Raj Vir Sharma ORDER
Raj Vir Sharma, Member (J)
1. Applicant-Shri Sanjay Kumar has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:
"(a) To quash and set aside the impugned order dated 12.02.2017 and direct the respondents to allow the applicant to continue in FRRO/IB Headquarter till the conclusion of departmental enquiry initiated against him.
(b) To declare the action of respondents in repatriating the applicant prematurely as illegal and arbitrary and issue directions for considering the case of applicant for completion of deputation period of 3 years as well as further extension at par with other similarly placed persons as per OM dated 17.02.2016.
(c) To pass such other order or direction as deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the present case, and in the interest of justice."
2. Resisting the O.A., the respondents have filed a counter reply. The applicant has also filed a rejoinder reply thereto.
3. We have carefully perused the records and have heard Shri M.K. Bhardwaj, the learned counsel appearing for the applicant, and Dr. Ch. Shamsuddin Khan, the learned counsel appearing for the respondents.
4. Brief Facts:
4.1 The applicant is a Sub-Inspector in the Border Security Force (BSF). Pursuant to a requisition submitted by the respondent-Intelligence Bureau (IB), the respondent-BSF asked for willingness from the interested personnel for appointment as Assistant Central Intelligence Officer-II (ACIO-II/G) in IB. The applicant submitted his willingness. Consequent upon his selection, the respondent-BSF, vide order dated 6.8.2014, placed the services of the applicant at the disposal of the respondent-IB for his appointment as ACIO-II on deputation basis for a period of three years from the date of his joining. After having been relieved by his parent unit, i.e., 12th BN, BSF, C/o. 56 APO, Tangdhar, Kupwara, on 30.8.2014, the applicant joined the respondent-IB on 10.9.2014. The normal period of his deputation was to expire on 9.9.2017.
4.2 After having undergone the basic training, the applicant was posted as Immigration Officer at Immigration Check Post (ICP), IGI Airport, New Delhi.
4.3 While performing his duties at IGI Airport, the applicant was found involved in some adverse activities. Violating the immigration rules, the applicant granted illicit immigration clearances to passengers holding Emigration Check Required (ECR) category Passport and Employment Visa going to Protectorate of Emigrants (POE) country without POE clearance. A case FIR No. 56/2016 dated 8.2.2016 was registered at the PS IGI Airport against the applicant for commission of offences punishable under Sections 420 and 120-B of the Indian Penal Code and Section 24 of the Immigration Act. He was arrested on 11.2.2016 and detained in custody for a period of 48 hours. He was, therefore, placed under suspension w.e.f. 11.02.2016, vide order dated 29.2.2016. The applicant was granted bail on 5.4.2016. His suspension was revoked by the respondent-IB, vide order dated 22.6.2016.
4.4 Thereafter, the respondent-FRRO issued Memorandum dated 30.1.2017 calling upon the applicant to submit an explanation on the aforesaid incident. The relevant portion of the said Memorandum dated 30.1.2017 is reproduced below:
"MEMORANDUM
On 08.02.2016, while undertaking a random check in Security Hold Area (SHA) at ICP, IGI Airport, New Delhi, the following passengers holding ECR category passport, however, without POE clearance, were observed to be departing for Dammam (KSA) on Employment Visa.
1. NAZMUDDIN (PP NO. J9658879)
2. MABOOD (PP NO. M7694620)
3. SHAH SAFIULLAH (PP NO. L3115179)
4. MATLOOB (PP NO. N2408052)
5. MOHAMAMD ALTAF (PP NO. L3117930) and
6. MOHAMMAMD RAFI (PP NO. L5016988)
2. All the said passengers were accorded departure immigration clearance by Shri Sanjay Kumar, ACIO-II/G against flight No. FZ-432 despite the fact that the said passengers had not obtained POE clearance on their respective Employment Visas. This is a serious lapse on the part of an Immigration Officer, whose one of the prime duties is to examine the details and documents of the pax meticulously before according immigration clearance.
3. Shri Sanjay Kumar, ACIO-II/G, is hereby directed to submit an explanation in the matter within 3 days of date of receipt of this memorandum, failing which, it will be presumed that he has nothing to say in his defence and further action will be contemplated."
4.5 The applicant, vide his letter dated 2.2.2017, returned the above Memorandum dated 30.1.2007 to the respondent-FRRO, with his following remarks/comments:
"Please, the said memo is returned with the remark that, a criminal case has also been fabricated against me in which actual culprits had been shielded by the I.O. of the case while innocent applicant & another was falsely involved. The applicant as well as HC Amit Singh were made scapegoats of the conspiracy hatched by the conspirators. At this stage I would like to keep my defence for use in the criminal case and hence I am unable to disclose my defence which may prejudice seriously my criminal case during the trial of that case."
4.6 Thereafter, the respondent-IB issued the impugned order dated 22.2.2017 which is reproduced below:
"Shri Sanjay Kumar, ACIO-II/Exe(PIS No. 136333), a deputationist SI/Exe (No. 100092691), BSF is hereby given 3 months notice in terms of para 9 of DOP & T OM dated 17.06.2010 for repatriation to his parent department. On expiry of the above notice period, he will stand repatriated to his parent department w.e.f. 22.05.2017 with the direction to report for duty to his parent department i.e. BSF."
4.7 After making a representation dated 9.3.2017 against the above repatriation notice/order dated 22.2.2017, the applicant filed the present OA on 28.3.2017 seeking the reliefs as aforesaid.
5. In the above context, it has been submitted by Shri M.K. Bhardwaj, the learned counsel appearing for the applicant, that the impugned notice/order of repatriation dated 22.2.2017 is penal and stigmatic in nature. The respondent-IB has acted illegally and arbitrarily in initiating the departmental enquiry against him on false and frivolous allegations and also in repatriating the applicant before conclusion of the departmental enquiry initiated against him. In support of his submissions, Shri M.K. Bhardwaj invited our attention to paragraphs 25, 26, 27 and 28 of the judgment of the Hon'ble Supreme Court, reported as MANU/SC/8015/2007 : (2007) 10 SCC 71, Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and another, and to paragraphs 24 and 27 of the judgment dated 5.6.2007 delivered by this Tribunal in OA No. 1929 of 2006, Kulbir Krishan Vs. Union of India and another.
5.1 In Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and another (supra), the Hon'ble Supreme Court, in paragraphs 25, 26, 27 and 28 of the judgment, observed thus:
"25. In Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta & Ors. [MANU/SC/0101/1999 : (1999) 3 SCC 60], Jagannadha Rao, J. (as His Lordship then was) opined that material which amounts to sigma need not be contained in termination order but may also be contained in an order or proceeding referred to in termination order or in an annexure thereto. We have noticed various orders passed by the respondent heretobefore. When a report in a disciplinary proceeding forms the foundation for the order, it would be stigmatic in nature. It would have civil consequences.
26. V.P. Ahuja v. State of Punjab & Ors. [MANU/SC/0155/2000 : (2000) 3 SCC 239] is a case where the order impugned in the writ petition was as under :
"Shri V.P. Ahuja, s/o. late Shri H.N. Ahuja was appointed on probation for 2 years as Chief Executive of the Coop. Spg. Mills Ltd., vide orders Endst. No. Spinfed/CCA/7844-45 dated 29.9.1998 and posted at Bacospin. However, he failed in the performance of his duties administratively and technically. Therefore, as per clause I of the said appointment order, the services of Shri V.P. Ahuja are hereby terminated with immediate effect."
It was held to be stigmatic in nature stating:
"7. A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice.
8. The affidavits filed by the parties before the High Court as also in this Court indicate the background in which order, terminating the services of the appellant, came to be passed. Such an order which, on the face of it, is stigmatic, could not have been passed without holding a regular inquiry and giving an opportunity of hearing to the appellant."
27. Yet again, in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. & Anr. [MANU/SC/0788/1998 : (1999) 2 SCC 21], a case on which counsel for both the parties relied upon, this Court held:
"23. The theory of 'object of the inquiry' was further emphasised by the Constitution Bench in Jagdish Mitter v. Union of India, That was a case of a temporary employee. The discharge from service was by way of an order 'simpliciter'. But there, an inquiry was held and the termination order was based on it as it stated on its face that it was 'found undesirable' to retain the employee and hence his services were being terminated. The order was held to be punitive on its face and was quashed. Gajendragadkar, J. (as he then was) discussed the earlier cases and held that in every case the purpose of the inquiry was crucial. If the inquiry was held 'only for the purpose of deciding whether the temporary servant should be continued or not', it could not be treated as punitive and that the motive operating in the mind of the authority was not relevant. But "the form in which the order terminating the service is expressed will not be decisive."
"... It was held "what the Court will have to examine in each case would be, having regard to the material facts existing upto the time of discharge, is the order of discharge in substance one of dismissal?" Therefore, the 'form' was not of importance but the 'substance' was."
It was further held:
"We shall now refer to a different type of cases where a departmental inquiry was started, then dropped and a simple order of termination was passed. In State of Punjab v. Sukh Raj Bahadur, the charge memo was served, reply given and at that stage itself, the proceedings were dropped and a termination order was passed. The High Court felt that the object of departmental inquiry, being to punish the employee, the order of termination must he treated as punitive. This was not accepted by a three Judge Bench consisting of Justice Shah (as he then was) who had laid down in Madan Gopal's case the principle of 'object of the inquiry'.
This Court reversed the High Court judgment and held that neither Madan Gopal's case nor Jagdish Mitter's case applied. This was because in the case before them the inquiry did not go beyond the stage of the explanation. No findings were given and no inquiry report was submitted as in the above two cases. In that case (i.e. Sukh Raj Bahadur) this Court felt that the decision in A.G. Benjamin v. Union of India (Civil Appeal No. 1341 of 1966 dated 13-12-1966) (SC) Reported in (1967) 1 Lab LJ 718 was more direct. In Benjamin's case, a charge memo was issued, explanation was received and an Enquiry Officer was also appointed but before the inquiry could he completed, the proceedings were dropped stating that "departmental proceedings will take a much longer time and we are not sure whether after going through all the formalities, we will be able to deal with the accused in the way he deserves. "There also the order was held not to be punitive. Following the above case, this Court in Sukh Raj Bahadur's case stated that the position before them was similar to what happened in Benjamin's case and concluded as follows:
"17....the departmental inquiry did not proceed beyond the stage of submission of a charge-sheet followed by the respondent's explanation thereto. The inquiry was not preceded with, there were no sittings of any inquiry officer, no evidence recorded and no conclusion arrived at in the inquiry."
5.2 In Kulbir Krishan Vs. Union of India and another (supra), the Tribunal, in paragraphs 24 and 27 of the order, observed thus:
"24. The contentions raised by Mr. Khurana, as mentioned hereinbefore, have no doubt been pressed during the course of argument but what has been strenuously, seriously and emphatically urged is that order repatriating the applicant to his parent cadre is stigmatic. The form of order is not conducive and what relevant is plain reason for repatriation and not strategy of the innocuous order, thus contends the learned counsel. The order is indeed innocuous and it is for that precise reason it is contended that the Court should lift the veil and find the plain reason for repatriation. For the aforesaid contention, the learned counsel placed strong reliance on the judgment of this Tribunal in O.A. No. 1459/2000, J.P. Verma, IPS Vs. Union of India & Others, decided on 16.11.2000, which has been affirmed by the Division Bench of the Delhi High Court in Union of India & Other Vs. J.P. Verma & Another, MANU/DE/0731/2002 : 98 (2002) Delhi Law times 510 (DB).
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27. A Division Bench of the Central Administrative Tribunal, Principal Bench in O.A. No. 1729/06 in the matter of Sunil Krishna Vs. Union of India & Others (supra) while dealing with the case of an IPS Officer, in the context of OM of April, 2000 (supra) and paragraph 10 thereof, has held that it could be seen that the tenure of deputation as set out in paragraph-6 of the OM is subject to para 10 wherein the Central Government reserves the right to revert such officers to their parent cadres at any time without assigning any reason. The Division Bench of Delhi High Court in the case of Union of India Vs. J.P. Verma & Another (supra) did not take a view different than what has been taken by the Hon'ble Supreme Court, Punjab & Haryana High Court as also by this Tribunal in the judicial precedents mentioned above. It is, however, true that in said judgments it has also been held that when the order repatriating a deputationist to his parent cadre is penal and stigmatic in nature, then the Court can always lift the veil to find out if the order of repatriation is penal and stigmatic in nature and if it is found so, it shall not be permissible to repatriate a deputationist without holding an enquiry. The facts of the case aforesaid would reveal that Mr. J.P. Verma, an IPS officer was sent on deputation as Additional Director General of Police for appointment in CRPF. He was a Member of the Indian Police Service and allotted the cadre of State of Orissa. He was appointed on deputation basis as ADGP in CRPF by order dated 2.26.1998 until further orders. He was sponsored for the post of Director General (Investigation) in the National Human Rights Commission by Union of India. On 13th June, 2000, the Secretary General of NHRC wrote to the Government of India a letter in the following terms:
"The Chairperson has directed me to place on record the fact that when we (I and Shri D.K. Karthikeyan) contacted Shri M.K. Shukla and Shri J.P. Verma (applicant), we were surprised to find that both the officers were only keen to find out about the perquisites attached to the office of the Director General (Investigation), NHRC-One officer wanted to know whether he can travel as he likes or whether he will have to seek permission from the Chairperson; another officer indicated the number off constables/orderlies a DG (Police) is entitled to and wanted to know whether he will be provided the same number (The obvious answer was no). Both the officers expressed their disinclination to come and meet the Chairperson after being told about the availability or otherwise of the kind of perks they were looking for in the Commission. The Chairperson, NHRC was appraised of this matter and he has directed that the matter be brought to the notice of the Home Ministry to highlight the lopsided priorities of these very senior officers who are waiting "to serve" the nation in the rank of Director General of Police".
It was the case of Mr. J.P. Verma that the order of repatriation was passed in terms whereof the Union of India had repatriated him to his parent cadre by order dated 3.8.2000 and the same day Original Application was filed in the Tribunal which was allowed. After the order of repatriation was passed, a memorandum was issued to Mr. J.P. Verma by the Union of India to explain within a period of 30 days from the date of receipt as to why disciplinary proceedings should not be initiated against him whereupon Mr. J.P. Verma prayed for 30 days' further time to file reply, which was granted. It was urged before the Hon'ble Supreme Court on behalf of the Union of India that Tribunal had committed serious error in passing the impugned order in so far as it failed to take into consideration that the deputationist cannot be said to have any legal right to continue on deputation. It was also argued that Tribunal committed illegality while holding that even in the case of this nature the principles of natural justice are required to be complied with although by reason of the order impugned in the Original Application, Mr. J.P. Verma did not suffer any loss of emolument, status nor by reason thereof suffered any stigma or penalty. Per contra, it was argued on behalf of Mr. J.P. Verma that the purported letter of the National Human Rights Commission was the foundation for passing the order dated 3rd August, 2000 in terms whereof Mr. J.P. Verma was sought to be repatriated on extraneous consideration. It was further urged that the order of repatriation, having regard to the nature of service of Mr. J.P. Verma, which is governed by All India Services Act, 1951, could be passed only for valid reasons. A non-speaking order cannot be a ground not to lift the veil inasmuch as the Court is entitled to, in a given situation, to delve deep into the matter for the purpose of finding out the actual reasons therefore. The Court considered as to whether the letter dated 13.6.2000 issued by the National Human Rights Commission was the foundation for passing the impugned order. On the strength of pleadings of the parties, a firm finding came to be recorded that it is letter of National Human Rights Commission, which was the foundation and not the motive of passing the order dated 3.8.2000. We may further add that based upon allegations made against Mr. J.P. Verma, a memorandum was issued to him to explain within 30 days from the date of receipt thereof as to why disciplinary proceedings should not be initiated against him. The Hon'ble Supreme Court examined as to whether the real reason for repatriating Mr. J.P. Verma would be stigmatic to his career. In that context the Hon'ble Supreme Court relied upon observations made in its earlier decision in K.H. Phadnis v. State of Maharashtra MANU/SC/0671/1971 : (1971) 1 SCC, 792, which read as follows:
"17. The order of reversion simplicitor will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore though the government has right to revert a Government servant from the temporary post to substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary job has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted".
The observations extracted above would make a clear distinction between an order passed as a result of "accident of service" or an outcome of aspersion against character of an officer. The Apex Court further relied upon its earlier decisions and held that court can always lift the veil and find the real reason of order."
6. Per contra, it has been contended by Dr. Ch. Shamsuddin Khan, the learned counsel appearing for the respondents that the notice/order of repatriation dated 22.2.2017 has been issued by the respondent-IB in accordance with the order dated 6.8.2014 issued by the respondent-BSF placing the applicant's services at the disposal of the respondent-IB on deputation basis and the DoP & T's O.M. dated 17.6.2010 (ibid). As the conduct of the applicant was lowering the image of the respondent-IB, i.e., the borrowing Department, it was felt that his continuance on deputation in the respondent-IB could potentially jeopardize the national security. Accordingly, the respondent-IB decided to repatriate the applicant to his parent Department (BSF), after giving him and the respondent-BSF three months' notice. Therefore, there is no scope for the Tribunal to interfere with the impugned notice/order of repatriation of the applicant to his parent Department (BSF), and the applicant is not entitled to any of the reliefs claimed by him in the O.A.
7. After having given our thoughtful consideration to the facts and circumstances of the case, and the rival contentions, we have found no substance in the contentions of Shri M.K. Bhardwaj, the learned counsel appearing for the applicant.
8. The Hon'ble Supreme Court in Ratilal B. Soni & others Vs. State of Gujarat & Others, MANU/SC/0207/1990 : 1990 (Supp.) SCC 243, has held that a deputationist can be reverted to his parent cadre at any time. In Kunal Nanda Vs. Union of India and another, MANU/SC/0302/2000 : AIR 2000 SC 2076, the Hon'ble Supreme Court has held that the basic principle underlying deputation itself is that the person can always and at any time be repatriated to his parent Department to serve in his substantive position at the instance of either of the Departments and there is no vested right in such a person to continue on deputation in the Department to which he had gone on deputation. In Gurinder Pal Singh Vs. State of Punjab, MANU/PH/1412/2004 : 2005 (1) SLR 629, the Hon'ble Punjab & Haryana High Court, after taking into consideration the decisions of the Hon'ble Apex Court in Kunal Nanda's case (supra) and Ratilal B. Soni's case (supra), and Rameshwar Prashad Vs. Managing Director, U.P. Rajkiya Nirman Nigam Ltd., MANU/SC/0580/1999 : 1999 (5) SLR 203 (SC), has held that a deputationist would have no vested right to continue in the borrowing Department even till the completion of the stipulated period of deputation. It is a tripartite contract and can be continued only if all the parties like it to continue.
9. The order dated 6.8.2014, by which the respondent-BSF placed the services of the applicant at the disposal of the respondent-IB, clearly stipulated that the period of deputation of the applicant would be three years subject to premature repatriation on the grounds of unsuitability and exigency of service as well as if any other unforeseen factor so demand. The applicant would be governed by the standard terms and conditions of deputation as laid down by the Ministry of Personnel & Public Grievances and Pensions (Department of Personnel & Training) O.M. No. 2/29/91/Estt. (Pay II) dated 5.1.1994, OM No. 6/8/2009-Estt. (Pay II) dated 17.6.2010 and as amended from time to time. Paragraph 9 of the DoP & T's O.M. dated 17.6.2010 (ibid) stipulates that normally, when an employee is appointed on deputation, his services are placed at the disposal of the parent Ministry/Department at the end of the tenure. However, as and when a situation arises for premature reversion to the parent cadre of the deputationist, his services could be so returned after giving him an advance notice of at least three months to the lending Ministry/Department and the employee concerned.
10. Considering the nature of allegations made in the FIR registered against the applicant, the respondent-IB, i.e., the borrowing Department found that the applicant was unsuitable to continue on deputation and that the continuance of the applicant on deputation basis would potentially jeopardize the national security. Accordingly, the respondent-IB decided to repatriate the applicant to his parent Department (BSF) after giving him and his parent Department (BSF) three months' notice in accordance with the order dated 6.8.2014 (ibid) and the DoP & T's O.M. dated 17.6.2010 (ibid). Thus, there is no question of any stigma being attached to the impugned notice/order of repatriation of the applicant to his parent Department (BSF). The impugned order of repatriation of the applicant to his parent Department (BSF) cannot also be termed as punitive in nature.
11. Rule 20 of the CCS (CCA) Rules, 1965, stipulates, inter alia, that where the services of a Government servant are lent by one Department to another Department, the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting disciplinary proceedings against him. Rule 21(2)(ii) of the CCS (CCA) Rules, 1965, stipulates, inter alia, that where a disciplinary proceeding is conducted against a Government servant whose services have been borrowed by one Department from another Department, if the Disciplinary Authority is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 (major penalties) should be imposed on the Government servant, it shall replace the services of such Government servant at the disposal of the lending authority and transmit it to the proceedings of the inquiry for such action, as it may deem necessary. In the instant case, disciplinary proceeding has been contemplated by the respondent-IB, i.e., the borrowing Department, against the applicant under the CCS (CCA) Rules, 1965. When before initiation of the disciplinary proceedings against the applicant, the respondent-IB, i.e., the borrowing Department issued the impugned notice/order dated 22.2.2017 giving three months' notice to the applicant and the respondent-BSF for repatriation of the applicant to his parent Department (BSF) with the stipulation that the applicant would stand repatriated to his parent Department (BSF) with effect from 22.5.2017 and that the applicant would report for duty to his parent Department (BSF), the respondent-IB has no other option than to transmit all the papers/documents pertaining to the contemplated disciplinary proceedings to the respondent-BSF for such action as it may deem necessary. Thus, after joining in his parent Department (BSF) the applicant would get full opportunity to defend him in the disciplinary proceedings, if at all his parent Department (BSF) decides to proceed with the said disciplinary proceedings. Therefore, the applicant's challenge to the impugned repatriation notice/order dated 22.2.2017 on the ground of contemplation/initiation of the disciplinary proceedings against him by the respondent-IB is without any substance.
12. Neither the order dated 6.8.2014 issued by the respondent-BSF placing the services of the applicant at the disposal of the respondent-IB, nor the DoP & T's O.Ms. dated 5.1.1994 and 17.6.2010, which govern the conditions of deputation of the applicant in the respondent-IB, stipulate that in the event of any disciplinary proceeding against the applicant being contemplated/initiated by the respondent-IB, the applicant has to continue on deputation in the borrowing Department-IB till the conclusion of the departmental enquiry contemplated/initiated against him. The applicant has also not placed before this Tribunal any rule, or instruction, or order, issued by the respondents stipulating that where disciplinary proceeding has been contemplated/initiated against a deputationist-Government servant by the borrowing Department, such deputationist-Government servant has to continue in the borrowing Department till the conclusion of the said disciplinary proceedings by the borrowing Department.
13. In the light of our above discussions, we do not perceive any infirmity or illegality in the impugned order of repatriation of the applicant to his parent Department (BSF) with effect from 22.5.2017. Thus, the applicant is not entitled to any of the reliefs sought by him in the O.A.
14. Resultantly, the O.A., being devoid of merit, is dismissed. No costs.
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