Holding

A government servant has no right to a specific posting; failure to comply with a valid transfer order and unauthorised absence despite a proper warning justifies summary discharge under Regulation 113, and the High Court’s setting aside of the discharge was erroneous.

Summary

The respondent, a Deputy Engineer of Gujarat Electricity Board, was transferred from Surat to Ukai and refused to join, citing his ailing mother. He filed a representation to cancel the transfer, which was rejected, and subsequently remained absent without sanctioned leave. The Board issued warning letters, including a registered letter, and discharged him under Service Regulation No. 113 for unauthorised absence despite warning. The respondent challenged the discharge via a writ petition; the High Court set aside the discharge, ordering reinstatement and partial back wages. The Supreme Court held that a government servant has no legal right to a specific posting, that the transfer was a valid incident of service, and that the Board’s warning satisfied the requirements of Regulation 113, making the discharge lawful. Consequently, the Court allowed the Board’s appeal, set aside the High Court orders, and dismissed the respondent’s petition.

Issues considered

Whether a government servant has a legal right to be posted at a particular place.
Whether the discharge under Service Regulation No. 113 was valid despite the alleged lack of a proper warning.
Whether the High Court erred in quashing the discharge order.
Whether the presumption of service of a registered letter under the Indian Evidence Act can be rebutted.
Whether a party can seek transfer of a case from one bench to another.

Legislation cited

Indian Evidence Act, 1872s. 114(e)

Subjects

transfer of servicegovernment servantdisciplinary actionsummary dischargeservice regulationregistered letterpresumption of servicebench transfernatural justice

Judgment

GUJARAT ELEcrRICiTY BOARD & ANR.
A
v.
ATMARAM SUNGOMAL POSHANI

MARCH 31, 1989

IE.S. VENKATAllAMIAH ANb K.N. SINGH, JJ.l B

CIVIL SEifVICES: Transfer-An incident of service-No
employee /las 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 C
case from one Bench to another-Entitlement torr-Only when Bench is
biased or there are other reasoiidb/e grounds-Not when a Judge expre-
sses opinion oit merits of case on conclusion of hearing.

'Indian Evidence Act, 1872: Section JJ4(e)-Registered cover sent D
to addressee presumption of S~Yl•ice-When arises.

The respondent jolilt'il service as technicai assistant with the
~ Guj11rat State Elettrkity Board attd was later promoted to the post of
Deputy Engineer, While lie IVils posted at Surat he was transferred to
Ukai Sllb,divlsion under tlle order of the Superintending Engineer s
dated 29th March, 1974 alid lie was relieved from his duties at Surat on
30th Match, 1974. he made h!preselltation to the Addi. Chief Engineer
for cancelling his transfer order Which was rejected and he was directed
to join at Ukai but be did ilot do so and continued to be absent without
~ sanction of any leave and instead be tiled a civil suit challenging validity
of the order ortransfer. F

4 the Supetlllteililing Engineer by his letter dated 18th April, 1974
directed Ille respondent to show cause as to why action should not be
take11 agaillsl liim for disobeyihg tlie order of transfer and also for
unauthorised absence from duty iii breach of service Regulation No.
113. The respondent failed to join bis duly even after a warning. There- G
after the Superinteading Engineer sent a letter dated 24th April, 1974
liy registered covet which contained a warning but the same was re-
turned back lly the postal authorities with an endorsement that the
addtesse-e refused to accept tlle same.

Meanwhlie, the Chief Engineer by his order dated 27th May, H
357
358 SUPREME COURT REPORTS [1989) 2 S.C.R.

A 1974 discharged the respondent from service in accordance with service
J-
Regulation No. 113 as he had continued to remain absent from duty
since 30th March, 1974.

The respondent tiled a writ petition before the High Court chal-
lenging the validity of the order of his discharge from service. A learned
B
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 conse-
quential reliefs. The respondent as well as the appellant-Board prefer-
red Letter Patent Appeals.

C ' Bench of the High Court dismissed the appeal of the
A Division
appellant-Board and allowed the respondent's appeal upholding the
orde.. 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 increments, seniority, and promotion. The Division Bench,
D however, did not grant full back-wages but directed the Board to pay
the respondent 50 per cent of back-wages. Against the order ·bf 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 Y
E 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 respondent, this Court suggested to the counsel for the
respondent 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
F the High Court and of this Court. The hearing 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 arguments as the hearing had •
already been completed. Thereupon, the respondent appeared in
person to make his• submissions which the Court refused as oral hearing
G has already been completed. However, in the interest of justice the
respondent was permitted to file written submissions. No written sub- ".Y--
missions were tiled, 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 un-
H usual, uncalled for, and unjustified .
GUJARAT ELECfY. BOARD v. A.S. POSHANI 359
~
Allowing the appeal by special leave, this Court, .-i
A
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 reason-
able grounds for the same, but no right to get a case transferred to
~:
any other Bench, can legitimately be claimed merely because. the
,.,
I
-~ Judges express opinion on the merits of the case on the conclusion of B
hearing. [362E]

Transfer of a Government servant appointed to a particular cadre
of transferable posts from one place to other is an incident of service.
No Government servant or empIOyee of public undertaking has legal
right for being posted at any particular place. Transfer. from one place
-~ to other is generally a condition of service and the employee has no
c
choice in the matter. Transfer from one place to other is necessary in
public interest and efficiency in the Public Administration. [362H; 363AI

Whenever, a public servant is transferred he must comply with
the order but if there be any genuine difficulty in proceeding on transfer D
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. [3638]

-
If he fails to proceed on transfer in compliance to the transfer E
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 J
~
No Government servant or employee of any public undertaking F
,.. has a right to be absent from duty without sanction of leave, merely
on account of pendency of representation against the order of trans-
fer. [3668]

., There is presumption of service of a letter sent under registered
•.·r"'f cover, if the same is returned back with a postal endorsement that the
G
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 .H
360 SUPREME COURT REPORTS [1989] 2 S.C.R.

A the party, challenging the factum of service. [3688-C]

f In the instant case, the respondent's failure to join his duties at
llkai resulted in unauthorised absence and his failure to join his duties
., In spite of repeated reminders and letters issued to him constituted
Sufticlent valid ground for taking action under Regulation No 113.
13 Before issuing the order of discharge the respondent was not only ;--
warned but he was also afforded an opportunity to explain as to why if
disciplinary action should not be taken against him. The respondent /
acted in an irresponsible manner in not complying with the order of
ltnnsfer which led to his discharge from service in accordance with th"
Service Regulation No. 113. The Single Judge as well as the Division
Bench both therefore erred in law in setting aside the order of
C discharge; [368E-G J 4--
CiVIL APPELLATE JURISDICTION: Civil Appeal No. 3561
of 1986.

[) From the Judgment and Order dated 28.2.1986 of the Gujarat
. 1-Iigh Court in SCA No. 1176 of1974.

B.K. Mehta, Shishir Sharma and P.H. Parekh for the Appellants.
y
Respondent-in-person. (N .P.)
E
The Judgment of the Court was delivered by

SINGH, J. Th's 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
F service and directing his reinstatement in service.

The respondent joined service as technical assistant with the
Gujarat State Electricity Board (hereinafter referred 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 sub-
G division 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 Ukai. He
made representation to the Additional Chief Engineer 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
H to join at Ukai. His representation was rejected and he was directed to
GUJARAT ELECTY. BOARD v. A.S. POSHANJ [SINGH, J.] 361
____..
join at Ukai but he did not do so instead he filed a civil suit at Baroda A
challenging validity of the order of transfer. 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
J the order of his discharge from service by means of a writ petition
~ under Artide 226 of the Constitution before the High Court of B
· ~ Gujarat. A learned Single Judge of the High Court quashed the order
, of termination on the findings that the order of discharge was issued in
violation of the basic principles of natural justice as no opportunity was
afforded to the respondent before discharging him from services under
Regulation No. 113. The learned Single Judge granted a declaration in
respondent's favour holding the order void and illegal but having re-
-~+ gard to recalcitrant attitude of the appellant and his continued conduct C
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 pre- D
ferred 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
--y 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 incre- E
ments, 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.
F
This appeal came up for hearing before us on 28th January, 1988
and on that day Sh. B.K. Mehta, Advocate appearing for the appel-
lants and Sh. Vimal Dave, Advocate, appearing for the respondent
were fully heard. After hearing learned counsel for the parties we were
satisfied that the le'arned Single Judge as well as the Division Bench
both had committed error in allowing the writ petition and granting Ci
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 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 as during the pendency of the appeal, the appellants H
362 SUPREME COURT REPORTS [19891 2 S.C.R.

were directed by means of interim order of this Court to continue
A
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 .
B counsel as we had already completed hearing. Thereupon, the respon- ~
dent himself appeared in person and sought permission to make his · ~ '
submissions personally. We refused to accede to his request as oral •
hearing had already been completed and the matter had been adjour··
ned 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
·;·;·
c 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
I) are constrained to note that instead of utilising the opportunity
granted to him for filing written submissions the respondent has mis-
used adjoun!ments 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 Y
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
F sympathetic view we requested Sh. Vimal Dave, learned counsel
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 respondent's prayer is accordingly rejected and since
oral hearing has already been completed, and in spite of several
G adjournments respondent failed to appear before the Court or to file y --,
the written submissions we proceed to decide the case on merits.

Transfer of a Government servant appointed to a particular
cadre of transferable posts from one place to the other is an incident of
service. No Government servant or employee of Public Undertaking
H has legal right for being posted at any particular place. Transfer from
.,

GUJARAT ELECTY. BOARD v. A:S. POSHANI [SINGH, J.] 363

one place to other is generally a condition of service and the employee
A
has no choice in the matter. Transfer from one place to other is neces-
sary 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
I is open to him to make representation tothe competent authority for
·~ stay, modification or cancellation of the transfer order. If the order of B
·~ 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 fransfer 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
c
··> · iindei the relevant Rules, as has happened in the instant case. The
respondent Jost his service 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 transfer- D
able post an'd under the"conditions oi'service applicable to him he was
liable to be transferred and posted 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 transfer- E
red 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 F
runs as under:

"113. The continued absence from duty or overstay, in
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 G
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
0
sanctioned leave and in spite of warning, he fails to return to duty, he
renders himself liable to be discharged summarily from service without H
364 SUPREME COURT REPORTS [1989] 2 S.C.R.

complying with the procedure prescribed for taking disciplinary
A
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
B rules detailed procedure is required to be followed for removing an
employee from service but Regulation 113 provides for summary dis-
charge 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 emp-
c loyee 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 mak.e
+--
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
D 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 y
warning as contemplated by service Regulation No. 113 had been

-
E issued to the respondent nor he had been afforded any. Qpportunity 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. 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
F 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 between the appellants and the
G 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 representation to
the Additional Chief Engineer on 8.4.1974 after the transfer order.
H The Transfer order was not stayed and as the respondent did not join
GUJARAT ELECTY. BOARD v. A.S. POS!IANI (SINGII, J.] 365

his duties, he continued to be absent without sanction of any leave. In
A
this sitqation 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 letter is as under:
B
"GUJARAT ELECTRICITY BOARD

0 & M DIVISION
Nana Varchha Road
Surat.
•

·~
Dated 18th April, 1974

To ..·
Shri A.S. Pohani
Junior Engineer, Ukai D
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 E
your transfer from Surat to Ukai, but you have not repor-
ted 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 F
breach of S.R. No .. 112 and 113 within 7 days from receipt
of this letter. ·

·" Sd/-
Executive Engineer (0 & M)
Surat G·

Copyf.w.c.s. toS11perintendingEngineer, GEB, Utran."

There is no dispute that the respondent received the aforesai<l letter as
he sen\ a reply to the Superintending Engineer on April 20, 1974, a
copy of which was annexed as Annexure 'J' by the petitioner to his H
366 SUPREME COURT REPORTS 11989] 2 S.C.R.

A petition before the High Court. By that letter respondent stated that
he was waiting for the decision of his representation made for recon-
sideration of his transfer from Surat to Ukai and therefore, the ques-
tion 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
B employee of any public undertaking has a right to be absent from duty
without sanction of leave, merely on account of pendency of represen-
tation 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 respon-
dent 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
c action would be taken against him. 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. A copy of
the letter filed by the petitioner himself as Annexure 'K' to the writ
D 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 respondent 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 dis-
E obeyed the order of transfer and he remained 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
F 18th April, 1974 clearly reminded the respondent that his unautho-
rised absence was in breach of Service Regulation No. I 13 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
G No. 113 was not in accordance with law. This finding is wholly miscon-
ceived. A warning need not be in any particular form. 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. The
substance of the Superintending Engineer's letter dated 18th April,
H 1974 which was admittedly served on the respondent, contained
GUJARAT ELECIY. BOARD v. A.S. POSHANI [SINGH, J.] 367
~·· "
warning to the respondent, which fully met the requirement of Regu-
A
· · lation No. 113.

Before the High Court a controversy was raised as to whether the
registered letter dated 24A.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 B •
\~ 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 refused 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
c
·--+
Single Judge it could not dci so in the letters patent appeal. The J:)ivi-
sion Bench further held Jhat since··the'letter dated 24.4.1974 was not
•;-_,

served on the respondent, there was. no material to show that any'
warning ha_d 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 .D ,
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
--y respondent. Therefore even if the letter dated 24.4.1974 was nor-
served on the respondent the order.of discharge as contemplated by
Regulation 'No. 113 is sustainable in Jaw. But even otherwise, the E
_, 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 api;eal. 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 F

. ...
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 respondent
had refused to accept the registered letter and the same had been
returned·back by the postal authorities with an endorsement'that ihe
~'( addressee refused to accept the same. In his rejoinder affidavit the G
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. Apart ..
from denying the postal endorsement, the respondent placed no mate-
rial before the Court in support of his pleading. In this view, we are of
the opinion that the Division Bench was totally wrong in holding that H
368 SUPREME COURT REPORTS [1989] 2 S.C.R.

A 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 respon-
dent. 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.

B There is presumption of service of a letter sent under registered
cover, if the samds 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 occa-
c sion 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 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. Mere denial made by the
D respondent in the circumstances of the case was not sufficient to rebut
the; presumption relating to service of the registered cover. We are,
the.refore, 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.
E
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
F 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 discharge from service in accordance with the
Service Regulation No. 113. The learned Single Judge as well as the
G Division Bench both erred in law in setting aside the order of dis-
charge. 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 towards
H salary under the interim orders of this Court. Now, since the order of
GUJARAT ELECfY. BOARD v. A.S. POSHANI (SINGH, J.] 369 J.
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discharge is held to be valid the amount paid to the respondent is liable
A
to be recovered from him, but having regard to the facts and circum-
stances 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 allowed. B

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