1. As the facts involved are identical and issues raised are common, both these cases are being disposed of by this common order.
2. In both the OAs, applicants impugn orders dated 31.08.2006 (Annexure A-1) and 04.09.2006 (Annexure A-2) vide which they have been transferred along with posts and the same have been issued purportedly on administrative ground.
Applicant (Onkar Singh) has challenged the aforesaid orders on the ground that the same have been issued as a punishment on account of false and fabricated complaint made by the Union officials against whom the applicant had been protesting for sexually harassing a widow worker (Smt. Kamlesh). However, the orders are punitive and have been issued by Respondent No. 2 without giving any reasonable opportunity to the applicant, or holding any departmental proceeding.
Applicant, who was working as a Helper Khalasi under Respondent No. 2 in a satisfactory manner, had taken a stand against one powerful Union leader Sh. Mehboob Khan against his indecent and immoral behaviour towards one widow worker, namely, Smt. Kamlesh, who had been complaining against Sh. Mehboob Khan for harassing her sexually and the applicant has lodged a strong protest against the Union leader Sh.
Mahboob Khan. He, in turn, became very vindictive and revengeful against the said lady who was thereafter forced to lodge her complaint along with another lady worker to the GRP, Meerut Cantt on 17.07.2004 requesting for protection against the illegal advances and activities of Sh, Mehboob Khan.
After the aforesaid complaint Sh. Mehboob Khan was arrested but was released the next day. It appears that the police did not take further action against him. Therefore Smt. Kamlesh made a complaint on 19.07.2004 (Annexure A-4) to Chief Engineer, Northern Railway, Baroda House, New Delhi, in which she has stated that she was appointed on compassionate ground as a Peon after the untimely death of her husband, but she is being sexually harassed by Union leader Sh. Mehboob Khan.
She also stated that she had two small children and there is every likelihood of some mischief with the children also.
Another complaint dated 17.08.2004 (Annexure A-5) signed by as many as 63 employees was made to the General Secretary, URMU, Central Office, Panchkuian Road, New Delhi against the illegal activities of Sh.
Mehboob Khan requesting for removing him from the service, which was held in the Union. The said Sh. Mehboob Khan started having ill-will against the applicant on this account and, therefore, made a complaint to the General Secretary, URMU that the applicant as well as Smt.
Kamlesh have misbehaved and manhandled the Branch Secretary of URMU (Sh. Rampal Singh Yadav) and other office bearers. The aforesaid complaint was absolutely false, unfounded and fabricated and was a sheer retaliation against the applicant who had been helping the widow lady against her tormentor. When questioned, applicant clarified the position and explained that a dispute with Sh. Mehboob Khan was going on for the last three years, copy of the explanation given by the applicant to the Executive Engineer on 24.07.2006 is (Annexure A-6).
Soon thereafter respondent No. 1 issued notice on 31.08.2006 (Annexuire A-I) transferring the applicant from Welding Plant Meerut Cantt. to Delhi Division, which is a separate division and has nothing to do with the Welding Plant Meerut Cantt. Similar notice was issued transferring Smt. Kamlesh from Welding Plant to Ambala Division along with the post on administrative ground. It is submitted that the transfer orders are in fact punitive and have been camouflaged in the garb of administrative ground and have been passed on the behest of the Trade Union. No exigency of service is involved.
After the aforesaid transfer order was passed, as many as 109 employees made a complaint to the Dy. Chief Engineer (TM) Northern Railway Headquarters Office Baroda House, New Delhi submitting that the transfer order of the applicant along with another employee has been done on the complaint of Sh. Mehboob Khan, who is exploiting, misbehaving with the railway employees and harassing Smt. Kamlesh. It was also stated that some employees including the applicant had made efforts to stop Sh. Mehboob Khan from indulging in illegal activities but he had succeeded in getting both of them i.e. Smt. Kamlesh as well as the applicant transferred out of the Welding Plant. It was also submitted that the transfer orders be withdrawn because there is considerable resentment in the employees of the Welding Plant (Annexure A-7).
Thereafter, Sh. M. Ragharaiah, who is General Secretary of National Federation of Indian Railwaymen wrote a letter dated 22.12.2006 (Annexure A-8) to Sh. V.N. Mathur, General Manager, Northern Railway pointing out that the transfer orders are outcome of the rivalry between the two factions of the same Union, and the applicant as well as Smt. Kamlesh have been transferred, although they are innocent. It was also urged that both the employees have been put to difficulties not on account of any lapses on their part, but because of groupism and motivated complaint. Similarly,Sh. S.K. Tyagi, General Secretary of Northern Railway also wrote to Chief Track Engineer, Northern Railway, Baroda House, New Delhi on 22.01.2007 (Annexure A-9) stating that these transfers may be cancelled because they are discriminatory and particularly the other party to the dispute has not been shifted from Meerut, while the families of the applicant and Smt. Kamlesh are being disturbed seriously and they are facing acute hardship due to the transfer.
It is further submitted that the transfer orders have been passed due to the rivalry between the Unions and since the case of the applicant was taken up by General Secretary of one Federation, which was opposed by the other Federation. By way of relief, applicant has sought to set aside the transfer orders being punitive and stigmatic.
3. In the counter-affidavit filed on behalf of respondents, learned Counsel Sh. A.P. Sahay has, while citing Hon'ble Supreme Court's Ruling in S.C. Saxena v. U.O.I. and Ors. 2006 (9) SCC 583 submitted that the applicant was transferred on administrative ground vide order dated 31.08.2006 (Annexure A/1) and was relieved on 04.09.2006 (Annexure A/2) and even after lapse of 8/9 months he has not joined the present place of posting and has remained unauthorizedly absent from duty from which he is liable to be departmentally proceeded.
While refuting the averments made in the OA, it has been stated that the order of transfer has not been passed as a punishment, rather it has been issued on administrative ground and, therefore, there is no question of giving any opportunity before passing such an order. There is no legal requirement for an employee to be heard before his transfer when it is made in the exigency of administration.
Further, there is no record available with Respondent No. 2 regarding sexual harassment by Sh. Mehboob Khan and regarding the complaint of Smt. Kamlesh.
4. In the rejoinder-affidavit, while reiterating the submissions made in the OA, it has been submitted by learned Counsel Mrs. Meenu Mainee that the rulings of the Hon'ble Supreme Court cited by learned Counsel for respondents in the counter-affidavit are in fact not relevant as the facts and circumstances in these cases are quite different from the applicant's case. It has been further submitted that the contention of the respondents that they have no record regarding sexual harassment of the lady employee Smt. Kamlesh is incorrect. The representations and complaints given by her are very much on record (Annexures A/5 and A/6). The submission of the respondents that the transfer order has been issued on administrative ground is baseless. A bare statement that the transfer is on administrative ground is not enough unless the said ground is proved before the Court. No public interest has been involved in this transfer.
Applicant (Smt. Kamlesh) has challenged the impugned orders on the ground that the same have been issued as a punishment on account of false and fabricated complaint made by the Union officials against whom the applicant had been protesting for sexual harassment. The orders are punitive and she has not been given any opportunity nor any departmental proceeding is held. Applicant was appointed as a Peon on compassionate ground and while working in service she was sexually harassed and troubled by one Sh.
Mehboob Khan who was an Office Bearer of URMU and was working as a Generator under Respondent No. 2. She initially made a complaint to GRP Meerut Cantt. on 17.07.2004 but as no action was taken she made a complaint to Chief Engineer, Northern Railway, Baroda House, New Delhi on 19.07.2004. Some employees including one Sh. Onkar Singh had made efforts to stop Sh. Mehboob Khan from indulging in illegal activities but Sh. Mehboob Khan had succeeded in getting both of them i.e. Sh. Onkar and the applicant transferred out of Welding Plant. Applicant has sought quashing of the impugned orders.
5. During the course of arguments, learned Counsel for applicants cited the following cases in support of his submissions:State of U.P. v. Sughar Singh SLR 6. In order to ascertain the factual position, respondents were asked to make available the records for Court's perusal. I have heard rival contentions of learned Counsel for both the parties and perused the pleadings as well as the rulings cited and also the departmental record.
7. The factum of transfer of both the employees, as well as their representations and the requests made by the Federation are undisputed, being on record.
8. It clearly transpires from the record that request was made by the General Secretary, National Federation of Indian Railwaymen vide his letter dated 22.12.2006 addressed to the General Manager, Northern Railway, Baroda House, New Delhi for cancellation of the transfer orders of both the employees among officers. It would be useful to reproduce the request made therein: (c) Shri Onkar Singh, Helper Grade I, Butt Welding Plant, Meerut Cantt transferred to Delhi and Smt. Kamlesh Rani, Peon, But Welding Plant, Meerut Cantt. transferred to Ambala Cantt.
It is reported that shri Onkar Singh, Helper Grade I, Butt Welding Plant and Smt. Kamlesh Rani, Peon were transferred on the manipulated complaint of one of the rival factions of URU in the said Plant. Nearly 106 employees of the Plant have submitted representation to C.e., Northern Railway, declaring that Shri Onkar Singh & Kamlesh Rani is innocent and they were implicated willfully by the rival group. The representation is also requested to cancel the transfer orders.
This is the case wherein two groups making allegations and counter allegations. Smt. Kamlesh Rani is a Widow appointed on compassionate grounds having minor children. Both Onkar Singh and Kamlesh Rani were made victims of groups quarrel.
The above named Employees are put to difficulties not due to their lapses but due to Groupism and motivated complaints. Unfortunately Administration did not look into the matters in depth.
9. In the matter of transfer, Hon'ble Supreme Court has ruled in a catena of cases that transfer orders are not normally to be interfered with by Courts. Hon'ble Supreme Court in State of U.P. and Anr. v. Siya Ram and Anr. has held that transfer is not only an incidence of service, but also a condition of service. Unless an order of transfer is shown to be an outcome of mala fide exercise or not in public interest. Mrs. Meenu Mainee, learned Counsel for applicants very strongly argued that transfer order of the applicant is not only mala fide and arbitrary but is discriminatory and has been issued purely due to Union rivalry. It is not only unfair but almost inhuman to victimize a lady employee, that too a widow, who had minor children and who has been transferred for no fault except for protesting against undesirable behaviour of a Union Office bearer. Learned Counsel reiterated that no public interest whatsoever has been brought out by the respondents.
Although contentions of Mrs. Mainee, learned Counsel were refuted by Sh. A.P. Sahay, learned Counsel for respondents, no public interest or administrative ground necessitating the issue of these orders along with posts was able to be brought out by the respondents.
10. In view of the above facts and circumstances of the present case, I am left in no doubt that the transfer orders do not appear to have been necessitated by any public interest or administrative ground warranting transfer of both the applicants along with the post. It comes to be quite fairly established that the transfers have been occasioned by Union Rivalries. It also stands to reason that no lady employee will make written complaints regarding sexual harassment unless she is actually being so harassed. If some other employees/co-workers come forward to assist and support such lady employees, surely they should not be penalized by the Administration. I have, therefore, no hesitation in quashing the impugned orders. Accordingly, the O.A. is allowed and the respondents are directed to repost the applicants in their original place of posting within a period of two weeks from the date of receipt of a copy of this order. The intervening period may be regularized as per Rules. There will be no order as to costs.