Dr.N.K.Raju vs The Union Of India

Telangana High Court

Dr.N.K.Raju vs The Union Of India on 3 May, 2024

          THE HON'BLE SRI JUSTICE PULLA KARTHIK

     WRIT PETITION Nos.12062 of 2018 and 12531 of 2022

COMMON ORDER:

Since the issue raised in both the Writ Petitions is inter related with each other, they are taken up together for disposal.

2) Heard Sri Goda Siva, learned senior counsel representing Ms. Goda Rama Lakshmi as well as Mr. B. Srinivas, learned counsel for the petitioners, Sri B. Jithender, learned Standing Counsel for Central Government, Ms. V. Uma Devi, learned Standing Counsel appearing for respondent-Bharat Dynamics Limited (in short 'BDL').

3) Aggrieved by the action of the respondent-BDL in initiating disciplinary proceedings against the petitioner vide Charge Sheet in Ref:BDL/31412/DP/2017 dated 30.12.2017, W.P. No.12062 of 2018 has been filed whereas W.P. No.12531 of 2022 has been filed seeking to direct the respondents to release the retirement benefits to the petitioner.

4) Learned senior counsel has submitted that earlier the petitioner was working as Deputy General Manager (HRD), Gas Authority of India Limited (GAIL) since 16.07.1991 and while so, he was attracted with the notification issued in the year 2011 for filling up the post of Executive Director (P&A) in the second -2- respondent Organization. As the qualifications prescribed for being eligible for consideration to the said post has been fulfilled by the petitioner, he has responded to the same and after due process of selection, he was appointed as such on 03.10.2011. Further, after discharging his duties to the best satisfaction of his superiors, he was retired from service on 30.12.2017 on attaining the age of superannuation. While that being so, the third respondent has issued the impugned charge memo to the petitioner on the day of retirement i.e. 30.12.2017 by framing two charges, without jurisdiction, for which, the petitioner has submitted a detailed written statement on 29.01.2018 by narrating the facts of the case. Without considering the same, the second respondent has appointed an Enquiry Officer on 05.03.2018. It is further submitted that the charge sheet dated 30.12.2017 suffers from lack of jurisdiction as the petitioner has completed MBA course in the year 1992 with the written permission of the GAIL wherein he was working during the relevant period. Further, the University has also declared that his certificates are genuine and the GAIL has granted two additional increments in accordance with Higher Qualification Incentive Scheme of the Organization and also awarded three promotions to the petitioner based on the MBA qualification from time to time. Further, in accordance with the Promotion Policy, two additional marks were also given to the -3- petitioner in 'Qualification' parameter in the tabulation of marks in DPC. When the University, which is the competent authority. has declared that the certificates of the petitioner are genuine and when the earlier Organization i.e., GAIL has permitted the petitioner to study MBA course and granted two additional increments and also awarded three promotions by awarding two additional marks in DPCs for MBA degree, the BDL has no jurisdiction to raise objection over the MBA qualification, after a lapse of more than 25 years from the date of acquisition of MBA Degree. It is further contended that the impugned charge sheet is contrary to the CBI Report dated 26/28-04-2011 wherein the allegations against the petitioner including the genuineness of the MBA Degree of the petitioner were proved false. In spite of the same, the third respondent has issued impugned charge sheet reopening the closed allegations, which were already found to be false by the premier investigation agency. It is further submitted that the impugned charge sheet is highly belated as it is issued in connection with the petitioner's educational qualifications acquired 25 years ago i.e. in the year 1992 that too with the permission of the GAIL where he was working at the relevant point of time. Now, after a lapse of 25 years from his acquiring the qualification, alleging that the petitioner has acquired MBA qualification without sanction of any Study leave cannot be sustained. Further, the -4- charge sheet is issued contrary to Circular No.3.3.2011 dated 11.03.2011 issued by the Central Vigilance Commission. It is further submitted that the impugned charge sheet is vitiated by malafide on the part of the respondents and the same is evident from the undisputed fact that it was served on the petitioner on the date of his retirement i.e. on 30.12.2017. Further, instead of serving the charge sheet at the Corporate office, with a malafide intention to tarnish the image and reputation of the petitioner, the same was served on the petitioner in the presence of his family members and employees of BDL assembled in the farewell function organized in his honour. Learned senior counsel has contended that the respondents have deliberately and willfully did not consider the fact that the GAIL has further permitted the petitioner to do research and acquire Ph.D. from Sri Krishna Devaraya University, Ananthapuramu, based on the very same MBA Degree acquired by the petitioner in the year 1992. It is further contended that contrary to the Rules, the salary of the petitioner for the month of December, 2017, Provident Fund and other retirement benefits, which cannot be stopped even after service of the charge sheet, were withheld by the respondents. As per Rule 30-A (ii) of BDL CDA Rules, 1975, only payment which can be withheld during the pendency of the disciplinary proceedings is gratuity that too only when pecuniary loss is caused to the Company. Even as per -5- the charge sheet, there is no pecuniary loss to the Company. Despite the same, respondents 3 and 4 have not only stopped the gratuity but also withheld the salary for December, 2017, Provident Fund, Performance Related Pay, leave encashment and other retirement benefits without having any authority or jurisdiction. In support of his contentions, learned senior counsel has placed reliance on:

1) M. Gangappa v. The State of A.P. 1;

2) UCO Bank v. Rajendra Shankar Shukla 2;

3) P.V. Mahadevan v. MD, T.N. Housing Board 3; and

4) Ajitsinh Himmatsinh Padhiyar v. Superintendent of Police, Amreli 4.

5) Per contra, the learned Standing Counsel has contended that the petitioner has joined the services of BDL as a direct recruitee in the post of Executive Director (Personnel and Administration) on 03.10.2011 through the process of open selection and prior thereto, he worked in the capacity of General Deputy Manager (HRD) in Government of India Undertaking called GAIL. Therefore, BDL Conduct, Disciplinary and Appeal Rules 1975 (in short 'BDL CDA Rules 1975) are applicable to the petitioner. The BDL is a 1 AIR 1964 SC 962 2 (2018) 14 SCC 92 3 (2005) 6 SCC 636 4 LAWS (GJH)-2023-4-469 -6- Central Public Sector Undertaking functioning under the administrative control and authority of Ministry of Defence, Government of India and the second respondent is competent to issue charge memo invoking the provisions under BDL CDA Rules, 1975, and to initiate disciplinary proceedings against the petitioner vide charge sheet bearing Ref.No.BDL/31412/DP/2017 dated 30.12.2017. It is further argued that the contention of the petitioner that the charge sheet is contrary to the CBI Report dated 26/28-11-2013 is factually incorrect and in fact the disciplinary action was initiated against the petitioner based on the advice given by Central Vigilance Commission vide Office Memorandum No.012/DEF/062, dated 29.12.2017, for which, the petitioner has submitted his written statement of defence on 29.01.2018 and since his explanation is not satisfactory, the respondents have appointed an Enquiry Officer on 05.03.2018. It is further contended that the method in which the petitioner had acquired the MBA qualification was improper and it is always open for the employer to cause investigation and enquire into such factual aspect of qualification at any stage during the service of said employee till the date of his retirement. In case of the petitioner, such investigation and enquiry was carried out by the Vigilance Department in compliance with the directions of Central Vigilance Commission, which are required to be followed and implemented -7- by the Central Public Sector Undertakings. Hence, absolutely there is no justification for the petitioner to raise any grievance against the action of initiating disciplinary proceedings against the petitioner by the employer i.e. BDL solely on the ground that the charge sheet happened to have been issued on the last day of working. It is further submitted that in compliance with the interim order dated 17.04.2018 passed by this Court in I.A. No.1 of 2018 in WP No.12062 of 2018, the BDL has paid statutory dues i.e. gratuity, Provident Fund and December, 2017 salary to the petitioner. It is further contended that the petitioner is required to participate in the departmental enquiry proceedings and cooperate with the Enquiry Officer in concluding the enquiry proceedings without causing any hurdles Therefore, it is prayed to dismiss the writ petition.

6) This Court has taken note of the submissions made by the respective parties.

7) Admittedly, the charge memo was issued to the petitioner on the day of his retirement i.e. on 30.12.2017 by framing the following two Articles of Charge:

I) That Dr. N.K. Raju, Staff No.31412 / 5037, presently working as Executive Director (P&A) in Bharat Dynamics Limited has acquired the professional qualification i.e. MBA (which is the essential and basic Qualification for the post of ED (P&A) in BDL) through Regular Mode from B.R. Ambedkar Bihar University, Muzaffarpur while working with M/s. GAIL as a 'Regular -8- Executive' and without sanction of "Study Leave" by M/s. GAIL (previous Organization) as the course is of 02 Years Full Time Course. The said Dr. N.K. Raju fraudulently sought permission from the erstwhile M/s. GAIL Management by concealing the true mode of the said M.B.A. course. He ingeniously obtained permission to pursue the MBA course from the erstwhile M/s. GAIL Management not for a 'Regular course' but he enrolled himself as a 'Regular student'. He pursued the said 'MBA' course without even applying leave for attending classes and without attending any classes, thereby misled the BDL Management by suppression of his essential credentials/information and fraudulently joined in the post of Executive Director (P&A) / Bharat Dynamics Limited, for which he is not eligible to be recruited for the post of ED (P&A). The details of which are given in the Statement of Imputations.

II) That Dr. N.K. Raju, Staff No. 31412 / 5037, presently working as Executive Director (P&A) in Bharat Dynamics Limited while applying for the post of Executive Director (P&A) in Bharat Dynamics Limited has ingeniously suppressed information about his actual experience i.e., post Qualification experience acquired after award of MBA degree which is the essential and basic Qualification for the post of ED (P&A) /BDL, thereby misled the BDL Management by suppression of his essential credentials / information and fraudulently joined in the post of Executive director (P&A) / Bharat Dynamics Limited, for which he is not eligible to be recruited for the post of ED (P&A). The details of which are given in the Statement of Imputations.

8) A perusal of the material on record discloses that prior to joining in the BDL as Executive Director (Personnel & Administration), the petitioner has worked in various capacities in various Organizations viz., (1) Biological Evans Ltd., Hyderabad as Assistant (Personnel); (2) Vanillin & Fine Chemicals Ltd., Hyderabad, as Superintendent (Personnel); (3) National Thermal Power Corporation as Supervisor (Personnel & Administration; (4) National Seeds Corporation Ltd. as Administrative Officer; and (5) Gas Authority of India Limited (GAIL) as Deputy Manager, Senior -9- Manager, Chief Manager and Deputy General Manager (HRD).

The petitioner was selected to the post of Executive Director (P&A) in BDL mainly on fulfilling the MBA qualification and experience criteria, after undergoing due process of selection in the year 2011. Further, according to the petitioner, in recognition of his performance, the BDL has also conferred several awards to the petitioner.

9) The record further discloses that the petitioner has acquired his MBA degree after he obtained permission from the GAIL, the Organization in which he earlier worked, vide proceedings No.BPR/HBJ/PERS/91, dated 07.02.1992, to prosecute his MBA course for 1992-1994 from Vaishali Institute of Business & Rural Management, which is affiliated to Dr.B.R. Ambedkar Bihar University and he was awarded MBA degree in the year 1996. Further, according to the petitioner, basing on the MBA Degree, so acquired, the GAIL has also granted two additional increments to the petitioner in accordance with its Higher Qualification Incentive Scheme and also awarded two additional marks in 'Qualification' parameter in DPC while promoting the petitioner thrice.

10) Further, vide Circular No.03.03.2011 dated 11.03.2011 the Central Vigilance Commission has issued certain guidelines for expeditious disposal of cases involving public servants due to retire

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shortly and the same are admittedly applicable to the BDL. Relevant portion of the said Circular is reproduced hereunder for better adjudication of the matter:

"2. The Commission has taken a serious note of such lax attitude on the part of CVO's/Das in making such references which leaves no option for the Commission, except to examine the case in a hurry. Such delayed references ultimately result in situations which either serve to the advantage of the suspect public servants/ charged officers (SPS/Cos) or initiation of disciplinary proceeding at the fag end of service of an officer.

3. While reiterating its earlier instructions in this regard, the Commission emphasizes that the vigilance functionaries as well as administrative authorities concerned should prioritise their activities of conducting investigation and disciplinary action so as to avoid such late references to the Commission. Undue delays on part of administrative authorities, in dealing with vigilance matters/ disciplinary cases, will henceforth be viewed seriously by the Commission and it would be constrained to taken an adverse view of CVOs/Administrative authorities for such avoidable delays.

4. All CVOs/Administrative Authorities should ensure strict compliance to the above instructions."

11) Admittedly, respondents 2 and 3 have failed to follow the said guidelines in the case of the petitioner, which they are obligated to follow, as evident from the action of respondents 3 and 4 in issuing the charge sheet against the petitioner on the day of his retirement.

12) That apart, admittedly, the petitioner has prosecuted his MBA degree in the year 1992-94 after obtaining permission from

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the then employer i.e. GAIL and the disciplinary proceedings were initiated by the BDL on the day of his retirement i.e. 30.12.2017. Thus, there is an inordinate delay of 25 years from the date of acquisition of qualification and 6 years after joining in the services of the BDL, in initiating the disciplinary proceedings that too violating the guidelines issued by the Central Vigilance Commission, referred supra.

13) As regards delay, this Court feels it just and necessary to refer to some of the judgments in this regard.

i) The Hon'ble Supreme Court in Rajendra Shankar Shukla's case (referred supra), has held as under:

"12. We do not find any reason to interfere with the judgment and order passed by the High Court. However, it is necessary for us to highlight a few facts which were brought to our notice during the course of submissions made by the learned counsel. The first issue of concern is the enormous delay of about 7 years in issuing a charge-sheet against Shukla. There is no explanation for this unexplained delay. It appears that some internal discussions were going on within the Bank but that it took the Bank 7 years to make up its mind is totally unreasonable and unacceptable. On this ground itself, the charge-sheet against Shukla is liable to be set aside due to the inordinate and unexplained delay in its issuance."

ii) Similarly, in P.V.Mahadevan's case (referred supra), the Hon'ble Supreme Court has held as under:

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"10. .... In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalizing the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be revoked for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.

11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

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iii) Further, the Hon'ble Supreme Court of India in State of Punjab v. Chaman Lal Goyal 5 has held that the disciplinary proceedings must be conducted soonafter the alleged irregularities are committed and if the delay is too long, the charges are liable to be quashed.

iv) Further, in Ajitsinh's case (referred supra), the High Court of Gujarat has held as under:

"(11.1) Thus, it would appear from the chronology that the Department i.e. Highest Officers of the Department were aware about the allegations against the petitioner and while a decision was taken to conduct departmental proceeding in the month of August 2013, yet the charge-sheet came to be issued against the present petitioner approximately 7 years later on 6/7/2020.

(11.2) Again, it also would be relevant to mention here that the affidavit-reply narrates the sequence of events and whereas it is not the case of the Department that the Department was neither aware about the allegations against the present petitioner, nor is it the case of the Department that the present petitioner had somehow managed to delay the proceeding. In the considered opinion of this Court, by no stretch of imagination a period of 7 years could be justifiable period, whereby the Department, though knowing about the allegations against the present petitioner, had not taken out departmental proceeding against the petitioner for a period of 7 years. It would further be relevant to mention that except stating chronology, there is no justification in the affidavit- in-reply for the gross delay of 7 years, which has taken place in issuing the charge-sheet to the petitioner.

(12.) Under such circumstances, in the considered opinion of this Court, delay being unexplained and as observed by the Hon'ble Apex Court in case of State of A.P. Vs. N. Radhakishan (supra), if the delay is

5 (1995) 2 SCC 570

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unexplained, prejudice to the delinquent employee is writ large on the face of it, in the considered opinion of this Court, a case for interference is made out."

14) Coming to the case on hand, the petitioner has acquired MBA degree with due permission of his earlier employer i.e.GAIL, completed the course in the year 1996 and the disciplinary proceedings were initiated in the year 2017 for the incident took place during the year 1992-96. Thus, there is an inordinate delay of 25 years from the date of acquisition of the qualification and 6 years from the date of his entry into the services of BDL. Therefore, the impugned charge sheet is hit by inordinate delay.

15) Insofar as the contention of the respondents as regards mode of acquisition of MBA degree by the petitioner is concerned, a perusal of the letter dated 19-07/12-08-2013 issued by the Vaishali Institute of Business & Rural Management, Muzaffapur, shows that the petitioner has attended the special classes conducted by the said Institute and thereby fulfilled the eligibility criteria with regard to attendance and therefore he was allowed to write the examination. Therefore, the objection taken by the respondents is absolutely baseless and cannot be countenanced.

16) In view of the above, the impugned charge sheet, dated 30.12.2017, cannot be sustained in law and is liable to be set aside. Accordingly, Writ Petition No.12062 of 2018 is allowed and

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the impugned charge memo dated 30.12.2017 vide Ref.No.BDL/ 3142/DP/2017 is set aside.

17) W.P. No.12531 of 2022 filed for directing the respondents to release the retirement benefits to the petitioner is concerned, in view of the submissions made by the respondents that in compliance of the interim order dated 17.04.2018 passed by this Court in I.A. No.1 of 2018 in W.P. No.12062 of 2018, the BDL has paid statutory dues i.e. gratuity, Provident Fund and December, 2017 salary to the petitioner, W.P. No.12531 of 2022 is disposed of directing the respondents to release balance due amounts, if any payable to the petitioner accruing on his retirement, as per his entitlement, within a period of eight weeks from the date of receipt of a copy of this order.

18) Accordingly, W.P. No.12062 of 2018 is allowed and W.P. No.12531 of 2022 is disposed of.

Miscellaneous petitions pending, if any, shall stand closed. No costs.

____________________ PULLA KARTHIK, J Date : 03-05-2024 sur