JUDGMENT
Manmohan Sarin, J.
Page 3122
1. The above writ petitions are being decided by this common judgment since the legal plea sought to be raised in assailing the transfer orders is the same.
2. Petitioners impugn and assail inter-divisional transfers pursuant to the Circular/Policy dated 2.11.1998 in relation to the Ticketing and other Staff in mass contact, found to be indulging in malpractices. Transfers without completion of the departmental enquiry or notice to show cause are assailed as being illegal and in violation of principles of natural justice.
3. Two of the petitioners namely Sudhir Kumar, petitioner in WP(C) No. 17165/2005 and Ganesh Din, petitioner in WP(C) No. 6082/2005 assail the common judgment dated 15.3.2005, passed by the Central Administrative Tribunal deciding O.A. No. 1405/2004 and O.A. No. 1670/2004 and O.A. No. 2743/2004 by one Devinder Singh, who is not one of the petitioners in this batch of writ petitions. By the said judgment, the Tribunal had dismissed the above O.As challenging the inter-divisional transfer orders. For facility of reference, the facts of individual writ petitions and specific pleas, if any, raised other than the common ground as noted above, are summarized hereinafter.
2. WP(C) No. 6082/2005 (Ganesh Din)
(i) Petitioner Ganesh Din had joined Railways as a Luggage Porter in October, 1973. He was promoted as Parcel Clerk, a Group ‘C’ post, on 1.11.1987 and Senior Parcel Clerk in 1993. On 19.10.2003, the Vigilance Inspector conducted a raid using a decoy passenger. It is alleged against the petitioner that he charged Rs. 20/- in excess over and above the normal freight from the decoy. The excess amount is alleged to have been recovered from Ganesh Din. A charge-sheet was issued to the petitioner and disciplinary enquiry was initiated on 5.3.2004 Petitioner was transferred from Ferozpur Division to Ambala Division. Petitioner assailed the said transfer in the O.A., which was dismissed. Hence, the present writ petition. Ganesh Din contended that he had been falsely trapped and Rs. 60/- were thrust into his pocket and before he could react, the Vigilance Inspector had pounced upon him and proceeded with the allegations. It appears that subsequently, the explanation given was that he had received Rs. 20/- for arranging a license porter, which was not found plausible.
(ii) On 21.4.2005, the respondents’ statement regarding retention of status quo with regard to the service of the petitioner till the next date was recorded. The interim order was directed to be continued till 16.9.2005. It appears that no formal orders extending the interim orders were passed thereafter till the matter was heard on 30.8.2006.
3. WP(C) No. 17165/2005 (Sudhir Kumar)
(i) Petitioner Sudhir Kumar was posted as the Head Traveling Ticket Examiner. On 16.1.2002, a charge-sheet was issued alleging that he had demanded and accepted Rs. 100/- from a decoy passenger Page 3123 and also created artificial shortage of cash. An Inquiry Officer was appointed and the Inquiry Officer held one of the charges as proved and the other two partially proved. Reduction in pay by two steps in the same scale for three years with cumulative effect was the penalty imposed. The Appellate Authority rejected the appeal of the petitioner. A notice was issued for enhancement of penalty and the Revisional Authority enhanced the penalty of reduction in pay for three years. On 21.5.2004, he was transferred from Ambala Division to Ferozpur Division and since then, petitioner has been transferred to the Delhi Division at his request. Petitioner challenged the inter-divisional transfer. Petitioner contended that resort to the circular in his case could not have been had as this disciplinary authority had exonerated him from any charge of malpractices, mala fides and had found him responsible for negligent conduct only. The circular was challenged as being void ab initio otherwise.
(ii) Notice to show cause was issued on 6.9.2005 and the respondents undertook to maintain status quo with regard to the service of the petitioner till the next date. The interim order was extended up to 12.1.2006. However, formal orders extending the interim order were not passed till 30.8.2006 when the matter was heard.
4. WP(C) No. 36-37/2006 (Shiv Raj Singh and Sat Pal Singh) (Shiv Raj Singh)
(i) Shiv Raj Singh was initially appointed as a Booking Clerk and posted at Ambala Cantt. on 26.12.1996. In 1998, he was promoted as Senior Booking Clerk and in 2002, as the Head Booking Clerk. A raid was conducted by Vigilance Inspector on 25th May, 2004 Rs. 179/- were alleged to have been found in excess. A charge-sheet dated 1.10.2004 was issued for defrauding the Railways and holding excess amount in Government cash without convincing reasons. Petitioner contends that neither enquiry had been conducted nor opportunity of hearing given but he was transferred on 11.10.2004 from Ambala Division to Delhi Division on the basis of the Circular dated 2.11.1998. The Vigilance raid was also assailed as having been conducted in contravention of the Rules without employing independent witnesses.
Sat Pal Singh
(i) Sat Pal Singh had been initially appointed as Luggage Porter in the year 1979, promoted as Parcel Clerk and Senior Parcel Clerk in 1995 and 1999 respectively. While being posted as Senior Booking Clerk, Ambala Cantt., he was transferred vide impugned order dated 2.7.2003 from Ambala to Delhi Division on administrative ground in public interest. A charge-sheet was issued dated 22.5.2003, alleging that he had committed serious irregularities and had accepted extra amount over the actual fare from decoy passenger. The excess amount was found with him at the time of checking. The sum of Rs. 23/- being excess in a total amount of Rs. 42,788/- was claimed by petitioner to be well within the limits laid down by the Railway Board. Limit of Rs. 30/- in shortage/excess of cash on hand is permissible Page 3124 because there was an acute shortage of coins and small currency notes. Petitioner contends that being a Group ‘C’ category employee, he should not have been transferred from one Division to the other till the disciplinary proceedings against him were finished. Apart from challenging the vigilance action as being contrary to the rules, the Circular of 2.11.1998 was assailed as illegal. It was claimed that the earlier Circulars of 25.3.1967 and 30.10.1998 still held the field. Accordingly, transfers on inter-divisional basis till completion of the disciplinary proceedings were not to be done. This was the harmonious interpretation to be given on a combined consideration of all the circulars as per the Petitioner.
5. WP(C) No. 3942/2006 (M.P. Kushwaha)
(i) Show cause notice in this writ petition was issued, returnable on 30.8.2006 and respondents were directed to maintain status quo.
(ii) Petitioner was posted as the Head Booking Clerk under Station Master Delhi. He was alleged to have accepted Rs. 8/- in excess from a decoy passenger on 24.1.2003 and was awarded a major penalty of reduction in pay by two stages in the same time scale of pay for a period of two years vide orders dated 21.12.2004 In appeal, the Appellate Authority held that charge No. 1 relating to demand of Rs. 8/- in excess amount from decoy passenger was not conclusively proved. The second charge was of Re.1/- being found in excess. The penalty of reduction of pay by two stages in same time scale for two years with cumulative effect, was reduced to reduction of pay by two stages, in same time scale for six months with cumulative effect. Thus, after 9.8.2005, nothing in terms of disciplinary action survived. On 21.10.2005 when the penalty had ceased to have any effect and his conduct was not under investigation, he was transferred from Delhi Division to Ferozpur Division. Petitioner claims that the transfer was contrary to Railway Board’s letter No. E(NG)I/68/SR6/28 dated 25.1.1969. It affected his seniority among the other booking clerks. He claims that the present facts and circumstances did not warrant an inter-divisional transfer. It has inflicted hardship on the petitioner and his aged parents of 86 and 82 years with his son in class 11th. This, the petitioner urges was not a case where transfer was either absolutely necessary or was inescapable. Petitioner, therefore, challenges the order of the Tribunal in O.A. No. 2580/2005 dismissing the said O.A. assailing the transfer. The transfer order is also assailed as being violative of Articles 14 and 16 of the Constitution of India. It is alleged that there was no public interest sub-served or any administrative exigency of service warranting transfer of the petitioner to a different Division.
6. Let us first consider the common grounds raised in these writ petitions in assailing the transfers. Firstly, it is contended that the transfers are punitive and rest on the foundation of misconduct of the employee. Reliance is placed on State of Uttar Pradesh v. Sughar Singh reported at 1974 (1) SLR 435 to urge Page 3125 that if the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be done by way of punishment no matter whether he was a mere probationer or a temporary servant. It is further submitted that the punishment cannot be arbitrarily meted out without holding initial enquiry and giving an opportunity of hearing to the concerned employees.
7. Mr. Rajiv Shakdhar, learned senior counsel for the petitioner made submissions in the lead case of Ganesh Din on behalf of the petitioners, which are adopted by the other petitioners. Mr. Shakdhar urged that the foundation of the transfer orders rested on the allegations of acceptance of illegal gratification while discharging duties. He submitted that till the enquiry was pending, employee should not have been visited with a penal transfer. He submitted that Rule 226 as well as the Circulars of 29.3.1962 and 25.3.1967 itself provide that non-gazetted staff whose conduct is under investigation for charges meriting dismissal, removal from service, should not be transferred from one Railway to another till after the finalization of the departmental or criminal proceedings against them. He submits that the harmonious interpretation of the said Rules as also the Circular of 2.11.1998 on which reliance is placed by the respondents, would be that while resort can be had to transfer in cases of Ticketing Staff and employees who are in mass contact being found to be indulging in malpractices, the same should await the outcome of the departmental enquiry and this would be the most reasonable way of harmoniously interpreting the various provisions.
8. For a proper appreciation of the matter in controversy, it would be appropriate to reproduce the relevant extracts from these provisions:
Rule 226
Ordinarily, a Railway servant shall be employed throughout his service on the Railway or Railway establishment to which he is posted on the first appointment and shall have no claim as of right for transfer to another Railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the Railway servant to any other department or Railway or Railway establishment including a project in or out of India. In regard to Group ‘C’ Group ‘D’ Railway servants, the power of the President under this Rule in respect of transfers within India could be exercised by General Manager or by the lower authority to whom the power may be re-delegated.
Copy of Board’s letter No. E(DandA) 65 RG 6-6 dated 25.3.1967 addressed to the G.Ms., All Indian Railways and others.
Transfer of Railway staff whose conduct is under investigation
——-
Reference Board’s letter No. E(DandA) 62 RG6-15 dated 29.3.1962 wherein it was laid down that non-gazetted staff whose conduct is under investigation for charges meriting dismissal/removal from service, including those under suspension should not be transferred from one Railway administration to another till after the finalisation of the departmental or criminal proceedings against them. Page 3126 The Board have considered the matter further and have now decided that non-gazetted staff against whom a disciplinary case is pending or is about to start, should not normally be transferred from one Railway/Division to another Railway/Division till after the finalisation of the Departmental or criminal proceedings, irrespective of whether the charges merit imposition of a major or a minor penalty.
GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)
——-
NO. E(NG)I-98/TR/11 NEW DELHI, dated 2.11.1998
The General Manager,
All India Railways.
(As per standard list).
Sub.: Inter-divisional transfer of ticket checking staff and other staff in mass
contact areas.
——-
1. In terms of existing instructions ticket checking staff detected to be indulging in malpractices, are required to be invariably sent on inter-divisional inter-railway transfer as a matter of policy.
2. The question of feasibility of effecting inter-divisional transfer of staff in mass contact areas including ticket checking staff, was discussed in the Conference on Malpractices and Corruption in Mass contact areas organized by the Ministry of Railways on 10.7.98.
3. Pursuant to the above discussion, it has been decided that while the existing policy of inter-divisional/inter-railway transfer of ticket checking staff detected to be indulging in malpractices shall continue, other staff in mass contact areas detected to be indulging in malpractices should also be transferred on inter-divisional basis.
Please acknowledge receipt.
Sd/-
Join Director Estt.(N),
Railway Board.
GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)
——-
NO. E(NG)I-98/TR/11 NEW DELHI, dated 30.10.1998
The General Manager,
All India Railways.
(As per standard list).
Sub.: Inter-divisional transfer of staff repeatedly figuring in Vigilance cases.
——-
1. The question of effecting inter-divisional transfer of staff repeatedly figuring in vigilance cases and where penalties have been imposed, was discussed in the Conference on Malpractices and Corruption in mass contact areas organized by the Ministry of Railways on 10.7.1998.
2. It has been decided that the cases of staff who have repeatedly figure in substantiated vigilance cases and where penalties have been Page 3127 imposed, should be reviewed at appropriate level and such staff transferred on inter-divisional basis.
Please acknowledge receipt.
Sd.: J.S. Gusain.
Joint Director Estt. (N),
Railway Board.
9. Let us consider the said Rule and Circulars. Rule 226 contemplates the retention of a Railway employee in the Railway or Railway establishment in which he is first posted. The Rule excludes any claim or right on the part of the employee to seek transfer to another Railway or another establishment. Provision is, however, made for transfer to another Railway or another establishment in the exigency of service by the President or by the General Manager or his delegatee in case of Group ‘C’ and Group ‘D’ employees. Transfer is thus, provided for only in the exigency of service. It would show that the exigency of service which was contemplated was something more than a usual administrative transfer.
10. Coming next to the circular of 25.3.1967 which dealt with the transfer of non-gazetted staff whose conduct was under examination. the circular provides that non-gazetted staff against whom a disciplinary case was pending or was about to start should not be transferred from Railway or one division to another till after the finalization of the departmental or criminal proceedings. This was applicable irrespective of whether the inquiry was in respect of a conduct which invited either a major or minor penalty.
11. Circular No. E(NG) I-98/TR/11 dated 30.10.1998 covered inter- divisional transfer of staff figuring repeatedly in the vigilance cases. The circular records the decision taken in the conference that staff, who repeatedly figures in substantiated vigilance cases, where penalties have been imposed, should be reviewed at appropriate level and such staff can be transferred on inter-divisional basis.
12. Mr.Shakdhar submitted that Circular of 2.11.1998, which provides for inter-divisional, inter-Railway transfer of ticket booking or other staff, who are posted in mass contact areas and found to be indulging in malpractices really does not override the other circulars referred to hereinbefore. A harmonious interpretation of the circular of 2.11.1998 would be that while resort can be had to transfer in cases of staff in the ticket booking or in postings of mass contact as are found to be indulging in malpractices, the same should, however, await the outcome of the departmental enquiry. This, he submits, would be the most reasonable way to harmoniously interpret the circulars by giving effect to the intent of the policy as also securing adherence to principles of natural justice and excluding arbitrary exercise of powers. He submits that transfers, which are founded on misconduct, attach a stigma and hence, compliance with principles of natural justice prior to taking action was necessary.
13. Rule 226 and the above circulars have been carefully perused by us. We have also gone through the judgment of the Full Bench of the Central Administrative Tribunal in O.A.Nos. 1670/2004, 2743/2004 and 1405/2004 Page 3128 covering the cases of Sudhir Kumar and Ganesh Din as also the judgment of the learned Single Judge of this Court in CWP No. 14596/1997 titled Union of India v. Shri A.K. Gandhi and Ors. where the validity of inter-divisional transfer was considered. He was considering a challenge to the judgment of the Tribunal, where an inter-divisional transfer had been quashed. Learned single Judge rejected the plea that the transfer was in violation of the statutory Rules. He held that Rule 226 of the Indian Railway Establishment Code (Volume-I), which gives power to the authority to transfer a Railway servant to inter-zonal Railway in the exigency of service to be valid. The transfer made was in public interest, to provide clean administration in mass contact areas and was in the exigency of service. Power was also vested in the Competent Authority to pass an order of transfer in the case of a Railway employee detected to be indulging in malpractices in mass contact areas on inter-divisional basis in terms of circular of 2.11.1998. The circular read with provisions of Rule 226 of the Indian Railway Establishment Code (Volume-I) supports the action taken in transferring the employee.
14. We are fully in agreement with the judgment of the learned Single Judge in CWP. No. 14596/97, titled Union of India v.A.K.Gandhi and others and the reference as answered by the Full Bench of the Central Administrative Tribunal.
15. We are of the view that the circulars of 25.3.1967 and 30.10.1998 deal with the transfer of non-gazetted staff of the railways, whose conduct is under investigation. These circulars dealt with the non-gazetted staff in general, while the circular of 2.11.1998, is specifically dealing with ticket checking staff and other staff posted in mass contact areas, who are detected to be indulging in malpractices. While in the case of non-gazetted staff whose conduct is under investigation, the Board’s letter dated 29.3.1962 as also the Circular of 25.3.1967, provide that they should not be transferred from one Railway administration to another till conclusion of the departmental proceedings. In fact, a Model Time Schedule as it appears at page 67 of the paper book seeks to reduce the earlier Model Time Schedule of 202 days to 150 days so as to achieve expeditious completion of departmental enquiries within a period of five months so that following the enquiry and its results, action can be taken.
16. The Railways as a matter of policy and in their wisdom have carved out a different treatment for employees, who are either posted in the ticket checking or other areas of mass contact and are found to be indulging in malpractices. Inter divisional transfer for these persons has been provided by the circular dated 2.11.1998. The transfer need not await the completion of departmental inquiry as for the other non-gazetted staff whose conduct is under examination. The objective is to root out corruption totally from the posts, which are in public contact or having public dealings. The different treatment is clearly justifiable based on a reasonable classification and an intelligible differentia. The railways cannot be faulted with for taking strong and vigorous steps to project a clean image and towards that end to effect transfer necessary in public interest. Transfer is an incidence of service and unless the transfer is vitiated by mala fides or by extraneous considerations, the Courts are loathe to interfere. Courts are not expected Page 3129 to interdict the working of the administrative system by interfering in transfers as held by the Supreme Court in the State of Madhya Pradesh and Anr. v. Sri S.S. Kourav and Ors. . No Government servant or employee has a legal right to be posted at a particular place. Transfer apart from being an incidence of service is also a condition of service necessary in public interest for maintaining efficiency in public administration as held in National Hydro Electric Power Corporation Ltd. v. Shri Bhagwan and Anr. .
17. In view of the foregoing discussion, we reject the challenge to the Circular of 2.11.1998 as being discriminatory and violative of Article 14 of the Constitution of India or being arbitrary and punitive in nature. As noticed earlier, the Circulars dated 25.3.1967, and 30.10.1998 prescribing a restraint on transfers pending the disciplinary or departmental enquiry are intended for the general non-gazetted staff of railways, while the circular of 2.11.1998 deals specifically with the railways staff posted in ticketing and the areas of mass contact.
18. In view of the foregoing discussion, writ petitions are disposed of as under:
WP(C). No. 6082/2005
Petition preferred by Ganesh Din is dismissed as being devoid of merit and the interim order regarding retention of status quo stands vacated. The respondents are directed to expedited the disciplinary inquiry and complete the same by 31.12.2006.
WP(C). No. 17165/2005
Petition preferred by Sudhir Kumar challenging the transfer from Ambala Division to Ferozpur Division for the reasons as recorded in this judgment is liable to be dismissed and is dismissed. The interim order stands vacated.
WP(C). No. 36-37/2005
Petitions preferred by Shiv Raj Singh and Satpal, challenging their transfer pending departmental enquiry as being violative of Article 14 of the Constitution of India and Circulars also fails and is dismissed. The departmental inquiry in respect of Shiv Raj Singh be expedited and concluded before 31.12.2006.
WP(C). No. 3942/2006
The challenge to the orders dated 30.1.2006 passed in OA No. 2580/2005 as well as the transfer order dated 21.10.2005 fails for the reasons discussed above. The writ petition is liable to be dismissed and is dismissed for reasons recorded earlier. Status quo order passed on 30.6.2006, stands vacated. Respondent, therefore, would have the power and right to effect inter-divisional transfer of ticketing and other staff in mass contact, if found indulging in malpractices. The Page 3130 punishment or penalty imposed on ground of proven mis-conduct would be independent of the right of the respondent to effect a transfer. In the instant case, the transfer orders were passed after conclusion of the departmental enquiry and in fact even after the penalty awarded had been given effect to. In these circumstances, it would be entirely in the discretion of the respondent authorities to consider whether inter-divisional transfer would still be expedient and in the interest of administrative exigencies and for maintaining probity in administration. We find from Annexure A-2 filed by the respondent that the representation made by the petitioner seeking cancellation of the transfer was considered and rejected by Order No. 729-E/24/9059/P-2 dated 15th June, 2006.
In these circumstances, nothing survives in the matter. Writ petition is dismissed.