B.Suvarna Raju, S/O B.Veera Raju Vs. South Central Railway, Rep., by Divisional Railway Manager (P) and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/938031
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnJul-20-2009
Case NumberO.A.No.508 of 2009 & M.A.No.282/2009 in OA.No.508/2009
JudgeTHE HONOURABLE MRS. BHARATI RAY MEMBER (JUDL.)
AppellantB.Suvarna Raju, S/O B.Veera Raju
RespondentSouth Central Railway, Rep., by Divisional Railway Manager (P) and Others
Advocates:Counsel for the Applicant : C.M.R.Velu. Counsel for the Respondents : D. Madhava Reddy, SC for Rlys.
Excerpt:
oral order : ( as per hon'ble mrs.bharati ray, member (j) ) heard mr.c.m.r.velu, the learned counsel for the applicant and mr.d.madhava reddy , the learned standing counsel for the respondents. 2. this application has been filed questioning the order issued by the drm (p)/hyb, dated 10.6.2009, a copy of which is annexed as annexure.a-1 at page 7 of the oa. the applicant has sought for a declaration that the impugned order of transfer dated 10.6.2009 issued by the first respondent transferring the applicant to nanded division as arbitrary, illegal, malafide and to set aside the same, and grant consequential reliefs. 3. when the matter was taken up on 19.6.2009, the learned counsel for the respondents, on instructions, submitted that the order impugned in this oa has not yet been issued. in that context, the learned counsel for the respondents was directed to produce the relevant records on 3.7.2009. on 23.6.2009, the learned counsel for the applicant submitted that the applicant had been served with the relieving order on 22.6.2009, a copy of which is annexed by the applicant at page 4 of the m.a.no.282/2009. when the matter was taken up for final hearing today, the learned counsel for the respondents, accordingly, produced the record before me as directed by this tribunal earlier. 4. the learned counsel for the applicant argued that the applicant has been issued with relieving order before he was issued with transferred order. he further submitted that in fact till date he has not been served with transfer order. however, i find that the transfer order has been impugned in this oa. the learned counsel for the applicant submitted that although the same has not been served upon him, but he has procured the same and has annexed along with the oa. 5. at the time of final hearing, the learned counsel for the respondents submitted that the applicant was issued with transfer order along with relieving order. in support of his contention, he has produced the record. however, i do not find any indication therein that the transfer order dated 10.6.2009 was enclosed along with the relief order dated 22.6.2009. from the record, i do not find that the applicant was issued with transfer order dated 10.6.2009 and i find that the applicant was issued with relief order dated 22.6.2009 without being served with the transfer order dated 10.6.2009. 6. the next point taken by the learned counsel for the applicant is that the transfer order is issued with malafide intention inasmuch as the 3rd respondent was aggrieved by the action on the part of the applicant in taking initiation in regard to mmts cleanliness contract file position. in this context, he has drawn my attention to annexure.a-iii at page 18 of the oa, which is the explanation of the applicant to the dcm/hyb. however, i have gone through the letter of dcm/hyb dated 30.3.2009 addressed to adrm/hyb on the subject mentioned therein and found that the 3rd respondent dcm/hyb intimated about the action taken by the applicant herein and he has requested to accord permission/approval for transferring the applicant sri b.s.raju, sr.clerk out of division, so as to approach hqrs for further process. from the record, i have also seen that the adrm had forwarded the matter to the competent authority i.e., ccm, headquarters and the chief commercial manager, in his turn, on going though the relevant railway board's instructions, accorded his approval for transferring the applicant to another division. i have also taken note that the respondents initiated departmental proceedings against the applicant by issuing charge memorandum, a copy of which is annexed by the applicant as annexure.a-ii to the oa. it is also pointed out by the learned counsel for the applicant that in the impugned transfer order the applicant has been advised to vacate railway quarter, if in occupation, before he is relieved. it is the contention of the learned counsel for the applicant that even in case of transfer the applicant cannot not be advised to vacate the railway quarter immediately as per rules. the applicant has to make a representation to the drm requesting for his retention. however, the learned counsel for the applicant submitted that the applicant has not submitted any representation to retain the quarter. however, as per the railway rules/instructions to occupy the quarter even after transfer for certain period, normal rent or market rent is to be paid as prescribed under the rules, if the employee makes request for the same. that being the rule position, the respondents are not correct in making such condition in the transfer order. 7. the applicant has contended that the transfer is punitive in nature. it is the contention of the learned counsel for the applicant that in view of the note of the 3rd respondent, as a measure of punishment, the applicant has been transferred to another division, therefore, the impugned transfer is not permissible as per eye of law. therefore, the transfer order is liable to be quashed and set aside. he has also drawn my attention to the rejoinder, where it is categorically stated that after the tribunal passed its interim order, the respondents have cancelled the relief order dated 22.6.2009. nothing has been stated by the respondent no.4 in his reply filed on 10.7.2009 in regard to cancellation of relief order dated 22.6.2009. 8. the learned counsel for the respondents, on instructions, admitted that the relief order has been cancelled. it is the contention of the learned counsel for the respondents that it has been cancelled so that the applicant can be paid salary. however, i do not find any force in the contention of the learned counsel for the respondents for the reason that there is no bar in view of the interim order passed by this tribunal to pay the applicant salary. in fact, as mentioned above, the 3rd respondent has nowhere mentioned in his reply as to why the relief order has been cancelled. however, the fact remains that the relief order is cancelled by the competent authority. 9. as per the serial circular no.78/94 contained in letter no.p(r)676/1, dated 26.9.1994, inter-divisional transfers will be made only in extreme urgency. in order to show the urgency to transfer the applicant to another division, the learned counsel for the respondents has brought to my notice the letter of the dcm/hyb, dated 30.3.2009 addressed to adrm/hyb, and on going through the said letter and considering that the disciplinary proceedings have been initiated by the respondents, i find nothing to say that such action of approving the decision to transfer the applicant to another division temporarily can be said to be penal in nature. since the respondents have already initiated disciplinary proceedings by issuing charge memorandum dated 19.5.2009, it is difficult to accept the contention of the applicant that there is malafide intention in transferring the applicant for the reasons mentioned above. 10. considering the above facts and circumstances, i find no scope to interfere with the decision to transfer the applicant to another division. however, so far as the transfer order and relief order are concerned, from the record, i find that the applicant was relieved from present division before he was issued with the transfer order. it is true that the applicant has annexed a copy of the transfer order, which he had procured somehow, which also shows the failure on the part of the respondents in maintaining their record. from the record, i do not find anything to show that the transfer order was issued along with the relief order. the respondents have not applied their mind in taking such action after the same was approved by the competent authority. however, the fact remains that the relief order is cancelled. since the transfer order has not been served and was not enclosed along with the relief order dated 22.6.2009 and that the relief order is cancelled by now, it cannot be said that the applicant has been transferred, vide order dated 10.6.2009 and relief order dated 22.6.2009. however, the respondents are at liberty to take appropriate decision, if they are so advised, for which the competent authority has already approved as per rules. since the applicant is discharging his duties in the present place of posting and he has been paid salary, no further order is required to be passed in regard to payment of salary. the transfer order, which was not served on the applicant dated 10.6.2009, is treated as not in existence. 11. the oa is ordered accordingly. there shall be no order as to costs. 12. the ma.no.282/2009 stands disposed of.
Judgment:

ORAL ORDER :

( As per Hon'ble Mrs.Bharati Ray, Member (J) )

Heard Mr.C.M.R.Velu, the learned Counsel for the Applicant and Mr.D.Madhava Reddy , the learned Standing Counsel for the Respondents.

2. This application has been filed questioning the order issued by the DRM (P)/HYB, dated 10.6.2009, a copy of which is annexed as Annexure.A-1 at page 7 of the OA. The applicant has sought for a declaration that the impugned order of transfer dated 10.6.2009 issued by the first respondent transferring the applicant to Nanded Division as arbitrary, illegal, malafide and to set aside the same, and grant consequential reliefs.

3. When the matter was taken up on 19.6.2009, the learned Counsel for the Respondents, on instructions, submitted that the order impugned in this OA has not yet been issued. In that context, the learned Counsel for the Respondents was directed to produce the relevant records on 3.7.2009. On 23.6.2009, the learned Counsel for the Applicant submitted that the applicant had been served with the relieving order on 22.6.2009, a copy of which is annexed by the applicant at page 4 of the M.A.No.282/2009. When the matter was taken up for final hearing today, the learned Counsel for the Respondents, accordingly, produced the record before me as directed by this Tribunal earlier.

4. The learned Counsel for the Applicant argued that the applicant has been issued with relieving order before he was issued with transferred order. He further submitted that in fact till date he has not been served with transfer order. However, I find that the transfer order has been impugned in this OA. The learned Counsel for the Applicant submitted that although the same has not been served upon him, but he has procured the same and has annexed along with the OA.

5. At the time of final hearing, the learned Counsel for the Respondents submitted that the applicant was issued with transfer order along with relieving order. In support of his contention, he has produced the record. However, I do not find any indication therein that the transfer order dated 10.6.2009 was enclosed along with the relief order dated 22.6.2009. From the record, I do not find that the applicant was issued with transfer order dated 10.6.2009 and I find that the applicant was issued with relief order dated 22.6.2009 without being served with the transfer order dated 10.6.2009.

6. The next point taken by the learned Counsel for the Applicant is that the transfer order is issued with malafide intention inasmuch as the 3rd respondent was aggrieved by the action on the part of the applicant in taking initiation in regard to MMTS Cleanliness Contract File position. In this context, he has drawn my attention to Annexure.A-III at page 18 of the OA, which is the explanation of the applicant to the DCM/HYB. However, I have gone through the letter of DCM/HYB dated 30.3.2009 addressed to ADRM/HYB on the subject mentioned therein and found that the 3rd respondent DCM/HYB intimated about the action taken by the applicant herein and he has requested to accord permission/approval for transferring the applicant Sri B.S.Raju, Sr.Clerk out of Division, so as to approach HQRs for further process. From the record, I have also seen that the ADRM had forwarded the matter to the competent authority i.e., CCM, Headquarters and the Chief Commercial Manager, in his turn, on going though the relevant Railway Board's instructions, accorded his approval for transferring the applicant to another Division. I have also taken note that the respondents initiated departmental proceedings against the applicant by issuing charge memorandum, a copy of which is annexed by the applicant as Annexure.A-II to the OA. It is also pointed out by the learned Counsel for the Applicant that in the impugned transfer order the applicant has been advised to vacate Railway Quarter, if in occupation, before he is relieved. It is the contention of the learned Counsel for the Applicant that even in case of transfer the applicant cannot not be advised to vacate the Railway quarter immediately as per rules. The applicant has to make a representation to the DRM requesting for his retention. However, the learned Counsel for the Applicant submitted that the applicant has not submitted any representation to retain the quarter. However, as per the Railway rules/instructions to occupy the quarter even after transfer for certain period, normal rent or market rent is to be paid as prescribed under the rules, if the employee makes request for the same. That being the rule position, the respondents are not correct in making such condition in the transfer order.

7. The applicant has contended that the transfer is punitive in nature. It is the contention of the learned Counsel for the Applicant that in view of the note of the 3rd respondent, as a measure of punishment, the applicant has been transferred to another division, therefore, the impugned transfer is not permissible as per eye of law. Therefore, the transfer order is liable to be quashed and set aside. He has also drawn my attention to the rejoinder, where it is categorically stated that after the Tribunal passed its interim order, the respondents have cancelled the relief order dated 22.6.2009. Nothing has been stated by the respondent no.4 in his reply filed on 10.7.2009 in regard to cancellation of relief order dated 22.6.2009.

8. The learned Counsel for the Respondents, on instructions, admitted that the relief order has been cancelled. It is the contention of the learned Counsel for the Respondents that it has been cancelled so that the applicant can be paid salary. However, I do not find any force in the contention of the learned Counsel for the Respondents for the reason that there is no bar in view of the interim order passed by this Tribunal to pay the applicant salary. In fact, as mentioned above, the 3rd respondent has nowhere mentioned in his reply as to why the relief order has been cancelled. However, the fact remains that the relief order is cancelled by the competent authority.

9. As per the Serial Circular No.78/94 contained in letter No.P(R)676/1, dated 26.9.1994, inter-divisional transfers will be made only in extreme urgency. In order to show the urgency to transfer the applicant to another division, the learned Counsel for the Respondents has brought to my notice the letter of the DCM/HYB, dated 30.3.2009 addressed to ADRM/HYB, and on going through the said letter and considering that the disciplinary proceedings have been initiated by the respondents, I find nothing to say that such action of approving the decision to transfer the applicant to another division temporarily can be said to be penal in nature. Since the respondents have already initiated disciplinary proceedings by issuing charge memorandum dated 19.5.2009, it is difficult to accept the contention of the applicant that there is malafide intention in transferring the applicant for the reasons mentioned above.

10. Considering the above facts and circumstances, I find no scope to interfere with the decision to transfer the applicant to another division. However, so far as the transfer order and relief order are concerned, from the record, I find that the applicant was relieved from present division before he was issued with the transfer order. It is true that the applicant has annexed a copy of the transfer order, which he had procured somehow, which also shows the failure on the part of the respondents in maintaining their record. From the record, I do not find anything to show that the transfer order was issued along with the relief order. The respondents have not applied their mind in taking such action after the same was approved by the competent authority. However, the fact remains that the relief order is cancelled. Since the transfer order has not been served and was not enclosed along with the relief order dated 22.6.2009 and that the relief order is cancelled by now, it cannot be said that the applicant has been transferred, vide order dated 10.6.2009 and relief order dated 22.6.2009. However, the respondents are at liberty to take appropriate decision, if they are so advised, for which the competent authority has already approved as per rules. Since the applicant is discharging his duties in the present place of posting and he has been paid salary, no further order is required to be passed in regard to payment of salary. The transfer order, which was not served on the applicant dated 10.6.2009, is treated as not in existence.

11. The OA is ordered accordingly. There shall be no Order as to costs.

12. The MA.No.282/2009 stands disposed of.