L RAGUPATHY Vs. ADDITIONAL COMMISSIONER FOR WORKMENS COMPENSATION

JUDGEMENT

(1.) THIS writ appeal has been preferred by the petitioner in W.P. No. 5896 of 1980, aggrieved by the dismissal of the same by the learned single Judge of this Court. The respondents in the writ petition are the respondents herein. To appreciate the grievances of the appellant, it is necessary to broadly set forth the facts leading to the appellant filing the writ petition, though we may refer to the relevant factual aspects in detail as and when occasion therefor arises, while dealing with the points aroused in the writ appeal. While the appellant was serving in Wig India, Madras, a unit of the second-respondent, he was visited with an order on 31st August, 1968, issued by the Manager, Wig India, Madras, transferring him from Madras to the Head Office of the second-respondent at New Delhi. The fact remains that the appellant did not comply with this order of transfer, though he was relieved from Wig India, Madras, and further he drew the travelling allowances. The appellant was accorded the leave facilities upto the end of April, 1969, and thereafter his failure to comply with the order of transfer was counted as absence without leave. Ultimately, on 19th February, 1971, the appellant was given the articles of charges as follows :

(2.) THE first point urged by Mr. V. M. Lenin, learned counsel for the appellant, is that the order of transfer itself was passed by an authority not competent to pass the same and hence there was no obligation on the part of the appellant to obey such an order and on account of the disobedience of that order, there could not be levelling of charges as done in the case against the appellant and he could not be penalised on the basis of those charges. That the Manager, Wig India, Madras, was not the authority competent to pass the order is not being disputed before us by the second-respondent. For a servant of the second-respondent of a cadre like that of the appellant, the order of transfer could be passed only by the Divisional Manager (Administration). Headquarters at New Delhi. Certain documents were pressed into service by the second-respondent before the learned single Judge and before us in this writ appeal to say that the order of transfer did have the sanction of the competent authority. Two letters-one dated 24th August, 1968 and the other dated 29th August 1968 are being relied on by the second-respondent in this behalf. THE letter dated 24th August, 1968 runs as follows :'THE STATE TRADING CORPORATION OF INDIA LIMITED (WIG INDIA) 60, Industrial Estate, Ambattur Madras - 58 Ref : STC/MS/WI/M/68 N. Vaidyanathan, Manager, Dear Shri Bhanot, We have been operating one post of Section Officer in this Office against the post of Labour Officer in the scale of Rs. 400-950 sanctioned for Wig India in terms of Office Order No. Estt/179/68 dated 27th March, 1968 but which has remained unfilled. Since, in view of the exigencies of work in the factory, it has been decided to fill this post immediately. One of the Section Officers in this establishment will be thereby rendered surplus in relation to the sanctioned posts of Section Officers. It is accordingly proposed to transfer Shri L. Raghupathy a Section Officer now working in Wig India, to the Head Office. During the recent visit of Director Shri Fernandes to Madras, this subject was discussed by G. M. Shri Joseph and the proposal for transfer of Shri. L. Raghupathy was agreed to by the Director. We shall be grateful if necessary orders are issued immediately. With kind regards, Yours Sincerely, (Sd.) N. Vaidyanathan Shri K. N. Bhanot, Joint Divisional Manager (Admn) State Trading Corporation of India Ltd., New Delhi. 1'. THE letter dated 29th August, 1968 runs as follows : R. Sahai, Deputy Divisional Manager (E) 29th August, 1968. No. STC/A-11 (15)/68-Estt. Dear Shri Vaidyanathan, Please refer to your confidential D.O. No. STC/Ms/WI/M/'68 dated the 24th August, 1968 to Shri Bhanot. THE transfer of Shri L. Raghupathy to Headquarters has been approved with immediate effect. You may kindly issue necessary orders under advice to us and ask Shri Raghupathy to report here immediately after availing usual joining time. Formal orders from Headquarters will issue as soon as the reports here.With regards, Yours sincerely (B. Sahai) Shri N. Vaidyanathan, Manager, Wig India, Madras.' THEse letters could not be a substitute for an order of transfer being passed by the competent authority, namely, the Divisional Manager (Administration), Headquarters, New Delhi, which never happened in this case. From neither of these two letters, it is possible to spell out that a regular order of transfer of the appellant was passed by the competent authority and the process of implementation of the same alone was done by others. No regular order of transfer of the appellant passed by the competent authority has seen the light of the day. This aspect was, in fact, taken note of by the enquiry officer in the domestic enquiry, though he would opine that the appellant ought to have complied with the subsequent instructions issued by the office to report for duty after the expiry of the sanctioned leave with the end of April 1969. THE first-respondent, however, was of the view that even assuming that the order of transfer was irregular, the appellant, as per the Service Conditions could be transferred any where in India and further there was a decline to vary or revise the order of transfer by the higher in the hierarchy of administration, even though the appellant agitated for the same. In this view, the first-respondent did not countenance the pleas put forth by the appellant, attacking the order of transfer. THE learned single Judge adverted to the two letters, extracted above, and further adverted to the opinion of the first respondent over those two letters and approved of the same. As already expressed by us, these two letters cannot be a substitute for an order of transfer being passed by the authority, who alone was competent to pass the order of transfer. THE lacuna in this behalf cannot be set at right by placing reliance on these two letters. Hence, there is force in the contention put forth by the learned counsel for the appellant, that the order of transfer was not passed by an authority competent to pass the same and the infirmity which it suffered did not stand cured by the circumstances pleaded by the second respondent.

(3.) TO get over this result, Mr. M. R. Narayanaswami, learned counsel for the second-respondent, would advance a theory of acquiescience. He would state that the appellant accepted the order of transfer, without any murmur, at the initial stage and he cannot be allowed to go back over the same and project a line of protest at the subsequent stage. The features pressed forth by the learned counsel for the second-respondent to buttress the theory of acquiescence are : The appellant himself wanted the relieving order by making a request therefor and further requested the grant of travelling allowances and only wanted to go on leave on account of certain personal difficulties experienced by him.