G.K. Murthy vs The Chairman & Managing Director, ...
2009 Latest Caselaw 2140 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No. 1167/2000

                                  Judgment reserved on: 17.3.2009
                                   Judgment delivered on: 19.05,2009


G.K.Murthy                                  ...... Petitioner

                             Through: Mr. Harvinder Singh, Adv. with
                                      Ms. Bhawna Chopra, Adv.
                                    Mr. K. Venkataraman, Advocate

                        versus


The Chairman & Managing Director,IRCC Ltd. .... Respondent

                                    Through: Mr. D.N. Vohra, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may                       Yes
       be allowed to see the judgment?

2.     To be referred to Reporter or not?                              Yes

3.     Whether the judgment should be reported                       Yes
       in the Digest?


KAILASH GAMBHIR, J.

*

1. By way of this writ petition filed under Article 226 of the

Constitution of India, the petitioner seeks quashing of his

dismissal order dated 13/14.1.2000 . The petitioner also

seeks declaration for treating him to be in continuous service

with the respondent corporation. The petitioner also seeks

grant of consequential benefits as due to him from 1.3.1997 as

if he had continued to be in service of the respondent

corporation. In the alternative the petitioner also seeks

directions for treating him as voluntarily retired from

28.2.1997 in terms of the retirement notice given by him and

to grant him all retirement benefits as due to him on the last

pay drawn in the revised pay scale of Rs.12,000-16,500/- as

claimed by him in his application dated 3.3.1997 with interest

@ 24% per annum from 1.3.1997 in addition to the interest

earned on his provident fund accumulation till the date of

realization. The petitioner also seeks direction for the release

of arrears of pay and allowance which the petitioner is entitled

to as per the Fifth Pay Commission Report implemented by the

respondent-corporation w.e.f. 1.1.1996 with interest @ 24%

per annum from 1.1.1995 till the final payment. The

petitioner has also claimed damages to the extent of

Rs.5,00,000/- for the trauma and mental agony suffered by him

because of the totally indefensible, unfair and illegal conduct

of the respondent.

2. Brief facts of the case are as under:

The petitioner was appointed as P.S. to the CMD in

June, 1977 in the scale of Rs.800-1200 against an

advertisement issued by the respondent-Corporation. The

minimum qualification prescribed in the advertisement was

B.A. (Second Division). In the application dated 7.2.1977

submitted by the petitioner he had categorically stated that he

was a Matriculate having passed the Matriculation examination

from MEA Higher Secondary School, New Delhi in the year

1961. The petitioner also categorically stated in his bio-data

dated 7.2.1977 that he could not complete his graduation on

account of his transfer to the Bangalore regional office of

Indian Drugs and Pharmaceuticals Ltd. which is a Government

of India enterprise. On the basis of the this application and

with the full knowledge that the petitioner was only a

matriculate the petitioner was appointed in the service. During

the 20 years of service the petitioner was promoted to various

posts. An anonymous complaint was received by the

respondent Corporation(Vigilance Cell) in August, 1996. The

anonymous complainant had sent a fake B.A. Certificate in his

name purported to have been issued by the Aligarh Muslim

University showing that the petitioner had passed B.A. from

that University in the year 1968. The respondent corporation

invited applications for voluntary retirement from its staff vide

Circuler dated 22.11.1996. The petitioner fulfilled the eligibility

conditions and submitted an application for voluntary

retirement in the prescribed form. The petitioner‟s voluntary

retirement application dated 2.12.1996 was returned on

4.2.1997 by the respondent on the ground that his application

dated 2.12.1996 did not contain the recommendation of the

Head of the Department. The petitioner again submitted his

voluntary retirement application dated 2.12.1996 along with a

forwarding letter dated 10.2.1997. The said application was

acknowledged and kept on record in the Personnel

Department. The petitioner was not asked to submit a fresh

voluntary retirement application. The petitioner submitted a

letter on 19.2.1997 wherein he had stated that the three

months notice commencing from 2.12.1996 was coming to an

end on 28.2.1997 and that he would not be available for the

service of the respondent beyond 28.2.1997. Thus the

petitioner had every reason to believe that the voluntary

retirement took place w.e.f. 28.2.1997. The petitioner then

submitted an application on 3.3.1997 claiming his dues on the

basis of his voluntary retirement. On 5.3.1997 the petitioner

received a letter dated 28.2.1997 from the respondent stating

therein, that his application for voluntary retirement cannot be

considered as vigilance cases were pending against him. On

6.3.1997 the petitioner submitted a representation to the

respondent stating that his voluntary retirement became

effective form 28.2.1997 after expiry of three months‟ notice

period commencing from 2.12.1996. By office memorandum

dated 13.3.1997 the respondent took a position that the

petitioner‟s stand that he stood relieved on the afternoon of

28.2.1997 was untenable and that he was absenting himself

unauthorisedly from office and that he was liable to action

under the rules. By another memo dated 15.7.1997 the

petitioner was again informed that his application for

voluntary retirement (Golden Handshake) had not been

accepted by the competent authority because of pending

vigilance case. The respondent issued a memorandum no.

701040/Disc./1/PC dated 15.5.1998 along with which a charge

sheet was issued to the petitioner. In reply the petitioner vide

his representation dated 16.6.1998 refuted the allegations

made in the charge sheet. An enquiry was conducted by Shri

A.K. Garde from the office of CVC into the charges. The

Enquiry Officer held that charges 1 and 3 attributing that the

petitioner gave a forged certificate was not proved. By an

office order dated 13/14/1/2000 the petitioner was dismissed

from service. The petitioner made several representations

dated 19.2.1997, 3.3.1997, 63,1997, 10.3.1997, 18.3.1997,

3.3.1998, 6.6.1998, 15.2.1999, 4.3.199, 6.5.199, 6.10.99 and

lastly on 20.1.2000 to settle his dues on voluntary retirement.

3. Mr. K. Venkataraman counsel for the petitioner submited

that the petitioner was appointed on the post of P.S. to CMD

on 2.6.1977. Counsel for the petitioner further submitted that

without their being any complaint of any nature whatsoever

against the petitioner and despite the fact that he was working

honestly and diligently and rendered his conscientious services

with the Indian Road Construction Corporation Limited the

respondent had been harassing him for no rhyme or reason.

Counsel also submitted that the Indian Road Construction

Corporation Limited/respondent announced a scheme for

voluntary retirement and in response thereto the petitioner had

moved an application dated 2.12.1996 to seek voluntary

retirement. Counsel for the petitioner also submitted that

respondent corporation was required to take a decision within

three months period which came to expire on 28.2.1997.

Counsel for the petitioner submitted that no decision was taken

by the respondent on the said application of the petitioner but

just on the expiry of the said stipulated period, the respondent

corporation vide letter dated 28.2.1997 along with a memo

dated 6.3.1997 both appended to a forwarding letter dated

4.3.1997 communicated to the petitioner that his application

for voluntary retirement could not be considered as vigilance

cases were pending against him. Counsel for the petitioner

submitted that with a view to curtail the right of the petitioner,

apparently a false stand was taken by the respondent

corporation and without there being any basis an enquiry was

directed against the petitioner inter alia for the alleged forged

BA degree/graduation certificate; for the alleged qualification

of BA Second division in the year 1968; non disclosure of the

name of the said university; for the usage of BA degree for

obtaining initial appointment as Private Secretary in June,

1977 ; for non-disclosure of the name of the University from

which he had passed his Graduation. While working in the

Personnel Department of the IRCC Ltd. the personal file of the

petitioner was paginated more than once but some important

pages were found missing but still an illegal decision of not

considering his voluntary retirement was taken. Inviting

attention of this court to the application dated 7.2.1977 counsel

for the petitioner submitted that in column No. 3 "b" the

petitioner clearly stated that he appeared as a private

candidate in the year 1968 and he could not complete his

graduation as he was transferred to Bangalore in the year

1968. Counsel further submitted that he had stated that he

had passed BA in Second Division in the Preliminary

Examination conducted by Jayshree College Jangpura, New

Delhi but nowhere he had mentioned that he had completed

his graduation. Counsel further submitted that the said

application was duly received by Lt. Gen. B.N. Das, C.M. D. as

would be borne out from his signatures appearing on the

photocopy of the same placed on record by the petitioner.

Counsel further submitted that even in the questionaire the

petitioner had clearly stated that he had appeared as a private

candidate in BA examination in the year 1968. Counsel thus

contended that the petitioner had never submitted the

aforesaid certificate nor had suppressed any information or

mis-represented the fact of his being a graduate. Inviting

attention of this court to the report of the Enquiry Officer

counsel for the petitioner submitted that the enquiry officer

clearly observed that the petitioner had never submitted the

aforesaid certificate as the same was received by the

department from some anonymous source. In the said

enquiry report the officer also stated that no evidence was

produced to prove that the petitioner had forged the

certificate and submitted the same with the corporation. He

also clearly stated that all such certificates have been

produced by somebody unknown. The act of forgery

attributed to the petitioner was required to be established by

the respondent through evidence. The contention of the

counsel for the petitioner was that the findings given by the

enquiry officer clearly proved that the aforesaid certificates

were not submitted by the petitioner. Counsel for the

petitioner also invited the attention of this court towards the

documents filed by the respondent wherein they had taken a

stand that the said application of the petitioner was not

available in the records of the respondent and was missing

from the records. Counsel for the petitioner in support of his

arguments invited attention of this court to the documents

placed on record by the petitioner whereby the petitioner

sought his candidature to be sponsored by the Bhartiya Vidya

Bhawan, for undertaking Post Graduate Diploma Course in

Business Management in the year 1972-73 in which he clearly

stated that he was an undergraduate and therefore without his

being sponsored by the employer he would not be entitled for

admission in the said degree course with the Bhartiya Vidya

Bhawan. Counsel for the petitioner further submitted that

many other officers were given the employment by the

respondent corporation who did not fulfil the laid down

qualification. In this regard attention has been invited by the

petitioner to Annexure-P-23 placed on record on page 114

giving details of nine such officers who were given such

appointment. Counsel for the petitioner further submitted that

even the petitioner was relieved from his duties and handed

over the charge to another officer on 28.2.1997. Counsel for

the petitioner also submitted that in circular it was clearly

submitted that the application had to be submitted within 30

days but as per the case of the respondent the same was

returned to the petitioner after a lapse of two months period.

In support of his contentions counsel for the petitioner placed

reliance on the following judgments:-

1. J.P.Sharma Vs. Director General Border Roads & Ors.-47 (1992) DLT 575

2. Manjushree Pathak Vs. Assam Industrial Developmetn Corporation Ltd. & Ors.-(2000) 7 SCC 390

3. Tek Chand Vs. Dile Ram-(2001) 3 SCC 290.

4. Dinesh Chandra Sangma Vs. State of Assam & Ors.- AIR 1978 SC 17.

5. Than Singh Vs. MCD-(1997) IV AD(Del) 231 (DB)

6. State of Haryana & Ors. Vs. S.K. Singhal-(1994) 4 SCC 293

7. Anand Sarup Guar Vs. Chief Secy., Govt. of NCT of Delhi & Ors.-(2002) VI AD (Del) 487 (DB)

8. UOI & Ors. Vs. Sayed Muzaffar Mir-1995 Supp (1) SCC 76

9. Ashoke Dasgupta Vs. United Bank of India & Ors.- 1999(8) SLR 742(Cal)

10. B.J.Shelat Vs.State of Gujarat & Ors.,-(1978) 2 SCC

202.

4. Refuting the contentions of the counsel for the

petitioner, Ms. Anju Bhushan counsel for the respondent

submitted that earlier the petitioner sought voluntary

retirement vide his application dated 2.12.1996 but since the

same was not applied through proper channel, the petitioner

was required to move a fresh application which was moved by

the petitioner on 13.2.1997 and the same was rejected. The

contention of the counsel for the Respondent was that three

months notice period would be counted from 14.2.1997 which

would expire on 13.5.1997 and not on 28.2.1997 as alleged by

the petitioner. Counsel for the respondent thus

stated that out of the said period of three months in terms of

the policy of the respondent, decision was taken by the

respondent corporation rejecting the application of the

petitioner. The contention of the counsel for the respondent

is that clearly the petitioner had stated in the questionaire in

column No.3 that he was a graduate and under the column

„examination passed‟ the petitioner clearly disclosed his

qualificatioin as BA. Counsel thus contended that in the said

column the petitioner should have stated that he was under

graduate or had just appeared in the BA examination. Counsel

submitted that disciplinary authority has taken a correct

decision to award penalty of dismissal against the petitioner.

Respondent also placed reliance on the CCS Rules to contend

that the respondent was well within its rights to initiate

proceedings against the petitioner. Respondent thus submitted

that the application of the petitioner was rightly rejected on

account of the pendency of the disciplinary proceedings

against him. In support of her contentions the counsel relied

upon the following judgments:

1. District Collector, Viziangram Vs. M. Tripura

Sundari Devi-1990 (4) SLR 237(SC)

2. Changelvaria Naidu's case-AIR 1994 SC 853

Add to 1167/2000

5. I have heard learned counsel for the parties and perused

the record.

6. Before delving on the issues raised herein, it would be

relevant to reproduce the relevant portions of the Voluntary

Retirement Scheme, which is as under:

              a)        Eligibility/procedure
              (i)       An employee......

(ii) An employee who satisfies the eligibility criteria shall apply to CMD for voluntary retirement in the form prescribed at Appendix 'A' through proper channel, 3 months before the date on which the retirement is sought.

(iii) The application will be processed by the Personnel Deptt. If found in order. They will obtain the approval of CMD and communicate the same to the concerned employee.

(iv) The management of the enterprise will have the right not to grant voluntary retirement for reasons to be recorded in writing.

............................"

7. The said voluntary retirement scheme was floated vide

circular no. 701072 dated 2.11.1992 and the said Scheme came

into effect from the date of the said circular on 2/11/1992 and

the petitioner applied under the said scheme on 2/12/1996. It is

the case of the petitioner that vide minutes of the meeting held

on 10.10.1996 CMD-IRCC conveyed the orders of the Secretary

regarding the proposed closure of IRCC and pursuant to it, vide

circular no. 701072 dated 22.11.1996, R & S Cell of the

respondent invited applications for the voluntary retirement and

advised that the maximum number of employees should opt for

the Voluntary Retirement Scheme. The petitioner according to

the Scheme submitted the application for voluntary retirement

on 2.12.1996 in the prescribed form addressed to the CMD of

IRCC giving the required service particulars and the same was

received by the R & S Cell on 2.12.1996 itself. The petitioner

pursuant to the aforesaid sub-clauses (ii) & (iii) of Clause (a) to

the said Scheme made the application seeking voluntary

retirement to SM (P). R & S Cell of Personnel Department for

processing it before the orders of CMD are obtained. But vide

letter dated 4.2.1997 the Senior Manager (Pers) intimated to the

petitioner that since the application of the petitioner did not

have the recommendation of the HOD, therefore, the same was

returned for completing the said formalities. After replying to

the said letter, the petitioner again submitted the said

application on 10.02.1997. The said application was rejected by

the Corporation vide letter dated 28.02.1997 on the ground that

certain vigilance cases were pending/contemplated against him.

The respondent corporation issued chargesheet on the basis of

a complaint of an anonymous complainant.

8. As regards the question whether the application of the

petitioner dated 2/12/1996 was sent to the respondent through

proper channel and whether the retirement of the petitioner

became effective from 28/2/1997, I feel that the respondent

sent the said application through proper channel and therefore,

the retirement of the petitioner became effective from

28/2/1997. Upon perusal of the aforesaid scheme it is manifest

that all that was required for submitting the application for

seeking voluntary retirement was that the petitioner was to

apply to CMD for the said purpose in the prescribed form

through proper channel, three months before the date on which

the retirement was sought. The petitioner applied for the same

on 2.12.1996, complying with all the requisite conditions and

submitted the application to the SM (P) R & S Cell of the

Personnel Department for processing it. The application so

submitted also contained the official noting of the said

department. Clearly, the requirement of sending the said

application through proper channel was fulfilled. But the

respondent vide letter dated 4/2/1997 returned the said

application on the flimsy ground that the same was not

recommended by the HOD and therefore, should be sent again

through the proper channel. The expression "through proper

channel" does not mean that the recommendation of the HOD

was essential. Be that as it may, the respondent took more

than 2 months to raise such an objection, knowing fairly well

that the petitioner was due to retire in the next 24 days. I feel

that the petitioner complied with all the formalities but still the

respondent unnecessarily created ruckus and made an

objection returning the application of the petitioner for sending

it again. The respondent ought to have accepted the application

of the petitioner dated 2.12.1996 at the first instance itself

within the three months period.

9. Furthermore, the rejection letter dated 28.2.1997, was

sent on 3.3.1997 but reached the petitioner only on 6/3/1997

i.e. much after the three months period. The reason for

rejection of his application for voluntary retirement due to

pendency of vigilance enquiry also appears to be another

device used by the respondent corporation to harass the

petitioner. Any action of Commission having a vigilance angle is

a subject matter of vigilance enquiry. Vigilance angle has been

defined by the Central Vigilance Commission vide Office Order

No. 23/04/04 as under:

"Vigilance angle is obvious in the following acts: -

(i) Demanding and/or accepting gratification other than legal remuneration in respect of an official act or for using his influence with any other official.

(ii) Obtaining valuable thing, without consideration or with inadequate consideration from a person with whom he has or likely to have official dealings or his subordinates have official dealings or where he can exert influence.

(iii) Obtaining for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant.

(iv) Possession of assets disproportionate to his known sources of income.

(v) Cases of misappropriation, forgery or cheating or other similar criminal offences.

2(a)** There are, however, other irregularities where circumstances will have to be weighed carefully to take a view whether the officer's integrity is in doubt. Gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible/public interest is evident; failure to keep the controlling authority/superiors informed in time - these are some of the irregularities where the disciplinary authority with the help of the CVO should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned. 2(b) Any undue/unjustified delay in the disposal of a case, perceived after considering all relevant factors, would

reinforce a conclusion as to the presence of vigilance angle in a case.

** as modified vide Officer Order No. 74/12/05 dated 21/12/05."

11. Clearly, the act of concealment of the fact that the

petitioner was an under-graduate was not a subject matter of

vigilance enquiry as per the aforesaid definition of vigilance

angle, which is a subject matter of vigilance enquiry. From the

above discussion, it is manifest that the voluntary retirement of

the petitioner became effective from the forenoon of 28.2.1997.

12. As regards the issue of fraud committed by the

petitioner and the contention of the counsel for the respondent

that he concealed the fact of his being under-graduate, I feel

that the same is also devoid of any merit. The petitioner had

time and again been disclosing the fact that he was an under-

graduate. From day one, in his application dated 7/2/1977,

seeking job on the post of PS to CMD, under the heading

"educational qualification" he had clearly disclosed that he

appeared in BA as a private candidate in the year 1968 and on

account of his transfer to Bangalore, while working with his

earlier employer he could not complete his graduation. The

same is reproduced as under:

"3.Educational :(a) Passed Matriculation Exam.from Qualifications MBA Higher Secondary School in the year 1961.

                        (b)   BA   (appeared)     as   a     private
                              candidate in the year 1968.
                        (c)    Attended one year Post-Graduate
                              Diploma Course in       Business
                              Management in the year 1972-73
                              from Bhartiya Vidya Bhawan, New
                              Delhi.

On account of my transfer to Bangalore in the year 1968, I could not complete my graduation. However, I have passed BA in Second Division in the Preliminary Examination conducted by Jayshree College Jangpura, New Delhi where I was a student during the year 1967-68. A copy of the certificate to this effect issued by the above College is enclosed."

13. Furthermore, in the same application, under the heading

"General", while giving general information, he again mentioned

that he was an under-graduate. The same is reproduced as

under:

"General: I am a South Indian residing in Delhi for more than 20 years. My father is employed in the M/O Health and am residing with him in Government Quarters. I am a good sports man and have won several certificate with merit. Although I am Undergraduate, but I have worked with very senior officers including MD and CMDs and I am confident that I will be able to deliver the goods required by your esteemed organization."

14. Be that as it may, it was for the respondent to bring on

record the said application dated 7/2/1977, which as per their

version, they are unable to trace.

15. The petitioner in his letter dated 11/5/1980 to the CMD

secretariat clearly mentioned that for pursuing a PG diploma

course at Bhartiya Vidya Bhawan he needed

sponsorship/recommendation of IRCC as he was an

undergraduate, the said letter is reproduced as under:

"Placed below is an advt. released by Bharatiya Vidya Bhawan for following PG Diploma Courses.

1) Indl. Relations & Personnel Mgt.

2) Marketing & Advtg.Mgt.

3) Publicity & Public Relations.

The minimum qualification for admission to the above course is graduation in any discipline. However, relaxation can be made to serving Executives/Sponsored candidates. These courses are conducted in the Evening from 6.00 P.M. to 8.00 P.M.

During the informal discussions, CMD advised me to do some professional course for my future prospects. I propose to do PG Diploma in Indl. Relations & Personnel Mgt. for the year 1980- 1981. Since I am an undergraduate I may not get admission to the above Diploma course. On the personal enquiry, Principal, Bhartiya Vidya Bhawan informed me that my case for admission could be considered, although I am an undergraduate, provided my case is

recommended/sponsored by the Corporation since this is only a part time Diploma course basically meant for serving Executives/employees.

I, therefore, request CMD to sponsor/recommend my case for admission to PG Diploma in Indl. Relations & Personnel Mgt. In the event of my selection I will bear all expenses for the above course."

16. In view of the above, it cannot be said that the petitioner

misled the corporation or suppressed the information from the

corporation. The material upon which petitioner has placed

reliance was available with the respondent right from the day

one.

17. Furthermore, in the questionnaire and the attestation

form, which the petitioner filled before the interview, he wrote

"appeared" in BA, he nowhere said that he completed his BA or

passed BA.

18. Although, it is no ground to claim parity that earlier also

other employees with lesser qualification as required for the

relevant post on which they were employed were taken into

service by the corporation, but in the circumstance that the

petitioner never concealed the fact that he was an under-

graduate and rather the lapse on the part of the corporation

respondent in not properly scrutinizing the documents

submitted by the petitioner, wherein he has in unequivocal

terms mentioned that he was an under-graduate, cannot

become a reason for dismissal of the petitioner.

19. In view of the foregoing discussion, I do not feel that the

petitioner ever concealed the fact of his being an under-

graduate. Therefore, the enquiry officer reached to an incorrect

finding in this regard and resultantly, the dismissal order dated

13/14.1.2000 deserves to be quashed.

20. In view of the foregoing discussion, the dismissal order

dated 13/14.1.2000 is quashed. Consequently, the petitioner

shall be treated to be in service of the corporation respondent

from the date of his appointment till 28.2.1997, the effective

date of his voluntary retirement and therefore, he is entitled to

all the retirement benefits due to him as per the last pay drawn

by him with interest @ 12% pa. The respondent corporation is

also directed to release the arrears of pay and allowance to

which the petitioner is entitled under the 5th pay commission as

implemented by the respondent w.e.f. 1.1.1996 with interest @

12% pa.

21. This is a classic case of high-handedness on the part of a

government corporation. The petitioner herein applied for

voluntary retirement on 2.12.1996 under the scheme floated by

the Indian Road Construction Corporation, which was to come

into effect from 28/2/1997. But IRCC instead of accepting the

same rejected it on flimsy grounds and went to the extent of

initiating disciplinary inquiry against the petitioner closing its

eyes to its own fault and dismissing the petitioner for an alleged

concealment and fraud which he never committed. The hapless

petitioner has been facing hostility of unsympathetic and

depraved employer for the past 12 years without any slip up by

him. This is a fit case for awarding exemplary damages in

condemnation of the abuse of power by a government

corporation. The corporation is directed to pay Rs.50,000/- as

damages for unnecessarily harassing the petitioner for 12 years.

22. In view of the above discussion, the petition is allowed in

above terms.

May 19, 2009                      KAILASH GAMBHIR, J.