REPORTABLE

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

J U D G M E N T

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.

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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;

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(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

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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

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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

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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

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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

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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

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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

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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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