High Court
Case Details
WP(C) 2999/2010 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN By way of this writ petition, petitioner has challenged legality and validity of order dated 20.05.2010 passed by the Deputy Secretary to the Government of Indi a, Ministry of Water Resources and the consequential order dated 21.05.2010 of t he Secretary, Brahmaputra Board, Government of India, Ministry of Water Resource s. By the first order dated 20.05.2010, petitioner was repatriated to his parent department and by the second order dated 21.05.2010, he was released from the B rahmaputra Board on repatriation. 2. Facts are not in dispute. However, for adjudication of the case, the essential facts are briefly narrated hereunder. 3. While the petitioner was serving as Senior Manager (Civil) in th e North-Eastern Electric Power Corporation Ltd. (NEEPCO), a Government of India enterprise, he was appointed as General Manager, Brahmaputra Board on deputation basis vide order dated 05.09.2008. The deputation period was for 5 years or til l further orders, whichever was earlier. On being released by his parent organiz ation on 30.09.2008, petitioner joined as General Manager in the Brahmaputra Boa rd on 06.10.2008. 4. While serving as General Manager in the Brahmaputra Board, petit ioner was arrested on 22.02.2010 by the Central Bureau of Investigation (CBI) in connection with a criminal case (Special Case No. 3/2010 under Section 7 of the Prevention of Corruption Act, 1988). Since petitioner was detained in custody f or a period exceeding 48 hours, order dated 20.05.2010 was passed by the Deputy Secretary to the Government of India, Ministry of Water Resources declaring that petitioner would be deemed to have been suspended w.e.f. the date of detention i.e. from 22.02.2010 in terms of Sub Rule (2) of Rule 10 of the Central Civil Se rvices (Classification, Control and Appeal) Rules, 1965 (for short (cid:28)1965 Rules (cid:29)) . 5. urt. Petitioner was subsequently released on bail on order of this Co Thereafter, impugned order dated 20.05.2010 was passed repatriat 6. ing the petitioner pre-maturely to his parent department. This was followed by t he release order dated 21.05.2010. 7. Being aggrieved, petitioner has filed the present writ petition challenging the legality and validity of the aforesaid two orders. 8. This Court by order dated 18.06.2010 issued notice and in the in terim, stayed the repatriation order dated 20.05.2010 and all consequential orde rs. 9. Respondent No. 2 i.e. Brahmaputra Board has filed affidavit. Sta nd taken in the affidavit is that post of General Manager, Brahmaputra Board is a key post having heavy responsibilities. Because of arrest of the petitioner in a criminal case, he was placed under suspension. In view of such development, i t was decided to repatriate the petitioner to his parent department so that a ne w General Manager could be appointed. Repatriation order has been passed as per the terms of the deputation order. Parent department had given sanction for pros ecution of the petitioner in the criminal case. On repatriation of the petitione r, parent department may consider as to what administrative steps are required t o be taken in respect of the petitioner. Authority in the parent department woul d be competent to review or revoke the suspension of the petitioner. Respondent No. 5 i.e. NEEPCO has also filed affidavit. It is stated that petitioner was sen t on deputation to the Brahmaputra Board for a period of 5 years. In case of pre -mature repatriation before completion of the deputation period, it was incumben t upon the borrowing department to seek the views of the lending department. In the present case, borrowing department i.e., Brahmaputra Board had not sought (cid:28)n o objection (cid:29) from the lending department i.e., NEEPCO. 10. Respondent Nos. 1 to 4 have filed an additional affidavit to pla ce on record a copy of judgment of the Court of Special Judge, CBI, Assam, Guwah ati in Special Case No. 3/2010. By the said judgment dated 11.12.2012, petitione r has been convicted under Section 7/13(2) read with Section 13 (1) (d) of the P revention of Corruption Act, 1988 and sentenced him to undergo rigorous imprison ment (RI) for 2(two) years and to pay a fine of Rs. 25,000/-, in default, to und ergo further RI for 3 (three) months.
Legal Reasoning
11. Heard Mr. H. K. Mahanta, learned Counsel for the petitioner and Mr. J. Deka, learned Central Government Counsel appearing for respondent Nos. 1 to 4. Also heard Mr. K. P. Sarma, learned Senior Counsel appearing for responden t No. 5. 12. Learned counsel for the petitioner submits that under Rule 10 (5 ) (c) of the 1965 Rules, an order of suspension made or deemed to have been made under the said Rules can only be modified or revoked by the authority which mad e or is deemed to have made the order or by any authority to which that authorit y is subordinate. Since the suspension order has been issued by the Deputy Secre tary to the Government of India, Ministry of Water Resources, the same can be mo dified or revoked by the said authority or by any authority to which he is subor dinate. In case of repatriation in the present state, the authority at NEEPCO wo uld not have the competence to modify or revoke the suspension order. In such a case, suspension order will remain in force for an indefinite period, in which c ase, serious prejudice will be caused to the petitioner. According to the learne d counsel for the petitioner, petitioner cannot be repatriated in his present st ate of suspension. Submission of learned counsel for the petitioner has been oppose 13. d by Mr. Deka, learned Central Government Counsel. He has referred to various pr ovisions of the 1965 Rules to contend that while the borrowing department would have the competence to initiate necessary discipline steps against an officer on deputation, such power can also be exercised by the parent or lending departmen t. In this connection, particular reference has been made by learned Central Gov ernment Counsel to Rule 20 (1) of the 1965 Rules. He would therefore submit that there is no legal bar to repatriate an officer on deputation even when he is un der suspension. He further submits that no consent of the parent department is r equired before sending back an officer on repatriation. He has placed reliance o n the following decisions:-