HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT APPEAL NO.981 OF 2010 % 22-12-2011 Between: Daram Vasantha Kumar S/o Koteswara Rao Occ: Customer Relation Associate State Bank of India, R/o LIG-B/135, Sector-6, M.V.P. Colony, Visakhapatnam District ..... Petitioner. AND 1. State Bank of India Rep. by its Assistant General Manager Region-I, Visakhapatnam, Visakhapatnam District. 2. The Chief Manager, State Bank of India M.V.P. Colony, Visakhapatnam Visakhapatnam District. 3. The Branch Manager, State Bank of India, Sector-9 Ushodaya Junction, M.V.P. Colony Shiva’s Castle, Visakhapatnam Visakhapatnam District. ....Respondents For the Petitioner : Sri B. Tarakam For the Respondents : Ms. Uma, Standing Counsel for Bank < Gist: > Head Note: ? CITATIONS: 1) AIR 1993 SC 2444 HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT APPEAL NO.981 OF 2010 ORDER:- (As per Hon’ble Sri Justice Ghulam Mohammed) This writ appeal is directed against the Judgment and Order passed in Writ Petition No.16019 of 2010. The writ petitioner/appellant was working as a Customer Relation Associate with the State Bank of India at its M.V.P. Colony Branch at Visakhapatnam. Through an order dated 09.06.2010, he has been transferred to Rajam Branch and accordingly, he was relieved of his duties at the closing of business hours on 09.06.2010 with instructions to report before the Branch Manager, State Bank of India, Rajam Branch on 10.06.2010 without availing joining time. That gave rise to the writ petition. 2. It is contended by the petitioner that he has studied M.Sc. (Computer Science) and M.A. (Public Administration) prior to joining the service of State Bank of India on 03.03.2008. With a view to pursue Ph.D course, the petitioner submitted an application seeking ‘No Objection’ for pursuing his Ph.D course. Though, such a request was initially turned down, however the necessary permission was accorded on 03.05.2010 subject to the stipulations contained therein. In quick succession thereafter, the impugned order was passed on 09.06.2010 transferring the petitioner to far-off Rajam Branch. The writ petitioner /appellant claimed that it will be difficult to pursue his Ph.D course from Rajam and hence, requested to retain him at Visakhapatnam at any one of the branches of the Bank. It is also contended by the petitioner that he has not completed five years of service at Visakhapatnam and normally the award staff would not be transferred before completion of five years of service at a place. The guidelines also stipulate that the transfer may be effected within the limits of the same centre/municipal/urban agglomeration. Rajam Branch is far away from Visakhapatnam city and hence, the transfer order posting him thereto is contrary to the guidelines of the bank. It is also contended that no substitute was posted in his place and hence he pleaded that he may be directed to be retained at the M.V.P. Branch at Visakhapatnam City. 3. Manager (H.R.), Region 1, Visakhapatnam of the State Bank of India, filed a detailed counter affidavit. It was reiterated that the writ petitioner has been transferred on administrative grounds and such an action was in conformity with the service regulations framed by the Bank. In paragraphs 4 and 6 of the counter affidavit, it is alleged against the petitioner as under: “4. I submit that there have been complaints against the petitioner subsequent to his joining the service with regard to his arrogant and erratic behaviour with the valuable customers of the bank who approached the bank in the process of carrying out their financial transactions. The petitioner was counseled by the superior officers on various occasions, keeping in view that he was a new entrant and that he requires such guidance and advise from the superior officers of the bank for mending his behaviour with the customers of the bank. I further submit that inspite of such advise and counseling from the superior officers there was no improvement in the behaviour of the petitioner in his dealing with the customers across the counter and on 11/3/2010 a complaint was received by the General Manager, State Bank of India, Local Head Office, Hyderabad with copies marked to the Bank Officials at Visakhapatnam including the branch manager of MVP Branch, where the petitioner was working, from a customer by name Mrs. K.Srilakshmi, Secretary, Visakha Engineering College of M/s Ambedkar Educational and Welfare Society against the petitioner. It was stated that in the complaint that the above named society was holding an account with MVP Branch of each bank at Visakhapatnam and was having credit facilities of Rs.5 crores and that they visited our branch regularly for banking transactions. It was complained that inspite of their good and cordial relations with the staff of the bank they were facing a problem frequently from Sri D. Vasanth Kumar, the petitioner herein and was behaving with them with in an improper manner in course of their transactions. It was specifically complained that on 1/3/2010, the petitioner has misbehaved with the Accounts Officer of the complaint client society i.e. Mr.MRVC Nageswara Rao, when he has approached the bank for taking the pay order. The petitioner was reported to have used words like shut up and get out from the branch with the customer and that he had resorted to ask the messenger to neck out the customer from the branch. The complainant had indicated in their subject letter dated 11/3/2010 that they may have to switch over to other bank if the same situation continues, that in view of the matter being sensitive and also being detrimental to the organizational interest of the respondent bank in the light of the threat given by the customer, who was holding an account with a credit facility of Rs.5 crore to close the account and shift to other bank. The respondent bank had ordered an investigation into the matter relating to the complaint dated 11/3/2010 received from the customer by appointing Sri IS Appa Rao, Chief Manager, SBI, Visakhapatnam vide proceedings dated 22/4/2010. 6. I submit that the above investigating Officer had conducted the investigation by recording the statements of the complainant and also the other officers and staff of the bank, who were available in the branch at the time of occurrence of the instance as complained by the customer. The investigating Officer had submitted his report on 19/5/2010 drawing the conclusion on the basis of the documents verified and written statements received during the investigation with the accounts officer of the complainant Ambedkar Educational and Welfare Society which was running Visakha Engineering College when they had approached the bank for a Demand Draft between 3.45 and 3.50 pm on 1/3/2010. It was further reported that there was a quarrel and shifting took lace between the petitioner employee and the customer and that the petitioner shifted at the customer in the bank and uttered the words shutup and get out and asking the messenger to neck out the customer from the branch.” 4. It was further contended by the respondents that the No Objection accorded to the petitioner for pursuing Ph.D course from the Andhra University is subject to the conditions specified therein which are to the following effect: 1. Pursuing the course should not hamper the duties to be performed by the petitioner; 2. Shall not apply for any leave for pursuing the said course; 3. Shall not request for any transfer to any branch or retention at a particular branch during the course of study; 4. Shall not claim any scholarship from the University or Government. 5. It is therefore contended that contrary to the permission accorded to the petitioner on 03.05.2010, he is now seeking retention at the M.V.P. Colony Branch of the Bank and further, the order of transfer having been passed on administrative grounds is perfectly in accordance with the policy of the Bank. 6. Learned single Judge has not found any basis for interfering with the order of transfer passed by the Bank on administrative grounds, but however, left the petitioner to ventilate his grievance if any, by submitting a representation to the appropriate authority after joining at Rajam Branch. Calling in question the correctness of this order passed by the learned single Judge, the present writ appeal is preferred. 7. Heard Sri B. Tarakam, learned senior counsel on behalf of the learned counsel for the appellant and Ms. Uma, learned standing counsel for the respondent-Bank. 8. Learned senior counsel would urge that having accorded permission to the appellant to pursue his Ph.D course, the impugned order could not have been passed transferring the petitioner to a far-off branch. By doing so, the respondent-Bank has literally prevented the appellant to reap any benefit out of the permission granted to him to pursue his Ph.D course, in as much as it is absolutely difficult for one to pursue Ph.D course staying at a far-off place from Visakhapatnam. Further, no reasons are set out in the order passed by the respondents. However, they proceeded to set out reasons elaborately in the counter affidavit. It is wholly impermissible for the respondents to improve upon their case by setting out reasons in the counter affidavit. It is a settled principle of law, contended the learned senior counsel, that reasons cannot be supplied through counter affidavits filed into the Courts. Further, the whole exercise indulged in by the respondents is stigmatic. The respondents have created an unbelievable story of misconduct on the part of the appellant and that was made a basis for subjecting him to a transfer. Further, the respondent-Bank has conducted an enquiry behind the back of the writ petitioner-appellant and made use of the convenient statements at such an enquiry to transfer him to a far-off Rajam Branch. No opportunity whatsoever has been accorded to the petitioner either to participate in the said enquiry or establish his innocence in the matter. The whole action has been taken for victimizing the petitioner-appellant. 9. Ms. Uma would contend that the respondent-Bank has transferred the petitioner-appellant from M.V.P. Colony Branch to Rajam Branch purely on administrative grounds and hence neither an enquiry was needed to be conducted nor was any opportunity and reasons are required to be given to the petitioner-appellant before transferring him. Further the petitioner- appellant is not required to be given any opportunity to participate at the enquiry conducted by the Bank, into a complaint lodged by one of it’s valued customers against the petitioner. Learned counsel would contend therefore that no right of the petitioner is effected in the process. 10. We have considered the rival submissions. Every servant, subject to the terms contained either in the contract of employment or subject to the rules or regulations framed detailing the conditions of such service, is liable to be transferred. No employee has a right to stay put at one place and serve the employer, if the employer has got more than one unit under its control. No staff regulation or rule framed by the respondent-Bank has been brought to our notice which prohibits the transfer of the kind effected in case of the petitioner-appellant. The guidelines or administrative instructions concerning the exercise of transfers of employees are concerned, the same are intended to ensure that a fair procedure is adopted and that the power is not exercised arbitrarily by the employer or his representative while effecting transfer of the employees. Uniform standards and procedures are put in place for securing fair-play and transparency in the matter. Therefore, the guidelines formulated regulating the exercise of power to transfer the employees are only an administrative mechanism by which fair and transparent procedure is followed even in the matter of effecting transfers. Further, as a rule of prudent management of human resources, transfers are effected during the annual holidays time of educational institutions so that least inconvenience can be caused for the employee concerned, all due to dislocation in the academic pursuits of the dependent children. These guidelines therefore are intended to secure more productive and effective management of the human resources available. An order of transfer in breach in any of those guidelines cannot be interfered with by this Court, in the absence of proven malice. 11. Further, an order of a transfer of an employee will not visit the employee concerned with any grave consequences. He would be required to function from a different office or unit whenever subjected to such a transfer. Rest of the conditions of his service remain in tact. Therefore, an order of transfer is considered as a purely administrative exercise as it does not affect the rights of any individual. 12. However, in the instant case, a complaint is said to have been received about the rude manner in which the petitioner-appellant has behaved with one of the customers of the Bank. That being fairly a serious issue, from the perspective of the respondent-bank, it ordered for an administrative inquiry into the matter. Such inquiries are undertaken for purpose of ascertaining the truth or tenability behind such complaints. Frivolous or vexatious complaints are not required be given any serious importance. Therefore, such inquiries are ordered to gather the necessary facts and help to arrive at an appropriate conclusion in the matter. Such inquiries are needed to retain the relations with the customers on one hand and protect the innocent employees on the other. Therefore, participation of the employee concerned at such inquiries cannot be insisted upon as a part of adherence to the principles of natural justice. Such administrative inquiries are in the nature of preliminary enquiries or fact finding enquiries. They are only intended to collect necessary facts. Therefore, we are unable to agree with the contention of the learned senior counsel for the appellant that failure to provide an opportunity for participation of the petitioner-appellant vitiates the entire exercise in this regard. 13. Further, what has been stated in the counter affidavit filed on behalf of the respondent-Bank and quoted supra by us is only for purpose of satisfying this Court that for purely administrative reasons, the petitioner-appellant has been transferred to Rajam. Reasons need not be spelt out for effecting transfer of an employee from one place to another. Even when such a transfer has been undertaken pursuant to a preliminary enquiry, such reasons are not normally disclosed in the orders of transfer, for protecting the image and interests of the employee concerned. By not mentioning the reasons, the esteem of the employee concerned will be preserved and protected amongst his colleagues and superior officers. He will not be viewed with suspicion by one and all. He will be able to function at the new place of posting without any bother for any undue apprehensions in his mind. Therefore, we do not agree with the contentions of the learned senior counsel that mentioning the reasons in the counter affidavit filed on behalf of the respondent-Bank is in any manner improper. The principle that quasi judicial orders are liable to be judged for their validity and sustainability with reference to the reasons available on record is a well accepted legal principle. Orders which are otherwise invalid at the time of their passing cannot acquire currency or legitimacy with reference to the reasons assigned in affidavits filed later on. Since we have come to the conclusion that the impugned order of transfer is purely an administrative order, mentioning of reasons in the counter affidavit is only intended to satisfy this Court that the respondents have applied their mind to the relevant facts and circumstances prior to ordering the transfer of the writ petitioner-appellant and not for any other reasons. We also consider it appropriate to remind ourselves what the Supreme Court has pointed out in UNION OF INDIA VS. S.L. ABBAS[1] “6. An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by malafides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set- back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. 7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration…..” 14. We do not find any merit in this appeal and hence, it is accordingly dismissed at the admission stage. __________________________ GHULAM MOHAMMED, J ________________________________ NOOTY RAMAMOHANA RAO, J 22nd December, 2011 sp Note: LR copy to be marked HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO (Pre-delivered Judgment Per Justice Ghulam Mohammed) IN WRIT APPEAL NO.981 OF 2010 22nd December, 2011 sp [1] AIR 1993 SC 2444