Union Of India vs M.P. Kushwaha
2009 Latest Caselaw 715 Del

                                 Unreportable

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      W.P.(C) No. 7230/2009


%                                                     Decided on : 02.03.2009

UNION OF INDIA
                                             . . . Petitioner

                   through :      Mr. A. S. Dateer, Advocate

              VERSUS

M. P. KUSHWAHA
                                             . . . Respondent

                  through:      Mr. M. K. Bhardwaj, Advocate


CORAM :-

        THE HON'BLE MR. JUSTICE A.K. SIKRI
        THE HON'BLE MR. JUSTICE SURESH KAIT

        1.    Whether Reporters of Local newspapers may be allowed to see
              the Judgment?
        2.    To be referred to the Reporter or not?
        3.    Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J. (ORAL)

1. By means of this writ petition, the petitioner is seeking quashing of

orders dated 27.8.2007 passed by learned Central Administrative Tribunal,

Principal Bench, New Delhi whereby Tribunal has set aside the transfer

order dated 12.1.2007 passed by the petitioner transferring the

respondent from Delhi Division to Ferozpur Division. A short factual

matrix transpires that the respondent was chargesheeted on 21.12.2004

on the charge that he had demanded and accepted Rs.8 excess from the

decoy passengers and as per the inquiry the guilt of the respondent was

proved. This resulted in imposition of major penalty of reduction of pay

from Rs.6350/- to Rs.6050/- in the same time scale of Rs.5000-8000 for a

period of two years with cumulative effect. The appellate authority

reduced this punishment by two stages vide orders dated 9.8.2005. After

this punishment, on 21.10.2005, the respondent was given the marching

orders, i.e., transferring him from Delhi Division to Ferozpur Division. The

respondent challenged his transfer as well as penalty imposed as a result

of departmental proceedings held against him.

2. In so far as OA challenging transfer is concerned, it was disposed of

vide orders dated 15.6.2006 permitting him to make a representation and

directing the petitioner to consider the same.

3. Other OA no. 177/2006 vide which the respondent had challenged

the penalty order has been allowed by the Tribunal vide its judgment dated

29.9.2006 resulting in quashing the said penalty. Against this petitioner

has filed writ petition No. 2128/07 which is still pending in this court.

4. The representation of the respondent against transfer having been

rejected the respondent approached the Tribunal and filed OA 153/07

challenging the said orders which has been allowed by the Tribunal vide

judgment dated 27.8.2007 and transfer orders quashed. The Tribunal has

by reason of its aforesaid judgment recorded that inter divisional transfer

are issued only in special contingencies, i.e., and when disciplinary

proceedings are pending against the employee or when they are found to

be of suspicious behaviour. However, in the present case, transfer orders

were issued after the date of imposing penalty and therefore, it was

colourable exercise of power. It also took note of the fact that in any case

penalty order had been quashed by the Tribunal.

5. We, after hearing counsel for the parties, are of the opinion that no

interference in the impugned judgment of the Tribunal is called for in the

peculiar facts and circumstances of this case because of the following

reasons:

A. Admittedly transfer of the respondent was from one division to

other and it is an interdivisional transfer. Though the

respondent was served by a charge sheet dated 21.12.2004,

transfer orders in the first instance were issued only on

21.10.2005 that is much after the penalty imposed by the

disciplinary authority and modified by the appellate authority.

B. The said penalty has also been quashed and as of today the

conduct of the respondent can be said to be blameworthy,

which became cause for his transfer. Though writ petition

against the order of the Tribunal quashing the penalty order is

pending. Fact remains that the petitioners have implemented

the orders of the Tribunal by giving him all the benefits and

restoring the pay of the respondent which he was drawing

before the imposition of penalty.

C. During the pendency of the OA vide which the respondent had

challenged the transfer orders, stay was granted to the

respondent by the court and therefore he continued to serve in

Delhi. Most importantly, the impugned order was passed by the

Tribunal dated 27.8.2007 and present writ petition is preferred

one and half years thereafter.

6. Taking all these factors into consideration cumulatively, we are not

inclined to interfere with the judgment of the Tribunal. We, accordingly,

dismiss this writ petition.

(A.K. SIKRI) JUDGE

(SURESH KAIT) JUDGE March 02, 2009 rb