IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN WRIT PETITION No.55227/2017 (S-RES) BETWEEN :
SRI. R. SHIVAKUMAR S/O. LATE RAMASWAMY, AGED ABOUT 52 YEARS, WORKING AS CHIEF FINANCE OFFICER (J.N.N.U.R.M AND PROJECTS), BRUHATH BANGALORE MAHANAGAR PALIKE, N.R. SQUARE, BANGALORE-560 002. ... PETITIONER (BY SRI. SATISH K. ADV. FOR SRI M. S. BHAGWAT, ADV.) AND:
1. THE STATE OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT, REPRESENTED BY ITS PRINCIPAL SECRETARY, VIKASA SOUDHA, BANGALORE-560 001.
2. THE COMMISSIONER, BRUHATH BANGALORE MAHANAGARA PALIKE, N.R. SQUARE, BANGALORE-560 002. … RESPONDENTS ( BY SRI. VENKATESH H. DODDERI AGA FOR R-1) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENT PERTAINING TO THE IMPUGNED ORDER DATED: 13.11.2017 VIDE ANNEXURE-C AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R Aggrieved by the repatriation order dated 13.11.2017, the petitioner, Mr. R. Shivakumar, has approached this Court.
2. Briefly the facts of the case are that on 04.03.1989 the petitioner was appointed as a Stenographer with the Karnataka State Financial Corporation (“the Corporation”, for short). On 04.03.1992, he was promoted on the post of Personal Assistant; on 28.02.2002, he was promoted on the post of Deputy Manager (Finance and Accounts). Considering his honesty and sincerity in the work, by order dated 03.10.2016, the respondent No.1, Department of Urban Development, deputed the petitioner to the respondent No.2, Bruhath Bengaluru Mahanagara Palike (“BBMP”, for short). However, after seeing the conduct and functioning of the petitioner, on 13.11.2017, the Commissioner, BBMP, has passed the impugned order and repatriated the petitioner back to the Corporation. Subsequently, on 18.11.2017, the petitioner had submitted a representation before the respondent No.2, requesting him to cancel the repatriation order. Even on 20.11.2017, the petitioner filed a second representation before the respondent No.2. However, so far the representations have not been acted upon. Hence, the present petition before this Court.
3. Mr. Sathish . K, the learned counsel for petitioner, has raised the following contentions before this Court:-
Firstly, relying on the case of The Commissioner, B.B.M.P. v. The Secretary, Department of Urban Development [W.P.No.17492/2011 & 17493/2011 decided by this Court on 05.06.2012], the learned counsel has pleaded that since the petitioner was deputed to BBMP by the Urban Development Department, the Commissioner, the respondent No.2, does not have the power to repatriate the petitioner to his parental department.
Secondly, the Circular dated 15.01.1977, issued by the Government prescribes a procedure prior to surrendering of a deputationist. According to the Circular, before a depuatationist can be repatriated to his/her parental department, a consultation needs to take place between the borrowing department and the lending department. However, the same has not been done in the present case. Therefore, without consulting the corporation, the respondent No.2 could not have repatriated the petitioner back to his parental department.
Lastly, the impugned order clearly states that the petitioner’s service is found to be unsatisfactory, he has not followed the directions issued by the higher officers, he has remained absent and gone on leave without obtaining the permission of higher officers. Therefore, officer is being relieved from the office of BBMP. Thus according to the learned counsel for the petitioner, the observation is stigmatic in nature. Therefore, the transfer order amounts to a punishment order. Relying on the case of Dr. M. SUMITHRA v. THE BANGALORE UNIVERSITY JNANA BHARATHI AND ANOTHER [ILR 2006 KAR 1122], the learned counsel has pleaded that a transfer order as a punishment order cannot be passed unless an enquiry is duly held and the delinquent officer is found to be guilty of the alleged offence. However, in the present case, no departmental enquiry has been initiated against the petitioner, and yet a stigmatic punishment order has been passed. Therefore, the impugned order deserves to be set aside by this Court.
4. Heard the learned counsel and perused the impugned order.
5. This Court has raised a pointed query to the learned counsel for petitioner whether there is any order/circular/notification, or any rule which prevents the Commissioner from repatriating the deputationist back to his parental department. To this query, the learned counsel has frankly conceded that there is no such Circular/Notification, or Rules which impose a duty upon the Commissioner, BBMP, to consult the Urban Development Department prior to repatriating the deputationist back to his parental department. The learned counsel has pressed on the judgment of the leaned Division Bench in the case of The Commissioner, B.B.M.P. (supra).
In the said case the learned Division Bench has opined as under:
3. The facts are not in dispute. By a notification dated 16.07.2007 of the Government, the service of the applicants were placed at the disposal of the Urban Development Department who in turn passed an order placing their services with the petitioner. Therefore, the petitioner issued an office order dated 02.08.2007 appointing them with effect from 25.05.2007. If the persons who were on deputation are to be repatriated, it is the authority which gave re-posting orders which has to pass an order repatriating them. As the deputation of these applicants is not made directly by the parental department to the petitioner, the petitioner has no competence to issue repatriation order, by itself. The proper course would be to approach the Urban Development Authority with a request to repatriate their services and then the Urban Development Authority who gave posting order to pass an order of re-posting. In that view of the matter, the impugned order passed by the Tribunal is in accordance with law and do not suffer from any error which calls for interference. No Merits. Writ petitions are dismissed.
It is open for the petitioner to request the Urban Development Authority to withdraw the services of the respondents and if such a request is made, the Authority may consider the said request in accordance with law and pass appropriate order.
6. A bare perusal of Para 3 of the said judgment clearly reveals that the learned Division Bench has not relied on any Circular/Notification, or Rules in order to form its opinion that it would be a proper course for the Commissioner to first approach the Urban Development Department with a request to repatriate the services of deputationist back to the parental department. Since the opinion formed by the learned Division Bench is devoid of any legal basis, and since the judgment suffers from being sub-silentio, it cannot have precedential value. Hence, the said decision is not binding on this Court.
7. Even for the sake of argument, if the opinion of the learned Division Bench were taken to be binding in nature, the issue before this Court is whether the permission was taken from the Urban Development Department by the Commissioner, or not ? A bare perusal of the impugned order clearly reveals that on 13.11.2017, a copy of the said order was sent to the Under Secretary, Department of Urban development. Despite having received the said order, the Department of Urban Development has not raised any objection to the petitioner’s repatriation back to the parental department. Thus, a post-decisional approval can be inferred.
8. In the Circular dated 15.01.1977, the Government had noticed that while sending a person on deputation, certain embarrassing situation may arise between the lending and the borrowing department. In order to iron out these creases, the Government directed all the departments to ensure that before posting an officer against the post, and the borrowing department before withdrawing an officer previously posted, to ensure that "before posting an officer against a post in borrowing department, before withdrawing an officer previously posted and before the service of the lent officers are surrendered to the parent department, there is prior consultation and agreement in regard to the officer to be posted, withdrawn or surrendered, so as to avoid dislocation in Government work as well as inconvenience to the concerned officers.
9. Thus, the purpose of issuance of Circular was to smoothen the difficulties which may arise between the lending and borrowing departments. However, the Circular cannot be construed as bestowing a right on the deputationist to continue to work in the borrowing department. In case the Circular were to be interpreted as bestowing a right on the deputationist, the Circular perse would be against the settled principles of Service Jurisprudence that a deputationist does not have a lien on the post on which he is deputed. Therefore, the Circular dated 15.01.1977 does not strengthen the case of the petitioner, that he cannot be repatriated to his parental department until and unless consultative process is gone through between the departments.
10. Although the learned counsel has relied on the case of Dr. M. SUMITHRA (supra), in order to buttress his plea that the impugned order in the present case is stigmatic one, the case of Dr. M. Sumithra is distinguishable on factual matrix itself from the present case. Dr. M. Sumithra had leveled certain allegations against Professor Siddalingaiah, Director, Center for Kannada Studies, with regard to sexual harassment. However, the Committee had exonerated Prof. Siddalingaiah of the allegations. Dr. M. Sumithra was transferred by the University. It is in this factual background that this Court had observed that "before an order of transfer on the ground of misconduct is to be passed, the employer was under a duty to issue a charge sheet setting out the charges/misconduct alleged against the petitioner. After holding an enquiry, if the misconduct was held to be proved, then it was open to the respondents to pass an order of transfer even by way of punishment."
11. However, the situation in the present case is quite different from the case of Dr. M. SUMITHRA (supra). Firstly, the petitioner is not a permanent employee of BBMP. In fact, he happens to be on deputation from the Corporation. Therefore, he cannot even claim that he has a lien over the post held by him in BBMP. Moreover, the observation made in the impugned order are merely subjective. For certain reasons, stated in the order, the borrowing department had found the petitioners functioning as "unsatisfactory". Therefore, the borrowing department is well within its power to inform the lending department that it finds the function of the deputationist "unsatisfactory". Therefore, the observations made by the respondent No.2 while repatriating the petitioner back to his parental department is not meant to be stigmatic. It is meant to be a justification for repatriating the petitioner back to the parental department.
Hence, the observations made by this Court in the case of Dr. M. Sumithra (supra) is clearly inapplicable to the present case. Thus, the decision of Dr. M. Sumithra (supra) does not strengthen the case of the petitioner. Furthermore, the borrowing department cannot be expected to be saddled with an inefficient employee.
12. For the reasons stated above, this Court does not find any merit in the present petition. It is, hereby, dismissed. No order as to cost.
Sd/- JUDGE Np/-