S2 , um...” «wow» $§a§§€$ Egmw k @ IN THE HIGH COURT OF CHHATTIS ARH AT BILASPUR. \ WRIT PETITION No. é 2$5 OF 2005 C. Dés s/o Late M. S. Das, aged about 4 1 years, Occu ation ~Service, Posted as Constable RPF South Eastern Central Railway Bilaspur C.G. PETITIONER .. “www.mun VERSUS n' Ian-mm 1. Union of India, Through the secretary, Ministry of Railway New Delhi . ...—mm. mun-Mt 2. The Chief Security Commissioner RPF South Eastern Central Railway Bilaspur C.G. m—wvm Ann-W. 3. The Divisional Security u, Commissioner, RPF‘ South Eastern Central Railway Bilaspur C.G. WRIT PETITIQN UNDER ARTICLE 2g6/227 OF THE \ CONSTITUTION OF-INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUSICERTIORARI ETC. OR DIRECTION (ORDER IN THE LIKE NATURE ETC. » OF CHHATTfSGARH AT BILASPUR $ingia Bench z Hon’bie Shri SR Nayak, C.J. W Writ Petition No. 605 of 2W5 C. Das, son of Late MS. Das, aged about 41 years, Occupation- $erv§ce, Posted as Constabie, R.P.F., S.E.C.R., Biiaspur (Chhamsgarh). Versus 1. Union cf India, Through : The Secretary, Mimstry of Raiiway, New Delhi. 2. The Chief Security Commissioner, R.P.F., Scuih Eastern Central Raiiway, Biiaspur (Chhattisgarh). 3. The Givisionai Security Commiseioner, R.P.F., 30am Eastern Centrai Raiiway, Biiaspur (chhetiisgarh). W Writ Peiition No. 6245 of 2095 PETiiiONER C. Das, son of Late M.$. Des, aged about 41 years, Occupationn Service, Posted as Constabie, RFF, South Eastern Centrai Raiiway, Biiaspur (Shhattisgerh), Versus 1. Union of india, RE$PONDEN?S Through The Secretary, Ministry of Raiiway, New Deihi. 2. The Chief $ecurity Commissioner, RPF South Eastern Centrai Raiiway, Biiaspur (Chhattisgarh). 3. The Divisionai Security Cemmiseioher, RPF, South Eastern Centrai Raiiway, Biiaspur {Chhattisgarh}. Present :- ShriRakesh Pandey, ieamed Counsei for the petitioner. Ms. Yoshita M, iearneo counsei for respondent No.1. , iearned Shri PS. counsei Koshy, for Advocate respondents With Shri No.2 Vinod & 3 Deshmukh, HIGH COURT PETWIONER RESPONDENTS ORAL ORDER (6m Gatober, 200$) Both these writ petitions were clubbed, heard them together and they are being disposed of by this common order. {2) The facts of the case, in brief: are as foiiows : The petitioner —- C.Das, white sewing as Constable in the Raiiway Protection Force (for short "RPF"), Pendra, vide order dated 23-08-20G3 marked as Annexure — P/21 produced in wrtt petition No.605 of 2005, was attached temporarily at DSC/RPF/R/CoyIBSP at Biiaspur. When the matter atood thus, the Divisionai Security Commissioner, RPF, S.E.C. Raiiwav, Bilaspur, vide his communication dated 12-10-2004 marked as Annexure-PH, ordered the petitioner to report back to his originai place at Pendra with immediate effect. The petitioner did not obey that direction of the Divisional Security Commissioner, RPF. On the other hand. the petitioner preferred writ petition No.471 7 of 2004 in this Court against the above order (Annexure-PH). ln that writ petition, this Court did not grant any relief to the petitioner and while dismissing the writ petition on 03-01-2005, the Court permitted the petitioner to make an appropriate representation to the authorities. lt appears that accordingly the petitioner made a representation to the authorities to retain him at Biiaspur, but, that representation was rejected by the respondents by order dated 09-02-2005. Feeling aggrieved by the said rejection, the petitioner has preferred writ petition No. 605 of 2005. At this stage itseif, it needs to be noticed that the petitioner did not report for duty at Pendra as directed by the Divisionai Security Commissioner, RPF, vide his letter dated 12-10-2004. Even after his representation was rejected by the respondents on 09-02-2005, he did not comply with the direction. ‘ (3) In the above circumstances, the respondent - Discipiinary Authority issued a charge memo dated 10-05-2005 to the petitioner. As the petitioner was not sewing in the Department as on that date, the charge memo was sought to be served in person by the officials of the department. but, the petitioner refused to receive the same. In the circumstance, the cfficiais pasted the charge memo at the door of the petitioner. The Discipiinary Authority appointed an Enquiry Officer to conduct departmentai enquiry. The Enquiry Otticer aiso sought to serve notices of enquiry dated 05-06-2005, 09-06-2005, 1106-2005, 1 8-06-2005 and 01 -08-2005 on the petitioner, but, the petitioner refused to receive all those notices. However! those notices were pasted on the door of the petitioner. The Enquiry Officer having conducted the enquiry submitted his report finding the petitioner guilty of misconduct alleged against him in the charge memo dated 10-05-2005. The Discipiinary Authority having concurred with the finding of the Enquiry Officer and having opined that the conduct of the petitioner was biarneworthy and not conducive to the pubiic service, by its order dated 28-10-2005 removed the petitioner from service as a disciplinary measure. The petitioner feeling aggrieved by the said action of the Disciplinary Authority has preferred writ petition No.6245 of 2005. (4} l have heard iearned counsel for the parties. (5) Learned counsel for the petitioner would submit that there are certain circulars issued by the department itseif which would show that ordinariiy the spouses should be allowed to serve at the same place, and in the instant case the wife of the petitioner, at the relevant point of time, was serving in Biiaspur and therefore, there was no iustification for the Divisional Security Commissioner, RPF, to re-transfer the petitioner to ,Pendra. Assailing the disciplinary action taken against the petitioner, learned counsei for the petitioner would submit that the enquiry was \‘conducted by the Enquiry Officer behind the back of the petitioner and the petitioner was denied fair opportunity of being heard before the impugned .e/n. Vi action was taken. On the other hand, learned counsei for the Railways, , with reference to the originai records of the discipiinary pvoceedings, wouid contend that the petitioner is guilty of grave form of misconduct and there was absoluteiy no justification for the petitioner to absent himseit from duties in total disobedience of the lawful order issued by the Divisionai Security Commissioner, RPF. it was pointed out that under Annexure—PIZ the petitioner was not transferred from Pendra to Biiaspur, but, he was merely attached to DSCIRPF/R/CoyIBSP that too, on temporary basis and that that order was withdrawn and the petitioner was‘ ordered to return to his original place of posting at Pendra. it was contended that the disobedience of the lawful order issued by the competent authority with impunity and arrogance is a grave form of misconduct and in the circumstance, the penaity imposed by the Disciplinary Authority is quite proportionate to the gravity of the misconduct committed by the petitioner. (6) Having heard learned counsel for the parties, a short question that arises for decision is whether the orders impugned in the writ petitions are vitiated on any permissible legal ground. (7) Annexure-P/2, unmistakably wouid show that the petitioner while sewing at Pendra was directed to serve at the unit in Bilaspur temporariiv. Annexure-P/2 is not transfer order. AnnexureP/t dated 12-1 0-2004 wouid also refiect that position. There is no need for me to diiate on this aspect further. Suffice it to state that even construing Annexure-PIZ dated 23-08-2003 as the transfer order, it is nobody's case that the authority which passed Annexure-Pi2 had no authority to transfer the petitioner from Pendra to Biiaspur. Similarly, it is nobody’s case that Divisional Security Commissioner had no legal authority to direct the petitioner to go back and report at Pendra with immediate effect. if Annexures-P/Z and P11 are iawfui orders issued by the competent authorities of the Railways, it is trite, the petitioner was under the iegal obiigation to obey those lawful orders. it is unnecessary to emphasize that disobedience of iawful orders of superiors made in public interest is a grave form of misconduct. It is not that the petitioner was prevented from compiying with the lawful orders under any extraordinary or compeliing unavoidable circumstance. On the other hand, as the records discioseispeak and what learned counsel for the petitioner would teil the Court is that since the petitioner’s wife was sewing at Bilaspur, the petitioner did not obey the order Annexure—Pl’i. Unauthorized absence, disobedience of iawtui orders with impunity and arrogance cannot lightiy be viewed. Mispiaced sympathy on the part of the Court wouid induce indiscipline in the administration of the Railways. ln recent times, the Apex Court deaiing with unauthorized absences of employees has expressed its strong disapproval of the orders passed by High Courts treating unauthorized absence as a trivial misconduct. in this case, the conduct of the petitioner was highiy objectionable and unbecoming of a public servant. No exception couid be taken to the rejection of the representation of the petitioner vide order dated 09-02-2605. i ti- (8) See the arrogance and disobedience of the petitioner even after his representation was rejected on 09-02—2005; he did not think it proper to go back and report at Pendra, he again with impunity absented himseif unauthorisediy from duty for months. The department too waited for neariy three months even after rejection of the representation before issuing charge memo dated 10-05-2005. The records would disclose that, in the interregnum, the department sent several reminders to the petitioner to resume for duty forthwith and aii those advices and directions went in vain. (9) This takes us to the discipiinary action taken by the department. There is no substance in the submission of learned counsel for the z petitioner. it is true that the affected should be appraised is a constitutional 1 l creed flowing from Article 14 of the Constitution of india‘ Uniess the affected is appraised, there is no compiiance of principles of natural justice and rair play in actron. The question is whether the affected is appraised or not. What the law requires is that the affected person should be given a fair opportunity and if such an opportunity is given and the affected person does not make use of the opportunity, it shouid not lie in the mouth of the affected person to contend that some adverse order is passed against him without hearing. Here is a case where opportunity was sought to be given at every stage to the petitioner in the matter of sewing the charge memo, conducting the enquiry on various dates, but, the petitioner, for the reasons best known to him, evaded the notices and absented himself from participating in the enquiry. if the petitioner himseif is guilty of evading opportunity of hearing at his perii, it should not tie in his moth to contend before this Court that the impugned order of the Discipiinary Authority was made behind his back and without hearing. (10) Merely because there are circuiars issued by the Railway Administration that ordinarily married employed couple should be aiiowed to stay at one place, on the basis of such circulars no empioyee of the Railways could insist that, as a matter of right, that norm should be adhered to in all circumstances and exigencies. it is weii settled that the administrative instructions issued by public authorities governing transfers and postings can be departed by the authorities in administrative exigencies and public interest. Personal hardship that may be caused to an employee on account of a transfer from one place to another is not a justification for an employee to disobey the lawful transfer order of the competent authorities. Transfer or posting is an incident of service. Who shouid work where is the prerogative of the employer to decide. The employees cannot dictate terms as to where they shouid serve. V' \‘q rae“ . (11) The pena1ty imposed on the petitioner deiinquen: as a discipiinaw measure, in the facts and circumstances of this case and having regard to the gravity of misconduct committed by the petitioner, couid not be regarded as the one that is disproportionate. in that of the View of the matter, there is no scope for applying the Wednesbury ruie of reasonabieness. Both the writ petitions are devoid of merit and they are accordingly dismissed. No costs. x , . ... ‘ Sd/-f Chief Justice - i‘ dbWfi ‘xae.