Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani

SINGH, J. Th's appeal is directed against the judgment and order of the High Court of Gujarat dated 28.2. 1986 allowing the respondent's writ petition and quashing order of discharge from F service and directing his reinstatement in service. The respondent joined service as technical assistant with the Gujarat State Electricity Board (hereinafter referred to as the Board). He was promoted to the post of Deputy Engineer. While he was posted at Surat as Deputy Engineer he was transferred to Ukai sub- G division under the order of the Superintending Engineer dated 29th March, 1974. Pursuant to the order of transfer he was relieved from his duties at Surat on 30th March, 1974 to enable him to join at Ukai. He made representation to the Additional Chief Engineer for cancelling his transfer order on the ground that his mother aged 70 years was ailing and it would cause great inconvenience to him if he was required H to join at Ukai. His representation was rejected and he was directed to y - GUJARAT ELECTY. BOARD v. A.S. POSHANJ [SINGH, J.] 361 ____.. join at Ukai but he did not do so instead he filed a civil suit at Baroda A challenging validity of the order of transfer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of J the order of his discharge from service by means of a writ petition ~ under Artide 226 of the Constitution before the High Court of B · ~ Gujarat. A learned Single Judge of the High Court quashed the order , of termination on the findings that the order of discharge was issued in violation of the basic principles of natural justice as no opportunity was afforded to the respondent before discharging him from services under Regulation No. 113. The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having re- -~+ gard to recalcitrant attitude of the appellant and his continued conduct C of disobedience of the orders of his superior authorities, he refused to. grant consequential reliefs regarding reinstatement or. payment of back-wages. The respondent as well as the appellant-board, both pre­ ferred Letters , Patent appeals against the order of learned Single Judge. A Division Bench of the High Court dismissed the appeal pre­ ferred by the Appellants but it allowed the respondent's appeal. ,The Division Bench upheld the order of the learned Single Judge holding the order of discharge illegal and void but it set aside the order of the --y learned Single Judge refusing to grant consequential relief instead it directed the appellants to reinstate the respondent, and to treat him in service without any break in service and to grant him benefits of incre­ ments, seniority, and promotion to which.he may be entitled under the rules. :The Bench, however, did not grant full back-wages to the respondent instead it directed the Board to pay him 50 per cent of back-wages. Aggrieved, the appellant has preferred the instant appeal ~ after obtaining special leave of this Court. This appeal came up for hearing before us on 28th January, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for the appel­ lants and Sh. Vimal Dave, Advocate, appearing for the respondent were fully heard. After hearing learned counsel for the parties we were satisfied that the le'arned Single Judge as well as the Division Bench both had committed error in allowing the writ petition and granting relief to the respondent. We expressed our view in the Court and suggested to Mr. Vimal Dave, counsel for the respondent, that if he agreed the original writ petition of the respondent could be dismissed without directing him to refund the amount which he had already been paid by the appellants in pursuance to the orders of the High Court and of this Court as during the pendency of the appeal, the appellants Ci ·;·;· I) 362 SUPREME COURT REPORTS [19891 2 S.C.R. were directed by means of interim order of this Court to continue to pay salary to the respondent which was being paid to him regularly. The hearing was adjourned to enable Sh. Vimal Dave, to obtain instructions from the respondent. The appeal came up for hearing before us on 16.2.1988 when another counsel appeared to argue the appeal on behalf of the respondent on merits. We refused to hear the . counsel as we had already completed hearing. Thereupon, the respon- ~ dent himself appeared in person and sought permission to make his · ~ ' submissions personally. We refused to accede to his request as oral • hearing had already been completed and the matter had been adjour·· ned only to enable the respondent's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file. written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead -+-­ the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis- used adjoun!ments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench Y is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on the merits of the case on the conclusion of hearing. In the instant case on the conclusion of the oral hearing we had expressed our opinion on 28.1.1988 in the open court, that we were inclined to allow the appeal and set aside the order of the High Court and dismiss the writ petition but taking a sympathetic view we requested Sh. Vimal Dave, learned counsel appearing for the respondent to obtain instructions as aforesaid. The opportunity granted to the respondent has, however, been misused by • raising mischievous and frivolous objections instead of filing written submissions. The respondent's prayer is accordingly rejected and since oral hearing has already been completed, and in spite of several adjournments respondent failed to appear before the Court or to file y --, the written submissions we proceed to decide the case on merits. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking H has legal right for being posted at any particular place. Transfer from ., GUJARAT ELECTY. BOARD v. A:S. POSHANI [SINGH, J.] 363 one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is neces­ sary in public interest and efficiency in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it I is open to him to make representation tothe competent authority for ·~ stay, modification or cancellation of the transfer order. If the order of ·~ transfer· is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the' transfer order a public servant has no ·justification to avoid or evade the fransfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to --+ the transfer order, he would expose ·himself to disciplinary action ··> · iindei the relevant Rules, as has happened in the instant case. The respondent Jost his service as he refused to comply with the order of his transfer from one place to the other. .~· 0 " There is no dispute that the respondent was holding a transfer­ able post an'd under the"conditions oi'service applicable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transfer­ red from Surat to Ukai.' The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but.he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974, The Chief Engineer who discharged the respondent's services exercised his power under Service Regulation No. 113, which runs as under: "113. The continued absence from duty or overstay, in spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure." The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or overstays the period of sanctioned leave and in spite of warning, he fails to return to duty, he renders himself liable to be discharged summarily from service without complying with the procedure prescribed for taking disciplinary action, under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. Regulation 113 confers wide powers on the authorities to summarily discharge an employee from service, if he continues to be absent from duty in an unauthorised manner and refuses to join his duty even after warning. Under the disciplinary rules detailed procedure is required to be followed for removing an employee from service but Regulation 113 provides for summary dis- charge from service. Before this power is exercised, two conditions ~ must be satisfied; Firstly, the employee must be found to be absent from duty without leave or overstaying the period of sanctioned leave, and secondly, he failed to join his duty even after a warning. The c object and purpose of giving warning is to remind the delinquent emp­ loyee that if he continues to be absent from duty he would be liable to action under Regulation 113 and to afford him an opportunity to mak.e amends by joining his duty. If even thereafter he fails to join duty, his. services are liable to be terminated by an order of discharge. It is +-- noteworthy that the validity of Regulation 113 was not challenged before the High Court and the parties proceeded on the assumption that Regulation 113 was valid and applicable to the respondent's service. The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f. March 30, 1974 to May 27, 1974. The Division Bench of the High Court held that no warning as contemplated by service Regulation No. 113 had been E issued to the respondent nor he had been afforded any. Qpportunity of showing cause before the impugned order of discharge was passed and consequently, the order of discharge was null and void being contrary to service Regulation No. 113 itself. On perusal of the material on record we are of the opinion that the view taken by the High Court is not sustainable as there is sufficient material on record which shows F that warning had been issued to the respondent before the order of discharge was issued. In determining the question whether any warning was given to the respondent it is necessary to refer to the sequence of events and the correspondence which ensued between the appellants and the G respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representation to the Additional Chief Engineer on 8.4.1974 after the transfer order. H The Transfer order was not stayed and as the respondent did not join y - ·~ GUJARAT ELECTY. BOARD v. A.S. POS!IANI (SINGII, J.] 365 his duties, he continued to be absent without sanction of any leave. In this sitqation the Superintending Engineer by his letter dated ,•18th April, 1974 directed the respondent to show .cause as to why action should not be taken against him for disobeying the order of transfer and also for unauthorised absence from duty in breach of service Regulation No. 113. The letter is as under: "GUJARAT ELECTRICITY BOARD To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka', Surat-3. 0 & M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 .. · Sub: Transfer from Surat to Ukai. You have been relieved on 30.3.1974 A.N. on account of E your transfer from Surat to Ukai, but you have not repor- ted to Ukai till today and remained on unauthorised absence on relief, which is breach of S.R. No. 112 and 113. Please submit your explanation as to why action should not be taken against you for disobeying order of superior and F breach of S.R. No .. 112 and 113 within 7 days from receipt of this letter. · ·" Sd/- Executive Engineer ( 0 & M) Surat G· Copyf.w.c.s. toS11perintendingEngineer, GEB, Utran." There is no dispute that the respondent received the aforesai<l letter as he sen\ a reply to the Superintending Engineer on April 20, 1974, a copy of which was annexed as Annexure 'J' by the petitioner to his H 366 SUPREME COURT REPORTS 11989] 2 S.C.R. A petition before the High Court. By that letter respondent stated that he was waiting for the decision of his representation made for recon­ sideration of his transfer from Surat to Ukai and therefore, the ques­ tion of his remaining on unauthorised leave was misconceived. Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised. No Government servant or employee of any public undertaking has a right to be absent from duty without sanction of leave, merely on account of pendency of represen- tation against the order of transfer. Since the respondent continued to be absent from duty the Superintending Engineer by a registered post acknowledgment due letter dated April 24, 1974 informed the respon­ dent that his request to postpone his transfer was rejected and he was directed to join his duty at Ukai and on his failure to do so disciplinary action would be taken against him. The Establishment Officer (P) of the Board, also informed the respondent by his letter dated May 6, 1974 that his representation against the order of transfer was not accepted and he was directed to obey the order of transfer. A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court. But even thereafter, the respondent did not join his duties. Ultimately, the Chief .Engineer of the Board took action against the respondent and discharged him from service with effect from 31.3.1974 by his letter dated May 27, 1974. The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent dis­ obeyed the order of transfer and he remained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unautho­ rised absence was in breach of Service Regulation No. I 13 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the 'High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly miscon­ ceived. A warning need not be in any particular form. The object and purpose of the warning as contemplated by the Regulation, is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his service. The substance of the Superintending Engineer's letter dated 18th April, 1974 which was admittedly served on the respondent, contained GUJARAT ELECIY. BOARD v. A.S. POSHANI [SINGH, J.] 367 ~·· " warning to the respondent, which fully met the requirement of Regu- A · · lation No. 113. Before the High Court a controversy was raised as to whether the registered letter dated 24A.1974 addressed by the Superintending --.\ Engineer to the respondent was received by him or not. The registered cover, containing the letter dated 24.4.1974 was returned back by the B • \~ postal authorities with an endorsement that the addressee refused to accept the same. The respondent's case was that no such registered letter was tendered to him by the postman nor he ever refused to accept the same. The Division Bench held that letter dated 24.4.1974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned c ·--+ Single Judge it could not dci so in the letters patent appeal. The J:)ivi- • ;-_, sion Bench further held Jhat since··the'letter dated 24.4.1974 was not served on the respondent, there was. no material to show that any' warning ha_d been issued to the respondent· before.he was discharged from service. We' do not agree with the view taken by the Division Bench: Firstly, even if the letter dated 24.4.1974 was not served on the .D respondent there' is· no dispute that the Superintending Engineer's , " letter dated 18th April, 1974 had been served on him. By that letter warning as contemplated by Regulation No. 113 had been issued to the --y respondent. Therefore even if the letter dated 24.4.1974 was nor- served on the respondent the order.of discharge as contemplated by Regulation 'No. 113 is sustainable in Jaw. But even otherwise, the E _, Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent api;eal. Perusal of the averments made in paragraphs 17, 18, 23 and 25 (2)(ii) of the counter- ~ affidavit filed in reply to the petitioner's writ petition before the learned Single Judge shows that the Board had categorically pleaded F ., that the respondent was informed by letter dated 24.4.1974 that his ... representation to postpone his transfer was rejected and he should obey the order of transfer. It was further pleaded that the respondent .. had refused to accept the registered letter and the same had been returned·back by the postal authorities with an endorsement'that ihe ~'( addressee refused to accept the same. In his rejoinder affidavit the G respondent denied the aforesaid allegations and asserted that the letter was not tendered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart .. from denying the postal endorsement, the respondent placed no mate- rial before the Court in support of his pleading. In this view, we are of the opinion that the Division Bench was totally wrong in holding that H A no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respon­ dent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the samds returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occa­ sion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as. he failed to place material before the, Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the; presumption relating to service of the registered cover. We are, the.refore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently, the service was complete and the view taken by the High Court is incorrect. In view of the above discussion, we therefore hold that the respondent's failure to join his duties at Ukai resulted in unauthorised absence and his failure to join his duties in spite of the repeated reminders and letters issued to him constituted sufficient valid ground for taking action under Regulation No. 113. We further hold that F before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disciplinary action should not be taken against him. The respondent ;,. . acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service in accordance with the Service Regulation No. 113. The learned Single Judge as well as the G Division Bench both erred in law in setting aside the order of dis­ charge. We, accordingly, allow the appeal, set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition. There would be no order as to costs. The respondent has been paid a sum of Rs.1,04, 170 towards H salary under the interim orders of this Court. Now, since the order of ~-· ' • • r - -~· -.-..r·· GUJARAT ELECfY. BOARD v. A.S. POSHANI (SINGH, J.] 369 J. discharge is held to be valid the amount paid to the respondent is liable to be recovered from him, but having regard to the facts and circum­ stances of the case and the hardship which could be caused to the respondent, we direct the appellant not to recover the amount already paid to the respondent. · S.K.A. Appeal allowed. B