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Judgment
Ram Mohan Reddy, J.—Petitioner a Senior Manager in the Respondent Cooperative Bank, served the organization for more than 35 years, on the verge of retirement on attaining the age of superannuation in June of 2011, was issued with an order dated 8.5.2010 of transfer from the Head Office at Udupi to the Puttur branch as a Branch Manager. That order was called in question by raising a dispute u/s 17 of the Karnataka Cooperative Societies Act before the Dispute Registrar of Cooperative Societies (for short D.R.C.S.), registered as Dispute No. 2/10, was stayed by interim order dated 17.5.2010. The application filed by the Respondent Bank for vacating the interim order when rejected by order dated 19.6.2010 was carried in Revision Petition No. 62/10 before the Karnataka Appellate Tribunal (for short the KAT), whence by order dated 17.9.2010 the revision was allowed and the interim order, dissolved. Hence this writ petition.
Petition is opposed by filing statement of objections dated 2.11.2010 interalia contending that the order of transfer Annexure ''A'' is in respect of the Petitioner amongst other employees of similar rank. It is contended that Government guidelines issued in the matter of transfer are not strictly applicable to the Bank and that Petitioner is transferred since he was working at the head office since ten years while the minimum period of work at a place for ''A'' category officers is three years. In addition, it is contended that the KAT was justified in recording a finding that if the matter is pending before the D.R.C.S. for about a year''s time then the transfer order would become meaningless. In addition it is contended that Rule 10 of the Service Rules of the Respondent Bank states that if an officer does not accept the transfer order, being short of disobeying the transfer order is insubordination and not following the reasonable orders of the management amounts to misconduct and if an employee is aggrieved by an order of transfer is required to file a representation to the management expressing his grievance with a request to reconsider the transfer order and the failure to submit a representation amounts to accepting the transfer order. The Petitioner having directly approached the D.R.C.S. in a dispute, obtained an interim order, in a matter which is in the discretion of the management and therefore the KAT was justified in dissolving the interim order. Lastly, it is contended that the Petitioner has not obeyed the order of transfer by reporting at the place of transfer i.e., Puttur.
This Court on 26.10.10 passed the following order:
Petitioner is permitted to report to duty at his earlier place of work in Udupi, forthwith.
List, on 29.10.2010 at the request of the learned Counsel for the Respondent -Caveator.
The Petitioner has filed an affidavit dated 2.11.2010 stating that the President of the Bank by name Sri Dinakar Shetty and the General Manager by name Sri B Divakar Shetty declined to accept the certified copy of the interim order alongwith the representation to report to duty on the premise that the High Court is required to directly communicate tO them and not through the Petitioner, act borders around contempt and hence action be initiated against them. Learned Counsel has also filed a memo enclosing the details of the posts and payscale, more appropriately of the Senior Manager and Branch Manager in the Respondent Bank.
Respondent has filed an application for vacating the interim order of stay dated 26.10.2010.
With the consent of the learned Counsel for the parties the petition is finally heard and disposed of by this order.
Learned Counsel for the Petitioner contends that the order of transfer Annexure ''A'' suffers from serious legal infirmities, firstly that the Petitioner admittedly a Senior Manager ''A'' grade, in the pay scale of Rs. .6,300/- to Rs. . 11,800/- could not have been transferred to a lower post of Branch Manager, in the pay scale of Rs. .5,575/- to Rs. . 10,620/-. In other words the Petitioner held a lien on the post of Senior Manager and in the absence of a request, for the transfer to a lower post in third Respondent Bank was illegal. Learned Counsel points to Annexure ''A'' to contend that transfer to a post lower than Senior Manager amounts to a punishment though neither misconduct is alleged nor proved against the Petitioner. Secondly it is contended that Petitioner has eight months to attain the age of superannuation and during the short interregnum there is no justification to the transfer him from the head office at Udupi to the branch office at Puttur. Learned Counsel places reliance upon the decision of this Court in M A Khader .v. Director of Information and Tourism reported in 1971 MLJShort Note Item No. 301, at page 126, and the decision of the Apex Court in Paresh Chandra Nandi Vs. Controller of Stores, N.F. Railway, Pandu and Others, .
Per contra, learned Senior counsel for the Respondent contends that the D.R.C.S. had no jurisdiction to entertain the dispute muchless pass the interim order, while seeking to sustain the order impugned as being merited and not calling for interference, more so in view of the fact that no malafides are urged in the matter of transfer.
At the very threshold it needs to be pointed out that the Petitioner aggrieved by the order of transfer filed a dispute u/s 70 of the Karnataka Cooperative Societies Act and obtained an interim order of stay of the order of transfer. The merit or the demerit of the order of transfer, so also the objections of the Respondent bank that the D.R.C.S. has no jurisdiction are yet to be adjudicated by the D.R.C.S. Thus the answer to the question as to whether the order of transfer is in accordance with law or in terms of the rules framed by the Respondent bank is at large at the hands of the D.R.C.S. In that view of the matter, I decline to entertain the contentions advanced by the learned Counsel for the Petitioner over the merits of the order of transfer.
Confining the lis brought before Court to one of the justification or otherwards of the KAT to interfere in the matter of exercise of discretion by the D.R.C.S. in granting an interim order of stay of the order of transfer, in the circumstances, I am of the opinion that the interference by the order impugned is unjustified. I say so because the question as to whether the Petitioner held a lien to the post of Senior Manager in the pay scale of Rs. .6.300/- to Rs. . 11,840/- in the Respondent Cooperative Bank and hence could not have been transferred to a post lower in pay scale and position i.e., that of the Branch Manager, Puttur in the payscale of Rs. .5,575/- to Rs. . 10.620/- is of grave concern for the Petitioner requiring adjudication, more so, in the light of the well-settled law in the two decisions referred to supra. Yet again the question as to whether the Respondent Bank could have exercised discretion to transfer the Petitioner at the fag end of his career, when nine months of service remains before attaining (he age of superannuation, is also to be adjudicated and decided by the D.R.C.S. in the pending dispute.
The D.R.C.S. in the order confirming the interim stay exercised a jurisdiction vested in him, subject matter of revision before the KAT required the KAT to not only advert to the aforesaid questions but also to the discretionary jurisdiction and be circumspect before interfering in the order. A bare perusal of the reasons assigned by the KAT in the order impugned, though, discloses consideration of material that the Petitioner was due for retirement, and that if the order of the lower Court, is stayed, purpose of filing the dispute would be frustrated, recorded a perverse conclusion, on logic, that it the dispute remained pending for about one year the order of transfer issued by the Bank would become meaningless. The question is not logic, but whether the Petitioner had made out a prima facie case for consideration and whether the D.R.C.S. had exercised a jurisdiction vested in him. The further finding of the KAT that the Petitioner ought to have obeyed the order of the authority by reporting to duty at the new place of posting cannot but be characterized as perverse in the absence of an answer as to whether the Petitioner was liable to report to duty at a place where the post was lower than that of the post over which he held a lien. In addition, the finding of the KAT that it was very difficult to say that the order of transfer was with any malafides is yet again a perverse conclusion, in the fact, situation.
Suffice it to state that the KAT without applying its mind, to the facts and circumstances on record, fell in serious error in conforming the order of transfer though the revision petition was against an order confirming the interim order in the dispute, on the basis of reasons, findings and conclusions which are perverse, illegal and unsustainable.
The assertion of the Petitioner that the two officers namely the President and the General Manager of the Respondent Bank had committed acts bordering on contempt in the matter of not implementing the interim order though had entered caveat were represented by learned Counsel, requires a decision of a competent Court and hence I decline to interfere. It is open to the Petitioner to initiate such legal proceedings, as are permissible in law against the said officers.
In the result, the writ petition is allowed The order dated 17.9.2010 in revision petition No. 62/10 is quashed and the proceedings remitted for fresh consideration in the light of the observations supra and to pass orders thereon in accordance with law after extending reasonable opportunity of hearing to the parties concerned.
The application for vacating interim stay is unnecessary and is rejected.