ivil Appeal No 3561 of 1986
From the Judgment and Order dated 2821986 of the Gujarat High Court in SCA No 1176 of 1974
Mehta Shishir Sharma and PH Parekh for the Appel lants
Respondent in person
NP The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and order of the High Court of Gujarat dated 2821986 allowing the respondent s writ petition and quashing order of discharge from service and directing his reinstatement in service
The respondent joined service as technical assistant with the Gujarat State Electricity Board hereinafter re fened 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 subdivision 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 Engi neer 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 to join at Ukai
His representation was rejected and he was directed to 361 join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans fer
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 the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat
A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re spondent before discharging him from services under Regula tion No 113
The learned Single Judge granted a declaration in respondent s favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct 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 preferred 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 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 increments 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
This appeal came up for hearing before us on 28th Janu ary 1988 and on that day Sh
BK Mehta Advocate appearing for the appellants and Sh
Vimal Dave Advocate appearing for the respondent were fully heard
After hearing learned counsel for the parties we were satisfied that the learned Single Judge as well as the Division Bench both had commit ted error in allowing the writ petition and granting 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 respond ent 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 362 were directed by means of interim order of this Court to continue 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 1621988 when another counsel appeared to argue the appeal on behalf of the respondent on merits
We refused to hear the counsel as we had already completed hearing
Thereupon the respondent himself appeared in person and sought permission to make his submissions personally
We refused to accede to his request as oral heating had already been completed and the matter had been adjourned 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 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 are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis used adjournments 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 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 2811988 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 sympathetic view we requested Sh
Vimal Dave learned coun sel 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 re spondent s prayer is accordingly rejected and since oral hearing has already been completed and in spite of several adjournments respondent failed to appear before the Court or to file the written submissions we proceed to decide the case on merits
Transfer of a Government servant appointed to a particu lar cadre of transferable posts from one place to the other is an incident of service
No Government servant or employee of Public Undertaking has legal tight for being posted at any particular place
Transfer from 363 one place to other is generally a condition of service and the employee has no choice in the matter
Transfer from one place to other is necessary in public interest and efficien cy 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 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
In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a repre sentation 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 under the relevant Rules as has happened in the instant case
The respondent lost his serv ice 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 transferable post and under the conditions of service ap plicable 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 transferred 
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 runs as under 113
The continued absence from duty or overstay m 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 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 sanctioned leave and in spite of warning he fails to return to duty he renders himself liable to be discharged summarily from service without 364 complying with the procedure prescribed for taking discipli nary 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 rules detailed procedure is required to be followed for removing an employee from serv ice but Regulation 113 provides for summary discharge 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 employee 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 make 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 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 wef March 30 1974 to May 27 1974
The Division Bench of the High Court held that no warning as contemplated by service Regulation No 113 had been issued to the respondent nor he had been afforded any opportunity of showing cause before the im pugned 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 materi al 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 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 respondent
On March 29 1974 the Superintending Engineer of the Board issued the order transferring the respondent from Surat to Ukai on 3031974 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 representa tion to the Additional Chief Engineer on 841974 after the transfer order
The Transfer order was not stayed and as the respondent did not join 365 his duties he continued to be absent without sanction of any leave
In this situation 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 unautho rised absence from duty in breach of service Regulation No 113
The letter is as under GUJARAT ELECTRICITY BOARD O  M DIVISION Nana Varchha Road Surat
Dated 18th April 1974 To Shri AS Pohani Junior Engineer Ukai 37 Gurunagar Society Near Jakat Naka Surat 3
Sub Transfer from Surat to Ukai
You have been relieved on 3031974 AN on account of your transfer from Surat to Ukai but you have not reported to Ukai till today and remained on unauthorised absence on re lief which is breach of SR No 112 and 113
Please submit your explanation as to why action should not be taken against you for disobeying order of superior and breach of SR No 112 and 113 within 7 days from re ceipt of this letter
Sd Execut ive Engineer O  M Surat Copy fwcs
to Superintending Engineer GEB Utran
 There is no dispute that the respondent received the afore said letter as he sent a reply to the Superintending Engi neer on April 20 1974 a copy of which was annexed as Annexure J  by the petitioner to his 366 petition before the High Court
By that letter respondent stated that he was waiting for the decision of his represen tation made for reconsideration of his transfer from Surat to Ukai and therefore the question 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 employee of any public undertaking has a right to be absent from duty without sanction of leave merely on account of pendency of representation 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 respondent 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 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 repre sentation 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 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 respond ent and discharged him from service with effect from 3131974 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 disobeyed the order of transfer and he re mained 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 18th April 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No 113 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 No 113 was not in accordance with law
This finding is wholly misconceived
A warning need not be in any particular form
The object and purpose of the warn ing 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 serv ice
The substance of the Superintending Engineer s letter dated 18th April 1974 which was admittedly served on the respondent contained 367 warning to the respondent which fully met the requirement of Regulation No 113
Before the High Court a controversy was raised as to whether the registered letter dated 2441974 addressed by the Superintending Engineer to the respondent was received by him or not
The registered cover containing the letter dated 2441974 was returned back by the 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 re fused to accept the same
The Division Bench held that letter dated 2441974 which contained a warning had not been served on the respondent and since the Board had failed to raise the question before the learned Single Judge it could not do so in the letters patent appeal
The Division Bench further held that since the letter dated 2441974 was not served on the respondent there was no material to show that any warning had 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 2441974 was not served on the 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 respondent
Therefore even if the letter dated 2441974 was not served on the respondent the order of discharge as contemplated by Regulation No 113 is sustainable in law
But even otherwise the Division Bench committed error in holding that the Board had raised the question of service of the letter dated 2441974 for the first time before the Division Bench in the letters patent appeal
Perusal of the averments made in paragraphs 17 18 23 and 25 2ii 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 that the respondent was informed by letter dated 2441974 that his representation to postpone his transfer was rejected and he should obey the order of transfer
It was further pleaded that the respond ent had refused to accept the registered letter and the same had been returned back by the postal authorities with an endorsement that the addressee refused to accept the same
In his rejoinder affidavit the respondent denied the afore said allegations and asserted that the letter was not ten dered 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 material before the Court in support of his plead ing
In this view we are of the opinion that the Division Bench was totally wrong in holding that 368 no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 2441974 was served on the respondent
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
There is presumption of service of a letter sent under registered cover if the same is 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 occasion 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 dis charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au thorities was wrong and incorrect
Mere denial made by the respondent in the circumstances of the case was not suffi cient to rebut the presumption relating to service of the registered cover
We are therefore of the opinion that the letter dated 2441974 was served on the respondent and he refused to accept the same
Consequentlythe service was complete and the view taken by the High Court is incorrect
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 before issuing the order of discharge the respondent was not only warned but he was also afforded an opportunity to explain as to why disci plinary action should not be taken against him
The respond ent acted in an irresponsible manner in not complying with the order of transfer which led to his discharge from serv ice in accordance with the Service Regulation No 113
The learned Single Judge as well as the Division Bench both erred in law in setting aside the order of discharge
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 104170 towards salary under the interim orders of this Court
Now since the order of 369 discharge is held to be valid the amount paid to the re spondent is liable to be recovered from him but having regard to the facts and circumstances 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
SKA Appeal al lowed


Summary:
The appellant section Rangarajan is a film producer
He produced a Tamil film Ore Oru Gramathile and applied for certificate for exhibition of the film
The examination committee upon seeing the film refused to grant the Certifi cate but on a reference being made to the 2nd Revising Committee for review and recommendation the Committee by a majority of 54 recommended the grant of a U  certificate subject to deletion of certain scenes
On 71287 U  certificate was granted which was chal lenged in the High Court by means of writ petitions
It was contended before the High Court that the film is treated in an irresponsible manner the reservation policy of the Govt has been projected in a biased manner and the so called appeal in the film that India is one is a hollow appeal which touches caste sensitivity of the Brahmin forward caste
It was also asserted that the film would create law and order problem in Tamil Nadu
The Writ Petitions were dismissed by the Single Judge but upon appeal they were allowed and the U  certificate issued to the appellant producer was revoked
These two appeals one by the producer of the film and the other by the Union of India have been filed by 205 special leave of challenging the decision of the High Court
The principal contentions raised on behalf of the appel lants were i that the fundamental right of freedom of free expression guaranteed under the Constitution covers even the medium of movies that the opinion on the film ought not to be rested on the isolated passages disregarding the main theme and its message ii That the Court should not concern itself with the correctness or legality of the views expressed in the film and the Court cannot limit the expression on any general issue even if it is controversial and that the writings of the film must be considered in a free and liberal manner in the light of the freedom of expression guaranteed under the Constitution
It was assert ed that the theme of the film is that reservation could be on the basis of economic backwardness instead of caste
Counsel for the Respondents was critical about the manner in which the reservation policy of the Govt
has been condemned and the events and the characters portrayed in the film as they are depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile and likely to create law and order problem
Allowing the appeals this Court HELD The motion pictures were originally considered as a form of amusement to be allowed to titillate but not to arouse
They were treated as mere entertainment and not an art or a means of expression
Movie motivates thought and action and assures a high degree of attention and retention
It makes its impact simultaneously arousing the visual and aural senses
The movie had unique capacity to disturb and arouse feelings
It has as much potential for evil as it was for good
It has an equal potential to instil or cultivate violent or good behaviour
211D E 212G 213D Censorship by prior restraint is therefore not only desirable but also necessary
213E The Censors Board should exercise considerable circum spection on movies affecting the morality or decency of our people and cultural heritage of the country
The moral values in particular should not be allowed to be sacrificed in the guise of social change or cultural assimilation
216G H The Censors should be responsive to social change and they must go with the current climate
The Censors may display more sensitivity 206 to movies which will have a markedly deleterious effect to lower the moral standards of those who see it
217C D If the film is unobjectionable and cannot constitution ally be restricted under Article 192 freedom of expres sion cannot be suppressed on account of threat of demonstra tion and processions or threats of violence
That would tantamount to negation of the rule of law and a surrender to black mail and intimidation
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State
The State cannot plead its inability to handle the hostile audience problem
It is its obligatory duty to prevent it and protect the freedom of expression
230C D The Revising Committees have approved the film
The members thereof come from different walks of life with variegated experiences
They represent the cross section of the community
They have judged the film in the light of the objectives of the Act and the guidelines provided for the purpose
There is nothing wrong or contrary to the Constitu tion in approving the film for public exhibition
230E F The framework of the Indian Constitution differs from the First Amendment to the US Constitution
Article 191a guarantees to all citizens the right to freedom of speech and expression
The freedom of the expression means the right to express one s opinion by words of mouth writ ing printing picture or in any other manner it would thus include the freedom of communication and the right to propa gate or publish opinion
The communication of ideas could be made through any medium newspaper magazine or movie
But this right is subject to reasonable restrictions on grounds set out under Article 192
Reasonable limitations can be put in the interest of sovereignty and integrity of India the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
212B D In matters of certification of films it is necessary to take prompt action by the respective authorities
The pro ducer who has invested a large capital should not be made to wait needlessly
He has a statutory right to have the valid ity of the film determined in accordance with law
It would be therefore proper and indeed appreciative if the film is reviewed as soon as it is submitted
It is not proper to form an opinion by dwelling upon stray sentences or isolated passages disregarding the main theme
219E 220B C 207 Freedom of expression is the rule and it is generally taken for granted
Every one has a fundamental right to form his own opinion on any issue of general concern
He can form and inform by any legitimate means
223C Democracy is Government by the people via open discus sion
The democratic form of government itself demands its citizens an active and intelligent participation is a basic features and a rational process of democracy which distin guishes it from all other forms of govt
Public discussion on issues relating to administration had positive value
223D E Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allow ing the freedom are pressing and the community interest is endangered
The anticipated danger should not be remote conjectural or far fetched
It should have proximate and direct nexus with the expression
The expression of thought should be intrinsically dangerous to the public interests
In other words the expression should be inseparably locked up with the action contemplated like the equivalent of a spark in a power keg
226G H It is difficult to understand how the expression in the film with criticism of reservation policy or praising the colonial rule will affect the security of the State or sovereignty and integrity of India
There is no utterance in the film threatening to overthrow the Govt
by unlawful or unconstitutional means
There is no talk of secession either nor is there any suggestion for impairing the integration of the country
The film seems to suggest that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic backwardness is better
The film also deprecates exploitation of people on caste considerations
222G H 223A The fundamental freedom under article 191a can be reasonably restricted only for the purposes mentioned in article 192 and the restriction must be justified on the anvil of necessity and not the quicks and of convenience and expediency
Open criticism of Government policies and opera tions is not a ground for restricting expression
We must practice tolerance to the views of others
Intolerance is as much dangerous to democracy as to the person himself
230H 231A B The Court allowed the appeals set aside the judgment of the High Court and dismissed the writ petitions
231B C 208 Mutual Film Corporation vs Industrial Commission 1915 referred to Burstyn vs Wilson  referred to Schenek vs United States  1919 referred to Santosh Singh vs Delhi Administration  followed KA Abbas vs Union of India  referred to Ramesh vs Union of India   Bhagwat Charan Shukla vs Provincial Government AIR 1947 Nag 1 at 676 Rajkappoor vs Laxman   Maneka Gandhi vs Union of India 1978 2 SCR 621 Naraindas vs State of Madhya Pradesh   Sakal vs Union of India   Whitney vs California 274 US 357 375 378 1927 Manohar vs Govt
of Bombay AIR 1950 Bombay 210 Niharender Dutt Majumdar vs Emperor AIR 1942 FC 22 and Handyside vs United Kingdom 1975I EHRR737 at p 754 referred to