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2008 DIGILAW 1014 (JHR)

Malay Kumar Banerjee v. Union of India

2008-08-27

D.G.R.PATNAIK

body2008
Order The petitioner in the instant writ application has prayed for a writ in the nature of certiorari or any other appropriate writ for quashing the order No. F. No.2-16/ 2007-TS.VI dated 9.4.2008 (Annexure 2) issued under the signature of the Deputy Secretary of the Government of India (Respondent No.2) by which the petitioner has been repatriated to his parent cadre and has been directed to hand over charge of his office to the respondent No.5. A further prayer has been made for quashing the corresponding order No. F. No. 216/2007-TS.VI dated 9.4.2008 (Annexure 3) whereby the respondent No. 5 has been directed to assume additional charge of the post of Director, National Institute of Foundry and Forge Technology, (NIFFT), Ranchi for a period of six months with effect from the date of assumption of charge. 2. Facts of the petitioner's case in brief are as follows :- (a) The petitioner was holding the substantive post of Professor of Metallurgy under the West Bengal General Service in the Government College of Engineering and Ceramic Technology, Kolkata, West Bengal. (b) Pursuant to an advertisement, the petitioner had applied for and was appointed on the post of Director, National Institute of Foundry and Forge Technology, (NIFFT), Ranchi after due approval of the Appointment Committee of Cabinet (A.C.C.) for a period of five years in the pay scale of Rs. 18,400-500-22,400/- with effect from the date of assumption of charge of the post or until further orders, whichever is earlier. (c) Pursuant to the appointment order dated 27/28.03.2006 (Annexure1), the petitioner joined on the aforesaid post and was discharging his duties. (d) Though the petitioner was discharging his duties to the satisfaction of all concerned, but on account of certain irregularities being pointed out by the petitioner and on account of objections raised by the petitioner in the working of the Chairman, the respondent No. 4 had felt aggrieved and was in the attempt to remove the petitioner from his post. (e) The petitioner received the impugned order issued under the signature of respondent No. 2 by which it was communicated that the petitioner was repatriated to his parent cadre and he was directed to hand over charge of his office to the respondent No. 5. (e) The petitioner received the impugned order issued under the signature of respondent No. 2 by which it was communicated that the petitioner was repatriated to his parent cadre and he was directed to hand over charge of his office to the respondent No. 5. (f) Vide annexure-3, issued under the signature of the Deputy Secretary, Government of India (Respondent No. 2), the respondent No.5 was entrusted with the additional charge of the post of Director, NIFFT, Ranchi. 3. The grievance of the petitioner is that prior to the issuance of the impugned order (Annexure-2), no show cause notice was issued to the petitioner and the additional charge given to the respondent No. 5 was on the basis of pick and choose. The further grievance of the petitioner is that according to his information obtained from reliable sources, approval of the Appointment Committee of Cabinet (A.C.C.) was not obtained prior to the issuance of the impugned orders (Annexures 2 and 3). 4. Mr. Mahesh Tewari, learned counsel for the petitioner explains that there is no allegation whatsoever against the petitioner in respect of his performance of work. No reason whatsoever has been assigned by the respondents for curtailing the tenure of the petitioner's posting though under the original terms of appointment, the petitioner was entitled to continue for a period of five years from the date of his assuming office. 5. By a supplementary affidavit, the petitioner explains further that no vigilance case was pending against him before: any authority either the C.B.I, or the C.V.C. or the C.V.O., Ministry of Human Resource Development or the C.V.O., NIFFT, Ranchi. Though one complaint was filed against the petitioner for which an enquiry was initiated but the same was withdrawn on 7th of December, 2007 and intimated to the petitioner under the seal and signature of the Chief Vigilance Officer, Ministry of Human Resource Development. Learned Counsel for the petitioner explains that in the counter affidavit filed by the respondents, certain allegations have been levelled against the conduct of the petitioner which suggest that he had committed acts amounting to dereliction of duty and disobedience of superior's orders and the matter was reported to the concerned department of the Central Government and pursuant to the report, the order of premature repatriation was passed. This, according to learned counsel, clearly indicates that the premature repatriation of the petitioner was in fact by way of a punishment and under such circumstances, it was incumbent upon the respondents to issue a show cause notice to the petitioner and to afford him adequate opportunity to explain the allegations levelled against him before passing the impugned orders. Learned counsel explains further that the claim of the respondents that the petitioner's appointment in the NIFFT was by way of his deputation, is incorrect and misleading in as much as, the petitioner's employment to the post of Director, NIFFT was made pursuant to his application in response to a widely circulated advertisement and after observing the selection process. Such appointment was made by the approval of the Appointment Committee of Cabinet (A.C.C.) and the petitioner was though entitled to have his lien on his previous post, but the mere fact that the petitioner had held a lien on his previous assignment, does not lead to the conclusion that the petitioner's post as Director of the NIFFT was on deputation. In support of his submissions, learned counsel refers to and relies upon following judgments of the Supreme Court:- 1. Union of India vs. J.P.Verma & another, reported in 2003 Vol. I, All India Services Law Journal, Page 358. 2 K.H. Phadnis vs. State of Maharashtra, reported in Vol. I, SCC, page 790. 3 Anoop Jaiswal vs. Government of India & another, reported in 1984, Vol. II, SCC, page 369. 4. V.P.Ahuja vs. State of Punjab and others, reported in 2000 Vol. III, SCC, page 239. 5 Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others, reported in 1999 Vol. III, SCC, page 60. 6. Appar Apar Singh vs. State of Punjab and others, reported in 1970, Vol. III, SCC, page 338. 6. Counter affidavit has been filed by the respondents. In reply to the allegations made by the petitioner, it has been stated by the respondents 1, 2 and 6, that premature discontinuance of the tenure of the petitioner as Director, NIFFT, Ranchi is in accordance with the terms contained in the letter of his appointment. Prior approval of the Appointment Committee of Cabinet was obtained for his premature repatriation and prior approval of the Appointment Committee of Cabinet was also obtained for the additional charge of office given to Dr. Prior approval of the Appointment Committee of Cabinet was obtained for his premature repatriation and prior approval of the Appointment Committee of Cabinet was also obtained for the additional charge of office given to Dr. T.Kumar to the post of Director, NIFFT, Ranchi as a stop gap arrangement. The repatriation of the petitioner was felt necessary on account of his recalcitrant attitude and his defiance of the orders of the Chairman, Board of Governors, NIFFT, Ranchi to hold the meeting of the Board of Governors. In absence of the meeting being held, the approval of the Board of Governors on the budget proposals could not be obtained nor could the urgent informations, as required by the Ministry of Human Resource Development be submitted for being placed before the Houses of Parliament within the date fixed. Even otherwise, the notification under which the petitioner was appointed as Director, NIFFT, Ranchi, had also allowed him to retain lien in his substantive post of Professor of Metallurgy, West Bengal General Service for a period of two years with effect from 1.6.2006. 7. In the background of the facts stated, the question as raised by the petitioner is :- (i) Whether the appointment of the petitioner to the post of Director, NIFFT, Ranchi can be considered as his deputation to the post since he was allowed to retain lien in his substantive post in the West Bengal General Service? (ii) Whether the abrupt termination of his tenure and his repatriation to his parent department was malafide and actuated on account of certain allegations of misconduct on his part? (iii) Whether the order of termination without any show cause notice issued to him is illegal and against the principles of natural justice? 8. Admittedly, the Central Government is the appointing authority of the Director, NIFFT, Ranchi and such appointment is to be made, as per terms and conditions decided by the Central Government, with the approval of the Appointment Committee of Cabinet. Approval of the Appointment Committee of Cabinet is also necessary for repatriation of any officer and to make additional charge arrangements for posts, the regular appointments to which falls under the purview of the Appointment Committee of Cabinet. 9. Approval of the Appointment Committee of Cabinet is also necessary for repatriation of any officer and to make additional charge arrangements for posts, the regular appointments to which falls under the purview of the Appointment Committee of Cabinet. 9. Learned counsel for the respondents would argue that the appointment of the petitioner to the post of Director, NIFFT, Ranchi was purely on deputation basis and this is confirmed from the fact that the petitioner was allowed to retain his lien on his substantive post in the West Bengal General Service and therefore, the appointing authority has full right to terminate his deputation and repatriate him to his parent department. 10. This argument does not appear to be correct. Merely because the petitioner holds his lien in his substantive post in the State of West Bengal General Service, it cannot be said that the petitioner was appointed to the post of Director, NIFFT, Ranchi on deputation. The facts of the case indicate on the contrary, that for the appointment on the post of Director, NIFFT, Ranchi, an advertisement was published and in response to which the petitioner submitted his candidature and he was selected for his appointment to the post. His appointment was made, as required, with the approval of the Appointment Committee of Cabinet for a period of five years. It is apparently an independent selection and the State of West Bengal has merely permitted the petitioner to join his assignment as Director, NIFFT, Ranchi while allowing him the benefit to hold a lien on his substantive post so that in the event of his being repatriated, he would be eligible to continue in the West Bengal General Service till he attains the age of superannuation. The petitioner's appointment to the post Director, NIFFT, Ranchi is, therefore, not in strict terms, a deputation although loosely it can be termed as deputation. This is not, therefore, a situation where it can be said that the period of deputation can be cut short and the incumbent can be sent back to his parent department. The appointment of the petitioner even if loosely termed as deputation, stands on an entirely different category. 11. This is not, therefore, a situation where it can be said that the period of deputation can be cut short and the incumbent can be sent back to his parent department. The appointment of the petitioner even if loosely termed as deputation, stands on an entirely different category. 11. The next question is whether in the facts and circumstances of the case, the abrupt termination of the petitioner's tenure and his repatriation to his parent department can be deemed to be actuated with malice on account of certain allegations of misconduct on his part, and if so, whether it amounts to punishment? In the letter of the petitioner's appointment to the post of Director, NIFFT, Ranchi, though the tenure of his appointment was for a period of five years but it was subject to further orders whichever is earlier. It implies therefore, that the tenure could be curtailed even before the expiry of the full period of tenure. However, where the appointing authority intends to curtail the tenure, it can be done only on just grounds such as unsuitability or unsatisfactory performance and that too after giving a prior notice to the petitioner and offering him an opportunity to explain matters. Such action can be questioned if any malice is pointed out which could suggest that the premature curtailment of the tenure was actuated with malafides. 12. In the impugned order whereby the petitioner was repatriated to his parent cadre, no reasons have been assigned for the premature curtailment of his tenure. However, the reasons as indicated in the counter affidavit of the respondent No.1, 2 and 6 are that he had demonstrated a recalcitrant attitude and had defied the orders of the Chairman of the Board of Governors causing serious detriment to the working of the Institution. Reference in the counter affidavit has also been made to some complaints received against the officials of the NIFFT, Ranchi containing allegations of irregularities in the matter of purchase, construction and recruitment of employees in the Institution and a preliminary enquiry was also conducted in which the petitioner was also called upon to cooperate with the fact finding enquiry, though the matter relating to fixing the responsibility for the irregularities on the officials of the NIFFT, Ranchi is still under examination. Even though the impugned order, as observed above, does not specify the reasons for the premature curtailment of the petitioner's tenure in office, yet assertions made in the counter affidavit, allege that the petitioner had conducted himself in such a manner as a result whereof he became unfit to hold the post. In other words, the suggestion is that the petitioner has committed misconduct in the performance of his official duties. The real motive for the premature curtailment of the petitioner's tenure and his abrupt repatriation is thus obvious. 13. In the case of Union of India vs. J.P. Verma and others, AISLJ, 2003(1) 358, the Supreme Court, while considering the validity of the orders of repatriation of the petitioner therein, has made the following observations :- "There cannot be any doubt whatsoever that only because an order is not a stigmatic one on its face, the Court even in a given situation, like the present one, cannot find out the real motive for passing the said order". Under such circumstances, the petitioner has every right to question the impugned order of his repatriation where the facts stated offer material to suggest that the action taken by the respondents in the premature curtailment of his tenure was in a post-haste manner and was malafide and actuated with malice. It cannot, therefore, be said that the premature repatriation of the petitioner was "a pure accident of service". Rather the materials placed on record would suggest that the impugned order is in the nature of a punishment. 14. This leads to the third question as to whether the impugned order without issuing any show cause notice to the petitioner is illegal and against the principles of natural justice ? It is a settled principle of law that an order of premature repatriation must be passed on cogent reasons and where the reasons assigned, even though not on the face of the order, but decipherable from the pleadings, then a notice must be issued to the incumbent and an adequate opportunity must be afforded to him to explain his alleged misconduct. This is the demand of justice and equity. In the instant case, no prior notice was served upon the petitioner for curtailment of his tenure and for his premature repatriation nor was any opportunity afforded to him to explain matters which had prompted the respondents to pass the impugned order. This is the demand of justice and equity. In the instant case, no prior notice was served upon the petitioner for curtailment of his tenure and for his premature repatriation nor was any opportunity afforded to him to explain matters which had prompted the respondents to pass the impugned order. The impugned order, therefore, cannot be sustained and it is, therefore, hereby quashed. The petitioner shall be entitled to restoration of his post as Director, NIFFT, Ranchi. 15. Learned counsel for the respondents submits that the petitioner has already handed over charge of his office as Director, NIFFT, Ranchi and has since thereafter, joined in his substantive post under the West Bengal General Service. Learned counsel for the petitioner explains that it was under extreme pressure of the respondents that the petitioner felt compelled to handover charge of his office. Under such circumstance, if the petitioner demands restoration of his post as Director, NIFFT, Ranchi, the respondents shall allow the same to him under the original terms of his appointment. With the above observations, this writ application is disposed of. There would be no order as to cost.