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2016 DIGILAW 67 (MEG)

Dena Bank v. K. H. Zhimo

2016-12-07

DINESH MAHESHWARI, VED PRAKASH VAISH

body2016
JUDGMENT : DINESH MAHESHWARI, J. 1. In view of a short point involved, we have heard learned counsel for the parties finally at this stage itself. 2. This intra court appeal is directed against the order dated 06.10.2016 as passed in WP (C) No.271 of 2016, whereby the learned Single Judge has allowed the writ petition filed by the present respondent on his grievance against the order of his transfer. In this appeal, the appellants have also moved two miscellaneous applications, one being MC (WA) No.91 of 2016 seeking stay over operation of the impugned order dated 06.10.2016; and another being MC (WA) No.92 of 2016 seeking leave to file an affidavit-in-opposition to the writ petition. 3. The relevant background aspects of the matter are that the respondent (writ petitioner), who had been working as Senior Branch Manager at the Police Bazar, Shillong Branch of the appellant-Bank since 21.10.2013, but was transferred to Dehradun Zone by the transfer order dated 23.08.2016, preferred the writ petition aforesaid, essentially with the submissions that his wife was expecting a child in the month of September, 2016 and he had another child of less than two years of age; and in the given circumstances, he may be given indulgence to remain posted at the present station. 4. On 16.09.2016, while taking note of the submissions on behalf of the writ petitioner, essentially seeking indulgence at the given point of time, notices were ordered to be issued to the respondents on this limited aspect only. However, in the interest of justice, it was also provided that if the writ petitioner would make a representation for consideration, the authority concerned would examine the same and take appropriate decision thereupon, irrespective of the pendency of the writ petition. The order dated 16.09.2016 reads as under:- "16.09.2016 In this petition, essentially the grievance of the petitioner is against the order dated 23.08.2016, whereby he has been transferred from the current place of posting at Shillong to Dehradun. The order dated 16.09.2016 reads as under:- "16.09.2016 In this petition, essentially the grievance of the petitioner is against the order dated 23.08.2016, whereby he has been transferred from the current place of posting at Shillong to Dehradun. The principal ground being pressed by the learned counsel for the petitioner for consideration is that the wife of the petitioner is expecting a child with due date of delivery in this month only and he has another child of about less than two years of age; and in the given circumstances, he needs to be alongside his wife for proper look-after and therefore, indulgence may be granted by the respondents to allow him to remain at the present station in this critical time. Having regard to the submissions made, let notice be issued to the respondents on the limited aspect indicated above. Notices be made returnable within a week. In addition to the ordinary process, service by e-mail is permitted. The petitioner may also serve a copy of the petition in the local office at Shillong of the respondent-Bank. In the totality of circumstances and in the interest of justice, it is also provided that apart from the notice of this petition, if the petitioner makes a representation for consideration of the authority concerned with reference to the requirements of his family, the concerned authority may examine the same and take appropriate decision thereupon irrespective of pendency of this writ petition. Be listed for orders next week, as prayed." 5. Admittedly, the writ petitioner was blessed with the second child on 16.09.2016; and, while stating the needs of his family, the writ petitioner made the representation on 17.09.2016, the contents whereof had been as under:- "KHZ/TRF/HO/SM-08-46/02/2016 Date: 17.09.2016 To, The General Manager Human Resource Development (HRD) Dena Bank, Head Office, Mumbai. Re: Representation as per Order dated 16.09.2016 passed in WP(C) No. 271 of 2016 by the Hon'ble High Court of Meghalaya, Shillong. Respected Sir, As I have informed you and requested you in my previous representation and I have also informed our Zonal Manager in my earlier representations that my wife is in Nagaland Secretariat Service and her service is not transferrable outside Kohima, Nagaland and we have one baby below two years old. Moreover, with joy I would like to inform you that we are blessed with our second baby just yesterday night i.e. 16.09.2016. Moreover, with joy I would like to inform you that we are blessed with our second baby just yesterday night i.e. 16.09.2016. Under the present circumstances, with two small babies at home and my wife as a working woman as well, my posting/transfer nearer to my family will be of great relief and help to us and it will also surly help me to be even more dedicated and perform better for the Bank as well. Sir, it may be kindly noted, that all my five previous postings/transfers were done in the interest of the bank and I have willingly accepted my previous transfers looking at the interest of the bank alone, however, my present family situation has compelled me to request your esteemed authority for a kind favor. I therefore, in all humbleness would like to request you to kindly consider my representation and transfer me to our Jorhat Branch, Assam which is our nearest Branch to Kohima or to any of our Guwahati City branch or may allow me to continue in Shillong Branch so that atleast the problem of shifting and transferring of household goods and other transfer related difficulties can be avoided at this juncture of hardtime. In this time of great difficulties, your act of kindness, understanding and support will be of great help and of great value to us which shall be cherished and remain ever grateful and obliged. Thanking you in anticipation, Respectfully Yours, Sd/- (Mr. K.H. Zhimo) Shillong Branch" 6. It appears further that the concerned authority of the appellant-Bank responded to the representation so made by the writ petitioner with the observations that as per Regulation 47 of Dena Bank (Officers') Service Regulation, 1979, every officer was liable to be transferred to any office or branch of the Bank or to any place in India; and as per the transfer policy of Bank, all the officers in Scale III and above were liable to be transferred to any place as per the administrative requirements. It was also observed that during his service tenure, the writ petitioner had remained posted near his home State for more than 8 years and had served for about 6 years near his native place. 7. It was also observed that during his service tenure, the writ petitioner had remained posted near his home State for more than 8 years and had served for about 6 years near his native place. 7. On the writ petition being taken up for consideration, the learned Single Judge was of the view that disposal of the representation of the writ petitioner was not in accord with the spirit of the order passed by the Court; and considered it proper to summon the Zonal Manager of the appellant-Bank to appear in person in the Court. Thereafter, the writ petition was taken up on 06.10.2016 and was disposed of with reference to the submissions made by the said Zonal Manager before the Court with the following observations and directions:- "6. Learned counsel for the petitioner also submits that petitioner is ready to be transferred anywhere within Northeast so that in case of any emergency, he can immediately rush to his hometown at Kohima to assist to his family. After perusal of the said annexure, I find that it is quite reasonable and that the authority should consider the representation on humanitarian ground. Though transfer is a part of service condition but it is not necessary that one should always be transferred to far places. I cannot understand why the representation was rejected as submitted by the learned counsel for the petitioner on 27-09-2016. However, since the Zonal Manager, Mr. Arun Kumar Paliwal has appeared personally and assured the Court that petitioner's prayer will be considered and he will be transferred within Northeast region of India, I do not see any reason to keep this case pending, thus the instant writ petition is disposed of with the following direction: (i) The petitioner should not be transferred for another 3(three) months from his present place of posting and thereafter respondent authority is at liberty to transfer him in any Branch within the Northeast region of India for another 3(three) years. 7. With this direction, the instant petition is allowed and stands disposed of. However, this judgment and order will not be a precedent and will not automatically apply to any other Officers of the Bank." 8. Aggrieved by the order so passed, the respondents of writ petition have preferred this intra Court appeal. 7. With this direction, the instant petition is allowed and stands disposed of. However, this judgment and order will not be a precedent and will not automatically apply to any other Officers of the Bank." 8. Aggrieved by the order so passed, the respondents of writ petition have preferred this intra Court appeal. Though it is categorically admitted in the memo of appeal that the said Zonal Manager of the appellant-Bank did make a statement before the Court that the prayer of the writ petitioner would be considered and he would be transferred within North East Region of India but then, it is submitted that the writ petitioner neither prayed for his retention at the present place of posting for three months nor prayed for his posting for another three years within the North East Region. Thus, according to the appellants, the impugned directions are not in tune with the submissions made before the Court and rather run counter to the Regulations governing the service conditions of the writ petitioner. 9. Learned counsel for the appellants has further contended that an order of transfer of an employee from place to another may call for interference only if it is shown suffering from mala fide or being violative of any statutory requirement; and no such ground being available in the present case, the directions as issued in the order impugned cannot be said to be justified. Learned counsel has also argued that a writ of mandamus to the effect that a particular person be posted at a particular place or area for a particular length of time cannot be issued, as the matter essentially relates to administrative exigencies, which are to be examined only by the concerned administrative authorities. 10. On behalf of the respondent (writ petitioner), objections have been filed against the application seeking stay with the submissions as if the appellants were seeking to urge any ground contrary to the assurance stated before the Single Judge. However, learned counsel for the respondent has rightly not pressed on the said objection petition; and has confined his submissions to the extent that the respondent made the prayer for consideration of his case on humanitarian grounds and else, he would not join the issue as regards the mandate in the order impugned that the respondent should be retained within the North East Region for a period of three years. 11. 11. Having given thoughtful consideration to the entire matter, we are clearly of the view that the impugned order as passed in this matter cannot be endorsed but, in the given set of circumstances, this appeal deserves to be disposed of only with a slight modification of the directions as issued. 12. It remains trite, and needs no elaboration, that transfer is an ordinary incident of service and no employee has a right to claim his posting at a particular place. It is also settled that ordinarily, an order of transfer is taken up for interference by the Court only if the same is shown suffering from the vices of mala fide or violation of any statutory requirement. Admittedly, in the present case, the respondent has not questioned the order of his transfer on any such ground or allegation. The only consideration in this matter, as indicated at the initial stage in the writ petition had been that the respondent-writ petitioner was seeking to attend on his family at the critical point of time when his wife was expecting a child and the due date of delivery was in the month of September, 2016. As noticed, the respondent was blessed with the child on 16.09.2016 and then, made a representation on 17.09.2016 for consideration. However, it appears that the concerned authority of the appellant-Bank did not properly attend on this representation of the respondent; and the same was purportedly disallowed merely with reference to the general provisions in the Regulations that an employee like the respondent could be transferred to any place. 13. It is apparent that want of proper consideration of the representation had been the only reason that the learned Single Judge considered it appropriate to summon the Zonal Manager in the Court. As noticed, the Zonal Manager specifically made a submission of assurance before the Court that "the petitioner's prayer will be considered and he will be transferred within Northeast Region of India". The appellant-Bank has not disowned this statement made by its Zonal Manager before the Court. Thus, the observations in the order impugned, to the extent of enforcing the assurance made on behalf of the Bank, call for no interference. However, the appellants appear right in their submissions that the directions have been issued in the order impugned beyond the assurance so stated by the Zonal Manager. Thus, the observations in the order impugned, to the extent of enforcing the assurance made on behalf of the Bank, call for no interference. However, the appellants appear right in their submissions that the directions have been issued in the order impugned beyond the assurance so stated by the Zonal Manager. In our considered view, on the basis of assurance as stated, the directions for retaining the writ petitioner for three months at the present place and then, for his posting in the North East Region for a period of three years could not have been issued. 14. However, learned counsel for the parties are more or less ad idem that the said period of three months is already over, when counted from the date of the impugned transfer order dated 23.08.2016; and learned counsel for the writ petitioner has also frankly submitted that he had not prayed for retention at the present place of posting for any particular length of time. In the totality of circumstances, even though the directions not to transfer the writ petitioner from the present place of posting for three months are not endorsed but then, no further order in that regard is required to be passed while taking note of the present position that such period of three months, when counted from the date of the transfer order, is already over (for the transfer order having been issued way back on 23.08.2016). 15. The other directions in the impugned order, of a mandate to the appellants that the writ petitioner has to be posted for three years in the North East Region, are not endorsed to the extent of the length of posting as provided; and need to be modified. 16. Accordingly and in view of the above, this appeal is allowed to the extent and in the manner indicated above; and with the following directions and observations:- (a) The impugned directions in later part of paragraph 6 of the impugned order dated 06.10.2016, providing for three years of posting of the respondent in North East Region, shall stand annulled. 16. Accordingly and in view of the above, this appeal is allowed to the extent and in the manner indicated above; and with the following directions and observations:- (a) The impugned directions in later part of paragraph 6 of the impugned order dated 06.10.2016, providing for three years of posting of the respondent in North East Region, shall stand annulled. (b) The order dated 23.08.2016 shall be treated as redundant but the appellants shall be at liberty to issue fresh transfer/posting order of the respondent while keeping in view the statement made by the Zonal Manager before the Court, as noticed by the learned Single Judge, which has been reaffirmed in the memo of appeal. (c) For the purpose of issuing fresh order of transfer/posting, the appellants may also take into account the representation made by the respondent on 17.09.2016; and for that matter, the appellants shall be at liberty to take a fresh decision on the said representation dated 17.09.2016, while ignoring the earlier decision dated 27.09.2016. (d) It is made clear that the limited relaxation/indulgence extended to the respondent in the impugned order has not been interfered with in this appeal in view of the statement made before the Court by the Zonal Manager and in the singular circumstances of the case. Obviously, such an indulgence/relaxation shall not be treated as any precedent. (e) No order as to costs. 17. M.C. (WA) No.91 of 2016 and MC (WA) No.92 of 2016 also stand disposed of.