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2008 DIGILAW 926 (CAL)

Damodar Valley Corporation v. Rajesh Kumar

2008-09-16

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT:- K.J. SENGUPTA, J (1.) All those matters are taken up together since all are directed against the same judgment and order passed by the learned Central Administrative Tribunal (CAT). Originally first application being W.P.C.T. No. 28 of 2008 was taken out by Damodar Valley Corporation (DVC) and its chairman dated 30th October, 2007. Thereafter Union of India and the State of West Bengal also filed separate applications Challenging the same judgment and order and in course of hearing of those matters a fresh application was taken out against the judgment and order passed by the learned Tribunal on 1st February, 2008 on two review applications and contempt application. All those matters relate to the legality and validity of the order of repatriation of Rajesh Kumar, the first respondent, who is a cadre of Indian Police Service (hereinafter referred to IPS in short) and at the time of deputation he was holding the post of Deputy Inspector General of Police. The fact of the case before the learned Tribunal was that Rajesh Kumar was sent for central deputation to the post of Financial Advisor (DVC), Kolkata for a period of five years by an order dated 13th September, 2006. While he was in deputation, according to him, he was prematurely repatriated and was taken back to his parent department. His grievance is that he was selected by the competent authority for deputation with the approval of Appointment Committee of the Cabinet (ACC). But he was repatriated without concurrence of the said ACC. He further contends that the ground for premature repatriation was allegedly for administrative exigency but the fact subsequently reveals that there was none as despite repatriation no posting order was issued even after joining the parent department. Hence, in absence of such ground of repatriation order is mala fide. (2.) The first respondent, Rajesh Kumar, therefore, approached learned Tribunal for the relief of cancellation and/or withdrawal of the impugned letter recalling the applicant from deputation prematurely and for further order allowing the applicant to continue in the deputation for at least normal period of deputation of five years. The said application was opposed by the respondent viz. DVC by filing affidavit before the learned Tribunal and also by Union of India and State of West Bengal. The said application was opposed by the respondent viz. DVC by filing affidavit before the learned Tribunal and also by Union of India and State of West Bengal. The learned Tribunal on hearing the parties came to conclusion that order of repatriation was invalid as it was not passed in concurrence with the ACC who is the competent authority to grant approval of any order of deputation and that of repatriation. It was also found by the learned Tribunal that order of repatriation apart from being illegal was not issued in bona fide exercise of power by the Government. It appears from the record as it has been brought to our notice by the learned Counsels for the parties that the applicant moved the learned Tribunal challenging the letter of Chief Secretary of the State of West Bengal dated 10th May, 2007 requesting the Secretary, Ministry of Power, Government of India for release of Rajesh Kumar. On 21st May, 2007 the applicant moved the learned Tribunal with the aforesaid prayer originally and prayed for interim relief. On 21st May, 2007 the learned Tribunal passed an order of stay of operation of letter dated 10th May, 2007 issued by the Chief Secretary for a period of fourteen days and directed the matter to be placed for hearing on 4th June, 2007 for further order. It is not known to us whether on 4th June, 2007 it was heard or not. But on 6th June, 2007 the matter was heard by the learned Tribunal. On that date the learned Tribunal noted on perusal of the records that the applicant stood repatriated. Rajesh Kumar complained on the date that repatriation was made in violation of the said order. It was observed by the learned Tribunal that since the applicant stood repatriated no interim order could be passed at that stage and the matter was scheduled for hearing on 5th July, 2007 for further orders and, direction for filing reply was given within four weeks. On 5th July, 2007 the matter was taken up for hearing and on that date it was recorded by the learned Tribunal that contesting respondents had filed affidavit-in-reply and Rajesh Kumar did not want to file any rejoinder. However, the matter was not heard on that date and it was shifted to 9th August, 2007 for final disposal. What happened on 9th August, 2007 is not clear before us. However, the matter was not heard on that date and it was shifted to 9th August, 2007 for final disposal. What happened on 9th August, 2007 is not clear before us. It appears that on 16th August, 2007 a contempt application filed earlier by Dr. Rajesh Kumar, being CPC No. 50 of 2007 was disposed of by observing that there was no contempt and original application was shifted for hearing on 23rd August, 2007. But observing sequence of events as it reflects from the order-sheet, it appears that the question of admission at that stage did not and could not arise since it had already been admitted and direction for filing affidavit was given and indeed it was supposed to be heard finally in terms of orders dated 5th July, 2007 and 9th August, 2007. In view of subsequent events an application was filed by the applicant being M.A. No. 456 of 2007 for amendment of original application and the said application was disposed of allowing amendment and direction for filing reply was given within three weeks from the date of the receipt of the amended copy of the application and one weeks time was given for filing affidavit of rejoinder and the original application was placed for hearing on 27th September, 2007. It appears that on 27th September, 2007 the original application was taken up for hearing but the matter was not heard and as such the same was adjourned till 13th November, 2007. Thereafter the matter might have been mentioned on 28th September, 2007 by the applicant as despite repatriation the applicant was not given his salary for three or four months nor any posting order was issued. After hearing necessary direction was given by the learned Tribunal for payment of salary as well as for issuing posting order and the hearing of the matter was preponed on 12th October, 2007. By the said order dated 28th September, 2007 it was directed that by 12th October, 2007 copy of the posting order must be filed. (3.) It appears from the records that on 12th October, 2007 the said application was taken up for hearing. According to DVC, Union of India and the State of West Bengal on 12th October, 2007 the matter was not heard on merit and in fact could not be heard as the matter was directed to be placed for submitting the order of posting. According to DVC, Union of India and the State of West Bengal on 12th October, 2007 the matter was not heard on merit and in fact could not be heard as the matter was directed to be placed for submitting the order of posting. As such there was no occasion to advance any argument on merit for final hearing on that date. However, the learned Tribunal recorded in the order dated 12th October, 2007 that the matter was heard finally and the judgment was kept reserved. The case of Rajesh Kumar is that the matter was finally heard on 12th October, 2007 and the learned Counsels for both the parties advanced arguments and ultimately the judgment was kept reserved and the same was delivered on 30th October, 2007. Thereafter DVC and Union of India filed review application against the said judgment and order and the said application for review was dismissed by the judgment and order dated as above. Before dismissal of the review application the DVC filed an application being WPCT No. 727 of 2007 challenging the same judgment and order dated 30th October, 2007 in this Court but the said application was not entertained in view of the pendency of the review application. Thereafter the present application has been filed by DVC, State of West Bengal and the Union of India as above after dismissal of the review application, and in course of hearing of these matters viz. WPCT 28 of 2008, 108 of 2008 and COCT 3 of 2008 the aforesaid application being 161 of 2008 was filed challenging the order dismissing review application and Mr. Mukherjees client filed an affidavit-in-opposition to the second application challenging the order of dismissal of review. However, the argument was advanced by all the parties both in connection with the application against the order of the learned Tribunal allowing the application of Rajesh Kumar and also the order of dismissal of review. (4.) Mr. Samaraditya Pal, learned Senior Advocate, appearing with Mr. Partha Sarathi Sengupta and Mr. D.N. Roy, learned Advocates for the DVC submits, highlighting the fact stated in their application, that the application of Rajesh Kumar being O.A. No. 418 of 2007 was allowed by the learned Tribunal by the impugned judgment and order dated 30th October, 2007 without any hearing whatsoever on 12th October, 2007. Partha Sarathi Sengupta and Mr. D.N. Roy, learned Advocates for the DVC submits, highlighting the fact stated in their application, that the application of Rajesh Kumar being O.A. No. 418 of 2007 was allowed by the learned Tribunal by the impugned judgment and order dated 30th October, 2007 without any hearing whatsoever on 12th October, 2007. He submits that the said original application was schduled to be heard on 13th November, 2007 and it will be appearing from the order dated 27th September, 2007, however, on 28th September, 2007 the learned Tribunal by an order placed the matter for hearing on 12th October, 2007. If order dated 28th September, 2007 is read minutely it will appear that on 12th October, 2007 the learned Tribunal did not fix the original matter for hearing and the intention of the learned Tribunal was to see that the direction given in the order dated 28th September, 2007 was carried out or not. It was further submitted that on 12th October, 2007 the matter appeared in the list but it was not heard at all on merit. The fact that the matter was not heard on 12th October, 2007 will appear from the impugned judgment and the order itself wherein reliance has been made on a judgment rendered by Principal Bench of Tribunal at New Delhi dated 12th October, 2007 on OA. No.151 of 2007. Obviously therefore the judgment could not be cited. The impugned judgment was delivered not in the courtroom but in the Chamber of one of the members of the Tribunal while sitting in Vacation Bench. The basis of granting relief to Rajesh Kumar is a judgment and order of the Principal Bench rendered on 12th October, 2007 and thus his client had no opportunity to make any submission with regard to the judgment and thereby principle of natural justice has been denied. In support of his contention he has relied on the following judgments reported in 1982(1) All ER 1042, AIR 1963 SC 375 (at page 377), 2003(8) SCC 40 , therefore, he contends that the said judgment and order should be set aside and be remanded for fresh hearing of the matter. Mr. Pal then argues on merit of the application that the Tribunal should have rejected the application as the challenge is against the order of repatriation. Mr. Mr. Pal then argues on merit of the application that the Tribunal should have rejected the application as the challenge is against the order of repatriation. Mr. Rajesh Kumar was on deputation in the DVC and the lending authority was State of West Bengal. When the parent department recalled him it was incumbent on the part of the DVC to release him automatically and this was done in accordance with the law the moment the Chief Secretary of the West Bengal requested the Ministry of Power for releasing him. Mr. Rajesh Kumar, being the deputationist, has no justiciable right to enforce before the Tribunal or Court of law as it is settled law that deputationist has no right to remain in the post to which he is deputed. He was lawfully released on repatriation. The grievance and complaint of Rajesh Kumar is not tenable in view of the explanation given by the State of West Bengal and Union of India. In support of his contention he has relied on the following authorities viz. 1990 (Supp.) SCC 243; 1997(8) SCC 372 , AIR 1962 SC 794 , 1994(5) SLR 325 (DB)(AP) 1969 Lab IC 721(Cal), AIR 1966 Cal 402 , 2001(4) SLR 447, 1984(2) SLR 396, 2005(1) SLR 629. It is alleged and the learned Tribunal has found that the order of repatriation is mala fide. There has been no particulars in the pleading as to the allegation of mala fide and such allegation must spell out particulars. In absence thereof the allegations of mala fide should be ignored. In support of his submission he has relied on following decisions of the Supreme Court and High Court reported in 1979(3) SCC 165 ; 1988(3) SLR 336; 2001 (2) SCC 330 and AIR 1959 SC 395 . It is also settled law that burden of proof in case of mala fide lies on the persons who allege the same. He further submits that on the factual aspect order of deputation is very clear that it was for a period of five years or further order whichever takes place earlier. Therefore, there is no ambiguity that he could be recalled and/or repatriated at any time and it is not a case of holding of tenure post of deputation. He further submits that on the factual aspect order of deputation is very clear that it was for a period of five years or further order whichever takes place earlier. Therefore, there is no ambiguity that he could be recalled and/or repatriated at any time and it is not a case of holding of tenure post of deputation. He contends that at the High Court stage this new case has been made out by Rajesh Kumar and no such case was made out before the learned Tribunal. The attempt to make out a new case of holding a tenure post in deputation has been made desperately relying on the Recruitment Rules of DVC. He was not selected for recruitment and the said Rule is applicable in case of regular recruitment and not in case of deputation as it has been done here. Therefore, the learned Tribunal without having any pleading as to mala fide has allowed the said application. The learned Tribunal has totally overlooked the relevant Rules regarding repatriation. Rajesh Kumar is a member of Indian Police Service which is one of the services under the All India Services Act, 1951. In exercise of the powers of the said Act the Indian Police Service (Cadre) Rules, 1954 was promulgated. Under Rule 6 of the said rules an officer could be deputed in service under the Central Government with the consent of the State Government concerned. The procedure/policy of deputation has to be governed by the Office Memorandum No. 1.21023/21/97 -IPS. III. He submits that paragraph 10 of the said guidelines provides that deputation tenure as prescribed in the preceding paragraphs will not confer any right on the officers to remain on Central deputation. The Central Government reserves right to revert such officers to their parent cadres at any time without assigning any reason. Therefore, he says that the complaint against repatriation in violation of the guidelines is without any substance. He would urge that a new case has been made out before this Court that Rajesh Kumar has been deputed in the establishment of DVC, therefore, his deputation should be treated to be under the relevant rules of the DVC that provides for fixed period. Mr. Pal says that this contention is absolutely incorrect as the order of deputation is very clear and it has been acted upon by all concerned. Mr. Pal says that this contention is absolutely incorrect as the order of deputation is very clear and it has been acted upon by all concerned. The petitioner himself understood that the tenure of deputation would be five years or until further order whichever takes place earlier. He cannot claim any right to remain in DVC for the fixed period of five years. The said Recruitment Rules is applicable in case of recruitment done by DVC, who then becomes employer, and in such situation the deputationist may be the direct officer of the DVC. Here it is ordinary deputation and the parent establishment is Government of West Bengal who is the lending authority to enable DVC to borrow. The lending authority remains disciplinary authority with administrative control, and the deputationist merely serves in the establishment of DVC. The administrative control is with the parent department viz. Government of West Bengal. (5.) Mr. Pal, while criticising impugned judgment and order dated 13th October, 2007 submits that it is incorrect to hold that the Appointment Committee of Cabinet (ACC) is the competent authority to accord approval of premature repatriation. He says that the learned Tribunal did not take note of the subsequent notification. The aforesaid observation of learned Tribunal was made in the context of the Office Memorandum dated 15th October, 1997 bearing number 27/12/97 -EO (ACC), but did not take note of the subsequent Office Memorandum dated 3rd July, 2006 which provides for power of premature repatriation in respect of the officer of the cadre like Rajesh Kumar. He says that in terms of the said Circular dated 3rd July, 2006 the concerned Ministry is empowered to approve of appointments which include posting and repatriation of the officers other than the post of Director, Chief Vigilance Officer, Executive Director in the Public Sector Undertaking. Sri Rajesh Kumar does not belong to the category of the aforesaid officials. Therefore, his repatriation does not require approval of the ACC. (6.) Mr. Pal further argues, while assailing the judgment and order of review dated 1st February, 2006, that the learned Tribunal while deciding the review application failed to take notice of the aforesaid apparent mistake on the records. Subsequent notification dated 3rd July, 2006 should have been looked into. Therefore, his repatriation does not require approval of the ACC. (6.) Mr. Pal further argues, while assailing the judgment and order of review dated 1st February, 2006, that the learned Tribunal while deciding the review application failed to take notice of the aforesaid apparent mistake on the records. Subsequent notification dated 3rd July, 2006 should have been looked into. He further contends that the learned Tribunal should have held on the review application that on 12th October, 2007 there has been no hearing and it would be apparent from the judgment itself by reason of the fact that a decision of the Principal Bench of the Tribunal relied on by the learned Tribunal was delivered on the date of hearing itself. It is absurd to take note of a decision which was rendered on the same date of hearing. Therefore, it is clear that on 12th October, 2007 no argument was advanced because the said judgment of the Principal Bench dated 12th October, 2007 could not be cited and indeed it was impossible for any of the parties to cite such judgment. (7.) He further submits that even order dated 12th October, 2007 was not signed by one of the member of the Bench, and the impugned judgment and order dated 30th October, 2007 was delivered unusually during Vacation Bench by one member simply because another member was not available. (8.) Mr. Biswaranjan Ghosal, learned Senior Advocate, appearing for Union of India, has adopted argument of Mr. Pal. However, he supplement to Mr. Pauls argument that the impugned judgment and order dated 30th October, 2007 was delivered without giving any hearing whatsoever. According to him, on 12th October, 2007 no hearing took place and this would be substantiated by the affidavit affirmed by Sri Ranadhir Kumar De, learned Advocate for the Union of India, at page 103 of DVC writ petition. According to him, on 27th September, 2007 the matter appeared in the list when all the parties participated and order was passed to the effect that the matter be adjourned till 13th November, 2007 and the parties would have to file their reply in the meantime. However, subsequently on the following day another order was passed ignoring order dated 27th September, 2007. According to him, order dated 28th September, 2007 was invalid as the same was passed by inappropriate Bench. However, subsequently on the following day another order was passed ignoring order dated 27th September, 2007. According to him, order dated 28th September, 2007 was invalid as the same was passed by inappropriate Bench. He further submits that the impugned judgment and order was not delivered in open Court in complete disregard to Rule. 20 of the Administrative Tribunal Procedure Rules and the said order has to be signed on the same day after the same having been pronounced in open Court in terms of the said Rules. The judgment was pronounced by one member during Vacation Bench. He further contends that thus the said judgment and order is invalid one, as the well-ettled principle of law is that when a particular thing is required to be done in accordance with a particular method this has to be done in accordance such method or not at all. In support of this contention he relies on the decision of the Supreme Court reported in AIR 1954 SC 194 . (9.) Mr. Subrata Mukhopadhya, learned Counsel for the State of West Bengal, submits that Rajesh Kumar is an IPS officer in the rank of Deputy Inspector General of Police. Admittedly he belongs to the cadre of West Bengal Police Service. He was sent on deputation with a specific order that he would be deputed for a period of five years in DVC or until further order whichever event takes place earlier. In view of urgency because of adverse law and order situation prevailing in West Bengal particularly for the problem created by terrorist and extremist outfits, service of experienced officer like Rajesh Kumar was required. Therefore, the Chief Secretary of the Government of West Bengal wrote to the Secretary to Union Power Ministry to release Rajesh Kumar from DVC. He submits while adopting argument of Mr. Pal the deputationist has no vested right to continue in deputation for a fixed period. At any time, the parent department may recall him and this power is inherently possessed by State of West Bengal. There is no mala fide and in fact there is no particulars of act of mala fide. There is dearth of officers in the State of West Bengal Police establishment. As such, he is posted at appropriate place. At any time, the parent department may recall him and this power is inherently possessed by State of West Bengal. There is no mala fide and in fact there is no particulars of act of mala fide. There is dearth of officers in the State of West Bengal Police establishment. As such, he is posted at appropriate place. He explained that immediately after recall suitable posting order could not be given and as such he was kept waiting for identifying suitable posting. Hence, waiting for a limited period is quite normal and natural. Thereafter he has been posted now at an appropriate place to deal with the terrorist and extremist outfits and/or groups who are working on the Indo-Bangladesh Border. (10) Mr. Saktinath Mukherjee, appearing for Rajesh Kumar, while opposing all these applications, submits that there is no illegality and infirmity in either of the two judgment and orders dated 30th October, 2007 and 1st February, 2008 respectively. While drawing our attention to the order-sheets of the original records produced before us he submits that his client filed Original Application No. 418 of 2007 on 21st May, 2007 and the said application was moved on 21st May, 2007 itself for interim relief upon notice to the respondents and in view of urgency on the prayer of his Client interim order was passed by the learned Tribunal as none appeared on behalf of the respondents to the effect that the impugned letter dated 10th May, 2007 being Annexure AI of the application (letter of the Chief Secretary to the Ministry of Power) is stayed for a period of fourteen days and the matter was directed to be heard on 4th June, 2007. This original matter was taken up for hearing on 6th June, 2007 when an application for contempt was filed and both the matters were heard together. The contempt application was required to be filed in view of violation of the interim order passed earlier on 14th May, 2007. The DVC illegally released the petitioner. On 6th June, 2007 the learned Tribunal passed an order that since the applicant stood released no interim order could be passed at that stage and the matter was directed to be listed on 5th July, 2007 for further orders. The respondents were given liberty to file affidavit-in-reply within four weeks. On 5th July, 2007 the matter was taken up for hearing. The respondents were given liberty to file affidavit-in-reply within four weeks. On 5th July, 2007 the matter was taken up for hearing. All the parties on behalf of the respondents filed their affidavits-in-reply and the matter was adjourned for hearing till 9th August, 2007 for final disposal. On that date it is specifically recorded that no affidavit of rejoinder would be filed. On 16th August, 2007 both the contempt application and original application appeared in the list. On that date contempt application was dropped and the original application was listed for hearing/admission on 23rd August, 2007. He contends that the word "admission" was recorded in the said order mistakenly since the application had already been admitted and direction for filing of affidavit was given and indeed affidavit-in-reply was filed prior to 16th August, 2007 hence the matter was ready for hearing. On 23rd August, 2007 original matter appeared in the list and on that date a miscellaneous application was filed by his client for necessary amendment as in the meantime there has been subsequent development. The said application for amendment was allowed and after amendment being carried put direction was given to file amended copy of the application and also to serve the same to all the parties. Direction was given to file affidavit-in-reply within three weeks from the date of receipt of the amended copy. Direction for filing affidavit of rejoinder was also given and the said matter was directed to be fixed for hearing on 26th September, 2007. Thus, it is clear that every chance was given to file affidavit-in-reply even after amendment of original application. On 27th September, 2007 the matter again appeared in the list and the same was adjourned till 13th November, 2007. On 20th September, 2007 the said matter was taken up for hearing as it was mentioned for appropriate relief that he was not being paid salary for three or four months and he was kept waiting and direction was asked for issuing a posting order and to allow him to join his parent department without prejudice to the rights and contentions of pending application challenging the order of repatriation. Taking note of the aforesaid submission the learned Tribunal directed to issue order of posting and Chief Secretary and other respondents were directed to file reply as it was not done earlier and to submit a copy of the posting order issued on the next date of hearing and the hearing of the original application was fixed on 12th October, 2007. Thus, it would appear from the copy of the order dated 12th October, 2007 that the hearing was concluded on that date itself. It is true that one of the members had signed the said order but that does not render the same being illegal. He contends that on 12th October, 2007 the learned Tribunal heard out the matter and did not deliver judgment. On 30th October, 2007 during Vacation Bench, the said matter appeared in the cause list under the heading judgment and the same was delivered by one of the members who was sitting in Vacation Bench. He pronounced the judgment as he was to retire before reopening of Puja Holidays. The aforesaid sequence of events would appear from the facts recorded in the order-sheets. (11.) He contends that taking all these points mentioned in this application the review application was made before the learned Tribunal and the learned Tribunal in no uncertain terms has held that on 12th October, 2007 the matter was heard finally. One of the members who was a party to the earlier Bench which had disposed of the matter on 30th October, 2007 was also a party to the Bench which has dealt with the review application. It has been recorded in great details as to how hearing took place on 12th October 2007, Mr. Mukherjee submits that it is not open for the litigant to question about the correctness or truthfulness of the aforesaid recording. This is not permissible under the law. In support of his submission he has relied on a decision of the Supreme Court rendered in case of State of Maharashtra vs. Ramdas, reported in 1982(2) SCC 463 . The said case was also followed subsequently in a large number of decisions of the Supreme Court which are stated hereunder: 2001 (2) SCC 221 (in the case of B.P. Chakda; AIR 2003 SC 4043 (Shankar Mondal vs. State of Bihar); AIR 2003 SC 511 (Bhav a Nagar University); 2003(7) SCC 546 (Guruvawoor Devaswom vs. C.K. Rajar). The said case was also followed subsequently in a large number of decisions of the Supreme Court which are stated hereunder: 2001 (2) SCC 221 (in the case of B.P. Chakda; AIR 2003 SC 4043 (Shankar Mondal vs. State of Bihar); AIR 2003 SC 511 (Bhav a Nagar University); 2003(7) SCC 546 (Guruvawoor Devaswom vs. C.K. Rajar). Therefore, the contention of the applicants that the learned Tribunal did not hear out the matter on 12th October, 2007 has no foundation at all and the same should be rejected. Now coming to the merit of the case Mr. Mukherjee submits that the order of repatriation was passed by an incompetent authority. It is an admitted case of premature repatriation and premature repatriation has to be approved by the ACC and admittedly it was not done. The Tribunal has taken note of the aforesaid legal defect. Moreover, he contends that order of repatriation is mala fide as it was done at the behest of the Chief Secretarys personal letter wherein it has been contended that there are dearth of officers in the West Bengal Police establishment to cope up with the problem of extremist and terrorist outfits as such officer like Rajesh Kumar is required. While producing a data regarding strength of police officials in the State of West Bengal he submits that at the relevant point of time there was no vacant post available for the cadre of DIG. It is surprising that in spite of the fact that in the past his client did not have any experience to deal with the extremist or terrorist problem and all the time he was almost under deputation his client was recalled for tackling this problem. It is also significant that the Home Ministry, on receipt of the letter of the Chief Secretary, has asked for the comments of the Power Ministry and without waiting for any comments from the Home Ministry or Power Ministry DVC released him on 17th May, 2007 and it would appear from the fact that there was no need for the police officer like Rajesh Kumar as after his release he had to wait to have a posting till the month of March, 2008 and that too owing to the intervention of the Tribunal after three long months. He was kept waiting and was not being paid salary. He was kept waiting and was not being paid salary. It is surprising that before any formal order of repatriation was issued, he had not been allowed to enter the office chamber of DVC. The learned Tribunal has dealt with all these aspects in the judgment. He submits that on the identical facts and circumstances Principal Bench of Tribunal has held that premature repatriation order can be passed only with the approval of the ACC. Therefore, this issue has already been settled and the Tribunal had no option but to follow the judgment of the Principal Bench. In addition to and without prejudice to the said argument he contends that his deputation to the DVC is in a tenure post. He could not be repatriated before expiry of the fixed period. The words until further orders incorporated in the order of appointment dated 13th July, 2006 was issued in peculiar exigency and the same cannot be construed in altering or changing the statutory tenure of the post. According to him, tenor of section 6 of the Damodar Valley Corporation Act and the Rules framed thereunder is mandatory. He cannot, therefore, be repatriated prematurely. In support of his contention he has relied on the following decisions of the Supreme Court: AIR 1967 SC 1305 (Vice Chancellor, Osmania University vs. Chancellor, Osmania University and Ors.), 1992(3) SCC 526 , 2008(5) SCC 1 (P. Venugopal vs. Union of India and Ors.), 2007(6) SCC 276 (Union of India and Anr. vs. Shardindu). He contends that even in case of ordinary deputation (unlike tenure deputation) an order of repatriation is liable to be struck down if it is found to be arbitrary, unreasonable and mala fide. He places reliance on a Supreme Court decision reported in 2005(8) SCC 394 {Union of India vs. Rama Krishnan). According to him, the words until further orders are irrelevant and this has to be ignored and this tenure of deputation must be said to be for five years. In support of his contention he has relied on AIR 1985 SC 1046 . Mr. According to him, the words until further orders are irrelevant and this has to be ignored and this tenure of deputation must be said to be for five years. In support of his contention he has relied on AIR 1985 SC 1046 . Mr. Mukherjee stated that it is true that in the original application aforesaid contention of tenure deputation was not pleaded but it was pleaded in the affidavit of rejoinder and this can be taken into consideration by the Court or the Tribunal and in support of his submission he has relied on the following decision reported in AIR 1965 SC 1578 (Srila Sri Subramania vs. State of Madras), a Division Bench judgment of the Bombay High Court reported in AIR 1980 Bom 280 (Union of India vs. Alok Exports). (12.) After hearing the learned Counsels for the parties it appears to us that two following basic points are agitated by the parties: (1) Whether on 12th October, 2007 original application being O.A. No. 418 of 2000 was heard or not. (2) If so, whether the impugned judgment and order dated 30th October, 2007 is legally sustainable or not. (13.) We feel the first point is to be decided first for if we find there has been no hearing of the original matter on 12th October, 2007, obviously as urged by Mr. Pal and Mr. Ghosal entire matter has to be remanded for fresh hearing; else parties will be losing one forum if this Court decides this matter on merit ignoring the aforesaid contention. In order to find out the correctness of the contention we have checked up the order-sheets from the original records that are brought before us. It appears that an affidavit has been filed by a learned Lawyer who appeared on behalf of Union of India stating that on 12th October, 2007 the matter was not heard and above day was fixed only for the purpose of reporting that the posting order had been issued. Affidavit, no doubt, has got importance. We think that all these points agitated before us were brought to the attention of the learned Tribunal by filing an application for review. There were two applications for review being R.A. No. 21 of 2007 and R.A. No. 1 of 2008 before the learned Tribunal. Affidavit, no doubt, has got importance. We think that all these points agitated before us were brought to the attention of the learned Tribunal by filing an application for review. There were two applications for review being R.A. No. 21 of 2007 and R.A. No. 1 of 2008 before the learned Tribunal. First review application was filed by the Union of India and second one was filed by the Chairman of DVC. By detailed and elaborate judgment two members Bench of the learned Tribunal on 1st February, 2008 has found and held as much that on 12th October, 2007 the matters was heard on merit and all the learned Counsels advanced their arguments. The said judgment on review application was written by Dr. D.K. Sahu who was one of the members of the Bench which passed the impugned judgment and order on 30th October, 2007 after having heard on 12th October, 2007. In the said Bench Dr. A. R. Basu was Administrative Member. Dr. Sahu, in this judgment of review has clearly recorded that the matter was heard on 12th October, 2007 by two members Bench. We appropriately quote exact language used in the said judgment on review in this context: "The matter came up on 12th October, 2007 for hearing as ordered by two-members Bench including the Vice Chairman. Order dated 12th October, 2007 reveals that all the parties have been heard by two-member Bench. Contention of the Counsel that they have not been given reasonable opportunity of being heard is not a fact. I, Dr. D. K. Sahu was one of such members I recollect that the merit of posting order i.e. validity of repatriation/transfer order being the sole issue in the proceedings, we heard about the merit of the posting order which too is the issue of validity of the impugned postings/repatriation and after perusal of the pleadings and documents we felt that it was sufficient to dispose of the application. Accordingly, having heard the Counsels we reserve the order. The petitioner/respondent No. 4 has stated the same in R.A. No. 1 of 2008 in para 6 that on 12th October. 2007 only the merit of posting order/compulsory waiting was taken into consideration by the Honble Bench of this Tribunal. However, the Bench observed that the order is kept reserved. The order dated 12th October. 2007 of the file reveals that the parties have been heard. So. 2007 only the merit of posting order/compulsory waiting was taken into consideration by the Honble Bench of this Tribunal. However, the Bench observed that the order is kept reserved. The order dated 12th October. 2007 of the file reveals that the parties have been heard. So. the submission that they have not been heard in the question of transfer is not sustainable. (emphasis supplied)." (14.) In view of the aforesaid emphatic and clear findings on fact by the learned Tribunal it would be wholly improper for us to disbelieve such statement of fact recorded by the competent forum, solely relying on the submission and statement made by the learned Members of the Bar before us and also affidavit affirmed by the learned Advocate. If we do so it would be an exercise of belief and disbelief of the statements of fact recorded by the learned Tribunal in exercise of its quasi judicial function. The learned Members of the Tribunal had or has no individual connection with any of the parties nor any interest in the matter except for administration of justice unlike the learned Lawyers for the litigant. Obviously if we do so that would amount to bringing the Tribunal to the category of parties to the lis which would not only be an atrocious attempt but also destructive to the judicial system. After all the learned Lawyer though recognised as an officer of the Court, is actually or legally recognised agent of a litigant. Naturally a Lawyer being a human being will be tending to support his client putting forward any case in order to protect his clients interest. The learned Counsels, Mr. Ghosal, Mr. Pal and Mr. Subrata Mukherjee want us to accept the statement made by the learned Lawyers ignoring findings of the learned Tribunal. We are unable to do so for the reasons we have discussed above. Our thoughts have been strengthened by the pronouncement of the Supreme Court on this issue. The Supreme Court in case of State of Maharashtra vs. Ramdas, 1982(2) SCC 463 , stated as rightly argued by Mr. S. N. Mukherjee, on the proposition of law that the Court cannot launch into an enquiry what transpired in another Court and particularly when it is recorded by the learned Tribunal on attention being drawn as to what happened. The Supreme Court in case of State of Maharashtra vs. Ramdas, 1982(2) SCC 463 , stated as rightly argued by Mr. S. N. Mukherjee, on the proposition of law that the Court cannot launch into an enquiry what transpired in another Court and particularly when it is recorded by the learned Tribunal on attention being drawn as to what happened. In the case of State of Maharashtra vs. Ramdas, reported in 1982 (2) SCC 463 , the two-Judges Bench observed amongst others which is as follows: " We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. Judgments cannot be treated as mere counters in the game of litigations. We are bound to accept the statement of the Judges recorded in their judgments as to what transpired in Court. We cannot allow the statement of the Judge to be contradicted by statement of the Bar or affidavit and other evidence. If the Judges say in the judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statement of facts as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment it is incumbent upon the party, when the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there......." (15.) The aforesaid two Judges Bench decision was also accepted subsequently and followed by three Judges Bench of the Supreme Court in case of B.P. Chakda, reported in 2001(2) SCC 221 . That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there......." (15.) The aforesaid two Judges Bench decision was also accepted subsequently and followed by three Judges Bench of the Supreme Court in case of B.P. Chakda, reported in 2001(2) SCC 221 . In paragraphs 18, 19, 20 of this judgment the aforesaid statement of law rendered in case of State of Maharashtra vs. Ramdas, has been approved. Subsequently the aforesaid statement of law has been consistently accepted subsequently by other four judgments of the Supreme Court as follows: AIR 2003 SC 4043 (Shankar Mondal vs State of Bihar), AIR 2003 SC 511 (Bhav a Nagar University case), 2003(7) SCC 546 (Guruvawoor Devaswom vs. C.K. Rajar). The said judgment and order passed on review application is also challenged before us on the ground that the aforesaid fact finding is incorrect. We simply negative this argument and we have no option but to believe what has been recorded by the learned Tribunal on fact and they are only the persons who can tell the truth in the judgment. Even if for argument sake it is assumed that it is incorrectly recorded still then the judicial decorum and the rule of judicial restraint would not permit us to open any enquiry. Besides, on perusal of the records we find contention raised on this point challenging the judgment and order of review is wholly unfounded and it would appear from the sequence of event how final order was passed ultimately. It appears from record that on 21st May, 2007 the matter was heard for the first time and interim order was passed. On 6th June, 2007 it appears that original matter came up for hearing together with contempt application as it was alleged that order of repatriation was made in violation of the Rules and also in violation of the interim order. On that date the hearing was adjourned and chance was given to the parties to file affidavit-in-reply within four weeks. On 5th July, 2007 the matter came up for hearing and all parties were present and it was recorded that the pleadings in the said original application was complete and the matter was adjourned for hearing till 9th August, 2007. On 16th August, 2007 the contempt application was heard and rejected. On 5th July, 2007 the matter came up for hearing and all parties were present and it was recorded that the pleadings in the said original application was complete and the matter was adjourned for hearing till 9th August, 2007. On 16th August, 2007 the contempt application was heard and rejected. But the original application was directed for being enlisted for hearing on 23rd August, 2007 though two words viz. hearing/admission were recorded. in the order but having regard to the facts that reflect from the records, we think that there was no scope for admission of the matter since it had already been admitted. On 23rd August, 2007 the original application along with amendment application came up for hearing and application for amendment was allowed and original application was listed for hearing on 27th September, 2007 and time was given to file affidavit-in-reply and rejoinder in view of the amendment of the original application. On 27th September, 2007 the matter again came up for hearing and it was found that affidavits were not filed, so extension was granted and the matter was adjourned till 13th November, 2007. On 28th November, 2007 the matter was mentioned and was taken up for hearing. In the said order it has been specifically mentioned that matter was adjourned for hearing till 12th October, 2007 and on that date. State of West Bengal was directed to file order of posting. On 12th October, 2007 the matter came up for hearing and it has been recorded that the hearing was concluded and judgment was reserved. It is true that the said order was not signed by one of the members but that does not invalidate the same as it is accepted and reaffirmed by the judgment rendered on review application. In the original order we have noted that all the parties appeared, and it is important to note that surprisingly no application was made for recalling of said order dated 12th October, 2007 though it was recorded that the hearing was concluded and judgment is reserved. In view of the aforesaid fact having been found in the records we are unable to accept the contention that judgment and order passed on review application on the aforesaid factual issue is incorrect. As such contention is rejected. In view of the aforesaid fact having been found in the records we are unable to accept the contention that judgment and order passed on review application on the aforesaid factual issue is incorrect. As such contention is rejected. (16.) It appears further that in the judgment and order of the review, the contentions of the DVC, Union of India and State of West Bengal were also discussed and the learned Tribunal found that there has been no error apparent on the face of the records of the judgment. So judgment and order dated 30th October, 2007 was not touched. However, the aforesaid parties have challenged the judgment and order of the review. We are of the view that we should look into the legality and validity of original judgment as argument has been advanced on merit in relation thereto. It is said, while assailing the judgment and order dated 30th October, 2007, that the same was delivered during Puja Vacation when there had been no regular sitting and it was pronounced by one learned Single Member though it was heard by the Division Bench. This point was taken in the review application also and in the review judgment and order the aforesaid point has been discussed. It is explained that in accordance with the rules judgment can be pronounced by one member of the Bench even if it is heard by the Division Bench. We have checked up the rules. The learned Tribunal is correct in concluding that the rule permits one of the plural members of the Bench to pronounce such judgment. It is also explained as to why during Vacation Bench this was done. Explanation is that since one of the members was going to retire before reopening of the vacation the same was done. It appears from the records that the said matter appeared as item No. 6 in the cause list on 30th October, 2007 under the heading for pronouncement of judgment/ final order. So going by the rules and procedure it cannot be said any illegality in pronouncing the judgment having been committed. It appears from the records that the said matter appeared as item No. 6 in the cause list on 30th October, 2007 under the heading for pronouncement of judgment/ final order. So going by the rules and procedure it cannot be said any illegality in pronouncing the judgment having been committed. But we are of the view that it would have been appropriate and proper for public perception that the judgment was delivered when there is normal sitting of the Tribunal as during vacation the Court or Tribunal does not sit regularly and as such all the litigants are not expected to come at that time. Only those litigants who will have urgent and special business during the vacation will be attending. According to us, it was desirable that the judgment should have been delivered either before vacation or after reopening of the Court. It is true that there is an explanation that one of the Members who had heard the matter would retire and, had the judgment not been pronounced, the entire hearing would have been rendered infructuous. We think that the explanation is apparently acceptable but to keep public faith and confidence and also transparency in judicial process and business the proper course of action would have been that the judgment was not delivered on that date and it should have been reheard after retirement of one of the members of the Bench. The procedure is very clear. Even after retirement a Bench could be constituted with the member of the Bench who is available after vacation and the matter could have been reheard. We, however, with this observation do not mean to say that because of the aforesaid procedure being adopted the judgment had become illegal or nullity. We merely say that this was an unexpected and unusual course of action that was taken with an anxiety that hearing was not rendered infructuous because of imminent retirement of one member. On this ground the impugned order cannot be vulnerable to be questioned legally. (17.) It is contended by Mr. Pal that the learned Tribunal while rendering decision on 30th October, 2007 had relied on a judgment of the Principal Bench of the Tribunal delivered on 12th October, 2007 although factually such judgment was not and could not be cited on the date of hearing i.e. on 12th October, 2007. It is true that the party viz. Pal that the learned Tribunal while rendering decision on 30th October, 2007 had relied on a judgment of the Principal Bench of the Tribunal delivered on 12th October, 2007 although factually such judgment was not and could not be cited on the date of hearing i.e. on 12th October, 2007. It is true that the party viz. the applicant before us did not get any chance to deal with or to argue in the context of the said judgment of the Principal Bench as the ratio of the said decision is against them. We are of the opinion that there is no bar to rely on any precedent or judgment which is not cited while writing a judgment in a matter and it is more often than not done by the Court and Tribunal whenever the learned Counsel are unable to find or bring or cite the appropriate decision. So the Court of its own effort finds the judgment which is not cited by any of the parties. We think that this research exercise by the Court itself was and still is permissible and it should be followed. The idea is to consider all the precedents available on a particular point by rendering a correct decision aiming at to avoid conflict of decisions. But we think that it would be the duty of the learned Tribunal to notify the parties inviting further argument, if new decisions are found by the research effort of the Court or learned Tribunal which was not cited by the parties before pronouncing judgment. We think that this is a part of the principle of natural justice not mere formality. Unless this is done we think there cannot be complete hearing without giving chance to the parties to deal with the decision which would be applied. In particular a party against whom the said judgment would be applied will lose his right to explain or distinguish the same. (18.) On that ground we do not think fit to remand the matter as the argument has been advanced in relation to the judgment not cited, but relied on by the Tribunal before us and all the parties have got the chance to distinguish the same. (19.) Now we shall look into the merit of the case. Mr. (18.) On that ground we do not think fit to remand the matter as the argument has been advanced in relation to the judgment not cited, but relied on by the Tribunal before us and all the parties have got the chance to distinguish the same. (19.) Now we shall look into the merit of the case. Mr. Mukherjee contends order of deputation is for a tenure and fixed period as his client was placed as financial advisor of DVC under its Recruitment Rules which provides for fixed period of deputation for five years and he could not be disturbed. He has also said that it is true that this point is not taken in the petition before the learned Tribunal but it was taken in the affidavit of rejoinder and the case of his client should be and indeed has been considered by the learned Tribunal taking into consideration of the statement and averment made in the petition as well as the affidavit of rejoinder. We have also read the statement and averment made in the said two papers. We are of the view that Rajesh Kumar was deputed at DVC not in terms of the Recruitment Rules and it cannot be said for fixed period. He has accepted and everyone has understood that his deputation is governed by the order dated 8th September, 2006, which speaks as follows: "The competent authority has approved the appointment of Dr. Rajesh Kumar Surolia, IPS (W.B. on 1990) to the post of Financial Advisor, Damodar Valley Corporation, Kolkata on deputation basis in the pay scale of Rs.18,400-500-22,400/-for a period of five years from the date of assumption of charge of the post or until further orders, whichever event takes place earlier." (20.) In the application this statement and averment has been made. It seems to us that in the affidavit of rejoinder a further case is sought to be made that the period of deputation is governed by the provision of Recruitment Rule of DVC relating to deputation. It is true that if one goes by the Recruitment Rules of the DVC the deputation is for a fixed period. We are of the view that the deputation of Rajesh is contingent one and not a fixed period of five years. The lending authority has released him on the condition that he may be repatriated at any time. Mr. It is true that if one goes by the Recruitment Rules of the DVC the deputation is for a fixed period. We are of the view that the deputation of Rajesh is contingent one and not a fixed period of five years. The lending authority has released him on the condition that he may be repatriated at any time. Mr. S.N. Mukherjee contends that the words "until further orders are misnomer and it should be ignored. We are unable to accept this contention. DVC has understood the said order of release for deputation. Applicant did understand too and it will appear in his application and case made out in affidavit of rejoinder casually does make position different. Therefore, this deputation is usual and ordinary deputation and is not a tenure one. This case in our view is afterthought. We are, therefore, unable to accept the contention of Mr. Mukherjee in this regard. The decisions cited in support of the principle that the deputationist for fixed period cannot be repatriated, are not applicable as the same are inappropriate in this case. Therefore, those decisions are not found to be relevant in this case. Accordingly, we ignore to deal with the same. (21.) We are also unable to accept the case of mala fide. However, the learned Tribunal found, taking note of the subsequent event, that it is not a bona fide repatriation. Unfortunately, the case was not made out in the pleading. Before us argument has been advanced with the supporting document when Chief Secretary wrote a letter for release of Rajesh Kumar, there was no post remaining vacant at the DIG level and that is why immediately after release he could not be utilised for a period of long three months and he was kept waiting. Therefore, the anxiety expressed in the letter of the Chief Secretary is totally untrue. Had it been so then why he was kept waiting if his services were immediately needed why he was not posted. Therefore, we feel that there may not be case of mala fide but it is an inappropriate decision in the name of interest of the administration, at least no public interest could be found. So, Chief Secretarys request for repatriation was not in accordance with the law and it is his personal feeling and imagined appreciation. Therefore, we feel that there may not be case of mala fide but it is an inappropriate decision in the name of interest of the administration, at least no public interest could be found. So, Chief Secretarys request for repatriation was not in accordance with the law and it is his personal feeling and imagined appreciation. We do not know why he wrote such a letter without checking up his own department as to the cadre position. The concerned department, therefore, while acting upon this letter disturbed the entire working system and demoralised an officer who has been deputed lawfully, just because power of repatriation is there. Power should not be exercised for personal desire or zeal, if done it is simply unlawful action as the same is not for public interest. (22.) We, therefore, hold that the process of repatriation initiated by the Chief Secretary on the given facts and circumstances was absolutely inappropriate and not in the public interest and he should not have issued such letter. No explanation has been offered by the learned Counsel for the State as to why such letter was written without checking up the cadre position. No affidavit has been filed either to explain though chances were given. Even the oral argument was not advanced on this score. We accept the argument of Mr. Pal and his supporting group of learned Lawyers in principle that a deputationist has no right to remain in the post of deputation and these are well-settled. A number of decisions cited by him are set out in seriatim viz. 1990 (Supp.) SCC 243, 1997(8) SCC 372 and AIR 1962 SC 794 . We also accept the argument of Mr. Pal in principle that there is no particulars of mala fide hence case of mala fide cannot be accepted. The law on these points are well-settled by the Supreme Court and applied widely. He has cited large number of decision we feel those need not be dealt with, as there is no serious dispute as to the proposition of law as propounded by Mr. Pal. We have already observed that we do not find any element of mala fide, but the way of repatriation process was initiated does not conform to the proper administrative action rather inept utilisation and mobilisation of police officials. Now the question is who has to approve the order of repatriation. Mr. Pal. We have already observed that we do not find any element of mala fide, but the way of repatriation process was initiated does not conform to the proper administrative action rather inept utilisation and mobilisation of police officials. Now the question is who has to approve the order of repatriation. Mr. Pal has responded to this issue, but the learned Lawyer Mr. Ghosal for Union of India remained silent. The Tribunal held that the Appointment Committee of the Cabinet (ACC) is the only body to approve premature repatriation of the officers. Mr. Pal, however, disputes that the above notification has no application as it stood superseded by the subsequent Memorandum dated 3rd July, 2006. We have already read this notification dated 3rd July, 2006. This notification appears to have superseded earlier notifications dated 30th November, 2005 and 16th May, 2006 respectively not 15th October, 1997. There cannot be implied supersession in the administrative field. Thus, it is clear that earlier notification dated 15th October, 1997 still remains in force. Moreover, upon reading of the notification dated 3rd July, 2006 we do not find any mention about power of taking decision of repatriation. This notification expressly deals with policy and procedure for appointments in autonomous bodies through the ACC. It does not relate to any deputation nor repatriation. On the other hand, notification of 15th October, 1997 clearly mention who has to approve of premature repatriation. This we conveniently quote hereunder: "Power to approve premature repatriation of officers serving with the Central Government to their parent cadre/department, would continue to be with the ACC .............The administrative Ministries/Departments may send their proposals in this regard to the E.O. who shall arrange the issue the orders with the approval of the competent authority............". By the aforesaid methodology it is clear how a premature repatriation of a deputationist should be issued. The learned Tribunal, in our view, has taken correct view relying on the decision of Principal Bench on the same issue that there has been no lawful decision for premature repatriation. (23.) However, taking note of subsequent event the applicant has been posted by the Government of West Bengal in the same rank and he has been working. At present whether State Government needs his service cannot be felt by the Court. It is possible to ask for premature repatriation of any officer lawfully. (23.) However, taking note of subsequent event the applicant has been posted by the Government of West Bengal in the same rank and he has been working. At present whether State Government needs his service cannot be felt by the Court. It is possible to ask for premature repatriation of any officer lawfully. Under the law the deputationist cannot have any right to remain in the post of deputation according to his own terms and it is always an uncertain state of affairs but that does not mean that he would be repatriated without law being observed. We have indicated earlier the initiation of repatriation process and right up to the passing of the order of release is not in accordance with law. Consequently, the release by the DVC of the applicant is also not in accordance with due process of law. We, therefore, do not find any reason to interfere with the judgment of the learned Tribunal. We, therefore, approve of its decision which has given liberty to repatriate the applicant after following the prescribed procedure. Therefore, the applicant would be allowed to resume the office of Financial Advisor in DVC. It would be open for State Government and Central Government to take decision of repatriation in accordance with law. Hence, we dispose of all these applications with the aforesaid findings, however, allowing to continue with the interim order for a period of three weeks. Applications disposed of.