WP(C)No.7415/2009 Page 1 of 39 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No. 7415/2009 % Reserved on : 13.08.2010 Date of Decision : 06.09.2010 UNION OF INDIA …. Petitioner Through: Mr.Parag P.Tripathi, ASG with Mr.V.S.R.Krishna, Ms.Arti Gupta, Advs. VERSUS MANORANJAN KUMAR & ORS. …. Respondents Through Mr.K.K.Rai, Sr.Adv. with Mr.Neeraj Gupta, Mr.Sachin Lohia, Mr.Jayant Pawar, Advocates for R-1. Mr.R.V.Sinha, Mr.A.S.Singh, Advs. for CVC. CORAM: HON‟BLE MR. JUSTICE ANIL KUMAR HON‟BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. 1. By this writ petition filed under Article 226/227 of the Constitution of India the petitioner/UOI is praying for quashing and setting aside the order of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as „the Tribunal‟) passed on 25.02.2009 in O.A.No.1769/2008 whereby the Tribunal had set aside the order dated 08.08.2008 repatriating Manoranjan Kumar (hereinafter referred to as “the respondent”), a deputationist, to his parent department after holding, that, “the real reason behind repatriating the applicant to his parent department was in fact the complaints/reports made by him and WP(C)No.7415/2009 Page 2 of 39 not the complaints that may have been received against him. Reference to the various complaints against the applicant in the notes preceding the repatriation order, and that being the reason for repatriating him, appears to be a made-up affair. It is quite apparent that a substantial number of persons yielding power felt threatened and insecure on the reports made by the applicant. It is because of the influence exerted by them upon the competent authority, it is apparent, the applicant was sent back to his parent cadre. The order of repatriation, in our considered view, is mala fide.” 2. In the impugned order the Tribunal also observed: “Fraud, conspiracy and mala fides vitiate everything, and if, therefore, the order repatriating the applicant is actuated on account of mala fides, the same has to be quashed. We are conscious that allegations of fraud, conspiracy and mala fides cannot be proved by direct evidence. Such issues can be proved or, may be, inferred, by circumstances. It is often said that men may lie but the circumstances don't. A vast load of circumstances, as fully detailed above, would lead us to an irresistible conclusion that the applicant who wanted to clean the system, has in turn been himself washed away by the system. We are distressed to note that the applicant, because of his bold stand, exposing misdeeds, corruption and irregularities, instead of being protected by the system, has in fact been victimized.” 3. Taking strong objection to the aforesaid observation of the Tribunal, the learned ASG representing the UOI has submitted that the order of repatriation is an incidence of service and is subject to pleasure of the appointing authority. In this case it was not that the Government was taking any adverse action against the first respondent. The Government has taken a decision to repatriate the first respondent because he was not found suitable to continue in the post where he was WP(C)No.7415/2009 Page 3 of 39 sent on deputation. The order repatriating him was neither stigmatic nor is mala fide but is based upon appreciation of facts which came to the notice of the competent authority making the respondent as unsuitable for the post of Deputy Chairman, Kandla Port Trust. 4. It has been submitted that considering the tone and tenor in the correspondence exchanged by respondent with his seniors and allegations made by him against the Chairman of the Port Trust, besides his hesitation in contributing in the functioning of the Port Trust activities, the competent authority being satisfied the work and conduct of the respondent was no satisfactory took his decision in public interest to repatriate him to his parent department. They have also relied upon the following Judgments:- (a) L/NK V.H.K. Murthy v. Special Protection Group, 2000 (IV) AD (Delhi) (b) Chandra Prakash Shahi v. State of U.P., (2005) 5 SCC 152, Para 28-29 at page 167. (c) D.K.Rao Vs. Government of India rep. by its Secretary, Ministry of Surface Transport, Ports Wing, New Delhi and Ors., 1994(2)ALT 646(D.B.). 5. Before we revert to the facts of this case, we may discuss about the rights of a deputationist as spelt out by a coordinate bench of this Court in L/Nk V.H.K.Murthy‟s case (supra). The relevant observations are as under: “23. After all, even otherwise, what are the rights of a deputationists? WP(C)No.7415/2009 Page 4 of 39 24. It is now well settled that deputation is just a transfer of a Government employee from one department to another or from one Government to another, i.e. from Central Government to State Government or State Government to State Government or State Government to Central Government. So in its very nature, the tenure of a deputationist is a precarious one. Of course, in some cases, it may be for a fixed term, but even then it is implicit that a deputationist can always be repatriated to his parent State/Department in public interest or in the exigencies of service. Further, a deputationist continues to hold lien on his permanent post in his parent cadre till of course he is permanently absorbed in the borrowing department. Another wholesome principle is that if many persons are drafted to serve on deputation, their inter- seniority in the borrowing department should be respected and preserved during the period of such deputation to the new department.: [1988]1SCR421 wherein it was observed: "There is not much difference between deputation and transfer. Indeed when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one Government to another." It is thus manifest that a deputationist has no right to the post held by him in the borrowing department and he can always be repatriated to his parent department in public interest and exigencies of service. This right of the borrowing department to repatriate the employee and for that matter right of the lending department to recall their own employee sent on deputation, is well recognised in service jurisprudence. 25. For these reasons I am also inclined to accept the submissions made by Mr.Maninder Singh learned counsel for the respondents that the tenure of deputation can be curtailed for bona fide reasons and in the instant case the moment it is found that "suitability" of an officer has attracted a question mark, it is permissible for the respondents to repatriate said officer to his parent department. For this reason the Constitutional Bench judgment of Supreme Court cited by the petitioners in the case of K.H. Phadnis Vs.. State of Maharashtra: AIR1971SC998 may not be of any help to the petitioners. First as I have already pointed out above, the sensitive nature of the duties is to be kept in mind which is the hallmark of the present case. Secondly, even as per the aforesaid judgment of the Supreme Court "unsuitability" would be a valid ground to repatriate an officer. Thirdly, since petitioners have no vested right to remain in SPG for WP(C)No.7415/2009 Page 5 of 39 complete period of six years, the question of observance of Principles of Natural Justice, before sending a person back to his parent department would not arise, inasmuch as the repatriation of these petitioners is as per the terms of contract and the judgment of Supreme Court in the case of Kaushal Kishore Shukla (Supra) comes handy. 26. Of course, it is not to suggest that the respondents have right to act in an arbitrary manner or they can use the sensitive nature of job to be performed by the petitioners as a cover to use the power of repatriation as a colourable exercise of power. The judicial power of review can be exercised on the basis of accepted norms i.e. to say when it is found that the action of the respondents suffers from the vice of arbitrariness or mala fides etc. However, once it is found that the action is bona fide and the apprehension of the respondents is based on some relevant considerations then this court has to stay its hands off. Further keeping in view the sensitive of job to be performed by the petitioners, the discretion which is conferred upon the competent authority has to be wide and even a doubt, of course genuine doubt, nurturing in the mind of the respondents, which may become the basis of their decision not to keep a particular officer in SPG any longer would meet the test of bona fide exercise of power.” 6. The Apex Court in the case of Union of India (UOI) through Govt. of Pondicherry and Anr.Vs. V. Ramakrishnan and Ors.,(2005) 8 SCC 394 has also observed :- “32. Ordinarily, a deputationist has no legal right to continue in the post. A deputationist indisputably has no right to be absorbed in the post to which he is deputed. However, there is no bar thereto as well. It may be true that when deputation does not result in absorption in the service to which an officer is deputed, no recruitment in its true import and significance takes place as he is continued to be a member of the parent service. When the tenure of deputation is specified, despite a deputationist not having an indefeasible right to hold the said post, ordinarily the term of deputation should not be curtailed except on such just grounds as, for example, unsuitability or unsatisfactory performance. But, even where the tenure is not specified, an order of reversion can be questioned when the same is mala fide. An action taken in a post- WP(C)No.7415/2009 Page 6 of 39 haste manner also indicates malice. (See Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia SCC para 25.)” 7. It would also be appropriate to discuss the judgment of the Division Bench of Andhra Pradesh High Court in the case of D.K.Rao (supra), who had been also deputed to work as Deputy Chairman of Visakhapatnam Port Trust and whose tenure was also curtailed by ordering his repatriation to his parent cadre. In this case, D.K.Rao has raised similar pleas as have been raised by the respondent before us. The Court has made the following observations:- “8. We find force in the contention of the learned counsel for the Central Government. The case relied on by the learned counsel for the appellant (Agarwal's case 1 supra) is distinguishable since in that case the officer who was appointed on a tenure basis for a period of 5 years was sought to be retired on attaining the age of superannuation. It is not a case of deputation and the question of the officer going back to the parent department where he had substantive post does not arise in that case. As it was a tenure post, the Supreme Court held that the concept of superannuation is alien to such a post. As already seen, Section 7(1) of the Act says that the Chairman and Deputy Chairman hold office during the pleasure of the Central Government. Thus, the appointment order must be read along with Section 7(1) of the Act and if so read, it follows that the appellant is entitled to hold the post of Deputy Chairman in the normal course for a period of 4 years, but without prejudice to the right of the Central Government to withdraw him at any time before expiry of 4 years. Further, even if the appointment order is construed by itself without reference to Section 7(1) of the Act, it does not preclude the lending department to withdraw the officer and repatriate him to the parent department as held by the High Court of Allahabad in Shambu Nath's case 1984 (2) SLR 396 (Allahabad).” 9. The second contention of the learned counsel for the appellant is that in the absence of any request from the parent department, i.e., the Government of Gujarat, the appellant cannot be repatriated. It must be remembered WP(C)No.7415/2009 Page 7 of 39 that the appellant was sent to the Port Trust not on the request or at the instance of the Government of Gujarat, but at the instance of Government of India which is the appointing authority regarding the post of Deputy Chairman of the Port Trust. The Government of Gujarat has no say either in sending the appellant to the Port Trust or repatriating him to the Government of Gujarat. Thus, there is no substance in this contention.” 8. In view of the aforesaid it has been averred that the repatriation order being an order simplicitor and not being an order in the nature of punishment was fully justified. The said order was issued by the Petitioner after recording the reasons about unsuitability of the respondent taken in the larger interest of the development of the Port especially in a situation where in the officers Association, Karamchari Sangh, stakeholders as also the Chamber of Commerce and industry were not happy with the functioning of the Respondent who was not even respectful to his immediate superior. It is not that a disciplinary action has been taken against respondent after accepting veracity of the complaints received against him, but have taken the said decision only with a view to repatriate him being satisfied that his continuance as Deputy Chairman was not conducive either to the efficient working of KPT or to fostering of better interpersonal relations among senior port functionaries. 9. Coming to the facts of the case right from the beginning, a vacancy circular was issued on 02.01.2005 inviting applications for filling up the post of Deputy Chairman, Kandla Port Trust on deputation basis. The Respondent an IES Officer applied for the post and on 13.02.2007 an appointment order was issued to the Respondent appointing him to the WP(C)No.7415/2009 Page 8 of 39 post of Dy. Chairman. Another fact to reckon with in this case is that subsequent to his appointment, on 11.07.2007 he was given the additional charge of Chief Vigilance officer. While holding both the posts simultaneously the Respondent in his capacity as the CVO submitted 8 reports pointing out the corruption and other wrongdoings going on in KPT by senior officers including Ex-Chairmen of the Trust resulting into registration of criminal cases by the Central Bureau of Investigation. It has been alleged that the Ex-Chairman of KPT, was involved in large scale corruption and acts of misdemeanor in having extended land lease for a further period of 30 years without following the proper procedure. 10. In the meantime, some complaints started pouring in against the respondent besides the report of the Trust Chairmen. The details of the complaints are as under:- (i) Complaints dated 10.11.2007, 19.11.2007, 19.12.2007, 25.03.2008, 26.03.2008, 7.7.2008 and 18.07.2008 (forwarded by Cabinet Secretariat) made by Mohan K. Aswani, Genl. Secretary, INTUC (Gujarat). (ii) Complaint dated 20.11.2007 made by Kandla Port Trust Association. (iii) Complaint dated 02.02.2008 made by Kandla Port Karamchari Sangh. (iv) Complaint dated 08.04.2008 made by Shri H.C.Venkatesh, Traffic Manager, KPT. (iv) Anonymous complaint dated 19.04.2008 forwarded by Chairman, KPT. (v) Complaint dated 29.01.2008 made by Sh. Krishnan A, FA/CAO, KPT. (vi) Complaint dated 18.04.2008 made by Gandhidham chamber of Commerce and Industry. WP(C)No.7415/2009 Page 9 of 39 11. According to the learned ASG in addition to the aforesaid complaints, the unsuitability of the respondent is writ large if one scans through the documents placed on record by the petitioner along with CM No. 8960/2010, which application has been allowed by us vide separate order passed today. The documents brought on record by the petitioner are as under:- (i) Letters dated 23.05.2008 and 11.07.2008 written by respondent to his superior officer viz. the Chairman. (ii) The recommendations of the respondent in the Annual Confidential Report of three officers viz. Mr.H.C.Venkatesh, Traffic Manager, KPT, Capt. H.K.Sibbal, Dy.Conservator, KPT and Mr.A.K.Gadkari, Chief Mechanical Engineer. (iii) Extracts from various original files of Kandla Port Trust which were placed before this Court at the time when the arguments were addressed on behalf of the petitioners which show that respondent as Dy. Chairman would invariably remark in many of file notings that “The Chairman may like to take view or For kind orders or May kindly see for orders” without adding or recommending anything. (iv) A copy of the departmental files concerning the processing of the issue of hiring of tugs at the Kandla Port and subsequently the complaint filed by the respondent. (v) A copy of the departmental files concerning the handling of two container vessels at ABG Kandla Container Terminal at the Kandla Port and subsequently the complaint filed by the respondent. (vi) A copy of the departmental files of two cases viz. Indo- Nippon case and Instrumentation case at the Kandla Port. (vii) A copy of the list of the status of the complaints filed by Manoranjan Kumar, CVO with CBI. 12. It has been submitted that a bare perusal of the aforesaid documents and complaints besides the letters written by the respondent reflect upon his personality and reveals that he was not suitable to work WP(C)No.7415/2009 Page 10 of 39 as Deputy Chairman, KPT any further. In these circumstances, it is submitted that the simplicitor order of repatriation was passed without reaching to any conclusion as regards the culpability/misconduct of respondent. 13. The petitioner further submits that a deputationist has no right to remain in deputation post even if the period of the deputation is curtailed and in the present case the provisions of section 7 of the Major Port Act applied and hence the repatriation order is not erroneous in law or is tainted with mala fide. It is further stated that the order of repatriation has nothing to do with the gradings given in the ACR. Respondent had no vested right to continue on deputation post. The competent authority had the right to repatriate him at any point of time even by curtailing his tenure. 14. It is also submitted by the petitioner that the investigation qua the charges levied against the officers by the respondent is in progress but till date no charge–sheet has been filed in any court of law. It is thus submitted that order of repatriation impugned before the Tribunal was not stigmatic in nature and was issued by the petitioner keeping in view the overall interest of the Port. 15. On the other hand, the learned counsel for the respondent supports the judgment delivered by the Tribunal and insists that the order of repatriation was mala fide and stigmatic in nature. WP(C)No.7415/2009 Page 11 of 39 16. It is also submitted that the order of repatriation virtually amounted to remove the respondent as CVO and thus it was also contrary to the guidelines of CVC. As the purpose of repatriation was to somehow remove the respondent from the post of CVO at which post he was working on account of additional charge given to him which enabled him to expose large scale corruption and irregularities and illegalities committed by the persons who had been placed at high places in KPT who appears to have joined hands to somehow send respondent back to his parent department. It has been submitted that almost all the reports submitted by respondent to CVC and to higher authorities, action has been taken against the guilty officials who even include the ex Chairman of the KPT. It is the also his case that even for the intervening period after the first order was withdrawn to repatriate him he was not permitted to breathe freely and was fettered with all clogs in discharging his duties. 17. It is also submitted by them that this court is not supposed to interfere with the findings of facts while exercising its jurisdiction while issuing Writ of certiorari. The limit of the jurisdiction of the High Court in this regard has been considered by the Apex Court in the case of Hari Vishnu Kamath Vs. Ahmad Ishaque, AIR 1955 SC 233 and the following propositions were laid down:- (1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an WP(C)No.7415/2009 Page 12 of 39 opportunity to the parties to be heard or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or Tribunal, even they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. 18. It is also submitted that the deputation of the respondent was on a tenure post and that the impugned order speak of “curtailing deputation tenure” and that it is not a tenure post has not been questioned by Union of India. It is stated that it was an appointment after proper selection and the tenure of five years could not have been curtailed. It is also submitted that the complaints against the respondent started pouring in after he was given the additional charge of CVO, KPT on 11.07.2007 and on his submitting various reports. There has been no complaint whatsoever while he was working on his substantive post of Deputy Chairman. 19. It is also submitted that the vigilance reports submitted by respondent prima facie disclosed the involvement of senior officers of the KPT including ex-chairmen of the Trust in large scale land scam running into thousands of crores, unauthorized use of land, awarding contracts and tenders without following due procedure thereby giving undue pecuniary advantages to a chosen few, unauthorized extension of leases, etc. The reports have been duly acted upon and only those who WP(C)No.7415/2009 Page 13 of 39 are reported upon are the complainant against the respondent. It is submitted that the very purpose of repatriating respondent is to remove inconvenient CVO, for which he was removed from the post of Deputy Chairman, KPT, a fact noted by the Tribunal which is even contrary to CVC guidelines. 20. It is also submitted that the Tribunal has noted the performance of respondent in paragraph 3 of the impugned judgment. It has also noted the data of the Indian Port Association filed by the petitioner. Therefore, bogey of non-performance is bogus. 21. It is also submitted that even the letter of Sh.Praveen Aggarwal filed with the counter affidavit is bereft of Annexures. These have been mechanically relied upon by the Government without discussing other aspects. It is also submitted that interpersonal letters between respondent and Chairman have not been relied upon by the Government while relieving respondent. These have to be understood in the particular context of respondent being victimized by him. 22. It is submitted that the judicial system is bound to protect the honest officials who are hounded because of sincere discharge of duties. Hounding of the civil servants protecting public monies and public interest by abuse of service hierarchy, if not tackled would devour public administration and good governance. 23. Counsel for respondent further relied upon the following judgments:- WP(C)No.7415/2009 Page 14 of 39 1. Delhi Transport Corporation Vs. DTC Mazdoor Congress and Ors., 1991 Supp. (1) SCC 600. 2. Kandla Port Karamchari Sangh Vs. Union of India, Special Civil Application No. 6963/2005. 3. Bahadursingh Lakhubhai Gohil Vs. Jagdish Bhai M. Kamalia and Ors., (2004) 2 SCC 65. 4. Tandon Brothers Vs. State of West