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2014 DIGILAW 1044 (JHR)

Subhas Simon Mundu v. State of Jharkhand

2014-10-16

APARESH KUMAR SINGH

body2014
ORDER : Heard counsel for the parties. 2. The petitioner belongs to the rank of Deputy Superintendent of Police under the Home Department whose services were placed under the Transport Department on 27.8.2011 vide Annexue-1 issued by the Home Department where under the services of two other persons were also placed under deputation. Thereafter, the Transport Department posted the petitioner as Enforcement Officer for East Singhbhum (Jamshedpur) and West Singhbhum (Chaibasa). He has been repatriated to the Home Department by the notification dated 17.11.2012 issued by the Deputy Secretary, Department of Transport, Government of Jharkhand ( Annexure-4) on administrative grounds. The said order has been challenged by the petitioner in the instant writ petition as being illegal and arbitrary and also vitiated on account of malafide and colourable exercise of power by the respondent no.3 and 4, who have been impleaded as party by name. 3. The respondent no.4 was earlier noticed and has appeared and filed his counter affidavit. The State-respondent have also appeared and filed their counter affidavit. 4. It is the contention of the petitioner that the order of repatriation is not an order simplicitor but is actuated by malafide. In support of his aforesaid contention petitioner has relied upon confidential letter no. 19 of 2012 and 21 of 2012 dated 18.4.2012 and 20.4.2012, Annexure-5 and 6 respectively, issued by him addressed to the Secretary cum Transport Commissioner, Transport Department, Government of Jharkhand. Annexue-5 alleges that the respondent no. 4 who was Commissioner, Kolhan Division had asked the petitioner to arrange for 100 buses or Rs. 4 lakhs in respect of some Government Programme being arranged at Seraikella. It is alleged that the said respondent no.4 threatened the petitioner that his service will be returned from the Transport Department to his parent Home department. The aforesaid authority made unfounded complaint against the petitioner. In the letter at Annexure-6, petitioner has alleged that respondent no.3 Secretary, Transport Department had directed him on 16.4.2012 to release 3 vehicles of M/s Varuna Integrated Logistic Private Ltd. In his letter he has stated that he has seized 62 vehicles in a particular months including 3 vehicles of the said company and has also realized fines from them. He also stated that the prosecution report has been submitted in respect of 3 vehicles in the Court of Chief Judicial Magistrate, Jamshedpur. He also stated that the prosecution report has been submitted in respect of 3 vehicles in the Court of Chief Judicial Magistrate, Jamshedpur. Petitioner alleged that if his conduct appears to be motivated against the said company, the same be inquired. At the end petitioner again requested to be repatriated to his parent department. He has also referred to the letter of the District Transport Officer, East Singbhum addressed to the Secretary cum Commissioner, Transport, Jharkhand in respect of seized vehicles of M/s Varuna Integrated Logistic Private Ltd. Letter dated 21.4.2012(Annexure-7) of the District Transport Officer, East Singhbhum states that the said vehicles were seized in exercise of power under Motor Vehicle Act and Rules and fines were levied by the Enforcement Officer. There were 62 vehicles from which fines were realized between the period from 1.4.2012 to 20.4.2012. Therefore, it is submitted that it is not only the vehicle of M/s Varuna Integrated Logistic Private Ltd from whom the fines have been realized but the same has been done in respect of all such vehicles seized. Petitioner has also referred to the letter dated 8.9.2012(Annexure-8), a confidential letter no. 47 issued by him addressed to the Secretary cum Transport Commissioner wherein he has alleged that the Commissioner, Kolhan Division, respondent no.4, in the meeting held on 7.9.2012 in Chaibasa where several other Officers like the Deputy Commissioner, Superintendent of Police, District Transport Officer, Motor Vehicle Inspector as well as other authorities were present had reprimanded and threatened the petitioner. He has therefore made a request for repatriation to his parent department as the concerned officer was exercising undue pressure upon him. Based upon the aforesaid, it is stated that the respondent-Transport Department had maliciously issued the show cause notice upon the petitioner vide order at Annexure-9 dated 18.10.2012 asking him to submit his reply in respect of the comments received from the Commissioner, Kolhan Division that the services of the Enforcement Officer / Enforcement Sub Inspector for the District of East Singhbhum and West Singhbhum region were not found satisfactory. The letter of the Commissioner, Kolhan Division dated 26.4.2012 is also annexed to the said letter. The letter of the Commissioner, Kolhan Division dated 26.4.2012 is also annexed to the said letter. Learned counsel for the petitioner submits that in the said report, the only complaint against the petitioner is that he had been inaccessible on being called through cell phone on one occasion or the other and that the Deputy Commissioner of Seraikella Kharsawan also informed the Commissioner, Kolhan Division to the same effect. It is submitted that the report does not show that there were misdeeds of the petitioner which could have prompted any action to issue show cause notice to him for unsatisfactory service. However, according to the petitioner he has submitted his detailed reply also vide Annexure-10 dated 26.10.2012 and refuted such charges. It is submitted that instances of illegal mining and transportation of various minerals and sands in an illegal manner were being carried out in the said place for which the petitioner had been taking action and steps to prevent. Action of the petitioner was therefore bonafide and did not warrant any action. It is also supported by the statement made by the respondent no.3, 5,8 in the counter affidavit where it is averred that he has been repatriated after seeking reply from him on the show cause notice in view of the report of the Commissioner, Kolhan Division. Learned counsel for the petitioner therefore submitted that the impugned order of repatriation has been actuated by malafide and requires interference by this Court. He has relied upon judgment rendered by the Hon'ble Supreme Court in the case of Union of India through Govt. of Pondicheery & another Vrs. V. Ramakrishnan & others reported in 2005(8) SCC 394 and in the case of Union of India & others Vrs. Mahaveer C. Singhvi reported in 2010(8) SCC 220 in support of his submission. 5. Mr. Ajit Kumar, learned A.A.G, appearing on behalf of the State and also representing respondent no.4 has made three fold submissions:- (i) Firstly it is submitted that the law in relation to deputation is well settled and the deputationist does not have any right to continue under deputation. It is submitted that the Rules which governs the services of the petitioner under the respondent-Government do not require any consent from such employee for placing his services in one or the other Department or repatriating his services to the parent department. It is submitted that the Rules which governs the services of the petitioner under the respondent-Government do not require any consent from such employee for placing his services in one or the other Department or repatriating his services to the parent department. (ii) He has referred to the order impugned at Annexure-4 and 5 submitted that the same carries no stigma. The language of the order is absolutely innocent and he has been repatriated by the Transport Department on account of administrative reasons. It is submitted that the Department received a report from the Commissioner, Kolhan Division not only against the petitioner but against 3 Enforcement Officers deputed in the Districts of West Singhbhum and East Singhbhum and he being the highest functionary holding the post of Divisional Commissioner, Kolhan was within his jurisdiction, duty bound and justified in bringing any such matter to the notice of the Department. It is submitted that the Transport Department issued repatriation order in respect of all 3 persons and not only the petitioner. (iii) Learned A.A.G has submitted that the petitioner even after being relieved with immediate effect by the impugned order has chosen not to join the respondent-Parent Department of Home and had continued to defy the orders. By referring to the interim order dated 12.6.2013 itself passed in the instant case, it is submitted that the order was a conditional order that if the petitioner has not been relieved from his present place of posting, he shall not be relieved till further orders. The petitioner, in fact has been relieved with immediate effect by virtue of the impugned order. Referring to the allegation of malafide, learned A.A.G has submitted that Annexure-5 and 6 appear to have been manufactured and issued successively on 18.4.2012 and 20.4.2012 making allegation against the highest functionary in the Division i.e. respondent no.4 as also against the Secretary, Transport Department i.e. respondent no. 3. It is the contention of the learned A.A.G that these letters were not received by the department. 6. Learned counsel for the petitioner, however has referred to certain receipts annexed to the supplementary affidavit as per which they were received in the Department. 7. Learned A.A.G has submitted that Annexure-5 and 6 said to be issued by the petitioner have made unsubstantiated allegations against respondent no.3 and 4. 6. Learned counsel for the petitioner, however has referred to certain receipts annexed to the supplementary affidavit as per which they were received in the Department. 7. Learned A.A.G has submitted that Annexure-5 and 6 said to be issued by the petitioner have made unsubstantiated allegations against respondent no.3 and 4. It is further submitted that the petitioner immediately after issuance of Annexure-5 dated 18.4.2012 had written to the Secretary, Transport Department on 20.4.2012 but made no reference to a serious charge which was levelled against the respondent no.4 vide his letter dated 18.4.2012. He has submitted that the tenor of letter is derogatory and unbecoming of an Officer of the rank of the Deputy Superintendent of Police. It is further submitted that the Secretary, Transport Department had himself got the matter inquired which was reported through letter dated 21.4.2012, Annexure-7 by the District Transport Officer, East Singhbhum, Jamshedpur. Learned A.A.G submitted that on the report of the Commissioner, a show cause was issued to the petitioner vide Annexure-9 dated 18.10.2012 and petitioner had submitted his reply on 26.10.2012. The respondent-Department followed all procedures to verify the matter and thereafter the impugned order of repatriation has been issued for administrative reasons without causing any stigma upon the petitioner. Learned A.A.G has therefore submitted that the allegation of malafide are not at all made out and no interference is warranted in the impugned order as the petitioner has no right to remain under deputation in a different Department when he has been repatriated to the Home Department. He has relied upon a judgment of Apex Court rendered in the case of Kunal Nanda Vrs. Union of India & others reported in 2000(5) SSC 362, in support of his contention that when the order of repatriation did not involve loss of seniority or promotional prospects or adversely affected the service conditions, the action of the department taken on administrative ground should be upheld as utmost latitude should be given to the department concerned to enforce discipline, decency and decorum in public service in order to ensure smooth functioning of administration and essential to maintain quality of public service. 8. Learned counsel for the petitioner in his rejoinder has reiterated his submission and canvassed further point that if the petitioner's action were found to be amounting to misconduct, he should have been proceeded against and punished for the same. 8. Learned counsel for the petitioner in his rejoinder has reiterated his submission and canvassed further point that if the petitioner's action were found to be amounting to misconduct, he should have been proceeded against and punished for the same. During course of the argument learned counsel for the petitioner, however also informed that the parent Home department of the petitioner has issued a charge-sheet against the petitioner and initiated a departmental proceeding against him. On instruction, he has informed this Court that the charge-sheet refers to the letters of the Divisional Commissioner, Singhbhum bearing no. 1936 dated 10.10.2012 and the letter of the Secretary cum Transport Commissioner bearing no.1248 dated 8.11.2012. The charge-sheet alleges that the petitioner was not taking action in accordance with law against the incidences of illegal mining by Sand Mafia in the District of West Singhbhum. The charge-sheet also contains allegation that the Commissioner, Kolhan Division detected on the road from Chandil to Kandra that sand loaded trucks had been plying in violation of the Rules. The petitioner who was Enforcement Officer was being accessed to take action against such vehicles violating the provisions of Motors Vehicle Act and other Rules but he was wholly inaccessible. It was also alleged that no action was taken by the petitioner in respect of several vehicles which were plying for commercial and other purpose without any registration and undertaking transportation of such minerals from the said District. Counsel for the petitioner has finally submitted that the impugned action of the respondent-Department suffers from malafide and is arbitrary and illegal and therefore it should be quashed. It is submitted that the Department has not chosen to take any action against other two Officers whose services were also repatriated. 9. I have heard learned counsel for the parties at length and gone through the relevant materials on record. The factual matrix of the case as has been stated on behalf of the petitioner and the State counsels have been referred to in the earlier part of the judgment. At the outset, it is to be stated that the law in relation to deputation is well settled. A deputationist does not have a right to remain in any foreign department where his services have been placed under deputation. At the outset, it is to be stated that the law in relation to deputation is well settled. A deputationist does not have a right to remain in any foreign department where his services have been placed under deputation. The opinion of the Hon'ble Supreme Court as held in the case of Kunal Nanda-Vs.-Union of India & anr., reported in (2000) 5 S.C.C. 362 on the aforesaid issue, is quoted hereinbelow: “On the legal submissions also made there are no merits whatsoever. It is well settled that unless the claim of the deputationist for a permanent absorption in the department where he works on deputation is based upon any statutory rule, regulation or order having the force of law, a deputationist cannot assert and succeed in any such claim for absorption. The basic principle underlying deputation itself is that the person concerned can always and at any time be repatriated to his parent department to serve in his substantive position therein at the instance of either of the departments and there is no vested right in such a person to continue for long on deputation or get absorbed in the department to which he had gone on deputation.” 10. Petitioner's services were placed vide Annexure-1 from the Home Department to the Department of Transport and was posted as Enforcement Officer in the District of East Singhbhum and West Singhbhum. The relevant provision recorded in Chapter VIII of the Jharkhand Service Code deal with the matter of foreign service. As per Rule 267 no Government servant should be transferred to foreign service without his consent. The proviso to the said rule however indicates that this shall not apply to transfer of a Government servant to the service of a body incorporated or not which is wholly or substantial owned and controlled by the State Government, or by the Government of India, when the body operates or would operate in Bihar(Jharkhand). Foreign Service has been defined under Rule 17 of the Service Code. In the present case, petitioner has not been sent to foreign service but in one or the other department of the State. The Transport Department has issued the impugned order where under the services of the petitioner have been repatriated to his parent Home department on administrative grounds. The order on the face of it does not appear to be stigmatic or in the nature of a punitive order. The Transport Department has issued the impugned order where under the services of the petitioner have been repatriated to his parent Home department on administrative grounds. The order on the face of it does not appear to be stigmatic or in the nature of a punitive order. However, allegation of malafide has been made by the petitioner in the writ petition and has tried to substantiate it by referring to the documents annexed and certain persons have also been impleaded as private respondents. The relevant documents which have relied upon by the petitioner to substantiate the allegation of malafide are at Annexure5, 6, 7 and 8. Though it is refuted by the respondents that these letters are manufactured and have not been received by the Department, but the content of these letters have been examined as the allegation of malafide is a serious allegation and the persons who makes such allegation is expected to own the same. The allegations of malafide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. The judicial perspective in evaluating such a charge of malafide and unworthy conduct against higher authorities has been expounded by the Hon'ble Supreme Court in the judgment rendered in the case of E.P.Royappa-Vs.-State of Tamil & anr. Reported in (1974) 4 SCC 3 ; paragraph 92 of the judgment is extracted herein: “Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charge of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life of administrative set up-these considerations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in democracy. It is from this standpoint that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent”. 11. The charges of mala fide alleged by the petitioner are being examined with that perspective in mind. 12. The letter at Annexure-5 on the face of it makes an allegation that petitioner was directed by Respondent No.4 to arrange for 100 buses or sum of Rs.4 lakhs in respect of the arrangement of a Government Programme in the District of Seraikella. Apart from the fact that the allegation is unsubstantiated by any other proof, on the face of it such allegation will not stand scrutiny of legal reasoning. For holding an official Government programme, allegation that such kind of a direction was issued, as if it were a private function is not substantiated by any other specific proof and details. Annexure-6 makes an allegation that the Secretary, Transport Department had instructed him on 16.4.2012 for release of 3 vehicles of M/s Varuna Integrated Logistic Private Ltd. The subject of the letter refers to the direction issued on 16.4.2012. However, there are no such letters or documents to substantiate that any such direction was issued by the Secretary, Transport Department on 16.4.2012 upon the petitioner. However, there are no such letters or documents to substantiate that any such direction was issued by the Secretary, Transport Department on 16.4.2012 upon the petitioner. Letter at Annexure-7 dated 21.4.202 issued by the District Transport Officer to the Secretary cum Commissioner, Transport Department containing the report in respect of the vehicles belonging to M/s Varuna Integrated Logistic Private Ltd. seized by petitioner only lend support to the inference drawn upon perusal of Annexure-6 that they are unsubstantiated. If the Transport Commissioner had issued any instruction to the petitioner to release such vehicles of a particular company, in the first place, it was not at all expected that any inquiry were to be ordered by him at the same time to be conducted by the District Transport Officer, East Singbhum, Jamshedpur as would appear from perusal of Annexure-7, which refers to the direction of the Transport Commissioner dated 19.4.2012. The content of the said letter do however indicate that during the period from 1.4.2012 to 20.4.2012 several vehicles were seized by the Enforcement Officers, one of whom was the petitioner also and fines have been realized from all such vehicles. 13. Annexure-8 dated 8.9.2012 is said to be the confidential letter no. 47 issued by the petitioner and addressed to the Secretary cum Transport Commissioner, Jharkhand in respect of a meeting held on 7.9.2012 where allegedly several high ranking Officials of the District were present and the petitioner was reprimanded by the respondent no.4. However, the allegation again is unsubstantiated. Therefore, the same cannot be given any credence. It appears that the Department however did not take any action in respect of the petitioner till he was served with show cause notice on 18.10.2012 on the basis of the report of the Commissioner, Kolhan Division dated 26.4.2012. The letter in the opening paragraph itself refers to the plying of several sand loaded truck immersed with water in Chandil, Kandara Road which has been causing serious damages to the road. It also refers that the Principal Secretary, Road Construction Department had also drawn attention of the Additional Chief Secretary, Mines Department in respect of damages caused by such over loaded truck in two ways ; firstly that the water seeping from sand loaded truck is damaging the road and at the same time because of the sand loaded with immensed water such overloaded trucks are causing further damages to the road. It also refers to the fact that three such trucks were found plying while the respondent no. 4 was traveling on the said road where after officer in charge of Kandra Police Station, Seraikella was asked to take legal action and only thereafter leave such vehicles seized as the drivers of the three trucks had failed to produce any documents. The letter also indicates that the drivers of the said trucks had themselves informed that sand was being loaded from nearby river where 3-4 big machines were deployed for lifting of such sands to be transported through the trucks. It is in this context, that the respondent no. 4 was informed by the Secretary to the Transport Commissioner that three Enforcement Officers are having the responsibility for the said reason. The letter dated 26.4.2012, which is part of Annexure-9 shows that it was made in respect of 3 Enforcement Officers namely K.D. Singh, Mr. Khuntia and third being the petitioner. In respect of the petitioner, in the background of aforesaid contents of the letter the report stated that he had been found inaccessible when contacted for official works. Similar report has been made in respect of other two Enforcement Officers namely K.D. Singh and Mr. Khuntia. The report also refers to the information given by the Deputy Commissioner, Seraikella Kharsawan to the Commissioner, Kolhan that the petitioner in his 13 capacity as Enforcement Officer had been found to be inaccessible on several occasions and was non-cooperative. The Commissioner, Kolhan Division therefore informed the Secretary, Transport Department that work culture of these 3 Enforcement Officers are found to be unsatisfactory and they should either be repatriated to the Parent Home Department or if the Department consider it proper, it may undertake departmental inquiry in that respect. The department chose to issue show cause notice to the petitioner upon such report on 18.10.2012 and petitioner also replied to the same. The department, therefore, does not appear to have acted without any opportunity to the petitioner on the report of the Commissioner, Kolhan Division. However, the Department of Transport instead of choosing to take any disciplinary action, chose to issue the impugned order of repatriation of the petitioner on administrative grounds. Even as per the judgment relied upon by the petitioner in the case of Union of India through Govt. of Pondicheery & another Vrs. However, the Department of Transport instead of choosing to take any disciplinary action, chose to issue the impugned order of repatriation of the petitioner on administrative grounds. Even as per the judgment relied upon by the petitioner in the case of Union of India through Govt. of Pondicheery & another Vrs. V. Ramakrishnan & others Reported in (2005) 8 S.C.C. 394 , a deputationist does not have a indefeasible right to hold the post, even when the tenure of deputation is specified, though ordinarily, the term of deputation should not be curtailed except on the ground such as unsuitability or unsatisfactory performance. However, even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. In the present case, as has been found, no ground of malafide has been established, though the department has repatriated the petitioner on administrative grounds which have been shown on their behalf. The petitioner did not have a specified tenure of deputation either. The judgment in the case of Union of India & others-Vs.-Mahaveer C Singhvi reported in (2010) 8 SCC 220(Supra) does not also help the petitioner as the same was rendered in the case of a probationer in the matter of discharge on the basis of an inquiry arrived at against him behind back. The report of the Commissioner on the aforesaid scrutiny, therefore, cannot be said to be motivated against the petitioner alone as it was in respect of working culture of 3 such Enforcement Officers. It has been informed by learned counsel for the petitioner that the parent Home Department has chosen to initiate a Departmental proceeding against the petitioner which contained charges also in relation to the discharge of his duties while as an Enforcement Officer in the District of East Singhbhum at Jamshedpur and West Singhbhum at Chaibasa. Petitioner, obviously has a right to defend himself against the said charge in the departmental proceeding which are to be proved in accordance with law by the prosecution. The charges made in the departmental proceeding, as have also been narrated herein above do show that they are also in respect of the issues of facts which have been raised by the petitioner in order to allege that the impugned order of repatriation was motivated by malafide. 14. The charges made in the departmental proceeding, as have also been narrated herein above do show that they are also in respect of the issues of facts which have been raised by the petitioner in order to allege that the impugned order of repatriation was motivated by malafide. 14. This Court, however, in the present writ application is not required to render a finding as to whether the charges in the departmental proceeding against the petitioner are justified or not, which would be dependent upon the outcome of the departmental proceeding. However, since the allegation of malafide were made specifically in respect of the impugned order of repatriation, the documents relied upon by the petitioner as Annexure-5, 6, 7 and 8 have been examined in that perspective and has been found that the allegation of malafide made to challenge the impugned order of repatriation does not seem to be substantiated. It is however made clear that the observation made herein above have been rendered on the issue relating to the repatriation of the petitioner and would have no bearing on the departmental proceeding pending against the petitioner. As has been observed earlier the petitioner did not have a right to remain on deputation. The Department of Transport was well within its jurisdiction to repatriate the services of the petitioner to the Home Department. The order impugned on being examined, however does not appear to suffer from any colourable exercise of power and malafide. Therefore the petitioner has failed to make out a case of interference in the impugned order. 15. The writ petition is accordingly dismissed.