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Judgment
Mohd. Jamshed, Member (A)
The applicant was working as Consultant (ENT) at CGHS wing of Safdarjung Hospital, New Delhi since 2010. He was subsequently appointed as Head of Department of ENT (CGHS Wing) at Safdarjung Hospital w.e.f. 01.11.2017. On 21.10.2020, a complaint of sexual harassment was filed against him by a female colleague. It is submitted that an enquiry was conducted and the Internal Complaints Committee (ICC) submitted its report absolving the applicant from the charges of sexual harassment on 04.02.2021. The applicant, however, made a representation against the observations made by the ICC and also represented to various forums seeking redressal of his grievances. It is stated that the applicant fell ill on 24.07.2021 and applied for medical leave. However, vide impugned order dated 30.07.2021, he was transferred from CGHS, Delhi to CGHS, Nagpur. Aggrieved by this action of the respondents for transferring him, the applicant filed OA No. 1704/2021. The said OA was disposed of on 19.08.2021 with direction to the applicant to submit a representation to the respondents. The applicant joined back on 31.08.2021 and on the same day, he was intimated by the respondents that he stands relieved from Safdarjung Hospital on and from 05.08.2021. His representation in this regard was rejected on 17.09.2021. The present OA has been filed by the applicant seeking relief(s) as under:
"(i) To allow the present application;
(ii) to quash and set aside the rejection order dated 17.09.2021 (Annexure A-1) as being bad in law;
(iii) to quash and set aside the transfer order dated 30.07.2021 (Annexure A-2) as being bad in law;
(iv) to also quash and set aside the relieving order dated 05.08.2021 (Annexure A-3) as being bad in law;
(v) to grant all consequential benefits thereof;
(vi) to issue any such and further orders/directions this Hon'ble Tribunal deems fit and proper in the circumstances of the case; and
(vii) to allow exemplary cost of the application."
The applicant has also prayed for interim relief in terms of a direction to the respondents to keep in abeyance the impugned transfer order dated 30.07.2021 and all consequential orders, if any, till the disposal of the OA.
Respondents have submitted their counter affidavit opposing the OA. It is submitted that complaints of sexual harassment, indecent and lewd behavior was filed against the applicant who was working as Consultant and Head of Department of ENT, CGHS Wing at Safdarjung Hospital. This complaint was referred to ICC which made various recommendations including verbal warning and counseling to the applicant. Consequently, on the basis of ICC's report, the Competent Authority approved the proceedings and initiation of disciplinary action against the applicant. The ICC had also made various suggestions including that the unit of women doctors should always be separate from Dr. Shantanu Mandal's unit and in case of any official interaction, it should always be in the presence of a woman attendant and it is also recommended that the applicant should not be the Reporting Officer for the APAR of the women doctors colleagues. This fact has been taken note of by the Ministry of Health and Family Welfare and accordingly, the impugned transfer order dated 30.07.2021 was issued in administrative and public interest. It is also submitted by the respondents that as the applicant has already joined at CGHS, Nagpur, this OA has become infructuous.
Heard Mr. Tushar Ranjan Mohanty, learned counsel for the applicant and Mr. Ranjan Tyagi, learned counsel for the respondents and perused the pleadings.
This is the second round of litigation. The applicant who was working as Consultant (ENT) at CGHS Wing of Safdarjung Hospital, New Delhi was transferred vide impugned order dated 30.07.2021. He filed OA No. 1704/2021 challenging the transfer order. This OA was disposed of by this Tribunal on 19.08.2021 with directions to the respondents to pass a reasoned and speaking order within four weeks. It was further directed not to disturb the applicant from the present place of posting. It is submitted by the respondents that the applicant was already relieved on 05.08.2021 with directions to report to the Additional Director, Nagpur and that he has also joined there. This has also been confirmed by the learned counsel for the applicant.
Learned counsel for the applicant pressed for grant of interim relief in the present OA. Vide order dated 04.10.2021, this Tribunal heard the prayer for interim relief and passed the following order:
"This matter has been taken up through video conferencing.
By this O.A., applicant makes a prayer for setting aside the rejection order dated 17.09.2021, transfer order dated 30.07.2021 as well as relieving order dated 30.07.2021.
Sri T.R. Mohanty, learned counsel appearing on behalf of the applicant submits that the applicant was rendering his services at Safdarjung Hospital as Consultant and Head of Department (ENT) against whom an Internal Enquiry Committee was held for alleged sexual harassment where the Committee has found him not guilty.
The learned counsel further submitted that vide order dated 30.07.2021, the applicant was transferred from CGHS Delhi to CGHS Nagpur with immediate effect. Being aggrieved with the impugned transfer order dated 30.07.2021, he approached this Tribunal vide O.A. No. 1704/2021 and this Tribunal, through an order dated 19.08.2021, disposed of the said O.A. directing the respondents to consider the comprehensive representation to be submitted by the applicant within a period of four weeks. In compliance with the said order, the respondents have issued the impugned speaking order dated 17.09.2021, which, according to the learned counsel, is punitive in nature and not permissible under the law. Hence, the same is liable to be quashed and set aside.
Issue notice to the respondents by making returnable within a period of four weeks. Sri Ranjan Tyagi, learned counsel, accepted notice on behalf of the respondents.
Learned counsel appearing on behalf of the applicant prays for an interim relief seeking to stay the operation of the impugned order dated 17.09.2021, transfer order dated 30.07.2021 as well as relieving order dated 30.07.2021.
We have gone through the earlier transfer order dated 30.07.2021, which reads as under:
"With the approval of Competent Authority, Dr. Shantanu Mandal, Consultant (ENT) is hereby transferred from CGHS Delhi to CGHS Nagpur with immediate effect.
The Officer is entitled for TA/DA and joining time as admissible.
This issues with the approval of Hon'ble HFM.
The Officer may be relieved immediately."
Thereafter, the relieving order was issued by the respondents on 05.08.2021. Being aggrieved, the applicant approached this Tribunal by filing O.A. No. 1704/2021, which was disposed of directing the respondents to consider the representation to be submitted by the applicant and pass a reasoned and speaking order within four weeks thereafter. The respondents were also directed not to disturb the applicant from his present place of posting and he shall be allowed to resume his duties till disposal of the representation.
From the action of the respondents, it appears that the order of this Tribunal dated 19.08.2021 passed in O.A. No. 1704/2021 has been duly complied with by the respondents vide their detailed speaking order dated 17.09.2021 and he was allowed to render his service, as directed by this Tribunal by disposing of his representation. In paragraph 9 of the said speaking order dated 17.09.2021, it was mentioned that "Whereas in the light of the facts and circumstances, an administrative decision was taken by the Ministry of Health and Family Welfare and it was decided to transfer the applicant to Nagpur CGHS with the approval of Hon'ble Minister of Health and Family Welfare, Government of India. Accordingly, transfer order of Dr. Shantanu Mandal (applicant) was issued on 30.07.2021."
Accordingly, the transfer order was issued on 30.07.2021. Thus, the matter ends so far as the transfer as well as relieving orders are concerned, after passing of the impugned speaking order dated 17.09.2021, meaning thereby the interim protection, as granted by this Tribunal vide order dated 19.08.2021 in O.A. No. 1704/2021 till passing of the reasoned and speaking order, has expired. Today is 04th October 2021 and it appears that the applicant has already been relieved from his service and the transfer order has been given effect to. Moreover, the applicant has already served at Safdarjung Hospital, New Delhi for more than 06 years. Being a government employee, he must obey the order of the higher authority as and when issued with administrative reasons. The applicant cannot have any claim for his continuous retention in the same place of posting being a Central Govt. employee having all India transfer liability. No mala fide is established by the applicant and that the case of sexual harassment is entirely different. Hence, we are not inclined to pass any interim order at this stage and accordingly, the prayer for grant of interim relief is hereby rejected.
It is clearly mentioned in the impugned transfer order that the applicant is entitled to TA/DA and joining time as admissible. Since the litigation is going on, the respondents are directed to grant at least 07 days' time to the applicant, enabling him to join at CGHS Nagpur to perform his duties.
The respondents are granted four weeks to file written statement/reply.
List the matter on 24.11.2021."
Various aspects were duly covered by the order dated 04.10.2021 and the prayer for grant of interim relief was rejected. It was also directed that in view of ongoing litigation, the respondents are directed to grant seven days' time to the applicant enabling him to join at CGHS, Nagpur to perform his duties. The case was heard at length on 07.12.2021. It was submitted by the learned counsel for the applicant that although in terms of the order passed by this Tribunal on 04.10.2021, the applicant has already joined his duty at CGHS, Nagpur, the relief sought in the OA subsists as the transfer, relieving orders and the order rejecting his representation are bad in law.
It is evident that the applicant has been working in Delhi under various health wings and hospitals since 1995. While he was working as Consultant (ENT) in CGHS wing of Safdarjung Hospital, he was transferred vide order dated 30.07.2021 from CGHS, Delhi to CGHS, Nagpur. The transfer order reads as under:-
"ORDER
With the approval of Competent Authority Dr. Shantanu Mandal, Consultant (ENT) is hereby transferred from CGHS Delhi to CGHS, Nagpur with immediate effect.
The officer is entitled for TA/DA and joining time as admissible.
This issues with the Hon'ble HFM.
The officer may be relieved immediately."
Subsequently, the impugned relieving order dated 05.08.2021 was issued relieving the applicant w.e.f. 05.08.2021, to report for his duty to the Additional Director, CGHS, Nagpur. The applicant being aggrieved by the transfer and relieving orders filed OA No. 1704/2021 challenging the transfer order dated 30.07.2021. The Tribunal disposed of the same on 19.08.2021, at the admission stage itself, by passing the following order:
"5. Accordingly, the O.A. is disposed of at the admission stage itself, giving liberty to the applicant to prefer a comprehensive representation to the respondents within ten days from today. On receipt of such representation from the applicant, the respondents shall consider the same and pass a reasoned and speaking order within four weeks thereafter. Till such time, the respondents are directed not to disturb the applicant from his present place of posting and he shall be allowed to resume his duties. Whatever decision is arrived at by the respondents, the same shall be communicated to the applicant. We, however, make it clear that we have not expressed any opinion on the merits of the matter."
The applicant contends that despite the Tribunal's order dated 19.08.2021 not to disturb the applicant from his present place of posting, he has been relieved by the respondents. This has been clarified by the respondents, that the applicant stood relieved w.e.f. 05.08.2021 and, therefore, he was directed to report to Additional Director, Nagpur. This aspect was fully considered while hearing the prayer for interim relief on 04.10.2021. By a detailed order rejecting the interim relief, this Tribunal also directed that the applicant should join his new place of posting i.e. CGHS, Nagpur within next seven days. It is now confirmed that the applicant has already joined at his new place of posting. Catena of judgments have been quoted and relied upon by the learned counsel for the applicant covering various aspects of transfer i.e. the legality/illegality of transfer, recording of reasons, fairness and natural justice, etc. These have been taken note of. The entire arguments is, however, primarily based on the premise that the transfer of the applicant is a punitive action and the applicant does not have a suitable post available for his expertise in ENT at his new place of posting and that he was totally absolved of the charges of sexual harassment by the ICC. As the entire case revolves around certain allegations of sexual harassment against the applicant, the ICC undertook to look into various complaints received by it and submitted its report recommending the following:-
"The Committee recommends the following:
Verbal warning and counselling to Dr. Shantanu Mandal advising him to make the atmosphere of ENT department most comfortable and congenial especially for female staff.
Verbal warning to Dr. Sudhir Manjhi for the breach of confidentiality to have discussed the Sexual Harassment with other staff.
Dr. Isha's unit should always be separate from Dr. Mandal's and Dr. Manjhi's unit.
All the communications of Dr. Isha to HoD should be through unit incharge only and if there is any official interaction between Dr. Shantanu Mandal and Dr. Isha Preet Tuli, it should always be in presence of female attendant.
Dr. Mandal should not be Reporting Officer for the APAR of Dr. Isha Tuli.
The Committee also advise training to posh for all the employees of ENT Department to create awareness and to sensitize them regarding appropriate behavior and mannerism towards female staff."
It is argued by the respondents that for a senior doctor who has to necessarily interact with woman colleague, such recommendations speak volume about his objectionable and unacceptable behavior towards other female colleagues. In various judgments including those of Hon'ble Supreme Court Sexual Harassment of women at work place has been considered as a threat to their fundamental right of Equality under Article -15 and right to live with dignity under Article -21 of the Constitution.
In terms of the directions given by this Tribunal, representation was made by the applicant incorporating all his grievances. This was disposed of by the respondents through a detailed order dated 17.09.2021. It is stated that his transfer was in administrative and public interest to avoid disturbance in patient care and also to ensure smooth functioning of ENT wing. The recommendations of the ICC also necessitated that the applicant cannot be continued at his present place of posting. The applicant's contention that his transfer is in violation of extant transfer policy as he is not transferred in public interest or in administrative exigencies is not tenable in view of the above mentioned. As far as the issue of transfer to a non existent post is concerned, it has been clarified by the respondents that CHS cadre is covered under the Dynamic Assured Career Progression Scheme and the post of ENT Specialist is a cadre post of CHS available in Nagpur. The applicant contends that though he has joined at Nagpur, he has not been paid TA/DA as per rules despite the fact that this has been indicated in his transfer order dated 30.07.2021.
The fact remains that the applicant is a CHS, Group (A) Officer of Government of India with all India transfer liability and, therefore, his claim to remain in Delhi and challenging the transfer order is not justified. The respondents have already disposed of his representation in terms of Tribunal's order dated 19.08.2021 and the applicant has also joined his new place of posting. This brings us to a larger issue of transfer and whether transfer order can be challenged in the court of law or in the Tribunal. In this regard, some of the judgments by the Hon'ble Supreme Court have laid down the fundamental principle of law, which are given below:
11 (i). In Gujarat Electricity Board & Anr vs Atmaram Sungomal Poshani (1989 AIR 1433) dated 31.03.1989, the Hon'ble Supreme Court, observed as under:
"Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."
11 (ii). In Mrs. Shilpi Bose And Others vs State Of Bihar And Others (AIR 1991 SC 532) dated 19.11.1990, the H0n'ble Apex Court, observed as under:
"4. In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer Orders issued by the competent authority do not violate any of his legal rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders."
11 (iii). Further in Union Of India And Ors vs S.L.Abbas (1993 AIR 2444) dated 27.04.1993, the Hon'ble Apex Court, held as under:
"An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right.
The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters. This is evident from a persual of Article 323-A of the constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer....."
11 (iv). A Division Bench of this Tribunal also considered the plea of transfer in OA No. 293/2018 titled R.R. Meena vs.South Delhi Municipal Corporation & Ors. dated 08.08.2018 and observed as under:
"8. For any person who joins the service of the Government or its agencies, transfer is a concomitant part thereof. It is only when the transfer results in serious hardship to the employee or is made as a punitive measure, that a scrutiny can be undertaken by the Courts or Tribunals. The guidelines stipulated for effecting transfers apply to the routine transfers. There, again, the courts have permitted latitude to the employers to work out the transfers in such a way that efficiency of the administration does not suffer. No right as such accrues to the employee from the guidelines. Added to that, the administrative transfers and those which are ordered in public interest, are not, by and large, governed by the policy guidelines. Exigency of service and efficiency of administration become paramount considerations."
In a very recent judgment, the Hon'ble Supreme Court while dismissing the SLP (C) No. 36717/2017 titled Namrata Verma vs. The State of Uttar Pradesh & Ors. arising out of impugned final judgment and order dated 13.10.2017 in CWA No. 48447/2017 passed by the High Court of Judicature at Allahabad, observed as under:
"It is not for the employee to insist to transfer him/her and/or not to transfer his/her at a particular place. It is for the employer to transfer an employee considering the requirement.
The Special Leave Petition is dismissed."
The above quoted judgment made it very clear that for those joining the service of the Government with transfer liability, the transfer is a concomitant part thereof. Exigency of service and efficiency of administration have to be of paramount consideration.
From the above mentioned, it is evident that transfer, if made in administrative and public interest cannot be challenged unless it is perverse or illegal. The applicant has been transferred in administrative and public interest based on the recommendations of the ICC. A considered view has been taken by the respondents in transferring the applicant. We do not find any illegality or infirmity in the transfer of the applicant. His other contention of not being able to hold a post where his specialization is used is an administrative issue to be decided by the respondents.
We, therefore, find this OA to be devoid of merit. The same is, accordingly, dismissed. There shall be no order as to costs.