The article presents a legal analysis of the recent events affecting the bureaucracy in West Bengal. To that end, it discusses the specific instance of show-cause notice being issued to the former Chief Secretary of West Bengal under the Disaster Management Act. The article discusses how the actions of the Central Government were in derogation of various rules and contrary to the spirit of cooperative federalism.
Mr. Alapan Bandyopadhyay, the former Chief Secretary of West Bengal and an IAS Officer of the 1987 batch, in a transfer order, was asked to report to the Department of Personnel and Training (DoPT), in New Delhi at 10:00 AM on 31st May, 2021. The order was issued after Mamata Banerjee and the Chief Secretary reportedly skipped a meeting with the Prime Minister and the Governor of West Bengal regarding the reviewing of the situation in West Bengal, post the damage caused by Cyclone Yaas. The Cyclone had ravaged the State between 23rd and 25th May, 2021.
Ms. Mamata Banerjee categorically refused to release the Chief Secretary, calling the transfer order from the Centre “unprecedented and wholly unconstitutional”. When Mr. Bandyopadhyay did not report to the North Block at 10 AM on 31st May, the Central Government predictably issued a show-cause notice to him under Section 51(b) of The National Disaster Management Act, asking him to explain why he skipped the meeting. The West Bengal government then issued a statement that as on 31st of May, Mr. Alapan Bandyopadhyay had retired as the Chief Secretary of West Bengal, and had been appointed as the Chief Advisor to the Chief Minister, a post created especially to accommodate him. This diffused the tumultuous situation and prevented the senior bureaucrat’s Central Deputation to New Delhi. Moreover, as he was no longer the Chief Secretary, he was not answerable to the show-cause notice that was issued to him by the Central Government.
In light of the tussle between the State Government of West Bengal and the Central Government, this article aims to analyse the legal issues that underlie the administrative mess that unfolded from the end of May right up to the end of June, 2021. In this blog, I will identify and discuss the legality of the show-cause notice issued to the Chief Secretary under the National Disaster Management Act, and the non-adherence to the procedure laid down for calling IAS officers on Central Deputation.
On the propriety of the summoning procedure
The transfer order was issued to Mr. Alapan Bandyopadhyay by the Department of Personnel and Training, New Delhi, asking the Officer to report to, at 10 AM on 31st May, with immediate effect. It was issued according to Rule 6 of the Indian Administrative Service (Cadre) Rules, 1954. However, according to Rule 6, a cadre officer may be deputed to the Central Government, or another State Government, only after the Central Government has sought the concurrence of the State Government or Governments concerned. The Central Government issued the transfer notice to the IAS Officer only hours after the meeting regarding Cyclone Yaas with the Prime Minister ended. Chief Minister Mamata Banerjee called the notice “historically unprecedented and wholly unconstitutional”, and also wrote a letter to the Central Government requesting it to rescind the transfer order. It can quite clearly be inferred that the State Government was not consulted at all in the first place. This would be in violation of Rule 6 of the Indian Administrative Service (Cadre) Rules, 1954.
A similar incident occurred in December, 2020, owing to the attack on the convoys of the senior BJP leaders, J.P. Nadda and Kailash Vijayvargiya. The Central Government used Rule 6 (1) of the Indian Police Service (Cadre) Rules, 1954 to recall 3 IPS Officers serving in West Bengal to the Centre. It must be noted that Rule 6(1) of the Indian Police Service (Cadre) Rules is identical to Rule 6(1) of the Indian Administrative Service (Cadre) Rules. The Centre’s interpretation of Rule 6(1) was criticised as being contrary to the idea of cooperative federalism. The Central Government merely assumed disagreement of opinion on part of the State Government in order to circumvent the State’s consent altogether. It has been previously argued in this article, that even for the exercise of the Centre’s superseding power, the state’s consent and opinion must formally be sought in order to put a disagreement on record. Without such consent being sought, the very purpose of the rule gets defeated. The present case must also be looked at in this context.
Moreover, it was held in the case of State of Punjab v. Inder Singh & Ors. that an officer belonging to the All India Services cannot be deputed without seeking the consent of the person concerned. Given the events that unfolded in this particular case, it can be inferred that no consent was sought from the Chief Secretary concerning his deputation to the Centre. The transfer order issued to the Chief Secretary also did not mention the reason why he was being transferred to the Centre, nor did it mention the new post that had been allotted to him. It simply asked him to report to the DoPT. The lack of relevant details in the transfer order indicates that the order does not emanate from bona fide administrative concerns.
On the legality of the show-cause notice
When the Chief Secretary did not report to the DoPT on 31st of May, the Central Government issued a show-cause notice to him under the National Disaster Management Act, 2005, (hereinafter NDMA) asking him to reply to the notice within three days. According to the notice, the Chief Secretary had violated Section 51(b) of the National Disaster Management Act, 2005, for “refusing to cooperate with the lawful directives of the Central Government”. Section 51 of the National Disaster Management Act mentions that any person who refuses to comply with the direction that is given by or on behalf of the Central Government, the State Government, the National Executive Committee, or the State Executive Committee if convicted, could face imprisonment for up to one year, or a fine, or both. The interesting thing to observe here is that the notice did not mention which directive of the Central Government or the State Government had been violated by the Chief Secretary. Clearly, there had been no notice that was given to the Chief Secretary by the Central Government or the State Government which ‘directed’ him to attend the review meeting regarding Cyclone Yaas with the Prime Minister.
Moreover, the notice issued by the Central Government to the Chief Secretary mentions that the Prime Minister is the chairman of the National Disaster Management Authority which indicates that the Prime Minister by virtue of being the Chairperson of the Authority has individual powers to issue directives to the bureaucrat or incarcerate him if he does not comply with those directives. However, this indication is refuted by the fact that Section 3(2)(a) of the NDMA, says that the Prime Minister is only the ex-officio chairperson, by virtue of him being the Prime Minister, and that Section 3(2)(b) of the NDMA mentions that there are nine other members in the National Disaster Management Authority. Therefore, the legislation does not mention that the Prime Minister has any individual power to issue directives by virtue of him being the Chairperson. Hence, the directives being spoken about in the show-cause notice were not ‘lawful’ in the first place.
The show-cause notice issued to the Chief Secretary asked him to respond why the Central Government should not initiate disciplinary proceedings against him for having defied the Central Government’s directives in alleged violation of the Service rules. On this point, another issue comes into question- Whether the power to initiate disciplinary proceedings against bureaucrats who work with a State Government should be the State’s prerogative?
Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969, mentions the authority that is required to initiate disciplinary proceedings such as the one present in the show-cause notice issued to the Chief Secretary. Rule 7 of the aforesaid rules states that if the officer is serving in connection with the affairs of the particular state, then the authority to initiate disciplinary proceedings lies with the State Government. The Rule also clarifies that the Centre and the State need to be in concurrence for any action to be taken against bureaucrats and that a penalty can be imposed on a bureaucrat only by an order issued by the Centre.
At the time the review meeting was slated to take place, Mr. Alapan Bandyopadhyay was serving the Government of West Bengal, therefore we can say that the Chief Secretary was serving in connection with the affairs of the State of West Bengal. Thus, it was the Government of West Bengal that had the authority to initiate disciplinary proceedings against him, and not the Central Government. The Central Government’s show-cause notice to Mr. Bandyopadhyay is therefore not in accordance with the directions laid down in Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969. The Hon’ble High Court of Madras, in the case of Pramod Kumar v. The Union of India & Ors., ruled on the scope of Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969. The Court said that the Central Government could not initiate disciplinary proceedings suo motu against an All India Service Officer (such as an Indian Administrative Service Officer) if the officer was serving in connection with the affairs of the State Government. The Court also interpreted Rule 7, saying that it was implied in the Rule, that officers of services such as the Indian Administrative Service enjoy a special status. When they serve the Central Government, they are employees of the Centre, and when they serve the State Government, they are employees of the State. This clearly indicates the fact that the Central Government had no authority to initiate disciplinary proceedings against the Chief Secretary of West Bengal. This was reiterated by the Central Administrative Tribunal at Guwahati which held that the authority to initiate disciplinary proceedings against a bureaucrat lay with the State Government which the bureaucrat serves once he is appointed to the service.
The uncooperative brand of federalism is not only unhealthy for the working of a democracy like India but also militates against the independent and impartial functioning of the Civil Services, which Sardar Patel had once called “the machinery on which the country runs”. When the Centre deliberately circumvents the state’s consent and strong arms the Civil Servants of the country, it not only hampers the smooth functioning of a cooperative federal system but also strikes a blow to the independence of the working of the Civil Servants. In this particular case, the uncooperative actions of the Centre were in derogation of Rule 6 of the IAS (Cadre) Rules, 1954, and Rule 7 of the All India Service (Discipline and Appeal) Rules, 1969. As a “cherished constitutional goal”, cooperative federalism should prompt both the Centre and State to strive to better their relations in order to facilitate the machinery of the country to work smoothly and in turn, ensure the growth and development of the nation.
Mehul is a third-year student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.