TMI Blog1989 (3) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... and it would cause great inconvenience to him if he was required to join at Ukai. His representation was rejected and he was directed to join at Ukai but he did not do so instead he filed a civil suit at Baroda challenging validity of the order of trans- fer. Meanwhile, the Chief Engineer by his order dated 27th May, 1974 discharged the respondent from service with effect from 31st March, 1974 in accordance with service Regulation No. 113. The respondent challenged the validity of the order of his discharge from service by means of a writ petition under Article 226 of the Constitution before the High Court of Gujarat. A learned Single Judge of the High Court quashed the order of termination on the findings that the order of discharge was issued m violation of the basic principles of natural justice as no opportunity was afforded to the re- spondent before discharging him from services under Regula- tion No. 113. The learned Single Judge granted a declaration in respondent's favour holding the order void and illegal but having regard to recalcitrant attitude of the appellant and his continued conduct of disobedience of the orders of his superior authorities, he refused to grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ede to his request as oral heating had already been completed and the matter had been adjourned only to enable the respondent's counsel to obtain instructions. However, in the interest of justice we permitted the respondent to file written submissions. if any, in support of his case. Thereafter, the case was listed several times but no written submissions were filed instead the respondent adopted an unusual course by sending an application by post expressing his no confidence in us with a prayer to transfer the case to some other Bench. Since this was unusual, uncalled for and unjustified request we ignored the same and reserved the order. We are constrained to note that instead of utilising the opportunity granted to him for filing written submissions the respondent has mis- used adjournments for the purposes of raising frivolous objections for getting the case transferred to some other Bench. No party is entitled to get a case transferred from one Bench to the other, unless the Bench is biased or there are some reasonable grounds for the same, but no right to get a case transferred to any other Bench, can legitimately be claimed merely because the judges express opinion on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to him he was liable to be transferred and posted at any place within the State of Gujarat. The respondent had no legal or statutory right to insist for being posted at one particular place. In fact, during the tenure of his service in the Board the respondent had been transferred from one place to an other place several times. In March, 1974 he was transferred . from Surat to Ukai. The distance between the two places as was stated before us during the hearing of the case is less than 50 kms. He was relieved from his duties at Surat on 30th March, 1974 but he did not join at Ukai till the impugned order of discharge was issued on May 27, 1974. The Chief Engineer who discharged the respondent's services exercised his power under Service Regulation No. 113, which runs as under: 113. The continued absence from duty or overstay, m spite of warning, to return to duty shall render the employee liable to summarily discharge from service without the necessity of proceedings under the Gujarat Electricity Board, Conduct, Discipline and Appeal Procedure. The above Rule provides that if an employee of the Gujarat Electricity Board continues to remain absent from duty or ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sequence of events and the correspondence which ensued between the appellants and the respondent. On March 29, 1974 the Superintending Engineer of the Board issued the order, transferring the respondent from Surat to Ukai, on 30.3.1974 the respondent was relieved from Surat and directed to join his duty at Ukai, but the respondent did not join his duty at the new place of posting. Instead he made a representa- tion to the Additional Chief Engineer on 8.4.1974 after the transfer order. The Transfer order was not stayed and as the respondent did not join his duties, he continued to be absent without sanction of any leave. In this situation the Superintending Engineer by his letter dated 18th April, 1974 directed the respondent to show cause as to why action should not be taken against him for disobeying the order of transfer and also for unautho- rised absence from duty in breach of service Regulation No. 113. The letter is as under: GUJARAT ELECTRICITY BOARD O M DIVISION Nana Varchha Road Surat. Dated 18th April, 1974 To Shri A.S. Pohani Junior Engineer, Ukai 37, Gurunagar Society Near Jakat Naka, Surat-3. Sub: Transfer from Surat to Ukai. You have been relieved on 30. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer and he re- mained absent from duty in an unauthorised manner without obtaining sanction of leave. The aforesaid documents leave no room for any doubt that the respondent was reminded of his failure to join his duties at Ukai and he was further reminded that his unauthorised absence had exposed him to disciplinary action. In fact, the Superintending Engineer had by his letter dated 18th April, 1974 clearly reminded the respondent that his unauthorised absence was in breach of Service Regulation No. 113 and called upon to show cause why action should not be taken against him but in spite of these letters the respondent failed to join his duties. The Division Bench of the High Court has held that since no warning was issued to the respondent action taken under Service Regulation No. 113 was not in accordance with law. This finding is wholly misconceived. A warning need not be in any particular form. The object and purpose of the warn- ing as contemplated by the Regulation,. is to remind the delinquent employee that his continued unauthorised absence from duties was liable to result in discharge of his serv- ice. The substance of the Superintending Engineer's letter dated 18th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsement that the addressee refused to accept the same. In his rejoinder affidavit the respondent denied the afore- said allegations and asserted that the letter was not ten- dered to him and he never refused to accept the registered cover and the postal endorsement was wrong and incorrect. Apart from denying the postal endorsement, the respondent placed no material before the Court in support of his plead- ing. In this view, we are of the opinion that the Division Bench was totally wrong in holding that no opportunity was afforded to the respondent to meet the case set up by the Board that the letter dated 24.4.1974 was served on the respondent. No new plea had been raised by the Board before the Division Bench instead the plea relating to service of the aforesaid letter had already been before the learned Single Judge. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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