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CASE NO.: Appeal (civil) 226  of  1997

PETITIONER: STATE BANK OF INDIA

       Vs.

RESPONDENT: ANJAN SANYAL & ORS.

DATE OF JUDGMENT:       12/04/2001

BENCH: G.B.. Pattanaik & Y.K. Agrawal

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J

PATTANAIK,J.

   The  State  Bank  of  India is  in  appeal  against  the judgment  of the Division Bench of Calcutta High Court.  The Division Bench upheld the judgment of a learned Single Judge of  the  said  High  Court, who had set aside  an  order  of transfer  of an officer in Middle Management Grade II of the State  Bank.   The  respondent  had   been  appointed  as  a Probationary  Officer in the State Bank in the year 1971 and had been posted at Calcutta.  In 1982, he was transferred to Port  Blair,  but  instead  of joining  at  Port  Blair,  he remained   on  leave  from   1.7.82  till  15.4.1984.    The management  of the bank ultimately posted the respondent  to Narkeldanga  Branch  at Calcutta and the earlier  orders  of transfer  to Port Blair was not given effect to.  This order had  been  passed  in  April, 1984.   After  the  respondent continued  at Calcutta for two years, on 14th of June, 1986, the  Branch  Manager of Narkeldanga Branch at  Calcutta  was intimated  that  a decision has been taken to  transfer  the respondent  to the Central Office at Mumbai.  The respondent again  evaded to go to Mumbai and on the other hand, went on filing  representations  requesting for cancellation of  his transfer  to  Mumbai.  Again from 19.10.86,  the  respondent applied for leave and did not join the office.  On 8.1.1987, the  Branch  Manager  of   Narkeldanga  Branch  advised  the respondent  that  he  has been relieved  from  the  Calcutta office  and  he  should join at Mumbai.  On  5.12.1987,  the respondent  made  a representation, seeking cancellation  of his  transfer  to  the  Central   Office  at  Mumbai.   That representation,  however  was  never allowed  and  the  bank authorities  went  on reminding the respondent that  he  has been  transferred  to the Central office and he should  join the  Central  office at Mumbai.  On 16th of  January,  1988, respondent  made  yet  another representation,  praying  for cancellation of his transfer.  The mother of the respondent, then  made a complaint to the General Manager, alleging that her  son is being harassed.  This complaint was made in  the year  1991.  The General Manager, therefore, called upon the Deputy  General  Manager  to  ascertain and  advise,  as  to

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whether  the  respondent has received the  communication  of having  been  transferred to Mumbai.  On 9.7.1991, the  bank informed  the  respondent  that he is  absenting  from  duty unauthorisedly,  and  therefore, he should report  for  duty within  three  days at Calcutta and explain the reasons  for absence.   On  19.7.91,  the  respondent  was  again  posted temporarily  at  M.B.Street at Calcutta.  On 8.8.91, he  was then  transferred to Siliguri, and was directed to report to Deputy  General  Manager, Siliguri.  Instead of  joining  at Siliguri,  the respondent filed a writ petition, challenging the  order of transfer to Siliguri.  While entertaining  the writ  petition,  the Single Judge passed an  interim  order, directing  the  respondent  to obey the transfer  order  and report  at  Siliguri, but he never obeyed the same.  On  the other  hand, he approached the Division Bench, assailing the said  order.   The  Division Bench also by its  order  dated 10.2.92,  directed the respondent to join his new posting at Siliguri   within  fifteen  days.    The  respondent   being aggrieved by the said directions, approached this Court in a special  leave  petition,  which however  was  dismissed  on 30.3.92.   Even, thereafter, the respondent did not join  at Siliguri.   The learned Single Judge of Calcutta High Court, however  delivered  the  judgment in the  writ  petition  on 10.3.93  and  allowed the same, setting aside the orders  of transfer.  The bank went in appeal to the Division Bench and by  the impugned judgment, the appeal having been dismissed, the bank has approached this Court.

   The  learned  Single  Judge  did notice  the  fact  that ordinarily,  writ Court does not interfere in the matters of transfer,  but yet being of the opinion that in the case  in hand, it is not a case of transfer simplicitor and on coming to   the  conclusion  that  the   order  of  transfer   from Narkeldanga  Branch to Mumbai, not having been served on the respondent,  the  said transfer orders could not  have  been given  effect  to,  even  if being aware of  such  order  of transfer,   the   concerned  employee   might   have   filed representations.   The  learned  Single  Judge  also  relied heavily upon the fact that even though, the respondent wrote to  the Personnel Manager on 12th January, 1988 that he  has not  been  instructed  to  report   to  the  Chief   Officer (Personnel  Administration), Central Office, Mumbai, but  no reply  was  received  by  him.  The  learned  Single  Judge, ultimately came to the conclusion that the order of transfer had  not been served on the employee and as such in the eyes of  law,  the  employee had not been directed  to  join  any office,  after  he  was released from the  Narkeldanga  main Branch  of the bank.  The subsequent period, therefore, must be  held to be in a state of suspended animation till  July, 1991 and as such the employee would be entitled to claim all benefits  of  increments and promotion on the basis that  he was  actually discharging his duties, throughout the span of the intervening five years.  So far as the order of transfer to Siliguri is concerned, the Court even interfered with the same,  on  the ground that until and unless  the  respondent gets  his  due promotion at regular intervals, and gets  all the emoluments for the past period, he cannot be transferred to  Siliguri,  as he may have to serve under an officer  who might  have been junior to him and it will be cruel to  send him in the improvised condition, thereby reducing him into a pauper  in the place of his new posting.  The Single  Judge, therefore,  directed  that the respondent cannot be held  to have  been  transferred  from  Narkeldanga  main  branch  in December,  1986  or  any  time, thereafter and  he  must  be

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treated  as  if  he was on duty throughout the  period  from January,  1987 to July, 1991 with all its attendant benefits of getting regular monthly emoluments, the annual increments and the chances of promotion at regular intervals and unless all  the  steps are taken, the question of transferring  the respondent  to  any  place other than the  Narkeldanga  Main Branch  cannot and does not arise.  We are indeed shocked to find  this sort of order from the High Court, in a matter of transfer  and the Court seems to have taken the view that an officer  of the State Bank of India in the Middle Management Grade  II  can  only be allowed to continue  at  Narkeldanga Branch at Calcutta and nowhere else in the country.

   On  appeal  being filed before the Division  Bench,  the performance  of  the  Division  Bench was  no  better.   The learned   Judges  of  the   Division  Bench  reaffirmed  the conclusion  of the learned Single Judge that no formal order of  transfer had been issued and served upon the respondent, transferring  him  from  Narkeldanga Branch to  the  Central Office  at  Mumbai.  The perversity of the approach  of  the Division  Bench  is apparent from the fact that the  learned Judges  did refer to the letter of the respondent dated 19th of  October, 1986 and held that even though, the  respondent did  not  deny the existence of the order of  transfer,  but nowhere  he  had stated that he had seen or had been  served with the order of transfer and there was no admission on the part  of the respondent about the existence of the order  of transfer.  The High Court has totally lost sight of the fact that  it  was  dealing  with the legality  of  an  order  of transfer  of  an  employee and not dealing with  a  criminal case,  where the conviction had been maintained on the basis of  a confessional statement.  The further perversity of the Division  Bench was that it came to hold that if in fact the respondent  had been transferred from Calcutta to Mumbai, in that  event,  Calcutta office must have lost all control  or jurisdiction  over  the  service of the respondent  and  the respondent  should  be  treated to be an officer  under  the administrative  control  of the Central office, Mumbai,  and therefore,  the respondent could not have been posted by the Calcutta  office temporarily at Muktaram Babu Street  Branch of  the  State  Bank of India.  To say the least,  when  the employer  takes  a  sympathetic  attitude  and  taking  into account  the  fact  that the employee is not  going  out  of Calcutta for the last so many years, even if transferred and a  posting is given to the employee, somewhere in  Calcutta, that  has  been  considered by the Court to  hold  that  the earlier  order of transfer to Mumbai never existed.  We also do  not  find  any justification for the Division  Bench  of Calcutta  High  Court  to  go into the  question  about  the admissibility  of  drawing  travelling allowance  and  daily allowance and then come to a conclusion that the things have been dealt with in a cavalier fashion and there was no order of  transfer  to Mumbai.  The Court ultimately came to  hold that  there is no question of going into the validity of the transfer,  which  was  neither issued nor  conveyed  to  the person  concerned  and  which  had   no  actual  or  factual existence  at  all but only a myth.  This conclusion of  the Division  Bench  with  utmost respect must be held to  be  a conclusion on surmises and conjectures and we really fail to understand how the Division Bench of the High Court has come to  the  aforesaid  conclusion,  in view of  the  series  of correspondence,  which  we  will refer later.   It  is  also further  surprising  that  the fact that while  posting  the respondent at Muktaram Babu Street Branch, the order had not

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indicated  about  the cancellation of the earlier  order  of posting  at Mumbai and it would be possible for any Court of law  to come to a conclusion that there had been no order of transfer  as such.  The Court then holds the employer liable and  guilty  of lapses and on that score, allows the  salary and  emoluments as well as other service benefits from  17th December,  1986.   The Court also records a conclusion  that the  employee should not suffer because of deliberate lapses and  negligence on the part of the bank and the bank  cannot take  advantage of its own wrong done to the employee for so many  years.  It is curious to note that an employee serving in  an  All  India  Organisation,   where  the  service   is transferable,  could  be  allowed  to flout  the  orders  of transfer on the so-called pretext that the order of transfer had  not  been served upon him and then would be allowed  to draw  his  emoluments on an erroneous finding that the  bank was  negligent in not serving the orders of transfer.   This case is a glaring instance where the Court in its anxiety to help  an employee, recorded the conclusions contrary to  the relevant  materials and arrived at findings on surmises  and conjectures,   even  in  exercise   of   its   discretionary jurisdiction under Article 226 of the Constitution of India.

   An  order  of transfer of an employee is a part  of  the Service  conditions  and  such  order  of  transfer  is  not required  to be interfered with lightly by a Court of law in exercise  of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules  prohibit  such transfer or that the authorities,  who issued  the order, had not the competence to pass the order. The  Central Board of the State Bank of India in exercise of powers  conferred under sub-section (1) of Section 43 of the State  Bank  of India Act, 1955, have framed a set of  rules called the State Bank of India Officers Service Rules.  Rule 47  thereof,  unequivocally provides that every  officer  is liable  for transfer to any office or branch of the bank  or to  any  place  or deputation to any other  organisation  in India.   Rule  49 of the said rules, stipulates the  joining time,   which  an  employee  is   entitled  to  when  he  is transferred to a new place from his old post.  Rule 50 casts an  obligation  on the employee to comply with and obey  all lawful  and reasonable orders and directions, which may from time  to  time  be given to him.  Rule 50(1) may  be  quoted herein-below in extenso:

   Rule  50(1) :  Every officer shall conform to and abide by  these rules and shall observe, comply with and obey  all lawful  and reasonable orders and directions which may  from time  to  time  be given to him by any  person  under  whose jurisdiction, superintendence or control he may for the time being be placed.

   Any  violation  of  the aforesaid rules,  constitutes  a misconduct  under Rule 66 and becomes punishable under  Rule 67.   With this background, when we consider the legality of an  order  of  transfer,  alleged to  have  been  passed  on 14.6.1986,  after the employee had continued in Calcutta for more  than a decade and the said order has not been held  by the  High Court either to be mala fide or that the competent authority  had not passed the order, it is indeed  difficult to  come  to a conclusion that the said order had  not  been passed  nor had been communicated to the employee concerned. Mr.  H.N.Salve, the learned Solicitor General, appearing for

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the State Bank of India, invited our attention to the letter of   the  respondent  addressed  to  the   General   Manager (Operations),  State  Bank  of India,  Calcutta  Local  Head Office,  where- under the respondent had requested to  defer his  transfer upto June, 1987 and in that letter in the very first  paragraph,  the respondent in no uncertain terms  had indicated  that  the  Branch Manager of the  State  Bank  of India, Narkeldanga Branch, has addressed to me by his letter dated  9th October, 1986, which he alleged to have  received on  16th of October, 1986, informing him about his  transfer to  the  Central  Office  at Mumbai.  In the  teeth  of  the aforesaid  letter of the respondent, we are little surprised to find the conclusion of the learned Judges of the Calcutta High  Court,  both the Single Judge as well as the  Division Bench  in entering into an arena of conjecture and come to a conclusion  that there had been no existence of an order  of transfer  nor  the  same  had   been  communicated  to   the respondent.   The  Branch Manager of Narkeldanga Branch  had addressed  a  letter  to the respondent on 8th  of  January, 1987, intimating him that he has been relieved of his duties from  the  said Branch.  The respondent again in his  letter dated  5th of December, 1987 addressed to the Chief  General Manager,  State Bank of India, categorically stated that  he had  been  informed  by the Branch Manager,  State  Bank  of India,  Narkeldanga  Branch, about his transfer  to  Central Office  at Mumbai and he prayed for cancellation of the said posting  and  consider the desirability of posting him at  a suitable  place  in  Calcutta.   The State  Bank  of  India, Calcutta Branch, immediately replied to the aforesaid letter of the respondent, informing him that as per the records, he had  been  relieved from Narkeldanga Branch at the close  of business  on 6th December, 1986, with instructions to report to the Chief Officer, Central Office, Mumbai by their letter dated  14th December, 1987, to which the respondent  replied by  his  letter  dated  12th January, 1988.   Even  in  that letter,  the respondent stated that even though, he has been relieved  from the Narkeldanga Branch w.e.f.  6th  December, 1986,  but he had not been instructed to report to the Chief Officer  (Personnel Administration), Central Office, Mumbai, would itself indicate the frivolous pretext of the employee, as in all earlier letters he had been candid enough to state that  he  had  been  transferred to the  Central  Office  at Mumbai.  In view of the aforesaid correspondence between the employee  and the employer, we are indeed surprised, how the High  Court could rely upon a sentence in the letter of 30th April,  1991,  wherein  a  mention had been  made  that  the officer  concerned was not advised in writing by the  Branch at  the  material  time  and  it is on  the  basis  of  this sentence,  the  High  Court jumped to  the  conclusion  that neither  there existed an order of transfer nor it had  been communicated  to  the respondent.  The bank authorities,  on the   other  hand,  have   been  repeatedly  intimating  the respondent  that  he is remaining absent without joining  at the  place to which he was transferred but yet the  employee concerned did not comply with the order in question.  Having desperate  in their attempt to give effect to a lawful order of  transfer,  when  the  authorities,  took  a  sympathetic attitude  and  posted  the respondent  temporarily  to  M.B. Street,  Calcutta  on 19.7.1991 and then transferred him  to Siliguri  on  8.8.1991, the High Court finds fault with  the same,  on the ground that he having been already transferred to  Mumbai, could not have been posted to the M.B.   Street, Calcutta  without  cancellation  of the  earlier  order  and further  could not have been transferred to Siliguri.   This in  our  view is an entirely erroneous approach of the  High

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Court  in dealing with the legality of an order of transfer. The  entire fact situation unerringly point out to one  fact namely  the  respondent flouted the orders of transfer,  did not  join  the place of posting, did not apply for  or  take leave for his absence, did not discharge his duties, and yet the   High   Court   in   exercise  of   its   discretionary jurisdiction,  not only set aside the order of transfer on a pretext  which does not appeal to us with regard to the non- communication  of  the orders of transfer and even  directed that  the  respondent  would  be  entitled  to  his  salary, increment,  promotion and then only, could be considered for further  transfer to anywhere else.  To us, it appears  that the High Court has granted premium to an errant officer, who did  not  obey the orders of transfer and did not  discharge any  duty  for  which  conduct of his, he  could  have  been proceeded  with, in a departmental proceeding on the  charge of gross misconduct and could have been punished.

   Mr.   S.S.   Ray, the learned senior counsel,  appearing for  the  respondent, strongly argued that an officer  of  a bank could not be orally transferred and, therefore if there does not exist an order of transfer or if the said order had not  been communicated to the employee concerned, the  Court would be justified in holding that the so-called transfer is illegal  and  invalid.  From the series  of  correspondence, referred  to  by  us  earlier and  in  view  of  unequivocal statement  of the respondent therein, it is difficult for us to  hold that there did not exist any order of transfer  and that  the respondent did not know of the same.  On the other hand,  we  are persuaded to come to the conclusion that  the respondent  was  fully aware of the orders of  transfer  and tried  to  evade the same by adopting all possible  pretexts and  continued  to  remain absent  without  discharging  any duties.   Mr.  Ray, then contended that under the guidelines contained  in  the  hand-book of Staff  Matters,  Volume  I, paragraph  8.34(a)  of Chapter VIII deals with  a  situation where  an officer remains absent in an unauthorised  manner. The  very fact that the said procedure had not been  adhered to in the case in hand, justifies the ultimate conclusion of the learned Single Judge of the High Court that the order of transfer  had  not  been served nor the  employee  had  been directed  to  join the office at Mumbai.  We are  unable  to accept  this contention inasmuch as merely because the  bank authorities  did  not  proceed against  the  respondent,  as provided  in  paragraph 8.34(a), it cannot be held that  the respondent  did  not absent himself from the duties  without any  authority.   To  us,  it   appears  that  even   higher authorities  of the bank at Calcutta were quite soft towards the  respondent and it is possibly for that purpose, had not taken any action against him for all the lapses committed by him.   On the materials on record, we are not in a  position to  agree with the conclusion of the learned Single Judge as well  as the Division Bench of the Calcutta High Court  that the  order  of  transfer  dated  14.6.86,  transferring  the respondent  to  the Central Office at Mumbai was in any  way illegal  and invalid and can be held to be null an void.  On the  other  hand, a valid order of transfer had been  issued and  the employee concerned had been relieved of his  duties but  instead  of joining the place of posting, the  employee concerned  went  on representing the authorities and  openly disobeyed  the  orders  of  transfer.  We are  also  of  the opinion  that  there was no infirmity with the  order  dated 8.8.1991,  transferring  the respondent to Siliguri and  the High Court was totally in error in interfering with the said order on the hypothesis that until and unless the respondent

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get  his  emoluments  for  the  entire  period  as  well  as promotion,  question of transferring him out of  Narkeldanga Branch does not arise.  Such a conclusion is not permissible to  be  drawn  on  the fact  situation  and  we,  therefore, unhesitatingly set aside the same.  We further hold that the order  of  transfer  to  Siliguri was  also  valid  and  the respondent did flout the same.

   So  far as the direction of the High Court regarding the salary and other pecuniary benefits are concerned, Mr.  Ray, contended that for an employee of the bank in the absence of any  rules,  the principle of no work no pay can  be  made applicable  and  so long as the relationship of  master  and servant  continues  and the service has not come to an  end, the  employee  is  entitled to his salary.  It  is  in  this context,  Mr.  Ray relied upon two decisions of this  Court, the  case  of Bank of India vs.  T.S.  Kelawala and  Others, 1990(4)  SCC 744 AND Syndicate Bank and Anr.  vs.  K.  Umesh Nayak,  1994(5)  SCC 572.  The latter one is a  Constitution Bench decision.  In the first case, referred to by Mr.  Ray, the  question  for  consideration was if an  employee  takes recourse to strike or go slow or any other method, resulting in  no  work  for the whole day or days,  then  whether  the Management  will be entitled to deduct pro rata or otherwise wages  of the participating workmen notwithstanding  absence of  any  stipulation  in the contract of employment  or  any provision  in  the  service rules, regulations  or  standing orders.   Mr.  Ray relied upon the observations made in  the aforesaid  judgment  in paragraph 22, to the effect-  Where the    contract,   Standing    Orders    or   the    service rules/regulations  are silent on the subject, the management has the power to deduct wages for absence from duty when the absence  is a concerted action on the part of the  employees and the absence is not disputed. In the latter Constitution Bench  decision  also,  the Court  was  considering  whether workers  having been on strike, whether wages could be  paid or  the  theory of no work no pay would apply.   Mr.   Ray contended  that  the  ratio in the aforesaid  case  is  that unless the rules permit, the respondent would be entitled to the  salary.  In the Constitution Bench decision, the  Court has  observed  that to entitle the workmen to the wages  for the  strike period, the strike has to be held both legal and justified  and whether the strike is legal or justified  are questions  of fact to be decided on the evidence on  record. Applying  the  same  to the facts of the present  case,  the order of transfer having been held by us to be valid and the employee  having  not  obeyed  the   same,  and  not  having discharged  the  duties, but yet continuing in service,  how the  period  should  be  dealt with, will  depend  upon  the relevant  rules  and regulations of the Bank.  We  are  told that  the  State Bank of India Officers Service Rules  deal with  the  said  situation, and,  therefore,  the  competent authority of the bank would deal with the same.  But we have no  hesitation  in setting aside the directions of the  High Court,  directing  the  bank  to pay the  salary  and  other benefits  to  the  respondent in the case in hand.   In  the aforesaid premises, we set aside the judgment of the learned Single  Judge  as  well  as that of the  Division  Bench  of Calcutta  High  Court  and  allow  this  appeal.   The  writ petition  filed  by the respondent in the High Court  stands dismissed.

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