Punishment in the garb of repatriation: CAT quashes 'stigmatic' send-back of CAG auditor who refused to fetch documents for an officer
Tribunal says misconduct
cannot be the foundation of premature repatriation without a regular
departmental enquiry; orders full salary and regularisation of 'dies non'
period
LEGAL CORRESPONDENT
NEW DELHI: The Principal
Bench of the Central Administrative Tribunal (CAT) has set aside the premature
repatriation of a Senior Auditor of the Comptroller and Auditor General of
India's (CAG) office, holding that an order which in reality rests on alleged
misconduct is "stigmatic and punitive" and cannot stand in the
absence of a regular departmental enquiry.
A Bench of Sanjeeva Kumar, Member
(Administrative), and Ajay Pratap Singh, Member (Judicial), allowed the
Original Application (O.A. No. 202/2025) filed by Ajit Tamolia, a Senior
Auditor in the Indian Audit and Accounts Department (IAAD), and quashed the
office order of November 18, 2024 sending him back to his parent office in
Mumbai, as well as the order of December 20, 2024 rejecting his representation.
The judgment was pronounced on July 24, 2025.
Seven years on spouse-ground deputation
Mr. Tamolia, whose parent cadre
is the office of the Director General of Audit (Shipping), Mumbai, had been on
deputation since March 2017 to the office of the Director General of Audit
(Railway Commercial), New Delhi, on the "spouse ground" — his wife is
a permanent PGT (Economics) with the Delhi government's Directorate of
Education. The deputation had been extended every year, the last extension
running up to March 13, 2025.
The refusal that started it all
According to the applicant,
between November 6 and 8, 2024 he was repeatedly asked to collect certain
documents on behalf of one M. Naveen Kumar from the office of the SDM (HQ),
Daryaganj — a task he contended was outside his official duties. He alleged that
when he declined, he was threatened with repatriation. The department, on the
other hand, maintained that the documents related to the Institute of Public
Auditors of India, that the request came from the Senior Private Secretary to
the Director General, and that an employee could not be "the arbiter"
of which directions were illegal.
On November 11, 2024, Mr. Tamolia
applied for four days' earned leave, citing mental distress. The leave was
declined because it was "Audit Diwas" week. A memorandum for
unauthorised absence followed on November 13, and on November 18 — the very day
he resumed duty — he was handed the repatriation order.
In an earlier round of
litigation, the Tribunal on November 21, 2024 had directed the competent
authority to decide his representation in compliance with the principles of
natural justice and kept the repatriation order in abeyance. The very next day,
the department treated his absence from November 11 to 14 as "dies
non". On December 20, 2024, the representation was rejected, the order
recording that he had been repatriated on grounds of "indiscipline and
insubordination" to the Head of the Department, besides frequent leave,
late attendance and unwillingness to work outside the office.
Department's defence
The department, represented by
advocate S.S. Hooda, argued that a deputationist has no vested right to
continue on deputation; that the DoPT Office Memorandum of June 17, 2010
requiring three months' advance notice did not apply since the deputation was within
the IAAD and at the employee's own request; and that the original order was
"innocuous", reasons having been disclosed only because the Tribunal
had called for a speaking order. It relied on the Delhi High Court's decisions
in L/Nk V.H.K. Murthy v. Special Protection Group and Dayanand
Kataria v. Union of India.
Tribunal: foundation, not motive
Rejecting the defence, the
Tribunal drew on the Supreme Court's rulings in Mathew P. Thomas v. Kerala
State Civil Supply Corporation (2003) 3 SCC 263 and Dipti Prakash
Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (1999) 3
SCC 60, holding that it could look beyond the face of the repatriation order to
find its real foundation.
The Bench observed that while the
November 18 order gave no reasons, the December 20 order established that
alleged misconduct was "the foundation of his repatriation". The
imputations — habitual late-coming, excessive leave, unwillingness to work —
were "serious in nature" and cast a stigma, yet no show-cause notice,
caution or enquiry had ever been issued, and his APARs for the three preceding
years were "Outstanding".
The Tribunal also took note of
the sequence of events. It said it "does not augur well" that,
immediately after his refusal to collect the documents, the department issued a
memorandum, a repatriation order and a "dies non" order in quick
succession — the last coming a day after he approached the Tribunal.
Distinguishing the V.H.K.
Murthy case, where no mala fides had been alleged, the Bench drew a clear
line between an officer's unsuitability and an officer's misconduct. Sending
back an unsuitable deputationist may be permissible under the terms of
deputation, it said, but where misconduct is imputed, the principles of natural
justice must be followed. The order, it added, would otherwise remain on his
record with a lasting adverse impact on his career.
Holding that the November 18
order had merged into the "stigmatic and punitive" order of December
20, the Tribunal set aside both.
Relief granted
Since Mr. Tamolia had already
joined his parent office on February 4, 2025 and the deputation tenure had
since expired, the Tribunal did not order his return to Delhi. It, however,
directed the department to pay him full salary for the period he worked with
the respondents and to regularise his period of absence, including the period
treated as "dies non", by granting him leave as admissible. No costs
were imposed.
Why it matters
The ruling reinforces that
premature repatriation, though ordinarily a matter of administrative
discretion, cannot be used as a short-cut to punish an employee for alleged
misconduct. Where the real basis of the order is misconduct, a deputationist is
entitled to a show-cause notice and a regular departmental enquiry before any
adverse finding is recorded against him.
Case: Ajit Tamolia v.
Office of the Comptroller & Auditor General of India & Ors., O.A.
No. 202/2025, Central Administrative Tribunal, Principal Bench, New Delhi
(reserved on 03.07.2025; pronounced on 24.07.2025)
For the applicant: Mr.
Shubham Bahl, Advocate, for Mr. Anuj Aggarwal, Advocate
For the respondents: Mr.
S.S. Hooda, Advocate
Counsel for the applicant
Anuj Aggarwal & Company
Advocates
Office: K-17, 2nd Floor,
Jangpura Extension, New Delhi – 110014 Chambers: 483, Block-II, Lawyers
Chambers, Delhi High Court, New Delhi – 110003
Mobile: 9891403206 Email:
anujaggarwal1984@gmail.com | anujaggarwalcompany@gmail.com Website:
https://advocateanujaggarwal.com/home.php
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