Ram Avtar Yadav vs Directorate Of Education And Anr.
2013 Latest Caselaw 818 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.8318/2011

%                                                       February 19, 2013


RAM AVTAR YADAV                                           ..... Petitioner
                          Through:       Mr. Amit George, Advocate with Mr.
                                         Abin Mathew, Advocate.


                          versus


DIRECTORATE OF EDUCATION AND ANR.          ...... Respondents

Through: Mr. Anuj Tyagi, Advocate with Mr. Sachin Chopra, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed by the petitioner, an employee of the

respondent No.1, and who was working with the respondent No.2-school at

the time of his retirement, seeking the following reliefs:-

"(i) Issue a Writ, order, or direction in the nature of mandamus directing the Respondents to pay to the Petitioner: (A) The salary and other attendant benefits of the Petitioner as a Post Graduate Teacher for a period of two years i.e from 01.06.2008

to 31.05.2010, along with interest at @ 12% per annum from when the amounts became due and till the date of payment; and (B) Pay interest @ 12% per annum on the entire amount of retiral benefits of Rs.13,64,506/- from 01.06.2008 to 05.10.2010, after deducting the sum of Rs.86,620/- already received by the Petitioner.

(ii) Pass such other and further orders and/or directions in favour of the Petitioner and against the Respondents as this Hon'ble court may deem fit and proper in the fact and circumstances of the case."

2. The writ petition is filed basically to claim interest for the delay

in release of the retirement benefits and also with respect to entitlement of

automatic re-employment of two years.

3. It is an undisputed fact that departmental proceedings were

initiated against the petitioner, and after completion of proceedings

ultimately the final order dated 14.7.2010 was passed against the petitioner.

Since the order dated 14.7.2010 is a short order, I reproduce the same in its

entirety as under:-

" ORDER Whereas, Shri R.A. Yadav, PGT (Geo) was charge-sheeted under rule 14 of the CCS (CCA) Rules, 1965 vide memorandum No.5308 dated 14.11.2007 on the following article of charge: ARTICLE-I That the said Shri R.A. Yadav, PGT (Geo) working in Govt. Co- Ed.SSS, Mehram Nagar, New Delhi has been failed to discharge his official duties in as much as he has tempered/manipulated the annual result sheet and award sheet of Political Science of annual exam for the year 2005-2006.

Thus Shri R.A. Yadav, PGT (Geo) has failed to maintain absolute integrity and has shown dereliction to duty and has acted in a manner

which is unbecoming of a government servant hereby violating the provisions contained in Rule-3 of the CCS(Conduct.) Rules, 1964. And whereas, the above charge sheet was served upon Shri R.A. Yadav PGT (Geo0 for submitting his written representation in response to which the C.O. denied the charge levelled against him. And whereas a Disagreement Note dated 30.3.10 was issued to the charged Official against which the charged official submitted his reply dated 19.04.2010.

And whereas, a careful perusal of the case reveals that in his written statement dated 14.06.06, Shri R.A. Yadav has accepted having ring up Mr. Madhu Kohli for review of the answer sheet due to certain errors in the result prepared by SKV Delhi Cantt. As far as the question-of the capacity in which he took this action- is concerned, a number of witnesses have confirmed that Shri R.A. Yadav was in the Exam Committee. Even the officiating HoS Smt. Achla Vohra in her written statement dated 17.05.2008 before the I.O confirmed that Shri R.A. Yadav was part of the Exam Committee when she was asked to take over as officiating HoS in November, 2005.

Although, I agree with the I.O. that the request made by Shri R.A. Yadav to the Vice Principal of SKV Delhi Cantt. was not for any personal gain, yet ethically, the act on the part of the teacher cannot be accepted. However, while taking a final decision in this matter, one can also not lose sight of the fact that the teacher now stands retired and some of his retiral benefits are still withheld due to this case. Retiring without a part of retiral benefits is itself quite a punishment. Further, he has already undergone trauma for four long years for his unethical act. Imposition of any more penalty at this stage would further delay the case to an indefinite time as it will have to be forwarded to MHRD, which will make the punishment even more severe for the retired teacher in his sixtees.

Now, therefore, I, P. Krishnamurthy, Director of Education being the Disciplinary Authority, in exercise of powers conferred upon me under Rule 12 of CCS (CCA) Rules, 1965 hereby order to exonerate Shri R.A. Yadav, PGT (Geo) from the Article of Charge levelled against him vide memo dated 14.11.2007.

(P. KRISHNAMURTHY) DIRECTOR OF EDUCATION"

4. A reading of the aforesaid order shows that petitioner has not

been completely exonerated. The ethics in the action of the petitioner was

found to be lacking. Considering the fact that the petitioner had however in

the meanwhile retired and some of his retiral benefits which have been

claimed in the present petition were withheld, the disciplinary authority has

held that the fact that retiring without a part of retiral benefits itself is a

punishment besides the issue of trauma being suffered by the petitioner. The

disciplinary authority accordingly did not impose any further penalty against

the petitioner.

5. Counsel for the petitioner does not dispute that the order dated

14.7.2010 is not an outright exoneration of the petitioner, and it is also not

disputed on behalf of the petitioner that this order dated 14.7.2010 became

final as it was not challenged further. Once the order dated 14.7.2010

becomes final as the same was not challenged, and the petitioner is held

guilty of certain minor misconduct, and the petitioner having accepted the

findings, there would therefore be valid reasons for the department not to

pay the retiral benefits which were claimed in the petition till the time the

departmental proceedings were pending. I may state that the judgments of

the Supreme Court which direct payment of interest for delay in payment of

retiral benefits are those judgments where the department has no valid

reasons to withhold the release of the retirement dues, however, where there

are sufficient reasons including of the department proceedings going on, the

department has very much a right to retain the retiral benefits. This is

because whereas a charged officer may be acquitted, on the other hand he

may also suffer the extreme penalty of removal from services, and in which

latter case no retiral benefits would be paid to such an employee who has

been removed from service. Therefore, pendency of the departmental

proceedings, and the fact that ultimately the petitioner was not completely

exonerated gives a sufficient ground to the department to withhold the

retirement dues, and therefore since withholding is not contumacious but

was for a reason, no interest can be paid for the delay caused due to the

pendency of the departmental proceedings.

6. Learned counsel for the petitioner sought to place reliance upon

a judgment of Division Bench of this Court in the case of Govt. Of NCT of

Delhi Vs. Nand Lal Singh MANU/DE/4152/2012 to argue the proposition

that in case of delay in releasing of retiral benefits interest should be paid.

There is no quarrel to this proposition of law, however, the issue is not of

release of benefits simplicitor but the issue is of withholding of the retiral

benefits for the reason of departmental proceedings which were pending, and

which is not an issue which has been dealt with in the judgment in the case

of Nand Lal Singh (supra).

7. Learned counsel for the petitioner also sought to place reliance

upon the judgment in the case of J.S. Arora Vs. UOI and Ors. 1984 (6) DRJ

211, and its para 4, which holds that on an entitlement to promotion after

exoneration from enquiry the promotee is entitled to all consequential

benefits arising as a result of promotion, however, even this judgment does

not help the petitioner because this judgment does not concern itself with a

situation where there is withholding of retiral dues for a legitimate cause.

8. In view of the above, there is no reason for grant of interest. So

far as the second relief of automatic extension/re-employment of the

petitioner is concerned, it could not be disputed on behalf of the petitioner

that the entitlement to such re-employment would only have been if the

petitioner was totally exonerated in the enquiry, and which is not the factual

position in the present case, and thus this second relief of re-employment

and the consequential monetary benefits also cannot be granted.

9. No other issue is pressed on behalf of the petitioner although

certain other grounds were also taken up in the petition.

10. In view of the above, the writ petition is dismissed, leaving the

parties to bear their own costs.

VALMIKI J. MEHTA, J FEBRUARY 19, 2013 Ne