Krishna Deo Pandit v. THE STATE OF BIHAR

petitioner, and Mr. Gyan Prakash Ojha, learned Assistant Counsel to Government Advocate No.7. The petitioner challenges the order dated 29.9.2004 (Annexure-21), passed by the learned disciplinary authority, whereby he has been dismissed from the services of the Bihar Government as temporary clerk.

2. A brief statements of facts essential for the disposal of the writ petition may be indicated. According to the writ petition, he was appointed as Extra-Clerk by order dated 2

28.12.1972 (Annexure-1). He temporary Clerk by order dated 28.11.1995. He Digvijay Bahadur Singh transferred from Buxar to Rohtas at Sasaram in the same capacity by order dated 29.6.2002. Both of them were relieved from Buxar on

15.7.2002 to enable them to join at Sasaram. Instead of joining at the new place, the petitioner raised the issue of his seniority vis-a vis Digvijay Bahadur Singh. In view of refusal to join at the transferred place, the petitioner was served with the charge-sheet. He participated departmental proceeding. On a consideration of the materials on record and the defence set-up by the petitioner, the enquiry officer found the petitioner guilty of defiance of the order of transfer dated 29.6.2002, and he never joined the new place of posting. This was followed by the impugned order of punishment, whereby his services have been dispensed with.

3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the impugned action is arbitrary and discriminatory. He further submits that the impugned order of punishment is inappropriate. 3

4. The learned Government Counsel has supported the impugned action.

5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The admitted position is, and has indeed been found by the learned enquiry officer, that the petitioner was transferred from Buxar to Sasaram on

29.6.2002, and was relieved on 15.7.2002, he never joined the new place of posting. In that view of the matter, we entirely agree with the finding of the learned enquiry officer that the petitioner completely failed to carry out the order of transfer.

6. The learned Government Counsel is right in his submission that this Court is not a court of appeal. The power of interference in a departmental proceeding, in exercise of powers of judicial review, is very limited. This Court has to ensure that a well-formulated charge-sheet was served on the delinquent employee, he was afforded reasonable opportunity to defend his position, the prescribed procedure was followed, the principles of natural justice were observed, and the punishment meted out to him is proportionate to the gravity of the proven 4 charges. No material has been brought to my notice that the respondent authorities has erred in any one of these aspects of the matter. We are, therefore, convinced that the departmental proceeding was concluded in accordance with law.

7. We must now consider the second submission advanced by learned counsel for petitioner, namely, inappropriate punishment has been inflicted on him. As stated hereinabove, the learned enquiry officer has found, and has been upheld by the learned disciplinary authority, that the petitioner never carried out the order of transfer, though he was relieved way back on

15.07.2002. He had instead raised the most irrelevant issues before the authorities relating to his inter-se seniority. In our view, this is a wholly irrelevant issue in so far as compliance of the order of transfer is concerned. The petitioner undoubtedly deserves punishment.

8. The next question is whether or not the order of punishment is appropriate or is disproportionate to the gravity of the proven charges. Learned counsel for the respondent has relied on Alexandre Bouzourou 5 vs. The Ottoman Bank (A.I.R. 1930 Privy Council 118) wherein it has been held that, where from the nature of the contract entered into between a Bank and its servants it is difficult to assume that Bank would willingly agree that their employees should not be bound to serve outside the place where the contract was made except with their consent such a condition of the contract would require to be clearly established. And in the absence of such proof an order or transfer is a lawful order which the servant is bound to obey and his disobedience can be justifiably treated by the Bank as Faute Grave making the servant liable for dismissal. There must be an immediately threatening danger by violence or disease to the person of the servant before an order to remain in the zone of danger can be held to be unlawful and can be disobeyed. (Emphasis added). It is thus evident that the power of transfer is an essential incident of service, unless displaced by the terms and conditions of service. There is no doubt about the legal position that the petitioner was in the services of the Bihar Government and was liable to transfer from one place to 6 another. The Privy Council has clearly held that refusal or failure to carry out a lawful order of transfer can result in dismissal from service. Let no impression be created that holders of civil posts are meant only to enjoy the benefits of salary and perquisite. If such a situation is countenanced or a lenient view is taken, the Government would be in shambles required to manage lakhs of employees. I am convinced that the respondent authorities have meted out appropriate punishment to the petitioner consistent with the gravity of the proven charges.

9. The writ petition is dismissed. S.K.Pathak/ (S K Katriar, J.)