State Bank Of India & Anr vs Himanshu Kapur
2012 Latest Caselaw 4450 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Judgment delivered on: 27.07.2012

+       LPA 537/2012


STATE BANK OF INDIA & ANR                                       .... Appellants


                                       versus

HIMANSHU KAPUR                                                 ... Respondent
Advocates who appeared in this case:
For the Appellant            : Mr Vikas Singh, Sr Advocate with Mr Sanjay Kapur
For the Respondent           : Mr V.K.Rao, Sr Advocate with Ms Ekta Kalraa
                              Sikri


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL


                                  JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

1. This Letters Patent Appeal is directed against an interim order

passed by a learned Single Judge of this Court in CM No.8979/2012 in

WP(C) No.4327/2012.

2. Normally, we would not like to interfere with any interim orders

passed by a learned Single Judge of this court while issuing notice in the

main matter. However, the circumstances warrant our interference in this

case. This would be clear from what is indicated below.

3. On 01.02.2012 the appellant took a decision to transfer the

respondent from New Delhi to Lohaghat in Uttarakhand as Branch

Manager. It is material to point out that the transfer order was not just in the

case of the respondent but there were 36 other transfers by virtue of the

same order dated 01.02.2012. The order also indicated that all the

transferred officials are to be relieved by 11.02.2012 by making internal

arrangements. On 10.02.2012 the respondent was relieved from New Delhi

with instructions to join at Lohaghat Branch in Uttarakhand. According to

the appellant, the respondent did not join at Lohaghat. But, according to the

respondent he reported for duty at Lohaghat on 09.05.2012.

4. The learned counsel for the respondent drew our attention to the

„certificate‟ dated 09.05.2012 issued by the officiating Branch Manager

which was to the following effect:-

"To whom it may concern

This is certify that Shri Himanshu Kapur, MMG S III PF No. 2586150 reported at Lohaghat Branch on 09.05.2012."

5. But, the learned counsel appearing on behalf of the appellant drew

our attention to a letter of the very same person i.e., Mr Suresh Chandra

Arya who had purportedly given the said certificate dated 09.05.2012. The

letter is dated 04.07.2012 and is addressed to the Branch Manager,

Lohaghat. It is indicated in the letter that the respondent had visited the

branch on 09.05.2012 at 9.30 a.m. where he stayed up to 11.45 a.m. He

again came to the branch at 2.30 p.m. and when Mr Suresh Chandra Arya

had asked him to take over the charge he stated that he would come back

after some time and left the branch but did turn up thereafter. Our attention

was also drawn to an affidavit sworn at Haldwani, Uttarakhand on

19.07.2012 by the same Mr Suresh Chandra Arya. The affidavit reveals

disturbing facts. It indicates that on 09.05.2012 under coercion and threat

from the respondent, the letter dated 09.05.2012 had been signed by him.

He also indicated that the contents of the letter had been dictated by the

respondent and the same had not been given by him as per his free will. In

the said affidavit he also confirmed that on 09.05.2012, the respondent had

not joined his duties. Paragraph 4 of the affidavit indicates that a copy of

the letter dated 09.05.2012 was enclosed with the affidavit and that the said

letter was taken coercively and Mr Suresh Chandra Arya categorically

denied the contents of the said letter.

6. Mr Rao, appearing on behalf of the respondent states that this

affidavit has come to his knowledge for the first time before the learned

Single Judge and he had no opportunity to respond to the same. In any

event he has instructions to dispute the contents.

7. This in itself would indicate that there are serious disputed questions

of facts. The entire case hinges upon whether the respondent reported for

duty on 09.05.2012 at Lohaghat or not. If he had reported on 09.05.2012 as

contended by the respondent, then possibly Rule 40(3) of the SBI Officers

Service Rules has been wrongly involved while issuing the order dated

14.07.2012 holding that the respondent had voluntarily vacated his service.

At this juncture it would be pertinent to set out Rule 40(3) of the SBI

Officers Service Rules:-

"Where an officer who has not submitted an application for leave or where an officer having submitted his application was refused sanction of leave, absent himself for a period of 90 or more consecutive days or over stay the sanctioned leave by 90 or more consecutive days notwithstanding the provision of sub rule (2), the bank may at any time thereafter give a notice to the officer at his last known address available with the bank calling upon him to report for duty within 30 days of the notice. If the officer does not report for duty within the stipulated period, he may, by an order of the appointing authority, be deemed to have voluntarily vacated his employment on the expiry of the

said period set out in the notice. In such cases the officer shall also be liable to pay to the Bank notice monies as are payable in case of resignation as if he has been permitted to pay the emoluments in lieu of notice.

Provided however, that an officer may appeal to the competent authority within a period of three years from the date of order recording voluntary vacation under the aforesaid rule. The competent authority shall consider such appeal to treat the said order as rescinded if is satisfied that the officer was prevented by any sickness incapacitating him from reporting for duty within the prescribed time or for any other sufficient cause, and pass such orders as it may deem fit in the circumstances of the case."

8. It would be apparent that before a person could be deemed to have

voluntarily vacated his employment, there has to be a 90 or more

consecutive days of abstention on the part of the concerned officer.

Thereafter, a notice requiring him to report within 30 days is essential

before the said Rule 40(3) can be invoked to hold a person deemed to have

voluntarily vacated his employment. In the present case we find that the

respondent had been relieved on 10.02.2012. Counsel for the parties admit

that the 90-day period would end on 17.05.2012. According to the appellant

the respondent was absent from duty for this entire period of 90 days

without even applying for leave or even challenging the transfer order. On

the other hand the learned counsel for the respondent submits that on the

87th day i.e., on 09.05.2012 the respondent had reported for duty at

Lohaghat, Uttarakhand and therefore it cannot be regarded as a period of 90

days consecutive absence from work.

9. Thereafter on 24.05.2012 a notice was given by the appellant to the

respondent requiring him to report for duty within 30 days. That 30-day

period ended on 23.06.2012. The respondent, according to the appellant had

not reported during this 30-day period either. Therefore it is the contention

of the appellant that the pre conditions for invoking Rule 40(3) are clearly

satisfied and therefore the order dated 14.07.2012 was perfectly legal and

justified. The said letter dated 14.07.2012 reads as under:-

                  "State Bank of India            local head officer, G M
                  (Network-2)                     Sectt.

                                                   Business & Operations
                                      Performance Monitoring Department
                                      11, Sansad Marg, New Delhi-110001

Tel no.011-23407230 epbax:011-23407000 exnt 7230 Fax:011-23344367,23340043 Email:[email protected]

Shiri Himanshu Kapur, 33, bank enclave, Ring road, Rajouri garden, New Delhi-110027

No.nw-2/p&c/2446 Date: 14/07/2012

Dear Sir,

VOLUNTARY VACATION OF SERVICE

It is observed that you have been absenting from duties without submitting an application For leave and despite your leave being refused. In this connecting , We refer to our notice dated 24.05.2012 instructing you to report for duty within 30 days it is, however observed that you have so far not complied with the instructions contained therein.

Now that you have failed to report for duty inspite of the above notice it is deemed that you have voluntarily vacated your service in the bank w.e.f. 14.07.2012.

You are hereby called upon to pay three months emoluments within 15 days of receipt of this notice failing which the bank will be constrained to set off the same against your terminal dues and other amounts payable to you without prejudice to recovering the full amount of part thereof by initiating legal proceedings.

Yours faithfully

General Manager (NW-II), (Appointing Authority)

10. Mr Rao submits that although there are undated leave applications,

they were rejected on 09.05.2012. So he also disputes the statement of the

learned counsel for the appellant that there was no leave application even

for the period prior to 09.05.2012.

11. The learned counsel for the appellant also submitted that the learned

Single Judge ought to have been taken into consideration the proviso to

Rule 40(3) which provides for an alternative remedy of appeal to the

competent authority.

12. Anyhow, without going into the question of alternative remedy, we

feel that the interim order passed by the learned Single Judge whereby he

has stayed the operation of the order dated 14.07.2012 which, in fact,

means that the respondent is reinstated, cannot be permitted to stand. It

amounts to virtually allowing the writ petition at the interim stage. If an

authority for the proposition is needed the same is provided by the decision

of the Supreme Court in the case of Public Services Tribunal Bar

Association vs. State of U.P. and Anr., (2003) 4 SCC 104, in which the

Supreme Court observed to the following effect:-

"36. In Suman Dutta case this Court set aside the order passed by the High Court staying the order of termination as an interim measure in the pending proceeding. It was observed:

"We are clearly of the opinion that the High Court erred in law in staying the order of termination as an interim measure in the pending writ petition. By such interim order if an employee is allowed to continue in service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the same."

37. Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has

been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in vindictive manner.

38. From the abovequoted decisions, it is evident that this Court has consistently been of the view that by way of an interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the court."

(underlining added)

13. In view of the foregoing, we are of the opinion that the learned

Single Judge erred in granting interim stay of the order dated 14.07.2012

which has the effect of reinstating the respondent during the pendency of

the writ petition. Consequently, we direct that the stay granted by the

learned Single Judge stands vacated. The appeal stands disposed of

accordingly without any order as to costs.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J JULY 27, 2012 mk