Rajesh S/O Bajrangdal Khinchi vs The General Manager
2023 Latest Caselaw 1893 Guj

    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:

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

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

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.

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

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

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.

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

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

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.

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.

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.

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

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

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

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.

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