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2013 Supreme(All) 1924
ALLAHABAD HIGH COURT
Sudhir Agarwal, J.
Om Prakash Yadav -Appellant
Versus
State of U.P. and Others -Respondent
C.M.W.P. No. 42288 of 2013
Decided On : 05-08-2013
Counsel for the Petitioner: Vinod Sinha , Mahesh Sharma.
Counsel for the Respondents: C.S.C.
The necessity of complying with transfer orders and the impact of delay and laches on equitable jurisdiction under Article 226 of the Constitution.
Headnote:
Transfer - Employee Defiance - Acts and Sections: Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433, Mithilesh Singh v. Union of India and Ors. AIR 2003 SC 1724, Tushar D. Bhatt Vs. State of Gujarat and Anr. (2009) 11 SCC 678 - The court discussed the legal provisions related to transfer orders, compliance, and disciplinary actions. The interpretations highlighted the necessity of compliance with transfer orders and the consequences of defiance, including disciplinary action and termination. The court's decision was influenced by the established legal position and previous judgments, emphasizing the importance of complying with transfer orders and the impact of delay and laches on equitable jurisdiction under Article 226 of the Constitution of India.
Fact of the Case:
The employee defied an order of transfer for several years without any authority to do so, leading to his termination from service. The writ petition challenging the termination was filed after an extraordinary delay of eight years.
Finding of the Court:
The court found that the employee's defiance of the transfer order was an admitted fact and that the termination order, challenged after an extraordinary delay, did not justify the exercise of equitable extraordinary jurisdiction under Article 226 of the Constitution.
Issues: Defiance of transfer order, delay and laches in challenging termination order, exercise of equitable extraordinary jurisdiction under Article 226 of the Constitution.
Ratio Decidendi: The court emphasized the necessity of complying with transfer orders, the consequences of defiance, and the impact of delay and laches on equitable jurisdiction under Article 226 of the Constitution.
Final Decision: The writ petition challenging the termination order was dismissed.
1. This is a case where an employee, who was transferred as long back as in May' 1998 could dare to defy order of transfer for years together though there was no authority in the shape of stay order passed by this Court or by the executive authorities.
2. It appears that challenging the order of transfer passed on 29.5.1998, transferring the petitioner from Tube Well Division, Etah, Region Aligarh to Agra, he preferred Civil Misc. Writ Petition No. 33046 of 1998 which was disposed of on 4.10.1998 permitting the petitioner to make a representation and the authorities were directed to decide the same. Admittedly, the order of transfer was neither stayed nor the petitioner was otherwise had any authority not to comply with the order of transfer. The authority concerned rejected petitioner's representation by order dated 5.12.1998. Even till that date, order of transfer was not complied with. The order rejecting representation was challenged in Civil Misc. Writ Petition No. 865 of 1999 which was allowed on 22.11.2001 and the authority concerned was directed to decide petitioner's representation afresh giving reasons. By a detailed order, the representation was rejected vide order dated 23.1.2002, whereagainst petitioner came in third Writ Petition No. 21510 of 2002 which was dismissed on 5.7.2005, whereagainst Special Appeal No. 959 of 2005 was preferred which was also dismissed by order dated 22.8.2005. Even during this entire period, petitioner did not comply with the order of transfer having been passed as long back as on 29.5.1998. Then again petitioner came to this Court in fourth Writ Petition No. 65052 of 2005 seeking a mandamus commanding the respondents to allow him to join at transferred place at Agra. In this writ petition, an explanation was sought by this Court vide order dated 5.10.2005 from authorities concerned as to why no action has been taken against the petitioner for not complying order of transfer passed on 29.5.1998. Ultimately this writ petition was also dismissed on 22.5.2013.
3. The fact remains that the petitioner having not complied with the order of transfer, the competent authority, in the meantime, by order dated 3.10.2005 had terminated him from service.
4. Now this writ petition has been filed challenging this order of termination on the ground of having been passed without holding enquiry and, therefore, vitiated in law.
5. There are at least two major hurdles in petitioner's way. First that the defiance of order of transfer on the part of petitioner is an admitted fact, which has continued for almost six years.
6. In Gujarat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433, this Court had an occasion to examine the case of almost similar nature. This Court observed as under:
"Transfer from one place to another is necessary in public interest and efficiency 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 representation, 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 service as he refused to comply with the order of his transfer from one place to the other."
7. In Mithilesh Singh v. Union of India and Ors. AIR 2003 SC 1724, the settled legal position has been reiterated. The court held that absence fr
