Thursday, October 10, 2013

Bom OA No 51/2013

Bom OA No 51/2013



Dated this Tuesday, the 16th day of April, 2013.


Shri Krishna Arjun Sushilkumar Roy,
R/at Quarter No.1094 (A),
RB-II, 15th Block,
Bhusawal 425 201.     ...   Applicant

(By Advocate Shri Vicky Nagrani)


1. Union of India, through 
The General Manager,
Central Railway,
CSTM, Mumbai 400 001.

2. Divisional Railway Manager
Central Railway,
Bhusawal Division,
Bhusawal 425 201.

3. Dr. Sumant Deolkar
Sr.DCM, Nagpur Division,
Central Railway,
Nagpur 440 001.

4. Shri Deepak Sharma,
Central Railway Bhusawal Division,
Bhusawal 425 201. ...   Respondents

(By Advocate Shri V.D. Vadhavkar)
O R D E R 
Per: Smt. Leena Mehendale, Member(A)
This OA is filed on 15.01.2013 with the prayer to allow the applicant to resume his duty as CPC (Chief Parcel Clerk) Bhusawal. The interim prayer as requested was not granted, however, the matter was taken up for final hearing in view of a short point involved in the OA.
2. In this OA, the applicant prays for cancelling one alleged transfer order passed on or around 08.01.2013 without making such a prayer to the authority, thus without exhausting official remedy available to him.  He has also not informed us in the OA whether he is still under the condition of ill-health which was apparently his ground for not collecting the orders on 09.01.2013.  He does not inform us whether he has submitted any application for medical leave to his office and whether he has collected the alleged transfer order and the relieving order.  He thus prays for cancellation of a transfer order which is not before us. He narrates a back history as below:-
3. The applicant was posted as untrained clerk in the Central Railway in 1983 at Akola and on completion of training he came to Bhusawal in 1985. He was promoted as Parcel Clerk and transferred to Manmad in 1989 but was brought back to Bhusawal on his own request in the year 1990 that is within one year.  Thereafter he remained at Bhusawal till his transfer order No.77/2009 Annexure A-1 came to be passed on 27.04.2009 transferring him from BSL (Bhusawal) to BAU (Burahanpur) where he joined.  At Burahanpur, a charge-sheet was served on him on 26.08.2009 Annexure A-2 and vide order dated 01.02.2010 Annexure A-3 a minor penalty was imposed on him withholding his pay for one year without any effect on future increments. The appeal against this minor penalty was also rejected on 17.5.2010. In the meantime, on 02.02.2010 another charge-sheet was served on him for the reason of his absence on medical grounds without informing the office. Further, on submitting the proof of acknowledgment of sick report, the charge-sheet was withdrawn and he was exonerated by order dated 05.05.2010 Annexure A-5. Thereafter the applicant was transferred back to Bhusawal on 18.10.2010 and resumed his duty as CPC in January, 2011.
4. The applicant alleges that thereafter he had some quarrels with his senior officers as a result of which he was informed that he is being put under suspension as per the communication MMS of ACM (COG) BSL vide CC No.7/77 dated 26.7.2012. It is for this reason that he has impleaded Private Respondent Nos. 3 & 4 on ground of malafide.  He made a representation to the General Manager, Central Railway on 30.07.2012 Annexure A-8 alleging that one Shri Deepak Sharma was responsible for the events that led to his suspension and hence his suspension should be revoked.  However, the suspension was confirmed by order dated 30.07.2012 by Competent Authority.  Thereafter on 14.08.2012 the suspension order was revoked as seen from Annexure A-10.
5. The applicant claims that his transfer to Burahanpur as well as both the charge-sheets at Burahanpur were the result of his fight with one carting agent Mr. N.B. Agrawal at Bhusawal who was close to the Sr. DCM – Dr. Sumant Deolkar. Therefore, he filed a Regular Miscellaneous Case No.9/2012 before CJSDJ, Jalgaon. However, he has not produced any copy before us so we cannot know its contents.  The applicant states that in the said Miscellaneous Application he impleaded one more officer namely     Shri Deepak Sharma ACM (Coaching) but he does not explain how Shri Deepak Sharma comes in the said picture. He further alleges that the Competent Authority who issued and withdrew the suspension order at Bhusawal, namely Mr. N.G. Borikar Sr. DCM, Bhuswal did so for the purpose of forcing the applicant to withdraw his Miscellaneous Application against Deepak Sharma. The applicant gave in writing on 14.08.2012 where-after his suspension was revoked as stated above.  However, we find that the applicant has not alleged any malafide, nor impleaded the said Sr. DCM Mr. N.G. Borikar in the present Application.
6. With all this background that occurs from April 2009 to August 2012, the Applicant narrates that on 08.01.2013 he was orally informed that he was being transferred and on 09.01.2013 he found that one        Shri Sanju Surwade had taken over his charge as CPC. He was then informed that he has been transferred to Sholapur and that he should collect his relieving order from Station Master's Office. As narrated in paragraph 4.9 of the OA, the applicant has not collected the relieving order on the ground of increased Blood Pressure and he proceeded on sick leave apparently without leave application. Thereafter his wife submitted a request application for cancelling the said transfer order on 09.01.2013 Annexure A-11.
7. In his grounds at para 5 of OA, he claims that he cannot be transferred from Bhusawal Division to Sholapur Division as per the Rules of transfer in this regard.  However, we note from Annexure A-13 that the rule regarding transfer mentions the word “ordinarily”.  The Rules says  - 
“ordinarily, a Railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment” 
8. As second ground he alleges that Respondent No.3 – Sr. DCM, Nagpur Division and Respondent No.4 ACM, Bhusawal Division are behind his transfer due to their personal bias.  Towards this he narrates in paragraph 4.3 of OA the story of one Shri Vijay Tarun Bose, who is the servant of Agrawal - the Carting Agent.  He claims that this Vijay used to occupy his office and sleep on the table, where all the important record as well as cash of the Railway used to be kept and that he had instructions from CGS to note it down and he noted this fact in his diary on 18.03.2009 as well as 23.03.2009.  On third occasion dated 23.3.2009, after seeing a similar incident,  he threw out the said Shri Vijay from his office.  This in trun irritated Agrawal, Carting Agent and also Shri Dr. Sumant Deolkar, Sr. DCM and Respondent No.3 because of which he was first transferred to Burahanpur as narrated above.  He also alleges that it is the same agent who ensured a charge-sheet and minor penalty dated 26.08.2009 and another charge-sheet dated 02.02.2010 against which he was exonerated.  Thereafter he came to Bhusawal on transfer vide order dated 15.12.2010 as CPC.  As far as Respondent No.4 Shri Deepak Sharma, ACM (Coaching), is concerned the applicant alleges that he filed Miscellaneous Case No.9/2012 before CJSDJ, Jalgaon in which he had also complained against Deepak Sharma and hence the reason of bias and mala-fide by Respondent No.4 against him.  However there is not a single word with applicant to explain why Deepak Sharma's name was included in the case before CJSDJ – nor was the applicant produced anything about that case.
9. Applicant cites Somesh Tiwari Vs. Union of India & Others, (2009) 2 SCC 592 to put forth the ratio as regards malafide:-
“An order of transfer in an administrative order.  Transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fides on the part of the authority is proved.  Mala fides are of two kinds – first, malice in fact and second, malice in law.
..............................................................................................................When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.  No vigilance enquiry was initiated against appellant. Transfer order was passed on material which was non-existent.  The order suffers not only from non-application of mind but also suffers from malice in law.”
10. His third ground for canceling the transfer is that he is a heart-patient.  His fourth ground is that the transfer order is not as per administrative exigency.
11. We have heard both the learned counsel and the records filed by them.  The respondents have opposed admission, interim relief as well as main prayer.  The reply narrates an incident in paragraph 1, 2 & 4 that occurred in July, 2012 which arose out of an  inspection carried out by Deepak Sharma, ACM (Coaching) and which resulted in a suspension order dated 30.07.2012 w.e.f. 26.07.2012.  The reasons stated in the suspension order is that a Disciplinary Proceeding is contemplated against the applicant.  
12. We find that this suspension order is as per the procedure and is issued by the Sr. Divisional Commercial Manager – Shri N.G. Borikar, who is more senior officer than Respondent No.4.  The applicant is not alleging any bias or mala-fide against him.  It is stated by the respondents that the said Sr. Divisional Commercial Manager also gave a personal hearing to the applicant on 14.08.2012 during which the applicant submitted that he would not proceed with the false FIR made by him against Deepak Sharma, ACM and that is how the suspension was revoked on 14.08.2012 itself. The transfer order dated 08.01.2013 has come much later, that is after four months. The incident involving Carting Agent Agrawal and his servant Shri Vijay are even more remote as they are alleged to have happened in 2009 and do not have a bearing on the present case. 
13. It is stated by way of reply and we agree with it that since the applicant had made a complaint against Respondent No.3 – ACM for misbehaviour to the General Manager vide Annexure A-8, the complaint was investigated and it is reported that prima-facie there is a serious case of misconduct and misbehavior by the applicant himself.  The respondents are contemplating major disciplinary proceedings and hence it is noted by senior officers that there is need to transfer the applicant out of the Division.  
14. Learned counsel further submits that Railway being a big Organization random inspections by middle level officers are required from time to time.  When a misbehaviour such as:
“Applicant being without uniform;
“Applicant being without name badge;
“An empty Vodka Bottle being kept on the rack of the applicant; and
“Applicant immediately starting to shout and misbehave etc.
is noticed, the higher authorities are required to take action in order to maintain the discipline and smooth functioning of the Railway. Further, the contention of bias and mala-fide raised by the applicant against Respondent No.3 - Dr. Sumant Deolkar, appears to be not connected in any way with transfer posting or minor charge-sheet to the applicant.  The allegation of bias against Respondent No.4 – ACM also has no bearing on the order of transfer which is passed after a prima-facie serious case of misconduct and misbehaviour of the applicant noticed by Sr. Officers.  There is no reason for Shri S.C. Phatak who conducted the enquiry into misconduct to have any bias against the applicant.
15. The learned counsel for the respondents also cites the judgment of Union of India and Others Vs. Janardhan Debanath & Another, 2004 SCC (L&S) 631 where it is held as below:-
Transfer – Inefficiency or misbehavior – Transfer to another post in the same cadre on account of inefficiency or misbehavior, held, not barred by FR 15 – Fundamental Rules – Frs 15 and 14-B – Scope of FR 15 – Posts and Telegraphs Manual, Vol. IV, R. 37.

B. Transfer- Transfer on the ground that the employee concerned was “undesirable” as he had misbehaved – If to be preceded by departmental enquiry – Such transfer unless adversely affecting the service conditions or status or service prospects or leading to penal consequences, held, need not be preceded by the same type of departmental enquiry as is conducted in cases leading to dismissal, discharge, etc. - Prima facie satisfaction of the authority concerned based on contemporary reports, sufficient – Utmost latitude should be given to the department concerned to enforce discipline, decency and decorum in public service – Administrative Law – Natural justice

C. Transfer – Postal Services Department – Transfer of employee of, to a different division – Propriety of, held, has to be determined by the employer upon the administrative necessities and the extent of solution thereof – Supreme Court cannot give a direction in this regard one way or the other – Posts  and Telegraphs Manual, Vol. IV, R.37 – Constitution of India, Arts.136 and 226.

The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming.  Whether there was any misbehavior is a question which can be gone into in a departmental proceeding.  For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehavior or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. 
The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems  faced by the administration.  It is not for the Supreme Court to direct one way or the other.”  
16. The Respondents also cites the judgment of Hon'ble Supreme Court in the case of State of Madhya Pradesh and others Vs. S.S. Kaurav & Ors. Reported in JT 1995 (2) SC 498.  It has been held that;
“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 Courts or Tribunal are not expected to interdict the working of the administrative system by transferring the officers to proper places.  It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by malafide or by extraneous consideration without any factual background foundation.” 
17. As such the learned counsel prays for dismissal at the stage of admission.  We have perused all the documents and citations and we are inclined to agree with the learned counsel for the Respondents.  More importantly, we also notice that the applicant has neither collected his transfer order and relieving order nor made any unambiguous statement about his present health, nor made any application for sanction of the leave which is required as a first step when he wants any leave, nor exhausted the remedy of making a representation to the authorities against his transfer order.  
18. In view of all this, we conclude the OA lacks merit and is, therefore, dismissed.  The applicant shall also pay token cost of Rs.2,000/- each to Respondent No.3 & 4 for unnecessarily impleading them by alleging mala-fide and bias against them.  No order as to costs.

(Smt. Chameli Majumdar)    (Smt. Leena Mehendale)
    Member(J)               Member(A) 


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