The Calcutta High Court has clarified that an employee’s prolonged acceptance of deputation to a government department, without protest, constitutes tacit consent under service law, even in the absence of express agreement. This ruling resolves a critical conflict between contractual employment terms and state-led workforce rationalization efforts, with direct implications for public sector undertakings facing financial distress.
Background & Facts
The Dispute
The petitioners, employees of Durgapur Projects Limited (DPL), challenged orders dated 27.12.2022 and 10.01.2023 that placed them on deputation to the Office of the District Controller - Food and Supplies, Purba Bardhaman, under the Government of West Bengal. They contended that such deputation violated Clause 10 of DPL’s Standing Orders, which permitted transfers only within DPL’s own establishments and departments, not to external government bodies.
Key Facts
- The petitioners were appointed between 1994 and 2012 in Class IV (Tech) posts at DPL, either through compassionate ground or direct recruitment.
- DPL, a state-owned enterprise, has been in financial distress since the closure of its Coke Oven Group in July 2015 due to industrial recession and environmental violations.
- Three additional power plants were also shut down, leaving DPL with 1,594 employees against a sanctioned strength of 892.
- The surplus workforce became an unsustainable financial burden, with no operational scope for expansion or new projects.
- On 17.06.2014, the Finance Department of the Government of West Bengal issued a resolution on optimal utilization of human resources.
- On 26.12.2018, the Department of Power and Non-Conventional Energy Resources issued a notification enabling deployment of surplus employees to government departments.
- On 22.12.2022, the Additional Chief Secretary, Department of Power, approved the proposal.
- On 27.12.2022, Order No. DPL/GM (HR&A) 2022/471 was issued, placing 102 employees, including the petitioners, on deputation to the Food and Supplies Department.
- Two additional orders dated 10.01.2023 extended the deputation to other employees.
- All petitioners reported for duty at their new postings without objection.
- They continued to draw salaries from DPL, received deputation allowances, retained medical benefits, and were covered under the CPF.
- After approximately two years, in October 2024, the petitioners filed writ petitions challenging the deputation.
Procedural History
- 27.12.2022: First deputation order issued by DPL under State Committee’s direction.
- 10.01.2023: Two additional deputation orders issued.
- January - March 2023: Petitioners joined duties at new postings without protest.
- October 2024: Petitioners filed written representations challenging deputation.
- December 2024: Writ Petitions (W.P.A. Nos. 28619, 28623, 28636 of 2024) filed before Calcutta High Court.
- 21.04.2026: Hearing concluded.
- 30.04.2026: Judgment delivered.
The Parties' Positions
For the Petitioners: Argued that Clause 10 of DPL’s Standing Orders permits transfers only within DPL’s own establishments and departments, not to external government entities. Asserted that deputation without express consent violated their service conditions and amounted to constructive termination of employment with DPL.
For the State and DPL: Contended that the deputation was a rationalization measure necessitated by DPL’s financial collapse and surplus manpower. Emphasized that the petitioners accepted the posting, drew salaries, retained benefits, and remained silent for two years, thereby implying consent. Relied on Kavi Raj v. State of Jammu and Kashmir to argue that tacit consent is legally sufficient.
Relief Sought
The petitioners sought quashing of the deputation orders dated 27.12.2022 and 10.01.2023, restoration to their original posts at DPL, and a declaration that deputation to government departments without express consent is illegal under the Standing Orders.
The Legal Issue
The central question was whether an employee’s prolonged silence and acceptance of deputation to a government department, without formal consent, constitutes tacit consent under service law, and whether such deputation violates the terms of the employer’s Standing Orders when no explicit prohibition exists.
Arguments Presented
For the Petitioner
The petitioners relied on Clause 10 of the DPL Standing Orders, which limits transfers to "one establishment to another of the Company." They argued that the Government of West Bengal is not an establishment of DPL and therefore falls outside the scope of permissible transfers. They contended that Kavi Raj is distinguishable because it involved intra-government transfers, whereas here, a public sector undertaking was transferring employees to a state department, altering their employer-employee relationship. They asserted that consent must be express, not inferable, especially where fundamental service conditions are altered.
For the Respondent
The State and DPL argued that the deputation was a necessary, non-punitive measure to prevent mass unemployment and financial collapse. They cited Kavi Raj v. State of Jammu and Kashmir to establish that consent need not be express; it may be inferred from conduct. They emphasized that the petitioners received identical pay, benefits, and CPF coverage, with no adverse change in service conditions. The fact that 332 employees accepted deputation without protest, and only the petitioners challenged it after two years, indicated acquiescence. They further relied on Auroville Foundation v. Natasha Storey to argue that petitioners came to court with unclean hands.
The Court's Analysis
The Court undertook a detailed examination of Clause 10 of the Standing Orders and the factual conduct of the petitioners. It noted that while the clause permits transfers within DPL’s own establishments, it does not explicitly prohibit deputation to external government departments. The absence of a prohibition is significant: "Where the terms of service do not expressly forbid an action, and the employee accepts its consequences without objection, the law does not impose a requirement of express consent where none is mandated by statute or contract."
The Court then turned to Kavi Raj v. State of Jammu and Kashmir, which it found directly applicable. In that case, the Supreme Court held that an employee’s acceptance of posting beyond the parent cadre, without protest, constitutes tacit consent. The Court observed:
"Consent of posting (or transfer) beyond the cadre (or parent department) is inferable from the conduct of the employee, who does not protest or contest such posting/transfer."
The Court found that the petitioners’ conduct mirrored that of the employees in Kavi Raj: they reported for duty, drew salaries, retained benefits, and remained silent for two years. The Court rejected the argument that deputation to a government department fundamentally altered their employment status, noting that DPL continued to pay salaries, maintain medical benefits, and manage CPF contributions. The borrowing authority merely exercised administrative control during the deputation period.
The Court also considered the broader context: DPL’s financial collapse, closure of all major plants, and the State’s policy to rationalize surplus manpower. It held that the deputation was not arbitrary but a pragmatic solution to prevent unemployment and preserve employee welfare. The Court concluded that the petitioners’ delay in challenging the orders - after two years of active participation - undermined their claim of violation and reinforced the inference of consent.
The Verdict
The writ petitions were dismissed. The Court upheld the deputation orders dated 27.12.2022 and 10.01.2023, holding that the petitioners’ conduct constituted tacit consent under service law. The petitioners shall continue in deputation to the Office of the District Controller - Food and Supplies, Purba Bardhaman, retaining their current pay scale, deputation allowance, medical benefits, and CPF coverage as per the terms of the impugned orders. No monetary compensation or reinstatement was ordered. The petitioners are directed to comply with all administrative requirements of the borrowing authority.
What This Means For Similar Cases
Tacit Consent Is Legally Valid in Deputation Cases
- Practitioners must now argue that silence and continued acceptance of deputation for over one year constitute conclusive evidence of consent, even without written agreement.
- Employees cannot remain silent for years, benefit from the arrangement, and later challenge it on technical grounds.
Standing Orders Must Be Interpreted Contextually
- Employers cannot rely on restrictive clauses to block rationalization if the clause does not explicitly prohibit the action.
- Courts will examine the practical effect of the transfer, not just its label - deputation without adverse impact on pay or benefits is unlikely to be struck down.
Public Sector Rationalization Gains Legal Backing
- State governments and PSUs facing financial distress may deploy surplus employees to government departments without express consent, provided:
- Service conditions are not worsened
- Pay and benefits are maintained
- Employees do not protest for a significant period
- This creates a legal pathway for workforce optimization in moribund public enterprises.
Delay Defeats Remedy in Service Disputes
- A delay of two years in challenging deputation, after active participation, is fatal to the petition.
- The doctrine of laches and clean hands will be invoked more frequently in service law cases involving prolonged acquiescence.
The Burden of Proof Shifts to the Employee
- Once the employer demonstrates that the employee accepted the posting and benefited from it, the burden shifts to the employee to prove coercion or fraud.
- Mere assertion of contractual violation without evidence of adverse impact will not suffice.
