Tushar D. Bhatt vs State Of Gujarat & Ors

Tushar D. Bhatt .. Appellant

Versus

State of Gujarat & Another .. Respondents

JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal is directed against the judgment of the High

Court of Gujarat at Ahmedabad delivered in Letters Patent

Appeal No. 1360 of 2004 on dated 24.11.2006 and final 2

judgment and order dated 19.1.2007 in Misc.Civil Application

for Review No.116/2007.

3. Brief facts which are necessary to dispose of this appeal

are recapitulated as under:-

The appellant had joined service of respondent no.1 as

Food Inspector on 1.12.1982. The appellant worked for 14

years as Food Inspector at Ahmedabad as well as

Gandhinagar Circle. Thereafter, for the first time in 1996, he

was transferred to Rajkot. He remained there for three years.

4. On 30.9.1999, the appellant was transferred to Bhuj.

However, he did not join duty at Bhuj and after a period of 20

days, i.e. on 04.10.1999, he sent a fax message of illness of

his mother. Though the appellant was relieved on 05.10.1999

from Rajkot, yet he did not join duty at Bhuj and instead he

entered into correspondence with respondent no.2. The

appellant was given personal hearing in November 1999 by

respondent no. 2. Even after his advice, he did not join duty

at Bhuj.

3

5. The Assistant Commissioner, Bhuj again on 04.01.2000

called upon the appellant to immediately join the duty, but the

appellant not comply with his direction. The appellant on

17.01.2000 filed a reply to the show cause notice and bluntly

refused to join duty at Bhuj. Ultimately, by an order dated

08.03.2000 the appellant was suspended from the service

pending enquiry. It was only thereafter he made a symbolic

report on 27.4.2000 at Bhuj with condition in pursuance of

the order of transfer dated 30.9.1999.

6. The appellant was served with a charge-sheet on

5.5.2000 containing following seven charges:

(i) He unauthorizedly remained absent between the period 11.10.1999 and 27.4.2000;

(ii) He on his own decided the place of discharging his duty without receiving any prior permission of the competent officer instead of reporting at transferred place;

(iii) He exerted mental pressure and also gave threats by writing letter to the Head of the department for transferring him to a place of his choice;

(iv) He acted beyond his official authority by giving notice to his superior officer under the provisions of the Gujarat Civil Services (Discipline and Appeal) Rules;

4 (v) He flouted and disobeyed the orders of the Head of the department as well as the Head of the office;

(vi) Ignoring the office orders issued by the Government, he directly represented to his Head of the department regarding his transfer; and,

(vii) He used intemperate language not befitting a government employee.

7. The appellant was given full opportunity to defend his

case in the inquiry. The Inquiry Officer in his detailed report

found the appellant guilty of all the charges levelled against

him and sent his report to the Disciplinary Authority. The

Disciplinary Authority concurred with the same and the

appellant was served with second show cause notice issued by

respondent no. 3 calling upon him to show cause within 15

days as to why one of the punishments indicated in Rule 6 of

the Gujarat Civil Services (Discipline and Appeal) Rules

should not be imposed. He sent his reply on 12.11.2001

followed by his second reply dated 10.12.2001. In view of the

serious allegations levelled by the appellant against

respondent no.2, he decided to refer the matter to the highest

authority - the State of Gujarat for passing appropriate orders

in the matter and after considering the replies dated 5

12.11.2001 and 10.12.2001 respondent no. 1 by his

impugned order dated 22.5.2002 dismissed the services of the

appellant.

8. The appellant challenged the dismissal order by filing a

writ petition before the learned Single Judge. The learned

Single Judge by a comprehensive judgment dealt with every

aspect of the matter including the relevant cases which have

been decided by this court. The learned Single Judge

observed that the scope of judicial review of action taken by

the disciplinary authority against the delinquent is very

limited. It is not only when such an order of punishment is

found to be so perverse that no reasonable person can pass

such order or the punishment imposed is shockingly

disproportionate to the guilt established or there is violation of

any fundamental rights or the principles of natural justice.

9. The appellant aggrieved by the order of the learned

Single Judge preferred Letters Patent Appeal before the High

Court. The Division Bench analysed the submissions of the 6

appellant in great detail and dismissed the entire case. The

Division Bench has observed:-

"We have undertaken the exercise of going through the entire record of the case and considered the arguments of the learned counsel for the appellant as if we were hearing the writ petition. We have also considered the reasons assigned by the learned Single Judge for dismissing the writ petition with which we fully agree."

10. The Division Bench has also discussed the number of

judgments decided by this court. The Division Bench

observed that the appellant flouted the order of transfer and

deliberately remained absent from the duty without leave for

over six months and he indulged in the practice of brow-

beating the superior officers and using intemperate language

and indulging in this type of tactics leading to gross

indiscipline is not in the interest of the institution. The

Division Bench has reproduced the instances of use of

intemperate language which were reproduced in para 6.3 of

the judgment of the learned Single Judge. We deem it

appropriate to reproduce the same.

"......Instances of use of intemperate language have been described in detail while discussing charge no.7. They are : (a) his transfer to Bhuj was not only illegal but disgusting (b) respondent no.2 runs the administration of Goods and Drugs Control Department as his private concern (c) the 7

Commissioner is encouraging irregularities and corrupt practices in the department and by such corrupt administration he was damaging the health of people (d) he was also creating scandals with the help of Food Inspectors (e) whatever the other officers will have to suffer on account of scandals, respondent no.2 would be responsible for the same

(f) whatever the scandals that have been done by the officers of this department in the past he (the petitioner) would be constrained to bring them to light even at the cost of the discipline (of the service)

(g) respondent no.2 should cancel his order of transfer, which is illegal and he should be immediately posted at Ahmedabad or Gandhinagar

(h) that respondent no.2 is directly involved in corrupt practices and if the order of transfer was not cancelled, he would expose scandals to the public and whatever the consequences it would be sole responsibility of respondent no.2 (i) if the order was not cancelled, he would be compelled to take such steps (j) he would expose them by having a meeting with the Secretary, Health Department and the Chief Minister regarding the corrupt practices, the irregularities done with the help of the Health Minister with a view to harass him if his order of transfer was not cancelled within four days, and (k) kindly render your explanation why steps should not be taken against you (respondent no.2) for the corrupt practices committed by him. It is, therefore, to be seen that for what purpose and what type of intemperate language has been used...

....."

11. The learned Single Judge was clearly of the opinion that

strict view was required to be taken in the matter of discipline

of the institution. According to him, when the disciplinary

authority has taken appropriate view in the facts and 8

circumstances of the case, then it should not be interfered

with.

12. The learned Single Judge observed that no leniency in

the punishment can be shown in the facts of this case. The

learned Single Judge observed as under:

"The facts of this case do not warrant any such conclusion to be drawn by this Court and no interference with the decision of the disciplinary authority is warranted. If the petitioner is allowed to escape with minor penalty as suggested by Mr. Oza, it will certainly form a bad precedent and in a given case, some other unscrupulous Government employee would resort to arm twisting of his superior for extorting a decision in his favour. Such leniency cannot be permitted."

13. The Division Bench of the High Court also concurred

with the observations of the learned Single Judge in para 10 of

the said judgment. The relevant portion of the judgment of

the learned Single Judge reads as under:-

"it is well established proposition of law that scope of judicial review of the action taken by disciplinary authority against the delinquent is very limited. It is only when such order of punishment is found to be so perverse that no reasonable person can pass such order or the punishment imposed is shockingly disproportionate to the guilt established or there is violation of any fundamental rights or the principles of natural justice. The facts of this 9

case do not warrant any such conclusion to be drawn by this court and no interference with the decision of the disciplinary authority is warranted. If the petitioner is allowed to escape with minor penalty as suggested by Mr. Oza, it will certainly form a bad precedent and in a given case, some other unscrupulous Government employee would resort to arm twisting of his superior for extorting a decision in his favour. Such leniency cannot be permitted. On the question of unauthorized absenteeism also Mr. Oza has placed reliance on several other decisions. However, they are on the same line, hence dealing with them would be mere repetition. Further, he has been held guilty not only of that charge, but composite charge of in all seven different nature which have been adequately prescribed in the charge-sheet."

14. The Division Bench was not oblivious of the fact of the

limited jurisdiction which it has in the appeal but in the

interest of justice they gave full length hearing to the appellant

and decided every aspect of the matter.

15. The legal position has been crystallized in number of

judgments that transfer is an incidence of service and

transfers are made according to administrative exigencies. In

the instant case, in the entire tenure of more than 18 years,

the appellant was only transferred twice. The appellant's

transfer order cannot be termed as mala fide. The appellant 10

was not justified in defying the transfer order and to level

allegations against his superiors and remaining

unauthorisedly absent from official duties from 11.10.1999 to

27.4.2000 i.e. more than six months. In the interest of

discipline of any institution or organization such an approach

and attitude of the employees cannot be countenanced.

16. In Gujarat Electricity Board and another v.

Atmaram Sungomal Poshani AIR 1989 SC 1433, this court

had an occasion to examine the case of almost similar nature.

This court observed as under:

"Transfer from one place to another is necessary 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 is open to him to make representation to the 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 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. 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. The respondent lost his service as he refused to comply 11

with the order of his transfer from one place to the other."

17. In Mithilesh Singh v. Union of India and Others, AIR

2003 SC 1724, the settled legal position has been reiterated.

The court held that absence from duty without proper

intimation is indicated to be a grave offence warranting

removal from service.

18. In the instant case, the matter has been thoroughly

examined by the learned Single Judge and the Division Bench

of the High Court and we have also examined the matter in

great detail. On consideration of the totality of the facts and

circumstances of this case, no interference is called for in the

impugned judgment. The appeal being devoid of any merit is

accordingly dismissed leaving the parties to bear their costs.

............................J. (Dalveer Bhandari)

............................J. (J. M. Panchal) New Delhi, February 12, 2009.