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2015 DIGILAW 962 (KER)

P. BEEVI v. GOPALAN N. T.

2015-07-23

ANU SIVARAMAN, P.R.RAMACHANDRA MENON

body2015
JUDGMENT ANU SIVARAMAN, J. 1. This Original Petition (CAT) is filed challenging the order of the Central Administrative Tribunal, Ernakulam in Original Application No. 229 of 2013 dated 14.11.2014 in as much as it contains observations against the petitioner who was not a party to the Original Application. The petitioner against whom observations were made in the judgment had filed Review Application No. 180/4/15 which was dismissed by the Central Administrative Tribunal by order dated 18.5.2015. 2. The first respondent, who was the applicant before the Tribunal had filed the Original Application challenging Annexure A3 order transferring him, a Sub Post Master, from Ponnani South Post Office to the Marancheri Post Office. It was stated that he is a physically handicapped person having an orthopaedic disability of over 50%, and that his transfer was unjustified and illegal. A reply statement was filed by the respondents in the Original Application on 15.5.2013 contending that the Member of Parliament of Ponnani Constituency had reported a complaint against the applicant on 31.10.2012 alleging that the petitioner herein who was the Chairperson of the Ponnani Municipality, had complained that the applicant was behaving badly towards the public and should be transferred. It is stated that an enquiry was conducted by the Inspector, Posts, Ponnani Sub Division and statements of the petitioner and other Mahila Pradhan Agents were recorded. The Regional Office of Posts thereupon directed the transfer of the applicant, it was stated. It was further stated that similar complaints had arisen at the Tavanur Sub Post Office where he had worked earlier and disciplinary action was taken against the first respondent. The applicant thereafter filed a rejoinder to the reply raising serious allegations of misappropriation and fraud against the petitioner. Annexure A14 and A15 documents were produced by him alleging that the petitioner who was also a Mahila Pradhan Agent had collected amounts towards Post Office Recurring Deposit but failed to credit the amounts to the accounts of the account holders. The petitioner apparently was warned not to repeat her conduct and an enquiry was also ordered but it was contended that no action was taken against her. It was also alleged that it was at the petitioner's instance that the first respondent had been transferred out from Ponnani. However, even at the stage, no steps were taken to implead the petitioner as a party in the Original Application. 3. It was also alleged that it was at the petitioner's instance that the first respondent had been transferred out from Ponnani. However, even at the stage, no steps were taken to implead the petitioner as a party in the Original Application. 3. On these pleadings, the Tribunal proceeded to consider the O.A. filed with the following prayers:- "(1) Quash the order at Serial 10 of Annexure-A3 transferring the Applicant from Ponnani South Post Office to Marancheri and order that the Applicant be retained at Ponnani South Post Office till the completion of his tenure. (2) Any such remedy deemed fit and proper as this Hon'ble Tribunal may be pleased to order." 4. After adverting to the pleadings and the documents produced by the first respondent, the Tribunal by order dated 14th November 2014 held that the respondents had trivialised the serious allegations made against the petitioner and that it is evident from the pleadings that it is the displeasure of the petitioner towards the first respondent which paved the way for his transfer. The Tribunal held as follows: "17. Taking into the totality of the facts and circumstances involved in this case, this Tribunal is of the view that impugned Annexure A3 transfer order qua the applicant was vitiated by unsubstantiated extraneous considerations and was based on the pressure exerted on the respondents by Member of Parliament from Ponnani Constituency and also by the Municipal Chairperson of the Ponnani Municipality. The Tribunal is of the view that 1st respondent Secretary, Department of Posts, has to take serious steps for reporting the matter to the police or other competent investigating agency for investigating the misappropriation of money by the aforesaid Mahila Pradhan Agent as found in Annexure A-14 and A-15 documents." "18. In the result, Annexure A3 transfer order qua the applicant is quashed and set aside. Respondents shall consider posting the applicant at a place that would facilitate easy access for him from his house without involving multiple changing of buses or other public transport." "19. In the result, Annexure A3 transfer order qua the applicant is quashed and set aside. Respondents shall consider posting the applicant at a place that would facilitate easy access for him from his house without involving multiple changing of buses or other public transport." "19. Registry is directed to send a copy of this order to Respondent No. 1 to consider the observations in paragraph 17 of this Order and to examine the circumstances under which the allegations against Mahila Pradhan Agent were played down by the 3rd respondent by Annexure A-14 and Annexure A-15 communications, without reporting the matter to the appropriate investigating agency for investigating into the crime involved in such allegations." 5. It is the observations contained in para 12, 14, 17 & 19 of the judgment that the petitioner was aggrieved by. On coming to know of the contents of the said judgment, the Petitioner filed a Review Application No. 180/4/15 seeking the expunging of the portions of the judgment containing adverse remarks against her. The Review Application was dismissed on circulation of papers by Ext.P8 order. Aggrieved, the petitioner has approached this Court filing this O.P. (CAT). 6. Heard Sri. C.A. Majeed, learned counsel appearing for the petitioner, Sri. Martin G. Thottan, learned counsel appearing for the first respondent and Smt. I. Sheeladevi, learned Central Government Counsel appearing for the respondents 2 to 3. The counsel for the petitioner submitted that the instant case is one which does not come within the ambit of the decision of the Apex Court in Rajeev Kumar & Another vs. Hemraj Singh Chauhan and Others, 2010 (4) SCC 554 wherein it was held that an order of the Central Administrative Tribunal cannot be challenged before the High Court by a person who was not a party before the Tribunal. The petitioner is a person against whom adverse remarks have been incorporated in the judgment without making her a party and hearing her. She had also filed the Review application in the first instance before the Tribunal seeking to expunge the said remarks which was dismissed by the Tribunal. These facts give her the locus-standi to challenge the order of the Tribunal, and this O.P. is therefore maintainable, it is contended. She had also filed the Review application in the first instance before the Tribunal seeking to expunge the said remarks which was dismissed by the Tribunal. These facts give her the locus-standi to challenge the order of the Tribunal, and this O.P. is therefore maintainable, it is contended. On the merits of the case it is contended by the counsel for the petitioner that she came to know of the strictures passed against her by the Central Administrative Tribunal from newspaper reports which are produced as Ext.P5. She is a Mahila Pradhan Agent in Ponnani and was also the Municipal Chairperson. She claims that even from the documents produced by the first respondent before the Tribunal, it was clear that no account holder had made any complaints of any nature against her. She states that the allegations made against her by the first respondent before the Tribunal were accepted in toto by the Tribunal and the adverse remarks were made against her without hearing her in a proceedings to which she was not a party. Her review application was also dismissed without going into her contentions, it is argued. 7. The learned counsel for the first respondent attempted to sustain the finding in the judgment pointing out that the transfer was engineered by the petitioner to get back him for reporting the misappropriation perpetuated by her. He also contended that the petitioner was a person who was causing serious disruption in the work of the post office and several complaints preferred by him against the petitioner had remained unattended due to her political influence and clout. 8. The Central Government Counsel appearing for the official respondents stated that the observations were made without impleading the petitioner as a respondent in the Original Application. The scope of the Original Application, as is evident from the prayers which are extracted earlier was only with regard to the transfer of the applicant/first respondent. The consideration of the materials produced by the parties to the Original Application should have been confined to the matters in dispute between them in the Original Application, it is submitted. 9. We have considered the rival contentions advanced in the case and have gone through the records produced. The consideration of the materials produced by the parties to the Original Application should have been confined to the matters in dispute between them in the Original Application, it is submitted. 9. We have considered the rival contentions advanced in the case and have gone through the records produced. In the nature of the allegations raised against the petitioner in the rejoinder, she ought to have been made a party to the proceedings and heard before any observations were made against her. Further, this court finds that the Original Application having been filed challenging an order of transfer, the tribunal ought to have considered only those questions germane to the issue at hand. The conduct of the petitioner or the proceedings to be taken against her were not the subject matter of the Original Application, even incidentally, and she was not a party to the Original Application. 10. Even if the allegations that the transfer of the first respondent was vitiated by malfides as much as it was issued on the basis of the complaint made by the Member of Parliament, that cannot, by itself, lead to the inference that the petitioner was behind the transfer in order to down play the allegations of financial misappropriation made against her. The further statement in paragraph 14 that the respondents were over awed by oral complaints of the Member of Parliament and the petitioner and had acted on their request 'even without any complaints in writing' should have been considered by the Tribunal only for the purpose of deciding correctness or otherwise of the order of transfer. The further finding contained in paragraph 17 of the judgment and the directions issued to the first respondent, the Union of India represented by the Secretary, Department of Posts to examine the circumstances under which the allegations against the petitioner were played down by the third respondent, in our opinion, ought not to have been issued without the petitioner being on the party array and being given an appropriate opportunity to defend her case. In appropriate proceedings, the competent among the respondents has the power and authority to look into the allegations raised against the petitioner also. 11. In the above circumstances, the observations contained in paragraph 17 and the directions contained in paragraph 19 of the order of the Tribunal shall stand vacated. In appropriate proceedings, the competent among the respondents has the power and authority to look into the allegations raised against the petitioner also. 11. In the above circumstances, the observations contained in paragraph 17 and the directions contained in paragraph 19 of the order of the Tribunal shall stand vacated. The competent among the respondents who is empowered to enquire into misconduct committed by a Mahila Pradhan Agent may take necessary steps pursuant to Annexure A15. The O.P. (CAT) is disposed of as above.