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2014 DIGILAW 513 (GAU)

Monoranjan Goswami v. Union of India & Ors.

2014-05-09

K.SREEDHAR RAO

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1. Petitioner was working as Assistant Analytical Chemist in the Tea Research Association, which is held to be a "state" within the meaning of article 12 of the Constitution of India by this court in writ appeal 76/2009 (Monoranjan Goswami v. Union of India and Others). Petitioner, while working at Jorhat, was transferred to Nagrakata in North Bengal. Petitioner appealed to the Director that he was suffering from slip-disc complaint, not able to go to. Petitioner had to take treatment in Kolkata, Vellore, Jorhat and as well in Guwahati for the slip-disc complaint. Petitioner was also operated upon. Petitioner did not join at the place of posting but went on making appeal to the Director to cancel his transfer. Petitioner availed medical leave. Petitioner was yet to be cured and fully become fit; therefore, contends that he could not join at the place of posting but went on making representation to the Director to cancel his transfer from Jorhat. The Director took a serious view of the matter and ultimately communicated to the petitioner that he should go to - and join at - the place of posting or else was threatened with disciplinary action. Disciplinary inquiry was indeed initiated against the petitioner. Petitioner participated in the inquiry. The Enquiry Officer found the petitioner guilty of the charge of disobedience of the order of transfer and unauthorised absence. Petitioner has been dismissed from service. After exhausting the departmental appeal, petitioner has filed this petition. 2. It is the contention of the petitioner that his absence is for a valid reason and it was very much to the knowledge of the management and yet his request was not granted and that the order of dismissal is harsh and unjust. 3. The counsel for the respondent contends that petitioner challenged the order of dismissal before civil court in TS No. 8/2004. The said suit was dismissed. Appeal filed against the said order was also dismissed. The order of dismissal was upheld by the civil court, hence, petitioner cannot maintain this writ petition. It is further contended that evidence was adduced before inquiry authority that petitioner was not as such totally immobile : he was actually moving around and driving vehicles; therefore, the disability did not in any way prevent him from joining at the place of posting. It is further contended that evidence was adduced before inquiry authority that petitioner was not as such totally immobile : he was actually moving around and driving vehicles; therefore, the disability did not in any way prevent him from joining at the place of posting. The ailment stated is also a feigned one, since he comes out with the ailment only after the issuance of the order of transfer. Therefore the inquiry authority found the petitioner guilty of the charge and the order of dismissal is sound and proper. 4. Upon a thorough consideration of the facts and submissions made at the bar and the correspondences and documents produced, it is to be seen that the petitioner's non-joining at the place of posting is for a valid reason : slip-disc ailment. Petitioner has produced credible documentary material to prove that he was taking treatment in Jorhat, Guwhati, Kolkata and as well in Vellore. He was also operated upon and he was taking physio therapy for a long time. The transfer order was issued to him on 14.11.2002. Despite the transfer order petitioner was not relieved of the post and he was relieved only on 30.3.2005. The dismissal order is issued on 30.9.2005. 5. It appears that after being relieved the petitioner did not join at the place of posting in Kolkata till he was dismissed. But the petitioner was all the time making a request for cancellation of the transfer order. The reason for not joining at the place of posting on the part of the petitioner does not appear to be mala fide and his ailment was also very much to the knowledge of the management. It is obvious that despite his transfer order in 2002 he was not relieved till 2004, since his ailment was to the knowledge of the management. The Inquiry Officer in his report makes a mention that petitioner comes out with the plea of ailment only after the transfer order is made, which obviously suggests that the inquiry authority had misconception that the ailment was a feigned one, which is not so in fact. There appears to be another good reason for the petitioner to not immediately comply with the transfer order and join at the place of posting as he had a delicate spine. There appears to be another good reason for the petitioner to not immediately comply with the transfer order and join at the place of posting as he had a delicate spine. The family assistance and attendants which he enjoys at Jorhat, perhaps would not have been available if he joined at the place of posting. Petitioner's conduct of not joining at the place of posting appears to be only on health considerations and not for any mala fide or other reasons. Keeping in view the health conditions the Director should have been more benign in considering the case of the petitioner. The contention that the civil suit was filed and it was dismissed and later appeal filed is also dismissed is also not a bar for exercise of jurisdiction by this court under article 226 of the Constitution of India. The powers of this court under article 226 of the Constitution of India are quite wide and to be exercised for rendering ultimate justice. In the context of facts and evidence I find that the order of dismissal passed is harsh and the same is set aside. Respondents are directed to take petitioner to duty. Respondents are also at liberty to post him at any place considering the exigency of service. Petitioner, however, is not entitled to the salary for the period he has remained absent from work. Accordingly the petition is allowed in part.