Delhi High Court
R.K. Tandon vs Secretary, Department Of Power & ... on 6 September, 2011
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W. P. (C) 4560/1995
Reserved on: August 18, 2011
Decision on: September 6, 2011
R. K. TANDON ..... Petitioner
Through: Mr. Vikas Mahajan with
Mr. Vishal Mahajan and
Mr. A.N. Singh, Advocates.
versus
SECRETARY, DEPARTMENT OF POWER & ORS. ..... Respondents
Through: Mr. Ravi Sikri with
Mr. Vaibhav Kalra, Advocates for R-2 & 3.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
06.09.2011
1. The Petitioner who was working as Manager (Electrical) with the National Hydro-
electric Power Corporation (`NHPC‟), Respondent No. 2, challenges an order dated
11th May 1992 passed by the Respondents 2 and 3 striking off his name from the rolls
of the NHPC with effect from 2nd March 1990 under Rules 3.2.17 of the NHPC Leave
Rules on the ground that the Petitioner had been absenting himself from duty with
effect from 2nd March 1990 without any sanction.
2. On 29th July 1977, the Petitioner was appointed as Engineer in the NHPC Ltd. He
was promoted as Deputy Manager on 1st January 1985 and further as Manager
(Electrical) by a letter dated 22nd June 1988.
3. On 12th June 1989, the Petitioner was transferred to the Uri Hydro-electric Project
(`Uri HE Project‟) at Baramulla, Kashmir. He served there till 1st March 1990. The
Petitioner states that as the condition in the Kashmir Valley deteriorated due to
terrorist activities, the Petitioner in panic left his place of posting. On 8th March 1990
the Petitioner wrote to the NHPC for being absorbed in the Corporate Office or in
some other project under the control of the NHPC. On 9th March 1990, the Manager
(Personnel) wrote to the Chief Engineer, Uri HE Project referring to the letter dated 8th
March 1990 received from the Petitioner and stating that the Petitioner cannot be
allowed to join the Corporate Office in the absence of transfer orders. It was stated
that the Petitioner had been advised to proceed on leave and that the Petitioner "may
kindly be sanctioned leave for 15 days w.e.f. 02.03.90 as per his application". A copy
of the said letter was marked to the Petitioner at his Delhi address at Mayur Vihar
Phase-II, Delhi. In the said letter, at the end it was written by hand that the Petitioner
was advised to apply for leave to the Chief Engineer, Uri HE Project.
4. However, it appears that the Petitioner never formally applied to the Chief
Engineer Uri HE Project for leave from 2nd March 1990 onwards. Instead, the
Petitioner and some other officers of Uri and Kishanganga Projects wrote to the
Director (Personnel), NHPC Ltd., Delhi on 28th March 1990 stating that in view of the
extraordinary situation where the law and order problem in the Kashmir Valley had
become explosive, certain concessions subsequent to the issue for changing
headquarters including the reimbursement of shifting allowance, housing and special
leave should be allowed. It was requested that the house rent allowance should be
allowed to the employees at the places of their choice.
5. The Petitioner states that at the expiry of the sanctioned leave, he again joined Uri
and remained there till 4th April 1990. During that period in the month of March 1990,
the Circle Office of the Uri HE Project at Gantamulla, Kashmir was set on fire and
was completely burnt. The Petitioner also states that he received threatening calls and
in those circumstances, he migrated from the Kashmir Valley abandoning all his
personal belongings. On 16th April 1990, a letter was written by the NHPC at New
Delhi to the Kendriya Vidyalaya Sangathan, New Delhi regarding the transfer of the
Petitioner‟s children from the Kendriya Vidyalaya at Baramullah to the Kendriya
Vidyalaya, New Delhi. In the letter a request was made to consider the case of the
transfer of the Petitioner‟s children sympathetically. The Petitioner also refers to
letters written on 13th July 1990 and 19th July 1990 to the Cabinet Secretary and
Secretary, Department of Power to accommodate the employees of his Department
who could not return to the places of posting in Kashmir due to the prevailing
circumstances under the respective Ministries/Departments in offices located outside
but adjacent to the Union Territory of Delhi. The Petitioner states that he wrote to the
Chief Engineer, Uri HE Project on 9th August 1990 praying for release of his salary for
the months of April to July 1990. Pursuant to the directions of the Cabinet Secretary
on 7th September 1990, the Chief (P&A), NHPC wrote to the Executive Director
(Region-I) in Jammu stating that the employees in some of the Uri Projects be
redeployed in other projects outside the valley. Meanwhile, the Petitioner‟s wife on
23rd October 1990 approached the Union Minister for Energy requesting for
Petitioner‟s transfer from the Uri HE Project to any other project outside the valley on
medical grounds. The case of the Petitioner is that although 57 employees belonging
to the minority community, i.e., Kashmiri pundits, working in the valley were allowed
to mark their attendance at the Jammu office with effect from 1st April 1990, the
Petitioner was singled out with mala fide intentions and only for the reason that he
drafted a representation for the transfer of employees belonging to the minority
community from Uri HE Project to a place outside the Kashmir Valley.
6. Under those circumstances, the Petitioner submitted his resignation on 14th August
1991 addressed to the Chairman and Managing Director („CMD‟) in which he stated
that he was forced to resign and requested immediate acceptance of the resignation. In
response to the Petitioner‟s further letter dated 23rd December 1991, the Assistant
Manager (P) wrote to the Petitioner on 3rd January 1992 stating that they had not
received the resignation letter dated 14th August 1991 but that the case of his
resignation was under process. The letter stated that "your contention of taking
employment anywhere after submitting your resignation is not valid until and unless
your resignation is ...accepted, by NHPC Ltd." Thereafter the NHPC issued the
impugned order dated 11th May 1992, which the Petitioner claims not to have
received. He submitted a letter dated 23rd August 1993 withdrawing his resignation.
In response thereto the NHPC informed him by letter dated 14th September 1993 that
his request for withdrawal of resignation could not be acceded to. The Petitioner then
filed W.P. (C) 4235 of 1993 praying for absorption in a project outside the Kashmir
Valley. In a reply to the said petition, NHPC pointed out that the Petitioner‟s services
had been terminated on 11th May 1992. The Petitioner then withdrew the said petition
and filed the present one.
7. The version of Respondents 2 and 3 is that on 26th November 1990, the Petitioner
was given a notice about his unauthorised absence since 2nd March 1990 and he was
directed to report for duty forthwith and in any case not beyond eight days from the
date of issue of the notice. According to the NHPC, the notice dated 26th November
1990 was sent by registered AD post as well as under postal certificate (`UPC‟). As
regards the termination order dated 11th May 1992, it is claimed to have been
dispatched from the Establishment Section to the central despatch on 14th May 1992,
and the despatch section posted it on 15th May 1992. Photocopies of the relevant
pages of the despatch register have been placed on record.
8. The NHPC points out that on his own admission, the Petitioner has been absenting
himself from duty since 2nd March 1990. It is stated that after abandoning his duties,
the Petitioner started a business in the name of Hythro Power Corporation (`Hythro‟)
with his wife, and the wife of another employee of the NHPC, Mr. G.S. Rawat, as
partners. It was the Petitioner, who in fact undertook the work awarded to Hythro and
was supervising the same in Jammu and Kashmir (`J&K‟) itself. The work at Dulhasti
Project in J&K had been awarded to a French Consortium and the Hythro had been
awarded the work for the construction of DG set for Dulhasti Project as sub-contractor
by the French consortium. Consequently, the Petitioner was present very much in J&K
for executing this project. When NHPC learnt of this, they sent a letter to the French
consortium which confirmed this fact on 26th July 1991. The Uri Project of NHPC had
received summons from the Court of the Chief Judicial Magistrate („CJM‟), District
Chamba in Himachal Pradesh („HP‟) requiring the Petitioner to appear as an official
witness on 20th September 1990. The Petitioner was sent a telegram on 19th September
1990, and an employee of NHPC was also deputed with a copy of summons for hand
delivery at the Petitioner‟s Delhi address. On this copy, the Petitioner‟s wife wrote
"Mr. Tandon is at Jammu or may be in Uri." According to the Respondents, this
showed that the Petitioner was working in the project at Dulhasti in J&K. The
Petitioner did not attend the Court of CJM at Chamba in HP. It is pointed out that the
partners of Hythro, i.e., the Petitioner‟s wife and the wife of Mr. G.D. Rawat, were
homemakers and not technically qualified to execute the project work at Dulhasti. On
the other hand, the Petitioner was an Electrical Engineer and Mr. Rawat was a Civil
Engineer. Hythro participated in the tender for erection, testing and commissioning of
generating plant equipment and accessories at Salal SS-II. The aforesaid facts showed
that the Petitioner had suppressed the material fact that the Petitioner was in the
Kashmir Valley during the relevant period and willfully absented himself from
service.
9. An additional affidavit was filed on behalf of Respondents 2 and 3 on 21st
November 1998 in which it was pointed out that the attempt by the Petitioner to
withdraw his resignation by a letter dated 23rd August 1993 was not of any
consequence in view of the order dated 11th May 1992. The NHPC had received the
resignation dated 14th August 1991 only along with the Petitioner‟s letter dated 23rd
December 1991 and in any event had not taken any decision to accept the resignation.
10. In reply to the said additional affidavit, the Petitioner reiterated that he did not
receive either the notice of 26th November 1990 or the impugned order dated 11th May
1992. The Petitioner alleges that NHPC‟s despatch register was made up at a later
point in time to make it appear that the notice and order were dispatched on the dates
claimed by NHPC. Further, the order dated 11th May 1992 was passed by the Assistant
Manager (P) [`AM (P)‟] who, at the relevant time, was junior to the Petitioner. The
note prepared by the AM (P) on which the CMD had put his initials, a copy of which
was annexed to the NHPC‟s counter affidavit did not, according to the Petitioner,
reflect the application of mind by the CMD. The internal notings dated 30th April 1992
also showed that termination order is in fact a penalty since there was an allegation
that the Petitioner had flouted the orders of the NHPC. The Petitioner alleges that the
notice dated 26th November 1990 is a fabricated document and that it was never
dispatched to him. It is stated that the document showing the dispatch of the letter to
the Petitioner UPC had the typed names of persons who had applied for the post of
Manager (Law). The Petitioner‟s name was added by hand. Also, the notice dated 26th
November 1990 does not bear a dispatch number whereas all other letters of the
NHPC do. There was no mention of the notice dated 26th November 1990 in the
subsequent letters of 3rd January 1992 and 14th September 1993 originating from the
same department of the NHPC.
11. The thrust of the submissions of Mr. Vikas Mahajan, learned counsel for the
Petitioner is that the Petitioner‟s services could not have been terminated without a
proper enquiry. No show cause notice was issued to the Petitioner. Even the alleged
notice dated 26th November 1990, which the Petitioner denies having received, was
not a show cause notice as regards termination of his services. The Petitioner
challenges Rule 3.2.17 of NHPC‟s Leave Rules which provides for deemed
presumption of abandonment of service. He states that it does not provide for any
show cause notice or an opportunity of being heard before deeming that the employee
had left the service on his own accord. According to Mr. Mahajan, since the dispatch
of the show cause notice dated 26th November 1990 or of the impugned order dated
11th May 1992 is doubtful, no reliance should be placed on the said documents.
Reliance is placed on the decisions in D.K. Yadav v. J.M.A. Industries (1993) 3 SCC
259; Uptron India v. Shammi Bhan AIR 1998 SC 1681; Scooter India Ltd. v. M.
Mohammad Yaqub (2001) 1 SCC 61; Deokinandan Prasad v. State of Bihar AIR
1971 SC 1409 and Jai Shankar v. State of Rajasthan AIR 1966 SC 1965 to urge that
principles of natural justice ought to be followed and termination of services could not
be effected without a show cause notice and a full-fledged enquiry.
12. On the other hand, Mr. Ravi Sikri, learned counsel for the NHPC placed reliance
on the judgments in Punjab and Sind Bank v. Sakaltar Singh (2001) 1 SCC 214 and
Regional Manager, Bank of Baroda v. Anita Nandrajog (2009) 9 SCC 462 to urge
that the scope of interference by the court in such cases is limited. It is submitted that
this Court cannot go into the disputed questions of facts. It was clear that this was a
case of abandonment of service by the Petitioner. He submitted that the impugned
order dated 11th May 1992 did not call for interference.
13. Rule 3.2.17 of the NHPC Leave Rules reads as under:
"3.2.17 If an employee willfully absents himself from duty for more than
ten consecutive days without any intimation, a notice shall be
issued to him, directing him to report for duty forthwith and in
any case not beyond eight days after the issue of the notice. If
he does not resume duty within such period the employee shall
be deemed to have left the service of the Corporation of his own
accord and his name shall be struck off the rolls of the
Corporation with effect from the date of such absence."
14. The Petitioner must be presumed to be aware of the Leave Rules and in any event
was working with the NHPC since 1977. On his own showing, the Petitioner left the
Kashmir Valley on 1st March 1990. He admits to having received the letter dated 9th
March 1990 of the Chief Engineer, Uri HE Project rejecting his request for transfer but
permitting him leave for fifteen days with effect from 2nd March 1990 if he applied for
it to the Chief Manager Uri HE Project. This letter was addressed to the Petitioner at
his address in Mayur Vihar Phase II, Delhi and was in fact received by him. The
Petitioner did not formally apply for leave. In any event, he knew that leave would be
sanctioned only for a fifteen day period after 1st March 1990. Yet, the Petitioner
himself states that he reported for duty again only in April 1990 and left on 4th April
1990 abandoning all his personal belongings. The Petitioner could not have been
under any illusion that his leave after that date was in fact sanctioned. Even assuming
that the situation in the Kashmir Valley compelled him to leave on 4th April 1990, he
could not have been unaware that he was absenting himself from the duties without
there being any formal sanction accorded by the Respondent NHPC. The letter of the
Cabinet Secretary dated 19th April 1990, formed the basis of the directions given to
Executive Director (Region-I), Jammu, to absorb the employees belonging to the
minority community in other projects outside the Valley. The Petitioner was aware
that there was no such recommendation in his case. Yet, the Petitioner appears to have
made no effort till 14th August 1991 to report for duty anywhere or to seek any
sanction for leave much less apply for leave. The Petitioner has no satisfactory
explanation to offer for this inexcusable conduct. A person holding the post of
Manager in a project of the NHPC cannot be expected to stay away from work
indefinitely without even applying for leave. Even from his letter dated 14th August
1991 it is clear that the Petitioner was available at his Delhi address at Mayur Vihar,
Phase-II. He requested the CMD, NHPC to accept his resignation with immediate
effect. The subsequent explanation that the Petitioner offered in his letter dated 23rd
August 1993 that "the resignation which was submitted was not a resignation but a
request to absorb the undersigned in some other project" is not borne out by the
wording of the letter dated 14th August 1991. The Petitioner in a desperate move
sought to withdraw the said resignation by the subsequent letter dated 23rd August
1993. By then, it was too late.
15. The Petitioner also has no satisfactory explanation to offer on the documents
produced by the NHPC about the partnership firm, Hythro, executing the DG sub-
contract in the Dulhasti Project in J&K, awarded to it by a French consortium. In his
rejoinder, the Petitioner claimed that he had no connection whatsoever with the firm.
However, he added that "it is true that the wife of the petitioner was partner in the said
firm along with other technically qualified partners namely Shri Abdul Hameed Raina,
a retired Executive Director of the respondent corporation, and Shri D. Aggarwal." He
enclosed a copy of the partnership deed. He further admitted that "Hythro Power
Corporation had undertaken a work in Dulhasti Project only in the month of July with
the aid of its technically qualified and experienced partners". He stated that later on
the said partnership was dissolved in 1993. He alleged that the letter dated 26th July
1991, being the confirmation from the French consortium of his participation in the
project, was a forged document. As regards his wife‟s remark on the telegram dated
19th September 1990, he sought to explain that he had gone to get a transfer certificate
for his children from the Kendriya Vidyalaya‟s Jammu Branch.
16. The above explanations offered by the Petitioner are not at all convincing. It
appears that when the partnership activity ran into rough weather, the Petitioner being
in need of finances decided to withdraw his resignation. The above documents and the
pleadings do reflect that the Petitioner willfully abandoned his services.
17. This Court does not propose to examine the highly disputed question of fact
regarding the dispatch of the show cause notice dated 26th November 1990. Likewise,
it does not propose to determine whether the impugned order dated 11th May 1992 was
in fact dispatched to the Petitioner by the NHPC by registered post. For the purposes
of the present petition, the fact remains that after abandoning his duties in April 1990,
the Petitioner made no application for sanction of leave and made no attempt to report
for duty at any point subsequent thereto is sufficient to draw a conclusion about his
conduct. The Petitioner‟s explanation regarding the firm Hythro, in which his wife
was a partner, is also not convincing. The desperate attempt by his letter dated 23rd
August 1993 to withdraw his resignation was also bound to fail since by then the
impugned order dated 11th May 1992 had already been passed.
18. The NHPC has placed on record the noting on the file preceding the decision of
the NHPC to strike off the Petitioner‟s name from its rolls in terms of the NHPC
Leave Rule 3.2.17. Initially it was proposed that as in the case of Mr. Rawat whose
resignation was accepted, the Petitioner‟s resignation could also be accepted.
However, the P&A Department opined that the Petitioner‟s services should be
terminated as he had flouted the orders of the NHPC by not reporting for duty. The
note of the AM (P) was placed before the CMD, NHPC for approval. The CMD has
signed the note. Although, the CMD has not expressly stated "I agree", the fact that
the CMD has signed the note implies that he had approved it. Thereafter the decision
was conveyed to the Petitioner by the AM (P) by the impugned letter dated 11th May
1992. Therefore, there is no merit in the contention of the Petitioner that the impugned
order was passed by an officer who was junior to him and was therefore invalid. The
impugned order was issued under Rule 3.1.17 of the Leave Rules and did not require
to be preceded by an enquiry. There is no merit in the contention that it was violative
of principles of natural justice.
19. This Court is unable to find any legal infirmity in the impugned order dated 11th
May 1992 passed by the NHPC striking off the Petitioner‟s name from the rolls on
account of his unauthorised absence from duty with effect from 2nd March 1990. In the
circumstances, this Court finds no merit in this writ petition and it is dismissed as such
with no order as to costs.
S. MURALIDHAR, J.
SEPTEMBER 06, 2011
akg
