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2020 DIGILAW 720 (HP)

Mohan Singh Chauhan v. H. P. State Co-operative Bank Ltd

2020-10-12

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, J. - Through, the, extant writ petition, the writ petitioner challenges the impugned transfer order. However, before proceeding to make an adjudication, vis-a-vis, the validity, of, the making of the impugned transfer order, by the respondents, it is of utmost importance, to allude, to the relevant factum, of, the employer of the writ petitioner, being the Himachal Pradesh State Co-operative Bank Ltd. 2. The afore alluded relevant factum, appertaining to the employer of the writ petitioner hence being the Himachal Pradesh State Cooperative Bank Ltd, does draw, the, attention, of, this Court, to, a binding, and, conclusive verdict pronounced, in a case titled, as, Chandresh Kumar Malhotra vs. Himachal Pradesh State Cooperative Bank and others, (1993) 2 ShimLC 243 , verdict whereof, become referred by a Division Bench of this Court, in a case titled, as, Vikram Chauhan vs. The Managing Director and others, CWP No. 3634 of 2012-D, along with other connected matters, decided on 14.05.2013, (I) wherein, alike the hereat employer, of, one Chandresh Kumar Malhotra, this Court had expounded a categorical canon, vis-avis, the Himachal Pradesh State Co-operative Bank being not amenable to the writ jurisdiction of this Court (ii) or it became propounded there, vis-a-vis, the remedy of the aggrieved employee, of, the Himachal Pradesh State Cooperative Bank, to cast challenge(s), vis-a-vis, and, appertaining, to the realm of service jurisprudence, being not through a writ petition becoming preferred before the High Court. As aforestated, the afore decision, as, made in the afore titled case i.e. Chandresh Kumar Malhotra's case (supra), has remained un-reversed, hence, it has acquired, the, completest binding, and, conclusive force, vis-a-vis, the afore facet. In sequel, since, the writ petitioner is an employee of the Himachal Pradesh State Co-operative Bank, and, with any employer, under, the tenets of service jurisprudence, holding a leverage, to, during the period of the employee's service, hence make valid orders, rather free from any constitutionally barred vices, hence, of, transfer, upon, him, (iii) besides when there is no valid empowerment in the writ petitioner to obstruct or resist, the afore transfer order, made upon him, by the Himachal Pradesh State Cooperative Bank Ltd, (iv) thereupon, the extant writ petition becomes prima facie not maintainable, and, also estops this Court to embark, upon, making any judicial review, upon, the impugned transfer order. 3. 3. Be that as it may, nonetheless, the learned counsel appearing for the petitioner placed reliance, upon, a verdict rendered by the Hon'ble Apex Court, in, a case titled as Anandi Mukta Sadguru Shri Mukta Jeevandasswami Suvarna Jaya vs. V.R. Rudani & others,1989 AIR 1607 decided on 21.04.1989, and,, wherein, it has been expostulated, (a) vis-avis, the words "any person or authority" used in Article 226 are not to be confined, only to statutory authorities, and, instrumentalities of the State, (b) rather the connotation borne by them may cover any other person or body hence performing public duty, (c) and, if a positive obligation becomes cast upon any body or entity, thereupon, the jurisdiction of the writ court, to make a mandamus, upon, the apposite body or entity, for, therethrough any positive obligation cast thereon, being ensured to be implemented, rather being, a, constitutionally vindicable recourse, by the High Court, in, the exercise, of, its jurisdiction under Article 226, of, the Constitution of India. (d) The writ of mandamus being not deniable, merely on the ground of public duty to be enforced, being not imposed by, a, statute. (e) The remedy of making, of, a writ of mandamus, being a very wide remedy, which must be easily available to reach injustice whereever it is found. Furthermore, it also becomes expounded therein, vis-a-vis, the law relating to mandamus hence making the most spectacular advances, and, all limitations, of, procedural disadvantages, which earlier became encumbered therein, becoming with passage of time rather more or less overcome. 4. In short, the learned counsel, appearing for the petitioner, depends, upon, the afore expostulation of law, borne in Anandi Mukta's case (supra), for his causing this Court, to, make, a, mandamus, upon, the respondents to ensure, that, the impugned transfer order, be interfered with, as, it encumbers upon the petitioner gross injustice, and, that hence, the apposite injustice, encumbered upon him, is, remediable, only, upon a writ of mandamus being issued, upon, the respondents concerned. 5. 5. However, the afore argument, as, addressed before this Court, by the learned counsel appearing, for the petitioner, as, has become founded, upon, a verdict rendered by the Hon'ble Apex Court in Anandi Mukta's case (supra), is, a misconceived, and, mis-contemplated, endeavour, (i) as, he has mis-understood, and, has mis-advocated the apposite trite legal underlinings borne therein, (ii) inasmuch, as, dehors the apposite body or entity being not a public authority or instrumentality, nor dehors being a statutory authority, as, the respondents/ employer is, (iii) yet, for ensuring, the, performance of any positive obligation or a public duty hence cast, upon, the respondents, this Court proceeding to issue, a, mandamus, upon, them. (iv) Contrarily hereat, rather with the respondent-bank, in making the impugned transfer order, its anvilling, it, upon, it being, a, condition of the contract of service entered into inter se the petitioner, and, the respondent bank, and, the afore condition of service, when, does obviously, fall within the realm, of, service jurisprudence, hence, pronounced in Chandresh Kumar Malhotra's case (supra), to rather become borne, in, a, zone whereon(s) exercise, of, writ jurisdiction thereons by the High Court, is, impermissible., (v) whereupon, all the afore trite underlingings borne, in, verdict supra are unavailable for dependence(s) being made thereons, hence, by the counsel, for, the petitioner. Furthermore, the impugned transfer order also does not evince qua therethrough, any visible statutory breaches being made, by the respondentbank/employer, of, the petitioner nor also, the respondentbank/employer, is, under any positive obligation, to, ensure the comfortable place of posting of the writ petitioner or to post him at a station of his choice, (vi) nor obviously hence the afore purported positive obligation necessitates the making, of, a writ of mandamus upon, the respondent-bank, only for ensuring qua the petitioner, being adjusted, at, an espoused station, of, his choice. Preeminently, also the making of any permissible mandamus, upon, the respondents, for ensuring therethrough(s) rather completest compliance(s) being made by the errant litigant, vis-a-vis, positive obligation(s) hence cast upon it, is though. Preeminently, also the making of any permissible mandamus, upon, the respondents, for ensuring therethrough(s) rather completest compliance(s) being made by the errant litigant, vis-a-vis, positive obligation(s) hence cast upon it, is though. dehors, the respondents, being not any instrumentality, of, the State, (vii) yet, the afore valid rendition(s), of, a mandamus, upon, the respondent bank, would become well founded, only upon, the respondent-bank failing to discharge any of the public obligation(s) or public duties or positive obligation(s), appertaining to its mercantile activities, and, appertaining to its running the bank concerned, and, obviously does not cover, the, realm of service jurisprudence. In nut shell, the strivings, for, issuance, of, a mandamus, upon, the respondent bank, by the petitioner is denied. The afore conclusion of this Court, finds support from para 98, of, the verdict of this Court rendered in Chanderesh Kumar Malhotra's case (supra), para whereof, stands extracted hereinafter:- "98. Consequently, we have no hesitation in holding that the three Societies, namely, The Himachal Pradesh State Cooperative Bank Ltd; The Kangra Central Co-operative Bank Ltd; and, the Himachal Pradesh State Co-operative Marketing and Development Federation Ltd., are not 'other authorities' and, as such, cannot be characterised as 'State' when the meaning of Art.12 of the Constitution and the same are also not authority within the meaning and for the purpose of Article 226 of the Constitution. Order passed by the Societies under their respective service regulations against its employees, as such, or in connection with employment cannot be maintainable in order to challenge the action of the Registrar since the same is not an exercise of statutory power conferred upon him under the provisions of the Act or the Rules but an exercise of powers by him under service regulations framed under Bye-laws having no force of law. The writ petition also will not be maintainable since none of three Societies are discharging any public function." 6. For the foregoing reasons, there is no merit, in the extant petition, and, it is dismissed accordingly. All pending applications also stand disposed of.