Central Administrative Tribunal - Chandigarh
Hem Chand vs Central Provident Fund Commissioner on 18 November, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH Chandigarh, this the 18th day of November, 2022 (Reserved on 17.10.2022 at Circuit Bench Shimla) HON'BLE SH. RAMESH SINGH THAKUR, MEMBER (J) Original Application No.063/1305/2019 Sh. Hem Chand, S/o Sh. Devki Nand, Resident of Chauhan Cottage, Near Pathak Niwas, Lower Shiv Mandir, Kasumpti, Shimla - 171009 presently under transfer from Regional Office Shimla to Regional Office Raipur, Chhatishgarh. ....Applicant (By Sh. Rajneesh K. Lal) Versus Union of India through its Secretary Labour, Ministry of Labour and Employment, Shram Shakti Bhawan, New Delhi - 110001. The Central Provident Fund Commissioner, Employees Provident Fund Organization, Ministry of Labour and Employment, 14 Bikaji Cama Place, New Delhi - 110066. Additional Central Provident Fund Commissioner (HRM), 14 Bikaji Cama Place, New Delhi - 110066. Regional Provident Fund Commissioner, Regional Office, Shimla, H.P.-171009. Regional Labour Commissioner (Central), New Delhi - 110054. ... .Respondents (BY: Sh. Sanjay Goyal, Advocate for R-1 and 5 Sh. Kamal Sehgal for R-2 to 4) Original Application No.063/1306/2019 Ms. Kanta Bhatti, W/o Sh. Madan Bhatti, Resident of Prospect Lodge, Jakhu Road, Shimla, H.P. - 171001 presently under transfer from Regional Office Shimla to Zonal Office Kolkata. (By Sh. Rajneesh K. Lal) Versus Union of India through its Secretary Labour, Ministry of Labour and Employment, Shram Shakti Bhawan, New Delhi - 110001. The Central Provident Fund Commissioner, Employees Provident Fund Organization, Ministry of Labour and Employment, 14 Bikaji Cama Place, New Delhi - 110066. Additional Central Provident Fund Commissioner (HRM), 14 Bikaji Cama Place, New Delhi - 110066. Regional Provident Fund Commissioner, Regional Office, Shimla, H.P.-171009. Regional Labour Commissioner (Central), New Delhi - 110054. ... .Respondents (BY: Sh. Sanjay Goyal, Advocate for R-1 and 5 Sh. Kamal Sehgal for R-2 to 4) O R D E R(Oral) Per: RAMESH SINGH THAKUR MEMBER (J):-
The above mentioned two Original Applications No. 063/1305/2019 and O.A. No. 063/1306/2019 have been filed by the applicants therein challenging their transfer order dated 04.12.2019 and relieving order dated 05.12.2019. Since the cause of action, the relief claimed by the applicants, the grounds and the question of law involved in these two OAs are same, these are being disposed of by a common order.
Applicant Hem Chand (in O.A. No. 1305/2019) working as Senior Hindi Translator has been transferred from Regional Office Shimla to Regional office Raipur, Chattishgarh of Employees Provident Fund Organization. Applicant Kanta Bhatti (in O.A. No. 1306/2019) has been transferred from Zonal Office Shimla to Zonal Office Kolkata. The applicants have prayed to quash and set aside the impugned orders dated 04.12.2019 (Annexure A-23) whereby they have been transferred from Regional Office Shimla on administrative grounds and the relieving order dated 05.12.2019 (Annexure A-24).
For brevity and clarity, the facts are being taken from O.A. No. 1305/2019 (Hem Chand Vs. Union of India and Others).
As per the pleading of the case, the applicant is working with the Employees Provident Fund Organization, Shimla and has been discharging his duties diligently. He has been transferred from Regional Office Shimla to Regional Office Raipur which is not on administrative grounds as mentioned in the impugned order, but is a punitive action taken against the applicant for participating in the strike which was called by the All India EPF Staff Federation. It has been submitted by the applicant that due to certain disputes which arose between the employees and federation, the All India EPF staff Federation issued a notice of agitation dated 12.07.2019 at all India level and directed its members to wear black badges daily from 01.08.2019 to 27.08.2019, lunch hour demonstration from 19.08.2019 to 23.08.2019 and one day strike on 28.09.2019. Since the applicant is a member of the All India EPF Staff Federation and the call was made by the Federation at All India Level, hence, the applicant did not have any other option but to participate in the strike as directed by the Federation. A copy of notice of agitation dated 12.07.2019 is annexed as Annexure A-1. The General Secretary of the EPF Staff Federation Union, Regional Office Shimla also informed Respondent No. 5 regarding the above stated strike vide letter dated 15.07.2019 (Annexure A-2). The applicant went on strike on 28.08.2019 pursuant to which Respondent No. 4 issued a letter dated 27.08.2019 to the Secretary General, All India EPF Staff Federation whereby it was mentioned that the meeting was being fixed with the Federation on 29.08.2019 at 11 a.m. to discuss the pending issues and urged the applicant and other members to restrain from going on strike on 28.08.2019 (Annexure A-3). In response thereto, the Secretary General, All India EPF Staff Federation sent a notice dated 27.08.2019 (Annexure A-4) to its members to agitate the claim of the Federation and also mentioning that despite several attempts, nothing fruitful was done by the respondents and hence until the time the demands of the Federation are met, the proposed agitation programme could not be withdrawn. Thereafter the strike was scheduled for 28.08.2019 went as per plan and all the members of the Federation all over India participated in the same. Respondent No. 5, in the meanwhile, on 27.08.2019 issued a letter to Respondent No. 2 and to All India EPF Staff Federation regarding the strike and informed the concerned parties that conciliation under Section 12 of the Industrial Disputes Act, 1947 shall be held on 28.08.2019 at 11.00 am in his office, vide letter dated 27.08.2019 (Annexure A-6). Pursuant to this letter, the Secretary General, All India EPD Staff Federation, responded and informed that since the letter regarding the conciliation proceedings was received by him at 11.30 pm (almost midnight) on 27.08.2019, hence, requested Respondent No. 5 to give another date for the meeting so as to enable the office bearers of the Federation to represent their grievances properly vide letter dated 28.08.2019 (Annexure A-7). Again the Respondent No. 3 issued a letter dated 28.08.2019 (Annexure A-8) to the Director and ACs Zone informing them that the RLC is seized of the issues under consideration and also directed the Federation to withdraw the strike else be prepared for consequential disciplinary action against its employees/member who participate in the aforesaid agitation. Since the disputes raised by the Federation were not settled by the respondents, the strike took place all over India.
After participation of the applicant in strike, Respondent No. 4 issued a letter dated 28.08.2019 to the Additional Central, PF, Commissioner Punjab and Himachal Pradesh at Chandigarh, reporting him qua the disruption of functioning during strike and those responsible for inciting others for joining the strike. Resultantly, the respondents issued transfer order dated 28.08.2019 (Annexure A-9). After participation of applicant in strike on 28.08.2019, Respondent No. 4 started issuing show cause notices for proposed dies non and specifically mentioned in the notice that since the applicant has participated in the strike hence he is to be visited with dies non entailing forfeiture and abatement of service. Copies of notices dated 30.08.2019 and 04.09.2019 are Annexure A-10 and A-11. Applicant filed reply dated 18.09.2019 (Annexure A-12) to the notice. On 28.08.2019, Respondent No. 5 fixed the conciliation proceedings for 09.09.2019 at 11.30 am. The representatives of the Union made a request to direct the Management not to take any coercive action against the Union representatives or other staff members as the conciliation proceedings were on its way and also when Section 33 of the Industrial Disputes Act, 1947 was invoked, hence any coercive action taken by the management shall be illegal. Despite the same, respondent No. 5 issued an office order dated 30.08.2019 against the employees who had participated in the strike on 28.08.2019 in which name of the applicants have been reflected. The applicants along with other 13 filed an appeal dated 21.10.2019 (Annexure A-22) to Respondent No. 3 which is pending adjudication. The respondents then issued transfer order dated 04.12.2019 (Annexure A-23) qua three persons including two applicants herein whereby they have been transferred on administrative grounds. Thereafter vide order dated 05.12.2019 (Annexure A-24) they were relieved.
The impugned action of the respondents in transferring and relieving the applicant has been challenged on the ground that the impugned orders have been issued with a prejudiced mind and with a view to punish the applicant for participating in one day token strike on 28.08.2019 which is punitive and coercive action and is liable to be quashed and set aside. Further it is submitted that when the conciliation proceedings under Section 33 of the Industrial Disputes Act, 1947 were under way, the initiation of coercive action by transferring the applicants is arbitrary and illegal. Despite the pendency of the conciliation proceedings, the respondents had been issuing notices to the applicants as well as other employees for dies-non and for deduction of their salary. Thus, the impugned action of the respondents was pre-determined, malice and prejudiced. It is also submitted that the action of the respondents is malafide as out of 13 persons who had been served with the notice, three persons including the applicants have been transferred, which is violative of Articles 14 and 16 of Constitution of India.
The respondents have filed their reply contesting the claim of the applicant wherein it has been submitted by the respondents that since the applicant has joined the new place of posting, therefore, this Original Application has become infructuous. The applicant has been posted at Shimla for more than 10 years and has not been posted out any other place during this period and the transfer is not punitive but has been made on administrative grounds. It has further been submitted that the applicant has been indulging in indiscipline among the fellow staff members and had become a source of nuisance in the smooth and efficient working of the regional office. Since the applicant has not disclosed the fact that he has been working at Shimla for more than 10 years, therefore the Original Application is misconceived. Rule 5 of Employees Provident Fund (Officers and employees Conditions of Services) Regulations 2008 gives power of transfer of staff from one region to another region or from regional office to head quarter and vice versa to the similar posts to Central Provident Fund Commissioner or the authority delegated by the Central provident Fund Commissioner. Further, since the transfer of the applicant is not a punishment, but exigency of service, therefore there is no infringement of any statutory or legal right and the Court is always reluctant to interfere with such transfer/posting which is made in public interest. Reliance in support of the averment has been placed on a judgment of the Hon'ble Apex Court in the case of Union of India Vs. S.L. Abbas, AIR 1993 SC 2444. It has further been submitted that Regional Office has made a recommendation of transfer of the applicant vide letter number 112(86)2019/RO/HP/59 dated 28.05.2019 even before the recommendation dated 30.08.2019 was made for transfer to ensure smooth functioning of the Regional Office and in order to curtail the disruptive activities of the applicant. The transfer of the applicant has been made on various considerations which include inter alia inciting others to participate in strike and to encourage staff member for wrong doings like issuance of pension on higher wages and not recovering the over payment made to some staff members. In a similar matter (O.A. No. 3157/2007) titled Ranjeet Kumar Vs. Secretary, the C.A.T Principal Bench has reiterated the power of the Competent Authority to transfer and dismissed the O.A. The respondents have denied the allegations of malice. On these grounds, the respondents have prayed for dismissal of the Original Application.
The applicant filed rejoinder reiterating the facts and grounds mentioned in the Original Application.
From the pleadings, the undisputed facts are that the applicants in OA No. 1305/2019 and 1306/2019 were working at Regional Office, Shimla. They were called for participating in the strike which was called by the All India EPF Staff Federation. It is also an admitted fact that the Federation had issued a notice of agitation dated 12.07.2019 directing its members to wear black badges daily from 01.08.2019 to 27.08.2019, lunch hour demonstration from 19.08.2019 to 23.08.2019 and one day strike on 28.09.2019. It is also an admitted fact that the applicants participated in the strike as directed by the Federation. The notice of agitation was issued to the applicants on 12.07.2019 (Annexure A-1). It is also an admitted fact that before the strike, there were conciliation proceedings pending under Section 12 of the Industrial Disputes Act, 1947. It is also an admitted fact that the respondent No. 4 had issued a letter dated 28.08.2019 to the Additional Central PF Commissioner, Punjab and Himachal Pradesh qua the disruption of functioning during strike.
The respondents have issued the transfer order dated 28.08.2019 (Annexure A-9) There was show cause notice issued for proposed dies non and there was a specific mention in the notice that since the applicants had participated in the strike, hence, they are to be visited with dies non entailing forfeiture and abatement of service. The copies of notices dated 30.08.2019 and 04.09.2019 are annexed as Annexures A-10 and A-11 respectively.
The applicants have filed reply dated 18.09.2019 (Annexure A-12) to the notice. From the pleadings, it is also clear that conciliation proceedings were fixed for 09.09.2019 and the representatives of the Union requested the Management not to take the coercive action against the Union representatives or other staff members as the conciliation proceedings were on its way and also when Section 33 of the Industrial Disputes Act, 1947 was in invoked, any coercive action taken by the Management shall be illegal.
The common ground for challenging the transfer order of the applicants are that the impugned orders are issued with prejudiced mind and are punitive in nature specifically when the conciliation proceedings are pending and Section 33 of the Industrial Disputes Act, 1947 has been invoked and the representatives of the Federation as well as staff had requested not to take the coercive steps. Hence, the transfer orders of the applicants are punitive in nature.
In their reply, the respondents had submitted that it is for the competent authority to post the applicants at any new place. The respondents had relied upon the judgement passed by the Apex Court in the matter of S.L. Abbas (supra) and have further submitted that it has been done on the basis of the recommendation from the regional office.
The only question for determination before this Tribunal is that whether the transfer orders of the applicants are punitive in nature. As per transfer order dated 04.12.2019 and relieving order dated 05.12.2019 (Annexures A-23 and A-24 respectively), the same had been issued with the approval of the competent authority on administrative grounds and applicants were directed to report or duty at their respective transferred places. The show cause notice for proposed dies non had been issued to the applicants vide Annexures A-10 and A-11. The applicants had submitted their reply as per Annexure A-12 dated 18.09.2019. Further, the reconciliation proceedings were earlier fixed on 09.09.2019 and the proceedings under Section 33 of Industrial Disputes Act, 1947 were also pending. As per Annexure A-23, the reason for transferring the applicants were administrative grounds, but as per reply submitted by the respondents, it has been indicated that the applicants have been transferred on the basis of approval from the competent authority. It has been specifically submitted in the reply that the respondents have considered the recommendation given from the regional office and also various considerations which include inter alia inciting the others to participate in the strike and encourage the staff members for wrong doings like issuance of pension on higher wages and not recovering the over payments made to some staff members.
From the reply, it is very clear that the transfer order is based not only on administrative exigencies, but on the basis of the allegations and considerations which include inciting the other persons to participate in the strike. The respondents have further submitted that the transfer order has already been acted upon by the applicants and hence, the present Original Application is not maintainable.
The learned counsel for the applicants has relied upon the judgement passed by the Hon'ble High Court of Himachal Pradesh in the matter of Shobh Ram Vs. State of Himachal Pradesh and Another, Latest Himachal Law Judgement (2004) Page 652 wherein it has been held that implementation of the transfer order did not ipso facto lose the jurisdiction for deciding the matter. In the instant case, it has been clearly submitted by the respondents that no stay was granted by the Tribunal and in such circumstances, the applicants have to join the new place of transfer. In view of the law settled by the Hon'ble High Court of Himachal Pradesh in Shobh Ram (Supra), the objection raised by the respondent department qua the maintainability of the Original Application is not sustainable in the eyes of law.
The counsel for the applicants has further relied upon the judgement passed by the Hon'ble Delhi High Court in the matter of Smt. Bina Devi versus Container Corporation of India Ltd., WP (C) 38/2019 decided on 10.10.2019 wherein it has been held by the Hon'ble High Court that if the transfer is on the basis of misconduct or otherwise, the respondents had to conduct a finding inquiry before the order of transfer. It is indisputable that the employer is entitled to pass an order of transfer in administrative exigencies, but it is another thing to say that the order of transfer, if passed by way of or in lieu of a punishment, the same is liable to be set aside, being wholly illegal. In the instant case, the show cause notice was issued to the applicants and the reply has been filed and ultimately, the transfer order was issued vide Annexures A-23 and A-24 simpliciter on the ground of exigency. However, in the reply, the respondents have specifically submitted that in addition to administrative exigency, the impugned order was passed after considering the misconduct on the part of the applicants for inciting the other staff members to participate in the strike. In view of such position, impugned transfer orders, Annexures A-23 and A-24 are illegal. On the other side, the respondents have submitted that in view of the judgement passed by the Apex Court in S.L. Abbas (supra), the competent authority can transfer the employees in administrative exigency.
From the pleadings itself, the conciliation proceedings were pending before the competent authority qua the dispute of the demands of the employees and also the proceedings before the competent authorities were pending under Section 33 of the Industrial Disputes Act, 1947 and in the meanwhile, the respondents had issued the show cause notice and the applicants had replied to that. There is no averment in the reply regarding the decision qua the show cause notice. However, in their reply, the respondents have submitted that in addition to administrative exigency, the competent authority has also considered the conduct of the applicants for inciting the other staff members regarding their demands.
In view of above discussion, the impugned transfer order and relieving orders qua the applicant in both the OAs are held to be illegal. Hence, both the Original Applications are allowed and the impugned orders dated 04.12.2019 and 5.12.2019 (Annexures A-23 and A-24) are quashed and set aside. A copy of this order be placed in the other connected file as well.
There shall be no order so as to costs.
(RAMESH SINGH THAKUR) MEMBER (J)
ND*
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