1 wp-2003-2010 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2003 OF 2010 Union of India & Ors. ..Petitioners Vs. Sushovan Banarjee & Anr. ..Respondents Mr. Vinay S. Masurkar, with Ms. Neeta V. Masurkar, for the Petitioners Mr. Janak Dwarkadas with Mr. Sandeep Marne and H. Rahman i/b. D.H. Law Associates for respondent No.1. CORAM: B. H. MARLAPALLE & A.A. SAYED, JJ. DATE: 24th September, 2010. P.C. This petition filed by the Union of India through the Secretary, Ministry of Information & Broadcasting brings in question the judgment and order dated 8th September, 2010 rendered by the Central Administrative Tribunal, Mumbai, in O.A. No.387 of 2010 filed by the respondent No.1. 2 wp-2003-2010 2. The respondent No.1 is an I.P.S. officer of the 1989 Batch and from the Madhya Pradesh Cadre. The post of Chief Executive Officer of Central Children’s Film Society India (CFSI) at Mumbai had fallen vacant on 24th July, 2009 consequent upon the premature repatriation of Ms.Radhika Rastogii, I.A.S., and, therefore, the said post was advertised and in response thereto respondent No.1 had submitted his application. The said post is in the pay scale of Rs.14,300-18,300 (pre-revised). The respondent No.1 was selected for the said post out of 5 candidates, who had applied and he was issued the appointment order on 5th December, 2008. However, by an order dated 26th April, 2010 he was repatriated on administrative grounds and on the same day the repatriation order was modified and it stated that the respondent No.1 on his request was repatriated to the Ministry of Home Affairs, New Delhi instead of his parent cadre. This order came to be challenged in O.A. No.387 of 2010 which was filed on 1st June, 2010. On 2nd June, 2010 the Tribunal granted exparte stay to the order of repatriation dated 26th April, 2010 and it came to be challenged by the present petitioner in a Writ Petition before this Court. However, in the meanwhile the final arguments in O.A.387 of 2010 were concluded and judgment was reserved on 22nd June, 2010 and subsequently 3 wp-2003-2010 by the impugned order the Tribunal set aside the repatriation order and confirmed the stay granted on 2nd June, 2010. 3. Mr. Masurkar, the learned standing Counsel appearing for the petitioners submitted that pursuant to the repatriation order dated 26th April, 2010, the respondent No.1 had handed over his charge to the Director General, Film Division on 27th April, 2010 and on his request to modify the repatriation order the Government of India issued the modified repatriation order on 27th April, 2010 and the respondent No.1 was directed to report to the Home Ministry at New Delhi. He had not submitted any representation against the repatriation order and on 5th May, 2010 an advertisement was issued to fill up the post of C.E.O. There was no justifiable ground for the Tribunal to interfere with the repatriation order. It was submitted that the Tribunal exceeded its powers in allowing the challenge to the repatriation order and the reasoning set out by the Tribunal cannot be sustained. It was further submitted that it is the administrative discretion of the appointing authority to repatriate an officer appointed in the post of C.E.O., to his parent cadre at any time during the tenure and the repatriation order was not by way of punishment or stigma on the career of the C.E.O. It was also urged that the C.F.S.I. Or its 4 wp-2003-2010 Chairperson was not impleaded in the O.A., and after handing over the charge on 27th April, 2010, the applicant had accepted the repatriation order. 4. We have noted that the repatriation order did not give any reasons and it read as under:- “It has been decided to relieve Shri Sushovan Banerjee, IPS (M.P. 1989), Chief Executive Officer, Children’s Film Society, India, Mumbai, of the post of Chief Executive Officer, Children’s Film Society, India, Mumbai with immediate effect and repatriate him with the direction to report for duty in his parent cadre/organization.” The order appointing the respondent No.1 in the post of C.E.O., clearly stated that the said appointment would be on deputation basis and the period of deputation, including the period of deputation in another ex- cadre post held immediately preceding the appointment of C.E.O., shall ordinarily not exceed three years with effect from the date of assuming charge. The impugned repatriation order was issued after 13 months of resuming charge and the tenure of three years was not allowed to be completed. In the reply filed before the Tribunal the reasons for repatriation were stated in para.11 and read as under:- 5 wp-2003-2010 “.....It is submitted that there were verbal complaints that the applicant was not working in harmony with Ms. Nandita Das, the renowned film maker, who is presently the Chairperson of CFSI. The Chairperson and CEO should function in harmony and should not interfere in each other’s domain. While the CEO is responsible for the administrative functioning of the CFSI, it is the Chairperson who is required to provide creative inputs towards fulfilling the mandate of CFSI. However, this was not happening and the CEO appeared to be moving into fields which are in the domain of the Chairperson. It is submitted that there was lack of co-ordination between the Chairperson and the CEO of this organization....” 6. The Tribunal in the impugned order noted that before the respondent No.1 was appointed as C.E.O., the post was held by Ms.Radhika Rastogi. The record indicated that Ms. Radhika Rastogi had requested for a lateral shift from the post of C.E.O., C.F.S.I., to the Department of Atomic Energy, Mumbai, on the ground that she was facing lot of difficulties in discharging her duties effectively as C.E.O., C.F.S.I., after Ms. Nafisa Ali took over as Chairperson. Lot of allegations and counter allegations were made against each other and, therefore, the Secretary, Information and Broadcasting had 6 wp-2003-2010 forwarded the request of Mrs. Radhika Rastogi to the Establishment Officer,DOPT for concurrence and approval. While doing so, the Secretary concerned had remarked that Ms. Radhika Rastogi was having excellent service record and has been a very efficient officer. It was under these circumstances Mrs. Radhika Rastogi was relieved from the post of C.E.O., C.F.S.I., and after obtaining concurrence and approval of DOPT. The Tribunal further noted that apart from the Madhya Pradesh Government, the DOPT was also informed about the appointment of the applicant on deputation and the appointment order was issued after the DOPT concurrence. However, before issuing the impugned repatriation order, a proposal was not sent to the DOPT and its concurrence/approval was not obtained. The Joint Secretary had abruptly summoned the file on 9th April, 2010 and he noted “for the smooth functioning of C.F.S.I the Chairperson and CEO should function in harmony and should not step into each other’s domain. However, this does not appear to be happening and, therefore, it was proposed to repatriate the respondent No.1 to the Ministry of Home Affairs, with immediate effect”. The Tribunal noted that the said note was based only on an impression of an individual to whom it appears that the things were not moving in the right directions and such apprehension/opinion was not supported from the record. The Tribunal 7 wp-2003-2010 also referred to the O.M. No.519 of 1994 which was also referred in the appointment order dated 5th December, 2008 and while passing the repatriation order the DOPT was not consulted and its concurrence was not obtained. The Tribunal after looking into the record so as to ascertain whether there was any complaint regarding the functioning of the C.E.O., observed thus:- “We have not come across any noting of any responsible and competent authority regarding any oral or verbal complaint against the applicant. In the absence of any such record, the plea of the respondents based on the so called verbal complaints appear to be an after-thought and is advanced simply to justify the unfair and unjust decision to repatriate the applicant prematurely. This is a blatant violation of the principles of natural justice. We note it with concern that a person with more than two decades of unblemished service record and with 2 to 3 Presidential medals has been sought to be dealt with in a totally arbitrary manner by the respondents.” 7. The Tribunal also referred to O.M., dated 30th March, 2010 issued by the Government of India regarding Tenure Policy for the I.P.S. Officers on Central Deputation. The said policy has been issued basically for 8 wp-2003-2010 regulating the tenures in various Central Government/Units and it did not govern the terms and conditions on deputation in an autonomous organization and, therefore, the deputation of the applicant would be covered by the O.M., dated 5th January, 1994. The Tribunal referred to the following judgments of the Supreme Court:- (1) Purshottam Lal Dhingra vs. Union of India, AIR 1958 S.C.36, (2) Moti Ram Deka vs. North Eastern Railway, Union of India, AIR 1964 S.C. 600, (3) K.H. Phadnis vs. State of Maharashtra, 1971 (1) S.C.C. 790 and (4) Union of India vs. V. Ramakrishnan & Ors., (2005) 8 SCC 394. In the case of V. Ramakrishnan (supra) the Supreme Court held that although the deputationist may not have a right to continue in the post in question, but where it is for a specified time, it cannot be curtailed without giving reasonable opportunity to the affected person. Even the curtailment, if any, in the period of specified deputation is possible on the ground of unsuitability or unsatisfactory performance. The Supreme Court in the said case stated,:- “..... 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 9 wp-2003-2010 performance. But even where the tenure is not specified, an order of reversion can be questioned when the same is malafide. An action taken in a post-haste manner also indicates malice.” 8. In the instant case as noted earlier, the appointment issued in favour of the respondent No.1 stated that the tenure on deputation would ordinarily be of 3 years, which itself indicated that before completion of 3 years, the repatriation order could be issued if the record indicated that the respondent No.1 was unsuitable or his performance was unsatisfactory. In fact it is the case of the petitioners that the sole reason in the repatriation was the alleged interference and that too as reported on the oral information purportedly within the knowledge of the Joint Secretary. The impugned order of repatriation dated 26th April, 2010 was issued abruptly and on the basis of the noting made by the Joint Secretary. The duties of the Chief Executive Officer and the Chairman of C.F.S.I. have been set out in writing, and they read as under:- Chief Executive Officer: i) The Chief Executive Officer shall be appointed by the Executive Council for such period and on such terms and conditions as the Executive Council may determine with the approval of the 10 wp-2003-2010 Government of India. ii) The Chief Executive Officer shall be in overall charge of the Children’s Film Society, India, (and shall be an ex-officio member of the Executive Council) and shall attend all the meetings of the Executive Council. iii)He/she shall be responsible to the Executive Council for; a) Achieving the annual objectives of the production, purchase, dubbing, distribution and exhibition of the Society’s films etc. b) Achieving the annual revenue targets of the Society; c) Controlling all costs to keep within the annual expenditure budgets of the society; d) Ensuring that the revenue earned by the Society and the annual grants-in-aid from the Government of India are employed productively for growth of film production, distribution and exhibition by the Society; Chairman: i) The Chairman shall be appointed by the Government of India and shall hold office for a period of three years subject to the provisions of Rule 17. 11 wp-2003-2010 ii) The Chairman/Chairperson shall be a person who, in the opinion of the Government of India, fulfills the following criteria: a) Is known for his/her personal integrity; b) has a proven record of successful work in any occupation or profession, irrespective of his/her age; c) has sufficient time to devote to monitoring the work of the Society in some detail and preferably d) is a person of eminence in his/her field of work. iii)The Chairman shall serve the society in any honorary capacity and shall be the ex-officio Chairman of the General Body, Executive Council, the Finance Committee, the Production Committee and on the other Committees, which may be established by the Executive Council unless decides otherwise at the time when these other Committees are constituted. iv) The Chairman shall be responsible overall for the affairs of the Society and shall exercise such other powers and functions as may be assigned to him/her by the Executive Council from time to time. 9. The duties of the Chief Executive Officer do go to show that he shall be the over all in charge of C.F.S.I., and shall be an ex-officio member of 12 wp-2003-2010 the Executive Council and shall be responsible to the Executive Council for (a) achieving the annual objectives of production, purchase, dubbing, distribution and exhibition of the Society’s films (b) achieving the annual revenue targets of the Society; and (c) controlling all costs to keep within the annual expenditure budgets of the Society. If the C.E.O., pointed out to the Chairperson that as per the Rules of the C.F.S.I., she was required to fly by public sector carrier and by economy class rather than business class, that cannot be a reason to conclude that he was not in harmony with the Chairperson. Such a conclusion would be an absurdity. 10. We have given our anxious considerations to the arguments advanced by Mr. Masurkar, the learned Standing Counsel for the petitioners and the reasoning set out in the impugned order. The failure to submit a representation against the order of repatriation before filing the Original Application by the applicant will not vitiate or weaken the decision of the Tribunal in allowing the Original Application. Section 20(1) of the Administrative Tribunals Act, 1985 provides that the Tribunal shall not ordinarily admit an application unless it is satisfied that the appellant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances and thus the language of 13 wp-2003-2010 the Section makes it evident that exhausting the departmental remedies under the Service Rules is not a condition precedent and in the exceptional circumstances the Tribunal can entertain applications directly. Submitting a representation against the repatriation order is not one of the remedies prescribed under the relevant Service Rules and on the other hand the applicant has been assured a tenure of three years, subject to certain exceptions, as noted above. It could be inferred from the record that two consecutive C.E.Os., found it problemsome to work with the successive Chairpersons and the applicant did not apply to the Government of India for repatriation as was done by his predecessor. Such appointees cannot be allowed to be shunted out on the personal opinions not supported from the record and such arbitrary orders of cutting the tenure if allowed to operate, public service would be a casualty. Honest and efficient officers must be protected from being humiliated, cornered or discarded in such fanciful manner and the Tribunal has rightly stepped in to do justice to an upright officer. The repatriation order was not passed by following the required procedure as was set out in the O.M. No.519 of 1994. Having regard to the reasoning set out by the Tribunal in the impugned order, it cannot be said that the Tribunal acted without or in excess of jurisdiction in setting aside the 14 wp-2003-2010 repatriation order dated 26th April, 2010. 11. However, the petitioner had filed Misc. Application No.457 of 2010 on 15th September, 2010 for extension of time and it was rejected by the Tribunal on 20th September, 2010 by imposing exemplary cost of Rs. 25,000/-. In our considered opinion, though the Tribunal was justified in rejecting the M.A., the order of imposing costs of Rs.25,000/- was not justified and it was a harsh order. If the ex-parte stay order dated 2nd June, 2010 was not implemented the applicant would be entitled for full salary as if on duty and the petitioner could not be said to have engaged in dilatory tactics to pray for stay to the impugned order or to the contempt proceeding after the instant petition was filed. Such an action can not be taken as without bonafides. We, therefore, deem it appropriate that the order passed on 20th September, 2010 to the extent it directed to pay costs quantified at Rs.25,000/- is required to be interfered with. 12. Hence, we confirm the order passed by the Tribunal in O.A. No.387 of 2010 on 8th September, 2010 and direct the petitioner i.e. the Secretary, Ministry of Information and Broadcasting, New Delhi to implement the said order forthwith. However, the order passed by the Tribunal in Misc. 15 wp-2003-2010 Application No.457 of 2010 on 20th September, 2010 is hereby quashed and set aside. The Writ Petition is disposed accordingly. 13. The oral Application made by Mr.Masurkar for extension of time to implement this order is hereby rejected. (A.A. SAYED, J.) (B. H. MARLAPALLE, J.)