Sunday, July 14, 2013

chk Bom OA. No.342/2012 on 10-06-2013

Bom OA. No.342/2012 on 10-06-2013  chk --was it DB



DATED THIS Monday, THE 10th DAY OF June, 2013.


Shri Mukesh B. Madhavddas,
working as Sr. Ticket Examiner,
R/at Flat No.84/7, Railway
Colony, Andheri (E),
Mumbai – 400 069.        ...      Applicant

(By Advocate Shri S.V. Marne)


1.  Union of India through
    The General Manager,
    Western Railway,
    Churchgate, Mumbai 400020.

2.  Divisional Railway Manager,
    Western Railway,
    Mumbai Division, Mumbai
    Central, Mumbai 400008.

3.  Senior Divisional Commercial
    Western Railway,
    Mumbai Division, Mumbai
    Central, Mumbai 400008.       ...   Respondents

(By Advocate Shri V.S. Masurkar)

Per: Smt. Leena Mehendale, Member (A)
This OA is filed on 07th June, 2012 praying for quashing the transfer order No. E/C/839/DAR Vol V dated 25/04/2012 (Annexure A-1) mainly on ground of malice.

2. The brief facts about the applicant are that he was appointed as ACC (Assistant Commercial Clerk) in Western Railway on 01.10.1994. Through various promotions, he reached the post of Senior Ticket Examiner in May 2008. During this entire period his posting has remained within the limits of Bombay from Churchgate to Nallasopara although his job is transferable all over Western Railway. He has alleged some instances of misconduct of traveling without ticket by some officials of Railway but he has not impugned any one of them.  

3. The order contains following:-
That Applicant is transferred to Vapi in the same scale and pay.
He should be debarred from cash handling duties.
He should be relieved without any delay to report to the new place of posting.
He should join the new posting within 15 days from the date of issue of the order failing which his payment should be stopped, etc.

4. The background as stated by the Applicant is that he was appointed as ACC (Assistant Commercial Clerk) in the Western Railway on 01.10.1994, thereafter promoted as Ticket Collector in January 1997 and as Senior Ticket Examiner in May 2008.  He claims that he was given several awards and appreciation letters for his skill of detection of fraud passes and unauthorized Travel agents.  

5. He avers that he came to know that on 18.08.2008, an order of his dismissal from service was passed by Sr. DCM-BCT, Mr. R. Gopalkrishna (Annexure  A-2).  The reason stated in this order of dismissal is as below :- 
“Applicant had associated himself in physical assault without any provocation of Shri D. Roy thus has vitiated the entire working atmosphere in the office.  If action was not taken on the very same day, then the entire working of the office would be disturbed.  An enquiry was not possible as the plausible administrative witnesses Shri K.V. Desai and Shri Chagan Fulani have expressed their inability to associate any further with the case.  Hence, in exercise of the powers conferred under Rule 14(2) of Railway Servant Disciplinary and Appeal Rules, 1968, the Disciplinary Authority is of the opinion that a normal DAR process is impractical in this case.  Therefore, holding detailed enquiry is impractical.”  

The Sr. DCM, therefore, imposed -
“In such a scenario, I impose the penalty of dismissal from service on Shri Mukesh B. Madhavdas, Sr. TE-CCG”.

6. However, on an appeal dated 08.09.2008 filed by the Applicant, the Appellate Authority cancelled the penalty and gave instructions to get an enquiry conducted in terms of Rule 22 of RS DAR 1968.  Accordingly, the Disciplinary Authority passed a new order dated 30.06.2009 Annexure A-3 framing charges and appointing Inquiry Officer.  This order specifically mentions that;
“The issue of charges does not confer any right of challenging/quashing the order of dismissal imposed vide NIP of even no. dtd.18/08/2008 in terms of DAR Rule No.14(ii). The order of dismissal would remain intact till disposal of appeal, as the appellate”

“The order of dismissal will remain intact till disposal of appeal as Appellate Authority has only ordered for conducting an Enquiry and not for reinstatement.  The final decision will be taken by the Appellate Authority after the conclusion of enquiry.”

7. This new order for DE dated 30.06.2009 was challenged in OA No.457/2009 Annexure A-4 dated 09.03.2010 is the order passed by this Bench under which it was held that the applicant has to be reinstated in service w.e.f. 30.06.2009 i.e. the date on which the charge-sheet was issued to the applicant.  The order further says that upon eventual completion of disciplinary proceedings in addition to taking decision as to exoneration or imposing penalty, if any, the respondents shall also decide the treatment to be given to the entire period starting with the actual date of dismissal; i.e. 18.08.2008; till the date of culmination of the pending disciplinary proceedings.  A Writ Petition filed by the Railway Administration was dismissed on 01.10.2010. Hence the respondents reinstated the applicant on 12.11.2010, Annexure A-6 w.e.f. 30.06.2009 with a clause that the period from 18.8.2008 (date of dismissal) to 30.06.2009 (date of  charge-sheet) and from 01.07.2009 till completion of disciplinary proceeding, would be decided on culmination of disciplinary proceeding being continued against him.  However, on the same day, he was also put under suspension by DGM(P), who later revoked the suspension vide order dated 16.4.2012 Annexure A-7.

8. Thus, the applicant resumed his duty as STE (Senior Ticket Examiner) at Churchgate Station on 24.4.2012 and also received his salary till end of May, 2012.  Thereafter, he heard on 04.06.2012 about his transfer order from Churchgate to Vapi which he claims  has not been served on him by the Railways.  He also claims that the said transfer order was issued nearly a 15 days back i.e. On 25.04.2012 but had remained with the Grant Road Station and came to Churchgate Railway Station on 04.06.2012.  He claims that Annexure A-1 is a copy of his transfer order which he has obtained himself.  

9. The order specifically mentions that he would be transferred to Vapi in the same scale of pay but would be debarred from any cash handling duty.  It further instructs that he should be relieved without any delay to report to the new place of posting and join there in any case within 15 days, failing which his payment of salary would be stopped.  He challenges this order in the present OA.

10. The applicant has pleaded that the impugned order is arbitrary and punitive since it has the background of his earlier summary dismissal and now the ongoing enquiry.  He claims that despite the order of the CAT for his reinstatement, he was initially put under suspension which shows the vindictiveness of the respondents against him. He further claims that he is being harassed for his alleged involvement in assault  on the IRTS Officer.  This case of his alleged assault on Shri Roy, Senior Railway Officer was persuaded through FIR in the Court of Additional Chief Metropolitan Magistrate, 46TH Court, Mazgaon, Mumbai, in which, he has been acquitted.  He further claims that in the said criminal proceedings, the concerned officer Shri Roy had deposed that the applicant had not assaulted him.
11. Second ground taken by the applicant is that despite issuing the charge-sheet the respondents are not progressing with the enquiry but are keeping it pending so as to harass him.  It is the same intention of harassment by transferring him to Vapi.

12. The applicant claims that the transfer order is arbitrary since it is directed that the applicant should be debarred from cash handling duties.  Such a direction is given for humiliating the applicant.  The transfer order is not issued in administrative exigencies.  He has been transferred to a far off place so as to cause maximum possible harassment.  

13. Finally he also claims that the said transfer order would severely prejudice him as he will have to vacate the Residential Quarter on transfer to Vapi.  The applicant avers that the chronology of the events of transfer point to its punitive nature and, therefore, it must be quashed.  

14. The respondent Railway department has filed the reply statement to answer all these points.  They have denied that the impugned transfer order is either arbitrary or vindictive or illegal. First and foremost,   the contention of the applicant that he is transferred to a far of place in Gujrat is misleading.  Firstly Vapi falls within Mumbai Division and the applicant is transferable anywhere in Mumbai Division. Although, in Gujarat State, Vapi is geographically just at the outskirts of greater Mumbai, so much so that several Railway employees travel daily between Vapi and Mumbai for their duties.  Moreover, the applicant has never made any representation to the respondents against the transfer order, hence the OA is premature under the provisions of Section  22  of  Administrative  Tribunals Act, 1985.  The service record of the applicant shows that he was appointed on 01.1.1994 and selected as TC on 31.01.1997 and further promoted as Senior Ticket Examiner w.e.f. 19.12.2007.  During all these years he has served only between the Railway station of Churchgate and Nallasopara both being part of Mumbai suburban.  For the first time, he has been posted to Vapi which itself is not of very far off from  Mumbai.  This is so even when his post is transferable within the entire geographical extent of Mumbai Division that goes upto deep north in Gujrat. The plea of the applicant that he will be harassed and his aged parent will also be harassed because of non-availability of house at Vapi is incorrect because under the present Rules he would be allowed to retain his present residential accommodation.

15. Further, there is no mala fide or violation of any statutory Rule or of the orders passed by any Statutory Authority.  Earlier the applicant was issued with a dismissal order dated 18.8.2008 on the ground that applicant was involved in physically assaulting Shri D. Roy, thereby vitiating the working atmosphere in the office.  The said order itself pointed out that it was issued in exercise of powers conferred under Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules, 1968.  Thereafter on instructions of the Appellate Authority it was decided to hold departmental enquiry and give him an opportunity, hence a charge-sheet dated 30.06.2009 was issued.  Thereafter, in view of the CAT decision in OA No.457/2009 he was also reinstated although under suspension.  At a later date, the suspension was also also revoked and he was posted on duty at Churchgate.

16. The learned counsel for the respondents draws our attention to a typical false claim by the applicant through para 5 of the Reply statement, which says:

“(5) At the outset, the applicant was relieved w.e.f. 05-06-2012. He filed OA on 07-06-2012, since he came to know that he is relieved w.e.f. 05-06-2012.  This aspect is suppressed by the applicant as can be seen from the expartee order dated          07-06-2012 passed by the Hon'ble Tribunal.”   

17. The learned counsel compares this statement with the relevant statement made at para 4.9 by the applicant, which narrates about how the applicant did not get served with the transfer order by the respondents, but simply obtained it from the Station Superintendent GTR.  The applicant  also claims at para 9 for claiming interim prayer that he was on sick leave on 04.06.2012.  However, he has not produced any medical records of his illness nor has he made any proper application to the Railways as per the rules.  Thus, he being unauthorized absence from office from 04.06.2012, cannot claim he has not handed over the charge and this clearly shows that he has obtained an interim stay through falsehood.

18. The respondents have also relied on several citation regarding the scope of administrative machinery to transfer an employee and the scope of judicial interference with the same.

A. 2001 (3) SC 436, State Bank of India Vs. Anjan Sanyal and Others, held:
“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 malafide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order”.

B. JT 1995 (2) SC 498, State of Madhya Pradesh and others Vs. S.S. Kourav and Others, held:
“the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the court or Tribunal are not expected to inderdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by malafide or by extraneous consideration without any factual background foundation.”

  C. (1994) 28 ATC 246, N.K.Singh Vs. Union of India, held:
“Transfer-Scope of judicial review-Interference justice only in cases of malafide or infraction of any professed norm or principle-Where career prospects remain unaffected and no detriment is caused, challenge to the transfer must be eschewed”.

D. (2006) 9 SCC 583, S.C.Saxena Vs. Union of India and Others, held:
“a government servant cannot disobey a transfer order by 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. Such tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.”

  E. 2010 (1) SLR (SC) 633, Rajendra Singh Vs. S/O UP, held:
“Article 16/226- Transfer-State Govt. emphatically refuted the allegation of malafide and denied that the order of transfer was stigmatic or punitive-a Govt. servant has no vested right to remain posted at a place of his choice nor can be insist that the must be posted at one place to the other. He is liable to be transferred in the administrative exigencies from one place to the other-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 contrary-Transfer of writ petitioner, cannot be said to be stigmatic and any observation made in the transfer order about work and conduct of writ petition, shall not be read adversely by authorities against him.”

19. The respondents have further pointed out at para 11 that the applicant, when he was earlier under order of dismissal w.e.f. 18.08.2008, was found traveling in the Railway Pantry Car of 12952 UP of 25.10.2008 without any traveling authority and did not cooperate during Vigilance check. For this purpose, it was stated that major charge-sheet should be proceeded him. The respondents have denied any act of malafide, which the applicant claims through the narration of para 4. They rely on the Supreme Court judgment in the case of S/O UP Vs. Gobardhan Lal, 2004 (2) SCSLJ 42, held:

“Transfer- whether Courts or Tribunals can substitute their own decisions in the matter of transfer for that of competent authority-No. Even challenge to transfer on account of malafide must be such as to inspire confidence in the Court or based on concrete materials- Mere allegations of malafide or on consideration borne out of conjecture or surmises without any strong and convincing reasons cannot be a ground to interfere with the order of transfer.”

20. I have gone through all the records produced by both the sides and the pleadings and documents before the Bench.  The learned counsel for the applicant have also cited few cases to show that a transfer of mala fide can be gone into in a judicial review.  However, he has not explained, as to who among his seniors has any reason for mala fide against him and for what reasons, nor has he impleaded anyone as respondents.  A change of mala fide cannot be made lightly.  At para 4.4 and 4.5 of the OA, the applicant has talked about two different railway employees, who he claims were traveling without ticket when he caught them.  However, none of them is Mr. D.Roy, whom the applicant is alleged to have assaulted or Mr. Gopal Krishnan, Sr. DCM-VCT, who has given him the charge-sheet or Mr. Ajay Prakash, DCM(P), who issued his suspension order on 11.11.2010.  These are all different people, and the applicant has not stated as to why anyone of them should have malice against him. 

21. The applicant claims to have received the transfer order on 25.04.2012 through its own effort but denies to have received the relieving order issued by the office on 05.06.2012 on the ground that he was on sick leave from 04.06.2012 (para 9 of the OA).  He has, however, not filed any documents regarding his sick leave before us, nor explained whether he still continues on sick leave.

22. Coming  to  the  merit  of  the  transfer  order,  I  find  that  the  DRM,  who  is  the  Senior Officer responsible for proper running of the Railways on almost minute to minute basis needs to ensure that a proper discipline is maintained at the Railway Station and for this purpose, he has authority to issue transfer orders as well as put a ban on cash handling by any officer below him.  The transfer of the applicant to Vapi Station is at minimal distance away from Mumbai, where the applicant has worked so far throughout his service, despite his job being transferable any where in the Western Division.  If such authority of transfer, now exercised by the DRM is taken away or interfered with lightly, then it may be impossible for him to maintain any discipline and this will  effect  the  smooth  running  of  the  large numbers  of  trains  running  under  the  Western Railways.  The  applicant  has  been  acquitted  by Criminal Court for the offence of physical assault on D.Roy.   However, it is to be appreciated that a conviction in the criminal case requires that the criminal  charge  is  proved  absolutely  and  beyond doubt.  The perception of discipline and appropriate action  for  maintaining  such  cannot  be  compared  with conviction in criminal case.  The action of the DRM  does  not  need  that  a  criminal  charge  be proved  beyond  doubt.  Imposing  a  transfer  order  as  a  punitive  measure  is  different  from  issuing the transfer order with objective to avoid likely erosion of discipline.

23. Considering  the  above  and  also  in  view  of the ratio of judgments cited by the respondents, I do not  find  any  reason  to  interfere  with  the  order  of  transfer  to  Vapi  along  with  the  direction that  the  applicant  may  not  been  given  any  Cash  Handling  duty  at  the  Vapi  Railway  Station. 

24. In view of this, the OA is dismissed.  No order as to costs.

   (Smt. Leena Mehendale)


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