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1 - 7 of 7 (0.23 seconds)Section 3 in The General Clauses Act, 1897 [Entire Act]
Section 16 in The General Clauses Act, 1897 [Entire Act]
Union Of India (Uoi) vs Shri J.P. Verma And Anr. on 14 May, 2002
7. Thirdly, on the stand of the respondent / NHRC that the
petitioner was repatriated because of the unsatisfactory work is
also untenable. According to Mr. Garg, this stand of the
respondent / NHRC is immediately within one month of the
extension of the deputation of the petitioner, which pre-supposes
the satisfaction that the competent authority (the Chairperson of
the respondent / NHRC) and could not have been arrived at, that
too by an authority not competent, who was appointed only on
October 8, 2020 i.e., approximately 3 months before him passing
the Impugned Order. He stated, it is only immediately on the
Chairperson demitting the Office that the performance of the
petitioner has become unsatisfactory for his pre-mature
repatriation. Mr. Garg submitted that at no point of time, any
advisory was issued to the petitioner commenting about his
unsatisfactory performance. In any case, it is only the
Chairperson who can assess the performance of the petitioner and
take a decision with regard to the continuance of the petitioner in
the respondent / NHRC. In the absence of the Chairperson, the
petitioner should necessarily be allowed to complete the
deputation as per the order dated November 18, 2020, which was
issued with the approval of the competent authority, i.e., the
Chairperson of the respondent / NHRC, who was in Office on
that date. Mr. Garg would rely upon the Judgment of the
Supreme Court in the case of P. Venugopal v. Union of India,
W.P.(C) 451/2021 Page 5
(2008) 5 SCC 1 and that of this Court in Union of India v. J.P.
Verma and Anr., 2002 (4) Labour Law Note 743, in support of
his submissions that the petitioner's premature repatriation in
terms of the Impugned Order which is stigmatic, could not be
effected in violation of the principles of natural justice.
S.R. Tewari vs District Board Agra And Another on 15 April, 1963
"9....................It is now a well settled rule of
interpretation that a power to appoint ordinarily
implies a power to determine the employment.
That was pointed out by this Court in S.R. Tiwari
v. District Board, Agra [AIR 1964 SC 1680 :
(1964) 3 SCR 55 : (1964) 1 Lab LJ 1] :
Union Of India (Uoi) vs Gurbux Singh And Anr. on 5 February, 1975
In this regard, I may refer
to the Judgment of the Supreme Court in the case of Union of
India v. Gurbux Singh and Anr. (1975) 3 SCC 638. The
relevant portion reads as under:
Venugopal C.P vs Sarawathi.C.P
16. Para 9 contemplates, normally when an employee is
appointed on deputation basis and an issue arises for pre-mature
reversion to the parent cadre of the deputationist, his services
could be returned only after giving an advance notice of at least
three months to the lending Ministry / Department and the
employee concerned. The purpose of this Para is, when a
deputationist is sought to be prematurely repatriated, the lending
authority, i.e., the parent department must have a sufficient notice
of the officer coming back to the parent department, to ensure
that a post is available in the parent department to accommodate
the officer. To that extent the OM may not have any relevance /
applicability in the case in hand inasmuch as his parent
department, i.e., Rajasthan High Court has not expressed any
reservation on the repatriation of the petitioner without any prior
notice. In fact, Rajasthan High Court has given a posting to the
petitioner vide office order dated January 8, 2021 on his
repatriation. Insofar as the stipulation in the said OM that the
employee also need to be notified is concerned, suffice to state
the office order dated October 07, 2019, clearly stipulates that the
deputation of the petitioner shall be governed by the terms and
conditions contained in the said OM. Para 9 of the said OM,
which is under the heading premature reversion of deputationist
to parent cadre, also stipulates giving three months' notice to the
employee concerned, and which notice has not been given to the
petitioner herein, though he has been prematurely repatriated. Mr.
Garg is justified in his submission that premature repatriation of
the petitioner is in violation of OM dated June 17, 2010. The
W.P.(C) 451/2021 Page 11
issue can also be seen from the perspective that when an Officer
is sought to be prematurely repatriated, the borrowing authority is
required to follow the principles of nature justice as held by the
Supreme Court in the case of P. Venugopal (supra) wherein in
para 39 the Supreme Court inter alia held curtailment of time of
five years can only be made for justifiable reasons and in
compliance with principle of natural justice. No doubt, the case
of the respondent in the counter affidavit is that the petitioner was
being constantly guided and advised to improve his performance
which he failed to improve and there was no alternative with the
authority concerned, to repatriate the petitioner back to his parent
department which depicts the compliance of principles of natural
justice, is not appealing. There is nothing on record to show such
an action / procedure was followed up by the respondent / NHRC
and for that matter, the petitioner was put to notice if he does not
improve his performance he shall be repatriated back after three
months. Hence, on this ground as well, the premature repatriation
of the petitioner shall be in violation of OM dated June 17, 2010,
which clearly stipulates three months' notice to the petitioner.
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