Albert Samuel Trikha vs The Managing Director, Indian ...
2013 Latest Caselaw 316 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.3682/1996

%                                                        January 21, 2013

ALBERT SAMUEL TRIKHA                          ...... Petitioner
                 Through:                Dr. M.P. Raju, Advocate with Ms.
                                         Mary Scaria, Advocate.


                      Versus

THE MANAGING DIRECTOR, INDIAN AIRLINES LIMITED & ANR.
                                     ..... Respondents

Through: Mr. Jayant Mehta, Senior Advocate with Mr. Madan Mohan, 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 under Article 226 of the Constitution of India

is filed by the petitioner, an employee of respondents/Indian Airlines

Limited, seeking to impugn the orders dated 18.11.1993, 13.1.1994,

6.4.1994 and other orders especially the order dated 29.5.1995 of the

Disciplinary Authority imposing the penalty of reduction of basic pay by

two stages in time scale with cumulative effect against the petitioner. The

penalty was imposed on the petitioner because the petitioner took the loan

for housing purpose, although he already owned a house in Delhi.

2. The facts of the case are that the petitioner applied for a loan

with the respondents/employer on 11.4.1990 for building of a new house at

Loni, Ghaziabad. The application was processed and loan of Rs. 1,47,750/-

was granted to the petitioner on 19.1.1991. At the time of grant of loan, the

petitioner gave an undertaking that neither he nor his dependent/children

owned any house anywhere. It subsequently transpired that petitioner was

the owner of a flat No.84-B, Pocket „B", Dilshad Garden, Delhi which he

was allotted by the DDA in the year 1986 and for which he has taken a loan

of Rs. 61,000/- from Housing Development Finance Corporation repayable

in equal monthly instalments of Rs. 828/- for 180 months. The petitioner

was therefore held guilty of violation of the following rules of his service:-

"Clause 28(11): Fraud and dishonesty in connection with the business or property of the Corporation.

Clause 28(15): Breach of any Standing Order or any law or rules applicable to the establishment.

Clause 28(20): Commission of any act subversive of discipline or of good behavior in the premises of the establishment. Clause 28(33): Giving false information......."

3. After issuance of show cause notice, enquiry proceedings were

held. Before the Enquiry Officer, the petitioner did not dispute that in fact

he was allotted a flat by DDA and for which he had taken a loan of Rs.

61,000/- from Housing Development Finance Corporation Ltd. The

petitioner however defended the action against him by stating that he was

not the owner of the DDA flat when he applied for loan to the employer.

4. The Enquiry Officer has given a report against the petitioner

because the petitioner did not produce any evidence whatsoever, whether

oral or documentary during the course of enquiry. Though the report of the

Enquiry Officer, proceeds on various aspects some of which may not be

satisfactory, but in my opinion, the real crux of the order of Enquiry Officer

is contained in the following portion under the heading of analysis of the

evidence:

"It may also be mentioned here that in his own statement duly signed by him on 12.8.93 before Sr. Vig. Officer, Mr. A.S. Trikha has himself stated that "Both the properties are in my name." In the beginning of the same statement Shri Trikhas has mentioned himself as resident of 84-B, Pocket B, Dilshad Garden, Delhi which fact also tends to prove that even today he resides at a place which he does not claim as his „own‟ as according to him ownership rights of the said property have been transferred to another person through Power of Attorney. This explanation to any employee is basically granted for the purpose of acquiring a „living place‟ for self and family. In the instant case, the delinquent employee is not living in the house at

Loni, Ghaziabad for which he was granted loan by I.A. In the light of these observations, I tend to conclude that Mr. A.G. Trikha „already owned‟ a house at the time of grant of housing loan to him."

5. In my opinion, the fact as to whether the petitioner continued to

be or did not continue to be the owner of DDA flat at Dilshad Garden when

he applied for a loan in the year 1990, is a fact especially within his

knowledge and burden of proving that fact was upon him vide Section 106

of the Evidence Act, 1872. The best way for the petitioner to prove that he

was not the owner of the DDA flat was to file his bank account to show that

he did receive moneys from his sister-in-law to whom allegedly the DDA

flat was transferred on 4.1.1988. The petitioner however did not file his

bank account to show that any amount was credited in his bank account on

account of transfer of DDA flat to his sister-in-law. Not only that, the

petitioner could have summoned his sister-in-law to prove that after the

property was transferred to his sister-in-law on 4.1.1988 the further

instalments payable for loan of Rs. 61,000/- were paid by sister-in-law and

not the petitioner, but, the petitioner has again neither summoned the sister-

in-law nor proved that loan instalments payable to Housing Development

Finance Corporation were paid not by the petitioner but by the sister-in-law.

Further also if really the sister-in-law became the owner by means of the

documentation dated 4.1.1988 surely the sister-in-law thereafter would have

applied either to the requisite local municipal authority for mutating of

property in her name, or would have filed income tax returns, or other

documents before any statutory authority to show that she was the owner

and not the present petitioner. Admittedly, none of these documents are

filed by the petitioner before the Enquiry Officer. I may note that counsel

for the petitioner admits that the petitioner had taken divergent stands as to

the transfer i.e either gift or sale, before the Enquiry Officer.

6. At the cost of repetition, the petitioner did not lead any oral or

documentary evidence before the Enquiry Officer and therefore the Enquiry

Officer held the charge to be proved against the petitioner and which

effectively was concealment of facts for taking the loan from his employer

besides committing fraud and dishonesty in connection with the business or

property of the Corporation and also an act which would be subversive of

discipline or of good behavior with the employer, and finally of giving false

information.

7. This Court exercising extraordinary jurisdiction under Article

226 of the Constitution of India has powers to interfere with the order of the

Disciplinary Authority and the report of the Enquiry Officer only if the said

report is either illegal or perverse or violative of principles of natural justice

or against the doctrine of proportionality. In the present case, I do not find

that the order is illegal inasmuch as it is against the law or that the order is in

any manner violative of principles of natural justice (petitioner admittedly

participated in the proceedings) or the findings of the Enquiry Officer are in

any manner perverse (in fact the petitioner led no evidence before the

Enquiry Officer).

8. Learned counsel for the petitioner sought to place reliance on

the judgment of the Supreme Court in the case of A.L. Kalra Vs. The

Project and Equipment Corporation of India Ltd. 1984 (2) Service Law

Reporter 446 to argue that the consequence of the order of Disciplinary

Authority has to be only followed in accordance with the rules and the only

relevant rule in this regard for illegally taking the loan is clause 5(viii) of the

Rules of the Employer which provides at best only for refund of loan. In

order to appreciate the contention of the petitioner, let me reproduce the

entire Rule 5.

"5. General Conditions

(i)The object of granting housing loans being merely to afford employees a facility as a staff welfare measure, no employee can claim such a loan as a matter of right, and every loan hereunder is subject to the decision of the Corporation of the Chairman or the Managing Director as the case may be, and on the merits of such case, and subject to availability of funds.

(ii) No such loan shall be permitted to any employee who has not completed at least five years continuous service in the Indian Airlines as a permanent member of its staff. This condition may, however, be relaxed or waived in respect of a co-operative housing society of employees one or more of whom may not satisfy the condition.

(iii) Neither the applicant, nor the applicant‟s wife/husband/minor child must be the owner of the house. However, this condition may be relaxed by the Corporation in exceptional circumstances, for example, if the applicant or the applicant‟s wife/husband/minor child owns a house in a village and the applicant desires to settle down in a town; or where the applicant happens to own a house jointly with other relations etc and he desires to build a separate house for the bonafide residential purpose.

(iv) In cases where both husband and wife are in the service of the Corporation and eligible for loan, a loan may be granted only to one of them.

(v) No loan will be permitted hereunder if the applicant has availed of any loan or advance for construction or purchase of a dwelling house from any Government or other source (such as the Ministry of Rehabilitation, or the Central or State Housing Scheme or any Bank or Life Insurance Corporation), unless he gives an undertaking in writing forthwith to repay in full the loan or advance so drawn.

(vi) Only one loan will be granted and that to construct or purchase only one house in the service career of an employee.

Similarly only one society loan will be granted and that in respect of only one housing project of a co-operative housing society. An employee can have either an individual loan or society loan as a member of the Society and not both.

(vii) No loan shall be permitted to construct or purchase dwelling houses on lease-hold land, unless the unexpired residue of the lease period on the date of the advance is more than 25 years in the case of individual employees or more than 35 years in the case of co-operative housing society and unless the lease-hold rights are transferable or assignable.

(viii) Utilization of the loan for a purpose other than that for which it is sanctioned shall render the employee liable to disciplinary action under the Indian Airlines‟ Regulations, apart from his being called upon the refund to the Corporation forthwith the entire loan drawn by him."

9. When we see sub rule (viii) of Rule 5, we find that it only deals

with the position of a person taking a loan and utilizing the same for the

purpose other than for which the loan is taken. It is only in those

circumstances that sub-rule (viii) applies and which provides that in such

cases refund can be called for by the employer/corporation. In my opinion,

therefore, this rule has no application in the facts of the present case

inasmuch as it is not the case that the loan taken by the employee was not

being used for the purpose for which the loan was granted but was used for

something else. Really the action against the petitioner was under sub-rule

(iii) of Rule 5 as aforesaid and which provides that no loan can be taken

from employer unless the employee does not own a house. This rule was

clearly violated in the facts of the present case and we are thus concerned

with violation of this sub rule(iii) and not sub rule (viii). Once this sub rule

(iii) has been violated and the petitioner was held not entitled to take the

loan, action of the respondents/employer to ask for repayment of the loan

amount and thereafter adjusting the loan from his salary cannot be said to be

in any manner illegal. The employer was justified in retaining the entire

amount of salary till the loan amount illegally taken by the

petitioner/employee stood cleared. In my opinion, therefore, the judgment in

the case of A.L. Kalra(supra) as sought on behalf of the petitioner has no

application to the facts of the present case.

10. In view of the above, I do not find any merit in the writ petition,

which is accordingly dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J JANUARY 21, 2013 Ne