Dinesh Chandra Jakhmola vs Uttarakhand Schedule Tribe ...
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      HIGH COURT OF UTTARAKHAND AT NAINITAL

                  Writ Petition (S/S) No. 123 of 2020

Dinesh Chandra Jakhmola                                     ...... Petitioner

                                     Vs.

Uttarakhand Schedule Tribe Commission
and Others                                                ..... Respondents


Mr. Arvind Vashistha, Sr. Advocate, assisted by Mr. Vivek Pathak, Advocate for
the petitioner.
Mr. Lalit Samant, Advocate for respondent no.1.
Mr. D.S. Patni, Sr. Advocate for respondent nos. 2 and 3.
Mr. Nalin Saun, Advocate for respondent no.4.



                               JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant writ petition has been filed seeking the following reliefs:-

"(i) Issue a writ order or direction in the nature of certiorari quashing the inquiry report dated 19.09.2019 submitted by Uttarakhand Scheduled Tribe Commission on a complaint filed by Sri Kamal Singh Tomar (Senior Assistant), S.B.I., New Cantt. Road, Dehradun and against the transfer order vide letter No.R-5/HR/DDUN/792 Dated 26/12/2019 issued by the Regional Manager.

(ii) Issue any other appropriate Writ, Order or Direction, in favour of the Petitioner as the Hon'ble High Court may deem fit in the circumstances of the case.

(iii) Award the cost of the petition to the Petitioner."

2. Petitioner was posted in the Regional Office of the State Bank of India, Region-5, New Cantt. Road, Dehradun (for short 'the Bank'). The respondent no.4 was also posted in the same branch of the Bank. Both, petitioner and respondent no.4 were office bearers of the

State Bank of India Staff Association. They were rivals. Respondent no.4 made a complaint against the petitioner to the Uttarakhand Schedule Tribes Commission (for short 'the Commission'). The Commission inquired into the matter and on 19.09.2019 recommended that the petitioner may be transferred to some other place. The recommendation was made by the Commission on 19.09.2019 and on 26.12.2019, the petitioner was transferred at Bhupatwala Branch. This transfer order is impugned alongwith the report dated 19.09.2019 of the Commission.

3. Counter affidavits have been filed by all the respondents. Respondent no.1 himself has filed a counter affidavit and according to it, after the inquiry into the complaint made by respondent no.4, the recommendations were made by the Commission under Section 11 of the Uttarakhand Commission for the Scheduled Tribes Act, 2015 (for short 'the Act'). Alongwith counter affidavit, some of the proceedings have also been enclosed.

4. Respondent nos.2 and 3, in their separate counter affidavit, have averred that on a complaint of respondent no.4, an investigation was done by the Bank and report dated 09.08.2019 was submitted, wherein, the petitioner was found guilty of uttering caste coloured remarks. In the additional counter affidavit, respondent nos.2 and 3 have stated that transfer has not been made merely on the basis of the recommendation of the Commission, instead, the Bank has also considered the report of the Inquiry Officer of the Bank.

5. In his counter affidavit, respondent no.4 has stated that he was tortured by the petitioner on the basis of his caste and based on the evidence, the Commission has rightly made recommendation on 19.09.2019.

6. Learned counsel for the petitioner would submit that though the impugned transfer order appears to be non-stigmatic and

non-punitive, but, in fact, the Bank has acted upon the recommendation of the Commission; the Commission did not independently inquired into the matter, instead, it relied upon an inquiry committed by the Bank Officer; the Commission may only make its recommendation to the Government; the impugned transfer order is, in fact, punitive in nature and without affording the opportunity of hearing, the petitioner has been transferred. Therefore, it is submitted that the impugned transfer order as well as the report of the Commission dated 19.09.2019 are liable to be quashed.

7. Learned counsel for respondent no.1 would submit that the Commission has only made recommendation based on its inquiry.

8. On behalf of respondent nos.2 and 3, it is submitted that recommendations are not the sole basis for transferring the petitioner. In fact, it is argued that the Bank had already conducted an internal inquiry and having considered all the attending factors, transfer has been made.

9. It is also informed that now on 21.11.2020, the respondent no.4 has also been transferred to some other branch.

10. On behalf of respondent no.4, it is argued that the petitioner keeps personal grudge against the respondent no.4 and had made various complaints against him. Learned counsel for respondent no.4 confirms that the respondent no.4 has also been transferred on 21.11.2020. According to him, within two years, the respondent no.4 has been transferred four times as against the policy of the transfer.

11. Before any discussion is made, it would be apt to reproduce as to what the transfer order is.

"Sri Dinesh Chandra Jakhmola Associate, PF No. 5520002 C/o Regional Business Office-5,

State Bank of India, Administrative Officer, Dehradun Letter No.:- R-5/HR/DDUN/792 Dated 26.12.2019 Dear Sir,

STAFF: AWARD TRANSFER/POSTING It has decided to post you at Bhupatwala Branch (Code 12849). Accordingly, please proceed and report immediately to the Branch Manager, State Bank of India. Bhupatwala Branch as the close of business on 26.12.2019, without availing any joining time.

2. We presume but please confirm that you are not related to any employee at the transferee branch.

Your faithfully, Regional Manager."

12. A bare perusal of it reveals that it is neither stigmatic nor punitive in nature. It is a simpliciter transfer order.

13. Undoubtedly, transfer is an exigency of services and the Court should be much slow to interfere in the matters of transfer unless malafide or something serious is raised which prompted for such transfer. In the instant case, what is being argued is that the Commission had no authority to make such recommendations and the transfer order is punitive.

14. Learned counsel for the petitioner has also referred to the provisions of the Act, especially Section 11, which is as hereunder;

"11. Functions of the Commission.- (1) It shall be the duty of the Commission:

(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under the constitution or under any other law for the time being in force or under any order of the State Government and to evaluate the working of such safeguards:-

(b) to enquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;

(c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development;

(d) to present to the State Government annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(e) to make in such reports recommendations as to the measures that should be taken by the State Government for the effective implementation of those safeguards and other measures for the protection, welfare and socio- economic development of the Scheduled Tribes; (2) The State Government shall cause the reports of the Commission to be laid before the State Legislature along with a memorandum explaining the action taken or proposed to be taken on the recommendations and the reasons for the non-acceptance, if any, of the such recommendations"

15. While reading Section 11, sub-clause (b) of the Act, learned counsel would submit that individual cases cannot be looked into by the Commission. This argument has no force. In view of Section 11(b) of the Act, specific complaint can also be enquired into by the Commission. Merely the words "Scheduled Tribes" do not convey the idea that individual complaints cannot be enquired in it. The Commission gave an opportunity of hearing to the petitioner. In its report, the Commission has recorded that in fact the petitioner did not cooperate with the Commission. The Commission also took into consideration the report of the enquiry officer of the Bank. But, it also does not vitiate the proceedings. The report dated 19.09.2019 of the Commission is based on enquiry after affording an opportunity of hearing to the petitioner. There is no reason to quash it.

16. The Petitioner and respondent no.4 were working in the same branch of the Bank. They were lodging complaints against each other. It is on the complaint of respondent no.4 that the Bank conducted an internal inquiry, which is filed as Annexure 2 to the counter affidavit filed by respondent nos.2 and 3. It has been referred to by learned counsel for petitioner and particularly emphasis has been laid to the

complaint which relate to caste related remarks, to argue that the Inquiry Officer himself observed that "I leave on the wisdom of disciplinary authority whether to give cognizance of this incidence or not." The other part of this report has also been referred to.

17. Learned counsel for the petitioner also referred to Annexure 3 of the counter affidavit filed by the respondent nos.2 and 3, which is permission to movement of staff. In it, an observation is made that 'the Regional Manager, RBO-5 has taken cognizance of the recommendation and contemplated to transfer Shri Jakhmola, Associate on administrative ground.

18. As stated, transfer is an exigency of service. The Bank transferred the petitioner based on internal enquiry as well as on the recommendation of the Commission. The transfer order is non- stigmatic. Even otherwise now the respondent no.4 has also been transferred from the Branch.

19. The Bank has considered not only the recommendation of the Commission, but, the report submitted by its officer and without any stigma, simpliciter transferred the petitioner.

20. This Court sees no reason, under the facts and circumstances of the case, to intervene in this matter. There is no reason which may require any interference. Therefore, this Court is of the view that the petition has no force and it deserves to be dismissed.

21. The petition is dismissed.

(Ravindra Maithani, J.) 13.01.2021 Ujjwal