Karnataka High Court
All India Vijaya Bank Officers ... vs Union Of India (Uoi) And Ors. on 19 November, 2001
Equivalent citations: ILR2001KAR5640, (2002)IILLJ129KANT, 2002 LAB. I. C. 291, 2002 AIR KANT HCR 194, (2002) 2 LABLJ 129, (2002) 2 SCT 480, (2002) 7 SERVLR 598
ORDER Chandrashekaraiah, J.
1. The petitioners in these petitions have sought for a writ of mandamus to hold that the Minutes of the Meeting of the Board of Directors of Vijaya Bank held on April 28, 2000 resolving to delete Clause 12(b) of the transfer policy as arbitrary and ultra vires the provisions of the Constitution and for writ of certiorari to quash the orders of transfer dated May 25, 2001 insofar as they relate to petitioners 2 to 5 and for other consequential reliefs.
2. Respondent-2 Vijaya Bank is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, having its head office at No. 41/2, M.G. Road, Bangalore. The petitioner in the 1st writ petition is a recognised trade union of the officers of the Vijaya Bank. Respondent-5 is also one of the Trade Unions consisting of officers of second respondent Bank. In addition there are other trade unions also.
3. On the basis of the Minutes of the Joint Consultative Committee Meeting held between the representatives of the 1st petitioner union and the representatives of the Bank, Circular No. 267/1991 was issued by the Bank incorporating Clause 4.11.4 under which six office bearers of the recognised trade union of the officers were exempted from transfer during their tenure so long as the recognition granted by the Bank is in force. In the year 1979, again on the basis of the Minutes of the Joint Consultative Committee Meeting held on September 5, 1989, Circular No. 3/99 was issued by the Bank incorporating the exemption Clause as Clause 12(b) under which the six office bearers of the recognised trade union were exempted from transfer outside the headquarters of the Bank. This circular was challenged by the minority union and others in W.P. No. 7345/1988 and other connected petitions. The learned single Judge of this Court allowed the writ petitions in part by holding the said exemption granted insofar as it relates to the officers of recognised union is concerned as discriminatory and hit by Article 14 of the Constitution of India. This order of the learned single Judge was questioned by the recognised Union by way of filing writ appeals before the Division Bench in W. A. Nos. 3664-3667/1988. The Division Bench allowed the writ appeals in part and held the Union office bearers formed a separate class by themselves by virtue of their holding office in the Union and therefore, it cannot be said that exemption from transfer is arbitrary or discriminatory and accordingly to that extent the judgment of the learned single Judge was modified. The minority Union preferred review petitions in CP. 73-76/99 seeking review of the order passed by the Division Bench in the above said writ appeals. The said review petitions were dismissed by the Division Bench. Thereafter, the minority union preferred Special Leave Petitions (civil) No. 1301-13044/99 before the Supreme Court and those petitions were dismissed as infructuous since the very exemption Clause itself has been deleted by the Bank in Circular No. 33/1999.
4. The Government of India, Ministry of Finance by its letter dated January 22, 2000 advised the 2nd respondent Bank to take steps to delete Clause 4.11.4. The said letter reads as follows:
"I am directed to refer the Bank letter No. PER/IRI/dated November 14, 1989 on the subject mentioned above to say that in view of the legal opinion obtained by the Bank, Clause 4.11.4 contained in the transfer policy of the Bank may be deleted. We are also of the view that there does not appear to be any need to file their affidavits on behalf of the union in the Supreme Court in this case.
Vijaya Bank may now take further action necessary and keep us informed of the performance of this case from time to time".
5. Pursuant to this, steps were taken by the Bank to delete Clause 12(b) of the transfer policy. One Sri Gopalan Nair who was the nominee of the employees of the Board of Directors opposed the move of the Board to delete Clause 12(b). Ultimately, the Board of Directors of the Bank passed the resolution resolving to delete Clause 12(b) of the transfer policy. Pursuant to this resolution Circular No. 118/00 was issued by the Bank deleting Clause 12(b) of the transfer policy. After deletion of Clause 12(b) with due intimation to the petitioners 2 to 4, the Bank has passed an order transferring petitioners 2 to 5 along with others to different places. Therefore the petitioners have filed these petitions challenging the deletion of Clause 12(b) of the transfer policy and the order of transfer insofar as it relates to them.
6. The 2nd respondent Bank in its statement of objections justified the deletion of Clause 12(b) of the transfer policy and the transfer of the petitioners. The contention of the Bank is that under Regulation 47 of the Service Regulations, every officer is liable for transfer to any office or branch of the Bank or to any place in India and therefore, the petitioners-2 to 5 have no legal right to question the deletion of Clause 12(b) of the transfer policy. It is further contended that it is open for the employer to transfer any of its employees based on administrative exigencies since transfer is not one of the conditions of service. It is further stated that Regulations framed by the Bank is by virtue of the powers conferred by Section 19 read with Section 12(2) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (for short 'the Act'), in consultation with the Reserve Bank of India and with the previous sanction of the Central Government and therefore the petitioners have no legal right to challenge the impugned orders of transfer. It is nextly contended that the Circulars issued framing certain guidelines regarding transfer of employees do not have any statutory force and therefore the petitioners have no legal right to insist to continue the said guidelines for all times to come. In view of these contentions the respondent Bank submits that these petitions are liable to be dismissed.
7. Respondent-5 which is said to be a minority union has also filed objections objecting the grant of relief as prayed for by petitioners in these petitions. In its objections, it is contended that respondent No. 5 is also a trade union similar to the 1st petitioner union and therefore there cannot be any discrimination between the officers of one union and the officers of another union in the matter of transfer of employees and accordingly they pleaded that there shall be an uniformity in the matter of transfer in respect of all the employees of the Bank.
8. Sri, Subba Rao, learned senior counsel appearing for the petitioners submitted that deletion of Clause 12(b) by Circular No. 118/2000 is opposed to Articles 19(1)(c), 21, and 43A of the Constitution of India. In support of his contention that the deletion is opposed to Article 19(1)(c), he has relied upon certain decisions. I am of the view that the said decisions are neither relevant nor have any bearing on the point. Article 19(1)(c) of the Constitution reads as follows:
"19. (1) All citizens shall have the right-
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(c) to form associations or unions".
Under the abovesaid Article, every citizen shall have the right to form associations or unions. By virtue of this right the 1 st petitioner trade union has been formed. The right to form an association does not automatically create a right in the employee to prevent an employer from transferring his employee, if the Rules provide for transfer. Therefore, the deletion of Clause 12(b) incorporated in the Circular providing guidelines for transfer and consequent transfer is not violative of Article 19(1) of the Constitution of India.
9. Article 21 of the Constitution of India, provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In the instant case transfer of petitioners-2 to 5 do not in any way amount to deprivation of their right to life or personal liberty as long as they continue to be employees of the Bank and are paid their salaries.
10. Article 43A of the Constitution provides that the State shall take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. The 1st petitioner's union has been formed under the Trade Unions Act. It is not disputed that nominees of the union are also on the Board of Directors of the Bank. In fact the employees' nominee who is on the Board has also participated in the proceedings relating to the deletion of Clause 12(b) of the Circular. Therefore, the decision taken by the Board by majority is not in any way opposed to Article 43A of the Constitution. Therefore, I am of the considered view that the contentions urged by Sri. Subba Rao with reference to the constitutional provisions referred to above are stated to be rejected and accordingly, they are rejected.
11. Sri Subba Rao, learned counsel for the petitioners submitted that the minutes of the meeting on the basis of which Circulars have been issued are in the nature of contract and therefore there cannot be any deletion unilaterally by the Bank. From the pleadings and on the basis of the argument advanced on behalf of the Bank, I find the bank consulted the 1st petitioner union before formulating the transfer policy by holding a meeting. The proceedings of the meeting are drawn up. Thereafter, on the basis of the proceedings the Circulars were issued formulating the guidelines regarding transfer of the employees of the Bank. Therefore, the said proceedings of the meeting under no stretch of imagination could be said as a contract entered into between the Union and the Bank. Further, in the circulars issued by the Bank on the basis of the proceedings of the meeting held between the representatives of the trade union and the Bank, the Bank has retained the power to amend the Clauses in the circular. Clause 5-4-0 of the Circular issued in the year 1991, reads as follows:
"The Bank reserves the right to amend this policy if the administrative exigencies so warrant."
12. The said Clause continued in all the circulars which were issued subsequent to 1991. Therefore by virtue of the Clause in the circular the Bank has retained the power to amend the policy of transfer if the administrative exigencies so warrant. From this it is seen, thus in order to amend no consent or consultation is required by the Bank before amending the policy. But in the instant case, even before deleting Clause 12(b) which was inserted to Clause 4.11.4 of the transfer policy the subject matter was placed before the Board and the representatives of the union had also participated in the said proceedings by registering his dissent. In the circumstances, it cannot be said that the Bank has in any way committed the breach of contract by amending the transfer policy.
13. It is nextly contended on behalf of the petitioners that the deletion of Clause 12(b) and the order of transfer is contrary to the decision of the Division Bench of this Court in Writ Appeal Nos. 3664-67/1998. The Division Bench of this Court though modified the order of the learned single Judge has only upheld Clause providing for exemption as valid treating the officers of the Union form a separate class by themselves. This Judgment of the Division Bench does not in any way come in the way of the Bank amending the Clause in the policy of transfer. In fact by deleting Clause 12(b) as contended by Sri Ramdas, learned senior counsel for the Bank, all the employees of the Bank are treated alike by removing the Clause providing exemption to certain officers of the recognised union. Therefore, even assuming that certain exemption provided for certain officers is held to be valid on the ground they form a separate class by themselves, it does not mean that all the employees are not to be treated alike in respect of the officers of the same cadre in the Bank. Further, the Special Leave Petitions filed by the Minorities Union challenging the order of the Division Bench have been dismissed by the Supreme Court, since the very Clause itself has been deleted by the Bank, without expressing any opinion. Therefore, there is no reason to hold that the deletion of Clause 12(b) is in any way inconsistent with the order of the Division Bench in the writ appeals referred to above.
14. Sub-section (2) of Section 7 of the Act reads as follows:
"7(2). The general superintendence, direction and management of the affairs and business of a corresponding new bank shall vest in a Board of Directors which shall be entitled to exercise all such powers and do all such acts and things as the corresponding new bank is authorised to exercise and do".
Section 8 of the Act, reads as follows:
"8. Corresponding new banks to be guided by the directions of the Central Government. Every corresponding new bank shall, in discharge of its functions, be guided by such directions in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank, give."
Section 19(2) of the Act reads as follows:
"In particular and without prejudice to the generality of the foregoing power, the regulations may provide for all or any of the following matters, namely:-
...... the powers, functions and duties of local boards and restrictions, conditions or limitations subject to which the corresponding new bank may appoint advisors, officers or other employees and fix their remuneration and other terms and conditions of service .....".
15. As contended by the learned counsel for the Bank, the Bank has framed the Regulations providing for transfer of officers by virtue of the power vested in it under Section 7(2) read with Section 9(2)(d) of the Act. Clause 47 of the Regulations reads as follows:
"Clause 47. Transferability- Every officer is liable for transfer to any office or branch of the Bank to any place in India."
16. From the abovesaid Clause, it is clear that every Officer of the Bank is liable for transfer to any office or branch of the Bank to any place in India. In order to regulate the transfers no doubt the Bank has framed a policy providing certain guidelines. These guidelines have no statutory force. If that is so, the petitioners have no legal right to challenge the guidelines of deletion of a Clause in the guidelines as long as the employer has got an absolute power to transfer its employees to any place of his choice. Transfer is only an incident of service and not a condition of service. Petitioners 2 to 5 are appointed to the post and not to the place. Therefore, petitioners-2 to 5 have no legal right to challenge the order of transfer as long as the said transfer is bona fide one. Even though petitioners-2 to 5 are the office bearers of the recognised trade union the order of transfer will not come in the way of their participation in the proceedings of the union. The petitioners themselves have produced a letter Annexure-L under which Government of India advised the Bank to delete Clause 12(b) of the transfer policy. Under Section 8 referred to above the Banks are to be guided by the directions of the Central Government. When such being the case in the light of the advice given by the Central Government in order to have uniformity in the matter of transfer of the employees of the Bank, the Bank has taken steps to delete Clause 12(b) of the Transfer policy. Therefore, the step taken by the Bank cannot be said to be invalid in the absence of any allegation of mala fides or motive.
17. Petitioners-2 to 5 are the employees of the 2nd respondent Bank and are the office bearers of the trade union. As seen from the statement of objections most of the office bearers of the trade union working in other Banks are transferred to different places. Further, from the statement of objections, it is found that the petitioners are in Karaataka for the last several years. If that is so, in my opinion the petitioners cannot have any grievance insofar as their transfer is concerned.
18. For the reasons stated above, I am of the considered view that deletion of Clause 12(b) and the consequent transfer of the petitioners is justified. Therefore, I find no reason to interfere in these petitions under Article 226 of the Constitution of India.
19. In the result, I pass the following order: Writ petitions are dismissed. Rule is discharged. No costs.