Full Judgment Text
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CASE NO.:
Appeal (civil) 226 of 1997
PETITIONER:
STATE BANK OF INDIA
Vs.
RESPONDENT:
ANJAN SANYAL & ORS.
DATE OF JUDGMENT: 12/04/2001
BENCH:
G.B.. Pattanaik & Y.K. Agrawal
JUDGMENT:
L...I...T.......T.......T.......T.......T.......T.......T..J
PATTANAIK,J.
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 of
transfer to Port Blair was not given effect to. This order
had 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 8.1.1987,
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
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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.
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 from Narkeldanga main branch in
December, 1986 or any time, thereafter and he must be
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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 sort 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.
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
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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.
An order of transfer of an employee is a part of the
Service conditions and such order of transfer is not
required to be interfered with lightly by a Court of law in
exercise of its discretionary jurisdiction unless the Court
finds that either the order is mala fide or that the service
rules prohibit such transfer or that the authorities, who
issued the order, had not the competence to pass the order.
The Central Board of the State Bank of India in exercise of
powers conferred under sub-section (1) of Section 43 of the
State Bank of India Act, 1955, have framed a set of rules
called the State Bank of India Officers Service Rules. Rule
47 thereof, unequivocally provides that every officer is
liable for transfer to any office or branch of the bank or
to any place or deputation to any other organisation in
India. Rule 49 of the said rules, stipulates the joining
time, which an employee is entitled to when he is
transferred to a new place from his old post. Rule 50 casts
an obligation on the employee to comply with and obey all
lawful and reasonable orders and directions, which may from
time to time be given to him. Rule 50(1) may be quoted
herein-below in extenso:
Rule 50(1) : Every officer shall conform to and abide
by these rules and shall observe, comply with and obey all
lawful and reasonable orders and directions which may from
time to time be given to him by any person under whose
jurisdiction, superintendence or control he may for the time
being be placed.
Any violation of the aforesaid rules, constitutes a
misconduct under Rule 66 and becomes punishable under Rule
67. With this background, when we consider the legality of
an order of transfer, alleged to have been passed on
14.6.1986, after the employee had continued in Calcutta for
more than a decade and the said order has not been held by
the High Court either to be mala fide or that the competent
authority had not passed the order, it is indeed difficult
to come to a conclusion that the said order had not been
passed nor had been communicated to the employee concerned.
Mr. H.N.Salve, the learned Solicitor General, appearing for
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the State Bank of India, invited our attention to the letter
of the respondent addressed to the General Manager
(Operations), State Bank of India, Calcutta Local Head
Office, where- under the respondent had requested to defer
his transfer upto June, 1987 and in that letter in the very
first paragraph, the respondent in no uncertain terms had
indicated that the Branch Manager of the State Bank of
India, Narkeldanga Branch, has addressed to me by his letter
dated 9th October, 1986, which he alleged to have received
on 16th of October, 1986, informing him about his transfer
to the Central Office at Mumbai. In the teeth of the
aforesaid letter of the respondent, we are little surprised
to find the conclusion of the learned Judges of the Calcutta
High Court, both the Single Judge as well as the Division
Bench in entering into an arena of conjecture and come to a
conclusion that there had been no existence of an order of
transfer nor the same had been communicated to the
respondent. The Branch Manager of Narkeldanga Branch had
addressed a letter to the respondent on 8th of January,
1987, intimating him that he has been relieved of his duties
from the said Branch. The respondent again in his letter
dated 5th of December, 1987 addressed to the Chief General
Manager, State Bank of India, categorically stated that he
had been informed by the Branch Manager, State Bank of
India, Narkeldanga Branch, about his transfer to Central
Office at Mumbai and he prayed for cancellation of the said
posting and consider the desirability of posting him at a
suitable place in Calcutta. The State Bank of India,
Calcutta Branch, immediately replied to the aforesaid letter
of the respondent, informing him that as per the records, he
had been relieved from Narkeldanga Branch at the close of
business on 6th December, 1986, with instructions to report
to the Chief Officer, Central Office, Mumbai by their letter
dated 14th December, 1987, to which the respondent replied
by his letter dated 12th January, 1988. Even in that
letter, the respondent stated that even though, he has been
relieved from the Narkeldanga Branch w.e.f. 6th December,
1986, but he had not been instructed to report to the Chief
Officer (Personnel Administration), Central Office, Mumbai,
would itself indicate the frivolous pretext of the employee,
as in all earlier letters he had been candid enough to state
that he had been transferred to the Central Office at
Mumbai. In view of the aforesaid correspondence between the
employee and the employer, we are indeed surprised, how the
High Court could rely upon a sentence in the letter of 30th
April, 1991, wherein a mention had been made that the
officer concerned was not advised in writing by the Branch
at the material time and it is on the basis of this
sentence, the High Court jumped to the conclusion that
neither there existed an order of transfer nor it had been
communicated to the respondent. The bank authorities, on
the other hand, have been repeatedly intimating the
respondent that he is remaining absent without joining at
the place to which he was transferred but yet the employee
concerned did not comply with the order in question. Having
desperate in their attempt to give effect to a lawful order
of transfer, when the authorities, took a sympathetic
attitude and posted the respondent temporarily to M.B.
Street, Calcutta on 19.7.1991 and then transferred him to
Siliguri on 8.8.1991, the High Court finds fault with the
same, on the ground that he having been already transferred
to Mumbai, could not have been posted to the M.B. Street,
Calcutta without cancellation of the earlier order and
further could not have been transferred to Siliguri. This
in our view is an entirely erroneous approach of the High
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Court in dealing with the legality of an order of transfer.
The entire fact situation unerringly point out to one fact
namely the respondent flouted the orders of transfer, did
not join the place of posting, did not apply for or take
leave for his absence, did not discharge his duties, and yet
the High Court in exercise of its discretionary
jurisdiction, not only set aside the order of transfer on a
pretext which does not appeal to us with regard to the non-
communication of the orders of transfer and even directed
that the respondent would be entitled to his salary,
increment, promotion and then only, could be considered for
further transfer to anywhere else. To us, it appears that
the High Court has granted premium to an errant officer, who
did not obey the orders of transfer and did not discharge
any duty for which conduct of his, he could have been
proceeded with, in a departmental proceeding on the charge
of gross misconduct and could have been punished.
Mr. S.S. Ray, the learned senior counsel, appearing
for the respondent, strongly argued that an officer of a
bank could not be orally transferred and, therefore if there
does not exist an order of transfer or if the said order had
not been communicated to the employee concerned, the Court
would be justified in holding that the so-called transfer is
illegal and invalid. From the series of correspondence,
referred to by us earlier and in view of unequivocal
statement of the respondent therein, it is difficult for us
to hold that there did not exist any order of transfer and
that the respondent did not know of the same. On the other
hand, we are persuaded to come to the conclusion that the
respondent was fully aware of the orders of transfer and
tried to evade the same by adopting all possible pretexts
and continued to remain absent without discharging any
duties. Mr. Ray, then contended that under the guidelines
contained in the hand-book of Staff Matters, Volume I,
paragraph 8.34(a) of Chapter VIII deals with a situation
where an officer remains absent in an unauthorised manner.
The very fact that the said procedure had not been adhered
to in the case in hand, justifies the ultimate conclusion of
the learned Single Judge of the High Court that the order of
transfer had not been served nor the employee had been
directed to join the office at Mumbai. We are unable to
accept this contention inasmuch as merely because the bank
authorities did not proceed against the respondent, as
provided in paragraph 8.34(a), it cannot be held that the
respondent did not absent himself from the duties without
any authority. To us, it appears that even higher
authorities of the bank at Calcutta were quite soft towards
the respondent and it is possibly for that purpose, had not
taken any action against him for all the lapses committed by
him. On the materials on record, we are not in a position
to agree with the conclusion of the learned Single Judge as
well as the Division Bench of the Calcutta High Court that
the order of transfer dated 14.6.86, transferring the
respondent to the Central Office at Mumbai was in any way
illegal and invalid and can be held to be null an void. On
the other hand, a valid order of transfer had been issued
and the employee concerned had been relieved of his duties
but instead of joining the place of posting, the employee
concerned went on representing the authorities and openly
disobeyed the orders of transfer. We are also of the
opinion that there was no infirmity with the order dated
8.8.1991, transferring the respondent to Siliguri and the
High Court was totally in error in interfering with the said
order on the hypothesis that until and unless the respondent
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get his emoluments for the entire period as well as
promotion, question of transferring him out of Narkeldanga
Branch does not arise. Such a conclusion is not permissible
to be drawn on the fact situation and we, therefore,
unhesitatingly set aside the same. We further hold that the
order of transfer to Siliguri was also valid and the
respondent did flout the same.
So far as the direction of the High Court regarding the
salary and other pecuniary benefits are concerned, Mr. Ray,
contended that for an employee of the bank in the absence of
any rules, the principle of no work no pay can be made
applicable and so long as the relationship of master and
servant continues and the service has not come to an end,
the employee is entitled to his salary. It is in this
context, Mr. Ray relied upon two decisions of this Court,
the case of Bank of India vs. T.S. Kelawala and Others,
1990(4) SCC 744 AND Syndicate Bank and Anr. vs. K. Umesh
Nayak, 1994(5) SCC 572. The latter one is a Constitution
Bench decision. In the first case, referred to by Mr. Ray,
the question for consideration was if an employee takes
recourse to strike or go slow or any other method, resulting
in no work for the whole day or days, then whether the
Management will be entitled to deduct pro rata or otherwise
wages of the participating workmen notwithstanding absence
of any stipulation in the contract of employment or any
provision in the service rules, regulations or standing
orders. Mr. Ray relied upon the observations made in the
aforesaid judgment in paragraph 22, to the effect- Where
the contract, Standing Orders or the service
rules/regulations are silent on the subject, the management
has the power to deduct wages for absence from duty when the
absence is a concerted action on the part of the employees
and the absence is not disputed. In the latter Constitution
Bench decision also, the Court was considering whether
workers having been on strike, whether wages could be paid
or the theory of no work no pay would apply. Mr. Ray
contended that the ratio in the aforesaid case is that
unless the rules permit, the respondent would be entitled to
the salary. In the Constitution Bench decision, the Court
has observed that to entitle the workmen to the wages for
the strike period, the strike has to be held both legal and
justified and whether the strike is legal or justified are
questions of fact to be decided on the evidence on record.
Applying the same to the facts of the present case, the
order of transfer having been held by us to be valid and the
employee having not obeyed the same, and not having
discharged the duties, but yet continuing in service, how
the period should be dealt with, will depend upon the
relevant rules and regulations of the Bank. We are told
that the State Bank of India Officers Service Rules deal
with the said situation, and, therefore, the competent
authority of the bank would deal with the same. But we have
no hesitation in setting aside the directions of the High
Court, directing the bank to pay the salary and other
benefits to the respondent in the case in hand. In the
aforesaid premises, we set aside the judgment of the learned
Single Judge as well as that of the Division Bench of
Calcutta High Court and allow this appeal. The writ
petition filed by the respondent in the High Court stands
dismissed.
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