Paresh Nath Sharma vs Union Of India (Uoi) Through The ...
2002 Latest Caselaw 1406 Del

JUDGMENT

Anil Dev Singh, J.

1. By this appeal, the appellant prays for the following reliefs:-

(a) allow the appeal and set aside the order dated 29.4.2002 passed by the learned Single Judge dismissing the Writ Petition of the Petitioner being Writ Petition No. 4946 of 2002.

(b) Pass such other and further order or orders as the Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.

2. The facts lie in a narrow compass and briefly stated are as follows:-

The appellant was appointed Director (Finance) in the MMTC Ltd. on April 10, 1995 for a period of five years. He completed his tenure on May 14, 2000. The Public Enterprises Selection Board recommended the appellant for appointment to the post of Director (Finance) for a further period of five years subject to clearance by the Central Vigilance Commission (CVC). In the meantime, the appellant was allowed to continue. On November, 13, 2000, the MMTC passed another order continuing the appointment of the appellant beyond November 14, 2000 until further orders. Obviously, this order was in the nature of an interim arrangement. As is apparent from the pleadings, this is how the parties understood the arrangement to be.

3. It needs to be noted that some time in February 1999 before the term of the appellant came to an end, the CVC had received a complaint alleging irregularities in purchase of rice to be exported to Singapore. On March 16, 1999, the Ministry of Commerce was asked by the CVC to inquire into the complaint and to report. The Ministry of Commere submitted its report on December 18, 2000. The CVC, on perusal of the documents, on February 7, 2001 recommended initiation of major penalty proceedings against the appellant, vide memo dated May 4, 2001 issued by the Government of India, Ministry of Commerce and Industry, Department of Commerce, the appellant was informed that the President proposes to hold an enquiry under Rule 25 of the MMTC Employees Conduct, Discipline & Appeal Rules, 1975. The substance of the imputations of misconduct in respect of which the enquiry was proposed to he held was set out in the statement of articles of charges enclosed with the memo. A statement of the imputations of the misconduct in support of each article of charge was also enclosed. A list of documents by which, and a list of witnesses by whom the articles of charges were proposed to be sustained were also enclosed. The appellant was directed to submit a written statement of his defense within ten days of receipt of the memorandum.

4. According to the appellant it came to his knowledge that the Department of Personnel and Training had issued an order requiring the concerned authority to discontinue the services of the appellant in view of the CVC's refusal to clear the appointment of the appellant. Therefore, on August 16, 2001 the appellant filed a writ petition whereupon the learned Single Judge granted an ad interim order interdicting the Corporation from terminating the service of the appellant. Subsequently, on April 29, 2002, the learned Single Judge dismissed the writ petition by holding as follows:-

"In so far as the grant of extension is concerned, I have already held as aforesaid that the petitioner has no right for such extension. There is no doubt that before the petitioner can be visited with any adverse consequence, he must have a right to be heard and present his point of view. The question remains whether such a right is to be given both at the stage of preliminary enquiry and at the stage of final enquiry or the principles would be met if such an opportunity was given at the stage of final enquiry.

The purpose of the preliminary enquiry is to find out whether there is some merit in the complaint as to warrant detailed enquiry or that the matter should be closed at the threshold. Once it is decided that proper department enquiry is to be held and the petitioner is to be afforded an appropriate opportunity to defend himself in such proceedings, in my considered view requirement of natural justice would stand fulfillled and the petitioner will have remedy against any civil consequences if he is aggrieved by the final order of the disciplinary authority.

It has to be appreciated that end of service of the petitioner is strictly not be termination in the normal sense of the word. This is so since tenure of which the petitioner was appointed was a fixed tenure. The continuation of the petitioner after the end of fixed tenure was only an interim arrangement pending the final appointment which has not taken place since petitioner was the person recommended by the PESB but ultimately could not be appointed due to lack of clearance from the CVC.

However, it is necessary to bring to an end quickly this issue since continuation of departmental proceedings over a longer period of time would cause prejudice to the petitioner for any employment. Learned counsel for the respondents on instruction states that the departmental proceedings can be completed within a period of three months. It is directed that the petitioner will cooperate with proceedings and respondent will take all steps to complete the disciplinary proceedings within a period of three months.

I am of the considered view that exigency of administration may require to filing up of the post and thus it is not feasible to restrain filling up of the post. However, if the petitioner is exonerated after departmental proceedings and the post has still not been filled up, the case of the petitioner shall be considered favorably in view of the fact that the petitioner had been selected by PESB and only impediment in the appointment of the petitioner was the refusal of respondent No. 4 to issue the vigilance certificate.

The writ petition is disposed of in aforesaid terms leaving the parties to bear their own costs."

5. Since the writ petition was dismissed on April 29, 2002, the interim order stood vacated. On April 30, 2002, the Government of India, Ministry of Commerce and Industry, requested the Chairman of the Corporation to relieve the appellant form his duties in view of the interim order having been lifted by dismissal of the writ petition. Aggrieved by the order of the learned Single Judge, the appellant filed the instant Letters Patent Appeal on May 27, 2002.

6. We have heard the learned senior counsel for the appellant as also the learned counsel for the respondents. We do not find any illegality or infirmity in the order passed by the learned Single Judge. The appellant was appointed as Director (Finance) in the M.M.T.C. on May 14, 1995 for a period of five years. It is not disputed that his term expired on May 14, 2000. The appellant, on the expiry of his tem as Director (Finance), ceased to have any right to the post. It appears to us that where the term of an employee expires, he cannot claim extension in service as of a right. We are satisfied that the appellant ceased to have any claim over the post after May 14, 2000 when his term expired. He also did not have any right to remain in the post.

7. At this stage it may also be noted that after the appellant's term expired, the appellant was allowed to continue in the post. This obviously was a stopgap arrangement. The order continuing the appellant in the post of Director (Finance) did not confer any right on the appellant to remain in the post. Since the order continuing the appellant did not create any vested right in the appellant to remain in the post, the same could have been withdrawn without any requirement of hearing being given to him. We are supported in this view by the decision of the Supreme Court in State of U.P. and Ors. v. Girish Bihari and Ors. .

8. Mr. Dinesh Dwivedi, the learned senior counsel for the appellant submitted that in essence the services of the appellant have been terminated on the ground of the alleged misconduct, which is the subject matter of the enquiry proceedings initiated against the appellant. As a sequitur it was submitted that since the action stigmatises the appellant and visits him with civil consequences, it should not be allowed to stand as no opportunity of hearing was given to the appellant.

9. We have considered the submission of the learned senior counsel. We regret out inability to accept the same. No order has been brought to our notice casting stigma on the appellant. Since the term of the appellant had expired on May 14, 2000, he could be relieved of the post of Director (Finance) at any point of time after the interim order passed by the learned Single Judge was vacated. There is no warrant in the submission of the learned senior counsel that the action is founded on the alleged misconduct of the appellant. The service of the appellant have not come to an end due to termination based on outcome of a departmental enquiry. It appears to us that the appellant, who is facing a departmental enquiry, cannot be placed in a more advantageous position than a hypothetical employee against whom no departmental enquiry is conceived and his term has expired. It cannot be disputed that the hypothetical employee, who faces no departmental enquiry, can be relieved of his post on expiry of his term. The question which arises for determination is whether the appellant can validly claim that he should be continued in the post of Director (Finance) as relieving him from the post on completion of his term would amount to casting a stigma on him in view of the pendency of departmental proceedings. It seems to us that just because departmental proceedings are pending against him, he cannot be allowed to reap an advantage which he could not claim in case departmental proceedings were not pending against him. It needs to be remembered that the services of the appellant are not being terminated. On the contrary he is being relieved of the post of Director after expiry of his term. In a case of this nature distinction between an act of an employer terminating the services of an employee and act of the employer relieving from the post on expiry of his term must not be lost sight of.

10. In the circumstances, we do not find any merit in the appeal and the same is, accordingly, dismissed.