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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.I.CHAGLA, ADVAIT M. SETHNA, JJ.
G.N.Mohanty - Appellant
Vs.
Union of India - Respondent
Writ Petition No. 2879 of 2023
Decided On : 02-04-2026
| Table of Content |
|---|
| 1. petition challenges order denying salary for absence during transfer dispute (Para 1 , 2 , 3) |
| 2. transfer ordered; representations rejected, relieving issued (Para 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 3. prior writ; grc cancels transfer, rejects salary as dies non (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 4. absence period is joining time under aai manual post-cancellation (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36) |
| 5. unauthorized absence treated as dies non, no work no pay (Para 37 , 38 , 39 , 40 , 41 , 42) |
| 6. employee must join transfer; cannot benefit from own wrong (Para 43 , 44 , 45) |
| 7. aai manual joining time requires actual joining new post (Para 46 , 47) |
| 8. unauthorized absence breaks service, forfeits pay and benefits (Para 48 , 49 , 50 , 51 , 52) |
| 9. fr 17 prevails; denies pay for unauthorized absence (Para 53 , 54) |
| 10. dies non not punishment; upholds no work no pay (Para 55) |
| 11. no salary despite transfer cancellation if unauthorized absence (Para 56 , 57 , 58) |
| 12. impugned order upheld; petition dismissed no interference (Para 59 , 60 , 61 , 62 , 63) |
JUDGMENT :
R. I. CHAGLA AND ADVAIT M. SETHNA, JJ.
1. Rule. The Rule is made returnable forthwith with the consent of the parties.
2. The Petitioner has preferred this petition under Article 226 of the Constitution of India. The substantive relief being to quash and set aside the Order dated 18 August 2023 (“Impugned Order” for short) by allowing the representation of the Petitioner dated 18 May 2023 by directing the Respondents to treat the period from 3 December 2016 to 18 September 2017 as the duty period for payment of such salary/pay and allowances along with accrued interest at 9% p.a. for the said period.
3. The succinct issue that arises for determination in these proceedings is as to whether the Petitioner is entitled to salary, pay /allowances for the period between 3 December 2016 to 18 September 2017 attributable to the Petitioner’s absence from duty, from issuance of the Relieving Order dated 2 December 2016, after which the Petitioner’s transfer order stood cancelled on 17 August 2017. This is to be tested on the touchstone of the order passed by Respondent No.2 – AAI on 18 August 2023 which is assailed by the Petitioner.
Factual Matrix:-
4. The Petitioner was initially appointed in the service of Air Traffic Control (ATC), in the year 1986 on the post of Aerodrome Assistant.
5. Vide a transfer order dated 29 March 2016 issued by Respondent No.2 – Airports Authority of India (“AAI” for short). The Petitioner was transferred from Mumbai to Bhubaneshwar, by way of a routine transfer with several other persons, his name being at Sr. No.16 of the said list.
6. Pursuant to the above, the Respondent No.2 – AAI received representations from the persons transferred, including the Petitioners, requesting for amendment to the transfer order dated 29 March 2016. In this regard, the Respondent No.2 – AAI issued a communication dated 13 May 2016, referring to the transfer order dated 29 March 2016. By the said communication, the Respondent No.2 – AAI clearly stated that request from certain persons – AGMs/ SMs were considered but not acceded to, which included the name of the Petitioner at Sr. No.15 of the said list.
7. The Petitioner aggrieved by the above transfer order made a grievance application dated 16 May 2016, addressed to the Respondent No.2 – AAI, GRC.
8. By communication dated 22 November 2016 the grievance application of the Petitioner dated 16 May 2016 was rejected and the Petitioner was directed to report to his new place of posting at Bhubaneshwar and the matter was treated as closed.
9. The Petitioner made another representation dated 1 December 2016 through the proper channel addressed to the Chairman of the Respondent No.2 – AAI inter alia calling upon the said Authority to cancel the said communication dated 22 November 2016.
10. The Respondent No.2 – AAI issued a Memorandum dated 2 December 2016, with the su
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The importance of providing an opportunity of hearing to the employee/petitioner before passing any adverse order, as mandated by the principles of natural justice.
Court affirmed 'No Work No Pay' applies where absence is unauthorized and justified by inquiry findings.
An employee's unauthorized absence from duty, despite a challenged transfer order, does not entitle them to pay and allowances.
In cases of wrongful/illegal termination or transfer, the employee is entitled to reinstatement with continuity of service and backwages. The 'no work no pay' principle does not apply in cases of ill....
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