B.S. Rahi vs Union Of India
2008 Latest Caselaw 1833 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

          W.P.(C) No. 13672 of 2006 & CMs.10589/2006, 9048/2007

                                               Reserved on: October 3, 2008.
                                               Date of judgment: October 17, 2008.

         B.S. RAHI                                           ..... Petitioner
                                    Through: Mr. Rakesh U. Upadhyay, Advocate.


                           versus


         UNION OF INDIA & ANR.                ..... Respondents
                       Through: Mr. V.P. Singh, Senior Advocate with
                        Mr. Sanjiv Kumar Saxena, Advocate.

         CORAM:
         HON'BLE DR. JUSTICE S. MURALIDHAR

 1. Whether Reporters of local papers may be
      allowed to see the judgment?                                 Yes
 2. To be referred to the Reporter or not?                         Yes
 3. Whether the judgment should be reported in                     Yes
      Digest?
                                         JUDGMENT

Dr. S. Muralidhar, J.

1. This petition under Article 226 of the Constitution by a person who

was working as Deputy General Manager (Projects) with the National

Fertilizers Limited („NFL‟) Respondent No.2 seeks a large number of

reliefs. It is the case of the Petitioner that he is a whistle blower who was

victimised for drawing attention to the instances of misfeasance and

malfeasance in the NFL. Two of the prayers in the writ petition made in this

regard are:

"(i) Issue an appropriate writ, order or direction in the nature of mandamus directing the Chief Vigilance

Commission i.e. Respondent No.5 herein to conduct enquiry into the complaint made by the Petitioner in representation dated 19.06.2002 (Annexure P-8), in regard to complaint made by the Petitioner in regard to reclamation of the rail wheel burns, scabbing and cup welding; and also the rampant corruption prevalent in National Fertilizers Limited;

(ii) Issue an appropriate writ, order or direction in the nature of mandamus directing the Central Bureau of Investigation (CBI) to investigate rampant corruption in National Fertilizers Limited and also charges of corruption levelled by the Petitioner against the officials of NFL, including against it‟s the then CMD Mr. P.S.Grewal;"

2. Counsel for the petitioner fairly states that the above two prayers are made

by the petitioner as a public spirited person and no personal stakes are

involved as far as these prayers are concerned. Although at one stage this

Court had by its order dated 30th April 2007 permitted the Central Bureau of

Investigation to be impleaded for the above purpose, learned counsel for the

Petitioner states that he would not press for these prayers at this stage if he is

given the liberty to urge them in a separate petition at a later stage.

Considering that the remaining prayers in the petition are personal to the

petitioner, this Court is of the view that the above two prayers can be

considered in an appropriate separate petition. Liberty as prayed for is

granted.

3. This Petition has had a chequered history and this is the second round of

litigation. The Petitioner joined NFL as a Junior Management Trainee in

1972 and discharged his duties in various posts. In 1996 he was posted as

Manager (Materials) in Commercial Branch of NFL at Bhatinda. According

to him he came to know of the dishonest practices being carried on in the

NFL and drew the attention of the Senior Manager to them. The petitioner

then resigned on 9th September 2003. Although this letter was forwarded to

the Chairman and Managing Director (C & MD), for acceptance it was in

fact not accepted. In the meanwhile a disciplinary enquiry was ordered

against the Petitioner and certain others. Pursuant to the report of the Inquiry

Officer an order dated 25th November 2003 was passed by the C & MD,

NFL dismissing him from service. The Petitioner challenged the dismissal

order by filing Writ Petition (C) No.23746 of 2005 in this Court. The

following order was passed by this Court while disposing of the said

petition:

"1. Learned counsel appearing on behalf of the petitioner submitted that with the retirement of Sh. P.S. Grewal, as Chairman and Managing Director of respondent company, he would have no objection to preferring an appeal to the Appellate Authority, namely, the Board of Directors; in case the same is considered on its merit without reference to limitation. Learned counsel appearing on behalf of respondents 2, 3 & 5, upon instructions, submits he has no objection to this course of action. Even otherwise the offer made on behalf of the petitioner is fair.

2. Learned counsel for the petitioner submits that respondents should also consider his candidature for the post of Director since he is eligible. He has relied upon a letter dated 10.10.2002 to say that the petitioner is eligible; that the only impediment is the impugned order.

3. The counsel for respondents, however, submitted that after the issuance of the letter dated 10.10.2002, the respondents NFI has been up-graded to "Mini Ratna" Schedule „A‟ Company and, therefore, the petitioner would be ineligible for consideration even if the order of termination is eventually set aside.

4. In case, the petitioner approaches within a period of two weeks from today, the respondents shall consider it on the merits un-hindered by the issue of limitation, and pass a speaking order which shall be directly communicated to the petitioner within four weeks thereafter. It is also open to the respondents to consider the petitioner‟s request (if made) for consideration to the post of Director in accordance with law and guidelines applicable. All rights and contentions of the parties are kept open. In the event of any further grievance of the petitioner, it is open for him to take recourse to such proceedings as are permissible in law.

Order Dasti to counsel for parties."

4. Pursuant to the above order, the NFL has passed the following order on

7th July 2006:

"WHEREAS Shri B.S. Rahi, DGM (Projects) was charge sheeted vide Memorandum No. NFL/Pers/IR/6.63/637 dated 17th April, 2003 and inquiry was conducted as per the Rules governing his services.

AND WHEREAS Shri Rahi participated throughout the enquiry and adduced/filed documents. The Enquiry Officer submitted his report dated 22.10.2003 having examined the record, statements of witnesses, documents produced and finding of the Enquiry Officer, the

disciplinary authority vide order dated 25th November 2003 had removed Shri B S Rahi from the services of the Company w.e.f., 25.11.2003.

AND WHEREAS against the order of the Disciplinary Authority, Shri Rahi filed a Civil Writ Petition No. 23746 chllenging the dismissal orders in the Hon‟ble High Court of Delhi against the Union of India & others on 17.12.2005.

AND WHEREAS the Hon‟ble Mr. Justice S. Ravindra Bhatt vide judgment dated 19th April, 2006 disposed off the Writ Petition with following observations: "In case, the petitioner approaches the respondents with an appeal against the impugned order of termination within a period of two weeks from today, the respondents shall consider it on the merits un-hindered by the issue of limitation, and pass a speaking order which shall be directly communicated to the petitioner within four weeks thereafter. It is also open to the respondents to consider the petitioner‟s request (if made) for consideration to the post of Director in accordance with law and guidelines applicable. All rights and contentions of the parties are kept open. In the event of any further grievance of the petitioner, it is open for him to take recourse to such proceedings as are permissible in law." AND WHEREAS in compliance to the judgment dated 19th April, 2006 passed by Hon‟ble Delhi High Court, Shri B S Rahi vide letter dated 27th April 2006 submitted his appeal to Chairman & Managing Director, for consideration.

AND WHEREAS the Appeal was considered by the Appellate Committee of Board of Directors, in the meeting held on 01.06.2006 and after detailed deliberations resolved to constitute a Committee to inspect the site. The Appellate Committee also resolved

that Shri B.S. Rahi should be given an opportunity for personal hearing before the Appellate Authority. AND WHEREAS in the meeting of the Appellate Committee of Board of Directors held on 28.06.2006, the Committee constituted for the purposes submitted their report dtd 27th June 2006. The Committee members explained to the Appellate Authority the contents of the report from initiation of proposal of carrying out the subject work, phase-wise i.e., 1st Phase & 2nd Phase and the actual quantum of work done after physical inspection of the site.

AND WHEREAS Appellate Authority also gave personal hearing to Shri B S Rahi during the above meeting on 28.6.2006. Shri Rahi alleged that all the main culprits went scot-free and he was intentionally singled out. He requested the management to reconsider their Order of termination.

AND WHEREAS after detailed deliberations, the Appellate Authority observed that Shri Rahi has been dismissed from service after finding him guilty in the departmental proceedings. Findings of guilt having been based on the materials in course of departmental proceedings, they did not express any opinion on it. However, having regard to the facts that Shri Rahi has worked in the Company for long time, the Appellate Authority after considering the facts and circumstances, of the case, observed that the ends of justice would be met if order of dismissal of Shri B S Rahi is set aside and his resignation dated 9th September, 2003 is accepted w.e.f., closing hours of the date of his dismissal i.e., 25.11.2003.

AND WHEREAS accordingly, the Appellate Authority decided to set aside the order of Disciplinary Authority of 25th November 2003 dismissing Shri Rahi from service and forfeiting his gratuity.

AND WHEREAS the Appellate Authority further decided to accept the resignation dated 9th September 2003 of Shri Rahi w.e.f., the closing hours of 25th November 2003.

In view of the above, Shri Rahi would be entitled to the gratuity and all other retiral benefits as per rules." (emphasis supplied)

5. Aggrieved by the above order, the petitioner has again approached this

Court with the present petition. The grievance now made by the Petitioner is

in a narrow compass. It is submitted that the acceptance of his resignation

with effect from 25th November 2003 brings about virtually the same result,

i.e. the termination of his services with effect from that date. According to

him despite the order dated 7th July 2006 acknowledging that his earlier

dismissal was bad in law and therefore setting it aside, he has virtually been

denied any substantive relief. The further submission is that once the

dismissal order was set aside, the logical corollary is the reinstatement of the

Petitioner with effect from the date of his dismissal with all consequential

benefits including a likely promotion to the post of General Manager. It is

therefore prayed that the Petitioner should be deemed to have continued in

service till the date of his retirement and he should be permitted to retire as

General Manager with all consequential benefits.

6. The submissions of learned counsel for the Petitioner Mr. Rakesh U.

Upadhyay and Mr. V.P.Singh, learned Senior counsel for the NFL have

been heard at length. Although the parties addressed arguments and filed

written submissions, it was submitted on both sides that the central issue

involved was whether the acceptance of the petitioner‟s resignation, which

had not been acted upon earlier, in lieu of the dismissal, was arbitrary and

unreasonable in the facts and circumstances of the case.

7. It is clear from the order dated 7th July 2006 that even according to the

NFL the dismissal order dated 25th November 2003 should no longer stand.

To this Court it appears that the consequence of such a decision cannot result

in discontinuance of the Petitioner‟s service from the date of his dismissal

for that would not bring about any different a result as far as the continuity

of the service of the Petitioner is concerned. The resignation letter dated 9th

September 2003 had in fact not been acted upon by the NFL. Therefore,

there was no occasion to accept it three years later and that too with effect

from 25th November 2003, i.e the date of dismissal. In the considered view

of this Court, given the facts of the case in particular when the NFL has

decided that the dismissal order should be set aside, the Petitioner ought to

have been reinstated in the post he was holding at the time of dismissal, i.e.

Deputy General Manager and allowed to continue in that post till the date of

his normal retirement which is 31st December 2005. The prayer that he

should be also be granted notional promotion to the next higher post of

General Manager is hereby rejected particularly since it is a selection post

and the petitioner cold not have been promoted to that post as a matter of

right.

8. Accordingly the impugned order dated 7th July 2006 passed by the NFL is

modified to the extent that the Petitioner will be treated as having been

reinstated in the post of Deputy General Manager from the date of his

dismissal i.e. 25th November 2003 and continued in service in that post till

retirement on 31st December 2005 with all consequential benefits including

arrears of salary and retiral benefits. The NFL will now work out the

amounts owed to the Petitioner on the above basis, after accounting for the

amounts if any already paid, and pay him the same within a period of eight

weeks from today. Any delay in making payment beyond the period as

directed will result in the NFL having to pay the petitioner 9%simple interest

per annum on the amount due for the period beyond the stipulated time till

the date of payment.

9. With the above directions, the writ petition and the pending applications

are disposed of.

S. MURALIDHAR, J.

OCTOBER 17, 2008 dn