Calcutta High Court
Andaman And Nicobar Co-Operative Bank ... vs Lieutenant Governor And Ors. on 1 January, 1800
Equivalent citations: (1996)2CALLT287(HC)
JUDGMENT Sudhendu Nath Mallick, J.
1. This writ application has been filed by the Andaman and Nicobar State Co-operative Bank Employees Union through their General Secretary, challenging the transfer order being No. 172 dated 1.5.1995 issued by the Managing Director, the respondent No. 5 of the Andaman and Nicobar State Co-operative Bank Limited, Port Blair thereby transferring 70 employees of the Bank different branches of the Bank in the Islands. It is asserted in the writ application that the impugned transfer order affecting 70 employees of the Bank at one stroke is wholly malqjlde with the sole object to demoralise the newly constituted Union of the employees inasmuch as, by the said order the Vice President of the Union along with 2 Executive Members have also been transferred. The respondent No. 3 is the Chairman of the said Andaman and No. 4 is the Chairman of the said Andaman and Nicobar State Co-operative Bank Limited. The writ application has been contested on behalf of the respondent No. 4 an 5. Before going into the merits of the application it would be helpful to refer to certain admitted and undisputed facts on record as follows:-
2. The Andaman & Nicobar State Co-operative Bank Ltd. (hereinafter referred to as Bank) has 31 branches in the Islands and the total No. of employees of the Bank is 240. The Employees Union was registered on 20.1.1995 of which 160 employees are the members. There are 10 office bearers of the Union to work for a period of 2 years commencing from 7.12.1994. The President of the Union is not an employee of the Bank. It has been submitted by Miss. Shyamall Ganguli, the learned advocate appearing for the petitioner that the General Secretary of the Union is a 4th Grade employee. It is also admitted that out of the 9 office bearers of the Union who were the employees of the Bank only 3 have been transferred under the impugned order. They are to be found at SI. Nos. 31,42 and 50 of the impugned order. The impugned order is to be found as Annexure 'C to the writ application.
3. In the impugned order 57 employees are officers (vide SI. No. 8 to 56 and SI. No. 70 of the impugned order) the rest of the employees so transferred belongs to Clerical staff.
4. It is stated in the writ application that Immediately after the formation of the Union the Bank authorities showed hostile attitude, so much so the respondent No. 5 made a door to door campaign to the houses of some of the employees and forced them to resign from Union or to forego their Jobs. It is ascerted in the writ application that several employees have been transferred to Nicobar areas under the impugned transfer order where there is no accommodation for them nor the management has taken any steps to arrange for their accommodation there, that the impugned order of transfer has been highlighted as an order of promotion although in fact the pay scale remains the same only some incremental benefits have been given, that many of the employees who have been working at port Blair since their appointment has not been transferred, that difficulties of the female employees of the Bank in the matter of transfer has not been considered, and that in view of the above circumstances the impugned transfer order has been issued only to frustrate the very object and purpose of the Union while there has been no exigency of the service to issue such transfer order.
5. It is also one of the ground in the writ application that the Bank authorities have transferred 70 employees being oblivious of the enormous expenditure involved in such a mass transfer.
6. At the time of hearing it is admitted by both the contesting parties that out of the 70 employees so transferred 68 have already Joined while one is dead (SI. No. 12 of the impugned transfer order annexure 'C') and another Is on medical leave (vide SI. No. 20 of Annexure 'C of the impugned transfer order).
7. It also appears from the materials on record that none of the employees so transferred filed any representation to the Bank authorities for cancelling or modifying the order of the transfer on any ground whatsoever.
8. From Annexure 'B' to the affidavit-in-opposition filed on behalf of the respondents No. 4 and 5 it appears that after the impugned order was issued there was a meeting between the respondent Nos. 3 and 4 on one side and some representatives of the Union on the other side on 19.6.1995. All the grievances subsequently voiced in the instant writ application were ventilated in the said meeting and the entire matter was discussed in the said meeting. The Union representatives were told that 3 office bearers of the Union under order of transfer were working In the Head Quarters from 25.3.1982, 1.9.1983 and 1.2.1984 respectively and have not gone Into any part of these Islands and that the transfer in respect of 70 employees was issued In the interest of the Bank.
9. From the proceeding of the said meeting it also appears that before issuing the transfer order the Managing Director issued a general circular to all the employees under No. SCB/4-6/94/1047 dated 18.3.1995 about the authority's intention to transfer. This letter is also the part of the annexure 'B' of the affidavit-in-opposition. It also appears from the said proceeding that one office bearer of the Union Smti. Surativati Lall under order or transfer made a grievance .to the Managing Director that she should be transferred to a place where her husband was working, and another office bearer of the Union; Kumarl Blsan Kumarl Tiwari also submitted that there was no quarters available at the place of her posting. Smti Surativali Lall was however, advised by the Bank Authorities to give station of her choice in writing for consideration and Kumari Bisan Kumari Tiwari was told that provision of accommodation was not her service condition and she was paid House Rent Allowances according to rules and as available to all the other employees.
10. Now the question arises whether the Impugned order of transfer is mala fide in nature and should be Interfered with by this Court while exercising its writ jurisdiction. The law on this point is quite well settled. Transfer of a public servant from one post to another is as a general rule a matter of discretion of the competent authorities to be exercised in the interest of Public service. But even then a writ of mandamus may be invoked where the order violates the statutory rule or where it is mala fide or where the order Is penal Involving reduction in pay or grade or status of such public servant.
11. After hearing Miss. S. Ganguli, the learned advocate appearing for the petitioner and Mr. H.R. Bahadur, the learned advocate appearing for the respondents No. 3 and 4 and after going through the materials on record it does not appear to this Court that the Impugned order is mala fide in any manner whatsoever or violative of any of the rules framed by the Bank In this regard or it is a penal. This Court Is not convinced that this order has been issued only to repressed or demoralise the newly constituted union of the employees or to unnecessarily harass the employees and to panelise them for no fault on their part. It is undisputed that by the impugned order of transfer there has been no reduction of rank or status or pay of the employees concerned. In. a Banking organisation such as the present one where 240 employees are working it is not unusual to issue a general transfer order touching 70 employees who are undisputedly at the place of their initial posting for quite a long period of time.
12. From the materials on record this Court Is fully satisfied with the order of transfer made in the exigency of the service, but the Bank which has 31 branches in these Islands.
13. This Court is also satisfied that before the impugned transfer order was issued the Bank authorities, specially the Managing Director (respondent No. 5) took measures by issuing a circular about the proposed transfer so that the employees were not taken by surprise and that even after the impugned order was issued the respondent No. 4 and 5 met the representatives of the Union on 19.6.1995 and the order of transfer was discussed threadbare explaining to them that there was nothing mala fide In the same. It has been rightly pointed out by Mr. H.R. Bahadur, the learned advocate for the respondents No. 4 and 5 that out of the 70 employees 57 are Officers an enjoying the scale of pay and emoluments of Officers and it is surprising to see that the Union which Is meant for the Group 'C and 'D' employees has moved this Court in the instant writ application also on behalf of the officers. It is submitted by Mr. H.R. Bahadur that the Bank Officers cannot be members of such an Union with a object of Trade Union activities. Be that as it may, it is admitted that 68 of the so transferred officers have all reported to duty at their respective places of posting and have drawn their transfer allowances and grant etc. The concern shown by the Union in the writ petition about enormous expenditure involved in the mass transfer does not inspire any confidence or applause when none of them have sacrificed their financial entitlements on the eve of their transfer.
14. It has also been contended by Miss. S. Ganguli that the Union submitted a representation to the Registrar of Co-operative Societies, Andaman and Nicobar Islands against the impugned transfer order before filing this writ application which was not entertained by the said authority on the ground that the dispute being one relating to transfer of employees as per condition of service of employees is not entertainable in view of the provisions of Section 55 of the Andaman and Nicobar Islands Cooperative Societies Regulation 1973 (vide annexure 'F' and 'G' of the writ petition). There is nothing wrong or illegal or Improper in the order of the Registrar of the Co-operative Societies in not entertaining the said dispute.
15. Miss. Shyamali Ganguli has further submitted that by the impugned order of transfer the employees who are husband and wife by relation have been transferred to different places but in the writ application not particulars have been given nor in the meeting help between the respondent No. 4 and 5 and the representative of the Union on 19.6.1995 a single case was cited in this regard except that of Smti. Surativati Lai who was asked by the management to intimate the station of her choice so that the authority could consider her case. It is not known whether the said employee has exercised her choice.
16. At the time of argument Miss. Shyamali Ganguli submitted that the employee at SI. No. 46 of the transferred order is the wife of the employee at SI. No. 1. It appears from the impugned order that SI. No. 1 has transferred to Garacharma branch as Branch Manager while the employee at Si. No. 46, his wife has been transferred to Wimberlygung branch as Cashier. It is admitted by both the parties that both these stations are negotiable by boat.
17. At the time of going through the writ application it has come to my notice that the affidavit supporting the writ application has been sworn by Mr. S. Prasad alleging to be General Secretary of the petitioner Union but in the cause title his name does not appear. Furthermore at paragraph 2 of the affidavit it is not stated, which of the statement made in the writ application are true to his knowledge and which are his "humble submission" in fact the space has been left blank. The writ application is patently defective on that score.
18. Shri Hemraj Bahadur has submitted that this writ application is bad in law view of the fact that the Andaman an Nicobar State Co-operative Bank Limited which is a corporate body has .not been Impleaded in the writ application. But I do not think this to be a defect in view of the provisions of the Bye Laws of the said Bank which have been registered by the Registrar of the Co-operative Societies, Andaman & Nicobar Islands, Prot Blair under Section 10(6) of the Andaman and Nicobar Co-operative Societies Regulation Act 1973, which provides that the Managing Director shall be the officer to sue or to be sued on behalf of the Bank [vide Bye Law No, 33(3) (c) (ii) of the Bye Law No, 46 amended upto 2nd December, 1988.]
19. Mr. H.R. Bahadur has also argued that this writ application does not lie against the Bank, in view of the provisions of Article 12 of the Constitution of India. But it is undisputed that the Andaman and Nicobar Islands State Co-operative Bank Limited is a public authority exercising the statutory powers and it has its own Bye Laws approved and registered by the Registrar of Co-operative Societies, Andaman and Nicobar Islands under Section 10{6) of the Andaman and Nicobar Co-operative Societies Regulation Act 1973. It appears from the materials on record that the instant Bank has the power to issue Bye laws which have the force of law after being approved by the competent authority i.e. Registrar of the Co-operative Societies, Andaman and Nicobar Islands,
20. Shxi H.R. Bahadur referred to Indian Co-operative Cases Vol. 7 where a Full Bench decision of the Andhra Pradesh has been reported in page 71 (Sii Konascema Co-operative Central Bank Ltd, Arjudapwam and Anr. v. N. Seetharama Rqju). It has been held there in the facts and circumstances of the case considered there that the Bye Laws which merely constitute terms of contract between a Society and its employees do not have, or do not gain the force of law even where Society can be characterized as 'State' within the meaning of Article 12. It is also been found that if a particular Co-operative Society can be characterized as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would be an authority within the meaning, and for the purpose of Article 226 of the Constitution. In such a situation, an order passed by a Society against its employees in violation of the Bye Laws, can be corrected by way of a writ petition. But in our case there is no such Bye Laws as yet framed by the Bank concerning the service condition or most specifically the method of transfer. It has been observed there by the Andhra Pradesh High Court that what is material is the nature of the statutory duty placed upon it, and the Court will enforce such statutory public duty. In our case the Union has challenged the transfer order before this Court in its writ Jurisdiction on the ground that it is malajlde meant only to demoralise and zeopardise the interest of the Union.
21 After consideration of all the facts and circumstances as manifested on the materials on record this court does not found any substance in the writ petition which must fail. The impugned transfer order does not appear to be tainted in any manner whatsoever on the other hand ; this Court is satisfied that the Bank authorities have issued their orders In the exigency of public service and better management of the Bank taking all resonable care and caution in this regard.
Accordingly, the writ application is dismissed on contest against the respondent No. 4 and 5 with costs assessed at 100 GMs which the petitioner is directed to pay within one month from this day and it is dismissed against the rest without costs.