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2012 DIGILAW 696 (PAT)

Arun Safi v. State of Bihar

2012-04-30

NAVIN SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved by the order dated 11.1.2012 repatriating him to his Parent Department of Co-operative from the Rural Development Department where he was on deputation. 3. It is submitted that the deputation was for a period of three years. The petitioner had a right to continue for the period. If the respondents were dissatisfied with his performance of duties they could have repatriated him simplicitor under the terms of appointment on grounds of unsatisfactory service. To hold an administrative enquiry indict him and then repatriate him on the ground that there were allegations against him after instituting a First Information Report casts aspersion and stigma. It could not have been done without opportunity to show cause complying with the basic facet of natural justice that no man can be condemned unheard. 4. Counsel for the State submits that a deputationist has no right to continue. The repatriation was in terms of Clause-5 of the deputation order that he could be repatriated on grounds of unsatisfactory service. The facts of the case are telling. There is an administrative enquiry report. He is an accused in a First Information Report. The allegations relate to irregularity in the Indira Awas Yojana. The repatriation is not for any indictment but merely because of allegations which were considered sufficient to conclude unsatisfactory performance of duties. Allegations do not caste stigma. 5. A deputationist has no vested right to continue on the deputed post. The right is subject to the terms of deputation. Even if the petitioner had a right to continue for three years, it was capable of being denied under the terms of the deputation itself by reason of unsatisfactory service. Had the respondents invoked the terms of the deputation and repatriated simplicitor, there may have been no occasion for the petitioner to vindicate any grievance. But instead of choosing the easier option, if the respondents voluntarily chose the more difficult path of making allegations against the petitioner, the requirements of the law shall have to be complied with. The administrative enquiry held on basis of which a First Information Report has also been lodged undoubtedly casts aspersion on the petitioner. At this stage, it is not very relevant whether the allegations may turn out to be correct or incorrect. The administrative enquiry held on basis of which a First Information Report has also been lodged undoubtedly casts aspersion on the petitioner. At this stage, it is not very relevant whether the allegations may turn out to be correct or incorrect. The mere fact that it casts aspersion and taints the petitioner, the respondents were required to give him due opportunity for his defence. The taint which attaches to him because of the enquiry report shall stick with him wherever he goes. 6. The counter affidavit stands by the impugned order asserting that there were gross and serious charges of irregularity against him. That an F.I.R. had been lodged. 7. The Court in exercise of power for judicial review is primarily concerned with the decision making process rather than the decision itself. The order for repatriation in the column against the name of the petitioner clearly states that he was being repatriated because of the allegations against him. To hold that they were mere allegations does not wash off the taint placed upon the petitioner. The taint is not only against his work but his reputation. Every person has a right to protect his reputation and if another casts aspersion on his reputation he had to be given a right to defend himself. It is not necessary that indictment must necessarily have been done. 8. It is for the respondents to find the answer if they were dissatisfied with the performance of duties why they opted for a more ordous procedure when a much easier course of action was open to them. 9. In (2005) 8 SCC 394 (Union of India Vs. V. Ramakrishnan), the rights and limits of the deputationist were considered holding as follows:- “32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post-haste manner also indicates malice.” 10. The Court cannot but express its surprise of the casual manner of which the respondents have filed a counter affidavit. They state about the F.I.R. lodged against the petitioner on 13.8.2011 but decline to disclose what the stage of inquiry is nearly eight months later. 11. The impugned order dated 11.1.2012 in its present form is therefore not sustainable. It is presently set aside in so far as it relates to the petitioner. 12. The petitioner is held entitled to salary and all arrears of salary as if he had discharged duties during the period of question on a representation to be submitted before the competent authority. The writ application stands allowed. ?