Calcutta High Court
A.K. Chakroborthy vs New Bank Of India And Ors. on 6 December, 1993
Equivalent citations: (1993)2CALLT141(HC), (1995)ILLJ403CAL, 1993(5)SLR220
JUDGMENT B.R. Arora, J.
1. This is an application under Article 226 of the Constitution of India. The petitioner Sri A.K. Chakraborty is a Scale-Ill officer in New Bank of India which is described as a public corporation. He was initially appointed to the post of Manager of the said Bank as a Scale-II officer in June, 1977. He was promoted to the Middle Management Scale-Ill post in August, 1984. During his service career all these years he was posted at various places in different capacities, such as, at Calcutta, Patna, Ranchi, Dhanbad, Delhi. He was Deputy Regional Manager of West Bengal in the Regional Office in Calcutta from April, 1985 to October, 1988 and thereafter upto May 1989 he was deputed as Deputy Regional Manager, Bihar/Orissa. In May, 1989 he was transferred from the Regional Office, Calcutta to New Delhi where he worked upto October, 1990. Thereafter he was again transferred from New Delhi to Calcutta in October, 1990 and he worked as a Senior Manager of Burra Bazar Branch, Calcutta upto August, 1991. In this spell however he only worked for about 10 months in Calcutta before he was transferred to Patna as Deputy Chief in the Patna Regional Office. Annexure-A to the writ petition is his transfer order dated August 9, 1991 by which he was transferred from Calcutta to Patna as Deputy Chief. Pursuant to that order the petitioner joined the Patna Office on August 29, 1991.
2. It is the case of the petitioner that in spite of his great inconvenience and family problems arising out of the illness of his chronic heart patient wife he joined the Patna office leaving behind his family at Calcutta. After he joined the Patna Office the petitioner, on September 3, 1991, received a communication dated August 23, 1991 addressed to him by the Assistant General Manager (P), New Bank of India which is the Annexure-B to the writ petition whereby he was informed that his transfer to the Regional Office, Patna as Deputy Chief had been made in view of his unsatisfactory performance because of which his discretionary power had already been suspended. He was further informed by that communication that copy of the same was being placed in his personal file. It is the contention of the petitioner that on receiving the said letter dated August 23, 1991 he came to know that his transfer from Calcutta to Patna had been made not for any administrative reason or service exigency but as a punitive measure because of alleged unsatisfactory performance on his part. He then made several representations to the Authorities concerned and also prayed for re-transfer to Calcutta in view of inconvenience he had been facing for his premature transfer from Calcutta to Patna. All his representations having proved abortive the petitioner ultimately filed this writ petition for appropriate reliefs. It may be mentioned here that in reply to the petitioner's first two representations after transfer dated September 7, 1991 and September 25, 1991 which are Annexure-C and D respectively to the writ petition the petitioner was informed by the Assistant General Manager (P) by letter dated October 11, 1991 which is Annexure-A to the affidavit in reply that during the petitioner's tenure at the Branch Office, Burra Bazar, Calcutta he had allowed certain unauthorised accommodation to certain parties during credit restraint for which his discretionary powers were also suspended by the Regional Manager (RO, Calcutta) and that as the petitioner had allowed unauthorised accommodation during credit restraint imposed by Head Office/Reserve Bank of India his said action was viewed with serious concern at Head Office.
3. It appears that the Regional Manager, RO, Calcutta issued BB/354/91 dated June 28, 1991 to the petitioner while he was Senior Manager, Burra Bazar Branch, Calcutta requiring him to explain by July 6, 1991 as to why he made certain unauthorised accommodations mentioned therein during the period of credit restraints imposed by the Head Office as well as against the norms of the Head Office/RBI. In the said letter it was also mentioned that in the meantime the petitioner's discretionary powers had been suspended with immediate effect for the purpose of granting any sort of credit facility to the customers i.e., both fund based and non-fund based. Obviously, the instances of unauthorised accommodations contained therein related to the period during which the petitioner was working as Senior Manager in the Burra Bazar Branch after he was transferred to Calcutta from Delhi in October, 1990. The petitioner gave reply to the said letter by his letter dated July 5, 1991 explaining the matter. Reading the said letter of the Regional Manager dated June 28, 1991 along with the letter of the Assistant General Manager (P) dated August 23, 1991 referred to earlier it is pronouncedly manifest that the petitioner was transferred to Patna as Deputy Chief from the Burra Bazar Branch, Calcutta in view of his 'unsatisfactory performance' as indicated in the said letter of the Regional Manager dated June 28, 1991 and it was because of the instances mentioned therein the petitioner's discretionary power had been suspended with immediate effect as communicated by the said letter dated June 28, 1991. The explanation submitted by the petitioner in respect of the matter was however considered by the Assistant General Manager (P)/ Disciplinary Authority and it was communicated to the petitioner by the said Assistant General Manager (P) by his letter dated October 9, 1992 which is Annexure-X to the supplementary affidavit of the petitioner that the matter was placed before and considered by the said Assistant General Manager (P) as Disciplinary Authority and after considering the matter the said Authority advised Sri Chakraborty 'to be careful in future.'
4. By a circular dated September 20, 1988 certain guidelines were issued by the appropriate Authority regarding the exercise of the discretionary powers in respect of various loans and advances and in paragraph-7 thereof it was provided inter alia that any abuse of authority in the matter would attract disciplinary action. It may be mentioned here that disciplinary action may lead to imposition of penalty, either minor or major, as contemplated in paragraph-4 of the New Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1982 in accordance with the procedure prescribed therein. In respect of the alleged unsatisfactory performance of the petitioner during the period when he was Senior Manager of the Burra Bazar Branch, Calcutta as communicated to the petitioner by the Regional Manager under his letter dated June 28, 1991 referred to earlier the authority concerned after considering the explanation submitted by the petitioner obviously did not consider it necessary to take any disciplinary action against the petitioner or to proceed to take steps for imposing any penalty and rather dropped the matter by his letter dated October 9, 1992, as we have seen, by simply advising the petitioner to be careful in future. It is obvious, therefore, that the alleged unsatisfactory performance of the petitioner during his tenure as Senior Manager, Burra Bazar Branch, was not considered even by the concerned authority of the Bank, after consideration of the explanation submitted by the petitioner, to be of such serious nature as could warrant any disciplinary action for imposing any penalty envisaged under the said Discipline and Appeal Regulations, 1982 and the matter was rather dropped in October, 1992 by simply advising the petitioner to be careful in future.
5. In the supplementary affidavit filed on behalf of the respondents certain instances have been introduced where the petitioner was asked to show cause why the penalty of 'censure' should not be imposed on him for certain lapses alleged against him. Suffice it to say, on a perusal of those documents it appears that those matters were pertaining to a prior period and not pertaining to the period during which the petitioner was posted as Senior Manager of the Burra Bazar Branch of the Bank although the matters were dealt with by the Bank authorities subsequently and the action in respect of those matters were not yet finalised by the Bank authorities when the petitioner was transferred from Calcutta to Patna on an altogether different ground of unsatisfactory performance pertaining to the period when the petitioner was functioning as Senior Manager of Burra Bazar Branch.
6. One thing is clear from the materials which are forthcoming. The alleged lapses of the petitioner during the period when he was the Senior Manager of the Burra Bazar Branch were not considered by the concerned Bank authority, after considering the explanation submitted by the petitioner in the matter, as to be of such serious nature as could warrant any disciplinary action against the petitioner for imposing any of the penalties envisaged under the Discipline and Appeal Regulations of the Bank and the matter was rather dropped ultimately on simply advising the petitioner to be careful in future. It also appears that even before the explanation of the petitioner in the matter was considered, he was transferred from the Burra Bazar Branch to Patna and he was informed after he joined at Patna that his transfer to Patna was made in view of his unsatisfactory performance for which his discretionary power had already been suspended. It is now sought to be stated on behalf of the respondents that the transfer of the petitioner to Patna from Burra Bazar, Calcutta was a routine transfer and was not punitive or penal. In my opinion such an innocent explanation on the part of the respondents now is too late to be worthy of any credence when the respondents expressly communicated to the petitioner in writing immediately after his transfer that his transfer to Patna was made because of his unsatisfactory performance which again the authorities themselves, after considering the petitioner's explanation later, did not find to be of such serious nature as could even warrant drawing up of any disciplinary proceeding, not to speak of imposing any penalty under the Discipline and Appeal Regulations of the Bank.
7. There is no doubt that the bank authorities have a right to take disciplinary action against an erring official of the Bank by following the procedure prescribed under the rules and regulations. There is also no doubt that the bank authorities have a right to transfer an official from one place to another, even at a distant place if the exigency of administration or service warrants the same. The authorities may also make transfers even to distant places as routine measure where such routine transfer at reasonable interval of time is, as a matter of general policy, considered necessary or desirable, either for all levels of employees or for employees of certain levels for maintaining dynamism and efficiency of service and for avoiding undesirably growth of vested interest to the detriment of the service objectives. But to make routine transfers more or less in a cyclic order at reasonable intervals of time is certainly a different matter than making of a transfer to a distant place within a short period on the pronounced ground of unsatisfactory performance on the part of an incumbent. No doubt the authorities also have a right to withdraw an incumbent from a post where he is considered unsuitable and to shunt him to a place where he is considered suitable but that must be done with a bona fide purpose of service exigency and not for the oblique purpose of putting the incumbent concerned into punitive inconvenience by posting him unnecessarily to a distant place with a pronounced stigma of unsatisfactory performance or inefficiency. Certainly the authorities concerned cannot exercise the power of transfer as a penal or punitive measure or as a punishment on any official. In the present case, as we have found, the respondents not only transferred the petitioner from Calcutta to Patna within about 10 months of his posting to Calcutta from Delhi but also announced in writing after the petitioner joined at Patna that his transfer was made in view of his unsatisfactory performance which itself is a pronounced indication that the transfer was penal in nature. Even if the petitioner was considered prima facie unsuitable for holding the post which he was holding at the Burra Bazar Branch in view of his performance there and even if it was considered necessary that pending further inquiry in the matter his posting to any non-sensitive post was desirable he could or should have been posted elsewhere in Calcutta instead of sending him to a far off place at Patna within 10 months of his transfer from Delhi to Calcutta. The respondents did not come forward with any plea that it was not possible to find any suitable alternative posting for the petitioner at Calcutta at that time. Obviously the petitioner could not object to his transfer to Patna immediately after the order was passed because at that time he was not informed of the real reason of his transfer which was only done after he joined his new posting at Patna when only he could come to know that his transfer to Patna was rather penal in nature, the reason for such transfer being the alleged unsatisfactory performance on his part at Burra Bazar Branch.
8. The learned Advocate for the petitioner attracted my attention to the decision of Punjab & Haryana High Court in Jagdish Chander v. State of Haryana, 1991 (6) SLR 127 wherein it was reiterated that any order of transfer which is arbitrary, unreasonable and capricious and proceeds on extraneous considerations will be violative of Article 14 of the Constitution of India. He also attracted my attention to the decision of a Division Bench of this Court in Mukul Mitra v. Union of India, 1982 (II) CHN 157 where also order of transfer was quashed. The decisions reported in AIR 1981 SC 1577 (Santi Kumari v. Regional Deputy Director, Health Services, Patna) and 1982(1) SLR (Cal) 402 (State of West Bengal v. C.R. Shit) which were relied upon by the learned Advocate for the respondents however do not help the respondents in this case because here it is evident that the transfer of the petitioner to a far off place like Patna was made not due to any exigency of service nor due to any genuine administrative reason and the question of onus to prove mala fides is of no significance in view of the glaring fact emerging from the materials on record as discussed that the transfer of the petitioner in the present case was made as a punitive measure and not for any exigency of service nor even as a normal routine transfer. Since in the present case it is writ large in view of the materials on record that the transfer of the petitioner from the Burra Bazar Branch, Calcutta to Patna was made as a penal measure and that too on allegation of unsatisfactory performance which was subsequently found by the Bank authorities not to be of such nature as could warrant drawing up of any disciplinary proceeding or imposition of any penalty under the Discipline and Appeal Regulations of the Bank, this Court in sound exercise of its writ jurisdiction will definitely direct the respondents to undo the mischief of such arbitrary and penal transfer and bring back the petitioner from Patna to Calcutta.
9. The writ petition is accordingly allowed and the respondents are directed by a writ of mandamus to transfer back the petitioner from Patna to any post in Calcutta as may be considered suitable within a fortnight from this date. The letter dated August 23, 1991 issued by the Assistant General Manager (P) of the New Bank of India which is Annexure-B to the writ petition is hereby quashed and the respondents are directed not to place the same in the personal file of the petitioner. The parties will however bear their own cost. The writ petition stands disposed of accordingly.