Kolappa Pillai v. Kerala Gramin Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** ## **WP(C).No. 13589 of 2018** ## **PETITIONER/S:** **KOLAPPA PILLAI AGED 55, S/O.ARUMUGHAM PILLAI, 'AKHILAM', PANACODE PO, THIRUVANANTHAPURAM DISTRICT, PIN-695542. BY ADV. SMT.SURYA BINOY** ## **RESPONDENT/S:** |**1**|**M/S.KERALA GRAMIN BANK**| |---|---| ||**REPRESENTED BY ITS GENERAL MANAGER, KGB TOWERS, AK**| ||**ROAD, UPHILL, PB NO.10,MALAPPURAM, PIN-676505.**| |**2**|**CHAIRMAN MS.KERALA GRAMIN BANK**| ||**KGB TOWERS, AK ROAD, UPHILL, PB NO.10,MALAPPURAM,**| ||**PIN-676505.**| |**3**|**GENERAL MANAGER MS.KERALA GRAMIN BANK**| ||**KGB TOWERS, AK ROAD, UPHILL, PB NO.10,MALAPPURAM,**| ||**PIN-676505.**| **BY ADV. SRI.T.R.RAVI, SC, KERALA GRAMIN BANK** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.13589 of 2018-W ------------------------------------------- _Dated this the 20[th] day of August, 2018_ ## _**JUDGMENT**_ The petitioner, who is working as Manager in the Kerala Gramin Bank presently at Kottayam, is aggrieved by his transfer ordered as per Ext.P1 and also over the denial of transfer back near to his home town in Thiruvananthapuram. 2. The petitioner got a transfer to Regional Office, Thiruvananthapuram district in the year 2015, while he was working at Malappuram. Within two years he was transferred to Regional Office, Kasaragod, as per Ext.P1 order dated 28.8.2017, simultaneously relieving him with direction to report at Kasaragod on the very next day. Aggrieved by this, the petitioner had submitted Ext.P2 representation before the Chairman – the 2[nd] respondent, requesting to cancel the transfer, pointing out that he joined the Regional Office at Thiruvananthapuram only on 29.5.2017; his only son is serving in Indian Army at a remote place; his wife is a cardiac patient and is unable to undertake travel and she needs frequent medication and check up from hospitals at Thiruvananthapuram. He requested to accommodate him in any of the branches at Peroorkada, W.P(C) No.13589 of 2018-W 3 Nedumanganad or Mukkolakkal. Following the transfer, it became necessary for the petitioner also to avail leave on medical grounds. He submitted another representation Ext.P4 in October, 2017, requesting for transfer. As per Ext.P5 order dt.27.10.2017 he was transferred to Kottayam . As the petitioner continued to suffer from the very same problems even after transfer to Kottayam, because his wife was unable to travel and was alone at Thiruvananthapuram, he again submitted Ext.P6 representation on 2.11.2017, pointing out that he had been working outside the district for the major portion of his service career. 3. Whileso the petitioner received Ext.P8 notice dated 15.01.2018 alleging that the petitioner had along with the Chief Manager Satheesh Valiyathan and Regional Manager Rajan V.C, instructed the Branch Manager, Pravachambalam to release the title deeds in respect of E.M executed by Sri Mahesh Kumar and that the instruction to release documents was detrimental to the interest of the Bank. The petitioner was asked to furnish his explanation on it. He received another show cause notice Ext.P9 issued on 30.1.2018 alleging irregularities in sanctioning loans, while he was working in Vithura Branch. According to the petitioner, the incidents stated in Ext.P9 notice occurred long back and had no connection with his responsibilities. The petitioner submitted his explanation to both notices. 4 W.P(C) No.13589 of 2018-W 4. The petitioner points out that in the meanwhile his son, who is a Captain in Army, had moved through Army Headquarters requesting for transfer of the petitioner, based on which the Company Commandant had addressed the Governor. Thereupon the Sainik Welfare Department of the Government of Kerala called for a report on it from the bank. As per Ext.P13 letter dated 03.02.2018 (produced along with the reply affidavit), the General Manager informed Government that certain irregularities were reported against the petitioner, while he was working in various branches under Regional Office, Thiruvananthapuram, based on which explanation was already called for from him. It was stated that he was transferred to Kasaragod since the competent authority felt that it was not appropriate to retain him at Thiruvananthapuram and that thereafter he was transferred to Kottayam, after considering his representation. On receipt of Ext.P13 letter, the Secretary to Government, as per Ext.P10 letter dated 28.02.2018, informed the petitioner's son that the transfer was on account of irregularities reported against him, for which disciplinary proceedings were initiated. 5. The petitioner submitted another representation Ext.P11 again requesting for a transfer to Thiruvananthapuram and thereafter filed this writ petition challenging the orders of transfer Ext.P1 and Ext.P5 alleging that the same is punitive and seeking a direction to the respondents to 5 W.P(C) No.13589 of 2018-W transfer him to Thiruvananthapuram. 6. According to the statement of the respondents, the petitioner was transferred pending investigation into the irregularities found against him. It is stated that M/s Saju and Satheesh Babu had availed loans from Pravachambalam Branch by taking the EM security of the property of one Mahesh Kumar. Sri. Mahesh Kumar wanted to get his title deed released after closing one of the loans; since the security of the other loan would become insufficient the Branch Manager refused permission. The petitioner along with the Chief Manager Satheesh Valiyathan instructed the Branch Manager at Pravachambalam to release the documents of Sri. Mahesh Kumar; on instruction from the petitioner Sri. Mahesh Kumar remitted the amount for closure of one loan, which was kept as sundry liabilities account; the Branch Manager was pressurised to release the documents, calling him to the Regional Office; permission from Head Office was sought without disclosing the deficiency towards the security for the remaining loan, etc. It is stated that transfer is ordered for ensuring a fair and unbiased enquiry; investigation report revealed irregularities on the part of the petitioner, the Chief Manager and the regional manager and that they have already submitted their explanation to the charge sheets. It is stated that irregularities were found against the petitioner for the period during which he worked at W.P(C) No.13589 of 2018-W 6 Vithura and Nedumangad branches. It is stated that the Regional Manager V.C. Rajan was transferred as Chief Manager at Kannur on 31.03.2018 and the Chief Manager Sri. Satheesh Valiyathan was transferred to Trissur on 19.06.2018. 7. The petitioner filed a reply affidavit stating that at the time of his transfer as per Ext.P1 order, no investigation or disciplinary action could have been said to be contemplated. Pointing out that Ext.P14 enquiry report was submitted only on 20.10.2017 and that enquiry was conducted only on 22.9.2017 and 13.10.2017, the petitioner pointed out that there was no reason for transfering him on 28.08.2017. Petitioner points out that there is no finding against him even in the enquiry report Ext P14. It is also stated that neither the Chief Manager nor the Regional Manager were transferred, though the allegation itself was that he along with them compelled the Branch Manager to release the documents; finally one of them was transferred in March 2018 to his choice station and the other one was transferred only on 19.06.2018, for the purpose of this case, whereas he was transferred on 28.08. 2017, when not even an enquiry was contemplated against him. According to the petitioner, even Exts.P8 and P9 show cause notices are pre-dated and issued on receipt of the letter from Government in respect of denial of transfer back to Thiruvananthapuram. It is his case that W.P(C) No.13589 of 2018-W 7 though he had already submitted his reply to the show cause notices, in Ext.P13 letter dated 13.02.2018, the respondents stated that his reply was awaited. The petitioner points out that Ext.P8 show cause notice was issued only on 15.1.2018; whereas he was transferred to Kasaragod as early as on 28.8.2017 even before the enquiry or enquiry report Ext.P14 was furnished. Relying on Ext.P7 appraisal report dt.15.3.2017 in which his performance was assessed as outstanding the petitioner challenged the order of transfer alleging that the same is motivated by malice in law and issued in lieu of punishment without following any procedure. Relying on the judgment of the Apex Court in _**Somesh Tiwari v. Union of India and Ors.**_ [2009 (2) SCC 592] and _**Gopinathan M. and Anr. v. State of Kerala & Ors.**_ 2014 (4) KHC 315, Smt. Surya Binoy, the learned counsel for the petitioner argued that the order of transfer is punitive and is liable to be interfered with. 8. It is also the case of the petitioner that there was no material against him for a transfer. Even though an interim order was passed by this Court on 19.7.2018 to consider the request of the petitioner for a transfer to Thiruvananthapuram, when it was pointed out that a vacancy at Muckolackal branch would be available, the petitioner was denied a posting in that branch. It is stated that the respondents deliberately filled up the vacancies near his home town and offered transfer to far off place. At the same time, 8 W.P(C) No.13589 of 2018-W the Regional Manager, against whom also an enquiry was conducted and allegations were levelled against for releasing the documents, was favoured by granting him a transfer to Kannur which was a station requested by him which is his home station. It is therefore stated that the punitive and discriminatory action was initiated only against the petitioner. 9. It is settled law that orders of transfers are not liable to be interfered with under Article 226 of the Constitution of India except when it is issued in violation of a statutory rule or by an incompetent authority or when it is vitiated by malafides. The allegation of malafides shall also be substantiated by pleadings. There is no allegation as to violation of statutory rules or incompetency. There is no allegation of malafides also. The petitioner alleges malice in law. 10. According to the respondents, the transfer is ordered for ensuring a fair and unbiased enquiry against the petitioner into the allegations regarding the involvement of the petitioner in instructing a Branch Manager to release a title deed. It is also stated that the investigation report revealed irregularities on the part of the petitioner. But the finding in Ext P14 investigation/enquiry report (in para 10) is the following: > _“It is understood that the recovery officer of R.O, Kolappa Pillai had mediated with the parties. But, there is no reason to believe that the Chief Manager Satheeshan Valiyathan and Recovery Officer Kolappa Pillai of R.O had acted with vested interests. It appears that they had involved with the knowledge, consent and_ 9 W.P(C) No.13589 of 2018-W _directions of the Regional Manager.”_ 11. Ext P14 enquiry report is seen submitted on 20.10.2017. As pointed out by the learned Counsel for the petitioner, as on the date of Ext.P1 on 28.08.2017, there was no enquiry report. The incidents leading to the enquiry were only going on. The enquiry report dt.20.10.2017 refers to the enquiry conducted on 22.9.2017 and 13.10.2017. The enquiry was into the allegation that branch manager Pravachambalam was compelled to release E.M documents. The allegation is that the petitioner along with the Chief Manager as well as the Regional Manager insisted the Branch Manager to release the documents to a guarantor. The petitioner was transferred on 28.08.2017. At the same time, the Chief Manager and Regional Manager were not touched. Though one of them was transferred much after that in March 2018, it was to his home town. The other one was transferred on 19.06.2018, just one week before the filing of the statement in this writ petition, by the respondent until March 2018. Therefore, I find force in the contention of the learned Counsel that the petitioner was singled out. When the respondents have stated a reason for the transfer of the petitioner, the contention of the learned Counsel that as on the date of Ext.P1 there was no reason for his transfer also is relevant. 12. The petitioner has requested for a transfer near to his home 10 W.P(C) No.13589 of 2018-W town in Thiruvananthapuram because of the physical condition of his ailing wife who requires constant treatment, especially when his son is in Army. The findings in Ext.P14 enquiry report would not support the contention of the respondents that the petitioner cannot be brought back to his home town. Therefore, I am of the view that the request of the petitioner to a station near to his home requires consideration by the respondents. The writ petition is therefore disposed of directing the respondent bank to consider the request of the petitioner for a transfer near to his home town , as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of the judgment. Sd/ _**(P.V.ASHA, JUDGE)**_ _rtr/_ ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE EMAIL DATED 28.08.2017 PURSUANT TO PROCEEDINGS OF THE GENERAL MANAGER.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED** 11 W.P(C) No.13589 of 2018-W - **29.08.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P3** - **TRUE COPY OF THE REQUEST FOR LEAVE PREFERRED BY THE PETITIONER BEFORE THE REGIONAL MANAGER, KASARGOD DATED 30.08.2017.** - **EXHIBIT P3(A) A** - **TRUE COPY OF THE MEDICAL CERTIFICATE DATED 30.08.2017.** - **EXHIBIT P4** - **TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 17.10.2017 BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE EMAIL DATED 27.10.2017 CONSEQUENT TO THE PROCEEDINGS OF THE GENERAL MANAGER DATED 27.10.2017.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 02.11.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS NUMBER 9/KGB/APAS/531/2017/ST 1819/HRW/SKCA DATED 15.03.2017.** - **EXHIBIT P8 TRUE COPY OF THE SHOW-CAUSE NOTICE DATED 15.01.2018 ISSUED BY CHIEF MANAGER, INDUSTRIAL RELATIONS CELL.** - **EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 30.01.2018 ISSUED BY CHIEF MANAGER, INDUSTRIAL RELATIONS CELL.** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 28.02.2018 ISSUED BY THE SECRETARY TO THE DEPARTMENT OF SAINIK WELFARE TO THE PETITIONER'S SON.** - **EXHIBIT P11 TRUE COPY OF THE PETITIONER'S REQUEST FOR GENERAL TRANSFER DATED 12.03.2018.** **EXHIBIT P14 : TRUE COPY OF THE ENQUIRY REPORT DT.20.10.2017 SUBMITTED BY THE ENQUIRY OFFICER.** W.P(C) No.13589 of 2018-W 12 **EXHIBIT P15 : TRUE COPY OF THE LETTER DT.19.8.2017 ISSUED BY THE REGIONAL MANAGER TO THE HEAD OFFICE.** **EXHIBIT P16 : TRUE COPY OF THE REPLY FURNISHED BY THE PETITIONER TO EXHIBIT P8.**