W.P.(C) No.16674 of 2020 (H)

1 WPC 16674 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** ## **WP(C).No.16674 OF 2020(H)** ## **PETITIONER/S:** - **1 RAJESH KUMAR RAVINDRAN, AGED 48 YEARS, KERALA GRAMIN BANK, PERINGOTTUKURISSI BRANCH , PERINGOTTUKURISSI, PALAKKAD 678 573. (EMPLOYEES NO. 5836).** - **2 BADARISH.S., KERALA GRAMIN BANK, CHANGANASSERY BRANCH , ASSISSI BUILDING, MARKET ROAD, KOTTAYAM 686 101 (EMPLOYEES NO. 5164).** - **3 ANIL KUMAR.G.,KERALA GRAMIN BANK, KOIPURAM (PULLAD)BRANCH , PRESENTLY POSTED AYOOR BRANCH NSS PRADESHIKA BUILDING, AYROOR, PATHANAMTHITTA 689 611 (EMPLOYEES NO. 5046).** - **4 SAJITH.R.,KERALA GRAMIN BANK, KADAMBANAD BRANCH , CHURCH BUILDING, KADAMBAND SOUTH , PATHANAMTHITTA 691 553. (EMPLOYEES NO. 5043).** - **5 SHAJI.M.N.,KERALA GRAMIN BANK, VAKATHANAM BRANCH , ONATT TRADE CENTRE, NJALIYAKUZHY, VAKATHANAM, KOTTAYAM 686 539. (EMPLOYEES NO. 5056).** - **6 ANEESH KUMAR. C T.,KERALA GRAMIN BANK, CHINGAVANAM BRANCH , CHINGAVANAM , KOTTAYAM 686 531 (EMPLOYEES NO. 5894)** - **7 SURESH KUMAR. G.,KERALA GRAMIN BANK, KATTANAM BRANCH , GALAXY BUILDING, KATTANAM, PALLICKAL P.O. ALAPPUZHA 690 503. (EMPLOYEES NO. 5057).** **BY ADVS. SRI.T.R.JAGADEESH SRI.V.A.VINOD SRI.B.RATHEESH** ## **RESPONDENT/S:** **KERALA GRAMIN BANK, REPRESENTED BY ITS GENERAL MANAGER, KGB TOWERS, AK ROAD, MALAPPURAM, KERALA 676 505.** **R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS R1 BY ADV. SRI.PAULOSE C. ABRAHAM R1 BY ADV. SRI.RAJA KANNAN** ## **OTHER PRESENT:** ## **SC- M GOPIKRISHNAN NAMBIAR .** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WPC 16674 OF 2020 ## **C.S.DIAS, J.** ## **====================== W.P.(C) No.16674 of 2020** **====================== Dated this the 26[th] day of August, 2020.** ## **JUDGMENT** The petitioners are employed as Clerks (Office Assistants) in various branches of the respondent Bank. 2. It is the case of the petitioners that as per the general transfer policy of the Bank, the tenure of posting for Office Assistants in a branch is five years extendable to seven years. By clause (ii) of Schedule VI of Ext P1 Eighth Bipartite Settlement, in cases necessitating deployment outside the District, an employee can be transferred only up to a distance not exceeding 100 km from his present place of posting. Whereas, in total disregard of the prevailing policy in general, and the present corona virus pandemic period in particular, the petitioners have been transferred on a short notice as per Ext P2. All the employees covered by ExtP2 have received 3 WPC 16674 OF 2020 the orders of transfer directing them to be relieved by 7.8.2020 and 18.8.2020, as per their region. 3. According to the petitioners, Ext P2 order was effected in total disregard to the pandemic and flash floods. Moreover, the orders of transfer are violative of the COVID 19 protocol, and that the transfers may fuel the spread of corona virus, as bank employees are considered prone to viral infections due to their nature of job. The orders of transfer, initiated by the administrative authority, amount to unfair labour practice actuated by malafide. Hence, Ext P3 order relieving the petitioners is also unjust, unfair, illegal, improper arbitrary and malafide. In the instant case, all the petitioners are posted to far away stations beyond 100 kms from their present station, which is in violation of Ext P1 settlement. There is no service exigencies during this pandemic period warranting a mass transfer of the employees. Hence, the petitioners seek to declare that Ext P2 mass order of transfer is illegal, unjust and unwarranted and that the petitioners are entitled to be retained at their present branches. 4. The Bank has filed a counter affidavit. It is, inter alia, 4 WPC 16674 OF 2020 contended that the Board of Directors of Bank at its meeting held on 25.2.2020 by Ext R1(a) policy has adopted and decided to implement a transfer policy for officers (up to scale III) and workmen of the Bank. The conduct of the employees are governed by Ext R1(b) Regulations, 2013. As per Regulation 74 of Ext R1(b), every employee is liable to be transferred to any branch /office of the Bank. As per Ext R1(a) policy, the general transfers in the Bank is effected normally during the month of April every year. However, the transfer process for the year 2020 was kept on the hold from March 2020, due to the COVID 19 pandemic. As a result of the pandemic, several restrictions were imposed in the functioning of the Banks, including imposition of travel restrictions. Since the lock down has been lifted, and the Central and State Governments have eased the travel and other restrictions, the Bank has issued Ext P2 order of transfer. 5. The Bank has further contended that Ext P1 bipartite settlement was signed between the Indian Banks Association and the trade unions. Ext P1 is applicable only to the member banks listed in the schedule I of the 5 WPC 16674 OF 2020 bipartite settlement. The respondent is not a signatory to Ext P1 settlement and, therefore, Ext P1 is not binding on the Bank. The general transfer is a routine process of redeployment of the staff of the Bank as per its guidelines and policies. There is no unfair labour practice or malafides in the transfer. Mere allegations and vague suggestions are insufficient to infer and establish malice. The transfer of office assistants from one branch to another of the Bank is an administrative action. There is a power of transfer vested with the employer and the same is evident from Exts R1(a) and R1(b). The writ petition is devoid of any merit and is liable to be dismissed. 6. When the writ petition came up for hearing, the petitioners filed I. A No.1 /2020 producing Exts P5 to P12. Ext P5 is the transfer policy signed by the Board of Directors of the respondent on 26.02 2020 and Exts P6 to P12 are the representations submitted by the petitioners. 7. Heard Sri. T. R. Jagadeesh, the learned counsel appearing for the petitioners and Sri. M. Gopikrishnan Nambiar, the learned Standing Counsel appearing for the respondent. 6 WPC 16674 OF 2020 8. The learned counsel appearing for the petitioners argued that the petitioners would be satisfied if the competent authority of the Bank is directed to consider Exts P6 to P12 representations. In view of the stand taken by the respondent in the counter affidavit that the respondent is not a signatory to Ext P1 bipartite settlement, the petitioners are not pressing the said contention. Nevertheless, the petitioners have projected various personal difficulties in Exts P6 to P12 representations. 9. The learned Standing Counsel appearing for the respondent contended that Ext P2 is a general order of transfer, whereby the Bank has transferred and posted 464 employees from different branches, to meet exigencies of service. The order was passed on 5.8.2020. Other than for the petitioners, 457 employees have already joined their respective places of posting. At this juncture, it is virtually impossible for the Bank to consider the representations, especially, because it is a general order of transfer and the petitioners have to take the places of those employees who have already left their respective positions. There is no 7 WPC 16674 OF 2020 whisper of malice or infraction of any statutory right. The trump-card of the petitioners was that the Bank is bound by Ext P1 bipartite settlement, which has been proved inapplicable to the Bank as it was not a signatory to the same. Similarly, Ext P5 transfer policy that has been produced is only applicable to officers. Whereas, the petitioners are only workmen. Therefore, the writ petition is only liable to be dismissed. 10. 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 plethora of judicial pronouncements by the Hon'ble Supreme Court. 11. The Hon'ble Supreme Court in **Shilpi Bose and Others v. State of Bihar and Others** [(1991) Supp 2 SCC 659] held 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 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 8 WPC 16674 OF 2020 continue to interfere with day to day transfer 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." ## 12. In **Somesh Tiwari v. Union of India and Others** [(2009) 2 SCC 592], the Hon'ble Supreme Court declared thus: "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." ## 13. In a recent decision reported in **Union of India and another vs Deepak Niranjan Nath Pandit** [(2020) 3 SCC 404] the Hon'ble Supreme Court has held as follows: **“** 3. x x x x x x x x x x x x 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 9 WPC 16674 OF 2020 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 supplied) 14. On an evaluation of the ratio decidendi in the above-cited precedents, the Hon'ble Supreme Court has delineated the two cardinal ingredients to be pleaded and proved in a challenge against an order of transfer, i.e., (i) malice and/or (ii) infraction of a statutory provision. 15. The only point that arises for consideration in this writ petition is whether Ext P2 order of transfer relating to the petitioners is justifiable or not. 16. The pivotal contention of the petitioners is that Ext P2 order of transfer is bad in view of Ext P1 bipartite settlement that was arrived at between the trade unions and the Banks, whereby the petitioners cannot be transferred to branches beyond 100 kms. 17. In the counter affidavit the Bank has categorically averred that it is not a signatory to Ext P1 bipartite settlement. This assertion has not been refuted by the petitioners. Instead, the learned counsel appearing for 10 WPC 16674 OF 2020 the petitioners conceded to the said fact and sought for only consideration of Exts P6 to P12 representations. Therefore, it is established that there is absolutely no infraction of any policy or guidelines. The petitioners have also not pleaded or proved any malafides in passing Ext P2 order of transfer. The petitioners are only apprehensive that they may get afflicted with COVID-19, if they are transferred. They have also highlighted various personal difficulties in the representations. 18. The Honourable Supreme Court in **Deepak Niranjan Nath Pandit** (supra) has categorically held that the question of hardship is a matter to be considered by an employer. The present stand of the Bank is that it is nearly a month since Ext P2 order of transfer had been passed and other than for the petitioners, all the other employees have joined their respective stations and that the posts of the petitioners are lying vacant causing hardship to the Bank. Hence, the Bank is not inclined to consider Exts P6 to P 12 representations. 19. The Honourable Supreme Court in **Government of India vs. P.Venkatesh [(2019) 15 SCC 613]** has 11 WPC 16674 OF 2020 deprecated the practice of 'representation disposal mantra'. It has been observed that only those representations which are sustainable in law should be directed to be considered, otherwise the case has to be decided on its merits. 20. In view of the present stand taken by the Bank and considering the fact that the other 457 employees covered by Ext P2 have already joined their present stations and it is nearly a month since Ext P2 order has been passed, I am not inclined to direct the respondent, at this stage, to consider Exts P6 to P 12 representations. 21. On an overall appreciation of the facts and materials on record and the law laid down by the Honourable Supreme Court in the aforecited decision, I am of the definite view that there is no illegality in Ext P2 order of transfer. The writ petition fails and is dismissed. ## **Sd/-** **C.S.DIAS** Sks/26.8.2020 **JUDGE** 12 WPC 16674 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE RELEVANT EXTRACT COPY OF SCHEDULE I OF 8TH BIPARTITE AGREEMENT DATED 02.06.2005.** - **EXHIBIT P2 TRUE COPY OF TRANSFER ORDER BULLETIN 4/2020 DATED 05.08.2020.** - **EXHIBIT P3 TRUE COPY OF LETTER NO. O/KGB/HRW/930/2020 DATED 06.08.2020.** - **EXHIBIT P4 TRUE COPY OF NEWS ITEM APPEARED IN MALAYALA MANORAMA DAILY DATED 11.08.2020.** - **EXHIBIT P5 TRUE COPY OF TRANSFER POLICY CIRCULAR NO.50/2020 DATED 26/02/2020.** - **EXHIBIT P6 TRUE COPY REQUEST DATED 18/08/2020 ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 1ST PETITIONER.** - **EXHIBIT P7 TRUE COPY OF REQUEST DATED 18/08/2020 ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 2ND PETITIONER.** - **EXHIBIT P8 TRUE COPY OF REQUEST DATED 18/08/2020 ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 3RD PETITIONER.** - **EXHIBIT P9 TRUE COPY OF REQUEST ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 4TH PETITIONER.** - **EXHIBIT P10 TRUE COPY OF REQUEST DATED 18/08/2020 ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 5TH PETITIONER.** - **EXHIBIT P11 TRUE COPY OF REQUEST ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 6TH PETITIONER.** - **EXHIBIT P12 TRUE COPY OF REQUEST DATED 18/08/2020 ALONG WITH MEDICAL DOCUMENTS SUBMITTED BY THE 7TH PETITIONER.** 13 WPC 16674 OF 2020 ## **RESPONDENTS EXHIBITS:** **EXHIBIT R1(A) – TRUE COPY OF THE TRANSFER POLICY FOR WORKMEN EMPLOYEES ADOPTED BY THE FIRST RESPONDENT BANK (CIRC. NO.50/2020) DATED NIL** **EXHIBIT R1(B)- TRUE COPY OF THE RELEVANT PORTION OF THE SERVICE REGULATION, 2013 OF THE RESPONDENT BANK DATED 23.8.2013**