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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Arun Dev Choudhury, J.
GO 3006m Sri Ram Asra Khural, S/o. Sri Chura Ram – Petitioner
Versus
The Union of India Represented by The Defence Secretary, Ministry of Defence, 101-A, South Block, New Delhi and ors. – Respondents
WP(C)/7373/2022
Decided On : 12-02-2024
NOC - Departmental Proceeding - CCS (CCA) Rules, 1965 - [Rule 16 of CCS (CCA) Rules, 1965] - The court quashed the initiation of departmental proceedings including the Memorandum of Charge based on the rejection of NOC for deputation, citing bias and malafide exercise of power by the employer. The court emphasized that the rejection of NOC after selection was illegal and biased, as determined in previous litigations, and held that the petitioner cannot be proceeded for alleged misconduct based on the failure to seek permission before applying for deputation.
Fact of the Case:
The petitioner, an Executive Engineer, applied for a post at NHAI but was denied an NOC by the employer. After a series of litigations, the court quashed the initiation of departmental proceedings based on the rejection of NOC, citing bias and malafide exercise of power by the employer.
Finding of the Court:
The court found that the rejection of NOC after selection was illegal and biased, as determined in previous litigations, and held that the petitioner cannot be proceeded for alleged misconduct based on the failure to seek permission before applying for deputation.
Issues: The issues revolved around the rejection of NOC for deputation and the subsequent initiation of departmental proceedings based on alleged misconduct.
Ratio Decidendi: The court's decision was based on the determination made in previous litigations, emphasizing that the rejection of NOC after selection was illegal and biased, and that the petitioner cannot be proceeded for alleged misconduct based on the failure to seek permission before applying for deputation.
Final Decision: The court quashed the initiation of departmental proceedings including the Memorandum of Charge and imposed a cost of Rs. 50,000 on the respondent/employer for unnecessary litigation.
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JUDGMENT :
1. Heard Mr. D. Borah, learned counsel for the petitioner. Also heard Ms. R. Devi, learned CGC appearing on behalf of the respondent Nos. 1, 2, 3 and 4 and Mr. C. Baruah, learned Standing Counsel representing the respondent Nos. 5 and 6.
2. The present writ petition is filed assailing the initiation of departmental proceeding including the Memorandum of Charge bearing File No. 5(9)/2022-D (Lab) dated 29.09.2022.
3. The background facts of the present case can be summarised as follows:-
II. The petitioner participated in the selection process and was also selected. However, his employer i.e. Border Roads Organization (BRO) denied him an NOC in terms of an offer of an appointment dated 09.06.2020.
III. Being aggrieved, the petitioner approached this Court by filing WP(C) No. 2804/2020. This Court under its Judgment and Order (CAV) dated 19.07.2021 allowed the aforesaid writ petition. Certain important determination made in the aforesaid judgment by this Court, which are necessary for determination of the present writ petition is recorded herein below:-
a. The requirement of NOC was not a part of the advertisement dated 21.01.2020 but a requirement which was informed by communication dated 09.06.2020.
b. Therefore, the contention of the respondent that NOC was rejected by order dated 19.02.2020 is not sustainable as such rejection is much prior to the need of such an NOC.
c. The order of rejection dated 19.02.2020 was never communicated to the petitioner which is an admitted fact.
d. The rejection of NOC dated 19.02.2020 is inconsistent with the letter dated 07.02.2020, whereby the application of the petitioner was forwarded and such participation in the selection process is permitted only on fulfillment of the requirements forwarding the application by the employer but also enclosing copies of ACRs/APARs by the authorities.
e. The rejection of NOC dated 19.02.2020 is superfluous and artificial inasmuch as NOCs were granted to 15 numbers of similarly situated officers, 10 numbers of which were not even selected.
f. There are contemporaneous materials to indicate that such permission was all along granted by the authorities.
g. The entire action of rejection of the permission for deputation was set aside and the employer BRO was directed to accord necessary permission and NOC to the petitioner.
IV. The respondent employer BRO being aggrieved by the decision of the Coordinate Bench, approached the Hon’ble Division Bench by way of filing WA No. 188/2021.
V. The Hon’ble Division Bench under its order dated 02.09.2021 affirmed the decision of the learned coordinate Bench.
VI. The certain important findings of the Hon’ble Division Bench are recorded herein below:-
a. There was no specific denial by the employer regarding seeking permission by the petitioner.
b. The action of the respondent authorities in granting permission to similarly situated persons and not granting the NOC to the petitioner, only shows the bias against the writ petitioner.
c. Accordingly, the writ appeal was dismissed with a direction to the BRO to/private respondent within a period of 15 days from the receipt of the certified copies.
VII. Thereafter, the petitioner was granted NOC, who joined the service at NHAI. However, subsequently, the petitioner was repatriated to the parent department vide order dated 24.04.2023, during the pendency of this writ petition. Such fact has been provided by Mr. C. Baruah, learned Standing Counsel for the NHAI.
VIII. In the meantime, by a Memorandum dated 29.11.2022, while the petitioner was in deputation at NHAI, it was informed that BRO is proposing to take action against the petitioner under Rule 16 of CCS (CCA) Rules, 1965 and along with the aforesaid memor
The rejection of NOC after selection was deemed illegal and biased, and the petitioner cannot be proceeded for alleged misconduct based on the failure to seek permission before applying for deputatio....
An employee cannot face departmental proceedings based on issues already settled by prior judgments, especially when the employer's actions are deemed biased and illegal.
Point of Law : deputation can be aptly described as an assignment of an employee of one Department or cadre or even an Organisation, to another Department or cadre or Organisation and the necessity f....
A prior court ruling on an employee's eligibility for transfer precludes subsequent disciplinary action based on the same grounds.
Point of Law : Article 14 does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by ....
Departmental proceedings initiated without the appointing authority's approval are void, and failure to provide access to relevant documents violates natural justice principles.
The petitioner's actions must adhere to norms and procedures, and consideration for promotion must be in accordance with applicable rules and procedures.
Departmental proceedings must be initiated by the appointing authority, and failure to comply with this requirement renders the proceedings void, violating principles of natural justice.
The court emphasized the positive concept of Article 14 of the Constitution of India and the need for adherence to government rules and standards.
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