Case Note & Summary
The Deputy Commissioner of Police, Wireless Division, Mumbai filed a writ petition challenging the judgment of the Maharashtra Administrative Tribunal dated 02/05/2022, which had allowed the Original Application of the respondent, Sanjay Govind Parab, a Police Head Constable. The respondent was transferred from Mumbai to Dhule on 30/05/2019. He challenged the transfer before the Tribunal in Original Application No.524 of 2019, but interim relief was refused on 12/06/2019. Despite this, the respondent did not join at the place of transfer and remained absent from duty for 271 days (02/06/2019 to 27/02/2020). On 20/01/2020, the Tribunal allowed the Original Application and quashed the transfer order on the ground that the Police Establishment Board was not properly constituted under Section 22J-3 of the Maharashtra Police Act, 1951. The respondent then rejoined his original post on 28/02/2020 and sought pay and allowances for the period of absence. The Deputy Commissioner of Police, by order dated 22/04/2021, treated the period as absence without leave and denied pay under Rule 29 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981. The Tribunal, in the subsequent Original Application No.439 of 2021, set aside this order, holding that the quashed transfer order was non-est and the respondent was entitled to pay. The High Court reversed the Tribunal's decision. It held that the order of transfer was not non-est; it was merely set aside. The respondent was bound to comply with the transfer order until it was quashed, especially since interim relief was refused. The principle of 'no work no pay' applied, and the respondent could not claim wages for the period he did not work. The High Court allowed the writ petition, set aside the Tribunal's order, and upheld the denial of pay for the period of absence.
Headnote
A) Service Law - Absence Without Leave - Pay and Allowances - No Work No Pay - Rule 29 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 - The respondent employee did not join the place of transfer after interim relief was refused, and remained absent for 271 days. The transfer order was later quashed on technical grounds (non-compliance of Section 22J-3 of the Maharashtra Police Act, 1951). The High Court held that the employee cannot claim pay for the period he did not work, as the order of transfer was not non-est but merely set aside, and the employee was bound to comply with the transfer order until it was quashed. The principle of 'no work no pay' applies, and the denial of pay under Rule 29 was justified. (Paras 8-12) B) Service Law - Interim Relief - Effect of Refusal - Maharashtra Police Act, 1951 Section 22J-3 - The Tribunal had refused interim stay of the transfer order on 12/06/2019. The employee did not challenge that refusal. The High Court held that the employee was obliged to join at the place of transfer despite the subsequent quashing of the order. The refusal of interim relief meant the transfer order remained operative, and the employee could not unilaterally decide to stay away. (Paras 7-9) C) Service Law - Non-Est Order - Doctrine - The Tribunal's observation that the quashed transfer order was 'non-est' was held to be erroneous. An order set aside by a court is not void ab initio; it is merely annulled from the date of the judgment. The employee cannot treat it as never having existed, especially when interim relief was refused. (Para 10)
Issue of Consideration
Whether an employee whose transfer order is subsequently quashed is entitled to pay and allowances for the period he remained absent from duty without joining the place of transfer, despite interim relief having been refused.
Final Decision
The High Court allowed the writ petition, set aside the impugned judgment of the Maharashtra Administrative Tribunal dated 02/05/2022, and dismissed the Original Application No.439 of 2021 filed by the respondent. The order dated 22/04/2021 denying pay and allowances for the period of absence was upheld.
Law Points
- No work no pay
- absence without leave
- interim relief refusal
- non-est order
- pay and allowances for period of absence
- Maharashtra Civil Services (General Conditions of Services) Rules
- 1981 Rule 29
