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In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer 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 Ratio |
If he fails to proceed on transfer in compliance to the transfer order,he would expose himself to disciplinary action under the relevant Rules,as has happened in the instant case Ratio |
The respondent lost his service as he refused to comply with the order of his transfer from one place to the other Ratio |
There is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him he was liable to be transferred and posted at any place within the State of Gujarat Ratio |
The respondent had no legal or statutory right to insist for being posted at one particular place Ratio |
In fact,during the tenure of his service in the Board the respondent had been transferred from one place to another place several times Ratio |
In March,1974 he was transferred .from Surat to Ukai Ratio |
The distance between the two places as was stated before us during the hearing of the case is less than 50 kms Ratio |
He was relieved from his duties at Surat on 30th March,1974 FAC |
but he did not join at Ukai till the impugned order of discharge was issued on May 27,1974.The FAC |
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,m spite of warning,to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings... |
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 prescrib... |
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 Ratio |
Under the disciplinary rules detailed procedure is required to be followed for removing an employee from service but Regulation 113 provides for summary discharge from service Ratio |
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 Ratio |
The object and purpose of giving warning is to remind the delinquent employee 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 make amends by joining his duty Ratio |
If even thereafter he fails to join duty,his services are liable to be terminated by an order of discharge Ratio |
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 Ratio |
The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f FAC |
March 30,1974 to May 27,1974 FAC |
The Division Bench of the High Court held that no warning as contemplated by service Regulation No.113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the impugned order of discharge was passed and consequently,the order of discharge was null and void being contrary to... |
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 that warning had been issued to the respondent before the order of discharge was issued Ratio |
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 respondent Ratio |
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 FAC |
Instead he made a representation to the Additional Chief Engineer on 8.4.1974 after the transfer order FAC |
The Transfer order was not stayed and as the respondent did not join his duties,he continued to be absent without sanction of any leave FAC |
In this situation 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 FAC |
No.113.The letter is as under: "GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat FAC |
Dated 18th April,1974 FAC |
To Shri A.S.Pohani Junior Engineer,Ukai 37,Gurunagar Society Near Jakat Naka,Surat-3 FAC |
Sub: Transfer from Surat to Ukai FAC |
You have been relieved on 30.3.1974 A.N.on account of your transfer from Surat to Ukai,but you have not reported 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... |
Sd/-Execut FAC |
ive Engineer (O FAC |
M) Surat Copy f.w.c.s.to FAC |
Superintending Engineer,GEB,Utran FAC |
There is no dispute that the respondent received the aforesaid letter as he sent a reply to the Superintending Engineer on April 20,1974,a copy of which was annexed as Annexure 'J' by the petitioner,to his petition before the High Court Ratio |
By that letter respondent stated that he was waiting for the decision of his representation made for reconsideration of his transfer from Surat to Ukai and therefore,the question of his remaining on unauthorised leave was misconceived Ratio |
Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised Ratio |
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 representation against the order of transfer Ratio |
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 respondent 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... |
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 FAC |
A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court FAC |
But even thereafter,the respondent did not join his duties FAC |
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 FAC |
The sequence of events and the correspondence which ensued between the officers of the Board and the respondent clearly show that the respondent disobeyed the order of transfer and he remained absent from duty in an unauthorised manner without obtaining sanction of leave Ratio |
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 Ratio |
In fact,the Superintending Engineer had by his letter dated 18th April,1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No.113 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 du... |
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 RLC |
This finding is wholly misconceived Ratio |
A warning need not be in any particular form Ratio |
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 Ratio |
The substance of the Superintending Engineer's letter dated 18th April,1974 which was admittedly served on the respondent,contained warning to the respondent,which fully met the requirement of Regulation No.113 Ratio |
Before the High Court a controversy was raised as to whether the registered letter dated 24.4.1974 addressed by the Superintending Engineer to the respondent was received by him or not Ratio |
The registered cover,containing the letter dated 24.4.1974 was returned back by the postal authorities with an endorsement that the addressee refused to accept the same Ratio |
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 Ratio |
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 Single Judge it could not do so in the letters patent appeal RLC |
The Division Bench further held that since the letter dated 24.4.1974 was not served on the respondent,there was no material to show that any warning had been issued to the respondent before he was discharged from service RLC |
We do not agree with the view taken by the Division Bench Ratio |
Firstly,even if the letter dated 24.4.1974 was not served on the respondent there is no dispute that the Superintending Engineer's letter dated 18th April,1974 had been served on him Ratio |
By that letter warning as contemplated by Regulation No.113 had been issued to the respondent Ratio |
Therefore even if the letter dated 24.4.1974 was not served on the respondent the order of discharge as contemplated by Regulation No.113 is sustainable in law Ratio |
But even otherwise,the 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 appeal Ratio |
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 that the respondent was informed by letter dated 24.4.1974 that his representation to postpone his ... |
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 the addressee refused to accept the same Ratio |
In his rejoinder affidavit the 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 Ratio |
Apart from denying the postal endorsement,the respondent placed no material before the Court in support of his pleading Ratio |
In this view,we are of the opinion that the Division Bench was totally wrong in holding that 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 respondent Ratio |
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 Ratio |
There is presumption of service of a letter sent under registered cover,if the same is returned back with a postal endorsement that the addressee refused to accept the same Ratio |
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 occasion for him to re... |
The burden to rebut the presumption lies on the party,challenging the factum of service Ratio |
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 Ratio |
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 Ratio |
We are,therefore,of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same Ratio |
Consequently,the service was complete and the view taken by the High Court is incorrect Ratio |
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 fur... |
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 Ratio |
No.113.The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge Ratio |
We,accordingly,allow the appeal,set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition RPC |
There would be no order as to costs RPC |
The respondent has been paid a sum of Rs.1,04,170 towards salary under the interim orders of this Court RPC |
Now,since the order of 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 circumstances 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... |
Appeal allowed RPC |
This civil appeal by special leave is directed against the Judgment and Decree dated 29th November,1977 rendered by a single Judge of the Gujarat High Court in Second Appeal No.348 of 1973,which arose out of Regular Civil Suit No.921 of 1966 filed in the Court of Joint Civil Judge,Baroda (Civil Court) by the appellant ... |
defendants 1 and 2 for redemption of suit properties which were mortgaged as security for certain monies borrowed by the plaintiff from defendant-l under two deeds of mortgage executed in the year 1961 FAC |
Plaintiff filed the suit for redemption of the said mortgages in the year 1966.Defendant-2,brother of defendantI had been joined in that suit on the allegation that the latter was put in possession of mortgage properties by the former subsequent to the coming into existence of the mortgages FAC |
That suit was resisted by the defendants,each of them having filed separate written statements which in sub-stance did not differ from each other FAC |
The defence in those written statements was that defendant-l and his family members had become tenants of the suit properties in the year 1959-1960 and had continued to be such tenants at the time of mortgage deeds executed in respect of those properties in the year 1961 and thereafter FAC |
It was also claimed therein that they had become owners of the said properties when the plaintiff in the year 1962 sold those properties to defendant-1 by receiving a sum of Rs.4,400/-as consideration for the sale FAC |
Even if the sale of said properties in favour of defendant-l,it was asserted therein,was not proved,they continued to be tenants of the said properties on the date of suit as they were tenants even before the date of coming into existence of the mortgages FAC |
The issue relating to their claim that they were tenants of the said properties -the agricultural lands,as urged therein,had to be referred by the Civil Court to the Mamlatdar under section 85-A of the Bombay Tenancy and Agricultural Lands Act,1948 -"the BT & AL Act" for recording his finding thereon and the suit had t... |
The Civil Court notwithstanding the defence of the defendants taken in their written statements that the suit had to be stayed for obtaining the finding on their claim of tenancy under the BT & AL Act,framed the issues in the suit on the basis of the pleadings of the parties and after trial recorded its findings thereo... |
Such findings were firstly,that the defendants had failed to prove that the suit properties were sold in favour of defendant-l subsequent to the giving of security of those properties in his favour under the mortgage deeds; secondly,that the defendants had failed to prove the past tenancy of the suit properties on its ... |
On the basis of findings so recorded by the Civil FAC |
Court,it also made a preliminary decree in favour of the plaintiff for redemption of the suit properties FAC |
Though the defendants filed an appeal in the Court of the District Judge,Baroda against the said preliminary decree that appeal came to be dismissed on August 17,1972 affirming the judgment and decree of the Civil Court FAC |
However,the defendants questioned the judgments and decrees of the trial court and the appellate court by filing a second appeal against the same in the High Court of Gujarat FAC |
A learned single Judge of the High Court,who heard the second appeal,while upheld the concurrent findings of the courts below that the deeds of mortgage executed by the plaintiff in respect of the suit properties in favour of defendant-l were mortgages by conditional sale and the defendants had failed to prove that the... |
AL Act as it stood before its amendment at the time of filing of the suit and as it stood after its amendment after the filing of the suit RLC |
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