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Cites 2 docs
State Of Punjab And Ors. vs Inder Singh And Ors. on 3 October, 1997
The Rt. Rev. B.P. Sugandharbishop ... vs Smt. D. Dorothy ... on 12 April, 1996

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Gauhati High Court
Prasanna Kumar Nath vs State Of Assam And Ors. on 18 May, 2005
Equivalent citations: (2006) 3 GLR 252
Author: H Sharma
Bench: H Sarma

JUDGMENT

H.N. Sharma, J.

1. Heard Mr. A.C. Borbora, the learned Senior counsel appearing for the writ petitioner and Mr. A. C. Buragohain, the learned Addl. Advocate General, Assam for the respondents.

2. Both these two writ petitions, i.e., W P (C) No. 1098/05 and W P (C) No. 2029/05 are based on common facts. In W.P.(C) No. 1098/05, the notification No. AAA.5/2005/8 dated 11.2.2005 issued by the Joint Secretary to the Government of Assam, Personnel (A) Department is challenged. By the said notification, the petitioner, on being replaced in the Personnel Department, has been transferred and posted as Deputy Secretary, to the Government of Assam, Election Department, who was till then serving on deputation as Project Director, District Rural Development Agency, Nalbari (here in after referred to as the PD, DRDA, Nalbari).

3. In W.P.(C) No. 2029/05, the petitioner has challenged and prayed for quashing of a notification issued under Memo No. NZP/04/1962(A) dated 30.12.2004 addressed to the Commissioner and Secretary, Government of Assam, Personnel Department intimating inter alia that, a three- (3) Men Enquiry Committee was constituted to go into the irregularities done by the petitioner as PD, DRDA, Nalbari during his tenure of office on the subjects mentioned therein. In the said communication, request has also been made to move the petitioner out from his present post in the interest of smooth conducting of the inquiry. In view the identity of facts and relevant provisions, necessary to be gone into to decide the matter, both the petitions are heard and disposed of analogously.

4. The petitioner is an ACS Class I officer, and he was placed on deputation at the disposal of the Panchayat and Rural Development Department by the Personnel (A) Department for posting him as Project Director, DRDA, Nalbari. Accordingly, notification No. RDD.220/96/80- c A, dated 12.7.2002, posting the petitioner as PD, DRDA, Nalbari on deputation was issued. The said notification is quoted herein below:

ORDER BY THE GOVERNOR

NOTIFICATION

Dated Dispur, the 14th July, 2002.

No. RDD.220/96/80 : On his services being placed at the disposal of the Panchayat & Rural Development Department by the Personnel (A) Department vide their Notification No. AAA.6/2001/pt/37 dated 10.7.2002 and in the interest of public service, Sri Prasanna Kumar Nath, ACS, Project Director, LTDP. Goalpara (Dudhnoi) is appointed as Project e Director, on deputation and posted at the DRDA, Nalbari with effect from the date of taking over charge vice Sri S. C. Buragohain, ACS, replaced vide this Department's Notification No. RDD. 145/97/pt-l/39 dated 30.4.2002.

Sd/-S.N.Medhi,ACS

Deputy Secretary to the Government of Assam, Panchayat & R.D.(C) Deptt.

In terms of the aforesaid notification, the petitioner having been placed on deputation as PD, DRDA, Nalbari accepted the same and duly joined in the deputed post. The petitioner alleges that, after his joining as PD, DRDA, Nalbari, the petitioner with a view to streamline the functioning of DRDA proceeded to conduct inquiries into various facets of implementation of the various developmental scheme, which are being implemented through the DRDA, Nalbari and the petitioner had to take disciplinary action against some of the employees, for which the petitioner incurred displeasure from various quarters. While the petitioner was rendering his service, in terms of the guidelines of the Central Government as well as the State Government for implementation of the various schemes under the DRDA such as Swarna Jayanti Swarojgar Yojna, etc. in its true spirit and terms, a involved the concerned Panchayats, Gram Sabhas and the beneficiaries of the scheme. While doing so, some of the members of the Governing Body of the DRDA, which are MLAs of the District of Nalbari and the President of Nalbari Zila Parishad, who is the Chairman of the DRDA, directed the petitioners to act as per their dictation, in the matter of, implementation of various development activities, but contrary to the procedure to be followed as per guidelines. However, the petitioner not having obliged those persons, which antagonized them, for which the petitioner earned their wrath and displeasures. Accordingly, at the instance of those persons, vide notification No. AAA.46/2004/7-A dated 7.8.2004, the service of the petitioner was replaced in the Personnel Department and he was transferred and posted as Addl. Deputy Commissioner, Bongaigaon. Vide another notification published being No. AAA.46/2004/7-A dated 7.8.2004, one Shri Subhas Buragohain, ADC, Darrang, Mangaldoi was posted as PD, DRDA, Nalbari in place of the petitioner. The said orders were challenged by the petitioner in W.P.(C) No. 5870 of 2004, and after final hearing of the matter, the same was set aside and quashed vide judgment and order dated 16.12.2004. It also pleaded that, in maintaining the minutes of the Governing Body Meeting held on 18.12.2004, the minutes were not properly recorded and matters, not discussed in the meeting had been recorded. The petitioner has annexed one draft minutes dated 18.12.2004 to show the differences. Allegations are also made that, as per minutes of the meeting dated 18.12.2004, the committee was constituted with the President of the Zila Parishad, who is also the Chairman of the DRDA, the MLA of the Dharmapur LAC and the Deputy Commissioner, Nalbari to conduct enquiry against the petitioner with vindictive attitude. In order to show such attitude against the petitioner, the petitioner has also pleaded that the security, provided to the petitioner had been withdrawn and his Office was ransacked by some of the workers of the Congress Party. Ultimately, the concerned g respondents approached the Personnel Department for transferring the petitioner from his present post as PD, DRDA, Nalbari in view of the fact that, an inquiry is being initiated against him by the aforesaid three members committee. It was also informed to the Personnel Department that, the committee expressed apprehension that the petitioner might tamper the evidence and may destroy and manipulate records. The aforesaid communication was made to the Commissioner and Secretary, Government of Assam, Personnel Department by the Chairman, DRDA, Nalbari who is also the President of the Nalbari Zila Parishad vide impugned letter under Memo. No. NZP/04/1962 (A) dated 30.12.2004 In the said communication, seven numbers of items have been mentioned relating to which the enquiry is to confine. Thereafter, vide notification No. AAA.5/2005/8 dated 11.2.2005, the a petitioner having been placed in his parent Department, i.e., the Personnel Department, he was posted as Deputy Secretary, Election Department. It is alleged by the petitioner that, the aforesaid order has not been passed bona fide and on public interest, rather it was passed on political consideration, which is not permissible in order to transfer an Officer from one post to another. It is further alleged that the communication made by the Chairman, DRDA, Nalbari dated 30.12.2004 is not in consonance with the decision taken by the DRDA in its Governing Body meeting dated 18.12.2004, and the minutes of the meeting dated 29.12.2004 also do not disclose the true state of affairs which was discussed and decided in the Governing Body Meeting and c the matters not discussed in the meeting finds place in the minutes. Accordingly, the communication dated 30.12.2004, on the basis of the said illegal minutes is not sustainable in law, submitted by Mr. Borbora.

5. Controverting the allegations made by the petitioner, separate affidavit-in-opposition has been filed on behalf of the respondent Nos. 1,3 and 5, to which the petitioner filed further replies. In their affidavit the respondents have denied the allegations made by the petitioner and stated inter alia that the petitioner was posted on deputation as PD, DRDA, Nalbari and the borrowing Panchayat Department having repatriated the petitioner to the lending Department, the petitioner has been- appointed and posted as the Deputy Secretary in Election Department. It has also denied that the minutes of the meeting dated 18.12.2004 is incorrectly recorded and the allegation of malice has also been denied.

6. Referring to the various averments made in the writ petition, Mr. Borbora has submitted that the impugned orders, assailed in these writ petitions are without jurisdiction and is violative of the necessary guidelines of the DRDA issued by the Central Government making provision for constitution of a District Level Vigilance Monitoring Committee and the action to cause an inquiry against the petitioner is out and out malicious, illegal and arbitrary. Questioning the jurisdiction of the respondents to constitute the Enquiry Committee to find out the irregularities committed by the petitioner, Mr, Borbora submits that, under the guidelines for vigilance and monitoring committee at State and District Level to monitor the Rural Development Programme issued by the Ministry of Rural Development Monitoring Division, Government of India, any complaint regarding alleged irregularities in respect of implementation of the programmes including complaints of wrong selection of beneficiaries, misappropriation and diversion of funds of various schemes can be referred to District Level Vigilance Monitoring a Committee and in view of the aforesaid provisions covering the field, the constitution of the inquiry committee is without jurisdiction. Consequently, the request made by the Chairman of DRDA, who is also the Chairman of the proposed enquiry committee to move out the petitioner in the name of tempering evidence and manipulation of record, is totally unfounded and unsustainable in law.

7. Referring to the earlier transfer order, which was the subject matter of W.P.(C) No. 5870 of 2004 as well as the subsequent actions of some of the members of the Governing Body of the DRDA, more particularly, in view of the inability of the petitioner to comply with the request to include the name of some of the beneficiaries, wanted by them to be included, it is submitted that those persons bore ill feeling against the petitioner and accordingly, they are trying to remove the petitioner from the DRDA, Nalbari and are also trying to harass the petitioner by causing unnecessary inquiry.

8. Refuting the aforesaid allegation, Mr. A. C. Buragohain, the learned Addl. Advocate General, Assam submits that the enquiry proposed to be made against the petitioner is only a fact-finding inquiry, which is aimed to find out irregularities and illegalities, amounting to misconduct, if any, committed by the petitioner. It is submitted by the learned Addl. Advocate General that, in the event of arising any necessity, for holding a regular inquiry, on the basis of the preliminary enquiry, the petitioner would be given full opportunity to defend himself and the same would be done in terms of and complying with the necessary statutory rules and procedure. It has also been submitted by Mr. Buragohain that the allegation of malice is totally unfounded, misconceived and baseless and the present action has no link with the earlier transfer order. That apart, those MLAs and MPs being the constituent members of the Governing Body, DRDA, as per Central Government guideline, is very much within their jurisdiction to provide with the list of beneficiaries, whom they think to be included as beneficiaries of the concerned schemes and for that reason no fault can be found with those members of the Governing Body. It is further submitted that, there is no irregularities regarding the minutes of the Governing Body meeting dated 18.12.2004 and in fact in the approved minutes, the names of the connected schemes have been stated elaborately, which cannot be termed as departure from the minutes. In the meeting itself, there was a decision to hold a preliminary enquiry against the petitioner by a three-member committee constituted in the meeting and in that view of the matter, the minutes of the meeting cannot be stated to be illegal or arbitrary, nor the same is aimed to victimize the petitioner as alleged. It has further been submitted that the lending Department having placed the service of the petitioner with his parent department and the parent Department i.e. the Personnel Department a having accepted the petitioner back, has posted him as Deputy Secretary in Election Department and thereby the condition of service of the petitioner have no way been adversely affected.

9. I have considered the rival submissions made by the parties. I also perused the connected records produced by the learned Addl. Advocate General. On being pointed out about the non-availability of the note-sheets in the file No. DRD/NAL/N/15-2002-2005 relating to Governing Body meeting proceeding of DRDA, Nalbari, it is submitted by Mr. Buragohain that the petitioner is the custodian of the files of the DRDA, and on being directed by the Court to produce the relevant files, the Deputy Commissioner, Nalbari cum the Executive Director, has forwarded the connected file after collecting from the petitioner and for non-availability of the note-sheets in the file, the petitioner being the custodian of the file, is to be blamed. In the file received from the Personnel Department being No. AAA.5/2005, the connected note sheets are there. I have perused the relevant records so produced.

10. Two main points for consideration of the grievance raised by the petitioner can be classified in the following method:

1. Whether the constitution of the Preliminary Enquiry Committee with the Chairman, DRDA, the Deputy Commissioner, Nalbari and Anr. member of the Governing Body who is the MLA of Dharmapur LAC is valid or not ?

2. Whether the reversion of the petitioner to his parent Department and consequent posting as Deputy Secretary, Election Department is legally valid or not?

It is an admitted fact that the petitioner is on deputation in the Panchayat and Rural Development Department, posted as Project Director, DRDA, Nalbari and the Panchayat Department is the burrowing department and the Personnel Department is the lending Department. In the deputation order dated 14.7.2002, there is no any & mention of any specific period for which the petitioner is deputed. However, as per the guidelines issued by the Central Government relating to the constitution and function of DRDA, such deputation may be for 2/3 years. It is not disputed at the Bar that, such deputation is normally for a period of three (3) years. As the petitioner was placed h on deputation as PD, DRDA, Nalbari vide order dated 14.7.2002, taking three years to be the usual period of deputation, the said period of deputation would expire on 13.7.2005 and less than two (2) months left to complete the said period. That apart, it is the desire of the lending and the borrowing Department, which guide the term of deputation of an employee. In the instant case the borrowing Department has replaced the petitioner in his parent Department i.e. the Personnel Department. A deputed employee in such a case is not entitled to complain regarding his repatriation to the original Department. However, on some occasion, the borrowing Department can raise objection in case of pre-mature repatriation, but in the instant case the borrowing, Department has not objected to the repatriation of the petitioner, rather it has accepted him back in their Department and has given a suitable posting commensurating to his status. Apparently, on the aforesaid principle, the impugned order of repatriation and subsequent posting of the petitioner does not appear to be illegal. The concept of "deputation" in essence derived from the significance of the word 'deputy" and the appropriate meaning of' deputy' and the appropriate meaning of 'deputy', in this context, would be "substantive". In Black's Law Dictionary, the word 'deputy has been defined as "a person appointed or delegated to act as a substitute for another esp. for an "official". The Apex Court has explained the concept of deputation in the case of "State of Punjab v. Inder Singh, in the following term:

18. The concept of deputation" is well understood in service law and has a recognized meaning. "Deputation" has a different connotation in service law and the dictionary meaning of the word "deputation" is of the 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. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled law as we have also seen in various judgments, which we have referred to above. There is no escape for the respondents now to go back to the parent Departments and working there as Constables or Head Constables as the case may be.

11. Let us consider as to how and in what manner, the petitioner was repatriated to his parent Department by the borrowing Department. Record of the Personnel Department vide file No. AAA.5/2005 discloses that, on receipt of the letter No. NZP/04/1962 dated 30.12.2004 from President of the Zila Parishad, Nalbari and Chairman of the Enquiry Committee addressed to the Commissioner and Secretary, Government of Assam, Personnel Department, by which the Commissioner and Secretary, Personnel Department was requested to move the petitioner out from the present post in the interest of smooth conduct of the inquiry entrusted by the Governing Body of he DRDA, the file was processed and moved and ultimately the petitioner was posted as Deputy Secretary in Election Department. The learned counsel for the respondents could not furnish any order repatriating the petitioner by the borrowing Department, i.e., the Panchayat Department to the lending Department, i.e., the Personnel Department. Thus, it appears that, there is a missing link in between. No governmental order could be shown by the learned Addl. Advocate General, withdrawing the petitioner from the Panchayat Department and placing in his parent Department. Only on completion of such formalities of withdrawal, the petitioner could have been given a posting by the Personnel Department. Technically, an order of deputation appears to have been continuing in the absence of any order withdrawing and/or repatriating the petitioner to his parent Department. Ate already indicated, the power of the lending department to withdraw the petitioner from the Panchayat Department and that of the Panchayat Department to repatriate the petitioner to his parent Department, i.e., the Personnel Department is not in dispute, but the record does not disclose any such order and in the absence of such an order posting of the petitioner as per suggestion of the Chairman of the Governing Body, DRDA and in the context of the peculiar facts and circumstances of the case, does not appear to be justified. Accordingly, I am constraint to hold that, the impugned order of posting of the petitioner as Deputy Secretary in Election Department is not justified and accordingly, the said order stands quashed. It is made dear that, quashing of the said order will not preclude the authority from exercising its power in accordance with the provisions of law.

12. So far the constitution of the inquiry committee is concerned, it has been submitted by Mr. Buragohain that the said inquiry is only a fact-finding inquiry. Inquiry, in the instant case connotes act of seeking truth, information or knowledge about the

irregularities/illegalities committed by the petitioner, if any. A preliminary inquiry, as the very phraseology denotes is only a fact-finding inquiry. Such a preliminary inquiry is held in order to ascertain whether there is some truth in the complaints leveled against the petitioner and whether there are enough materials on the basis of which a regular enquiry can be held against the petitioner. The Governing Body of the DRDA in its meeting decided to conduct such a fact finding preliminary enquiry. Mr. Borbora has submitted that, the petitioner is not at all afraid of any enquiry to be made by any authority, other than the Committee so constituted by the Governing Body. The Governing Body in its wisdom has decided to hold a preliminary which is a fact finding Committee to be conducted through the Chairman of the DRDA, Nalbari and its Executive Director/Deputy Commissioner, Nalbari and Anr. member of the Governing Body, who is the MLA of Dharampur LAC. The scope and ambit of the said preliminary inquiry is only to see the available materials relating to the alleged illegalities/irregularities committed by the petitioner and the said inquiry committee, in no stretch of imagination can be said to be a formal inquiry Such a power is inherent with the Governing Body. Even if some materials are found against the petitioner, on the basis of the same alone the petitioner cannot be inflicted with any punishment without providing necessary opportunity to him and/or without holding any formal inquiry. In a similar case

(B.P. Sugandhar Bishop in Medak v. D. Dorothy Dayashila Ebeneser), the Apex Court quashed an order by which such a preliminary injury was set aside by the Division Bench of Andhra Pradesh High Court, setting aside the order passed by the learned Single Judge holding inter alia that, the learned Single Judge Bench had rightly dismissed the writ petition as premature and it was not proper for the Division Bench to set aside that order and quashed the constitution of Commission of inquiry and holding of a preliminary inquiry.

13. The submission of the learned counsel for the petitioner to the effect that, political persons having been entrusted to make the enquiry, the constitution of the enquiry committee is vitiated, cannot be accepted on the ground that such persons are very much members of the Governing Body of the DRDA. As per the Central Government guideline, the composition of the Government Body of DRDA is to be as follows:

1. Chairman of Zila Parishad-Chairman.

2. All MPs and MLAs of the District

3. 1/3rd of Panchayat Samiti Chairpersons to be nominated by rotation in alphabetical order for a tenure of one, one of whom must belong to SC/ST and Anr. a women.

4. CEO of Zila Parishad/District Collector-Chief Executive Officer/Executive Director.

5. Head of the Central Cooperative Bank of the District,

6. Chairman, Regional Rural Bank,

7. District Lead Bank Officer,

8. Representative of the Reserve Bank of India at district level,

9. NABARD representative at district level,

10. General Manager, DIC,

11. Representative of KVIB,

12. District Officer, in charge of Scheduled Caste/Scheduled Tribe welfare,

13. District Women & Child Welfare Officer,

14. District Officer dealing with welfare of the disabled,

15. One representative from technical institutions,

16. Two representatives of NGOs,

17. Two representatives of the weaker sections, one of whom may be drawn from SCs and STs,

18. One representative of rural women,

19. Project Director, DRDA - Member Secretary.

14. Provisions for constitution of vigilance and monitoring committee on State and District level to monitor the Rural Developmental Programmes as well as to look into the complaint/irregularities in support of implementation of the programme, including complaints of wrong selection of beneficiaries, miss-appropriation /diversion of funds etc. do not divest the Governing Body from its power to make a preliminary inquiry. Rule 11 of the Assam Discipline and Service Rules, empowers the borrowing Department to make necessary enquiry in case of d misconduct committed by such borrowed officer. That apart, the said committee having been constituted only as a fact finding body, no right of the petitioner as such, affected by the constitution of such committee.

15. In this view of the aforesaid discussions, I do not find any merit in the submissions challenging the constitution of the preliminary enquiry committee, constituted by the Governing Body, DRDA, Nalbari, against the petitioner in its meeting held on 18.12.2004.

16. In the result, the impugned order No. AAA.5/2005/8 dated 11.2.2005, issued by the Secretary to the Government of Assam, Personnel (A) Department stands quashed and the writ petition (C) No. 1098/05 is allowed and the writ petition (C) No. 2029/"05 challenging the initiation of the preliminary enquiry against the petitioner, vide letter under Memo. No. NZP/04/1962 dtd.30.12.2004 as per decisions of the Governing Body dated 18.12.2004 stands dismissed.

17. No order as to costs.