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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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
However,in the interest of justice we permitted the respondent to file written submissions.if any,in support of his case | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Since this was unusual,uncalled for and unjustified request we ignored the same and reserved the order | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We are constrained to note that instead of utilizing the opportunity granted to him for filing written submissions the respondent has misused adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Vimal Dave,learned counsel appearing for the respondent to obtain instructions as aforesaid | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The opportunity granted to the respondent has,however,been misused by raising mischievous and frivolous objections instead of filing written submissions | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent'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 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Transfer from one place to other is generally a condition of service and the employee has no choice in the matter | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Transfer from one place to other is necessary in public interest and efficiency in the Public administration | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If the order of transfer is not stayed,modified or cancelled the concerned public servant must carry out the order of transfer | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent lost his service as he refused to comply with the order of his transfer from one place to the other | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There is no dispute that the respondent was holding a transferable post and under the conditions of service applicable to him he was liable to be transferred and posted at any place within the State of Gujarat | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent had no legal or statutory right to insist for being posted at one particular place | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In fact,during the tenure of his service in the Board the respondent had been transferred from one place to another place several times | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In March,1974 he was transferred .from Surat to Ukai | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The distance between the two places as was stated before us during the hearing of the case is less than 50 kms | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
He was relieved from his duties at Surat on 30th March,1974 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
but he did not join at Ukai till the impugned order of discharge was issued on May 27,1974.The | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 complying with the procedure prescribed for taking disciplinary action,under the Gujarat Electricity Board,Conduct,Discipline and Appeal Procedure | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Under the disciplinary rules detailed procedure is required to be followed for removing an employee from service but Regulation 113 provides for summary discharge from service | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If even thereafter he fails to join duty,his services are liable to be terminated by an order of discharge | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Chief Engineer discharged the respondent from service as he had continued to remain absent from duty w.e.f | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
March 30,1974 to May 27,1974 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 impugned order of discharge was passed and consequently,the order of discharge was null and void being contrary to service Regulation No.113 itself | Ruling by Lower Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On perusal of the material 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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 between the appellants and the respondent | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Instead he made a representation to the Additional Chief Engineer on 8.4.1974 after the transfer order | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Transfer order was not stayed and as the respondent did not join his duties,he continued to be absent without sanction of any leave | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 unauthorised absence from duty in breach of service Regulation | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
No.113.The letter is as under: "GUJARAT ELECTRICITY BOARD O & M DIVISION Nana Varchha Road Surat | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Dated 18th April,1974 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
To Shri A.S.Pohani Junior Engineer,Ukai 37,Gurunagar Society Near Jakat Naka,Surat-3 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sub: Transfer from Surat to Ukai | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 relief,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 receipt of this letter | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sd/-Execut | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
ive Engineer (O | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
M) Surat Copy f.w.c.s.to | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Superintending Engineer,GEB,Utran | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There is no dispute that the respondent received the aforesaid letter as he sent a reply to the Superintending Engineer on April 20,1974,a copy of which was annexed as Annexure 'J' by the petitioner,to his petition before the High Court | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
By that letter respondent stated that he was waiting for the decision of his representation made for reconsideration of his transfer from Surat to Ukai and therefore,the question of his remaining on unauthorised leave was misconceived | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Since the respondent had not obtained any sanctioned leave for his absence his absence from duty was unauthorised | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Establishment Officer (P) of the Board,also informed the respondent by his letter dated May 6,1974 that his representation against the order of transfer was not accepted and he was directed to obey the order of transfer | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A copy of the letter filed by the petitioner himself as Annexure 'K' to the writ petition in the High Court | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
But even thereafter,the respondent did not join his duties | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ultimately,the Chief Engineer of the Board took action against the respondent and discharged him from service with effect from 31.3.1974 by his letter dated May 27,1974 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 remained absent from duty in an unauthorised manner without obtaining sanction of leave | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ruling by Lower Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This finding is wholly misconceived | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A warning need not be in any particular form | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The object and purpose of the warning 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 service | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The substance of the Superintending Engineer's letter dated 18th April,1974 which was admittedly served on the respondent,contained warning to the respondent,which fully met the requirement of Regulation No.113 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent's case was that no such registered letter was tendered to him by the postman nor he ever refused to accept the same | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ruling by Lower Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ruling by Lower Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We do not agree with the view taken by the Division Bench | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
By that letter warning as contemplated by Regulation No.113 had been issued to the respondent | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
But even otherwise,the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 24.4.1974 for the first time before the Division Bench in the letters patent appeal | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was further pleaded that the respondent 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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In his rejoinder affidavit the respondent denied the aforesaid allegations and asserted that the letter was not tendered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Apart from denying the postal endorsement,the respondent placed no material before the Court in support of his pleading | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In this view,we are of the opinion that the Division Bench was totally wrong in holding that 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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The burden to rebut the presumption lies on the party,challenging the factum of service | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Mere denial made by ,the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Consequently,the service was complete and the view taken by the High Court is incorrect | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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 disciplinary action should not be taken against him | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from service in accordance with the Service Regulation | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
No.113.The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We,accordingly,allow the appeal,set aside the order of the Single Judge as well as Division Bench and dismiss the respondent's petition | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There would be no order as to costs | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent has been paid a sum of Rs.1,04,170 towards salary under the interim orders of this Court | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Now,since the order of discharge is held to be valid the amount paid to the respondent 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 | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Appeal allowed | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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