Kaushal Kumar Sinha v. National Bank for Agriculture and Rural Development
2015-10-15
APARESH KUMAR SINGH
body2015
DigiLaw.ai
Order Heard learned counsel for the parties. 2. The order under challenge bearing no. 39/2013-14 dated 30th April, 2013 (Annexure-26) is an order of reversion of the petitioner to the post of Assistant General Manager under NABARD with effect from 1st April, 2013 in the scale of Rs. 28350-41,400/-. Petitioner was promoted to the post of Deputy General Manager vide Annexure-8 dated 10th August, 2011 issued by the Chief General Manager, NABARD, respondent no. 3 in the scale of Rs. 39850-46150/-. The order of promotion to take effect from 4th July, 2011. 3. The factual matrix of the underlying controversy as borne from the pleadings on record by the rival parties are as follows: (i) Petitioner was serving as an Assistant General Manager under National Bank for Agriculture and Rural Development (hereinafter referred to as 'NABARD') when he was deputed on 17th February, 2005 to the Government of Jharkhand as an Officer on Special Duty, on which post he worked till 28th February, 2010. Government of Jharkhand again made a request for his deputation to NABARD on 30th May, 2011 (Annexure-2) issued by Principal Secretary, Institutional Finance and Programme Implementation Department. On consideration of the request and after seeking consent of the petitioner vide Annexure-3 dated 23rd July, 2011, his employer handed his services on deputation vide Annexure-4, order dated 1st July, 2011 issued by the Assistant General Manager. The deputation was to remain in force till 30th June, 2012 and was to be governed by the conditions contained in the letter dated 30th May, 2011 bearing no. 340 of the Department of Institutional Finance and Programme Implementation. Petitioner joined on 4th July, 2011 as per Annexures-5 & 6 dated 11th July, 2011 and 18th July, 2011 respectively. The Department of Institutional Finance and Programme Implementation, Govt. of Jharkhand through its resolution bearing Memo no. 509 dated 27th July, 2011 (Annexure-7) approved the conditions of service of the petitioner on deputation in the prescribed scale of pay, but also resolved to fix the tenure of his deputation for three years to be extended for two more years with the consent of NABARD. (ii) Petitioner was served with a letter of transfer dated 11th April, 2012 by NABARD (Annexure11) to report at the close of business on 30th June, 2012 to the General Manager, NABARD, Kerala Region Office.
(ii) Petitioner was served with a letter of transfer dated 11th April, 2012 by NABARD (Annexure11) to report at the close of business on 30th June, 2012 to the General Manager, NABARD, Kerala Region Office. Petitioner was admittedly not relieved by the Government of Jharkhand though communications were issued upon him later on again through Annexure-11 dated 8th June, 2012 by the Assistant General Manager, NABARD. In the interregnum he was given additional charge of officer on Special Duty in Planning and Development Department, Government of Jharkhand vide Memo no.7058 dated 8th June, 2012 issued by the Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand. He took charge of the said post also on 11th June, 2012 (Annexure-13). The Chief Secretary, Jharkhand through D.O. no. 494 dated 15th June, 2012 (Annexure-14) conveyed to the Chairman, NABARD the decision of the State Cabinet containing the terms and conditions of deputation and the period of his deputation for three years extendable by two years by mutual consent. It also impressed the necessity of petitioner on account of important assignments carried out by him and the decision of the State Government to retain him till June, 2014. Petitioner, however, requested on 22nd June, 2012 (Annexure-15) to Principal Secretary, Department of Institutional Finance and Programme Implementation to relieve him to join at Thiruvananthpuram on his transfer vide Annexure-11. The Chief Secretary, Jharkhand again wrote through D.O. no. 538 dated 2nd July, 2012 to the Chairman, NABARD taking note of his letter dated 21st June, 2012 expressing his inability to accede to the extension of deputation of the petitioner and repeated the request to retain his services till 30th September, 2012. 4. It appears that correspondences were also made by Chief Minister of the State to the Chairman, NABARD thereafter to retain the services of the petitioner in view of emergent situation arising out of drought declared in the State of Jharkhand and the requirement of the officer to handle the works allotted to him in absence of a suitable replacement easily within short period. The deputation of the petitioner was extended till 31st March, 2013 vide Annexure-19 dated 15th October, 2012. It was, however, hedged with a condition that in the event of deputation being extended beyond 31st March, 2013, he shall stand reverted to the Grade (Grade' C' or the post of A.G.M.), on which he was deputed to the Government of Jharkhand.
The deputation of the petitioner was extended till 31st March, 2013 vide Annexure-19 dated 15th October, 2012. It was, however, hedged with a condition that in the event of deputation being extended beyond 31st March, 2013, he shall stand reverted to the Grade (Grade' C' or the post of A.G.M.), on which he was deputed to the Government of Jharkhand. Petitioner was also advised to convey his acceptance. There were correspondences between the petitioner and NABARD in which apparently petitioner conveyed his inclination to be absorbed in the Government of Jharkhand subject to the proposal being initiated in this regard. As would appear from the letter no. 344 dated 31st March, 2013 issued by the Secretary, Institutional Finance and Programme Implementation Department to the Chairman, NABARD, a request was again made by the said department for retention of petitioner's services till 31st March, 2014 giving an indication that State Government may require his services on long term basis and was inclined to absorb him in the State Government services. 5. The Respondent-NABARD, however, did not accede to the request of the petitioner or the Government of Jharkhand for any extension of his deputation or incorporation of any terms and conditions for accepting such deputation till 31st March, 2013. In the event of the petitioner not being relieved by the Government of Jharkhand even after 31st March, 2013 and the petitioner on his own not relinquishing the charge of his post under the Government of Jharkhand, NABARD issued the impugned order at Annexure-26 dated 30th April, 2013 reverting him to the post of Assistant General Manager with effect from 1st April, 2013. 6. This in essence is the controversy. Challenge to the order of reversion is primarily based on the following grounds urged inter alia: i) That petitioner could not be held responsible for not relinquishing his charge when his employer on deputation i.e., State of Jharkhand did not relieve him from the said post despite his extension coming to an end with effect from 31st March, 2013. He also refers to his request made on 22nd June, 2012 for being relieved to join at Thiruvananthpuram which was not acceded to. ii) Reliance has been placed upon the relevant provisions of NABARD(Staff) Rules, 1982, especially Chapter-IV containing the conduct, discipline and Appeal Rules and more specifically Rule 47, which prescribes the penalties for any misconduct.
He also refers to his request made on 22nd June, 2012 for being relieved to join at Thiruvananthpuram which was not acceded to. ii) Reliance has been placed upon the relevant provisions of NABARD(Staff) Rules, 1982, especially Chapter-IV containing the conduct, discipline and Appeal Rules and more specifically Rule 47, which prescribes the penalties for any misconduct. The degradation to a lower post or grade or to a lower stage in his incremental scale is also one of the penalties stipulated for an employee who commits a breach of the Rules of NABARD and displays negligence, or indolence or knowingly does anything detrimental to the interests of the National Bank or in conflict with its instructions or who commits a breach of discipline or guilt of any other act of misconduct. The said Rule prescribes a detailed procedure for holding a disciplinary inquiry on the findings of which a penalty can be imposed. The disciplinary authority is also required to take an informed decision after compliance of the procedure required on the findings of guilt arrived at by the Inquiry Officer in such departmental proceeding. It is urged that none of these procedural requirements have been followed by the Respondent-NABARD before imposing him the said punishment. 7. Learned senior counsel for the petitioner submits that in a tug-of-war between the State Government and the NABARD, petitioner has been unnecessarily made to suffer. He has been relieved on 1st August, 2014 and has immediately joined on the designated post under NABARD on 4th August, 2014 showing his complete sense of discipline and obedience to his employer. The impugned orders therefore are not only in the teeth of provisions of NABARD(Staff) Rules, 1982 but also are not justified on independent consideration on the merits of the matter as disclosed through chronology of facts borne on the pleadings. 8. Counsel for the Respondent-NABARD has defended the impugned order. He has referred to Annexure-19 which contains the condition that if the deputation is extended beyond 31st March, 2013, petitioner would stand reverted to Grade-C or the post of Assistant General Manager, on which he was deputed to the Government of Jharkhand.
8. Counsel for the Respondent-NABARD has defended the impugned order. He has referred to Annexure-19 which contains the condition that if the deputation is extended beyond 31st March, 2013, petitioner would stand reverted to Grade-C or the post of Assistant General Manager, on which he was deputed to the Government of Jharkhand. It is further urged that petitioner has been bargaining with his employer while accepting the terms of his extension of deputation and exerted extraneous pressure through political executives to allow him to continue on deputation in the hope that his services would be finally absorbed by the Government of Jharkhand. The respondents, in addition has also stated that the respondents have at every point of time sought consent of the petitioner while deputing him under the Government of Jharkhand and also at the time of extension of his deputation, but the petitioner has not been faithful to his employer. He has not shown sufficient dedication to his original employer while seeking to extend his deputation beyond the tenure of his deputation. Counsel for the Respondent NABARD however has defended the impugned order of reversion without resorting to the provisions of Rule 47 on the grounds that promotion of the petitioner was hedged with a condition that no substantive right flew out of it and he could be reverted at any point of time to his original post. However, the averments made at para 16 of the writ petition relating to the claim of the petitioner of grant of substantive promotion to the post of Deputy General Manager has not been denied specifically at para 20 of the counter affidavit dealing with the said assertion. Rather it is stated that those are the matters of record. 9. The respondent State Government in its affidavit has also given chronology of facts relating to the deputation of the petitioner from 2005 till 2010; the request for further deputation made in 2011 and the acceptance of NABARD for deputation of the petitioner upto 30th June, 2012 initially. It is submitted that the decision of the Cabinet, Government of Jharkhand as contained in resolution dated 27th July, 2011 was also conveyed to NABARD. Requests have consistently been made by the Chief Secretary of Government as well as Principal Secretary of the Institutional Finance Department for extension of his deputation.
It is submitted that the decision of the Cabinet, Government of Jharkhand as contained in resolution dated 27th July, 2011 was also conveyed to NABARD. Requests have consistently been made by the Chief Secretary of Government as well as Principal Secretary of the Institutional Finance Department for extension of his deputation. It is submitted that since extension of the deputation was not granted beyond 31st March, 2013, petitioner was relieved finally on 1st August, 2014 to join with his employer. 10. I have considered the rival submissions of the parties, the pleadings on record and the grounds urged on their part. The sequence of facts referred to in some detail in the forgoing paragraphs of this judgment lead to irresistible impression that there was intent at the highest level in the State Government to retain the services of the petitioner over a period of three years subject to extension of two years with consent of NABARD, NABARD had initially granted him deputation for the period of one year till 30th June, 2012. The Government of Jharkhand before expiry of the period of deputation on 30th June, 2012 and even thereafter made several requests through letters written by the Chief Secretary, Government of Jharkhand such as Annexure-14 dated 15th June, 2012 and Principal Secretary of the Department such as Annexure 24 dated 30th March, 2013 and Annexure-L dated 13th May, 2015 (of counter affidavit to Respondent no. 4, Government of Jharkhand) to extend the deputation of the petitioner till March, 2015. The order of extension of deputation at Annexure-19 dated 15th October, 2012 did contain stipulation that if the period of deputation is extended beyond 31st March, 2011 and petitioner continues thereafter, he would stand reverted to Grade-C or to the post of Assistant General Manager on which he was sent for deputation to the Government of Jharkhand. However, once a substantive promotion was granted to the petitioner to the higher post of Deputy General Manager with a higher scale of pay, any such reversion to the lower post or rank could only have been imposed after following the prescribed procedure under NABARD (Staff) Rules, 1982, more specifically Rule 47.
However, once a substantive promotion was granted to the petitioner to the higher post of Deputy General Manager with a higher scale of pay, any such reversion to the lower post or rank could only have been imposed after following the prescribed procedure under NABARD (Staff) Rules, 1982, more specifically Rule 47. Reversion to lower rank or post is in the nature of a penalty prescribed under the said Rule which can only follow after a detailed disciplinary inquiry for distinct charges of misconduct to be inquired into by the Inquiry Officer after giving due opportunity to the prosecution as well as delinquent employee. If the said requirement of law has not been followed then the decision making process has been vitiated in law as well as on facts. In that eventuality the reversion of the petitioner in the background facts of the case, reasons and the discussions made hereinabove, cannot be sustained in the eye of law. As would also appear the petitioner was not being relieved by his foreign employer despite his request made such as through Annexure 15 dated 22nd June, 2012. The impugned action therefore appears to be without proper application of mind and consideration of all relevant material facts. It therefore requires interference under powers of judicial review of decision making process, by this Court. Accordingly, the office order no. 39 dated 30th April, 2013 (Annexure-26) cannot be sustained in the eye of law as well as on facts and is consequently quashed. However, it is left to the discretion of Respondent-NABARD to proceed afresh against the petitioner in accordance with law. 11. Accordingly, the writ petition is allowed in the manner and to the extent indicated hereinabove.