Allowed

The Union of India and 3 Ors. v. Diganta Kumar Chetia

Gauhati HC12 Aug 2022WP(C)/796/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed the writ petition, holding that the C.A.T. order quashing a railway employee's transfer was without adequate reasons and contrary to the Supreme Court in Gobardhan Lal case which mandates that tribunals generally should not interfere with administrative transfers absent concrete evidence of mala fides or statutory violation.

What did the court decide?

Impugned order of C.A.T. dated 07.12.2021 set aside; respondent to be considered for choice of posting within two weeks if he files a representation.

The Union of India and 3 Ors. Vs Diganta… — Pension and Retirement Benefits | Gauhati HC (2022)

¶1

Page No.# 1/9

¶2

GAHC010013482022

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C)/796/2022

¶5

THE UNION OF INDIA AND 3 ORS

¶6

REP. BY THE GENERAL MANAGER ,NORTHEAST FRONTIER RAILWAY, MALIGAON, GUWAHATI-11

¶7

2: CHIEF PERSONNEL OFFICER

¶8

NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI-11

¶9

3: THE DIVISIONAL RAILWAY MANAGER (P) TINSUKIA NORTH EAST FRONTIER RAILWAY TINSUKIA DIVISION P.O AND DIST- TINSUKIA ASSAM PIN-788155

¶10

4: SENIOR DIVISIONAL PERSONNEL OFFICER NORTH EAST FRONTIER RAILWAY TINSUKIA ASSAM PIN-78815

¶11

VERSUS

¶12

DIGANTA KUMAR CHETIA

¶13

S/O-LATE UMESH CHETIA, CHIEF LAW ASSISTANT, UNDER SR. DPO/TSK, N.F RAILWAY TINSUKIA, PIN-788155

¶14

Advocate for the Petitioner : MR A DASGUPTA

¶15

Advocate for the Respondent : MR. U K NAIR

¶16

Page No.# 2/9

¶17

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

ORDER

12.08.2022

(Soumitra Saikia, J)

Heard Mr. A. Dasgupta, learned Senior counsel assisted by Mr. B.K. Das, learned counsel for the petitioners. Also heard Mr. U.K Nair, learned Senior counsel assisted by Mr. A. Boro, learned counsel appearing for the sole respondent.

¶22

2. This writ petition is preferred by the Union of India represented by the Northeast Frontier Railways, Maligaon, Guwahati. Being aggrieved by the order dated 07.12.2021 passed by the Central Administrative Tribunal, Guwahati Bench, whereby the Original Application preferred by the respondent challenging his transfer, was allowed and the transfer order was set aside and quashed.

¶23

3. The essential facts for the present proceedings are that the respondent was appointed as Chief Law Assistant (CLA) at NF Railways, Tinsukia with effect from 11.02.2011. By order dated 10.06.2015, he was transfered from Tinsukia to NF Railways Headquarters Legal Cell, Guwahati on administrative ground. Upon his representation to the authority about his wife’s ill health, the Railway authorities sympathetically considered his request and kept the transfer in abeyance vide order dated 13.07.2015. Subsequently, another transfer order dated 09.12.2016 was issued by the Railways authorities transferring the respondent from Tinsukia to Alipurduar Division due to urgent requirement of

¶24

Page No.# 3/9

¶25

Chief Legal Advisor at Alipurduar Division. Against that transfer order, the respondent submitted his representation on the ground that his spouse, who is also an employee of the Railway, is living in the same station. While the representation was pending, the respondent preferred an application before the Central Administrative Tribunal, Guwahati Bench challenging the transfer order dated 09.12.2016. The said Original Application was disposed of vide the order dated 10.03.2017 directing the Railways to consider the representation by a speaking order. In terms of the order dated 10.03.2017 passed by the Central Administrative Tribunal, Guwahati Bench, the Railway authorities passed a speaking order rejecting his representation. The said speaking order was again challenged before the Central Administrative Tribunal, Guwahati by the respondent by O.A. No. 101/2017. The Central Administrative Tribunal, Guwahati Bench vide order dated 19.09.2017 allowed the Original Application filed by the applicant and set aside the transfer order issued by the petitioners. The Tribunal, Guwahati held that the order of transfer which was impugned even if not considered to be mala fide and arbitrary, it certainly cannot be considered to be compliant of the policy of the Government of India as well as the Railway Board to keep the husband and wife together. The Central Administrative Tribunal, Guwahati held that not enough sensitivity to the policy has been shown by the respondents namely, the petitioners herein. The Railways challenged the order dated 19.09.2017 passed in OA No. 101/2017 by way of writ petition being W.P(C) No. 196/2018. In the meantime, the railway authorities vide order dated 27.03.2018 transferred the respondent from Tinsukia to Headquarter, NF Railways, Maligaon, Guwahati. In view of the said transfer order being passed by the railway authorities, the writ petition being W.P.(C) No. 196/2018 was treated to be infructuous and disposed of. The

¶26

Page No.# 4/9

¶27

transfer order dated 27.03.2018 was again challenged by the respondent by filing OA No. 159/2018. The Tribunal by order dated 07.12.2021 allowed the Original Application (OA) by setting aside the transfer order dated 27.03.2018. Being aggrieved, the present writ petition has been preferred assailing the said order dated 07.12.2021 passed by the Central Administrative Tribunal, Guwahati Bench.

¶28

4. The learned Senior counsel appearing for the Railways submits that at the outset, the OA No. 159/2018 filed by the respondent in which the impugned order dated 07.12.2021 was issued, has been filed in contravention to Section 20 of the Administrative Tribunals Act, 1985 as the said Original Application was filed without making any representation before the railway authorities. The learned Senior counsel submits that the said O.A No. 159/2018 filed by the respondent ought to have been dismissed at the threshold, as the same was filed in contravention of the mandate of Section 20 of the Administrative Tribunals Act, 1985. It is submitted that the respondent does not have any legal right to remain posted in the same station. As transfer is an incidence of service, it is for the administration to decide where employees, including the respondent, ought to be posted in the interest of administration. The learned Senior counsel further submits that the transfer order dated 27.03.2017 which was passed pursuant to the railway administration’s order dated 26.03.2018 was issued on the advice of the vigilance department of the railways advising the transfer of the respondent owing to serious illegal activities of the respondent in the Tinsukia Division including allegation of sexual harassment of a widowed daughter of a former railway employee, demanding bribe for clearance of final settlement dues and other acts of corruption in connivance with other employees. The further submission of the learned Senior counsel is that the

¶29

Page No.# 5/9

¶30

immunity of transfer of Office Bearers of Northeast Frontier Railway Employees Union (NFREU) which was a ground on which the respondent questioned his transfer, is also not a correct statement inasmuch as, the list of Office Bearers which was circulated widely vide the communication dated 16.03.2017 did not contain the name of the respondent as an Office Bearer. The respondent was earlier an Office Bearer but not at the time when the subsequent transfer order was issued.

¶31

5. Per contra Mr. Nair, learned Senior counsel appearing for the respondent submits that the petitioner has consistently being sought to be transferred out on one ground or the other. The order passed by the Central Administrative Tribunal, Guwahati will reveal the various grounds on which the respondent was sought to be transferred by the railways authorities. There are other Chief Legal Advisors who are working in their place of posting for about 20 years and they have not been transferred but the respondent has been sought to be transferred out. The learned Senior counsel submits that while there is no quarrel with the proposition that transfer is an incidence of service and the railway authorities can transfer an employee on an administrative exigency, however, in the facts of the present case, it is evident that repeated orders were issued for transfer of respondent which reveals the attempt to harass the respondent for no fault of his . It is also true that the respondent was elected as an Office Bearer earlier but he is still actively involved in the Northeast Frontier Railway Employees Union (NFREU) activities and therefore, his transfer out of Tinsukia at this stage will adversely affect the welfare activities of the Northeast Frontier Railway Employees Union (NFREU) in which he is involved. It is further submitted that the wife of the respondent is also serving in Tinsukia. She had forgone her seniority as well as accepted lesser Grade Pay to continue her posting in

¶32

Page No.# 6/9

¶33

Tinsukia so that she can be in the same station with her husband. Besides it is the avowed policy of the Government of India and the Railway Board to keep both husband and wife together. Therefore, the Central Administrative Tribunal had correctly interfered with the transfer order. There being no infirmity with the Central Administrative Tribunal order, the present writ petition should be dismissed as being devoid of any merit.

¶34

6. We have heard the learned counsels for the parties. We have also perused the pleadings on record as well as the order impugned.

¶35

7. The Central Administrative Tribunal, Guwahati held that although transfer guidelines do not confer legal right but fairness and transparency in matter of transfer of officials are required to be maintained. Referring to earlier orders passed by the Central Administrative Tribunal, Guwahati as well as by the High Court, the Central Administrative Tribunal, Guwahati Bench set aside and quashed the impugned order of transfer. The Central Administrative Tribunal, Guwahati, however, granted liberty to the petitioner/ railway authorities to process the transfer of the respondent any station, if required keeping in view the principles of natural justice fairness as applicable to the applicant/respondent herein.

¶36

8. Although the Central Administrative Tribunal, Guwahati Bench proceeded to interfere with the transfer order issued to the respondent by referring to the earlier orders passed by the Central Administrative Tribunal, Guwahati Bench and the High Court, there is no finding by the Central Administrative Tribunal, Guwahati Bench that the transfer order issued was illegal or unauthorised. The Central Administrative Tribunal, Guwahati although held that there is no vested right which arise out of transfer guidelines, but it went on to interfere with the impugned transfer order. The impugned order of the Central Administrative

¶37

Page No.# 7/9

¶38

Tribunal, Guwahati Bench interfering with the transfer order is not based on legal reasons. The Tribunal did not render its finding as to why the transfer order is bad and needs to be interfered with and quashed. There is no finding that the transfer order was issued by an authority, not vested under law to issue such a transfer order or that the said transfer order was vitiated by mala fides or that it had been in violation of the statutory provisions.

¶39

9. In State of U.P. v. Gobardhan Lal , reported in (2004) 11 SCC 402 , the apex Court held that the transfer is the prerogative of the authorities concerned and Court should not normally interfere therewith except when the said transfer is shown to be vitiated by mala fides, or in violation of statutory provisions or it has been passed by an authority not competent to pass such an authority. Allegations of mala fides must be on concrete material to inspire confidence of Court. The Apex Court held that a challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. The Court or the Tribunals cannot substitute the decision in the matter of transfer for that of competent authorities of the State. The relevant paragraphs of the Judgment are extracted below:

¶40

“ 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of

¶41

Page No.# 8/9

¶42

transfer.

¶43

9. The very questions involved, as found noticed by the High Court in these cases, being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write-ups in journals or newspaper reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basic concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities affecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the authorities concerned, the courts and tribunals, as the case may be, to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognized grounds or reasons, when properly approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously courts endeavour to safeguard the rights of parties.”

¶44

10. We find that the order of the Central Administrative Tribunal, Guwahati Bench setting aside and quashing the transfer order issued by the petitioners is without adequate reasons and contrary to the law laid down by the Apex Court. Consequently, we find merit in the writ petition and therefore set aside the impugned order dated 07.12.2021 passed by the Central Administrative Tribunal, Guwahati in O.A. No. 159/2018.

¶45

11. Having set aside the impugned order dated 07.12.2021, we also make it clear that if any application is preferred by the respondent requesting for his

¶46

Page No.# 9/9

¶47

choice of posting, the same shall be consider by the railway authorities and speaking order be passed thereon. If any such representation is filed by the respondent then the same shall be disposed of within two weeks thereafter.

¶48

12. Accordingly, the writ petition is allowed and disposed of. No order as to costs.

¶49

JUDGE CHIEF JUSTICE

¶50

Comparing Assistant

The Union of India and 3 Ors. v. Diganta Kumar Chetia

Case brief

What is this about?

What did the court decide?

The Union of India and 3 Ors. v. Diganta Kumar Chetia

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Sulakhyana Saikia Bharali Vs Prabin Saikia

Shamin Ahmed Vs the State of Assam and 5 Ors. F

Saraswati Sengupta and Anr. Vs the Union of India and 3 Ors.

Lakhimai Medhi @ Bordoloi and 2 Ors. Vs the Oriental Insurance Company Ltd. and 2 Ors.

The Oriental Insurance Co. Ltd. Vs Mrs. Nirmali Deka and 3 Ors.

Jerina Bibi Vs the National Insurance Company Ltd. and Anr.