CENTRAL ADMINISTRATIVE TRIBUNAL PATNA BENCH, PATNA OA/050/00374/2017 with OA/050/00376/2017 with OA/050/00405/2017

-1- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

CENTRAL ADMINISTRATIVE TRIBUNAL PATNA BENCH, PATNA OA/050/00374/2017 With OA/050/00376/2017 With OA/050/00405/2017

Reserved on: 12.04.2018 Date of Order: 13.04.2018

C O R A M HON’BLE MRS BIDISHA BANERJEE, JUDICIAL MEMBER HON’BLE MR. A.K. UPADHYAY, ADMINISTRATIVE MEMBER

I. OA/050/00374/2017 V.N. Ojha, Son of Laln Je Ojha, Chief Inspector of Ticket, East Central Railway, Jhajha (Bihar). ………. Applicant. - By Advocate:- Shri M.P. Dixit

-Versus-

3. The Chief Commercial Manager, East Central Railway, Hajipur, PO- Digghi Kalan, PS- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 4. The Diviaional Railway Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar) - 801105.

5. The Senior Divisional Commercial Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar)-801105. 6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar). ……… Respondents.

- By Advocate(s) :- Shri B.K. Chaudhary Shri S.K. Raj

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II. OA/050/00376/2017 1. Paulus Tirkey, Son of Late Emil Tirkey, Chief Inspector of Ticket, East Central Railway, Bakhtiyarpur, District- Patna (Bihar). 2. R.V.P. Singh, Son of Late Keshav Prasad Singh, Chief Inspector of Ticket, East Central Railway, Buxar, District- Buxar (Bihar). ………. Applicants. - By Advocate:- Shri M.P. Dixit

-Versus-

1. The Union of India through the General Manager, East Central Railway, Hajipur, P.O.- Digghi Kalan, P.S.- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 2. The General Manager (Personnel), East Central Railway, Hajipur, P.O.- Digghi Kalan, P.S.- Hajipur, District- Vaishali Kalan, P.S.- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 3. The Chief Commercial Manager, East Central Railway, Hajipur, PO- Digghi Kalan, PS- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 4. The Diviaional Railway Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar) - 801105. 5. The Senior Divisional Commercial Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar)-801105. 6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar). ……… Respondents.

- By Advocate(s) :- Shri B.K. Chaudhary Shri S.K. Raj III. OA/050/00405/2017 Manish Kumar, Son of Late Ram Naresh Singh, Reservation Supervisor-II, East Central Railway, Danapur, District- Patna (Bihar). ………. Applicant. - By Advocate:- Shri M.P. Dixit

-Versus-

1. The Union of India through the General Manager, East Central Railway, Hajipur, P.O.- Digghi Kalan, P.S.- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). -3- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

2. The General Manager (Personnel), East Central Railway, Hajipur, P.O.- Digghi Kalan, P.S.- Hajipur, District- Vaishali Kalan, P.S.- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 3. The Chief Commercial Manager, East Central Railway, Hajipur, PO- Digghi Kalan, PS- Hajipur, District- Vaishali at Hajipur, Pin Code- 844101 (Bihar). 4. The Diviaional Railway Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar) - 801105. 5. The Senior Divisional Commercial Manager, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar)-801105. 6. The Senior Divisional Personnel Officer, East Central Railway, Danapur, PO- Danapur, PS- Khagaul, District- Patna (Bihar). ……… Respondents.

- By Advocate(s) :- Shri B.K. Chaudhary Shri S.K. Raj O R D E R

Per Mr. A.K. Upadhyay, A.M.:- The grievance in the three OAs is identical and arising out of the same impugned No. 465 of 2017 dated 13.06.2017 by which the applicants have been transferred from Danapur Division to different divisions allegedly on the ground of misconduct found during vigilance enquiry.

2. It is admitted position that all the three applicants belong to ticket checking category. The brief facts of the three OAs are as follows:-

OA 374/2017

The applicant in this case was working as Dy. Chief Inspector of

Tickets at Rajendra Nagar and on promotion he was posted as Chief

Inspector of Tickets (CIT) at Patna vide order No. 307/2017 dated

13.04.2017. By order No. 465/2017 dated 13.06.2017 he was -4- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17 transferred from CIT, Patna to CIT, Jhajha which has been challenged in this OA. Subsequently, on the same ground of vigilance he was transferred by order No. 415/2017 dated 06.07.2017 which was strongly challenged by the learned counsel for the applicant Shri M.P.

Dixit.

OA No. 376/2017

The first applicant in this case P. Tirkey has been transferred from the post of CIT, Rajendranagar to CIT, Bakhtiyarpur, and the second applicant Shri R.B.P. Singh from the post of CIT,

Rajendranagar to CIT, Buxar by order No. dated 13.06.2017. The order states that he has been transferred with vigilance’s recommendation. Subsequently, the applicants were transferred inter-divisionally by office order no. 415 of 2017 dated 06.07.2017 to

Sonepur and Samastipur divisions respectively.

OA No. 405/2017

The applicant in this case was transferred vide order No.

450 of 2017 dated 07.06.2017 from the post of RS II, Buxar to the post of RS II (Twitter Cell), Danapur vide order No. 450 of 2017 dated

07.06.2017 on Vigilance recommendation. Thereafter, by order No.

415 of 2017 the applicant was transferred inter-divisionally from

Danapur to Samastipur on Vigilance recommendation. -5- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

3. The learned counsel for the applicant Shri M.P. Dixit strongly challenged the inter-divisional transfer order on the following grounds:-

(i) The authority has issued the transfer order on the dictates of an outsider. He cited judgments in the case of Bahadur Singh Lakhubhai Gohil Vs. Jagdishbhai M. Kamaila & Ors. reported in 2004(2) SCC 65 and in the case of Vinod Kumar Singh Vs. State of Bihar 2008(1) PLJR 547 to the effect that if any decision is taken by the statutory authority on suggestion of a person who has no statutory role to play the same would be ultra vires.

(ii) The applicants have been transferred once on vigilance recommendation to some other place within the Divsion. Therefore, they cannot be transferred again on the same ground to a different division in a short time.

(iii) Shri Dixit also stated that the order states the word “misconduct” which is different from “malpractices”. Therefore, the RBE No. 250 & 251 of 1998 does not apply on them.

4. The respondents have filed separate written statements in the three cases. The allegations in all the cases are of similar nature. In OA 374 of 2017 it has been stated that while the applicant was performing duty as Coach Conductor in assigned coaches in

Rajdhani Exp. 12309/12310, on various dates he had shown passengers turned up in train working chart, booked passengers on

Freedom Fighter pass numbers which had no valid existence. The -6- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17 applicant had tampered the working chart of the coach subjected to

Vigilance check of Train No. 12309 dated 08.05.2016 by replacing the original copy to suppress the irregularity.

5. In OA No. 376/2017 it has been stated in the written statement that while performing duty as Coach Conductor in their assigned coach in Rajdhani Exp. No. 12309/12310 on various dates, the applicants had shown passengers turned up in train working charts, booked on such Freedom Fighter Pass numbers which have no valid existence for illegal carrying of passengers with ill intention.

It has been further stated that Shri Paulus Tirkey turned up the same passenger booked on two different berths on ‘0’ value in the same coach holding one Freedom Fighter pass number with same passenger profile. Shri RVP Singh tampered the train working chart of the coach subject to Vigilance check of Train No. 12309 dated

08.05.2016 by replacing the original copy to suppress the irregularity detected during the check.

6. In OA No. 405/2017 it has been stated in the written statement that on 02.06.2017 a vigilance check was conducted in which irregularities were detected due to which the authorities decided to transfer the applicant inter-divisionally. It has been alleged on the basis of CRIS data that about 24 imaginery/invalid

Freedom Fighters Pass number were used to generate approximately

850 PNRs against which JCRTs for 1725 passengers in Rajdhani Exp. -7- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

No. 12309/12310 for 2nd Class AC were issued by him for ‘0’ value causing huge loss to the Railways.

7. The learned counsel for the respondents Shri B.K.

Chaudhary submitted that as per the Indian Railway Establishment

Code 226 a railway employee is liable to be transferred at any place.

Further, RBE No. 251/1998 specifically deals with the issue of malpractices among ticket checking staff and those working in mass contact areas. In order to curb malpractices amongst such staff a policy decision has taken, pursuant to a conference at the Railway

Board headquarters that those found including in malpractices shall be transferred inter-divisionally or inter-railway. This is a policy decision of the government to bring cleanliness in the Railways. For effecting transfer under this provision it is not necessary that the charges have to be proved in a departmental proceeding.

Departmental proceeding is a separate matter from transfer. The power of Railways to transfer employees under this provision has been adjudicated by several courts. A judgment dated 05.08.2009 of the Hon’ble High Court, Patna in CWJC No. 4092 of 2009 has been enclosed with the written statement.

8. Shri Chaudhary also vehemently argued that vigilance in the Railways is not an outside organization. It is a part of the Railway system. The competent authority has effected this transfer by application of mind and not on the dictates of an outside agency. Shri

Chaudhary also mentioned that several malpractices committed by -8- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17 the applicants have been found while they were on duty in prestigious Rajdhani Exp. and specific details have been given in the written statement.

9. The applicants have filed a rejoinder in all the cases in which the submissions in the OA have been repeated.

10. In course of the arguments Shri Chaudhary mentioned that as per judgments of the Hon’ble Supreme Court in several cases such as in the case of Shilpi Bose etc, the transfer is an incidence in service and the authorities are the best judge to decide who is to be posted where. Shri Chaudhary also placed on record two judgments dated 12.04.2007 in the case of Bhagwan Das Mittal Vs. State of

Rajasthan by Hon’ble Rajasthan High Court and the judgment of the

Tribunal’s Principal Bench in the matter of Shri A.K. Gupta & Ors. Vs.

Union of India & Ors.

11. Heard the parties and perused the documents.

12. The following issues arise in these cases for adjudication:-

(i) Is the transfer order vitiated because it has been done on the basis of vigilance recommendation?

(ii) Are the authorities precluded from transferring the applicants inter-divisionally on the ground that they have already transferred them within the Division to other places a few months back?

(iii) Are the IREC Clause 226, and RBE 250/1998 and 251/1998 not applicable on the applicants? -9- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

13. As far as the first issue is concerned, we have gone through the judgment cited by the applicant, i.e. Bahadursinh

Lokhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. Reported in

2004(2) SCC 65. This was regarding a PIL matter challenging the action of the Municipal Corporation in including the name of a person in the Corporation Register. Therefore, the facts of the case have no relevance here. Any general obiter in that judgment cannot be of any help to adjudicate this matter. We have to discuss the specific provisions which govern the present case. The judgment of the Hon’ble Patna High Court cited by the respondents in the case of

B.S. Chaturvedi in CWJC No. 4902 of 2009 was specifically about inter-divisional transfer of Railway employee on vigilance grounds.

The Hon’ble Patna High Court has held in that case that the transfer order on administrative ground will not be invalid merely because it was based on relevant facts made by the Vigilance Wing of the

Railways. The Hon’ble Patna High Court also held that rules do not prohibit inter-divisional transfer which was as per the policy of the

Railways. In that case also transfer was made during the pendency of the disciplinary proceedings.

14. In OA No. 530 of 2011 this Tribunal vide order dated

31.05.2012 upheld the inter-divisional transfer order. In this order the Tribunal quoted extensively from the judgment of the Hon’ble

Delhi High Court dated 10.09.2007 in the case of Jagdish Khurana Vs.

Union of India in which Rule 226 of IREC Volume-I and RBE No. 250 -10- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17 and 251 of 1998 were discussed. Accordingly, the transfer order was upheld. Subsequently, in several cases the Tribunal has upheld inter- divisional transfers on the basis of the provisions of IREC 226 and RBE

Nos. 250 and 251 of 1998.

15. Now we come to the para 226 of the IREM which is as follows:-

“Ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or railway or railway establishment including a project in or out of India. In regard to Group C and Group D railway servants, the power of the President under this rule in respect of transfer, within India may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated.”

16. RBE No. 251 of 1998 which directly refers to ticket checking staff is as follows:-

“ In terms of the existing instructions ticket checking staff detected to be indulging in malpractices, are required to be invariably sent on inter-division/inter-railway transfer as a matter of policy.

2. The question of feasibility of effecting inter-divisional transfer of staff in mass contact areas including ticket checking staff, was discussed in the Conference on Malpractices and Corruption in mass contact area organized by the Ministry of Railways on 10.07.98.

3. Pursuant to the above discussion, it has been decision that while the existing policy of inter-divisional/inter-railway transfer of ticket checking staff detected to be indulging in malpractices shall continue, other staff in mass contact areas -11- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

detected to be indulging in malpractices should also be transferred on inter-divisional basis.”

17. Reading the above provisions together, it is clear that even if an employee is borne on a particular division or Railways there is an overarching provision that he can be transferred outside his division/Railway in the exigencies of service. Further, there is a specific provision that ticket checking staff found indulging in malpractices are liable to be transferred inter-divisionally. As held by the Hon’ble Patna High Court, the Tribunal’s Patna Bench and

Principal Bench in several cases, we hold that RBE No. 251 of 1998 is not confined to cases where a person is repeatedly figuring in vigilance cases and where penalty have been imposed. A specific instance of malpractice is sufficient for the authorities to transfer a person outside the Division. We are satisfied that the instances mentioned in the written statement are serious enough to impel the authorities to transfer these applicants inter-divisionally.

18. Now we come to the last point whether the earlier transfer order by which the applicants were transferred within the division preclude the authorities from transferring them inter- divisionally after some time. It appears from the dates that after the serious malpractices reported by the vigilance the Divisional

Authority in the first instance transferred them within the Division.

However, soon after the matter has been considered at the zonal headquarters level and thereafter inter-divisional transfer has been -12- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17 effected. Therefore, these are not in contradiction. One was the immediate response by the local authorities to the serious malpractice and the other was consideration by the competent authority at the zonal headquarter for inter-divisional transfer. The first action taken by the local authority does not bind the hands of the zonal headquarters to transfer them inter-divisionally in view of the serious malpractices in a prestigious train.

19. Shri Dixit tried to make a distinction between

“misconduct” and “malpractice” and sought to argue that the circular refers malpractice whereas the transfer order mentions

“misconduct”. Therefore, this order is invalid. We are not persuaded by this argument. In the context of the case the words have a common sense meaning in English. A malpractice is a misconduct.

The hairsplitting on the two words does not alter the substantive decision which is inter-divisional transfer because of specific malpractices committed by the applicants as checking staff in

Rajdhani Express.

20. That the transfer is an incidence of service and the scope of judicial review by the courts in a transfer matter is very limited has been upheld by several judgments in the Hon’ble Supreme Court, such as Rajendra Singh Vs. State of U.P & Ors. vide order dated

31.07.2009; State of U.P Vs. Govardhan Lal [(2004) 11 SCC 402];

Shilpi Bose & others Vs. State of Bihar & Ors.; N.K. Singh Vs. Union of India & Ors. etc. The Hon’ble Supreme Court vide order dated -13- OA/050/00374/17 with OA/050/00376/17 with OA/050/00405/17

13.02.2004 in the case of Union of India & Ors. Vs. Janardhan

Debnath and Anr cited in {2004 SCC ( L& S) 631} SCC have held that the authorities can transfer an employee if his continuance is prejudicial to the interest of the organization. The judicial review is limited to the grounds of mala fide or violation of any specific provision.

21. In conclusion, these OAs are dismissed. Interim orders are accordingly vacated. No order as to costs.

[ A.K. Upadhyay ] [Bidisha Banerjee ] Administrative Member Judicial Member Srk.