Gauhati High Court
Dr. Amar Jyoti Baruah vs The Union Of India & Ors on 27 June, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 2999/2010
Petitioner :
Dr. Amar Jyoti Baruah,
S/O Lt. Harendra Kanta Baruah,
R/O K. K. B. Chenikuthi,
P. O.: Chenikuthi,
P.S.: Chandmari,
Dist: Kamrup (Metro), Assam.
By Advocate :
Mr. H. K. Mahanta.
Respondents :
1. Union of India represented by the Secretary, Ministry of Water Resources,, Shram Shakti Bhawan, Rafi Marg, New Delhi-110001.
2. Chairman, Brahmaputra Board, Basistha, Guwahati-781029.
3. Commissioner (B & B), 5th Floor, Mohan Singh Marg, Connaught Place, New Delhi-110001.
4. Joint Secretary (Coord), Government of India, Ministry of Water Resources, Shram Shakti Bhawan, Rafi Marg, New Delhi.
5. North Eastern Electric Power Corporation Ltd.
represented by the Chairman-cum-Managing Director, North Eastern Electric Power Corporation Ltd. Brookland Compound, Lower New Colony, Shillong-793003.
By Advocates :
Mr. J. Deka, CGC.
Mr. K. P. Sharma, Senior Advocate.
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 17-06-2013
Date of Judgment : 27-06-2013
J U D G M E N T AND O R D E R (ORAL)
By way of this writ petition, petitioner has challenged legality and validity of order dated 20.05.2010 passed by the Deputy Secretary to the Government of India, Ministry of Water Resources and the consequential order dated 21.05.2010 of the Secretary, Brahmaputra Board, Government of India, Ministry of Water Resources. By the first order dated 20.05.2010, petitioner was repatriated to his parent department and by the second order dated 21.05.2010, he was released from the Brahmaputra Board on repatriation.
2. Facts are not in dispute. However, for adjudication of the case, the essential facts are briefly narrated hereunder.
3. While the petitioner was serving as Senior Manager (Civil) in the North-Eastern Electric Power Corporation Ltd. (NEEPCO), a Government of India enterprise, he was appointed as General Manager, Brahmaputra Board on deputation basis vide order dated 05.09.2008. The deputation period was for 5 years or till further orders, whichever was earlier. On being released by his parent organization on 30.09.2008, petitioner joined as General Manager in the Brahmaputra Board on 06.10.2008.
4. While serving as General Manager in the Brahmaputra Board, petitioner was arrested on 22.02.2010 by the Central Bureau of Investigation (CBI) in connection with a criminal case (Special Case No. 3/2010 under Section 7 of the Prevention of Corruption Act, 1988). Since petitioner was detained in custody for a period exceeding WP(C) No. 2999/2010 Page 2 of 9 48 hours, order dated 20.05.2010 was passed by the Deputy Secretary to the Government of India, Ministry of Water Resources declaring that petitioner would be deemed to have been suspended w.e.f. the date of detention i.e. from 22.02.2010 in terms of Sub Rule (2) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short "1965 Rules").
5. Petitioner was subsequently released on bail on order of this Court.
6. Thereafter, impugned order dated 20.05.2010 was passed repatriating the petitioner pre-maturely to his parent department. This was followed by the release order dated 21.05.2010.
7. Being aggrieved, petitioner has filed the present writ petition challenging the legality and validity of the aforesaid two orders.
8. This Court by order dated 18.06.2010 issued notice and in the interim, stayed the repatriation order dated 20.05.2010 and all consequential orders.
9. Respondent No. 2 i.e. Brahmaputra Board has filed affidavit. Stand taken in the affidavit is that post of General Manager, Brahmaputra Board is a key post having heavy responsibilities. Because of arrest of the petitioner in a criminal case, he was placed under suspension. In view of such development, it was decided to repatriate the petitioner to his parent department so that a new General Manager could be appointed. Repatriation order has been passed as per the terms of the deputation order. Parent department WP(C) No. 2999/2010 Page 3 of 9 had given sanction for prosecution of the petitioner in the criminal case. On repatriation of the petitioner, parent department may consider as to what administrative steps are required to be taken in respect of the petitioner. Authority in the parent department would be competent to review or revoke the suspension of the petitioner. Respondent No. 5 i.e. NEEPCO has also filed affidavit. It is stated that petitioner was sent on deputation to the Brahmaputra Board for a period of 5 years. In case of pre-mature repatriation before completion of the deputation period, it was incumbent upon the borrowing department to seek the views of the lending department. In the present case, borrowing department i.e., Brahmaputra Board had not sought "no objection" from the lending department i.e., NEEPCO.
10. Respondent Nos. 1 to 4 have filed an additional affidavit to place on record a copy of judgment of the Court of Special Judge, CBI, Assam, Guwahati in Special Case No. 3/2010. By the said judgment dated 11.12.2012, petitioner has been convicted under Section 7/13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and sentenced him to undergo rigorous imprisonment (RI) for 2(two) years and to pay a fine of Rs. 25,000/-, in default, to undergo further RI for 3 (three) months.
11. Heard Mr. H. K. Mahanta, learned Counsel for the petitioner and Mr. J. Deka, learned Central Government Counsel appearing for respondent Nos. 1 to 4. Also heard Mr. K. P. Sarma, learned Senior Counsel appearing for respondent No. 5.
12. Learned counsel for the petitioner submits that under Rule 10 (5) (c) of the 1965 Rules, an order of suspension made or WP(C) No. 2999/2010 Page 4 of 9 deemed to have been made under the said Rules can only be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. Since the suspension order has been issued by the Deputy Secretary to the Government of India, Ministry of Water Resources, the same can be modified or revoked by the said authority or by any authority to which he is subordinate. In case of repatriation in the present state, the authority at NEEPCO would not have the competence to modify or revoke the suspension order. In such a case, suspension order will remain in force for an indefinite period, in which case, serious prejudice will be caused to the petitioner. According to the learned counsel for the petitioner, petitioner cannot be repatriated in his present state of suspension.
13. Submission of learned counsel for the petitioner has been opposed by Mr. Deka, learned Central Government Counsel. He has referred to various provisions of the 1965 Rules to contend that while the borrowing department would have the competence to initiate necessary discipline steps against an officer on deputation, such power can also be exercised by the parent or lending department. In this connection, particular reference has been made by learned Central Government Counsel to Rule 20 (1) of the 1965 Rules. He would therefore submit that there is no legal bar to repatriate an officer on deputation even when he is under suspension. He further submits that no consent of the parent department is required before sending back an officer on repatriation. He has placed reliance on the following decisions:-
WP(C) No. 2999/2010 Page 5 of 9
AIR 1976 SC 1737 (Khemi Ram Vs. State of Punjab) (2000) 5 SCC 362 (Kunal Nanda Vs.Union of India and Ors.) AIR 2003 SC 2917 (Union of India Vs. Rajiv Kumar)
14. Mr. K. P. Sarma, learned Senior Counsel appearing for respondent No. 5 submits that NEEPCO authorities were not informed of the circumstances leading to the suspension of the petitioner. Even while passing the order of repatriation, NEEPCO was not taken into consideration. He submits that prior consent of the lending department is essential in a case of premature repatriation. According to the learned senior counsel, as per the NEEPCO Personnel Manual, the borrowing authority has the power of the appointing authority for placing a deputationist under suspension and also for the purpose of initiating or conducting disciplinary proceeding against him provided the borrowing authority informs the lending department (NEEPCO) of all the circumstances leading to the order of suspension or the commencement of the disciplinary proceeding. He supports the stand of the petitioner that NEEPCO authorities will have no power to revoke or modify the suspension order passed by the authority of the Brahmaputra Board.
15. Submissions made have been considered.
16. Since Rule 10 (5)(c) of the 1965 Rules is central to the petitioner's case, a brief dilation on the same is considered necessary. Rule 10 deals with suspension. While Rule 10 (1) empowers the appointing authority or the authorities mentioned therein to place a Government servant under suspension, Sub-Rule (2) provides for deemed suspension in case of custodial detention for a period WP(C) No. 2999/2010 Page 6 of 9 exceeding forty-eight hours. Sub-Rules (3) and (4) are not relevant for the present case as those relate to situations where penalty of dismissal etc is set aside on appeal, review or on Court order. Rule 10 (5) (a) provides that an order of suspension made or deemed to have been made under the said Rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. Under Clause-(c), an order of suspension made or deemed to have been made under Rule 10 may be revoked or modified at any time by the authority which made it or is deemed to have made or by any authority to which that authority is sub-ordinate.
17. Rule 20 of the 1965 Rules deals with provision regarding officers lent to State Governments etc. As per Sub-Rule (1), where the services of a Government servant are lent by one department to another department or to any other authority, the borrowing authority shall have the power of the appointing authority for the purpose of placing such Government servant under suspension and also of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him. As per the proviso, the borrowing authority is required to forthwith inform the lending authority the circumstances leading to the order of suspension or the commencement of the disciplinary proceeding, as the case may be.
18. In Khemi Ram (supra), the Apex Court affirmed a decision of the High Court holding that it was permissible for the lending authority to make an order of suspension while the service of the employee was at the disposal of the borrowing authority on deputation.
WP(C) No. 2999/2010 Page 7 of 9
19. The Hon'ble Apex Court in Kunal Nanda (supra), held that the basic principle underline deputation 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.
20. In the case of Rajiv Kumar (supra), the Apex Court examined the provision of deemed suspension arising out of custodial detention exceeding 48 hours under Rule 10(2) of the 1965 Rules. It was held that Rule 10(2) is a deeming provision and creates a legal fiction. Under Rule 10 (5)(a), such an order would continue to remain in force until it is modified or revoked by an authority competent to do so while Rule 10 (5)(c) empowers the competent authority to modify or revoked such suspension.
21. In case of deputation, while the deputationist retains his substantive post under the parent department, he comes under the administrative control of the borrowing department. A careful analysis of the law relating to deputation would show that while an officer is on deputation, both the parent department as well as the borrowing department would have the power to place him under suspension or to initiate disciplinary proceeding against him. The Apex Court had held in Khemi Ram (supra) that while an officer is on deputation, the parent department would still have the power to initiate disciplinary action against him. If that be the position, the appointing authority or the parent department would have the power to take further steps or pass further orders in the case of the suspended deputationist, who is sent back on repatriation. Applying the above principle, in the present case, the borrowing department WP(C) No. 2999/2010 Page 8 of 9 had only stepped into the shoes of the parent department while placing the petitioner under suspension. On repatriation, the parent department would be the competent authority to pass further orders it considers necessary once the officer comes within its administrative control on repatriation.
22. The submission made on behalf of the petitioner that suspension order having been passed by the borrowing department, it can only be modified or revoked by the borrowing department before repatriation of the petitioner, does not appeal to the Court. Such an interpretation would make the provision of Rule 10(5)(c) unworkable.
23. From the discussions made above, the Court is of the considered view that the repatriation order does not suffer from any infirmity. On such repatriation, respondent No. 5 i.e. NEEPCO will become the competent authority in respect of the petitioner and will be competent to pass any order relating to the petitioner, including an order under Rule 10(5)(c) of the 1965 Rules.
24. Having regard to the above, this Court finds no merit in the challenge made to the repatriation order dated 20.05.2010. There is no merit in the writ petition. It is accordingly dismissed. Interim order passed earlier stands vacated.
25. However, looking to the facts and circumstances of the case, there shall be no order as to cost.
JUDGE aparna WP(C) No. 2999/2010 Page 9 of 9