Sh.Navendra Kumar vs M.T.N.L
2010 Latest Caselaw 497 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P. (C.) No.582/2010

%                           Date of Decision: 29.01.2010

Sh.Navendra Kumar                                          .... Petitioner
                           Through Mr.D.S.Chaudhary, Advocate

                                    Versus

M.T.N.L                                                        .... Respondent
                 Through            Mr.Ravi Sikri, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be                    YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                       NO
3.    Whether the judgment should be reported in                   NO
      the Digest?



ANIL KUMAR, J.

*

The petitioner is aggrieved by the order dated 29th October, 2009

passed in T.A No.228/2009 titled Sh.Navendra Kumar v.

M/s.Mahanagar Telephone Nigam Limited (MTNL) declining the claim of

the petitioner for grant of full pension and gratuity during the pendency

of the departmental proceedings, however, directing respondent to

release other post retirement benefit other than gratuity and pension to

the petitioner within two months from the date of the receipt of the copy

of the order dated 29th October, 2009.

The petitioner approached the Central Administrative Tribunal,

Principal Bench, New Delhi after his retirement from Mahanagar

Telephone Nigam Limited (MTNL) on 28th February, 2006 claiming full

and final pension instead of provisional pension contending inter-alia

that he was permanently absorbed in MTNL on 1st October, 2000 and,

therefore, he had retired from the Government on 1st October, 2000 and

in the circumstances the memorandum of charge could not be issued

against him for his alleged misconduct when he was with the

Government. The petitioner also re-agitated that the disciplinary

proceedings could not be initiated against him by the MTNL for the

alleged misconduct committed when he was in the Government service.

These pleas of the petitioner were repelled by the Tribunal on the

basis of the decision of the High Court in LPA No.1971/2006 decided on

1st October, 2007 holding that MTNL/respondent was justified in

initiating disciplinary action against the petitioner under Rule 5(43) of

MTNL (Conduct, Discipline & Appeal) Rules, 1998.

Rule 5(43) of MTNL (Conduct, Discipline & Appeal) Rules, 1998 is

as under:-

"43. Any misconduct committed by an employee in previous organization and it the organization refers the case of MTNL, it will be taken cognizance of and disciplinary action will be taken in spite of the clearance given by that organization at the time of his/her resignation or relieving. It may also be ensured that the previous organization where an employee has committed the misconduct, lends all

cooperation to MTNL in this regard."

While repelling the contention of the petitioner it was also noticed

that the entire contract of service in relation to the petitioner was taken

over by the MTNL respondent on the date of his absorption on 1st

October, 2000.

The learned counsel for the petitioner has contended that the

disciplinary proceedings could not be initiated against the petitioner as

the misconduct had been committed four years prior to his retirement.

The said plea has already been repelled on the ground that the

respondent retired from the service much after the chargesheet was

issued to him and consequently the disciplinary proceedings could

continue against the petitioner. No cogent ground has been raised by

the learned counsel for the petitioner to differ with the findings of the

Tribunal

The emphasis of the learned counsel for the petitioner is also that

CCS Pension Rules, 1972 do not apply to the employees of respondent

MTNL. The plea of the petitioner is not sustainable as the respondent

MTNL has categorically asserted in the counter affidavit that CCS

(Pension) Rules, 1972 had been adopted by MTNL. Even before the

Tribunal the counsel had conceded that under CCS (Commutation of

Pension) Rules, 1981 petitioner is not entitled for commutation of

pension on account of pendency of departmental proceedings.

Therefore, even on this ground the order of the Tribunal impugned

before us cannot be faulted.

Next, the learned counsel for the petitioner has relied on Rule 37

A sub Rule 24 (c) of CCS Pension Rules. Perusal of the said rule reveals

that it is not applicable in the case of petitioner as it contemplates the

misconduct after absorption in an autonomous body. Admittedly the

departmental proceedings pending against the petitioner for the

misconduct is prior to his absorption on 1st October, 2000. The relevant

rule 37A (24)(c) is as under:-

(c) the dismissal or removal from service of the Public Sector Undertaking or Autonomous Body of any employee after his absorption in such undertaking or body for any subsequent misconduct shall not amount to forfeiture of the retirement benefits for the service rendered under the Government and in the event of his dismissal or removal or retirement, the decisions of the undertaking or body shall be subject to confirmation by the Ministry Administratively concerned with the undertaking or body."

It is apparent that a part of the pension and the gratuity of the

petitioner has been withheld not on account of any misconduct

attributable to the petitioner after his absorption on 1st October, 2000

and consequently on the basis of the said rule petitioner is not entitled

for release of his full pension and the gratuity.

The learned counsel for the petitioner has not been able to

canvass successfully that CCS (Pension) Rules are not applicable to the

petitioner despite adoption of the said rules by MTNL. If the rules are

applicable then under Rule 9 the power is with the authorities to

withhold pension and gratuity, if an employee is found guilty of grave

misconduct or negligence in the departmental and judicial proceedings,

during the period of service and thus the respondents are justified in

withholding the pension and gratuity of the petitioner till the decision of

the departmental proceedings. Consequently, in the facts and

circumstances there are no grounds to interfere with the order of the

Tribunal. There is no irregularity or illegality which will entail

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is, therefore, without

any merit and it is dismissed.

ANIL KUMAR, J.

JANUARY 29, 2010                                MOOL CHAND GARG, J.
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