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2009 DIGILAW 123 (ORI)

UNION OF INDIA (UOI) v. FAGUNI CHARAN BARIK

2009-02-11

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This Writ Petition has been filed by the Union of India against the Judgment and Order Dated 30.9.1999 (Annex.-1) passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called 'the Tribunal') in Original Application No. 115 of 1999, allowing the application filed by the Opposite Party directing the Petitioners to pay the arrears of pay and allowances to the Opposite Party from 1.11.1995 till the date he resumed the duty i.e. on 10.6.1996 along with 12% interest per annum during which he remained absent from duty. 2. The facts and circumstances giving rise to this case are that the Opposite Party was working as Extra Departmental Mail Carrier at Jajpur Road Railways Mail Service for executing postal mails in S.T.S. Due to some allegations, he was transferred to Jajpur Head Post Office vide Order Dated 31.10.1995. He challenged the said order before the Tribunal by filing Original Application No. 725 of 1995. However, the said application was disposed of vide Order Dated 3rd April, 1996 with an observation that transfer order was bad and by setting aside the said transfer order, direction was issued that the said applicant/Opposite Party may continue to discharge his duty of E.D.M.C. at Jajpur Road. Pursuant to the said Judgment, the applicant/Opposite Party resumed the duty at Jajpur Road with effect from 10.6.1996. Subsequently, he made application before the concerned authority to make payment of arrears of salary from 1.11.1995 to 9.6.1996 during which he could not work as his application remained pending before the Tribunal. He was not made payment. Therefore, he preferred another Original Application No. 477 of 1996 before the Tribunal claiming the arrears for the aforesaid period. Said application was disposed of vide Judgment and Order Dated 9.7.1996 with a direction to the applicant to make a representation to the Superintendent of Post Offices and the said authority was directed to dispose of the said representation as per law and if admissible, to make the payment within eight weeks. Pursuant thereto, Advocate for the applicant/Opposite Party submitted the representation. As no action was taken, applicant/Opposite Party filed another Original Application No. 277 of 1997 before the Tribunal for the same relief. The Application was opposed by the present Petitioners contending therein that Petitioner had never filed any representation personally. Pursuant thereto, Advocate for the applicant/Opposite Party submitted the representation. As no action was taken, applicant/Opposite Party filed another Original Application No. 277 of 1997 before the Tribunal for the same relief. The Application was opposed by the present Petitioners contending therein that Petitioner had never filed any representation personally. However, the Tribunal further directed the applicant/Opposite Party to file a fresh representation before the concerned authority within seven days and the said authority was directed to dispose of the same in accordance with law. As the said representation was rejected by the present Petitioner/authority vide letter dated 22.4.1998 on the ground of no work no pay applicant/Opposite Party filed another Original Application No. 115 of 1999, which was allowed by the Tribunal vide impugned Judgment and Order Dated 30.9.1999, directing the present Petitioners to make payment of all arrears of pay with interest ' 12% within a period of 60 days from the date of receipt of the order. Hence this petition. 3. We have heard Learned Counsel for the parties and perused the record. 4. The admitted facts remain that the Opposite Party/employee was transferred vide Order Dated 31.10.1995. He approached the Tribunal challenging the said transfer order. However, no interim relief was granted in his favour. In spite of that he did not consider it proper to join at the transferred place till his Original Application was decided. Thus, admittedly he remained absent from duty from 1.11.1995 to 10.6.1996. His application for payment for the said period was rejected by the department on the principle of "no work no pay". The Tribunal allowed his subsequent application for payment of salary for the said period on the ground that he was willing to work at the original place of his posting at Jajpur Road, but he was not permitted to work there and relying upon the Judgments of the Hon'ble Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., ; and J.N. Srivastava Vs. Union of India (UOI) and Another, allowed the application. 5. The question does arise as to whether the employee who was busy in filing cases without ensuring the compliance of the transfer order and had admittedly committed a misconduct i.e. insubordination should have been rewarded by the Tribunal issuing direction for making the payment of salary for the said period with interest. 6. In Gujarat Electricity Board and Another Vs. The question does arise as to whether the employee who was busy in filing cases without ensuring the compliance of the transfer order and had admittedly committed a misconduct i.e. insubordination should have been rewarded by the Tribunal issuing direction for making the payment of salary for the said period with interest. 6. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani the Apex Court considered the issue of non-joining the post at the transfer place by a government servant and in crystal clear words observed that an employee if does not join at the transferred place, exposes himself to the disciplinary proceedings for disobedience of the order. The employee cannot avoid the compliance of transfer order. 7. In Addisons Paints & Chemicals Ltd. v. Workman AIR 2001 SC 436 , a similar view has been reiterated as it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance. 8. In Pearlite Liners Pvt. Ltd. Vs. Manorama Sirsi the Apex Court held as under: ...Non-compliance with the transfer order by the Plaintiff amounts to refusal to obey the orders passed by superiors for which the employer can reasonably be expected to take appropriate action against the employee concerned...it is to be considered that if the Plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the Plaintiff on the Defendant in spite of the fact that the Plaintiff allegedly does not obey order.... 9. In S.C. Saxena v. Union of India and Ors. (2006) 9 SCC 583 , the Apex Court deprecated the practice of approaching the Court by the Government employees against transfer order rather joining at the transferred place and held that when the government servant, without joining his duty at the new place continued to submit leave application for a long period and busy in approaching the Court, it would be held to be guilty of misconduct and compulsory retirement of such employee is justified. 10. 10. In view of the above, we are of the considered opinion that in the fact-situation of the case, Union of India ought to have initiated the disciplinary proceeding against the Opposite Party/employee for remaining absent from duty for a period of seven months, and concluded the same. The Learned Tribunal has erred in holding that the Opposite Party/employee should be rewarded with the arrears of salary with interest for the period he remained absent from his duty, as he has admittedly committed misconduct of insubordination. Therefore, the Judgment and order of the Tribunal is liable to be set aside only on that ground. 11. The Tribunal has placed reliance upon the Judgments of the Supreme Court above referred to. We fail to understand how the Tribunal placed reliance on the said Judgments for the simple reason that facts therein are quite distinguishable. Those were the cases where the employee could not be promoted because of pendency of the disciplinary proceedings. Thus, the Apex Court held that in such a circumstances, candidature of such an employee ought to have been considered adopting the sealed cover procedure. 12. In view of the above, Writ Petition succeeds and is allowed. 13. The Judgment and Order Dated 30.9.1999 passed by the Tribunal in Original Application No. 115 of 1999 (Annex.-1) is set aside. B.N. Mahapatra, J. I agree.