Kerala High Court
Bubu K.V vs Indian Overseas Bank on 22 October, 2024
Author: Murali Purushothaman
Bench: Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
WP(C) NO. 33124 OF 2024
PETITIONER:
BUBU K.V, AGED 36 YEARS
ASSISTANT MANAGER,
INDIAN OVERSEAS BANK KOZHIKODE MAIN
BRANCH, EMSONS ARCADE,
CHERUTTY ROAD, KOZHIKODE - 673032
BY ADVS.
B.RAGHUNATHAN
M.SALIM
R.SRINATH
K.JALADHARAN
V.M.JACOB
P.KARTHIKEYAN
RESPONDENTS:
1 INDIAN OVERSEAS BANK
REPRESENTED BY MANAGING DIRECTOR AND CEO,
INDIAN OVERSEAS BANK CENTRAL OFFICE,
763 ANNASALAI, CHENNAI., PIN - 600002
2 GENERAL MANAGER,
HUMAN RESOURCE DEVELOPMENT DEPARTMENT
SUPERVISORY, INDIAN OVERSEAS BANK CENTRAL
OFFICE, 763 ANNASALAI,
CHENNAI., PIN - 600002
3 CHIEF MANAGER,
PERSONNEL ADMINISTRATION DEPARTMENT SUPERVISORY,
INDIAN OVERSEAS BANK CENTRAL OFFICE,
763 ANNASALAI, CHENNAI., PIN - 600002
4 CHIEF REGIONAL MANAGER,
INDIAN OVERSEAS BANK REGIONAL OFFICE,
VETTUKATTIL BUILDING, JOS JUNCTION,
WP(C) 33124, 33114 & 33133 of 2024
: 2 :
2024:KER:78326
ERNAKULAM, KOCHI., PIN - 682016
BY ADVS.
Sunil Shankar A
VIDYA GANGADHARAN(K/000424/2020)
DEVAYANI NAIR T.H.(K/1531/2019)
ELVIN PETER P.J. (SR.)(K/000445/1990)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22.10.2024, ALONG WITH WP(C).33114/2024,
33133/2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) 33124, 33114 & 33133 of 2024
: 3 :
2024:KER:78326
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA,
1946
WP(C) NO. 33114 OF 2024
PETITIONER:
VINEETH CHELEKKAT, AGED 35 YEARS
ASSISTANT MANAGER,
INDIAN OVERSEAS BANK KARUVANNUR BRANCH,
THRISSUR., PIN - 680711
BY ADVS.
B.RAGHUNATHAN
M.SALIM
R.SRINATH
K.JALADHARAN
V.M.JACOB
P.KARTHIKEYAN
RESPONDENTS:
1 INDIAN OVERSEAS BANK
REPRESENTED BY MANAGING DIRECTOR AND CEO,
INDIAN OVERSEAS BANK CENTRAL OFFICE,
763 ANNASALAI, CHENNAI., PIN - 600002
WP(C) 33124, 33114 & 33133 of 2024
: 4 :
2024:KER:78326
2 GENERAL MANAGER,
HUMAN RESOURCE DEVELOPMENT DEPARTMENT
SUPERVISORY, INDIAN OVERSEAS BANK CENTRAL
OFFICE, 763 ANNASALAI,
CHENNAI., PIN - 600002
3 CHIEF MANAGER,
PERSONNEL ADMINISTRATION DEPARTMENT
SUPERVISORY, INDIAN OVERSEAS BANK CENTRAL
OFFICE, 763 ANNASALAI,
CHENNAI., PIN - 600002
4 CHIEF REGIONAL MANAGER,
INDIAN OVERSEAS BANK REGIONAL OFFICE,
VETTUKATTIL BUILDING, JOS JUNCTION,
ERNAKULAM, KOCHI., PIN - 682016
BY ADVS.
Sunil Shankar A
VIDYA GANGADHARAN(K/000424/2020)
SANDHRA.S(K/001610/2021)
ELVIN PETER P.J. (SR.)(K/000445/1990)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLLY
HEARD ON 22.10.2024, ALONG WITH WP(C).33124/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C) 33124, 33114 & 33133 of 2024
: 5 :
2024:KER:78326
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA,
1946
WP(C) NO. 33133 OF 2024
PETITIONER:
PRABIN.N, AGED 37 YEARS
MANAGER I-LINE,
INDIAN OVERSEAS BANK KOLLENGODE BRANCH,
HIZA TOWER, POLLACHI ROAD, PALAKKAD., PIN -
678506
BY ADVS.
B.RAGHUNATHAN
M.SALIM
R.SRINATH
K.JALADHARAN
V.M.JACOB
P.KARTHIKEYAN
RESPONDENTS:
1 INDIAN OVERSEAS BANK
REPRESENTED BY MANAGING DIRECTOR AND CEO,
INDIAN OVERSEAS BANK CENTRAL OFFICE,
763 ANNASALAI, CHENNAI., PIN - 600002
WP(C) 33124, 33114 & 33133 of 2024
: 6 :
2024:KER:78326
2 GENERAL MANAGER,
HUMAN RESOURCE DEVELOPMENT DEPARTMENT
SUPERVISORY, INDIAN OVERSEAS BANK CENTRAL
OFFICE, 763 ANNASALAI,
CHENNAI., PIN - 600002
3 CHIEF MANAGER,
PERSONNEL ADMINISTRATION DEPARTMENT
SUPERVISORY, INDIAN OVERSEAS BANK CENTRAL
OFFICE, 763 ANNASALAI,
CHENNAI., PIN - 600002
4 CHIEF REGIONAL MANAGER,
INDIAN OVERSEAS BANK REGIONAL OFFICE,
VETTUKATTIL BUILDING, JOS JUNCTION,
ERNAKULAM, KOCHI., PIN - 682016
BY ADVS.
Sunil Shankar A
VIDYA GANGADHARAN(K/000424/2020)
DEVAYANI NAIR T.H.(K/1531/2019)
ELVIN PETER P.J. (SR.)(K/000445/1990)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 22.10.2024, ALONG WITH WP(C).33124/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(C) 33124, 33114 & 33133 of 2024
: 7 :
2024:KER:78326
JUDGMENT
Since common questions arise for consideration in these writ petitions, they were heard together and are disposed of by this common judgment.
WP(C) No.33124 of 2024
2. The petitioner was appointed as Probationary Officer in the 1st respondent, a public sector Bank, on 15.07.2013. Upon confirmation, he was appointed as an Assistant Manager on 14.07.2014. After working in various branches, he was posted as Assistant Manager at the Kozhikode Main Branch on WP(C) 33124, 33114 & 33133 of 2024 : 8 : 2024:KER:78326 04.05.2024.
3. Review meetings are conducted by the Regional Managers of the Regional Offices to assess the performance of branches under their supervision. A Review meeting was called for by the 4th respondent, the Chief Regional Manager on 07.09.2024 (Saturday) of the Second Line Managers (Assistant Managers) of the Ernakulam Region to discuss the progress of account opening and the action plan of the Branch for compensating the gap of SB/DC accounts opened till date. The petitioner states that, in the said meeting, based on recent customers' feed back, the petitioner pointed out WP(C) 33124, 33114 & 33133 of 2024 : 9 : 2024:KER:78326 issues with Unified Payments Interface (UPI) transactions and digital transactions, which have impacted the Branch's efforts in client acquisition and retention. He states that the said suggestion was made with the intention of improving Branch Performance and service quality.
4. After the review meeting was over, on the same day, the Assistant General Manager, Human Resources Management Department issued Ext.P3 letter alleging that the petitioner did not come prepared for the review and that he started arguing with the Chief Regional Manager and thereby committed act of WP(C) 33124, 33114 & 33133 of 2024 : 10 : 2024:KER:78326 insubordination, and directing him to submit an explanation within seven days as to why disciplinary action should not be initiated against him. The relevant portion of Ext.P3 letter is extracted hereunder:
"Sub: Act of Insubordination We refer to the captioned and advise that as per the instructions of the Corporate Office. Every Branch to open minimum 5 SB account per day and 10 CD accounts per month. As per the records of your branch performance of your branch is as under...
Month No.of SB CD
worki
ng
days
ACS Zer ACS Ne ACS Zer ACS Net
Open o Close t Opene o Closed
ed Bal d d Bal.
.
July 25 65 13 9 4 4 1 0 3
3
August 25 60 11 8 4 7 0 0 7
WP(C) 33124, 33114 & 33133 of 2024
: 11 :
2024:KER:78326
1
Sep 5 12 2 2 8 2 0 0 2
Total 137 26 19 9 13 1 0 12
2
As per the corporate expectations you were supposed to open 275 SB accounts and 24 CD accounts for the month of July, August, and September (06.09.2024) but your branch has opened only 92 SB and 12 CD accounts which is quite unsatisfactory.
Regional Office has called for a review of Manager 2 nd line on 07.09.2024 at 5.00 pm to discuss the progress of account opening and the action plan of the branch for compensating the gap of SB/DC Accounts opened till date. It is reported that you did not come prepared for the review and could not submitted any action plan for the same, rather you started arguing with The Chief Regional Manager and has committed the act of insubordination.
You are advised to submit your explanation within 07 days from the date of receipt of this letter that why disciplinary action should not be initiated against you. WP(C) 33124, 33114 & 33133 of 2024 : 12 : 2024:KER:78326 Please note that in case we do not receive your reply we shall be compelled to take administrative/disciplinary actions against you as deemed fit."
5. In response to Ext.P3, the petitioner submitted Ext.P4 explanation dated 13.09.2024, stating that he had only made suggestions for improving Branch performance and highlighted the challenges faced by ground level managers who deal with the public. It is stated therein that the essence of his address during the meeting was to request additional support and to discuss strategic adjustments that might better align with the ground realities faced by the Branch and it was in no way meant to WP(C) 33124, 33114 & 33133 of 2024 : 13 : 2024:KER:78326 challenge or undermine the authority of the 4 th respondent or the policies of the organisation. It is also stated that he had never engaged in arguing with the 4th respondent and only tried to convince him about the difficulties faced by the functionaries at the Branch.
6. On 07.09.2024 itself, Ext.P5 communication from the Assistant Manager of the Regional Office was received by the Branch Manager of Kozhikode Main Branch by e-mail at 6.50 p.m., directing to depute the petitioner to the Regional Office, Ernakulam from 09.09.2024, the next working day, until further instruction. Ext.P5 reads as under:
WP(C) 33124, 33114 & 33133 of 2024 : 14 : 2024:KER:78326 "Kindly depute Mr. Bubu. K.V. (Roll No.57007) to Regional Office-
Ernakulam from Monday
(09.09.2024) until further
instruction.
This has the concurrence of our CRM Sir."
7. On 09.09.2024, the petitioner was issued with Ext.P6 order transferring him to Regional Office, Guwahati. Ext.P6 order reads as follows:
"Transfer We advise having transferred you to REGIONAL OFFICE-GUWAHATI where you should report immediately on relief for further posting."
WP(C) 33124, 33114 & 33133 of 2024 : 15 : 2024:KER:78326 The petitioner states that the order transferring him to Guwahati, one of the farthest stations, is a punitive and mala fide action, vitiated by malice in law.
8. On 12.09.2024, the petitioner submitted Ext.P9 request before the 2nd respondent, the General Manager, Human Resources Development Department through the 4th respondent for reconsideration of his transfer.
9. It is contended that as per Ext.P7 transfer policy of the Bank, the petitioner has to be retained in the same Branch for a minimum period of three years and reasons for transfer must be stated in the transfer order. It WP(C) 33124, 33114 & 33133 of 2024 : 16 : 2024:KER:78326 is further contended that as per Ext.P7, no staff shall be transferred for non performance except after giving an opportunity to improve his work performance and non performance should be justified and recorded before effecting the transfer. The petitioner states that the action alleged against him in Ext.P3 show cause notice will not amount to any act of insubordination as per Indian Overseas Bank Officer Employees' (Conduct) Regulations, 1976. It is contended that, expression of opinion or suggestions to improve the over all performance of the Branch in a review meeting cannot be construed as an act of WP(C) 33124, 33114 & 33133 of 2024 : 17 : 2024:KER:78326 insubordination and the same is part of his fundamental right of freedom and expression. The petitioner further states that upon receiving Ext. P5 order of deputation, Sri. Sam Vincent, the Branch Manager of Kozhikode Main Branch where the petitioner is working, sought the intervention of the respondents, as the deputation of the petitioner to the Regional Office would affect the functioning of the Branch. It is stated that on account of raising this concern, Sri. Sam Vincent was transferred to the Patna Regional Branch. The petitioner states that Ext.P6 transfer order has detrimentally affected his family life consisting WP(C) 33124, 33114 & 33133 of 2024 : 18 : 2024:KER:78326 of his wife, aged parents and six year old son. The petitioner impugns Exts.P3 and P6, contending that they were issued as part of harassment and victimization, and that the transfer order amounts to an abuse of power, issued in lieu of punishment, and is violative of Articles 14, 16(1), and 19(1)(g) of the Constitution of India.
10. This Court, by order dated 13.09.2024, stayed Ext.P6 order of transfer for a period of one month.
11. A counter affidavit as well as an application to vacate the stay has been filed by the respondents. The affidavit is sworn in by WP(C) 33124, 33114 & 33133 of 2024 : 19 : 2024:KER:78326 the 4th respondent, the Chief Regional Manager, on behalf of respondents 1 to 3 as well. In the counter affidavit, it is stated that as per Regulation 47 of the Indian Overseas Bank Officers' Service Regulations, 1979, every officer is liable for transfer to any office or branch of the Bank or to any place in India. It is stated that an online review meeting was convened on 07.09.2024 by the Regional Manager of the Ernakulam Region of the Bank with the Second Line functionaries of all the branches in the Region and each officer was asked about the present position of the account opening in their respective branches and also WP(C) 33124, 33114 & 33133 of 2024 : 20 : 2024:KER:78326 advised to submit ideas and strategies adopted by them for opening more accounts and the petitioner raised the issue of delay in UPI transaction of the Bank and he was informed that the matter has been taken up with the IT Department of the Bank at its Central Office. It is further stated that when the petitioner was asked to submit the performance of his Branch regarding account opening, he started arguing with the Regional Manager (the deponent) and retorted with the following words: "first you address the issue of UPI and then ask for targets or you can transfer me, surrender me or suspend me. I appeal to all other officers WP(C) 33124, 33114 & 33133 of 2024 : 21 : 2024:KER:78326 also to raise voice". It is stated that the petitioner in online meeting, in front of all other 88 participants, was pursuing an obstructionist stance against the Management, and was actively discouraging other officers from fulfilling their works. Considering the insubordination and open challenge to the Regional Manager by the petitioner and also to maintain discipline in the Region, Ext.P3 notice was issued to the petitioner calling for an explanation for his insubordination. The petitioner was also advised to report to Regional Office on 09.09.2024. The petitioner was making all efforts to undermine the WP(C) 33124, 33114 & 33133 of 2024 : 22 : 2024:KER:78326 Regional Management and also caused insubordination amongst other staff members of the Region. Hence, in order to maintain the discipline amongst the officers in the Region, it was decided to surrender him from the Region to avoid further acts of indiscipline and the Central Office of the Bank has, vide Ext.P6 order, transferred the petitioner to Regional Office, Guwahati, on administrative grounds, taking into account the requirement of officers there. The petitioner was relieved on 10.09.2024, but he refused to accept the relieving order and the same was communicated to him in his official e-mail id WP(C) 33124, 33114 & 33133 of 2024 : 23 : 2024:KER:78326 and WhatsApp number. The login credentials of the petitioner was transferred to Guwahati Regional Office consequent upon his transfer. The contention of the petitioner that the order of transfer was issued by way of punishment is denied.
12. A reply affidavit has been filed by the petitioner denying the averments in the counter affidavit. The petitioner states that though he has raised the issue with regard to the delay in processing UPI transaction of the Bank, he never argued with the 4 th respondent and he never uttered the words as stated in paragraph 4 of the counter affidavit. He has WP(C) 33124, 33114 & 33133 of 2024 : 24 : 2024:KER:78326 also denied the allegation regarding insubordination or any open challenge to the Regional Manager. He further states that, pursuant to his deputation as per Ext.P5, he reached the Regional Office at Ernakulam on 09.09.2024 and he was made to sit on the visitor's sofa for the entire day. He was also given to understand that all other staff at the office were instructed to keep away from him, and he was restricted from speaking with any of the staff at the Regional Office. He denies the averment in the counter affidavit that the transfer was due to administrative exigencies and states that, had it been so, it would have WP(C) 33124, 33114 & 33133 of 2024 : 25 : 2024:KER:78326 been mentioned in the transfer order. The petitioner points out that, on one hand, the respondents have stated that the transfer order was issued to enforce discipline in the Region; while on the other hand, they have stated that the transfer was made to meet the requirement of officers in the Guwahati Region. It is contended that the respondents cannot supplement reasons which are not there in the transfer order. It is further stated that after this Court stayed the order of transfer, he was unable to sign his biometric attendance, lost access to Finacle for a while, was not permitted to attend subsequent review meetings, and his WP(C) 33124, 33114 & 33133 of 2024 : 26 : 2024:KER:78326 salary was also delayed. It is reiterated that the transfer order is vitiated by mala fides and is the result of a vindictive action. It is also stated that the transfer order must stand on its own and cannot be supplemented by the reasons given in the affidavit.
13. Heard Sri. B. Raghunathan, the learned counsel for the petitioner and Sri. Elvin Peter P.J., the learned senior counsel for the respondents.
14. Sri. Raghunathan would submit that Ext. P6 order transferring the petitioner to Guwahati is punitive in nature and a mala fide action, vitiated by malice in law. He submits WP(C) 33124, 33114 & 33133 of 2024 : 27 : 2024:KER:78326 that the petitioner raised the issue regarding the delay in processing UPI transactions at the review meeting, a platform for Second Line officers to submit ideas and strategies adopted by them for opening more accounts. The Chief Regional Manager did not appreciate this, which led to the issuance of Ext.P3 show cause notice alleging insubordination and Ext.P6 order of transfer. Sri. Raghunathan submits that the petitioner has not raised any challenge to the Regional Manager and he has filed reply affidavit stating that he has not uttered the words as stated in the counter affidavit. He contends that Exts.P3 and P6 were issued to WP(C) 33124, 33114 & 33133 of 2024 : 28 : 2024:KER:78326 satisfy the 4th respondent's sadistic pleasure and ego and the chain of events after the meeting itself would prove that the order of transfer is punitive and passed in lieu of punishment. Sri. Raghunathan would rely on the decision of the Hon'ble Supreme Court in Somesh Tiwari v. Union of India and others [(2009) 2 SCC 592] and the decision of this Court in Pushkaran v. Chairman, Coir Board [1978 KLT 539] in support of his contention. Sri. Raghunathan would also submit that there are no administrative exigencies in transferring the petitioner to Guwahati and if that were the case, it would have been mentioned in the WP(C) 33124, 33114 & 33133 of 2024 : 29 : 2024:KER:78326 transfer order. Referring to Ext.P6, he would submit that, except for a single line that the petitioner is transferred to Regional Office, Guwahati, where the petitioner should report immediately, nothing has been stated therein. It is contended that the order impugned has to be tested on the basis of the reasoning contained therein and cannot be supplemented by counter affidavit. He relies on the decisions of the Hon'ble Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405], No.2809759H Ex- Recruit Babanna Machched v. Union of India and others [(2024) 5 SCC 306], and the WP(C) 33124, 33114 & 33133 of 2024 : 30 : 2024:KER:78326 decision of the Division Bench of this Court in State of Kerala v. Balakrishnan [1992 (1) KLT 420] in support of the said contention. Sri. Raghunathan refers to Ext.P7 transfer policy of the Bank and contends that as per the transfer policy, no staff shall be transferred for non performance except after giving an opportunity to improve his work performance and non performance should be justified and recorded before effecting the transfer. He submits that this condition in the transfer policy is not followed in the case of the petitioner and he has been transferred out of the Region. Finally, he would argue that the act alleged against the WP(C) 33124, 33114 & 33133 of 2024 : 31 : 2024:KER:78326 petitioner will not constitute misconduct under Ext. P8 Regulations.
15. Sri. Elvin Peter, the learned senior counsel for the respondents, on the other hand, would contend that, during the online meeting, with all 88 other participants present, the petitioner adopted an obstructionist stance against the management and actively discouraged other officers from fulfilling their duties. Considering the insubordination and open challenge to the Regional Manager by the petitioner and also to maintain discipline in the Region, Ext.P3 notice was issued to him calling for an explanation for his insubordination. Sri. WP(C) 33124, 33114 & 33133 of 2024 : 32 : 2024:KER:78326 Elvin contends that the petitioner was making every effort to undermine the Regional Management and incite insubordination among other staff members in the Region. Hence, in order to maintain the discipline amongst the officers in the Region, it was decided to surrender him from the Region and the Bank has vide Ext.P6 order, transferred the petitioner to Regional Office, Guwahati, where there is requirement of officers. It is argued that the transfer is on grounds of administrative exigencies and not punitive. Sri. Elvin relied on the decision of the Hon'ble Supreme Court in Union of India & others v. WP(C) 33124, 33114 & 33133 of 2024 : 33 : 2024:KER:78326 Sri. Janardhan Debanath and another [(2004) 4 SCC 245] to contend that, transfers, unless they result in adverse impacts or penal consequences for the individual, do not require the same level of scrutiny as actions like dismissal, discharge, reversion, or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. Sri. Elvin also relied on the decision in Ramachandran WP(C) 33124, 33114 & 33133 of 2024 : 34 : 2024:KER:78326 Nair v. Director of Training and another [ILR 1992 (3) Ker. 149] to contend that transfer made to ensure efficiency in administration and maintenance of discipline in the Institute cannot be said to be punitive. The decision in Dinamony v. Dt. Supdt. of Police, Kollam [1994 (1) KLT 326] was relied on to contend that, if an employee is transferred because his presence disrupts the organization's operations, it is not punitive, but rather a measure to maintain smooth functioning. Referring to paragraphs 15, 16 and 19 of the decision of this Court in Divyamol R.S. v. Director General, CISF and others [2022 (5) WP(C) 33124, 33114 & 33133 of 2024 : 35 : 2024:KER:78326 KHC 732], Sri. Elvin submits that the Division Bench has held that, in cases where the continuance of the employee in a particular station is detrimental to the maintenance of discipline at that station, then it may be prudent to the employer to transfer the employee to a different station, so that the twin objectives of maintaining discipline at one station, whilst simultaneously availing the service of the employee at another station, are achieved without casting any aspersion on the character or conduct of the employee. Finally, Sri. Elvin refers to the decision in Nixy James v. KSRTC [2023 (4) KHC 35], wherein this WP(C) 33124, 33114 & 33133 of 2024 : 36 : 2024:KER:78326 Court observed that the Corporation cannot function effectively when employees act intolerably or engage in activities that harm its interests and transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to subserve internal discipline. In the light of the above decisions, Sri. Elvin would contend that in order to maintain the discipline amongst the officers in the Region and to ensure smooth functioning, the petitioner has been transferred and the transfer will not result in adverse impacts or penal consequences for the petitioner. Accordingly, it is submitted that the WP(C) 33124, 33114 & 33133 of 2024 : 37 : 2024:KER:78326 order of transfer is not liable to be interfered with and the writ petition is liable to be dismissed.
16. Whether Ext.P6 order of transfer is punitive or issued in order to maintain the discipline in the Region or on grounds of administrative exigencies is the question that arises for consideration in this writ petition.
17. A review meeting of the Second Line Managers of the Ernakulam Region was convened by the 4th respondent on 07.09.2024 to discuss the progress of SB/DC account opening and related matters. The petitioner states that, in the said meeting, he pointed out WP(C) 33124, 33114 & 33133 of 2024 : 38 : 2024:KER:78326 issues with UPI and digital transactions, which have adversely affected the Branch's client acquisition and retention efforts. However, immediately after the review meeting, Ext.P3 letter was issued to the petitioner alleging that he argued with the Chief Regional Manager and thereby committed act of insubordination, and directing him to submit an explanation within seven days as to why disciplinary action should not be initiated against him. Thus, Ext.P3 notice was issued contemplating an enquiry into the conduct of the petitioner that he argued with the Chief Regional Manager and thereby committed act of insubordination. WP(C) 33124, 33114 & 33133 of 2024 : 39 : 2024:KER:78326 By Ext.P6 order, he was transferred to Regional Office, Guwahati. Though no reason whatsoever is stated in Ext.P6 for the transfer, the counter affidavit filed by the respondents states that the petitioner was making all efforts to undermine the Regional Management and also caused insubordination amongst other staff members of the Region, and in order to maintain the discipline amongst the officers in the Region, he was transferred to Regional Office, Guwahati. The counter affidavit also states that the transfer is on administrative grounds, taking into account the requirement of officers at Guwahati Region. WP(C) 33124, 33114 & 33133 of 2024 : 40 : 2024:KER:78326
18. As held by the Division Bench of this Court in Divyamol (supra), for the purposes of effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. However, here, Ext.P3 notice contemplates disciplinary action against the petitioner for insubordination. On the next working day after the issuance of Ext.P3, Ext.P6 order of transfer was issued to the petitioner. The chain of events following the review meeting, culminating in Ext.P6 transfer order, can only be viewed as punitive in nature, as it seeks to punish the petitioner for the WP(C) 33124, 33114 & 33133 of 2024 : 41 : 2024:KER:78326 alleged act of insubordination by transferring him to the farthest Region in the country, which negatively impacts his family life as well.
19. In Pushkaran (supra), this Court held as follows:
"24. The right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes it is more dangerous than other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy petrel. When the Court is alerted, the Court has necessarily to tear the veil of WP(C) 33124, 33114 & 33133 of 2024 : 42 : 2024:KER:78326 deceptive innocuousness and see what exactly motivated the transfer. This Court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer."
Having examined Ext.P6 order of transfer and the reason for transfer supplemented by the counter affidavit, I am of the considered view that Ext.P6 can only be seen as punitive in nature. If the transfer is intended or motivated to operate as a punishment, the order cannot be sustained.
20. In Janardhan Debanath (supra), Dinamony (supra), Divyamol (supra) and WP(C) 33124, 33114 & 33133 of 2024 : 43 : 2024:KER:78326 Nixy James (supra) relied on by Sri. Elvin, the employers therein had not contemplated any disciplinary proceedings against the employees concerned and the Courts found that in cases where the continuance of the employee in a particular station is detrimental to the maintenance of discipline at that station, then to ensure smooth functioning of the administration and maintenance of discipline, the employee can be transferred to different station and the intention for transferring the employee cannot be said to be punitive. The facts therein are distinguishable from those in the present case as the employers therein had WP(C) 33124, 33114 & 33133 of 2024 : 44 : 2024:KER:78326 not contemplated any disciplinary proceedings against the employee concerned before transfer. In Ramachandran Nair (supra), a decision rendered on the facts and circumstances of that case, the disciplinary proceedings against the Instructor of an educational institution for misbehaviour were initiated, but not completed and in the meantime, he was transferred. Rejecting the challenge against the transfer order, the Court held as follows:
"5. In the statement filed on behalf of the first respondent, it is mentioned that the petitioner misbehaved towards the Project Coordinator by uttering inappropriate sentences. In WP(C) 33124, 33114 & 33133 of 2024 : 45 : 2024:KER:78326 Industrial Training Institutes, coaching is being imparted to trainees. Petitioner is one of the persons entrusted with the duty of coaching the students. If he has misbehaved by uttering inappropriate sentences, which fact is pending enquiry, he is not a fit person to work as an Instructor in the I.T.I. Such a person, who is prima facie shown to have misbehaved towards the Project Coordinator in the Institute, where students are undergoing the course of study, is not a fit person to be retained there. His transfer cannot be said to have been effected with a dominant motive to punish him. The transfer was to ensure efficiency in administration and maintenance of discipline in the Institute. So, on the facts and circumstances of this case, I am convinced that the transfer of the petitioner was in the best interest of WP(C) 33124, 33114 & 33133 of 2024 : 46 : 2024:KER:78326 the Institute. It would have been better on the part of the Government to initiate proceedings under the Kerala Civil Services (Classification, Control and Appeal) Rules immediately on coming to know of the misconduct committed by the Petitioner. This having not been done, his removal from the Institute has at least gone to maintain discipline in that Institute. On this ground, I do not find any ground to interfere with the transfer, impugned in this Original Petition."
Thus, the decision in Ramachandran Nair (supra) is also distinguishable on facts. Since the petitioner has already been served with Ext.P3 notice contemplating disciplinary proceedings, the respondents should have WP(C) 33124, 33114 & 33133 of 2024 : 47 : 2024:KER:78326 taken the same to a logical conclusion rather than transferring him as a punitive action.
21. As already noted, Ext.P6 order does not state any reason for transfer. There is a post factum attempt in the counter affidavit filed by the respondents that the petitioner has been transferred to maintain discipline in the Region and that the transfer is on administrative grounds, to meet the requirement of officers in the Guwahati Region. In Somesh Tiwari (supra), the Hon'ble Supreme Court observed as follows:
"16.Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, WP(C) 33124, 33114 & 33133 of 2024 : 48 : 2024:KER:78326 which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds -- one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
WP(C) 33124, 33114 & 33133 of 2024 : 49 : 2024:KER:78326 Ext.P6 order of transfer is passed in lieu of punishment. Instead of taking further steps pursuant to Ext.P3 in accordance with law, the respondents have issued Ext.P6 as a punitive action. Accordingly, Ext.P6 order of transfer cannot be sustained in law and the same is set aside, without prejudice to the right of the respondents to take further proceedings pursuant to Ext.P3.
W.P.(C) Nos.33114 and 33133 of 2024
22. The petitioner in W.P.(C) No.33114 of 2024 is working as Assistant Manager in Karuvannur Branch in Thrissur and the petitioner in W.P.(C) No.33133 of 2024 is WP(C) 33124, 33114 & 33133 of 2024 : 50 : 2024:KER:78326 working as Manger I-Line in Kollengode Branch in Palakkad, of the 1st respondent Bank.
23. On issuance of show cause notice to Sri. K.V. Bubu, the petitioner in W.P.(C) No.33124 of 2024 regarding insubordination, the petitioners state that they posted WhatsApp message on 09.09.2024 regarding the treatment meted out to Sri.Bubu by the respondents for having expressed the genuine concern of similar employees. The contents of the WhatsApp message, produced as Ext. P5 in both the writ petitions, are verbatim and read as follows:
"Dear Sir's, WP(C) 33124, 33114 & 33133 of 2024 : 51 : 2024:KER:78326 We are writing this to post our utmost displeasure in the follow up actions against our colleague Mr. Bubu K V, Second line Manager, Kozhikode Branch. The issues which he raised in the recent review meeting was the real concerns and field level problems which we are facing. Yourselves may have a difference of opinion about the platform in which it was raised. But unfortunately we are not having any other mechanisms to address and redress the concerns of officer community who are the field level implementors of banks policies. We are not witnessing a single act of motivation or encouragement nowadays. The issues which our colleague raised WP(C) 33124, 33114 & 33133 of 2024 : 52 : 2024:KER:78326 are the real concerns each and every officer of the region wants to express. Inspite of addressing the issues you have decided to wreck vengeance against our colleague which is really unfortunate and is affecting the morale of officer community. Together we can do wonders and bring back the past glory of our region and we are committed for that. We seek an early intervention in this. Respectfully All Officers of Ernakulam Region...."
24. The petitioners were served with show cause notices (Ext.P2 in both writ petitions) on the night of 09.09.2024, alleging that they WP(C) 33124, 33114 & 33133 of 2024 : 53 : 2024:KER:78326 posted a message in the official WhatsApp group of the Regional Office at 12:39 p.m. on the same day. It is stated that the posting of the message is in utter disregard to the purpose for which the group was formed and the comments they have made encouraged defiance to the legitimate instructions of the Regional Manager and created a negative impact on the discipline amongst the other officials of the Region. The petitioners were asked to submit their explanations within seven days from the date of receipt of the letter as to why disciplinary action should not be initiated against them. On the same day, the petitioner WP(C) 33124, 33114 & 33133 of 2024 : 54 : 2024:KER:78326 in W.P. (C) No. 33133 of 2024 was transferred to the Regional Office in Berhampur, Odisha and the petitioner in W.P.(C) No. 33114 of 2024 was transferred to the Regional Office in Lucknow, vide Ext.P3 order (in both writ petitions).
25. The petitioners state that they posted the WhatsApp message to highlight the difficulties faced by Bank's customers due to the frequent failure of UPI transactions, and that the message was intended to prompt early intervention in resolving the issue raised by Sri. K.V Bubu, the petitioner in W.P. (C)No.33124 of 2024. The petitioners WP(C) 33124, 33114 & 33133 of 2024 : 55 : 2024:KER:78326 submitted Ext.P4 explanation to Ext.P2. They assert that Ext.P3 transfer order is punitive in nature and has been issued in lieu of punishment. No reasons are assigned in Ext.P3 for transferring the petitioners. The petitioners contend that the transfer order is issued in violation of Ext. P6 transfer policy of the Bank, and that Ext.P2 notice alleging misconduct is issued in violation of Ext.P7 regulations, namely, the Indian Overseas Bank Employees (Conduct) Regulations, 1976. It is contended that none of the acts alleged against them constitutes misconduct as defined in the Regulations, and that Ext.P3 is tainted by an WP(C) 33124, 33114 & 33133 of 2024 : 56 : 2024:KER:78326 abuse of power. Accordingly, the petitioners pray that Exts.P2 and P3 be quashed. They have also submitted representations (Ext. P8 in both cases) requesting the cancellation of the transfer orders.
26. This Court, by order dated 13.09.2024, has stayed Ext.P3 order of transfer in both cases.
27. A counter affidavit has been filed on behalf of the respondents stating that the online meeting convened on 07.09.2024 by the Regional Manager of the Ernakulam Region, in which 88 officers participated, included Sri K.V Bubu., the Second Line Manager of the WP(C) 33124, 33114 & 33133 of 2024 : 57 : 2024:KER:78326 Kozhikode Main Branch. It is stated that he adopted an obstructionist stance against Management, actively discouraging other officers from performing their duties. Considering this insubordination and open challenge to the Regional Manager, he was advised to report to the Regional Office on 09.09.2024. The petitioners posted Ext.P5 WhatsApp message purportedly issued on behalf of all officers of the Ernakulam Region, expressing their displeasure with the actions taken against Sri. K.V Bubu. They accused the Regional Management of seeking vengeance against him. It is stated that the message was WP(C) 33124, 33114 & 33133 of 2024 : 58 : 2024:KER:78326 posted with the intent to discourage and demotivate other employees from achieving the targets set by the Bank. Furthermore, the WhatsApp group was created by the Regional Management for coordination among the Managers, and the intention behind posting the message was to prejudice the interests of the Bank by inciting insubordination. They have denied the averments of the petitioners that the message was issued on behalf of all officers of the Ernakulam Region. It is further stated that immediately after the message was posted, around 80 officers who are members of the WhatsApp group supported it by "liking" the WP(C) 33124, 33114 & 33133 of 2024 : 59 : 2024:KER:78326 post. The respondents state that the petitioners' motive was to create chaos and disrupt the smooth administration of the Bank. It is stated that allowing the petitioners to remain in the Region would discourage other officers from performing their duties and contribute to indiscipline. It is further stated that the transfer orders were issued based on the requirements of the Bank and for administrative exigencies and that the orders were issued not as punishment; but to maintain discipline and ensure the smooth administration of the Bank.
28. The petitioners in both writ petitions WP(C) 33124, 33114 & 33133 of 2024 : 60 : 2024:KER:78326 have filed separate reply affidavits rebutting the averments in the counter affidavit. They state that the WhatsApp message did not mislead or demotivate other employees; rather, it sought the intervention of the respondents against the victimization of a colleague who raised a genuine issue. Referring to the counter affidavit, the petitioners contend that the respondents themselves have admitted that 80 officers supported the message, which indicates that the grievance was genuine. The petitioners reiterate that the transfer order was issued as a punishment and not based on administrative exigencies.
WP(C) 33124, 33114 & 33133 of 2024 : 61 : 2024:KER:78326
29. Though common arguments were addressed by both sides in all these cases, Sri. Raghunathan referred to the decision in Anil Kumar A.P. v. Mahatma Gandhi University and others [2018 (5) KHC 119] to contend that expression of opinion or suggestions in a review meeting cannot be construed as an act of insubordination. Paragraph 6 of the said decision reads as follows:
"6. Servitude is an outlook of an individual and not a governing norm in a public Institution. Discipline is a norm. Discipline and servitude are to be distinguished. If an employee speaks out in the social media in a general perspective which is not WP(C) 33124, 33114 & 33133 of 2024 : 62 : 2024:KER:78326 inconsistent with the collective interest of the Institution, that is part of his right of free speech. No authority should expect one to be silent. Survival of public Institution depends upon how it accounts for democratic values. Free expression is the corner stone of democratic value. Every functionary of public power therefore, must command liberty to their constituents."
If I am to venture into the merits of said contention raised by the learned counsel for the petitioners, I am afraid, I will be venturing into the merits of the allegation in Ext.P2 notice.
30. The proceedings impugned in these writ petitions are offshoot and sequel to the WP(C) 33124, 33114 & 33133 of 2024 : 63 : 2024:KER:78326 order passed against Sri. K.V. Bubu, the petitioner in W.P (C) No. 33124 of 2024. Ext.P3 order of transfer of the petitioners herein, as in the case of Sri. Bubu. K.V, is a one line order without assigning any reasons for the transfer. In the counter affidavit filed by the respondents, it is stated that allowing the petitioners to remain in the Region would discourage other officers from performing their duties and contribute to indiscipline. It is further stated that the transfer orders were issued based on the requirement of the Bank, in administrative exigencies.
31. The allegation against the petitioners is WP(C) 33124, 33114 & 33133 of 2024 : 64 : 2024:KER:78326 that when notice was issued to Sri. K.V. Bubu, calling for explanation against his alleged act of insubordination, the petitioners posted Ext.P5 message in utter disregard to the purpose for which the WhatsApp group was formed and the comments they have made encourages defiance to the legitimate instructions of the Regional Manager and created a negative impact on the discipline amongst the other officials of the Region. The petitioners were asked to submit their explanations within seven days from the date of receipt of the letter as to why disciplinary action should not be initiated against them. On the same day, the petitioners WP(C) 33124, 33114 & 33133 of 2024 : 65 : 2024:KER:78326 were issued with Ext.P3 order transferring them to far off Regions in the Country.
32. The petitioners were already issued with Ext.P2 notice asking them to explain why disciplinary action should not be initiated against them. However, instead of taking further steps pursuant to Ext.P2 in accordance with law, the respondents have issued Ext.P3 order of transfer. From the facts and circumstances leading to the transfer orders, I find that the same were passed as punitive action. An order of transfer passed in lieu of punishment is illegal and cannot be sustained. For the said reason and the reasons I have WP(C) 33124, 33114 & 33133 of 2024 : 66 : 2024:KER:78326 already dealt with in the previous case, I hold that Ext.P3 (in both writ petitions) cannot be sustained in law and the same is set aside, however, without prejudice to the right of the respondents to take further proceedings pursuant to Ext.P2.
33. All the writ petitions are disposed of. It is made clear that this Court has not made any observation on the merits of the allegations made against the petitioners in the show cause notices.
Sd/-
MURALI PURUSHOTHAMAN JUDGE SB WP(C) 33124, 33114 & 33133 of 2024 : 67 : 2024:KER:78326 APPENDIX OF WP(C) 33124/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO.RO/HRMD/2021-22 OF 3RD RESPONDENT DATED 20.10.2021. Exhibit P2 TRUE COPY OF THE RELIEVING ORDER ISSUED TO PETITIONER BY THE BRANCH MANAGER, INDIAN OVERSEAS BANK, MADAVOOR BRANCH DATED 2.5.2024.
Exhibit P3 TRUE COPY OF LETTER NO.REF/RO/AGM/PLG/...../2024-25 ISSUED BY 2ND RESPONDENT DATED 7.9.2024. Exhibit P4 TRUE COPY OF THE EXPLANATION SUBMITTED BY PETITIONER TO ASSISTANT GENERAL MANAGER DATED 13.9.2024. Exhibit P5 TRUE COPY OF E-MAIL MESSAGE DATED 7.9.2024 SENT TO THE BRANCH MANAGER, KOZHIKODE MAIN BRANCH.
Exhibit P6 TRUE COPY OF ORDER NO.HRMD/SUP/MGMT-
TRF/1/2024-25 ISSUED BY 2ND
RESPONDENT DATED 9.9.2024.
Exhibit P7 TRUE COPY OF ORDER REF
NO.EST/13/2023-24 ISSUED BY HUMAN RESOURCES MANAGEMENT, DEPARTMENT OF INDIAN OVERSEAS BANK DATED 15.11.2023.
Exhibit P8 TRUE COPY OF INDIAN OVERSEAS BANK WP(C) 33124, 33114 & 33133 of 2024 : 68 : 2024:KER:78326 OFFICER EMPLOYEES' (CONDUCT) REGULATIONS, 1976.
Exhibit P9 TRUE COPY OF THE REQUEST SUBMITTED BY PETITIONER TO 2ND RESPONDENT DATED 12.9.2024.
WP(C) 33124, 33114 & 33133 of 2024 : 69 : 2024:KER:78326 APPENDIX OF WP(C) 33114/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO.RO/HRMD/2021- 22 OF 3RD RESPONDENT DATED 20.10.2021.
Exhibit P2 TRUE COPY OF LETTER NO.REF/RO/AGM/PLG/....../2024-25 ISSUED BY 2ND RESPONDENT DATED 9.9.2024. Exhibit P3 TRUE COPY OF ORDER NO.HRMD/SUP/MGMT-
TRF/3/2024-25 PASSED BY 3RD
RESPONDENT DATED 9.9.2024.
Exhibit P4 TRUE COPY OF THE EXPLANATION
SUBMITTED BY PETITIONER TO ASSISTANT GENERAL MANAGER DATED 12.9.2024. Exhibit P5 TRUE COPY OF THE WHATSAPP MESSAGE POSTED BY THE PETITIONER IN THE OFFICIAL WHATSAPP GROUP OF THE BANK ON 9.9.2024.
Exhibit P6 TRUE COPY OF ORDER NO.EST/13/2023-24 ISSUED BY HUMAN RESOURCES MANAGEMENT DEPARTMENT OF INDIAN OVERSEAS BANK DATED 15.11.2023.
Exhibit P7 TRUE COPY OF INDIAN OVERSEAS BANK OFFICER EMPLOYEES' (CONDUCT) REGULATIONS, 1976.
Exhibit P8 TRUE COPY OF THE REQUEST SUBMITTED BY PETITIONER TO 2ND RESPONDENT DATED 12.9.2024.
WP(C) 33124, 33114 & 33133 of 2024 : 70 : 2024:KER:78326 APPENDIX OF WP(C) 33133/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER NO.RO/HRMD/602/2023- 24 OF CHIEF MANAGER, INDIAN OVERSEAS BANK DATED 11.1.2024.
Exhibit P2 TRUE COPY OF LETTER NO.REF/RO/AGM/PLG/ ....../2024-25 ISSUED BY 2ND RESPONDENT DATED 9.9.2024.
Exhibit P3 TRUE COPY OF ORDER NO.HRMD/SUP/MGMT-
TRF/2/2024-25 PASSED BY 3RD RESPONDENT DATED 9.9.2024.
Exhibit P4 TRUE COPY OF THE EXPLANATION SUBMITTED BY PETITIONER TO 3RD RESPONDENT DATED 12.9.2024 (BY E-MAIL).
Exhibit P5 6. TRUE COPY OF THE WHATSAPP MESSAGE POSTED BY THE PETITIONER IN THE OFFICIAL WHATSAPP GROUP OF THE BANK ON 9.9.2024. Exhibit P6 TRUE COPY OF ORDER NO.EST/13/2023-24 ISSUED BY HUMAN RESOURCES MANAGEMENT DEPARTMENT OF INDIAN OVERSEAS BANK DATED 15.11.2023.
Exhibit P7 TRUE COPY OF INDIAN OVERSEAS BANK OFFICER EMPLOYEES' (CONDUCT) REGULATIONS, 1976.
Exhibit P8 TRUE COPY OF THE REQUEST SUBMITTED BY PETITIONER TO 2ND RESPONDENT DATED 12.9.2024.
Exhibit P9 TRUE COPY OF THE CERTIFICATE ISSUED BY WP(C) 33124, 33114 & 33133 of 2024 : 71 : 2024:KER:78326 INDIAN OVERSEAS BANK TO PETITIONER DATED 25.10.2023.
Exhibit TRUE COPY OF THE APPRECIATION ISSUED BY P10 INDIAN OVERSEAS BANK, CHIEF REGIONAL MANAGER FOR OUTSTANDING PERFORMANCE IN SB ACCOUNT OPENING.