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2013 DIGILAW 703 (CAL)

Rajaraman Ramamoorthy v. UNION OF INDIA

2013-09-19

SAMBUDDHA CHAKRABARTI

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JUDGMENT Sambuddha Chakrabarti, J. The question that cropped up for consideration in this writ petition is of great import and has wide ramifications - can an order be passed against an employee even if he is a deputationist without instituting any disciplinary proceeding on the charge of violation of the financial rules of the government and whether any order of repatriation to the service of the lending organization be made on the allegation of violation of financial norms without issuing any show-cause or instituting any disciplinary proceeding. In order to appreciate complexities of the problem involved in the present case a brief resume of the facts is necessary. The petitioner was in the regular employment of the respondent no. 5, i.e., the Indian Institute of Management, working there as the Assistant Finance and Accounts Officer. Pursuant to an advertisement issued by the respondent no. 2, i.e., the Eastern Zonal Cultural Center, the petitioner applied for the post of Deputy Director (Finance). He was selected. On June 8, 2012 he joined the service of the respondent no. 2 for a period of two years. On March 13, 2013 the respondent no. 4, i.e., the Director of the said center had issued an order inter alia repatriating the petitioner from the service of the respondent no. 2 to the service of the respondent no. 5 on the finding that the petitioner had “consistently acted in fragrant violation of the standards of financial propriety” as prescribed in the Government of India, Ministry of Finance’s memo and had thereby displayed a serious propensities about defying rules and orders of the Government and the respondent no. 2. The petitioner was accordingly relieved of his duties with effect from March 12, 2013 with a direction to report to the Director of the respondent no. 5 forthwith. This order has been challenged by the petitioner as ex facie bad and adversely affecting the petitioner in matters concerning his employment. The petitioner has asserted that this order, without instituting any disciplinary proceeding is arbitrary, illegal and mala fide. The respondents nos. 2 to 4 have contested this writ petition by filing an affidavit-in-opposition. The answering respondents have mentioned several instances of financial irregularity being committed by the petitioner. The petitioner has asserted that this order, without instituting any disciplinary proceeding is arbitrary, illegal and mala fide. The respondents nos. 2 to 4 have contested this writ petition by filing an affidavit-in-opposition. The answering respondents have mentioned several instances of financial irregularity being committed by the petitioner. The affidavit mentions the do-s and dont-s and rights and wrongs of an officer incurring or authorizing expenditure from public money and the kind of vigilance that is expected to be exercised in respect of expenditure incurred from public monies. The affidavit also mentions the alleged financial lapses or irregularities committed by the petitioner while he was on tour to Andaman and on other occasions. The answering respondents in their affidavit have denied the allegations made by the petitioner. The stand taken by the respondents is that the petitioner was simply repatriated and no charge-sheet was framed and no disciplinary proceeding was proposed to be initiated against him as this was not necessary. It is not a penalty and as such repatriation cannot be said to be a punishment. The petitioner has filed an affidavit-in-reply reiterating the stand taken in the writ petition. According to him if there is any allegation against him that is to be proved by due process of law and the respondents authorities cannot repatriate him to his parent department putting a stigma on him. He has also refuted the allegations made in the affidavit-in-opposition. The question relevant for consideration in this writ petition is not whether the acts alleged against the petitioner really constitute any breach of financial discipline or order or were done in derogation of the standard expected of an officer. That pertains to the realm of fact finding which cannot be undertaken in a writ proceeding. As such the truth or otherwise of the allegations and counter allegations are not the subject-matter of the present concern. The petitioner while in the service of the respondent no. 2 was governed by the bye-laws meant for its officers and staff. They apply to all employees including the deputationists. The principal grievance of the petitioner is that he has been repatriated without initiating any disciplinary proceeding to prove the allegations against him which is against the principles of natural justice. 2 was governed by the bye-laws meant for its officers and staff. They apply to all employees including the deputationists. The principal grievance of the petitioner is that he has been repatriated without initiating any disciplinary proceeding to prove the allegations against him which is against the principles of natural justice. The petitioner has also taken a point that the concerned respondents cannot repatriate the petitioner in violation of Rules 20 and 21 of the Civil Services (Classification, Control and Appeal) Rules. A close reading of the records particularly the order of repatriation does not support the stand of the respondents that repatriation is not an act of penalty and as such there was no requirement to frame a charge-sheet or to initiate a disciplinary proceeding. The fact remains that a petitioner was holding the post of Deputy Director, Finance on deputation basis for a period of two years. So long as he was in the service of the respondent no. 2, letter was the disciplinary authority and if the respondent no. 2 thought that the petitioner was required to be repatriated for certain acts alleged to have been committed by him it was necessary that they should have given an opportunity to the petitioner and for the purpose of proving the charge against him. The stand taken by the respondents nos. 2 to 4 that repatriation is not a penalty and, therefore, disciplinary proceeding is not necessary may not provide a complete answer to the facts of the present case. The charges against the petitioner being very serious that he had violated the financial propriety and consistently acted in flagrant violation of the standards of such propriety and that he had displayed serious propensities to defy the rules and orders of the government and of the respondent no. 2 definitely cast stigma on him. These could be said to have been established only after the petitioner had been given an opportunity to defend himself. We may also look at it from a slightly different angle. Without entering into the technicalities of whether repatriation is a penalty or not the question may also be viewed from more simplified perspective. A man is stigmatized. Charges have been leveled against him. Records against him are considered by the highest authority without giving him an opportunity to controvert the same. This by itself is a denial of the principles of natural justice. A man is stigmatized. Charges have been leveled against him. Records against him are considered by the highest authority without giving him an opportunity to controvert the same. This by itself is a denial of the principles of natural justice. An employee will be stigmatized and will not get an opportunity to defend himself is not perhaps what is expected from an employer. In the case of Parshotam Lal Dhingra –Vs.- Union of India and Others, reported in AIR 1958 SC 38, the Supreme Court held that when a servant has a right to a post or a rank either under the terms of the contract of employment or under the rules governing the conditions of services the termination of the services of such servant or his reduction to a lower post is by itself prima facie a punishment for it operates as a forfeiture of a right to hold that a post or that rank and to get the emoluments and other benefits attached thereto. In the case of K. H. Phadnis –Vs.- State of Maharashtra, reported in AIR 1971 SC 998 the Supreme Court had held that the order of reversion was in the nature of punishment and was passed without complying with the provisions of the Constitution of India which is violative of Article 311 of the Constitution of India. In that case the Supreme Court relied on the case of Sukhbans Singh –Vs.- State of Punjab, reported in (1963) 1 SCR 416 , where it was held that a probationer could not be punished for misconduct without complying with the requirement s of Article 311 of the Constitution of India. The Supreme Court had held in the case of K. H. Phadnis (Supra) that though the government has a right to revert a government servant from the temporary post or a substantive post the matter is to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one as “accident of service” in which a person sent from the substantive post to a temporary post has to go back to the parent post without aspiration against his character or integrity or whether the order amounts to a reduction of rank by way of punishment. Again in the case of Union of India and Another –Vs.- V. Ramakrishnan and Others, reported in (2005) 8 SCC 394 the Supreme Court has said: “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. 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 the post-haste manner also indicates malice.” The Supreme Court also had relied on the decision in the case of Parshotam Lal Dhingra (Supra) wherein it was categorically stated that when an appointment is made for a specific period unless any disciplinary proceeding is initiated he will be entitled to hold the said post. In such view of it it was not proper on the part of the respondents to repatriate him to his parent office with serious charges of financial irregularities and indiscipline without giving him an opportunity of being heard. The concept of principles of natural justice is much loftier than the technicalities of law. Mr. Ahmed, the learned advocate appearing for the respondent no. 5, i.e., Indian Institute of Management, has submitted that the effect of this repatriation would be that the respondent no. 5, i.e., the parent institution, would have to record this fact in the Annual Confidential Report of the petitioner and if this is done the petitioner would seek an explanation from his authorities for recording something in the confidential report without proving the same. But at the same time, Mr. Ahmed pleaded, there will be compulsion on the part of the respondent no. 5 to record the same in view of the order passed by the respondent no. 2. Thus the matter would be further complicated. But at the same time, Mr. Ahmed pleaded, there will be compulsion on the part of the respondent no. 5 to record the same in view of the order passed by the respondent no. 2. Thus the matter would be further complicated. I thus find sufficient merit in the writ petition. The same is allowed. The order impugned in the writ petition is hereby set aside and quashed. It is, however, made clear that the respondent no. 2 shall be at liberty to initiate any appropriate proceeding against the petitioner as is permissible under law on the self-same allegations and to take action against him in accordance with law. The writ petition is allowed. There shall, however, be no order as to costs.