^^1^ BEFORE HON'BLE HIGH COURT OF GHHATTISGARH AT BILASPUR fC.G.) W.P. No.J.2S36 /2003 Petitioners / n- ^^ ^^ >^^:> .••*v \'nsr^*' ,..^^ ^" '^^ 1. RAM KISHORE DUBEY S/o Shri Ragholal Dubey aged about 35 years, Upuer Division Clerk. ./' I/ MOTILAL VERMA, S/o Shri Ram Palak Verma, Aged about 50 years Lower Division Clerk. CHINTA RAM SAHU, aged about 40 years, Heluer All employees of Chhattisgarh Adhorachana Vikas Nigam, (Parivahan Vibhag), Shashtri Chowk, Raipur (C.G.) ^ [^^ -^ .-^' F^.^^.,^ ?//>.<'' .*' ^ Respondents '^ ^', s-^ [^ VERSUS ! J^- STATE OF CHHATTISGARH. Through : Secretary, •/ Transport Department, Govt. of Chhattisgarh, Mantralaya, D.K.S. Bhawan, G.E. Road, Raipur (C.G.) ^ -2- 2. Chhattisearh Adhorachana „. Vikas Nigam, (Parivahan Vib'hag) / Shashtri Chowk, Raipur (C.G.) Through : Managing Director Pta ^ k v cx - P-^r^^d ^sl^ ^4~o-^ 3. The-€otf&etGi-^TJtesmr.rC..G.) Cead-' ^r^c-)^GA^: ^ ^ ~^ , LSea S <?r^/-c^/rri^p--^ -T-' ^aic^ UNDER ARTICLES 2^6/2l7 OF THE ^^ CONSTITUTION OF INDIA. BkoDaJ. WRIT PETITION UNDER ARTICLES 2^6/2^7 OF THE °p 'c^ AF^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. No. 1336 of 2003 Petitioner Ram Kishore Dubey & ofhers Versus Resiwndents State of Chhattisgsarh & others Post for order on 1-^ May. 2006. Sd/- Satish K. Agnihotri Judge ^-?^~ --—sm HIGH COURT OP CHHATTISGARH AT BILASPUR W.P. No. 1336 of2003 Petitioner Ram Kishore Dubey & ofhers Versus Respondente State of ChhattisgSLrh & others Sing^e Bench: Hon'ble Mr. Justice Satisli K. AffnUiotei. Shri V. G, Tamaskar, Advocate for tihe petitioner. Shri V. V. S. Moorthy, Deputy Advocate General wifh Smt. Aniu Ahuja, Deputy Govt. Advocate for fhe Respondent No. 1. Shri Ashok Das Vaishaav, Advocate for fhe Respondent No.2. Shri Sanjay Patel, Advocate for the Respondeat No.3. ORDER ( ^^May, 2006) The followiag order offhe Court was passed by Satish K»Agnlliofcri, J< 1. The petitioners, who were employed as Upper Division Clerk, Lower Division Clerk aiid Helper, respectively, wifh the Madhya Pradesh State Road Transport Corporation (MPSRTC), were posted at Bilaspur, witfaia fhe temtorial jurisdiction of fhe State ofChattisgarh, Vide orderdated 13.6.2001(Aimexurc P/6) issue by the Pmaacial Advisor, M.P.S.R.T.C. Head Quarter Habeebgunj, Bhopal fhe pctitioners No. l was toransferred from Bilaspur to Jagdalpur and ^titioner No.2 was transferrcd fix>m Bilaspur to Rajnandgaon. The petitioner No.3 was transferred from Bilaspur to Jagdalpur vide onder dated 12.6.2001 (Annexure P/7) passed by the Assistant Labour and PfcrsonD^el Officer, M.P.S.R.T.C. Head Quarter. Habeebeunj, Bhopal. The petitioners did not comply with fhe aforesaid transfer orders on fhe ground that fhe petitioners werc not paid any trausfer /.. ^ '- .i. allowance, S.A. and arrcars of salaiy. Being aggrieved fhe petitioners ffled a writ petition being W. P. No. 1226/2001 for fhe following rcliefs. a(i) The petitioners pray fhat tfae Honlile Court may be pleased to dircct the rcspondents to take action agaiast fhe delmquent eiiiployees or to accord permission to fhe petitioners. to take legal action agamst fheni, so that fhe law may be viadicated and fhe exploitation of fhe people, at the hauds of unscrupulous eniployees is put to a halt. (ii) Any ofher relief fit aad proper, ia fhe circunistances of fhe case may also be kmdly granted," 2. That Writ Petition No. 1226/2001 was dismissed on 30. 10.2001 for non-prosecution. The petitioa was liiereafter restored vide order dated 5.4.2003 passed in M.C.C.No. 45/2002. Thereafter, fhe petition was again dismissed for non-pxosecutioii on 3.3.2006. The petitioners did not get fhe earUer petition being W.P.No. 12^/2001 restored as yet withm limitation period aiid the same attaiaed finality. 3. The petitioners have filed this petition on 23.4.2003 for fhe foUowiag reliefs:- a(i) That the HonTile Court be pleased to dircct the rcspondents 1 aad 2 to rclease wages offhe pefltioners wifh mterest as detailed m paras 5.2 aad 5.4 of fhe petition by issuing a writ ofniandamus. (ii) That tfaie Hon;ble Coiirt be pleased to issue aay other writ or writs, order or ordei^, direction or dircctions deemed fit ia fhe mterest ofjustice. By aiiiendnient order dated 23.1.2006 the prayer clause 7(ii9, seekiag writ of certiorari for quashiag tiie order dated 5.9.2001 (Annexure R-2/1), was added to fhe petition, as under: "7(ui) That, the Hon'ble Court be pleased to quash Annexure R-2/1 as being fflegal, malicious, without authority aad contemptuous by issuiag a writ of Certiorari wifh all consequeatial beuefits,>? The petitioners have not challenged fhe vaUdity of the transfer orders dated 13.6.2001 (Annexurc P/6) and 12.6.2001 (Annexure P/7). However, ia fhe rejoinder fhe petitioners have questioned the validity of fhe said transfer orders ia fhe averaaeuts wifhout seeking any relief agaiast the said torausfer orders, in titie prayer clause. Leaaied counsel appearmg for fhe petitioners submitted fhat siace the transfer orders were passed by inconipetent oflBcers, tih.us fhe sajGae were void and non-est. It is, tihierefore, not necessary to mipugn fhe same, It was furfher submitted that fhe petitioners were not obUged to coaiply with fhe void and non-est order by going to Jagdalpur aad R^jnaiidgaon, respectively, aad joiamg therein. The petitioners have all fhe tuiie reported at BUaspur aad the petitioners were restramed from workuxg iii fhe Bilaspiir depot by fhe Respondent No.2. The petitioners further submitted fhat accordirig to fhe notification dated 27.12.2002 (Amiexure R-2/2) passed by fhe Ministry of Road, Traasport and High Way. Govt of India. fhe petitioners became employee of fhe respondent No.3 on dissolution offhe original M.P.S^R.T.C. Leamed counsel fdrther submitted fhat fhe petitioners are entifled to entire wages wifh mterest w.e.f, fhe date oftiieir traasfer i.e. 13.6.2001 m case of fhe petitioners No. 1 aiid 2 aad 12.6.2001 m case of fhe petitioner No.3, tiU date as per the calculations made ia para 5.2 ofthe petition. With regard to fhe disinissal of fhe petitioner No.2 froni service by order dated 5.9.2001. learued counsel for fhe petitioner ^^i&'^it^^'. submitted fhat the impugned order dated 5.9.2001 is bad m law, as fhe petitioner No.2 was dismissed frora seryrice on fhe ground fhat fhe petitioiier No.2 had not complied wifh the transfer order dated 13.6.2001. 8. Shri Ashok Das Vaishnav^ leanied counsel appearing for fhe Respondent No.2, on fhe contrary, submitted fhat fhe petitiouers were traasferred by fhe Respondent No.3 M.P.S.R.T.C. The petitioners have neiftier chaUexiged the traasfer order nor compUed wifh fhe orders, hence, the traiisfer orders have attaiaed finaMty aad the petitioners are not entitled to aiiy wages on fhe principle of ^no work no pay?. It was further subniitted fhat fhe respondent No.2 caaie into existence after dissolution of the old M, P. State Road Traasport Corpoiation by notification dated 27,12.2002, issued by fhe Union of India on the provisious of fhe Madhya F>radesh Reorganization Act^ 2000. 9. Even if, the petidouers succeed. fhe respondent No,2 is not Uable to make any payment of back wages etc. It was furfher submitted fhat the petitioner No,2 was rclieved vide order 18.6.2001 to join at fhe transferred place i.e. Rajnandgaon depot. The petitfoner No.2 did not compfy wiffa tiie transfer order and remaiaed contuiuously absent from duty. Thercforc. after holdmg a prclunmaiy enquiry fhe petitioner No.2 was dismissed froni service by order dated 5.9.2001. Accoidmg to the learaed counsel for fhe Respondent No.2, no proper enquiry was necessary as notice was sent to fhe petitioner No.2 by registered post wifh regard to the proposed eaquuy which was not attended to by fhe petitioner No.2. The notice was also r pubUshed m fhe "Daiaik Bhaskai^ newspaper on 31.8.2001. The petitioner No.2 remamed absent throughout aad on tihie basis of fhe documentaxy evidence, fhe petitioner No.2 was dismissed from service. 10. Shri Sanjay Patel, learued counsel appearing for the preseut M.P.S.R.T.C. adopted the siibmissions made by learaed coiuisel appearing for fhe Respondent No.2 and fiirther subinitted fh.at fhe Fiaaacial Advisor at fhe head quarter at Bhopal was fhe competent officer for traiisfemng fhe petitioners No, 1 and 2 ancl the Assistaat Labour aad Persormel Officer at fhe head quarter at Bhopal was conipetent officer for traasferring the petitioner No.3. The subsiission on behalf of tiie respondent No.3 remauied unsubstaatiated by fhe docuiaents. On fhe contrary, learaed counsel appearing for fhe petitioners has produced a docunient namely fhe order issued by the Managing Director wifh regard to fhe admiaistrative control of fhe employees, wherein it was clearly provided that fhe administrative coutrol would vest ia Maaaging Director at fhe head quarter, m Deputy General Man^ager (Yata)/Divisional Maaager at the divisional head quarter, and in fhe depot this would rcmain wifh fhe Senior Depot Manager/Depot Manager for fhe control aad adniinistrative action agabist fhe officers and einployees, 11. After haviag heard learned coiinsel for the parties and haviag perused fhe writ petition, retum and fhe documents appended fhereto, it is cleariy established that the petitioners have fhemselves decided ftiat the transfer orders dated 13.6.2001 and 12.6.2001 are void aad accordingly fhey did not proceed to s.£^fe»iai5" 12. 6 jom at fhe new place of posting at Jagdalpur and Rajnandgaon. The avemients made by the petitioners fhat fhe traiisfer orders could not be compUed wifh by the petitioners on account of the fact that fhe petitioners were not paid T.A., S.A, and arrcare of salary ia advance, is frivolous and caiiuot be countenanced on the simple ground that the financial claims ofT.A., S.A. aad arrears of salary is not a pre-condition to comply with the transfer orders. The petitioners could have claiaied the above stated amounts after joinmg the new place of posting. I have carcfuUy gone fhrough fhe order dated 2.9,1999 (Annexure P/8) passed by fhe Maaaging Director -Respoadent No.2 which provides for admiaistrative control witii certaia officers nainefy at head quarter level, fhe Managiag Director was held as competent officer as controUioig and discipliiiaiy authority, at divisional level, the Deputy Genexal Manager (yata) aad Divisional Maaa^er and at depot. level Seaior Depot Maaager/Depot Maaager were held conipetent ofiBcers for limited piirpose ofcontrol aad administratlve action, In fhe case at hand, fhe petitioners were transferred from one division to otlier division and in fhat event neither fhe Deputy Geaeral Mariagei^yata)-Divisional Manager nor fhe Senior Depot Manager/Depot Manager can be held coinpetent officers. The head quarter alone appears to be the competent office for traasfemng employees workiag ia one division to aiiother division. Even othenyise the order dated 2.9.1999 (Annexure P/8) does not seeni to be fhe proper order to determine as to who is fhe coiapetent aufhority for traasferring aa ofEicer/eraployee froia one division to ofher division. Hence, ^3'7:> the submission of fhe petitioner fhat fhe orders were void and aoa-est, is not accepted. It is weU estabUshed pnnciple of law that even a void oider needs to be set-aside by a superior aufhority or superior Court, The petitioners, having not challenged fhe traasfer orders on fhe ground the saiae are void and non-est cannot be relieved from fhe responsibility of obeyiag fhe traasfer orders passed by fhe senior ofi&cera ofhead quarter at Bhopal. 13. The reliance of fhe learaed counsel for fhe petitioner io^ the decision of fhe Suprcme Court ia fhe case of Dc. Ramesh Chandra Tyagi Vs. Union of India & others ( (1994) 2 S.C.C. 416} is not appUcable to the facts of fhe present case as in the case of Dr. Ramesh Chaadra Tyagl (supra) fhe petitfoner had chatlenged fhe traasfer order aiid the saine was declared as void aad non-est in fhe eyes of law by fhe Court. In fhe present case fhe petitioners have not challenged fhe transfer orders and took fhe said orders as void and non-est ou fheir own. 14. In fhe case of Rafique Bibi (dead) by LRS. Vs. Sayed WaMuddin (ead) by LRS. And otfaers {(2004) 1 S.C.C. 287} the Suprenie Court in para 8 observed as under- <"8. A distiaction exists between a decree passed by a court haviag no jurisdiction aad consequentiy being a nuUity aiid not executable and a decree of fhe court which is merelv fllegal or not passed ia accordance wifh the procedure laid down by law. A decree sufferiag froxn iUegalily or irregularily or procedure, caanot be tenned iiiexecutable by fhe executing court; fhe remedy of a person aggrieved by such a decrce is to have it set aside ia a duly constittited legal proceedings or by a superior court failing which he must obey fhe coinniaad of fhe decree, A decree passed by a court of competent jurisdiction caiinot be denuded of its efiicacy by aay coUateral attack or ia icicidental proceeduigs.^ 15. The Suprcme Court m fhe case of Balvant N. Viswamitra & others Vs. Yadav Sadashiv Mule (dead) tlurou^h LRS. & others { (2004) 8 S.C.C. 706} has observed in paragraphs 9 aad 20 as under:- "9, The niam question which arises for our consideration is whefher fhe decrce passed by the trial court cac. be "nuIP and avoid*>. In our opiaion, fhe law on the point is weU settted. The distmction between a decree which is void and a decree which is wrong, iacorrect, irregular or not in accordaace wifh law caanot be overlooked or ignored. Wherc a court lacks iahercnt jurisdiction ia passing a decree or Diakmg aii order, a decrce or order passed by such court would be wifhout jurisdiction, non est aiid void ab mitio. A defect of jurisdiction of fhe court goes to fhe root of the matter and strikes at fhe veiy aufhorily of the court to pass a decree or make an order. Such defect has ahvays been treated as basic aiid fandaniental aad a decrce or order passed by a court or an aufhority haviag no jurisdiction is a nuBily. VaUdity of such decree or order can be challenged at aiiy stage, even in execution or coUateral proceediags.^ a20. In our considercd opinion, such a decrce, by no stretch of imagmation. ca& be described a nuIUty- If fhe decree is not niiU aad void, as per settled law. appropriate procecdings will have to be taken by the persons aggrieved by such decree." 16. In regard to fhe dismissal offhe petitioner No.2 vide order dated 5.9.2001 (Annexurc R-2/1), it cannot be held tfaat the mipugned order dated 5.9,2001 dismissmg the petitioner fix>m service is bad m law. On perusal of tihe order dated 5.9.2001 it is clear fhat fhe petitioner No.2 was given pro^r notice by registered post at his official address and fhereafter by pubUcation ia tiie newspaper on 31.8.2001. The petitioner No.2, it appears, has deUberatefy neifher fUed any reply, nor paitlcipated ia fhe enquiry, fhus fhe petitioner caanot be peraaitted to argue fhat the order was passed without afFordiag proper opportunity of heariug, It is weU setfled pnnciple of law that if fhe delmquent eniployee fafls to submit his reply despite fhe notice and farther faUs to participate ia fhe departmental proceedmgs after the notice, fhe enquiry cannot be held as bad ou the ground of beiag ex-parte or wifhout affording aa opportunity of hearing. Heiice, fhe inipugned order dated 5.9.2001 whereby fhe services offhe petitioner No.2 has been dismissed, is legal and valid and no iaterference with the saoie is warraiited. 17. For the reasons stated above fhis petition is dismissed. No order as to costs. Sd/- Satish K. Agnihotri Judge Thakur