STATE BANK OF INDIA Vs. ANJAN SANYAN

JUDGEMENT

(1.) The State Bank of India is in appeal against the judgment of the Division Bench of Calcutta High Court. The Division Bench upheld the judgment of a learned single Judge of the said High Court, who had set aside an order of transfer of an officer in Middle Management Grade II of the State Bank. The respondent had been appointed as a Probationary Officer in the State Bank in the year 1971 and had been posted at Calcutta. In 1982, he was transferred to Port Blair, but instead of joining at Port Blair, he remained on leave from 1-7-82 till 15-4-1984. The management of the bank ultimately posted the respondent to Narkeldanga Branch at Calcutta and the earlier orders to transfer to Port Blair was not given effect to. This order has been passed in April, 1984. After the respondent continued at Calcutta for two years, on 14th of June, 1986, the Branch Manager of Narkeldanga Branch at Calcutta was intimated that a decision has been taken to transfer the respondent to the Central Office at Mumbai. The respondent again evaded to go to Mumbai and on the other hand, went on filing representations requesting for cancellation of his transfer to Mumbai. Again from 19-10-86, the respondent applied for leave and did not join the office. On 8-1-1997, the Branch Manager of Narkeldanga Branch advised the respondent that he has been relieved from the Calcutta office and he should join at Mumbai. On 5-12-1987, the respondent made a representation, seeking cancellation of his transfer to the Central Office at Mumbai. That representation, however was never allowed and the bank authorities went on reminding the respondent that he has been transferred to the Central Office and he should join the Central Office at Mumbai. On 16th of January, 1988, respondent made yet another representation, praying for cancellation of his transfer. The mother of the respondent, then made a complaint to the General Manager, alleging that her son is being harassed. This complaint was made in the year 1991. The General Manager, therefore, called upon the Deputy General Manager to ascertain and advise, as to whether the respondent has received the communication of having been transferred to Mumbai. On 9-7-1991, the bank informed the respondent that he is absenting from duty unauthorisedly, and therefore, he should report for duty within three days at Calcutta and explain the reasons for absence. On 19-7-91, the respondent was again posted temporarily at M.B. Street at Calcutta. On 8-8-91, he was then transferred to Siliguri, and was directed to report to Deputy General Manager, Siliguri. Instead of joining at Siliguri, the respondent filed a writ petition, challenging the order of transfer to Siliguri. While entertaining the writ petition, the single Judge passed an interim order, directing the respondent to obey the transfer order and report at Siliguri, but he never obeyed the same. On the other hand, he approached the Division Bench, assailing the said order. The Division Bench also by its order dated 10-2-92, directed the respondent to join his new posting at Siliguri within fifteen days. The respondent being aggrieved by the said directions, approached this Court in a special leave petition, which however was dismissed on 30-3-92. Even, thereafter, the respondent did not join at Siliguri. The learned single Judge of Calcutta High Court however delivered the judgment in the writ petition on 10-3-93 and allowed the same, setting aside the orders of transfer. The Bank went in appeal to the Division Bench and by the impugned judgment, the appeal having been dismissed, the bank has approached this Court.

(2.) The learned single Judge did notice the fact that ordinarily, writ Court does not interfere in the matters of transfer, but yet being of the opinion that in the case in hand, it is not a case of transfer simplicitor and on coming to the conclusion that the order of transfer from Narkeldanga Branch to Mumbai, not having been served on the respondent, the said transfer orders could not have been given effect to, even if being aware of such order of transfer, the concerned employee might have filed representations. The learned single Judge also relied heavily upon the fact that even though, the respondent wrote to the Personnel Manager on 12th January, 1988 that he has not been instructed to report to the Chief Officer (Personnel Administration), Central Office, Mumbai, but no reply was received by him. The learned single Judge, ultimately came to the conclusion that the order of transfer had not been served on the employee and as such in the eyes of law, the employee had not been directed to join any office, after he was released from the Narkeldanga main branch of the Bank. The subsequent period, therefore, must be held to be in a state of suspended animation till July, 1991 and as such the employee would be entitled to claim all benefits of increments and promotion on the basis that he was actually discharging his duties, throughout the span of the intervening five years. So far as the order of transfer to Siliguri is concerned, the Court even interfered with the same, on the ground that until and unless the respondent gets his due promotion at regular intervals, and gets all the emoluments for the past period, he cannot be transferred to Siliguri, as he may have to serve under an officer who might have been junior to him and it will be cruel to send him in the improvised condition, thereby reducing him into a pauper in the place of his new posting. The single Judge, therefore, directed that the respondent cannot be held to have been transferred for Narkeldanga main branch in December, 1986 or any time, thereafter and he must be treated as if he was on duty throughout the period from January, 1987 to July, 1991 with all its attendant benefits of getting regular monthly emoluments, the annual increments and the chances of promotion at regular intervals and unless all the steps are taken, the question of transferring the respondent to any place other than the Narkeldanga Main Branch cannot and does not arise. We are indeed shocked to find this shot of order from the High Court, in a matter of transfer and the Court seems to have taken the view that an officer of the State Bank of India in the Middle Management Grade II can only be allowed to continue at Narkeldanga Branch at Calcutta and nowhere else in the country.

(3.) On appeal being filed before the Division Bench, the performance of the Division Bench was no better. The learned Judges of the Division Bench reaffirmed the conclusion of the learned single Judge that no formal order of transfer had been issued and served upon the respondent, transferring him from Narkeldanga Branch to the Central Office at Mumbai. The perversity of the approach of the Division Bench is apparent from the fact that the learned Judges did refer to the letter of the respondent dated 19th of October, 1986 and held that even though, the respondent did not deny the existence of the order of transfer, but nowhere he had stated that he had seen or had been served with the order of transfer and there was no admission on the part of the respondent about the existence of the order of transfer. The High Court has totally lost sight of the fact that it was dealing with the legality of an order of transfer of an employee and not dealing with a criminal case, where the conviction had been maintained on the basis of a confessional statement. The further perversity of the Division Bench was that it came to hold that if in fact the respondent had been transferred from Calcutta to Mumbai, in that event, Calcutta office must have lost all control or jurisdiction over the service of the respondent and the respondent should be treated to be an officer under the administrative control of the Central Office, Mumbai, and therefore, the respondent could not have been posted by the Calcutta office temporarily at Muktaram Babu Street Branch of the State Bank of India. To say the least, when the employer takes a sympathetic attitude and taking into account the fact that the employee is not going out of Calcutta for the last so many years, even if transferred and a posting is given to the employee, somewhere in Calcutta, that has been considered by the Court to hold that the earlier order of transfer to Mumbai never existed. We also do not find any justification for the Division Bench of Calcutta High Court to go into the question about the admissibility of drawing travelling allowance and daily allowance and then come to a conclusion that the things have been dealt with in a cavalier fashion and there was no order of transfer to Mumbai. The Court ultimately came to hold that there is no question of going into the validity of the transfer, which was neither issued nor conveyed to the person concerned and which had no actual or factual existence at all but only a myth. This conclusion of the Division Bench with utmost respect must be held to be a conclusion on surmises and conjectures and we really fail to understand how the Division Bench of the High Court has come to the aforesaid conclusion, in view of the series of correspondence, which we will refer later. It is also further surprising that the fact that while posting the respondent at Muktaram Babu Street Branch, the order had not indicated about the cancellation of the earlier order of posting at Mumbai and it would be possible for any Court of law to come to a conclusion that there had been no order of transfer as such. The Court then holds the employer liable and guilty of lapses and on that score, allows the salary and emoluments as well as other service benefits from 17th December, 1986. The Court also records a conclusion that the employee should not suffer because of deliberate lapses and negligence on the part of the bank and the bank cannot take advantage of its own wrong done to the employee for so many years. It is curious to note that an employee serving in an All India Organisation, where the service is transferable, could be allowed to flout the orders of transfer on the so-called pretext that the order of transfer had not been served upon him and then would be allowed to draw his emoluments on an erroneous finding that the bank was negligent in not serving the orders of transfer. This case is a glaring instance where the Court in its anxiety to help an employee, recorded the conclusions contrary to the relevant materials and arrived at findings on surmises and conjectures, even in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India.