DAMODAR VALLEY CORPORAION Vs. RAJESH KUMAR

JUDGEMENT

(1.) All those matters are taken up together since all are directed against the same judgement and order passed by the learned Central Administrative Tribunal (CAT). Originally first application being W.P.C.T. No. 28 of 2008 was taken out by Damodar Valley Corporation (DVC) and its chairman dated 30th October, 2007. Thereafter Union of India and the State of West Bengal also filed separate applications Challenging the same judgement and order and in course of hearing of those matters a fresh application was taken out against the judgement and order passed by the learned Tribunal on 1st February, 2008 on two review applications and contempt application. All those matters relate to the legality and validity of the order of repatriation of Rajesh Kumar, the first respondent, who is a cadre of Indian Police Service (hereinafter referred to IPS in short) and at the time of deputation he was holding the post of Deputy Inspector General of Police. The fact of the case before the learned Tribunal was that Rajesh Kumar was sent for central deputation to the post of Financial Advisor (DVC), Kolkata for a period of five years by an order dated 13th September, 2006. While he was in deputation, according to him, he was prematurely repatriated and was taken back to his parent department. His grievance is that he was selected by the competent authority for deputation with the approval of Appointment Committee of the Cabinet (ACC). But he was repatriated without concurrence of the said ACC. He further contends that the ground for premature repatriation was allegedly for administrative exigency but the fact subsequently reveals that there was none as despite repatriation no posting order was issued even after joining the parent department. Hence, in absence of such ground of repatriation order is mala fide.

(2.) The first respondent, Rajesh Kumar, therefore, approached learned Tribunal for the relief of cancellation and/or withdrawal of the impugned letter recalling the applicant from deputation prematurely and for further order allowing the applicant to continue in the deputation for at least normal period of deputation of five years. The said application was opposed by the respondent viz. DVC by filing affidavit before the learned Tribunal and also by Union of India and State of West Bengal. The learned Tribunal on hearing the parties came to conclusion that order of repatriation was invalid as it was not passed in concurrence with the ACC who is the competent authority to grant approval of any order of deputation and that of repatriation. It was also found by the learned Tribunal that order of repatriation apart from being illegal was not issued in bona fide exercise of power by the Government. It appears from the record as it has been brought to our notice by the learned Counsels for the parties that the applicant moved the learned Tribunal challenging the letter of Chief Secretary of the State of West Bengal dated 10th May, 2007 requesting the Secretary, Ministry of Power, Government of India for release of Rajesh Kumar. On 21st May, 2007 the applicant moved the learned Tribunal with the aforesaid prayer originally and prayed for interim relief. On 21st May, 2007 the learned Tribunal passed an order of stay of operation of letter dated 10th May, 2007 issued by the Chief Secretary for a period of fourteen days and directed the matter to be placed for hearing on 4th June, 2007 for further order. It is not known to us whether on 4th June, 2007 it was heard or not. But on 6th June, 2007 the matter was heard by the learned Tribunal. On that date the learned Tribunal noted on perusal of the records that the applicant stood repatriated. Rajesh Kumar complained on the date that repatriation was made in violation of the said order. It was observed by the learned Tribunal that since the applicant stood repatriated no interim order could be passed at that stage and the matter was scheduled for hearing on 5th July, 2007 for further orders and, direction for filing reply was given within four weeks. On 5th July, 2007 the matter was taken up for hearing and on that date it was recorded by the learned Tribunal that contesting respondents had filed affidavit-in-reply and Rajesh Kumar did not want to file any rejoinder. However, the matter was not heard on that date and it was shifted to 9th August, 2007 for final disposal. What happened on 9th August, 2007 is not clear before us. It appears that on 16th August, 2007 a contempt application filed earlier by Dr. Rajesh Kumar, being CPC No. 50 of 2007 was disposed of by observing that there was no contempt and original application was shifted for hearing on 23rd August, 2007. But observing sequence of events as it reflects from the ordersheet, it appears that the question of admission at that stage did not and could not arise since it had already been admitted and direction for filing affidavit was given and indeed it was supposed to be heard finally in terms of orders dated 5th July, 2007 and 9th August, 2007. In view of subsequent events an application was filed by the applicant being M.A. No. 456 of 2007 for amendment of original application and the said application was disposed of allowing amendment and direction for filing reply was given within three weeks from the date of the receipt of the amended copy of the application and one week's time was given for filing affidavit of rejoinder and the original application was placed for hearing on 27th September, 2007. It appears that on 27th September, 2007 the original application was taken up for hearing but the matter was not heard and as such the same was adjourned till 13th November, 2007. Thereafter the matter might have been mentioned on 28th September, 2007 by the applicant as despite repatriation the applicant was not given his salary for three or four months nor any posting order was issued. After hearing necessary direction was given by the learned Tribunal for payment of salary as well as for issuing posting order and the hearing of the matter was preponed on 12th October, 2007. By the said order dated 28th September, 2007 it was directed that by 12th October, 2007 copy of the posting order must be filed.

(3.) It appears from the records that on 12th October, 2007 the said application was taken up for hearing. According to DVC, Union of India and the State of West Bengal on 12th October, 2007 the matter was not heard on merit and in fact could not be heard as the matter was directed to be placed for submitting the order of posting. As such there was no occasion to advance any argument on merit for final hearing on that date. However, the learned Tribunal recorded in the order dated 12th October, 2007 that the matter was heard finally and the judgement was kept reserved. The case of Rajesh Kumar is that the matter was finally heard on 12th October, 2007 and the learned Counsels for both the parties advanced arguments and ultimately the judgement was kept reserved and the same was delivered on 30th October, 2007. Thereafter DVC and Union of India filed review application against the said judgement and order and the said application for review was dismissed by the judgement and order dated as above. Before dismissal of the review application the DVC filed an application being WPCT No. 727 of 2007 challenging the same judgement and order dated 30th October, 2007 in this Court but the said application was not entertained in view of the pendency of the review application. Thereafter the present application has been filed by DVC, State of West Bengal and the Union of India as above after dismissal of the review application, and in course of hearing of these matters viz. WPCT 28 of 2008, 108 of 2008 and COCT 3 of 2008 the aforesaid application being 161 of 2008 was filed challenging the order dismissing review application and Mr. Mukherjee's client filed an affidavit-in-opposition to the second application challenging the order of dismissal of review. However, the argument was advanced by all the parties both in connection with the application against the order of the learned Tribunal allowing the application of Rajesh Kumar and also the order of dismissal of review.