Karnataka High Court

Ashwin Kumar vs Chief General Manager (Hr) on 31 January, 2025

Author: S.G.Pandit

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 31ST DAY OF JANUARY, 2025

                       BEFORE

       THE HON'BLE MR.JUSTICE S.G.PANDIT

       WRIT PETITION No.33948/2024 (S-TR)

BETWEEN:

ASHWIN KUMAR
AGED ABOUT 41 YEARS
S/O LATE U ASHOK KUMAR
INTERNAL AUDITOR
OFFICE OF THE ZONAL INTERNAL
AUDIT DEPARTMENT
BANK OF BARODA
MANGALOORU MUDA BUILDING
ASHOKNAGAR
MANGALOORU-575006.
                                       ...PETITIONER
(BY SRI. VINAY KEERTHY M., ADV.)

AND:

  1. CHIEF GENERAL MANAGER (HR)
     BANK OF BARODA
     CORPORATE CENTER
     BANDRA KURLA COMPLEX-1
     C-26, G-BLOCK, BANDRA EAST
     MUMBAI-400051.

  2. DEPUTY GENERAL MANAGER
     BANK OF BARODA
     ZONAL INTERNAL AUDIT DEPARTMENT
     MANGALOORU MUDA BUILDING
                               2

     ASHOKNAGAR
     MANGALOORU-575006.
                                     ....RESPONDENTS

(BY SRI. SHETTY VIGNESH SHIVARAM, ADV.)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED EMAIL MESSAGE (UNDATED) (ANNX-C) ISSUED BY R1 COMMUNICATING TRANSFER AND POSTING OF THE PETITIONER FROM ZIAD/MANGALOORU ZONE TO CHENNAI ZONE.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 24/01/2025 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:

CORAM: HON'BLE MR JUSTICE S.G.PANDIT

CAV ORDER

The petitioner, an officer of respondent-Bank is

before this court under Article 226 of the Constitution of

India, questioning the correctness and legality of

Annexure-C/communication received through e-mail on

08.12.2024 transferring and posting the petitioner who

was working as Chief Manager, Internal Audit (ZIAD

Mangalore Zone to Chennai Zone with a direction to

report to Zonal Head, Chennai for further placement.

2. The brief facts of the case are that:

The petitioner is working as Senior Manager in the

respondent-Bank. When he was working as Branch

Manager of respondent-Bank at Vidyagiri Branch,

Bagalkot, the petitioner was selected as Internal Auditor

to the Zonal Internal Audit Division (ZIAD). The

selection was in pursuance of the Circular dated

02.05.2023. The Circular stated that tenure of Internal

Auditor at ZIAD would be normally for a period of 4

years. Applications were invited from eligible and willing

Officers fulfilling conditions stated therein and one of the

conditions was that no disciplinary action shall be

pending/proposed against such officer. Considering the

application of the petitioner, the petitioner was selected

and appointed as Internal Auditor for Banks, Zonal

Internal Audit Division and was posted at Mangalore

(Annexure-B dated 06.09.2023). The petitioner was

working as Internal Auditor at Mangalore Zone since

06.02.2023. It is submitted that under communication

at Annexure-C dated 08.12.2024, without there being

any reason, the petitioner is transferred to Chennai

Zone with a direction to report to Zonal Head, Chennai

for further placement. Questioning the said

communication, the petitioner is before this Court in this

writ petition.

3. Heard learned counsel Sri.Vinaya Keerthy for

petitioner and Sri.Vignesh S.Shetty, learned counsel for

respondents-Bank. Perused the writ petition papers.

4. Learned counsel for the petitioner would submit

that on fulfilling all the conditions including that no

disciplinary action is pending or proposed against the

petitioner, he was selected and posted as Internal

Auditor at Mangalore Division under communication at

Annexure-B dated 06.09.2023. When he was working

as such, under communication which was received

through e-mail on 08.12.2024, the petitioner is

transferred to Chennai Zone with a direction to report to

Zonal Head at Chennai for further placement. Learned

counsel would submit that the said communication of

transfer is wholly arbitrary and unreasonable. Learned

counsel would submit that the Circular inviting

applications to fill up the post of Internal Auditor assures

a term of 4 years and even before completion of the said

4 years period, the petitioner is transferred. Further,

learned counsel would submit that the memo filed by

the respondents on 24th December 2024 enclosing

communication dated 21.08.2024 indicates that there is

allegation of suspicious transaction of Rs.0.89 lakhs in

the account of petitioner, when he was working as Chief

Manager, the then branch at Bagalkot. On the said

allegation, the petitioner is not provided with an

opportunity and if that was the basis for transferring the

petitioner, the petitioner ought to have been provided an

opportunity and transfer on the said allegation would

amount to punishment transfer. Thus, learned counsel

would pray for allowing the writ petition and to quash

the impugned communication of transfer at Annexure-C.

5. Per contra, learned counsel Sri.Vignesh Shetty

vehemently opposes the prayer of the petitioner by

submitting that the petitioner is transferred in the

exigencies of service. Therefore, no right of the

petitioner is affected. Learned counsel for the

respondent would submit that a person who is to be

posted to audit shall have clean service record and when

the petitioner was posted as Internal Auditor at

Mangalore Zone, irregularity committed by the petitioner

as Chief Manager in the Branch Office at Bagalkot was

not within knowledge of the respondent-Bank and on

coming to the knowledge of the respondent-Bank, the

respondent has acted upon the same and posted the

petitioner to a different place. Thus, learned counsel

would support the order passed by the respondent-

Bank.

6. Further, learned counsel for respondent places

reliance on various decisions of the Hon'ble Apex Court

to contend that transfer is an administrative order and

no Court could interfere with the same. Further, learned

counsel would also submit that no legal right to seek

posting to a particular place and in terms of regulation

47 of Bank of Baroda (Officers) Service Regulations,

1979 (for short "1979 Regulations") every officer is

liable for transfer to any office or branch of the Bank or

to any place in India. Thus, learned counsel would

submit that when the petitioner has accepted such term,

it is not open for the petitioner to challenge his transfer

from Mangalore Zone to Chennai Zone. Thus, he prays

for dismissal of the writ petition.

7. Having heard the learned counsel for the parties

and on perusal of the writ petition papers, the only point

which falls for consideration is as to whether the

impugned communication of transfer of the petitioner

from Mangalore Zone to Chennai Zone requires

interference at the hands of this Court.

8. In the peculiar facts and circumstances of the case,

the impugned communication of transfer needs

interference at the hands of this Court, for the following

reasons:

9. It is true that the petitioner is holding transferable

post in the respondent-Bank and in terms of Regulation

47 of Regulations 1979 Regulations, an officer of the

respondent-Bank is liable for posting anywhere in India.

It is also to be noted that decision of the Hon'ble Apex

Court on which, learned counsel for respondent-Bank

places reliance would state that the transfer is an

administrative order and normally transfers cannot be

interfered by the Court; no legal right to seek posting to

a particular place; transfer could be effected anywhere

in India and transfer effected would in exigencies of

service. In that regard, learned counsel has placed

reliance on the following decisions:

1. All India Bank of Baroda Officer's Federation and others v/s Bank Of Baroda and Another (2002(2) L.L.N. 1094.

2. All India Bank of Baroda Officer's Federation and Others v/s Bank of Baroda ((2000 ILR 1 DELHI 260).

3. GUJARAT ELECTRICITY BOARD v/s ATMA RAM ((1982) 2 SCC 602)

4. The Tamil Nadu Agricultural University and Another Etc. v/s R.Agila ETC. (Unreported judgment of Hon'ble Supreme Court )

5. Kerala v/s P.K.Rajan (1989 SCC Online Ker.259).

The principles laid down by the Hon'ble Apex Court in

the above decisions shall have to be applied by

examining the facts and circumstances of each case.

10. In the instant case, the petitioner who was

working as Chief Manager at respondent-Bank Branch

office at Bagalkot was selected as Internal Auditor and

was posted to ZIAD, Mangalore. The Circular dated

02.05.2023 calling applications for filling up of vacancy

of Internal Auditor would indicate that the tenure of

Internal Auditor at ZIAD would be normally for a period

of 4 years. When it says that tenure would be normally

for a period of 4 years under normal circumstances, and

such Internal Auditor shall continue for a period of 4

years unless there is compelling circumstance to transfer

out of the audit department.

11. The respondent-Bank along with memo dated

24.12.2024 has placed on record the communication

dated 21.08.2024 from CGM & Head-Internal Audit to

the General Manager & Zonal Head, Bank of Baroda,

Mangalore Zone, Zonal Office, Mangalore which indicates

suspicious transaction of Rs.0.89 Lakhs in the account of

the petitioner, while the petitioner was working as Chief

Manager at the then branch at Bagalkot. It is the

contention of the learned counsel for respondents that

based on the said Communication, decision is taken to

send the petitioner out of Internal Audit and accordingly,

communication is issued to the petitioner transferring

him to Chennai Division.

12. Paragraphs IV and V of statement of objections

filed by respondent-Bank reads as follows:

"IV. The Bank received complaints regarding the fraud that took place in the Branch of the Petitioner and conducted a Risk Based Internal Audit of the Petitioner's Branch in which the auditors discovered that there were allegations against the Petitioner

as well. Upon receiving this information the Respondent Bank immediately relived the Petitioner of his duties from the ZIAD Mangalore Branch and transferred him to a Branch of the Respondent Bank in Chennai through a mail issued to Bank of Baroda Zonal Office.

V. The Respondent Bank submits that the Petitioner was transferred from the Internal Audit Department because there were allegations against the Petitioner related to fraudulent transactions and investigation and was incompetent to hold such a position. The duty of an auditor is to carry out inspections to prevent frauds in a particular institution but in this unfortunate incident, there were allegations against the Petitioner himself. It is pertinent to mention that the transfer of the petitioner was done to protect the "Public Interest"."

(emphasis supplied)

13. The respondent-Bank has come to unilateral

conclusion that the petitioner is incompetent to hold

such a position. The word "incompetent to hold such a

position" would affect the service conditions of the

petitioner and such finding could not have been arrived

at, by respondents without providing an opportunity to

the petitioner. The conclusion that a person is

incompetent to hold any position shall be arrived at only

after enquiry. Moreover, the communication dated

21.08.2024 filed along with memo dated 24.12.2024

was available with the respondent-Bank before selecting

and posting the petitioner as Internal Auditor under

communication dated 06.09.2023 (Annexure-B). Even

thereafter, the petitioner is selected and posted as

Internal Auditor.

14. The Hon'ble Apex Court in a case reported in

(2009) 2 SCC 592 in the case of SOMESH TIWARI

v/s UNION OF INDIA AND OTHERS was considering

transfer effected on an anonymous complaint. In the

said circumstances, the Hon'ble Apex Court at paragraph

16 has held as follows:

"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 is 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 other of transfer is passed in lieu of

punishment, the same is liable to be set aside being wholly illegal."

15. In the instant case also, the respondent could not

have condemned the petitioner as incompetent to hold

the position without providing any opportunity. The

transfer in the above circumstances would amount to

punishment transfer without conducting any enquiry.

An order of transfer which appears to be punitive action

would be illegal and cannot be sustained. Hence, the

following order:

(i) The writ petition is allowed.

Communication received by the petitioner

through e-mail at Annexure-C on

08.12.2024 is quashed.