ORAL ORDER :
(As per Hon'ble Mr.Justice.P.Lakshmana Reddy, Vice Chairman)
Heard the learned Counsel Mr.P.S.Ramachandra Murthy for the Applicant and the learned Standing Counsel Mr.M.C.Jacob for the Respondents.
2. This application is filed challenging the office orders dated 24.6.2008 and 31.7.2008 and for a direction to the respondents to consider the case of the applicant for posting from Guntakal to Secunderabad area, as sought by the applicant in his representation dated 7.7.2008.
3. The relevant facts in brief are as follows:
The applicant while working as Stenographer in Guntakal Division, was involved in a criminal case registered by CBI under Section 7 of Prevention of Corruption Act. A charge sheet was filed against him before the Special Judge for CBI Cases, Hyderabad. Thereafter, he was kept under suspension on 14.6.2008 by Respondent No.3 in view of the pendency of criminal case registered against him. While so, the respondents passed the impugned order dated 24.6.2008 revoking the suspension and transferring the applicant from Guntakal Division to Nanded Division on administrative grounds. Thereafter, the applicant on 7.7.2008 submitted a representation, a copy of which is annexed as Annexure.A-III to the OA, to the Chief Personnel Officer, S.C.Railway, Secunderabad, requesting him to accommodate him anywhere in Secunderabad or Hyderabad area or at any nearby place to Anantapur, where his wife is working in a non-transferable post in Central Government. He further stated in that representation that his posting at Nanded keeps him away from his work spot quite often as he had to proceed on leave for attending the adjournments and investigation in the criminal case pending before the Special Judge for CBI Cases and it is a serious handicap to the administration also in addition to personal discomfort to the applicant. The said representation was rejected by another impugned order dated 31.7.2008, a copy of which is annexed as Annexure.A-II to the OA. Aggrieved by the said orders, the applicant filed the present application contending that he had put in 18 years of unblemished service and that his transfer order was made without application of mind. The applicant is transferred to Nanded Division, which is in Maharastra State and it is far away from Guntakal i.e., around 1000 KMs and it will become extremely difficult for the applicant to appear before the Special Court. He further pleaded that the respondents ought to have seen that the applicant's wife is an employee of Central Government in the office of the Director, Southern Region Farm Machinery Training and Testing Institute, Garladinne, Anantapur District, and her post is non-transferable. As per the Orders of the Hon'ble Supreme Court, as far as possible, the husband and wife should be accommodated in either same station or a station nearby to enable them to cohabit. The applicant pleaded that he also brought this aspect to the notice of Respondent No.1 in his representation dated 7.7.2008. If the applicant is forced to carry out the transfer order, it will deny him the reasonable opportunity of defending himself effectively in the criminal case registered against him. The respondents ought to have seen that in similar circumstances, this Tribunal in the case of Shri V.Ravi Kumar vs. the Sr. DCM, Secunderabad and Others in OA.No.591/2007, dated 22.11.2007, directed the respondents to consider the representation made by the applicant therein taking into consideration the conditions imposed by the District Court and also the pendency of Criminal Case registered against the applicant therein. The applicant further pleaded in the grounds that the respondents while rejecting the case of the applicant for transfer to Secunderabad, the same R-1 in the case of one Sri D.Ravi, had transferred him and posted in Secunderabad Area and the said Sri Ravi is one of the accused in CBI Cases, and thus, the Respondent No.1 had discriminated the applicant for the reasons best known to him. The said Sri D.Ravi is not better placed than the applicant and on the other hand the applicant is better placed as his wife is an employee working in Anantapur District. The rejection letter dated 31.7.2008 is totally non-speaking and had not considered the ground that his wife is an employee in Garladinne, Anantapur District and also not considered the observations of the Hon'ble Apex Court in this regard. The applicant further pleads that there are number of vacancies in Hyderabad Division, Secunderabad Division and Rail Nilayam Headquarters office etc., and therefore, the respondents ought to have considered the request of the applicant.
4. The respondents contested the application and filed reply statement contending that as per the CBI case, the applicant was caught while accepting the bribe amount from the de-facto complainant and he is facing trial for offence under Section 7 of Prevention of Corruption Act, 1988, and the applicant was arrested on 15.6.2008 and was released on 24.6.2008, and subsequently on completion of the investigation, the CBI filed charge sheet on 29.8.2008. The respondents pleaded that as the applicant was arrested by the Police and detained for more than 48 hours, the competent authority suspended him and the said suspension was revoked and the applicant was transferred on the same scale of pay and posted to Nanded Division on administrative grounds by order dated 24.6.2008 and that the representation of the applicant dated 7.7.2008 was considered by the respondents and rejected the same on 31.7.2008 for valid reasons. The respondents pleaded that there are no merits in the application and the same is liable to be dismissed.
5. The applicant filed rejoinder stating that the respondents overlooked the Railway Board's instructions issued from time to time in respect of transfer of employees involved in criminal cases and also ignored the instructions relating to posting of spouses working in the Central Government. He reiterated the contentions raised in the application.
6. The point that arise for consideration in this application is -
(i) whether the impugned orders of rejection of the representation dated 7.7.2008 is not sustainable in law?; and
(ii) to what result?
7. During the course of hearing, the learned Counsel for the Applicant contended that he is not challenging the transfer order from Guntakal Division to another Division and his request is only for transfer to neighbouring division and not to a far of division on the ground that he has to attend to the criminal case pending before the CBI Court at Hyderabad and also for the reason that his wife is employed in a non-transferable post in Central Government at Anantapur in Guntakal Division and that as per the latest instructions of the Railway Board in Serial Circular No.135/2002, it is clearly stated that the Ticket Checking Staff detected to be indulging in malpractices should be sent to inter-divisional transfer, as a matter of policy, but such staff may, however, be transferred to an adjoining division in the same Railway or to a division of some other Railway adjoining the Railway. He further contended that there is a policy of Union Government to accommodate the husband and wife at the same station or at nearby stations as far as possible and that the request of persons involved in CBI Cases for posting in the nearby division has been considered by Respondent No.1, but the request of the applicant, who is having an additional ground of his wife working in a non-transferable post in Guntakal Division, is not considered and thus shown discrimination. He further contended that the impugned order dated 31.7.2008 is not a speaking order and that the Respondent No.1 did not at all apply his mind to the averment made in the representation to the effect that his wife is working in a non-transferable post.
8. On the other hand, the learned Counsel for the Respondents contended that the applicant submitted his representation and the respondents exercised their discretion and rejected the representation of the applicant as the applicant is involved in a serious crime of receiving bribe of Rs.20,000/- under the guise of securing compassionate appointment to the dependents of the deceased employee. Therefore, this Tribunal cannot interfere with such discretion.
9. The learned Counsel for the Applicant submitted the copy of the Serial Circular No.135/2002, which reads as follows:
"Commercial staff and others should be ordered on a selective basis based on complaints or general reputation of such staff as available on record of the administration. Ticket checking staff detected to be indulging in malpractices should be sent on inter-divisional transfer, as a matter of policy. Such Ticket checking staff may, however, be transferred to an adjoining division in the same railway or to a division of some other railway adjoining the railway, if the employee concerned makes a request to that effect. (General Managers may review the cases of inter-divisional transfers of Ticket Checking Staff ordered on suspicion of malpractices if after proper enquiry, such staff are fully exonerated. The review will be done by G.M., personally. But in cases where the transfer was ordered at the instance of the Railway Board, a reference to the Board will be necessary)."
He also invited our attention to the averment made by the applicant in his application regarding the posting of his wife in a non-transferable post at Garladinne in Anantapur District, which falls in Guntakal Division and also invited our attention to the non-application of mind to that aspect in the impugned order.
10. We have perused both the representation dated 7.7.2008 and also the impugned order dated 31.7.2008. The relevant portion in the representation dated 7.7.2008 reads as follows:
"Last but not the least my wife also being an employee at a place near Anantapur and as her post is not transferable my placement at NED might affect our family thus subjecting my wife also to severe mental agony despite her innocence.
In view of the aforesaid reasons, I pray you Sir to kindly consider accommodating me anywhere in Secunderabad or Hyderabad area or any place nearby which will be helpful to me in complying with the directives of the Hon'ble Court with bare minimum absence from administrative work."
The impugned order dated 31.7.2008 reads as follows:
"In compliance with the Hon'ble CAT/HYB's orders in OA.No.418/2008, your representation dated 7.7.2008 has been examined and the following is communicated after going through your representation dated 7.7.2008. The orders for your transfer are within the jurisdiction of South Central Railway and both Nanded and Guntakal are connected with Secunderabad by convenient overnight trains. The orders passed by Hon'ble Spl. Judge dated 24.6.2008 are on a petition filed by you, clearly mentioning that you are working at Guntakal. Had no transfer orders for Nanded division been issued, you would have faced the same situation i.e., reporting at Hyderabad every Monday in a petition filed by you. As such posting you at Nanded division needs no change, which is done against clear vacancy.
However, Nanded division has been advised to spare you on leave as and when applied, to attend the office of SP/CBI, Hyderabad for the purpose of investigation, vide this office letter dated 29.7.2008, copy of which is enclosed herewith."
11. As seen from the impugned order, it is clear that the first respondent did not at all consider the averment made by the applicant in the representation dated 7.7.2008 regarding the working of his wife in a non-transferable post in Anantapur District, which falls in Guntakal Division. Further, as seen from the Railway Board's instructions in Serial Circular No.135/2002, it is clear that though erring employees shall be transferred out of division, even such transfer also shall be to an adjoining division in the same Railway or a division of some other Railway adjoining the Railway, if the employee concerned makes a request to that effect. Inspite of the request made by the applicant to consider his transfer to the adjoining division Hyderabad or Secunderabad giving sound reasons for his request, the respondent no.1 did not at all apply his mind to the reasons given for his request to a neighbouring division. Therefore, we consider that this is a fit case to set aside the impugned order and to remand the matter to Respondent No.1 to re-consider the representation of the applicant dated 7.7.2008, keeping in view the Railway Boards Serial Circular No.135/2002 and also keeping the Union of India policy, vide letter No.E(NG) 1-86-TR/14, dated 6.1.1988, regarding posting of spouses to the extent possible in the same station or to nearby stations. Thus, the point is found accordingly.
12. In the result, the OA is allowed and the impugned order dated 31.7.2008 is set aside and the matter is remanded back to the Respondent No.1 to re-consider the representation of the applicant dated 7.7.2008 and to pass appropriate orders keeping in view the Railway Board's Circular No.135/2002, dated 13.9.2002 and also the Union of India policy, vide letter No.E(NG) 1-86-TR/14, dated 6.1.1988 in respect of posting of spouses. There shall be no Order as to costs.