Amar Nath Singh v. State Of Bihar — 1997 DIGILAW 666 (PAT)

Judgment A.K.Ganguly, J. 1. The subject matter of challenge in this writ petition is the order dated 18th December, 1993 issued by the Under Secretary, Department of Transport, Government of Bihar. By the said order the services of the petitioner who was working as Motor Vehicle Inspector, Dumka in the Transport Department were sent back to the Bihar State Agro Industries Development Corporation Ltd. (hereinafter referred to as the said Corporation). 2. The facts leading to the said order which are relevant for the purpose of deciding controversy in this matter are noted hereinbelow: After many years of service in the Indian Army the petitioner joined on 11th November, 1972 as Senior Mechanic Grade-I in the said Corporation and was posted in various places in the State of Bihar. The affairs of the said Corporation ran into bad weather and as a result of financial crises in the said Corporation. It was decided to stop operation of the said Corporation, and the petitioner and other employees of the said Corporation were declared surplus. 3. In this connection, the petitioner has referred to Annexure-2 to the writ petition which shows the list of officers of the said Corporatioq who became surplus and the name of the petitioner figures as item no.6 in the said list. It appears from Annexure-1, on which the petitioner reiied, that the same is a communication from the Chief Secretary Bihar Sarkar, Patna to all the Commissioners-Cum-Secretary, Chairman of Bureau of Public Enterprises and the Managing Directors of all Corporations. In the said communication it its stated that regarding different posts of the said Corporation the list of surplus staff was enclosed to the said letter, and it is also stated under the directions of the Chief Secretary that all vacant posts of the Corporation should not be filled-up directly, but those posts will be filled-up by the surplus members and the staffs of the said Corporation. 4. The case of the petitioner is that on the basis of the said communication at annexure-1 the petitioner was sent ondeputation to the Transport Department on the post of Motor Vehicle Inspector as would appear from Annexure-3. 4. The case of the petitioner is that on the basis of the said communication at annexure-1 the petitioner was sent ondeputation to the Transport Department on the post of Motor Vehicle Inspector as would appear from Annexure-3. From a perusal of Annexure-3 it appears that the Special Secretary of the Transport Department wrote letter to the Managing Director of the said Corporation to the effect that the State Government has taken a decision to the effect that under its transport department the post of Motor Vehicle Inspector, be filled-up by deputing services of the petitioner as Senior Mechanic of the said Corporation, till the regular appointment is made. It is also stated in the second Paragraph of the said communication that the petitioner may be appointed by way of deputation on the post of Motor Vehicle Inspector. 5. Pursuant to the said communication, the services of the petitioner were released by the said Corporation for being placed in the Transport Department. Pursuant to that the petitioner joined the said department, and a letter was written on 9th December, 1991 by the Commissioner of the said Transport Corporation, Bihar, Patna to the effect that the petitioner will be posted on the post of Motor Vehicle Inspector in the pay scale of Rs. 1500-2750/- till regular appointment is made. It is also stated that the petitioner will not be entitled for deputation allowances, but the petitioner be given all other allowances. It appears that along with the petitioner the services of one K. P. Yadav was also placed as Motor Vehicle Inspector on deputation basis. This fact has been stated in paragraph-13 of the writ petition. This fact seems to have not been controverted. On being so appointed the petitioner continued in service as Motor Vehicle Inspector of Bhojpur at Arrah. Thereafter, the petitioner was transferred from Bhojpur to Dumka in the same capacity as Motor Vehicle Inspector, and the petitioner carried-out the said order of transfer. It appears that the petitioner was also given the additional charge of Deoghar, Godda and Sahibganj division as Motor Vehicle Inspector. Suddenly came the impugned order whereby the petitioners services were allegedly sent back to the said Corporation. This order has been challenged by the petitioner on various grounds. 6. It appears that the petitioner was also given the additional charge of Deoghar, Godda and Sahibganj division as Motor Vehicle Inspector. Suddenly came the impugned order whereby the petitioners services were allegedly sent back to the said Corporation. This order has been challenged by the petitioner on various grounds. 6. The first ground of challenge of the petitioner is that the services of the petitioner were deputed to the Transport Department not under normal circumstances. It is not a normal case of deputation. The petitioner has stated that the Corporation in which his is working has virtually ceased to exist and the petitioner was admittedly declared surplus in the said organisation, in as much as, due to financial cruch the said corporation was not functioning and the petitioner was sent on deputation to the said Corporation (sioTransport Department ?) as Motor Vehicle Inspector, only because he was declared surplus in the said Corporation. Therefore, there is no question of his having a lien in the said Corporation. In fact, the petitioner does not have any lien. The deputation of the petitioner was made in the transport department on the condition that the said deputation will continue till the regular appointment is made. As no regular appointment is made, as such appointment of the petitioner on deputation shall continue. 7. The next ground of challenge is that the petitioner was deputed to the transport department along with one Mr. K. P. Yadav, and the services of Mr. K. P. Yadav has been retained, whereas, services of the petitioner has been sent back to the said Corporation which is not existing, and as such, the order is discriminatory in nature. It is also stated that the order of deputation virtually amounts to dismissal of the petitioner, in as much as, it is well known to the State Government that the said Corporal does not virtually exist, and the petitioner was declared surplus staff in the said corporation as the corporationwas not functioning. In the background of these facts, sending back the services of the petitioner to the said Corporation virtually amounts to putting an end to the employment of the petitioner. 8. The other ground of challenge is that the impugned order is punitive in view of the surrounding facts of the case. 9. In the background of these facts, sending back the services of the petitioner to the said Corporation virtually amounts to putting an end to the employment of the petitioner. 8. The other ground of challenge is that the impugned order is punitive in view of the surrounding facts of the case. 9. From the counter affidavit of the State Government it appears that the said order was passed on the basis of certain complaints said to have been made before the Hon ble Lokayukt, and on consideration of the said complaints the State Transport Commissioner by letter dated 30.10.1993 wrote to the said Corporation for initiating a departmental proceeding against the petitioner and by the impugned order dated 18.12.1993 reverted the services of the petitioner to the parent department. Therefore, the said order of reversion is penal in nature. 10. Learned counsel appearing for the State Government white controverting the aforesaid case of the petitioner has relied mainly on the following grounds, namely, that the petitioner was sent on deputation to the Transport Department not pursuant to annexure 1 but such deputation was made on the request of the petitioner. Therefore, annexure-1 has no application. 11. The second ground taken by the learned counsel for the State is that the post of Motor Vehicle Inspector is a gazetted post, and the same can be fiiled-up only through the Bihar Public Service Commission, and the same cannot be fiiled-up on the basis of the aforesaid deputation. The other ground is that complaints were filed in the office of the Hon ble Lokayukt, and as a result of the said complaint, the Transport Commissioner wrote a letter to the said corporation for initiating a departmental proceeding against the petitioner, and thus repatriated the services of the petitioner to the said Corporation. 12. In the counter affidavit which has been filed by the said Corporation it has been made very clear that as a result of poor financial condition of the said Corporation they are not in a position to carry-on its activities, and the employees became surplus, and 130 surplus staff were sent to the Government and the petitioner was one such surplus staff. It is made clear in paragraph nos. It is made clear in paragraph nos. 20, 24 and 27 of the said affidavit that the said Corporation is not in a position to accommodate the petitioner in view of the fact that the petitioner has been declared surplus and his services were transferred from the said Corporation to the Transport Department. In para-15 of the said affidavit it has also been stated that the letter of the Chief Secretary addressed to all the Scretaries of the department, Chairman of Bureau of Public Enterprises and the Managing Director of the Undertakings, would also apply in respect to the Government Department. 13. In the rejoinder affidavit filed by the petitioner it has been stated in para-8 that annexure-1 is addressed to all the department of the Government as well as to all the Chairmen of different Corporations. In the rejoinder affidavit the petitioner has also annexed the teleprinter message dated 25.7.1984 which is at annexure-13, and from the said teleprinter message it appears that the Chief Secretary has already issued direction to all the department of the Government and all head of the department to absorb the surplus staff of the said Corporation vide Chief Secretarys letter No. 103 dated 24.5.1984. The said letter dated 24.5.1984 is clarified by the teleprinter message dated 25.7.1984. Therefore, if the said order dated 24.5.1984 is read with the teleprinter message dated 25.7.1984 which was issued contemporancously, one would come to the conclusion that annexure-1 is also made applicable to the department of the State Government. This Court is unable to accept the narrow construction put on in the said annexure-1 by the counsel for the state respondent, and this court holds that the transfer of the services of the petitioner in the State Government was done pursuant to the said policy decision of the State Government which is reflected in Annexure-1. The purpose of the said annexure-1 was to accommodate those members of the staff who were declared surplus in various Corporations. 14. It goes without saying that the members of the staff cannot be solely blamed for the poor financial position of the said Corporation, and as such, as a welfare State, the State Government thought it proper to absorb such surplus employees in the different department of the State Government, and also on the different vacant posts of the ongoing corporation. This Court looks at annexure-1 from this angle. 15. This Court looks at annexure-1 from this angle. 15. The other objection which has been raised by the counsel for the respondent that the post of Motor Vehicle Inspector can only be filled up regularly by the appointment of the Bihar Public Service Commission, is of no relevance. Nobody is saying that the petitioner has been posted on the said post on a regular basis. it is obvious that the services of the petitioner has been sent to the said Corporation (s/cTransport Department ?) and the petitioner will continue on deputation till regular appointment is made. It is obviously not the case of the State Government that the regular appointment is made. In that view of the matter, the services of the petitioner cannot be sent back to the Corporation which is virtually non-existing Corporation where the petitioner has been declared surplus. Apart from that the State Government has not answered why only the petitioner has chosen for such deputation and sent back to the Corporation and another person who was sent along with the petitioner namely, Mr. K. P. Yadav is still continuing on deputation. This shows that the State Government is acting in discriminatory and pick and choose manner. 16. Reference in this connection may be made to the decision of the Supreme Court in the case of State of Mysore & Anr. V/s. R. S. Kasi reported in A.I.R. 1985 S. C. page-651. In that case it was held that where both appellant and his junior who exercise option to continue in Horticulture department, and only petitioner has been repatriated to the agriculture department and his junior is allowed to continue in the Horticulture department, such order of repatriation is discriminatory. Factually also the said case of the State of Mysore (supra) has some similarity here. In that case the entire cadre of Agriculture Department with its staff stood transferred to the Horticulture department. In the backgroud of that fact the order of repatriation of the appellant to the agriculture department was not permitted by the Apex Court. Here also virtually the said Corporation has ceased to exist and in sofar as the petitioner is concerned who was declared surplus in the Corporation the transfer of the petitioners service to that Corporation virtually amounts to his dismissal from the service. 17. Here also virtually the said Corporation has ceased to exist and in sofar as the petitioner is concerned who was declared surplus in the Corporation the transfer of the petitioners service to that Corporation virtually amounts to his dismissal from the service. 17. It is obvious that the order of transfer of the petitioners services to the said Corporation is not one which is unconnected with allegations against the petitioner. From the counter affidavit it is clear that the complaints were lodged before the Lokayukt, and the Transport Commissioner was directed to initiate proceeding against the petitioner and the services of the petitioner was sent back to the said Corporation. It appears that the Hon ble Lokayukt ultimately by the communication dated 19.7.1995 informed the Transport Commissioner that the allegations against the petitioner were dropped. Therefore, there was no complaint before the said Lokayukt. 18. Assuming that it is true that on the said complaint the transport department can easily initiate departmental proceeding, and if they find the petitioner guilty then can dismiss or suitably punish him, but instead of doing so and instead of giving the petitioner an opportunity to explain his stand or to prove his innocence, the impugned order has been passed which virtually has the result of putting the end of the petitioners services. Therefore, this is really a case of repatriation by way of penalty, and the ratio laid down in the case of K. H. Phadnis V/s. State of Maharastra, reported in A.I.R. 1971 S. C. page-998 clearly applies to the instant case. In para-17 of the said case of K. H. Phadnis (supra) the Court makes it clear that if the order of reversion is genuinely one of "accident of service" in which a person sent from the substantive post to a temporary post, he has to go back to the parent post without an aspersion against his character or integrity the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" in that case the order shall be in the nature of punishment. 19. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" in that case the order shall be in the nature of punishment. 19. From the affidavit of the State Government it is clear that the order of transfer of the services of the petitioner by the transport department to the said Corporation is not a pure accident of service, but it is based on some unfounded allegations against the petitioner for which the petitioner has not been given a chance to controvert the same but the impugned order is passed. Therefore, after looking into the entire facts of the case it is clear that the impugned order amounts to put the services of the petitioner to an end on the basis of unfounded allegations in a manner which clearly shows that the impugned order is by way of penalty. 20. It is repeatedly held by the Apex Court that the employment of the persons is the source of his livelihood and as such is included with the right given under Article-21 of the Constitution is reflected in this area. The Part III right under Article-21 cannot be infringed on the basis of a procedure which is not just, fair and reasonable. 21. Judging on the factual context in this case as discussed aboge, the impugned order at Annexure-1 to the writ petition is neither just, reasonable and fair within the meaning of Articles 14 and 21 of the Constitution. The impugned order therefore cannot be sustained and is therefore quashed. 22. This will, however, not prevent the respondents from initiating a required proceeding, if they are so advised, against the petitioner in accordance with law. This writ petition is thus allowed to the extent indicated above. There will be no order as to costs.