Transfer order passed in lieu of punishment is illegal: CAT
Chandigarh, November 26
It is indisputable that an employer is entitled to pass an order of transfer in administrative exigencies, but it is another thing that the order of transfer, if passed by way of or in lieu of punishment, is liable to be set aside, being wholly illegal.
Orders not based on admn exigencies
The transfer orders were not based on administrative exigencies but on allegations and considerations, including inciting other employees to participate in a strike. — Chandigarh Bench
The Chandigarh Bench of the Central Administrative Tribunal (CAT) has quashed the transfer orders of two employees of the Regional Provident Fund Organisation, Shimla. The Tribunal has said that the transfer orders were not based on administrative exigencies but on allegations and considerations, including inciting other employees to participate in a strike.
Hem Chand, a senior Hindi translator, was transferred from the Regional Provident Fund Office, Shimla, to the Regional Office, Raipur in Chhattisgarh, while another employee Kanta Bhatti was transferred to the Zonal Office, Kolkata, on December 4, 2019.
The aggrieved employees in their applications filed through advocate Rajneesh K Lal contended that the transfer orders were arbitrary and illegal. They were punished for participating in a strike called by the All India EPF Staff Federation. On the other hand, the respondent Provident Fund Commissioner’s Office in its reply denied charges and said that the applicants were posted in Shimla for more than 10 years and had not been transferred to any other place during this period. The transfers were not punitive but were made on administrative grounds.
The respondents said that the applicants had been indulging in indiscipline and had become a source of nuisance in the smooth and efficient working of the Regional Office. Since the transfer of the applicants were not punishment but an exigency of service, there was no infringement of any statutory or legal right. The court was always reluctant to interfere with transfer/posting, which was made in public interest.
After hearing the arguments, the Tribunal said that the respondents had specifically submitted that besides an administrative exigency, the impugned orders were passed after considering misconduct on the part of the applicants for inciting other staff members to participate in the strike. In view of the above, the impugned transfer orders were quashed and set aside.
The Tribunal also mentioned an order of the Delhi High Court that had held if transfer was on the basis of misconduct or otherwise, the respondents had to conduct a finding inquiry before the order of transfer. But in this case, the show-cause notice was issued to the applicants and the reply was filed. Ultimately, the transfer orders were issued on the ground of exigency.
