Andhra HC (Pre-Telangana)
D.K. Rao vs Government Of India, Rep. By Its ... on 7 September, 1993
Equivalent citations: 1994(2)ALT646
JUDGMENT S. Dasaratharama Reddy, J.
1. The appellant who is a member of Indian Administrative Service, Gujarat Cadre, was appointed as Deputy Chairman of Visakhapatnam Port Trust by Government of India by Notification dated 24-4-1991 issued under Section 3(1) (b) of the Major Port Trusts Act, 1963 (in short 'the Act')- As per the proceedings dated 30-7-1991 addressed to the Chairman, Visakhapatnam Port Trust, the tenure of appointment of the appellant was upto 31-5-1995 i.e., for a period of four years. On 7.5.1993, the Government of India passed Orders repatriating him to his parent cadre with immediate effect. Consequently, he was relieved of the duties of the Deputy Chairman on 7-5-1993. The appellant has filed writ Petition No. 6443/93 challenging the proceedings.
2. At the time of admission of the Writ Petition, the learned single Judge directed on 19-5-1993 that the appellant shall be permitted to go on leave to which he is entitled and also that the Government of India shall not fill up the post of Deputy Chairman until further orders. Accordingly, the appellant went on leave. The appellant contended in the Writ Petition that:
(1) the appointment being a tenure appointment for a period of four years, cannot be terminated before that date, (2) in the absence of any request from the parent department for repatriation of the appellant, he cannot be reverted to the parent department, (3) the repatriation even before expiry of term amounts to removal from the post of Deputy Chairman without giving notice, and (4) there is no approval of the Appointment Committee of the Union Cabinet for the repatriation and the repatriation order is arbitrary and capricious.
3. The 1st respondent has filed counter contending that the appointment was purely on deputation basis, as per Section-7 of the Act, he holds office during the pleasure of the Central Government and hence the executive order dated 30-7-1991 specifying the period of deputation as four years cannot over-ride the statutory provisions. There were large number of complaints against the appellant during the period he worked as Deputy Chairman and Chairman-incharge of the Port Trust and due to his activities the atmosphere in the Port Trust was completely vitiated and the staff was divided on caste basis and the Government of Andhra Pradesh also brought the same to the notice of the Central Government. It is also the contention of the first respondent that the consent or request of the parent department is not necessary for the repatriation. Regarding notice, the 1st respondent contended that as the order of repatriation is noting but a transfer order and does not attach any stigma to him, no notice is required. It is also contended that the order was passed duly obtaining the approval of the competent authority. The 1st respondent has taken a preliminary objection that the Writ is not maintainable and the proper remedy is to approach the Central Administrative Tribunal as the appellant is a member of the Indian Administrative Service.
4. The Port Trust also filed its counter supporting the stand of the Central Government. The appellant has not filed any reply denying the allegations made in the counters filed by respondents 1 and 2.
5. It is significant to note that the contention that the impugned order was punitive in nature was raised during hearing of the Writ Petition and there is no specific allegation to that effect in the Writ Petition.
6. The learned single Judge has rejected all the contentions of the appellant. He has also rejected the preliminary objection of the respondents about the maintainability of the Writ Petition. Against this order, the appellant has come up in appeal.
7. Sri E. Manohar, the learned counsel for the appellant submits that as per proceedings dated 30.7.1991, the period of appointment is for four years and hence the appellant cannot be repatriated prematurely. He relied on the decision in L.P. Agarwal v. Union of India, . On the other hand, the learned counsel for the Central Government contends that under Section 7 of the Act, the appellant holds office during the pleasure of the Central Government and that merely because the proceedings refer to the period of tenure as four years, it does not prevent the Central Government from exercising its power to withdraw the appellant and send him back to the parent department if exigencies of situation require. The learned counsel further submits that even de hors Section-7 of the Act, the lending authority has always power to terminate the deputation at an earlier point of time and relied on the decision in Shambu Nath Lal Srivastava v. State of U.P., 1984 (2) SLR 396 (Allahabad).
8. We find force in the contention of the learned counsel for the Central Government. The case relied on by the learned counsel for the appellant (Agarwal's case 1 supra) is distinguishable since in that case the officer who was appointed on a tenure basis for a period of 5 years was sought to be retired on attaining the age of superannuation. It is not a case of deputation and the question of the officer going back to the parent department where he had substantive post does not arise in that case. As it was a tenure post, the Supreme Court held that the concept of superannuation is alien to such a post. As already seen, Section 7(1) of the Act says that the Chairman and Deputy Chairman hold office during the pleasure of the Central Government. Thus, the appointment order must be read along with Section 7(1) of the Act and if so read, it follows that the appellant is entitled to hold the post of Deputy Chairman in the normal course for a period of 4 years, but without prejudice to the right of the Central Government to withdraw him at any time before expiry of 4 years. Further, even if the appointment order is construed by itself without reference to Section 7(1) of the Act, it does not preclude the lending department to withdraw the officer and repatriate him to the parent department as held by the High Court of Allahabad in Shambu Nath's case, 1984 (2) SLR 396 (Allahabad).
9. The second contention of the learned counsel for the appellant is that in the absence of any request from the parent department, i.e., the Government of Gujarat, the appellant cannot be repatriated. It must be remembered that the appellant was sent to the Port Trust not on the request or at the instance of the Government of Gujarat, but at the instance of Government of India which is the appointing authority regarding the post of Deputy Chairman of the Port Trust. The Government of Gujarat has no say either in sending the appellant to the Port Trust or repatriating him to the Government of Gujarat. Thus, there is no substance in this contention.
10. Sri E. Manohar, lastly contended that though the impugned order is a simple repatriation order, it attaches stigma to him since, as revealed in the counter, the repatriation is based on some complaints received against the appellant. He relied on the decisions in Dabesh Chandra v. Union of India, K.H. Phadnis v. State of Maharashtra, and State of M.P. v. Ashok Deshmukh, . On the other hand, the learned counsel for the Central Government has contended that the repatriation order is administrative in nature and the appellant is not entitled to any notice before such an order is issued as it does not cast any blemish.
11. As already seen, the appellant holds office during the pleasure of the Central Government. If there is some data available with the Central Government, it is always open to it to terminate the appointment and the reasons for termination need not be disclosed to the employee as in the case of administrative transfers. In the counter-affidavit filed on behalf of the Government of India, it is stated that the withdrawal of the appellant from the Port Trust was necessitated because of the complaints against him. It is significant to note that no reply is filed by the appellant denying the allegations and this contention was raised during hearing of the Writ Petition and in grounds of appeal without there being any allegation in the writ petition. We have perused the record which has been produced before us by the learned counsel for the Central Government and we are satisfied that there is sufficient material for the Government of India to repatriate the appellant. These complaints were disclosed in the counter because of the allegation in the affidavit that his withdrawal from the Port Trust was arbitrary and that there is no reason to pass such order. The 1st respondent is not bound to disclose the reasons to the appellant for repatriation in the repatriation order just as it is not bound to disclose the reasons for transfer from one department to another or from one place to another.
12. The decision is Dabesh Chandra's case (3 supra) does not apply to the facts of the case. There, the Officer was asked by the Government to opt either to revert to his parent State or to proceed on leave preparatory to retirement or tp accept some post lower than that of Secretary to Government of India and in those circumstances it was held by the Supreme Court that the reversion from the post of Secretary to Government of India to State service or in the alternative to go on leave preparatory to retirement was vitiated by stigma and amounts to reduction in rank which is violative of Article 311 (2) of the Constitution of India. Similarly, in Phadnis's case (4 supra), the Officer was faced with some complaints regarding the marriage of his daughter and the Secretary to Government threatened him to repatriate to his parent department and the Minister visited the office of the appellant followed by enquiry by the police. In those circumstances, the Supreme Court held that the order of reversion was not a genuine one of accident of service, but was vitiated by stigma. We fail to appreciate how this decision helps the appellant.
13. In the decision in Ashok Deshmukh's case (5 supra), relied on by the learned counsel for the appellant, the High Court of Madhya Pradesh quashed the order of repatriation on the ground that a wrong complaint of Member of Legislative Assembly appeared to be the only basis for passing the order of reversion, which complaint was found to be later incorrect. Though the High Court found that there is no material on record to support any bias or mala fides on the part of the Secretary, Panchayat and Rural Development Department, the Court quashed the order of reversion on the ground that it was passed as a result of complaint of a Member of Legislative Assembly. The Supreme Court reversing the order of the High Court observed as follows:
"......If mere existence of some allegations against an officer which on inquiry had been found to be untrue is to be treated as the basis for quashing any order of transfer or repatriation made in respect of any officer then almost every such order of transfer or repatriation would have to be quashed because there would always be some complaint by some party or other against every officer. Unless the Court is sure that the impugned order is really based upon such allegations it should not proceed to quash administrative orders which are made in the exigencies of the administration."
Again the Supreme Court observed:
"........The impugned order of repatriation passed in respect of the 1st respondent does not on the face of it show that there is any stigma attached to the 1st respondent by reason of the said order..... The 1st respondent had no vested right to continue on deputation as Block Development Officer. On the material placed before us we do not find that the order of repatriation is arbitrary and violative of Article 14 of the Constitution."
14. In the present case, the repatriation order reads as follows:
"Visakhapatnam Port Trust No. PA/Ch/CON/93 Dt. 7th May, 1993.
Order:
Ref: Fax Message from Min. of Surface Transport dated 6-5-1993. With reference to the Fax Message cited above, as directed by the Ministry of Surface Transport, Sri D.-Kishore Rao, IAS, Dy. Chairman, VPT, is hereby relieved of his duties as Dy, Chairman, Visakhapatnam Port Trust with immediate effect to revert to his parent cadre. A copy of the Fax Message is enclosed. End: One.
Sd. 7-5-93 Chairman."
15. Apart from there being no allegation of mala fides on the part of any Officer, the repatriation order on the face of it does not show that there is any stigma attached to the appellant. Thus, the case cited instead of helping the appellant supports the case of the respondents though it is based on certain complaints received.
16. In Purshotam Lal Dhingra v. Union of India (1958 SCR 828), the Constitution Bench of Supreme Court held that the mere use of expressions like 'terminate' or 'discharge' is not conclusive and in spite of the use of such expressions the Court may determine the true nature of the order to ascertain whether the action taken against the Government Servant is punitive in nature. The Court also held that in determining the true nature of the order, the Court should apply two tests viz., (1). Whether the Government Servant had a right to the post or the rank or, (2) Whether he has been visited with evil consequences, and if either of the tests is satisfied, it must be held that the order of termination is by way of a punishment.
17. In R.C. Lacy v. The State of Bihar (C.A. No. 590/62 decided on 29-10-63, referred to in JT 199 1 SC 108), another Constitution Bench of the Supreme Court dealing with the case of reversion of a Government Servant officiating on a higher post, observed that the government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of the employee and the same reasoning applies to a public servant who is reverted from a officiating higher post to his substantive lower post. It was also held that before terminating the services of a temporary servant or reverting the person officiating in a higher post to his substantive post, the Government may hold a preliminary enquiry to form the requisite satisfaction for the continunce of the officiating Government Servant and such an inquiry does not change the nature of the order of the termination or reversion.
18. In the State of U.P. v. Kaushal Kishore Shukla, JT 1991 SC 108 = 1991 SCC 691 there was adverse report against a Government Servant regarding his work which was reflected in the adverse remarks made for the year 1977-78. The competent authority terminated the services after holding a preliminary inquiry in to the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution. However no charges were framed against the employee and no"Officer was appointed for holding departmental enquiry. Upholding the termination order, the Supreme Court held that holding of a preliminary inquiry does not affect the nature of the termination order and that the allegations made in the counter-affidavit by way of a defence filed on behalf of the Government do not either change the nature or character of the order of termination.
19. In very recent case in Triveni Shankar Saxena v. State of U.P., the services of a temporary Government Servant were terminated on account of his unsuitability and on the basis of adverse entries in his personal file and the order of termination merely said that his services are no more required. After going through the record (original Character Roll of the appellant), the Supreme Court held that the services of the employee were rightly terminated and that the order of termination is not punitive in nature. It was also incidentally pointed out by the Supreme Court that the appellant therein had no where in his pleadings raised the plea that the termination is punitive in nature.
20. Thus, if this is the position, with regard to termination of a temporary government servant or reversion from a higher officiating post to a substantive lower post, effected on the basis of a ex parte enquiry, the principle applies with more force to the case of an employee like the appellant, since he has no right whatsoever to the post to which he is deputed, the post is not in any way higher than his substantive post viz., the Secretary in the Government of Gujarat and the repatriation is done not even on a preliminary enquiry, but only on the basis of certain complaints received by the Government against him.
21. In view of the above discussion, we reject this contention of the learned counsel for the appellant.
22. The contention regarding the absence of approval by appointment Committee of the Union Cabinet for repatriation, raise before the learned single Judge, is not raised in the appeal.
23. We are not going into the question of maintainability of the Writ Petition since the learned single Judge had held that the Writ is maintainable and the respondents have not challenged the same in the arguments in support of the order under appeal.
24. In the result, we see no infirmity in the order of the learned single Judge and the appeal is accordingly dismissed, but in the circumstances, without costs.
25. Immediately after the judgment has been delivered, the learned counsel for the appellant has moved an oral application for leave to appeal to the Supreme Court. In our view the case does not involve any substantial questions of law of general importance that needs to be decided by the Supreme Court. Therefore, the leave is refused.