Delhi High Court
Shri Ravi Kumar Mathur vs Union Of India (Uoi) And Anr. [Along With ... on 7 September, 2006
Author: Manju Goel
Bench: Manju Goel
JUDGMENT Manju Goel, J.
1. These are the two writ petitions filed by two Presiding Officers of Debt Recovery Tribunal at Delhi. Both the petitions raise the same questions of law and fact. Accordingly, they are taken up for disposal together.
2. For facts I will first refer to WP(C) 11617/2006. The petitioner herein is Mr. Ravi Kumar Mathur, Presiding Officer of Debt Recovery Tribunal-II. He is a member of the Rajasthan Higher Judicial Service (RHJS). By virtue of a notification dated 29.8.2003 he was appointed Presiding Officer of DRT-II for a fixed period of five years or till he attained the age of 62, whichever was earlier. The notification was issued by the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division). The notification reads as under:
New Delhi, dated the 29th August, 2003 Notification In pursuance of the powers conferred by Sub Section (i) of Section 4 read with Section 6 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (51 of 1993), the Central Govt. hereby appoints Sh. Ravi Kumar Mathur, RHJS as Presiding Officer of Debts Recovery Tribunal-II, Delhi for a period of five years from 18.8.2003 (F.N.) or till he attains the age of 62 years, whichever is earlier.
Sd/-
(S.P.S. SANGWAN) Under Secretary to the Govt. of India
3. The petitioner alleged that he had come to know that respondent No. 1 had issued a letter to the respondent No. 2 viz. the Registrar, High Court of Rajasthan for repatriating the petitioner. The petitioner alleges that he was appointed for a fixed tenure of 5 years or till he attained the age of 62 years and, therefore, he could not be recalled by respondent No. 2 and his services could not be terminated by respondent No. 1 before the expiry of the tenure of his appointment. It is submitted that in case the petitioner is sent back to the RHJS, he would be made to retire w.e.f. 31.8.2006 and that will prejudice him as in the tenure post he can continue for another two years. The petitioner bases his claim on Section 15 of the Recovery of Debts due to the Banks and Financial Institutions Act, 1993 (hereinafter referred to as the 'Act') which, inter alia, provides that the Presiding Officer of a Tribunal shall not be removed from his office except by an order made by the Central Government on the ground of proved misbehavior or incapacity after an enquiry. The petitioner's case is that without complying with the provisions of Section 15 of the Act he cannot be removed from the post of Presiding Officer of a Debt Recovery Tribunal and if any such order is passed, that will be liable to be set aside and quashed. It is also submitted by the petitioner that respondent No. 1 has not served any copy of the letter repatriating the petitioner and that no opportunity of being heard has been given to him and that, as such, the order of repatriation is violative of law and principles of natural justice. The petitioner says that the petitioner cannot be treated as an Officer on deputation and, therefore, cannot be recalled by respondent No. 2. The reliefs prayed for by the petitioner are (a) Set aside and quash the impugned order/memorandum/letter issued by respondent No. 1, being illegal, unjustified, unwarranted, void and violative of the provisions of the Act; and (b) Set aside and quash the impugned order/memorandum/letter issued by respondent No. 2, in furtherance to order/memorandum/letter issued by respondent No. 1 or taken suo moto by respondent No. 2, being illegal, unjustified, unwarranted, void and violative of the provisions of the Act.
4. On 21.7.2006 when the writ petition and CM 8752/2006 came up for hearing, Mr. Rajeeve Mehra, advocate was present for respondent No. 1. He informed the Court that on 20.7.2006 the services of the petitioner had been placed back at the disposal of the High Court of Rajasthan, Jodhpur. It was observed that the prayer of the petitioner had been so cast that no date of the impugned order had been given. The petitioner then clarified that the order of respondent No. 1 placing the petitioner's services in the hands of respondent No. 2 was the impugned order. The petitioner thereafter amended the writ petition to alter the prayer (a). The present prayer (a) is as under:
a) Set aside and quash the impugned notification No.18/4/2004-DRT dated 20th July, 2006, and consequently corrigendum dated 21.7.2006 (Annexure A2 and A3) issued by Respondent No.1, being illegal, unconstitutional, unjustified, unwarranted, void and violative of the provisions of The Recovery of Debts Due to the Banks and Financial Institutions Act, 1993 and service conditions.
5. A copy of the notification dated 20.7.2006 was also placed on the record. The same is as under:
New Delhi, dated the 20th July, 2006 Notification The services of Shri Ravi Kumar Mathur, RHJS, Presiding Officer, Debts Recovery Tribunal II, Delhi, on deputation, are placed back at the disposal of Rajasthan High Court, with immediate effect.
Sd/-
(A. Thomas) Under Secretary to the Govt. of India.
6. The corrigendum dated 21.7.2006 reads as under:
New Delhi, dated the 21st July, 2006 CORRIGENDUM In the Notification No. 18/4/2004-DRT dated 20th July, 2006 in respect of Shri Ravi Kumar Mathur, RHJS, Presiding Officer, Debts Recovery Tribunal II, Delhi, the word 'deputation' in the second line may be read as 'tenure basis'.
Sd/-
(A. Thomas) Under Secretary to the Govt. of India.
7. On 21.7.2006 respondent No. 1 was directed to maintain status quo. Respondent No. 1 disclosed on 28.7.2006 that it had issued four letters, two pertaining to the petitioner and two pertaining to two other officers of the RHJS and Rajasthan Judicial Service, and that all the three officers had actually been recalled by the Rajasthan High Court. The letter from the Rajasthan High Court pertaining to the petitioner is dated 24.7.2006. This letter refers to an earlier letter dated 6.7.2006. The letters disclosed that respondent No. 1's action to place the services of the petitioner in the hands of respondent No. 2 was, in fact, done in compliance with the demand of respondent No. 2.
8. The two letters dated 6.7.2006 and 24.7.2006 are extracted below:
No. PA/RG/8(5)/2006/104 Dtd. 06.07.2006 Sub: Repatriation of services of Shri Ravi Kumar Mathur, RHJS, Presiding Officer, D.R.T.-II Delhi Sir, I am directed to say that services of Shri Ravi Kumar Mathur, RHJS presently posted as Presiding Officer, Debts Recovery Tribunal-II, Delhi are needed by the Court for posting him on some other post.
It is, therefore, requested that appropriate orders of the Government for repatriating services of Shri Ravi Kumar Mathur, RHJS from the post of Presiding Officer, Debts Recovery Tribunal-II, Delhi may kindly be got issued at the earliest.
Yours faithfully, Sd/-
Registrar General No. PA/RG/8(5)/2006/490 Dtd. 21.07.2006 Sub: Repatriating the services of Shri Krishan Lal Sharma, RHJS Sir, I am directed to invite your kind attention to this office letter No. PA/RG/8(5)/2906/477 dated 21.07.2006 whereby you were requested to repatriate the services of Shri Kishan Lal Sharma, RHJS presently posted as Presiding Officer, Debt Recovery Tribunal-I, Delhi but the same is still awaited.
It is, therefore, requested that appropriate orders of the Government repatriating the services of Shri Kishan Lal Sharma, a RHJS may kindly be got issued at the earliest.
This may kindly be treated as Most Urgent.
Yours faithfully, Sd/-
Registrar General
9. Petitioner, citing the case of Dr. Bhagat Singh, Vice-Chancellor, Punjabi University, Patiala v. The Chancellor, Punjabi University, Patiala 1981(2) SLR 329 submitted that the Rajasthan High Court could not have recalled him during his tenure of 5 years as Presiding Officer, DRT-II and that respondent No. 1 could not have cut short his tenure as the respondent No. 2 had sent him for a period of 5 years. This Court directed that respondent No. 1 could not be restrained from fulfillling the demands of the parent department and vacated the stay qua respondent No. 1 that had been issued earlier. It was also observed in that order dated 28.7.2006 that the petitioner's argument that the Central Government was not obliged to comply with the demand of Rajasthan High Court did not hold any water because the Central Government was the borrowing authority while the Government of Rajasthan/High Court of Rajasthan was the principal employer. However, observing that the order dated 28.7.2006 did not express any final opinion, this Court directed notice to respondent No. 2. On 10.8.2006 respondent No. 2 was represented by Mr.Sunil K. Jain. He was given four weeks time to file counter as respondent No. 2 had not been served with an advance notice. In the meantime, the petitioner had filed an LPA against the order dated 28.7.2006. The LPA was disposed of by a short order. Relevant part of the order is as under:
The writ petition itself is posted for disposal on 10.8.2006. Accordingly, we are of the view that up to the next date of hearing before the learned Single Judge, status quo be maintained by the parties. This order is subject to the condition that the petitioner must serve respondent No. 2, High Court of Rajasthan a full set of paper book during the course of the day and file such affidavit of service before the learned Single Judge.
10. Before the Division Bench, the parties were the respondent No. 1 herein and the petitioner. It was observed by this Court in the order dated 10.8.2006 that the status quo of the Division Bench was to operate only against respondent No. 1.
11. Both the respondents have filed their counters. The respondent No.1 has, in its counter affidavit, taken the following objections to the writ petition:
a) The challenge in the writ petition is to the Notifications dated 20.7.2006 and 21.7.2006 which can be made only before the Central Administrative Tribunal as the petitioner himself claims to be a Central Government servant as the Presiding Officer of the Debt Recovery Tribunal and, hence, the writ petition deserves to be dismissed on this short ground alone.
b) If the petitioner seeks remedy from the High Court in his capacity of a Member of the Rajasthan Higher Judicial Service, his remedy lies before the High Court of Rajasthan and that even if the extra ordinary jurisdiction of this Court is invoked, keeping in view the well considered action of the Chief Justice of the High Court of Rajasthan, this Court should not exercise its jurisdiction qua the Rajasthan High Court particularly in respect of its authority over the petitioner.
c) The petitioner did not severe his relations with the High Court of Rajasthan, respondent No. 2 and held a lien on his post in the RHJS and, therefore, although the appointment of Presiding Officer, Debt Recovery Tribunal was for a tenure of five years, the petitioner for all intent and purpose was on deputation and hence could be recalled by the parent department during the tenure and that the decision of the respondent No. 2 to seek repatriation of its Judicial Officer cannot be permitted to be called in question before this High Court.
12. The respondent No. 2 in its counter affidavit has, inter alia, referred to some correspondence between the Union Finance Ministry and the Chief Justice of the Rajasthan High Court about inadequacy of the performance of the petitioner and has asserted that the petitioner has been recalled in public interest. The respondent No. 2 adopts all other arguments of the respondent No. 1 regarding the propriety and power of the respondent No. 2 to recall the petitioner.
13. From the above narration of the pleadings three questions arise for consideration viz., (1) Whether in the facts of the case, the respondent No. 2 could recall the petitioner; (2) Whether the petitioner could seek his remedy before this Court without approaching the Central Administrative Tribunal; and (3) Whether this Court can and should exercise the extraordinary writ jurisdiction against the High Court of Rajasthan, respondent No. 2.
14. The petitioner was appointed the Presiding Officer of the Debt Recovery Tribunal vide notification dated 29.8.2003 which is reproduced in para 2 of this judgment. Admittedly, he was a member of the RHJS at that time. He continued to be so when he filed the writ petition and till he reached the age of superannuation on 31.8.2006. Mr.P.P.Malhotra, Additional Solicitor General, appearing for respondent No.1, submits that the petitioners Ravi Kumar Mathur and Kishan Lal Sharma were only on deputation. The word 'deputation' is absent in the notification. Yet the case of the petitioner is that the petitioner held a lien on his post in the RHJS despite his tenure appointment in the Debt Recovery Tribunal. The petitioner while claiming to have lien on his original post is denying the obligation of being subject to the administrative control of the parent department. There can be no right without a corresponding obligation. The petitioner cannot claim a lien on his original post without admitting his obligation to return when called back by the parent department. If this position is accepted, the status of the petitioner in the Debt Recovery Tribunal was only that of a deputationist. This position is inevitable even in the absence of the word 'deputation' in the notification of appointment.
15. The Supreme Court explaining the meaning of the word 'deputation' in the case of State of Punjab and Ors. v. Inder Singh and Ors. has said in para-18 as under:
The 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 words ?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 the 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.
16. The petitioner's counsel, Mr.Sandeep Sethi's argument is that once the appointment is for a fixed tenure of ?five years or till he attains the age of 62 whichever is later? as per Section 6 of the Act, he could be removed only as per the provisions of Section 15 of the Act viz. by resignation or for proven misconduct after an inquiry. Secondly, it is argued that the respondent No. 2 having consented to the petitioner's tenure appointment for five years is estopped from recalling the petitioner. It is to be noticed that the respondent No. 1 has not taken a unilateral decision to repatriate the petitioner. The respondent No. 2 has joined in recalling the petitioner to his parent cadre. Since the lien still subsists, neither the petitioner nor the respondent No. 2 having terminated it, the appointment to the post of Presiding Officer, Debt Recovery Tribunal could only be subservient to the service conditions of the petitioner in the RHJS. Even the tenure appointment is subservient to the original appointment in the RHJS and the petitioner has to be bound by the rules and regulations of that Service. The principle of estoppel in this case applies against the petitioner and not against respondent No. 2.
17. So far as the respondent No. 1 is concerned, it is the case of the petitioner that the respondent No. 1 could not have 'removed' him from the post without following the procedure prescribed under Section 15 of the Act and, hence, the respondent No. 1 was not entitled to repatriate the petitioner before the end of the tenure. To buttress the argument, the judgment of the Punjab High Court in Dr.Bhagat Singh, Vice Chancellor (supra) is cited. In that case the petitioner held tenure appointment under the Punjab University Act, 1961 while on deputation from the service from State Government. It was held that the tenure was statutory and, hence, could not be shortened by the Chancellor, the borrowing authority, and that the State Government could not have recalled the Vice-Chancellor before the end of the tenure. This opinion was based on the premise that the clause of deputation is subservient to the main clause of fixing of tenure. The High Court in this case distinguished its previous judgment in the case of Sri Sohan Singh v. The State of Punjab and Ors. 1970 SLR 291 by saying that although Sri Sohan Singh's deputation was for a fixed tenure, he could be recalled mid-term as the tenure had not been fixed by the statute.
18. I am in respectful disagreement with the High Court of Punjab. In the first place, I have found that the appointment of the petitioner as Presiding Officer, Debt Recovery Tribunal is subservient to the original service conditions of the petitioner in the RHJS. Secondly, the status of the petitioner in the RHJS and the terms and conditions that bind his employment in that service is no less statutory than his appointment in the Debt Recovery Tribunal. In the facts of the present case, I am constrained to hold that respondent No. 2 was entitled to recall the petitioner and the respondent No. 1 was obliged to repatriate the petitioner on the demand of respondent No. 2.
19. The petitioner always considered himself to be a Judicial Officer and a Member of the RHJS. This is why he has chosen the forum of this High Court rather than that of the Central Administrative Tribunal. The finding above is also that the petitioner is first a judicial officer as a member of RHJS. Hence, it cannot be said that the petitioner cannot approach this Court without approaching the Central Administrative Tribunal first.
20. The third objection of the respondent regarding power and propriety of this Court interfering with the decision of the Chief Justice of the High Court of Rajasthan does not require to be determined in view of the above finding.
21. The facts in the case of Mr. K.L. Sharma are similar but for the relevant dates. His appointment in the Debt Recovery Tribunal-I was made for a period of five years vide a Notification dated 7.8.2003, the text of which is similar to the text of the appointment notification of Mr. Ravi Kumar Mathur, extracted in para 2 above. He also continues to hold a lien in his parent service. The respondent No.2 on 21.7.2006 sent a letter to the respondent No. 1 calling back the petitioner. The text of the letter is as under:
No. PA/RG/B(5)2006/477 Dtd:21.07.2006 Sub: Repatriation of services of Shri Kishan Lal Sharma, RHJS.
Sir, I am directed to say that the services of Shri Kishan Lal Sharma, RHJS, presently posted as Presiding Officer, Debts Recovery Tribunal-I, Delhi are needed by this Court for posting him elsewhere in court.
It is, therefore, requested that the services of Shri Kishan Lal Sharma, RHJS presently posted as Presiding Officer, Debts Recovery Tribunal-I, Delhi may be repatriated to this Court immediately.
Yours faithfully, Sd/-
21.7.2006 REGISTRAR GENERAL
22. The notification by which the respondent No. 1 repatriated the petitioner-Mr. Kishan Lal Sharma is as under:
New Delhi dated the 2nd August, 2006 NOTIFICATION The services of Shri Kishan Lal Sharma, RHJS, presently working as Presiding Officer, Debts Recovery Tribunal-I, Delhi on tenure basis, are placed back at the disposal of Rajasthan High Court, with immediate effect. Sd/-
(A Thomas) Under Secretary to the Government of India
23. Additionally, respondent No. 2's affidavit discloses that he has been found to be guilty of some misconduct during his service in the RHJS. This has provided additional ground to recall him. His counsel, Mr. R.S. Suri, Advocate, has adopted all the arguments advanced on behalf of Mr. Ravi Kumar Mathur by Mr.Sandeep Sethi, Senior Advocate. All the arguments raised by Shri K.L. Sharma are sufficiently covered in the proceeding paragraphs in this judgment while dealing with the case of Mr. Ravi Kumar Mathur.
24. In view of above findings, the two petitions are dismissed.
25. Needless to say that the stay orders against the impugned orders operative so far stand vacated and the CM Nos.8752/06, 9183/06 and 9696/06 are dismissed.