Letters Patent Appeal No. 111 of 2013 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.111 of 2013 In Civil Writ Jurisdiction Case No. 22441 of 2012 ====================================================== 1. Anirudh Akhauri S/O Late Indu Bhushan Akhauri R/O A/2, Sbi Officers' Complex, Opposite Telephone Exchange, Rajendra Nagar, P.S.- Kadam Kuan, District- Patna .... .... Appellant/s Versus 1. State Bank Of India, Through Its Chairman Central Office, State Bank Of India, State Bank Bhavan, Madame Cama Road, Mumbai 2. Chief General Manager State Bank Of India, Local Head Office, Patna 3. Deputy General Manager And Circle Development Officer State Bank Of India, Local Head Office, Patna .... .... Respondent/s ====================================================== with Letters Patent Appeal No.174 of 2013 ====================================================== Lalit Kumar Prasad, son of Late Ram Naresh Prasad Singh, resident of 22, Jagat Balram Apartment, Rose Bud School Lane, Boring Road, Patna .... .... Appellant/s Versus 1. State Bank Of India, Through Its Chairman Central Office, State Bank Of India, State Bank Bhavan, Madame Cama Road, Mumbai 2. Chief General Manager State Bank Of India, Local Head Office, Patna 3. Deputy General Manager And Circle Development Officer State Bank Of India, Local Head Office, Patna .... .... Respondent/s ====================================================== Appearance : (In LPA No.111 of 2013 & LPA No.174 of 2013) For the Appellant/s : Mr. Abhinav Srivastava For the Respondent/s : Mr. Taerakant Jha, Sr. Advocate, with Mr. S.D.Sanjay & Akash Chaturvedi ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 14-02-2013 The two Appeals arise out of CWJC 22441 of 2012 and CWJC 22766 of 2012 preferred by separate writ petitioners. Both the writ Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 2 applications challenged orders of inter circle transfers. The facts in the two writ applications are markedly similar and the questions of law involved are common. They have therefore been heard together and are being disposed by a common order. Both the Appellants are Senior Management Scale Grade V Officers. They are stated to have been active members of the State Bank of India Officers Association, Patna Circle, a recognized officers Association within the State of Bihar and Jharkhand which fall under one Circle. Pursuant to a decision by the Management for bank operations 7 days a week, the All India State Bank officers Federation staged a protest on 28.8.2012 and the two Appellants in their capacity as General Secretary addressed the officers of the bank at the local head office, Patna, during the lunch recess. Their term as office bearers expired on 31. 8. 2012. They were served with separate charge sheets on 27. 9. 2012 regarding their conduct of protest and addressing the officers. On 29.10.2012 by separate orders issued by the competent authority at the local level they were transferred to Purnia and Dhanbad respectively within the same Circle. While on transit leave after joining and on leave before joining respectively, fresh transfer was ordered by the competent authority at the Corporate Headquarters posting them to the North East Circle by separate orders dated 30.11. 2012. The latter orders of transfer alone were
Legal Reasoning
challenged in the writ petitions. The writ petitions were dismissed by a reasoned order holding that transfer was an incidence of service. The Appellants had remained in one Circle for more than three decades and that the Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 3 orders were not affected by malafides. Learned counsel for the Appellant submitted that while the power of the bank to transfer was not challenged, the manner of its exercise was an abuse of discretionary power. Except for the two Appellants all others transferred had been promoted and then transferred. The Appellants had been promoted earlier and therefore formed a different class. There was no deficit of staff in North East as was wrongly contended by the Bank without supporting materials and figures. There was also no material in support of surplus staff at Patna. Those who had longer years of service left have not been touched while the petitioners with lesser years of service left, were transferred within the Circle, orders annulled and fresh orders for transfer outside the Circle passed. Both the orders state that they were by the competent authority releasing them twice respectively denying them further leave without first joining which was all evidence of malafide exercise of power. The transfers to the North East Circle were affected by malice in law due to their participation in the protest and had been made to teach them a lesson. Another employee likewise charge sheeted for the same protest had been promoted to the Board as an employee's representative and the charges dropped while proceedings against the Appellants were continuing. Under clause 8.4 of the guidelines for placement, transfer, in cases where disciplinary action against employees was pending such cases were not to be considered till the proceedings were over. The guidelines were required to be followed evident from the message of the Chief General Manager dated 31. 3. 2007. Inter Circle transfer under the Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 4 instructions could be done upto the age of 52 years, the petitioners were well past that age. Reliance was placed on A. I. R. 1966 SC 1283 (The Management of the Syndicate Bank v. The Workman) in support of the submission that if the order for transfer was malafide or made for ulterior purpose like punishing an employee for trade union activities such orders are required to be set aside as afflicted by malafides and not in legal exercise of power given by law. Reference was further made to 1979(1)SLR 309(P. Pushpakaran v. the Chairman, Coir Board, Cochin) a Single Bench decision of the Kerala High Court, in support of the submission that the power for transfer was a powerful weapon in the hands of the employer sometimes more dangerous than other punishments. Though innocuously worded, the mask of innocence may hide revenge or desire to get rid of an inconvenient employee and the veil must be lifted to see the deceptive facade to find out what motivated the transfer. Learned counsel for the bank has supported the impugned orders urging that all objections on behalf of all of the appellants have more than well been considered by the writ court. Transfer and postings being the prerogative of the employer it requires no interference. We have considered the submissions made on behalf of the parties. The tenure of the Appellants as office bearers had expired months earlier to their order for transfer to Purnea and Dhanbad respectively. They already stood charge sheeted prior to the same for their conduct on the day of protest. The departmental proceeding is not stated to be the subject matter of any challenge as malafide or Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 5 motivated. No challenge was made to the first order for transfer within the circle to Purnea and Dhanbad respectively on any ground. If the first transfer was not motivated by malice despite availability of the same alleged grounds, it is difficult to appreciate how the subsequent transfer came to be afflicted by malafides on the same grounds. The earlier orders for transfer was within the same Circle and presumably for that reason the Appellants chose not to challenge the same. The grouse appears to have surfaced belatedly because they were now transferred to the North east Circle much to their dislike as being more onerous and far away from their earlier postings. It is not in dispute that they have joined their places of posting in the North East Circle. The argument of malafides does not impress the court for the additional reason that the transfers have been ordered much after the expiry of their term as office bearers and is not in close vicinity to the protest. The protest, and the departmental proceeding is an entirely different administrative matter. Transfer and postings are normal incidence of service and no employee has a vested right to demand posting at a particular place or continuance at a location. The employer is the best judge for utility, suitability and need of an employee at a particular location. Casual interference with orders of transfer by a Court on every small infraction shall create more administrative turmoil than the court may attempt to solve by its orders. Unless an order for transfer suffers from statutory violations, apparent malafides or is apparently issued by way of punishment, the Court shall be loath to interfere. Even if any administrative circulars are violated they do not vest a cause of action Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 6 in a court of law but merely provide an opportunity to represent. Malice in law is more easily alleged than proved. If the power to transfer be there, an employee shall always have a grievance on one ground or the other, especially if he is transferred to a place not of his liking. To demonstrate malice in law, there has to be a level of wanton conduct, on grounds not germane and irrelevant, preceded by a course of events which indisputably only points to victimisation as a justification. Issues of deficit or surplus staff are for the bank to decide and not for the Court to usurp the role and substitute its views for that of the Bank. In Syndicate Bank(supra) relied upon by the Appellant, it was held that the banks are entitled to decide on a consideration of the necessities of banking business whether the transfer of an employee should be made to a particular branch. The management of the bank was in the best position to judge how to distribute its employees between different branches. Industrial tribunal should be careful in interfering with the orders of the bank in discharge of managerial functions. Orders of transfer should not be lightly interfered on the slightest pretext. The observation that if the transfer was malafide as a punishment for trade union activities the Tribunal should interfere cannot be read out of context from the facts of a case. In the present case, if departmental proceedings had not been initiated and the transfer was made to the North east Circle immediately for having participated in the protest matters may or may not have been different. Departmental proceedings have been initiated for the protest. Transfer has been ordered months later. The appellants have continued in the same circle for over three decades including at Patna and did not Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 7 object transfer to Purnea and Dhanbad respectively. It is difficult to appreciate except to hold that they are primarily aggrieved by their transfer to the North East, a place they consider far from home and arduous. The subsequent transfer inter circle to the North East ordered by the Corporate Office in the exigency of service to meet deficit in staff, in proximity to the earlier transfer within circle by the local office cannot lead to any inference of malafides. It cannot be a ground to challenge an order of transfer by an employee of a government bank. Banking facilities in that event at places considered arduous by officers may themselves be jeopardised affecting larger public interest and the Constitutional objective of Social and Economic justice envisaged in the Preamble to the Constitution. The observations contained in Pushpakaran(supra) cannot be generalized and have to be understood and appreciated in the facts of each case. The law with regard to transfer and postings, the limits for judicial interference, have long been laid down and may be noticed from (1995) 2 SCC 532 (Chief General Manager, (Telecom) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee)holding : It the that is needless to emphasise that a “7. government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed respondent holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting. Since the respondent has no legal or statutory right to claim his posting at Agartala, therefore, there was no justification for the Tribunal to set aside the respondent's transfer to Dimapur.” The order for transfer could be said to have been afflicted by Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 8 malice in law if it was passed on irrelevant grounds or reasons not germane which is not the case presently, as held in (2009) 2 SCC 592(Somesh Tiwari v. Union of India) holding : “16. 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 mala fide on the part of the authority is proved. Mala fide is of two kinds—one malice in fact and the second malice in law. The 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 based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. 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 is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.” transfer Administrative circulars and guidelines with regard to transfer and posting do not vest a cause of action in a court of law except providing a right to represent stands well explained in 1991 Supp (2) SCC 659( Shilpi Bose (Mrs) v. State of Bihar)holding : “4. In our opinion, the courts should not interfere with a transfer order which is 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 mala fide. 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 Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 9 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.” Similar view has been taken in (2004) 11 SCC 402 (State of U.P. v. Gobardhan Lal) holding : “8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.” An order of transfer followed by another could not itself be evidence of malafides as observed in (2008) 9 SCC 345 (Government of Andhra Pradesh v. G. Venkata Ratnam) : the Court came “10. Lastly, the Court finds that in the original proposal for transfer made by the Director the respondent's place of posting was shown as Kurnool. The Court observes that there was no explanation why the respondent was finally transferred to Kakinada in place of Kurnool. On these materials, the conclusion that the transfer of the respondent was clearly not bona fide, to say the least. 11. We are surprised to see the High Court castigating the respondent's transfer order as lacking in bona fides on such flimsy and fanciful pleas advanced by the respondent. We are more than satisfied that the High Court's finding regarding lack of bona fides in the matter on the part of the State Government is completely unfounded and untenable. The legal position to Patna High Court LPA No.111 of 2013 (2) dt.14-02-2013 10 regarding interference by courts in the matter of transfer is too well established to be repeated here. The respondent's transfer neither suffers from violation of any statutory rules nor can it be described as mala fide by any stretch of imagination. We are, accordingly, unable to sustain the High Court's order…..” In view of the aforesaid discussion we arrive at the conclusion that the order under challenge calls for no interference. There is no merit in both the Appeals. They are dismissed. (Navin Sinha, J) (Shivaji Pandey, J) Snkumar/-