Usha Bharath, v. Uco Bank,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 19.12.2016

CORAM

THE HONOURABLE MR.JUSTICE NOOTY.RAMAMOHANA RAO And THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.A.No.314 of 2015 And M.P.Nos.1 and 2 of 2015 Usha Bharath .. Appellant/Petitioner Vs.

1 UCO Bank Rep by its Chairman and Managing Director Corporate Head Office, 10, BTM Sarani, Kolkatta - 700 001.

2 The General Manager UCO Bank, Human Resource Management, Human Resource Management Department, Head Office, 10, BTM Sarani, Kolkata - 700 001.

3 Deputy Zonal Head, UCO Bank, Zonal Office, Old No.169, New No.328, Thambu Chetty Street, Chennai - 600 001.

4 Assistant General Manager UCO Bank, Zonal Office, Old No.169, New No.328, Thambu Chetty Street, Chennai - 600 001.

... Respondents/Respondents Prayer:

Appeal filed under Clause 15 of Letters Patent praying to set aside the order dated 18.02.2015 in W.P.No.34235 of 2014. Writ petition filed under Article 226 of the Constitution of India praying for a writ of certiorari calling for the records from the Respondents 1 to 4 relating to the order dt.18.12.2014 bearing Ref.No.T.O.No.HRM/GEN/970/2014 issued by the 3rd respondent and the consequential proceedings of the 4th respondent dt.18.12.2014 bearing Ref.No. HRM/GEN/971/2014

transferring the Writ Petitioner from Chennai to Hyderabad and quash the same as illegal arbitrary without jurisdiction. For Appellant : Mr.N.G.R.Prasad for M/s.Row & Reddy For Respondents: Mr.R.Muthukumarasamy Advocate General Assisted by Mr.Srinath Sridevan

J U D G M E N T

(Judgment of the Court was made by NOOTY.RAMAMOHANA RAO,J.) This appeal under Clause 15 of Letters Patent is preferred by the writ petitioner whose writ petition, directed against the order dated 18.12.2014 passed by the Deputy Zonal Head, UCO Bank, Zonal Office, Chennai, transferring the writ petitioner from Chennai to Hyderabad is dismissed by the judgment rendered on 18th February, 2015.

2.Heard Shri.N.G.R.Prasad, learned Senior Counsel appearing for the appellant and Shri.R.Muthukumarasamy, learned Advocate General Assisted by Shri.Srinath Sridevan, learned counsel appearing for the respondent Bank.

3.It is urged by the learned counsel appearing for the appellant that the writ petitioner/ appellant, a female employee has been hostilely treated by the respondent Bank and as a measure of vengeful attitude, the impugned order dated 18.12.2014, came to be passed transferring the writ petitioner/ appellant abruptly from Chennai to Hyderabad. The writ petitioner/ appellant is the only person who has been subjected to the transfer by the respondent Bank. Further, the transfer has been made during the middle of the academic year. Further, the transfer itself has been ordered contrary to the Transfer Policy evolved by the Bank. Further, the writ petitioner/ appellant has been suffering from multiple ailments of serious nature and she is undergoing treatment for the same, from one Specialist or the other available at Chennai and the abrupt transfer now to Hyderabad would completely dis-locate the writ petitioner/ appellant and her family members, whose support in all respects is vitally required for the appellant to carry on her day-to-day life.

4.In support of the above pleas, the learned counsel appearing for the appellant would urge that an attempt was made

earlier by the Bank to transfer her from Chennai to Bangalore and that order of transfer dated 11th July, 2007 has been resisted by the writ petitioner/ appellant by approaching this Court and she instituted W.P.No.25066 of 2007 and that the said writ petition came to be allowed on 7th February, 2013, preserving liberty to effect any transfer in accordance with the Transfer Policy of the Bank. Once again, the respondent Bank has acted contrary to the Transfer Policy and therefore, the impugned order transferring the writ petitioner/ appellant from Chennai to Hyderabad ought to have been quashed. 5.It appears that the writ petitioner/ appellant was initially recruited as a Clerk in the service of the respondent Bank and was posted at its Bhilai Branch in Madhya Pradesh.

On her request, she was transferred and posted to Chennai Region in the year 1992 and ever since then, she was working at Chennai. She was promoted to the rank of Junior Management Grade Scale I Officer in the year 2001 and to next higher post of Middle Management Scale II in July, 2006. Since her husband is also employed with one another Nationalized Bank, with the hope that she will not be subjected to transfers if she becomes a Specialist Officer, she has become an official language (Hindi) Officer of the Bank in MM Scale II. But however, on 11th July, 2007, she has been transferred to Bangalore Region. It was resisted by the writ petitioner/ appellant and the said writ petition was allowed by the judgment dated 7th February, 2013 of this Court.

Now, once again, by the impugned order dated 18th December, 2014, she has been shifted and posted to Hyderabad. The writ petitioner/ appellant has been suffering over a long period of time from some ailment or the other and she has been undergoing treatment for various ailments from the Specialists located at Chennai.

6.Placing reliance upon a certificate issued by Dr.K.Velmurugan, a Joint Replacement and Spine Surgeon at Chennai, it was contended that the writ petitioner/ appellant is suffering from vasculitis with polyarthritis for the past thirteen years and that she was undergoing treatment and her disability had reached 40% stage due to polyarthritis and she needs help from family members for her basic needs. It was also pointed out that she is having chronic kidney disease. She has undergone surgical intervention at the Institute of Neuro Sciences, Appollo Hospitals, Chennai. It is urged that without any regard for her health condition and the periodic treatment that she is undergoing at Chennai, she has been subjected to the hostile treatment of abrupt transfer to Hyderabad. 7.The learned counsel appearing for the appellant would also urge that the respondent Bank being a Nationalized Bank should show grace and consideration towards the well being of its

employees and the respondent Bank ought not to have viewed the resistance offered by the writ petitioner/ appellant to move her to Bangalore with any disfavour. The respondent ought not to have framed the Transfer Policy for the sake of effecting transfer of the writ petitioner/ appellant and thereafter act contrary to the said Transfer Policy.

8.We have considered the rival submissions made very critically. While we concede, in principle, that women employees require sympathetic and compassionate approach by their employers in the matter of creating the right kind of working atmosphere, so that, they can effectively discharge their functions and improve upon their lot, there is no gainsaying that working women will have to don more than one role and sometimes, it causes lot of stress and strain. Hence, to the extent possible and feasible, right kind of atmosphere and the right kind of working conditions should be ensured by all model employers to enable the working women to discharge their functions efficiently and effectively. But, at the same time, it would be wholly important to bear in mind that the organizational needs and requirements are far more paramount than that of the individual interests.

9.The supernumerary hardships faced by the employees can never be a factor for resisting an administrative order of transfer issued purely in the exigencies of service. When once transferability from place to place is made as a condition of the service, any such administrative transfer cannot be faulted, except, on extremely limited grounds, such as lack of competence on the part of the Officer who effected the transfer of the employee violation of an enforceable or lack of bonafides or Rule or alternatively for malafide reasons, the order of transfer is issued. In all other respects, a transfer order issued in the exigencies of service cannot be interfered with lightly by the Courts. The reason being, it is the right and coice of the employer to extract services productively by prudent management of human resources available. 10.

So long as transfer of the employees is effected for bonafide reasons and for exigencies of service such transfers cannot be interceded. It is apt to recall the cautious approach which is advisedly required to be adopted by the Courts in this regard as enunciated by the Supreme Court in Rajendra Roy Vs.

""7.x x x x x It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck

down. Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. x x x x x""

11.The fact of the matter is that the writ petitioner/ appellant on her request came to be transferred to Madras (now called Chennai) in the year 1992 and ever since, she was continuously working at Chennai. Therefore, the respondent Bank has treated, very rightly, that the writ petitioner/ appellant is a long standing employee at Chennai. It is true that when an attempt was made in the year 2007, to transfer her to Bangalore, she challenged the same by instituting W.P.No.25066 of 2007 which was allowed on 7th February, 2013, at the same time leaving liberty to the respondent Bank to effect any transfer in accordance with the Policy.

12.Therefore, the question which is required to be examined in this case is whether the present order of transfer of the writ petitioner/ appellant from Chennai to Hyderabad is in accordance with any such Policy of the Bank or was it contrary thereto?

13.That takes us to the Transfer Policy for Officers - 2014 announced by the Bank. The said Policy covers every Officer in Scale I to Scale III where in, General List category or Specialised cadre, such as the writ petitioner/ appellant, in paragraph 4 thereof, two types of transfers are contemplated, (i) inter zone transfers within the circle or outside the circle and (ii) intra zone transfers within the zone. In paragraph 12 thereof, it is announced that no transfer will be effected during January to March in a year and if any such transfer is to be effected between January to March, the same can be effected only with the concurrence of the Head Office. In paragraph 15, the minimum retention period has been dealt with. The minimum retention period in a zone is set as three years effective service.

For intra zone transfers also, the minimum retention period is set at three years. The time limit of retention tenure would not apply in case of transfer/ posting on promotion, (ii) transfer to undergo mandatory Rural/ Semi-urban posting and in other mandatory branch exposure and importantly, (iii) transfer on extreme compassionate grounds or in the exigencies of service, is also kept outside the time frame limit.

14.The learned counsel appearing for the appellant drew inspiration from this last clause and urged before us that since the writ petitioner/ appellant is having chronic kidney disease, the retention parameter fixed in the Transfer Policy would not come in her way while the Transfer Policy has specified the minimum retention period, it has taken care to provide for exceptions in deserving cases from such time limit of the retention period on compassionate grounds. Liberty has been granted to the Bank to effect transfers. The compassionate grounds can be invoked in cases of illness such as cancer, coronary artery bye pass surgery, severe heart attack - myocardial infraction, stroke, kidney failure - end stage renal disease.

15.What we understand from this paragraph 15 of the Transfer Policy - 2014 is that it enables the Bank to effect transfers on compassionate grounds - that is obviously at the request of the employees - or for retention of employees at the same place. Even in such cases, the end stage of renal failure is what has been provided for. In contrast to that, the medical record of the writ petitioner/ appellant issued by MIOT Hospitals dated 28th October, 2011 would disclose the following: "Bilateral echogenic kidneys with loss of cortico medullary differentiation - suggestive of chronic kidney disease."

16.It is therefore, clear that the writ petitioner/ appellant is not suffering from renal failure - end stage kidney disease. Similarly, for the neurological problem from which, the writ petitioner/ appellant is said to be suffering from, the discharge summary dated 26.12.2011 would disclose the following: "..... She was treated by Nephrologist for renal impairment. After preoperative evaluation, she was taken up for craniotomy and clipping of aneurysm. Post operatively treated by hypertensive, hyperdynamic therapy.

Her neurological condition gradually improved. Her renal parametres were slowly improving.

Her stay was uneventful.

Neuro rehabilitation done.

Discharge in a stable condition with the following advice."

She was put to medication by the Doctors thereafter and advised for regular check up. Thus, the health condition of the writ petitioner/ appellant was not the end threatening kind of which the Transfer Policy has described as "end stage renal failure". We reasonably infer that the health condition of the writ petitioner/ appellant - God be with her - is fairly stable and is capable of medically managed.

17.We are therefore of the opinion that the contention canvassed on behalf of the writ petitioner/ appellant that the order of transfer has been issued contrary to the Transfer Policy of the Bank is not correct or accurate. 18.While we see force behind the submission of the learned counsel appearing for the appellant that the writ petitioner/ appellant's debilitated health condition requires attention on constant basis and she also requires help from other family members to enable her to attend to her basic duties and necessities, those factors are undoubtedly representative of the human suffering of a serious magnitude.

It is rather unfortunate that a relatively young person of the age of 50 years should be afflicted with so many serious ailments. But, however, the ailments suffered by the writ petitioner/ appellant appear to be medically curable/ controllable ailments. She requires constant/ periodic check ups/ reviews and consultations/ medical advices. It is therefore, not a case where the writ petitioner/ appellant could not receive the said facilities at Hyderabad and it is not as if such facilities are exclusively available at Chennai and that they are not available at Hyderabad. In our opinion, Hyderabad has equally reputed medical Institutions and equally competent Specialist Doctors are available.

19.Even otherwise, we remind ourselves as to what has been stated by the Supreme Court in State Uttar Pradesh and another Vs. Siya Ram and another ((2004) 7 SCC 405):

"5. x x x x x No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration.

Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were appellate authorities substituting their own decision for that of the employer/ management, as against such orders passed in the interest of administrative exigencies of the service concerned. x x x x"

On this count also, we have no hesitation to reject the contention canvassed by the learned counsel appearing for the appellant.

20.It brings us to the question whether the writ petitioner/ appellant was subjected to hostile and malafide treatment? It is true that as soon as the Transfer Policy - 2014 is announced by the Bank, she has been subjected to transfer. We fail to see as to how it would become a malafide exercise on the part of the Bank, all the more so, when this Court while rendering its judgment in W.P.No.25066 of 2007 on 7th February, 2013, has preserved liberty to the respondent Bank to effect any such transfer of the writ petitioner/ appellant herein, in accordance with any such Policy. Malice could be either in fact or in law. Fortunately, there is no serious attempt made to characterize the impugned order of transfer as hit by any personal malice of the particular Officer who effected the transfer.

It was merely suggested that the impugned order of transfer amounts to malice in law. In that context, where the competent authority is acting in accordance with law - a transparent Policy framed for regulating the transfers - any such exercise cannot be characterized as malicious exercise. The lacking in competence or acting contrary to a transparent Policy put in place regulating transfers of employees can, at best form the basis for any such ground of attack of malice in law. But not otherwise.

21.In the instant case, as we found a little earlier, the impugned order of transfer is in accord with the Transfer Policy - 2014. The fact that the writ petitioner/ appellant alone has been transferred on 18.12.2014 does not render the exercise as a hostile exercise, nor does it reflect a vengeful attitude on the part of the Bank leading to an inference that the said policy is made only for the sake of the writ petitioner/ appellant. It is apt to remember that the order of transfer passed in July, 2007 transferring the writ petitioner/ appellant from Chennai to Bangalore has been resisted by her and that writ petition came to be allowed on 7th February, 2013. Immediately, thereafter the Bank has not made any attempt to transfer the writ petitioner/ appellant once again. It is nearly two years thereafter the judgment was rendered in W.P.

No.25066 of 2007, the present impugned order came to be passed. Therefore, far from vengeful, we observe, the respondent Bank has shown the necessary restraint in staying away and not taking up the case of the writ petitioner/ appellant for any transfer any time immediately after 7th February, 2013. We are therefore, unable to subscribe to the notion that the acts of the respondent Bank would amount to malicious act.

22.It is also urged that in the middle of the academic year, the writ petitioner/ appellant has been transferred, but however, as to how it is going to adversely effect the interests of the writ petitioner/ appellant has not been disclosed. Hence, for want of adequate material on record, we are not in a position to accept the plea that the impugned order has in any manner impacted the writ petitioner/ appellant or her family members otherwise.

23.One of the grounds urged was that an appeal has been preferred to the General Manager against the impugned order of transfer and the said appeal has not been disposed of so far. 24.The learned Advocate General appearing for the respondent Bank has rightly pointed out that the impugned order of transfer was passed on 18th December, 2014. On the very next day, i.e., on 19th December, 2014, an appeal has been preferred seeking appropriate orders and on 19th December, 2014 itself, the writ petition came to be instituted. So, factually there was no time for the Appellate Authority to apply his mind to the appeal and decide it.

By the time, perhaps, he has received the appeal, the writ petition already came to be instituted and when the case was pending and subjudice in this Court, the Appellate Authority could not have decided the appeal of the writ petitioner/ appellant. Hence, the failure of the Appellate Authority to deal with the appeal said to have been preferred by the writ petitioner/ appellant is because of the circumstances created by the writ petitioner/ appellant. Again, on that score also, we cannot accept the contention urged before us by the learned counsel appearing for the writ petitioner/ appellant. 25.We also notice the judgment of the Supreme Court in (2001) 8 SCC 574 (National Hydroelectric Power Corporation Limited Vs.

"5.On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service,

necessary too in public interest and efficiency in the public administration.

Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned....."

and in (2004) 11 SCC 402 (State of U.P. And others Vs.Gobardhan Lal), wherein, paragraph 7 reads as follows:

"7.It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made.

Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/ servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments.

transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision."

26.The learned counsel appearing for the writ petitioner/ appellant has placed reliance upon the judgment rendered by a learned Single Judge of the Kerala High Court between P.Pushpakaran Vs. Coir Board and another reported in 1979 I LLJ 139 in which, paragraph nos.23 and 24 read as follows: "23....... In view of the fact that the counter-affidavit does not indicate the availability or otherwise of the Upper Division Clerks in the Head Office, as to how the petitioner was picked from the remaining three bachelor Lower Division Clerks and how he was found more competent than the others. I have to hold that the transfer was not in the course of administrative routine or due to administrative necessity but for other reasons.

24.The right to transfer an employee is a powerful weapon in the hands of the employer. Sometimes it is more dangerous than other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is extensible in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee or to keep at bay an activist or a stormy petral.

When the Court is alerted, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. This Court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer."

In view of the principles enunciated by the Supreme Court to which we have adverted to a little earlier, we are of the opinion that the judgment rendered by the learned Single Judge of the Kerala High Court will not be of any assistance to the

case of the writ petitioner/ appellant.

27.Finally, the learned counsel appearing for the writ petitioner/ appellant has drawn our attention to the interlocutory order passed in this appeal on 2nd March, 2015 and reiterated on 24th March 2015. We have noticed that on 2nd March, 2015, since the contentions canvassed by the Appellant require consideration by the Court, this Court directed the respondent Bank to keep in abeyance the order of transfer dated 18.12.2014 and also subsequent relieving order dated 25th February, 2015 after dismissal of the writ petition.

But, however, on 24th March, 2015, this Court directed the writ petitioner/ appellant to appear before the Dean of the Rajiv Gandhi Government Hospital (Medical College and Research Centre), Chennai, within a period of one week from that date and the Dean was directed to constitute a Medical Board of competent Doctors of the relevant Departments and the Medical Board shall examine her health condition and give their opinion in the form of a report to this Court by 6th April, 2015. 28.In this context, we advert to the opinion of the Specialist Doctors who formed part of a Medical Board, for examining the writ petitioner/ appellant which was constituted between 04.12.2012 to 07.12.

Rhematologist - A known case of Sle, Osteoporesis. Patient is not having active signs of illness associated with CTD at present. She does not need Rheumatological treatment at present. She needs follow-up and physiotherapy - muscle strengthening exercises.

Neuro - Physician: No Neurological deficit.

Neuromedically she is fit to join duty. In view of her previous diagnosis, she has to be on regular follow-up with the respective speciality.

Orthopaedician (Director): No specific Complaints.

Patient needs Rhematology review. Orthopaedically fit to join duty.

Vascular Surgeon: Known case of SLE, polyarthritis, vasculitis.

No vascular Intervention needed at present. Medications to be continued. Fit to join duty.

Mrs.Usha Bharath is a known case of SLE, vasculitis, Osteoporesis, status postaneurysm clipping.

After complete

neurological evaluation I am of the opinion that she is fit for duty and needs regular medical follow-up."

29.Pursuant to the above referred order, at 24th March, 2015, the Dean, Rajiv Gandhi Government General Hospital, Chennai has placed before us a copy of the report dated 16th April, 2015. Paragraph 3 thereof, reads as under: "3.Proceedings:

a) Based on treatment records produced by him/her, leave availed is recommended to regularize on Medical Grounds.

b) He/ She has not having treatment records for verification, hence the Genuineness of his/ her leave could not be assessed."

30.It is obvious that the writ petitioner/ appellant has not carried with her and produced the medical treatment records for verification of the Medical Board ordered to be constituted by this Court on 24th March, 2015. Hence, we are of the opinion that her present health condition can be taken to be stable enough to enable her to undertake the transfer to Hyderabad and work there.

31.We have also mooted, entirely on our own, with the learned Senior Counsel appearing for the respondent Bank as to whether the respondent Bank would be inclined to consider any request of the writ petitioner/ appellant to retire on voluntary basis in view of her health condition.

32.The learned Senior Counsel appearing for the respondent Bank has conveyed the willingness of the respondent Bank to consider any such request, if and when made by the writ petitioner/ appellant.

33.For all the aforementioned reasons, we see no reason to interfere with the decision rendered by the learned Single Judge and we accordingly dismiss the present writ appeal, but however, without costs.

Consequently, the connected miscellaneous petitions are also closed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar

To 1 The Chairman and Managing Director , UCO Bank Corporate Head Office, 10, BTM Sarani, Kolkatta - 700 001.

2 The General Manager UCO Bank, Human Resource Management, Human Resource Management Department, Head Office, 10, BTM Sarani, Kolkata - 700 001.

3 The Deputy Zonal Head, UCO Bank, Zonal Office, Old No.169, New No.328, Thambu Chetty Street, Chennai - 600 001.

4 The Assistant General Manager UCO Bank, Zonal Office, Old No.169, New No.328, Thambu Chetty Street, Chennai - 600 001.

+1cc to Mr.Srinath Sridevan, Advocate, S.R.No.74215 +1cc to Mr.Rone & Reddy, Advocate, S.R.No.74284 mv(CO) md(15/02/2017) W.A.No.314 of 2015 And M.P.Nos.1 and 2 of 2015