Gujarat High Court
Director (Marketing) vs K S Vyas on 14 July, 2015
Bench: Jayant Patel, Rajesh H.Shukla
C/LPA/329/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 329 of 2009
In
SPECIAL CIVIL APPLICATION NO. 7516 of 1991
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL : Sd/
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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DIRECTOR (MARKETING),
INDIAN OIL CORPORATION LIMITED & 1....Appellant(s)
Versus
K S VYAS, UNION REPRESENTATIVE,
NATIONAL ASSOCIATION OF OIL & 2....Respondent(s)
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Appearance:
MR MANISH BHATT, Sr. Adv. with MRS MAUNA M BHATT for
the Appellant(s) No. 1 2
DELETED for the Respondent(s) No. 3
MR DG CHAUHAN for the Respondent(s) No. 1
MS ARCHANA U AMIN for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Page 1 of 15
C/LPA/329/2009 JUDGMENT
Date : 14/07/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA)
1. The present appeal is filed by the appellant original respondent nos.2 and 3 being aggrieved with the judgment and order passed in Special Civil Application No.7516/1991 by the learned Single Judge dated 02.02.2009 on the grounds set out in the memo of appeal.
2. Heard learned senior counsel, Shri Manish Bhatt appearing with learned advocate, Mrs.Mauna Bhatt for the appellants and learned advocate, Shri D.G. Chauhan for the respondent no.1.
3. The background of the facts briefly stated are that the respondentsoriginal petitionersNational Association of Oil Employees working with the Oil Selection Board (OSB) prayed for appropriate directions to pay Deputation Allowances from the respective dates of their deputation in the office of OSB. The appellantsoriginal respondents had inter alia contended that it is not a deputation at all, which could be born out from any record including the fact that there is no order regarding the deputation. It is also contended Page 2 of 15 C/LPA/329/2009 JUDGMENT that since it is a disputed question of fact regarding the appreciation of the details and material, the impugned order, by which, the petitioner has been entertained, is not justified.
4. Learned senior counsel, Shri Bhatt appearing for the appellants referred to the background and pointedly referred to the judgment of the learned Single Judge and also affidavit filed by the appellant as original respondents. Learned senior counsel, Shri Bhatt referred to the affidavitin reply and emphasized about the facts, which have not been in dispute to contend that OSB was established by the Union of India as a separate body for selection of dealers and distributors for all four oil companies. He therefore submitted that the meeting of the OSB would take in the premises of the IOC and staff was reporting to the General Manager of IOC Ltd. and the members of the original petitionersunion are permanent employees of IOC Ltd. He pointedly referred to the details to emphasis that this board was established but the staff of IOC was carrying out the function for the board and in fact, there is no deputation. He referred to the order at AnnexureR1 and submitted Page 3 of 15 C/LPA/329/2009 JUDGMENT that the transfers were made at the request of the employees concerned and in fact, some employees have accepted the settlement arrived at with regard to the benefits of the revision of salary etc. Learned senior counsel, Shri Bhatt therefore strenuously submitted that the members of the original petitionersunion have remained the employees of the IOC and they have accepted the benefits under the settlement as the employees of IOC and there has not been any posting or transfer outside the cadre. He pointedly referred to the long term settlement. Learned senior counsel, Shri Bhatt therefore submitted that IOC being largest oil marketing committee was given responsibility to provide facilities for the OSB in terms of infrastructure and operational cost. Therefore in order to reduce the expenditure of the OSB, it was decided to use the existing facilities and the operational costs to be born by the Oil Marketing Companies. He therefore submitted that the officers, who were specifically attached to OSB were treated on deputation. He emphasized that the reason was that additional and different duties of the respective authorities Page 4 of 15 C/LPA/329/2009 JUDGMENT were given to them on account of the formation of OSB. However the clerical staff could work without any conflict of interest and, therefore, they were not required to be brought on deputation.
5. Learned senior counsel, Shri Bhatt therefore submitted that in fact, OSB was established pursuant to the guidelines in the year 1983 and the petition has been filed in the year 1991. Learned senior counsel, Shri Bhatt also submitted that the members of the original petitionersunion having accepted the benefits under the long term settlement as employees of the IOC now cannot be permitted to approbate and reprobate with regard to the claim for deputation. He emphasized that there is no order of deputation and in absence of any specific order of deputation, no claim could be made for such allowances or any other benefits. He submitted that the members of the original petitionersunion also having accepted this fact had not challenged and subsequently it has raised such issue. Learned senior counsel, Shri Bhatt submitted that the word "deputation" has a specific meaning and connotation and it has been also considered by the Hon'ble Apex Court in a Page 5 of 15 C/LPA/329/2009 JUDGMENT judgment in case of State of Punjab & Ors. Vs. Inder Singh & Ors., reported in AIR 1998 SC 7. Learned senior counsel, Shri Bhatt has emphasized the observation made in paragraph no.19, which reads as under: "Concept of "deputation" is well understood in service law and has a recognised meaning. `Deputation' has a different connotation in service law and the dictionary meaning of the word `deputation' is of no help. In simple `deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also been in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables s the case may be."
6. Learned senior counsel, Shri Bhatt has also referred to the communication/guideline dated June Page 6 of 15 C/LPA/329/2009 JUDGMENT 3, 1983 and submitted that as provided in clause (G), there was a specific order of deputation qua the officers. He therefore submitted that for the reasons as stated above, the officers were brought on deputation to avoid any conflict on duties while functioning with the board separate from their own company. He submitted that as there is no such reason, the infrastructure or supporting staff was provided from IOC and, therefore, such administrative or clerical staff, who are the members of the original petitionersunion cannot claim to be on deputation.
7. Learned senior counsel, Shri Bhatt also referred to the papers and submitted that the guidelines dated 03.06.1983 are merely an internal communication and any submission made would not make any different. He submitted that the employees of the original petitionersunion reported to the General Manager of IOC and they continued to report to the General Manager, OIC and, therefore, there is no question of any deputation, which would make them entitle for any such deputation allowance. Learned senior counsel, Shri Bhatt submitted that such communications have Page 7 of 15 C/LPA/329/2009 JUDGMENT never been challenged and it has also been clarified by the appointing authority when they had specifically referred to the deputation of the officer. He referred to the rejoinder also to emphasis with reference to the orders and submitted that as referred to in this affidavit inrejoinder, posting orders of the employees were made as transfer at the request of the employees and it has not been mentioned any aspect about the deputation with consent. He therefore submitted that the organization to which the members of the petitionerunion belong remain the same viz., IOC and they continued to report to the General Manager, IOC and, therefore, the observations made in the order of the learned Single Judge may not be sustained and the present appeal may be allowed as there is no justification for the claim regarding the deputation or the deputation allowances made by the original petitioners respondents herein.
8. Learned advocate, Shri Chauhan referred to the affidavitinreply, particularly, paragraph no.3 and submitted that OSB is a separate body admittedly set up by four oil companies. He Page 8 of 15 C/LPA/329/2009 JUDGMENT therefore submitted that the staff which were sent to OSB would be on deputation. He submitted that it is denied that the employees working with such OSB reporting to the General Manager, IOC, would not amount to transfer and deputation. He also referred to the guidelines produced on record dated 22.03.1983 and emphasized that at the time of set up of OBS, these aspects were considered and, therefore, since board has been set up, the staff working with the board would be on deputation. He emphasized, "necessary secretarial assistance provided by IOC (3 coordinators and his staff). Similarly he referred to the breakup with regard to the staff and other facilities and the expenditure how it has to be borne by four companies. He further referred to the guidelines and also office communication dated 26.11.1987. Referring to this emphasizing on clause (G), which refers to the deputation of the officer. He emphasized clause (G), which reads as under: "IT IS UNDERSTOOD THAT IOC'S OFFICERS WHO ARE BEING ATTACHED TO THE SELECTION BOARDS, WOULD BE TREATED AS ON DEPUTATION AND WOULD BE ENTITLED TO ALL BENEFITS WHICH ARE NORMALLY AVAILABLE FOR DEPUTATIONISTS."
Page 9 of 15
C/LPA/329/2009 JUDGMENT
9. He submitted that if the officers is on deputation, staff would also be on the same manner be treated as on deputation. Learned advocate, Shri Chauhan submitted that the representations have been made, which have been produced at AnnexureD at page nos.13, 15 and 17 in the year 1983 and 1984 and also thereafter, but they have not been responded and the petition was filed. He also referred to the affidavitinreply and rejoinder to support his submission with regard to the deputation. Learned advocate, Shri Chauhan also referred to and relied upon the same judgment in case of State of Punjab (supra) and submitted that it would also support the case of the original petitioner. He therefore submitted that the present appeal may not be allowed.
10. In rejoinder, learned senior counsel, Shri Bhatt referred to the affidavitinrejoinder and guidelines and also submitted that the reply has been given to the representation clarifying as to how the representation cannot be accepted. Learned senior counsel, Shri Bhatt submitted that there is no order of deputation placed on record and looking to the background and record, it is Page 10 of 15 C/LPA/329/2009 JUDGMENT evident that the members of the petitionerunion have remained as employees of IOC. He emphasized that as stated repeatedly, necessary infrastructure assistance was provided by the IOC for the functioning of the OSB. He therefore submitted that as contended, OSB has also been dissolved pursuant to the decision of the Ministry of Petroleum and Natural Gas vide communication dated 09.05.2002. He reiterated that as explained by the Hon'ble Apex Court, the deputation has a different meaning and connotation and, therefore, the present appeal may be allowed setting aside the order of the learned Single Judge.
11. In view of these rival submissions, it is required to be considered whether the present appeal could be considered.
12. As it transpires from the papers, the controversy involved is with regard to the claim made for the deputation and the deputation allowances. However as admittedly stated in the affidavitinreply, the order of deputation has not been placed on record by the petitioner and in absence of any such order of deputation, the claim is made by the petitioner for its members that they were on Page 11 of 15 C/LPA/329/2009 JUDGMENT deputation with OSB. In other words, such claim is made without any basis or foundation inasmuch as there is no order regarding the deputation. What has been claimed is on the basis of some conjecture and reference is made to the guidelines or the office note. As could be seen from the guidelines dated 22.03.1983, for which, emphasis is made on clause (G) as stated above, it has no relevance for the purpose of present appeal.
13. As contended by learned senior counsel, Shri Bhatt referring to the affidavitinrejoinder that the officers were treated on deputation for the reasons, which have been stated that there may not be any conflict of their interest or the work and, therefore, it was specifically made clear in the guidelines itself. However, the members of the petitionerunion knew very well that they are not on deputation and they were merely provided as an infrastructure or administrative support to OSB as a measure for reducing cost. The establishment of OSB is a different and the issue involved is whether the members of the petitionersunion were sent on deputation outside their cadre or organization. Therefore, the moot question is Page 12 of 15 C/LPA/329/2009 JUDGMENT whether there was any transfer or deputation of the employees (members of the petitioner) outside the cadre from the organization or with OSB. It is required to be mentioned here that OSB was established or set up for the specific purpose by the Government of India for selection of the dealership or distributorship for all four companies. Therefore, it was not a separate body or establishment and the staff of IOC as a co ordinators being largest company was provided as an assistance for the functioning of the board. Therefore IOC as coordinators had provided the secretarial assistance from amongst the staff of IOC like the members of the petitionerunion. Therefore merely because the members of the petitionerunion worked for some time for the purpose of the board, would not justify the claim for deputation in absence of any specific orders regarding the deputation. It is well accepted that the deputation has to be with consent and there is not a whisper about any objection raised by any one that they had not given any consent unless it was accepted as a deputation. In fact, the record shows from the some orders produced on record that Page 13 of 15 C/LPA/329/2009 JUDGMENT it was a transfer at the request made by the concerned employee, which is produced at Annexure R1 with the affidavitinreply. Further as stated by the appellantoriginal respondent that the members of the petitionerunion having accepted the benefits under the long term settlement as employee of IOC cannot approbate and reprobate. Therefore once having accepted the benefit of long term settlement as employee of IOC now cannot be permitted to raise such dispute about the deputation, which would be outside the cadre or organization. Therefore if they were in other establishment or organization like OSB, they would not have availed of settlement for the employees of IOC. The observation made by the Hon'ble Apex Court in a judgment relied upon by both sides in case of State of Punjab (supra) clearly refers to the fact that the deputation has a different connotation in service law. It also refers to the transfer outside the normal field of deployment and it also made clear that there could be no deputation without consent. Further, it cannot be confused either with transfer or with promotion and the fact that the members of the petitioner Page 14 of 15 C/LPA/329/2009 JUDGMENT union have not been sent to any separate cadre and when there is no order of deputation placed on record. Further even assuming without admitting, it also raise the question of factum about the deputation, which could be considered on the basis of the material and evidence. It is desirable that such issues cannot be decided in such proceedings. Therefore, the present appeal deserves to be allowed.
14. In the circumstances, the present appeal stands allowed. The impugned order of the learned Single Judge passed in Special Civil Application No.7516/1991 dated 02.02.2009 is hereby quashed and set aside.
Sd/ (JAYANT PATEL, J.) Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 15 of 15