Madras High Court
Asst. G.M., Central Bank Of India vs Presiding Officer, Industrial ... on 9 August, 1989
Equivalent citations: (1991)ILLJ285MAD
ORDER
Srinivasan J.
1. The question which arises for consideration in this petition was whether the 2nd respondent who was working as Cashier-cum-Godown-Keeper in Addison Buildings Branch of Central Bank of India, Madras, was transferred to Madurai Division for administrative reasons or on exigencies of the management or on his request. The question is obviously one of fact depending on the facts and circumstances of the case. But, it has been projected by learned counsel for the writ petitioner as one of law, which will have to depend upon the terms of the settlement between the Central Bank of India, Personnel Department and the Recognised Majority Union of the All India Central Bank Employees' Federation on 15th June 1974.
2. The said settlement is marked as Ex. M. 10; in these proceedings, Paragraph 4 of the settlement deals with the question of transfer of an employee. According to the said paragraph, the transfer cannot be claimed by an employee as a matter of right, but, the Management, however, agrees to consider transfers on request from the employees on certain terms and conditions. It is sufficient for the purpose of this case to refer to some of the conditions therein. One of the conditions is that an employee will be eligible for transfer from one station to another station within the same division on completion of three years continuous service, reckoned from the date of probation, subject to the provision that if a transfer is sought to an office in rural area within the same division, it can be granted on completion of two years service by the employee. Another condition is that the employee may seek transfer from one station to another station in another division on completion of four years continuous service reckoned from the date of probation. All applications for transfer from one division zone to another will have to be addressed to the Central Office of the Bank through proper channel and such applications will be entered in a register maintained at the respective zonal offices strictly in accordance with the date of reckon of the applications and the register of applications for transfer within the division shall be maintained at the Divisional Headquarters. Another relevant condition is that transfers on request to a particular station will be granted subject to availability of vacancies and an employee transferred on his own request shall not be eligible for any travelling expenses for himself or his family members and he shall not be granted any joining time. Yet another condition which is quite important is that a clerk transferred from one group-division to another group-division, shall not be eligible for promotion to higher cadre for a period of three years from the date of his posting at the new office. A member of the subordinate staff transferred on request shall not be eligible to any post attracting special allowance in terms of the bipartite settlement for a period of 30 months reckoned from the the date of posting at the office of his choice. It is not necessary to refer to the other conditions as they are not relevant for this case.
3. The undisputed facts are as follows : The second respondent made a request on 2nd December 1975 in writing for being transferred to Tuticorin. He had given certain reasons for making that request and it is not necessary to refer to them herein. He had also stated in that letter of request that the post of an Assistant Cashier-cum-Godown Keeper was likely to become vacant soon after due to transfer of an Assistant Cashier from Tuticorin to Madurai. The request for transfer was reiterated by the second respondent by his letter date 6th December 1976. A representation was made by the General Secretary of the Central Bank of India Staff Union on 7th March, 1977 by letter addressed to the Divisional Manager, Central Bank of India, Madras. It was pointed out in that representation that the Union could not understand as to why the Management had not considered the request of the second respondent for transfer. A reference was also made to the existing vacancies in Tuticorin caused by the promotion of an Assistant Cashier to Sivagiri.
4. It was thereafter, a communication was sent on May 11, 1977 by the Assistant General Manager, Central Bank of India, Southern Zonal Office, Madras-6 to the Divisional Office, Madras and the Divisional Office, Madurai advising them that the second respondent was transferred to Madurai Division in the same capacity. There was a direction to make arrangement for relieving him on 14th May 1977 at the close of office hours with instructions to report before the Divisional Manager, Madurai at the earliest to receive further orders of posting. There was a communication dated 28th May 1977 by which the Divisional Manager in the Divisional Office at Madurai ordered that the second respondent was being transferred to the office at Tuticorin in the same capacity in the vacancy caused by the promotion of Mr. V. Kandaswamy Assistant Cashier-cum-Clerk of that office. The second respondent was instructed to report to duty at the Tuticorin office on 30th May 1977.
5. It is not in dispute that the second respondent was paid in advance the travelling allowance for travelling from Madras to Madurai. Nor is it in dispute that he was granted joining time by the Madurai office as is evident from the communication dated 28th May 1977 marked as Ex. M. 5. The second respondent was directed to proceed to Kayalpatnam on 18th July 1977 to relieve one Mr. C. S. Narayanan Nair, who was acting in the place of Mr. S. Palaniappan, Head Cashier "E" availing joining time. That memo is marked as Ex. W. 5, It is clear therefrom that he had also officiated in a post.
6. By a memo dated 27th July 1977 marked as Ex. W. 6, the Branch Manager of Tuticorin Branch informed the second respondent that his transfer to that Branch was a request transfer and he was not eligible for any officiating chance for thirty months from the date of reporting i.e. from 28 May 1977. By a further communication dated 14th February 1978, the second respondent was informed that the Branch was not able to pass the T.A. for his transfer. There was yet another communication on 16th February 1978 by the Branch Manager at Tuticorin to the second respondent informing him that he was not eligible for promotion for 30 months. Probably, this communication, marked as Ex. W. 6, was necessitated because of the mistake in Ex. W. 6, according to which he was not eligible for promotion for 30 months.
7. Though there is no documentary evidence on record to show what exactly happened thereafter, it transpires that there was some representation on behalf of the second respondent and the matter was considered by the Central Office at Bombay. The Central Office decided that the transfer was on administrative grounds and it could not be treated as a request transfer. That is evident from Exs. W9 and W10. Both are telex messages. Ex. W9 is issued by the General Secretary Staff Union and Ex. W. 10 was issued by the Manager of the Central Bank of India, Bombay. It is stated therein that suitable instructions had been given to the A.G.M. Madras to treat the transfer as on administrative grounds. That was followed by a letter from the Branch Manager, Tuticorin to the second respondent dated 29th July 1978 marked as Ex. W11. Informing him that his transfer from Madras to Tuticorin was effected as per the exigencies of the Management only.
8. Thereafter, the General Secretary of All India Central Bank Employees Federation sent a letter on 25th October 1978 to the Deputy General Manager, Central Bank of India, Bombay, inviting his attention to the terms of the Memorandum of Settlement dated 16th June 1974 to which we have already made a reference and pointing out that there was no ambiguity or scope for any dispute on the subject of any transfer based on the written request or otherwise of a workmen to a station of his choice to be treated as a transfer on request. Though there is no express reference to the case of the second respondent, there is no doubt that the communication was sent to the Deputy General Manager, Bombay, only because the second respondent's transfer was treated as one on administrative grounds. At the end of February 1979, the second respondent received a memo from the Branch Manager of the Tuticorin Branch to the effect that under instructions from Divisional Office in supersession of the earlier order dated 29th July 1978 he was being informed that the Management on reconsideration of the entire matter has treated his transfer as a request transfer and he was being advised accordingly. He was further informed that he will be governed by the Bank's Transfer policy agreement dated 15th June 1974 i.e., Ex. M. 10 referred to already. There is nothing to indicate in the memo. That the decision was taken by the Central Office of the Bank at Bombay. No record has been placed before the Court to show under what circumstances the decision taken earlier by the Central Office was reconsidered and a contrary conclusion was arrived at. Nor has the Bank placed any record before the court to show the progress for the Central Office's conclusion earlier that the transfer was administrative and not on request.
9. Therefore, the Government made a reference under S. 10 of the Industrial Disputes Act, 1947, after the attempted conciliation under the provisions of the Act failed. The question referred to the Industrial Tribunal was as follows;
"Whether the action of the management of Central Bank of India in treating the transfer of Shri B. Lakshmi-Narayana Perumal, Assistant Cashier from Addison Buildings Branch, Madras to Madurai Division and then to Tuticorin as a request transfer and thus depriving him of consequential benefits and right is justified ? If not, to what relief is the workman concerned entitled ?"
10. The Tribunal, after considering the entire evidence on record, held that the transfer was only on administrative grounds and it could not be treated as one on request. The award by the Tribunal was passed on 17th July 1981. It is the said award which is being questioned in this writ petition.
11. Learned counsel for the petitioner contends that in view of terms of the Memorandum of Settlement between the Majority Union and the Bank, it cannot be inferred from the facts and circumstances of this case that the Bank chose to act against the terms of the settlement and passed an order of transfer on administrative grounds. Learned counsel contends that the position was no doubt equivocal initially, as there was no specific reference to the request made by the second respondent in the order of transfer dated 11th May 1977. But, according to learned counsel, the circumstances that travelling allowance advance was paid to the second respondent, joining time was granted to him and he had officiated in another post within the prohibited period, will not alter the character of the transfer. According to him these are acts done by officials of the Branch Office and they will not be in any way relevant to consider the question whether the transfer is on request or administrative one. Learned counsel further submits that the policy was arrived at for the reason that the seniority of the employees of this cadre was fixed Divisionwise and if any person is transferred from one Division to another Division that will normally affect the seniority of the persons who are employed in that Division. In order to avoid the hardship that may be caused to the person who are already employed in that Division the terms of the settlement were arrived at between the Majority Union and the Bank preventing a transferee from enjoying some benefits for a particular period. It is argued that when the policy is intended for the benefit of the majority of the employees of the same cadre, it is not open to some of the officials of the Bank to change the policy by passing an order of administrative transfer and deprive the other employees of the benefits which they will be entitled to under the terms of the Settlement.
12. In our view, the question cannot be considered hypothetically on the basis of the terms of the settlement between the Union and the Bank as evidenced by Ex. M10. As stated already, the question has to be decided on the facts and circumstances of this case, on the records placed in this case it will have to be decided whether the transfer by the Bank on 11th May 1977 was an administrative one or on the request of the second respondent. There is no doubt that the second respondent made a request in December 1975 and reiterated the same in December 1976. That was undoubtedly followed by a representation made on his behalf by the Union. But that will not automatically lead to the conclusion that the transfer which was made on 11th June 1977 was only pursuant to his request. Learned counsel submitted that it was for the second respondent to prove such circumstances as would indicate to the Court that there was a situation in which the Bank had to make administrative transfers and that the transfer made was not one made on his request. Though we do not agree with the proposition as one of law, on the facts we are of the opinion that the second respondent has to some extent proved the same. In paragraph 11 of the claim statement filed by the second respondent before the Tribunal he has expressly referred to the circumstances that along with him many clerical and other employees were transferred after ascertaining their views to various Divisional Headquarters for further postings and that it was left completely to the decision and choice of the Divisional Managers for further posting of the transferred employees. A-11 is the counter statement filed by the Bank, paragraph 8 deals with the averment found in paragraph 11 of the claim statement. There is absolutely no denial of the statement made by the second respondent in paragraph 11 of the claim statement that several other employees were transferred to other Divisional Headquarters after ascertaining their views. In the absence of any denial of the statement made by the second respondent in the claim statement, it has to be accepted as correct. Hence, it can be said that the second respondent has made out a case that there were a number of transfers made by the bank, not on request but on administrative grounds. It is for the Bank to have produced the relevant records to show that the transfer of the second respondent was made only pursuant to his request and that it was not as administrative transfer. Unfortunately, the Bank has not chosen to place all the records before the Court. The Bank could have placed the records which came into existence in May 1977 at the time of the transfer as well as the records which persuaded the Central Office of the Bank to come to the conclusion that it was an administrative transfer in July, 1979. No such record has been placed by the Bank before Court.
13. The following circumstances are relied on by the second respondent in the claim statement to show that the transfer was only an administrative one and not on his request :
a. He was granted TA advance without any ..
b. He was granted joining time.
c. He was transferred only to the Divisional Office and not directly to the station for which he had made a request.
d. He was allowed to function in officiating cadre; and e. The Bank has already taken a decision that the transfer was only an administrative one as evident from the telex confirmation.
While circumstances mentioned as (a) and (b) have already been referred to by us, circumstance (c) requires further elucidation. The second respondent has in his claim statement referred to a particular instance, where an employee working in a Division was transferred to a Branch office in another Division directly without being transferred to the Divisional Office in the first instance. In paragraph 10 of the claim statement it is stated that whenever the transfers are made on the request of the concerned employees, they will be transferred from one station to another directly. The case of one Mr. T. K. Prabhakaran, who was working as clerk of Nagercoil Branch under the jurisdiction of Madurai Division and was transferred to Calicut Branch under the jurisdiction of Cochin Division on his request has been referred to in the statement. In the counter statement filed by the Bank, there is no whisper about the case of Prabakaran's transfer. In the course of the arguments it was contended that transfer from one station in one Division to another station in another Division is usually made only by a transfer to the other Division with a direction to take the posting order from the Divisional Office. That contention is not correct as is evident from the case of Mr. Prabhakaran. No record has been produced by the Bank to show that whenever a request for transfer is made to a particular station in another Division, the transfer order will only be directing the employee to report to the Divisional Office under whose jurisdiction the other station is situated and to take posting orders. It cannot be said that the circumstance in this case that the second respondent was directed to report in Madurai Divisional Office and take his posting order instead of his being directly transferred to Tuticorin by the Zonal Office at Madras is not a relevant one to be taken into account in this case.
14. After going through the order of the Tribunal, we are of the opinion that the order is passed upon the facts and circumstances which were placed before the Tribunal and is cannot be said that the order is a perverse one or that the inference drawn by the Tribunal from the circumstances is an impossible one.
15. No doubt, the Tribunal was wrong in observing that the Register of Transfers maintained in the Madras Office was not produced before Court. It is rightly pointed out by learned counsel for the petitioner that the said register has been produced and marked as Ex. M. 13. But, nothing will turn upon that observation made by the Tribunal as it will not have an influence on the conclusion of the Tribunal as the same is based on other relevant circumstances. Yet another observation made by the Tribunal that the controversy in this case relates only to the travelling allowance for transfer from Madras is contended by the petitioner's counsel that the Tribunal has not grasped the question which arises for consideration. We do not think that the said observation will lead to such a conclusion. The observation is not doubt erroneous, but the Tribunal has considered the entire evidence to decide whether the transfer was administrative one or made on request.
16. In our view, the jurisdiction under Art. 226 of the Constitution of India should not be exercised in this case as the conclusion arrived at by the Tribunal is based upon the evidence on record and the inference which is drawn by the Tribunal cannot be said to be unreasonable or unwarranted.
17. Learned counsel for the writ petitioner contended that if the order of transfer is treated as one on administrative grounds, it will affect the other employees in that Division and their chances of promotion will be considerably prejudiced. In our view, that question will not arise in this case for the following reason : The settlement between the majority Union and the Bank does not deprive the Management of their right to transfer any employee on administrative grounds. If the Bank had transferred an employee on administrative grounds to any particular station it is not open to the other employees to say that the terms of settlement are violated. If there had been no letter of request from the second respondent and the order of transfer had been made by the Bank, could it be said that the order is invalid on the ground that it runs counter to the terms of the Settlement ? Our answer is negative. We are of the opinion that the question whether the chances of other employees for promotion are affected or not, is a matter which should have been taken into consideration by the bank before making an order of transfer. If the Bank had made the order of transfer only in pursuance of the letter of request given by the second respondent, they could have clearly stated so in the order or placed the records before the Court to show that the order was in fact one made on request and not an administrative one. Once it is found on the facts that the transfer in this case is an administrative one, it cannot be construed as one on request just because the consequence thereof will be unpalatable to some other employees. Hence, this contention has to be rejected.
18. In the view taken by us, it is not necessary to consider whether the ruling of the Supreme Court in Shri Krishnan v. The Kurukshetra University, Kurushetra is applicable to the facts of this case and the principle laid down should be invoked in this case.
19. In the circumstances, we hold that the order of the Tribunal does not require any interference under Art. 226 of the Constitution of India and we dismiss the writ petition with costs.