Sankar Prosad Bhattagharjea vs Dr. D.R. Marwaha

D. Basu, J.—These two petitions under Article 226 of the Constitution have been taken up together inasmuch as the parties are the same and they relate to different orders relating to the Petitioner, an employee under the Respondents.

A. The earlier petition No. 728 is directed against the order at Annex. D to that petition (dated November 3, 1965) by which the Petitioner''s increment of pay on three consecutive chances on the time scale was withheld by Respondent No. 1, the Director of Veterinary Services, and the Appellate order at Annex. G passed on April 7, 1966, by Respondent No. 2, the Secretary of the Veterinary Department, rejecting the Petitioner''s appeal against the order at Annex. D. They arose in this way.

The Petitioner was a research assistant attached to the Bengal Veterinary College. From the averments in para. 4 of the counter-affidavit, which is not contradicted in the reply, it appears that the said post was a ''temporary'' one. In May 1965 he was served with the charge-sheet, dated May 21, 1965, which is at Annex. A-containing seven charges and Respondent No. 3, Special Officer, was appointed Inquiry Officer. The Petitioner submitted his explanation to the charges on May 28, 1965, and asked for a personal hearing (Annex. B). On November 3, 1965, the impugned order was made by Respondent No. 1, reciting that

it was proved at the departmental proceedings that the Petitioner was guilty of two of the charges brought against him which appear to be charges 2 and 3 of the charge-sheet at Annex. A. He was accordingly punished by withholding the increments as stated earlier.

By another order of the same date (Annex. D) the Petitioner was transferred from his post of Research Assistant at Belgachia to the post of Veterinary Assistant Surgeon, Development Block Indus, in the district of Bankura.

On November 22, 1965, the Petitioner appealed to Respondent No. 2 against the aforesaid orders, but that appeal has been dismissed on April 7, 1966 (Annex. G). Receiving the order at Annex. G on April 27, 1966, the Petitioner moved this Court on May 24, 1966, and obtained Rule No. 728.

B. The matter did not, however, end there. After the passing of the order at Annex. D on November 16, 1965, the Petitioner reported to duty at headquarters (Annex. B) without joining the post at Indus to which he had been transferred by the impugned order and on that very day Submitted an application for one month''s earned leave (Annex. B, p. 13), and left station without waiting for orders on his leave application. By his order of November 24, 1965, Respondent No. 1 refused the leave prayed for and directed the Petitioner within one week from the date of issue of that order (a) to explain for his unauthorised absence from duty, and (b) to report to duty of his post at Indus to which he had been transferred (Annex. B, p. 14).

On December 7, 1965, the Petitioner replied that since he had received the preceding order of Respondent No. 1 only on December 4, 1965, and his wife was still suffering (for which medical certificate was attached), it was not possible for him to comply with the order in question and requested Respondent No. 1 to reconsider his petition for leave since November 16, 1965. This prayer was rejected and the Petitioner was directed to report at Indus immediately (Annex. B, p. 17) by the letter of the Respondent dated December 15, 1965. On December 21, 1965 and again on January 15, 1966, the Petitioner asked for extensions of leave by one month, though his initial application had been rejected. (Vide pp. 18, 20 of Annex. B.) Both these petitions were rejected as before (Annex. B, pp. 21, 22) the last order of Respondent No. 1 being of January 20, 1966.

On February 4, 1966, Respondent No. 1 took serious note of the matter and informed the Petitioner (Annex. B, p. 23) that, since he had failed to resume duties though his prayers for leave had been refused on account of the exigencies of public service, he was to show cause within seven days of service of the memo, as to why disciplinary action will not be taken against you on the charges of negligence of duty and insubordination.

On February 14, 1966, the Petitioner submitted his explanation to the charges (Annex. B, p. 25) stating, inter alia, that it was not possible for him to join at Indus since his salary had not been paid for the last three months. On the same date he submitted another petition for further one month''s leave (Annex. B, p. 26).

On February 18, 1966, Respondent No. 1 stated in his letter at Annex. B, p. 27, that-(a) that the Petitioner was guilty of negligence of duty and insubordination inasmuch as he had remained absent though he was repeatedly told that leave could not be sanctioned to him, and (b)

that due to your unauthorised absence from duty for more than three months with effect from 17.11.65 as stipulated under Rule 175(b) of W.B.S.R. Part I, your temporary service under this Directorate is liable to be terminated with effect from 17.2.1966.

The Petitioner''s last leave application was dealt with by another letter of February 23, 1966 (Annex. B, p. 28), in which it was stated that

the question of extension of Your Petition under reference does not arise.

in view of the fact that

the present position in regard to your service under this Directorate has been clarified to you in this Directorate Memo. No. 900, dated 18.2.1966.

Obviously, the preceding letters of Respondent No. 1 were not in the form of an order of termination of service and this led the Petitioner to seek clarification on March 4, 1966 (Annex. B, p. 29), as to whether his services had actually been terminated or not. Not getting a prompt reply the Petitioner gave a reminder on April 2, 1966, which brought forth the reply of Respondent No. 1 on March 24, 1966 (Annex. B, p. 34) which, however, gave little light as to whether the services of the Petitioner had actually been ordered to be terminated. The Petitioner on June 6, 1966, informed Respondent No. 1 that he had obtained Rule from this Court against the order of transfer and withholding of increments (C.R. 728/66) to join his post of Research Assistant on the assumption that there had been no termination of his services (Annex. B, p. 35).

Respondent No. 1 seems to have now realised that there were formal infirmities in the manner in which he had proceeded with a subordinate who was nearly outwitting him, and hence he issued the impugned order at Annex. C on July 1, 1966 as follows:

Sri Sankar Prosad Bhattacharyya...is granted extra-ordinary leave for 3 months with effect from 17.11.65 under Rule 175(b) & (c) of the W.B.S.R. Part I.

He is deemed to have resigned his temporary service under this Directorate as Research Assistant with effect from 17.2.66 on the expiry of the extra-ordinary leave for three months with effect from 17.11.1965 and has accordingly ceased to be in Government employ under Rule 34(3) read with Rule 175(c) and (b) of the W.B.S.R. Part I.

The Petitioner demanded justice against the preceding order on August 12, 1966, and moved this Court under Article 226 and obtained Rule No. 2336 against the impugned order of termination of service at Annex. C.

Since in C.R. 728/66, Respondent have taken the preliminary objection that the petition against the order of transfer etc. is not maintainable so long as the order of termination of his temporary service per Annex. C to the petition in the subsequent Rule No. 2335 is not set aside. We have to take up the validity of the impugned order in C.R. 2335 first.

A. CF. 2335/66

The validity of the impugned order at Annex. C (p. 36) to the petition depends upon the applicability of Rules 34(3) and 175(b) & (c) of the West Bengal Services Rules, Pt. I (hereinafter referred to as ''the Rules'') to the facts of this case.

Ordinarily under Clause (a) of Rule 175 the question of extra-ordinary leave arises where the Government servant applies for such leave either because no other leave is due to him, or on other grounds.

But Clause (c) of Rule 175 empowers the competent authority to grant extra-ordinary leave even where the Government servant does not seek it, in the contingency specified in that clause, namely,

The authority empowered to grant leave may commute retrospectively period of absence without leave into extra-ordinary leave.

This Clause is not dependent upon the consideration as to Avhether any other kind of leave was due to the employee or not.

The maximum limit to such extra-ordinary leave in the case of a temporary Government servant is set forth in Clause (b) of the Rule as follows:

except in the case of a Government servant in permanent employ, the duration of extra-ordinary leave shall not exceed three months on one occasion.

The first part of the impugned order, granting extra-ordinary leave for three months with retrospective effect from November 17, 1965, is founded on the preceding Clauses of Rule 175. It may be recalled that on November 16, 1965, the Petitioner made a formal report of joining his post and then left an application for leave for one month with effect from November 17, 1965, and remained absent without first obtaining an order sanctioning the leave asked for (p. 13 of Annex. B). The last paragraph of the letter of Respondent No. 1 dated November 24, 1965 (Annex. B, p. 14) unmistakably stated that "the leave prayed for is hereby refused" and any correspondence on the part of the Petitioner could not establish constructively that his application for leave was never rejected. Rule 153 of the Rules lays down that-

Leave cannot be claimed as of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it.

The Petitioner should not, therefore, have remained absent without first obtaining an order granting his application for leave. Be that as it may, after his first application was clearly refused by the order dated November 24, 1965, it could not be contended by him that because he went on making applications for extension of the leave originally applied for by him, and Respondent No. 1 rejected them also independently (e.g. p. 17 of Annex. B), the Respondent thereby treated him as on leave.

I have little difficulty in holding that the Petitioner remained absent without leave since November 17, 1965, and that the first paragraph of the order treating such absence as an extra-ordinary leave was quite valid under Clause (c) of Rule 175.

Next comes the question of the second paragraph of the impugned order which purported to apply Rule 34(3) of the Rules which says-

where a Government servant who is not in permanent employ, fails to resume his duties, on the expiry of the maximum period of extra-ordinary leave granted to him under Sub-rule (b) of Rule 175-he shall, unless the Government in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned his appointment and shall accordingly cease to be in Government employ.

The Petitioner being the holder of a temporary post, the foregoing rule is prima facie applicable, but that does not put an end to the question inasmuch as the Petitioner contends that this Rule could not be applied without giving the Petitioner an opportunity to show cause in the manner required under Article 311(2) before making an order in exercise of the aforesaid power (Ground VI).

In order to deal with this contention we have to advert to the Supreme Court decision in Jai Shanker Vs. State of Rajasthan, , which interpreted a similar Rule. Regulation 13 of the Jodhpur Service Regulations provides:

An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave, should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.

It was held by the Supreme Court that the application of the foregoing Rule constituted the punishment of ''removal'' within the meaning of Article 311(2) of the Constitution, and it could not, therefore, be applied without giving an opportunity to show cause to the Government servant in question as to why he should not be removed on the ground of absence without leave under the Regulation and that the form in which the Regulation was drafted was immaterial for attracting Article 311(2). The relevant observations of the Court (p. 494, ibid) should be noted:

It is...contended that under the Regulations all that Government does, is not to allow the person to be reinstated. Government does not order his removal because the incumbent himself gives up the employment. We do not think that the Constitutional protection can be taken away in this manner by a sidewind. While on the one hand, there is no compulsion on the part of the Government to retain a person in service if he is unfit and deserves dismissal or removal, on the other hand a person is entitled to continue in service if he wants until his service is terminated in accordance with law.

One circumstance deserving removal may be overstaying one''s leave. This is a fault which may entitle Government in a suitable case to consider a man as unfit to continue in service. But even if a regulation is made, it is necessary that Government should give the person an opportunity of showing cause why he should not be removed. A removal is removal and if it is punishment for overstaying one''s leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311....

In the case before me, the Petitioner''s services were terminated by the application of Rule 34(3) of the Rules by the order dated July 1, 1966 (Annex. C). The Supreme Court decision just cited is authority for the proposition that an opportunity to show cause under Article 311(2) of the Constitution must be given before such punishment may be imposed upon the Petitioner. We are, therefore, to see whether any such opportunity was offered to the Petitioner in the instant case. Since the Petitioner remained absent without sanction of leave from November 17, 1965, the history of events taking place prior to that date is immaterial for determining the present question.

(i) It is true in his letter of November 24, 1965 (Annex. B, p.14), Respondent No. 1 rejected the application for leave and simultaneously asked the Petitioner "to explain his unauthorised absence from duty". But even though the Petitioner offered an explanation by his letter of December 7, 1965 (p. 15), and Respondent No. 1 reiterated that leave could not be granted in view of the exigencies of public service, he did not propose to take any action according to the Rules in question on the ground that the explanation offered was insufficient. The Petitioner was undaunted and continued to remain absent and went on making applications for extension of a leave which had never been granted. Notwithstanding all this, Respondent No. 1 again informed the Petitioner that leave could not be granted and that he should resume his duties at once. All this may have been due to goodness on the part of Respondent No. 1, but an impartial observer is constrained to say that it betrays his tactlessness as an administrator as well up to this point.

Then comes the letter of February 4, 1966 (p. 23 of Annex. B) by which the Respondent, stating that the Petitioner had failed to resume his duties though directed to do so and after rejecting his prayer for leave, directed the Petitioner to show cause within seven days from the date of receipt of this memo as to why appropriate disciplinary action will not be taken against you on the charges of negligence of duty and insubordination.

It is evident that though by this letter the Petitioner was given an opportunity to show cause, It cannot be construed as an opportunity to show cause against the punishment proposed by Rule 34(3) for several reasons.

First, the charge upon which a Government servant may be ''deemed to have resigned'' under Rule 34(3) is not ''negligence of duty'' or ''insubordination'' but the definite allegation that-

He has failed to resume his duties on the expiry of the maximum period of extra-ordinary leave granted to him under Sub-rule (b) of Rule 175....

Rule 34(3) thus presupposes that there has been a prior order by which extra-ordinary leave has been granted to the Government servant, and if on the expiry of such extra-ordinary leave the Government servant still fails to resume his duties, Rule 34(3) may be applied against the Government servant by giving him an opportunity to show cause why the punishment specified in Rule 34(3) should not be awarded against him. Now in the instant case, the order granting the extraordinary leave was granted by the very order by which Rule 34(3) was applied, i.e., the impugned order dated July 1, 1966. Hence, any opportunity given to the Petitioner at any stage prior to July 1, 1966, was insufficient to comply with the principle laid down in the cited decision Supra of the Supreme Court. To be clear, the proper course would be to issue the order granting extra-ordinary leave first calling upon the Government servant to resume his duties on the expiry of such leave and, if he fails to resume thereafter, to call upon him to show cause why the penalty under Rule 34(3) should not be imposed upon him on account of such failure. Nothing like that has been done in this case.

(ii) In fact Rule 34(3) was never uttered by Respondent No. 1 before Annex. C. In his letter of February 18, 1966 (Annex. B, p. 27), of course, Respondent No. 1 stated-

due to your unauthorised absence from duty for more than three months with effect from 17.11.65 as stipulated under Rule 175(b) of W.B.S.R., Part I, your temporary service under this Directorate is liable to be terminated with effect from 17.2.66.

But this was a mere statement of the position as Respondent No. 1 understood it. He neither asked the Petitioner to show cause against any proposed action nor ordered the termination with effect from February 17, 1966. At best, it was a mere threat. Further, the reference to Clause (b) of Rule 175 was insufficient to attract the application of Rule 34(3) inasmuch as there was no order as yet granting extra-ordinary leave for three months to the Petitioner. That was to be done by an express order, giving retrospective effect, as is contemplated by Clause (c) of Rule 175. No such order had yet been made. The letter at p. 27 and the clarification made by the next letter at p. 28 are thus ineffective for complying with the requirement of Article 311.

(iii) That the subsequent two letters of March 9, 1966 (p. 30) and March 30, 1966 (p. 34) are of no value, is established by the impugned order itself. In the previous two letters Respondent No. 1 stated that the matter had been closed, but if that was so, there was no need for issuing the impugned order at Annex. C.

In fact, Clause (b) and (c) of Rule 175 were applied for the first time only by the impugned order, and then only could arise the occasion for applying Rule 34(3), but for the latter purpose an opportunity to show cause stating that such action was proposed to be taken against the Petitioner, was to be given to the Petitioner before the order that the Petitioner has ceased to be in Government employment, could be made in compliance with the requirement under Article 311(2) of the Constitution.

Since no such opportunity has been given the impugned order at Annex. C must fail, but the Respondent shall be at liberty to proceed afresh in accordance with the law as explained in this judgment.

This Rule be made absolute but without any order as to costs. Respondents be restrained from giving effect to the impugned order at Annex. C, but they shall be at liberty to proceed afresh from the stage preceding Annex. C according to law, as just stated.

B.C.R. 728 W/66

The order of termination of service being out of the Petitioner''s way, the preliminary objection to the maintainability of the present Rule must be rejected.

We have, therefore, to inquire into the validity of the orders at Annexs. D and G of the instant petition.

I. It must first be pointed that the punishment awarded by the impugned orders being one of withholding of increments, neither Clause of Article 311 of the Constitution is attracted together with the principles of natural justice implicit in Article 311(2). The Petitioner must, accordingly, show the breach of any of the statutory Rules applicable to his service in order to succeed.

On behalf of the Petitioner reliance has been placed on Rule 10 of the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936. Nothing has been said on behalf of the Respondents to exclude the application of these Rules to the instant case.

Now, under Rule 7 withholding of increments is a penalty. Hence, under Rule 10 no order imposing this penalty can be passed-

Against a member of a subordinate service unless the officer concerned has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed.

The word ''representation'' in such context refers to a written representation: Madhya Pradesh Industries Ltd. Vs. Union of India and Others (UOI), . The wider doctrines of natural justice are not, therefore, attracted. But the opportunity to make a representation must be ''adequate''. The meaning of ''adequacy'', however, has to be understood with reference to the proviso which follows:

Provided that the requirements of this Sub-rule may, for sufficient reason to be recorded in writing, be waived where" there is difficulty in observing them and can be waived without injustice to the officer concerned.

The point for determination under Rule 10, therefore, is whether any prejudice or injustice has been caused by any act or default on the part of the Respondents in the matter of exercise by the Petitioner of his statutory right to make an adequate representation against the penalty proposed.

It appears from Annex. C that a regular charge-sheet was served upon the Petitioner, dated May 21, 1965, asking him to file his written defence within a week, and an Inquiry Officer was appointed to inquire into the charge. On May 28, 1965, the Petitioner did submit his explanation to each of the seven charges (Annex. B). Though the Petitioner has complained that the inquiry was vitiated, because certain papers asked for by him were not supplied, it is to be noted that there is nothing to show that he made any such demand prior to the making of his representaton against the charges and made no complaint in his representation (Annex. B) that he was unable to make an effective defence for want of any materials. The statement in para. 5 of the petition that the Petitioner

reserved his right to submit further defence after the said papers were supplied.

is also not borne out by the defence at Annex. B itself. It is only on June 14, 1965, that the Petitioner appears to have submitted an application to the Inquiry Officer for permission to submit an additional written statement. It appears from the report of the Inquiry Officer, dated September 13, 1965, which was produced by the Respondents at the hearing, that the Inquiry Officer took into consideration the written defence of the Petitioner on each of the charges and came to the conclusion that the Petitioner was guilty of charges 2, 3 and 6. The impugned order was passed by Respondent No. 1 on the basis of the findings of the Inquiry Officer, but he awarded punishment on two charges only, namely 2 and 3. From the above circumstances, the requirements of Rule 10 of the Bengal Subordinate Service Rules of 1936, which is relied on behalf of the Petitioner, has been prima facie complied with.

II. It was contended that a fresh representation must be called for from the Petitioner before awarding the penalty as under Article 311.

(2) But that ''second show-cause'' notice, as it is called, cannot be required in cases outside Article 311(2) inasmuch as this obligation has been deduced by the Courts from the expression "given a reasonable opportunity of showing cause against the action proposed", which expression is absent in Rule 10 of the Rules in question. The only requirement of Rule 10 is that an adequate opportunity of making a representation must be given to the delinquent employee before awarding the penalty. No charges nor inquiry is provided for by the Rule, whereas in the instant case, a regular charge has been brought against the employee and he has been given an opportunity of submitting a written defence on those charges and he has been punished on the basis of the findings on those charges, I think the requirements of Rule 10 have been complied with.

III. Of course, the opening words of Rule 10 of the Subordinate Services Rules are "without prejudice to the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930", but the bringing into aid that Rule also does not improve the Petitioner''s case inasmuch as Rule 55 of the Civil Services Rules of 1930 relates to the case of the major penalties of dismissal, removal and reduction only, and the minor penalties are dealt with in Rule 55A, the wording of which is similar to that of Rule 10 of the Bengal Rules in question.

Hence, neither inquiry nor hearing is required by any of these Rules for the purpose of awarding the minor penalty of withholding increments. It should be pointed out in this context that the position under the West Bengal Services Rules, promulgated under Rule 309 of the Constitution, is even worse in this respect, because it only lays down the procedure to be followed in awarding the major penalties in chap. IX of those Rules, Pt. I, no procedure being required for awarding the minor penalties and even the minimum safeguard imposed by Rule 10 of the Bengal Rules of 1935 has been withdrawn by the West Bengal Services Rules, 1964, as regards the minor penalties. In a previous case, I have held that in view of Rules 2 and 4 of the West Bengal Services Rules, the Bengal Subordinate Service (Discipline and Appeal) Rules, 1936, stand repealed; but since no such contention was raised on behalf of the Respondent in the instant case. I have applied the requirements of Rule 10 of the Bengal Rules, which I have already held, have been satisfied.

In view of the above finding the additional grounds urged on behalf of the Petitioner against the fairness or validity of the inquiry proceedings are of no avail to the Petitioner. Some of those relate to the merits of the charges brought against the Petitioner, and seek to establish that the Petitioner should not be held guilty because he had not committed any irregularity. That, however, is beyond the scope of the proceeding before me. Other relates to the procedure at the inquiry. But even on the facts it does not appear that the Petitioner has been seriously prejudiced. Taking for instance his complaint as to non-supply of papers made in paras. 8 and 9 of the petition, it appears from Annex. C that the information asked for by the Petitioner was omnibus and on the points of fact relating to the charges upon which he has been punished, sufficient information has actually been supplied to the Petitioner at the hearing on the charges.

The Petitioner''s attack against the order at Annex. D must accordingly fail.

IV. Let us now proceed to the Appellate order at Annex. G (p. 89 of the petition). The appeal was presumably preferred and entertained under Pt. II of the Bengal Subordinate Service (Discipline & Appeal) Rules, 1936. If so, the appellate authority must comply with the statutory requirements of Rule 15 in disposing of the appeal. This Rule says that-

The Appellate Authority shall consider-

(a) whether the facts on which the order was based have been established.

(b) whether the facts established afford a sufficient ground for taking action. and

(c) whether the penalty is excessive, adequate or inadequate, and after such consideration shall pass such order as it thinks proper.

It is evident that if the Petitioner can show that any of the aforesaid points were not taken into consideration, the Appellate order must fail on the ground of ultra vires.

In the instant case, I am satisfied that the Appellate Authority has, in his order at Annex. G considered the matters specified in Clauses (a) and (b) of Rule 15 but not Clause (c), namely, whether the penalty awarded by Respondent No. 1 was excessive or not, on the charges'' on which the Petitioner was found guilty.

There is no mention of this point in the impugned Appellate order. The Petitioner is entitled to a fresh consideration of the Appellate Authority on the point of excessiveness or otherwise of the penalty particularly on the ground that the Appellate Authority, as contended by the Petitioner, suffered under a mistaken impression that Respondent No. 1 had founded the penalty of withholding of increments upon a finding of guilt on three of the charges which, however, is not correct. The order at Annex. D, as pointed out earlier, was founded on the finding of guilt on two of the charges only, namely charges 2 and 3. Instead of writing a supplementary Appellate order, touching the point relating to penalty alone, the Appellate Authority should in my opinion be directed to write out a fresh Appellate order inasmuch as there are some other inaccuracies and deficiencies in the Appellate order.

Firstly, though he says that the alleged conduct of the Appellant was ''in direct contravention of the Rules'', he does not mention which particular Rules had been contravened by him. This was particularly material in awarding any penalty upon the Appellant inasmuch as his contention all along has been that the alleged conduct has been sanctioned by the practice in the Department and also that another person, alleged to be guilty of the same offence, has been leniently dealt with.

Secondly, it has also been rightly pointed out on behalf of the Petitioner that there are certain statements at the beginning of para. 2 of the Appellate order, speaking of prior complaint against the Petitioner and the manner in which Respondent No. 1 detected the offences with which the Petitioner was charged, which are not founded on anything stated in the charges themselves or in the impugned order from which appeal was preferred to him. Such statements as to extraneous matters certainly tend to prejudice the Petitioner and should be excluded in making the Appellate order.

The order at Annex. G shall, therefore, be quashed directing Respondent No. 2 to make a fresh Appellate order according to law and in conformity with the observations made in this judgment.

V. In his petition (para. 36), the Petitioner also challenged the validity of the order of transfer (Annex. D, p. 45) which was made simultaneously with the order of withholding increments.

In my opinion, no relief can be given to the Petitioner in respect of this order for the following reasons:

(a) He did not take this point in his appeal to Respondent No. 2 and did not allege that the order was penal or mala fide, as contended before me.

(b) A Government servant is liable to be transferred from one post to another, under Rule 24(1) of the West Bengal Services Rules, Pt. I, and no employee can complain if the new post or job is uncomfortable to him, because under Rule 15 his whole time is at the disposal of the Government and he may be employed in any manner required by the Public Authority.

Nothing has been shown before me to establish that the impugned transfer has violated any of the statutory conditions in Rule 24 or that it was not in the interests of Public service. Merely because an employee is transferred to another station or post simultaneously with an order of penalty following a disciplinary inquiry, it cannot be held to have been ''penal'' or mala fide. The materials on the record do not warrant any such conclusion.

The contentions made in respect of the order of transfer must, therefore, be rejected.

The Rule in C.R. 728 W/66 shall be made absolute in part to the following extent without any costs.

The Appellate order be made according to law and in conformity with the observations made in this judgment within a period of two months from this date, and pending the making of such order no effect should be given to the order withholding increments of the Petitioner as made by the order at Annex. D to the petition, p. 44.