Tushar D. Bhatt Vs.
State of Gujarat & Ors. [2009] INSC 311 (12 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 968 OF 2009 (Arising out
of SLP (C) No. 6722 of 2007) Tushar D. Bhatt .. Appellant Versus State of
Gujarat & Another .. Respondents
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 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.
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;
(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 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 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 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.
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