C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11946 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution NO of India or any order made thereunder ?
========================================================== RAJESH S/O BAJRANGDAL KHINCHI Versus THE GENERAL MANAGER ========================================================== Appearance:
MR KK SHAH(767) for the Petitioner(s) No. 1for the Respondent(s) No. 3 KSHITIJ M AMIN(7572) for the Respondent(s) No. 1,2 SERVED BY RPAD (N) for the Respondent(s) No. 4,5 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK Date : 24/02/2023 Page 1 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MS. JUSTICE SONIA GOKANI)
1. The petitioner is challenging the inaction on the part of the respondent in not adjudicating the Miscellaneous Application Nos. 491/2021, 473/2021 and 197/2022 in Original Application No. 395/2021 pending before the Central Administrative Tribunal, Ahmedabad Bench.
2. The applicant belongs to Schedule Caste Community Employee and was appointed in railway against reservation quota on 12.02.1993 against direct recruitment of Railway Recruitment Board (RRB). The selection was finalized at head quarter by the respondent no.1 and at present working in the Ahmedabad Division.
2.1. The applicant's appointing and disciplinary authority is a General Manager. The applicant as averred is at present working as Chief Ticket Inspector at Ahmedabad Railway Station.
2.2. He earned various promotions in 25 years of service. However, since last three years, the vigilance had tried to trap him either for shortage of cash or excess cash, but, could Page 2 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 not succeed and despite that he was given minor penalty charge sheet on 12.08.2019 and before he gave his defense, he was grounded by an order dated 12.08.2019. Despite his satisfactory explanation, he was again punished. The matter did not end there. He was kept under suspension at the instance of the vigilance for two months and later, a major penalty charge sheet was issued and the same also ended by another penalty. Thus, he, for the same incident, was thrice punished.
2.3. A false case was made out against the applicant by the vigilance and the same is pending and the transfer order was issued because of the same. According to the applicant, it is a punitive, arbitrary and colorable exercise of powers. After the alleged incident took place, he is working to the satisfaction of the respondents. Even due to the alleged incident, he is not suspended nor any possibility of obstructing investigation or tampering with any documents since charge sheet was already issued on 26.08.2020.
2.4. His defense counsel was residing at Ratlam and due to Covid second wave he could not go to collect the papers. Page 3 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 There was no reason for transferring him but since the higher officer - respondent nos. 1, 3 and 4 have recommended, the respondent no.2 has issued the transfer order. The applicant was on a sick leave and was likely to be served on resumption after becoming fit. The relieving order was not served upon him.
2.5. According to the petitioner, the transfer order is issued on administrative ground but the same is not correct and is an eye wash. It is on advice of the vigilance department that the same is done. One Mrs. Dipika Sharma, according to him, earlier working as Sr. ACC and now working as CBC, trapped by vigilance and Rs. 1100/- found excess, even then, she was continued without transfer at the relevant time in the year 2012 and presently is working at DRM Office. 2.6. The applicant's appointing authority is DRM and the transfer order is issued on behalf of the Sr. DPO i.e. DRM(E) ADI who as per Rule 226 of the Indian Railway Establishment Code is not authorized to issue the transfer order. 2.7. The impugned order is not in conformity with the ratio of Page 4 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 the Supreme Court Judgment in case of B.Vardha Rao where the Court decided that the transfer policy for Group 'C' and 'D' is to be governed by the separate rules. The action of the respondent of ordering the inter division transfer from one Administrative Control to another, according to the petitioner, is against the Railway Board Order.
2.8. In the above facts and circumstances, the petitioner is before this Court with the following prayers:-
""A) To admit and allow this petition;
(B) Be pleased to issue appropriate writ and order by holding that the Honorable Tribunal failed in exercising their judicial power and duty to discharge the same as per the Administrative Tribunal Act 1985 as per its aim and object and as per the Constitution guarantee enshrined to the Citizen litigant and be pleased to decide the grievance of the petitioner pending before the CAT under 226 and 227 of the Constitution of India by granting the relief prayed there in.
(C) Be pleased to grant all the consequential benefits on quashing and setting aside of the transfer order Page 5 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 Dt.1/10/2021 at Annexure "A/1" to the O.A.395 of 2021. (D) Pending admission and final hearing of this petition stay the proceedings of O.A.395 of 2021 Annexure "A" and the respondent no. 2 be directed to allow the petitioner on duty at Ahmedabad with or without condition and stay the further inquiry proceedings pending under Respondent no. 2 and 4 as per Annexure "B".
(E) The Ad-interim relief, may kindly be granted in terms of para 18(D) above to save from further loss and for survival of family of the petitioner considering the facts and balance of convenience in favour of the petitioner."
(F) This petition may kindly be allowed with cost. (G) Be pleased to allow with permission to alter, amend or delete any part of the petition in the facts and circumstances.
(H) To pass any other and further reliefs that may be deemed fit just and proper and in the interest of justice. Page 6 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023
3. The application was moved under Section 19 of the Administrative Tribunals Act, 1985 wherein it is stated that the transfer order was issued on 01.10.2021 transferring the applicant from ADI Division to Mumbai Central Division on advise of the vigilance. He has not as yet been relieved nor the transfer order was communicated to him. Since the transfer order is without any authority and on recommendation of vigilance and inquiry is pending, the applicant approached the Tribunal for seeking justice to quash and set aside the punitive transfer and the order which is illegal.
4. A communication dated 15.07.2022 relying to the notice has come from the Railway DRM Office Building regarding the status of inquiry. The inquiry proceedings had been stopped by the DA and Sr. DCM-ADI vide letter dated 28.06.2022. The transfer order for relieving on inter division transfer to Mumbai Central Division has been sent to the unit in-charge i.e. CTI-SL-ADI under whom the applicant was working for relieving the applicant on inter division transfer on vigilance advise. But, when the applicant came to know about his transfer, he had not attended the office and telephonically Page 7 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 informed on 04.10.2021 about his sickness without submitting medical certificate in the office as required. 4.1. It is the version of respondent that as the applicant has not attended the office, hence, the relieving memo could not be served to the applicant pursuant to his Inter Division Transfer. As per the prevalent practice in vogue as and when, employee is sick, he first telephonically informs the department that he is not well, so immediately on his muster, sick note is marked with a view that on resumption, he will furnish sickness and fitness certificate to the department, but, he took advantage of this practice and informed telephonically and then approached the Court instead of joining the office. He deliberately does this act to avoid receiving transfer order and made up story before the Court of keeping him in dark about the scenario to gain sympathy from the Court. He has not turned up to his duty and, in between, the status-quo which was granted by the CAT-ADI has still continued. 4.2. After that, the applicant filed O.A. No. 395/2021 before the Central Administrative Tribunal-ADI and the Tribunal granted the relief of "status quo as on today" on 08.10.2021 Page 8 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 which has been complied by the administration in true spirit. Thus, the status quo is to be maintained thereafter. Again as per the order of the Tribunal on 16.06.2022, the interim relief granted earlier continued till then and no action is initiated. 4.3. With regard to the salary not being paid to the applicant, it is urged that the same is not done due to marking of absence in the muster. Though "S" was marked in the muster, the remarks of in-charge mentioned in the muster was "treated as absent" in the muster roll of the applicant. Copy of the muster roll of Rajesh Khinchi from October, 2021 to June, 2022 has been enclosed to point out that he has neither produced medical certificate nor submitted written application for commutation of leave under Rule 527 of the IREC and therefore, the salary was not paid. When CIT in- charge came to know that he is not sick and is absent to avoid receiving transfer order, he was marked absent in the muster roll, therefore, no wages is paid to him on the principle of no work no pay. There was no sanction regarding sick leave of the said employee received by the office, hence, such salary has not been paid.
Page 9 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023
5. Rejoinder affidavit has been filed. It is urged that the documents produced on 12.07.2022 were furnished to his advocate. It is further his say that after filing the petition, on receipt of notice, the aforementioend letter dated 28.06.2022 has been issued by the respondent no.2. What will be the fate of the inquiry held ex-parte as even his defense counsel has not been informed of the inquiry date. It was further submitted that the relieving order is always a separate and after following due procedure. As per Medical Manual Para 541(3), the procedure is clear and there is no need to submit certificate when the employee reported sick but on declaring fit by the medical practitioner, the necessary certificate is to be given.
5.1. It is further his say that the respondent no.2 is always informed from time to time. In addition to the request, on 22.11.2021 the advocate of the applicant has also informed, but, no action was taken neither at the relevant time nor thereafter. In no case the respondents can stop the salary and no notice has been given for the same. The HRA also cannot be stopped. He has been without salary for nine months.
Page 10 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 5.2. Assuming that after clarification from the Tribunal or by correct interpretation of status quo, the applicant would have been allowed for duty either at Ahmedabad or Mumbai, but, the respondent misinterpreted the term "status quo as on today" and the applicant was treated on leave. If it is so, the applicant's salary would have continued. The status quo is always to the service contract and to the issue under challenge and not on the circumstances. There is no necessity to maintain muster after relieving and to darw the salary. The fact is the status quo means if the order of transfer is not served, the same cannot be served and the respondent has rightly continued him in ADI Division.
6. The Court has heard at length learned advocate Mr. K.K.Shah appearing for the petitioner and learned Senior Standing Counsel Mr. Kshitij Amin for the respondents.
7. On the ground that there is no action to adjudicate the application of urgent nature and to give justice to the litigant and depriving the judicial remedy to the citizens, this petition is preferred.
Page 11 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 7.1. The Interlocutory Application of course is not an empty formality and requires to be given timely considerations. The petitioner has time and again filed the Interlocutory Applications to seek justice, but, the Tribunal has not adjudicated his requests. By not filing the reply to the Misc. Application itself shows that the respondent is slow in its response, however, that surely would not mean that they neither have any reply to the same nor are they wanting to so do it. The petitioner without waiting for the Tribunal's adjudication has approached this Court to get some immediate relief on his livelihood urging that considering the prima facie case and balance of convenience, he should be given some relief.
7.2. The decision of Karnataka High Court in case of Veera Vahana Udyog Pvt. Ltd. vs. Karnataka State Road Transport Corporation [2009 LawSuit (Kar) 730] is relied upon where the Court has held that the Interlocutory Application is filed seeking consideration before the final disposal of a case. The Courts should therefore consider such Interlocutory Applications at the earliest point of time. It is only as a matter of exception and based on the facts and Page 12 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 circumstances of the case that an Interlocutory Application could be considered at the stage of final disposal of the case for reasons to be recorded. In the matter before the Karnataka Court, learned Single Judge had failed to take note of the existence of the Interlocutory Application. Only after the judgment was pronounced that the order on the Interlocutory Application was passed separately. This, according to the Court, would imply that not only at the stage of final arguments but also while pronouncing the judgment, the learned Single Judge has not considered this aspect. 7.3. On reverting to the matter on hands, the petitioner's applications are also pending before the Central Administrative Tribunal, Ahmedabad. There is a serious dispute in relation to the service having been effected of the transfer order sent to the unit in-charge CTI-SL-ADI for onward service to the applicant and to relive applicant on Inter Divisional Transfer to Mumbai Central Division. When the applicant came to know about his transfer, he did not attend to the office and reported sick. It is therefore the version of the respondents that it is not correct to say that he has not been served with the transfer order. In fact, the Page 13 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 transfer order has not been accepted by him and he has continued to remain sick.
7.4. It is emphatically urged that it is an administrative decision and not of the vigilance and while transferring the applicant to Mumbai Central Division, all his rights such as his pay, seniority etc. had been protected. It is the right of the employer that for running the smooth administration, as per the rules, he has been transferred.
8. We notice the policy of the Railway Board circulated from time to time, particularly, letter dated 22.01.1982 which shows that the staff in mass contact areas detected to be indulging in malpractice should be sent to Inter Divisional Transfer as a matter of policy. Besides the case of staff members who have repeatedly figured in substantiated vigilance case where penalties have been imposed are required to be reviewed at appropriate level and such staff members are also to be transferred on Inter Divisional basis. 8.1. The action of the respondent authority has been challenged before the Central Administrative Tribunal, Ahmedabad. Challenging this Inter Divisional Transfer order, it is urged that the identically situated employees have been protected by the Tribunal. It is only because the interim Page 14 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023 application of the petitioner has not been adjudicated, he is before this Court.
9. The transfer, as per the settled law, is incidental to the service and ordinarily, no interference is desirable unless of course, rules provide otherwise. However, as the petitioner has challenged the action of the respondent authority on the ground of malafide and vindictive actions and his Interlocutory Applications are pending before the Tribunal for adjudication, the Court deems it appropriate not to further dilate the issue. It has been given to understand that with the protection of his pay, seniority etc. his transfer has been effected by virtue of the policy. Presently, by virtue of the order of status quo, his inquiry has been stopped. The transfer order for relieving on Inter Divisional Transfer to Mumbai Central Division has been sent. The applicant was working for relieving the applicant on Inter Divisional Transfer. He has not attended the office on the ground of sickness and claims not to have been served with the order. With the challenge to the transfer now that may not be a ground for him to pursue.
10. Let the Original Application No. 395 of 2021 filed by the petitioner, on urgent basis, be heard by the Tribunal. Before it is finally heard, the petitioner shall be expected to join at Mumbai subject to the outcome of the Original Application filed before the Tribunal. To insist on his salary to be given without working, on the ground that the matter is pending before various forums, is not to be endorsed. Page 15 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023 C/SCA/11946/2022 CAV JUDGMENT DATED: 24/02/2023
11. The petition is accordingly disposed of. None of the observations shall come in the way of the petitioner. Civil Application, if any, same shall stand disposed of in wake of the disposal of the main petition.
12. At this stage, learned advocate Mr. Shah insists on expeditious hearing of the Misc. Applications, which we have directed to be heard on urgent basis, by giving a time bound schedule. Let the same be decided in four weeks' time. Parties to cooperate.
(SONIA GOKANI,CJ) (HEMANT M. PRACHCHHAK,J) Bhoomi Page 16 of 16 Downloaded on : Fri Mar 03 20:30:47 IST 2023