JUDGMENT
D.C. Verma, Member (J)
1. The applicants of both the O.As have been transferred by a common order dated 12.3.96 (Annexure-O 1 to the Counter affidavit filed by the respondents). The transfer order was communicated to the applicant Marshal Franki vide letter dated 21.3.96 (Annexure A-7 to the O.A. 207/96) and to S.K. Asthana vide letter dated 21.3.96 (Annexure A-9 to the O.A. 219/96). The applicants of both the O.As have challenged the said order by the above O.As.
2. As the facts of the two cases and law points raised in both the cases are common, both the cases have been heard together and are being decided by a common order.
3. The applicants of both the O. As have been working in A.M.V. Workshop Alambagh. By the order dated 12.3.96, Marshal Franki the applicant of O.A. 207/96 has been transferred to Jagadhari Workshop and S. K, Asthana the applicant of O.A. 219/96 has been transferred to Jodhpur Workshop. Both the applicants have been transferred in the same capacity on administrative grounds alongwith post.
O.A. 219/96
3. As per the facts contained in the O. A., on 1.2.96 an incident took place in which the respondent No. 4 and respondent No. 7 allegedly grossly insulted S.K. Asthana the applicant of O.A.219/96. S.K. Asthana lodged an F.I.R. at 7.30 P.M. against the respondent No. 4 Shri A.K. Singh, Dy. Chief Mechanical Engineer and respondent No. 7 Shri Kishan Lal Dy. Shop Superintendent on the same day i.e. 1.2.96 at Police Station Alambagh (Annexure A-2). The respondent No. 7 Kishanlal by. Shop Superintendent also lodged an F.I.R. on the sameday, i.e. 1.2.96 at 8 P.M. The applicant S.K. Asthana was suspended by respondent No. 6 Shri A. Sharma, Works Manager, Carriage and Wagon Shop w.e.f. 1.2.96 (copy Annexure A-3) on the ground that a disciplinary proceedings against him is contemplated. S.K. Asthana sent a representation on 12.2.96 for revocation of suspension order. The applicant also demanded submission of the charge sheet so that the applicant may explain his conduct and establish his innocence. The applicant however, fell ill w.e.f. 4.4.96 and remained under treatment. On 8.4.96, the applicant could come to know about revocation of suspension order (Annexure A-3) and his transfer from Lucknow, hence the present O.A.
O.A. 207/96
4. The case of Marshal Franki, the applicant of O.A. 207/96 is that on 1/.2.96 this applicant was called by respondent No. 6 to stand witness and give statement against S.K. Asthana (the applicant of O.A. 219/96). M. Franki refused to give any false statement and incurred displeasure. Consequently, it is alleged, the applicant M. Franki was suspended w.e.f. 1.2.96. by respondent No. 5, A. Sharma Works Manager, Carriage and Wagon Shop (Copy Annexure A-1) on the ground that a disciplinary proceedings was contemplated against him. Subsequently, this applicant came to know that an F.I.R. has been lodged against him and also against S.K. Asthana (the applicant’of O.A. 219/96 at Police Station Alambagh. The applicant M. Franki made a representation on 8.2.96 for revocation of the suspension order. The applicant also demanded the charge sheet so as to enable him to explain his conduct and establish his innocence. The applicant M. Franki also fell ill w.e.f. 2.3.96. On 8.4.96 the applicant M. Franki gave an authority to his brother Lorence Henery
to collect the subsistence allowance, but he was informed that the order of suspension had been revoked and the applicant M. Franki had been transferred to Jagadhari Workshop (Punjab), Hence M. Franki has also challenged the order of transfer by filing this O.A.
5. In both the O. As the main ground of challenge is that the order of transfer is illegal arbitrary, punitive and malafide. The further ground is that the transfer of applicants with post is without jurisdiction. The transfer order, it is alleged, has been passed on extraneous considerations without affording opportunity to applicants to explain their conduct and without holding an enquiry as provided under rules. The impugned order of transfer, it is alleged, is violative of Rule 103(11) read with Appendix VI of the Indian Railway Establishment Code Volume I (1985 edition). The transfer of applicant, it is alleged, is to by-pass the enquiry and to deprive the applicants of their right to proper defence in the departmental enquiry in the criminal investigation/trial as a result of the F.I.R. lodged by respondent No. 6.
6. The respondents in both the cases have filed Counter Affidavits. Respondents 1 to 3, the official respondents have filed a common counter affidavit in the two O.As separately. V.P. Singh the respondent No. 4 in O.A. No, 207/96 who is respondent No. 5 in O.A. 219/96 has filed counter affidavit separately in the two cases. Similarly the respondent No. 5 of O.A. 207/96 A. Sharma, Works Manager Carriage and Wagon Shop who is the respondent No. 6 in O.A. 219/96 has filed independent counter affidavit in the two O.As. The respondent No. 6 Kishanlal, Dy. Shop Superintendent of O.A. 207/96 is the respondent No. 7 in O.A. 219/96 has also filed independent counter affidavit. The respondents 1 to 3 in both the O.As are represented by one counsel and the other respondents are represented by their respective counsels.
7. The learned counsel for the applicant has submitted that the suspension order was revoked on 21.3.96 and on the same date the impugned order of transfer Annexure A-9 in O.A. No. 219/96 and Annexure A-7 in O.A. 207/96 was passed. This, according to the learned counsel for the applicants, shows that the impugned transfer order is malafide,
8. It is seen from the records that the order of transfer is Annexure O-1 filed with the Counter affidavit of respondent No. 1 to 3 and it is dated 12.3.96. This is a common order i n respect of both the applicants. The order impugned Annexure A-9 and Annexure A-7 are only a communication of the order passed on 12.3.96. The impugned order dated 21.3.96 refers to the order dated 12.3.96. Thus, the transfer order was passed on 12.3.96 though it was communicated on 21.3.96. The suspension order in respect to both the applicants was revoked on 21.3.96.
9. The submission of the learned counsel is that during the pendency of the Departmental Enquiry and investigation with the criminal case, the applicants cannot be transferred. The learned counsel has placed reliance on Railway Board Circular dated 27.3.65 printed at Serial No. 2910 (Copy Annexure A-10 to the O.A. 207/96. The submission is that a Non-gazetted staff whose conduct is under investigation for charges meriting dismissal or removal from service or is under suspension should not be transferred from one Railway Administration till after finalisation of the Departmental or criminal proceedings against the employee.
10. The learned counsel for the respondents have however, submitted that the Railway Board circular dated 27.3.65 printed Serial No. 2910 has been subsequently modified and there is no bar for transfer of an employee against whom a departmental enquiry or a criminal investigation is pending. The learned counsel has referred to the Railway Board circular dated 25.3.67 (Copy Annexure C.R.-2 to the C.A. filed by the respondents 1 to 3
in O.A. 207/96). This Railway Board circular dated 25.3.67 also refers to earlier circular dated 29.3.62 and shows that the Railway Board took a decision that non gazetted staff against whom a disciplinary case is pending, should not ‘normally’ be transferred from one Railway/Division to another railway/division till after the finalisation of departmental or criminal proceedings irrespective of the fact whether the charges merit imposition of major or minor penalty. The submission of the learned counsel is that by adding the word ‘normally’, the transfer was made permissible after the issue of circular dated 25.3.67. In support of his submission, the learned counsel has also referred to printed Serial No. 4743 dated 18.8.69 (Copy Annexure C.R.-3 to the C.A. of the respondents 1 to 3 in O.A. 207/ 96) which has clarified certain points. It has been clarified therein that in certain cases where disciplinary proceedings are started and the official is transferred, in such cases, it is not necessary for disciplinary authority to start denovo proceedings by framing and delivering fresh articles of charges and the disciplinary authority of the transferred place, can carry on with the enquiry proceedings from place affected officer was transferred. This clarification is also with reference to the Railway Board Circular dated 25.3.67.
11. We have heard the learned counsel for the parties and we find that though the printed Serial No. 2910 was to the effect that a non gazetted staff should not be transferred pending enquiry/investigation, but subsequent Railway Board circular dated 25.3.67, lifted that bar providing the word ‘normally’. So, in a given circumstance, it was always open to transfer the staff though as per this circular the transfer was not to be generally made. The submission of the learned counsel for the applicant, therefore, with reference to printed Serial No. 2910 that the applicant should not have been transferred has no merit. As regards the facts of the present case, whether the present case comes within the exception provided by circular dated 25.3.67 we would examine the same in subsequent paragraphs. It is however, clear from the printed serial 4743 dated 18.8.69 that in case during the pendency of the enquiry an official is transferred, enquiry in respect of the delinquent official would be conducted by the disciplinary authority at the place of transfer, without putting the delinquent official to any inconvenience.
12. The learned counsel for the applicant has placed reliance on the decision of the Principal bench in the case of K. K. Jindal v. General Manager, Northern Railway, 1986(2) SLJ 27 (PB-ND) (CAT). Reference of K.K, Jindal’s case is made in the case of Devendra Nath Bag v. Union of India and Ors., reported in 1989 (11) A.T.C. 326 (C.A.T. Calcutta Bench). It has been submitted that in K.K. Jindal’s case it has been held that if the basis for order of transfer is on a suspicion, that the concerned employee had indulged in an undesirable activity, such transfer should be regarded as punitive in nature and as one passed in colourable exercise of power and not for any administrative reason. The decision of K.K. Jindal’s case was accepted by the Calcutta Bench in Devendra Nath Bag’s case (supra). It is, however, seen that in a Full Bench decision in the case of Shri Kamlesh Trivedi v. I.C.A.R. and Anr., Full Bench Judgments of C.A.T. Volume I, Bahri Brothers, New Delhi at page 80, the C.A.T. Principal Bench, has considered the K.K. Jindal’s case. It has been held that “K.K. Jindal’s case is not an authority for the proposition that when complaints are received and the exigencies of service require that a transfer be made, an enquiry must necessarily be held in the complaint before transfer is ordered. Nor it lay down that if a transfer is made on receipt of a complaint, it should necessarily be deemed to be penal in nature. All that it laid down was that a finding as to misconduct and a finding which attaches stigma to the employee, not preceded by an enquiry and arrived at behind back of the employee cannot form a valid basis for an order of transfer. The Full Bench has therefore held, that merely because transfer is ordered on a complaint or after an enquiry
into the guilt of an employee, it cannot be said to be by way of punishment. Mere fact of pendency of a departmental enquiry, or investigation of a criminal case, would not in itself be sufficient to infer that the transfer is malafide, is punitive or is in violation of natural justice. Transfer is an incident of service and an employee can be transferred in public interest in exigency of service or on administrative grounds. A bonafide decision taken in exercise of administrative discretion, cannot be termed as violative of principles of natural justice or invalid unless the facts are otherwise established.
13. In the case in hand it is admitted fact that an incident took place on 1.2.1996. According to the official respondents, the applicant Marshall Franki was earlier involved in a case under section 308/328 I.P.C. and was suspended w.e.f. 10.10.91. That suspension order was however, revoked w.e.f. 8.7.94. The applicant had also been punished by withholding of 3 sets of passes on 23.12.98. As per the respondent’s case, on 1.2.96, the two applicants under the influence of Alcohol assaulted and injured the respondent Kishan Lal Dy. Shop Superintendent A.C. at Bharline in the campus of C&W shop. Both the applicants were suspended through two separate orders dated 1.2.96 during contemplation of disciplinary proceedings. It is admitted fact that incident took place on 1.2.96. The F.I.R. and counter F.I.Rs were lodged with police of P.S. Alambagh. It is also not denied that both the applicants were suspended w.e.f. 1.2.96. It is also not denied that the suspension order was revoked by order dated 21.3.96. Both the applicants were communicated separately by separate communication letters dated 21.3.96 about their transfer. The matter was brought to the notice of the Chief Workshop Engineer Northern Engineer New Delhi through letter dated 27.2.96 who discussed the matter with the General Manager Northern Railway and thereafter it was decided by the General Manager N. Railway that both S.K. Asthana and Marshal Franky be transferred on administrative grounds to two different open lines places. As per the decision of the General Manager, Northern Railway, the transfer order Annexure O-1 dated 12/14.3.96 was issued.
14. These facts which have been brought on record show that the General Manager, Northern Railway was within his rights to transfer the two applicants within his jurisdiction on administrative grounds. As regards the facts which led to the incident on 1.2.96, it is neither required nonproper for this Tribunal to comment over it as the same is subject matter of departmental enquiry and criminal investigation on the basis of cross F.I.Rs.
15. The learned counsel for the respondents has placed reliance on the decision of the apex Court in the case of Abani Kanta Rai v. State of Orissa and Ors., 1996(1) U.P.L.B.E.C. 319. The submission of the learned counsel that though the case of Abani Kanta Rai (supra) is not a transfer case but it arose out of quashing of a transfer order. The facts on which the transfer order was challenged and quashed, has been discussed in the judgment and the principle for dealing with such cases has been laid down by the apex Court. It has been submitted that an administrative head has to ensure proper functioning of the section/department and unless it is established that authority making the order of transfer has passed such a transfer order with malice, the transfer order cannot be invalidated. In the case before us, the transfer order has been issued after the approval of the General Manager. No malice has been alleged or shown against the General Manager and therefore, the order of transfer cannot be invalidated, on that ground.
16. The learned counsel for the applicant has placed reliance on the decision of the Principal Bench of the C.A.T. in the case of M.K, Bagga v. Union of India and Ors., 1994(2) A.T.J. page 140. In this cited case 11 employees were found using unfair means in a written examination. However, only 3 were chosen for transfer. From the facts of the
case detailed in the Judgment, the transfer was found malafide. In the case before this Bench, as we have seen that the order of transfer has been passed after approval of the General Manager against whom there is no allegation of malafide and therefore, the case of M.K. Bagga is of no help to the applicant.
17. The learned counsel for applicants has placed reliance in the case of Rajendra Chaubey v. Union of India and Ors. decided by the Allahabad Bench of the Tribunal and reported in 1995(1) A.T.J. page 160. In this cited case a Postal Assistant was involved in a criminal case and was transferred out of the jurisdiction of the disciplinary authority. An F.I.R. was lodged against the applicant of the said case. The applicant had been released on bail. The applicant was suspended. The suspension order was subsequently revoked and the charge sheet was submitted. The applicant was however, transferred to another postal division. The transfer order was challenged before the Tribunal. The Tribunal found that there has been an element of bias and arbitrariness in the transfer of the applicant and there has been colourable exercise of power. Consequently, the Tribunal quashed the transfer order. The Full Bench case of Kamlesh Trivedi (supra) and of K.K. Jindal (supra) have also been considered by the Tribunal. The learned counsel has referred to para 18 of the judgment to show that in the cited case, the transfer order was issued keeping in view the misconduct of the applicant associated with the incident on 25.4.94 for which the department had contemplated the disciplinary proceedings and had also placed the applicant under suspension on that ground. In the cited case also after the suspension order was revoked, the applicant therein was transferred to a new place of posting. The submission is that similar is the fact in the present case where after revoking the suspension order, the applicants have been transferred to a new place of postings. This, according to the learned counsel, shows that the order had been passed with malice.
18. In the Full Bench case of Kamlesh Trivedi (supra) the applicant therein had been
transferred with post in public interest. It was argued that the order of transfer was punitive
and arbitrary as the same was made without making a proper enquiry. The Full Bench, after
considering the various decisions cited at the Bar and dealing with case extensively had
observed that “….complaints against a public servant as to his conduct, efficiency, integrity
and suitability for the post he is holding may be made to the competent authority and in the
interests of good and responsive administration, appropriate action has to be taken
expedidously. The competent authority may or may not find any truth in that complaint,
but having regard to the administrative exigency may be of view that a more suitable or
more efficient person should be posted, and for making place for such a person effect a
transfer. May be having regard to the nature of the complaints received, the competent
authority may think that in the interest of the employee himself, transfer should be ordered.
In another case, having regard to the position an employee holds and the influence he
commands at the place of his posting, a proper inquiry into the complaints itself may
necessitate a transfer. But pending investigation and an inquiry into the charges, the
disciplinary authority is empowered to suspend an employee. But it is good administration
not to resort to suspension of employee merely because complaints are received and
must be investigated. Whether a person should be suspended or not is a decision which has
to be taken on the facts and circumstances of the particular case by the competent autho
rity, it may not be necessary to suspend and employee if the desired result of facilitating
the inquiry could be achieved by transferring the employee concerned from that place or
post.”
19. From the above, it is clear that if a transfer has been passed in exigency of service or on administrative grounds without any finding on the allegation, it would not be vitiated.
In the case in hand, as has been examined earlier, the Railway Board circular printed Serial No. 2910 dated 27.3.65 provides for transfer of an employee against whom a departmental enquiry or a criminal investigation is pending. The case of Rajendra Chaubey cited by the learned counsel for the applicant was of Postal Department. In the Postal Department there may not be such a circular, as in the Department of Railways for transfer of such an employee. Thus, the transfer of the applicants in the case before this Bench is not arbitrary or malafide.
20. The learned counsel for the applicant has also referred to a decision of Chandigarh Bench of this Tribunal in the case of Shri Avinash Chander v. Union of India and Ors. reported in 1993(2) A.T. J. 321=1993(3) SLJ 484 (Chandigarh) (CAT) wherein the transfer order was found punitive as no opportunity to explain complaints made against the applicant therein was given. This decision is of no help to the applicant in view of the decision of the Full Bench in the case of Kamlesh Trivedi (supra).
21. The learned counsel has also referred to a decision of Ernakulam Bench of the Tribunal given in the case of Y. Kurikesu v. The Sr. Supdt. of Traffic Trivendrum Div. and Anr., 1994(1) A.T. J. 71. In this cited decision, the transfer was made in ‘public interest’ and not on administrative ground as in the case before this Bench.
22. The decision of J.P. Patel v. Union of India and Ors., 1995 (1) A.T.J. 351 is also of no help to the applicant, as the R.B. Circular dated 25.3.67 is not applicable to Dept. of Telecom.
23. The learned counsel for the applicant has further submitted that both the applicants have been transferred with post which is an unusual feature. The authority competent to transfer the applicants has no power to transfer the post. We have heard the learned counsel for the parties at great length and in the present case we find that the order of transfer has been passed with the approval of the General Manager and the General Manager has power to transfer the post also. Thus, the submission of the learned counsel on this point too has no merit.
24. The learned counsel for the respondents has submitted that one Bhupati Singh was also transferred on administrative ground alongwith post. The transfer order was challenged by filing O.A. No. 21/89 Bhupati Singh v. Union of India the O.A. was dismissed on 3.8.92 (copy Annexure O-4). Bhupati Singh preferred a Special Leave to Appeal (Civil Appeal No. 16201-02/92) before the Hon. Supreme Court of India but the S.L.P. was dismissed vide order dated 25.1.93 (copy Annexure O-5). It has been therefore, submitted that in Bhupati Singh’s case the transfer of employee with post has been upheld by the Tribunal and also affirmed by the Hon. Supreme Court, and therefore, in the present case also, a similar order passed in respect of the applicants are valid as per decision in the case of Bhupati Singh (supra). The learned counsel for the respondents has also placed reliance in the case of Anjani Kumar Dubey v. Union of India and Ors. (O.A. No. 92/93 C.A.T. Lucknow Bench) decided on 8.7.93. In this case also the applicant was transferred on administrative grounds and the same was upheld.
25. Considering the decision cited by the learned counsel for the respondents, the view taken by us stand fortified by the decision taken earlier by this Tribunal.
26. We have examined the facts of the case and we find that as per recitals made in the Counter Affidavit, filed on behalf of respondents 1 to 3 the transfer of the applicants on administrative grounds alongwith post would not be adversely affected in any manner with reference to the applicants’ pay and seniority. Such being the case, the transfer order is
found not punitive.
27. The learned counsel for the applicant has subMITTED that both the applicants have been transferred from Electrical to Mechanical Section which involves change of cadre. We however, found that such is not the position. Both the applicants admittedly belong to Electrical department and were posted in the Air Conditioning shop of the Carriage and Wagon Shop which is a mechanical department. As per the respondents, in the Carriage and Wagon Shop, there are various shops, including Electrical Work, Air Conditioning, Wiring, Train lighting job etc. It is submitted that the transfer of the applicants Marshal Franki to Jagadhari and of S.K. Asthana to Jodhpur does not involve change of cadre as they would be given the same type of work.
28. It is seen that in the case of Marshal Franki of O.A. 307/96, an interim order was passed, according to which the operation of the order dated 21.3.96 (Annexure-7 to the O.A.) was stayed in case the applicant had not been relieved. As the applicant had been relieved on 21.8.96 itself, the interim order became ineffective. In the case of S. K. Asthana, of O.A. 219/96, no Interim Relief was granted. It has been, during the course of arguments, submitted by the learned counsel for the respondents that none of the two applicants joined the new place of posting By filing a Supplementary C. A. on 2.1.7.97 in O.A. 207/96, it has been informed that the applicant M, Franki has been served with a charge sheet dated 28.3.97 in relation to the incident dated 1.2.96. A copy of the charge sheet has been annexed as Annexure S.C.R.-1 to the Supplementary Counter Reply. In the case of S.K. Asthana also it has been mentioned in the Counter reply that the competent authority has issued charge sheet in regard to the misconduct of the applicant, a copy of the same has been annexed as Annexure R-l and R-2 to the Counter reply. We are however, in this case not required to consider the contents of the charge sheet or the effect thereof.
29. In the conspectus of the case we are of the view that the transfer of both the applicants is valid.
30. In view of the discussions made above, both the O.As i.e. O.A. 207/96 and O.A.
219/96 are found devoid of merit and are dismissed. Costs easy.