Pabitra Gouda vs EAST COAST RAILWAY on 6 November 2026

O R D E R

PRAMOD KUMAR DAS, MEMBER (ADMN.):

In this OA, the applicant challenges his order of transfer dated 13.01.2026 wherein he was transferred to Jagdalpur of WAT Division from Mechanical Department, CRW, E.Co.Rly., Mancheswar on four grounds as under:

[a] The transfer is effected by way of

punishment;

[b] Transfer is actuated with legal

malice and mala fide exercise of

power;

[c] Transfer is beyond his cadre; [d] Without taking his consent or

giving opportunity of being heard.

2. Learned counsel appearing for the applicant, in course of hearing, by taking us through his pleadings and materials placed in support thereof, has made all out endeavour to justify the grounds summarized above.

3. Per contra, learned counsel for the respondents stoutly and out rightly contested/objected the stand taken by the Applicant in course of hearing by stating that the applicant is working as Tech- II (Painter) under SSE(POH)/ECOR/CRW/MCS. He was initially joined in Railways on 26.06.2009 as Sub-B (Peon) and, RAVI KUMAR

subsequently, was promoted to the post of Tech-II (Painter) on 18.12.2025. He being a responsible employee of the Railways and as a responsible citizen, he should be obedient towards his duties but he managed to put his attendance in bio-metric system in his absence through one Sri Abhisekh Panda, which is unbecoming on the part of a Govt. servant, which was ascertained from the CCTV footage. Hence, he was issued with the Charge Memorandum. In the process of detection, it was found that Sri Panda was having a duplicate thumb impression of the applicant, which was a serious offence. He was, therefore, imposed with the minor punishment of withholding of increment of pay (whenever due) for a period of 06 (six) months without any cumulative effect and was transferred to Jagdalpur of Waltair Division in the same Railway zone vide order dated 13.01.2026 on temporary basis for a period of one year with stipulation that his lien shall continue to be maintained at CRW, Mancheswar. The applicant accepted the punishment imposed on him and, therefore, he is estopped to challenge his transfer on any ground as has been done in this OA. Therefore, according to the respondents, the OA being devoid of merit is liable to be dismissed. RAVI KUMAR

4. After considering the submissions of the respective parties, gone through various pleadings and documents in support thereof by respective parties.

5. From the record, it is established that the cadre to which applicant belongs was merged with the Headquarters cadre vide order dated 17.06.2013 and 30.07.2013. No whispers has been made in the pleadings nor any such document has been filed by the respondents that Jagdalpur under Waltair Division comes within the headquarters cadre, to which applicant belongs, so that the transfer order is to be sustained. At one place, in the counter, respondents have stated that the applicant was/is ‘deputed’ and, in another place of the counter, it has been reiterated what has been stated in the order of transfer that he is/was temporarily transferred for a period of one year in public/administrative interest, without specifying what are those public/administrative interest which necessitated to send the applicant there, de hors, any provisions of Rules or law. Further, according to the respondents, for the omission and commission, which is unbecoming on the part of a Govt. servant he was punished in a minor penalty proceeding and was also transferred to Jagdalpur of RAVI KUMAR

Waltair Division in the same Railway zone vide order dated 13.01.2026 on temporary basis for a period of one year with stipulation that his lien shall continue to be maintained at CRW, Mancheswar. It is a fact that transfer is not one of the punishment available under the law. Thus, the order of transfer smacks legal malice or mala fide exercise of power being done de hors the rules and law.

6. The Hon’ble Supreme Court of India in the cases of State of Punjab & Ors. vs Inder Singh & Ors, 1997 Supreme (SC) 1316, and Indu Sekhar Singh & Ors vs State of UP and Ors, (2006) 8 SCC 129, have, in no uncertain terms, stated that deputation is the concept of transferring an employee to a post outside his cadre. If, this particular case is construed to be a deputation, there has to be a prior consent of the petitioners. The petitioners cannot be deputed without consent. This term “placement” has not been defined anywhere and since this is an inter-organizational transfer or a transfer outside the cadre in which the petitioners are employed, it has to be construed as a deputation. This deputation, without obtaining consent of the petitioners is clearly unsustainable. RAVI KUMAR

7. It is well settled law in service jurisprudence that transfer outside cadre constitutes a change in condition of service. The Hon'ble Apex Court in K. Madhavan Vs. Union of India (AIR 1987 SC 2291) held that cadre protection is a fundamental feature of service law. Unless specific rules permit, no authority can arbitrarily transfer an employee outside his cadre.

8. An employer cannot temporarily transfer or depute an employee unless the applicable service rules or the employment contract expressly grant the authority to do so. Respondents utterly failed to substantiate by producing any such rule, standing order or instruction of Railway Board that an employee can also be transferred from one seniority unit to another even on such temporary basis, as has been done in the instant case.

9. The Hon’ble Supreme Court in the case of Somesh Tiwari Vs Union Of India & Ors, AIR 2009 SC 1399, have held that mala fide is of two kinds - one malice in fact and the second malice in law. Indisputably, an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia the exercise of power is established RAVI KUMAR

to have been made malice in fact or malice in law. Further, it was held that it is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

10. In course of hearing, learned counsel appearing for the applicant has given to understand that the applicant was transferred to Jagdalpur under Waltair Division and meanwhile Waltair has been bifurcated from E.Co.Rly and, thus, on the said ground, the order of transfer is not sustainable in the eyes of law, this merits in favor of the applicant, if it is really so.

11. Thus, on examination of the facts of the matter on the cornerstone of the law discussed above, it is clearly established that the impugned order, in question, would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and is based on an irrelevant ground, i.e. as an outcome of the allegation for which he was already punished, outside the cadre without any authority of rule of law and that too Waltair Division; which has, meanwhile, been RAVI KUMAR

bifurcated from E.Co.Rly. as stated by the Ld. Counsel for the applicant.

12. When a Government servant is treated in a manner, which speaks only of victimization and legal malice and mala fides, de hors the Rules, whether it is a matter of transfer, deputation, or temporary transfer or any condition of service, if not operated as per Rules and law, certainly causes heart burning to a government servant, and, thus, any such act of the administrative authority, which goes beyond the statute has to be corrected to repair the damage. The net result of the consideration is that this Bench vide order dated 20.01.2026, has rightly stayed the order dated 13.01.2026 transferring the applicant in his present capacity from Mechanical Department, CRW, E.Co.Rly., Mancheswar to Jagdalpur of WAT Division, which order is made absolute by quashing the said impugned order dated 13.01.2026 in respect of applicant for all purposes.

13. Before closing this matter, as a general principle, this Bench feels it proper to give a message that the authority managing a department must act fairly towards its subordinate employees and refrain from any actions impermissible under the law. Doing RAVI KUMAR

so not only prevents unnecessary litigation but also safeguards the valuable time of the courts and avoids wasting taxpayer funds on protracted legal battles.

14. This OA, thus, stands allowed by making the costs easy.

(PRAMOD KUMAR DAS)

Member (Admn.)

RK/PS RAVI KUMAR