Pendency Of Complaint Against Transfer Does Not Justify Govt Employee's Failure To Join Place Of Posting, Absence From Duty: MP High Court

In a recent judgement, the Madhya Pradesh High Court set aside a decision of a single judge bench that had validated the absence of a government employee from duty while a complaint against his transfer was pending before the authority.

The division bench of the Madhya Pradesh High Court held that remaining absent from duty citing a pending complaint as a reason for the absence, is not a reasonable excuse and the employee is not entitled to salary for the said period according to “no work, no pay” principle.

The division bench of Justice Sushrut Arvind Dharmadhikari and Justice Anuradha Shukla, reversed the order of a Single Judge bench that had ruled in the favour of the respondent acknowledging the absence of the respondent from duty as reasonable stating that he was being harassed by a superior authority.

The respondent was transferred to Government Higher Secondary School, Khedicourt but he did not join his duty at the place of transfer. The said transfer was challenged by him before the High Court wherein the appellants were directed to take a decision. While the appellants maintained the order of transfer, they modified the place of transfer to Government Middle School, Goula.

The respondent then filed a complaint with the Madhya Pradesh State Scheduled Caste Commission stating that he was being harassed by his seniors on the basis of his caste. The SC commission ruled in his favour and he was allotted a place of his choice. The respondent, however, did not join his duty during the period when the complaint was pending.

The question before the court was "whether the period of unauthorized absence can be regularized merely on the ground that the employee was being harassed by the superior authority and his transfer was not in accordance with the policy and the representation was pending before the Commission."

The division bench relied on the case of Mridul Kumar Sharma Vs. State of M.P (2015) and observed, “It is well settled principle of service jurisprudence that the representation filed by the employee does not create any right in his favour to remain at the same place from where he has been transferred until the representation is decided. He must first join the transferred place even if he has to avail the remedy of representation.”

With regard to the complaint made to the State SC Commission, the court elaborated on Article 338 Constitution of India which provides the constitution of the National Commission for Scheduled Castes and the Commission which shall investigate and monitor all the matters relating to the safeguards provided for the Scheduled Castes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards. The Commission shall inquire into specific complaints with respect to the deprivation of rights and safeguards of Scheduled Castes.

The court noted that several rulings of the Supreme Court and High Courts have concluded that the Commission cannot meddle with an employee's service terms, which include posting, promotion, and transfer. These matters are covered under the employee's service conditions. Article 338 of the Indian Constitution prohibits extending its reach to interfere with the employer's routine administrative affairs, which are all regulated by the Service Rules in force.

Thus, the court concluded, “In the absence of any stay on 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”.

The present writ appeal was thus, allowed and the impugned order of single judge bench dated 26/09/2023 was set aside.

Case Title: THE STATE OF MADHYA PRADESH AND OTHERS v. KUNWARLAL CHOWKIKAR, W.A. No. 1862/2024

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