Joginder Singh Verma vs Haryana Power Generation ...
2010 Latest Caselaw 2364 Del

                  *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 2442/2003

%                                                 Date of decision: 4th May, 2010

JOGINDER SINGH VERMA                            ..... PETITIONER
                  Through: Mr. Fanish K. Jain, Advocate

                         Versus
HARYANA POWER GENERATION
CORPORATION LTD. & ORS.                      ..... RESPONDENTS
                  Through: Mr. Umang Shankar, Advocate for
                           Respondents 1 to 4.
                           Ms. Sujata Kashyap, Advocate for
                           Respondent no.5.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment? No.

2.       To be referred to the reporter or not?            No.

3.       Whether the judgment should be reported
         in the Digest?                          No.

RAJIV SAHAI ENDLAW, J.

1. The petitioner seeks mandamus commanding his ex-employer ex-

employer Haryana Power Generation Corporation Ltd. (earlier known as

Haryana State Electricity Board) to transfer his GPF amount to his present

employer namely respondent no.5 Directorate of Training & Technical

Education, Government of India and further direction to the ex-employer to

discharge their pension liability qua the petitioner.

2. The petitioner joined the services of ex-employer on 22nd September,

1989. On 25th February, 1997, the Union Public Service Commission (UPSC)

issued an advertisement inviting applications for the post of Workshop

Superintendent (Mechanical Engineering) in the Directorate of Training &

Technical Education, Delhi. The petitioner submitted his application through

proper channel i.e. through the ex-employer. The ex-employer forwarded the

application of the petitioner to the Secretary, UPSC. It is not in dispute that the

same was with the approval of the ex-employer. The petitioner was selected and

on 20th August, 1998 offered the post of Workshop Superintendent. The

petitioner submitted an application to the ex-employer, requesting to be relieved

from service so as to enable him to join his new employer i.e. respondent no.5

Directorate of Training & Technical Education. An order dated 25th August,

1998 was issued by the ex-employer relieving the petitioner on his selection to

the post of Workshop Superintendent with the new employer. The petitioner was

so relieved and joined his new employer on 28th August, 1998 without any break.

3. The ex-employer however vide its letter dated 21st December, 1998 asked

the petitioner to submit his resignation and deposit one month's salary. The

petitioner in compliance of the said request of the ex-employer submitted his

resignation and also deposited one month's salary. The said resignation was

accepted by the ex-employer.

4. The Panchkula unit of the ex-employer, where the petitioner was earlier

working also wrote to the Head Office of the ex-employer for transfer of the

service book, GPF amount and other amounts of the petitioner to the new

employer of the petitioner. However, the said transfer was not affected and

ultimately the present petition was filed.

5. The new employer of the petitioner has in its counter affidavit stated that

the case of the petitioner for counting of past services in ex-employer was taken

up and vide office letter dated 22nd May, 2002, the ex-employer was requested

for payment of their contribution towards pensionary benefits accruing to the

petitioner and for transferring the provident fund of the petitioner. It is further

stated in the said counter affidavit that a memo was also issued to the ex-

employer for transfer of the provident fund and service book of the petitioner to

the new-employer but the same was not effected inspite of the repeated

reminders. The new employer has confirmed that it has till date not received any

contribution towards leave, pension, etc. of the petitioner from the ex-employer.

6. The ex-employer has also filed a counter affidavit; without controverting

the facts, reliance is placed on Rule 4.19 of the Punjab Civil Services Rules

which provide for forfeiture of past services and pension in the event of

resignation from service, dismissal or removal for anti-social activities,

misconduct, insolvency, inefficiency etc. The counsel for the ex-employer has in

the arguments also merely contended that since the petitioner has resigned from

the services, the ex-employer is not liable for transferring the service book or any

other amounts of the petitioner to the new employer. It is further contended that

the petitioner's contribution towards GPF was tendered to the petitioner which

the petitioner refused to accept.

7. The counsel for the petitioner on the other hand relies on office

Memorandum dated 11th February, 1988 issued by the Ministry of Personnel,

Government of India; Clause 9 thereof provides that in case where the

government servant applies for posts in some other department through proper

channel and if on such selection is asked to resign the previous post for

administrative reasons, the benefit of past service, if otherwise admissible under

the Rules, may be given for the purpose of benefit of pay to the new post treating

the resignation as a technical formality. He contends that for the reasoning in the

said memorandum, the resignation sought from the petitioner and submitted by

the petitioner ought to be regarded as a technical formality and on the basis of

Rule 4.19 (supra), the provident fund and other benefits of the petitioner cannot

be forfeited.

8. The counsel for the new employer has fairly contended that the new

employer is not opposing the writ petition and is willing to comply with the

demand of the petitioner, subject to the ex-employer cooperating. The counsel

has also drawn attention to Sub-clause (b) of Rule 4.19 (supra) which provides

that where the resignation is tendered with prior permission for another

appointment, the same is not a resignation to which Rule 4.19 (supra) applies.

9. In the present case, the ex-employer inspite of the requests of the

petitioner maintained a sphinx like quietus. Neither did it give any reason for not

complying with the request nor complied with the same. The petitioner was thus

compelled to approach this Court. The present writ petition has been contested

on the ground of the petitioner having resigned from service. The counsel for the

ex-employer has been unable to explain as to why the case of the petitioner

would not be covered in Sub-Clause (b) (supra) of Rule 4.19. From the said Sub-

Clause as well as the Office Memorandum dated 11th February, 1988 (supra), it

appears that wherever the resignation is for technical purpose, the same is not to

be treated as a resignation leading to forfeiture of benefits. In the present case, it

is not disputed that the application of the petitioner in pursuance to the

advertisement for posts in the new employer was forwarded by the ex-employer

and the appointment of the petitioner with the new employer was with the

consent and knowledge of the ex-employer. The ex-employer in fact relieved the

petitioner from his duties and asked for the resignation after several months as an

afterthought. Such resignation can be nothing but a technicality and cannot lead

to forfeiture of the benefits of the petitioner. The ex-employer by its such

conduct has not only harassed the petitioner but also caused monetary loss to the

petitioner and for which it is liable to compensate the petitioner.

10. The writ petition is hence allowed. The ex-employer (Haryana Power

Generation Corporation Ltd.) is directed to transfer the GPF amount of the

petitioner to the respondent no.5 (Directorate of Training & Technical Education,

Government of India) and / or its Trust. The HPGCL is also directed to

discharge its pension liability to the petitioner. It is further clarified that the

petitioner shall be entitled to interest on amounts either at the rate payable on

such amounts under the Rules, if any, for the period of the delay occasioned by

HPGCL and if no such rate of interest is provided, at the rate of 9% per annum.

The order be complied with within six weeks of today. The petitioner is also

awarded costs of Rs.20,000/- of this petition against the HPGCL. The costs be

also paid within six weeks of today.

RAJIV SAHAI ENDLAW (JUDGE) 4th May, 2010 gsr