Kerala State Co-Operative Agricultural And Rural Development Bank Ltd. v. Rajan M. , S/o. Mathew
2019-12-05
C.T.RAVIKUMAR, N.NAGARESH
body2019
DigiLaw.ai
JUDGMENT : Ravikumar, J This intra-court appeal is directed against the judgment dated 21.11.2019 in WP(C)No.24687/2019. The appellants herein were respondents 1 and 3 in the writ petition, which was moved by the first respondent herein. The first respondent herein viz., writ petitioner is a Regional Manager under the Kerala State Co-operative Agricultural Development Bank Ltd. Hereinafter in this judgment the parties are referred to in accordance with their rank and status in this appeal. The first respondent filed the writ petition seeking quashment of Ext.P3 and issuance of writ of mandamus commanding the second respondent to allow him to continue as Regional Manager at Regional Office of the Kerala State Co-operative Agricultural Development Bank Ltd, Pathanamthitta. The first respondent is due to retire from service on 31.03.2020. As per Ext.P3 dated 4.9.2019 he was transferred from Pathanamthitta to the Regional Office of the Bank in Idukki. He also sought for a declaration that Ext.P3 order is one issued without any authority and therefore illegal, arbitrary and void. The nub of the contention of the first respondent, as can be seen from the pleadings in the writ petition, is that the transfer and posting of the 3rd respondent in his place is without authority, mainly for the reason that the 3rd respondent is not an employee belonging to the cadre of Regional Manager. In Ground (B) of the writ petition it is stated that the post of Regional Manager is a promotion post of Deputy Manager. Shortly stated, the contention was that the 3rd respondent who is in the feeder category to the post of Regional Manager, could not have been transferred and posted in place of the first respondent without, firstly, promoting him to the category of Regional Manager. It is raising inter alia, such contentions that Ext.P3 was sought to be quashed and consequent directions were sought for. 2. A statement was filed by the appellants in the writ petition. Paragraph 4 of the statement has been extracted by the learned single Judge in the impugned judgment. That apart, the sum and substance of the contention in paragraph 5 of the statement filed by them was also adverted to in paragraph 6 of the impugned judgment.
2. A statement was filed by the appellants in the writ petition. Paragraph 4 of the statement has been extracted by the learned single Judge in the impugned judgment. That apart, the sum and substance of the contention in paragraph 5 of the statement filed by them was also adverted to in paragraph 6 of the impugned judgment. Obviously, after taking note of the pleadings of the appellants herein in the statement filed in the writ petition, the learned single Judge virtually, lifted the veil to see the real nature of Ext.P3 order. The conclusion that Ext.P3 is punitive in nature is the out come of such consideration. The learned single Judge also took note of the fact that when the writ petition came up for consideration as per an interim order dated 20.09.2019 it was ordered to defer implementation of the transfer order of the petitioner till 24.09.2019 and further that the said interim order passed on 20.09.2019 was not vacated. It is also discernible from the impugned judgment that pending the writ petition the first respondent herein was directed to appear before the Managing Director on 12.11.2019 at 11 a.m. to explain the reason for his absence in the meeting which was convened on 26.08.2019 by the Managing Director. Such an order was passed on 08.11.2019. As per the said order dated 08.11.2019 the Writ Court has also issued a direction to the Managing Director to pass orders in the matter after hearing the first respondent. Consequently, the 2nd appellant as per order dated 19.11.2019, directed the first respondent to report for duty at Idukki and observing further that the request of the petitioner could be considered later. Obviously, all these aspects were taken into consideration by the learned single Judge while passing the impugned judgment. As per the impugned judgment Ext.P3 order was set aside and as a necessary sequel the appellants herein were directed to reinstate the first respondent forthwith, subject to initiation of any disciplinary proceedings. It is ordered further:-“The petitioner is kept out of service in spite of interim order without any reason, therefore salary due to the petitioner also shall be paid within two weeks”. It is feeling aggrieved by the said judgment that respondents 1 and 3 have come up with this appeal. 3. Heard the learned senior counsel Sri. George Poonthottam for the appellants and the learned Government Pleader.
It is feeling aggrieved by the said judgment that respondents 1 and 3 have come up with this appeal. 3. Heard the learned senior counsel Sri. George Poonthottam for the appellants and the learned Government Pleader. The learned counsel for the first respondent herein was served with a copy of the appeal and we heard Advocate Sri.Elvin Peter also for the first respondent. 4. The learned senior counsel appearing for the appellants contended that ground (D) in the writ petition itself would reveal that by the time the writ petition was taken up for consideration for the first time, the first respondent stood transferred from Parthanamthitta to Idukki and in his place the 3rd respondent had assumed charge. Evidently, the contention is that in such circumstances the interim order to defer the transfer of the writ petitioner had no effect at all. For a proper consideration of this contention it is only worthwhile to refer to the order passed by the Writ Court on 20.09.2019 and it reads thus:- “The petitioner will take out notice before admission by special messenger to respondent No.4. Smt. Nisha George-the learned standing counsel respondents 1 and 3 and the learned senior Government Pleader appearing for respondent No.2 seek time to obtain instruction in the matter. List this case for further consideration on 24.09.2019, until which date the transfer of the petitioner will stand deferred.” 5. The learned single Judge took note of the fact that the said interim order dated 20.09.2019 was not vacated till the date of disposal. This fact is not in dispute. In the said circumstances, it is evident that even after taking note of the fact that 3rd respondent assumed office the learned single Judge passed an order on the aforesaid lines and the said order was in force till the final pronouncement of the judgment in the writ petition. That apart, it is evident that in the judgment, taking note of the aforesaid position, the learned single Judge further ordered that since the first respondent was kept out of service despite the interim order without any reason he is entitled to salary. Consequently, a direction was issued to disburse the salary for the said period within the time stipulated thereunder. The contention is that the learned single Judge went wrong in treating Ext.P3 order as an action taken by way of punitive measure.
Consequently, a direction was issued to disburse the salary for the said period within the time stipulated thereunder. The contention is that the learned single Judge went wrong in treating Ext.P3 order as an action taken by way of punitive measure. The learned counsel for the first respondent further contended that Ext.P3 order was challenged as an order passed without any authority on the ground that as per Ext.P3 while the first respondent was transferred in his place the 3rd respondent who was then working in the feeder category to the post of Regional Manager was transferred and posted. We may hasten to add that a bare perusal of Ext.P3 order would reveal in fact the 3rd respondent was transferred as Regional Manager (in-charge) thereunder. True that, the question whether the 3rd respondent could have been transferred and put in charge of Regional Manager, was not at all gone into by the single Judge. At the same time, the fact is that, it was the core contention of the petitioner. 6. There can be little doubt with respect to the position that transfer of a person can be effected only to a post to which belongs or to the same cadre in which the transferee is working. Ext.P3 would reveal that the 3rd respondent was transferred and posted as Regional Manager (in-charge). In this context it is relevant to note that in ground (B) of the writ petition a specific contention has been taken by the first respondent that the post of Regional Manager is the promotion post of Deputy Manager and that the 3rd respondent who is occupying the post of Deputy Manager could not therefore be transferred and posted as Regional Manager unless he is promoted to the post of Regional Manager. In the context of the said contention it is only apropos to refer to the pleadings in the statement filed by the appellants herein/respondents 1 and 3 in the writ petition. We have carefully scanned the pleadings in the statement. We do not find any specific statement to the effect that the 3rd respondent was transferred to the post of Deputy Manager in Pathanamthitta and thereafter given the charge in the post of Regional Manager.
We have carefully scanned the pleadings in the statement. We do not find any specific statement to the effect that the 3rd respondent was transferred to the post of Deputy Manager in Pathanamthitta and thereafter given the charge in the post of Regional Manager. In this context it is also relevant to refer to note that despite the receipt of notice in the proceedings by special messenger the 3rd respondent has chosen not to contest the matter. In the said circumstances, the contentions of the petitioner that the 3rd respondent is a person belonging to the category of Deputy Manager and prior to his transfer he was not promoted to the post of Regional Manager can only be taken as is not refuted by the respondents. When that be the circumstances, the question is whether a person in the feeder category to a particular post, in this case the post of Deputy Manager, could be transferred and posted as Regional Manager? In the light of the indisputable fact that the 3rd respondent was then belonging to the category of Deputy Manager, which is a feeder category post to the Regional Manager the answer can only be that he could not have been transferred and posted as Regional Manager (in-charge). It is in this context that we observed earlier that it is not a case where the 3rd respondent was transferred to the post of Regional Manager and then put in-charge of the post which became vacant by the transfer of the writ petitioner. Ext.P3 would reveal that it is described as an order passed 'for administrative convenience and exigency of service'. In the said circumstances the contention of the petitioner that Ext.P3 was passed beyond the authority is only to be accepted. 7. Now, we will consider the contention of the appellants that the learned single Judge went wrong in considering the question whether Ext.P3 smacks of punitive.
In the said circumstances the contention of the petitioner that Ext.P3 was passed beyond the authority is only to be accepted. 7. Now, we will consider the contention of the appellants that the learned single Judge went wrong in considering the question whether Ext.P3 smacks of punitive. In that context it is relevant to note that in paragraph 4 of the statement filed by the appellants herein extracted in paragraph 5 of the impugned judgment as also the contention raised by the appellants in paragraph 5 of the said statement referred to in paragraph 5 of the impugned judgment before the Writ Court would suggest that the foundation for the transfer is the absence of the first respondent in the meeting of the Regional Manager of the Bank on 27.08.2019 and also his subsequent conduct in not appearing before the third respondent on 27.08.2019 itself. Upon receipt of the statement filed by the appellants herein a reply affidavit was filed by the first respondent wherein it was specifically contended though in Ext.P3 order it is stated that it was issued for administrative convenience and exigencies of service paragraphs 7 and 8 of the statement filed on behalf of appellants would reveal that Ext.P3 order was issued by way of punishment. Paragraphs 4, 5 and 7 of the statement filed on behalf of the appellants, to the extent they are relevant, are worthy to be extracted and they read thus:- “4. Being a regional manager, it is the duty of the petitioner herein to attend the meeting called for by the Managing Director representing the region under his jurisdiction. At this juncture it is pointed out that the petitioner herein was absent from the meeting and further the concerned authorities were not intimated by the petitioner regarding his inability to attend the meeting. In his absence, he failed to even nominate an employee working under him to attend the meeting, which is of very important in nature. Due to his absence from the meeting, the Pathanamthitta region remained unrepresented and there was no delegate to brief the meeting about the functioning of the regional office as well as the primary member banks coming under the Pathanamthitta region. 5. The absence of the petitioner was discussed in the meeting and was decided in the meeting to direct him to appear before the Managing Director on the same itself.
5. The absence of the petitioner was discussed in the meeting and was decided in the meeting to direct him to appear before the Managing Director on the same itself. However he was not even available over the phone. A true copy of the relevant pages of the minutes of the meeting is produced herewith and marked as Exhibit-R1(a). Since the petitioner was not available over the phone, the matter was intimated at the regional office. Even after a week, there was no appearance by the petitioner before the Managing Director...... 6. xxx 7. ….... Even waiting for response after intimating the matter at the regional office, it was decided from the Head office to transfer him to the neighbouring district. Since the petitioner is having only few months to retire, it was not proper to initiate disciplinary action, by at the same time the bank wanted to respond to his misconduct, which will otherwise prompt other officers also to skip important meeting called by the bank. .........” In the light of the plea of the appellants in the statement, as aforementioned, the first respondent is certainly justified in taking up the contention that Ext.P3 order is punitive in nature, in the reply affidavit. 8. Another aspect also assumes relevance in the contextual situation. Pending the writ petition the Writ Court passed an order on 08.11.2019 whereby and whereunder the petitioner was directed to appear before the Managing Director on 12.11.2019 and in turn, the Managing Director was directed to pass orders after hearing the petitioner. After passing an order pursuant to the said order dated 08.11.2019 the appellants herein along with a memo produced the said order dated 09.11.2019, before the Writ Court. One particular sentence in Annexure R1(a), in the context of the contentions cannot go unnoticed as it has much relevance in the context of the contention and it reads thus:- “Since the petitioner was negligent in his attitude, this office preferred to transfer him to Idukki, a neighbouring district, on 04.09.2019, instead of taking disciplinary action against him.” 9. Thus, a conjoint reading of paragraphs 4, 5, and 7 and Annexure R1(a) order which was passed pursuant to direction of this Court, would reveal that Ext.P3 is virtually punitive in nature and he was transferred to Idukki instead of initiation of disciplinary action.
Thus, a conjoint reading of paragraphs 4, 5, and 7 and Annexure R1(a) order which was passed pursuant to direction of this Court, would reveal that Ext.P3 is virtually punitive in nature and he was transferred to Idukki instead of initiation of disciplinary action. In the circumstances in this case it is only apposite to refer to a decision of a learned single Judge of this Court in Dinamony v. District Superintendent of Police, Kollam reported in 1994(1) KLT 326 . On the question when can an order of transfer be said to be punitive or as a punishment it was held that the word 'punishment would necessarily denote or signify some wrong committed by the person who was punished.' An action of an employer to the detriment of the employees' interest would not be a punishment as long as the action is not motivated by a desire to punish him for the alleged fault or wrong. We will extract the following from the statement of the appellants filed dated 26.09.2019, in the contextual situation:- “The inconsistency in the leave application and attendance sheet clearly shows that the petitioner had manipulated the records to justify his intentional absence and non-appearance before the Managing Director which is highly unbecoming on the part of a senior officer like the petitioner who holds a key position in the respondent Bank. “Since the petitioner is having only a few months to retire, it was not proper to initiate disciplinary action, but at the same time the bank wanted to respond to his misconduct, which will otherwise prompt other officers also to skip important meetings called for by the bank.”(underline supplied) 10. The afore-extracted portions from the statement of the appellants would reveal that while issuing Ext.P3 the appellants were motivated by a desire to punish the first respondent for the alleged fault or wrong. We are of the view that based on the pleadings of parties, it is otherwise, open to the court to lift the veil of an order to know the real nature of a transfer order and it cannot be said to be an action beyond the competence of the court.
We are of the view that based on the pleadings of parties, it is otherwise, open to the court to lift the veil of an order to know the real nature of a transfer order and it cannot be said to be an action beyond the competence of the court. The long and short of the aforesaid discussion is that conclusion of the learned single Judge that Ex.P3 is most punitive nature and attributable to the attitude and conduct of the writ petitioner and therefore unsustainable in law can only be said to be the rightful conclusion in the circumstances. In such circumstances we are of the view that the impugned judgment whereby the impugned Ext.P3 order is set aside invites no interference. The direction to reinstate the petitioner subject to initiation of disciplinary proceedings and to pay him salary for the reasons that he was kept out of service in spite of the interim order are nothing but the necessary sequels to aforesaid interference with Ext.P3. In the said circumstances this writ appeal liable to fail and accordingly it is dismissed.