Central Administrative Tribunal - Jabalpur
A P Tripathi vs M/O Communications on 3 March, 2023
Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
(1)Original Application No.200/00590/2020
(2) Original Application No.200/00591/2020
Jabalpur, this Friday, the 03rd day of March, 2023
HON'BLE JUSTICE SHRI AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
A.P. Tripathi, S/o Shri P.P. Tripathi, aged about 51 years, Presently
working as Special Secretary, Commercial Tax (Excise) Department,
And Managing Director Chhattisgarh State Marketing Corporation Ltd.
Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur (Chhattisgar), R/o 1-
A, Street SPA, Sector - 9, Bhilai (Chhattisgarh) - 490001
- Applicant in both O.A.s
(By Advocate - Shri Manoj Sharma, learned Sr. Advocate, along with
Shri Krishnendra Shukla)
Versus
1. Union of India, through its Secretary, Ministry of Communication,
Sanchar Bhawan, New Delhi - 110001.
2. State of Chhattisgarh, Through its Principal Secretary, General
Administration Department, Mantralaya, Mahanadi Bhawan, Atal Nagar,
Raipur (Chhattisgarh) - 492001
- Common Respondents
(By Advocate - Shri Sanjay K Agarwal, along with Shri D S Baghel,
for respondent no. 1, Shri Ajay Ojha, for respondent no. 2)
(Date of reserving order: 27.02.2023)
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Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020
COMMON ORDER
By Shri Kumar Rajesh Chandra, AM.
Heard.
2. The Original Application No.200/590/2020, that relates to the issue of impugned charge memo alleging that the applicant had overstayed in the State of Chhattisgarh on deputation and tried to bring outside influence/interference for extension of service on loan basis beyond seven years and another O.A.200/591/2020, filed by the applicant seeking absorption of his services in the State of Chhattisgarh for which all the requisite formalities have already been done. Both these Original Applications are decided by way of a common order. For the purpose of this order, the facts and the documents referred in O.A. No.590/2020 have been taken as the lead case.
3. The applicant was initially appointed in the Junior Time Scale (JTS) of ITS Group A Service after qualifying IES examination and his allocation to ITS Cadre and was posted as Additional Divisional Engineer Telecom (ADET) on 15.11.1994. Thereafter, vide order dated 06.07.1998 (Annexure A/3), the applicant was promoted to Senior Time Scale of ITS Group-A Service and was posted as Divisional Engineer Telecom. Thereafter, on 01.10.2000, BSNL came into existence and at that time, thousands of employees Page 2 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 including in the Group A Services viz ITS Officers, working in the department of Telecom were sent on deemed deputation to BSNL. Though the concept of deemed deputation is alien to service jurisprudence, wherein deputation entails consent of the employee concerned which was absolutely missing in this case. The applicant while working in BSNL, on 21.03.2002 (Annexure A/4), promoted to Junior Administrative Grade of ITS Group - A. The applicant further submitted that during the period 2005-2013, as many as three attempts were made and a lot of pressure was mounted on ITS Officers to seek absorption in BSNL. This also resulted in various litigations. As many as on two different occasions in order to avoid contempt and wrath of various courts, cosmetic repatriation en masse, were resorted to wherein on paper, repatriation orders were issued and on that very same day all the repatriated ITS officers were redeployed back to BSNL and it can also be concluded that majority of ITS officers have not opted for absorption in BSNL and so called deemed deputation/deployment in BSNL since last more than 20 years is contrary to the very principle of Foreign Service/Deputation. Thus, the issue of a fix tenure deputation or outer limit of deputation for Central Government Employees has itself been gravely violated by the respondent no. 1. The applicant also submitted that there is no shortage of ITS officers and a large no. of them are working in Page 3 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 various departments of Central Govt, state Govts and in other PSUs of Central and State Governments. While serving in BSNL on deemed deputation/deployment, applicant applied for deputation in the State of Chhattisgarh. Vide order dated 29.03.2012, the State of Chhattisgarh requested for services of the applicant on deputation. On 30.04.2012 (Annexure A/8), the respondent no. 1 issued "NOC" for deputation of applicant to the State of Chhattisgarh. An Order dated 14.08.2012 was passed by the Govt. of Chhattisgarh appointing applicant as Joint Secretary in Commerce, Industry and Public Enterprises Department. Despite the appointment order of the applicant, the applicant was relieved from BSNL on 31.01.2013 and on 01.02.2013, the applicant joined the services under State of Chhattisgarh. Vide communication dated 24.12.2013 (Annexure A/12), respondent no. 1 issued the terms and conditions of deputation of applicant to the respondent no. 2. Vide order dated 16.05.2014, designation of the applicant was changed and the applicant was appointed as Special Secretary in the Department of Commercial Tax (Excise) and during this period, the applicant's deputation period was extended from time to time vide orders dated 24.11.2014, 18.11.2015, 07.01.2016 (Annexure A/14 Colly.). The State of Chhattisgarh, in pursuance to a policy decision w.e.f. 01.04.2017 constituted a corporation styled as Chhattisgarh State Marketing Corporation Ltd. Page 4 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 (CSMCL) and the applicant was chosen to head this newly created corporation as its Managing Director and he being the first Managing Director, was given the major responsibilities and CSMCL being one of its kind, in the entire country has become a role model which is sought to be followed in other states. The applicant is heading and discharging a very important function in the State of Chhattisgarh. As the seven years period of deputation was nearing end, a request was submitted by respondent no. 2 to respondent no. 1 seeking extension of deputation period on loan basis as the services of the applicant were urgently required in the State of Chhattisgarh, but the same was rejected by respondent no. 1 vide letter dated 06.01.2020. Further the State of Chhattisgarh approached respondent no. 1 and requested urgent extension of deputation period of the applicant for at least one year on loan basis but no decision was taken by the respondent no. 1. Thereafter the applicant vide letter dated 05.02.2020, applied for absorption of his services in the state of Chhattisgarh and vide letter dated 18.02.2020, State of Chhattisgarh forwarded proposal of absorption of services of the applicant in state of Chhattisgarh. Upon that request, the respondent no. 1 vide letter dated 06.03.2020, directed the State of Chhattisgarh to forward willingness of applicant for absorption, to respondent no. 1 for necessary formalities for absorption. Likewise, on 12.03.2020 (Annexure A/22), the State of Page 5 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 Chhattisgarh (Respondent no. 2) forwarded the application submitted by the applicant, indicating his willingness for absorption in the State of Chhattisgarh. Further, vide letter dated 23.06.2020 (Annexure A/23), the Chief Secretary, State of Chhattisgarh requested the respondent no. 1 for extension of deputation period of applicant till 31.01.2021 on loan basis particularly looking to the ongoing COVID crisis and lack of personnel resources at the disposal of the State of Chhattisgarh for handling the affairs of the State. While the process of absorption was/is under way, on 04.09.2020, State of Chhattisgarh received a communication dated 19.03.2020 of the Department of Telecom, directing the State of CG to release the applicant to join his parent department (DOT). The applicant further submitted that State Govt did not relieve him and vide letter dated 01.10.2020 (Annexure A/25) addressed to respondent no. 1 requested that permission for absorption of applicant's services in the State of Chhattisgarh be given and till such time, he may be permitted to continue in services on loan basis as there is acute shortage of Officers and in the particular backdrop of the COVID Scenario, applicant cannot be relieved. The applicant also cited a few examples, though there are large numbers of such cases, wherein ITS officers on deputation and having completed seven years period, have been permitted to continue further, on loan basis, to serve in various State Governments, in other Page 6 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 Central Department/s as also within department of Telecom in other PSUs. The applicant cited examples of V K Chhablani, Shri Bhadru Muloth , ITS Officer, Shri Ved Prakash Verma, an ITS Officer, Shri M Ramesh and also Shri Anil Kumar Gupta and Shri P K Panda, ITS officers, who were on deputation in different Departments under Central/ State Govt were granted extension on loan basis beyond seven years. The applicant further submitted that it was expected that services of officers which have been sent on deputation to the State Govts or other department/PSUs of the Central Govt are required for the purposes of borrower department/organization so far as ITS Officers are concerned, even beyond period of 7 years of deputation, the services have been continued on loan basis and in fact various ITS officers have been absorbed in various State Governments and other organizations throughout the country and it was reasonably believed that this established practice would not be deviated in the case of the applicant as well. However, he was shocked when on 03.11.2020 he received the impugned charged memorandum dated 16.10.2020 (Annexure A/1), alleging that he had overstayed in the State of Chhattisgarh on deputation and tried to bring outside influence/interference for extension of service on loan basis beyond 7 years. The applicant cited an example wherein en masse repatriation of ITS Officers were done from BSNL to DoT by a general order Page 7 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 (Annexure A/31) and when they were not relieved, it was clarified vide order (Annexure A/32) that repatriation would only be effective if they are relieved from their respective posts/assignment in the BSNL and in the similar circumstances, the applicant is not being relieved by the State of Chhattisgarh and the case of absorption of his services in the State of Chhattisgarh is still pending consideration.
4. The respondent no. 1 has filed reply, wherein it has been submitted that the applicant, a JAG of ITS Group "A" officer had proceeded on deputation to Govt of Chhattisgarh as per Department of Telecom's letter no. 391-80/2012-STG-III dated 21.12.2012 and was relieved from BSNL vide letter dated 31.01.2013 (Annexure A/16) initially for a period of three years which was subsequently extended from time to time up to 31.01.2020, i.e. maximum permissible period on deputation of 7 years in pursuance of DoP&T order F.No. 02/06/2016-Estt. (Pay-II) dated 17.02.2016 (Annexure R/5) based on the request from the State Govt. Thereafter, the request of the State Govt. of Chhattisgarh dated 14.11.2019 for further extension of service of the officer beyond 31.01.2020 for further period of two years on loan basis was not acceded to by this Department. The same was conveyed to the Govt. of Chhattisgarh vide this Department's letter No. 391-80/2012-STG III dated 06.01.2020. The multiple references received in this regard were Page 8 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 examined and the State Govt, vide DOTs letter dated 19.03.2020, was again intimated to relieve the officer immediately with directions to report to his parent department immediately. The applicant was duty bound to report back to Department of Telecommunications in terms of Para (ii) of DoP&T OM No. 14017/30/2006-Estt (RR) dated 29.11.2006, which stipulates that the deputationist officer would be deemed to have been relieved on the date of expiry of deputation unless the competent authority has, with requisite approvals extended the period of deputation in writing, prior to the date of its expiry. The applicant also attempted to bring outside influence to further his interest in respect of matters pertaining to his service under the Government. With regards to overstay on deputation, Para (iii) of the DoP&T OM No. 14017/30/2006-Estt (RR) dated 29.11.2006 stipulates that:
"In the event of the officer overstaying for any reason whatsoever, he/she is liable to disciplinary action and other adverse Civil/Service consequences which would include the period of unauthorized overstay not being counted for the purpose of pension and that any increment due during the period of unauthorized overstay, being deferred with cumulative effect, till the date which the officer rejoins his parent cadre"
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Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 4.1 The respondents further submitted that the ITS Officers working in various departments of Central Govt., State Govt., and other Govt. organizations on deputation on loan basis have not taken absorption in State Govt. Even if it had been so, that cannot be treated as an established practice. Furthermore, it is not for the applicant/petitioner to assess and decide whether there is or there is not a shortage of officers in DoT. This Assessment is made by the competent authority after consideration of all relevant facts. Further, in any organized cadre, there is normally a deputation reserve as per which officers are permitted to go on deputation and the petitioner himself is a beneficiary of this process and has availed deputation, for uninterrupted maximum seven years, against the initial deputation of three years, to the State Govt. of Chhattisgarh. So far as working of ITS officers in other Ministries/State Govt/Organisation beyond 7 years on loan basis is concerned, the same has been permitted in exceptional cases with due approval of the competent authority, based on exigencies of services, and other relevant aspect. Officers cannot claim such permission as a matter of right. Furthermore, the terms and conditions as per letter no. 391-80/2012-STG III dated 24.12.2013 clearly spells out that deputation is for a fixed period. The said letter also referred the DoPT OM No. 06.08.2009 - Estt (Pay II) dated Page 10 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 17.06.2010 (Annexure A/4) which reiterated in its para 8, the terms and conditions for the deputation. The applicant's deputation was extended up to 7th year (maximum) in pursuance of DoP&T order F.No. 02.06.2016-Esttt. (Pay-II) dated 17.02.2016 (Annexure R/5). Thus the respondents are acting as per rules in deciding, not to further extend his deputation. Also vide DoT letter No. 315-80/2012-STG-III dated 06.01.2020 (Annexure R/6), the State Govt. of Chhattisgarh was apprised that their request for extension of services of Applicant has not been acceded to by this Department. Subsequently, vide DoT Letter No. 315-80/2012 - STG-III dated 19.03.2020 (Annexure R/7) the state Govt of Chhattisgarh was again apprised that their request for extension of services has been re-examined and same could not be acceded to as the Department need officers. So, the averment made by the petitioner that no decision was taken on the request of the State Govt. is not based on fact. Further, as the petitioner did not join his parent cadre on expiry of the deputation period, action was initiated according to DoP&T OM No. 14017/30/2006-Estt (RR) dated 29.11.2006 (Annexure R/1). Furthermore, the applicant claims that he be permitted to be absorbed in the state govt. merely because another officer at different point of time was allowed to continue in State Govt., does not ipso facto make it mandatory that the request in the case of the applicant be also acceded to in the same manner. Page 11 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 4.2 The respondents in their reply further submitted that the extension of deputation was duly examined in the department and the same was not acceded to by the competent authority in the Department. The decision was timely conveyed to the borrowing organization, however, in defiance to the Government Rules/Guidelines and instructions, the petitioner chose to defy the orders issued by DoT. The continuance of the applicant in the Govt of Chhattisgarh is unauthorized and contrary to law. The audacity of the applicant further emanates from the fact that he has chosen not to join back in the parent department despite the charge memorandum dated 16.10.2020. Thus, the contention of the petitioner in relation to discrimination and mechanical exercise of power does not hold. Furthermore, the orders of the department are strictly as per extant DoP&T guidelines, and hence, the contention that various orders of DoT rejecting the extension of deputation of the petitioner were bad in law is not even remotely borne out from the facts stated above. Also the applicant brought outside influence to further his interest and thereby also violated Rule 20 of CCS (Conduct) Rules, 1964. Thus, Shri Arun Pati Tripathi, by above act of overstaying on deputation and failing to report back to his parent department on completion of tenure of Deputation has violated the terms and conditions of deputations as mentioned in the DoP&T OM No. 14017/30/2006-Estt Page 12 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 (RR) dated 29.11.2006. He has also violated Rule 20 of CCS (Conduct) Rules, 1964. Therefore, a charge memo dated 16.10.2020 has been served upon the charged officer and disciplinary proceedings have been initiated. The respondents submitted that the example of certain officers cited by the applicant, to continue with the borrowing organization beyond the period of deputation on loan basis is an exception and not the rule and this cannot be taken as precedence. Such exceptions are considered by the competent authority in view of all the relevant facts and circumstances, as relevant in each case and in the larger public interest. The respondents submitted that the applicant has not only committed gross misconduct, but also set a bad precedent of outrightly disobeying lawful instructions of his parent employer.
5. The respondent no. 2 (State of Chhattisgarh) has also filed the reply. In the reply, it has been submitted that charge memorandum dated 13.10.2020 passed by respondent no.1 (Annexure A/1) in the present O.A. has alleged that the charge sheet has been issued solely on the ground of not reporting to his parent department on completion of period of deputation and the applicant has been serving in the State of Chhattisgarh on deputation for a fairly long period of time precisely for about 9 years. The applicant is the part of framing and putting in place the new model for liquor trade in the State of Page 13 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 Chhattisgarh. The present dispute regarding which this O.A. has been filed, the charge sheet has been issued by the respondent no. 1 and the allegation regarding the same, i.e. issuance of charge sheet and facts leading to the same can only be replied by the respondent no. 1. The respondent no. 2 further submitted that vide Annexure/23, a request was made by the Govt. of Chhattisgarh to provide consent of department of Telecommunication for absorption of the applicant in the State of Chhattisgarh and also to provide service of the applicant on loan basis upto the period of 31.01.2021. Though, the communication was received to relieve the applicant, but looking to the nature of assignment handled by the applicant, request for his absorption that was pending and further requests were being made to extend his services on loan basis for a further period of time and therefore the applicant was not relieved and also due to prevailing conditions like outbreak of COVID - 19 and lockdown and also shortage of manpower, the services of the applicant were required.
6. The respondent no. 2 has also filed reply in O.A./591/2020. The aforesaid O.A. has been filed by the applicant for his absorption of his services in the state of Chhattisgarh and the applicant alleged that for which, all the requisite formalities have already been done. The respondent No. 2 further submitted that ITS officers have worked on deputation for fairly a long period of time and the respondent no. 1 Page 14 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 had on earlier occasions requested other Central Department and State Government from time to time to utilize the services of ITS officers as this would clearly indicate that there are surplus officers (Annexure R/2/1 annexed with O.A. 591/2020). The respondent no. 2 also submitted that the entire liquor policy has been changed and the new system has come into place of the same has been done so that the revenue collection in the State of Chhattisgarh increases and entire illegal activities related to liquor trade is reduced to the minimum. The model adopted by the state has become such a policy which is being examined by the other states also. It was further submitted that reminding of earlier communication by the respondent no. 1 vide communication dated 18.02.2021 (Annexure R2/3 annexed with O.A./591/2023) the answering respondent no. 2 made the request for extension of service of the applicant in the State on loan basis till 31.01.2023 and also made request that the consent be provided for absorption of the applicant in the services of Chhattisgarh State.
7. The applicant has also filed rejoinder in O.A./590/2020 wherein the applicant submitted he is not violating any rule or regulation or overstaying on deputation as is contended by the answering respondent, or at all. The issue pertaining to period of deputation coming to an end and repeated request of State of Chhattisgarh being rejected in a most malafide manner and the Page 15 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 insistence of answering respondent to somehow relieve the applicant, have been dealt with and called in question in O.A./591/2020. The applicant submitted that in matters of extension of deputation of applicant on the request of State Government of Chhattisgarh have not been considered by answering respondent in a bona fide manner. He further submitted that the non-relieving of the applicant by the State of Chhattisgarh, a Sovereign Constituent State of Federation/Union is being dubbed as unauthorized, contrary to Rules and Law. Also the request of a Sovereign Constituent State of the Union (State of Chhattisgarh) is sought to be dubbed as outside influence and thereby it is being alleged that applicant has violated the Rules 20 CCS (Conduct) Rules, 1964. The applicant further submitted that the fact that respondent Nos. 1 & 2 presently are being governed by distinct, different and opposing political ideologies is the only plausible explanation of the impugned action. It is in this back drop that the impugned charge memo is vitiated by malice and has been called in question herein and there is no question of any misconduct on the part applicant.
8. We have considered this matter and also perused the documents annexed herewith.
Page 16 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020
9. During the time of arguments, the counsel for the applicant submitted that the applicant is living with his family and his wife is a group - A Gazetted Officer in the state of C.G. and his children are studying there, so now, reverting of the applicant in the DoT might create distress in the personal life of applicant as well as applicant's family. He further submitted that presently, the applicant is discharging duty of Special Secretary, Commercial tax Department (Excise) under the respondent no. 2 and was further given the additional charge of Managing Director, Chhattisgarh State Marketing Corporation Ltd, an organization fully owned by the Government of Chhattisgarh. The function of the said organization is to bring it within the control of the Govt. of Chhattisgarh, the conduct of the retail liquor business so that the government is able to get the maximum revenue and the applicant has helped the state on generating a high revenue and along with it, all illegal liquor trade was stopped. It can also be said that the model adopted by the state of Chhattisgarh is also being examined by other states so that they could implement the same model as a result of which their revenue collection also increases. The aforesaid fact makes it a special case for claiming parity with the other ITS officers, cited by the applicant in the original application as the applicant has also done remarkable work for the State. Then why only the Circular of DoP&T OM No. Page 17 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 140917/30/2006-Estt (RR) dated 29.11.2006 apply to him. Moreover, as submitted by the counsel for the applicant, requisite formalities for his absorption in the State of Chhattisgarh were done but due to the fact that the respondents no. 1 & 2 are being governed by distinct, different and opposing political ideologies, the applicant is made to suffer despite the fact that there are various ITS officers' amongst the surplus staff. The counsel for the applicant submitted that the impugned action of the respondents is malafide and tainted with malice as no misconduct on the part of the applicant is made out because he has not been relieved by the State of Chhattisgarh yet. The request made by the State of Chhattisgarh cannot be considered to be an outside influence. He further submitted that the impugned charge sheet deserves to be set aside and should be considered for absorption in the Government of Chhattisgarh by respondent no. 1.
10. At the time of arguments, the counsel for the respondent no. 1 also made his submissions and refuted the submissions made by the applicant by saying that the applicant proceeded on deputation with effect from 31.01.2013 as per letter no. 391-80/2012-STG-III, dated 21.12.2012, initially for a period of three years which was subsequently extended from time to time up to 31.10.2020, i.e. maximum permissible period on deputation of 7 years in pursuance to Annexure R/5 annexed with O.A./590/2020. Thereafter, the requests Page 18 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 for further extension of deputation were not acceded to by the answering respondents in the interest of Department. Accordingly the applicant was duty bound to report back to DoT, but the applicant did not report and further attempted to bring outside influence to further extension in respect of matters pertaining to his service under the State Government. The counsel for the respondents also submitted that as there are surplus ITS officers, so he should be continued here, but this consideration is not open for this Tribunal, it is only up to the employer who can decide as to how many persons are required at a time for proper functioning and this cannot be examined now as it is not the case of judicial review. The applicant has violated the lawful order of the employer so the applicant was rightly charge sheeted as it was the only remedy available with the employer. The mere act of indiscipline of the part of the applicant cannot be justified as it had set a bad precedent of outrightly disobeying lawful order of his parent employer and it may in the near future also encourage indiscipline and disobedience amongst other officers/cadres. The applicant is harping upon the incidence extension of period of deputation of other ITS officers and claiming parity with others as they were allowed on loan basis for extension of deputation period, and also requesting for absorption in the state of Chhattisgarh against the wishes of employer. The other Officers who were granted extension beyond the period of Page 19 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 7 years were granted extension in the special circumstances as an exception and not the rule, that cannot be taken as precedence and such exceptions are considered by the competent authority in view of all the relevant facts and circumstances, as relevant in each case and in larger public interest and the applicant cannot claim such permission as a matter of right and the applicant is bound to obey the lawful order of the employer. The counsel for the respondents further submitted that as the counsel for the applicant alleged malafide and malice against the respondent no. 1, but in its rebuttal, the counsel for the respondent no. 1 submitted that no malafide exhibits on the part of the employer because the charge sheet has been issued when the applicant violated the terms and conditions of Deputation as mentioned in DoP&T OM No. 14017/30/2006-Estt (RR) dated 29.11.2006 and also in violation of Rule 20 of CCS (Conduct) Rules 1964. Also no allegation of malice against any specific officer has been made. Moreover, the charged memo issued by the respondent no. 1 has been rightly issued.
11. Also during at time of hearing, the counsel for the respondent no. 2 (State of Chhattisgarh) submitted they were satisfied with the work of the applicant and made the request for extension of service of the applicant in the State on loan basis till 31.01.2021 and Page 20 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 also made request that the consent be provided for absorption of the applicant in the services of Chhattisgarh State.
FINDINGS:
12. If we summarise the rival contentions stated above, in the O.A. No. 590/2020 the charge sheet issued to the applicant for non- compliance of the order of Respondent No.1 of returning to his parent department on completion of the term of deputation is being challenged that no misconduct is there on the part of the applicant who is the charged officer here. It has been stated that the applicant has not been relieved by the borrowing employer that is the Government of Chhattisgarh and issue of his application for absorption of his service in the employment of state of Chhattisgarh is still pending before this tribunal in O.A. 591/2020. The counsel for applicant says that for want of being relieved by the Government of Chhattisgarh he cannot abandon his post and run away on his own.
13. The article of charge further imputes that the applicant has tried to bring about political influence through a letter to Hon'ble Minister of Road Transport and Highways Government of India that was forwarded by the Hon'ble Minister. Both the opposing Counsels have not much to say on this point. Interestingly, learned counsel for the applicant has all through, during the course of his argument been Page 21 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 harping on the different and opposing political dispensation in Central and State Government to be the reason for alleged witch hunting. But the contention of the applicant that request made by the state of Chhattisgarh for his continuation in their employment cannot be treated as bringing about outside political influence dodges the charge that he made a request to the Union Minister as clearly spelt out in the article of charge memo ( the impugned order).
14. This is understandable as the record reveals that in the initial stage in the year 2012, applicant wrote a letter directly to the then Chief Minister of Chhattisgarh (Annexure-A/6 of O.A.) for his posting in the Government of Chhattisgarh when he was a central government employee. But the case was processed favourably by both the State and Central Governments and he was sent on deputation. The fact remains that initially when the applicant came on deputation, the political party at the helm at Government of Chhattisgarh was the one that is now ruling party in the Central Government and the party that was there in Central Government is now ruling in the State Government. He could have been proceeded against at that time for the same charge of bringing about political influence and canvassing for a particular post that in itself is a violation of conduct rules. This is a classic case of bureaucratic influence in politics as juxtaposed to Page 22 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 political influence in bureaucracy and the water appears to be muddied everywhere.
15. It will be pertinent to mention that interim relief was granted by this tribunal on 10.11.2020 against any coercive action against the applicant. Accordingly, it has been averred by the Respondent No. 1 that any action in furtherance to the issuance of charge sheet against the applicant has been stalled. Moreover, it is incumbent upon the applicant to abide by the instruction of respondent No. 1. Since they are restrained by the Interim Relief granted to the applicant, there is no way to get him back to his parent department. The applicant, as is evident from his own letter addressed to the Chief Secretary Government of Chhattisgarh, is fully aware that his deputation tenure has been completed on 31.01.2020 and subsequently has made a request for his absorption in Government of Chhattisgarh (Annexure- A/19 of O.A.). A clear inference is drawn that he has no inclination to return to his parent department.
16. In the O.A. No. 591/2020 the issue of absorption of the applicant in the employment of his borrowing employer (Respondent No. 2) is being considered.
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17. In both the O.A. similar arguments have been adduced by the learned counsels of applicant and Respondent No. 1 as the two are intimately connected.
18. Ld. Counsel for the respondent No. 2 has made a very simple submission that it has put forth its views by recommending the case of the applicant to Respondent No. 1 as he is rendering good service in the employment of borrowing employer and his continuance is desired. He does not have to add anything further as to what course of action is being contemplated by the respondent no. 2 if respondent no. 1 refuses to budge from the stance of not acceding to the request of applicant / respondent no.2. This is the situation of a stalemate.
19. The concept of "deputation" is well understood in service law and has a recognised meaning that means providing the service of an employee by the original employer as a lending employer outside the cadre or outside the parent department on a temporary basis for a defined period.
20. After this period of deputation the employee has to come back to his parent department unless in the meanwhile there has been an order to the contrary by the competent authority. Page 24 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020
21. The person so deputed would, therefore, know his rights and duties in the deputation post as well as be aware of the conditions of deputation including the tenure of deputation.
22. A deputation also involves the borrowing employer who has to discharge specific rights and obligations as per the conditions of deputation towards the employee and the lending employer.
23. The concept of deputation is normally consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It normally involves the consent of the employee to go on deputation.
24. However, it is possible that the Government (Centre/State) can send its employee on deputation as well as withdraw the services of employee as and when the need arises even without consent of the employee as per the service rules and policy.
25. In the present case, initially the consent of all the three namely lending employer (Department of Telecom - Respondent No.
1), borrowing employer (the State of Chhattisgarh - Respondent No.
2) and employee (the applicant) were available.
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26. Now there is a difference of opinions with regard to further extension in the tenure of deputation of the applicant beyond the permissible limit of seven years that includes the extended period beyond the normal initial period of deputation. This is being sought by the applicant either as further extension by way of relaxation in rules or on loan basis or outright absorption of the services of applicant in the employment of borrowing employer. The lending employer (Respondent No. 1) has repeatedly rejected the request of borrowing employer (Respondent No.2) and the applicant. The issue that needs to be decided as to whose opinion and/or what opinion will prevail in case of difference of opinions of the three involved parties.
27. We, therefore are of the considered view that it has to be decided on the touchstone of the aforesaid principles of deputation.
28. The applicant does not have any right to overstay on deputation despite being fully aware of the conclusion of his tenure of deputation. He does not have the authority to question the decision of the Government (Respondent No.1) regarding relaxation granted to certain officers for some reasons or whether there is shortage/surplus of officers in his cadre and the mode of their utilisation. He should have obeyed the direction issued to him by the Government of India (his parent department and the lending employer) and accordingly Page 26 of 27 Subject : Chargesheet O.A.No. 200/00590/2020 & O.A.No. 200/00591/2020 joined his parent department on conclusion of his tenure. He has no vested right on his deputation post and wait endlessly for order allowing him to continue in the employment of borrowing department either through extension or absorption.
29. Hence, both the Original Applications are dismissed. No costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
Vk/-
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