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PETITIONER: GUJARAT ELECTRICITY BOARD & ANR.

       Vs.

RESPONDENT: ATMARAM SUNGOMAL POSHANI

DATE OF JUDGMENT31/03/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1989 AIR 1433            1989 SCR  (2) 357  1989 SCC  (2) 602        JT 1989 (3)    20  1989 SCALE  (1)907

ACT:     CIVIL   SERVICES: Transfer--An  incident  of  service-No employee  has  legal right to be posted  at  any  particular place--Transfer--Necessary in public interest and efficiency of  administration--No employee has right to be absent  from duty without sanction of leave.     PRACTICE AND PROCEDURE: Supreme Court--Transfer of  case from  one Bench to another--Entitlement too-Only when  Bench is biased or there are other reasonable grounds--Not when  a Judge  expresses opinion on merits of case on conclusion  of hearing.     Indian  Evidence Act, 1872:  Section  114(e)--Registered cover  sent  to  addressee  presumption  of  service----When arises.

HEADNOTE:     The  respondent  joined service as  technical  assistant with  the  Gujarat  State Electricity Board  and  was  later promoted to the post of Deputy Engineer. While he was posted at  Surat he was transferred to Ukai Sub-division under  the order of the Superintending Engineer dated 29th March,  1974 and he was relieved from his duties at Surat on 30th  March, 1974. He made representation to the Addl. Chief Engineer for cancelling his transfer order which was rejected and he  was directed to join at Ukai but he did not do so and  continued to  be absent without sanction of any leave and  instead  he filed  a  civil suit challenging validity of  the  order  of transfer.     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 respondent failed to join his duty even after a warning. Thereafter the Superintending Engineer sent a letter dated 24th April, 1974 by  registered cover which contained a warning but the  same was returned back by the postal authorities with an endorse- ment that the addressee refused to accept the same. Meanwhile, the Chief Engineer by his order dated 27th May, 358 1974  discharged the respondent from service  in  accordance

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with  service  Regulation  No. 113 as he  had  continued  to remain absent from duty since 30th March, 1974.     The  respondent  filed a writ petition before  the  High Court challenging the validity of the order of his discharge from  service.  A  learned Single Judge of  the  High  Court quashed  the order of discharge but looking to the  attitude of  the respondent and continued conduct of disobedience  of the orders of his superior he was not granted  consequential reliefs.  The  respondent  as well  as  the  appellant-Board preferred Letter Patent Appeals.     A Division Bench of the High Court dismissed the  appeal of  the appellant-Board and allowed the respondent’s  appeal upholding  the  order of discharge as illegal and  void  and directed  the  appellants to reinstate  the  respondent,  to treat  him in service, and to grant him benefits  of  incre- ments, seniority, and promotion. The Division Bench,  howev- er, did not grant full back-wages but directed the Board  to pay  the respondent 50 per cent of back-wages.  Against  the order of the Division Bench of the High Court the appellants preferred an appeal to this Court by special leave.     The  appeal came up for hearing and advocates  for  both the  parties  were  fully heard. Being  satisfied  that  the Single  Judge  as well as Division Bench of the  High  Court committed  error  in allowing the writ petition of  the  re- spondent,  this Court suggested to the counsel for  the  re- spondent 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. The bearing was adjourned to enable  counsel to  obtain  instructions from the respondent.  On  the  next hearing another counsel appeared on behalf of the respondent to  argue on merits. The Court refused to hear  fresh  argu- ments as the hearing had already been completed.  Thereupon, the  respondent appeared in person to make  his  submissions which  the Court refused as oral. hearing has  already  been completed. However, in the interest of justice the  respond- ent  was permitted to file written submissions.  No  written submissions  were filed, instead the respondent  adopted  an unusual course by sending an application by post  expressing his  no confidence in the Bench of this Court with a  prayer to transfer the case to some other Bench. The Court  ignored the  request of the respondent as it was  unusual,  uncalled for, and unjustified. 359 Allowing the appeal by special leave, this Court,     HELD:  No  party is entitled to get a  case  transferred from  one Bench to the other, unless the Bench is biased  or there are some reasonable grounds for the same. but no right to  get a case transferred to any other Bench,  can  legiti- mately be claimed merely because the Judges express  opinion on  the  merits of the case on the  conclusion  of  hearing. [362E]     Transfer of a Government servant appointed to a particu- lar  cadre of transferable posts from one place to other  is an incident of service. No Government servant or employee of public  undertaking has legal right for being posted at  any particular place. Transfer from one place to other is gener- ally  a condition of service and the employee has no  choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public  Administra- tion. [362H; 363A]     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 representa-

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tion  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. [363B]     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. [363C]     No  Government servant or employee of any public  under- taking  has a right to be absent from duty without  sanction of  leave, merely on account of pendency  of  representation against the order of transfer. [366B]     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. 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 refuse the same. The burden to rebut the presumption lies on 360 the party, challenging the factum of service. [368B-C]     In  the instant case, the respondent’s failure  to  join his duties at Ukai resulted in unauthorised absence and  his failure  to join his duties in spite of  repeated  reminders and  letters  issued  to him  constituted  sufficient  valid ground  for  taking action under Regulation No  113.  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  dis- charge  from service in accordance with the Service  Regula- tion No. 113. The Single Judge as well as the Division Bench both  therefore erred. in law in setting aside the order  of discharge. [368E-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3561  of 1986.     From  the  Judgment  and Order dated  28.2.1986  of  the Gujarat High Court in SCA No. 1176 of 1974. B  .K. Mehta, Shishir Sharma and P.H. Parekh for the  Appel- lants. Respondent-in-person. (N.P.) The Judgment of the Court was delivered by     SINGH,  J. This 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 service and directing his reinstatement in service.     The  respondent  joined service as  technical  assistant with  the Gujarat State Electricity Board  (hereinafter  re- fened  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 subdivision  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

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Ukai.  He made representation to the Additional Chief  Engi- neer  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 to join at Ukai. His representation was rejected and he was directed to 361 join  at Ukai but he did not do so instead he filed a  civil suit  at Baroda challenging validity of the order of  trans- fer.  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 the order of  his discharge from service by means of a  writ  petition under Article 226 of the Constitution before the High  Court of Gujarat. A learned Single Judge of the High Court quashed the  order of termination on the findings that the order  of discharge was issued m violation of the basic principles  of natural  justice as no opportunity was afforded to  the  re- spondent before discharging him from services under  Regula- tion No. 113. The learned Single Judge granted a declaration in  respondent’s favour holding the order void  and  illegal but having regard to recalcitrant attitude of the  appellant and  his continued conduct 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 preferred 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  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 increments, 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  Janu- ary, 1988 and on that day Sh. B.K. Mehta, Advocate appearing for  the appellants and Sh. Vimal Dave, Advocate,  appearing for  the respondent were fully heard. After hearing  learned counsel  for the parties we were satisfied that the  learned Single Judge as well as the Division Bench both had  commit- ted 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 respond- ent  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 362 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  respondent himself appeared in person and sought permission to make his

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submissions personally. We refused to accede to his  request as  oral heating had already been completed and  the  matter had  been adjourned 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  adjournments  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 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  coun- sel  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  re- spondent’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  the written submissions we proceed to  decide  the case on merits.     Transfer of a Government servant appointed to a particu- lar cadre of transferable posts from one place to the  other is an incident of service. No Government servant or employee of  Public Undertaking has legal tight for being  posted  at any particular place. Transfer from 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 necessary in public interest and efficien- cy 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  repre- sentation, 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  serv- ice  as he refused to comply with the order of his  transfer from one place to the other.     There  is no dispute that the respondent was  holding  a transferable  post and under the conditions of  service  ap- plicable  to him he was liable to be transferred and  posted

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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 transferred . 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,  m  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 364 complying with the procedure prescribed for taking discipli- nary  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  serv- ice  but Regulation 113 provides for summary discharge  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 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. 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 issued to the respondent nor he  had  been afforded  any  opportunity of showing cause before  the  im- pugned  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 materi- al  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.     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

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between the appellants and the 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  representa- tion to the Additional Chief Engineer on 8.4.1974 after  the transfer order. The Transfer order was not stayed and as the respondent did not join 365 his  duties, he continued to be absent without  sanction  of any leave. 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  unautho- rised absence from duty in breach of service Regulation  No. 113. The letter is as under:               "GUJARAT ELECTRICITY BOARD                                            O  &  M  DIVISION               Nana Varchha Road               Surat.               Dated 18th April, 1974               To               Shri A.S. Pohani               Junior Engineer, Ukai               37, Gurunagar Society               Near Jakat Naka, Surat-3.               Sub: Transfer from Surat to Ukai.               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  re-               lief, 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  breach  of               S.R.  No. 112 and 113 within 7 days  from  re-               ceipt of this letter.                                                         Sd/-Execut ive               Engineer (O & M)               Surat               Copy f.w.c.s. to Superintending Engineer, GEB,               Utran." There is no dispute that the respondent received the  afore- said  letter as he sent a reply to the Superintending  Engi- neer  on  April  20, 1974, a copy of which  was  annexed  as Annexure ’J’ by the petitioner, to his 366 petition  before the High Court. By that  letter  respondent stated that he was waiting for the decision of his represen- tation  made for reconsideration of his transfer from  Surat to  Ukai  and therefore, the question 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 representation 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 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  would be taken  against  him.  The

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Establishment  Officer (P) of the Board, also  informed  the respondent  by his letter dated May 6, 1974 that his  repre- sentation 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 respond- ent  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 disobeyed the order of transfer and  he  re- mained  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 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 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 misconceived. A warning need not  be in any particular form. The object and purpose of the  warn- ing  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  serv- ice.  The substance of the Superintending Engineer’s  letter dated  18th April, 1974 which was admittedly served  on  the respondent, contained 367 warning  to the respondent, which fully met the  requirement of Regulation No. 113.     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. 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.  The  respondent’s case was that  no  such  registered letter  was tendered to him by the postman nor he  ever  re- fused  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 Single  Judge  it could  not do so in the letters patent appeal. 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. 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 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 respondent. 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. But  even otherwise, the Division Bench committed  error  in holding that the Board had raised the question of service of

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the  letter  dated 24.4.1974 for the first time  before  the Division Bench in the letters patent appeal. 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 transfer was rejected and he should obey the order of transfer. It was further pleaded that the  respond- ent 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. In his rejoinder affidavit the respondent denied the  afore- said  allegations and asserted that the letter was not  ten- dered  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 material before the Court in support of his plead- ing.  In this view, we are of the opinion that the  Division Bench was totally wrong in holding that 368 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. 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 same is 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 occasion 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  dis- charge this burden as he failed to place material before the Court  to show that the endorsement made by the  postal  au- thorities was wrong and incorrect. Mere denial made by  ,the respondent  in the circumstances of the case was not  suffi- cient  to rebut the presumption relating to service  of  the registered cover. 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. 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 before issuing  the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci- plinary action should not be taken against him. The respond- ent  acted in an irresponsible manner in not complying  with the order of transfer which led to his discharge from  serv- ice  in accordance with the Service Regulation No. 113.  The learned  Single  Judge as well as the  Division  Bench  both erred  in law in setting aside the order of  discharge.  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

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towards salary under the interim orders of this Court.  Now, since the order of 369 discharge  is  held to be valid the amount paid to  the  re- spondent  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. S.K.A.                                          Appeal   al- lowed. 370