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Madhya Pradesh High Court · body

2011 DIGILAW 1396 (MP)

Ram Kishore Shukla v. State of M. P.

2011-12-12

SUJOY PAUL

body2011
ORDER Hon'ble Shri Justice Sujoy Paul 1. Since the aforesaid matters are inter connected, withthe consent of parties, same are analogously heard and are decided by this common order. 2. Brief facts necessary for adjudication of this matter are as under: 3. The petitioner is aggrieved by order dated 10.3.2011 (Annexure P-1) whereby he is repatriated from the Project Implementation Unit UDAI to the office of Executive Engineer, P.H.E. Department, Gwalior. The petitioner was posted on deputation by the State Government and it is alleged that the Commissioner, Municipal Corporation has no jurisdiction to repatriate the petitioner. The petitioner has placed the order of bringing him on deputation as Annexure P-4 dated 26.11.2005. 4. Shri D.P.Singh, learned counsel for the petitioner would submit that the impugned order is bad in law for the following reasons: (1) As per the scheme of Project UDAI, once the petitioner is brought on deputation, the said deputation is co-terminus to the life of the project. He relied on Agenda Item No.9 of Annexure P-9. (2) The order is passed at the instance and behest of Lokayukt Organization, which is impermissible. (3) The respondents have mechanically followed the order of the Lokayukt Organization without application of mind. 5. In turn, the learned counsel for the Municipal Corporation, Shri Sushil Chaturvedi fairly submits that the impugned order of repatriation was passed because of direction of Lokayukt Organization. However, he submits that the petitioner has no legal right to continue on deputation. Accordingly, no fault can be found in the order passed by the authorities. He relied on various Supreme Court judgments on the subject and GAD circular dt. 01.03.2004 (Annexure R/3-1). 6. Shri J.D.Suryavanshi, learned counsel for the Lokayukt Organization relied on circular dated 1.3.2004 (Annexure R/3-1) to submit that such persons who are subjected to a trap by Lokayukt Organization shall be transferred. He submits that this arrangement is made so that the persons who are subjected to trap cannot influence the evidence or tamper the material. He submits that there is no illegality in the order. By placing reliance on the circular dated 1.3.2004, Shri J.D.Suryavanshi submits that this is a direction by the State Government to transfer the persons, who are subjected to trap. This transfer is necessary to ensure fair trial in the matter. 7. The learned counsel for the petitioner has placed reliance on 2005 (1) M.P.L.J. 398 (S.M.Sharma Vs. By placing reliance on the circular dated 1.3.2004, Shri J.D.Suryavanshi submits that this is a direction by the State Government to transfer the persons, who are subjected to trap. This transfer is necessary to ensure fair trial in the matter. 7. The learned counsel for the petitioner has placed reliance on 2005 (1) M.P.L.J. 398 (S.M.Sharma Vs. State of M.P. and others), (2011) 5 SCC 435 (Joint Action Committee of Air Line Pilots' Association of India (ALPAI) Vs. Director General of Civil Aviation and others) and lastly on 2011 (4) M.P.H.T. 122 (Dharmendra Vs. State of M.P.). 8. I have heard learned counsel for the parties and perused the record. 9. The basic question is whether the petitioner, a deputationist has a vested, legal, statutory or constitutional right to continue on deputation till completion of the project UDAI and whether the repatriation order is arbitrary and capricious in nature. 10. True it is that in certain cases the High Court and highest Court took a view that the statutory authority should not act on the dictate of an outside agency including Lokayukt Organization. However, a minute scrutiny of those judgments would show that those were the cases where a statutory disciplinary authority has acted on the dictate of an outside agency. So far disciplinary proceedings are concerned, the disciplinary authority exercises quasi judicial power. In those cases there has to be an independent application of mind by the disciplinary authority. Thus, the cases of disciplinary proceedings are on a different footing. The present case is of a deputationist. In (2005) 8 SCC 394 (Union of India through Govt. of Pondichery and Another Vs. V. Ramakrishnan and Others), the Apex Court held that the deputationist can be repatriated on unsuitability or unsatisfactory performance. A person who is subjected to a trap may be treated by the department as an unsuitable person. The question is whether a legal, vested or fundamental right of that person is infringed when he is repatriated. 11. In my opinion no such right is infringed. The Apex Court in (2000) 5 SCC 362 (Kunal Nanda Vs. Union of India and Another) (para 6) held as under:- A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. 12. 11. In my opinion no such right is infringed. The Apex Court in (2000) 5 SCC 362 (Kunal Nanda Vs. Union of India and Another) (para 6) held as under:- A deputationist can always and at any time be repatriated to his parent department, at the instance of either borrowing department or parent department. 12. Once it is held that the person can be repatriated any time at the instance of either of the department, i.e., borrowing or lending, I am unable to hold that the petitioner had a right to continue till completion of the project. The agenda item aforesaid does not provide any binding legal right on the petitioner to continue till termination of the project. It is the prerogative of the employer to decide as to from which work is to be taken. No employee can claim that he has right to continue on deputation till termination of the project. In the light of judgment of Kunal Nanda (supra), no legal right of petitioner is infringed. 13. So far the reliance on Dharmendra Vs. State of M.P (supra) is concerned, it is also a case of disciplinary proceedings and, therefore, the judgment has no application in the facts and circumstances of this case. In fact, the respondents have not acted on the dictate of Lokayukt Organization. There is a State Government circular (GAD) which directs that the persons who were subjected to trap should not be kept on the same place and they should be transferred. This circular dated 1.3.2004 is already placed on record. Thus, the respondents have acted as per the circular in vogue and no fault can be found in the said action. To maintain transparency and fairness, it is always better to keep the said persons away from the place of posting where they were subjected to trap. No prejudice will be caused to the petitioner because he is merely repatriated to the parent department. 14. So far the reliance on the judgment of Joint Action Committee of Air Line Pilots' Association of India (supra) is concerned, the said judgment deals with the situation whether the authorities are acting on the basis of a direction passed by the authority, which has no statutory role to play in the matter. In the present case, the State Government has a role to play being the employer of the petitioner. In the present case, the State Government has a role to play being the employer of the petitioner. Thus, as per the State Government circular dated 1.3.2004 (Annexure R/3-1), the respondents have acted and repatriated the petitioner. Thus, for passing such administrative orders, no further application of mind is required. Since there exists an enabling provision for such transfer i.e circular dated 1.3.2004, the respondents have acted in accordance with that circular. There is no illegality, arbitrariness or irrationality in the said action. I am unable to hold that such action is capricious in nature. It is in the domain of respondents to make arrangements to take care of the project UDAI, if petitioner is repatriated to his parent department. On the basis of aforesaid analysis, I am unable to hold that the impugned orders are bad in law. In the result, petitions are dismissed. No cost.