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Judgment
O R D E R
By Hon’ble Mr. Anand Mathur, Member (A):
The applicant, who is an officer of the Indian Revenue Service, had been placed under suspension vide order dated 26.05.2023. Being aggrieved of the aforesaid order to the extent it shifts his headquarters from New Delhi to the region of Pr. CCIT, Odisha, he had earlier approached this Tribunal by filing OA No.1761/2023. By way of an interim order dated 09.06.2023, the respondents were restrained from giving effect to the order regarding fixing of the headquarters of the applicant, till the next date of hearing. Meanwhile, a direction was issued to the applicant to furnish an appropriate representation to the respondents who were directed to decide the same by passing a reasoned and speaking order. In pursuance of the aforementioned directions, the respondents passed an order dated 06.07.2023 rejecting the representation of the applicant. In view of this, OA No.1761/2023 (supra) was dismissed as withdrawn.
The applicant has now approached this Tribunal in a fresh round of litigation by filing the instant OA seeking the following relief:-
i.quash part of the Order bearing FNo. C-29016/35/2023-Ad. VI(A) dated 26.05.2023' (Annexure A-1) to the effect that it changes the Headquarters of the Petitioner from Delhi to Odisha during the period of the suspension order and
ii.quash the order dated 06.07.2023 (Annexure A-2) rejecting the representation of the Petitioner dated 15.06.2023, seeking recalling of the order regarding change of his headquarter from Delhi to Odisha on personal account and on account of his presence in the criminal proceedings pending in Delhi;
iii.Pass any other further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.
Interim Relief
"Directing suspension of the order changing the headquarters the petitioner from Delhi to Odisha during the period of suspension and directing the respondent not to give effect thereto during the pendency of the present O.A."
On 28.07.2023, when the matter was taken up for hearing on the question of interim relief, learned counsel for the applicant argued that in case protection by way of restraining the respondents from giving effect to the change in headquarters was not extended in favour of the applicant he would suffer an irreparable loss. He challenged the legality of the impugned order specifically stating that Rule 10 of the CCS (CCA) Rules governing the provisions of suspension does not confer any authority upon the respondents to change the headquarters of the applicant from his current place of posting. He also drew attention to para 10 of DoP&T O.M. dated 02.01.2014 to emphatically drive home the point that headquarters of a suspended employee would normally be his/her last place of posting. For the sake of clarity the relevant paragraph is reproduced below:-
“10. Headquarters during Suspension
An officer under suspension is regarded as subject to all other conditions of service applicable generally to Government servants and cannot leave the station without prior permission. As such, the headquarters of a Government servant should normally be assumed to be his last place of duty. The order placing an officer under suspension should clearly indicate what his headquarters would be.
However, where an individual under suspension requests for a change of headquarters, there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of T.A. etc. or other complications.”
Learned counsel for the applicant further contended that provisions of this O.M. were reiterated vide an O.M. dated 04.11.2022. He argued that since interim protection had been granted and further continued in the previous OA, the same relief be granted now.
After hearing learned counsel for both the parties, the Tribunal, vide order dated 28.07.2023 declined to grant interim stay qua the impugned order in the following terms:-
“10.We have heard the learned counsels for the parties on the issue of interim relief; we have also gone through the pleadings on record. We are prima facie of the considered view that in terms of the rules governing suspension, the respondents are entitled to fix the headquarters of the applicant. We have also gone through the DOPT O.M. quoted by the learned counsel in support of his contentions. No doubt the said O.M. stipulates that normally the last place of duty should be fixed as the headquarter of a suspended employee, however, we are unable to draw an inference that this OM binds the respondents to fix only the last place of duty as the headquarter. The OM also mentions that the order of suspension shall clearly mention what the headquarters of a suspended employee be; and in the present case, such a mention has been clearly made in the order which places the applicant under suspension.
11.With this limited observation at this stage, we are not inclined to give any further consideration to the applicant's prayer for interim relief. However, our observations recorded hereinabove not to be construed as any comment upon the merit of the O.A.”
Aggrieved, the applicant challenged the Tribunal’s order dated 28.07.2023 before the Hon’ble High Court of Delhi in WP(C) No.10380/2023, which was disposed of vide order dated 07.08.2023 observing that the Tribunal should hear learned counsel for both the parties peremptorily on August 18, 2023 and decide the OA within one week thereafter. The respondents were also directed not to change the headquarters of the applicant from Delhi to Bhubaneshwar till the final outcome of the OA.
To sum up, learned counsel for the applicant argued that there is no provision under Rule 10 of the Rules ibid to change the headquarters of an employee being placed under suspension. Hence, the impugned orders need to be quashed qua the shifting of headquarters of the applicant.
Per contra, the respondents have filed an affidavit in reply raising preliminary objections qua mis-joinder and non-joinder of necessary parties inasmuch as the applicant has not impleaded Chairman, CBDT and the Principal, CCIT, Delhi, who are necessary parties in this OA. The applicant has no vested right to remain posted at the place of his choice as his headquarters has been changed in public interest. He has already been relieved vide order dated 07.06.2023.
The allegations against the applicant are serious in nature. There are allegations of sexual harassment against the applicant, made by a senior lady IAS officer holding the rank of Joint Secretary in the D/o Food & Public Distribution. There are allegations of threatening and manhandling of the said officer along with her husband who also happens to be an IAS officer which has resulted in lodging of FIR No.53/2023, at P.S. Parliament Street, New Delhi on 16.05.2023 u/s 354/354D/506/509 IPC. Therefore, it would be in the fitness of things that the applicant, who is alleged to have been stalking the said lady officer, be transferred out of Delhi so that he may not be in a position to further harass her or her family members including tampering with the evidence as well as influencing the witnesses. Moreover, the competent authority is well within its right to change the headquarters of the applicant as he, being a Group-A officer, is having All India transfer liability. There is no mala fide intention involved in changing the headquarters of the applicant nor has the applicant alleged the same.
In pursuance of the directions of the Tribunal in OA No.1761/2023, the respondents had decided the applicant’s representation by passing a speaking and reasoned order dated 06.07.2023. The Courts or Tribunals are not the appellate forums to decide on transfer of officers on administrative grounds; the wheels of administration should be allowed to run smoothly without the intervention of judicial forum as has been held in State of M.P. and Anr. vs. S.S. Kourav and Ors. [1995 (2) SLJ 109 (SC)].
We have heard Mr. R.K. Saini, learned counsel for the applicant, Mr. Hanu Bhaskar, learned counsel for the respondents and perused the material available on record.
The sole question to be adjudicated in this OA is whether the respondents were empowered to change the headquarters of the applicant when Rule 10 of the CCS (CCA) Rules is silent on the issue.
During the course of arguments, learned counsel for the applicant was asked to specifically quote as to which rule has been violated by the respondents but he was unable to quote any such rule. He had also clarified that the present OA has not been filed against the suspension per se but only regarding the second portion of the impugned order wherein the headquarters of the applicant has been shifted from New Delhi to Odisha.
As far as the rules on the subject are concerned, DOP&T’s Memoranda dated 02.01.2014, 04.11.2022 and 09.09.2016 have been brought to our notice, which read as under:-
OM dated 02.01.2014
“10. Headquarters during Suspension
An officer under suspension is regarded as subject to all other conditions of service applicable generally to Government servants and cannot leave the station without prior permission. As such, the headquarters of a Government servant should normally be assumed to be his last place of duty. The order placing an officer under suspension should clearly indicate what his headquarters would be. However, where an individual under suspension requests for a change of headquarters, there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of T.A. etc. or other complications.”
The first part of the aforementioned OM clearly states that the headquarters of a government servant should normally be assumed to be his last place of duty and the order placing the officer under suspension should clearly indicate what his headquarters would be. It can be clearly deduced from the above that the disciplinary authority can change the headquarters during the period of suspension but the headquarters should be clearly indicated in the suspension order.
A plain reading of the above permits the disciplinary authority to either retain the current headquarters or change the same, the sole requirement being that the new/changed headquarters should be indicated in the suspension order itself. The second part of the aforementioned order also gives liberty to the delinquent official to make a request for a change of headquarters and if the competent authority is satisfied that such a course will not put the government to any extra expenditure like grant of T.A. etc. or other complications, the same may be acceded to.
The above provisions have more or less been reiterated in OM dated 04.11.2022.
OM dated 09.09.2016, inter alia, provides as under:-
“F.No.11013/2/2014-Estt.A.III Government of India Ministry of Personnel, Public Grievances and Pension Department of Personnel & Training Establishment A-III Desk. *** North Block, New Delhi-110 001. Dated: 09.09.2016
OFFICE MEMORANDUM
Subject: Prevention of Sexual Harassment of working women at workplace – Seniority of the Chairperson of the Complaint Committee – regarding.
The undersigned is directed to refer to the DoPT OM no.11013/2/2014-Estt.A-III dated 16th July, 2015 as the Para 1 of the Guide attached to the OM, it was clarified that the Complaints Committee set up to inquiry into charges of sexual harassment should be headed by a women and at least half of its member should also be women. In case a women officer of sufficiently senior level is not available in a particular office, an office from another officers may be so appointed. It was also indicated that to prevent the possibility of any undue pressure, the Complaints Committee should also involve a third party either NGO or some other body which is familiar with the issue of sexual harassment.
2.The issue of legality of a committee conducting inquiry against an officer against whom there are allegations of sexual harassment but where the Chairperson happens to be junior in rank to the suspect officer has been examined. It is clarified that there is no bar either in the CCS (CCA) Rules or under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to the Chairperson of the Complaints Committee being junior to the suspect officer or the charged officer. Hon’ble Allahabad High Court has in Smt. Shobha Goswami vs. State of U.P. And 2 Ors., in WRIT – A No. – 31659 of 2015 observed as follows:-
“In my opinion, there is nothing in the Scheme of the section which requires the lady member to be senior in rank to the officer against whom the allegations of sexual harassment are brought. The language of Section 4 of the Act only requires the lady member to the Senior Level.”
3.Further, to ensure fair inquiry, Ministries/ Departments may also consider transferring the suspect officer/charged officer to another office to obviate any risk of that officer using the authority of his office to influence the proceedings of the Complaints Committee.
4.Hindi Version will follow. Sd/-(Mukesh Chaturvedi) Director (E) Tel: 23093176 To The Secretaries of All Ministries/Departments (as per the standard list).”
As the subject itself indicates, this order has been issued regarding ‘Prevention of Sexual Harassment of working women at workplace – Seniority of the Chairperson of the Complaint Committee – regarding’ and the provision thereon clearly states that Ministries/Departments may also consider transferring the suspect officer/charged officer to another office to obviate any risk of that officer using the authority of his office to influence the proceedings of the Complaints Committee. In the instant case, since an FIR against the applicant has been lodged under Sections 354/354D/506/509 IPC, which relate to sexual harassment, this provision is certainly relevant. Therefore, the provisions of rules mentioned (supra) clearly empower the disciplinary authority in the instant case to change the headquarters of the applicant during the period of suspension. The requirement regarding mentioning of change of headquarters has been duly complied with by the respondents in as much as the suspension order does not mention the changed headquarter for the applicant.
In view of the above discussion, we find that the respondents were well within their right to change the headquarters of the applicant during the period of his suspension. Therefore, we find no infirmity in the impugned orders. The present OA is found to be devoid of merit and the same is accordingly dismissed.
No order as to costs.