THROUGH the judgement of the case – The Deputy Commissioner of Police Wireless Division, Mumbai v. Shri Sanjay Govind Parab, delivered on September 6, 2024, Justice Atul S. Chandurkar and Justice Rajesh S. Patil, at the Bombay High Court have held that the Maharashtra Administrative Tribunal has committed a grave error in holding the respondent –employee Police Head Constable Sanjay Govind Parab entitled to pay and allowances for the period of his unauthorised absence by treating his order of transfer, which was set aside to be non-est and allowed the writ petition filed by the employer-Department after setting aside the Tribunal’s decision in the O.A. No. 493 of 2021. Striking note of caution, the HC has emphasised that it is also necessary to bear in mind that permitting an employee to disregard order of his transfer despite having failed to obtain any interim relief from the Tribunal would result in serious consequences. Having approached the Tribunal for getting the transfer order quashed and having failed to obtain any interim relief, such employee having disregarded the order of transfer cannot seek pay and allowances for the period of his unauthorised absence.

 

Rule 29 of the Maharashtra Civil Services (General Conditions of service) Rules, 1981 treats such willful absence from duty as misbehaviour. His joining at the place of transfer would have been subject to final outcome of the proceedings. However, granting him the benefit of pay and allowances for the period of his unauthorised absence would amount to granting premium for such conduct of disobedience of the order passed by the Tribunal. At the outset, the HC has noted that the respondent is holding the post of police Head Constable (Wireless) and is the member of the disciplined force. Being aggrieved by his order of transfer (of May 30, 2019), he had challenged the said order by approaching the Tribunal and had prayed for interim relief. The Tribunal had refused to grant any interim relief by its order of June 12, 2019. The respondent-employee did not choose to challenge that order any further. On the contrary he preferred to remain absent from duty without permission. His absence continued for 271 days, till his Original Application was allowed on January 20, 2020.

 

In this regard, the HC has referred to the observations made by the Supreme Court in the decision of the case - S.C. Saxena v. Union of India and others – (2006) 9 SCC 583, that a Government servant cannot disobey a transfer order by not reporting at the place of new posting and then going to a Court to ventilate his grievances. It is his duty to report for work first at the place of transfer and make a representation, in case he has any problem. It was further observed that the tendency of not reporting at the place of transfer and indulging in litigation was required to be curbed. In the HC’s view, there was no justification whatsoever on the part of the respondent-employee for not complying with the order of transfer even after his prayer for interim relief was refused by the Tribunal.

 

The respondent chose, at his own will, to defy the order of transfer and preferred to remain absent. His conduct reveals scant regard for the due process of law, especially, when he himself had approached the Tribunal for challenging the order of transfer. This conduct of the respondent of failing to report for duty at the place of transfer even after being denied interim relief deserves to be deprecated. The Tribunal has further held that the Tribunal was not justified in ignoring the observations made in the earlier order of January 20, 2020. In paragraphs 14 and 15 of the order, the Tribunal itself had recorded a finding that the respondent was overdue for transfer and there was no material on record to hold that the transfer order of May 30, 2019 was punitive in nature. Rather, it observed that it could not be said that on the basis of an unsubstantiated complaint he had been transferred. This indicates that the respondent inany event, was eligible for being transferred and it is only on account of nonconstitution of Police EstablishmentBoard that compelled the Tribunal tointerfere with the order of transfer.

 

Byfailing to notice these aspects whichwere recorded in its earlier order of January 20, 2020, the Tribunal misdirected itself and proceeded to grant relief to the respondent. Another aspect that has weighed withthe Tribunal is reference made to Rule29 of the Rules of 1981, in the order of April 22, 2021, by which the respondentwas denied pay and allowances for theperiod of his absence. It is to be notedthat the relevant Rule applicable is Rule29 of the Rules of 1981. It is on this basis,that the respondent was denied payment of pay and allowances for the period of his absence. It is well settled that incorrect reference to a provision of law under whichthe impugned action is taken would not invalidate such action for this reason, if the authority taking such action otherwise has jurisdiction to do so. Reference has been also made by theHigh Court to the decision in the case– N. Mani v. Sangeetha Theatre & others -(2004) 12 SCC 278. Instead of referring to Rule 29 of theMaharashtra Civil Services (J oiningTime, Foreign Service and PaymentsDuring Suspension, dismissal andRemoval) Rules, 1981, the said authority has referred to Rules of 1981, relating to the aspects of M.C.S. General Conditions of Service Rules. As the petitioner-D.C.P. has the necessary authority to deny pay and allowances to therespondent for the period of his unauthorised absence, incorrect mention of an inapplicable provision would not invalidate the order. The Bombay High Court has allowedthe Department’s writ petition, quashing and setting aside the M.A.T.’s decision of May 2, 2022 delivered in favourof the respondent-employee on variousgrounds.