Central Administrative Tribunal - Delhi
Manoranjan Kumar vs Union Of India Through on 25 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1769/2008 C.P. NO.319/2008 M.A. Nos.1564, 1646/2008 This the 25th day of February, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Manoranjan Kumar, Deputy Chairman, Kandla Port Trust, Administrative Office, Gandhidham, Kutch (Gujarat). Applicant ( By Shri K. K. Rai, Sr. Advocate and with him Shri Neeraj Gupta, Advocate ) Versus 1. Union of India through Secretary, Ministry of Shipping, Road Transport & Highways, Department of Shipping, Transport Bhawan, 1 Parliament Street, New Delhi-110001. 2. Joint Secretary, Department of Shipping, Ministry of Shipping, Road Transport & Highways, Department of Shipping, Transport Bhawan, 1 Parliament Street, New Delhi-110001. 3. Chairman, Kandla Port Trust, Administrative Office, Gandhidham, Kutch (Gujarat). 4. Central Vigilance Commission through Secretary, Satarkata Bhawan, GPO complex, INA, New Delhi. 5. Union of India through Secretary, Ministry of Finance, Department of Economic Affairs, North Block, New Delhi-110001. Respondents ( By Shri V.S.R.Krishna for Respondents 1 & 2; Shri U.A.Rana with Ms. Anuradha Sharma for Respondent No.3; and Shri R. N. Singh for Shri R. V. Sinha for Respondents 4 & 5, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Manoranjan Kumar, 1986 batch officer of the Indian Economic Service (IES), which is a Group A service of the Union of India, the applicant herein, claims to have completed 22 years of service with excellent and outstanding performance and service credentials. During his deputation with Kandla Port Trust, when he was assigned duties of Chief Vigilance Officer in addition to his duties as Deputy Chairman, he claims to have unearthed a scandal which had put the Kandla Port Trust to a colossal loss, in which number of high ups were involved. His endeavour to set the affairs of the Port Trust in order, in which endeavour number of officers were shifted and offences registered against them and others, rattled the concerned authorities, who sought to prematurely terminate the deputation of the applicant. The efforts made by the high ups in easing the applicant from Kandla Port Trust, it is the case of the applicant, succeeded and vide orders dated 8.8.2008 (Annexure A-1) passed by Joint Secretary, Department of Shipping, second respondent herein, the tenure of deputation of applicant was snapped when not even mid-way through and he was repatriated to his parent cadre. It is primarily this order that has been challenged in the present Original Application. The respondents while opposing the cause of the applicant would mainly rely upon the pleasure doctrine of terminating the period of deputation at any stage. Whether premature termination of tenure of the applicant even though, it could be curtailed on the pleasure doctrine, is for his crusade to expose the elements responsible for bungling the affairs of the Port Trust, and was actuated by mala fides of such persons, and whether the order of repatriation even though, innocuous, actually came about by casting aspersions against the applicant and would thus be punitive or stigmatic, are some of the crucial questions debated for our adjudication.
2. Before we may, however, refer to the rival contentions raised by learned counsel representing the parties on the various pleas raised by the applicant and the defence projected by the respondents, it would be useful to extract facts culminating into filing of the present Original Application. The records are voluminous. The paper-book consists of about 1000 pages. Our endeavour would be to cull out only such facts which may be necessary for determining the issues in controversy. Seen thus, it would appear that the applicant during 22 years of his service has discharged various assignments under Ministry of Finance, Department of Economic Affairs (as Deputy Director and Director), under Ministry of Labour and employment (as Director) and has also served on Central Government deputation with the Ministry of Industry, Department of Industrial Policy and Promotion (as Deputy secretary). It is the case of the applicant that while discharging these assignments, he has been involved in economic analysis, economic administration, policy formulation and its implementation, and providing necessary inputs in all sectors of economic activities. For being posted under Central deputation under the Central Staffing pattern, his name was retained by the Ministry of Finance and accepted after due scrutiny by the Department of Personnel & Training. The applicant avers that the records available with the 5th respondent, Ministry of Finance (Department of Economic Affairs), would reveal that it is only due to an outstanding appraisal of his performance over the period of his service that he was entrusted with the present assignment as Deputy Chairman, Kandla Port Trust. Vide circular dated 2.1.2005, the first respondent invited applications for filling up the post of Deputy Chairman in two of the Major Port Trusts in the country and for their appointment under Section 3(1)(b) of the Major Port Trusts Act, 1963 (hereinafter to be referred as the Act of 1963). Officers belonging to all India Services/Group A Central Services, in case of the post of Deputy Chairman, Kandla Port Trust, were stated as being eligible to be considered for the post. As per the circular, the appointment was to be made for a period of five years or as decided by the competent authority. It is the case of the applicant that there was a deemed representation in the circular aforesaid that the tenured deputation offered for the post of Deputy Chairman, Kandla Port Trust was not to be disturbed except on just grounds. In response to the said circular, the applicant applied for the post of Deputy Chairman, KPT. Vide letter dated 7.9.2006, the first respondent conveyed the approval of the Central government for appointment of the applicant on deputation basis for a period of five years from the date of his taking over the charge or until further orders, whichever event was to take place earlier. The applicant was relieved by the Ministry of Textiles vide order dated 22.9.2006. He assumed the charge of Deputy Chairman, KPT on 25.9.2006. It is the case of the applicant that major Ports in India are run and governed through a group of Trustees constituted under Section 3 of the Act of 1963, which comprises inter alia of a Chairman and a Deputy Chairman appointed by the Central government. In terms of Section 7 of the Act, the Chairman and Deputy Chairman are to hold office during the pleasure of the Central Government. Section 15 prescribes that the Chairman and Deputy Chairman are to be paid such salaries and their services are to be governed in the manner determined by the Central Government from time to time. The duties of Chairman and Deputy Chairman are set out in Section 22, which inter alia include the duty to attend every meeting of the Board. Section 7 of the Act prescribes for the Chairman and Deputy Chairman to hold office during the pleasure of the Central Government. The applicant avers that it would follow as a natural corollary that such pleasure is to be exercised within the legally permissible parameters as enjoined under Chapter IX of the Constitution of India, as also the law settled by the Honble Supreme Court of India. In this regard, the applicant avers that public servants, such as the applicant, enjoy a special relationship with their employer, and that even though, matters governing government services can be normally regulated by laws and the power to lay down detailed rules for recruitment and conditions of service of Union and State employees have been left to the respective legislatures, the framers of the Indian Constitution have deemed it prudent to assure the services under the Union as also States by providing some constitutional guarantees and safeguards in the matter of recruitment, security of tenure, procedure for disciplinary action etc. the pleasure doctrine, as per the case set up by the applicant, which has been invoked by the Central Government in the present case emanates from the constitutional scheme and has received constitutional sanction by being enacted in Article 310(1) read with 311(1) and (2). It is the case of the applicant that the provisions of Section 7 of the Act of 1963 are a reiteration of this constitutional scheme and since the applicant is an IES officer serving under the Union, the guiding principles of exercise of Central Governments pleasure as laid down in the Constitution would apply mutatis mutandis to his case. Even though, the tenure of a government servant is at the pleasure of the President or the Government, as the case may be, the same is subject to the express constitutional limitations imposed under Article 311(2), namely, observance of principles of natural justice where action is being taken based on some charges leveled against the government servant. It is further the case of the applicant that the pleasure doctrine is to be invoked in public interest and for public good only and cannot be permitted to be reduced to an arbitrary, unbridled, uncanalised and whimsical power vested in an appropriate authority to be exercised for victimizing honest, devoted and upright government servants, and that most importantly, the form of the order is not conclusive. It is then his case that if an order simpliciter withdrawing pleasure is based upon patently extraneous considerations and to shield corrupt deeds in malicious way, which is sought to be exposed by the officer concerned from whom the pleasure is withdrawn, then this Tribunal would have jurisdiction to summon records and in the event the same is found to be arbitrary, unreasonable, mala fide and in colourable exercise of power, then the same can always be set aside. The underlying principles of pleasure doctrine and the limitations imposed under Article 311(1) and (2) of the Constitution become operative in full vigour and force if an order of reversion is made by the Central Government in ostensible exercise of its pleasure which in fact is made by way of penalty in a mala fide manner and for collateral purpose.
3. The Central Government through the first respondent, vide letter dated 13.2.2007 conveyed to the applicant the terms and conditions of his appointment which reiterated that he was to be on deputation for a period of five years, i.e., up to 24.9.2011 or until further orders, whichever was earlier. The job requirements of the applicant acting as Deputy Chairman, KPT required him to assist the Chairman in all aspects of Port functioning, to exercise administrative and financial powers and also to supervise the functioning of various departments within the Port. The appointment of the applicant was for a fixed term of five years, and the words or until further orders appearing in the appointment letter did indicate the existence of discretionary powers with the Central Government to exercise/withdraw its pleasure and recall/relieve him from deputation prior to the expiry of the fixed term of five years, if the circumstances so warranted. It is the case of the applicant that while discharging his duties as Deputy Chairman, he assisted the Chairman in all matters concerning the Port that were placed before him and were so discharged as per the powers and duties conferred on him under the Act of 1963, and that on numerous occasions he also discharged duties of Chairman in-charge of the Port, which would be handed over to him by the Chairman every time he was away for holding meetings with officers in the Ministry, or otherwise, and the applicant thus acting as Deputy Chairman as also Chairman in-charge intermittently, strived to perform his functions in the manner envisaged under the Act so as to ensure smooth, effective and commercially competitive functioning of the Port as per law. It is further his case that the performance of the Port during his short period of 14 months as Deputy Chairman showed sharp increase in terms of target achievement etc. so that from being number 4 Port in December, 2006, it became number 2 in December, 2007 as per data released by the Indian Ports Association to the Chairmen of all Major Ports through letter dated 3.1.2008; during this period, the Port also ranked number 1 in some months in terms of cargo handling. The data would show that the traffic handled at KPT during that period exceeded the target set by the Government of India. The applicant enlists following in regard to improvements that came about during his tenure as Deputy Chairman, KPT:
(a) the growth rate at the port registered an overall increase of over 25% in one calendar year as against the growth of 9.5% in the Financial Year 2005-2006 and 15.4% growth in the Financial Year 2006-07;
(b) the operating income of the port increased from Rs.254.9 crores to Rs.298.22 crores in the Financial Year 2006-07 when the Applicant had been the Deputy chairman for six months;
(c) the net surplus after providing for pensionary liabilities and income tax increased;
(d) the number of vessels handled by the Port increased as against the previous Financial Year and even the average number of berths also increased; and
(e) harmonious industrial relation in a unionized environment prevailed and strikes by the trade unions were avoided by regular and successful dialogue with them. As set out in the pleadings in the Application, when the applicant joined KPT, the country was facing serious shortage of fertilizer and wheat, although the ports were choked with no warehouse to keep the much needed fertilizer and wheat, and that even though, it was only a peripheral responsibility of the Deputy Chairman, the applicant handled the same through day-to-day evacuation under direct reporting to the Secretary (Shipping), and even the Secretary (Food) conveyed his appreciation for the same. It is averred that senior officers of the first respondent Ministry were not only satisfied with the manner in which the applicant had been discharging his functions as Deputy Chairman, KPT, but also began to repose considerable trust in him so far as the interests of the Trust were concerned.
4. KPT, like other Port Trusts, also has a Chief Vigilance Officer (CVO) entrusted with the responsibility of ensuring preventive and punitive vigilance and reporting the same to Central Vigilance Commission. It is the case of the applicant that the Secretary, KPT, was at that time acting as CVO for KPT. Notwithstanding, when some doubts surfaced in the Ministry regarding certain allotment of lands wherein gross irregularities were seen to have been committed, inter alia by allowing change in use of land from warehouse to a container freight station, the CVO in the Department of Shipping, who was also Joint Secretary (Ports) (second respondent herein) solicited active participation and advice from the applicant in resolving the issue and also held meetings at New Delhi for that purpose. Considering the need for an increased and more effective vigilance in the affairs of KPT, and further considering the exemplary performance of the applicant as Deputy Chairman, KPT who had demonstrated required sensitivity and response towards issues raising serious vigilance concerns, it is the case of the applicant, the Central Government through the first respondent considered it appropriate to give additional charge to the applicant to act as CVO, KPT, and accordingly a proposal of entrusting the said charge to him was forwarded by the first respondent to the fourth respondent, who communicated its approval to the proposal vide letter dated 26.6.2007. The first respondent thereafter vide letter dated 6.7.2007 informed the Chairman, KPT that the fourth respondent had approved entrustment of additional charge of CVO, KPT to the applicant. In turn, the Chairman issued formal order dated 11.7.2007 appointing the applicant as CVO, KPT as additional charge. It is contended that CVOs acting in various Central Public Sector Undertakings and statutory bodies/utilities are selected and appointed as per guidelines issued by the third respondent in that behalf. The role and functions of CVOs so appointed have been broadly divided into two parts, namely, preventive and punitive. On the preventive side, the CVOs are expected to undertake various measures including inter alia to examine in detail the existing rules and procedures of the organization with a view to eliminate or minimize scope of corruption and mal practices and to maintain proper vigilance on persons with doubtful integrity, whereas on punitive side, the CVOs are expected to take various measures including ensuring speedy processing of vigilance cases at all stages in consultation with the third respondent wherever it is to be so consulted. Up to 11.7.2007, when the applicant was appointed as CVO, KPT, be it the first or the third respondent, they found the applicant to be most suitable for undertaking vigilance activities in a major Port where huge volumes of cargo handling took place, vast extent of estate management was required and government largesse in the form of land leases, allotment of berths etc. to private parties was integral to the day-to day management of the Port activities. Credentials of the applicant, it is his case, while acting as Deputy Chairman, KPT, were found to be best suited to be entrusted with safeguarding and keeping a strict vigil on the huge public property and public monies comprised in the corpus of the KPT. At the time when the applicant assumed the charge of CVO, KPT, he discovered from records that in the last four years of functioning of the Port, though the Port had a designated CVO, there were no vigilance enquiry reports sent either to the first respondent or the fourth respondent, or cases of criminal misconduct noted or reported. The vigilance unit was functioning in a perfunctory manner. To elucidate, the applicant mentions that although the exercise of preparing the agreed list, i.e., a list containing names of officials whose conduct and assets need to be kept under watch in that year, with CBI was undertaken, for unknown reasons no names were included in the said list for all these years. The various reports submitted by the applicant as CVO, KPT and recommended by the fourth respondent for CBI inquiry, it is further the case of the applicant, would establish beyond reasonable doubt that in all these years although the acts of criminal misconduct were being carried out with impunity and valuable properties of the Port were being frittered away, the entire vigilance unit was allowed to be left dysfunctional. The applicant assumed additional charge of CVO, KPT on 11.7.2007 and started submitting vigilance reports to the first and fourth respondents reporting serious irregularities in various matters concerning the port and also reporting criminal misconduct on part of senior-most officers at the Port in perpetrating these irregularities and causing wrongful gains to third parties. It is the case of the applicant that even though, up to this time he was considered to be best by all concerned, but submitting reports with regard to irregularities, dysfunctioning and even criminal acts, started an atmosphere of conflict. The applicant, on one hand, was required to protect the public properties and public monies and, on the other hand, was faced with unwarranted ire of his superiors at the Port Trust as also in Ministry who were becoming increasingly uncomfortable with the reports of CVO which were highlighting gross criminal misconduct on part of senior officers at KPT, including the Chairman. The applicant, it is his case, had only been discharging and implementing the responsibility and mandate given to the CVO and his reports were a mere recording of the same. The applicant was relieved from the charge of Deputy Chairman, and ultimately as CVO, and that too not once but twice over, which was the price that he had to pay for discharging his duties diligently and in accordance with law. The applicant documented criminal misconduct on the part of the Chairman and other senior officials of KPT. While making mention of his reports, the applicant avers that his premature repatriation is a direct fall out of the stringent measures he had taken to protect vast properties of the Port Trust running into thousands of crores and which was being consistently undervalued through a conspiracy between the officers and third parties for private gains. The applicant states that this Tribunal may lift the veil of innocuous order of repatriation, call for records and may even consider giving appropriate directions for holding appropriate inquiry in public interest.
5. The applicant has summarized in the Application the reports given by him. While giving details of reports submitted by him, it is stated that the profile of lands belonging to KPT would show 6920 acres of Gandhigram township land and 2,20,416 acres of land, 90% of which is submerged under tidal waters. Thus 22,000 acres of land is available for use with KPT. No survey or valuation of these lands has been done in the last 30 years. According to provisions of Section 29(1) of the Act of 1963, all property, assets and funds and all rights to levy tax in relation to major ports, vest in the Board of Trustees for the purposes of administration, control and management. Land grants with respect to port properties are governed under the provisions of Section 34 which inter alia prescribes that lease of any property for more than thirty years is to be with prior approval of the Central government and that if any contract is not made in accordance with the provisions of the Act, the same is not binding on the Board. Further, as per the settled law, contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/tender and not on nomination basis so as to ensure transparency in public procurement and to eliminate irregularities, interference and corrupt practices by authorities concerned. The status report on estate management in KPT, as submitted by the applicant to the first respondent, is annexed with the Application as Annexure A-13. A team headed by Joint Secretary & CVO of the Department of Shipping visited the Kandla Port on 14/15.7.2007 for considering renewal or otherwise of lease of huge area of government land. The applicant, it is his case, was alarmed by the non-serious approach of the team and felt the need to bring in writing correct facts on lease of land before the Ministry so that the interest of the government was protected fully, and vide report dated 3.8.2007 mentioned that nearly 12,000 acres of government land had been given on nomination basis to 2-3 families without due diligence and without competitive bid which was so essential for government contracts. He also mentioned that the grant of lease was also followed by the grant of permission to mortgage the same in crores of rupees by these parties, whereas the Port was getting rental of less than Rs.141 per acre, and that the land granted on nomination basis was also to be allowed to be transferred to other parties without bringing the same before the Board of Trustees. He further mentioned that there was total lack of transparency in lease of land, renewable terms, mortgaging terms etc. His report indicated that prized property of the port lying between the Gandhigram township and Kandla Port was being given to a chosen few. Copy of report dated 3.8.2007 is annexed with the Application as Annexure A-14. The applicant also pointed out that that the said land was giving a total revenue of only Rs.15 lakhs a year, whereas the same had been allowed to be mortgaged to raise resources in crores of rupees by subsequent grant of mortgage permission. He also brought out that the port property, the renewal of lease of which had not taken place since March, 2004, had been allowed to be kept by the lessee without any approval. He mentioned that it could be seen from records of KPT that senior officers and public servants in the Department of Shipping were aware that huge areas of government land had been allowed by the KPT officials to remain in control of a privileged few even beyond the lease term since 2000. He also mentioned in the report that such trespassers had been given facility to mortgage the land and install pipelines etc. in anticipation of the government approval, and that senior government officers in the Ministry were aware that valuable property had been allowed to be converted as commercial land which in turn was giving huge financial benefits to a chosen few and yet since April, 2004 no action had been taken against the officials of KPT or the lessee who were trespassers. The applicant was called for a meeting on 12.11.2007 with Joint Secretary & CVO of the Department. He noted that the Joint Secretary & CVO of the Department got circulated his reports in the meeting which was attended by suspect officers of KPT. According to the applicant, this was a deviation from the established vigilance procedure and he accordingly brought the same to the knowledge of CVC. He later on came to know that the Joint Secretary & CVO of the Department of Shipping had recommended renewal of huge tract of government land to lessees who were not original lessees but were lessees by virtue of transfer of lease rights. The recommendation in favour of renewal was done despite the Joint Secretary & CVO of the Department having received the report of CVO, KPT in the first week of August, 2007, clearly mentioning that renewal of lease of huge tract of government land in the hands of a chosen few would undermine the interest of the Port and that of the exchequer. Vide another report dated 3.8.2007 to the first respondent and a subsequent report dated 27.9.2007 to the third respondent, the applicant brought to the notice of the said respondents the criminal misconduct of Chairman, KPT and other senior public servants under Section 120B and 420 IPC and Section 13(2) read with Section 13(d) of Prevention of Corruption Act, 1988 in respect of 1010 acres of land leased out to a private party which lease had been earlier determined by the Board of Trustees. The land was allowed to be mortgaged by the Chairman despite the decision of the Board to determine the land and despite the fact that the case filed by the lessee in the court was decided in favour of the Port. The Chairman subsequently also allowed 25 acres of this area to be converted as an area for warehousing and 50 acres of area were allowed to be converted for construction of liquid storage tanks. Liquid storage tanks facilities and construction of warehouse in KPT required competitive bidding process, however, these facilities were allowed to private party by the Chairman without taking the Board of Trustees in confidence. Whereas, copy of letter dated 3.8.2007 addressed to the first respondent is annexed as Annexure A-15, copy of the report dated 27.9.2007 is annexed as Annexure A-16. The reports aforesaid also mentioned that the facility of installing pipeline to all the liquid jetty of KPT was also permitted by the Chairman without obtaining approval from the Board of Trustees, when in terms of Section 33 of the Act of 1963 the Board was the competent authority for entering into a contract for its functions. The applicant noted with concern that his report was circulated among suspects in the room of Joint Secretary & CVO. Later on he came to know that the Joint Secretary & CVO had recommended renewal of lease of even this land despite the fact that the land was sold to the lessees by the original lessees against the covenant of the lease agreement and the fact that the lessees were not original lessees but were lessees by virtue of transfer of lease rights. No action was initiated till 29th January, 2008 by the senior public servants in the Department of Shipping. The recommendation in favour of renewal was done despite the Joint Secretary & CVO of the Department having received the report of CVO, KPT in the first week of August, 2007, clearly mentioning that renewal of lease of huge tract of government land in the hands of a chosen few would undermine interest of the Port and that of the exchequer. In another report dated 21.9.2007, criminal misconduct of senior officials of KPT was mentioned by the applicant wherein KPT had given possession of 25000 sq. mtrs. of prime land without observing the process of law, without any competitive bidding and on nomination basis to yet another private party. It was noticed that the land was given for the specific purpose of setting up an edible oil refinery for imported edible oil of State Trading Corporation (STC). However, no supporting documents were called for from STC and no detailed project reports were examined or called from the party. Subsequently the lease was determined and proceedings under the Public Premises Act were commenced. The High Court of Gujarat refused to intervene despite an application of the party to that effect. Yet the Chairman, KPT revoked the determination order issued earlier and allowed change in use of land to the party. Copy of report dated 21.9.2007 has been placed on records and is marked as Annexure A-17. It is the case of the applicant that instead of setting up an edible oil refinery, the lessee converted the entire area for the use of liquid storage tanks to earn rental income. The land which was given on nomination basis at Rs.2 lakh was allowed to be mortgaged at Rs.9 crores. Subsequently, the exclusive facility of having pipeline connected from the private party to all the jetties of KPT was facilitated. A certificate that the pipeline was an infrastructure facility was also issued, which gave income tax advantage to the party. It was also noticed that the pipeline had been allowed to be laid on the KPT land without any lease agreement, and that the original letter of grant of land to the private party had been tempered/forged by pasting three additional paragraphs in the original allotment letter in the KPT file. It was thus seen that the port officials allowed unfair advantage to accrue to the lessee and that their acts disclosed criminal misconduct. The report thus disclosed criminal misconduct of the Chairman and other senior public servants under Section 120B and 420 IPC and under Section 13(2) read with Section 13(d) of the Prevention of Corruption Act, 1988. No clarification was sought from the applicant nor was any consultation undertaken by the Department with CVO of the Port, and no action had been initiated by the senior-most public servants in the Department of Shipping. In yet another report dated 11.7.2008, the applicant once again brought to the notice of the first respondent that senior functionaries in the Department of Shipping were aware that the and was being commercially exploited since April, 2004 without lease. The applicant recorded in his report as follows:
. Barren land having much less infrastructure of road, transport and township when declared as MUNDRA SEZ got a valuation of Rs.200,000 crores in its IPO, Kandla Port SEZ of 5,000 hectares consisting of these very plots and the adjacent land could not be in any case less. Even if we expect 10% of private SEZ land, the value of land turns out to be Rs.20,000 crores. The same land is yielding less than Rs.15,00,000/- a year to KPT. When the Port had auctioned its land in 2005, it fetched a price of Rs.1.2 crores to Rs.2.3 crores per acre for a lease of thirty years whereas the Port is levying Rs.141/- per acre per year as lease rentals for the leases granted on nomination basis. All this, as per the case of the applicant, was not possible unless there was some shelter at higher level. Copy of report dated 11.7.2008 has been placed on record as Annexure A-17/A.
6. While highlighting dishonest grants involving valuable cargo handling facility without following the process of law, it has been averred that a preliminary enquiry report dated 17.11.2007 on dishonest grant of 130 meters of waterfront at Cargo Birth No.12 to a private party was furnished by the applicant to the Department of Shipping. This was done without adhering to the provisions of licence agreement approved by the Government of India. It was mentioned that this facility was allowed to the party without approval of the Board of Trustees and the government of India. The report also mentioned that the terminal was only required to handle containerized cargo. The Chairman, however, allowed a chosen few shipping agents to handle bulk and non- containerized cargo at the container terminal. On handling of cargo at container terminal, the said private party was entitled to share 50% of the revenue, thus 50% of the revenue on general non- containerized cargo handled by the private party was a loss to KPT. Copy of report dated 17.11.2007 has been placed on records as Annexure A-18. Hiring charge of vessels calling on Kandla Port is nearly US $ 40,000 to a US $ 60,000 a day, and, therefore, a situation where a vessel is allowed to jump seniority allows the shipping agent an undue advantage of saving US $ 40,000 to US $ 60,000 a day. Thus handling of general cargo at container terminal allowed a chosen few to jump seniority of other vessels and they got a preferential berthing before their due term. Thus a permission to handle general cargo of a few vessels at container terminal was grant of undue pecuniary advantage to a chosen few. Vide yet another report dated 5.10.2007 to the first respondent, the applicant informed that Deputy Conservator and Chairman of the Port had obtained a decision from the Board of KPT to hire two tugs, one at a cost of Rs.1.29 lacs per day and the other at Rs.1.38 lacs per day excluding fuel and taxes. The tugs were hired on the plea that their absence would affect the crucial revenue yielding operation at oil terminal, and the Chairman had assured the Board that only the tugs were made available for shipping operation, charges as agreed would be required to be paid. However, it was noticed that the tugs were not used fully and the hired tugs were used only for 15 days in the first 78 days of hiring. In addition, the Ports own tugs were also not used fully. Subsequently, it was learnt from the user department of tugs that the tugs were not needed. It was also learnt that the tug which had hiring charge of Rs.1.38 lacs per day was hired and the tugs with similar capacity which had the hiring charge of Rs.1.29 lacs per day were not at all hired. Cost of a tug is nearly Rs.20 crores and a tug has life of 20 years. It was noticed in the report that the financial advantages shown in hiring of tugs by the FA&CAO and the Dy. FA&CAO was also prima facie a case of deliberate incorrect examination. These two officers are stated to have been granted out of turn promotion by the Chairman. Copy of report dated 5.10.2007 is annexed with the Application as Annexure A-19. Vide yet another report dated 9.8.2007 read with report dated 18.8.2007, the applicant informed the first respondent of the irregularities with respect to the grant of permission for operating a Container Freight Station (CFS). CFS, it is stated, is an extended arm of port and is notified under Customs Act, 1962. It is a common user facility with public authority status with fixed installations and offering services for handling and temporary storage of import/export laden and empty containers. The main functions of CFS are to seen dispatch and clearance of containerized cargo. CFS is a valuable activity for which any public authority is required to adopt transparent procedure. It was seen from the record of KPT that the Chairman worked systematically and dishonestly favoured a private party and allowed them a valuable business facility. For similar facility, KPT land was not made available to a Central PSU, namely, CONCOR. The facility allowed to another PSU, namely, Central Warehousing Corporation under a licence agreement approved by the Government also required revenue sharing. However, the said private party was allowed to run CFS on part premises without any revenue sharing with the port. More so, there was no competitive bidding. It is the case of the applicant that he reported a considerable revenue loss to the Port on account of operation of CFS by the private party on the port premises. Copies of reports dated 9.8.2007 and 18.8.2007 are annexed as Annexure A-20 colly. In the meantime, a report of CBI was also received through CVO of the Ministry and was examined by the applicant. As would be seen from the documents on records of the port, and sequence of events as pointed out by CBI that their assessment of dishonest grant of permission to the aforementioned private party was correct. The documents, chronology and the timing of events as well as the analysis furnished in the report of CBI were unambiguously disclosing commission of offence under various Sections of IPC and Prevention of Corruption Act. In the report dated 18.8.2007, the applicant suggested for sanctioning prosecution by CBI and also directed the Secretary, KPT to cancel the allotment of land to the private party. The applicant, however, to his surprise learnt from letter of Additional Commissioner (Customs), Kandla that a meeting had been convened by Secretary, Department of Shipping. It was also confirmed from the Department of Shipping that they had scheduled a meeting vide letter dated 1.10.2007, which was not in the knowledge of the applicant. The applicant, it is averred, clearly noticed a pattern that in the matter of dishonest grant wherever the involvement of Chairman was obvious on record, the Chairman would ensure the involvement of the Ministry even on the matters that were within the jurisdiction of the Board of Trustees. The applicant accordingly vide letter dated 18.10.2007 brought all facts to the notice of Joint Secretary & CVO of the Department seeking intervention. When nothing was heard from the Department of Shipping, the applicant brought all facts vide his letter dated 24.10.2007 before Secretary, Department of Shipping clearly mentioning that Ministry of Commerce had also suggested on 13.12.2008 to the aforesaid private party to move their CFS from the Port land, and it was only thereafter that the support to the said private party was not sustained by the Department of Shipping, and the said Department not only postponed the meeting but also withdrew earlier letters wherein they had requested KPT to participate in the meeting. It would be seen that despite being fully aware since December, 2006 that undue benefits had been granted to the said private party by Chairman, KPT, the senior officials of the Ministry intervened only in the manner that allowed continuity of business of the said party. Copy of the letter dated 24.10.2007 is placed on records as Annexure A-22. The applicant in his report dated 26/28.1.2008 noted that the Tariff Authority on the Major Port Trust had castigated KPT and had observed that the methodology adopted to derive lease rental was not found to be in line with the Government guidelines. It noted that the Port had not appointed approved valuer to arrive at correct value and the Port had not determined the market value of its land. It is the case of the applicant that the lease rent of lands is fixed by the Tariff authority at major port at 6% of the market value of the land so determined. It was noted by the applicant that an extremely low lease rental regime had been sustained by the port officials and that the Financial Adviser and the Chief Accountants at the port since 1991-92 had not bothered the land valuation done, despite the lease agreement asking for revision of lease rent based on the market value prevailing at the time of revision. Copy of this report has also been placed on records as Annexure A-23. It is the case of the applicant that he brought to the knowledge of the Department of Shipping that lease rental fixed atRs.141 per acre since July, 2005 was not in the interest of the exchequer and also mentioned that the port authorities on the basis of guidelines issued by the Ministry had allowed such lessees a right in the market in crores of rupees. He clearly mentioned that the low lease rental regime obtained by the Chairman for the big lessees having more than 100 acres of land was a deliberate ploy/conspiracy to grant pecuniary advantages to a chosen few which attracted relevant provisions of IPC and Prevention of Corruption Act. It is the case of the applicant that from the above reports furnished by him as CVO, KPT, it would be noticed that within a short span of four months, he had covered and located the areas of vigilance concern relating to the commercial and organizational activities of KPT and specifically pointed out instances of gross irregularities and criminal misconduct giving detailed reports along with sufficient proof/documents to the first respondent for initiating punitive action against senior officers. The applicant raised serious concerns regarding valuable properties and monies of KPT where grants were being extended to a chosen few without due authorizations from the Board of Trustees which was in full knowledge of the first respondent. It is the case of the applicant that in gross dereliction of their duties as public servants, no action was taken by the officers responsible in the first respondent Ministry against the suspect officers till 29.1.2008, and at no time the first respondent sought any clarification on the reports furnished by the applicant nor did they inform the reasons for delay in action that was caused by the Department. The Joint Secretary & CVO of the Department of Shipping, without taking any cognizance of the reports of the applicant as CVO, KPT recommended renewal of all leases with retrospective effect from April, 2004. This involved huge tracts of land with one business family. The Joint Secretary & CVO did not even take cognizance of the fact that considerable area that he had recommended for renewal had been required by the port for setting up an SEZ and had been included in the proposal of KPT to Ministry of Commerce as SEZ area. The lease conditions required determination of market value of land which had not been done for more than 20 years. While recommending renewal of lease, it had not been considered appropriate for reasons best known to the first respondent, to ask for market value or appoint a valuer for that purpose which is required as per the guidelines issued by the first respondent. The recommendations of the first respondent did not consider the fact brought out in the order of the Tariff Authority for major ports of January, 2006 which conveyed serious reservations on modalities adopted by KPT under the guidance of its Chairman. Conscious and aware of his responsibilities as a Trustee, as Deputy Chairman and as CVO, the applicant discussed the matter with senior functionaries of the fourth respondent and thereafter pursued the matter with the first respondent, much to the annoyance of senior-most officers in the first respondent Ministry.
7. The facts as mentioned above, it is the case of the applicant, would demonstrate that he was repeatedly bringing large scale irregularities and loss of public revenue to notice of the first and fourth respondents, who were required to take action, but the reports submitted by him, however, rattled vested interests at higher level. Thus, first the applicant was served with a relieving order and thereafter doctrine of withdrawal of pleasure was employed as an instrument to prevent examination into the unholy irregularities brought out by the applicant. It is averred that the applicant was penalized in an illegal, arbitrary and malicious manner by issuance of an order dated 31.1.2008 purporting to relieve him of the charge of Deputy Chairman with immediate effect, and that the way and manner the applicant came to be visited with the order aforesaid, would tantamount to his virtual dismissal from the post of Deputy Chairman, KPT. It is the case of the applicant that senior officers in the Ministry had convened a meeting on 12.11.2007 which was also attended by the applicant, wherein confidential reports of the applicant as CVO of KPT were circulated among the officers listed by him as suspects, and they were told that action would be taken on the reports of the applicant only after the Gujarat assembly elections. It is further his case that that this action only forewarned to be forearmed. In addition to the above action, the applicant also started receiving threats from various quarters. He noted this trend with concern and shared the relevant information with the fourth respondent vide letter dated 4.12.2007. The fourth respondent requested the concerned police officers in Kutch to look into the matter and take necessary action, and vide letter dated 6.12.2007 also informed the first respondent of the same. In furtherance of the said direction of the fourth respondent, the applicant was granted security cover thereafter. It is averred that the third respondent made attempts to withdraw even the security cover provided to the applicant, however, the local police did not agree with the suggestion made by the third respondent for withdrawal of security.
8. Constrained under the circumstances as mentioned above, the applicant filed OA No.302/2008 in this Tribunal, which came up for hearing on 7.2.2008, when the following interim order was passed:
Inter alia, counsel contends that deputation period of five years of the applicant has been cut short without giving any reasons. Counsel further contends that applicant is whistle-blower bringing to notice the misdeeds of high ups and has been relieved on account of mala fides simply with a view to cover up the acts of omission and commission against whom the applicant gave information.
Issue notice to respondents, returnable on 21.02.2008.
Stay operation of the impugned order meanwhile. The order aforesaid was continued vide order dated 21.2.2008 by this Tribunal. In response to notice issued by this Tribunal, the respondents, it is stated, filed a very sketchy response. The applicant accordingly filed a rejoinder inter alia praying for calling of records of the first and fourth respondents pertaining to various enquiry reports submitted by him as CVO, KPT. The reply filed by the fourth respondent, CVC in the above proceedings, it is the case of the applicant, would vindicate his stand so far as the gross irregularities and criminal misconduct being perpetrated at KPT is concerned. It is averred that the vigilance exercise conducted by the applicant in discharge of his duties as CVO, KPT, led to a categorical statement by the fourth respondent before this Tribunal that the vigilance reports of the applicant had been advised to the first respondent Ministry for being referred to CBI for investigation, and that even the other vigilance reports submitted by the applicant had been forwarded to the first respondent for taking action; no case, however, has so far been registered, even though mandatorily required. It is the case of the applicant that if the reports of the applicant have been recommended for CBI investigation and action on others advised to the first respondent Ministry, his continuance as CVO, KPT would have facilitated the conduct of the enquiry. The interim order dated 7.2.2008 passed by the Tribunal, it is stated, resulted in clear and discernible change in the attitude and demeanour of the Chairman towards the applicant; the clear and unequivocal message being that though the interim order may have prevented the relieving of the applicant from his charge of Deputy Chairman, KPT and consequently from the additional charge of CVO, he was to be prevented under all circumstances from exercising any of the powers that were a necessary adjunct to the charge held by him, or from participating in day-to-day management and running of affairs of the Port. The applicant elucidates the efforts of the respondents in virtually rendering the interim order passed by this Tribunal as non est. While so elucidating, it is stated that while prior to passing of the impugned order dated 31.1.2008, the applicant had access to all correspondences from and to the Port, he was now denied access to such correspondences initially at the behest of the Department of Shipping by Dr. G. S. Rao, who was given the charge of Chairman, KPT on temporary basis, despite being much junior to the applicant. Private Secretary to the Chairman met the applicant on 13.2.2008 and informed that the chairman in-charge had issued directions that no files or correspondences were to be sent to the applicant as were being sent earlier. The applicant was not allowed to even discharge his statutory duties as a Trustee and Deputy Chairman and was obstructed from doing so. Despite the Boards resolution directing the applicant to hear a special civil application as required under the Gujarat High Court order dated 30.4.2008, he was denied all access to KPT papers and thus could not proceed with the hearing that was mandated under Section 56 of the Act of 1963. The applicant was further denied access to all meetings of the Port with its users. Financial matters of the port were being dealt with by junior functionaries of the Port without the applicants knowledge, and even work was awarded and negotiated without his knowledge. This, it is the case of the applicant, was a complete departure from the procedure earlier adopted at KPT when he participated in these matters completely and effectively. All financial powers of the applicant as Deputy Chairman were ceased on verbal and written orders of the Chairman in-charge, who was allowed to arrogate and avail rights of Chairman by the first respondent Ministry without any order as mandatorily required under Section 14 of the Act of 1963. As per provisions of law, in all major ports, Deputy Chairman is to act as the Chairman in-charge in absence of the Chairman. Subsequently, Chairman of Mormugao Port was given additional charge of Chairman, KPT (third respondent), who took charge on 21.2.2008. In his very first meeting with the applicant on 22.2.2008, it is the case of the applicant, the third respondent threatened and claimed that he would withdraw all his powers and would not give any work to him, even if there was a court order, and even if the applicant won his case. In the meeting aforesaid, the third respondent ensured that no papers, files, etc. reached the applicant and no officers reported to him except his personal staff. Despite the interim order passed by the Tribunal, the applicant was not allowed by the first and third respondents to act as Deputy Chairman and CVO, KPT. The impatience and frustration of the respondents in being unable to remove the inconvenient applicant from the scene, it is pleaded, was so overpowering and palpable that despite being fully aware of the passing of interim orders by this Tribunal, they with utmost impunity and gross contempt, issued the following orders:
In the meantime, since in accordance with the provisions of the Major Port Trusts Act, 1963, particularly, Section 3, Section 7 and Section 21, the Deputy Chairman exercises the powers and duties only subject to approval of central government, it is the prerogative and discretion of the Central Government to allocate duties and works to the Deputy Chairman. In the instant case, the Central Government in exercise of its jurisdiction has divested Shri Manoranjan Kumar of his duties and powers And further that:
In the circumstances, till the matter is decided by the Honble Central Administrative Tribunal, Shri Manoranjan Kumar will attend to the work concerned only the Security and Safety matters of the Port. In yet another order dated 23.2.2008, it was stated that the applicant would be attending forthcoming meetings of the Board only for issues concerning the security and safety matters of the Port and that he would not be required to be physically present in the other Board meetings unless specifically required by the Board. Vide yet another order of even date, the applicant was asked to hand over all the files in his possession other than those relating to security and safety matters of the Port to the office of Chairman forthwith. Vide another order of even date, it was stated that in absence of the Chairman, the Tariff Manager would coordinate the work of the Port with other heads of department and any work of important nature involving policy decision was to await the Chairmans return. It is the case of the applicant that the language and tenor of the orders aforesaid was clear and unambiguous; irrespective of the protection extended to the applicant in terms of interim order referred to above, the applicant was not to be allowed to function as Deputy Chairman, KPT, and as such he was sought to be unceremoniously stripped of all the powers and functions conferred and enjoined upon him under the Act of 1963, and was relegated to take care of safety and security of the Port only. The applicant was thus in fact and reality relieved from his charge, even though protected by the court. It is averred that all efforts were to keep the applicant away from files, correspondence, Board meetings etc. so that all acts of commission and omission on part of those at the helm of affairs at the Port perpetrated at the behest of the senior-most public servants in the first respondent Ministry did not come within the vigilant scrutiny of the applicant as CVO. In the circumstances, the applicant was constrained to file MA No.449/2008 in the OA referred to above before this Tribunal for quashing orders dated 22.2.2008 and 23.2.2008 issued by the third respondent, and for restraining the respondents from obstructing/interfering with the exercise of powers and performance of functions by the applicant as Deputy Chairman and CVO, KPT. While dealing with the MA aforesaid, the Tribunal vide order dated 14.3.2008 inter alia observed/directed as follows:
10. In view of the above, prima facie, we are satisfied that the orders, subject matter of the MA, passed by the Chairman, is not only on its ipsi dixit but also be de hors the provisions of the Act ibid. This lacks jurisdiction under Section 21 of the Act ibid.
11. Resultantly, for the foregoing reasons, operation of the orders passed by the Chairman on 22.2.2008 and orders of even date 23.2.2008 as appended with the MA is stayed. Respondents are directed to restore back the duties and functions performed by the applicant before 31.1.2008 attached to the post of Deputy Chairman. During the course of proceedings in the contempt petition, the first respondent filed an affidavit wherein it stated that the order dated 31.1.2008 against which the applicant had filed OA No.302/2008 had since been withdrawn vide order dated 20.3.2008. In view of this withdrawal, the Tribunal vide order dated 1.5.2008 disposed of the OA as having become infructuous. It is the case of the applicant that subsequent issuance of impugned relieving order, this time exercising the pleasure of the Central Government, would lead to a reasonable assumption that the withdrawal of the relieving order was a deliberate ploy to evade judicial scrutiny of the unjust, arbitrary and malicious actions of the respondents. After disposal of the OA aforesaid, the contempt petition was also disposed of. It is the case of the applicant that as soon as judicial scrutiny of the arbitrary and mala fide action of the first and third respondents was over, they once again proceeded with their unholy agenda of relieving/removing the applicant from the charge of Deputy Chairman, KPT so that he was also automatically relieved of the additional charge of CVO, KPT, and not only the vigilance reports submitted by him were not taken to their logical conclusion, but even the functioning of the Port could continue without any effective vigilance as was the scenario prior to the applicant becoming the CVO, and that to effectuate this ulterior and mala fide design, the first respondents through the second respondent issued the impugned order dated 8.8.2008 relieving the applicant from the charge of Deputy Chairman, KPT and repatriating him to his parent cadre. On that very day, the third respondent issued consequential relieving orders. It is averred in the Application that Kandla Port Trust receives Rs.200 crores (approx.) annually from its operations at Kandal destination, one particular business family, which, under an illegal grant of government largesse, is in unauthorized possession of about 1010 acres of land worth more than Rs.2000 crores and is gaining in business to the tune of Rs.180 crores plus annually since April, 2004. Yet, when the applicant as a diligent officer, has proceeded to protect and preserve the public exchequer, the system offered him no protection or dignity; on the other hand he has been harassed, victimized and prevented from performing his duties. The extent of harassment, it is averred, has been such that the applicant has had to resort to seeking security cover under intimation to the CVC.
9. In the facts and circumstances fully detailed above, the applicant seeks setting aside of order dated 8.8.2008 on variety of grounds, some of which have been seriously debated, which would be referred to hereinafter while dealing with the same.
10. In pursuance of notice issued by this Tribunal, the respondents have entered appearance. Two sets of replies one on behalf of the first and second respondents, and the other on behalf of the third respondent, have been filed. It may be mentioned at the very outset that the fourth respondents, CVC, has not chosen to file any reply. During the course of arguments, learned counsel representing the applicant was at pains to state that in a case of this kind where the applicant is a whistle-blower and has exposed a mammoth scandal going on for years in Kandla Port, and the reports submitted by him have been affirmed to have at least a prima facie truth therein, and only then the matter has been referred to CBI for investigation, the fourth respondent ought to have filed a reply. We put it specifically to the counsel representing the fourth respondent as to despite the contentions raised by the learned counsel representing the applicant the said respondent would still not prefer to file reply, the counsel, on instructions, stated that the fourth respondent would not file reply.
11. In the counter reply filed by respondents 1 and 2, it has inter alia been pleaded that the applicant was appointed vide order dated 7.9.2006 on deputation basis for a period of five years from the date of his taking over the charge of the post or until further orders, whichever event was to take place earlier. The applicant accepted the terms of appointment and joined the deputation post knowing fully well that the tenure of deputation was for a period of five years or until further orders. It is pleaded that in terms of deputation itself the impugned order of repatriation has been passed and the applicant is estopped to aver anything contrary to the terms of appointment on deputation. The respondents aver that as per settled law, a deputationist can be repatriated to his parent department at any time before expiry of the deputation period, and the concerned person in such cases cannot be allowed to aver that he be posted to a post of his choice. The order of repatriation is stated to be an order simpliciter and hence proper and legal. It is averred that the conduct of the applicant as referred to in the Application itself would show that his services were not satisfactory and, therefore, the order of repatriation has been passed, and that the order has been issued in administrative exigencies and in public interest since it was practically becoming difficult to run a prestigious port by the unsatisfactory work and conduct of the applicant. It is pleaded that the applicant instead of devoting his time to the development of the port was involving himself in making frivolous complaints on the analogy that he is a whistle-blower, with the result that it was become increasingly difficult to efficiently and properly run the activities of the port. It is then pleaded that after the earlier order of repatriation was withdrawn, it was expected of the applicant that he would now curb his activities and devote himself to the work of Deputy Chairman, but unfortunately he was found to be incorrigible, which would be reflected in the letters written by the chairman to the competent authority. It is at this stage that the competent authority in the interest of the development of the port was forced by the circumstances created by the applicant himself, to repatriate him from his deputation post in terms of the appointment order. It is then pleaded that various other complaints against the applicants work were also received from persons of chambers of industry to the effect that his conduct was not proper and that he was working against the interest of the port which had the effect of business shifting to private port in the vicinity. The internecine quarrels/differences between the applicant and other senior officers of the port were not conducive to the interests of the port. It is mentioned that the allegations made against the Chairman and other officers of the port are under investigation, and pending investigation the officers have been shifted out of the Kandla Port, and the said officers have complied with the orders of shifting passed. Since allegations/complaints are also pending against the applicant regarding his unsuitability, it is the case of the respondents, it would be only fair and proper that he is repatriated to his parent department rather than continue him in his present posting and resultant squabbles. The applicant, it is stated, was appointed as Deputy Chairman, KPT in terms of Section 3 of the 1963 Act. Section 7 of the Act prescribes that the Chairman and Deputy Chairman shall hold office during the pleasure of the Central Government. Keeping in view the applicants conduct of making repeated frivolous complaints against all and sundry, and even against the officers of the Ministry of Shipping, who have nothing to do with the so called land scam, and further since the work of the Port was suffering due to these internecine squabbles between the officers, it was felt that the best course in the interest of the Port would be to curtail the period of deputation of the applicant. The provisions of the Act of 1963 provide for the Central Government to withdraw its pleasure. The mala fides alleged in the Application are stated to be all figments of imagination of the applicant. It is stated that the applicant was given an opportunity to improve on his performance by devoting himself to work sincerely as Deputy Chairman, KPT, but unfortunately he again without realizing that he was holding a very high post and responsibility, started making reckless allegations and raised unnecessary issues to the detriment of the growth of the port. The applicant was well aware that the complaints made against senior officers were being looked into by the CVC and CBI, and the concerned officers have been transferred from their assignments and new incumbent posted as Chairman, KPT. It is pleaded that the applicant in all good faith should have devoted himself to the growth of the port rather than be a stumbling block to such a growth. It is in these circumstances that a decision was taken to repatriate him. Insofar as, the assertion of the applicant that there was no assessment of valuation of land in KPT done for the last thirty years is concerned, it is stated to be false as the Tariff Authority of Major Ports (TAPT), a quasi judicial body, assessed the value of the land in Kandla and necessary orders issued on 17.1.2006. Similarly, the allegation of the applicant that senior officers of the Ministry were aware that the valuable property allowed to be converted as commercial land, is stated to be totally baseless and fabricated. It is stated that in fact, the Ministry had not extended lease of any individual/firms after 1993. As regards renewal of huge tracts of government land, it is stated that Joint Secretary & CVO of Department of Shipping had not issued any instructions as alleged by the applicant. The applicant, it is stated, has gone to the extent of casting aspersions on a senior civil servant without any substance. The answering respondents, it is further stated, have been receiving reports/complaints against the applicant indicating the adverse affect on the working of the port due to his style of functioning as Deputy Chairman. The respondents thus invoked provisions of Section 7 of the act and withdrew the pleasure of the Central Government on continuance of the applicant as Deputy Chairman. The Kandla Port Trust, it is stated, has been performing excellently during the last several years, however, the continuance of the applicant is having a demoralizing effect not only on officers and staff of the port, but also on different staff federations, the trade and others. The Gandhigram Chamber of Commerce is stated to have also approached the respondents highlighting the decline in the functioning of the port, which is in the public eyes due to the actions of omission and commissions of the applicant. The respondents are also stated to have received complaints stating that the applicant had been indulging in such activities only to benefit some private ports nearby.
12. In the reply filed on behalf of the third respondent, the cause of the applicant has been opposed on similar grounds as raised in the counter reply filed on behalf of the first and second respondents. We may, however, mention some averments made in the reply which may have bearing upon the controversy. It is pleaded that the answering respondent has to function as per the orders of the first and second respondents, and as such the impugned order of relieving the applicant from his duties as Deputy Chairman has been passed independently by the aforesaid respondents and not at the behest of the answering respondent as alleged. While referring to the pleas raised by the applicant as regards his role as CVO, KPT, it is stated that even though, the role of CVO, as indicated in the Vigilance Manual is to take preventive actions to eliminate or minimize the scope of corruption and malpractice and to maintain proper vigilance on the persons with doubtful integrity, but the applicant would eye everyone as having doubtful integrity and in a prejudicial manner creating fear psychosis in the working environment, and that he never discussed the vigilance cases with his superior, i.e., Chairman and used to send various reports directly to the Ministry as well as CVC on his will, which not only created unhealthy atmosphere amongst the employees of the Port but also discouraged them to work with their free mind. The applicants assertion that the entire vigilance unit of KPT was dysfunctional before his joining has been stated to be incorrect. It is further stated that the applicant was mainly concentrating on the vigilance matters by finding fault in his subordinate officers and was only attending the routine duties of Deputy Chairman as per hierarchy of the organization, and further that the applicant is misleading the court by claiming that he was relieved from the charge of Deputy chairman because he was highlighting misdeeds of senior officers of KPT. It is pleaded that the applicant was repatriated by the first and second respondents recording the displeasure of the Minister, and that there are valid reasons for recording displeasure on the work and conduct of the applicant. It is then pleaded that it is the basic principle of deputation that the person concerned can always and at any time be repatriated to his parent department and there is no vested right in such a person. It is stated that the applicant instead of devoting himself to official duties of Deputy Chairman and CVO, KPT, unfortunately continued with his actions of creating hurdles in the smooth functioning of the port; due to his obstructive and negative approach, there was a strong sense of insecurity and lack of motivation amongst senior officials of the port. It is further stated that grievances have also been made by the business community, representatives of the employers and officers of KPT about the negative approach of the applicant towards general public, port development and his harassment of port officers. The working of the applicant is stated to have done unimaginable harm to the port where urgency and speed are important. These grievances against the applicant are stated to be under consideration at various levels including Ministry of Shipping, Road Transport & Highways. The applicant is stated to be in the habit of making serious allegations against all incumbents of the post of Chairman; he did not even spare the new incumbent (answering respondent) who has nothing to do with the allegation of land scam raised against other officers at the relevant point of time. It is at this point of time when the working of the port was seriously affected by the repeated allegations and descriptions by the applicant that the answering respondent wrote a letter to the first and second respondents about the unsuitability of the applicant for the post of Deputy Chairman. Complaints against the applicant were also received from chamber of commerce and industry and it is after considering all aspects of the case that it was decided that the applicant should be repatriated to his parent department. It is stated that the applicant had come to the KPT on 22.8.2008 and tried to forcefully assume charge of the Deputy Chairman, however, the applicant was asked to await the instructions from Central Government. As one Deputy Chairman was already functioning and in absence of any instructions from Central Government withdrawing the said appointment or in absence of prohibition on the next incumbent, it was deemed appropriate that the applicant be asked to wait for further instructions to be received from Central government pursuant to the orders of this Tribunal. Shri Bhaskarachar has already been appointed and is discharging duties of Deputy Chairman, KPT in accordance with Ministrys order dated 14.8.2008, and he had taken over the additional charge of the post of Deputy chairman w.e.f. 18.8.2008. The applicant thus could not be handed over the charge. With regard to improvement of the port, it is stated that the sharp increase in terms of target achievement does not depend only upon the functioning of the applicant as Deputy Chairman but also depends upon many other factors. The statement of the applicant that the performance of the port within the short period of 14 months of his tenure showed sharp increase in terms of target achieved is denied. It is stated that the applicant is being opportunist, as in fact his contribution has been negative. The port achieved top-most performance during the years 1997, 1998 and 1999 also. The sharp increase in performance of the port is stated to be due to the impact of earlier planned developments before joining of the applicant as Deputy Chairman. Appointment of applicant as CVO is stated to be in routine course. No special evaluation of his credentials, qualifications etc. is stated to have been done. The averments made by the applicant with regard to non-containerized cargo have been denied. It is stated that allotment of berths to the vessels in the port is done in accordance with berthing policy framed for the purpose. It is further stated that the tugs are hired for handling of vessels as per the requirement of increased shipping, and the deployment of tugs is an operational matter dependent upon requirement of shipping operations. Implications of operation of CFS by private party, it is stated, are still under examination. It is, however, stated that the operation of another CFS would result in augmentation of cargo throughout KPT. Extremely low lease rental regime has been denied. Threats extended to the applicant have been denied. They are stated to be figment of imagination of the applicant. The requisition for deployment of Gujarat police was directly sent by the applicant without the knowledge of Chairman, KPT, and based on the request of the applicant the State police arranged security to him in the office as well as at his residence. The relieving order of the applicant, it is stated, was on the basis of order issued by the Ministry of Shipping. It is stated that it was expected of the applicant to devote himself to official duties of Deputy Chairman and CVO, KPT, but unfortunately the applicant continued with his actions of creating hurdles in smooth functioning of the port. It is at this point of time when the working of the port was seriously affected by repeated allegations and disruptions by the applicant that the present Chairman wrote a letter to official respondents about the unsuitability of the applicant for the post of Deputy Chairman.
13. The applicant has filed rejoinder to the counter affidavit filed on behalf of the third respondent. While making a mention of his reports referred to in the OA, it is averred that the said reports have not only been admitted and accepted by the first and second respondents as would be evident from their affidavit filed before the Honble Gujarat High Court at Ahmedabad in Special Civil Application No.2362/2008 between M/s Friends Salt Works and Allied Industries vs. Union of India, but even the fourth respondent, CVC, has after taking serious cognizance of these reports recommended CBI action, and action has since been commenced in recent past. The allegations made in the reply of the third respondent are stated to be contrary to the facts and circumstances as also on records and admitted by the said deponent before the High Court of Gujarat. It is pleaded that contrary to what has been alleged in the reply, the facts on record would go to show that the third respondent has filed a false affidavit basing the case on reckless and vexatious allegations, not substantiated by any record and made in order to support and shield corrupt senior officers of the KPT and the misdeeds of senior government functionaries in the respondent Ministry, who have allowed and are continuously allowing misuse of thousands of acres of highly valued land of the Central Government without any lease agreement and without any tendering process to a chosen few who are influential persons in the areas of Gandhigram. In the matter of M/s Friends Salt Works & Allied Industries in Special Civil Application No.2362/2008 Shri Pravin Agarwal, the third respondent therein, has stated on affidavit before the Gujarat High court that 1010 acres of port land leased out to the above firm are worth thousands of crores and have been obtained by the private party wrongly. The balance sheet of the said private party as per its own admission before the High Court, admits having done a business of Rs.180 crores plus in each of the last four years. Thus undue pecuniary advantage of business of more than Rs.850 crores has been admitted by respondents 1 to 3 to have flown to a private party that has been receiving friendly treatment from the respondents at least since April, 2004. It is stated that these are the facts admitted by the respondents on sworn affidavits before the High Court, and thus their mala fide in claiming the applicants vigilance reports as frivolous and the claim that they were aimed to harass officials of the port or that they were red herring, are nothing but mala fide attempt to mislead this Tribunal with a view to obstruct justice. Value of land of 12000 acres which is property of Central Government, it is stated, is admitted to be not less than Rs.12000 crores in the face of affidavit sworn in by the third respondent before the High Court of Gujarat in SCA 2362/2008, wherein he had sworn that the value of 1010 acres of land under illegal occupation of M/s Friends Salt Works, if permitted to be auctioned as per the government guidelines, would receive amount which would go to the tune of thousands of crores of rupees, ultimately to the benefit of and serve the public at large. If the auction is not undertaken, then the consequence would be benefitting a particular party at the cost of public exchequer, which is apparent in the present case. The applicant states that it is admitted by the respondents that allowing 12000 acres to remain in illegal possession of a chosen few without public auction and without lease, would deprive public exchequer, and that such a colossal and valuable asset has been allowed to remain in unauthorized possession of chosen few by the respondents at least since April, 2004, and that too without any tendering process and without any approval from any authority, leave aside approval in terms of Transaction of Business Rules of 1961. The applicant has then made a mention of the eight reports given by him pertaining to the land scam, container freight, vigilance report of M/s Friends Salt Works, which was run by M/s Seabird Marine Services Ltd, M/s Friend Oil and Chemical Terminal, M/s ABG Container, matters relating to Dredging, M/s Tejmalbhai and Company, irregular appointments, hiring of tugs and grant of land for petrol pump to a trustee of the port in the name of Indian Oil Company. It is averred that out of the aforesaid vigilance reports, as per even admitted facts on record of KPT and Central Government, it appears that the vigilance report has been approved and on consideration of the contents thereof, CVC has also advised the Ministry to refer the matter to CBI, and also for detailed investigation to be carried out by CBI in offences relating to Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and Section 120B and 420 IPC in the matter of M/s Friends Salt Works and Allied Industries and M/s CFS, and that CBI investigation is in advance stage in the matter of M/s Tejmalbhai & Co. It is then averred that the Central Government had agreed with the report of the applicant that had detected irregular, illegal and favourable appointments made by Chairman to certain officers, who have also been reverted to lower posts, however, without fixing any responsibility for undue promotions and excess payments made to select officers in violation of rules by the Chairman. The applicant denies averments made in the written statement that he eyes everyone as having doubtful integrity and made complaints against all officers. He has elaborated the said plea in the rejoinder in details. The applicant also explains receipt of complaints regarding his unsuitability and the displeasure recorded by the Ministry. He also joins issues with the respondents with regard to his acting in a prejudicial manner and creating fear psychosis. The allegation made by the respondents that he was not discussing vigilance cases with his superior has also been denied. The assertion made in the counter reply that the performance of KPT was adversely affected by the conduct of the applicant has been styled to be false statement made by the third respondent. The applicant has given details of development initiatives taken by him, and the function carried out by him despite hurdles created by Shri Pravin Agarwal. The applicant has also given details, which, according to him, would be false averments made in the affidavit of the respondents pertaining to his role as CVO. He has also given details of complaints against the Chairman and facts about his involvement in irregularities at KPT. He has also given instances, which, according to him, would prove malice of the third respondent and obstruction caused by him.
14. The third respondent has filed a sur-rejoinder wherein, it has been pleaded that the allegations made in the rejoinder are not only false, frivolous, untenable, misconceived and unsustainable, but also unsubstantiated, unwarranted, unjustified and non-germane to the issues arising in the case. It is stated that the applicant has elaborated some of the contentions, which the answering respondent disputes and denies being inconsistent with and/or contrary to the record. It is stated that the applicant has sought to rely upon certain alleged land scam/cases, on which the respondent is not advised to comment or deal with the same inasmuch as, the same are pending in courts and are sub judice. The averments made by him in the rejoinder, it is stated, however, would not and cannot advance his case either in fact or in law. Filing of certain affidavits in Gujarat High Court is admitted on certain bona fide belief of the truth of the allegations, as contended by the applicant. It is submitted that the complaints made by the applicant are under investigation by various agencies, and, therefore, it would not be correct to make any comment thereon. It is, however, stated that the complaints made by the applicant are based on one-sided view with regard to the loss suffered, if any.
15. We have heard the learned counsel representing the parties at length and with their assistance examined the records of the case.
16. Shri K. K. Rai, Senior Advocate, who appears in support of the Application, contends that the applicant was appointed as Deputy Chairman, KPT under provisions of the Act of 1963, and that he can be removed only on the grounds specified in the Act aforesaid, and by no other method. The appointment of the applicant, it is urged, may appear to be on deputation, but his tenure of five years could not be curtailed and he had to enjoy his full tenure of five years. With a view to appreciate the contention raised by the learned counsel, it would be relevant to refer to some basic provisions of the Act of 1963. The Act applies, in the first instance, to the major ports of Cochin, Kandla and Vishakhapatnam, and the Central Government may, by notification in the official gazette, apply the provisions of the Act to such other major port, and with effect from such date, as may be specified in the notification. Board has been defined in Section 2 (b). Board, in relation to a port, means the Board of Trustees constituted under the Act for that post. Deputy Chairman has been defined to mean, as per Section 2(e), Deputy Chairman, or, as the case may be, a Deputy Chairman of a Board and includes the person appointed to act in his place under Section 14. Trustee, as per Section 2(y), in relation to a port, would mean a member of the Board constituted for the port. The Central Government shall cause to be constituted in respect of any major port a Board of Trustees to be called the Board of Trustees of that port, in view of provisions contained in Section 3, which shall consist of Trustees, amongst others, a Chairman to be appointed by the Central Government, and one Deputy Chairman or more, as the Central Government may deem fit to appoint. In view of provisions contained in Section 5, every Board constituted under the Act shall be a body corporate having perpetual succession and a common seal with power, subject to provisions of the Act, to acquire, hold or dispose of property and may be the name by which it is constituted, sue or be sued. Disqualifications for office of Trustee have been mentioned in Section 6. Section 6 reads as follows:
6. Disqualification for office of Trustee - A person shall be disqualified for being chosen as a Trustee, if he
(a) Has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude; or
(b) Is an undischarged insolvent; or
(c) Holds any office of profit under the Board:
Provided that this disqualification shall not apply to the Chairman or Deputy Chairman:
(d) Has, directly or indirectly, any share or interest in any work done by order of the Board, or in any contract or employment, with, by, or on behalf of the Board:
Provided that no person shall be deemed to have a share or interest in such work, contract or employment by reason only of his-
(i) Having a share in any company or firm which may contract with or be employed by or on behalf of the Board, or
(ii) Having a share or interest in any newspaper in which any advertisement relating to the affairs of the Board may be inverted, or
(iii) Being interested in any loan of money to the Board, or
(iv) Having a share or interest in any lease, sale, exchange or purchase of immovable property or any agreement for the same, or
(v) Having a share or interest in any license by the Board, or right by agreement or otherwise with the Board to the sole or preferential use of any railway siding or any berth for vessels in the docks belonging to the Board, or
(vi) Having a share or interest in the occasional sale to the Board, to a value not exceeding ten thousand rupees in any one financial year, of any article in which he trades. Term of office of Trustees, if they are Chairman or Deputy Chairman, as per Section 7 of the Act, would be during the pleasure of the Central Government. Every person elected or appointed by name to be Trustee shall hold office to which he is elected or so appointed, for a term of two years commencing on the 1st day of April next following his election or appointment, as the case may be. A person appointed by virtue of an office to be a Trustee shall, until the Central Government by notification in the official gazette otherwise directs, continue to be a Trustee so long as he continues to hold that office. Section 7 reads as follows:
7. Term of office of Trustees (1) The Chairman and the Deputy Chairman shall hold office during the pleasure of the Central Government.
(2) Subject to the provisions of this Act, -
(a) every person elected or appointed by name to be a Trustee shall hold office to which he is elected or so appointed, for a term of two years commencing on the 1st day of April next following his election or appointment, as the case may be;
Provided that the term of office of a member elected to represent any body of persons shall come to an end as soon as he ceases to be a member of that body;
(b) a person appointed by virtue of an office to be a Trustee shall, until the Central Government by notification in the official gazette otherwise directs, continue to be a Trustee so long as he continues to hold that office. We do not find any merit whatsoever in the contention of the learned counsel that Deputy Chairman appointed under the Act of 1963, who is also a Trustee, can be removed only as per provisions contained in Section 6, reproduced above. Chairman and Deputy Chairman are also Trustees, but their appointment is to be made by the Central Government. Not more than 19 persons in the case of each of the ports of Bombay, Calcutta and Madras, and not more than 17 persons in the case of any other port, shall be Trustees, which shall consist of such number of persons, as the Central Government may, from time to time, by notification in the official gazette, specify, to be appointed by that Government from amongst persons who are in its opinion capable of representing any one or more of such of the interests as mentioned in sub-clause (c)(i) of Section 3(1) of the Act. Sub-clause (c)(ii) of Section 3(1) deals with such Trustees who are elected. It is quite apparent from reading of the provisions of the Act that insofar as, Chairman and Deputy Chairman are concerned, they would hold office during the pleasure of the Central Government. Insofar as, other elected or appointed by the government Trustees are concerned, they shall hold office for a term of two years commencing on the 1st day of April next following his election or appointment, as the case may be. There may be a term of two years for other Trustees, as mentioned in Section 3, which may be curtailed only on the dint of disqualifications provided in Section 6, but insofar as, the Chairman and Deputy Chairman are concerned, they hold office at the pleasure of the Central Government. The applicant may have been selected as Deputy Chairman on the basis of applications invited by the government from various bodies, by virtue of which he may be a Trustee as well, and his tenure as specified in the order of appointment was five years, but the same could well be curtailed on the pleasure doctrine invoked by the respondents. In his endeavour, however, to convince this Tribunal that the term of the applicant could not be curtailed, and if curtailed, it would amount to dismissal, the learned counsel places reliance upon the judgment of the Honble Supreme court in Union of India & Another v Shardindu [(2007) 6 SCC 276]. Facts of the case aforesaid reveal that the respondent therein was informed on 31.12.2003 that he had been selected as Chairperson of National Council for Teacher Education (NCTE) for a period of four years or till he was to attain the age of 60 years, whichever was to be earlier. He was relieved by the UP Government on 21.1.2004 and he assumed charge of Chairperson, NCTE on 22.1.2004. It was alleged that while the respondent was working as Director, State Council for Educational Research and Training in the State of UP, an inquiry was conducted by the State Vigilance Commission at the behest of the State Government in respect of examination of 2001, in 2004. The Commission submitted its report on 27.3.2005, based upon which an FIR came to be registered on 19.9.2005 implicating seven persons including the respondent, and a separate order was passed by the State Government placing him under suspension pending commencement of disciplinary proceedings. When this fact came to the notice of the Union of India, it passed an order on 18.11.2005 terminating the deputation of the respondent as Chairperson, NCTE. This order was successfully challenged in writ petition before the Delhi High Court. Thus, the appeal before the Honble Supreme Court. The order impugned in the case aforesaid reads as follows:
The Central Government hereby terminates the deputations of Dr. Shardindu as Chairperson, NCTE, appointed on 22.1.2004 vide order No. 61-4/2003-D(TE) EE-10 dated 15.12.2003 and prematurely repatriates him to his parent cadre, with immediate effect. The main plea raised on behalf of respondent Shardindu was that his tenure could not be terminated as he was not on deputation. He was appointed under sub-section (3) of Section 4 of the National Council for Teacher Education Act, 1993, and his services could only be terminated in terms of Sections 5 and 6 of the Act. It was submitted that the respondent had not become disqualified under Section 5 of the Act, therefore, the Central Government could not remove him under Section 6. The plea of the Union of India was that the respondent was on deputation and the deputation period could be terminated. It was also submitted that his appointment was a pleasure appointment of the President under Art. 310 of the Constitution, and the Central Government being the appointing authority could terminate his services. Section 4 of the Act aforesaid laying down terms of office and conditions of service of members of NCTE, insofar as it is relevant, reads as follows:
4. (1) The Chairperson, Vice-Chairperson and the Member-Secretary shall hold office on a full-time basis.
(2) The term of office of the Chairperson, the Vice-Chairperson and the Member-Secretary shall be four years, or till they complete the age of sixty years, whichever is earlier.
(3) The conditions of service of the Chairperson, the Vice-Chairperson and the Member-Secretary shall be such as may be prescribed.
(4) The term of office of Members [other than the Members specified in clauses (a) to (l) and clauses (n) and (o) of sub-section (4) of section 3] shall be two years or till fresh appointments are made, whichever is later, and other conditions of service of such Members shall be such as may be prescribed. While dealing with the issue, the Honble Supreme Court observed that the distinction between statutory appointments and pleasure appointments has to be kept in mind. The pleasure appointments are such where the incumbents are appointed at the pleasure of the President, like Governors etc. As against this, statutory appointments are made under the statute and the service conditions of the incumbents are governed by the statute. They are not pleasure appointments. Governor appointed under the constitution is purely pleasure appointment or appointment of such nature which the incumbent holds at the pleasure of the President of the Government as the case may be. Such appointments may be cut short. Honble Supreme Court further observed that This appointment is for a fixed tenure after due selection under the Act. Therefore, this kind of deputation stands on an entirely different category. There appears to be vital distinction and difference between provisions of the Act of 1963 and the NCTE Act whereunder Dr. Shardindu was appointed as Chairperson, NCTE. In the case dealt by the Supreme Court, the appointment under provisions of the NCTE Act was on selection for a definite period. Minimum period for an incumbent to hold office had to be four years. It would be more if the age of the incumbent be such that from the date of his appointment to the date when he may attain 60 years of age, the period may be more. The minimum period was fixed under the statute. In the present case, whereas it may be true that the appointment of the applicant is under statute, i.e., the Act of 1963, but the provisions of the statute do not provide a fixed minimum tenure. In fact, the statute provides no period whatsoever and the term of appointment is on pure and simple pleasure of the Central Government. The appointment of the applicant may thus be statutory, but when the statute itself may not fix any period and the fact that the period may be only dependent upon the pleasure of the Central Government and the tenure as such might have been provided by virtue of instructions or guidelines, entirely different parameters shall have to be applied. By way of illustration, we may mention that not only under the provisions of NCTE Act but in number of statutes appointments are for fixed tenure. When, therefore, the minimum term may be statutorily fixed and the Government may like to curtail the same, this can be done only on the specified grounds that may be mentioned in the concerned statute itself. Such appointments, normally, would be called tenure appointments/posts and not posts held by persons on deputation. In a case where, therefore, the statute may not provide any minimum tenure and the same may be forthcoming from guidelines, and when even such guidelines may contain a pleasure doctrine to cut it short, no argument as advanced by the learned counsel that the same cannot be cut short, and if cut short without following the procedure for removal provided under the Act, the same would be illegal or arbitrary, can be accepted. The facts of the case relied upon by the learned counsel in Shardindu (supra), in our considered view, are distinguishable and cannot be applied to the facts of the present case.
17. The applicant, in our view, was appointed on the post of Deputy Chairman, KPT on deputation basis. Order dated 7.9.2006 appointing the applicant on the post aforesaid reads as follows:
I am directed to convey the approval Central Government under Section 3(1)(b) of Major Port Trusts Act, 1963 to the appointment of Shri Manoranjan Kumar, IES:86, OSD to the Minister of Textiles, New Delhi to the post of Dy. Chairman, Kandla Port Trust on deputation basis for a period of five years from the date of his taking over the charge of the post or until further orders, whichever event takes place earlier. The order itself states that the applicant would be on deputation basis for a period of five years from the date of his taking over the charge of the post or until further orders, whichever event was to take place earlier. While relieving the applicant also, in the order reproduced above, once again, the mention is of deputation. It is the case of the applicant as well that he was appointed on the post on deputation basis even though, he states that the appointment was for a period of five years and could not be curtailed. In support of his contention that the tenure of deputation even though, as mentioned in the order appointing the applicant, may be on the dint of a deputation policy, but the applicant would have an indefeasible right to hold 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 places reliance upon the judgment of the Honble Supreme Court in Union of India through Government of Pondicherry & Another v V. Ramakrishnan & Others [(2005) 8 SCC 394]. No policy recommending or specifying a period of five years on deputation on the post the applicant was appointed, has been mentioned in the Application or specified anywhere, or even shown during the course of arguments. A policy, however, to our notice is as set out in OM of April, 2004, but in the said policy as well even though, normal deputation tenure at different levels of Central Government has been prescribed, at the same time it has also been mentioned that the deputation tenure as prescribed would not confer any right on the officers to remain on deputation, and that the Government reserves the right to revert such officers to their parent cadres at any time without assigning any reasons. This Tribunal in Sunil Krishna v Union of India & Others (OA No.1729/2006 decided on 6.3.2007), held that the tenure deputation set out in the OM aforesaid 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 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), on which reliance is placed by the learned counsel for the applicant, 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, despite this, a deputationist has no indefeasible right to hold the said post. Ordinarily period of deputation should not be curtailed except on such just grounds for example, unsuitability or unsatisfactory performance. (emphasis supplied). The deputationist, as per the decision of the Honble Supreme Court, has no indefeasible right to hold the post but ordinarily, it should not be curtailed. 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 word ordinarily has been used. Assuming that the law laid down by the Supreme Court would apply even if there is no right with the Government to curtail the period of deputation, as per the discretion without any reason, even then it may not be correct to argue that the term of deputation can be curtailed only where deputationist is unsuitable or has unsatisfactory performance, as the word unsuitability or unsatisfactory are prefixed with the words on such just grounds. 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 such other grounds. However, even if no period is specified, still an order of repatriation can be questioned when the same may be actuated on the ground of allegations, which may be stigmatic, as also mala fides.
18. In service jurisprudence, deputation is treated to be assignment of an employee of one department or cadre to another department or cadre. The deputation is resorted to in public interest to meet exigencies of public service. It is a tripartite agreement. It is based upon consent and voluntary decision of the principal employer to lend the service of his employee, which decision has to be accepted by the borrowing department/ employer. It also involves consent of the employee. Deputation subsists so long as parties to tripartite agreement adhere to the same. The moment this tripartite agreement is repudiated, the employee would have no legally enforceable right to continue up to the agreed period of his deputation.
19. Supreme Court in Ratilal B. Soni & Others v State of Gujarat & Others [1990 (Supp) SCC, 243] has held that a deputationist 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 v Union of India & Another [AIR 2000 SC 2076] the Supreme Court has held 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 v State of Punjab [2005 (1) SLR 629], after taking into consideration the decisions of the Apex court in Kunal Nanda (supra), Ratilal B. Soni (supra), and Rameshwer Parshad v 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 even till the completion of the stipulated period of deputation. It is a tripartite contract and can be continued only if all the parties like it to continue.
20. The plea raised by the applicant that even though, the order of repatriation may appear to be innocuous, but the same is stigmatic in nature, the court can always lift the veil to find out the nature of the order, is not in dispute. As admitted at all ends, the court can always lift the veil and find out the real reasons behind the order, and if the same may be stigmatic, the principles of natural justice would be straightway attracted, and the employee cannot be shown the exit door unless he is heard in the matter. The controversy, insofar as the circumstances leading to repatriation of the applicant were such that it would be stigmatic or is because of some aspersions that might have been cast on the applicant, on facts, however, veers thick. We are of the considered view that as to whether the order is stigmatic or punitive or casts aspersions on the employee concerned, is always a question of fact and would depend upon the facts and circumstances of each case. No straitjacket formula can be laid. Before we may, however, see the facts leading to the order of repatriation of the applicant, we may only make a mention of three decisions one each of the Delhi High Court, Supreme Court, and this Tribunal, directly on the issue. In Union of India & Others v J. P. Verma & Another [98 (2002) Delhi Law Times 510 (DB)], the 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. Per contra, it was submitted on behalf of the respondent that the letter of NHRC was a foundation for passing the order of repatriation. A non-speaking innocuous order, it was further urged, 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 therefor. On the rival contentions of the learned counsel representing the parties, as mentioned above, 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 V. Ramakrishnan (supra), 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 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 further that 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 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 (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 innocuous. It was, however, urged that the form of the order was not conclusive and what was relevant was plain 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. We had called for the records of the case and examined the same with a view to find out the real reason for repatriation of the applicant in the said case. While giving a finding on facts, we 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, we 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.
21. Once, 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, the time is now ripe to see the factual position of the case.
22. 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. Before we may, however, refer to the records, we may make a mention of some patent and admitted facts. It may be recalled that the applicant has since put in 22 years of service. He has discharged various assignments under Ministry of Finance, Department of Economic Affairs (as Deputy Director and Director), under Ministry of Labour and employment (as Director) and has also served on Central Government deputation with the Ministry of Industry, Department of Industrial Policy and Promotion (as Deputy secretary). His service credentials as set out in the Application and as referred to in paragraph 2 hereinabove, which are really impressive, are not in dispute. His specific averment that due to an outstanding appraisal of his performance over the period of his service, he was entrusted with the present appointment as Deputy Chairman, KPT, is also not in dispute. The first respondent had invited applications for filling up the post of Deputy Chairman in two of the Major Port Trusts under Section 3(1)(b) of the Act of 1963, and officers belonging to all India Services/Group A Central Services, in the case of Deputy Chairman, KPT, were eligible to be considered, and that from amongst them the applicant was selected, is also not in dispute. His ACR dossiers have been made available to us. We may not make mention of various columns of his ACRs, as it might unnecessarily burden the judgment, which in the facts and circumstances of the case, in any case, has to be otherwise also a long one, but we may reproduce the remarks against the columns relating to overall gradings, integrity and inter-personal relations and team work in his ACRs between the period 1988-89 and 2005-06 as under:
Period/Duration Integrity Grading Inter-personal relations and team work 1988-89 Beyond doubt Very good He has very good quality of relationship with superiors, colleagues and subordinates. He appreciates others point of view and takes advice in the proper spirit. He has a good capacity to work as a team member and to promote team spirit and optimize the output of team.
1989-90 The officers integrity is beyond doubt Very good He is thorough gentleman in his behaviour with superiors and subordinates.
1990-91 Integrity of the officer is beyond doubt Very good His relationship with superiors, colleagues and subordinates is very good.
1.11.90 to 31.3.91 Nothing adverse has come to my notice He may be graded as an above average officer (Grading upgraded by the reviewing authority as Very good) He maintains cordial relations with superior officers, colleagues and subordinates.
1991-92 Certified For the reasons stated above I would rate him as an outstanding officer His relations with both superiors and subordinates are cordial. He always accepts constructive criticism and is an asset of the team in which he is placed.
1992-93 Certified Based on above, I would rate him outstanding His relations with superiors, colleagues and subordinates are cordial. He is receptive to the views of others and takes advice in good spirit. He is an asset in any team.
1993-94 Certified On the basis of above, I would rate him outstanding His relations with superiors and subordinates are very cordial. He is patient with the views of others and takes advice in the correct spirit. He is a welcome member of the team and contributes to its betterment.
1995-96 Beyond doubt Certified outstanding for the reasons given above Excellent. An extremely pleasing personality.
April 1996 to January 1997 High Outstanding Excellent 1997-98 Nothing adverse to knowledge For reasons recorded above, I would grade the officer OUTSTANDING Very good 1998-99 Nothing adverse to knowledge For reasons recorded above, I would grade the officer OUTSTANDING Very good 1999-2000 Nothing adverse reported Outstanding Very good 2000-01 Beyond doubt Outstanding The officer maintains excellent relations with superiors, colleagues and subordinates. A teams man.
2001-02 Beyond doubt Outstanding for the reasons stated in the report Excellent 2002-03 Beyond doubt Outstanding for the reasons stated in this report The officer kept excellent relations at all levels. He has excellent leadership qualities and makes an excellent member of the team.
31.12.04 to 31.03.05 Nothing adverse has come to my notice Because of his hard work, I grade him outstanding The officer maintained very good relations with his colleagues, subordinates and seniors. He is a very good team member.
01.04.05 to 09.01.06 Nothing adverse has come to my notice Because of his hard work, and sincere efforts to improve performance and managerial skills I grade him outstanding He maintained very good relations with seniors, colleagues as well as subordinates. He is a good team member and worked with good team spirit.
09.01.06 to 22.09.06 Certified and nothing adverse to knowledge Based on the above, I would rate him OUTSTANDING He is polite and cordial with superiors, friendly with colleagues and cordial with subordinates. He has all the qualities, that makes him an excellent team leader.
While holding the post of Deputy Chairman, Kandla Port Trust, the Chairman while assessing the working of the applicant from 25.9.2006 to 31.3.2007, gave overall gradings as follows:
Outstanding, during the six months of reporting. He has fully involved himself in maintaining the execution of fertilizers & wheat during the crisis period and reporting to various authorities. In the column general assessment, it has been mentioned as follows:
Reporting period, being 6 months, I consider the officer as of great potential, intelligence, outstanding communication skills and hard working. Against the column integrity, it has been mentioned Beyond doubt. It is also not in dispute that the period of the applicant on the post of Deputy Chairman, KPT was absolutely smooth without any hurdles or acrimony. The applicant assumed charge of the post of Deputy Chairman on 25.9.2006 and was given additional charge of CVO on 11.7.2007. Concededly, it is after appointment of the applicant as CVO even though, by way of additional charge, that things started happening. The applicant in his capacity as CVO, KPT, made eight or nine reports, reference whereof has been given hereinbefore. The report dated 27.9.2007 (Annexure A-15) is in the matter of M/s Friend Salt Works and Allied Industries. On 3.8.2008 the applicant addressed a letter to the Secretary, Government of India, Ministry of Shipping, stating therein that his report aforesaid would disclose prima facie commission of offences u/s 13(2) r/w 13(1)(d) Prevention of Corruption Act, and S.120-B and 420 IPC. The suspect in this case, amongst others, is Shri A. Janardhana Rao, the sitting Chairman, KPT. Shri A. Krishnan, Financial Adviser, Chief Mechanical Engineer, Chief Engineer, Tariff Manager, Secretary, Deputy Conservator and the Estate Manager, are also listed as suspects. CVC has advised the Ministry to take actions including referring the matter to CBI. It is the case of the applicant that the respondent Ministry had admitted incidence of criminal misconduct before the High Court of Gujarat, and a decision has already been taken to register cases under various Sections of IPC and Prevention of Corruption Act. The report made by the applicant on 9.8.2007 was against Container Freight Station (CFS) of M/s Seabird Marine Services for extending unauthorized facilities to a private firm. In this matter, the suspects were the Chairman Shri A. Janardhana Rao, besides the Financial Adviser, Chief Mechanical Engineer, Chief Engineer, Tariff Manager, Deputy Conservator, Secretary, Estate Manager, Chief Operation Manager and the Chief Medical Officer. CVC, it is stated, advised registration of case, the Ministry referred the matter for enquiry, and after receipt of investigation, CBI has registered case No.16(A)/2008 and raided houses of suspects. No action, it is the case of the applicant, has, however, been taken by the first and second respondents on the report of CVC. Chairman, KPT, it is further the case of the applicant, admitted misconduct of senior port officers implicitly in KPTs affidavit in the High Court of Gujarat, and CBI independently investigated the matter and has registered case RC-2A/GNR dated 31.12.2008 and raided houses of suspects on 3.1.2009. The applicant gave report in the matter of M/s Friends Oil & Chemical Industries on 21.9.2007 (Annexure A-17). Suspects in this case are the same Chairman, the Financial Adviser, Deputy Conservator and the Estate Manager. It is the case of the applicant that CVC is pressing hard for the Ministrys recommendation, yet so far no action has been taken by the first and second respondents on the report which was received in September, 2007. However, CBI has collected papers from KPT on 3.1.2009, and reported commission of offences u/s 13(2) r/w 13(1)(d) PCA and S.120-B and 420 IPC. It is the case of the applicant that the irregularities in creating posts and promoting officers out of turn have been tacitly admitted by the Ministry, but no disciplinary action has, however, been undertaken so far. In the matter of hiring of tugs from bidder other than lowest qualified bidder, it is the case of the applicant, CBI on its own has investigated and registered case No.12(A)/2008/GNR. Out of the reports referred to above, insofar as, at least three reports of the applicant are concerned, it would appear that action has been taken or is in the offing.
23. It also appears from the records of the case that in the meantime, some complaints were received against the applicant as well. From the concerned records itself, it would reveal that the respondents received as many as 13 complaints against the applicant. Three complaints dated 10.11.2007, 19.11.2007 and 19.12.2007 have been made by one Mohan K. Aswani, Gen. Secy., INTUC (Gujarat). Complaint dated 20.11.2007 is by Kandla Port Officers Association, whereas complaint dated 2.2.2008 is by Kandla Port Karamchari Sangh. Complaint dated 8.4.2008 is by Shri H. C. Venkatesh, Tarriff Manager. Complaints dated 25.3.2008, 26.3.2008, 7.7.2008 and 18.7.2008 are again by Mohan K. Aswani. Complaint dated 19.4.2008 is an anonymous complaint forwarded by Chairman, KPT. Complaint dated 29.1.2008 is by Shri Krishnan A., FA/CAO, KPT, while the one dated 18.4.2008 is by Gandhidham Chamber of Commerce & Industry. Reference in the concerned file is also with regard to complaint made by the applicant dated 4.7.2007 against Shri A. Janardhana Rao, then Chairman, while complaints dated 25.2.2008, 19.3.2008, 24.3.2008, 6.4.2008, 21.4.2008, 11.4.2008, 17.4.2008 and 25.7.2008 are against Shri Praveen Agarwal, Chairman I/C. The first note on the file dated 1.8.2008 recorded by Dir. (PHRD), after making mention of the complaints aforesaid, reads as follows:
Besides the above complaints a list of complaints pertaining to Vigilance Section has also been placed at Flag A. The lists are submitted for kind perusal, as desired. Note dated 2.8.2008 of JS(P) reads as follows:
Pl. consult our ASG, Shri R. Mohan in the matter. As advised, file be put up thereafter. The next note dated 4.8.2008 of Dir. (PHRD) reads, thus:
Talked to ASG along with US (PE) and briefed JS(P). A detailed note be put up. This note is signed by another authority, US (PE) also on 5.8.2008. Mention thereafter is of the matter having been discussed with Dir. (PHRD). The detailed note put up for consideration before the authorities dated 7.8.2008 reads as follows:
Shri Manoranjan Kumar (IES:86) was appointed as Dy. Chairman of Kandla Port Trust (KPT) vide order dated 07.09.2006. Prior to joining in KPT, he was working as PS to Honble Ministry for Textiles, Shri S. S. Vaghela. Subsequently he was given the charge of CVO of the Port as additional charge by the Department. Ever since his joining, this deptt. Has been getting numerous complaints against Shri Manoranjan Kumar. Many such complaints were anonymous/pseudonymous in nature. On the basis of several such complaints against Shri Manoranjan Kumar, orders relieving him from duties of Dy. Chairman were issued with the approval of Honble Minister (S,RT&H). However, the relieving orders were subsequently withdrawn in the wake of a stay from Honble CAT and he was allowed to continue to function as Dy. Chairman.
2. The complaints against him continued to pour in the Ministry even after assignment of charge of Chairman, KPT to Shri Praveen Agarwal, Chairman, Margao Port Trust. The Chairman-in-charge has written to us about the various activities of Shri Manoranjan Kumar that are hindering the progress of the Port. It was also pointed out by the present Chairman that his continuance in the Port is creating adverse effect on the development of the Port. He has also highlighted the fact that the Dy. Chairman is not contributing for the development of the Port, rather he is acting as a stumbling block on the development of the Port. This being the present status of the Kandla Port, it would be worthwhile to examine the complaints received against Shri Manoranjan Kumar in some more detail.
3. Shri M. K. Aswani, General Secretary, INTUC in his complaint dated 10.11.07 had accused Shri Manoranjan Kumar of misusing his official position as CVO and making vague and unwarranted reports to the higher authorities with the intention to mislead them while continuing his dishonest activities. He also alleged Shri Kumar of discouraging trade and users for business at Kandla by asking them to opt for other private ports, bringing in political influence to the Government, making huge expenditure in addition/ alteration of his chamber and Port allotted bungalow, delaying Project proposals of KPT, etc. etc. It was also alleged that the Dy. Chairman had instigated the unions to go on strike.
4. The then chairman, KPT on these complaints had commented in his letter 29.01.08, that ever since Shri Manoranjan Kumar had taken over as Dy. Chairman, the proposal submitted by various HODs have been getting delayed for final disposal as he was in the habit of seeking irrelevant details which delayed the proposals. Chairman had also stated that he was in the habit of behaving with officers in a threatening manner and suspicious angle giving embarrassment to the officers in their day to day working.
5. Other HODs of KPT had also commented that the Dy. Chairman had developed an attitude of suspecting foul play in almost every activity of the Port by belittling the dignity and integrity of his subordinates and he has failed to maintain cordial relations with employees thereby vitiating the office atmosphere and creating an environment of ill-will, hatred and groupism in the Port which demoralizes many senior officers in the Port and was also the reason for slow development of the Port.
6. Shri Mohan K. Aswani in his subsequent letter dated 19.11.07 had alleged that the Dy. Chairman was trying to influence users of the Port by threatening them and boasting about his connection with senior officers at Delhi. In his letter dated 19.12.07 again Shri Aswani had highlighted the adverse effect the Port was facing because of the way of functioning of the Dy. Chairman.
7. Subsequently this deptt. Has also received a representation from Secretary, KPT Officers Association highlighting the demoralization of officers on account of the functioning of the Dy. Chairman. They had highlighted the failure on the part of the Dy. Chairman in slowing down the Port related work while alleging the numerous amounts of money spent by the Dy. Chairman for renovation of his accommodation and also for providing security guards at his accommodation.
8. Another complaint was received from Kandla Port Karamchari Sangh besides other complaints from Shri Aswani dated 25.3.08 and 26.3.08 requesting for a stern action against Shri Manoranjan Kumar. They have alleged that his activities in KPT were meant to help private ports nearby. In addition, Shri H. C. Venkatesh, Tariff Manager of KPT vide his complaint dated 8.4.08 has also alleged that Shri Manoranjan Kumar had shown disrespect to National Commission for SC/ST by willfully refusing to meet its Chairman on his visit to KPT.
9. In his report dated 20.5.08, the Chairman of KPT had made the following observations:
(a) Shri Manoranjan Kumars contribution to even routine work was found to be counterproductive and insignificant. His negative approach to the work of his subordinates and superiors alike has obstructed the smooth flow of work. His notings on the files are not only bereft of any constructive suggestions or guidance but some times are of even threatening nature. My official instructions relating to the works are treated by him with pre-judice. In the Board Meeting held on 24.3.2008, he being the Trustee from Port side, instead of supporting an Agenda Item on Dredging, was trying to find faults on the Item and was not only fighting tooth and nail to ensure that the item is rejected by the Board, but was also unbecoming an officer of the Board.
(b) The Gandhidham Chamber of Commerce and Industry also vide their letter No. GCCI/808 dated 8.12.2007 addressed to the Honble Prime Minister of India forwarded by Ministry of Shipping under letter No. PT-17011/1/2008-PT dated 3.1.2008 criticised the working style of Shri Manoranjan Kumar, Dy. Chairman and CVO and requested to investigate the matter and replace the unfriendly and negative official from KPT to avoid tarnishing the good image of KPT maintained so far.
He apparently had a secret meeting with Shri Ashok Bhatt, Honble Home Minister and Speaker of Gujarat Legislative Assembly during his visit to Gandhidham on 13.4.2008 on the eve of inauguration of newly constructed SRC A.O. Building and provided him complete details of KPT lands, possibly with a view to facilitate Gujarat State taking over Vadinar and Kandla Township Land. This seems to have been confirmed by Shri Ashok Bhatt during his inaugural speech on the occasion.
(c) He is habituated to evade responsibility and prefers to remain on leave even though he is commanding number two position in the Port and his continuous inaction to various proposals of the organization has led to a disturbed working atmosphere and the Heads of Department of the Port are compelled to request for sanction of the Chairman through Fax and Telephone from Goa. Instead of guiding his subordinates and assisting his superior, he always prefers to report the matter of KPT directly to the CVC and the Ministry without the knowledge of the chairman.
10. Earlier Shri Praveen Agarwal had forwarded an anonymous letter along with a CD received by him containing portion of a speech made by Home Minister of Gujarat. It had been mentioned that Shri Manoranjan Kumar had been persuading BJP Legislators and Ministers of Gujarat State to take over the administration of Kandla Port offshore lands.
11. In their letter dated 18.4.08, Gandhidham Chamber of Commerce and Industry have also requrested for transfer of Shri Manoranjan Kumar from Kandla for the better development of the Port. In addition,
12. As stated in para 1 above, based on similar complaints only, it was decided at the level of Honble Minister to relieve Shri Manoranjan Kumar from the post of Dy. Chairman. However, he was reinstated as the said order was stayed by the Honble CAT in its interim order dated 8.2.2008. Now in its order dated 11.7.08 the Honble CAT, in a self contained judgement covering all the related issues, has upheld the Govts right to take appropriate measures as situations might justify. Also in an identical court case in 1993 filed by Shri D. K. Rao, the then Dy. Chairman, VPT, the Andhra Pradesh High Court had held that pre-mature termination of deputation was not by way of punishment and that deputation was at the pleasure of Central Govt. under Section 7(1) of the Major Port Trusts Act. In other words, the Principal Bench of CAT in the case filed by Shri Manoranjan Kumar and Honble High Court of AP in the case filed by Shri D. K. Rao have endorsed the authority of the Central Govt. as per the provisions of MPT Act in the matter of continuance or otherwise of deputation of an officer as Dy. Chairman in a Port. As per Section 7 of the Major Port Trusts Act the Chairman and Dy. Chairman shall hold office during the pleasure of the Central Govt.
13. To sum up, from the foregoing facts it is clear that the acts of omission and commission on the part of Shri Manoranjan Kumar, while functioning as Dy. Chairman have been detrimental to the development/growth of Kandla Port. This Port was occupying number 1 position in 2006-07 in terms of Cargo Handling and now has slipped down. The style of functioning of Shri Manoranjan Kumar might have a negative and demoralizing effect on the officers and employees of the port. This is also reflected in their lower output in various port operations. The Chairman has categorically stated that the Dy. Chairmans contribution to the port has been nil and in fact his presence in the port is having an adverse effect to the port.
14. This being the position, the Govt. may consider repatriating him to his parent department by prematurely reverting him from the deputation in pubic interest. This being an action on administrative exigencies, in no way should be considered as a punitive action against the officer. The pleasure of the govt. as envisaged under Section 7 of the Major Port Trusts Act may be withdrawn so that he can be repatriated to his parent cadre.
15. In the event his repatriation is ordered, it may also be considered whether an officer of the Department, preferably DS(PO) may be asked to take the charge of the post of Dy. Chairman and Chief Vigilance Officer, KPT, as additional charge, till regular arrangements are made. This would also ensure immediate implementation of our orders, if issued.
Submitted for orders please. On the same day, when the note was put up to Dir. (PHRD), he recorded as follows:
As desired, the complaints received in PE have been examined and the above description indicates the environment situation in KPT due to complaints against the present Dy. Chairman and its negative impact on the working of the port. Submitted for orders please. On the same day again, the matter appears to have been put up before JS(P), who recorded the following note:
Notes above for kind perusal. The continuance of Shri Manoranjan Kumar as Dy. Chairman & CVO of KPT is not conducive either to the efficient working of KPT nor to fostering better interpersonal relations among senior port functionaries. He may be repatriated to his parent cadre with immediate effect.
In terms of a High court order in respect of Shri D. K. Rao, then Dy. Ch. of VPT, this is not to be construed as a punitive action. The most recent CAT order in Shri Manoranjan Kumars case empowers the GoI to take such action against the official.
Paras 14 & 15 of pg. N/7 are submitted for approval. Vide the very next note on the very same day, i.e., 7.8.2008, a decision was taken by Secretary (S), Ministry of Shipping, Road Transport & Highways, to give additional charge of Deputy Chairman & CVO, KPT to Shri G. S. Rao, being the senior most HOD. Draft order for approval was prepared on 8.8.2008, and on the very same date, it is admitted position, the applicant was relieved and repatriated.
24. Before we may give a finding on facts, we may only mention that the respondents urged that this Tribunal may not go into this issue at all, as the point has not been specifically taken in the OA. Judgment of the Andhra Pradesh High Court in D. K. Rao v Government of India & Others [1994 (2) ALT 646 (DB)] in support of the contention has also been cited during the course of arguments. We would, however, not make reference to the judicial precedent as above, as in our view, it cannot be said that the plea as mentioned above, has not been raised in the OA. In paragraph 4.7 of the OA, it has been pleaded that even though, the tenure of a government servant is at the pleasure of the President but the same is subject to the express constitutional limitations imposed under Article 311(2), namely, observance of principles of natural justice where action is being taken based on some charges leveled against the government servant. In the same very para it is pleaded that the pleasure doctrine should be invoked in public interest and for public good only and cannot be permitted to be reduced to an arbitrary, unbridled, uncanalised and whimsical power vested in an appropriate authority to be exercised for victimizing honest, devoted and upright government servants, and most importantly, the form of the order is not conclusive. It is further pleaded that if an order simpliciter withdrawing pleasure is based upon penalty, extraneous considerations and to shield corrupt deeds in malicious way which is sought to be exposed by the officer concerned from whom the pleasure is withdrawn, then this Tribunal can go behind the order, summon the records and in the event that the same is found arbitrary, unreasonable, mala fide and in colorable exercise of power, then the same can always be set aside. In para 4.8 it is mentioned that the underlying principle of pleasure doctrine and the limitations imposed under Art. 311(1) and (2) of the Constitution become operative in full vigour and force if an order of reversion is made by the Central Government in ostensible exercise of its pleasure which is in face made by way of penalty in a mala fide manner and for collateral purpose. We are not inclined to agree with the contention raised by the learned counsel representing the respondents that the plea as mentioned above has not been raised in the pleadings.
25. It is proved on records of the case that consideration of repatriation of the applicant starts on receipt of complaints against him. Out of the 13 complaints specifically mentioned in the file, as mentioned above, as many as seven complaints are by Mohan K. Aswani, General Secretary, INTUC, whereas the other six are by persons mentioned in para 22 hereinbefore. Mention in the concerned file is also of the complaints by the applicant, but while proceeding in the matter, no reference of the same has been made at any place whatsoever. The first note on the file dated 1.8.2008, after making a mention of complaints aforesaid, records that besides the said complaints, a list of complaints pertaining to vigilance section had also been placed at flag A . The list was submitted for perusal, as desired. On the next day, it appears that the respondents consulted ASG, Shri R. Mohan. It is not made clear as to whether ASG Shri Mohan was consulted on the position of law even though, it may prima facie appear that the consultation was on legal issues. After consultation with ASG and briefing of JS(P), the order was to put up a detailed note. For the time being, we may not be concerned with the inaccuracies in the note aforesaid as pointed out by the counsel for the applicant. We are mainly concerned as to whether the complaints and the detailed note would reflect only on unsuitability or unsatisfactory performance of the applicant or the same borders on casting aspersions, or even beyond that. The first order repatriating the applicant is stated to be on the ground of numerous complaints having been received against him, which were anonymous/pseudonymous in nature. It is admitted in the note that the first order of repatriation of the applicant was passed on the basis of such complaints. After making a mention of the stay order passed by this Tribunal, and also making mention that the applicant was allowed to continue to function as Deputy Chairman, KPT, it is stated that the complaints against the applicant continued to pour in. Reference of the letter written by Chairman-in-charge about various activities of the applicant hindering the progress of the port, has also been made. Continuance of the applicant, as per the letter aforesaid, was creating adverse effect on the development of the port. The applicant was stated to be a stumbling block on the development of the port. While referring to the complaints made by Mohan K. Aswani, General Secretary, INTUC, it has been mentioned that the applicant was accused of misusing his official position as CVO, making vague and unwarranted reports to the higher authorities with the intention to mislead them while continuing his dishonest activities. Reference in the complaint is also to the allegations of the applicant discouraging trade and users for business at Kandla by bringing in political influence to the Government, making huge expenditure in addition/alteration of his chamber and the port-allotted bungalow, delaying project proposals of KPT, etc. Reference then is of another complaint of the then Chairman accusing the applicant of delaying final disposal of proposals. The applicant is alleged to be in the habit of seeking irrelevant details which would delay the proposals. He is also alleged to be behaving with officers in a threatening manner and suspicious angle giving embarrassment to officers in their day-to-day working. While referring to comments of other HODs of the port, the applicant is alleged to have developed an attitude of suspecting foul play in almost every activity of the port by belittling the dignity and integrity of his subordinates, and failing to maintain cordial relations with employees thereby vitiating the office atmosphere and creating an environment of ill-will, hatred and groupism. We may then make a mention of representation from Secretary, KPT Officers Association highlighting the demoralization of officers on account of functions of the applicant as Deputy Chairman, resulting into slowing down of port related work, while alleging huge amounts of money being spent by the applicant for renovation of his accommodation and for providing security guards at his accommodation. In another complaint received from Kandla Port Karamchari Sangh, the allegation against the applicant is stated to be that his activities in KPT were meant to help private ports nearby, requesting a stern action against him. Mention is of yet another complaint wherein the applicant is alleged to have shown disrespect to the Chairman, National Commission for SC/ST by wilfully refusing to meet him. In his report dated 22.5.2008 by the Chairman, the allegation against the applicant that his contribution to even routine work was found to be counterproductive and insignificant. The Gandhidham Chamber of Commerce and Industry in its complaint is stated to have criticised the working style of the applicant and requested to investigate the matter and replace the unfriendly and negative official from KPT to avoid tarnishing the good image of the port. It is mentioned that apparently, the applicant had a secret meeting with Shri Ashok Bhatt, Home Minister and Speaker of Gujarat Legislative Assembly and provided him complete details of KPT lands, possibly with a view to facilitate Gujarat State taking over Vadinar and Kandla Township land. It is stated that this meting was confirmed by Shri Ashok Bhatt during his inaugural speech on the occasion. The applicant is stated to be habituated to evade responsibility and prefer to remain on leave, even though he may be commanding number two position in the port. His continuous inaction to various proposals is stated to have led to a disturbed working atmosphere. Mention is also of an anonymous letter forwarded by Shri Praveen Agarwal along with a CD containing portion of a speech made by Home Minister of Gujarat. The applicant is stated to have been persuading BJP legislators and Ministers of Gujarat State to take over the administration of Kandla Port offshore lands. Mention is then of another complaint by Gandhidham Chamber of Commerce and Industry requesting for transfer of the applicant out of Kandla for better development of the port. The mention is then with regard to orders passed by this Tribunal as also by the AP High Court, with which we would deal later. Suffice it to say that the detailed note sums up, from various complaints referred to above, that the functioning of the applicant as Deputy Chairman and CVO is detrimental to the development/growth of the port, and further that because of the negative and demoralizing effect on officers and employees, performance of the port has gone down. In fact, it is stated that the Chairman has categorically stated that the applicants contribution to the port has been nil. It is in this background that the Government was asked to consider repatriating the applicant to his parent cadre by prematurely terminating his deputation. On the same day when the detailed note was put up before the concerned authority, it clearly mentioned that the complaints have been examined, and it is due to the complaints against the applicant and the negative impact on the working of the port, that the matter needs to be considered. On the very same day, the matter was put up before another authority and it was recorded that the continuance of the applicant is not conducive either to the efficient working of the port nor to fostering better interpersonal relations among senior port functionaries, and that he may be repatriated to his parent cadre. On the same day, decision was taken by the Secretary (S), Ministry of Shipping to give additional charge of Deputy Chairman & CVO to Shri G. S. Rao, and draft order for approval to repatriate the applicant was prepared on 8.8.2008 and on the same day, the applicant was relieved.
26. From the file produced before us, which has been examined in all its minute details, a firm finding of fact has to be recorded that the complaints made against the applicant accusing him not only of unsuitability and unsatisfactory performance etc., but also on various aspects clearly casting serious aspersions including approaching politicians for taking over the offshore lands of the port, misusing his position in various regards including renovation of his accommodation and for providing security guards at his house, and even helping private persons, were the foundation for passing the order impugned in the present Application. We find considerable merit in the contention raised by the learned counsel representing the applicant that the order even though, innocuous, on lifting the veil, is because of the alleged misconduct indulged in by the applicant on variety of matters, and not only on his unsuitability and unsatisfactory performance.
27. The respondents would, however, contend that the concerned file containing the material, way and manner the applicant was repatriated would, at the most, show that he was found to be unsuitable for the job or his performance was unsatisfactory. In our considered view, this argument has to be repelled, as surely, the complaints which were definitely taken into consideration, contained variety of allegations against the applicant which would certainly constitute misconduct. It appears to us that even though, the complaints against the applicant were the foundation for repatriating him to his parent cadre, a strategy to give it a legal colour was adopted by making a mention that examination of complaints would indicate the environment situation in the port due to complaints against the applicant and its negative impact on the working of the port, and further that continuance of the applicant would not be conducive either to the efficient working or to fostering better interpersonal relations among senior functionaries. We may give reasons for arriving at the finding as mentioned above. When first repatriated vide order dated 31.1.2008, the applicant was able to obtain stay of operation of the impugned order from this Tribunal. It is the case of the respondents themselves, as noted in the detailed note reproduced hereinabove, that the first repatriation of the applicant was on the basis of anonymous/pseudonymous complaints. Vide the order aforesaid the applicant was also granted three months leave as admissible to him. It is clear from the pleadings and records of the case that the respondents withdrew the said order simply for the reason that the same could not possibly stand scrutiny of the court and would be set aside. It is quite apparent that the respondents had no intention whatsoever to continue the applicant on the deputation post after withdrawing the said order as well. Indeed, that is the case set up by the applicant as well. It is the case of the respondents, mentioned in the concerned file, and in particular, in the detailed note reproduced above, that the applicant was repatriated vide order dated 31.1.2008 as there were anonymous/pseudonymous complaints against him. There is no reference of any specific complaint. It is not in dispute that till such time the applicant came to occupy or hold the additional charge of CVO, there were no complaints against him. From the records handed over to us, it would appear that there was no complaint against him made by any individual official of the port before 31.1.2008, but for three complaints dated 10.11.2007, 19.11.2007 and 19.12.2007 that came to be made by one person only, namely, Mohan K. Aswani, General Secretary, INTUC, before 31.1.2008. The only other complaint against him is dated 20.11.2007 by Kandla Port Officers Association. It is interesting to note that only complaint dated 10.11.2007 by Mohan K. Aswani is available on the file. The same enlists as many as 21 allegations against the applicant, with the caption Proposed allegation and charges against Dy. Chairman, Kandla Port Trust. There is no specific instance with regard to any of the general complaints made enlisted from serial number 1 to 21. We have absolutely no doubt in our mind that if it would have been the case of the respondents as noted above that repatriation of the applicant vide order dated 31.1.2008 was because of anonymous/pseudonymous complaints, the same may not have stood scrutiny of law. Further, the order to the effect granting three months leave to the applicant without his making any request, thus virtually directing him to remain without any job for three months, was per se illegal and without jurisdiction. The pleading made in the written statement that the order was withdrawn thinking that the applicant would now devote himself to his duties and work for benefit of the port, appears to be patently incorrect and false. We may give the sequence of events at this stage, which would fortify our conclusion that the innocuous order was only a strategy to give a legal colour to the order. Aggrieved by order dated 31.1.2008 repatriating him to his parent cadre, the applicant filed OA No.302/2008 before this Tribunal. The same came up for admission on 7.2.2008. While issuing notice to the respondents returnable on 21.2.2008, the Tribunal stayed operation of the impugned order. The order dated 7.2.2008 has since already been reproduced in paragraph 8 hereinabove. The interim protection granted to the applicant was continued vide order dated 21.2.2008, which reads, Counsel for respondents seeks and allowed four weeks time to file reply. List on 31.3.2008. IR to continue. The first respondent filed a brief reply dealing with the allegations. The applicant submitted his rejoinder inter alia praying for calling of the records of the first and fourth respondents pertaining to various inquiry reports submitted by the applicant as CVO, KPT. It is the case of the applicant that after passing of the interim orders referred to above, there was a clear and discernible change in the attitude and demeanour of the Chairman towards the applicant; the clear and unequivocal message being that though the interim order might have prevented the relieving of the applicant from his charge of Deputy Chairman and CVO, KPT, he was to be prevented under all circumstances from exercising any of powers that were a necessary adjunct to the charge held by him, or from participating in the day-to-day management and running of the affairs of the port. Prior to passing of the order dated 31.1.2008 the applicant had access to all correspondences from and to the port. He was thereafter denied access to such correspondence. Dr. G. S. Rao was given the charge of Chairman, KPT on a temporary basis, despite being junior to the applicant. The applicant was not allowed to even meet the statutory duties as a trustee. He was denied all access to KPT papers. He was denied meetings of the port with its users as well. Financial powers of the applicant as Deputy Chairman were ceased, it is the case of the applicant, on verbal and written orders of the Chairman-in-charge. Subsequently, Chairman of Mormugao Port was given additional charge of Chairman, KPT. It is the case of the applicant that in the very first meeting with the applicant on 22.2.2008, the third respondent threatened and claimed that he would withdraw all his powers and would not give any work to him, even if there was a court order and even if the applicant was to win the case. Despite interim orders dated 7.2.2008 thus, the applicant was not allowed to act as Deputy Chairman. The following orders thereafter came to be passed by the respondents:
(i) Order dated 22.2.2008, stating inter alia that In the meantime, since, in accordance with the provisions of the Major Port Trusts Act, 1963, particularly, Section 3, Section 7 and Section 21, the Deputy Chairman exercises the powers and duties only subject to approval of Central Government, it is the prerogative and discretion of the Central Government to allocate duties and works to Deputy Chairman. In the instant case, the Central Government in exercise of its jurisdiction had divested Shri Manoranjan Kumar of his duties and powers, and that In the circumstances, till the matter is decided by the Honble Central Administrative Tribunal, Shri Manoranjan Kumar will attend to the work concerned only with Security and Safety matters of the Port;
(ii) Order dated 23.2.2008 stating inter alia that the applicant would be attending forthcoming meetings of the Board only for issues concerning the security and safety of the Port, and that he would not be required to be physically present in the other Board meetings unless specifically required by the Board;
(iii) Order dated 23.2.2008 requiring the applicant to hand over all the files in his possession other than those relating to safety and security matters of the port to the office of Chairman forthwith; and
(iv) Order dated 23.2.2008 stating that in the absence of Chairman, the Tariff Manager would coordinate the work of KPT with other HODs and any work of important nature involving policy decision was to await the Chairmans return.
Copies of the orders aforesaid have been placed on records. Despite divesting the applicant of almost all the duties that he had to statutorily perform as Deputy Chairman, and despite the stay granted by this Tribunal, the applicant was virtually made to look after only the safety and security matters of the port. In the circumstances aforesaid, the applicant filed a contempt petition before this Tribunal. He simultaneously filed a misc. application bearing MA No.449/2008 in the OA aforesaid for quashing orders dated 22.2.2008 and 23.2.2008 issued by the third respondent, and for restraining the respondents from obstructing/interfering with the exercise of powers and performance of functions by the applicant as Deputy Chairman and CVO, KPT. Vide order dated 14.3.2008, the Bench of this Tribunal comprising Members other than those who had stayed operation of order dated 31.1.2008, vide orders dated 7.2.2008, stayed the operation of orders passed by Chairman, KPT dated 22.2.2008 and 23.2.2008. The Tribunal in consideration of rival contentions of the learned counsel representing the parties, passed order dated 14.3.2008, operative part whereof reads as follows:
11. Resultantly, for the foregoing reasons, operation of the orders passed by the Chairman on 22.2.2008 and orders of even date 23.2.2008 as appended with the MA is stayed. Respondents are directed to restore back the duties and functions performed by the applicant before 31.1.2008 attached to the post of Deputy Chairman. The contempt matter, however, came up for hearing on 2.4.2008, when a submission was made on behalf of the respondents that the order dated 31.1.2008 relieving the applicant had since already been withdrawn on 20.3.2008. Recording that submission, the contempt matter was closed. However, the applicant moved an application seeking recall of order dated 2.4.2008. After hearing the parties on 10.4.2008, the order aforesaid was recalled. The Bench dealing with the matter, while accepting the contention raised on behalf of the applicant that withdrawal of the order dated 31.1.2008 would not result into closure of the contempt matter, however, vide orders dated 11.7.2008, observed that this is a case where principally a person is hauled up for contempt who was not a party to the proceedings at any time. The first respondent, Chairman, it was observed assumed office on 22.2.2008, which was after the interim orders were passed by this Tribunal, non-compliance whereof was complained. It was also observed that in fact, it was the Central Government which was accused as at fault, and that by the time the first respondent-Chairman assumed the charge, the applicant had been admitted to duties. It may be recalled that the operation of orders giving rise to the contempt matter was stayed by this Tribunal vide orders dated 14.3.2008. It appears the reference in the order that the applicant had been admitted to duties would be only relatable to order dated 14.3.2008 passed by the Tribunal. The Bench further observed that the applicant was admitted to duties but the order itself could not have been interpreted as a curtailment on the powers of the Central Government or the Chairman to delegate to him duties and functions, which they deemed appropriate, and that in any case, the interim order relied on could not have been understood as unqualified direction covering this region, and bona fide consequential orders could not have ipso facto led to a presumption that there was contempt. The aforesaid observation may be good enough to close the contempt matter, as surely, commitment in contempt, which is to be proved like a criminal charge, has to be established beyond reasonable doubt. The fact, however, remains that by the orders referred to above, the applicant was hardly left with any job to do as Deputy Chairman. He was only to look after the safety and security matters of the port. The order dated 31.1.2008 repatriating the applicant was withdrawn on 20.3.2008. The order now challenged has been passed within a period of four and a half months of withdrawal of the earlier order of repatriation. It is the case of the applicant, which on the basis of pleadings and records, appears to be correct, that for this period as well, he was not permitted to breathe freely and was fettered with all clogs in discharging his duties. In the rejoinder filed by the applicant, it has been pleaded that since February, 2008, the Port is without a regular Chairman and the third respondent would visit the Port for not more than a couple of days or two in a month, and that with all constraints the applicant has contributed to smooth functioning of the Port and has contributed positively on almost all files and issues that cropped up in the Port. It is further pleaded that Shri Agarwal ought and should have appreciated efforts made by the applicant, which have led to tremendous increase in traffic and motivation of the Port, which was functioning without a Chairman, and that in his pursuit to undermine the confidence of the applicant and functioning of the Port, Shri Agarwal never delegated any power although he was hardly present at Kandla. The applicant, it is then pleaded, with considerable efforts managed not to let port operations to lax, although even for employing casual workers for crucial operations at the port, he was made to wait at times for five days to receive sanction from Shri Agarwal, who would mostly remain away and would not delegate powers, as would be seen from the document dated 28.7.2008 (Annexure A-90), which would also confirm that orders issued by Shri Agarwal on fax were also routed through the applicant and not otherwise. The third respondent would not delegate powers even when he was not at the port and he withdrew power of the applicant to supervise HODs, by passing order dated 20.3.2008 (Annexure A-91). This order is said to be against law and procedure in major ports. It is further pleaded in the rejoinder that Shri Agarwal obtained an anonymous and frivolous complaint on 19.4.2008, and on the same day without verifying the content of the same, recommended action against the applicant, claiming that the applicant had a confidential meeting with Home Minister of Gujarat in Gandhidham on eve of 13.4.2008, though the Minister was not in Gandhidham. Vide letter No.16011/2/2009-PE-I, it is pleaded, Shri Agarwal willfully and falsely reported to the first respondent that the applicant had not cooperated with the National Commission for SC/ST on 25.3.2008. Security cover which was extended to the applicant by Gujarat Police in December, 2007 following unearthing of massive land scam, and on specific advice of CVC, was sought to be withdrawn by Shri Agarwal vide his letter dated 22.5.2008; CISF officials on duty were taken off on 26.5.2008 despite CVC instruction to not to intervene with security arrangement provided to Dt. Chairman and CVO. Shri Agarwal stated that we are at a loss to figure out how and under which head payment of bill amounting to Rs.4.00 lakhs raised by the local police authorities for providing security to Shri Manoranjan Kumar will be paid. It is the case of the applicant that it was a willful act of creating false and mala fide records as there was no bill raised by Gujarat Police and the same was confirmed by the Superintendent of Police. It is further his case that his powers and duties as given in the job description and operational control, were completely withdrawn by the Chairman. From the narration of facts and circumstances as fully detailed above, we find considerable merit in the contention raised by the learned counsel representing the applicant that order of repatriation dated 31.1.2008 was withdrawn not with a view to give another chance to the applicant to improve his efficiency, as is claimed in the counter reply, but the same was for the reason that it would not stand factually and legally in the pending petition challenging the same. It further appears to us that in fact and reality, the time after withdrawing the order of repatriation dated 31.1.2008 was utilized to find out ways and means to ease out the applicant. The respondents, it appears, unequivocally and irretrievably had taken a decision in their mind that the applicant would not be allowed to work as Deputy Chairman and CVO come what may and whatever be the circumstances. Aftermath of the second repatriation order dated 8.8.2008 would further fortify our view.
28. When the present OA came up for hearing before us on 19.8.2008, we recorded the following order:
On repatriation of the applicant, earlier in point of time, he came to this Tribunal and filed OA No. 302/2008, which came up for hearing on 7.2.2008 and we passed the following order:
(already reproduced in para 8 hereinabove)
2. The impugned order of repatriation was withdrawn in March, 2008, thus rendering the aforesaid OA to be infructuous but a fresh order reiterating repatriation of the applicant has been passed now on 8.8.2008 bringing the same situation as existed when we passed order dated 7.2.2008. The impugned orders are the same and so are the grounds challenging the same.
3. Issue notice to the respondents, returnable on 1.9.2008. Meanwhile, stay operation of the impugned order of repatriation dated 8.8.2008. Process DASTI. During pendency of the OA, the applicant moved a misc. application bearing MA No.1395/2008, wherein the prayer made is to pass an ad interim order directing the respondents not to cause any hindrance in the applicant resuming the office as Deputy Chairman and CVO of KPT, and/or implement the order dated 19.8.2008 passed by this Tribunal, and further to direct the District Superintendent of Police, Kutch to implement the order dated 19.8.2008 by directing them to break open the locks of the chambers of Deputy Chairman and give all required protection for enabling the applicant to function as Deputy Chairman and CVO, KPT. In the application aforesaid, it has inter alia been pleaded that by virtue of the interim order dated 19.8.2008, repatriation order dated 8.8.2008 issued by the respondents was not to be operative and the applicant was to continue functioning as Deputy Chairman, KPT in the same manner as he was functioning at the time of passing of the impugned order, exercising all such powers and discharging all such duties as were conferred and enjoined upon him under the Act of 1963. It is further pleaded that the order dated 19.8.2008 was communicated by the counsel for the applicant to the respondents under cover of letter dated 20.8.2008 and copy thereof was also sent to the third respondent (Annexure A-43 Colly.). It is the case of the applicant that after attending the hearing before this Tribunal on 19.8.2008 and obtaining certified copy of the order on 20.8.2008, and after serving the same on the first and second respondents, he returned to Kandla Port on 22.8.2008, and that considering the background of the case and attitude of the respondents, particularly an earlier attempt on the part of the respondents, when despite his having obtained stay in the first OA filed by him, all hurdles were created in his working and he was not actually permitted to function, and with the apprehension that the third respondent would once again cause obstruction in the working of the applicant, he wrote letter dated 21.8.2008 to the District Superintendent of Police seeking his help and police protection. The applicant informed the District Superintendent of Police about his travel and stay plans in Gandhidham after receipt of the stay order dated 19.8.2008 from this Tribunal. When the applicant reached Kandla Port, it is his case, the Superintendent of Police was helpful and deputed two constables with him for keeping away unruly elements and/or thwarting any untoward incident which could happen at the behest of and due to the mala fide of the third respondent. The applicant also wrote to the third respondent as well as to the Secretary, Kandla Port Trust with regard to order dated 19.8.2008. The turn of events that took place when the applicant reached his office, it is further his case, was immensely disturbing; he reached the administrative complex of the port in a hired vehicle as no official vehicle was provided to him; two police personnel as part of security given to him by the State Police also accompanied him in the vehicle; he was shocked when a CISF Inspector named Thakur assisted by nearly ten CISF personnel forcibly stopped the vehicle; when the applicant tried to get down from the vehicle, he was menacingly blocked by the Inspector and was thus forced to remain in his vehicle for nearly 20-25 minutes; he was told in no uncertain terms that if he alighted from the vehicle, force would be used against him; he was bluntly told that Commandant CISF and Chairman, KPT had issued instructions not to let him in the administrative complex; after a great deal of persuasion, he was further shocked to see the Commandant CISF himself coming and confirming that he had instructions from the management not to let him in; it is only when the applicant was able to speak to the second respondent at Delhi that his vehicle was allowed in the administrative complex. It is then the case of the applicant that on entering the office complex, he had noted sizable presence of Press, and on reaching his chamber, he found it locked. On checking, the applicant learnt that Shri M. A. Bhaskarchar, Deputy Chairman of Mangalore, was inside and the chamber was locked from outside to prevent the applicant from entering the designated chamber of Deputy Chairman, KPT; the applicant tried to enter into the chamber through the room of his private secretary, and on his entering the chamber, he was first challenged by Shri H.C. Venkatesh, Tariff Manager, KPT in a menacing manner, You are not allowed to enter this room. This is not your room. He, however, became restrained when he saw the presence of State Police personnel with the applicant. Even though, the applicant had shown orders passed by this Tribunal, he was not allowed to resume duties. He was told that the chairman had consulted the first and second respondents and it had been decided not to let him resume duties. The request of the applicant to confirm the same in writing was also refused by the Deputy Chairman, Shri Bhaskarachar who claimed that he had instructions not to give anything in writing. The applicant tried to contact the first and second respondents, but in vain. He, in the circumstances, sent the following SMS on the mobile phones of respondents 1 to 3:
Despite tribunal order serve on secretary shipping, I have not been allowed to join as deputy chairman Kandla Port or assume charge. Room is also locked out. With traffic manager inside. Mangalore deputy chairman is on chair claiming that chairman joint secretary has asked him not to vacate the seat. He says that ministry is challenging the order before high court and that I am not allowed to function as deputy chairman in the absence of administrative order not withstanding my plea of court order. You are requested to intervene personally. Regards. Manoranjan Kumar. The applicant has given further details as to how and in what manner he was not allowed to work.
29. The applicant has an explanation and defence for every complaint against him. We need not, however, go into that issue. Suffice it to say that even though, it may be the case of the respondents that the repatriation of the applicant was actuated on the complaints, which indeed it is so, then the said complaints did not touch upon only unsuitability or unsatisfactory performance of the applicant. As mentioned above, the order is far beyond that and it presents the applicant as a man possessed with almost all bad traits in life that can be attributed to a person. The case of the applicant is that even though, the resort may have been made to complaints received against him in easing out him, but the real reason beyond repatriating him is actually the complaints made by him while functioning as CVO. It is his positive case that the impugned order is actuated with factual legal malice. Even though, when two divergent and contradictory theories are propounded, rejection of one might lead to acceptance of the other, and in the present case, when we may not accept the plea raised by the respondents that repatriation of the applicant was on account of his unsuitability or unsatisfactory performance, the theory propounded by the applicant that people in corridors of power felt insecure and were rattled on account of reports of the applicant and, therefore, he was repatriated, needs to be accepted, but we shall give separate reasons therefor.
30. In the reply filed on behalf of the respondents to MA 1395/2008, it is stated that the application is copy of the contempt petition and is an attempt to put undue pressure on the official respondents. It is stated that the right course for the applicant would have been to serve the interim order of this Tribunal on the competent authority and await further orders rather than to take it on himself to forcibly occupy the post of Deputy Chairman, KPT. It is then stated that the respondents had sought opinion of the learned counsel, and as per opinion tendered, it was decided to file a misc. application for vacation/modification of the interim order, which was filed, and that Shri G. S. Rao had taken over the charge of Deputy Chairman and CVO till further orders. We may not make any further reference to the pleadings made in the reply. Suffice it, however, to say that the applicant has not been permitted to work. When the aforesaid MA came up for hearing on 3.9.2008, we mentioned that the prayer of the applicant was for issuance of direction to the respondents to allow him to join as Deputy Chairman and CVO, KPT, and to comply with the order dated 19.8.2008 passed by the Tribunal, and that we need not go in details with regard to averments made in the application at that stage, as the case had already been listed for hearing on 8.9.2008. We expressed the opinion that it would be more appropriate to decide the OA. That being so, we only noted as follows:
As such, we only note that primarily the case of the applicant is that despite order passed by this Tribunal reproduced above, which would mean that status-quo ante has to be maintained, respondents have physically debarred him from discharging his duties. We may also note that the case of the respondents is that someone else has been asked to discharge the duties, which the applicant was performing. The matter is already listed for final hearing on 08.09.2008. We, in the facts and circumstances of the case, only order that the applicant may not be relieved from his present posting and, therefore, he may not join his parent department. We keep this application pending for appropriate orders, if required depending upon the circumstances, on 8.9.2008. The applicant has filed yet another misc. application bearing MA No.1564/2008. Prayer made therein is to pass an ad-interim order staying the advertisement/vacancy circular dated 21.8.2008 issued by the first respondent, as also a direction to the respondents to pay to the applicant full salary for the month of August, 2008 and September, 2008 payable to him as Deputy Chairman, KPT. It has inter alia been pleaded in the application that despite the interim order dated 19.8.2008, the applicant was not allowed by the third respondent to resume charge as Deputy Chairman. The respondents had, meanwhile issued a vacancy circular/advertisement dated 21.8.2008 for appointment of Deputy Chairman, KPT. It is the case of the applicant that despite the said orders, he had not only been prevented from discharging duties of Deputy Chairman & CVO, KPT, but the respondents had even taken steps to fill the vacancy. This application came up for hearing before us on 1.10.2008. After recording the prayer made by the applicant, we ordered that any appointment made during the pendency of the OA would be subject to the outcome thereof. The matter was to be listed for hearing on 31.10.2008.
The applicant has moved yet another application bearing MA No.1646/2008 seeking direction to be issued to the respondents to pay to him full salary for the month of September, 2008 payable to him as Deputy Chairman, KPT. This application came up before us on 17.10.2008. After noting the prayer made in the application, we made a mention of the stand of the respondents. A statement was made by Shri Krishna, learned counsel representing the respondents that the order to release the payment to the applicant for the months of August and September, 2008 had already been passed and the payment would be actually made over to him within a couple of days. On 21.10.2008, we were informed that cheque for the salary for the months of August and September, 2008 had already been prepared and the same would be made over to the applicant that day itself. Counsel for the applicant, however, stated that the salary was being paid to him by the Indian Port Association and not by Kandla Port Trust. We left the matter open to be decided at the time of final disposal of the OA. We may only mention that since the applicant was not being paid salary by the Kandla Port Trust, he would not accept the same. The applicant has also filed CP No.319/2008, which we are not deciding for the time being, as we thought that the same may come up for hearing after decision of the Original Application.
The respondents too filed MA No.1394/2008 seeking vacation of stay, which came up for hearing on 1.9.2008, when we recorded the following order:
The prayer made in the application is for vacation of interim direction in order dated 19.08.2008. We have heard the learned counsel for the parties. After hearing counsel for parties, we are of the view that for deciding this Application merits of the case have to be gone into. In our view, it would be appropriate to dispose of the main matter finally by the next date of hearing. Counsel for respondents No.1 & 2 who are main contesting respondents seeks only two days time to file reply. Let a copy of the same be given to the counsel for applicant who may file the rejoinder within next two days. List on 8.9.2008 for final disposal. No adjournment shall be granted. We need not go into the rival contentions of the parties with regard to various applications referred to above. Suffice it to mention that the admitted facts that emerge are that despite the orders passed by this Tribunal dated 19.8.2008, the applicant has not been permitted to work in Kandla Port at all. As admitted by the respondents, the work carried out by the applicant is being looked after by Shri M. A. Bhaskarachar. An advertisement for fresh appointment of Deputy Chairman has since already been made and, so much so, the applicant is not even being paid salary from the Kandla Port Trust. What thus clearly emerges is that the respondents would not permit the applicant to work. Be it after the first order of repatriation dated 31.1.2008 or during the interregnum between March, 2008 when the said order was withdrawn and 8.8.2008, powers of the applicant were totally truncated. All hurdles were created for him to function smoothly in the Kandla Port, and after order dated 19.8.2008 the applicant has not been permitted to work. This clearly indicates, as already mentioned, a clear mind made up by the respondents to see the back of the applicant at any cost. In the backdrop of events, as fully detailed above, we are of the firm view that the innocuous order of repatriation is only a strategy.
31. Insofar as, reference to decision of the Andhra Pradesh High Court in the noting proceedings is concerned, we may mention that the correct law position has been considered. We, in the earlier part of the judgment, have also held likewise. The judgment of the Andhra Pradesh High Court, insofar as it may pertain to the issue of repatriating an employee on the basis of complaints, it does not appear to be comparable with the facts of the present. The order of repatriation, it is clear from the judgment, was challenged on the following grounds:
(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 Appointments Committee of the Union Cabinet for the repatriation and the repatriation order is arbitrary and capricious. The respondents while, however, opposing the cause of the petitioner in their counter reply pleaded that there were large number of complaints against him during the period he worked as Deputy Chairman and Chairman-in-charge of the port and that due to his activities the atmosphere in the port was completely vitiated and the staff was divided on caste lines and the State Government had also brought the same to the notice of the Central government. The Division Bench, in the first instance, observed that 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. After so observing, the Division Bench dealt with the last contention raised by the counsel for petitioner that even though, the impugned order was a simple repatriation order, it attached stigma to him, as it would reveal in the counter that the repatriation was based on some complaints received against him. For the aforesaid contention, the learned counsel relied upon three judgments of the Honble Supreme Court in Dabesh Chandra v Union of India [AIR 1970 SC 77], K. H. Phadnis v State of Maharashtra [AIR 1971 SC 998], and State of M. P. v Ashok Deshkmukh [AIR 1988 SC 1240]. The contention of the learned counsel was dealt with in paragraph 11, relevant part whereof reads as follows:
.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. The Division Bench then referred to judicial precedents cited by the counsel for the petitioner and some other decisions. It would be seen that the first reason that prevailed with the Court in deciding against the petitioner was that no such ground had been raised in the petition and the same was pressed into service only during the course of arguments. The other reason for repelling the contention of the petitioner was that the complaints were disclosed in the counter because of allegations in the affidavit that his withdrawal from the Port Trust was arbitrary. Ultimately, it was held that the first respondent was not bound to disclose the reasons for repatriation of the petitioner. In our considered view, this judgment does not go to the extent that even if the foundation of an order be complaints of misconduct against an employee, even though the order as such may be innocuous, the same cannot be set aside having been passed without providing opportunity to the employee. Direct decisions on the issues have already been mentioned by us. In our view, reliance upon the judgment of the AP High Court to repatriate the applicant was not justified. In any case, the latest case law on the subject was not taken into consideration at all even though it appears that the respondents had sought legal advice on the issue. Insofar as, the judgment of the Tribunal in CP No.104/2008 in OA No.302/2008 is concerned, the same could not be relied upon at all. It may be recalled that the contempt matter, in the first instance was closed after the earlier order of repatriation was drawn. On the prayer made by the applicant that order was recalled. The complaint of the applicant was regarding curtailment of his powers despite stay granted by the Tribunal. The primary reason for closing the contempt was that the contemnor had assumed charge on 22.2.2008, i.e., after the interim orders were passed by this Tribunal. It was further observed that it is in fact the Central Government which was accused as at fault. It was also observed that by the time the contemnor had assumed the office, the applicant had been admitted to duties. The only observation that may be said to be in favour of the respondents is that the order passed by the Tribunal could not have been interpreted as curtailment on the powers of the Central Government or the Chairman to delegate to the applicant duties and functions, which they deemed appropriate, and that the interim orders could not have been understood as unqualified directions covering this region, and bona fide consequential orders could not have ipso facto led to a presumption that there was contempt. The mere fact that there was an observation that the order passed by the Tribunal could not have been interpreted as curtailment on the powers of the Central Government or the Chairman to delegate to the applicant duties and functions, can, at the most, be construed that by continuing the applicant in the post of Deputy Chairman, if some specified duties were assigned to him, the same would not constitute contempt. This order, in any case, was not the judgment either on competence of the authorities to curtail deputation period of the applicant, or for that matter, easing out the applicant on the basis of the complaints.
32. From the way and manner the applicant has been thwarted in discharging his duties on both the occasions when interim directions were passed in his favour by this Tribunal, details whereof have been given above, and thus need not be reiterated, would appear to show that the respondents were bent upon showing the applicant the exit door. Unsuitability and unsatisfactory performance of duties, sought as a defence in the counter reply, is not the real reason. In addition to the mala fides of the respondents as spelled out from the way and manner they behaved in preventing the applicant from discharging his functions and almost throwing him out, but for a period of four and a half months when too his powers were truncated, the mala fides would be further fortified from following facts, mentioned hereinafter.
33. The applicant, it is conceded position, as long as he was not given the additional charge of CVO, was functioning to the best of his capabilities. The track record of service of the applicant is absolutely spotless. In fact, the applicant appears to have such service credentials as many may not have. His service record through his confidential reports speaks volumes of his efficiency, competence and performance of duties by him. It further shows that in the matter of relations with his subordinate and superiors, the applicant had no problem at any time whatsoever. He has been opined to be having most respectful and cordial relations with seniors and juniors respectively. So much so, the earlier Chairman of the Port, Shri A. Janardhan Rao, under whom the applicant worked for a period of more than six months, rated him as an outstanding officer. The chairman while assessing the working of the applicant from 25.9.2006 to 31.3.2007 gave the overall grading of outstanding by clealy stating that he had fully involved himself in maintaining the execution of fertilizers and wheat during the crisis period and reporting to various authorities. In the column of general assessment, the Chairman had himself mentioned that he considered the applicant as an officer of great potential, intelligence, outstanding communication skills and hard working. There is not even a whisper with regard to the applicant trying to browbeat his seniors or subordinates. We, from the available records, are in a position to give the finding that the applicant is not an officer of unnatural gusto, as the respondents would like this Tribunal to believe. Far from that, the applicant has a history of cordial relations with juniors and seniors of more than two decades. The trouble, concededly, starts after the applicant is given additional charge of CVO, and starts reporting mass scale bungling leading to loss of crores to the port that he would enlist while discharging functions of CVO.
34. The various reports submitted by the applicant while discharging the duties of CVO have since already been referred to hereinbefore. We may now mention that insofar as the first report submitted by the applicant dated 3.8.2007, after being assigned additional charge of CVO, is concerned, it is with regard to M/s Friends Salt Works & Allied Industries. Substance of the report is that 1010 acres of prima land valued in thousands of crores had been given unauthorisedly on nomination basis to a chosen party at the annual lease rate of Rs.144 per acre, whereas annual business of the party as admitted in the balance sheet was at least Rs.180 crores in each of the preceding four years since April, 2004. Suspects in this report may be the then Chairman, Financial Adviser, Chief Engineer, Secretary and Estate Manager, but the fact remains that CVC has already advised the Ministry to take action including referring the matter to CBI. It appears that on the basis of the report of the applicant, the lease in favour of the concerned party was cancelled, thus constraining the party to file a Special Civil Application bearing No.2632/2008 before the High Court of Gujarat at Ahmedabad. The respondents in the said case, on solemn affirmation in response to the Application aforesaid, stated that the facts would reveal that the land measuring 1010 acres at Kandla was originally leased on nomination basis to M/s United Salt Works for the period from 14.3.1962 to 9.4.1974 for the purpose of manufacturing salt, and that despite statutory provisions contained in Section 34(1) read with the land policy in existence, prior approval of the Central Government was not taken by KPT and the said lease was further extended for 30 years on 10.4.1974. It was also mentioned that without permission of the competent authority the then Chairman, KPT, approved the request of the petitioner for change of use, which the user had already started without prior approval of the Board. It is also stated that despite requisite approval of the port officials, the permission granted would clearly fall within the meaning of criminal misconduct under Section 13(d) Prevention of Corruption Act, 1988. It is further mentioned that facilities of KPT were utilized for promoting business interests of the petitioner and despite the protest from CVO, as late as in July, 2007, permission was granted by the Chairman for certain purposes. This is also in the background of the facts as revealed from the material that the Estate Manager and Deputy Secretary had suppressed information regarding completion of the lease period for obtaining favourable decision on pipeline in favour of the petitioner giving them huge pecuniary advantage. It is also stated that the team led by Joint Secretary (Ports) visited the Kandla Port yet again and it was noticed that even the team was misled on the tenure of salt lease of the petitioner, as well as about the skewed lease of huge area of land in the name of Friends Group of companies. It is then mentioned that the report indicates conduct of several officials including the Chairman leading to criminal misconduct and having committed offences under various Sections of IPC and Prevention of Corruption Act. It is also mentioned that despite the land being specifically granted on nomination basis without holding public auction for initial period of 12 years for salt manufacturing activities, some portion of the land was put to commercial use without requisite permission from the competent authority under the Act. What thus transpires is that even though, the complaints lodged by the applicant, in the counter reply filed on behalf of the respondents have been styled to be false and frivolous, and the same may also have been mentioned in the notes preceding the impugned order of repatriation, the fact of the matter is that even though, the report of the applicant is not being accepted to be the reason behind the lease to the party cancelled, but in the writ filed on behalf of the party, action against the concerned party is stated to have been taken against the party inter alia on the basis of report of the applicant as CVO. So much so, CVC had already required the Ministry to take action and also refer the matter to CBI. The role of the Chairman in the counter reply filed, has been condemned. Reports dated 9.8.2007, 18.10.2007 and 24.10.2007 (Annexures A-20, A-21 and A-22, respectively) submitted by the applicant are with regard to Container Freight Station of M/s Seabird Marine Services. According to the applicant, the allegations subject matter of report would constitute offences u/s 13(1)(d), 13(2) PCA, and 120B and 420 IPC, and the suspects would be the Chairman, Financial Adviser, Chief Mechanical Engineer, Tariff Manager and Estate Manager. CVC is said to have advised registration of case, and the Ministry has referred the matter for enquiry. After requisite investigation, CBI is stated to have registered case No.16(A)/2008 and raided houses of suspects. The other vigilance report by the applicant dated 22.4.2008 is with regard to illegal and unauthorized transfer of land to a private party, i.e., M/s Tejamammal Bhai & Co. CVCs request for views was not attended to and no action has been taken on the report so far. The Government on the report submitted by the applicant, however, cancelled the transfer thus constraining the concerned private party to file Spl. Civil Application No.3596/2008 before the Gujarat High Court at Ahmedabad. The Estate Manager, KPT has filed affidavit to the Application aforesaid before the High Court, wherein it has inter alia been averred that the issue in relation to permission granted and the transactions entered into for the disputed plots of land (subject matter of the petition), which also includes permission and approval granted to M/s Baxi & Co., is under vigilance investigation covering possible malpractices and complicity of the petitioner in influencing the port officials. It has further been averred on the basis of available records that initial vigilance investigation was made and the vigilance officer had forwarded his report for approval. It is also mentioned that the confidential file of the vigilance department would suggest involvement of officers of the port also to have unauthorisedly and dishonestly favoured the petitioner and its predecessor-in-title. The other vigilance report of the applicant dated 3.8.2007 (Annexure A-17) is with regard to scam involving more than 12000 acres of the port land. The suspects in this case, as per the report , would be the then Chairman Shri A. Janardhana Rao, sitting Chairman Shri Praveen Agarwal, Financial Adviser, Secretary and Estate Manager. No action on this report is stated to have been taken so far by the Ministry. The other report dated 17.11.2007 (Annexure A-18) is against M/s ABG Kandla Container Terminal Container Terminal. The report is said to be with the Ministry since November, 2007, and that though CVC is pressing hard for views of the Ministry on the report, no views have been furnished by the first and second respondents to CVC so far. However, on the basis of preliminary enquiry, CBI has undertaken an investigation. The other report of the applicant dated 24.5.2008 (Annexure A-62) is with regard to dredging contract matters. The matter is stated to be resting with the respondent Ministry. Suspects in this case are Chairman Shri Praveen Agarwal, and the Deputy Conservator. Another report of the applicant dated 21.9.2007 (Annexure A-17) is in the matter of Friends Oil & Chemical Industries. CVC is pressing hard for Ministrys recommendation, but no action has been taken by the first and second respondents on the report which was received in September, 2007. However, CBI collected papers from KPT on 3.1.2009. Yet another report dated 27.7.2007 is with regard to irregularities in appointments in KPT. The Ministry has reiterated the order of Finance Ministry stating that posts can be created only with the approval of Government; thus irregularities in creating posts and promoting officers out of turn as irregularity, has been tacitly admitted by the Ministry. The other report of the applicant dated 15.10.2007 points to irregularities in appointment of Financial Adviser & Chief Accounts Officer, KPT. This matter is said to be resting with the respondent Ministry. Another report dated 5.10.2007 is with regard to hiring of tugs from bidder other than lowest qualified bidder. In this case CVC has not furnished its views to the Ministry so far, but CBI on its own investigations has registered case No.12(A)/2008/GNR.
35. What emerges from the facts as fully detailed above is that some of the reports of the applicant have since already been accepted and action taken, and his reports as CVO, on the basis of which action has been taken, are being defended in the Gujarat High Court in two different cases by the respondents. In the reply filed in the Gujarat High Court, it is clearly mentioned that the Chairman had not taken prior approval of the Central Government with regard to the lease, and further that without permission of competent authority, the then Chairman approved the request of the petitioner for change of use. Without approval, it is mentioned, the permission would fall within the meaning of criminal misconduct under Prevention of Corruption Act. It is admitted position that the Kandla Port Trust was utilized for promoting business interests of the petitioner, despite protest of the applicant as late as in July, 2007, when permission was granted by the Chairman for certain purposes. The role of the Chairman and others has been adversely commented upon in the reply. With regard to some of the reports, action has already been taken by CBI, and with regard to others action is in offing. With regard to some of the matters, of course, no action has been taken so far. It clearly transpires that a substantial number of reports of the applicant have been acted upon and action taken. None of the reports submitted by him so far have been opined by any of the authorities to be false, and yet, the respondents would have audacity to make a positive averment at every relevant place that the applicant instead of devoting his time to the development of the port was involving himself in making frivolous complaints. It is also pleaded that keeping in view the applicants conduct of making repeated frivolous complaints against all officers and sundry and even against officials of the Ministry of Shipping who have nothing to do with the so called land scam, and further since the work of KPT was suffering due to these internecine squabbles between the officers, it was felt that the best course in the interest of the Port would be to curtail the period of deputation of the applicant. The applicant is alleged to have made reckless allegations and raised unnecessary issues.
36. We have already mentioned hereinbefore that CVC, despite entreaties made by the counsel representing the applicant that it should file its reply as it is this Commission which could be in a better position to comment upon the authenticity or frivolity of the complaints made by the applicant, has chosen not to file its reply, even after the Tribunal required its counsel to seek instructions in the matter. Central Vigilance Commission (CVC) came into being pursuant to recommendations of the Committee on Prevention of Corruption headed by Shri K. Santhanam. It came into being by virtue of resolution dated 11.2.1964. In the resolution, it has inter alia been mentioned that the Central Vigilance Commissioner would be attached to the Ministry of Home Affairs (now Ministry of Personnel, Public Grievances & Pensions), but in exercise of its powers and functions, it would not be subordinate to any Ministry/Department and would have the same measure of independence and autonomy as the Union Public Service Commission. In September, 1977, Government constituted an Independent Review Committee (IRC) comprising Shri B. G. Deshmukh, Shri S. V. Giri and Shri N. N. Vohra to suggest measures for strengthening inter alia anti-corruption activities as part of its efforts against corruption. One of the recommendations made by the Committee was the question of conferring statutory status to the CVC. The Honble Supreme Court in Criminal Writ Petition Nos.340-343/93 Vineet Narain & Others v Union of India & Others, had inter alia given direction that statutory status should be conferred upon CVC. In view of the urgency in the matter, government decided to put the proposed law in place through as Ordinance so as to comply with the directions of the Supreme Court to confer statutory status upon CVC. Ordinances dated 25.8.1998, 27.10.1998, 7.12.1998 and 8.1.1999 were promulgated. CVC Bill, 1998 was referred to the Department-related Parliamentary Standing committee on Home Affairs for examination and report. The Committee presented its report to the Parliament on 25.2.1999, and after acceptance of most of the recommendations the Parliament passed the Bill on 15.3.1999. The Act, however, came to be passed in 2003. CVC is a statutory body having a great deal and measure of independence. We are of the considered view that in a case of this kind, where all reports made by the applicant were, in the first instance, forwarded to CVC, which had examined number of reports of the applicant, and with regard to some other reports action was suggested or taken, ought to have filed their reply.
37. However, when the OA bearing No.302/2008 came to be filed, the CVC had filed its reply therein. In the reply which has been placed on records of the present case as Annexure A-32, while admitting receipt of the reports made by the applicant, it is further stated that action on report of CVO (Annexure A-13 in the said OA), which was for taking action against the concerned persons, could be taken only after Gujarat Assembly elections. The report is, however, stated to have been forwarded to the Ministry with advice to refer the matter to CBI for investigation. It is also admitted that the applicant had brought to the notice of CVC with regard to circulation of his confidential vigilance reports. It is also admitted that on the report of the applicant with regard to irregularities, action has been initiated. CVC being a party to these proceedings, their not filing the reply despite the controversy being such where their stand could have thrown some light upon veracity of the complaints made by the applicant, would lead us to draw an adverse inference. If the reply thus would have been filed by CVC, we are of the view it would have perhaps no choice but for to support the case of the applicant, insofar as the authenticity of his reports is concerned. We may also draw an inference that it is because of the influence exerted by the powers that be that CVC has not filed reply. Be that as it may, there are some admissions made by CVC in the earlier OA filed by the applicant. There is not a word with regard to any report made by the applicant being frivolous. It would be another circumstance to hold that the plea raised by the applicant that the reports made by him in discharge of his duties were with a view to eradicate mass-scale irregularities and corruption is correct, and the converse stand taken by the respondents that such complaints were frivolous, has to be rejected.
38. Repatriation of the applicant also seems to be in post-haste. It may be recalled that whatever be the dates of the complaints received against the applicant, consideration for repatriating him started on 1.8.2008. It was recorded by Director (PHRD) after making mention of the complaints that besides complaints referred to above, there were complaints also pertaining to vigilance section which have been placed at Flag A (they have, however, not been found on records made available to us). The next note came to be recorded on the very same day, i.e., 2.8.2008 wherein opinion was given to consult ASG, Shri R. Mohan in the matter. A couple of days thereafter on 4.8.2008, Director (PHRD) made a note mentioning that the matter had been talked over with ASG. On the very next day the matter went to some other authority, and the detailed note came to be made on 7.8.2008. The day the detailed note came to be made, Director (PHRD) mentioned that the complaints that were received had been examined, which would indicate the environment situation in KPT due to the complaints against the applicant and its negative impact on the working of the port. On the same very day the matter was put up before JS(P) who also recorded a note referred to above, and on the same day itself, a decision was taken to repatriate the applicant, approval whereof was given on 8.8.2008. The same day, draft order was prepared and the applicant was repatriated on the same very day, and, again on the same very day, Shri G. S. Gao was asked to look after the additional charge of Deputy Chairman & CVO, KPT.
39. From the facts as fully detailed above, we are left with no doubt whatsoever that the real reason behind repatriating the applicant to his parent department was in fact the complaints/reports made by him and not the complaints that may have been received against him. Reference to the various complaints against the applicant in the notes preceding the repatriation order, and that being the reason for repatriating him, appears to be a made-up affair. It is quite apparent that a substantial number of persons yielding power felt threatened and insecure on the reports made by the applicant. It is because of the influence exerted by them upon the competent authority, it is apparent, the applicant was sent back to his parent cadre. The order of repatriation, in our considered view, is mala fide.
40. Fraud, conspiracy and mala fides vitiate everything, and if, therefore, the order repatriating the applicant is actuated on account of mala fides, the same has to be quashed. We are conscious that allegations of fraud, conspiracy and mala fides cannot be proved by direct evidence. Such issues can be proved or, may be, inferred, by circumstances. It is often said that men may lie but the circumstances dont. A vast load of circumstances, as fully detailed above, would lead us to an irresistible conclusion that the applicant who wanted to clean the system, has in turn been himself washed away by the system. We are distressed to note that the applicant, because of his bold stand, exposing misdeeds, corruption and irregularities, instead of being protected by the system, has in fact been victimized.
41. CVC had issued instructions dated 28.3.2006, wherein it is clearly recorded that the Commission had viewed seriously certain instances of harassment and attempts at victimization of vigilance officials of certain organizations, and that the need to allow the vigilance officials to work independently and freely without any fear, which is the foundation for effective vigilance administration in any organization had been recognized since long. It is mentioned that the Santhanam Committee had recommended that those posted to the Vigilance Organizations should not have the fear of returning to their parent cadre with the possibility of facing the anger and displeasure of those against whom they made inquiries, and that those working in Vigilance Organizations should have an assurance that good and efficient work in the Vigilance Organization will enhance their opportunities for promotion and not became a sort of disqualification. In the instructions thus issued, it is mentioned in para 3(i) that All personnel in Vigilance Units will be posted only in consultation with and the concurrence of the CVOs. They will be for an initial tenure of three years extendable up to five years. Any premature reversion before the expiry of such tenure will only be with the concurrence of the CVO. The CVO shall bring to the notice of the Commission any deviation from the above. We are conscious that the applicant was not appointed as CVO as such; he was appointed as Deputy Chairman. It is only in addition to his duties as Deputy Chairman that he was to carry out duties of CVO as well. The applicant, nonetheless, was discharging the duties of CVO. It is in discharge of such duties that he had made complaints/reports referred to above. Premature repatriation of the applicant, strictly may not have required concurrence of CVC, but this factor cannot be completely lost sight of. The applicant, in our view, required protection of CVC.
42. The applicant, in our view, is on a solid wicket to state that he is a whistle-blower. He brought to the notice of authorities irregularities and illegalities going on in the Port for several years, resulting into tremendous loss to the Port, which is indeed loss of the nation. His reports indeed have led to cancellation of lease in favour of certain private parties who were becoming unjustifiably rich at the cost of Government exchequer. So far, no law has been enacted in India so as to protect a whistle-blower even though, debate on the issue is on. We may refer to the Law Commissions 179th Report on Public Interest Disclosures and the Protection of Informers, prepared by Justice B. P. Jeevan Reddy, which states, thus:
Good-faith whistleblowers represent the highest ideals of public service and challenge abuses of power. They test loyalty with the highest moral principles but place the country above loyalties to persons, parties or Governments. Statutory provisions in USA, UK, Australia, New Zealand and South Africa exist, wherein there are provisions to protect whistle-blowers. If the system may not protect the applicant, in our considered view, the court must come to his rescue, as otherwise no whistle-blower would ever dare to expose corruption. A whistle-blower without any protection, where high-ups may be involved, may always be a victim himself.
43. Before we may part with this order, we may mention that the learned counsel representing the respondents was at pains to explain that it is not only the applicant who has been relieved, and looking into the circumstances, the Government has relieved the Chairman, KPT and transferred the Chief Mechanical Engineer and reverted the then Financial Adviser & Chief Accounts Officer, on the basis of complaints on various issues pertaining to KPT. It is urged that the applicant has not been singled out. It is also urged that the applicant has tried to malign everyone in the Port, and the logic would defy the assertion made by the applicant that, but for him, everyone is corrupt. We may only mention that as on date, the stand of the applicant reflected through his two major reports on lease of land, is correct being supported by the Government itself in the litigation in Gujarat High Court, and with regard to his other reports as well, CVC and CBI are proceeding in the matter. There is positive averment made in the counter reply filed on behalf of the respondents before the Gujarat High Court that the Chairman had committed criminal misconduct. Some other officials of the Port had also been blamed. In this scenario, we are not inclined to accept the contention raised by the learned counsel representing the respondents, as noted above. In 22 years of his service career, there is not a single instance where the applicant may have tried to browbeat his juniors or may have made some complaints against his seniors. His track record on that issue, as mentioned hereinbefore, is outstanding. Once, some of the reports of the applicant have been even accepted by the respondents, it cannot be said that simply because the complaints made by the applicant are against many people, the same must be wrong. In fact, there is not an iota of evidence brought on record to show that the reports made by the applicant are mischievous or frivolous.
44. In view of the discussion made above, we allow this Application. Order dated 8.8.2008 (Annexure A-1) repatriating the applicant to his parent cadre is quashed and set aside. The applicant will be restored to his position as Deputy Chairman, Kandla Port Trust. Insofar as, additional duties assigned to the applicant as Chief Vigilance Officer are concerned, he may not have any right to carry on the said duties; he was, as mentioned above, only given additional charge. It would be thus in the discretion of the competent authority to consider whether the applicant has to be given the said charge. In totality of the facts and circumstances of this case, we direct the competent authority to apply its mind afresh with regard to continuance of the additional duties to the applicant, while keeping in view the observations made by us in this judgment. The applicant, in our view, has been meted out with great injustice. The facts of the case do clearly reveal agony, harassment and humiliation of the applicant. We are of the considered view that the applicant deserves costs of this litigation, which we hereby quantify at Rupees twenty-five thousand. We know that even the cost of Rupees twenty-five thousand may not compensate the applicant in view of the marathon litigation that was forced upon him. The costs would be only conciliatory and may not be actual.
45. The applicant has filed CP No.319/2008, which, as advised at that stage, we were of the view, should be decided after decision on the present OA. The same may come up for hearing now on 16.3.2009. Decision on contempt may proceed on different parameters, but we are of the view that it should be listed before some other Bench, as, in view of allowing the present OA, the respondents may be under an impression that we have made up our mind even with regard to the contempt matter also. On the principle thus that justice must not only be done but should also appear to have been done, we order listing of the contempt matter before some other Bench.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/