Central Administrative Tribunal - Delhi
A. K. Jain S/O Prem Chand Jain vs Union Of India Through on 16 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.605/2009 This the 16th day of April, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) A. K. Jain S/O Prem Chand Jain, R/O DII/65, Shahjahan Road, New Delhi-110003. Applicant ( By Shri Vikas Singh, Sr. Advocate, and with him Shri A. K. Behera, Ms. Jasmine Ahmed, Shri Anil Makhija and Shri L. Harichandran, Advocatesw ) Versus 1. Union of India through Secretary, Ministry of Information & Broadcasting, Government of India, Shastri Bhawan, New Delhi-110001. 2. Chief Executive Officer, Prasar Bharti, PTI Building, New Delhi. Respondents ( By Shri Parag Tripathi, ASG with Shri D. S. Mahendru, Advocate for Respondent No.1; Shri V. K. Rao, Advocate for Respondent No.2) O R D E R Justice V. K. Bali, Chairman:
Arguments were heard in this case on 31.3.2009 and judgment was reserved. Learned counsel representing the parties in addition to oral arguments addressed before the Tribunal, have also given written submissions.
2. Learned counsel for the parties are ad idem that the crucial issue involved in the present case to be determined by this Tribunal is as to whether the applicant, an IAS officer of 1977 batch of Nagaland cadre, on his appointment as Member (Finance) vide order dated 19.12.2006 passed by the Secretary, Ministry of Information and Broadcasting, Government of India, the 1st respondent herein, would be a whole time employee of Prasar Bharti, or would be on deputation, and after expiry of the fixed term of six years, as envisaged under the Prasar Bharti (Broadcasting Corporation of India) Act, 1990, would revert to his parent cadre, or that his appointment as Member (Finance), Prasar Bharti, would terminate his lien with his principal employer. Inasmuch as, after hearing the arguments addressed by learned counsel representing the parties, this Tribunal is of the considered view that Department of Personnel & Training (DOP&T) is a necessary party and has not been arrayed as a party respondent, the facts need not be given at this stage in all their minute details.
3. The applicant is aggrieved of order dated 27.2.2009 (Annexure A-1) passed by Prasar Bharti. The applicant vide the order aforesaid has been advised to either revert back to his parent cadre with immediate effect or submit his resignation from IAS w.e.f. 26.12.2006, the date on which he assumed charge of Member (Finance), Prasar Bharti. The question for determination hereinabove would clearly manifest that whereas, it is the case of the applicant that being on deputation with Prasar Bharti, he, on expiry of his fixed term of six years, would revert back to his parent cadre and serve the said cadre till such time he superannuates on attaining the age of 60 years, the respondents, on the other hand, would give an option to him to either revert back to his parent cadre immediately or to submit his resignation from IAS w.e.f. 26.12.2006. The applicant, it transpired during the course of arguments, has not placed on records two letters issued by the DOP&T dated 9.5.2008 and 25.2.2009. Letter dated 9.5.2008 has, however, been placed on records by the respondents with their written statement as Annexure-1a. The pleadings, particularly emanating from written reply, would reveal that preceding impugned order dated 27.2.2009 the applicant had made request for determination of his status as a deputationist, and the Ministry of Information & Broadcasting wrote a letter on 10.4.2007 for such clarification to DOP&T. It was clarified by DOP&T vide letter dated 9.5.2008 that the status of the applicant is not that of a deputationist. Paragraph 6 of letter dated 9.5.2008 reads as follows:
6. It is clear from a perusal of Section 6 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 that the Member (Finance) is to be a whole-time Member who shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty-two years whichever is earlier. It has further been clarified in Section 6(7) that the whole-time Members shall be the employees of the Corporation. It is then mentioned that the forwarding of an application by DOP&T would not imply sanction for deputation or permission for permanent absorption, and that it is not clear as to how the applicant is working as Member (Finance) in Prasar Bharati. The Ministry of Information & Broadcasting was then requested to provide immediately a copy of the Government order, if any, deputing the applicant to work as Member (Finance), Prasar Bharati or permitting him to proceed on permanent absorption. Even the respondents have not annexed with their reply letter dated 25.2.2009, though it is mentioned in the counter reply that DOP&T in its advice dated 25.2.2009 had stated that they are concerned only with the cadre clearance of the officer and it is for the concerned department to take a view regarding the manner and terms and conditions of the appointment under the relevant Act and rules.
4. Counsel representing the applicant in his endeavour to show that the applicant came on deputation would rely upon rule 6 of the IAS Cadre Rules, 1954, in addition to letter dated 26.4.2006 issued by DOP&T permitting the applicant to be considered for the post of Member (Finance), Prasar Bharati on deputation basis, subject to concurrence of the Government of Nagaland, and the letter dated 1.5.2006 written by the Government of Nagaland stating that it had no objection in sparing the services of the applicant for the full term of Member (Finance), Prasar Bharati, which, according to the counsel, would mean that the Government of Nagaland had sent the applicant on deputation to Prasar Bharati. The applicant also relies upon notification dated 22.12.2006 issued by the Government of Nagaland, wherein the word deputation is said to have been missed by oversight. Learned counsel representing the respondents would explain the letters written by DOP&T referred to above by stating that the foundation of the case of the applicant, i.e., letter dated 26.4.2006, was issued by Desk Officer, but the same was pursuant to the noting on file dated 25.4.2006. The said noting has been shown to the Court during the course of arguments, and the contention of the learned counsel is that the same would not show that the applicant was to be appointed in Prasar Bharati on deputation basis, and it would rather show that he was to be appointed in Prasar Bharati on absorption basis, if selected for the post. It is urged that letter dated 26.4.2006 has to be understood in the context of this noting, and so understood, cannot be interpreted as laying down the view of DOP&T that the appointment of Member (Finance), who is a whole-time Member, is an appointment on deputation. It is then urged that subsequent communications dated 9.5.2008 and 25.2.2009 would rather show that DOP&T was clear in its view that the applicant would be a whole-time employee of the Prasar Bharati, and further that it was merely a cadre clearing authority. As mentioned above, the applicant while giving the factual background of the case, has not made mention of these letters. The respondents have indeed made mention of the same, but have placed on records only one letter dated 9.5.2008. DOP&T, as mentioned above, is not a party respondent. During the course of arguments, to a pertinent question put to the counsel for the applicant as to whether DOP&T would be a necessary or proper party and should have been impleaded, he responded that the stand taken by the applicant is that he seeks no relief from DOP&T. Taking a cue from the observation made by the Tribunal, the counsel representing the respondents would plead that DOP&T is a necessary party and should have been impleaded as a respondent, failing which this Application should be dismissed for non-joinder of necessary parties. This point, however, has not been taken in the written statements filed by either of the respondents, even though it has been mentioned that the applicant was reminded of the duty imposed upon him by the Act time and again, a fact which he has intentionally not revealed before this Tribunal with malicious intent to avert the necessary consequences of law. It has also been mentioned that vide letter dated 13.5.2008 issued by Prasar Bharati, the applicant was informed of the DOP&Ts OM dated 9.5.2008, wherein the Ministry of Information & Broadcasting has been informed that the Act clearly states that the position of Member (Finance) is that of an employee of Prasar Bharati. It is further stated that the OM goes on to say that Shri A. K. Jain has not been deputed under Rule 6(1) or under 6(2)(ii) of the IAS Cadre Rules, 1954. Thereafter, vide numerous letters dated 13.5.2008, 24.7.2008, 8.8.2008 and 4.9.2008, Prasar Bharati had called upon the applicant to provide his comments, but the applicant chose not to reply to any of the letters. Even though, in the impugned order there is no reference with regard to the view expressed by DOP&T in its letter dated 9.5.2008, but it is apparent that the said order came to be passed after seeking the views of DOP&T in the matter. The applicant, as mentioned above, relies upon letter dated 26.4.2006 to show that he is a deputationist and would revert back to his parent cadre after he serves the fixed term of six years. The reliance place by the applicants is on letters/notifications issued by the Government of Nagaland and some other material as well. As mentioned above, counsel representing the respondents has tried to explain the position of DOP&T based upon noting preceding letter dated 26.4.2006.
5. In the facts as mentioned above, we are of the firm view that DOP&T through its Secretary is a necessary party respondent. Even though, the impugned order may have come into being after seeking the opinion/clarification from DOP&T, and to some extent even the view of DOP&T may be known from letters dated 26.4.2006 and 9.5.2008, it would be better to know the stand of the DOP&T. Inter se correspondence between Prasar Bharati and DOP&T may not be sufficient. Surely, the written stand of a party in a court of law stands on different footing than the opinion expressed by the said party in inter se correspondence between two departments. We, however, in the interest of justice and to determine the real controversy in issue, would not like to dismiss this Application for non-joinder of necessary parties, particularly when no such objection in the written statement has been taken by the respondents. Even though, the applicant may not be willing to make DOP&T as a party respondent, the Court has ample power on the dint of Order 1 Rule 10(2) of the Code of Civil Procedure to strike out or implead any person as a party respondent. The provision as referred to above, reads as follows:
(2) Court may strike out or add parties. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The Tribunal may not be bound by the provisions contained in CPC, but is to be guided by the principles of natural justice. It has power to regulate its own procedure. Though the Tribunal may not be bound by the provisions contained in CPC, but if there be any power with the Court or Tribunal under the said Code which may advance justice, the same can always be followed. Applying thus, the provision contained in Order 1 Rule 10(2) CPC, as also the powers to regulate its own procedure by the Tribunal under Section 22 of the Administrative Tribunals Act, 1985, we order that DOP&T through its Secretary be impleaded as the third respondent in this case. Office shall carry out necessary amendment in the memo of parties. Notice be issued to the added respondent, Secretary, DOP&T for 29.04.2009. In the summons to be sent to DOP&T, it would be specifically mentioned that records relating to appointment of the applicant as Member (Finance), Prasar Bharati, and correspondence thereafter with Prasar Bharati be brought for perusal of the Tribunal.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/