1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE22D DAY OF FEBRUARY, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.58446/2017 (S - RES) BETWEEN SMT. SHOBHA N. RATHI AGED59YEARS, W/O NANDAKISHORE S. RATHI RESIDING AT NO.609, TOWER1 KAPILA BLOCK, NATIONAL GAMES VILLAGE, KORAMANGALA BENGALURU - 560 047. ... PETITIONER (BY SRI VIKRAM PHADKE, ADVOCATE FOR SRI N.G.PHADKE (PHYSICAL HEARING)) AND1 THE RESERVE BANK OF INDIA CENTRAL OFFICE BUILDING SHAHED BHAGAT SINGH ROAD, MUMBAI - 400 001 REPRESENTED BY ITS GOVERNOR.
2. THE ASSISTANT GENERAL MANAGER, ADMINISTRATION, RESERVE BANK OF INDIA, NRUPATUNGA ROAD, BENGALURU560001.
3. SRI A.K. PATHAK THE ASSISTANT GENERAL MANAGER, ADMINISTRATION, RESERVE BANK OF INDIA, 2 NRUPATUNGA ROAD, BENGALURU - 560 001.
4. THE INVESTIGATION OFFICER IN-CHARGE OF INVESTIGATIONS IN TO SBNs MALPRACTICES IN RBI, BENGALURU CENTRAL BUREAU OF INVESTIGATION, CBI OFFICE, COMPLEX, NO.36, BELLARY ROAD, GANGENAHALLI, BENGALURU - 560 032. ... RESPONDENTS (BY SRI R.V.S.NAIK, SENIOR COUNSEL FOR SRI T.SURYANARAYANA, ADVOCATE FOR M/S KING AND PARTRIDGE, ADVOCATES FOR R1 TO R3 (PHYSICAL HEARING); SRI P.PRASANNA KUMAR, ADVOCATE FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENTS; QUASH THE OFFICE
ORDERNO.123, DTD:01.12.2017 ISSUED BY THE R-4 AT ANNX-G. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON1702.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING :-
ORDERThe petitioner in this writ petition calls in question the order dated 1-12-2017 passed by the 1st respondent/Reserve Bank of India (hereinafter referred 3 to as ‘the Bank’ for short) transferring the petitioner from Bangalore to Jammu.
2. Brief facts of the case leading to the filing of the petition as borne out from the pleadings are as follows:- The petitioner at the relevant point of time was working in the cadre of Assistant Manager in the Establishment Section of the respondent/Bank and the petitioner was due to retire on 31st October, 2019.
3. On 8-11-2016 demonetization of notes of Rs.1,000/- and Rs.500/- was announced by the Government and the process of exchanging demonetized notes began. The RBI was the authority to issue fresh notes and collect back demonetized notes. At that point in time, the petitioner was posted at the CCTV Console Room from September 2015. It transpires that the petitioner sent for training between 7-11-2016 and 10.11.2016. On rejoining after training, the petitioner 4 was posted to the second shift in the CCTV Console Room which was monitoring 7 monitors and capturing images from 164 cameras.
4. Due to demonetization and a direction for exchange of notes with the Bank huge rush was generated with the result many counters had to be opened for the said work. The petitioner was monitoring all the counters exclusively and to monitor other crucial and critical areas as no special guidelines were issued to the petitioner with regard to monitoring of banned notes exchanged.
5. It transpires that it came to light of the Competent Authority that HRM Department Officers operated handicapped/ Senior Citizen Counters on 12- 11-2016 as there was huge amount of banned notes to be exchanged in the said counters. Thereafter questions were raised as how huge transactions came to be done in the said counters within a short span of time when 5 there was a limit for exchange of notes to the extent of Rs.4,000/-.
6. A show cause notice was issued to the petitioner on 1.02.2017 alleging that the petitioner had failed to alert the exchange counter of cash department with regard to the transactions in the said counters, to which the petitioner gave her reply. This resulted in a charge sheet being issued against the petitioner on 17- 02-2017 alleging negligence on the part of the petitioner for not having alerted huge notes exchange. Since the said issue in this petition does not concern the charge sheet, it is not adverted to in these proceedings.
7. It transpires that the incident narrated hereinabove gave rise to an investigation to be conducted by the CBI into the malpractice of notes banned. The CBI summoned the petitioner on 23-10- 2017 for investigation and the CBI went through the video footages and sought inputs and observations from 6 the petitioner. It also transpires that the petitioner was asked to appear for evidence in the trial if need arises. On 1-12-2017 the petitioner was again summoned by the CBI for the purpose of further assistance in the investigation and when she returned back after visiting the office of the CBI, she was handed over an order of transfer on 1-12-2017 which directed that the petitioner be relieved immediately and the petitioner should report to the transferred place – Bangalore to Jammu.
8. The petitioner immediately gave a representation 8-12-2017 for its cancellation quoting that the petitioner was suffering from post-menopausal bleeding illness and she was highly diabetic and at the age of 58 she could not travel with the illness. It was also submitted in the representation that she was attending CBI investigation for which reason she has postponed her surgery also. The petitioner enclosed all medical certificates in support of her claim in the 7 representation. The Bank did not heed to the request of the petitioner which drove the petitioner to file this writ petition on 22-12-2017. It is this order of transfer dated 1.12.2017 that is called in question in the instant writ petition.
9. Heard Shri Vikram Phadke, learned counsel appearing for the petitioner and Sri K.G.Naik, learned Senior Counsel representing the respondent/Bank.
10. The learned counsel for the petitioner submits that demonetization of Rs.500/- and Rs.1,000/- notes was announced and the process of exchanging demonetizing notes began and the Bank was the authority to issue notes and collect back the demonetized notes. The petitioner at that point of time was posted in the CCTV Console Room of the Bank. He would further contend that at the time when the demonetization was notified, the petitioner was sent on 8 training to Kolkata between the date 7-11-2016 and 10- 11-2016 and returned back to duties on 11.11.2016. According to the learned counsel demonetization resulted in huge rush for exchange of notes in the Bank. Due to enormous rush and fulfillment of demand of citizens became a subject matter of criticism to the Bank, which resulted in a show cause notice being issued to the petitioner on 1-02-2017 alleging that the petitioner had not alerted any of the questions raised due to huge transactions, immediately to the superiors. This show cause notice led to a charge sheet being issued on 7-02-2017. Though this petition does not concern with the charge sheet, but it concerns a subsequent event that took place on 1.12.2017 i.e., the transfer of the petitioner. The learned counsel appearing for the petitioner raised the following grounds against the order of transfer. It is not a routine transfer or a part of the general transfer; the transfer is made with mala fide intention; the order of transfer does not 9 even mention that it is in public interest or in the wake of administrative exigency; the transfer is made completely contrary to the master circular regulating transfers.
11. On the other hand, the learned Senior counsel Sri R.N.Naik, appearing for the Bank would vehemently refute every contention of the petitioner and would submit that there are no malafides in issuing the order of transfer, it is a routine transfer and would further submit that the allegation of the petitioner that she was a part of the investigation by the Central Bureau of Investigation which has led to the order of transfer is falsified by the very affidavit filed by the CBI, that by the time the petitioner was transferred her evidence was completely over. Therefore, he would submit that the grounds urged in the petition and canvassed by the learned counsel are figment of his imagination and 10 cannot hold water in the light of the settled law that transfer is an ‘incidence of service’.
12. I have given my anxious consideration to the rival submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
13. Before embarking upon the consideration of the facts of the case at hand, I feel it germane to notice the scope judicial review on the orders of transfer and the line of law laid down by the Apex Court with regard to parameters of judicial review in that regard . The Apex Court right from the year 1986 in the case of B.Varada Rao has laid down as to when and on what grounds , orders of transfer can be interfered with . The apex Court in the case of B. Varadha Rao v. State of Karnataka, reported in (1986) 4 SCC131has held as follows:
11. “5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned government servant. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra [(1985) 2 LLJ73(Bom)].. We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary 12 to the government policy with a view to accommodate one Dr R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of T.N. [(1974) 4 SCC3:
1974. SCC (L&S) 165 : AIR1974SC555: (1974) 2 SCR348 for the positivistic view that ‘equality is antithetic to arbitrariness’ and held that the observations equally apply to the policy regarding the transfer of public servants. It was observed: “It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to 13 decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.” The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of 14 a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.
6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the government will keep 15 these considerations in view while making an order of transfer.” (Emphasis applied) A little later the Apex court in the case of Shilpi Bose (Mrs) v. State of Bihar, reported in 1991 Supp (2) SCC659has held as follows: “4. In our opinion, the courts should not interfere with a transfer order which is 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 the 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 16 authorities in the department. If the courts 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 overlooked these aspects in interfering with the transfer orders.” (Emphasis applied) Subsequently, the Apex Court in the case of Rajendra Singh v. State of U.P., reported in (2009) 15 SCC178has observed as follows : “8. A government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or 17 position, he should continue in such place or position as long as he desires (see State of U.P. v. Gobardhan Lal [(2004) 11 SCC402:
2005. SCC (L&S) 55]. , SCC p. 406, para 7).
9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar [1991 Supp (2) SCC659:
1992. SCC (L&S) 127 : AIR1991SC532 this Court held: (SCC p. 661, para
4) “4. In our opinion, the courts should not interfere with a transfer order which is 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 the 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 18 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 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 overlooked these aspects in interfering with the transfer orders.
10. In N.K. Singh v. Union of India [(1994) 6 SCC98:
1994. SCC (L&S) 1304 : (1994) 28 ATC246 this Court reiterated that: (SCC p. 103, para
6) “6. … the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision….” (Emphasis applied) 19 The Judgment of the year 1986 in the case of Varadha Rao is reiterated by the Apex Court even in 2019 in the case of Nagorao Shivaji Chavan v. Sunil Purushottam Bhamre, reported in (2019) 13 SCC788wherein the Apex Court has held as follows: “11. In B. Varadha Rao v. State of Karnataka [B. Varadha Rao v. State of Karnataka, (1986) 4 SCC131:
1986. SCC (L&S) 750]. , this Court has observed with respect to transfer of Class I officers, thus: (SCC pp. 134- 35, paras 4-6) “4. … That a government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non- transferable post. As the learned Judges rightly observe: The norms enunciated by Government for the guidance of its officers in the matter of 20 regulating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the government servants.
5. It is no doubt true that if the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the government servant concerned. The petitioner who appeared in person placed reliance, as he did in the High Court, on the decision of the Bombay High Court in Sheshrao Nagorao Umap v. State of Maharashtra [Sheshrao Nagorao Umap v. State of Maharashtra, 1984 SCC OnLine Bom 162 : (1985) 2 LLJ73 . We do not see how the decision can be of any avail to the question at issue. The learned Judges were dealing with a 21 petition under Article 226 of the Constitution by which a Medical Officer challenged his order of transfer on the ground that it was not only mala fide but was issued in colourable exercise of power and therefore wholly illegal and void. It was contended by the petitioner that he was being transferred contrary to the government policy with a view to accommodate one Dr R.P. Patil because of the political influence he wielded. In allowing the writ petition, the learned Judges observed that it was no doubt true that the Government has power to transfer its employees employed in a transferable post but this power has to be exercised bona fide to meet the exigencies of the administration. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. They relied on the observations made by this Court in E.P. Royappa v. State of T.N. [E.P. Royappa v. State of T.N., (1974) 4 SCC3:
1974. SCC (L&S) 165]. for the positivistic view that ‘equality is antithetic to arbitrariness’ and held that the observations equally apply to the policy 22 regarding the transfer of public servants. It was observed: ‘It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such; transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, than is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.’ 23 The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.
6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has 24 been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the Government will keep these considerations in view while making an order of transfer.” (Emphasis applied) 14. Therefore, in the light of the afore-extracted judgments of the Apex Court, the scope of judicial review with regard to orders of transfer are three fold viz., - (i) that if it is in violation of statutory rules/operative guidelines or circulars (ii) that if the order of transfer suffers from malafides or is a product of colourable exercise of power; (iii) that in exceptional cases of extreme hardship.
15. In the light of the Apex Court holding that transfer would get vitiated on account of malafides, it is germane to consider what are the malafides qua an 25 order of transfer. There can be no precise definition or interpretation of malafides. Therefore, the dictionary meaning of malafides as obtaining in Black’s law dictionary is considered. Black’s law dictionary defines ‘malafide’ to be an intentionally doing of a wrong without just cause or excuse and it is done with an intention to inflict an injury or under such circumstances that would imply an evil motive to the act.
16. Malafide has two components – malice in law and malice in fact. For an action to be one of malice in law, one need not impute personal malice by making a particular person a party to the proceedings. If personal malice is alleged, then it becomes malice in fact for which a person against whom malice is alleged has to be a party to the proceedings. Therefore, the order of transfer in the case at hand is to be considered on the touchstone of malice in law. 26
17. Malafides, colourable exercise of power and malice in law are interpreted by the Apex Court. The Apex Court in the case of STATE OF MYSORE v. P.R. KULKARNI reported in (1973) 3 SCC597has held as follows:- “7. It was objected that the High Court of Mysore had erroneously characterised such a use of the power of reversion as a “misuse of power” which “invited the criticism” that it was an “artifice” to eliminate the respondents from the field of officiating operators in order that others left in the State of Bombay might get their places. In other words, the reversion orders may have sprung from an oblique motive in addition to having resulted from the misapprehension that officers on the constabulary of certain District had necessarily to be allocated to Mysore and that officials of the Bombay State could gauge the needs of the Mysore State. Learned Counsel for the State of Mysore has not been able to show us that the findings of the Mysore High Court, 27 which meant that the power of reversion had been used for a purpose for which it could not have been intended, were erroneous. “Misuse of power” or “mis-application of power” or a Detournement de Puvoir” (as it is called in French Administrative Law), are terms correctly employed to describe the use of a power in this illegal fashion. It was not necessary for the respondents to go so far as to establish that such misuse took place with the deliberate object of benefiting others at the expense of the respondents, although learned Judges of the High Court were inclined to hold, not without good reasons, that such an object may also be there. It was enough to prove, as the respondents succeeded in doing, that the power of reversion was used for a collateral or legally extraneous purpose.” (Emphasis applied) The Apex Court in the case of State of Punjab v. Gurdial Singh, reported in (1980) 2 SCC471has held as follows :
28. “9. The question, then, is what is mala fides in the jurisprudence of power?. Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power — sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions — is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law 29 when he stated: “I repeat . . . that all power is a trust — that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist”. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, malafides or fraud on power vitiates the acquisition or other official act.” (Emphasis applied) The aforesaid judgments were interpreting what would be malafides, misuse of power or misapplication of power. 30
18. Later, the Apex Court in the case of Ratnagiri Gas and Power (P) Ltd. v. RDS Projects Ltd., (2013) 1 SCC524has elucidated as to what would be malice in fact and malice in law. The Apex Court has held as follows: “30. Coming then to the question whether the action taken by the appellant RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind. The conceptual difference between the two has been succinctly stated in the following paragragh by Lord Haldane in Shearer v. Shields [1914 AC808(HL)]. quoted with approval by this Court in ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC521: AIR1976SC1207 : (SCC p. 641, para
317) “317. … ‘Between “malice in fact” and “malice in law” there is a broad distinction 31 which is not peculiar to any system of jurisprudence.The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the law and can only act within the law. He may, therefore, be guilty of “malice in law”, although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. “Malice in fact” is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act.’” (Shearer case [1914 AC808(HL)]. , AC pp. 813-14) 32. To the same effect is the recent decision of this Court in Ravi Yashwant Bhoir v. Collector [(2012) 4 SCC407 wherein this Court observed: (SCC p. 431, paras 47-48) “Malice in law 47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it 32 can never be a case of personal ill will or spite on the part of the State. ‘Legal malice’ or ‘malice in law’ means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite.
48. Malafide exercise of power does not imply any moral turpitude. It means exercise of statutory power for ‘purposes foreign to those for which it is in law intended’. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law. (See ADM, Jabalpur v. Shivakant Shukla [(1976) 2 SCC521: AIR1976SC1207 , Union of India v. V. Ramakrishnan [(2005) 8 SCC394:
2005. SCC (L&S) 1150]. and Kalabharati Advertising v. Hemant Vimalnath Narichania 33 [(2010) 9 SCC437: (2010) 3 SCC (Civ) 808 : AIR2010SC3745 .)” (Emphasis applied) 19. The case at hand will have to be considered on the bedrock of the principles laid down by the Apex Court in the aforesaid cases with regard to judicial review of an order of transfer on the ground of it being contrary to the norms, malafides or malice in law.
20. The facts are not in dispute. The petitioner at the relevant point in time was working as an Assistant Manager in the CCTV Console Room. The CCTV Console Room was monitored by the petitioner with video feed from 164 cameras and 7 monitors covering not just the cash counter but the whole premises of the Bank. On certain allegations of the petitioner not monitoring properly which led to the HRM Department Officer operating citizens counters and exchange of notes being violated the petitioner was prima facie held 34 responsible for negligence, as the allegation of malpractices regarding the currency exchange in the Bank led to the matters being handed over to the Central Bureau of Investigation. On 23-10-2017 when the petitioner was CCTV security console in-charge she was called by the CBI for her assistance in the investigation. The petitioner started assisting the CBI, gave her observations on the CCTV footages and the CBI recorded her statement and was also informed that she would be asked to be a witness in the trial. This happened on two dates - 23-10-2017 and 1-12-2017. The petitioner was transferred from Bangalore to Jammu on that very day i.e., on 01.12.2017. The order of transfer reads as follows: “1. It has been decided that Smt. Shobha N.Rathi (P.F. Index No.BIS0371), Assistant Manager attached to the Central Establishment Section should be transferred in her existing grade to Reserve Bank of India, Jammu at own cost. Accordingly, she will be relieved 35 from this Office as at the close of business of December 01,2017 with instructions to report to the Regional Director, Reserve Bank of India, Jammu after availing of minimum journey period.
2. She should hand over vacant possession of the Bank’s flat No.609, RBI Officer Quarters, Koramangala, Bengaluru occupied by her to the Bank within a period of one month from the date of her relief. In case it is not possible for her for any reason to vacate the Bank’s flat within the stipulated period, she should immediately submit for Bank’s consideration, an application for permission to retain the flat beyond the stipulated period giving reasons in support her request.
3. The Officer has been permitted, in terms of Regulation 99A of the RBI (Staff) Regulations, 1948, to avail special casual leave of five (5) days in one single spell only in lieu of joining time at a later date but within a period of six months from the date of her reporting at Jammu. 36
4. She should return the library books borrowed, if any, from DEPR before her relief.”
(Emphasis added)The petitioner immediately gave a representation venting her grievance against the order of transfer being transfer in the month of December to Jammu when she was at the verge of retirement being 59 years old. This representation of the petitioner went unheeded .
21. Transfer of employees in the Bank is regulated by a Circular issued by the Bank viz., “Master Circular on Transfer and Placement Policy for Officers and Facilities Associated with Transfer”. The case on hand will have to be considered qua the Master Circular on Transfer. Clause 3.7 of the said Circular deals with repatriation before retirement and reads as follows:- “3.7 Repatriation before Retirement On request, the Bank will endeavour to transfer an officer to a centre of choice 37 one or two years prior to retirement, subject to administrative convenience and availability of vacancy.” In terms of this clause, the Bank has to make an endeavor that an officer who is due to retire within two years , such employees prior to retirement is to be given a centre of his/her choice. Clause 3.15 deals with Computerization of Transfer System and reads as follows:- “3.15. Computerization of Transfer System In case of annual transfers and transfers made to give effect to promotions, the matching of officers’ centres of choice with available vacancies at various centres will be carried out, in terms of the extant policy. In case of annual transfers the preliminary transfer list will be prepared and announced by December.”
(Emphasis added)In terms of Clause 3.15 after computerization of transfer system in the RBI in terms of the said Clause annual 38 transfers by way of preliminary list will have to be prepared and announced by December. Clause 8 of the Circular deals with grant of joining time and reads as follows:- “8. Grant of joining Time/Journey Period. 8.1 Officers are eligible for Joining Time of 10 days. They are also eligible for availing of special casual leave in lieu of joining time (may be availed in two spells) at a later date up to two years subject to grant of extension of time for submission of TA bill by the competent authority. 8.2 An officer on transfer is eligible for minimum journey period to proceed on transfer to new centre in case the officer wishes to avail of special casual leave in lieu of joining time at a later date, the journey period will commence immediately from the next day of his/her relief from the previous office irrespective of that day being Sunday/holiday.” 39 8.3 Officers who are transferred at their own request and own cost will be eligible for joining time/special casual leave in lieu of joining time for a period of five days.This leave will have to be availed of in one spell. No other financial benefits will be granted to such officers.”
(Emphasis added)In terms of this clause, an employee is eligible for 10 days of joining time, except in cases where the transfer is on their request, the joining time is reduced to 5 days in terms of Clause 8.3.
22. The transfer of the petitioner is required to be tested on the touchstone of the afore-extracted clauses of the Master Circular. The circular mandates that an officer who is due to retire in the next two years shall be given a centre of choice. But, the petitioner is transferred, that too, in the month of December from Bangalore to Jammu with direction to report within 5 days and the journey of transfer is made at her own 40 cost, as if the transfer of the petitioner is at her request. It is not in dispute that the petitioner never requested for transfer, even then she is saddled with reporting to Jammu at her own cost within 5 days, these actions are blatantly contrary to Clauses 3.7 and 8 of the Master Circular.
23. The basis requirement of transfer in service is it should be in public interest or in the wake of administrative exigency or a sudden exigency arising to which the services of a particular employee becomes indispensable. The afore-extracted order of transfer neither speaks of any administrative exigency or impending urgency and nor displays that it is in public interest or Bank’s interest. Therefore, the order of transfer is not only in violation of the Master Circular but is also in violation of the basic requirement of transfer of personnel. If it is neither in the wake of 41 administrative exigency nor in public interest, such transfer becomes a transfer to achieve collateral ends.
24. The link in the chain of events narrated hereinabove would in unmistakable terms indicate that the transfer of the petitioner did suffer from malafides or malice in law. The allegations were concerning her functioning in the CCTV Console Room and the CBI had initiated investigation before whom the petitioner had given her statement. Though this Court is not pronouncing upon the veracity of the statement or the necessity or otherwise, but the fact remains that the petitioner had given her statement on 23.10.2017 and on 01.12.2017. What can be gathered from the sudden springing of the impugned order of transfer on 01.12.2017 qua the events narrated above is that the petitioner was probably transferred to forestall further statements. Though direct inference to this is not documented, the facts narrated hereinabove lead to 42 such an unmistakable inference in the light of an unusual order of transfer passed against the petitioner.
25. The petitioner is transferred at her own cost from Bangalore to Jammu though there was no request for any such transfer. She was directed to be relieved on 1st December 2017; the date on which the order was passed; she was directed to hand over Bank’s flat No.609 immediately; she was not given joining time even as is available to an officer who is transferred ; she is directed to report at Jammu in five days time by availing special casual leave, in one single spell in lieu of joining time. An unusual transfer of this kind , when comes up for judicial review, this Court under Article 226 of the Constitution cannot turn a blind eye on the specious plea of the respondent that it is a routine order of transfer and such transfer being incidence of service it should not be interfered with. 43
26. Proceedings before this Court are also germane to be noticed. The petitioner approached this Court in the subject writ petition on 26-12-2017. The matter was directed to be re-listed on 28-12-2017. On 28-12-2017 an interim order was passed that the respondent shall not relieve the petitioner from the present place of work, if not already relieved, till the next date of hearing. On the next date of hearing i.e., on 3.01.2018 the respondent/Bank appeared and accepted notice on behalf of the respondents - Bank. The interim order was continued.
27. The petitioner gave a representation dated 08- 01-2018 to rejoin duties, which reads as follows: “Dear Sir, I had been requisitioned to assist CBI in its investigation vide HRMD letter HRMD BG.No.12496/07.03.001/2017-18 dated October 23rd, 2017 and accordingly I had been doing so till December 1st, 2017. 44 On December 1st 2017, when I returned to my quarters at 7.15 p.m. after attending CBI office, the Security Officer gave me transfer order dated 01-12-2017, transferring me to Jammu. I was shocked at this unjust, arbitrary and vengeful action. I have not been relieved from Bangalore. Being highly aggrieved of such wrongful act, I gave a representation to the Hon’ble Governor, Reserve Bank of India vide letter dated 08-12- 2017 (copy of the same is enclosed). I waited for my representation to be considered, which is yet to be considered. However, after having waited sufficiently, having no other alternative, I approached the Hon’ble High Court of Karnataka by filing W.P.No.58446 of 2017. The Hon’ble High Court was pleased to grant me interim relief vide order dated 28.12.2017 (copy of which is enclosed along with this letter). The said case again came up on 03-01- 2018 before the Hon’ble High Court and the Hon’ble Court was pleased to extend the interim order (copy of which is also enclosed along with this letter). On that date, one counsel representing the Bank appeared before the Hon’ble Court and sought time to file vakalathnama. I have been suffering from heavy post- menopausal bleeding, and had been advised medical procedure vide medical certificate dated 10th Nov.
2017. I had planned to undergo the same during Dec. 2017 and was on medication (copy of the said medical certificate is enclosed) and my physical 45 indisposition increased (copies of following medical certificates are enclosed).
1. Medical Certificate issued by B.M.O.dated 04-12-2017 2. Medical Certificate issued by Gynecologist dated 11.12.2017.
3. Medical Certificate issued by B.M.O. dated 11-12-2017 4. Medical Certificate issued by Gynecologist dated 23.12.2017.
5. Medical Certificate issued by B.M.O. dated 23-12-2017. I had sent leave letters dated 04-12-2017, 05- 12-2027, 12-12-2017 and 27-12-2017 which are also enclosed along with the above mentioned medical certificates. I am now in a position to attend duties. Now, my Gynecologist after examination has said that I can resume normal duties. Copy of the said fitness certificate is also enclosed along with this letter. However, when I approached the Bank’s Medical Officer she informed that she has been instructed not to issue any certificate to me. As per the enclosed fitness certificates, I am fit to resume duty and hence I am reporting to duty today i.e., on 8th January 2018. After being certified fit to resume duties, I have given the joining report to-day. But, I am eager to bring to your kind knowledge that I am being persecuted. I was told by the Bank’s Medical Officer that she has been instructed not to 46 issue medical certificate to me. I am aghast at such unjust treatment meted out to me at the fag end of my career when less than 2 years are remaining for my superannuation. I brought the aforesaid facts for your kind consideration and to keep you informed about (tell your good self) the plight I am suffering.” The representation has also indicated that this Court had passed an interim order on 28-12-2017. Ignoring the same, the respondent/Bank issued a notice for unauthorized absence from 1-12-2017 till 5-01-2018 on 24th October, 2018. The allegation in the show cause notice was that the petitioner had remained absent from Bank’s duty since 6th January 2018. Therefore, the respondent/Bank made the absence a subject matter of allegation during the subsistence of the interim order as well. The petitioner gave a detailed reply to the show cause notice which led to issuance of a charge sheet of misconduct of unauthorized absence on 3-11-2018 and a direction to vacate the quarters on 29-11-2018. All these would clearly indicate the action of the 47 respondent/Bank was in misuse of power and harassing the petitioner even during the subsistence of the interim order.
28. The matter again appeared before the Court on 5.06.2018 when the respondent sought time to file objections. The matter was again listed on 11-12-2018 when it was ordered that no precipitatory action be taken causing eviction of the petitioner. The case again appeared on 18-12-2018 on which day the matter was adjourned on the request of both the learned counsel to produce some additional documents. The afore- extracted dates are narrated only for the reason that when the matter came up on 7-12-2020 the Bank makes a statement that the petitioner had been relieved by the time the interim order was granted. The Bank made such a statement for the first time before this Court apart from contending the same in the statement of objections that the petitioner had been relieved and 48 ought to have reported to duties in obedience to the order of transfer. Having not done so, the learned Senior Counsel would submit that the Bank was justified in passing an order treating the period between 01.12.2017 till the date of superannuation as leave without pay. This submission is unacceptable as the Bank ought to have brought to the notice of the Court on several occasions when the matter was listed that by the time interim order was granted the petitioner had already been relieved. The Bank chose to keep quiet throughout and when the matter was taken up on 07.12.2020 this submission was made.
29. In the wake of such submission, this Court while keeping the writ petition pending directed the petitioner to submit a representation to give a quietus to the problem. The Bank in reply has turned down the representation as well. Therefore, the narration of events would lead to an unmistakable conclusion that 49 the power of transfer vested in the Bank is used neither for administrative exigency nor for Bank’s interest, but for purposes other than confermation of such power.
30. For the aforesaid reasons, I pass the following –
ORDER(i) The writ petition is allowed. (ii) The order of transfer dated 1.12.2017 is quashed. (iii) The period between the order of transfer and the date of superannuation shall be treated as service for all benefits including arrears of wages and other incidental consequential benefits. (iv) The pension of the petitioner shall be reworked in terms of clause (iii) of the order and paid to the petitioner along with arrears of pension. 50 (v) This order shall be complied with by the respondents within two months from the date of receipt of copy of this order. Sd/- JUDGE bkp CT:MJ