Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 5430

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, Anoop Kumar Mendiratta, JJ.
Union of India The General Manager & Anr. - Appellants
Versus
P. K. Tomar - Respondent
W.P.(C) 12216 of 2023 & CM Appls. 48000-48002 of 2023
Decided On : 10-10-2023

Advocates appeared:
Mr. Rajesh Gogna, CGSC with Ms. Pooja and Ms. Priya Singh, Advocates, for the Petitioners.
Mr. Pratiksha Sharma, Mr. M.K. Tripathi, Mr. Ankit Acharya and Ms. Ritu Chaudhary, Advocates, for the Respondent.

IMPORTANT POINT
The central legal point established in the judgment is that the applicability of specific circulars and the justification for employee transfers must align with the circumstances and provisions outlined in the circulars, especially in cases involving impending retirement and disciplinary actions.

Headnote:
Transfer - Railway Employee - Railway Board circular dated 02.11.1998 - Sections 2, 3 - The court discussed the Railway Board circular dated 02.11.1998, which provides for the transfer of ticket checking staff and other staff in mass contact areas detected to be indulging in malpractices. The court highlighted that the circular's applicability is limited to specific staff categories and does not extend to an engineer in the Electricity Department. The court emphasized that the respondent's transfer to Moradabad Division cannot be sustained based on the reasons for the transfer, as the respondent was retiring within two years and the transfer was primarily due to unauthorized occupation of Railway quarter and unauthorized use of electricity, resulting in a minor penalty.
Fact of the Case:
The respondent, a Railway employee, challenged the transfer orders to Moradabad Division, citing the Railway Board circular dated 02.11.1998 and his impending retirement within two years. The respondent had also been transferred within the Seniority Unit during the pendency of the challenge.
Finding of the Court:
The court found that the respondent's transfer to Moradabad Division was not justified, as the reasons for the transfer did not align with the applicable Railway Board circular and the respondent's imminent retirement. The court dismissed the petition, upholding the Tribunal's decision to quash the transfer orders.
Issues: The issues revolved around the validity of the respondent's transfer to Moradabad Division, the applicability of the Railway Board circular dated 02.11.1998, and the impact of the respondent's impending retirement on the transfer decision.
Ratio Decidendi: The court's decision was based on the inapplicability of the Railway Board circular to the respondent's situation, the lack of justification for the transfer in light of the respondent's impending retirement, and the reasons for the transfer not aligning with the provisions of the circular.
Final Decision: The petition was dismissed, affirming the Tribunal's decision to quash the transfer orders and concluding that the respondent's transfer to Moradabad Division was not justified.

JUDGMENT

V. KAMESWAR RAO, J. (Oral)

CM APPL. 48002/2023

Exemption allowed subject to all just exceptions.

Application stands disposed of.

W.P.(C) 12216/2023

1. The challenge in this petition is to a judgment/order dated July 6, 2023 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (`Tribunal', for short) in OA 1381/2023, whereby the Tribunal has allowed the OA filed by the respondent herein by stating in paragraphs 5 & 6 as under:

"5. ANALYSIS:

5.1 The impugned order dated 04.05.2023, for the sake of brevity is re-produced as under:

"Sh. P.K.Tomar S/O Sh. R.S.Tomar working as SSE/ACSP/DLI in 1-7 (PF No.50302863340) is transferred from Delhi Division to Moradabad Division along with post on administrative ground with immediate effect under GM(P) Letter No.752E/160/GS/E-II/A/PT-III dated 25.05.2017. Hence, the above employee may be spared and directed to this office for further sparing to Moradabad Division. Northern Railway, along with leave account duly completed in all respect with six passport size photograph.

This has approval of competent authority."

5.2 The Office Order dated 25.05.2017 vide which the applicant has been ordered to be transferred from Delhi Division to Moradabad Division, for sake of brevity is also reproduced as under:

"Sh. P.K.Tomar, SSE/Power supply/DKZ working under Sr. DEE/G/DLI is transferred to Moradabad division along with post on Administrative ground with immediate effect.

He may immediately be spared and directed to report to DRM (P) Moradabad for his further posting in Electrical department in Moradabad division. This has the approval of Competent Authority."

5.3 As can be borne out of the records, that the Railway Board issued circular dated 25.09.2019, according to which in case of imposition of minor penalty, employee can be posted back after completion of three years beyond the date of completion of the period of punishment and in the present case three years have already been completed and therefore, there is no reason and justification to implement the transfer order of 2017 in the year 2023. Applicant has left with only two years for his retirement and as such the transfer of the applicant at this stage is without any reason and justification.

5.4 As per Railway Board circular dated 02.11.1998 only staff who are in mass contact area and are found involved in malpractices can be transferred on inter divisional basis. It is relevant to point out here that there was no such allegation against the applicant and hence his transfer is against the policy of the Railways. Can the applicant who was involved in unauthorized occupation of Railway Quarter No.1/23, Delhi Kishanganj Railway Colony, Delhi and unauthorized use of electricity in the aforesaid Railway quarter be said to involved in mass contact area and are found involved in malpractices is also questionable. The Impugned office order has been passed by respondents based on the fact that the applicant who was involved in unauthorized occupation of Railway Quarter No.1/23, Delhi Kishanganj Railway Colony, Delhi and allowed unauthorized use of electricity in the aforesaid Railway quarter. The case of the applicant was investigated by Northern Railway Vigilance and as per vigilance recommendation minor penalty charge-sheet was issued to applicant and inter divisional transfer was ordered since the 11 OA No. 138 applicant has already been punished for said action, the transfer order is punitive in nature in facts of present case, even though it is well settled law that the transfer is incidence of service.

CONCLUSION:

6. In view of above analysis, the impugned office order dated 4.5.2023 (Annex.A/1) and order dated 25.5.2017 (Annex.A/2) are quashed and set aside. However, the respondents are not precluded from passing appropriate order(s) qua the applicants in terms of Rules position and/or on merits of the transfer if so, required in future. OA is allowed in aforesaid terms. No order as to costs."

2. The brief facts to be noted for a

Click Here to Read the rest of this document