Supreme Court of India
TUSHAR D. BHATTversusSTATE OF GUJARAT & ORS.
- Citation
- 2009 INSC 163
- Decided
- 12 February 2009
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
The dismissal of the appellant was justified; the transfer order was not mala fide and the disciplinary authority's decision was not perverse or disproportionate.
Summary
The appellant, a Food Inspector with over 18 years of service, was transferred to Bhuj in 1999 but refused to report, remained absent for more than six months, threatened his superiors, used intemperate language and flouted orders. A disciplinary inquiry found him guilty of seven charges and recommended dismissal under Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules. The High Court dismissed his writ petition and letters patent appeal, and the Supreme Court examined whether the dismissal was justified, whether the transfer order was mala fide, and the scope of judicial review of disciplinary actions. Relying on precedents that transfers are an incidence of service and that unauthorized absenteeism warrants removal, the Court held that the dismissal was proper and the transfer order was not mala fide. Consequently, the appeal was dismissed with costs.
Issues considered
- Whether the dismissal of the appellant for unauthorized absence, defiance of transfer order, and intemperate language is justified under the Gujarat Civil Services (Discipline and Appeal) Rules.
- Whether the transfer order to Bhuj was mala fide and therefore could justify the appellant's refusal to comply.
- What is the scope of judicial review of disciplinary actions taken by a disciplinary authority.
- Whether the appellant's conduct, including threats and use of intemperate language, constitutes a ground for dismissal.
Subjects
service lawdismissaltransferunauthorized absenceintemperate languagedisciplinary actionjudicial reviewGujarat Civil Services (Discipline and Appeal) Rules
Judgment
(2009] 3 S.C.R. 229
~-- A
TUSHAR D. BHATT
V.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 968 of 2009)
FEBRUARY 12, 2009
B
[DALVEER BHANDARI AND J.M. PANCHAL, JJ.]
t
Service Law - Dismissal - On the charge that pursuant
to transfer, delinquent flouting the orders of his superiors,
remaining absent from duty unauthorisedly and using c
intemperate language - Held: Dismissal justified - On facts,
transfer order cannot be termed as ma/a fide.
Appellant was dismissed from services finding him
~ guilty of the charges of unauthorized absence from duty, D
threatening the head of Department for transferring him
and flouting his orders, acting beyond official authority
and using intemperate language etc. His Writ Petition
challenging dismissal order, was dismissed by Single
Judge of High Court. Writ Appeal, thereagainst was
E
dismissed by Division Bench of High Court. Hence the
present appeal.
" Dismissing the appeal, the Court.
HELD: 1.1 Transfer is an incidence of service and F
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
ma/a fide. The appellant was not justified in defying the G
~
transfer order and to level allegations against his
superiors and remaining unauthorisedly absent from
official duties for more than six months. In the interest of
229 H
230 SUPREME COURT REPORTS [2009) 3 S.C.R.
A discipline of any institution or organization such an
approach and attitude of the employees cannot be
countenanced. [Para 15) [236-D]
Gujarat Electricity Board and Anr. v. Atmaram Sungomal
Poshani AIR 1989 SC 1433 and Mithi/esh Singh v. Union of
8
.
India and Ors., AIR 2003 SC 1724, relied on .
1.2. In the instant case, the matter has been
thoroughly examined by the Single Judge and the
Division Bench of the High Court and this Court has also
C 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.
[Para 18] [237 -E]
D Case Law Reference :
AIR 1989 SC 1433 Relied on Para 16
AIR 2003 SC 1724 Relied on Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 968
E of 2009.
From the Judgment & Order dated 24.11.2006 of the High
Court of Gujarat at Ahmedabad in Letters Patent Appeal No.
1360/2004.
F
Mahender Anand, Mohit Chaudhary, Puja Sharma, Manish
Jain and Pradeep Chandel for the Appellants.
R.P. Bhatt, Uttara, Pinky Behera, Hemanitka Wahi and
Naresh K. Sharma for the Respondent.
G
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Leave granted.
2. This appeal is directed against the judgment of the High
H Court of Gujarat at Ahmedabad delivered in Letters Patent
TUSHAR D. BHATT v. STATE OF GUJARAT & ORS. 231
[DALVEER BHANDARI, J.]
".-
Appeal No. 1360 of 2004 on dated 24.11.2006 and final A
judgment and order dated 19.1.2007 in Misc. Civil Application
for Review No.116/2007.
3. Brief facts which are necessary to dispose
I
of this
appeal are recapitulated as under:- 8
The appellant had joined service of respondent no.1 as
·'f
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. c
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 D
~
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.
E
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 F
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.
G
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;
H
232 SUPREME COURT REPORTS (2009] 3 S.C.R.
A (ii) He on his own decided the place of discharging his -r
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
B
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
c of the Gujarat Civil Services (Discipline and
Appeal) Rules;
(v) He flouted and disobeyed the orders of the Head
of the department as well as the Head of the office;
D (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
E 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
F 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.
G 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
H replies dated 12.11.2001 and 10.12.2001 respondent no. 1 by
TUSHAR D. BHATI v. STATE OF GUJARAT & ORS. 233
[DALVEER BHANDARI, J.]
"> his impugned order dated 22.5.2002 dismissed the services A
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 B
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
.. I
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
c
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 D
Single Judge preferred Letters Patent Appeal before the High
Court. The Division Bench analysed the submissions of the
appellant in great detail and dismissed the entire case. The
Division Bench has observed:-
E
"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."
F
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 G
and he indulged in the practice of brow-beating the superior
offic~rs 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 H
234 SUPREME COURT REPORTS [2009) 3 S.C.R.
."
A 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
(b) respondent no.2 runs the administration of Goods and
Drugs Control Department as his private concern (c) the ~
Commissioner is encouraging irregularities and corrupt
•
practices in the department and by such corrupt
administration he was damaging the health of people (d)
c 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
D 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
E directly involved in corrupt practices and if the order of
transfer was not cancelled, he would expose scandals tot
e 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 0)
F 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
G (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 ........ "
H
TUSHAR D. BHATT v. STATE OF GUJARAT & ORS. 235
[DALVEER BHANDARI, J.]
... 11. The learned Single Judge was clearly of the opinion A
that strict view was required to be taken in the matter of
discipline of the institution. According to him, when the
disciplinary authority has taken appropriate view in the facts
and circumstances of the case, then it should not be interfered
with. B
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 C
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 D
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 E
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 F
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 G
or the principles of natural justice. 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. H
236 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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
B 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
r
only of that charge, but composite charge of in all seven
different nature which have been adequately prescribed in
the charge-sheet."
'
c
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.
D
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
E was only transferred twice. The appellant's transfer order cannot
be termed as ma/a fide. The appellant was not justified in
defying the transfer order and to level allegations against his
superiors and remaining unauthorisedly absent from official
duties from 11.10.1999 to 27.4.2000 i.e. more than six months.
F 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
G 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,
H Whenever, a public servant is transferred he must comply
TUSHAR D. BHATI v. STATE OF GUJARAT & ORS. 237
[DALVEER BHANDARI, J.]
with the order but if there be any genuine difficulty in A
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 B
transfer. In the absence of any stay of the transfer order a
public servant has no justification to avoid or evade the
transfer order mere.ly 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 c
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."
D
17. In Mithilesh Singh v. Union of India and Others, AIR
2003 SC 1724, the settled legal position has been reiterated.
The court i1eld that absence from duty without proper intimation
is indicated to be a grave offence warranting removal from
service. E
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 F
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.
D.G. Appeal dismissed.
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