Gujarat High Court
The Gujarat State Coperat. Agriculture ... vs Prashant P. Shah General on 22 April, 2013
Bench: Jayant Patel, G.R.Udhwani
THE GUJARAT STATE COPERAT. AGRICULTURE & RURAL DEV.BANK LTD.....Appellant(s)V/SPRASHANT P. SHAH GENERAL SECERETARY C/LPA/1574/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL NO. 1574 of 2012 In SPECIAL CIVIL APPLICATION NO. 10823 of 2012 With CIVIL APPLICATION NO. 13206 of 2012 In LETTERS PATENT APPEAL NO. 1574 of 2012 ================================================================ THE GUJARAT STATE COPERAT. AGRICULTURE & RURAL DEV.BANK LTD.....Appellant(s) Versus PRASHANT P. SHAH GENERAL SECERETARY & 1....Respondent(s) ================================================================ Appearance: MR TUSHAR MEHTA, LEARNED SENIOR COUNSEL WITH MR RUTVIJ OZA FOR MR VIRAL K SHAH, ADVOCATE for the Appellant(s) No. 1 MR SHALIN MEHTA, LEARNED SENIOR COUNCEL WITH MS VIDHI J BHATT, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE G.R.UDHWANI Date : 22/04/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. We have heard Mr.Tushar Mehta, learned Senior Counsel with Mr.Rutvij Oza, learned advocate for Mr.Viral K. Shah, learned advocate for the appellant, Mr.Shalin Mehta, learned Senior Counsel with Ms.Vidhi J. Bhatt, learned advocate for respondent No.1 and Mr.Rakesh R. Patel, learned Assistant Government Pleader for respondent No.2.
It, prima-facie, appears that when the power is exercised for transfer on administrative ground, no reasons are required to be mentioned and the reasons can be shown to the Court in the event such transfer order is challenged. In any event in the transfer order, it was mentioned that because of the shortage of the staff, the transfer order has been passed. Therefore, the same, as such, could be said as sufficient to justify the transfer.
However, an attempt was made by Mr.Shalin Mehta for respondent No.1 to contend that it was a malafide transfer since the petition was preferred being Special Civil Application No.6262 of 2012 by respondent No.1-original petitioner for challenging the action of Bank for process of recruitment and also submitted that there is a settlement under Section 2-P of the Industrial Disputes Act, 1947, whereby the Union is required to be taken into confidence before transferring the office bearers of the Union, and therefore, the learned Single Judge had rightly interfered with the order.
In our prima-facie view, merely because the petition is preferred, is no valid ground to conclude that the transfer was malafide or by way of the victimization. Further, the confidence of the Union, even if it is accepted for the sake of examination, cannot be termed as consent of the Union. The said aspect is coupled with the circumstances that the petitioner and other office bearers of the Union have been transferred and they have accepted the transfer order.
Under the circumstances, it prima-facie appears that the observations made by the learned Single Judge if allowed to continue, it may not be possible for the Bank to pass a fresh order of transfer. In the event there is an administrative exigency and we are inclined to take the such view, because of the peculiar facts and circumstances that the transfer order was for a period of six months only and respondent No.1 has worked at the transfer place for ten days, and thereafter, he has not worked and proceeded leave. Further, after the period of six months, he may be required to report to the original post, which was at Ahmedabad.
A grievance was raised by Mr.Shalin Mehta for respondent No.1 that respondent No.1 has not been paid any salary for the said period, though he proceeded on leave, and thereafter, he has not been permitted to join the duty in spite of the order passed by the learned Single Judge. In our view, the said aspect can be taken care of while passing the interim order.
Hence, the following order:
Appeal is admitted.
By interim order, operation and implementation of the order of the learned Single Judge dated 09.11.2012 in Special Civil Application No.10823 of 2012, is stayed with further observations and directions that:
Respondent No.1 shall be permitted to resume the duty at Ahmedabad Branch.
The period during which respondent No.1 was not on duty, shall be considered and adjusted towards leave and if there is balance of leave, the period shall be treated as leave with salary. If there is no balance of leave, the leave shall be granted without pay. After compliance of the aforesaid directions, whatever salary and allowance, if payable, shall be paid to respondent No.1 by the Bank.
After resumption of the duty by the respondents, it would be open to the appellant-Bank to pass a fresh transfer order, if there is administrative exigency for such purpose. After 09.11.2012, as respondent No.1 was not permitted to join the duty, the said period shall be treated as on duty by the respondents.
8. Civil Application stands disposed of, accordingly.
(JAYANT PATEL, J.) (G.R.UDHWANI, J.) rakesh/ Page 5 of 5