter of Tact, the National Statistical Office (Field Operations Division) is responsible for collection of quality primary data by conducting various crucial statistical indicators which facilitates the Government of India in evidence based decision making. As a Senior Statistical Officer, he is responsible for compilation of returns pertaining to annual survey of industries and conducting field work of agriculture statistics. As a supervisory, he was assigned work of supervision of periodic labour force survey conducted by the survey enumeraters, The data of ASI is highly valuable in compilation of gross value added of manufacturing sector while the agricultural statistics is used to generate estimates of the area under a particular crop and crop-wise production statistics. The periodic labour force surveys are the principal source of generating macro-economic indicaters of employment/ tnemployment related statistics in India, The lack of devotion in performing of duties by him bas a direct bearing on the unwarranted acts left umactioned has the potential to discredit atid jovi s oh we rant ihe entire Indian Statistical System. ; » the light of aforesaid ASSEG a: gan ast Ser " oy wee Eee Styes FRR OF gs oY hun thereby resioving him from the RG, Pune and shis fue to RO, Hubli, igs OLA. No Fssf2a22 ii, With respect to apphicant's complaint of wrong subnnssion of tour bill by Shri Kute, respondents r ephed thai we f Dyes AAS alee e tre onaniinanr | " nel the RO, Pune was shocked, as the apslicant bimself had forwarded/recommended the bills of Shri Kute for payment.
These dt reveals thar etthar hewss neelice ards his official imiis, H reveals thal ether ne was neg gent tow ards his official fz, With respect to the resignation submitted by the applicant, respondents replied that the same was not processed as it Was not forwarded through proper channel and was not as per the stipulations prescribed in DoPT OM dated 11.02.1988 and that the tendered resignation was conditional and not clear,
3. With regard to service of the transfer order to the applicant, it is stated that all the transfer orders are uploaded on the website of the Ministry and the same are not served to individual officers.
i4, Applicant has fled his rejoinder reiterating the submissions already made in the OA, In rebuttal, the respondents have fled additional affidavit contradicting the avermenis made by the applicant, fs, | have beard the arguments of counsel for both the parties and perused the material placed on record. In the present OA applieant has questioned bis transfer basically on the ground that the same is aula Ade and punitive. He has allegations against the ENrector of Mationa! Office, Pune. namely Mr. Alok Kiumar, however he ayn ine Ite co eet yay Tenset ae serene Ty yd . . GEERY QUT GS Barly TERHOMGeNe LW DOTkon. Wurnig 2 the course of arguments, learned counsel for the applicant " he cat ho cepame <b Ey yp. wen 4 Sop erto fy tha submitted that since the applicant refused to dccede to the iegal demand of respondent and/ or cooperate in thetr illegal action, he was made to suffer. Ne svecific act of malice of said respondent could be pointed out by him. The allegations made oH Heant are as vasue as these could } Ae hae hoo by the applicant are as vague as these could be. As has been viewed In Parbogh Sagar Vs. Punjab State Nlectricity Board and Ors ( 2000 (5) IT 378), malice and sala Ade can only be appreciated from the records of the case in the facts of each case and there cannot possibly be any set guidelines in regard to the proof of miala fidey. Mala fides, where it is alleged, depend wpon its own facts and circumstances. Also in Kiran Gupta Vs. State of UP (2000(2) SCSLJ 392), Hon'ble Supreme Court viewed that the allegations of male fide cannot be accepted unless there is material to support the same. In Indian Railway Construction Co Ltd Vs. Ajay Kumar (2003 (2) SCSLJ 109), it was held that one who alleges mala fide has to establish the same. In the present case, the applicant has not produced any material to establish the same. Thus, the impugned order of transfer cannot be held to be witlated on this ape Y ground,
16. Admittedly, it was the applicant who indulged in making complaints to the semior officer awainst his Co-worker which a i ms sae o ect sisaet Bias ae oynt Complainis were received against hin alec. and in such circtumsiances, a commitice headed by an offcer from a ela evant }. oy leas rater Feteetexcpt x thianh j Ore aitterent office/zone had been constituted, which had CLA, No. 23Q2022 that tn order io have a proper and congenial atmosphere and m puble interest and fo avoid meonvernence fo public, the respondent could transfer an official and it could not be called reed, as & pumiiive transfer. Hf is now clearly well settled by decisions of Supreme Court that Courts or Tribunals cannot sit in appeal over administrative decisions of transfer of government officials. The transfer is an incidence of service. Therefore, the Supreme Court has clearly stated in a number of decisions that erder of transfer can be challenged only on two grounds viz. ils being in viclation of statutory rules or mala fide vide (1) AIR 1992 SC 2444-Union of India & Ors v. S.L.Abbas, (2) 1995, SCC L&S 666-State of Madhva Pradesh & another v. 5.5, Raurav & Ors, (3) AIR1993 SC 1236- Rajendra Rov v, Union of India.
% In the present case, there is no allegation that the impugned order of transfer is contrary to any statutory rules, except the sare being Midterm transfer, for which, protection was granted to the applicant as son of the applicant was to appear in Board exams. And now that the same are over, the respondents have in their reply stated that they have respecte and implemented the interim directions and yet the applicant ts contutauig with the misbehaviour as he has refused to work on some ground or another. There is no dispute that if an order of transfer is punilive in nature has to go. Gut the question is '. 3 2 oe pari er eae Le es whether, if the facts anc circumstances of 6 paricular case, the axcier of transfer is punitive or not that has fo be decided.
om tat
78. ta the present case, | have already pointe { out that ihe a applicani does not make any allegat don against the officer whe has transferred Gim. His only case is that if the officer has received sore complaints he co owd not have transferred him my view, the committee constituted to iook into the complaints was not tasked with the duty fo investigate guilt of the applicant in order to punish &im, rather the same Was constituted to look in to the entire facts and to see as to whether it would be in public mterest to continue applicant at the said post. The committee did recommend transfer, and for the purpose of transfer, his case was then placed before the Board which ultimately decided to transfer ¢ applicant to Hubli.
19. In the present case, the committee tasked to loak into the complaints had taken statement/explanation from the applicant and the same was considered. Therefore, on facts, it cannot be said that the applicant has not been heard. Iv is aot necessary that in every case the matter should end in 4 regular departmental enquiry, We can take judicial notice that in many cases departmental enquiries go on for years together. Can it be said that when erave allegations are rade against the 0 he should be kept in same place for years together ail the tren my rey fin 9 P .
disciplinary enquiry is completed'
26. The argument is that if there are complaints against an ofScial he canmot be transferred since Hf amounts to puniive fe os eh > gee wer te Reid and t transfer, unless a proposer anc Tegiuss EYUITY ES Si AT Me is a 4 wie: Buen i ase gee POTS ESTE as.
found gulp. Even if we accept this argument as correct, im my view, an order of transfer cannot oe passed bv Way of punishment. Rule [i of CCS (CCA) Rules provide as to what fu My <p a ey $3.
ft are the penalties or punishments thal can be impose orf; n * 4 official is found guiliy. Transfer is nowhere men ikined as one of the punishments in thai rule. Therefore, rf, aller nding an official guilty, the Disciplinary Authority passes an order that, in view of his being held guilty, by way of punishment he is being transferred. It can be seriously challenged on the ground that there is no power for the Disciplinary Authority to inflict an order of transfer by way of penalty since it is not one of the penalties mentioned in Rule 11. Therefore, 1 find that, in case of serious allegations against an official, he cannot be transferred prior to enquiry since it amounts to punitive transfer and he cannot be transferred after enquiry since transfer is not one of the punishments in Rule 11 of the CCS (CCA) Rules. In my view such an interpretation on the exercise of power cannot be given. Ultimately, it is a question for the admumistration to decide, having regard to the facts and circumstances of the case and to have a clean and sufficient administration whether i is necessary to transfer an official or not. It may be having regard to some complainis against an official, the administration may eel that to have a proper and congenial atmosphere and in public Interest and fo avoid inconvenience to public, he may transfer an official and it cannot be called as a punitive transfer.
+X 2%. In view of the aforementioned judgments of Hon'ble 2 Supreme Cort and alse the fact that the applicant had himself made complaints agamst his co-workers and superiors and complainis were received against him also, | do mot think it oroper for the applicant to seek continuance In the same station. As a resuli, | do net find any infirmity in the impugned ord dated 16.03.2022. The impugned order of transfer is vabd independently. In the circumstances, the OA is found devoid of mer and is accordingly dismissed. No order on costs.
(Harvinder Ka ur Oberg) Member GD