High Court · 2012

Heard Mr. T.J.Mahanta assisted by Mr. S.R. Gogoi, learned Counse ls for the petitioner and Mr. S.Dutta assisted by Mr. D.Chakraborty, learned Cou nsels for the respondents. By way of this writ petition, petitioner has challenged his tran 2. sfer order dated 08-08-2012 as well as letter dated 17-09-2012 disposing of his representation against transfer.

3. Considering the subject matter of the writ petition and the fact that parties have exchanged affidavits, the matter is taken up for disposal at the motion stage itself. 4. Petitioner is serving as Branch Manager of Labanghat Branch unde r Golaghat Regional Office of Assam Gramin Vikash Bank (Bank). By order dated 08 -08-2012, petitioner was transferred to and posted at Barbali Branch under Lakhi mpur Regional Office. Petitioner submitted representation dated 14-08-2012 befor e the higher authority of the Bank for reconsideration of his transfer. Petition er stated that he is a victim of conspiracy of certain people and that he has be en transferred by way of punishment without inquiry. He also stated about his he alth problems.

5. Thereafter, petitioner filed a writ petition before this Court c hallenging the transfer order, which was registered a numbered as W.P.(C) No.422 6/2012. In addition to the above grounds, it was also the contention of the peti tioner that he was transferred to the present place of posting only on 14-11-201 1 and without completion of even one year, he has been transferred again by the impugned order.

6. This Court by order dated 07-09-2012 after observing that petiti oner had filed a representation against his transfer, disposed of the writ petit ion by directing the authority of the Bank to consider and dispose of the petiti oner’s representation by 20-09-2012. Till disposal of the representation, status -quo was directed to be maintained.

7. The Chief Manager (Personnel) of the Bank by his letter dated 17 -09-2012 informed the petitioner that there was serious public complaint against him from the customers of the locality. It was stated that to maintain good rel ation with the customers as well as to protect the business of the Bank, it was thought proper to transfer the petitioner. Accordingly, petitioner has been tran sferred to Barbali Branch under Lakhimpur Regional Office.

8. Petitioner has contended that because of conspiracy of some peop le, he has been made a victim and consequently transferred out from his present place of posting. Petitioner has stated that he was never informed of the public complaints and was also not given a chance to offer any explanation. Additional ly, he has highlighted about his various medical problems. He has also stated th at he is due to retire in the year 2016 and, therefore, at this fag end of his c areer, he should not be posted in a distant place, further saying that he is a p ermanent resident of Golaghat.

9. The Bank has filed its counter affidavit stating that there were serious public complaints against the petitioner relating to his conduct for wh ich the business of the Bank in that Branch started to suffer. Thirty seven cust omers of that locality had lodged complaint dated 10-06-2012. A discreet enquiry was conducted by the Bank authority in which the complaints were generally foun d to be true. It was thereafter that the petitioner was transferred. Respondents have denied that transfer of the petitioner is a punitive one.

10. In his reply affidavit, petitioner has stated that it is one Smt i. Madhabi Hazarika, President of Ponka Gaon Panchayat, who has orchestrated the entire campaign against the petitioner. According to the petitioner, the said S mti. Madhabi Hazarika has been misusing public funds under Indira Awas Yojana (I AY) by illegally withdrawing money from the savings account of the Gaon Panchaya t, thereby depriving the beneficiaries. Some of the Bank employees have also col luded in such illegality. When the petitioner detected such illegality and objec ted to it, the complaint was made. Petitioner has stated that no enquiry has bee n made by the authority and he was not given any chance to explain the situation . He has stated that the general public of the locality and the customers in par ticular have no grievance against the petitioner. Thereafter, Bank has filed another affidavit on 08-11-2012 stati 11. ng that there were two public complaints against the petitioner dated 10-06-2012 and 20-06-2012. Respondents have asserted that a discreet enquiry was conducted following which report dated 27-07-2012 was submitted which generally found the allegations against the petitioner to be true.

12. Petitioner has filed an additional affidavit on 26-11-2012 stati ng that signatures of many of the complainants have been forged. A number of com plainants either by way of clarification or by swearing affidavits have denied m aking any complaint against petitioner. They have also stated that nobody from t he Bank had contacted them in connection with any enquiry against the petitioner .

13. Mr. Mahanta, learned Counsel for the petitioner submits that imp ugned transfer order is neither in the public interest nor made bonafide. When p etitioner had detected irregularities committed in the disbursement of loans to beneficiaries under the IAY scheme by the President of Ponka Gaon Panchayat, a c ampaign was launched by the said President to remove the petitioner from his pre sent place of posting. He contends that all the signatures in the complaints are forged except the signature of Smti. Madhabi Hazarika, President of Ponka Gaon Panchayat, who has orchestrated the entire move against the petitioner. He argue s that considering the circumstances surrounding the transfer order, it casts a stigma and is punitive in nature. Therefore, petitioner should have been given a n opportunity to explain his position, moreso when the authorities themselves ha d conducted an enquiry. In any case, the transfer order is without any justifica tion and requires interference by this Court. He has placed reliance on a decisi on of the Hon’ble Supreme Court in the case of Arvind Dattatraya Dhande -Vs- Sta te of Maharashtra and others reported in AIR 1997 SC 3067. On the other hand, Mr. S.Dutta, learned Counsel for the Bank sub 14. mits that the decision to transfer the petitioner has been taken in the larger i nterest of the Bank as the authorities of the Bank is of the view that continuan ce of the petitioner at the Labanghat Branch would not be conducive to the funct ioning of the said Branch. He submits that complaints have been received against the petitioner which were enquired into and found to be correct. In a matter of transfer, no notice or hearing is required to be given. The contention of the p etitioner that the signatures of the complainants have been forged and that the persons named as complainants did not make any complaint against the petitioner raises highly disputed questions of fact which the writ Court may not like to en ter into. He finally submits that transfer is an incidence of service and no int erference is called for. He also places reliance on a decision of the Hon’ble S upreme Court in the case of Union of India and others -Vs- Janardhan Debnath and another reported in (2004) 4 SCC 245.

15. The submissions made have been considered.

16. Law relating to transfer is well settled and needs no reiteratio n. Scope of interference in an order of transfer by a writ Court is limited. Int erference would be justified if the transfer is in violation of any statutory pr ovision or is vitiated by malafide or in a case where the Court finds the same t o be wholly arbitrary to make it repugnant to the principles of equality and fai rness as enshrined in article 14 of the Constitution.

17. Petitioner may have a grievance about alleged illegalities being committed in the execution of IAY scheme by the Ponka Gaon Panchayat but that w ould be a completely different aspect. Without commenting on the merit of the al legation, considering the element of public interest involved, Court is of the v iew that if the beneficiaries make a complaint or if the petitioner makes a form al complaint in this regard, the Bank authorities may forward such complaint to the appropriate authority of the State Government to examine the matter. However , on the administrative side, the Bank authorities have taken a decision based o n their assessment and the feedback received that considering the prevailing sit uation, continuance of the petitioner in his present place of posting may not be in the best interest of the Bank. The Bank is entitled to take such a decision and the Court would not like to interfere in such administrative matters.

18. Considering the nature of the allegation made against the petiti oner in the complaints, the Bank authority has very rightly not dealt with it in detail in the letter dated 17-09-2012 save and accept saying that the allegatio ns are serious and that the petitioner has been transferred to maintain good rel ation with the customers, thereby to protect the business of the Bank. The Court would also not like to dilate on the complaints as such a deliberation may be t o the detriment of the petitioner himself. The allegations and counter allegatio ns regarding the genuineness or otherwise of the signatures of the complainants raises disputed questions of fact, which the Court would not like to enter into in a proceeding under article 226 of the Constitution of India.

19. There is nothing in the transfer order or in the letter dated 17 -09-2012 to suggest that there is any stigma attached to the transfer of the petitioner. In case of any discreet enquiry conducted by the authority pertaining to a transfer, it is not necessary to issue notice or grant hearing to the employee. This position has been explained by the Hon’ ble Supreme Court in Janardhan Debanath -Vs- Union of India and others as under :- (cid:28)12. That brings us to the other question as to whether the use of the expressio n (cid:28)undesirable (cid:29) warranted an enquiry before the transfer. Strong reliance was pl aced by learned counsel for the respondents on a decision of this Court in Jagdi sh Mitter v. Union of India to contend that whenever there is a use of the word (cid:28)undesirable (cid:29) it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to u se of the expression (cid:28)undesirable (cid:29) in an order affecting the continuance in serv ice by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitute s one by way of punishment would also very much depend upon the consequences flo wing from the order and as to whether it adversely affected any service conditio ns - status, service prospects financially - and the same yardstick, norms or st andards cannot be applied to all categories of cases. Transfers unless they invo lve any such adverse impact or visit the persons concerned with any penal conseq uences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipli ne, decency and decorum in public service which are indisputably essential to ma intain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration (cid:29). (cid:28)14 & & & & & &.. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of th e authority concerned on the contemporary reports about the occurrence complaine d of and if the requirement, as submitted by learned counsel for the respondents , of holding an elaborate enquiry is to be insisted upon the very purpose of tra nsferring an employee in public interest or exigencies of administration to enfo rce decorum and ensure probity would get frustrated. The question whether the re spondents could be transferred to a different division is a matter for the emplo yer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration & & & & & & &. (cid:29).

20. The case of Arvind Dattatraya Dhande relied upon by the learned counsel for the petitioner stands on a different footing. In that case, the offi cer had received certification of excellence by his reviewing authority regardin g performance of his duties. Inspite of that, he was transferred on the ground o f wanting in duty. In the facts of that case, the transfer was found to have bee n issued at the instance of complainants selling adulterated liquor and accordin gly was interfered with.

21. In view of the discussions made above, this Court is not incline d to interfere with the transfer of the petitioner. Accordingly, writ petition s tands dismissed.

22. Notwithstanding dismissal of the writ petition, considering the health condition of the petitioner as pleaded by him and the fact that he is due to superannuate from service in the year 2016, the Bank authority may consider posting of the petitioner at a place near his home station.

23. No cost.