Dr Ramesh
Chandra Tyagi Vs. Union of India [1994] INSC 113 (11 February 1994)
Sahai,
R.M. (J) Sahai, R.M. (J) Anand, A.S. (J)
CITATION:
1994 SCC (2) 416 JT 1994 (1) 530 1994 SCALE (1)585
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by R.M. SAHAI, J.- Dr Tyagi, a man of high
achievement and distinction in physics who worked as a Research Assistant in
the University of Hull, England, was awarded Ph.D. in Solid State Physics, was
appointed as Assistant Professor of Physics in 1967 in IIT, Delhi, offered
Research Associateship in Solid State Physics by NASA, USA and was awarded for
research work in developing solid state device technology particularly infrared
detectors and epitaxial growth of state semiconductors whose works were
patented by (USA) NASA, was offered a supernumerary post in 1971 by Government
of India and was appointed Temporary Principal Scientific Officer (Gazetted
Class-I) subject to approval of Union Public Service Commission. He was regularised
in 1972 on the post of Principal Scientific Officer Solid State Physics.
Between 1972 to 1976 Dr Tyagi claims to have invented flash evaporation
attachment, developed infrared detectors and anticraft missiles and solar
concentrator. In 1978 he was awarded S.S. Bhatnagar Award.
2.Success
with self-assessment of superiority of learning is not only self-harming but is
susceptible of creating unknown irritants. And that probably appears to have
happened when the appellant on February 29, 1977 was directed to hand over
charge of his activities pertaining to PBS Detectors Development to Dr V.V. Ahashe
and those relating to Polymer Project to Dr Prem Swarup and join at Institute
of Armament Technology, Pune on a post which presumably carried same salary but
which according to Director of the Pune Institute was neither suitable nor
proper for the appellant. A researcher, a scholarly man of learning whose
scientific acumen could have been ultilised in the discipline for which he was
decorated by various awards by different institutions and whose need in public
interest was greater at Delhi than Pune was directed to work as
Instructor. No sooner the order was passed the appellant approached the High
Court under Article 226 but withdrew the same due to 42nd Amendment of the
Constitution and approached the civil court but when no injunction order was
granted and a meeting with the Secretary of the Department brightened chances
of amicable solution he withdrew the suit and was permitted to remain at Delhi
and he was put on deputation for one year and directed to join at IIT, Delhi.
Although
he joined but was not satisfied and consequently approached the civil court
again by way of Suit No. 264 of 1978 seeking declaration that the transfer
order was malicious and bad as it was not only motivated but was not passed by
the Secretary who alone was competent to transfer him. In February 1980 when
the appellant's deputation at IIT came to an end, and probably because he once
again had approached the court, he was directed to join at Pune
"consequent on expiry of his assignment as Visiting Scientist at 418 IIT,
Delhi, Dr R.C. Tyagi, PSCO may please be directed to report for duty to the
Dean and Director, IAT Girinagar, Pune, under intimation to this HQ." 3.From
here on started spate of litigations between the department and the appellant.
The one determined to fight for his right and justice and not to succumb to an
order passed by a person not authorised in law and the other not willing to
continue the appellant in the research wing presumably because of the attitude
of the appellant. Be that as it may, what is necessary to be mentioned and is
relevant, that the respondents in their written statement in the suit attempted
to defend the transfer order by taking up the plea that the order passed by
Director General was approved by the competent authority. But when the
appellant challenged it and moved application for summoning the record and the
court passed the order as well, the respondents failed to produce it. And the
stand during arguments was also not consistent. At one stage it was claimed
that all postings and transfers in respect of all gazetted officers (including
scientists) used to be ordered by the Chief Controller, Administration and in
case of the appellant it was ordered by the Chief Controller and issued by the
then Director. Later on the learned counsel relied on delegation of power which
shall be adverted to later. Such inconsistent stands unsubstantiated by record
cannot be appreciated. However in the meantime the department started
disciplinary proceedings against the appellant for not complying with the order
passed in 1980 directing the appellant to join at Pune. These proceedings came
to an end ex parte in 1981 and the appellant was dismissed from service.
4.Although
it appears unnecessary to narrate the tortuous course of litigation and the
series of applications, claim petitions, writ petitions, even special leave
petitions in this Court as most of them were ill-advised but after hearing
learned counsel for parties and with their consent it appeared just and proper
to decide the main issue instead of confining it to Section 340 Criminal
Procedure Code considering that the appellant is due to retire within short
time and it would be in public interest to bring to an end this unfortunate
state of affairs.
5.Two
basic questions arise, one, whether the basic transfer order passed against the
appellant was valid and in accordance with law and the other if the dismissal
order suffers from any infirmity. Taking up the transfer order it is undisputed
that the competent authority to transfer the appellant was the Secretary of the
department whereas the order was passed by the Director General. It was
attempted to be defended by claiming that the power of transfer was delegated.
But despite grant of time no order delegating the authority could be produced.
The learned counsel appearing for Union of India had to concede that no order
of delegation was on record. We are not prepared to infer delegation because
there were orders on the record which indicated that subsequently the Secretary
had delegated the powers. It is not delegation earlier or later which is
material but whether any delegation existed on the date when the transfer order
was passed. Further it is necessary to mention that the respondents having
taken definite stand in the written statement that the transfer order was
approved but did not produce 419 the record in the trial court nor could they
substantiate it even in this Court, there is no option but to hold that the
order was not passed by the person who alone was competent to do so. The
transfer order issued by the Director General, thus, being contrary to rules
was non est in the eye of law.
6.Coming
to the second order of transfer directing the appellant to join after he
returned from his deputation came to an end in 1980 it was not a fresh order
either by the Secretary or even the Director General and the appellant was
directed to join at Pune in pursuance of the earlier order passed in 1977.
Although the learned counsel was not willing to accept it but when the file was
perused it appeared beyond doubt that the appellant was again directed to be
transferred to Pune not on a fresh order of transfer but on the same order as
the noting in the file reads, "that orders of transfers to IAT still stand
and have not been cancelled. Submitted for orders." It was this note which
was approved by the authority concerned and it was directed that, "he
should be posted to IAT". Since the earlier order was invalid it obviously
did not exist in the eye of law and the second order of transfer founded on it,
too, could not stand.
7.As
regards the dismissal of the appellant it is unfortunate that he did not join.
The service discipline does not permit such adamant attitude. We do not approve
of the conduct of the appellant. At the same time the authorities too did not
adopt any reasonable or rational attitude. They were out to squeeze the
appellant and were not willing to budge and consider even when the Director of
the Pune Institute requested them not to post him there as sending such a
person was waste for a man of such high calibre. True, the terms and conditions
of appointment provide that he could be transferred anywhere in the country.
Yet the action must be fair and order legal. We have avoided entering into
fairness but on legality there is no doubt. Such attitude of the administrative
set-up is neither healthy nor conducive. In service culture devotion to work
and duty is more important than clash of false ego.
We are
pained to observe that entire proceedings do not leave very happy and
satisfactory impression. It was vehemently argued that there was no procedural
irregularity.
But
that is writ large on the face of it. No chargesheet was served on the
appellant. The Enquiry Officer himself stated that the notices sent were
returned with endorsement "left without address" and on other
occasion, "on repeated visits people in the house that he has gone out and
they do not disclose where he has gone. Therefore, it is being returned". May
be that the appellant was avoiding it but avoidance does not mean that it gave
a right to Enquiry Officer to proceed ex parte unless it was conclusively
established that he deliberately and knowingly did not accept it. The
endorsement on the envelope that it was refused, was not even proved by
examining the postman or any other material to show that it was refusal by the
appellant who denied on oath such a refusal. No effort was made to serve in any
other manner known in law. Under Postal Act and Rules the manner of service is
provided. Even service rules take care of it. Not one was resorted to. And from
the endorsement it is clear that the envelope containing charge-sheet was
returned. In absence of any charge-sheet or any 420 material supplied to the
appellant it is difficult to agree that the inquiry did not suffer from any
procedural infirmity. No further need be said as the appellant having been
removed for not complying with the transfer order and it having been held that
it was invalid and non est the order of dismissal falls automatically.
8.Before
parting with this appeal we are constrained to observe that the appellant's behaviour
with his superiors as appears from record was not of a responsible government
servant. The language used by him in his representation to the President of
India and in various petitions filed in different courts including this Court
smacks gross indiscipline, and lack of maturity. In fact it made us deliberate
whether this Court in exercise of its powers under Article 136 of the
Constitution interfere in favour of such a person whose conduct appears to us
to be highly objectionable. But on dispassionate consideration and in view of
what has happened to this officer, may be mainly because of his own conduct, we
felt that probably the unwarranted outbursts have appeared in the two
representations made in 1989 and some petitions out of sheer frustration and
desperation for which it would be too hard to deny him the relief.
9.In
the result, these appeals succeed and are allowed.
The
order of dismissal and the transfer orders passed by the respondents are
quashed. It is, further, directed that all proceedings pending in different
courts and the tribunal concerning or arising out of the transfer/dismissal
order shall stand terminated.
10.The
appellant shall be reinstated forthwith and shall be entitled to all benefits
except that he shall be paid but only 1/3rd of the back wages calculated as if
he was continuing in service with allowances etc. He shall further be entitled
to be considered for promotion on reinstatement on its own merits, when it
falls due for such consideration.
11.We
hope and trust that the department and the appellant shall adopt the attitude
of forget and forgive. The department is expected to adopt more constructive
approach and utilise the services of the appellant keeping in view his calibre.
And the appellant must give up thinking that he is the last word on learning
and self-assessment of his competence and righteousness.
12.
The appellant shall be entitled to costs which is assessed at Rs 5000.
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