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2005 DIGILAW 850 (GAU)

Mridumoni Dhekial Phukan v. State of Assam

2005-12-23

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. In this writ petition the Petitioner has assailed the legality and validity of the action of the Respondents in repatriating her to parent department from the department to which she was sent on deputation. The Petitioner while was serving as Subject Teacher in English in S.P. Bordoloi Girls' Higher Secondary School, her service was placed at the disposal of English Language Teaching Institute (ELTI), Assam for a period of one year by Anenxure-5 order dated 28.12.2004. Along with the Petitioner some other Subject Teachers were also deputed to ELTI by the same very order. 2. Prior to such deputation of the Petitioner to ELTI, the Petitioner completed a three months training course called XVIII Resource Persons' Course conducted by the Central Institute of English and Foreign Language. Pursuant to the aforesaid Annexure-5 order dated 28.12.04, the Petitioner was relieved from her school on 28.6.05 and in her place Smt. Sibani Paul, Subject Teacher in English of another school namely Namdeuri Higher Secondary School, Jorhat was posted. 3. The Petitioner joined ELTI and according to her, she had been rendering her service with outmost dedication and sincerity. However, by the impugned orders dated 12.8.05 and 22.8.05 (Annexure 7 and 8 respectively) she was reverted back to her school and released from the institute. The orders read as follows: Government of Assam Directorate of Secondary Education, Assam Kahilipara, Guwahati-781019 No. ET/Misc./3/04/78-A Dated Kahilipara the 12.8. 2005 ORDER Smti Mridumoni Dhekial Phukan, Subject Teacher in English, S.P.B. Girls' Higher Secondary School, Jorhat who was deputed as Chief Tutor/Tutors under the disposal of ELTI, Assam, vide this office order under memo No. ET/Misc/3/04/29 dated 28.12.04 is hereby reverted her original post as Subject Teacher in English, S.P.B. Girls' Higher Secondary School, Jorhat with immediate effect. Sd/- (Dr. H.C. Das) Director, Secondary Education, Assam Kahilipara, Guwahati-19 English Language Teaching Institute, Assam Kahilipara, Guwahati-781019 ORDER In compliance with the Memo No. ET/Misc./3/04/78-A dated Kahilipara, the 12th August, 2005 Smti Mridumoni Dhekial Phukan, Tutor, District Centre for English, Jorhat is hereby released today, the 22.8.2005 from her duty at District Centre for English, Jorhat to enable her to join her post at S.R.B. Girls' Higher Secondary School on reversion. Sd/- (P.S. Misra) Director, ELTI, Assam 4. Being aggrieved by the aforesaid orders, the Petitioner made representations urging the authorities to repeal the repatriation orders. Sd/- (P.S. Misra) Director, ELTI, Assam 4. Being aggrieved by the aforesaid orders, the Petitioner made representations urging the authorities to repeal the repatriation orders. In paragraph-9 of the writ petition, the Petitioner has stated that the impugned action on the part of the Respondents was on the basis of a news paper report on the alleged illicit relationship of the Petitioner with the Chief Tutor, Shri Tarun Tamuli (Respondent No. 5) because of which an unhealthy environment prevailed in the premises of the Institute. According to the Petitioner such news paper report was published to malign the Petitioner and was not based on actual facts. She further asserts that such publication of news item has lowered her in the estimation of others. She has also made a grievance for non-disposal of her representation. 5. After the aforesaid order repatriating the Petitioner from the Institute to her School, the Annexure-11 order dated 2.9.05 was issued directing the Tutor of the District Centre for English, Jorhat to release the Petitioner from the Centre enabling her to join as Subject Teacher. English in another school called Namdeuri Higher Secondary School instead of her original school namely S.P.B. Higher Secondary School. This was presumably done in view of the fact that as noticed above, while the Petitioner was deputed to the Centre, one Smt. Sibani Paul, Subject Teacher in English of Namdeuri Higher Secondary, School, Jorhat was transferred to her place. 6. A counter affidavit has been filed by the Director of Secondary Education, Assam. While broadly admitting the facts narrated above, it is the stand of the Director that on 27.6.05, the Director, ELTI vide his letter FLLTI/DC/Jorhat/1414-16 addressed to the Director of Secondary Education, Assam had forwarded the news items published in local dailies concerning the activities of the Petitioner and said Shri Tarun Tamuli, Chief Tutor which allegedly caused adverse public reaction and lowered the image of the District Centre. It was also reported that the trainees are dissatisfied with their teaching at the District Centre. A copy of the letter was also sent to the Inspector of Schools, Jorhat, who is the Chairman of the Advisory Board of the District Centre. It was also reported that the trainees are dissatisfied with their teaching at the District Centre. A copy of the letter was also sent to the Inspector of Schools, Jorhat, who is the Chairman of the Advisory Board of the District Centre. In response to the said letter, the Inspector of Schools also furnished an adverse report against the Petitioner vide his letter PRGH/Deput/2005/35-A/4601 dated 2.7.05 and sent a proposal for recalling the Petitioner and to post her back as Subject Teacher in English and to transfer her to Namdeuri H.S. School. 7. According to the Respondents it was in the above circumstances, the Petitioner had to be reverted back to her original post and to post her in the aforesaid Namdeuri H.S. School. As regards the grievance raised by the Petitioner by filing representation, it has been stated in the counter affidavit that her representation dated 26.8.05 was forwarded to the Director, ELTI seeking his views as the same was essential, ELTI being the borrowing authority. In turn, the Director of ELTI vide his letter No. ELTI/DC/Jorhat/ 1/05/18950-54 dated 19.9.05 submitted the detailed report to the Commissioner & Secretary, Education Department and a copy of the letter was sent to the Director of Secondary Education highlighting the incidents involving the Petitioner and the Chief Tutor, Shri Tarun Tamuli. In the report the Director of ELTI also stated as to how the Petitioner after her release from the District Centre, Jorhat on 16.9.05 went to the Office of the Director, ELTI alongwith her husband and threatened the Director saying that she would commit suicide if she was not taken back as Tutor in the District Centre, Jorhat. As regards the plea of the Petitioner that there would be dearth of teacher in the Centre, the report furnished by the said Director indicated that all other District Centres are conducting the course with only one Chief Tutor and one Tutor and thus, even after the reversion of the Petitioner there would still be one Chief Tutor and one Tutor at the District Centre, Jorhat. The following stand of the Respondents in their counter affidavit is significant to note: The Deponent states that the English Language Teaching Institute, Assam (ELTI) is an autonomous organization who is the borrowing authority in this regard and the Director of Secondary Education is only the lending authority. The following stand of the Respondents in their counter affidavit is significant to note: The Deponent states that the English Language Teaching Institute, Assam (ELTI) is an autonomous organization who is the borrowing authority in this regard and the Director of Secondary Education is only the lending authority. If the borrowing authority does not want to retain anyone so lent to them the Deponent has no option but to recall such person. 8. The Petitioner by filing an affidavit in reply has controverted the stand of the Respondents in their counter affidavit. According to her the allegations made are all incorrect. Her stand is that when nothing has been done against the Chief Tutor, no such action should be taken against the Petitioner and that she has been made the victim of the circumstances. She asserts that there is utmost requirement of her service in the Centre and the Respondents dispensed with her service at the cost of requirement of the tutors in the Centre. She has also enclosed a statement designed and styled as "acknowledgment and appeal" purportedly signed by the participants of the Centre certifying that they are happy with the duties being performed by the tutors of the Centre. As regards the transfer of the Petitioner to another school on her repatriation from the Centre, she has contended that said Smt. Sibani Paul was transferred to her place at her own request without there being any public interest. In this connection, she has annexed a copy of the order dated 28.6.05 by which said Smt. Sibani Paul was transferred to her place at her own request. Thus, it is the case of the Petitioner that after her repatriation she could not have been posted to another school. 9. Mr. D.R. Gogoi, learned Counsel for the Petitioner submitted that the entire action on the part of the Respondents being based on some news paper reports, the premature repatriation of the Petitioner from the Centre was totally uncalled for. He submitted that the Petitioner being a responsible teacher and also being married, cannot indulge in any activity detrimental to the interest of the students of the Centre. He submitted that the Petitioner has been unnecessarily dragged on to an issue which is non est. He submitted that the Petitioner being a responsible teacher and also being married, cannot indulge in any activity detrimental to the interest of the students of the Centre. He submitted that the Petitioner has been unnecessarily dragged on to an issue which is non est. He finally submitted that since the repatriation of the Petitioner is a major punishment, same is liable to be interfered with solely on the ground that before such a penal action, the Petitioner was not afforded with any opportunity of being heard. 10. Mr. V.M. Thomas, learned standing counsel, Education Department representing the Respondents on the other hand made submissions supporting the action of the Respondents. He submitted that the Petitioner being only on deputation, she cannot claim it as a matter of right to continue on deputation and if the borrowing authority is not satisfied with her performance, they can repatriate her. As regards the posting of the Petitioner to another school, he submitted that such a course of action had to be adopted since the post earlier being held by the Petitioner has been filled up by way of transfer of said Smt. Sibani Paul and also considering the fact that the Petitioner has involved herself into some sort of controversy, Mr. Thomas, submitted that the posting of the Petitioner elsewhere was in public interest. 11. I have given my anxious consideration to the submissions made by the learned Counsel for the parties and the materials on record. The Petitioner was sent on deputation for a period of one year which in the normal circumstances would have come to an end on 31.12.05. Thus, really speaking viewed from this angle, the issue is now really academic inasmuch as even otherwise also the deputation of the Petitioner would have come to an end on 31.12.05. Law is well settled that an employee on deputation has no right to continue in the borrowing department. Law is also well settled that the borrowing department can very well revert a deputationist to the lending/parent department even before completion of the period of deputation for valid reasons. In the instant case apart from the news paper reports carrying certain news items speaking adversely against the relationship between the Petitioner and the Chief Tutor, the borrowing department also carried out independent investigation relating to the alleged incident. In the instant case apart from the news paper reports carrying certain news items speaking adversely against the relationship between the Petitioner and the Chief Tutor, the borrowing department also carried out independent investigation relating to the alleged incident. In the report furnished by the Director, ELTI, it was categorically mentioned that the activities of the Petitioner and Shri Tarun Tamuli created adverse public reaction at Jorhat and they lowered the image of the District Centre. Similar view has been expressed by the Officer of the lending department, i.e. the Inspector of Schools, Jorhat District Centre, Jorhat. In his report he also highlighted as to how the Petitioner without any formal order of release left her school and joined the Centre. In this connection, the Principal of the school had also written a letter to the Inspector of Schools. It was recommended that for smooth functioning of the ELTI and greater interest of the District Centre, the Petitioner should be repatriated. 12. By Annexure-D communication dated 19.9.05 issued by the Director of the Institute and addressed to the Commissioner & Secretary, Govt. of Assam in the Education Department (E & S) Department, it was indicated as to how in the given circumstances the Petitioner had to be released from the District Centre. 13. It is on the above basis, the competent authority thought it prudent to repatriate the Petitioner to her parent department. Having regard to the terms and duration of the deputation, it cannot be said that by cutting short the full tenure of deputation, the Respondents have committed any illegality. Being on deputation does not confer any right either to be absorbed or to be continued in the deputation post and the deputation its can therefore be reverted to the parent department at any time. Going on deputation, an employee does not lose his substantive status. Substantive post of the Petitioner is Subject Teacher in English. She was merely sent on deputation for a period of one year. Due to the reasons as indicated by the Respondents, she was repatriated before completion of the period of deputation. The borrowing authority is always within its competence and jurisdiction to cut short the tenure of deputation for valid reasons. The decisions and the reasons discussed above cannot be said to be arbitrary or unreasonable, more particularly when the same is connected with educational institution. The borrowing authority is always within its competence and jurisdiction to cut short the tenure of deputation for valid reasons. The decisions and the reasons discussed above cannot be said to be arbitrary or unreasonable, more particularly when the same is connected with educational institution. The educational institution is always attached with sanctity. Any adverse activities, although the same may not have been established applying the parameters and yardsticks of strict proof, may entail a kind of situation in which the Petitioner found herself to be in. The decision making process of the Respondents having regard to the greater public interest, more particularly the interest of the students cannot be said to be based on unreasonableness or illegalities. The Govt. servant holding the temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. 14. The Apex Court in the case of Union of India v. Janardhan Devanath reported in (2004) 4 SCC 245 , dealing with the issue of transferring the incumbent causing stigma on him made the following observations: 12. The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case of adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions-status, service prospects financially and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration. 14. The allegations made against the Respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. 14. The allegations made against the Respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned Counsel for the Respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the Respondents could be transferred to a different division is a matter for employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. 15. Certain incident, may be unfounded, led to the formation of opinion of the Respondents that the presence of the Petitioner in the Centre would be detrimental to the interest of the Centre. Formation of such an opinion was the creation behind, which cannot be said to be foundation. As observed by the Apex Court in the case of N.K. Singh v. Union of India reported in (1994) 6 SCC 98 , which was a case relating to transfer of the Petitioner, several factors including the suitability of the person and several imponderables requiring formation of subjective opinion may be involved as in the instant case which cannot be graded and/or taken into the fold of punitive action. In the instant case, the authority found certain irregularities on the part of the Petitioner and to maintain the healthy atmosphere of the academic institutions, the authority resorted to the impugned action which in my considered opinion cannot be said to be illegal or arbitrary. The Petitioner was not repatriated solely on the basis of the news paper reports. The procedure was adopted to verify the allegations pursuant to which reports were submitted. 16. The Petitioner was not repatriated solely on the basis of the news paper reports. The procedure was adopted to verify the allegations pursuant to which reports were submitted. 16. In the case of Ram Murti Singh v. District Inspector of Schools as reported in 1995 Supp. (3) SCC 170, the contention of the Appellant that he being the senior most, teacher in the school was entitled to be appointed as head of the Institution did not find favour of the Apex Court in consideration of the fact that the Appellant, though the senior most, was not found to be competent. His relationship with teachers and other employees was not satisfactory and hence the Management of the school expressed its apprehension that he would not be able to draw the cooperation of the teachers and employees for working as a team. The Apex Court held that if such factors were found to be detrimental to the interest of the Institution and the Appellant was not promoted though senior most, no fault could be found in the order of the District Inspector of Schools. In the instant case also, the Managing Committee of the School found certain irregularities on the part of the Petitioner and if on that basis pursuant to a fact finding enquiry, the Petitioner was transferred to another school, no fault is attributable to the impugned action and the order. 17. The expression punitive repatriation may be misleading for repatriation has not been mentioned as one of punishments in the Assam Services (Discipline & Appeal) Rules, 1964. A distinction is, therefore, drawn up between punitive repatriation and the order of repatriation by itself being punitive. When inspite of alleged misconduct an employee is transferred from one station to another, the authority uses repatriation as an alternative to disciplinary proceeding. In the case in hand the authority decided to repatriate the Petitioner to her parent department taking into the factors which cannot be said to be irrelevant and that too in proper management of an academic institution. Merely because the authority did not proceed against the Petitioner by way of departmental proceeding, it cannot be said that the authority is debarred from taking resort to the impugned action of repatriating the Petitioner to her parent department. 18. In view of the above, I am of the considered opinion that the repatriation of the Petitioner cannot be interfered with. 18. In view of the above, I am of the considered opinion that the repatriation of the Petitioner cannot be interfered with. Consequently, the impugned orders dated 12.8.05 (Annexure-7 and 8) are sustained. 19. This now leads us to the contention of the Petitioner that if at all she had to be repatriated, such repatriation should have been to the school from which she was sent on deputation. It is on record that she had been serving in the school from 1992. It is also on record that one Smt. Sibani Paul, Subject Teacher of Namdeuri H.S. School in which the Petitioner had been working against the vacant post caused by her deputation to the ELTI. Her such transfer was on the basis of the request made by her. Although the Petitioner has not seriously pursued the matter relating to her placement in the school in which said Smt. Paul was working and she basically confined her grievance relating to her repatriation only, but the learned Counsel for the Petitioner during the course of hearing also raised the issue that if at all the Petitioner had to be repatriated, such repatriation ought to have been to her former school and not to any other school by way of accommodating said Smt. Paul. 20. In the above context, two aspects of the matter are required to be borne in mind. Although the Petitioner has annexed the copy of the order dated 28.6.05 (Annexure-3 to the rejoinder affidavit) there is no formal challenge to the said order. Secondly, the beneficiary of the order, Smt. Sibani Paul is also not a party to this proceeding. Thus, no adverse order can be passed against her. It is true that the Petitioner having been sent on deputation, in the normal circumstances she is entitled to join the post/school from which she was sent on deputation. However, apart from the fact that the post was filled up by the aforesaid order dated 28.6.05, the Inspect of Schools, Jorhat District Circle, Jorhat in his Annexure-C communication dated 2.7.05 a copy of which has been annexed to the counter affidavit filed by the Respondents, recommended transfer of the Petitioner to the school from which said Smt. Paul was transferred. Smt. Paul's transfer was on her own request and such transfer was against the deputation vacancy. Smt. Paul's transfer was on her own request and such transfer was against the deputation vacancy. Unless there is any pressing necessity to transfer the Petitioner to another school, in the normal circumstances, she is entitled to be reverted back upon repatriation to her former post/school. However, if the authority feels that for the greater interest of the school, the transfer of the Petitioner from her former school to another school is necessary, bonafide formation of such an opinion cannot be interfered with. Be that as it may, since neither the order of transfer of Smt. Paul is under challenge nor Smt. Paul is a party to this proceeding, I am of the considered opinion that no adverse orders can be passed behind her back. It will be open for the Respondents to consider the grievance of the Petitioner, if so raised in respect of her posting to another school after taking into account all relevant factors and upon hearing Smt. Paul as well. In case of making any grievance by the Petitioner in this regard, the competent authority of the Respondents shall take a decision in the matter as expeditiously as possible, but at any rate not later than two months from raising such grievance, if any, by the Petitioner. 21. The writ petition is answered in the above manner. There shall be no order as to costs.