Central Administrative Tribunal - Jabalpur
Vinakshi Dahat vs National Highways Authority Of India on 16 November, 2021
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00882/2019 & Original Application No.200/00566/2020
Jabalpur, this Tuesday, the 16th day of November, 2021
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MS. NAINI JAYASEELAN, ADMINISTRATIVE MEMBER
Vinakshi Dahat, D/o Shri P V Dahat, Aged about 34 years, R/o House No. A-76, Sagar Pearl, Jaatkhedi, Behind Shani Temple, Hoshangabad Road, Bhopal (M.P.) 462001 -Applicant in both O.A.s
(By Advocate - Shri Akash Choudhary )
V e r s u s
1. National Highway Authority of India, Through its Manager cum Chairman, G - 5 & 6, Sector -10, Dwarka, New Delhi-110075.
2. The Deputy General Manager (DGM), National Highway Authority of India, (HR/Admin - II B) G - 5 & 6, Sector - 10, Dwarka, New Delhi - 110075.
3. The Regional Officer, National Highway Authority of India, Regional Office, E - 2, 167, Arera Colony, Near Habibganj Station, Bhopal (M.P.) 462001.
4. The Project Director, National Highway Authority of India, Bhopal, PIU HIG - 5 RE - 3, Arera Colony, Near Ganesh Mandir, Old Habibganj, Naka, Bhopal (M.P.) 462001
- Common Respondents
(By Advocate - Shri Mohan Sausarkar)
(Date of reserving order: 16.07.2021)
Common Order
By Ramesh Singh Thakur, JM.
Both the Original Applications No. 882/2019 & 566/2020 have been taken together as both the applications have been filed by the same applicant. In Original Application no. 882/2019, the applicant has challenged the repatriation order dated 20.09.2021 (Annexure A/1) whereby the applicant has been repatriated to the parent department. In Original Application no. 566/2020, the applicant has challenged inaction of the respondent for not forwarding the case of the applicant for further extension of deputation for one year. The facts of both the cases are common.
2. This Original Application 882/2019 has been filed against the order dated 20.09.2019 whereby, the applicant is repatriated to her parent department with effect from 20.09.2019 (Annexure A/1). The applicant sought for the following relief:
"In view of the averments made in the preceding Para's, the Applicant prays for the following reliefs:
(i) Summon the entire relevant record for kind perusal for this Hon'ble Tribunal.
(ii) Set aside the impugned order dated 20.09.2019 (A/1) upon holding that the issuance of the order is arbitrary and the Applicant be granted all consequential benefits arising thereto.
(iii) Command the respondents to continue the applicant on the post of Manager Technical at the present place of posting as if the said orders have been never passed.
(iv) Any other relief, which this Hon'ble Tribunal deems fit may also be granted.
3. From the pleadings, the case of the applicant is that, vide notification dated 20.01.2016, application was invited for the post of Manager (Technical), being eligible as per rule, the applicant has applied for the same. The applicant was selected for appointment as Manager (Technical) on deputation in NHAI, initially for a period of three years. The period of deputation for the applicant for the Manager (Technical) looking to her exceptional meritorious record, was extended by the competent authority after seeking NOC from the parent department, which was accepted by the parent department. The period of deputation for the applicant was further extended for a period of one year, starting from 26.05.2019 to 25.05.2020, copy of which is annexed as Annexure A/5.
4. On 20.09.2019, the applicant was repatriated to the parent department. The applicant challenged the impugned order dated 20.09.2019 (Annexure A/1) on the ground that the applicant was appointed on the post of Manager (Technical) on deputation and as per law laid down by the apex court in the matter of Ashok Kumar Ratilal Patel Vs. Union of India, 2012 (7) of SCC 757. The impugned order deserves to be set aside as the same is violative of Article 14 and 21 of the Constitution of India.
5. The respondents NHAI has submitted in their reply that the applicant was appointed on the post of Manager (Technical) on deputation, initially, for a period of three years and thereafter, the period was extended up to 25.05.2020 i.e. for a period of one year. It has been submitted by the reply respondent that vide order dated 06.11.2017, distribution of work in the technical division, where, the applicant has been assigned some particular work. The respondent has issued notice to the applicant and explanation was called from the applicant as per letter dated 11.08.2019 (R/2). The applicant made his representation vide letter dated 20.08.2019 (Annexure R/3). Further, the letter was issued by answering respondent on 13.08.2019 for further explanation by the applicant. The applicant was called for some explanation, but the same was not done by the applicant. No explanation has been submitted by the applicant in response to letter dated 11.08.2019, 13.08.2019 and 05.09.2019.
6. The respondents again called an explanation as the higher authority of the NHAI along with the representative of contractor visited site place and some highly objectable were observed. The replying respondents have submitted his report to the Regional Officer. The Regional Officer has also mentioned the damages, which has been issued were duly cared for by the answering respondents and also called a submission from the contractor and authorized engineers. So regional officer has recommended repatriation of the applicant to the parent department. The copy of report submitted by the regional officer dated 19.08.2019 is annexed as Annexure R-7. The expert report was also called from the Assistant Professor, IIT Indore in reference to the damages to the RE Wall demolition site, which is annexed as Annexure R-8.
7. It has been further submitted by the replying respondents that the applicant from the initial date of posting has not submitted her APAR during last three years so the deputation for a period of three years. The applicant was not able to perform or discharge her duties on accordance with the office memorandum. Since her deputation period has not extended for further one year, it would not be so that her performance has been appreciated, but the work which has been allotted to her is required to be completed under her supervision in accordance with the office memorandum. So the competent authority taking into consideration the conduct and manner of work of the applicant towards the ongoing projects, it has been considered to repatriate her to her parent department.
8. The applicant has filed rejoinder, wherein the applicant submitted that the impugned order dated 20.09.2019 does not disclose the the reason by taking not of which, the applicant is repatriated back to her parent department. The show cause notice dated 11.09.2019 is vague in nature wherein the necessary detail as regards the poor quality of work and damages in RE Wall are missing. The applicant had submitted the detailed representation to the authority in terms of the show cause notice dated 11.08.2019 (R-2) has been given. It has been submitted by the applicant that entire project is required to be monitored by the project director and the applicant was not specifically assigned with the inspection work and damages, therefore, applicant cannot be held responsible for the same mentioned in the show cause notice dated 11.08.2019, so the work assigned to the applicant would go to show that the applicant was never assigned with any supervisory work as regards the damage in the RE Wall or Four Running of Bhopal Beora of National Highway No. 12. The applicant submitted that the applicant was appointed on deputation through duly constituted appointment process and therefore cancellation of deputation of the applicant is unceremonious manner, is arbitrary, unjust and unlawful.
9. We have heard counsel for the both sides. From the pleadings, it is crystal clear that the applicant was considered by the competent authority for appointment on deputation as a Manager (Technical) in NHAI initially, for a period of three years (Annexure A/3). Thereafter, the deputation period of applicant was extended for a period of one year starting from 26.05.2019 to 25.05.2020 (Annexure A/5). The show cause notice was issued on 20.09.2019 Annexure A/5 whereby applicant was repatriated to her parent department. The contention of the applicant is that no show cause notice or opportunity of hearing has been granted to the applicant. The applicant has relied upon the judgment passed by the High Court of Madhya Pradesh in the matter of Kamlesh Verma vs State of M.P. (2018) 2 MP LJ 184. The learned counsel for the applicant has also relief upon the judgment passed by the apex court Ashok Kumar Ratilal Patel Vs. Union of India, 2012 (7) SCC 757 to the fact that a person appointed on deputation can be sent back to the parent department except only in the case of unsuitability or unsatisfactory performance, which is not reflected in the impugned order. The learned counsel for the applicant has submitted that the one year extension has been granted to the applicant after assigning the credibility and performance of the applicant. As there is a specific contract between the parties, the applicant cannot be repatriated before the specified date.
10. On the other side, the contention of the replying respondent is that there was short fall in the work of the applicant and work of the applicant was not satisfactory. Despite the various opportunities, the applicant did not explained her conduct. The replying respondent has clearly mentioned that the applicant was given letter dated 11.08.2019, 13.08.2019, but the respondent department has not given the explanation. It has been specifically submitted by the replying respondents that the Regional officers has also mentioned the damages and also called a submission from the contractor and authorized engineers taking into consideration of situation of the project as well as non cooperation of the applicant due to which the delaying in handing over the land for Toll Plaza and other hindrance of major bridge, irregularity in attending office, repatriation of the applicant has been recommended. It has been further submitted by the replying respondent that the expert report was also called from the Assistant professor from IIT Indore, in reference to the RE Wall demolition site. So the replying respondent has specifically submitted that the applicant deserves to be repatriated to the parental department. Regarding the issue of extension is concerned, the replying respondent specifically submitted that the extension of one year has been granted to the applicant due to the fact that the work has to be completed by the applicant. We have perused the appointment letter of the applicant which is annexed as Annexure 3 wherein, it has been specifically mentioned that applicant has been provisionally selected for appointment as Manager (Technical) on deputation in NHAI initially for a period of three years, which may further be extended or curtailed at the discretion of the competent authority. It has been further mentioned that the standard terms and conditions for deputation followed in NHAI are enclosed herewith. This annexure clearly mention that appointment of the applicant for the post of Manager is a provisional appointment, offer of appointment to the applicant is on deputation and the standard terms and conditions for deputation are to be followed in NHAI.
11. From the reply as per Annexure R-2, the letter has been issued to the applicant on 11.08.2019, 13.08.2019 (Annexure R-4) and 05.09.2019 (Annexure R-5). The regional officer has also submitted the report to the Chief General Manager vide Annexure R-7. Final Report on the causes of failure of RE wall to VUP at Data Colony CH 317+610 has been submitted by Associate Professor Civil Engineer, IIT Indore vide Annexure R-8. The replying respondent has also annexed Annexure R-10. As per Clause 10 of this Annexure, it has been clearly spelt that the deputation for initial period is of three years, which can be extended by two years by Chairman, if the work disposed is satisfactory. As from the record, we found that the respondent department has called the explanation from the applicant and the respondent department was not satisfied with the work of the applicant. So it is within the purview of the competent authority to repatriate the applicant to the parental department, if the working of the employee is not satisfactory.
12. Regarding the submission that the applicant has been appointed on deputation and it is not a case of transfer on deputation. The applicant had relied upon the judgment passed by the Hon'ble apex court in the case of Ashok Kumar Ratilal Patel Vs. Union of India and another (SUPRA). From this judgment, it is clear that there is a different between appointment on deputation and transfer on deputation. In the present case, this is a case of appointment on deputation and the same can be cancelled on the ground of not suitability and unsatisfactory work. In the instance case, the competent authority has found work of the applicant unsatisfactory and despite various opportunities/notices issued by the respondent authority. The applicant had made the representation later on and the competent authority is not satisfied by the explanation given by the applicant. Needless to say, that the competent authority is the sole body to assess the work and in view of the Annexure R-4, R-5, R-7, R-8, the competent authority has repatriated the applicant to the parental department. Furthermore the extended period has also expired on 25.06.2021.
13. In Original Application no. 566/2020, the only question for adjudication is whether there is any arbitrariness on the part of the respondent no. 4 (Project Director) in not forwarding the case of the applicant to the competent authority. The replying respondents has specifically submitted in their reply that the applicant had made a representation to the parental department for providing the NOC to the applicant for further one year extension of the deputation. The situation in the deputation is otherwise to the fact that NHAI should have requested the parental authority to provide NOC which has not been done by NHAI. In view of such position, there is no question for forwarding the cause of the applicant for further extension of deputation of the applicant.
14. In view of the above, both the Original Applications have no merit and both the Original Applications are dismissed as no order for cost.
(Naini Jayaseelan) (Ramesh Singh Thakur) Administrative Member Judicial Member Vk/- As Nos.200/00882/2019 & 200/00566/2020 age 13 of 13