Madras High Court
T.Ashok vs The General Manager on 29 October, 2021
W.A.No.1743 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 29/10/2021
CORAM:
THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
W.A.No.1743 of 2021 &
C.M.P.Nos.10931 & 10938 of 2021
(Heard through VC)
T.Ashok .. Appellant
Versus
The General Manager,
Tamil Nadu Grama Bank,
Head Office,
No.6, Yercaud Road, Hasthampatti,
Salem - 638 007. .. Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set aside the
Order of this Court, dated 10.06.2021 in W.P.No.13826 of 2020.
For Appellant : Mrs.D.Geetha
For respondent : Mr.K.Srinivasa Murthy
Standing Counsel
Page No.1 / 15
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W.A.No.1743 of 2021
JUDGMENT
K.KALYANASUNDARAM, J.,
This intra-court appeal is directed against the order made by the Writ
Court, wherein, the challenge made by the appellant for his transfer from
Sivagiri to Kancheepuram was rejected.
2. The appellant was appointed as Officer Scale-I and posted as Assistant
Manager at Valathy Branch, Villupuram District, vide order dated 01.03.2010.
Subsequently, he was transferred to Aravakuruchi Branch, Karur District as
Branch Manager, vide order dated 15.06.2011. From where, he was transferred
to Neruppur Branch, Dharmapuri District on 05.06.2013 and thereafter to
Vellakoil Branch, Tirupur District. While he was serving at Sivagiri Branch,
Erode District, by the impugned order dated 23.07.2020, he was transferred
from Sivagiri Branch to Kancheepuram Branch.
3. The order of transfer was questioned by the appellant in the Writ
Petition. According to him, the transfer was punitive in nature that too it was
during Covid-19 Pandemic and the Regional Branch Manager, Kancheepuram
was tested positive to Covid and the entire Branch was closed. It is the case of
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W.A.No.1743 of 2021
the appellant that on 13.07.2020 all branches were instructed over phone to
make attendance entry digitally in a portal. Since there was no clarity so as to
make these attendance entry in the portal mentioned, all the Branches
requested the Head Office to give clear instructions in this regard. A circular
was issued only on 16.07.2020 and after receipt of the circular, attendance
were entered in the portal as per the instructions. For non-implementation of
digital attendance, an oral instructions, he was transferred.
4. In the counter, all the allegations of the appellant were denied. It is
stated that admittedly, the appellant's job is transferable and the impugned
transfer was issued due to administrative reasons and not by way of
punishment as alleged by the petitioner. According to the respondent, while
the appellant was working as a Branch Head of the Sivagiri Branch, Erode
District, the Bank received numerous complaints against the appellant, which
made the Regional Manager, Coimbatore to visit the Branch on three occasions
to neutralize the situation. Despite the same, the situation did not improve
and on 20.07.2020, the customers of the Branch had gone to the extent of
staging Dharna in front of the Branch premises. This was also circulated in the
social media and wall posters were displayed across the town of Sivagiri. The
Inspector of Police, Sivagiri Branch had summoned the Regional Manager,
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W.A.No.1743 of 2021
Coimbatore and held tripartite meeting with customers and Regional Manager
to defuse the situation. Hence, the Branch thought it fit to shift the appellant
out of the said Branch and post him in a different Region. Since there was a
need in the Regional Office, Kancheepuram, he was posted in the Regional
Office so that he can discharge his duties in a different atmosphere.
5. In the counter, it is further stated that during probation of two
years, every officer need to work in two or three branches. That apart, the
appellant was suspended in the year 2012 and after revoking suspension, he
was posted to Neruppur Branch. In the year 2017, on promotion as Officer
Scale-II, the appellant was posted to Sivagiri Branch. There is no vindictive
action as alleged by the appellant and the transfer was made in the interest of
bank administration. It is also stated that the issue related to non-adherence
of Head Office instruction is dealt with separately for nearly 100 officers and
the appellant is one among them. That is nothing to do with the transfer under
challenge. It is further stated that in the last three months, nearly 100 transfer
orders were released by the respondent and many of them were posted to
Branches beyond 300 Kilometers and some of the officers were also posted to
Kancheepuram Region from Thanjavur and Kallakurichi District and they have
already moved to their respective Branches without citing Covid-19 as a
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W.A.No.1743 of 2021
reason. The Regional Manager of Kancheepuram was tested positive few
months back and he is now healthy and office is functioning smoothly.
6. A reply affidavit was filed by the appellant disputing the averments
made in the counter. According to the appellant, these allegations clearly
substantiate his case that the impugned order of transfer
is punitive measure and not due to administrative reasons.
7. The learned Single Judge dismissed the Writ Petition, holding that the
ground of COVID-19 cannot be considered at this length of time as there are
many changes. Transfer is an incidental to service. Even in case of raising a
mala fide intention, the Authority against whom such an allegation raised must
be impleaded as party respondent in the Writ proceedings. Merely stating that
the transfer would cause inconvenience, cannot be a ground to set aside the
order of transfer issued by the competent authority. Challenging the same, the
present Appeal has been filed.
8. The learned counsel appearing for the appellant Mrs.D.Geetha would
contend that as per Notification No.115 of 2021 issued by the
Registry, extremely urgent matters alone can be taken up for hearing and
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W.A.No.1743 of 2021
there was no urgency in the Writ Petition and that apart, the learned Judge
without affording an opportunity of bearing heard, dismissed the Writ Petition.
It is next contended that the transfer order was punitive in nature and without
giving an opportunity to the appellant such transfer cannot be made. In this
regard, the learned counsel relied upon the decision of the Hon'ble Apex Court
in Somesh Tiwari Vs. Union of India [(2009) 2 SCC 592].
9. Per contra the learned Standing Counsel for the respondent
Mr.K.Srinivasa Murthy would contend that the order of transfer dated
23.07.2020 was challenged in the Writ Petition in the month of September 2020
and an interim stay was granted on 30.09.2020. Within a period of 3 days, the
respondent filed a counter along with vacate stay petition and the vacate stay
petition was taken up for hearing on 09.11.2020. At the request of the
appellant counsel, it stands adjourned to 09.12.2020 and the respondent
counsel argued the vacate stay petition and it was posted on 11.12.2020 for
the argument of the appellant. When it was listed on 16.12.2020, it was
adjourned to 07.01.2021 and thereafter, it did not come up for hearing.
Hence, several letters were sent to the Registry to list the matter, but in the
meanwhile, the appellant filed Contempt Petition and on 17.04.2021
a statutory notice was issued and the matter was posted on 04.06.2021.
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W.A.No.1743 of 2021
Thereafter, explaining urgency, they sent e-mail on 07.06.2021 and
09.06.2021. Eventually, the Writ Petition was taken up for hearing on
10.06.2021 and the learned Judge rejected the request of adjournment and
heard both sides on merits and dismissed the Writ Petition. He further added
that while the appellant was working as Branch Manager, Sivagiri, he was not
courteous to the customers, there were lot of protest by the customers and
DYFI and CPIM activists. The Regional Manager was called to the Police more
than one occasion to solve the problem. The learned counsel placing reliance
on the decision in the case of Tamil Nadu Electricity Board, Madras Vs.
K.Raman [1985 (1) LLJ 164] and the decision of the Hon'ble Supreme Court in
Union of India Vs. Janardhan Debanath [2004 (4) SCC 245] argued that the
impugned transfer was made for administration exigency and in the public
interest and justified the order of the Writ Court.
10. We have heard the rival submissions and perused the available
materials.
11. In the present case, it is an admitted fact that the appellant was
appointed as Officer Scale-I originally in Pallvan Grama Bank on 01.03.2010 and
in the year 2019, the said Pallavan Grama Bank was merged with Pandyan
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W.A.No.1743 of 2021
Grama Bank and it was renamed as Tamil Nadu Grama Bank. When the
appellant was working as a Branch Manager in Sivagiri Branch, vide order dated
23.07.2020, he was transferred and posted at Regional Branch, Kancheepuram.
The transfer order was challenged by the appellant and an interim say was
granted on 30.09.2020. Immediately, on 03.10.2020, a vacate stay petition was
moved.
12. It has been clearly stated in the counter affidavit that the vacate
stay petition was listed on 09.11.2020 and at the request of the appellant, it
was adjourned and on 09.12.2020, it was taken up for hearing and the counsel
for the respondent argued and it was posted to 11.12.2020 for the appellant
counsel arguments. Again when it was listed on 16.12.2020, it was adjourned
to 07.01.2021 and it did not come up for hearing on that day and hence, the
respondent wrote letters and also sent emails to the High Court's Registry to
list the case. It is an admitted fact that when the vacate stay petition was
pending, the appellant filed Contempt Petition No.1196 of 2020 and on
17.04.2021, statutory notice was ordered and the matter was posted on
04.06.2021. Thereafter, vacate stay petition was not listed and hence, the
respondent sent email to the High Court on 07.06.2021, 09.06.2021 and on
10.06.2021. According to the respondent, adjournment sought for by the
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W.A.No.1743 of 2021
appellant was rejected and arguments were heard and the matter was decided
on merits.
13. The facts aforementioned would show that the respondent filed the
vacate stay petition within a period of three days from the date of the interim
stay and when the matter was listed for hearing, the appellant had taken
adjournments and also filed a Contempt Petition. Therefore, we are unable to
agree with the submission of the learned counsel for the appellant that there is
no urgency for taking up the Writ Petition for hearing and it was against the
Notification of the Registry, dated 28.05.2021 in Notification No.115 of 2021.
14. The Hon'ble Apex Court in the Judgment cited by the learned
counsel for the appellant in [(2009) 2 SCC 592] (supra), in paragraph No.19
has held as follows:-
"19. 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."
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W.A.No.1743 of 2021
There is no dispute with regard to the proposition laid down by the Hon'ble
Supreme Court in the above judgment.
15. In the judgment relied on by the learned Standing Counsel for the
respondent in [1985 (1) LLJ 164] (supra), the Division Bench of this Court has
held as follows:-
"9. ...... For ought one knows, allegations or complaints
however baseless they may be, may constitute, a cause for
transfer, sometimes even the foundation for such transfer. After
all, what is done by a transfer, which as stated above, is part of
a contingency of service? If the administration finds that having
regard to the complaints or allegations it is better a particular
officer is removed from the particular workspot, transfer is
ordered. Beyond that it does not visit the officer concerned with
any penalty whatever, penalty not in the sense of disciplinary
proceedings but from the point of view of emoluments, rank or
status. If that be the position in law, where then is the necessity
for the full exposure of the justifying factors for transfer before
the Court? For our part, we are unable to see any necessity."
16. In [2004 (4) SCC 245] (supra), the Hon'ble Apex Court observed as
follows:-
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"4. The Union of India took the stand that the transfer
was done in public interest and on account of exigencies of
administration. It was pointed out that the respondents not only
misbehaved with the Director (Postal Services), a senior lady
officer, she was confined and dragged from one room to another
and this was done with a view to force her to withdraw the
charge-sheet against the Deputy Postmaster. She was abused in
filthy language and was physically manhandled. This conduct was
certainly unbecoming of an employee and with a view to enforce
discipline and to avoid recurrence of such unfortunate incident,
they were transferred. There was no violation of either Rule 37
of the Manual or FR 15. The High Court accepted the prayers
made in the writ petitions and held that transfer was
impermissible in terms of Rule 37 and was in violation of FR 15.
It was as a measure of penalty and the seniority and the
promotional prospects were likely to be affected.
14. The allegations made against the respondents are
of serious nature, and the conduct attributed is certainly
unbecoming. Whether there was any misbehaviour is a question
which can be gone into in a departmental proceeding. 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 the authority concerned on the
contemporary reports about the occurrence complained of and if
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W.A.No.1743 of 2021
the requirement, as submitted by learned counsel for the
respondents, of holding an elaborate enquiry is to be insisted
upon the very purpose of transferring an employee in public
interest or exigencies of administration to enforce decorum and
ensure probity would get frustrated. The question whether the
respondents could be transferred to a different division is a
matter for the employer to consider depending upon the
administrative necessities and the extent of solution for the
problems 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 aside. 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. "
17. Though the appellant has alleged that the transfer was punitive in
nature, as rightly observed by the learned Single Judge that if the transfer is
made in mala fide intention, the Authority against whom such an allegation
raised must be impleaded as a party in the Writ Proceedings and only if the
appellant could establish that an order of transfer is issued with mala fide
intention or without jurisdiction, the Court can interfere. In the instant case,
it is the case of the respondent that the transfer order was made on
administrative exigencies and explained the foundation for such transfer in the
counter. The Division Bench of this Court and the Hon'ble Apex Court in the
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W.A.No.1743 of 2021
judgments, referred supra, have held that in such circumstances, the transfer
can be made and it shall not be interfered in the Writ Petition. So, we find no
substance in the contention of the learned counsel for the appellant.
18. In such view of the matter, Writ Appeal fails and the same is
dismissed. However, there shall be no order as to costs. Consequently,
connected miscellaneous petitions are closed.
[M.K.K.S., J] [V.S.G., J]
29/10/2021
Speaking order : Yes/No.
Index : Yes/No.
rns
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W.A.No.1743 of 2021
To
The General Manager,
Tamil Nadu Grama Bank,
Head Office,
No.6, Yercaud Road, Hasthampatti,
Salem - 638 007.
https://www.mhc.tn.gov.in/judis/
W.A.No.1743 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
rns
W.A.No.1743 of 2021 &
C.M.P.Nos.10931 & 10938 of 2021
29/10/2021
https://www.mhc.tn.gov.in/judis/
