IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.39866,34651 AND 35679 OF 2006 (O.A.NO.1599,2766 AND 3794 OF 1998) W.P.NO.39866 OF 2006: K.Pandi .. Petitioner Vs. 1.State rep. by the Secretary to Government, Finance Department, Fort St. George, Madras-9. 2.Deputy Secretary, Finance, Government of Tamil Nadu, Madras-9. 3.Chief Internal Auditor and Chief Auditor of Statutory Boards, 124, Thiagaraya Salai, Madras-18. .. Respondents W.P.NO.34651 OF 2006 : M.Natarajan .. Petitioner Vs. 1.The Registrar, O/o The Registrar of Co-operative Societies, N.V.Natarajan Maligai, Kilpauk, Chennai-10. 2.The Joint Registrar of Co-operative Societies, Madurai Region, Chinnachockikulam, Madurai-2. 3.The Deputy Registrar of Co-operative Societies, Madurai Circle, Plot No.44, K.K.Nagar, Madurai-2. https://hcservices.ecourts.gov.in/hcservices/ 4.The Regional Deputy Director for Milk Co-operative Audit, No.1, Main Road, S.S.Colony, Madurai-16. 5.The Deputy Registrar/Dairying, No.3, Sarojini Street, Chinnachockikulam, Madurai-2. .. Respondents W.P.NO.35679 OF 2006: A.Megarunniza .. Petitioner Vs. 1.The Collector, Panagal Building, Thanjavur District, Thanjavur. 2.The Commissioner, Panchayat Union, Peravurani. .. Respondents W.P.No.39866 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records made in the impugned order dated 17.4.1995 made in Lr.No.82102/L.F./94 passed by the first respondent, communicated by the third respondent by letter dated 18.12.1997 to the applicant, quash the same and to further direct the respondents to treat the period from 1.1.1994 to 2.8.1994 (214 days) as period in service of the applicant, pay necessary emoluments with all other monetary benefits as per the service rules. W.P.No.34651 of 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records on the file of the first respondent in his proceedings Rc.No.167633/95/OE3 dated 10.1.1997 (served on 8.8.97) and to quash the same so far as para (4) of the proceedings of the first respondent RC No.167633/95/OE3 dated 10.1.1997 and consequently direct the respondents to treat the period from 11.10.1994 to 1.8.1995 as compulsory wait and to disburse pay and allowances for the period. W.P.NO.35679 OF 2006 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the proceedings of the Collector, Thanjavur District, Thanjavur in Na.Ka.No.10817/97 K3 dated 10.11.1997, quash the same and consequently, to direct the respondents to regularise the period from 7.9.1996 to 16.10.1996 as medical leave, 17.10.1996 to 25.10.1996 as compulsory wait and 25.10.1996 to 1.6.1997 as duty https://hcservices.ecourts.gov.in/hcservices/ and consequently to direct the respondents herein to disburse all the service benefits which has been withheld on account of the above nonregularisation and to pay all the arrears due to the applicant on the above heads within short date. For Petitioner : Mr.M.V.Venkataseshan in W.P.No.39866 of 2006 Mr.V.Ravikumar in W.P.No.34651/2006 Mr.K.Rajkumar in W.P.No.35679/2006 For Respondents : Mr.R.Neelakantan, GA for R1 in W.P.35679/06 for RR1 to 5 in W.P.34651/2006 for respondents in WP.39866/2006 Mr.M.Devadoss for R2 in WP.35679/06 - - - - COMMON ORDER Heard Mr.M.V.Venkataseshan, Mr.V.Ravikumar and MR.K.Rajkumar counsel for respective petitioners and MR.R.Neelakantan, learned Government Advocate for respondent State and Mr.M.Davadoss for R2 in W.P.No.35679 of 2006. 2.These writ petitions arose out of O.A.No.1599, 2766 and 3794 of 1998 filed by the petitioners before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, they were transferred to this court and were renumbered as W.P.Nos.39866, 34651 and 35679 of 2006. 3.The petitioner in W.P.No.39866 of 2006 sought for the issuance of a writ of certiorarified mandamus to call for the records made in the impugned order dated 17.4.1995 made in Lr.No.82102/L.F./94 passed by the first respondent, communicated by the third respondent by letter dated 18.12.1997 to the applicant, quash the same and to further direct the respondents to treat the period from 1.1.1994 to 2.8.1994 (214 days) as period in service of the applicant, pay necessary emoluments with all other monetary 7benefits as per the service rules. 4.The petitioner in W.P.No.34651 of 2006 sought for the issue of a writ of certiorarified mandamus to call for the records on the file of the first respondent in his proceedings Rc.No.167633/95/OE3 dated 10.1.1997 (served on 8.8.97) and to quash the same so far as para (4) of the proceedings of the first respondent RC No.167633/95/OE3 dated 10.1.1997 and consequently direct the respondents to treat the period from 11.10.1994 to 1.8.1995 as compulsory wait and to disburse pay and allowances for the period. 5.The petitioner in W.P.No.35679 of 2006 sought for the issuance of the writ of certiorarified mandamus to call for the https://hcservices.ecourts.gov.in/hcservices/ records relating to the proceedings of the Collector, Thanjavur District, Thanjavur in Na.Ka.No.10817/97 K3 dated 10.11.1997, quash the same and consequently, to direct the respondents to regularise the period from 7.9.1996 to 16.10.1996 as medical leave, 17.10.1996 to 25.10.1996 as compulsory wait and 25.10.1996 to 1.6.1997 as duty and consequently to direct the respondents herein to disburse all the service benefits which has been withheld on account of the above nonregularisation and to pay all the arrears due to the applicant on the above heads within short date. 6.In the first writ petition, the petitioner K.Pandy filed OA No.6576 of 1993 before the Tribunal seeking to challenge his curtailment of his deputation to the third respondent Corporation of Madurai. An interim order was granted on 9.12.93 staying the reversion. Subsequently, the OA was allowed by a final order, dated 15.4.1994. The operative portion of the order reads as follows: "This direction will be final direction in the Original Application considering that it is only fair that the applicant should be enabled to continue at Madurai for the normal term of 3 years and should not be deprived of that opportunity consequent on deputation to the Madurai Corporation contrary to the departmental regulations." Pursuant to the final order passed by the Tribunal, the Government issued G.O.Ms.No.639, Finance Dept., dt.27.7.94 to implement the orders of the Tribunal. Thereafter, he was given a posting order to work in the Corporation. The petitioner wanted the period from 1.1.94 to 2.8.94 (214 days) as period in service and pay the necessary emoluments for the said period. When that was not forthcoming, he filed OA No.1599 of 1998 for the said purpose. 7.In response to the said OA, the first respondent has filed a reply affidavit, dated 30.11.98. In para 17 of the reply, it was averred as follows: "17.It is submitted that after the issue of orders of reversion to parent department and immediately after relief from Madurai Corporation, the applicant proceeded on Unearned Leave on Medical Certificate from 1.9.93. The applicant was posted at Madras in the Internal Audit Department in Chennai in this office memo No.6933/A3/93, dated 29.11.93 on expiry of his medical leave applied for by him. But he had not joined duty and continued to extend his leave. Meanwhile he filed this case in the Tamil Nadu Administrative Tribunal and after passing final orders of the Tribunal, permitting him to continue in the Madurai Corporation on Foreign Service in case he has not completed 3 years of service. Accordingly orders were passed and the applicant permitted to join Madurai Corporation again on 3.8.94. The above https://hcservices.ecourts.gov.in/hcservices/ happenings were due to the action of the individual and not because of the administrative lapses. The applicant was allowed to continue in Foreign Service at Madurai Corporation beyond the period of 3 years (i.e. for a period of 3 years 2 months and 29 days) to be precise as detailed below: Y M D 1.10.92 to 31.8.93 0 11 0 3.8.94 to 30.11.96 2 3 29 or 3 2 29 As per rule 110-114 of F.R. no Government Servant is allowed to continue in Foreign Service beyond the period of 3 years. Accordingly he was transferred to Virudhunagar after completion of 3 years period. Here also the statement of the applicant that he was transferred to Virudhunagar from Madurai Corporation was due to vindictive attitude of the respondent is not correct. In the circumstances explained the prayer of the applicant to treat the period from 1.1.94 to 2.8.94 as a period of service merits no consideration and the Honourable Tribunal is requested to reject his prayer and render justice." 8.In the second writ petition, the petitioner challenged the order of Registrar of Co-operative Societies, dated 10.1.97 in refusing to consider his request to treat the period from 11.10.94 to 1.8.95 as compulsory wait. The said order came to be passed pursuant to the direction issued by the Tribunal in OA No.3106 of 1996, dated 1.11.96. The petitioner while working as a Co-operative Sub Registrar was sought to be transferred to another society as a Special Officer. He filed OA No.3369/94. The Tribunal granted an interim stay on 5.7.94. He was allowed to continue in the said society and subsequently, posted to work in an another society as a Special Officer on 19.7.94. He did not join in the said post. But, again filed Original Application No.2204/94. It is stated that the said OA was dismissed by the /Tribunal on 5.8.94 and the petitioner filed an appeal to the State Government. He was given another posting order on 23.12.94 to work under the control of Deputy Registrar (Dairy), Madurai. The petitioner gave letter on 27.1.95 expressing his willingness to join duty. But, he did not join duty. But filed OA No.2328 of 95 and obtained an interim stay on 13.5.95. The said stay order continued. When the matter came up on 24.2.97, the Tribunal in OA No.2328/95 gave a direction to consider the request of the petitioner to get a posting at Madurai and pass a suitable order during the general transfer to be effected in 1997. Thus, his OA was not disposed of on merits and till date, there is no order of the Tribunal going into the merits of the transfer order and no court has considered any of the transfer order either illegal or non-est in law. Therefore, in the impugned order, the petitioner's claim for treating the period of absence as service with wages was declined and the order stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "In view of above circumstances it is clear that eventhough three postings were given to Thiru M.Natarajan, Cooperative Sub Registrar by the Joint Registrar of Cooperative Societies, Madurai Region then and there, he has failed to join duty and approached the Tamil Nadu Administrative Tribunal each and every time challenging the posting orders issued to him. As the entire fault lies with the individual in not joining the posts issued to him and that no administrative reasons could be attributed for claiming compulsory wait, his request for treating the period of absence from 11.10.94 to 1.8.95 cannot be complied with." 9.The respondents have also filed a reply affidavit, dated 26.9.2000 justifying the denial of treating the period as duty with wages. 10.In the third writ petition, the petitioner Mrs.A.Meharunniza has prayed for setting aside the order dated 10.11.97 in refusing to treat the period from 17.10.96 to 31.5.97 as duty period with wages. This was on the ground that the Tribunal order did not give any direction for payment of wages. In that case, the petitioner was transferred by an order, dated 25.10.96 from Peravurani to Thiruvonam. She filed OA No.6439/96, challenging the said order of transfer. The Tribunal by a final order, dated 19.2.97 allowed the OA. In the opearative portion, it was stated that the transfer order was passed by way of punishment and instead of proceeding against the allegations made against her, the transfer order was resorted to as a punitive measure, which cannot be accepted in law. Therefore, the order of transfer dated 23.10.96 was set aside by a final order dated 19.2.97. The said order was not appealed. But on the contrary it was implemented by an order dated 23.5.97. 11.When the petitioner sent a representation to treat the period as duty period, the same was refused. Therefore she filed OA No.3794/98 for getting the relief. In the reply affidavit filed by the respondent, dated 23.4.99, in paragraph No.8(a), it was averred as follows: "(a)In pursuance of the orders of the above Judgment, she was reposted to Peravurani Block and she joined duty on 2.6.1997. Since no mention was made in the judgment about the regularisation of the period, and there is no provision in Tamil Nadu leave rules, orders were passed rejecting her appeal, with regard to her claim of treating the periods as requested by her as per this office letter Rc.10817/97/K-3 dated 10.11.1997. The above action is in accordance with the procedure in vague." 12.In view of the similar contentions raised in all these three writ petitions, the matters were heard together and a common https://hcservices.ecourts.gov.in/hcservices/ order is passed. The only question that arises for consideration in all these three writ petitons is under what circumstances, when the orders of transfer when intradicted by the tribunal/court either by an interim order or by a final order, the concerned Government servant was eligible to treat the period either as a compulsory wait or as duty period with wages. In ths context, it is necessary to refer to certain decision of the supreme Court which may have a bearing on the issues raised herein. 13.The Supreme Court in Ramesh Chandra Tyagi (Dr) v. Union of India reported in (1994) 2 SCC 416 has held that when a transfer order is held to be illegal the consequent dismissal order will also become non-est in law and an employee is entitled for benefits under law. It is therefore necessary to extract the following passage found in para 7 of the said order, which is as follows: 7. As regards the dismissal of the appellant it is unfortunate that he did not join. The service discipline does not permit such adamant attitude. We do not approve of the conduct of the appellant. At the same time the authorities too did not adopt any reasonable or rational attitude. They were out to squeeze the appellant and were not willing to budge and consider even when the Director of the Pune Institute requested them not to post him there as sending such a person was waste for a man of such high calibre. True, the terms and conditions of appointment provide that he could be transferred anywhere in the country. Yet the action must be fair and order legal. We have avoided entering into fairness but on legality there is no doubt. Such attitude of the administrative set-up is neither healthy nor conducive. In service culture devotion to work and duty is more important than clash of false ego. We are pained to observe that entire proceedings do not leave very happy and satisfactory impression. It was vehemently argued that there was no procedural irregularity. But that is writ large on the face of it. No charge-sheet was served on the appellant. The Enquiry Officer himself stated that the notices sent were returned with endorsement “left without address” and on other occasion, “on repeated visits people in the house that he has gone out and they do not disclose where he has gone. Therefore, it is being returned”. May be that the appellant was avoiding it but avoidance does not mean that it gave a right to Enquiry Officer to proceed ex parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused, was not even proved by examining the postman or any other material to show that it was refusal by the https://hcservices.ecourts.gov.in/hcservices/ appellant who denied on oath such a refusal. No effort was made to serve in any other manner known in law. Under Postal Act and Rules the manner of service is provided. Even service rules take care of it. Not one was resorted to. And from the endorsement it is clear that the envelope containing charge-sheet was returned. In absence of any charge-sheet or any material supplied to the appellant it is difficult to agree that the inquiry did not suffer from any procedural infirmity. No further need be said as the appellant having been removed for not complying with the transfer order and it having been held that it was invalid and non est the order of dismissal falls automatically. 14.Similar view was taken in a recent judgment of the Supreme Court which arose under the Labour Law vide judgment in Novartis India Ltd. v. State of W.B. reported in (2009) 3 SCC 124. In the following passages found in paragraphs 34 and 38, it has been observed as follows: 34. There cannot be any doubt whatsoever that ordinarily an employee who has been transferred should, subject to just exceptions, join at his transferred place. Ordinarily in an industrial undertaking indiscipline should not be encouraged. This Court in SBI v. Anjan Sanyal24 observed that the conduct of an employee in a transfer case is material as he cannot get a premium for his disobedience. There are, however, certain exceptional situations in this case. Admittedly the respondents were challenging the right of the employer to order transfer of the employee particularly when they hold some posts in the association. The dispute was sub judice. They were in their late fiftees. They had served the company for a period of more than 25 years. It is true that they did not join at their transferred posts within a reasonable time. It may also in an ordinary situation be held that seven months is too long a period to join at the transferred place. There cannot furthermore be any doubt that the transfer is an incidence of service. Unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with. ....... 38. The respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been https://hcservices.ecourts.gov.in/hcservices/ conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service." 15.In a particular case where the employee did not join at the transferred place and his action was found to be justified. The Supreme Court granted 50% of the wages for the period that he did not work at the transferred place vide its decision in Raj Bahadur Sharma v. Union of India reported in (1998) 9 SCC 458. Paragraphs 10 to 13 of the said judgment will be usefully extracted below: 10. Learned counsel appearing for the appellant submitted that though it was brought to the notice of the Tribunal that the appellant was not at fault in not joining at the transferred place, without giving any finding on that, the Tribunal has deprived the appellant of the salary for the period in question. He also brought to our notice that there was a specific plea, namely, that the appellant could not join at the transferred place in the absence of relieving order and necessary passes. The respondents never came forward to deny that assertion of the appellant. In other words, while the appellant was prepared to join the duty it was the administration which disabled the appellant to join the duty and, therefore, the appellant cannot be blamed. 11. Learned counsel appearing for the respondents could not deny the position and as a matter of fact, in the counter-affidavit filed instead of directly replying the point it is stated as follows: “That in reply to para 2(ix) it is submitted that there is no material on record to show that the pass etc. were not issued to the petitioner.” There is no plea positively denying the averments of the appellant in para 2(ix) in the appeal. 12. In the circumstances, we hold that the appellant was not at fault in not joining at the transferred place. Therefore, when he was not at fault he cannot be blamed for the consequences entirely. It is also a fact that he did not work factually for the period in question. 13. Taking all these factors into consideration, we are of the view that the ends of justice would be met by directing the respondents to pay 50% of the salary and allowances for the period in question to the legal representatives of the deceased appellant within six months. The appeal https://hcservices.ecourts.gov.in/hcservices/ is accordingly allowed in part with no order as to costs. 16.While coming down heavily upon the High Court in interfering with the orders of transfer, the Supreme Court not only criticized the order of the High Court, but also held that payment of wages for the period in which an employee had disobeyed the order of transfer will depend upon the relevant rules and cannot be decided by the courts vide judgment in State Bank of India v. Anjan Sanyal reported in (2001) 5 SCC 508. Paragraphs 3 to 6 of the said judgment may be usefully extracted below: 3. On appeal being filed before the Division Bench, the performance of the Division Bench was no better. The learned Judges of the Division Bench reaffirmed the conclusion of the learned Single Judge that no formal order of transfer had been issued and served upon the respondent, transferring him from Narkeldanga Branch to the Central Office at Mumbai. The perversity of the approach of the Division Bench is apparent from the fact that the learned Judges did refer to the letter of the respondent dated 19-10-1986 and held that even though the respondent did not deny the existence of the order of transfer, but nowhere he had stated that he had seen or had been served with the order of transfer and there was no admission on the part of the respondent about the existence of the order of transfer. The High Court has totally lost sight of the fact that it was dealing with the legality of an order of transfer of an employee and not dealing with a criminal case, where the conviction had been maintained on the basis of a confessional statement. The further perversity of the Division Bench was that it came to hold that if in fact the respondent had been transferred from Calcutta to Mumbai, in that event, Calcutta office must have lost all control or jurisdiction over the service of the respondent and the respondent should be treated to be an officer under the administrative control of the Central Office, Mumbai, and therefore, the respondent could not have been posted by the Calcutta office temporarily at Muktaram Babu Street Branch of State Bank of India. To say the least, when the employer takes a sympathetic attitude and taking into account the fact that the employee was not going out of Calcutta for the last so many years, even if transferred and a posting is given to the employee, somewhere in Calcutta, that has been considered by the Court to hold that the earlier order of transfer to Mumbai never existed. We also do not find any justification for the Division Bench of the https://hcservices.ecourts.gov.in/hcservices/ Calcutta High Court to go into the question about the admissibility of drawing travelling allowance and daily allowance and then come to a conclusion that things have been dealt with in a cavalier fashion and there was no order of transfer to Mumbai. The Court ultimately came to hold that there is no question of going into the validity of the transfer, which was neither issued nor conveyed to the person concerned and which had no actual or factual existence at all but was only a myth. This conclusion of the Division Bench with utmost respect must be held to be a conclusion on surmises and conjectures and we really fail to understand how the Division Bench of the High Court has come to the aforesaid conclusion, in view of the series of correspondence, which we will refer to later. It is