Central Administrative Tribunal - Delhi
Shri Shailesh Singh vs Union Of India Through on 17 March, 2010
Central Administrative Tribunal
Principal Bench
OA No.2806/2009
New Delhi, this the 17th day of March, 2010
Honble Mr. Justice V. K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Shri Shailesh Singh
S/o Shri Udai Bhan Singh
Aged about 44 years,
R/o 11th Floor, Belvedera,
Bhula Bhai Desai Road,
Mumbai. . Applicant
(By Advocates: Ms. Jyoti Singh with Sh. Padma Kr. S. and
Shri Amandeep Joshi).
Versus
1. Union of India through
Secretary
Department of Commerce
Ministry of Commerce & Industry
Udyog Bhavan,
New Delhi.
2. Director General of Foreign Trade
Udyog Bhavan,
New Delhi.
3. Union of India through
Secretary
Ministry of Home Affairs,
North Block,
New Delhi. .. Respondents
(By Advocate : Sh. Parag P. Tripathi, Additional Solicitor General with
Sh. V. S. R. Krishna, Shri Vaibhav Joshi and Ms. Sangita Rai).
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Shri Shailesh Singh is an Officer of the Indian Police Service (IPS) of 1987 batch belonging to the Madhya Pradesh cadre. The Applicant has an unblemished and outstanding record of service, having worked as Superintendent of Police for 3 Districts, Director (Enforcement) in the Food and Civil Supplies Department and promoted to the level of Inspector General of Police (IGP), worked as IGP (Complaints) and later on as IGP (Narcotics). He has also received the President Medal for meritorious service. It is the case of the Applicant that his outstanding service was further recognized by the fact that while 50% of his batch mates could not be empanelled for the Inspector General of Police for Central deputation, he could be empanelled for the Inspector General of Police (IGP). In the year 2007, the Department of Commerce sent requisition for central deputation to the post of Zonal Joint Director General of Foreign Trade (ZJDGFT). The name of the Applicant was sponsored by the State Government of Madhya Pradesh, which was considered by the Civil Services Board and Applicants name was recommended along with another person. The Appointments Committee of the Cabinet (ACC)-Competent Authority accorded approval of his central deputation to the said post. The Department of Personnel and Training (DOPT) intimated the Ministry of Home Affairs (MHA) vide its Office Memorandum dated 22.02.2008 (Page-20) about the selection of the Applicant. Consequently, the Applicant assumed charge of the post of ZJDGFT at Mumbai w.e.f. 3.3.2008, which fact was circulated by the Respondents in the Office Order dated 4.3.2008 (Page-21), as per which his deputation was for a tenure of 5 years period from the date of taking over or until further orders, whichever event was earlier. It is the Applicants case that though the policy guidelines for central deputation for a Director Level post is 5 years and the same was approved for him as ZJDGFT for a tenure of 5 years, the office of the Respondent No.1 issued an Office Order dated 25.9.2009 (Annexure A-1) prematurely repatriating him to MHA, the Cadre Controlling Authority for the IPS Officers. The Applicant avers that after he took over the charge of ZJDGFT post, he streamlined many procedures and functioning of the Zonal office, more specifically, in the areas of issuing licenses to the trade and undertook proper monitoring of the pending cases. Some of the persons inimical to him started writing anonymous letters against him in the name of one Suresh Tamane, dated 5.06.2009, allegedly to be Secretary of the Staff Association, which was communicated to the Applicant vide Memo dated 24.06.2009 to offer his comments. The Applicant submitted his comments pointing out that he was trying his best with the Department to clear the old pending cases and is discouraging unscrupulous elements, for which somebody deliberately made the anonymous complaints to frame him. He also reported that he had done nothing wrong and only some people affected by his strict action had been conspiring to oust him. On 1.07.2009, the Respondent No.1 issued another Memo alleging that some complaints had been received from the representatives of the Traders and Trade Association against his working and similar type of letter was received by him from the Director General of Foreign Trade. In the letter dated 8.07.2009, it was stated that there were complaints against him, more specifically; he had concentrated more powers at the level of ZJDGFT on various matters which had been impeding efficiency. On 10.07.2009, the Applicant issued a note delegating the powers of the ZJDGFT. However, the Respondent No.1 took a decision on 25.09.2009 prematurely repatriating the Applicant to MHA. It is the Applicants case that with malafide intention Respondent No.1 repatriated him, which was evident from the fact that he was to be relieved immediately from the post and even one days time was not allowed, and on the very day of the repatriation order, the Applicant was ordered to be relieved. Having no opportunity to reply, he has to approach this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 in the present OA with the following prayers:-
8.1 Quash the order dated 25.9.09 whereby the applicant has been illegally repatriated prematurely in the midst of 5 year tenure on deputation as Jt. DGFT with office of DGFT, Mumbai.
8.2 Allow the OA and direct the respondents to continue the applicant at the DGFT office at Mumbai till completion of 5 years in March, 2013.
8.3 And this Honble Tribunal may be pleased to pass such other and further orders as deemed fit and proper in the circumstances of the case to meet the ends of justice.
2. At the admission stage itself, Applicants interim relief was considered and the same was granted by this Tribunal on 7-10-2009 staying the operation of the impugned order which was prima facie demonstrated to be stigmatic. Since then the interim relief granted has been continuing. Notice was issued to the Respondents on the OA. Respondent No.1 and 2 filed MA No.2183/2009 and prayed for vacation of stay already granted. A detailed counter affidavit was also filed on behalf of Respondent No.1 and 2 on 17.11.2009. Respondent No.3 also filed the counter reply vide the affidavit dated 1.12.2009. The Applicant submitted certain additional information and documents in the Rejoinder dated 16.12.2009 to which a short counter was filed by the Respondents on 18.12.2009. After hearing the parties in the case on 29.01.2010, we directed the Respondents to submit the relevant records and the following order was passed:-
The primary contention raised by Ms. Jyoti Singh in support of this Original Application is that the premature repatriation of the applicant from the record would appear to be punitive. We have gone through some of the records, as requested to be gone through, today in the court. It may appear from perusal of the record that we have gone through that there were numerous complaints against the applicant which were enquired into by Mr. Sham Aggarwal, ADG. We also find some of the findings that may have been arrived at by the ADG, but neither the complaints nor the report/findings of ADG are available with the respondents. It would be more appropriate to have a look on the complaint(s) said to have been made against the applicant as also the findings of the ADG.
Before we may part with this order, we may mention the contention raised on behalf of the applicant is that there were no complaints against the applicant nor any enquiry was conducted in such complaints to the best of the knowledge and judgment of the applicant.
Respondents would bring the relevant record as mentioned above and in particular the complaints that may have been received against the applicant and the findings of the ADG, on the next date of hearing.
3. The pleadings being complete, the case was finally heard by us on 15.02.2010 when Ms. Jyoti Singh learned counsel along with Sh. Padma Kr. S. and Shri Amandeep Joshi counsels represented the Applicant and Sh. Parag P. Tripathi, learned Additional Solicitor General with Sh. V. S. R. Krishna, Shri Vaibhav Joshi and Ms. Sangita Rai, learned Counsels argued on behalf of the Respondents.
4. On our directions, the Counsel for the Respondents submitted for our perusal the following records viz. (i) F. No.1/16/2009 Vig. along with noting;(ii) Short Note Sheets Pages 1 to 12. Dy. NO.487 dt. 18/03/08; (iii) File No.1/13/2008 Vig. including the noting; (iv) File No.1/61/08 Vig. along with noting; (v) File No.1/21/08 Vig. along with noting; (vii) File No.A.12022/2/07 E.I. along with noting and (vii) File No.10/16/2007/EO MM II along with noting.
5. The main contention raised by Ms. Jyoti Singh, the learned Counsel for the Applicant, is that the Applicants tenure of 5 years being from March 2008 to March 2013, premature repatriation after barely 18 months of his work is against the deputation policy. She contends that the very words Pre-maturely repatriated casts stigma on the Applicant and will affect his future career prospects. It is argued that the plain reading of the order shows, it is punitive in nature but the Applicant was not put to any notice less to speak of show cause notice. It is stated that the Applicant has nothing adverse against him and there is no charge sheet against him. Ms. Singh submitted that one anonymous complaint against the Applicant was given to him which he got verified and found that the complainant denied to have sent any complaint and the allegations in the said complaint were false. She submits that one more complaint of Traders Association was sent to the Applicant by Respondent No.1 in a letter dated 8.7.2009 in which concentration of all powers with the Applicant was alleged. In a responsive way, the Applicant delegated vide his letter dated 10.07.2009 to others the power which he was exercising on the subject of keeping the licenses in abeyance. Ms. Jyoti Singh contends that the settled position in law is that neither punitive action nor any act that will cast stigma on any employee can be taken behind his back without giving him an opportunity to show cause and to produce his defence in an enquiry. In this legal setting, she submits that the Applicant did not face any show cause notice or inquiry and the punitive action of premature repatriation has been taken behind his back. She also submits that the plain reading of the repatriation order seems to be simplicitor but if the veil is lifted the Tribunal may find the real reasons for passing such an order of repatriation. If the background of the order exposes serious allegations, the order of the Applicants repatriation should be treated as stigmatic and without giving an opportunity to him such an order would deserve to be quashed. In this context, she referred to the Commerce Secretarys letter to Secretary, Department of Personnel and Training recommending Applicants repatriation to highlight that there existed stigmatic contents which had influenced the competent authority to pass the said repatriation order. In support of her contention on the stigmatic repatriation of the Applicant, she placed her reliance on the ratio in the judgment of Honble Delhi High Court in the case of Union of India Versus J.P. Verma and Another [98 (2002) DLT 510 (DB)].
6. Further, referring to the performance of the Applicant in the post of ZJDGFT, she submitted that the Applicant endeavored to reduce pendency of cases, to streamline the procedures and issued instructions to ensure that licenses are issued without delay. She drew our attention to para 5.7 of the OA to state that the Applicant did very well in all the functions assigned to him as ZJDGFT. In this context, she referred to the letters the Applicant received from various companies stating that they were appreciative of the Applicants functioning and during his tenure he introduced transparency, quick decision making process and speedy clearance procedures. These letters are at Annexure-A15 (Colly). Ms Jyoti Singh, therefore contends that the Applicant, having done so well during short period of about 18 months, cannot be repatriated on the grounds of unsatisfactory performance.
7. Another contention submitted by Ms. Jyoti Singh relates to malafide. The manner in which the order was issued and sought to be executed to get the Applicant relieved on the same day in post-haste showed the malafide intention of the Respondents. Repatriation order of the Applicant was issued on 25.09.2009 and he was directed to be relieved immediately on the same day. The haste and desperation to move him out, she contends, reveals the malafide mind of the Respondents. She relied on the judgment of this Tribunal in the case of Memoraiyam Kumar Versus Union of India and Others (OA No.1769/2008 decided on 25.02.2009) and referring to the point on malafide cited the following even where the tenure is not specified, an order of reversion can be questioned when the same is malafide and an action taken in a post-haste manner also indicates malice.
8. In view of her above contentions, Ms. Jyoti Singh argued to quash the stigmatic repatriation order of the Applicant.
9. On the other hand, Shri Parag Tripathi, the learned Additional Solicitor General along with Shri V. S. R. Krishna, Shri Vaibhav Joshi and Ms. Sangita Rai, learned Counsels representing the Respondents, strongly opposed the contentions put forward by Ms. Jyoti Singh.
10. Shri Parag Tripathi submitted that the Applicant was appointed under the Central Staffing Scheme to the post of Joint DGFT, Mumbai for a period of 5 years or until further orders, whichever event takes place earlier. The order of repatriation took place earlier. The said order was an order simplicitor and hence proper and legal. The order being a non-speaking one, the question of the same casting stigma on the Applicant, as contended by the Counsel for the Applicant, was rather baseless. Shri Tripathi contented that the order of repatriation was passed within the accepted parameters which included unsuitability which he argued was far different from stigma. It was also submitted that the Applicant was trying to make out a case of the impugned order being stigmatic and for the said purpose, the Applicant annexed copies of complaints received against him and the correspondence thereto between the Applicant and the respondent No.2. Shri Tripathi contended that the Respondents did not wish to enter into a controversy on this count as to the veracity or otherwise of the allegations made against the Applicant by various stakeholders. He hastened to add that though an informal check on some of the complaints was carried out by the Addl. DGFT, which brought out delay in decision making, decline in the performance and overall ineffectiveness is the ZJDGFT Office. In the opinion of Shri Tripathi the repatriation order was on the ground of unsuitability of the Applicant and in administrative interest. He placed his reliance on the orders of this Tribunal in Ajit Mohan Sharan versus Union of India ( OA NO. 3090 / 2003 delivered on 3-11-2004).
11. Shri V. S. R. Krishna, the learned Counsel appearing for the Respondent No.3 submitted that the tenure of IPS officers appointed on Central deputation is governed by IPS Tenure Policy notified by the Ministry of Home Affairs on 06.04.2000 and as per Para-10 of this Policy, the Central Government reserves the right to revert an officer to his parent cadre at any time without assigning any reason. The repatriation order being a simple one conforms to the Para 10 of the IPS Tenure Policy. Referring to the Judgment of this Tribunal in Kulbir Krishan IPS versus Union of India and Another (OA NO. 1929 / 2006 decided on 5-6-2007) he extensively took us through the order to submit that even if the veil is lifted to find the reasons behind the repatriation order, no stigmatic and punitive reasons could be found. Further he submitted that the Applicants repatriation was based on his ineffectiveness, unsatisfactory performance and unsuitability to the post. He, therefore argued the this was a fit case to be dismissed.
12. We note this is a case of premature repatriation where issues raised by the counsel for the Applicant are within a limited compass. When the period is specified in the order of deputation, an order of premature repatriation can be questioned on two specific grounds viz on the ground of allegations which may be stigmatic, and on the grounds of malafides attributable to the officers instrumental in ordering the repatriation. Having heard the rival contentions in this regard, the following two issues are framed for our consideration and determination:-
(i) Is the repatriation order valid and legally sustainable or stigmatic/punitive liable to be quashed?
(ii) Is the action of the Respondents to relieve the Applicant on the day of issue of the repatriation order in post haste malafide?
13. We may take up the first issue for our analysis viz Is the repatriation order valid and legally sustainable or stigmatic/punitive liable to be quashed?
14. It would be appropriate for us to note the settled position in law relating to deputation and repatriation. Deputation precedes the repatriation. In service jurisprudence, deputation is resorted to in public interest to meet exigencies of public service. Deputation is a tripartite agreement as held by Honourable Supreme Court of India in State of Punjab Versus Inder Singh[1997 - 8- SCC- 372], based on voluntary consent of the principal employer to lend the service of his employee, which decision has to be accepted by the borrowing Department/ employer and also involves consent of the employee. Generally the deputation is the assignment of an employee of one Department / cadre to another Department / cadre and the deputation subsists so long as parties to tripartite agreement adhere to the same. The moment this tripartite agreement is disturbed or vitiated or repudiated, the employee would have no legally enforceable right to continue to complete the agreed period of his deputation. The Honourable Supreme Court in Ratilal B. Soni & Others versus State of Gujarat & Others [1990 (Supp) SCC, 243] held that an employee on deputation can be reverted to his parent cadre at any time, who would have no right to be absorbed on the post of deputation. In Kunal Nanda versus Union of India & Another [AIR 2000 SC 2076] the Honourable Supreme Court has reiterated its earlier decisions that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the departments and there is no vested right in such a person to continue on deputation or get absorbed in the department to which he had gone on deputation. A Division Bench of Punjab & Haryana High Court in Gurinder Pal Singh versus State of Punjab [2005 (1) SLR 629], after taking into consideration the decisions of the Apex court in Kunal Nanda case (supra), Ratilal B. Soni case (supra), and Rameshwer Parshad versus Managing Director, U.P. Rajkiya Nirman Nigam Limited [1999 (5) SLR 203 (SC)] has held that a deputationist would have no vested right to continue in the borrowing department till the completion of the stipulated period of deputation and the deputation being a tripartite contract, can be continued only if all the parties like it to continue. Honourable Apex Court in the case of Kunal Nanda Vs. Union of India[AIR -2000 SC 2076]decided on 24-4-2000 held as follows "6. On the legal submissions made also there are no merits whatsoever. It is well settled that unless the claim of the deputationist for 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."
Honourable Apex Court in the case of Union of India Versus Ramakrishnan[AIR - 2005 - SC-4295] also observed as follows:-
"32. Ordinarily, a deputationist has no legal right to continue in the post...... "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 a post haste manner also indicates malice. [See Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others, (2004) 2 SCC 65, para 25]"
15. The Applicant was selected under the Central Staffing Scheme and the post was equivalent to that of Director and as such the tenure of 5 years was applicable for the Applicants deputation to Government of India. The question arises whether the Respondents have the authority to terminate the tripartite agreement of deputation. It is noted that the Central Staffing Scheme, the IPS Tenure Policy and the very order communicating his selection provide for premature termination of deputation and repatriation. Let us examine the DOP&T Office Memorandum dated 22.02.2008 (page 20) which conveyed to the Ministry of Home Affairs with copy forwarded to the Ministry of Commerce and Industry for information and necessary action on the selection of the Applicant for appointment as Joint DGFT (Director level), Mumbai and the approval of the Appointments Committee of the Cabinet was accorded in this regard. The noting to the said OM provides The competent authority has approved the appointment of Shri Shailesh Singh, IPS (MP:87) as Joint DGFT (Director level) Mumbai under the Department of Commerce for a period of five years from the date of taking over charge of the post or until further orders, whichever event takes place earlier. We take the extract of the OM dated 22.02.2008 which reads as follows:-
Office Memorandum Shri Shailesh Singh, IPS (MP:87) who was recommended for Central deputation by the Ministry of Home Affairs, has been selected for appointment as Joint DGFT (Director level), Mumbai under the Department of Commerce. He may kindly be relieved of his duties immediately with instructions to take up his new assignment under the Department of Commerce.
2. The CR dossier of Shri Shailesh Singh, IPS (MP:87), is returned herewith. Its receipt may kindly be acknowledged.
(Trishaljit Sethi) Director for (MM) The Ministry of Home Affairs, (Shri Madhukar Gupta, Secretary) New Delhi.
NO.10/16/2007-EO (MM-II) New Delhi, Dated 22nd February, 2008 Copy forwarded for information & necessary action to :
The Ministry of Commerce & Industry, Department of Commerce (Shri Anurag Saxena, Director), New Delhi with reference to their D.O. letter No.A-12022/2/2007-E.I dated 20.2.2008. The competent authority has approved the appointment of Shri Shailesh Singh, IPS (MP:87) as Joint DGFT (Director level) Mumbai under the Department of Commerce for a period of five years from the date of taking over charge of the post or until further orders, whichever event takes place earlier.
2. PS to MOS(PP)/PS to Secretary (P)/PS to EO/RO(CM)/Ps to DIR(MM)/EO(MM:I) Section/Guard File. It is also noted that the Applicant being an IPS officer his central deputation gets covered under the IPS Tenure Policy and can be repatriated before the expiry of deputation period. The paragraph 10 of the Office Memorandum dt. 6th April, 2000 envisages the following:-
10. The deputation tenure as prescribed in the preceding paragraphs will not confer any right on the officers to remain on Central deputation. The Central Government reserves the right to revert such officers to their parent cadres at any time without assigning any reason.
We have no doubt that the premature repatriation of the Applicant is, therefore, admissible as per the above policy and central Government order.
16. The case of the applicant was that he was appointed on the post on deputation basis for a period of five years and the same could not be curtailed. The position as narrated above undisputedly brings out that the tenure of deputation can be curtailed but the settled legal position in the subject lays the ratio that the order of deputation curtailment must be simplicitor and the grounds of the curtailment should not be stigmatic or punitive. Even if the grounds for repatriation is stigmatic/punitive the order of repatriation must precede proper enquiry and principles of natural justice more specifically audi altrem partem which means that an opportunity should be provided to the officer concerned to defend himself properly. It is also trite that the grounds such as unsuitability or unsatisfactory performance or ineffectiveness of the officer concerned do not become stigmatic / punitive. As per the deputation policy, the applicant would have an indefeasible right to hold to the said post for such period as mentioned therein, and the same could not be curtailed except on grounds such as unsuitability or unsatisfactory performance. The learned counsel for the parties for their specific points placed their reliance upon the judgment of the Honble Supreme Court in the Ramakrishnan case (supra). The order of deputation clearly specified a period of five years on the post the Applicant was appointed. Deputation is a tripartite agreement among the lending Department, the borrowing Department and the individual Officer. Thus the Applicant has a right to remain on deputation, and simultaneously the Government reserves the right also to revert such officers to their parent cadres at any time without assigning any reasons. This Tribunal in Sunil Krishna versus Union of India & Others (OA No.1729/2006 decided on 6.3.2007), held that the tenure deputation set out is subject to discretion of the Central Government to revert deputationist officers to their parent cadre at any time without assigning any reason. If the applicant may derive the right to continue on normal deputation for a period of five years on the basis of the policy, the said normal deputation period would be subject to the discretion of the Central Government to curtail the same. In so far as judgment of the Honble Supreme in the case of V. Ramakrishnan (supra), is concerned, it may be seen that it deals with only providing of a period of deputation, without there being any right to curtail it without assigning any reason. That apart, the Supreme Court has clearly held that even if the tenure of a deputation is specified, an officer on deputation has no indefeasible right to hold the said post. It is noted that the period of deputation should not ordinarily be curtailed except on just grounds for example, unsuitability or unsatisfactory performance. The law laid down by the Honble Supreme Court would apply where it is a straight case of providing a period of deputation without there being any right with the Government to curtail it. It is for this precise reason, it appears, that the order of deputation of the Applicant has given alternatives with the suffix of until further orders, whichever event takes place earlier. Honble Punjab and Haryana High Court in the case of H. C. Prem Singh and Others Versus State of Punjab and Others [2010 (1) SLR 126] considered a case with the grounds of ineffectiveness and dismissed the Civil Writ Petition vide judgment delivered on 27.11.2009. In this case Petitioners 23 in numbers were sent on deputation to Excise and Taxation Department of Punjab Government for 2 years but just after 6 months they were repatriated to the present department on the grounds that the petitioners have not been able to serve the borrowing department with the effectiveness required. The grounds for cutting short the deputation period like unsuitability and unsatisfactory performance are not exhaustive. The same have been stated only by way of illustration as is clearly mentioned in the decision. The law as settled appears to be that when the period of deputation is specified, the same may be curtailed on the ground that the employee is unsuitable for the concerned job or is having unsatisfactory performance, or the officer is ineffective or such other grounds which would reflect the efficiency or effectiveness of the concerned officer. In this context the Honble Supreme Court in the case Union of India Versus J.P. Verma & Another(supra) relied upon the observations made in its earlier decision in K.H. Phadnis v. State of Maharashtra [(1971) 1 SCC, 792], which read as follows:
17. The order of reversion simplicitor will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore though the government has right to revert a Government servant from the temporary post to substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of accident of service in which a person sent from the substantive post to a temporary job has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not a pure accident of service but an order in the nature of punishment, Article 311 will be attracted.
The observations extracted above would make a clear distinction between an order passed as a result of accident of service or an outcome of allegations and complaints against character of an officer. The contentions raised by the counsel for the Applicant that the order of repatriation though appeared to be innocuous and simplicitor but the same was stigmatic and punitive in nature, and she submitted that the Tribunal should lift the veil to find out the nature of the order. The Apex Court held that court can always lift the veil and find the real reason of order. We can, therefore, lift the veil and find out the real reasons behind the repatriation order, and if the same is found to be stigmatic / punitive, the doctrine of natural justice would be straightway attracted and the employee cannot be repatriated prematurely unless he is heard in the matter of stigma. There is no litmus test by which we can just peruse the background papers to come to the conclusion as to whether the repatriation order is stigmatic or not. The controversy, insofar as the facts and circumstances leading to the repatriation of the Applicant is concerned we are to examine and analyse the background papers to come the considered view as to whether the repatriation is stigmatic or not. Facts of each case differ. In the case of repatriations each case is different from the other and no straitjacket formula can be used.
17. Before we may, however, see the facts leading to the order of repatriation of the Applicant, we may only make a mention of the decisions of the Honourable Delhi High Court, Honourable Supreme Court, and this Tribunal relevant to the issues in the current OA. In Union of India & Others Versus J. P. Verma & Another [98 (2002) Delhi Law Times 510 (DB)], the Honourable Delhi High Court was hearing a writ filed against the order passed by the Tribunal. J. P. Verma, a member of Indian Police Service, was sent on deputation as Additional Director General of Police (ADGP) in CRPF. He was appointed on deputation basis as ADGP in June, 1998. He was sponsored for the post of Director General (Investigation) in the National Human Rights Commission (NHRC). Secretary General, NHRC wrote a letter to the Union of India stating that the Chairperson had directed him to place on record the fact that when they contacted Shri M. K. Shukla and Shri J. P. Verma, they were surprised to find that both the officers were only keen to find out about the perquisites attached to the office of Director General (Investigation), NHRC one officer wanted to know whether he could travel as he liked or whether he would have to seek permission from the Chairperson; and the other officer wanted to know about the number of constables / orderlies a DG (Police) is entitled, and whether he would be provided the same number. Both the officers had shown their disinclination to come and meet the chairperson after being told about the availability or otherwise of the kind of perks they were looking for in the NHRC. The Chairperson was appraised of the matter and he directed that the matter be brought to the notice of the Home Ministry to highlight the lopsided priorities of these senior officers who were waiting to serve the nation in the rank of Director General of Police. The order of repatriation came to be passed against which OA No.1459/2000 was filed, which was allowed by the Tribunal. It was urged on behalf of the Union of India before the High Court that in a case of this nature, where the first respondent (J. P. Verma) did not suffer any loss of emoluments, status nor by reason thereof suffered any stigma or penalty, principles of natural justice were not required to be complied with. It was submitted on behalf of the respondent that the letter of NHRC was a foundation for passing the order of repatriation. It was further urged that a non-speaking innocuous order cannot be a ground not to lift the veil inasmuch as, the court is entitled to, in a given situation, to delve deep in the matter for the purpose of finding out the actual reason there for. On the rival contentions of the learned counsel representing the parties the Division Bench of the High Court held that There cannot be any doubt whatsoever that only because an order is not a stigmatic one on its face, the Court even in a given situation, like the present one, cannot find out the real motive for passing the said order. In OA No.1929/2006 in the matter of Kulbir Krishan, IPS v Union of India & Another, decided by this Tribunal on 5.6.2007, where one of us (Justice V.K.Bali, Chairman) was a Member, the order of repatriation on premature termination of the period of deputation was challenged inter alia on the ground that the same was punitive. The order in the said case was also simplicitor and innocuous. It was urged that the form of the order was not conclusive. What was relevant was reason for repatriation and not the strategy of the innocuous order. In-fighting of the two officers of equal rank had resulted into repatriation of both. The applicant alone, however, challenged the order. On facts of the case aforesaid, it was held that the order even after lifting the veil could not be found to be punitive. In the case the records of the case were called for and examined with a view to find out the real reason for repatriation of the applicant and while giving a finding on facts, it was observed thus:
31. From the perusal of the records as mentioned above, whereas it may appear that repatriation of the applicant was initiated by Mr. Himanshu Kumar, DG, SSB on specific allegations against him with regard to indiscipline and insubordination, but ultimately that view was not endorsed by the concerned authorities and as such views of his two successors namely Mr. Jyoti Sinha, DG, SSB and Mr. Tilak Kak, DG, SSB, were sought. Even they agreed with views of his predecessor Mr. Himanshu Kumar, insofar as repatriation of the applicant is concerned, but the reason stated by them was un-healthy atmosphere prevailing in the organization due to infighting between the two officers namely applicant and Mr. Yashwant Malhotra. It is the case of the applicant also that he has been repatriated to his parent cadre because of alleged infighting between him and Mr. Yashwant Malhotra. What thus appears to be real cause of repatriating the applicant is bitter relations between the two officers of the same rank, which had vitiated the atmosphere in the organization. The question that needs to be answered in the facts as detailed above is as to whether even if veil is lifted and the real reasons are traced for repatriation and it is found that the infighting between the two officers had resulted in repatriation of both, would it be stigmatic, which may adversely affect the applicant in his service career. While answering the question aforesaid, it was further observed that strained relations between two officers were personal to each other, wholly unconnected with performance of their official duties and would not be stigmatic to their service career, which was indeed the stand of the respondents as well.
18. The position of law is that the order of repatriation can be questioned even by lifting the veil, if the same is an outcome of some aspersions against the employee and also if the same is mala fide, we have to lift the veil in the case. The malafide angle will be dealt by us separately but the facts of the case would be same for both stigmatic and malafide. With a view to find out the reason behind the repatriation of the applicant, we had called for original records, which have indeed been made available to us. We have closely examined the same and more specifically File No.1/13/2008 Vig. on the subject of E mails received from Sh. Rajiv Gupta through DOC regarding Complaints against officials of DGFT; File No.1/21/2008 Vig. on the complaint against the office of the Zonal Jt. DGFT Mumbai relating to M/s Gemini Exports; and File No.1/61/2008-Vig. Relating to the DEPM claim in r/o Supporting Manufacturer i.e. M/s Nutraplus Products India Limited O/o of the ZJ DGFT Mumbai.
19. The Department of Commerce File No.1/16/2009 Vig, dealing with Cyber Complaint from Shri D. S. Sheth against the Applicant received through CVC was looked into by us. The complaint of Shri Sheth dated 14.5.2009 alleges that the Applicant was rude, and high handed behaviour. There is a letter from one Shri Shankaran S. Iyer, Executive Secretary of Association of Small and Medium Chemical Manufacturers of Mumbai alleging the hurdles being put by the Applicant and avoidable harassment meted out to the genuine exporters by the Applicant. There is an instruction of the DG to verify the veracity and issues raised in both complaints. There was one more complaint from Shri D. Sheth of 18.6.2009 received by Commerce Minister, wherein arrogant, rude and authoritarian behaviour of the Applicant was alleged. He was advised by the DGFT to streamline functioning of his office. There were complaints from Shri Suresh Tamane, Shri A. Vasa, Shri Ashwini P. Vora, Shri Rajiv Gupta, Shri V. N. Shewali, Shri J. C. Singhania, Shri K. R. S. Raju, All India Importers and Exporters Association, Mumbai and even some anonymous allegations. Some of these were communicated by DGFT vide letters dated 16.1.2009, 2.12.2008, 24.6.2009, 1.7.2009, 4.2.2009, 17.2.2009 and 29.9.2009. The Applicant has also responded through his letters dated 4.12.2008, 20.2.2009, 29.6.2009, 30.6.2009 and 27.11.2009.
20. Our perusal of the Note File on the subject of High Pendency of applications for licences at Mumbai ZJDGFT Office of the DGFT reveals that the Commerce Secretary has directed Addl. DGFT (Shri Shyam Agarwal) to visit Mumbai Office to enquire into the complaints of (a) very high pendency of applications for licenses in Mumbai Office (specific case of Hotel Leela) and (b) action for placing companies under DEL has been initiated on minor issues in Mumbai ZJDGFT. The Addl. DGFT visited Mumbai on 11.12.2008 and submitted his detailed note on 18.12.2008. Inter alia the said note contains that the deficiencies in the proposal of Hotel Leela ventures have been indicated on different occasion instead of pointing out all deficiencies in one go to avoid unnecessary delay. The Applicants views have also been recorded to indicate that as the one claim amounted to Rs.30 crore, he wanted to be doubly sure of claim before final approval. However, it is noted that the final approval was accorded on 12.12.2008. In case of Ramada Hotels (In DEL) it was recorded in the report that No final order as to recovery and dues payable by party have been issued so far although more than 1 year has passed. Ultimately, the Addl. DG has concluded that in a few cases there has been delay giving rise to pendencies which is the result of direction of the Applicant like all SFIS applications should be put up to zonal JDG for approval, and due to less clarity about procedures to be followed. DGFT has submitted to the then Commerce Secretary (Shri G. K. Pillai). Further analytical note was prepared by Addl. DG categories complaints received against the Applicant into 3 groups viz. (i) 5 complaints dated 24.6.2008, 18.7.2008, 28.7.2008, 12.8.2008 and 7.10.2008 against the Applicant received alleging harassment and humiliation; (ii) 3 complaints received from exporters/consultants relating to delays in work disposals; and (iii) one anonymous allegation letter regarding illegal gratification. It has also been noted that the Applicant had replied to many of those complaints vide his letters dated 5.12.2008, 10.12.2008 and 23.12.2008. The then Commerce Secretary has noted the following in his note dated 6.1.2009 Spoken with Shailesh Singh and pointed out the deficiencies. He has assured that there will be no complaints in future and that delay will be avoided.
21. The applicant joined as the Joint DGFT at Mumbai on 3.3.2008 and thereafter he has been advised periodically to improve his performance in the Zone. Our perusal of the files placed before us by the learned counsel for the Respondents reveal that vide letter dated 1.7.2009 from Additional DGFT, Headquarters Annexure-A-9, the Applicant was advised to streamline the functioning of the Mumbai office by taking steps to ensue prompt and courteous service to the public/trade and quick and time-bound disposal of the cases. It is noticed that the said advice was issued in the background of a number of complaints from exporters/trade Associations etc. regarding arbitrary working and harassment in the Mumbai office. Further within a week, letter dated 8.7.2009 was issued by DGFT (Annexure A-10) informing the Applicant that his office had received further complaints that he had concentrated the entire power relating to abeyance matters in his hands, which had been resulting in delay, and instead of resolving grievances, such action had been causing hardship to the exporters. Further the DGFT had directed him to delegate power of granting abeyance to the concerned Adjudicating Officers, and the role of the Zonal Jt. DGFT should primarily be of a supervisory nature to resolve the grievances of the exporters. We note that the said letter of DGFT has mentioned about his verbal advice to the Applicant.
22. We also perused the File No.A12022/2/2007-E.I. of the Department of Commerce dealing with the subject of Filling of the Posts at the level of DS/Directors in the Department of Commerce and DGFT under Central Staffing Scheme. The present Secretary (Shri Rahul Khullar) submitted a note dated 6.7.2009 (Pages 117 to 118 of the Note file of the referred file) wherein he brought the facts of complaints against the Applicant to the notice of Commerce and Industry Minister and sought his approval to move out the Applicant from his present assignment for re-deployment elsewhere. His suggestion was based on what he calls as sound administrative reasons and his assessment was that the reputation of the institution (zonal office of DGFT at Mumbai) has declined over the last one and half years. This needs to be remedied. We find from all these records that after the advice rendered by the DGFT and the Commerce Secretary, both verbally and also through letters since there was decline in performance in Mumbai ZJDGFT, the Commerce Secretary with the approval of Minister for Commerce and Industry wrote a D.O. letter No.A-12022/2/2007-E.I 08.07.2009 to Secretary Department of Personnel & Training about the Applicant and indicated that for very good administrative reasons, it was imperative that he should be moved out from his present assignment and be redeployed elsewhere. In his letter inter alia he has informed that nearly half of Indias foreign trade is transacted through Mumbai, the Joint Director General of Foreign Trade in Mumbai is a critical and sensitive post which entails extensive public dealing and the exercise of delegated powers of licences, export reward schemes, and enforcement of provisions of the Foreign Trade (Development & Regulation) Act. For reasons outlined in the said letter and to protect the reputation of the Zonal Office it was noted that the continuation of the Applicant would not be in the interest of achieving the goals assigned to the Zonal office. In order to move the Applicant out from his assignment and to be redeployed elsewhere the following reasons were given in the said letter:-
There have been numerous complaints about the functioning of our Zonal Office of Joint DGFT in Mumbai following Shri Singhs appointment, some of which were directly against the officer. These were enquired into by a Joint Secretary level officer. While some charges could not be substantiated, there was clear evidence that there were long delays in processing papers, a rise in pendencies, unnecessary centralization by the Joint DGFT and instances where different standards were followed in different cases. In 2009, the officer was counseled and working deficiencies pointed out to him by the then Commerce Secretary. After a short lull, the complaints have once again resumed.
23. On receipt of the said letter, the Establishment Officer Department of Personnel & Training, who is the Secretary to the Appointments Committee of the Cabinet (ACC) submitted a note on the proposal of the Ministry of Commerce & Industry for moving out Shri Shailesh K. Singh IPS (MP:87) from the post of Joint Director General of Foreign Trade, Mumbai in the Directorate General of Foreign Trade (DGFT) and for his redeployment elsewhere. Inter alia the note indicates that the name of the Applicant was initially not included in the panel against the vacancy of Joint Director General of Foreign Trade and was included later on the specific request from the Department of Commerce and he was appointed as Joint Director General of Foreign Trade, Mumbai under the Directorate General of Foreign Trade w.e.f. 3..3.2008 under the Central Staffing Scheme for a period of 5 years. The note further gives the reasons as indicated within for which the Applicant was to be moved out of the post which was considered carefully by the Civil Services Board in its meeting held on 21.08.2009B and decided to recommend the repatriation of the Applicant to his parent cadre. In the said note the ACC was apprised of its direction that when officers on Central Staffing are not found fit for the post by the Administrative Ministry, the proper course of action is for the administrative Ministry to obtain the officers explanation on each alleged lapse or shortcoming only, thereafter, if justified, propose the officers premature repatriation for consideration of the CSB. This has not been done by the Department of Commerce. The ACC is the competent authority to approve premature repatriation of an officer duly appointed under the Central Staffing Scheme. In view of what has been furnished in the note, the ACC approved the proposal for the premature repatriation of the Applicant to his parent cadre. The competent authority has approved the repatriation.
24. Thus, to say that the Applicant was unaware of the complaints or to contend that those were not communicated are not borne out from the records. All these culminated into an informal enquiry by the Addl. DGFT under the directions of DGFT and Commerce Secretary. In respect of the Applicants performance, it is found from the files that as late as January 2010, the DGFT in his letter dated 29.1.2010 has pointed out to the Applicant that pendency during his tenure has risen, and brought to his notice that officers in his office are unhappy with his working and they have verbally informed DGFT that they would rather proceed on leave than to face his bad behavior.
25. Having due regard to the facts and circumstances of the case discussed above it appears to us that the repatriation order of the Applicant is simplicitor and not punitive/stigmatic. The distinction between the foundation and motive in relation to repatriation is very thin and narrow. It is difficult to classify strictly the order of repatriation but we make an attempt to figure out distinction on the basis of foundation and motive. If the repatriation is based on alleged misconduct as foundation it becomes stigmatic and calls for proper opportunity to the officer before repatriating him. If the repatriation is based on complaints as motive on the ground of unsuitability and unsatisfactory performance to continue in service, such repatriation order cannot be termed as stigmatic but will be an order simplicitor. The preliminary enquiry was done by the DGFT not with the object of finding out misconduct on the part of the Applicant but was done only with a view to determine his suitability and he was counseled by letters and also in person by both DGFT and Commerce Secretary. The repatriation was ultimately ordered by the competent authority namely Appointment Committee of the Cabinet not founded on the complaints of misconduct but on the basis of his unsatisfactory performance, unsuitability and ineffectiveness in the post to which he was deputed. After close scrutiny by lifting the veil of simple order of repatriation we could not find reasons to term the same as either stigmatic or punitive.
26. Now we may consider the 2nd issue i.e. - Is the action of the Respondents to relieve the Applicant on the day of issue of the repatriation order in post haste malafide? We have very comprehensively dealt the issue of stigma and performance raised by the counsel for the Applicant. The facts and legal aspects reveal that there is no stigma and performance of the Applicant has not been to the expected level. In the backdrop of the above analysis we consider here the contention of malafide raised by the counsel for the Applicant. Ms. Jyoti Singh terms the post haste direction by the Respondents to relieve the Applicant as mala fide. In this context, she laid her reliance on the judgment of Honourable Supreme Court in V. Ramakrishnan (supra), where the order of repatriation was held to be an outcome of malice in law. The Honble Supreme Court while dealing with the issue of no legal right of a deputationist to continue in the deputation post held that ordinarily, a deputationist has no legal right to continue in the post, and indisputably has no right to be absorbed in the post to which he is deputed, but there is no bar thereto as well. The Honble Supreme Court further held that 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, and that when the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term or deputation should not be curtailed except on such just grounds, as mentioned above, as unsuitability or unsatisfactory performance; and even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide, and an action taken in a post-haste manner also indicates malice. In the background of the said judgment, we examine the case. The Applicant has not brought any case of personal mal fide against any of them. The only ground of mala fide is the he was ordered to be relieved on the same day when the the order of repatriation was issued. The counsel for the Respondets submit that the relieve order issued was consequential order to the order of repatriation. In our considered opinion that cannot be termed as malice in law. Had the Respondents issued the repatriation order no sooner the 2st complaint came to them, such an action taken in post haste could be termed as mala fide. That is not the case in this OA. The complaints were received periodically and many of those were sent to him where he has submitted clarifications. By no fits of imagination the repatriation order and the relieve orders can be termed as mala fide.
27. Considering the above facts and circumstances of the case, our detailed discussions on the issues and taking note of the settled legal position in the subject, we come to the considered conclusion that the Applicant has not been able to establish his case and we do not find any reason to interfere in the repatriation and relieve orders passed by the Respondents. Resultantly, the stay order is vacated and the Original Application being bereft of merits is dismissed. In view of the typical nature of the case we do not pass any order on costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali )
Member (A) Chairman
I have gone through the judgment prepared by Brother Dr. Ramesh Chandra Panda, Honble Member (A) and I am in complete and respectful agreement with the view expressed by him. I may only add that an employee when entrusted with a particular job, may excel, whereas the same person when entrusted with another job, may not carry out the functions and duties to the satisfaction of the employer. The Applicant is indeed a meritorious employee and appears to have excelled also. It, however, further appears that while holding the deputation post of ZJDGFT he could not come up to the terms and requirements of the job. There is no adverse comment made by the authorities while repatriating him that may touch upon his integrity and honesty. The comments, if at all, pertain to his unsatisfactory performance on the particular job assigned to him, i.e. the duties that he was to carry out while holding the post of ZJDGFT on deputation. If the Applicant did not come to the expectations of the employer while carrying out a particular job, it cannot be termed as stigmatic; it is at the most an accident of service. To illustrate, while working on the post of a police officer like Superintendent of Police or Senior Superintendent of Police, strictness may be a virtue, whereas, the same even though may be a quality while carrying out one job, may become a bane, as in that job courtesy may be the real password and the way to achieve the objective.
(V. K. Bali) Chairman /pj/