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Judgment
Lingaraja Rath, J.—These two appeals arise out of the common judgment passed in Writ Petition No.25825 of 1995 and hence are disposed of by this common judgment.
The appellants in Writ Appeal No. 104 of 1996, for the purpose of this ju4Igment, are referred to as the appellants and the appellant in 1 Writ Appeal No. 34 of 1996, wherever necessary, would be specifically referred to.
The brief facts relating to the case are that the Respondent No. 1 in both the writ appeals 1 was deputed to the District Backward Classes Service Co-operative Society Limited, Warangal (Respondent No.2 of the writ petition and Appellant No.2 before us) by the Commissioner of Industries on October 31, 1994. He 2 was posted by the Ist appellant-Corporation in the 2nd appellant-Society as the Executive Officer which post was subsequently redesignated as the Executive Director. '' The Ist appellant repatriated Respondent No. 1 to his parent department by order passed on November 10, 1995 which is challenged in Writ Petition No.25825 of 1995. The writ petition having been allowed, appeals have been filed of which Writ Appeal No. 34 of 1996 is by the Respondent No. 3 to the writ petition who was brought on deputation from the Co-operation Department and posted by Appellant No. 1 in Appellant No. 2 Society. Writ Appeal No. 104 of 1996 is by Respondent Nos. 1 and 2 to the writ petition i.e., Appellants 1 and 2 to the writ appeal. It is the admitted case before us that so far as the appellant in Writ Appeal No. 34 of 1996 is concerned he has since been repatriated to his parent department by order passed by Appellant No. 1 on January 29, 1996 and has been directed to approach the Commissioner for Co-operatio ''n and Registrar of Co-operative Societies for further postings.
Writ Petition No.25825 of 1995 was allowed by the learned single Judge taking the view that since Respondent No. 1 had been deputed by the orders of his employer, the first appellant had no unilateral authority to post him back to the Government. Urging the appeal, it is argued before us that Respondent No. 1 nas no right to a post in the Corporation which has always the right to send him back to his parent department. Contesting the stand it is the submission of Mr. M. Rama Rao, learned counsel appearing for Respondent No. 1 that without the consent of the deputing authority i.e., his parent department, the Respondent No. 1 could not be sent off and relieved of his duties and that even otherwise, the order of repatriation is a veiled punishment and mala fide for which it must be quashed. Reliance is also placed on Rule 1 10(a) of the Andhra Pradesh Fundamental Rules to support the argument.
It is conunon law that a master has the choice of his own employee and his option in the matter cannot be fettered unless there is a statutory or contractual control over it. So far as deputation is concerned it is usually a matter of agreement between the two authorities of which one is the parent employer who deputes the Officer and the other is the deputation authority who accepts the deputation of the Officer. The terms of deputation are fixed either by mutual Rules or by agreement. The period of deputation is usually fixed under the Rules or the 29 agreement and where it is so fixed, the deputation is to normally last till the lapse of the period. But where there is no fixed period, it is the right of either of the authorities either to repatriate the deputationist or call him back, as the case 25 may be, at their own pleasure. A question as the present one arose before the Lordships of the Apex Court in The State of Orissa Vs. Sudhansu Sekhar Misra and Others, where the question was the repatriation of certain judicial Officers who had been placed at the disposal of the Government for administrative duties. The Officers having been unilaterally reverted by the High Court to its control which did not stop there but also posted some other Officers in the 35 Govermnent in the posts which fell vacant due to the repatriation, the correctness of the order was mentioned before the Supreme Court. Ex-plaining the position, the Court held that while sparing the service of an Officer it is open to the authorities to fix the period during which the deputation would last and at the end of the period the deputation authority is bound to allow the employee to come back to his parent department unless the deputing authority agrees for,45 the extension of the deputation. But considering the case where no such period is fixed the Court observed at p 668:
"... If there is no such agreement it is open so to the Government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit . ....... (Para 14) 5
This would show that where no specific period of deputation is fixed, the deputation authority has the right to send back an Officer to his parent department whenever it desires. This only conforms to the common law concept of an 0 employer being entitled to choose his employee.
Reliance is placed by Mr. Rama Rao on K. H. Phadnis v. State of Maharastra 1971 (2) SLR 245 to advance the proposition that where tl@e deputationist is repatriated even while there is no request from his parent department for the repatriation, and the sending back is effected because of certain allegations made 0 against the Officer, it has to be treated as really a punishment awarded, a stigma attached to him, and hence must be set aside. In that case the Officer on deputation had been asked to explain his conduct whether he had compelled his 5 peons to do menial work at the time of the marriage of his daughter; whether he had taken cash and gifts from Fair Price Shop owners and whether he had forced the staff to contribute in cash for the marriage of his daughter. Though 0 the Officer had denied the allegations yet he was threatened with repatriation and even the Minister who visited his office had told him that there were complaints against him to which the Officer had requested a thorough enquiry of the complaints. The Inspector of Police, Anti-Corruption Branch had taken possession of several files of Various Fair Price shop keepers for scrutiny. At this stage he was repatriated. The Court held, under these circumstances, that the 3 repatriation was an act of punishment attracting Article 311 of the Constitution of India. On facts the case has no application to the one in hand. The only statement made in the writ petition affidavit by Respondent No. 1 is that he had reliably leamt that the decision to send him back abruptly was taken on the pressure of the Social Welfare Minister K.Sri Hari, who hails from Warangal District, only to accommodate his candidate as the Respondent was not yielding to do some activities Me sanctioning of loans. ''Me Welfare Minister has not been impleaded as 92 a party to the case and as such the best person who can deny such allegations is not on record before us for which we are unable to take notice of the allegations. The statement itself is also vague without specific details. The Other statement to which our attention has been drawn is in the counter affidavit of the appellant in Writ Appeal No.34 of 1996 in Writ Petition No. 25825 of 1995 stating that the allegations of there being no complaints against Respondent No. 1 nor of any adverse remarks having been made against him were incorrect and that there were many. allegations against him which were reported in Newspapers, that the District Collector in his letter Rc. No. A7/6876195, dated, November 15, 1995 had called for a detailed report against Respondent No. 1 and the General Body of the Warangal Z. P. P. in its meeting held on September 13, 1995 had requested the first appellant to enquire into the allegation Of the 2 members regarding implementation of the scheme in the District. The statement, on one hand, is not of the Managing Director, Appellant No. 1 but is only of a person who had been posted in the place of Respondent No. 1 and on 2 the other hand the mere statement that there were certain allegations against Respondent No. 1 would not be taken as forming the foundation of an otherwise innocuous order, which has become final, to establish the order as a veiled 3 punishment. There is no warrant for the conclusion. As was observed by the Supreme Court in E. P. Royappa v. State of Tamil Nadu (1974 I LLJ 72), allegations of mala fides are more often easily made than established. We hence 3 hold the decision to have no application.
It is next contended by Mr. Rama Rao relying upon F.R.110(a) that in directing the deputation of Respondent No.1 his consent is4 not necessary and that since he is under the control of his departmental head, he has to obey his orders and unless he calls him back he cannot he relieved from the services of the CoToration. The petition, as has been explained earlier, does 4 not support the submission as no employer can be asked or compelled to be burdened with the service of an employee whom he does not want to retain.
But while that is so, we feel that another aspect of the matter has to be stressed. As we have stated earlier, deputation of an Officer from one authority to the other is a matter of mutual agreement between the two authorities to one of whom the request is made for the deputation and he complies with the request agreeing to send an Officer on deputation. It is hence felt fit and proper that when an Officer is brought on deputation, the parent authority should be made aware of the decision taken to send him back, at least as a measure of good relationship and courtesy. It can he visualised, if an Officer is suddenly relieved and is made to knock the door of the parent department abruptly for giving him a positing, the parent department may find itself in a state of unprepareamss to accommodate him since depending upon the deputation it might have entered into some temporary arrangements. Even though no notice of repatriation may be necessary to be given to the Officer concerned as he has no right to the post on deputation, yet a notice of the same can conceivably be given to the deputing authority to arrange its own affairs to take back the Officer. In the of Orissa v. Sudhansu S&har Mishra (supra) the observed at p 669 :
".... Both the High Court and the Governnient should not forget the fact that powers 0 are conferred on them for the good of the, public and they should act in such a way as to advance public interest. If they act with that purpose m view as they should, then there is no room for conflict, and no question .5 of one dominating the other arises. (Para 14)
Since public authorities are required to act in tandem and consonance with each other and their actions are mainly oriented to the betterment of the society, a discord between the two should always be avoided. We would hence like to say that when a deputationist is sent back, the deputing authority should be communicated 6 of the decision taken to have no longer the services of the Officer utilised in the deputation office and that likewise when the services of the deputationist is to be recalled, the deputation authority should be communicated in advance;0 of the decision so that it can take steps to organise its own affairs. As far as practicable the matter should be settled by mutual correspondence and agreements though however it has to be stated that by such process the right of either of the authorities to relieve the Officer or to call him back at their own pleasure, as the case may be, is never undermined. Admittedly, this procedure has not been followed and Respondent No. 1 is continuing to hold the post in Appellant No.2 Society in pursuance of the judgment of the learned single Judge. In the circumstances, it will be proper to direct that if Appellant No. 1 still wants Respondent No. 1 to be repatriated to his parent department, it would address necessary correspondence to the Commissioner of Industries for the purpose and take decision after awaiting a reasonable period for getting reply, and take decision accordingly.
So far Writ Appeal No.34 of 1996 is concerned we find it to have become infructuous in view of the repatriation of the appellant therein to his parent department.
In the result, Writ Appeal No. 34 of 1996 is dismissed as infructuous and Writ Appeal No. 104 of 1996 is allowed with the observations as above. In the circumstances of the case, there shall be no order as to costs.