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Judgment
Pratap Kumar Ray, J.—The matter is taken up as on day''s list in view of urgency as prayed for.
Heard the learned Advocate appearing for the Petitioner.
Having regard to the tenor of the order impugned, we are of the view that the writ application could be disposed of here and now as a question of jurisdiction of the learned Tribunal to hear the matter has been raised.
The impugned order reads such:
1.2.2011- All the three OAs deal with analogous matters regarding transfer of staff of Doordarshan AIR. They are being taken up analogously. All the three MAs, namely, MA 270 of 2010, MA 271 of 2010 and MA 272 of 2010 relate to vacation of interim order granted on behalf of the applicants.
In OA 824 of 2010 the applicant who is working in the Doordarshan, Kolkata, has been transferred to LPT, Umerkot, Orissa by order dated 8.9.2009. The matter was taken up by an aggrieved applicant in OA 1334 of 2009 and the Tribunal on 17.9.2009 gave an interim order in that case. The learned Counsel for the applicant in that case had submitted that the transfer had been made in the mid-academic session and further that officer bearers of an Association had not been touched while issuing the present transfer order which was thus discriminatory. When the matter finally came up for decision on 17.1.2010 the Tribunal in OA 1334 of 2009 directed that the Respondents had not followed the transfer guidelines. Persons with longest continuous 3 stay at the station, irrespective of ranks held by them earlier should ordinarily be transferred first. This had not been adhered to may other cases. The Tribunal declared the transfer order on 8.9.2009 as illegal and directed as follows:
The applicant may submit representation for cancellation of his transfer to the Chief Engineer, East zone i.e. 5th Respondent in the OA within fifteen days. If such a representation is filed, the 5th Respondent shall consider request of the applicant and pass suitable order in accordance with the guidelines as stated in the communication dated 14.7.1981 (Annexure-A/1) within a period of two months from the date of receipt of the representation. The Chief Engineer is directed to show sympathetic view while considering the case of the applicant. Till the decision is taken and communicated, the applicant will be allowed to work at Kolkata where he is working under the benefit of the interim order dated 17.9.2009.
The applicant accordingly made his representation to the Chief Engineer, AIR & Television on 19.1.2010 and, inter alia, it was pointed out in the representation that there were several persons who had completed their tenures at various units from 1999 to 2008; but they had not been transferred as they were office bearers of an Association called ADTEA and ARTEE. The applicant stated that No. one could get immunity from transfer except office bearers of the status of the chief executive of a recognized association or union. It has been stated besides in OA 1334, OA 1335 and OA 1336 of 2009 in CAT, Calcutta that there was No. recognized association named APTEE, ADTEA and UADEE. Therefore, the reasons of the retention of such persons beyond the normal period were because of extraneous reason and were not in the public interest. Therefore there was violation of transfer policy. The applicant pleaded for consideration of his case as per guidelines dated 14.7.1991.
In response on 18.3.2010 (Annexure-A/7) the representation of the applicant was turned down. The Respondents pointed out that it was prerogative of the admission to decide where the service of an employee could be best utilized. It was also not correct for the application to state that his prayer for transfer to two places of his choice was not considered. The applicant''s representation was that unless his seniors were transferred, he should not be transferred and once they are transferred his option for transfer to LPTV or AIR Chaibasa be considered was not tenable. It was also stated that the statement of the applicant that some persons had longer stay at Calcutta and that he had been singled out for transfer was not correct. 54 employees had been transferred out. It was also stated that the transfer policy was only a guideline and not statutory in nature.
In the present OA the applicant has challenged the speaking order mentioned above stating that the order has been passed by non-application of mind. Also that as per guideline of 14.7.1991 the applicant cannot be transferred as many other longer stay people have been spare.
During the hearing of the case the Counsel for the applicant reiterated that transfer of the applicant to Umerkot was against the laid down transfer police of the Department. Further that longer people have not been transferred while he had been disturbed which amounts to discrimination. There was No. immunity from transfer except for office bearers of a recognized union and that too for the senior most executive members. Some members of some unrecognized Association had been spared from transfer. It was also stated that he had not been given an opportunity of exercising his option for posting at certain stations of choice.
In reply the Counsel for the Respondents stated that it was not true to say that only the applicant had been singled out for transfer. The said transfer order would indicate the 54 other parsons have been transferred. The applicant had completed his tenure in Calcutta. The Counsel for the Respondents also mentioned that unless transfer orders are mala fide there should not be any interference with such orders. Attention was drawn to the decision of the Apex Court at Sl. No. 15 of Swamy''s News, December 2010. Inter-alia the Swamy''s News cited the decisions of the Hon''ble Supreme Court in the State of UP v. Gobardhan Lal 2004 (101) FLR 586 (SC) where it was held that mala fide must inspire confidence of the Court and not mere conjecture. Without convincing reasons the transfer order should not be interfere with. The burden of proof for mala fide rests with the employee who has been transferred. The decision of the Tribunal in OA 862 of 2006 date 4.4.2007 was cited in this regard also.
Heard learned Counsel for the applicant and the Respondents.
The point at issue is the transfer order of the applicant, namely, Shri K. Deb from Calcutta to Orissa. It is not denied that the applicant has completed his tenure in Calcutta as per transfer rules he can be transferred. Even otherwise transfer guidelines are in the nature of guidelines and thereafter are to be followed if exigency so requires the government is not bound by it. It is also not denied that transfer is an intrinsic part of service and an employee is liable to be transferred to any place where he is so required by the Government.
However, the point at issue here is not the applicant has been transferred from Calcutta to Umerkot, Orissa. The real point at issue is that the transfer is being done, according to the applicant, in violation of the transfer guidelines laid down by the Government itself. When guidelines are issued on a particular subject, in that case the Government lays down certain principles which are to be followed in the matter of transfer. The guidelines, therefore, are in the nature of enabling an employee to live in an administrative realm where there is stability and uniformity in decision making so that people can pursue their occupations without fear or favor. Working at a place involves important matters such as education of children, facilities for health, investment decisions etc. In this case although the applicant has completed his tenure in Calcutta, it is stated that as per transfer guidelines those who have been on a longer tenure should move first. As can be seen from the pleadings certain exceptions have been made. The applicant has alleged that people belonging to certain associations have been favored although there is No. place in the transfer guidelines for such people to be given such protection. This amounts to discrimination.
I am not convinced that merely because 54 persons have been transferred, the Department can state that No. favoritism have been shown in the matter. No. explanation could be given by the Counsel for the Respondents as to why others have not been disturbed except that there were certain instructions from the Department to that effect. No. order could be shown in support of neither such contention nor the principle on which such order has been issued. The Counsel for the Respondents stated that he would seek instructions in the matter.
I have, therefore, raised a crucial point that needs to be resolved. The power of the Government to transfer its employee is not denied nor is the principle that transfer inherent in service denied. But I think the basic point that needs to be answered is as to why some employees have been more favored then others, particularly, when there is No. such provision in the transfer policy. The real point at issue is that the Department has violated its own transfer policy. If the public exigency is the over riding factor then reasons should be stated as to what the public exigency is which is required for the Government to transfer the applicant.
I, therefore, set aside the speaking order till such time as the Respondents gives a clarification as to the public exigency which requires the applicant to proceed to Umerkot from Calcutta while others have been spared ostensibly without any justification. If the transfer guidelines are laid down by the Government then surely departure from such transfer policy need to be justified with reasons. In the alternation such policy guidelines become a mockery. Since the transfer orders have been set aside, the applicant will not be disturbed in his present place of posting till the Government clarifies the point raised above. OA is thus disposed of as also the connected MA. The Government may give its clarification within three months from the date of issue of this order.
OA 825 of 2010
In OA 825 of 2010 the applicant, who is also working in Doordarshan Kendra, Calcutta has been transferred to LPT, Contai vide order dated 9.9.2009. Here also the applicant has stated that the transfer policy of 14.7.1991 has been violated. Persons with longest staying have not been transferred while he has been. The officer bearers of an unrecognized Association have been spared. Earlier he had filed OA 1335 of 2009 where the transfer order of 9.9.2009 was held to be illegal. The authorities had been directed to pass a suitable order in accordance with the guidelines dated 14.7.1991. By a speaking order dated 18.3.2010 the applicant had been transferred in total non-compliance of the transfer guidelines. It has also been stated that the transfer order of 18.3.2010 is a non-speaking order (Annexure A/7). The said speaking order is as follows:
The representation was carefully examined and found that there is No. merit in the case and hence rejected.
It is seen in his representation that unless his seniors are not transferred, he should not be transferred is perhaps not tenable. It is the prerogative of the administrative authority to decide as to where the service of an employee could be better utilized. As regards the plea that the transfer is against transfer policy, it may be noted that the transfer policy is only a guideline and not a statutory provision.
The applicant has also stated that his representation has been disposed of by the Director (Engineering) and not by the Chief Engineer as was directed by the Tribunal. The representation has thus been dispose of by an authority subordinate to the Chief Engineer.
The Counsel for the Respondents stated that the Director (Engineering) could function as Chief Engineer when the Chief Engineer was out of station. The Counsel was requested to furnish documentary support of the same that Director (Engineering) can function as a Chief Engineer when the Chief Engineer is out of station without a formal delegation of power. The Counsel for the application also stated that the application was 58 old years and he has only two years to go before retirement.
The Counsel for the Respondents replied that the applicant had been in Calcutta for 16 years. He had indicated three places of his choice for posting. But unfortunately, there was No. vacancy.
In this case also I have given my careful consideration and gone through the pleadings.
Heard learned Counsel both the sides.
The clarification I have sought in OA 824 of 2010 would apply here also. The main points to be clarified is as to why the Respondents are not complying with their own transfer guidelines while not denying the transfer is an incident of service and that employees are required to serve anywhere when the Government requires them to so. Transfer guidelines have been issued on behalf of the Government itself so as to provide some stability in decision making. The Respondents authorities are required to clarify as to what is the public exigency that has required the transfer of the applicant to Contai particularly in the context of fact that he has only two years left for retirement. Till such time as the clarification is received, the transfer order dated 9.92009 will be kept in abeyance. The Respondent authorities are required to give clarification in line with the directions given in OA 824 of 2010 above within a period of three months from the date of issue of this order. In addition to the general factors mentioned above the Respondents will also keep in mind the fact that the applicant has two years to go before retirement.
With the above orders the OA and connected MA are disposed of.
OA 848 of 2010
The applicant has been transferred vide order dated 7.9.2009 from Kolkata to Jalpaiguri. Once again the applicant has drawn my attention to the transfer policy of 14.7.1991 that period within longest continuous stay at the station irrespective of ranks are to be transferred first. Once again it has been stated that office bearers of an unrecognized Union have been favored by not disturbing them. I have already directed the Counsel for the Respondents to clarify the position in OA 824 of 2010 above.
The Counsel of the applicant also drew attention to the fact that the applicant has been suffering from cardiac disease and has been treated at Christian Medical College (CMC), Vellore. A very expensive medical in-plant has been implanted in him for his cardiac ailment called as Idiopathic. VT Brugada Syndrome. The CMS, which is a premier medical institution of India, has advised that the applicant should stay in the metropolitan area with good medical facilities. It is not clear whether this fact has been taken into consideration by the Respondents in posting the applicant. In Jalpaiguri such sophisticated medial facilities as would be available in a metropolitan area like Calcutta may not be available. It would be redundant for the Tribunal to mention the reasons already given above for departure from transfer policy. Briefly, they are recapitulated here which are, namely, that a person with longest stay has not been disturbed since that has been laid down in the transfer policy drawn up by the departmental authorities itself. Secondly whether members of the unrecognization have indeed been favored and the instructions on the subject by the government which need to be clarified as promised by the learned Counsel for the Respondents.
In addition to the factors mentioned above, the Respondents are to consider physical condition and the medical certificate issued by the CMC, Vellore. The applicant has been posted in an area where he may not be able to seek urgent medical intervention. Till such time as the above are clarified the transfer order dated 7.9.2009 and the impugned order date 29.3.2010 are kept in abeyance. OA is disposed of as also the relevant MA.
All the three OAS have thus been disposed of.
On a bare reading of the impugned order, it appears that one administrative member of Central Administrative Tribunal, Calcutta Bench heard the transfer matter. It is the view of the Apex Court passed in the case L. Chandra Kumar v. Union of India and Ors. 1995 (71) FLR 27 (SC) that a Bench must be constituted by two members wherein one must be a judicial member. The same view has been considered subsequently in a case State of M.P. Vs. B.R. Thakare and Others, wherein the Court held that even if u/s 5(6) of the Administrative Tribunal Act, by using a non-obstante clause, provision has been made that a Bench consisting of a single member may hear the application subject to classes of cases as to be declared by the Chairman by general or special order, but still then all matters should be heard by a Bench constituted by two members and amongst them one must be a judicial officer. The relevant paragraphs read such:
...A Constitution Bench of this Court in L. Chandra Kumar v. Union of India and Ors. 1995 (71) FLR 27 (SC) quoted with approval the decision of this Court in Dr Mahabal Ram Vs. Indian Council of Agricultural Research and Others, as follows:
.. There is No. doubt that what has been said in Sampath Kumar case would require safeguarding the interest of litigants in the matter of disposal of their disputes in a judicious way. Where complex questions of law would be involved the dispute would require serious consideration and thorough examination. There would, however, be many cases before the Tribunal where very often No. constitutional issues or even legal points would be involve.... We are prepared to safeguard the interests of claimants who go before the Tribunal by holding that while allocating work to the Single Member. Whether judicial or administrative in terms of Sub-section (6), the Chairman should keep in view the nature of the litigation an where questions of law and for interpretation of constitutional provisions are involve they should not be assigned to a Single Member. In fact, the proviso itself judicators Parliament''s concern to safeguard the interest of claimants by casting an obligation on the Chairman and Members who hear the cases to refer to a regular bench of two members such cases which in their opinion require to be heard by a Bench of two Members. We would like to add that it would be open to either party appearing before a Single Member to suggest to the Member hearing the matter that it should go to a bench of two Members. The Member should ordinarily allow the matter to go to a bench of two Members when so requested. This would sufficiently protect the interests of the claimants and even of the administrative system whose litigations may be before the Single Member for disposal. This vies of Sub-section (6) has not been under challenge and, therefore, both the provisions in Section 5 have to be construed keeping the legislative intention in view. We are of the view that what we have indicated above brings out the true legislative intention and the prescription in Sub-section (2) and the exemption in Sub-section (6) are rationalized.
We may also notice that in the matter of allotment of cases as No. Rules had been framed, the Chairman of the Tribunal had also issued an order on 27.8.1993 which is as under:
In supersession of order No. R/D/1-93, Indore, date 6.8.1993 on the subject, and in exercise of the powers conferred by Sub-section (6) of Section 5 of the M.P. Administrative Tribunal Act, 1985, I.P.C. Pathak, Chairman, M.P. Administrative Tribunal, hereby authorize the Judicial Member of M.P. Administrative Tribunal to function as a Bench consisting of single member and to exercise the jurisdiction, powers and authority of the Tribunal in respect of hearing including the final hearing of all types of case within the jurisdiction of Tribunal.
Even assuming that all the powers of the Tribunal could be exercised by any Single Member, it can only be by a Judicial Member of the Tribunal and not any other member under the aforesaid order.
Shri B.S. Banthia, learned Counsel appearing for the Respondents drew our attention to the decision of this Court in Indermani Kirtipal v. Union of India and Ors. 1996 (73) FLR 1034 (SC) and admitted that a decision by a Single Member of the Tribunal is not without jurisdiction particularly when a party had acquiesced in the proceedings before the Single Member of the Tribunal. He therefore, submitted that there is No. need for this Court to interfere with such n order made by a Single Member of the Tribunal.
We are not resting our decision on lack of jurisdiction of a Single Member of the Tribunal as we are more concerned with the administration of justice. The Tribunal had been constituted in substitution of the High Court as was noticed by this Court in Chandra Kumar''s case (supra). To have proper administration of justice while allotting work to Single Member, whether judicial or administrative, the Chairman should keep in mind the nature of the litigation and where questions of law and its interpretation are involved, they should be assigned to Division Bench of which one of them is a judicial Member. Keeping the wholesome principle in view, we think the order made by the Tribunal should be set aside. In the circumstances, we allow this appeals/set aside the order made by the Tribunal and remit the matters to the Tribunal for consideration as aforesaid on merits by a Division Bench of which one of them is a judicial Member...
Section 5(6) of the Administrative Tribunal Act reads such:
(6) Notwithstanding anything contained in foregoing provisions of this section, it shall be competent for the Chairman or any other member authorized by the Chairman in this behalf to function as [a Bench] consisting of a single member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may be general or special order specify:
Provided that at any stage of the hearing of any such case or matter it appears to the Chairman or such member that the case or matter is of such a nature that ought to be heard by a Bench consisting of [Two Members], the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit.
Having regard to such, since the impugned order was passed by one administrative Member, we are of the view that the matter should be remitted back for hearing by a Bench constituted by two Members in which one must be a judicial Member of the Central Administrative Tribunal.
The impugned order is set aside and quashed and as a resultant effect, transfer order is revived for consideration by the learned Tribunal below, which was challenged.
The Petitioner is how at liberty to approach the learned Tribunal seeking appropriate interim order praying for stay of the transfer order and learned Tribunal below will decide the matter in accordance with law considering merits and demerits.
It is made clear that we are not expressing any opinion to that effect.
The original application is restored to its file.
The writ application is allowed to that extent on the ground as mentioned.
Let Xerox certified copy of this order, if applied for, is given to the learned Advocate appearing for the Petitioner expeditiously.
Mrinal Kanti Chaudhuri, J.
I agree.