Sunny V.V. and Chandrasenan E.T. and Travancore State Bank Employees Association v. State Bank of India and others

1 WPC 12702 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942** ## **WP(C).No.12702 OF 2020(K)** ## **PETITIONER/S:** |**1**|**SUNNY V.V., AGED 57 YEARS**| |---|---| ||**S/O.V.K. VARKEY, VETTIKATTIL HOUSE, ARAKUNNAM P O,**| ||**ERNAKULAM DISTRICT, NOW WORKING AS SUB STAFF (ARMED**| ||**GUARD) STATE BANK OF INDIA, AMBALAMEDU BRANCH,**| ||**ERNAKULAM DISTRICT.**| |**2**|**CHANDRASENAN E.T, AGED 52 YEARS**| ||**EZHUTHUPALLIYIL HOUSE, VARAPETTI P O,**| ||**KOTHAMANGALAM, NOW WORKING AS SUB STAFF(ARMED**| ||**GUARD), STATE BANK OF INDIA, MOOVATTUPUZHA BRANCH,**| ||**ARAMANA COMPLEX, MOOVATTUPUZHA.**| |**3**|**TRAVANCORE STATE BANK EMPLOYEES ASSOCIATION,**| ||**(REGD.2043/56 AFFILIATED TO AISBIEA-AIBEA), CENTRAL**| ||**OFFICE, TKV SMARAKAM, PB NO 157, PULIMOODU,**| ||**THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL**| ||**SECRETARY, K.S. KRISHNA, AGED 55 YEARS, S/O. SRI.K.**| ||**SUBRAHMANIA IYER.**| - **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENT/S:** - **1 STATE BANK OF INDIA REPRESENTED BY CHIEF GENERAL MANAGER(HR), STATE BANK OF INDIA, CORPORATE OFFICE, MADAM CAMA ROAD, MUMBAI, PIN-400021.** - **2 CHIEF GENERAL MANAGER STATE BANK OF INDIA, LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695012.** - **3 DEPUTY GENERAL MANAGER AND CIRCLE DEVELOPMENT OFFICER, STATE BANK OF INDIA LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695012.** - **4 ASSISTANT GENERAL MANAGER(P AND HR)** 2 WPC 12702 OF 2020 **STATE BANK OF INDIA LOCAL HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695012.** - **5 DEPUTY GENERAL MANAGER STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, SHANMUGHAM ROAD, ERNAKULAM, PIN-682031.** - **6 CHIEF MANAGER(HR) STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, SHANMUGHAM ROAD, ERNAKULAM, PIN-682031.** - **7 REGIONAL MANAGER STATE BANK OF INDIA, REGIONAL OFFICE 4, MOOVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686661.** **R1-7 BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.) R1-7 BY SRI.AMAL GEORGE, SC, SBI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1407-2020, THE COURT ON 22-07-2020 DELIVERED THE FOLLOWING:** 3 WPC 12702 OF 2020 ## **C.S.DIAS, J. ====================== WP(C) No.12702 of 2020 ====================== Dated this the 22[nd] day of July, 2020.** ## **JUDGMENT** The petitioners are aggrieved by the transfer of petitioners 1 and 2 from Region No.4 (Moovattupuzha) of the first respondent Bank (in short “Bank”) to Kattappana and Irumbupalam branches, respectively. 2. It is the case of the petitioners 1 and 2 that they are ex-servicemen. After their retirement, they joined the Bank as sub-staff (Armed Guard) in Region No.4. The 3[rd] petitioner is an Association of Bank employees. 3. According to them, Ext P2 HR hand book lays down the guidelines for the transfer and posting of the employees of the Bank. In respect of Armed Guards, the handbook prohibits the transfer of persons who have crossed the age of 55 years, until their retirement. The first petitioner has crossed the age of 55 years. Clause 8.2 of the handbook 4 WPC 12702 OF 2020 stipulates that the employees who have crossed the age of 55 years will be exempted from redeployment outside the Centre (Municipality and Panchayath). However, they can be transferred within the Centre up to the age of 57 years. As per clause 8.2.1, redeployment within the Centre will be on the basis of length of stay at the particular branch and would be on the basis of “first come first go”. The Bank is attempting to transfer the first petitioner to Kattappana from Ambalmedu, which is 135 kms from the present Centre, that too on the high ranges, and the second petitioner to Irumbupalam, which is 75 kms from the present Centre. 4. The petitioners have further contended that eight armed guards in Region No.4 are proposed to be transferred. Except for the petitioners 1 and 2 and two other armed guards, the rest of the armed guards are transferred within the same region and within a distance of 9 kms. It is because the petitioners 1 and 2 and the two other armed guards owe allegiance to the third petitioner association,they are being shunted to the Idukki Region in 5 WPC 12702 OF 2020 violation of Ext P2. The Chief General Manager (HR) at the Corporate Office of the Bank has issued Ext P-1 directing all local headquarters to keep in abeyance transfers under the policy for the time being, until the new transfer policy is implemented. The third petitioner association has preferred a representation to the third respondent, requesting to cancel the transfer orders of the petitioners 1 and 2 and two other armed guards. Hence, the petitioners seek a direction to the respondents not to effect the transfer of the petitioners 1 and 2 beyond Region No.4 in violation of the transfer stipulations contained in Ext P2. 5. The learned Standing Counsel appearing for the respondents has filed a statement, inter alia, contending that the first respondent Bank is the largest Bank in India and has branches across the Country. Out of the several challenges faced by the bank, robbery and theft endanger the life and limb of its staff and customers. To afford adequate protection and to ensure peaceful banking activities, the bank has decided to provide armed guards in 6 WPC 12702 OF 2020 all branches. For the said purpose, the Bank has categorized its branches as “low risk”, “normal risk” and “high risk”. There is a software installed, which categorizes the Branches. The Bank has chosen ex-servicemen to discharge the functions of armed guards, due to their training with fire-arms and exposure to tough opponents. The nature of work to be performed by the armed guards is special in nature and they have to ensure that there is no compromise on the safety and security of the staff, customers, and the valuables of the Bank. The Bank has 66 Branches in Kerala, which are categorized as “low risk” where armed guards are not necessary. Out of the 66 branches, 21 branches are at the Ernakulam module, which consists of branches in Ernakulam and Idukki revenue districts. There are 154 branches in Kerala, which are categorized as “normal risk”, which do not have armed guards. Hence, it was decided to post one armed guard each in these branches. 13 of the said branches are under the Ernakulam module. At present, Tripunithura branch has two armed guards. Likewise, a total of 22 armed guards are 7 WPC 12702 OF 2020 seen posted at “low risk” branches, where no armed guards are necessary. Therefore, as per the extent instruction of the Bank, it has been decided to redeploy the armed guards from the “low risk” branches to “normal risk” branches, for the effective utilisation of the armed guards, and to ensure the safety and security of the staff, customers and valuables of the Bank. 6. It is further contended that the armed guards working in the Bank form a special category and cannot be categorized as falling under clerical or other sub-staff category as mentioned in Ext P2 handbook. The petitioners have not correctly interpreted Ext P2, because clause 8.2 states that redeployment/transfer will be within a Centre as well as outside a Centre. Similarly, a Centre includes a territorial area as per the census of India. Also, in paragraph 1.10 of the updated handbook, it is mentioned that the States/Zila Sainik Boards have been instructed to make it clear to the candidates recruited, that armed guards will be posted anywhere in the State depending on vacancy and administrative exigencies. The names of ex- 8 WPC 12702 OF 2020 servicemen who are not interested in serving anywhere in the State, should not be sponsored by Sainik Boards. The Bank has absolute discretion to transfer armed guards to places within the State it deems fit, for the smooth and effective functioning of the Bank. The transfer of armed guards is an incident of service, and they have no right to claim to be posted at places as per their whims and fancies. In fact, the Bank has already passed transfer orders in connection with redeployment of armed guards in various modules, the details of which are furnished. The first petitioner, who is aged 57 years and the second petitioner, who is aged 52 years, cannot be granted preferential treatment by giving posting according to their choice. Hence, the writ petition be dismissed. 7. The third petitioner has filed a reply affidavit, inter alia, contending that Ext P1 imposes a complete ban on transfers until a new policy is made. 26 armed guards were distributed from their present branches under the Ernakulam Administrative Office. The statistics reveal that the Bank has indulged in highhanded action by transferring 9 WPC 12702 OF 2020 26 armed guards under the Ernakulam Administrative Office. The armed guards who are retired military personnel, in their younger ages, served at very difficult terrains of the border to protect the nation and people. Hence their transfer is arbitrary. The petitioners have an apprehension that the Ernakulam Administrative Office is bye-passing Ext P2 handbook. The HR Department of Delhi Local Head Office has issued Ext P5 freezing all transfers. Clause 8.2.1 of Ext P2 clearly stipulates that redeployment would be on the “first come first go basis”. The petitioners bonafide believe that the transfer order is issued only because the petitioners do not belong to a recognised Union. Hence, the petitioners have prayed that the writ petition be allowed. 8. Heard Sri.Renjith Thampan, the learned Senior Counsel appearing for the petitioners and Sri.George Thomas, the learned Senior Counsel appearing for the respondents. 9. The learned Senior Counsel appearing for the petitioners argued that as per clause 8.1.1, transfers have 10 WPC 12702 OF 2020 to be made within the same Centre/Municipal/Urban agglomeration area. As far as the clerical and subordinate staff are concerned, the transfers can be effected only after five years or longer period. Sub-clause (vi) of 8.1.1 stipulates that employees should normally be transferred in the order of their length of stay at the office, and persons who have attained the age of 55 years shall not be transferred. According to him, as the first petitioner has already crossed the age of 55 years, the order of transfer is in hostile violation of the above clause. He also relied on clause 8.2 and contended that the transfers have to be made on a first come first go basis. The petitioners 1 and 2 have been victimised for being members of the third petitioner association. Only the members of the third petitioner association have been transferred from their present branches. The learned Senior Counsel referred to Table B in the statement (normal risk branches but without armed guards) and contended that in serial Nos 1 to 4 branches in Ernakulam District, there are no existing armed guards. As the Bank management has decided to post armed guards 11 WPC 12702 OF 2020 from “low risk” branches to “normal risk” branches, petitioners 1 and 2 can very well be accommodated in any of the branches in serial Nos 1 to 4 in Table B. He also invited the attention of this Court to paragraphs 7 and 9 of the statement and contended that the averments are contradictory to each other. The Table in paragraph 8 of the statement shows 26 transfers have been made in Ernakulam District, which proves that the transfers have been effected with malafides. He placed reliance on Exts P6 and P7 and contended that armed guards fall within the purview of Ext P2 handbook, and therefore, the respondents are obliged to adhere to the guidelines. He relied on the decision of this Court in **Gopinathan M and another vs State of Kerala and others [2014 (4) KHC 315]** and argued that when the transfer is without any factual foundation or legal support, this Court can always interfere in such mala fide action. He, hence, prayed that the writ petition be allowed. 10. The learned Standing Counsel appearing for the respondents drew the attention of this Court to grounds (a) and (c) of the writ petition. According to him, the trump- 12 WPC 12702 OF 2020 card of the petitioners' case is that, as per Ext P1, the Chief General Manager has directed to keep all transfers in abeyance until the transfer policy is reviewed, and that the transfers of the petitioners 1 and 2 are against clause 8.2 of Ext P2. He argued that there is no whisper of malice or arbitrariness in the writ petition, other than for the alleged infraction of clause 8.2 of Ext P2. According to him, Ext P1 was issued only in respect of Career Progression Scheme (CPS) implementation with effect from 1.6.2020. He placed emphasis on paragraph 2 of Ext P1 and submitted that while the transfer policy for the award staff was under revision, transfers were directed to be kept in abeyance till the new transfer policy is implemented. He also argued that Ext P5 Policy that has been produced by the petitioners only relates to the local head office at New Delhi, which is not applicable to the Kerala region. He submitted that Bank has 15 circles in the Country, out of which Kerala State is treated as one circle. In Kerala, there are five modules of which Ernakulam is one module. Although there are 1400 branches in the State of Kerala, only 930 armed guards are deployed. It 13 WPC 12702 OF 2020 was in the given circumstances that the Bank decided to carry out a prioritisation exercise by classifying the branches into “low risk”, “normal risk” and “high risk”. As the petitioners 1 and 2 were working in a “low risk” branch, the first respondent deemed it fit to transfer the petitioners 1 and 2 and the other armed guards from “low risk” branches to the “normal risk” branches. It was in the said situation that the petitioners 1 and 2 have been transferred to Kattappana and Irumbupalam. The learned Senior Counsel placed reliance on the decision of the Hon'ble Supreme Court in **Union of India and others vs S.L.Abbas [1993 KHC 986]** to fortify his contention that unless an order of transfer is vitiated by malafides or made in violation of any statutory provision, the Courts cannot interefere with. There is no averments in the writ petition regarding any malice or statutory violation. He also placed reliance on the recent decision of the Hon'ble Supreme Court in **Union of India and another vs Deepak Niranjan Nath Pandit [(2020) 3 SCC 404].** He relied on paragraph 3 of the said decision, which reads as follows: 14 WPC 12702 OF 2020 **“** 3. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. (emphasis given) 11 **.** Hence, he contended that in the facts and circumstances of the case and in light of the well-settled proposition of law, there is no merit in the writ petition, which deserves to be dismissed. 12. The sole question that emerges for consideration in 15 WPC 12702 OF 2020 this writ petition is whether the transfer and posting of the petitioners 1 and 2 from Region No.4 (Moovattupuzha) of the Bank to Kattappana and Irumbupalam branches, respectively, is justifiable or not. 13. The scope of judicial review, in matters relating to transfer and posting of employees under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court. 14. In addition to the law laid down in **Union of India and others vs S.L.Abbas and Union of India and another vs Deepak Niranjan Nath Pandit** cited by the learned Standing Counsel appearing for the respondents, the Hon'ble Supreme Court has declared the law in the following decisions. (i) In **Shilpi Bose and Others v. State of Bihar and Others** [(1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows: - “ 4. In our opinion, the courts should not - interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a 16 WPC 12702 OF 2020 transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day trasnfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders.” (ii) The above legal proposition has been reiterated by the Hon'ble Supreme Court in **State of M.P. and Another v. S.S.Kourav and others** [(1995) 3 SCC 270], wherein, it is laid down thus: “4..............................................................The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation..................................................................... ........................................................” ## (iii) Again, in **Somesh Tiwari v. Union of India and** 17 WPC 12702 OF 2020 **Others** [(2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows: “20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law.” 15. The petitioners 1 and 2 do not have a case that they fall under the Career Progression Scheme as stipulated under Ext P1. They have treated Ext P1 as a general order, interdicting all transfers until a new policy is implemented, which is not the case. Therefore, the petitioners cannot place any reliance on Ext P1. 16. The petitioners have also relied on 8.1.1 of Ext P2 and contended that transfers should be made within the same Centre/Municipal/Urban agglomeration area. The petitioners have not refuted the assertion of the respondents in the statement that Ernakulam module of the branch consists of Ernakulam and Idukki revenue Districts. The respondents have transferred the petitioners from a “low 18 WPC 12702 OF 2020 risk” branch i.e., from Region No.4 (Moovattupuzha) in Ernakulam District, to Kattappana and Irumbupalam branches, respectively in Idukki District. Therefore, there is no infraction of sub-clause (i) of clause 8.1.1 of Ext P2. 17. With reference to the other contention regarding length of service at the office, I am of the opinion that the same is not substantiated by any pleading or material. Other than for a bald statement in the affidavit accompanying I.A 1/2020, that there are two other guards in the Ambalamedu branch of the Bank, there is no averment or material on record, to substantiate the contention. Be that as it may , it is settled law that it is for the appropriate authority to decide which employee has to be transferred and posted from one place to another. Other than for the specious plea, that due to the allegiance of the petitioners 1 and 2 to the third petitioner association that they have been victimised, there is absolutely no material to prove the allegation. 18. Going by the averments in the statement filed by the respondents and the reason put forth by the Bank to 19 WPC 12702 OF 2020 transfer the armed guards, who are undisputedly less in number when compared to the branches of the Bank, from “low risk” branches to “normal risk” branches, I am convinced that the reason is wholly justifiable and an incident of service. It can be easily assimilated from the pleadings and documents that the transfer and posting of the petitioners 1 and 2 is to meet administrative exigencies of the Bank. Moreover, the transfer is within the same module of the Bank, though the module falls within two revenue Districts. Undisputedly, the distance from residence of the petitioners 1 and 2 to the branches that they are transferred is less than 100 kms. Also, sub-clause (x) of clause 8.1.1 of Ext P2 confers a right on the management to make transfers on administrative grounds. This right read along with modified handbook, which stipulates that Bank guards will be posted anywhere in the State, depending on the vacancy and administrative exigencies, and that Sainik Boards shall not sponsor, those armed guards who are not interested to stay anywhere in the State, I am of the considered opinion that there is no 20 WPC 12702 OF 2020 merit in the claim put forth by the petitioners 1 and 2 to interdict their orders of transfer. No employee has any vested legal right to dictate terms to the employer that he should be posted at a particular station as per his convenience. 19. The Division Bench of this Court in **Rajan v. Director General of Police** [1999(2) KLT 673] has, interalia, laid down the law that employees of a disciplined force are liable to be transferred for administrative reasons and in public interest. I am of the opinion that the petitioners 1 and 2 fall within the category of disciplined force, and that they cannot grumble on being transferred in public interest, from a “low risk branch” to a “normal risk branch”. I also hold that the third petitioner does not have the locus-standi to espouse the cause of its members in matters relating to transfer and posting, as the same is not permissible under service jurisprudence. 20. On a cumulative appreciation of the facts and the law declared by the Hon'ble Supreme Court in the aforecited precedents, I am of the view that there is no mala fides in 21 WPC 12702 OF 2020 the orders of transfer of the petitioners 1 and 2, which is purely an incident of service. The transfer is not vitiated by malafides or is there any infraction of any statutory provisions. Hence, I do not find any grounds warranting interference by this Court, in exercise of its powers under Article 226 of the Constitution of India, to interdict the orders of transfer passed against the petitioners 1 and 2. Resultantly, this writ petition is dismissed. **Sd/-** **C.S.DIAS** **JUDGE** Sks/15.7.2020 22 WPC 12702 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF CHIEF GENERAL MANAGER AS PER CORPORATE CENTRE LETTER NO. HR/IR/RP/2020-21/142 DATED 29.05.2020.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF CHAPTER 8 OF HR HANDBOOK VOLUME 2 OF 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 10.06.2020 OF 3RD PETITIONER ASSOCIATION TO THE DEPUTY GENERAL MANAGER.** - **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 17.06.2020 OF 3RD PETITIONER ASSOCIATION TO THE DEPUTY GENERAL MANAGER.** **TRUE COPY OF THE CIRCULAR DATED 30.06.2020 OF HR EXHIBIT P5 DEPARTMENT, DELHI** **EXHIBIT P6** **TRUE COPY OF THE RELEVANT PAGES OF HR HANDBOOK VOLUME 2 OF THE SBI UPDATED AS ON 31ST MARCH 2018** **EXHIBIT P7 TRUE COPY OF THE RELVANT PAGES OF THE TABLE SHOWING TEH DUTIES OF VARIOUS POSTS IN SUBORDINATE CADRE** ## **RESPONDENTS ANNEXURES** **ANNEXURE A- TRUE PHOTOCOPY OF THE E-CIRCULAR CDO/P & HRD-PM/118/2017-18 DATED 28.3.2018**