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2014 DIGILAW 463 (CAL)

Surai Majhi v. Allahabad Bank

2014-05-15

DIPANKAR DATTA

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JUDGMENT : Dipankar Datta, J. 1. The petitioner, a member of the Santhal tribe (which is recognised as a Scheduled Tribe) and a senior officer of Allahabad Bank (hereafter the Bank), has presented this writ petition feeling aggrieved by several orders passed by his superiors and seeks interference therewith. 2. The case set up by the petitioner in the writ petition is this. At the material time, the petitioner was the incumbent on the post of Senior Manager, Regional Office, Midnapore. In regard to certain incidents that prima facie amounted to misconduct, thereby warranting initiation of disciplinary proceedings, the petitioner was placed under suspension by an order dated August 20, 2003. Disciplinary proceedings followed soon thereafter. Charge-sheet dated October 28, 2003 was issued. While disciplinary proceedings were continuing, an order dated November 20, 2013 was issued by the Assistant General Manager of the Bank, being the Competent Authority, revoking the order of suspension dated August 20, 2003 and directing the petitioner to report at the Regional Office, Dibrugarh, Assam. The petitioner represented against the order of transfer to Dibrugarh on several grounds, including the ground that and did not report thereat. Soon thereafter, order dated August 27, 2004 was passed, whereby the disciplinary authority of the petitioner having found the charges levelled against him vide charge-sheet dated October 28, 2003 proved, imposed the penalty of reduction in basic pay by two stages with cumulative effect in his present time scale of pay with the observation that he would earn usual increment on the anniversary date of his appointment. It was further observed therein that no pay and allowances would be paid to the petitioner for the period of suspension except subsistence allowance already paid to him. The order of penalty was carried by the petitioner in a departmental appeal before his appellate authority, i.e. the Deputy General Manager. The appeal was, however, not decided. Consequent upon the petitioner's refusal to report at Dibrugarh, as required by the order dated November 20, 2013, a further charge-sheet dated August 18, 2005 was issued by the petitioner's disciplinary authority, i.e. the Assistant General Manager. The appeal was, however, not decided. Consequent upon the petitioner's refusal to report at Dibrugarh, as required by the order dated November 20, 2013, a further charge-sheet dated August 18, 2005 was issued by the petitioner's disciplinary authority, i.e. the Assistant General Manager. The charge was that despite revocation of the order of suspension dated August 20, 2003, and direction for reporting at Regional Office, Dibrugarh, as contained in the order dated November 20, 2003, the petitioner had not reported thereat and had been absenting himself without prior permission, which was in violation of Regulations 3(1), 3(2) and 13 of the Allahabad Bank Officer Employees (Conduct) Regulations, 1976 (hereafter the Regulations) tantamounting to misconduct in terms of Regulation 24 thereof. 3. The first order impeached in the writ petition is the order dated November 20, 2003 whereby the petitioner was directed to report at Dibrugarh during the continuation of the disciplinary proceedings, upon revocation of the order of suspension. The second order that has been assailed is the final order dated August 27, 2004 imposing the penalty of reduction in pay. Challenge has also been thrown to the charge-sheet dated August 18, 2005. 4. This writ petition was presented before this Court on November 16, 2005 and was taken up for first consideration on merits on December 6, 2005. By an order of even date, Hon'ble Subhro Kamal Mukherjee, J. invited affidavits and without prejudice to the rights and contentions of the parties, granted liberty to the petitioner to report at Regional Office, Dibrugarh by December 15, 2005. It was observed that if the petitioner reports by that date, he shall be "permitted to join and resume his duties". The respondents were also granted liberty to proceed with the disciplinary proceedings initiated vide charge-sheet dated August 18, 2005, but were restrained from passing the final order without the leave of the Court. It was made abundantly clear that should the petitioner fail to join by December 15, 2005, the interim order would stand automatically vacated and the Bank would be free to proceed in accordance with law. 5. It is not disputed by the Bank that the petitioner availed the liberty granted by the aforesaid order and joined at Regional Office, Dibrugarh within the stipulated time. 5. It is not disputed by the Bank that the petitioner availed the liberty granted by the aforesaid order and joined at Regional Office, Dibrugarh within the stipulated time. It has also not been disputed that the petitioner has spent more than eight years in Dibrugarh and is liable to be transferred in terms of the Transfer/Placement Policy of Officers of the Bank dated August 20, 1998. 6. I have heard Mr. Bandyopadhyay, learned advocate for the petitioner and Mr. Bhattacharya, learned advocate for the respondents at some length and propose to deal with their arguments hereafter. 7. The thrust of Mr. Bandyopadhyay's contention is that the petitioner has been penalised by his superiors since he belongs to the scheduled caste community. According to him, a combined order of revocation of suspension and transfer is not contemplated in any of the regulations framed by the Bank or in any policy formulated by it. It has further been contended that the direction for reporting at Regional Office, Dibrugarh was not issued by the petitioner's appointing authority and being absolutely illegal, the petitioner committed no wrong in defying a transfer order that was issued as a measure of penalty. Documents annexed to the writ petition were referred to by Mr. Bandyopadhyay to demonstrate that at or about the time when the direction for the petitioner to report at Regional Office, Dibrugarh was made, there were mass killings of innocent people and none was willing to go there on transfer; hence the petitioner was made the sacrificial lamb. Attention of the Court was invited to the Transfer/Placement Policy of Officers of the Bank dated March 14, 1992 in support of the contention that the petitioner was transferred to the Regional Office, Dibrugarh in blatant violation thereof. 8. The stand of the Bank, as could be gathered from the submissions advanced by Mr. Bhattacharya, is that the transfer policy is an executive instruction and not judicially enforceable. The prerogative of transferring the petitioner was that of his employer and it is entirely for the employer to decide where the petitioner should be transferred and when, and the employer was neither required nor obliged to take the prior consent of the petitioner. Bhattacharya, is that the transfer policy is an executive instruction and not judicially enforceable. The prerogative of transferring the petitioner was that of his employer and it is entirely for the employer to decide where the petitioner should be transferred and when, and the employer was neither required nor obliged to take the prior consent of the petitioner. It has been the endeavour of the Bank to effect transfers as far as possible in terms of the transfer/placement policy but the situation was of an exceptional nature for which the petitioner had been transferred out. The Transfer/Placement Policy of officers circulated vide circular dated March 14, 1992, relied upon by the petitioner, was no longer in force and had been replaced by the Transfer/Placement Policy of officers circulated vide Instruction Circular No. 5760 dated August 20, 1998. 9. Mr. Bhattacharya invited my attention to the allegations forming part of the charge-sheet dated October 28, 2013, to buttress his contention that once the petitioner prima facie had indulged in acts of lack of integrity, honesty, diligence, good conduct and discipline, which were unbecoming of an officer of the Bank, it was not considered prudent to retain him at the Regional Office, Midnapore and he was transferred to the Regional Office, Dibrugarh. To prove that there was no mala fide in directing transfer of the petitioner, he invited my attention to the minutes of the meeting of the Committee of Executives held on November 11, 2003 for review of suspension of non-vigilance cases for less than six months as on October 31, 2003 (being part of a further affidavit dated October 8, 2013 filed on behalf of the Bank). The meeting was presided over by the Executive Director and attended by the General Manager (P.A.). Upon review of the petitioner's case, the committee expressed the opinion that "the competent Authority may consider revocation of his suspension and post him outside the Region." 10. For the purpose of a decision as to whether the transfer of the petitioner that the Competent Authority directed was in due exercise of power or not, it would be necessary to notice certain provisions of the Transfer/Placement Policy of officers of the Bank dated August 20, 1998. For the purpose of a decision as to whether the transfer of the petitioner that the Competent Authority directed was in due exercise of power or not, it would be necessary to notice certain provisions of the Transfer/Placement Policy of officers of the Bank dated August 20, 1998. The same read as follows: Nevertheless transfer is all along and is a management's prerogative, these guidelines should not be construed as giving any right to the officers to question the authority of the bank in the matter of transfer/posting/placement/deployment of officers. However, the right of an officer to submit his/her representation to the appropriate authority through proper channel to the bank is not denied. 3. BASIC NORMS: Subject to Regulation 47 of Allahabad Bank (Officers') Service Regulations, 1979, the Government guidelines and the needs and exigencies of the bank, the following norms will be applicable: (i) *** (ii) *** (iii) Ordinarily, no Officer may be retained in the same station for more than 6 (six) years continuously or for such period as may be necessary depending upon the needs and exigencies of the bank and/or for smooth operation of this policy. However, no officer shall ordinarily be disturbed from his place of posting before the expiry of 3(three) years except in case of posting in difficult/hardship centres and in exigencies of the bank. (iv) *** (v) *** (vi) *** (vii) Subject to the foregoing, as far as possible officers in Scale-I shall be posted in their Region. Nevertheless, Officers in MMG Scale-II and III may be transferred within the Zone according to the exigencies and special requirements of the bank. However, in the event of surplus in promotion, the officers may be transferred to the neighbouring zone. (viii) Such officers who are transferred outside their parent Region/Zone as the case may be will be brought back to their respective parent Region or Zone, after a period of 2 (two) years service in case of Difficult/hardship centres and 3 (three) years service in other cases as far as possible and practicable. (ix) Specialist officers will also be rotated keeping in mind vacancies available at different places. However, even if there is no vacancy, rotation should take place by 3/6 years on the basis as mentioned earlier. (ix) Specialist officers will also be rotated keeping in mind vacancies available at different places. However, even if there is no vacancy, rotation should take place by 3/6 years on the basis as mentioned earlier. (x) *** (xi) *** (xii) *** (xiii) *** (xiv) In case of transfers on compassionate grounds and/or in exception to this policy due to needs and exigencies of the bank the reason should be recorded in writing by the competent authority. 11. It is true that guidelines relating to transfer/posting of officers are not strictly enforceable and the same is also evident on a reading of the circular dated August 20, 1998. However, the further affidavit dated October 8, 2013 filed on behalf of the Bank makes interesting reading. The relevant portion from such affidavit is quoted below: (d) Meantime, after issuance of charge sheet to Sri Majhi, the Assistant General Manager, Zonal office, Chinsurah and Competent Authority in exercise of the power conferred in him by the Apex Authority of the bank i.e. the Executive Director, vide his direction indicated in the minutes of periodical review meeting dated 31.1.2003 regarding the suspended officers/employees to consider revocation of suspension order effected on the officers of the bank, had revoked the suspension order and instructed for posting him outside the region. This observation of the apex authority of the bank was implemented in the order of revocation of suspension dated 20.11.2003 which has been annexed by the petitioner along with his writ petition and thereby the suspension order stood revoked. 12. Despite certain privileges being made available by the Transfer/Placement Policy of officers dated August 20, 1998 to MMG Scale-III officers of the Bank, to which the petitioner belonged, his transfer to Regional Office, Dibrugarh appears to have been ordered by the Assistant General Manager as if he were directed by the Committee of Executives vide the opinion dated November 11, 2003, referred to above, although the Committee of Executives did not specifically direct that the petitioner's suspension must be revoked. It left the matter of revocation of the order of suspension and posting the petitioner outside the region to the discretion of the competent authority i.e. the Assistant General Manager. From such affidavit, it is clear beyond any doubt that the Assistant General Manager did not act upon application of his own independent mind and thereby failed to exercise discretion vested in him. From such affidavit, it is clear beyond any doubt that the Assistant General Manager did not act upon application of his own independent mind and thereby failed to exercise discretion vested in him. If indeed the Assistant General Manager were the authority competent to transfer the petitioner, he should not have viewed the opinion of the Committee of Executives as direction and proceed to implement it, as if he were bound thereby. The picture that emerges is that of a perception of the Assistant General Manager being bound to act on the dictation of his superiors. 13. The aforesaid extract from the affidavit (in paragraph 11 supra) betrays blind implementation of the opinion of the Committee of Executives by the Assistant General Manager without even adhering to the guidelines for transfer/placement, which bind the officers of the Bank obliged to implement the same. In terms of the guidelines, there ought to exist exigencies necessitating transfer beyond the region and recording of reasons in relation to the needs and exigencies of the Bank. Compliance of these guidelines is conspicuous by its absence. True it is that the guidelines may not be judicially enforceable, but that does not absolve the officers concerned of their duty to substantially comply with the same. Although the petitioner may not have the right to move a writ petition for having the transfer order set aside by a court of law on the ground of alleged breach of certain terms of such guidelines, was the Bank justified in drawing up disciplinary proceedings against the petitioner for not complying with the direction for his transfer to Regional Office, Dibrugarh, although the order for transfer was issued by the Bank in clear violation of the terms and conditions of the circular dated August 20, 1998. 14. Since the necessity to transfer an officer would depend upon several factors including the factor of public interest being best served if the proposed transfer were effected, application of mind by the authority competent to direct transfer to all material facts and circumstances is a necessary concomitant for a valid order of transfer. It necessarily follows that a satisfaction necessitating transfer of an officer ought not to be reached either by reason of undue pressure from any quarter or any external force, to take a decision one way or the other. It necessarily follows that a satisfaction necessitating transfer of an officer ought not to be reached either by reason of undue pressure from any quarter or any external force, to take a decision one way or the other. The discretion to order a transfer no doubt vests absolutely in the employer, as contended by Mr. Bhattacharya, but the exercise of discretion by the concerned authority must not be founded on extraneous consideration. A purported discretion exercised by an officer, which is based on the dictation of his superiors, cannot be characterised as a discretionary act but partakes of the character of a ministerial act. If an order of transfer is shown to have been passed mechanically on the dictation of superiors, it would amount to surrender or abdication of discretion and such a transfer order would not withstand judicial scrutiny. 15. In this connection, the decision rendered by Hon'ble Dr. D.D. Basu, J (as His Lordship then was) in Ram Chandra Chaudhuri v. Secretary to the Govt. of West Bengal may be referred to. It was held therein: When an authority is vested with a power but he is required to consult an advisory body before taking its decision, the responsibility for the decision or the final action that emerges is that of the authority who is entrusted with the power.........and it cannot simply act on the advice given by the advisory body, without applying its own mind. The order of transfer dated November 20, 2003 not having been passed by the competent authority in a manner recognised by law, its non-compliance could not have formed a ground for initiation of disciplinary proceedings. 16. For the reasons aforesaid, I hold that the disciplinary proceedings initiated against the petitioner by charge-sheet dated August 18, 2005 for alleged defiance to comply with the order of transfer dated November 20, 2003, must be held to be indefensible. The impugned charge-sheet dated August 18, 2005 stands set aside, with the result that any proceedings taken in pursuance thereof shall be of no effect hence forth. 17. Insofar as the propriety of the order of transfer directing the petitioner to report at Regional Office, Dibrugarh is concerned, a writ petition for setting aside an order of transfer for violation of guidelines is not maintainable but the impugned order is liable to be interfered on the ground of non-application of mind. 17. Insofar as the propriety of the order of transfer directing the petitioner to report at Regional Office, Dibrugarh is concerned, a writ petition for setting aside an order of transfer for violation of guidelines is not maintainable but the impugned order is liable to be interfered on the ground of non-application of mind. However, it must be borne in mind that the same was acted upon by the petitioner availing the liberty granted by this Court by order dated December 6, 2005 and, therefore, I do not propose to interfere therewith. The petitioner having joined the Regional Office, Dibrugarh by December 15, 2005 and having worked there for more than eight years, he is entitled to be considered for re-transfer in terms of the Transfer/Placement Policy of officers of the Bank dated August 20, 1998 and I direct the bank to re-transfer him immediately. 18. Regarding the challenge to the final order of punishment dated August 27, 2004 is concerned, it does not appear from the affidavit-in-opposition filed by the respondents that such appeal has been disposed of by the appellate authority. No explanation has been furnished as to why the appeal has remained undecided till date. The possibility of the petitioner having been ill-treated, being a member of the scheduled tribe community, cannot be ruled out by reason of the facts which have been noticed above. However, it is not for the writ court to sit in appeal over a departmental order imposing punishment on an officer. I am of the view that interest of justice would be best served, if the appellate authority is directed to decide the appeal preferred by the petitioner, upon granting him opportunity of hearing and in accordance with law as early as possible, but not later than a month from date of receipt of a copy of this order. It is ordered accordingly. 19. It is made clear that should the appellate authority set aside the order of punishment imposed by the disciplinary authority, the petitioner shall be entitled to all financial benefits as if he were never punished; in such case, the benefits shall be released within two months from the date of the appellate order. Should the appellate order be adverse to the petitioner's interest, liberty to challenge the same in appropriate proceedings in accordance with law is reserved. 20. The writ petition stands disposed of with the aforesaid directions. Should the appellate order be adverse to the petitioner's interest, liberty to challenge the same in appropriate proceedings in accordance with law is reserved. 20. The writ petition stands disposed of with the aforesaid directions. Parties shall, however, bear their own costs. Urgent certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date. Order accordingly.