Calcutta High Court
Bank Of India Staff Union And Ors. vs Bank Of India, Eastern Zone And Ors. on 13 March, 1996
Equivalent citations: (1996)1CALLT454(HC), [1996(1996)FLR1727A], 1996LABLC1242, (1996)IILLJ1219CAL
JUDGMENT Dipak Prakas Kundu, J.
1. In this writ petition the writ petitioners have, inter alia, prayed for the following reliefs:
"(a) A writ in the nature of Mandamus do issue commanding the Respondents Nos. 1 to 3 to act in accordance with section 33 of the Industrial Disputes Act, 1947 as well as the order passed by the Respondent No. 4 i.e. Assistant Labour Commissioner (Central), Calcutta-II;
(b) A writ in the nature of Mandamus do issue commanding the Respondents Nos. 1 to 3 to act in accordance with provisions laid down in the Shastri Award and natural justice;
(c) A writ in the nature of Mandamus do issue commanding the Respondents Nos. 1 to 3 to withdraw, cancel, or rescind the impugned and purported orders of transfer forthwith.
(d) A writ in the nature of Certiorari do issue requiring the Respondents to certify and transmit to this Hon'ble Court all records and proceedings relating to the subject matter in issue to that conscionable justice may be administered by quashing and/ or setting aside any order adversely passed against the interest of the petitioners;
(e) A writ in the nature of prohibition prohibiting the Respondents authorities to act in pursuance to the impugned orders or of transfer;
(f) A Rule Nisi in terms of prayers (a), (b), (c), (d) and (e) as above;
(g) An order of injunction be passed directing the Respondents Nos. 1 to 3 to act in accordance with Section 33 of the Industrial Disputes Act, 1947 as well as the order passed by the Assistant Labour Commissioner (Central), Calcutta-n immediately;
(h) An order of injunction be passed directing the Respondents Nos. 1 to 3 to act in accordance with Section 33 of the Industrial Disputes Act, 1947 and cancel and/or withhold the order of transfer with immediate effect;
(i) An order of injunction be passed directing tile Respondent Nos. 1 to 3 to act in accordance with the provisions as laid down in the Shastri Award with immediate effect;
(j) An ad-interim order be passed in terms of prayers (g), (h), and (i) as above;
(k) Such other or further order or orders be passed as this Hon'ble Court may deem fit and proper;
(I) Costs incidental to this application be paid by the Respondents to your petitioners".
2. In course of argument on behalf of the writ petitioners the learned Counsel called in question the transfer orders of petitioners Nos. 2,3,4,5,6,7, and 8.
3. Before proceeding further in the matter it is Useful to refer to a decision of Hon'ble Supreme Court in State of M.P. v. S.S. Kourav (1995-11-LLJ-849) wherein Supreme Court observed as follows:
"The Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore we cannot go into the expediency of posting an officer at a particular place".
4. It appears from paragraph 15 of the affidavit in opposition that following transfers have been made namely (i) Sri Ganesh Ch. Sarkar from Bangur Avenue Branch to Beliaghata Branch; (2) Bimal Chowdhury from Beliaghata Branch to Bangur Avenue Branch; (3) Ratan Chakraborty from Kalyani Branch to Abantipur Branch; (4) Subhas Debnath from Bhawnipur Branch to Chowranghee Square Branch; (5) Susanta Tarapdar from Shibpur Branch to Calcutta Overseas Branch; (6) Swapan Kumar, Banerjee from Calcutta Main Branch to Shibpur Branch.
5. It appears from paragraph 15 of the affidavit-in-opposition filed by the respondent that those transfers were routine transfers and out of total number of 304 employees excepting the six writ petitioners the remaining 298 employees have already joined their transferred place of posting.
6. The writ petitioners in paragraph 1 of the writ petition stated that the petitioner Nos. 3 to 8 are secretaries of the petitioner No. 1 union in different branches and or units. In paragraph 15 of the affidavit-in-opposition the respondents categorically averred that the writ petitioners with a calculated move to mislead this Court had described themselves as secretaries although facts remain that they are merely branch representatives and except "respondent No. 3" no one is an office bearer. It was categorically stated that the petitioner Nos. 3 to 8 are merely unit and/or branch representatives which would be evident from a letter dated May 27, 1994 written by the Kalyani unit of the petitioner union to the Manager of Kalyani Branch of the respondent Bank. The said letter was annexed as annexure 'C- 1' of the affidavit-in-opposition. It appears that Ratan Kumar Chakraborty (Petitioner No. 7) and Pradip Kumar Pal are elected representatives of the petitioner union, Kalyani unit. These statements in the affidavit-in-opposition have not been specifically denied by the petitioners in their affidavit-in-reply. In paragraph 9 of the affidavit-in-reply while dealing with paragraphs 15 and 16 of the affidavit-in-opposition the writ petitioners did not specifically deny the aforesaid categorical statement made by the respondents in their affidavit-in- opposition.
7. The writ petitioners in paragraph 6 of the writ petition quoted some provisions from Shastri Award (From paragraph 535 of the Shastri Award). While quoting from paragraph 535 they did not quote sub- paragraph 1 of paragraph 535 of the Shastri Award. The said sub- paragraph 1 of paragraph 535 of the Shastri Award is very important and without reading the said sub-paragraph 1 the intention expressed in the following sub-paragraphs of the said paragraph 535 cannot be properly understood. The said sub-paragraph 1 of paragraph 535 of Shastri Award reads as Follows:
"Every registered bank employees'. Union, from time to time, shall furnish the bank with the name of the President, Vice-President and the Secretaries of the Union".
8. The words "above-mentioned office bearers" mentioned in sub paragraph 2 of paragraph 535 refer to President, Vice-President and the Secretarties of the union and none else.
9. It is the case of the Writ petitioners that since the petitioner Nos.3 to 8 are secretaries of the union in different branches and/or units they cannot be transferred to any other branches or units because such transfer would be in violation of paragraph 535 of the Shastri Award. Since, as stated hereinabove, those writ petitioners are neither the Secretaries nor the President nor the Vice-President of the Union, they cannot get advantage of the provisions of paragraph 1535 of the Shastri Award and they are liable to be transferred to other branches and the units.
10.The writ petitioners in paragraph 13 of the Writ petition averred that they were transferred due to "the use of administrative power for illegitimate political purposes." The writ petitioners further averred in the instant case the respondents authorities had shown an undue favour to Bank of India Employees' Association affiliated to A.I.B.E.A. which is the tentacle of a political otopus i.e., the ruling political party of the State" In the affidavit-in-opposition the responlents in paragraph 19 indicated the total number of transferred employees from the different un-ions and the number of branch representatives transferred. It appears that the number of transerred employees affiliated with A.I.B.E.A. was 112 while the number of transferred employees affiliated with B.I.S.U. (W.B.)(to which the writ petitioners are affiliated) was only 62. Therefore, the allegations of the writ petitioners made n paragraph 13 of the writ petition also fail. That part the allegations made in paragraph 13 of the writ petition is vague and lacking in material particular. In paragraph 13 the name of the 'ruling political party" has not been disclosed.
11. Some of the principles laid down by Hon'ble Supreme Court in respect of judicial review of transfer cases are stated herein below:-
(a) An order of transfer is an incident of Government Service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. Union of India v. S.L. Abbas (1993-H-LLJ-626)
(b) It may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of insinuation and vague suggestions. Rajendra Roy v. Union of India .
(c) The Government employee holding a transferable post has no vested right to remain in a particular place of posting itself and cannot claim, as a matter of right, the posting in that place even on promotion. Union of India v. N.P. Thomas, (1993-I-LLJ-1063).
(d) Assessment of work must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially. There are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. Challenge in courts of a transfer, when the career prospects remain unaffected and also there is no detriment to the government servant must be eschewed and interference by courts should be rare. Such interference may be made only when a judicially manageable and permissible ground is made out. N.K. Singh v. Union of India (1995-1-LLJ-854).
(e) It is settled law that a transfer which is an incident of service not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. Abani Kanta Ray v. State of Orissa; (1995 Supp (4) SCC 169).
(f) It is needless to emphasis that a Government employee or any servant of a public undertaking has no legal right to insist for being posted at any particular place. It cannot be disputed that concerned employee holds a transferable post and unless specifically provided in his service conditions, he has no choice in the matter of posting (Chief General Manager, (Telecom), N.E. Telecom Circle v. Rajendra Chandra Bhattacharjee; )
(g) Transfer order challenged on ground of mala fide\ nature of evidence to establish mala fide has to be strong and convincing State of U.P. v. V.N. Prasad (Dr.) 1995 . Supp(2)SCC151)
(h) In absence of a legal and statutory right of the transferee, judicial review of the transfer of such an employee was held to be unjustified, Rajendra Chandra Bahattacharjee case (supra).
(i) In absence of strong and compelling grounds rendering the transfer order improper, or unjustified, such an order was held not subject to judicial review. Rajendra Chandra Bhattacharjee's case (supra).
12. In view of the facts and circumstances involved in the instant case as discussed hereinabove and in view of the principles of law laid down by the Hon'ble Supreme Court referred to hereinabove, this Court is of the view that no case could be made out by the writ petitioners and this Court cannot interfere with the transfer order of the concerned petitioners.
13. The respondents raised preliminary objection regarding maintainability of the writ petition. According to the respondents the writ petition is not maintainable. According to them he writ petitioners ought to have proceeded under provisions of Industrial Disputes Act, 1947. The writ petitioners contended that the writ petition is maintainable in law. This court assumes hat the writ petition is maintainable in law and proceeds accordingly and renders this decision holding that in view of the facts and circumstances involved in the instant case as discussed hereinabove and in view of the principles of law laid down by Hon'ble Supreme Court referred to hereinabove, this Court is of the view that no case has been made out for interfering with the orders of transfer of the concerned petitioners.
14. The writ petitioners referred to few decisions namely (1) Rohtas Industries v. Staff Union (1976-I-LLJ-274; (2) Assistant Personal Officers, S.Rly. v. K.T, Anthony (1978-11- LLJ-254)(Ker); (3) Union of India v. R. Reddappa (1993-n-LLJ- 1233XSC); (4) U.P. Financial Corporation v. Jain Cap (India) Pvt. Ltd. ; (5) State of Bombay v. United Motors Ltd. ; (6) Himmatlal v. State of M.P. . The respondents also referred to (1) (2) 1964 (I) LLJ 253 (3) (1993-H-LLJ-28) (4) (5) AIR 1995 SC 1995 (6) and (7) . All these cases have been cited regarding maintainability of the petition.
15. The writ petitioner argued that only their persons, their members, have been picked up and chosen for transfer to weaken the union. This argument of the writ petitioners is not based on facts in view of the statements made by the respondents in paragraph 19 of the affidavit-in-op-position.
16. The writ petitioners ought to have avoided making wrong statements in the writ petition and ought not to have suppressed sub-paragraph 1 of paragraph 535 of Shastri Award. Detailed discussions had been made hereinabove regarding such wrong statements and suppression of sub paragraph 1 of paragraph 535. This Court is of the view that by making such wrong statements and also by suppressing the said sub-paragraph the writ petitioners have not come to the Court with clean hands. In view of the facts and circumstances discussed hereinabove the writ petition is dismissed. Interim order is vacated. There shall no order as to costs.