Judgment · High Court · 2012

eady reference the order dated 23.09.2011 is quoted below: (cid:28)Heard Ms. D. Saikia, learned counsel for the petitioner. Considering the grievance raised and also the nature of the order I have propose d to pass, no notice need be issued to the respondents. The petitioner who is a bank employee working in the Bank of India is aggrieved by Annexure-B order dat ed 30.08.2011 by which he has been transferred to Tinsukia Town Branch from Pane rihat Branch to which place he was recently transferred by order dated 18.05.201 1. Alleging frequent transfer, it is the case of the petitioner that he having b een transferred to Panerihat Branch on 18.05.2011, within three months he ought not have transferred to Tinsukia by the impugned order dated 30.08.2011. Another ground urged by the petitioner is that the impugned order 30.08.2011 is not fou nded on bonafide exercise of power and has been issued malafide. Having regard to the limited scope of interference in the matter of transfer exe rcising the power and jurisdiction under Article 226 of the Constitution of Indi a, this writ petition is disposed of providing that the authority to whom the pe titioner has made Annexure-D representation dated 17.09.2011, shall dispose of the same considering all the relevant facts and in accordance with law. Let the representation be disposed of as expeditiously as possible, but at any rate, not later than 10.10.2011. In the meantime, status quo as on today in respect of t he impugned order dated 30.08.2011 so far as the same relates to the petitioner shall be maintained. The petitioner may obtain the certified copy of this order and produce the same to the bank authority alongwith the copy of the writ petition and its enclosures for their necessary follow up action. (cid:29)

#2. From the above, what is seen is that the only direction issued was to co nsider the representation made by the petitioner against the order of transfer d ated 30.08.2011 and it was clearly indicated in the order about the limited scop e of interference in the matter of transfer exercising the power and jurisdictio n under Article 226 of the Constitution of India. According to the petitioner, ever since he had entered into services of 3. the respondent Bank as Cash-cum-Accountant Clerk on 10.05.1984, he had carried o ut the earlier transfer orders. He was transferred from Guwahati to Panerihat Br anch of the Bank on promotion on 18.05.2011. It is the case of the petitioner th at some false allegations had been made against him and some of the news channel s also reported the false allegations. According to the petitioner, such false allegations were made against him as he had rejected some loan applications. Referring to the note dated 11.08.2011 purportedly made by one Shri Moni 4. ram Kalita, it is the case of the petitioner that the said person was responsibl e for bringing media persons to circulate the news that the petitioner had taken bribe from the beneficiaries against sanctioning of particular loan. By the sai d note, Shri Kalita has withdrawn his earlier stand.

#5. Thus, according to the petitioner, he has been transferred to Tinsukia o n the basis of false allegations made against him and the impugned transfer bein g founded on such false allegations, same is punitive in nature and accordingly, required to be interfered with.

#6. In the counter affidavit filed by the respondents Bank, the aforesaid s tand of the petitioner has been denied. It has been stated that the petitioner h as been transferred in the exigencies of service. A reference has also been made to the media reporting tentamounting to tarnish the image of the Bank. Accord ing to the respondent Bank, the decision to transfer the petitioner was taken in the greater interest of the Bank. It has also been stated that the Bank as the employer has every right to transfer its employees in the exigencies of service. It has also been stated that the transfer of the petitioner was not only in the interest of the Bank, but was also in the interest of the petitioner himself.

#7. The counter affidavit filed by the respondent Bank further states that t here was some kind of disobedience on the part of the petitioner in not obeying the order of the Bank in respect of the withholding of lending and non lending p owers of the Bank. It is alleged that the petitioner was engaged in disbursemen t of loan beyond his delegated authority and thus, the Bank had contemplated to carry out an investigation internally. Accordingly the petitioner was transferre d on administrative reasons. It has been categorically denied that he has been t ransferred by way of punishment.

#8. In the counter affidavit, the respondent Bank has further stated that th e petitioner instead of joining at Tinsukia has remained absent on and from 17.0 9.2011 and his such absence is unauthorised. It has also been stated that the pe titioner while leaving the present place of posting did not even leave a contact address and as a result communication being sent to him had come back undeliver ed. As regards the earlier orders passed by this Court on 23.09.2011 by which t he writ petition filed by the petitioner was disposed of, it has been stated th at the Bank could come to know about the said order when the copy of the same wa s sent by the petitioner through registered post on 28.09.2011. Be it stated her e that the said order was passed without issuing notice to the respondent Bank i nasmuch as it was not felt necessary to issue notice having regard to the nature of the order passed which was only a direction to the respondents Bank to dispo se of the representation made by the petitioner against the order of transfer.

#9. Pursuant to the impugned order of transfer, the respondent No. 4 has alr eady taken over charge at Panerihat. Thus, the order for maintaining status quo in the aforesaid order dated 23.09.2011 till disposal of the writ petition canno t mean that the petitioner would continue at Panerihat Branch, a fact the petiti oner has himself admitted in paragraph-12 of the rejoinder affidavit in which it has been stated that the respondent No.4 has carried out the transfer order an d he has taken over charge of the office of the petitioner.

#10. In the rejoinder affidavit filed by the petitioner he has reiterated the pleas raised in the writ petition. He has denied that he is unathorisedly absen t from 17.09.2011. I have heard Mr. P.K. Goswami, learned Sr. counsel assisted by Mr. R.C. 11. Saikia, learned counsel for the petitioner as well as Mr. S.S. Sarma, learned Sr . counsel assisted by Ms. L. Sarma, learned counsel for the respondent Bank. While Mr. Goswami, learned counsel for the petitioner has argued that th 12. e order being punitive in nature, same is not sustainable in law, Mr. S.S. Sarma , learned counsel for the respondent Bank submits that the impugned transfer ord er has been issued in the interest of Bank. While Mr. Goswami, learned counsel f or the petitioner has placed reliance on the decision of the Apex Court reported in 1984 (Supp.) SCC 413 (State of U.P. and ors. vs Jagdeo Sing), Mr. Sarma, lea rned counsel for the respondent Bank by producing the records pertaining to the impugned orders has submitted that the petitioner himself having admitted that h e had sanctioned overdraft to the members of the extremist groups, the Bank was within its jurisdiction and competence to pass the impugned order.

#13. I have considered the submissions made by the learned counsel for the pa rties and have also gone through the entire materials on record including the re cords produced by Mr. Sarma, learned counsel for the respondent Bank. My finding s are as follows:

#14. As noted above, the petitioner had earlier approached this Court by fili ng a writ petition being W.P.(C) No. 4944/2011. The writ petition was disposed o f at the motion stage itself by order dated 23.09.2011. Considering the nature o f the order passed, it was not felt necessary to issue notice to the respondent Bank. By the said order only direction issued was to dispose of the representati on. It was also provided that the status quo as on the date of passing the order , i.e. 23.09.2011, in respect of the impugned order of transfer dated 30.08.20 11 should be maintained. The fact of the matter is that by the time the order da ted 23.09.2011 was passed, the impugned order stood already implemented, the fac t which the petitioner himself has admitted in paragraph 12 of the said rejoinde r affidavit in which the petitioner has stated that the respondent No. 4 carried out the transfer order. During the course of hearing also Mr. Goswami, learned counsel for the petitioner fairly admitted that the impugned order of transfer h as been implemented, although the petitioner has not joined at Tinsukia. Thus by no stretch of imagination it can be said that the petitioner is still continuin g at Panerihat Branch on the strength of the status quo passed on 23.09.2011.

#15. The instant writ petition was entertained by order dated 28.10.2011 noti cing the aforesaid earlier order dated 23.09.2011 and the order dated 03.10.2011 by which the representation of the petitioner was rejected. No interim protecti on was provided to the petitioner. However, later on by order dated 04.02.2012, an order to maintain status quo was passed. This order of status quo is also o f no consequence so as to contend that the petitioner still continues at Paneri hat inasmuch as long before the said order of status quo, the impugned order of transfer was acted upon and his representation was disposed of. It is another t hing that the petitioner did not join at Tinsukia. According to the petitioner, the impugned order being passed on certain 16. allegations, same is not sustainable in law. In this connection, the petitioner has referred to the media reporting against him. From the pleadings of the part ies in this proceeding, what has transpired is that there was some discrepancies relating to the working of the petitioner at Panerihat Branch. As per the own a dmission of the petitioner in his representation dated 27.03.2012 contained in t he records produced by the learned counsel for the respondent Bank, the area in which the Bank is located is a disturbed area where extremists are active. He hi mself admitted in the said representation that the members of the extremist grou ps had compelled him to sanction overdraft of Rs. 16,51,089/- and under compell ing circumstances he had to debit C/D A/c No. 504020110000003 with the Branch. H owever, he tried to justify the said action with the statement that he had disc ussed with those extremists and convinced them to agree not to encash the said C/D. According to the petitioner, he had informed the higher authority about the same on the following date, i.e. on 17.09.2011. However, the said representatio n does not state anything as to why he could not do so on the date of the transa ction, i.e. 16.09.2011.

#17. In the aforesaid representation dated 27.03.2012 the petitioner also sta ted about another transaction in respect of enhancement of limit in KCC loan A/c . No. 504032100000328 of one Shri Swapan Doimary from Rs. 10,000/- by obtaining fresh set of documents on 17.06.2011. However, according to the petitioner he co uld not recollect as to whether the said transaction really took place or not.

#18. From the above stand of the petitioner himself in the matter of Bank’s t ransactions, there can be no manner of doubt that there was no smooth functionin g of the petitioner in the Bank, a public sector undertaking. In such a situatio n, irrespective of media reporting etc. if the Bank considered to transfer the p etitioner to another branch, no fault can be attributed. After all, it is the in terest of the Bank which will prevail over the individual interest of the petiti oner.

#19. Although Mr. Goswami, learned counsel for the petitioner referring to th e allegations made against the petitioner has sought to project the impugned ord er to be an order passed by way of penalty, but having regard to the facts and c ircumstances of the case, it cannot be said to be so, more particularly when the Bank has denied the same. As has been held by the Apex Court in Union of India and ors. vs. Janardhan Debanath and anr. reported in (2004) 4 SCC 245, an employ er may have two options in the matter dealing with allegations against its emplo yees. It can either take recourse to the disciplinary proceeding or can transfer the employee to another place to ease the situation. Such transfer may also fa cilitate free and fair investigation. In the said decision, the Apex Court has m ade the following observations: 12. (cid:28) & The manner, nature and extent of exercise to be undertaken by courts/trib unals in a case to adjudge whether it casts a stigma or constitutes one by way o f punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions- status, se rvice prospects financially - and the same yardsticks, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such a dverse impact or visit the persons concerned with any penal consequences, are no t required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitud e should be left with the department concerned to enforce discipline, decency an d decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.

#14. The allegations made against the respondents are of serous nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehavio ur is a question which can be gone into in a departmental proceeding. For the pu rposes of effecting a transfer, the question of holding an enquiry to find out w hether there was misbehaviours or conduct unbecoming of an employee is unnecessa ry and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requi rement, as submitted by learned counsel for the respondents, of holding an elabo rate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensur e probity would get frustrated. The question whether the respondents could be tr ansferred to a different division is a matter for the employer to consider depen ding upon the administrative necessities and the extent of solution for the prob lems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set asi de. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs. (cid:29)

#20. The decision on which Mr. Goswami, learned counsel for the petitioner ha s placed reliance, i.e. Jagdeo Singh (supra) is not at all applicable to the cas e of the petitioner. In the said case, the Apex Court was concerned with Section 7(d) of the Police Act, 1861. The Station House Officer was entitled to receive allowance of Rs. 15/- per month. He was transferred on the ground of misconduct and negligence which resulted in loss of his special emolument. In such a situa tion it was held that Section 7(d) was attracted inasmuch as the transfer amount ed to reversion by way of punishment. Unlike the said case, in the present case there is no loss of any emolument and the petitioner has been transferred to Tin sukia maintaining his rank, status and pay. Needless to say that in the matter of transfer of employees holding tran 21. sferable job, the employer is the best judge. In absence of any malafide exercis e of power and/or violation of any statutory rules, the writ Court exercising it s power of judicial review under Article 226 of the Constitution of India cannot sit on an appeal over such discretion of the employer.

#22. During the course of hearing of the writ petition a suggestion was made by the Court as to whether the case of the petitioner can be reconsidered for tr ansfer to somewhere else other than Tinsukia to which Mr. Sarma, learned counsel for the respondent Bank had shown his positive response. However, learned couns el for the petitioner was not agreeable to such a proposal and he insisted for a decision in the matter on merit. For all the aforesaid reasons, I do not find any merit in the writ petit 23. ion and accordingly it is dismissed. It will be open for the petitioner to join his duty at Tinsukia. It will be entirely up to the respondent Bank to decide as to how the period of unauthorised absence shall be treated.

#24. There shall be no order as to costs.