Bombay High Court
The Deputy Commissioner Of Police ... vs Shri Sanjay Govind Parab on 6 September, 2024
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:36048-DB
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
RAMESHWAR IN THE HIGH COURT OF JUDICATURE AT BOMBAY
LAXMAN CIVIL APPELLATE JURISDICTION
DILWALE
Digitally signed by
RAMESHWAR WRIT PETITION NO.10200 OF 2022
LAXMAN DILWALE
Date: 2024.09.06
19:20:22 +0530
The Deputy Commissioner of Police }
Wireless Division, Mumbai }
Having office at New Administrative Building }
20th floor, M. K. Road, }
Mumbai-32 } .. Petitioner
(Org. Respondent)
Versus
Shri Sanjay Govind Parab
Aged-46 years, working as Police Head Constable }
[Wireless] [Buckle No.11934] in the office }
Of East Region Wireless Control Room }
Chembur, Mumbai-70. }
R/o. L/3/C, Flat no.703, }
Sankalp C. H. S. Pratiksha Nagar }
Sion, Mumbai-22. } .. Respondent
(Org. Appellant)
...
Mrs. Reena A. Salunkhe, Assistant Government Pleader for the
petitioner-State.
Mr.Gaurav Bandiwadekar, Advocate for the respondent.
...
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, J
Date on which the arguments concluded : 26th JULY, 2024.
Date on which the judgment is delivered : 6th SEPTEMBER, 2024
JUDGMENT :
(PER : A. S. CHANDURKAR, J)
1. Rule. Rule made returnable forthwith and heard learned
counsel for the parties. The challenge raised in this writ petition is
to the judgment dated 02/05/2022 passed by the learned
Member, Maharashtra Administrative Tribunal, Mumbai thereby
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
allowing the Original Application preferred by the respondent and
setting aside the order dated 22/04/2021 by which the absence of
the respondent from duty for a period of 271 days from
02/06/2019 to 27/02/2020 was treated as absence without leave.
2. Facts relevant for considering the challenge as raised are
that the respondent came to be appointed as Police Head
Constable on 04/07/1998. On 30/05/2019, he was transferred
from Mumbai to Dhule. The respondent challenged the said order
of transfer by filing Original Application No.524 of 2019. The
respondent however was relieved on 01/06/2019 for joining at the
place of transfer. He sought interim relief in the proceedings filed
before the Tribunal but on 12/06/2019 interim relief was refused.
The petitioner however did not join the place of transfer.
Ultimately on 20/01/2020, the Tribunal allowed Original
Application No.524 of 2019 and set aside the order of transfer
dated 30/05/2019. Thereafter, the petitioner was permitted to join
on his original post on 28/02/2020. The petitioner made an
application on 04/03/2020 seeking pay and allowances for the
period from the date of the order of transfer till he re-joined duty.
The Deputy Commissioner of Police on 22/04/2021 refused to
grant any pay and allowances for the period of absence from
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
02/06/2019 to 27/02/2020. By referring to the provisions of Rule
29 of the Maharashtra Civil Services (General Conditions of
Services) Rules, 1981, the respondent's absence was treated as
without pay. Being aggrieved, the respondent preferred Original
Application No.439 of 2021 before the Tribunal. The learned
Member was of the view that since the order of transfer was set
aside on 20/01/2020 by the Tribunal, it was non-est. It ought to
be treated as an order that never came in existence. It was held
that refusal to grant any interim relief in the earlier Original
Application would not deprive the respondent from receiving his
pay and allowances. The order dated 22/04/2021 denying relief to
the respondent was quashed and it was directed that he be paid
pay and allowances for the period from 02/06/2019 to
27/02/2020. Being aggrieved, the Deputy Commissioner of
Police,Wireless Division Mumbai has filed this writ petition.
3. Mrs. Reena Salunkhe, the learned Assistant Government
Pleader for the petitioner submitted that the Tribunal erred in
holding that the order of transfer dated 30/05/2019 was non est
as it was set aside by the Tribunal in the earlier proceedings
initiated by the respondent. Referring to the order passed in the
earlier Original Application, it was submitted that since the Police
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
Establishment Board as required to be constituted under Section
22J-3 of the Maharashtra Police Act, 1951(for short, 'the Act of
1951') had not been properly constituted, the order of transfer
dated 30/05/2019 had been set aside. The respondent had
challenged the said order before the Tribunal and after hearing
him, interim relief was refused by the Tribunal. This interim order
was not challenged by the respondent and it operated till the said
Original Application was ultimately decided on 20/01/2020.
Under the service Rules, it was incumbent upon the respondent to
have joined at the place of transfer as interim relief was refused in
the proceedings filed by him. The respondent however did not join
at the place of posting for a period of 271 days. It was only after
the Tribunal allowed the Original Application and set aside the
order of transfer dated 30/05/2019 that he re-joined at his
original post. Such conduct was unbecoming of a Government
servant and hence, he could not be permitted to take advantage of
such conduct. Reliance was placed on the decisions in S. C.
Saxena Vs. Union of India and Others, (2006) 9 Supreme Court
Cases 583 and Sukhdeo Pandey Vs. Union of India and Another,
(2007) 7 SCC 544 to urge that the Tribunal was not justified in
directing payment of pay and allowances for the period when the
respondent did not discharge duties. It was thus submitted that
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
the impugned order was liable to be set aside and the Original
Application ought to be dismissed.
4. Mr. Gaurav Bandiwadekar, learned counsel for the
respondent opposed aforesaid submissions. According to him,
since the Tribunal had quashed the order of transfer dated
30/05/2019 on the ground that it was contrary to the provisions
of Section 22J-3 of the Act of 1951, the respondent was entitled to
the relief that was rightly granted by the Tribunal. As the order of
transfer was quashed, the respondent would be entitled to be
restored to the post in which he was placed prior to issuance of
the said order. The respondent could not be faulted for not
complying with an invalid order of transfer dated 30/05/2019 and
hence the Tribunal was justified in holding that the said order was
non est. The consequential reliefs in the form of pay and
allowances for the period of absence was rightly granted. In
support of the impugned judgment of the Tribunal, the learned
counsel placed reliance on the decisions in Nawabkhan
Abbaskhan Vs. The State of Gujarat, (1974) 2 SCC 121, Ramesh
Motilal Khandelwal Vs. Ramesh Parishad, Akola, 1992 Mh.L.J. 325
and Diwakar Pundlikrao Satpute Vs. Zilla Parishad, Wardha and
Ors. 2004 (3) L.L.N. 790. It was thus submitted that there was no
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
reason to interfere with the order passed by the Tribunal and the
writ petition was liable to be dismissed.
5. We have heard the learned counsel for the parties at length
and their assistance we have perused the documents on record.
Before considering the challenge as raised, it would be necessary
to refer to certain relevant aspects that have occurred prior to
passing of the impugned order by the Tribunal. On 30/05/2019,
an order of transfer was issued to the petitioner by which his
services were transferred from Mumbai to Dhule. This order was
challenged in Original Application No.524 of 2019. The respondent
sought interim relief by praying for stay of the order of transfer
dated 30/05/2019. The Tribunal considered the said prayer and
on 12/06/2019 declined to grant any interim relief by observing
that prima facie, there was compliance of the provisions of Section
22N-2 of the Act of 1951. Despite this order, the respondent did
not join at his place of transfer and remained absent from duty.
The ground on which the Tribunal interfered with the order of
transfer was that the Police Establishment Board had not been
constituted in the manner prescribed by Section 22J-3 of the Act
of 1951. On that basis, the Tribunal held that the order of transfer
was not sustainable in law on the ground that there was non-
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
adherence to the requirements of the Act of 1951. The Tribunal
also considered the submission made on behalf of the respondent
that as he was already subjected to punishment in the
departmental enquiry for alleged misconduct, his transfer on the
same allegation was punitive. While dealing with this submission,
the Tribunal in paragraphs 14 and 15 observed as under:-
14. Insofar as the submission advanced by the learned
Counsel for the Applicant that the Applicant was
already subjected to punishment in D.E. for the alleged
misconduct, and therefore, the order of transfer on the
same allegation of misconduct is punitive is concerned, I
find no merit therein. True, the Applicant was subjected
to punishment in D.E. while he was serving at Mumbai
and it is on this background, he was transferred from
Mumbai to Dhule. He was held guilty in departmental
proceeding. As such, it is in the light of proved
misconduct, PEB though it appropriate to transfer him to
Mumbai. Apart, as per Minutes of PEB he was overdue.
As such, this is not a case where transfer was affected
on unsubstantiated complaint where it can be termed as
punitive transfer. Suffice to say in present case, it
cannot be said that transfer amounts to double
punishment as sought to be canvassed by the learned
Counsel for the Applicant.
15. Though, the impugned order cannot be termed
punitive it is not sustainable in law in view of non
compliance of mandatory provisions of Section 22J-3 of
'Act 1951'. The PEB which had recommended itself is
not legally constituted PEB for the reasons discussed
above. The Tribunal has therefore no alternative except
to quash the impugned transfer order.
(emphasis supplied)
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
6. On that basis, the order of transfer dated 30/05/2019 was
set aside and the respondent was directed to be reinstated within
a period of two weeks from the date of the order. The petitioner did
not challenge this judgment of the Tribunal dated 20/01/2020.
The respondent thereafter on 04/03/2020 made a request
for grant of pay and allowances for the period from the date of the
order of transfer till he joined on service which was a duration of
nine months. On 22/04/2021, the Deputy Commissioner of Police
passed an order by referring to Rule 29 of the Maharashtra Civil
Services (Conditions of Services) Rules 1989, (sic 1981) and held
that the period from 02/06/2019 to 27/02/2020 being 271 days
was treated as period of absence without pay. As the respondent
made another application with the superior Authorities, the Office
of the Police Commissioner informed the Deputy Commissioner of
Police on 16/06/2021 that the order dated 22/04/2021 treating
the period of absence of the respondent as without pay had been
maintained.
7. From the aforesaid events, it becomes clear that (a) though
the respondent prayed for grant of stay to the order of transfer
dated 30/05/2019, the Tribunal in Original Application No.524 of
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
2019 declined to grant any interim relief on 12/06/2019 (b) while
quashing the order of transfer dated 30/05/2019, the Tribunal in
paragraphs 14 and 15 of the order passed in Original Application
No.524 of 2019 specifically observed that the order of transfer
was not punitive and that the respondent was overdue for
transfer. The transfer order could not be said to have been effected
on the basis of an unsubstantiated complaint. It is only for the
reason that there was non-compliance of the provisions of Section
22J-3 of the Act of 1951 that the order of transfer was set aside. It
is on the basis of these aspects that the issue with regard to
entitlement of the respondent to pay and allowances for the period
of absence for a duration of 271 days will have to be determined.
8. The Tribunal in the impugned order has held that the order
of transfer dated 30/05/2019 was being set aside as non-est and
hence the respondent was entitled to pay and allowances for the
period of absence. Another ground that has weighted with the
Tribunal is the reference to Rule 29 of the Maharashtra Civil
Services (General Conditions of Services) Rules 1981 in the
communication dated 22/04/2021 which provision was not at all
relevant in the circumstances. By holding that the order of
transfer dated 30/05/2019 was required to be treated as never
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
having come into existence, the Tribunal granted relief to the
respondent and directed payment of pay and allowances for the
period of absence of 271 days to the respondent. While doing so, it
relied upon the decisions on which the learned counsel for the
respondent has also placed reliance in this Court to which
reference has been made in paragraph 4 (supra).
9. At the outset, it must be noted that the respondent is
holding the post of Police Head Constable (Wireless) and is a
member of the disciplined force. Being aggrieved by his order of
transfer dated 30/05/2019, he had challenged the said order by
approaching the Tribunal and had prayed for interim relief. The
Tribunal refused to grant any interim relief by its order dated
12/06/2019. The respondent did not choose to challenge that
order any further. On the contrary, he preferred to remain absent
from duty without permission. His absence continued for 271 days
till his Original Application was allowed on 20/01/2020. We may
in this regard refer to the observations made by the Supreme
Court in S. C. Saxena (supra) that a Government servant cannot
disobey a transfer order by not reporting at the post of posting and
then going to a Court to ventilate his grievances. It is his duty to
first report for work at the place of transfer and make a
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
representation in case he has any personal problem. It was further
observed that the tendency of not reporting at the place of posting
and indulging in litigation was required to be curbed.
In our view, there was no justification whatsoever on the
part of the respondent for not complying with the order of transfer
even after his prayer for interim relief was refused by the Tribunal.
The respondent chose, at his own will, to defy the order of transfer
and preferred to remain absent. His conduct reveals scant regard
for the due process of law especially when he himself had
approached the Tribunal for challenging the order of transfer. This
conduct of the respondent of failing to report for duty at the place
of transfer even after being denied interim relief deserves to be
deprecated.
10. We further find that the Tribunal was not justified in
ignoring the observations made in its earlier order dated
20/01/2020. In paragraphs 14 and 15 of the order dated
20/01/2020, the Tribunal itself had recorded a finding that the
respondent was overdue for transfer and that there was no
material on record to hold that the transfer order dated
30/05/2019 was punitive in nature. Rather, it observed that it
could not be said that on the basis of an unsubstantiated
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complaint he had been transferred. This would indicate that the
respondent in any event was eligible for being transferred and it is
only on account of non-constitution of the Police Establishment
Board that compelled the Tribunal to interfere with the order of
transfer. By failing to notice these aspects which were recorded in
its earlier order dated 20/01/2020, the Tribunal misdirected itself
and proceeded to grant relief to the respondent.
11. Another aspect that has weighed with the Tribunal is the
reference made to Rule 29 of the Maharashtra Civil Services
(General Conditions of Services) Rules, 1981 in the order dated
22/04/2021 by which the respondent was denied pay and
allowances for the period of absence. It is to be noted that the
relevant Rule applicable is Rule 29 of the Maharashtra Civil
Services (Joining Time, Foreign Service and Payments During
Suspension, Dismissal and Removal) Rules, 1981. Rule 29 reads
as under :-
"29. Overstayal.--A Government servant who does
not join his post within his joining time is entitled to
no pay or leave salary after the end of the joining
time. Willful absence from duty after the expiry of
joining time may be treated as misbehaviour for the
purpose of Rule 27 of Maharashtra Civil Services
(General Conditions of Services) Rules, 1981."
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
It is on this basis that the respondent was denied payment of pay
and allowances for the period of his absence. It is well settled that
incorrect reference to a provision of law under which the
impugned action is taken would not invalidate such action for this
reason if the authority taking such action otherwise has
jurisdiction to do so. Reference can be usefully made to the
decision in N. Mani Vs. Sangeetha Theatre and Others (2004) 12
SCC 278. Instead of referring to Rule 29 of the Maharashtra Civil
Services (Joining Time, Foreign Service and Payments During
Suspension, Dismissal and Removal) Rules, 1981, the said
authority has referred to the Maharashtra Civil Services (General
Conditions of Services) Rules 1981. As the Deputy Commissioner
of Police had the necessary authority to deny pay and allowances
to the respondent for the period of his unauthorised absence,
incorrect mention of an inapplicable provision would not
invalidate the order.
12. Coming to the decisions on which the learned counsel for the
respondent had placed reliance before the Tribunal which
decisions are also pressed into service before us, we find that the
ratio of the said decisions cannot be applied to the case in hand.
In Ramesh Motilal Khandelwal (supra), the employee concerned
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was holding the post of Stenographer and he was transferred to
the post of Senior Assistant. It was noted that the said employee
had been transferred from higher post to a lower post. Though his
pay had been protected, it was held that such order of transfer
was not permissible under the amended Rules. The Court found
that though the word "transferred" had been used, it was an order
which amounted to reduction in rank and was thus punitive in
nature. On that basis, the Court proceeded to hold the said
employee entitled to wages in his original pay-scale. We do not
find as to how the ratio of this decision can be applied to the facts
of the present case. The Tribunal itself in the earlier proceedings
initiated by the respondent held that the order of transfer was not
punitive and that the respondent even otherwise was due for
transfer.
Coming to the decision in Diwakar Pundlikrao Satpute
(supra), the facts therein indicate that the employee came to be
transferred on 17/01/1984. He made a representation and the
Block Educational Officer realised that his earlier order dated
17/01/1984 was an illegal order. He therefore cancelled the said
order. The employee was held entitled to his salary for the
intervening period. The said decision is also distinguishable in the
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
facts of the present case and the ratio thereof cannot be made
applicable.
13. It is also necessary to bear in mind that permitting an
employee to disregard his order of transfer despite having failed to
obtain any interim relief from the Tribunal would result in serious
consequences. Having approached the Tribunal for quashing the
order of transfer and having failed to obtain any interim relief,
such employee having disregarded the order of transfer cannot
seek pay and allowances for the period of his unauthorised
absence. Rule 29 referred to above treats such wilful absence from
duty as misbehaviour. His joining at the place of transfer would
have been subject to final outcome of the proceedings. However,
granting him the benefit of pay and allowances for the period of
unauthorised absence would amount to granting premium for
such conduct of disobedience of the order passed by the Tribunal.
14. For aforesaid reasons, we find that the Tribunal committed a
grave error in holding the respondent entitled to pay and
allowances for the period of his unauthorised absence by treating
the order of transfer that was set aside to be non-est. Hence, the
writ petition is allowed. The judgment dated 02/05/2022 passed
6-WP-10200-22. JUDGMENTdoc Rameshwar Dilwale
in Original Application No.493 of 2021 is set aside. The Original
Application stands dismissed.
15. Rule is made absolute in aforesaid terms with no order as to
costs.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
