G V TRIVENI PRASAD Vs. SYNDICATE BANK

JUDGEMENT

(1.) Transfer is not a condition, of service, but is merely an incidence of service. An employee, who joins service of an employer having establishments or offices all over India, can be posted in any part of the country and he cannot be heard to complain against transfer from one place to the other. If he fails to comply with or disobeys the order of transfer/posting, he does so at his own peril. Ordinarily, the Court will not interfere with the employer's prerogative to transfer and post an employee from one place or station to the other unless it is established that the action of the employer is contrary to the statutory provisions or is vitiated due to patent arbitrariness or mala fides. This proposition must be treated as settled by the judgments of the Supreme Court in B. Varadha Rao v. State of Karnataka1, * AIR 1986 SC 1955, Abani Katnta Ray v. State of Orissa2,1995 Supp (4) SCC 169 Union of India v. S.L. Abbas, (1993) 4 SCC 357, Public Services Tribunal Bar Association v. State of U.P., (2003) 4 SCC 104 Union of India v. Janardhan Debanath, (2004) 4 SCC 245 and Kendriya Vidyala Sangathan v. Damodar Prasad Pandey,(2004) 12 SCC 299. I have prefaced disposal ot" this petition by taking cognizance of the above noted proposition because the questions, which arise for determination in this petition filed under Article 226 of the Constitution of India, are whether the petitioner was justified in not carrying out the order of transfer and whether the penalty of removal from service imposed on him on the proved charge of disobedience of the order of transfer and unauthorized absence from duty is legally correct and justified.

(2.) The Facts: While he was holding the post of Assistant Manager.in the employment of Syndicate Bank (for short, 'the bank') and was posted at Patterghatti Branch at Hyderabad, the petitioner was transferred to Pune Branch vide order dated 07.04.1988 passed by the competent authority. He did not join at Pune. Instead, he submitted representation dated 10.04.1988 with the request that he may be posted either at Bombay or Calcutta. After sometime, he filed Writ Petition No.6980 of 1988 for quashing the order of transfer and succeeded in persuading the learned Single Judge to stay his transfer. The efforts made by l:he bank for getting the ex parte interim order vacated failed because the miscellaneous petition filed on its behalf of the bank was dismissed by the learned Single Judge. However, on appeal, which was registered as Writ Appeal No.1383 of 1989, the Division Bench reversed the order of the learned Single Judge and vacated the stay order. Thereafter, the competent authority, vide its order dated 23.10.1989 posted the petitioner at Meerut Branch of the bank. He did not carry out the second order of transfer as well and made representation for cancellation of the same by citing the cold weather at Meerut as the reason. The management of the bank did not accede to his request. The petitioner then adopted the usual tactics, which the employees transferred from one place to the other adopt. He submitted application dated 23.11.1989 for grant of sick leave. This was followed by an application for grant of privilege leave for 45 days with effect from 21.01.1990. Later on, he sought extension of leave by 60 days by citing his ill-health and sudden demise of father-in-law as the grounds. On 20.08.1990, he again applied for privilege leave on medical grounds from 07.05.1990 to 31.10.1990. The management of the bank did not accept either of the applications and issued notice dated 10.09.190 to the petitioner requiring him to explain as to why he had not carried out the order of transfer despite the fact that he had been relieved from Patterghatti Branch on 18.11.1989. In his reply dated 19.09.1990, the petitioner pleaded ignorance about the relieving order and claimed that he cannot be charged with the allegation of remaining absent from duty. The recalcitrant attitude adopted by the petitioner in not carrying out the order of transfer compelled the management of the bank to initiate action under the Syndicate Bank Officer Employees' (Conduct) Regulations, 1976 (for short, 'the Conduct Regulations') read with Syndicate Bank Officer Employees' (Discipline & Appeal) Regulations, 1976 (for short 'the Discipline and Appeal Regulations). A regular departmental enquiry was instituted against him vide Memo dated 12.03.1991. The charges leveled against the petitioner were as follows:

(3.) The petitioner filed reply and denied the cnarges. After considering the same, the competent authority appointed Shri P.S. Nayak, Deputy Personnel Manager,, I.R. Division (O), Head Office, Manipal was appointed as the Enquiry Officer. Subsequently, Shri K. Ramachandra Bhat of the Vigilence Cell, Hyderabad was appointed as Enquiry Officer. Shri Bhat submitted report dated 06.08.1992 with the finding that both the charges levelled against the delinquent have been proved. A copy of the enquiry report was forwarded to the petitioner and he was given opportunity to make representation against the same. In his reply dated 22.09.1992, the petitioner pleaded that he had no intention to disobey the order of transfer and that on account of his ill-health, he had represented for cancellation of transfer. He also pleaded that the application,made by him for grant of leave had not been rejected and, therefore, the leave will be deemed to have been sanctioned. After considering his representation, Assistant General Manager- cum-Disciplinary Authority passed order dated 06.01.1993, whereby the petitioner was removed from service. The appeal preferred by the petitioner was rejected by General Manager (Personnel) (hereinafter described as 'the Appellate Authority') vide his order dated 31.03.1993.