* HON’BLE SRI G.S. SINGHVI, THE CHIEF JUSTICE + W.P.NO.8213 of 1994 % Dated 14.11.2006 # G.V. Triveni Prasad …. PETITIONER Vs. $ Syndicate Bank, rep. by its Chairman-cum-Managing Director, Manipal, Karnataka State & others …. RESPONDENTS ! Counsel for the Petitioner : Sri V.V. Sivarama Prasad ^ Counsel for the Respondents: Ms. V. Uma Devi <GIST: > HEAD NOTE: ? Cases referred 1) AIR 1986 SC 1955 2) 1995 Supp. (4) SCC 169 3) (1993) 4 SCC 357 4) (2003) 4 SCC 104 5) (2004) 4 SCC 245 6) (2004) 12 SCC 299 7) AIR 1963 SC 779 8) AIR 1963 SC 1723 9) AIR 1969 SC 966 10)AIR 1965 SC 1103 11)AIR 1975 SC 2151 12)(1995) 6 SCC 749 13)(1999) 1 SCC 759 14)(1969) 3 SCC 392 15)(1976) 3 SCC 574 16)(1980) 3 SCC 304 17)(1984) 1 SCC 43 18)(1984) 3 SCC 295 19)(1986) 3 SCC 299 20)(1987) Suppl. SCC 518 21)(1993) 4 SCC 727 22)(1994) 4 SCC 422 23)(1996) 3 SCC 364 24)(1996) 6 SCC 415 25)(1998) 6 SCC 651 26)(1999) SCC (L & S) 620 27)(2001) 6 SCC 392 28)(2003) 11 SCC 734 29)(2003) 3 SCC 443 30)(2004) 1 SCC 281 31)(2005) 2 SCC 237 32)(1987) 4 SCC 611 33)(1997) 7 SCC 463 34)(2001) 2 SCC 386 35)(1995) 6 SCC 749 36)(2003) 3 SCC 605 37)(2003) 4 SCC 331 38)(2005) 7 SCC 338 39)(2006) 1 SCC 589 40)(2006) 3 SCC 173 41)(2006) 3 SCC 276 42)(2006) 5 SCC 137 43)(2006) 7 SCC 410 44)(1990) 4 SCC 594 HON'BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE WRIT PETITION No. 8213 OF 1994 Between: G.V. Triveni Prasad ..... Petitioner AND Syndicate Bank, Rep. by its Chairman-cum-Managing Director, Manipal, Karnataka State & others .....Respondents :: O R D E R :: Counsel for the petitioner : Shri V.V. Sivarama Prasad For Shri T. Anil Kumar Counsel for the respondents : Ms. V. Uma Devi for Shri K. Srinivasa Murthy Dated: 14.11.2006 Transfer is not a condition of service, but is merely an incidence of service. An employee, who joins service of an employer having establishments or offices all over India, can be posted in any part of the country and he cannot be heard to complain against transfer from one place to the other. If he fails to comply with or disobeys the order of transfer/posting, he does so at his own peril. Ordinarily, the Court will not interfere with the employer’s prerogative to transfer and post an employee from one place or station to the other unless it is established that the action of the employer is contrary to the statutory provisions or is vitiated due to patent arbitrariness or mala fides. This proposition must be treated as settled by the judgments of the Supreme Court in B. Varadha Rao v. State of Karnataka[1], Abani Kanta Ray v. State of Orissa[2], Union of India v. S.L. Abbas[3], Public Services Tribunal Bar Association v. State of U.P.[4], Union of India v. Janardhan Debanath[5] a n d Kendriya Vidyala Sangathan v. Damodar Prasad Pandey[6]. I have prefaced disposal of this petition by taking cognizance of the above noted proposition because the questions, which arise for determination in this petition filed under Article 226 of the Constitution of India, are whether the petitioner was justified in not carrying out the order of transfer and whether the penalty of removal from service imposed on him on the proved charge of disobedience of the order of transfer and unauthorized absence from duty is legally correct and justified. The Facts: While he was holding the post of Assistant Manager in the employment of Syndicate Bank (for short, ‘the bank’) and was posted at Patterghatti Branch at Hyderabad, the petitioner was transferred to Pune Branch vide order dated 07.04.1988 passed by the competent authority. He did not join at Pune. Instead, he submitted representation dated 10.04.1988 with the request that he may be posted either at Bombay or Calcutta. After sometime, he filed Writ Petition No.6980 of 1988 for quashing the order of transfer and succeeded in persuading the learned Single Judge to stay his transfer. The efforts made by the bank for getting the ex parte interim order vacated failed because the miscellaneous petition filed on its behalf of the bank was dismissed by the learned Single Judge. However, on appeal, which was registered as Writ Appeal No.1383 of 1989, the Division Bench reversed the order of the learned Single Judge and vacated the stay order. Thereafter, the competent authority, vide its order dated 28.10.1989 posted the petitioner at Meerut Branch of the bank. He did not carry out the second order of transfer as well and made representation for cancellation of the same by citing the cold weather at Meerut as the reason. The management of the bank did not accede to his request. The petitioner then adopted the usual tactics, which the employees transferred from one place to the other adopt. He submitted application dated 23.11.1989 for grant of sick leave. This was followed by an application for grant of privilege leave for 45 days with effect from 21.01.1990. Later on, he sought extension of leave by 60 days by citing his ill-health and sudden demise of father-in-law as the grounds. On 20.08.1990, he again applied for privilege leave on medical grounds from 07.05.1990 to 31.10.1990. The management of the bank did not accept either of the applications and issued notice dated 10.09.190 to the petitioner requiring him to explain as to why he had not carried out the order of transfer despite the fact that he had been relieved from Patterghatti Branch on 18.11.1989. In his reply dated 19.09.1990, the petitioner pleaded ignorance about the relieving order and claimed that he cannot be charged with the allegation of remaining absent from duty. The recalcitrant attitude adopted by the petitioner in not carrying out the order of transfer compelled the management of the bank to initiate action under the Syndicate Bank Officer Employees’ (Conduct) Regulations, 1976 (for short, ‘the Conduct Regulations’) read with Syndicate Bank Officer Employees’ (Discipline & Appeal) Regulations, 1976 (for short ‘the Discipline and Appeal Regulations). A regular departmental enquiry was instituted against him vide Memo dated 12.03.1991. The charges leveled against the petitioner were as follows: “I. Articles of Charge No.I: That while he was working as AMID at Pathergatty Branch he was issued with a Transfer Order bearing Ref.No.80/ZO/PSOW/ STO/288635 dated 28.10.1989 transferring him to Meerut Main Branch. Thereafter, he was relieved from Pathergatty Branch on 18.11.1989 to enable him to report at our Meerut Main Branch. Since he failed to carry out the orders of the Bank, his higher authorities at Zonal Office, Hyderabad instructed him again to report for duty at Meerut Main Branch immediately. In spite of the same, he had failed to report for duty at Meerut Main Branch and to carry out the lawful and reasonable orders of the Bank till date. Thereby Sri G.V. Triveni Prasad acted in a manner prejudicial to the interest of the Bank and unbecoming of the status of a Bank Officer. By his above acts, he had violated Regulation No.3(1) read with Regulation No.24 of Syndicate Bank Officer Employees’ (Conduct) Regulations 1976. II. Articles of Charge No.II: That Sri G.V. Triveni Prasad continued to remain absent from the duties unauthorisedly and without the permission/prior sanction from the Competent Authorities during the period from 19.11.1989 till date. That by his above acts, he had contravened Regulation No.13(1) read with Regulation 24 of Syndicate Bank Officer Employees’ (Conduct) Regulations 1976.” The petitioner filed reply and denied the charges. After considering the same, the competent authority appointed Shri P.S. Nayak, Deputy Personnel Manager, I.R. Division (O), Head Office, Manipal was appointed as the Enquiry Officer. Subsequently, Shri K. Ramachandra Bhat of the Vigilence Cell, Hyderabad was appointed as Enquiry Officer. Shri Bhat submitted report dated 06.08.1992 with the finding that both the charges levelled against the delinquent have been proved. A copy of the enquiry report was forwarded to the petitioner and he was given opportunity to make representation against the same. In his reply dated 22.09.1992, the petitioner pleaded that he had no intention to disobey the order of transfer and that on account of his ill-health, he had represented for cancellation of transfer. He also pleaded that the applications made by him for grant of leave had not been rejected and, therefore, the leave will be deemed to have been sanctioned. After considering his representation, Assistant General Manager-cum- Disciplinary Authority passed order dated 06.01.1993, whereby the petitioner was removed from service. The appeal preferred by the petitioner was rejected by General Manager (Personnel) (hereinafter described as ‘the Appellate Authority’) vide his order dated 31.03.1993. The petitioner has questioned the punishment of removal from service on the grounds that the findings recorded by the Enquiry Officer on the two charges are based on surmises and conjectures; that he never intended to disobey the order of transfer; that he had prayed for cancellation of transfer on the ground of ill-health, and that he cannot be punished on the charge of unauthorised absence from duty because the applications made by him for grant of leave had not been rejected by the competent authority. The case set up by the bank is that the petitioner did not join at Meerut Branch despite the fact that he was relieved from Pathergatti Branch on 18.11.1989; that leave applied by him was not sanctioned by the competent authority; that as per Clause 13(1) of the Conduct Regulations, no officer/employee can remain absent from duty without obtaining prior permission from the competent authority and only in case of emergency, the employee can seek post leave permission. In the counter affidavit filed on behalf of the bank, Shri Vasudevan, Deputy General Manager has averred that the petitioner’s absence was treated as unauthorised because he did not seek permission of the competent authority for availing privilege leave from 21.01.1990. It is also the case of the respondents that even though the petitioner was informed about his transfer, he did not bother to join duty at Meerut Branch and this constituted grave misconduct. Shri V.V. Sivarama Prasad made dispassionate appeal to the Court to nullify the order of punishment as well as the order passed by the Appellate Authority by arguing that the charge of unauthorized absence levelled against the petitioner was totally unwarranted. He submitted that the management of the bank never denied receipt of the applications made by the petitioner for grant/ extension of leave from time to time and, therefore, he cannot be accused of having deliberately absented from duty. Learned counsel further argued that if the finding recorded by the Enquiry Officer in respect of charge No.2 is held to be vitiated, the penalty of removal from service is liable to be quashed because the petitioner’s failure to carry out the order of transfer did not constitute a serious misconduct. Learned counsel then invoked the doctrine of proportionality and argued that the Court may substitute the penalty of removal from service with a lesser penalty so that the petitioner can earn pension and other retiral benefits. Learned counsel also assailed the appellate order by arguing that the same does not satisfy the test of a ‘speaking order’. Ms.V. Uma Devi, learned counsel for the respondents submitted that the petitioner’s failure to join at the transferred place constituted serious misconduct and no illegality was committed by the management of the bank by imposing the penalty of removal from service. She further argued that the petitioner was punished, after holding enquiry in accordance with the provisions of the Discipline and Appeal Regulations and there is no warrant for judicial interdiction in such matters by invoking the doctrine of proportionality because the petitioner has failed to show that his cause was prejudiced on account of any legal infirmity in the action taken by the bank. Lastly, she argued that the Appellate Authority had considered all the points raised by the petitioner and, therefore, order dated 31.03.1993 cannot be castigated as non-speaking. I have thoughtfully considered the entire matter. It is not in dispute that the petitioner did not carry out transfer orders dated 07.04.1988 and 28.10.1989 vide which he was posted at Pune Branch in the first instance and then at Meerut Branch. His failure to comply with the first order acquired legitimacy because, while issuing notice in Writ Petition No.6980 of 1988, a learned Single Judge of this Court stayed the implementation of order dated 07.04.1988. The interim order passed by the learned Single Judge subsisted till 27-9-1989 when the writ appeal preferred by the bank was allowed. After the decision of the writ appeal, the petitioner was transferred and posted at Meerut Branch of the bank. He again disobeyed the order of transfer and applied for grant of sick leave, which was sought to be extended by grant of privilege leave. The management of the bank did not entertain his request and initiated disciplinary proceedings vide charge sheet dated 12.03.1991. The same culminated in the passing of order dated 06.01.1993. A careful reading of that order shows that the disciplinary authority had made threadbare analysis of the evidence produced during the enquiry, considered the defence of the petitioner and then concluded that the charges leveled against him are proved. Learned counsel for the petitioner could not point out any infirmity in the appreciation of evidence made by the disciplinary authority. Therefore, the petitioner’s challenge to the order of punishment on the ground that the findings and conclusions recorded by the Enquiry Officer and the disciplinary authority are based on conjectures and surmises is liable to be negatived. The scope of judicial review of the disciplinary action taken by the employer is extremely limited. The Court can interfere with the punishment imposed on the employee only if it is shown that the action of the employer is vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation has prejudiced his cause. The Court cannot sit in appeal over the findings recorded by the Enquiry Officer and/or disciplinary authority except when it is convinced that the finding is perverse. In State of Orissa v. Bidyabhushan Mohapatra[7], the Supreme Court considered whether the High Court can interfere with the order of punishment simply because finding recorded by the enquiry officer in respect of some charges is found to be vitiated by an error of law and whether it can go into the sufficiency and adequacy of punishment. While reversing the order of Orissa High Court, which had allowed the writ petition filed by the respondent, their Lordships of the Supreme Court observed: “But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an inquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were ‘unassailable’, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.” In State of A.P. v. Sree Rama Rao[8], the Supreme Court indirectly reiterated the proposition laid down in Bidyabhushan Mohapatra5 (supra) and held: “The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding ... under Article 226 of the Constitution.” In Rly. Board v. Niranjan Singh[9], the principle laid down in Bidyabhushan Mohapatra5 (supra) was reiterated. In State of Madras v. G. Sundaram[10], the Constitution Bench of the Supreme Court laid down the following proposition: “High Court, in the exercise of its jurisdiction under Article 226 of the Constitution, cannot sit in appeal over the findings of fact recorded by a competent Tribunal in a properly conducted departmental enquiry except when it be shown that the impugned findings were not supported by any evidence. It cannot consider adequacy of that evidence to sustain the charge.” In State of A.P. v. C. Venkata Rao[11], a three Judges Bench of the Supreme Court referred to the judgments of Syed Yakoob1 (supra), Bidyabhushan Mohapatra5 (supra), Niranjan Singh7 (supra) and observed: “In considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court need not be applied. Even if that rule is not applied by a domestic tribunal in any inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.” In B.C. Chaturvedi v. Union of India[12], the Supreme Court, while considering the appellant’s challenge to the order of punishment passed as a sequel to the departmental enquiry held against him, highlighted the limited scope of judicial review by making the following observations: “Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.” In Apparel Export Promotion Council v. A.K. Chopra[13], the Supreme Court again considered the High Court’s power to interfere with the disciplinary proceedings and held: “It is a settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as