Tushar D. Bhatt v. State of Gujarat , (SC) BS182479
SUPREME COURT OF INDIA

Before:- Dalveer Bhandari and J.M. Panchal, JJ.

Civil Appeal No. 968 of 2009. (Arising out of SLP (C) No. 6722 of 2007). D/d. 12.2.2009.

Tushar D. Bhatt - Appellant

Versus

State of Gujarat & Another - Respondents

For the Appellant :- Mr. Mahender Anand, Sr Adv., Mr Mohit Chaudhary, Ms. Puja Sharma, Mr Manish Jain and Mr Pradeep Chandel, Advocates.

For the Respondents :- Mr. R.P. Bhatt, Sr. Adv., Ms. Uttara, Ms. Pinky Behra, Ms Hemantika Wahi and Mr. Naresh K. Sharma, Advocates.

Constitution of India, Articles 14 and 226 - Transfer - Termination for disobedience of lawful orders of transfer - Judicial review of order of transfer - It is well settled law that scope of judicial review of action taken by disciplinary authority against the delinquent is very limited - Transfer is an incident of service and administrative exigencies - Appellant transferred only twice in the entire tenure of more than 18 years service - Transfer cannot be termed as mala fide - Appellant not justified in defying the transfer order and level allegations against his superiors and remaining unauthorisedly absent from duties - Petitioner given full opportunity in departmental proceedings and also before the Courts - He was holding the post of a food Inspector - In the interest of discipline of any institution or organization, such an approach and attitude of the employees cannot be countenanced - Appeal dismissed.

[Paras 13 to 17]

Cases Referred :-

Gujarat Electricity Board v. Atmaram Sungomal Poshani, AIR 1989 Supreme Court 1433.

Mithilesh Singh v. Union of India, 2003(2) SCT 287 : AIR 2003 Supreme Court 1724.

JUDGMENT

Dalveer Bhandari, J. - 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 :-

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 :

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 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 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 appellant in great detail and dismissed the entire case. The Division Bench has observed :-

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.

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 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 :

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 :-

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 organisation such an approach and attitude of the employees cannot be countenanced.

16. In Gujarat Electricity Board and another v. Atmaram Sungomal Poshani AIR 1989 Supreme Court 1433, this court had an occasion to examine the case of almost similar nature. This court observed as under :

17. In Mithilesh Singh v. Union of India and Others, 2003(2) SCT 287 : AIR 2003 Supreme Court 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.

Appeal dismissed.