Full Judgment
Hon'ble Dr K.B.S. Rajan, Judicial Member
When a transfer is made or is refused against the wishes of an employee, resort to judicial interference is made. The Tribunal within the jurisdiction available has to consider the grievance and arrive at a judicious decision. In the instant case, refusal to transfer the applicant to Trissur, the choice place of the applicant is the grievance of the applicant.
2. Brief facts of the case as contained in the O.A. are as under:
(a) An understanding was arrived at as early as in 1972 when the Thrissur Branch Office of the respondents was constituted and based on the said understanding, it was decided that transfer to that branch would be made from amongst volunteers and posting would be based on seniority position (Annexure A-1 refers). On the strength of the above agreement and introducing certain other aspects of transfer, a transfer policy was issued vide order dated 1.2.1999 at Annexure A-2. In the list of volunteers prepared on branchwise, the name of the applicant figured at Sl. No. 2 for Thrissur and Sl. No. 64 for Ernakulam (Annexure A/3 refers). Vide Annexure A/4 dated 2.4.08, from multiple options for transfer, single option was called from the applicant. Accordingly, the applicant preferred transfer to Thrissur (Annexure A-5 refers). Annexure A-6 is a show cause notice dated 25.04.08 on certain alleged misconduct committed by the applicant. The applicant denied the charges vide Annexure A/7. The respondents have effected transfer orders in respect of certain volunteers who are in the priority list below the applicant (Annexure A/8 refers) and the applicant had to move the Tribunal in O.A. No. 248 of 2008.
(b) The respondents have stated that on an alleged misconduct disciplinary proceedings are contemplared against the applicant and as such, his transfer would be considered only when the the proceedings could be concluded. It was, thereafter, a charge sheet under Rule 16 of CCS (CCA) Rules, 1965, came to be issued against the applicant vide Annexure A/9. During the pendency of above charge sheet, O.A. No. 248/08 came to be disposed of giving certain directions to the respondents in connection with charge sheet as well as the transfer of the applicant. Vide Annexure A-11 order dated 30.09.08, applicant was imposed with a penalty of withholding of all increments of pay for a period of three years. On his preferring Annexure A-12 appeal, the same was rejected vide order dated 24.12.08 ( subsequent to filing of this OA). In regard to transfer of the applicant to Thrissur, the impugned order vide Annexure A-13 dated 5.12.2008 came to be passed as per which the respondents rejected the request of the applicant for transfer on the ground that it would not be prudent and conducive to office discipline and decorum to transfer an official who is undergoing a penalty for breach of discipline. The applicant has challenged the aforesaid rejection order through this O.A.
3. Respondents have contested the O.A. According to them, the applicant's request cannot be acceded to due to the currency of penalty and in the interest of the discipline of the organisation. Rewarding an official who had indulged in gross misconduct with transfer to a station of his choice would not be in the larger interest of maintaining discipline in the office and would defeat the very purpose of justice. It has also been contended that Annexure A-1 and A-2 orders have been modified by Annexure A-4 and as such, they cannot be relied upon in the fashion in which existed.
4. The applicant has filed his rejoinder, reiterating the contentions raised in the OA and contending that Annexure A-1 and A-2 have not been removed from the scene and they do apply to the facts of the case of the applicant, despite the so called modification by way of Annexure A-4. As regards reward, the applicant contends that there cannot be said to be a reward if the transfer takes place to the choice station.
5. Counsel for the respondents has cited a number of decisions to hammer home the point that in matters of transfer the extent of judicial review is limited and in the instant case for a very plausible reason, viz to maintain the discipline in the organization, the applicant has not been transferred to Thrissur. The decision cited is as under:
1. 2004 (7) SCC 405 - State of UP and Anr. vs. Siya Ram and Anr.
2. ILR 2007 (4) KER 399 - Philipose Abraham vs. State of Kerala and Ors.
3. 2007 (4) KLT 457 - Mohd. Masood Ahmed vs. State of U
4. 1997 (1) KLJ 779 - V. Sukumaran and Anr. vs. M.N. Sodaran and Ors.
5. 1999 (2) KLT 673 - Rajan vs. Director General of Police
6. 1994 (1) KLT 326 - Dinamony vs. Dt. Supdt. of Police, Kollam
6. Arguments were heard and documents perused. The short question involved is whether by virtue of the provisions contained in Annexure A-1, A-2 and A-4 and on the basis of Annexure A-3 the applicant has crystallized any right for transfer to his choice station and whether such a right has been unjustifiably hampered by overlooking his case by the respondents.
7. The 1972 memorandum of understanding has been given due weight even when the transfer policy was revised vide Annexure A-2. The very first assurance is that the understandings of 21st January 1972 and 22nd April 1983 reached with the various staff associations to the effect that the branch offices would be manned through volunteers in different cadres of staff would be followed. Thus the applicant has gained that much right for transfer to his choice station as others. Nothing less, nothing else!
8. On the basis of seniority, the order of priority for such transfer has been prepared and the name of the applicant figures in at serial No. 2 for Trissur and serial No. 64 for Ernakulam. However, by virtue of his giving only one option, the applicant specified Trissur as his choice station. Thus, he stands second in the list of individuals whose transfer should be considered for Trissur on vacancies being available at that place.
9. The applicant did suffer a penalty for certain misconduct and the same is said to be under challenge.
10. It is on the basis of the above penalty that the respondents have refused to accede to the request of the applicant for transfer to Thrissur. According to them, if the transfer were allowed, it would amount to rewarding the applicant when he has been subjected to a penalty for misconduct relating to discipline.
11. Transfer is normally effected in public interest or exigencies of administration to enforce decorum and ensure probity. True, in the instant case there has been a penalty imposed upon the applicant on account of certain misconduct touching the discipline and decorum of the institution. Normally, when such an indiscipline takes place, the reaction of the authorities is to transfer the applicant, even without holding an inquiry but on the basis of prima facie satisfaction of the authority on the contemporary report about the occurrence complained of. Such a transfer cannot normally be interfered by any judicial forum. See Union of India v. Janardhan Debanath, (2004) 4 SCC 245. In the instant case, refusal to accede to the request of the applicant for transfer to Trissur on the basis of the understanding arrived at 1972 which is under currency, is on the ground that if the transfer is effected, the same would amount to rewarding the applicant who has been penalized for certain misconduct. First of all, as rightly pointed out by the counsel for the applicant, there is no reward if the applicant is transferred. Much less the insistence for transfer is as a consequence of penalty or misconduct complained of. The concession available to the applicant for transfer to choice station as per the understandings and on the basis of seniority is an independent concession. In the revised policy, vide Annexure A-3, certain contingencies have been provided when deviation from this concession could take place. That imposition of penalty would be a reason for depriving an employee of the concession available has not been specified. Thus, it is clear that refusal to consider the case of the applicant for transfer to his choice station on the basis of his seniority is not based on sound reason. In fact, to justify their stand the respondents have elaborated the misconduct, which in fact do not figure in the memorandum of charge or statement of imputation. If the specific word alleged to have been uttered by the applicant is not found in the entire record of the disciplinary proceedings, then it has to be construed that the same is perhaps an attempt to prejudice the mind of the court. The authorities cited by the counsel for the respondents do not support them in the facts and circumstances of the case in hand.
12. In view of the discussion as above, it is clear that the concession available to all in respect of transfer to choice station is equally available to the applicant and the same cannot be hindered on the ground of currency of penalty imposed upon the applicant. If the applicant's turn for transfer to Trissur is ripe, he should accordingly be considered for such transfer independent of the proceedings taken against him.
13. The OA is thus, allowed. Respondents are directed to consider the case of the applicant against any existing/immediately available vacancy at Trissur, if he is the senior most for consideration.
14. Under the above circumstances, there shall be no order as to costs.