R. Paneer Selvam v. The Chairman, Port Management Board And ORS.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

MAT/2/2022 IA No.CAN/1/2022 R,Paneer Selvam ... Appellant Vs.

The Chairman, Port Management Board and other ... Respondents Mr.Arul Prasanth ...for the appellant Mrs.Anjili Nag ... for the respondents April 25, 2022 [GNC] Item No.10 This intra-court appeal arises out of an order dated March 21, 2022 passed in WPA/58/2022 by which the learned Single Judge had refused to pass any interim order.

CAN/1/2022 is an application for further interim orders. The appellant is a Superintendent (Wharf) under the Port Management Board, Port Blair. The petitioner is aggrieved by the order of transfer dated September 24, 2020 issued by the Assistant Director (Administration), Port Management Board, Port Blair filed WPA//58/2022, as also the order of suspension dated February 23, 2022 issued by the Chief Port Administrator. The petitioner was transferred from Port Blair to Kamorta. Aggrieved thereby, the petitioner represented before the authorities that his wife was a heart patient and was also suffering from arthritis. As she was undertaking treatment under a specialist, it was not possible for the petitioner to leave Port Blair. The other reasons shown were his ailing and aged father and the daughter's education who would be in class 10 within a

few months. Such representation was made on September 23, 2020.

The representation of the petitioner was considered by the authority and the transfer was deferred to the session 20212022. The petitioner was relieved on December 16, 2021. Once again, the petitioner represented before the authorities on December 16, 2921 showing the same grounds. The petitioner did not join despite the release order and made several representations one after the other on December 27, 2021, January 11, 2022 and February 11, 2022.

On December 27, 2021, the petitioner informed the authority that he could not join his transferred post at Kamorta as he had taken his first dose of vaccination on December 24, 2021 and was under medical rest.

On January 11, 2022, the petitioner intimated the authority that he would be proceeding to the mainland for his treatment.

Finally, on February 11, 2022, the petitioner requested the authority to allow him to join on February 11, 2022 at Port Blair, with the assurance that he would report for duty by availing the first available boat.

The authority issued a show cause notice on February 17, 2022, intimating the petitioner that the petitioner's explanation for not joining his duty and his attempts at delaying the process were unconvincing. That the petitioner ought to have followed the directions of the authority after the relieve order dated December 16, 2021. The petitioner was directed to show cause

within seven days as to why disciplinary action should not be taken against him. The petitioner answered to the show cause notice by a reply dated February 25, 2022 which was received by the authority on February 28, 2022.

The Chief Port Administrator by an order dated February 23, 2022 being order No.273, suspended the petitioner in exercise of power under Rule 10 of the Central Civil Service (Conduct) Rules, 1964. It was further directed that the petitioner should remain at the headquarters at Kamorta and should not leave Kamorta without prior permission of the Assistant Commissioner, Nancowry.

Challenging the above decisions/actions of the respondents, the writ petition was filed. The petitioner submits that the transfer order of the petitioner was superseded by a subsequent transfer order dated March 26, 2021. One V.K.Abdul Manaf was transferred to Kamorta in place of the petitioner and as such, the relieve order of the petitioner issued after the transfer order dated March 26, 2021 was arbitrary, irrational and null and void. It is alleged that the learned Single Judge failed to take such fact into consideration and denied the interim order without coming to any conclusion as to why the interim order should be refused. It is next contended that according to the transfer policy, transfer orders as far as practicable should be issued during the period April 15 to June 15 each year, keeping in view the financial/academic year. Thus, according to the petitioner as the academic year starts in June and ends in April, the relieving order dated December 16, 2021 was in violation of the transfer policy. The learned Single Judge failed to appreciate the transfer

policy, it is urged. Finally, the petitioner contends that once the transfer was deferred to the session 2021-2022, the petitioner should have been allowed to remain in Port Blair and report for duty some time after June especially because his daughter's examination ended on May 24, 2022.

The petitioner prayed before the learned Single Judge that the order dated October 28, 2022 deferring the transfer order be implemented by directing the respondents to restore the earlier position. The relieve order dated December 16, 2021 be set aside and cancelled. The suspension order dated February 23, 2022 be set aside. An interim prayer had been made, for a direction upon the respondent authorities not to take any coercive action against the petitioner.

Mrs. Anjili Nag, learned Advocate appearing on behalf of the authorities submits that the initial transfer order was issued on September 24, 2020. On the prayer of the petitioner, the transfer was deferred to the session 2021-2022. The petitioner tried to stall such transfer on different grounds and each of such ground changed with the passage of time. That the relieve order was rightly issued on December 16, 2021. The petitioner had not joined the transferred post and was still at Port Blair. As such, the prayer of the petitioner made before this Bench to allow the petitioner to join his duty after June, would in effect amount to interference by the court with the decision of the authority to proceed against the petitioner under the service rules. She submits that the petitioner had already been suspended and a charge-sheet is likely to be issued soon.

The learned Single Judge refused the interim order on the ground that as the petitioner did not join his transferred post and was suspended for such insubordination, he could not be favoured with any interim as prayed for. Aggrieved by the said order this appeal has been preferred and an application has been filed for an ad interim order permitting the petitioner to continue to stay at Port Blair till 31st May, 2022 and thereafter permitting him to join his transferred post.

Heard the parties. The prayer in the application, if granted, would amount to interference with the order of transfer and would also be an interference with the order of suspension and the proposed disciplinary proceeding. The petitioner allegedly defied such order of transfer and did not report for duty despite having been granted several opportunities and show-cause notices. For such disobedience, the petitioner was suspended. The issues raised are pending before the learned Single Judge in the writ petition. The court is also alive to the fact that on and from September 2020 the petitioner had tried to stall the transfer. Repeatedly, he had made excuses before the authority for not joining his transferred post. First it was the illness of his family members. Then it was his vaccination. Then his daughter's promotion to class X and now a prayer has been made to permit the petitioner to join his duty in June and also permit him to stay at Port Blair till the daughter's exams were over. Such prayer, if granted, would in effect amount to granting the main relief in the writ petition.

The petitioner has already been suspended in contemplation of a disciplinary proceeding. The order prayed for,

if allowed, would also amount to setting aside the order of suspension. The court cannot prevent an employer from proceeding against the petitioner as per the disciplinary rules. However, the court does not express any opinion on the validity of the proposed disciplinary proceeding and the order of suspension. These are issues to be decided in the writ petition. The suspension order provides that the petitioner shall not leave the head quarters at Kamorta without permission. The petitioner did not apply for such permission to leave the head quarters during his suspension period. Instead, the petitioner continued to remain at Port Blair. Thus, the prayer in the connected application cannot be granted.

We do not find any reason to interfere with the order of the learned Single Judge for the reasons discussed hereinabove. The learned Single Judge rightly rejected the prayer for interim order. The writ petition will be decided independently and the learned Single Judge shall not be influenced by this order. Nothing remains to be decided in the appeal The appeal and the applications are disposed of. The observations made hereinabove are only for the purpose of disposal of this appeal, preferred against an order of refusal to pass an interim order.

It is informed that the affidavit-in-opposition to the writ petition has been filed and copy served. Affidavit-in-reply be filed within two weeks, Let the writ petition appear for final hearing before the next Circuit Bench.

The parties are directed to act on the server copy of this order.

( Shampa Sarkar, J. ) ( Ananda Kumar Mukherjee, J. )