Shri Vijay Kumar vs The Chairman, Airport Authority ...
2013 Latest Caselaw 5044 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No.2860/2011

%                                                     1st November, 2013

SHRI VIJAY KUMAR                               ..... Petitioner
                            Through:     Mr. D. K. Sharma, Advocate.
                            Versus

THE CHAIRMAN, AIRPORT AUTHORITY OF INDIA AND ORS.
                                            ...Respondents

Through: Ms. Anjana Gossain, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, the following two reliefs are prayed for by

the petitioner:-

"a) Issue a writ, order or direction in the nature of certiorari thereby directing the respondents to pay all the back benefits during the suspension period and pay all the benefits w.e.f. 2002 to 2010, as the petitioner has been acquitted by the Trial Court in the false criminal case;

b) Direct the respondents not to deduct the pension which is being fixed at the time of taking VRS (Voluntarily Retirement Scheme) adopted by the petitioner in the year 2009 as the petitioner suffered paralysis attack.

c) Pass any other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice."

2. Petitioner was an employee of the respondent no.1. Petitioner

as per the relief clause seeks entire pay from 2000 to 2010. I may note that

there is a typographical mistake in mentioning the year 2002 in the prayer

clause inasmuch as counsel for the petitioner states that the claim is for

complete pay from 2000 to 2010. The second relief which is claimed is

really consequential to the first relief inasmuch as it is argued that pay of the

petitioner has to be taken as normal pay at the time the petitioner took

voluntary retirement in the year 2009.

3. The claim of the petitioner with respect to complete pay in the

suspension period can be divided into two parts. First is from the year 2000

to 2002 and the second period will be from the year 2002 to 2010. So far as

the first period from the year 2000 to 2002 is concerned, respondent

no.1/employer has filed on record the penalty order passed against the

petitioner dated 23.12.2002 and the relevant portion of the said order reads

as under:-

"8. NOW THEREFORE from the above, Undersigned is of the view that Sh. Vijay Kumar, Driver (SG) (U/S) while on duty was involved in theft of three pairs of ladies sandals taken out from the export shipment. The charges leveled against him are true and proved. He has thus committed theft, fraud or dishonesty in connection with the business or property of Authority within the premises of Authority. He has acted in a manner prejudicial to the interest of Authority. By leaving the premises without permission, he has shown willful insubordination or disobedience of any lawful and reasonable order of his suspension and has committed an acted

subversive of discipline of good behavior and unbecoming of him as an employee of the Authority. Thus, I hereby, impose penalty of "Stoppage of two increments with cumulative effect due on July 03 and July 04 in the pay scale of Rs.6,300-Rs.12,060 upon Sh. Vijay Kumar, Driver (SG). The suspension order is hereby revoked with immediate effect. The period of suspension w.e.f. 17.02.00 to the date of joining his duty after issue of this order will not be treated as spent on duty and his pay and allowance will be restricted to the subsistence allowance already paid to him." (underlining added)

4. The above penalty order has become final as the passing of the

order dated 23.12.2002 has not been disputed by the petitioner in the

rejoinder affidavit. In view of the penalty order dated 23.12.2002 and which

specifically provides that period of suspension from 17.2.2000 to the date of

his joining duties after issuing of the order will not be treated as spent on

duty and his pay and allowances will be restricted to the subsistence

allowance paid to him making it clear that the petitioner can only get

payment after implementation of the penalty order dated 23.12.2002 and not

the complete salary as is claimed by the petitioner.

5. The second period for which relief is claimed is from the year

2002 to 2010. In this regard, since the counter-affidavit was not clear, I

directed the respondent no.1 to file additional counter-affidavit vide order

dated 23.8.2013 and which has been filed on 23.9.2013. As per this

additional affidavit two things are clear. Firstly, pursuant to another charge

sheet dated 7.9.2001 against the petitioner a penalty order was passed on

28.10.2005. The penalty order was preceded by the charge sheet dated

23.6.2005. Petitioner admitted to the charge sheet in terms of his note

written in Hindi dated 5.7.2005. Accordingly, on the petitioner admitting his

fault, a penalty order was passed on 28.10.2005 containing the following

operative portion:-

"NOW THEREFORE on careful consideration of fact and circumstances, representation submitted by Sh. Vijay Kumar, Asstt.(Driver) (SG), and his past record, undersigned is of the view that the charges leveled against Sh. Vijay Kumar, Asstt. (Driver) are true. He is in the habit of remaining absent. He is availing leave very frequently, is not taking prior permission to leave and not showing improvement inspite of verbal counseling, Memoranda. Sh. Vijay Kumar, Asstt.(Driver) (SG) did not mark his attendance in the attendance since 06.12.2004 to 21.03.05. On 23.03.05, he marked attendance for December 2004, Jan.05 & Feb.05 for the days on which he was not present. He has shown negligence in the performance of his duties. He has failed to maintain devotion to duty & has shown willful insubordination/disobedience of lawful and reasonable order. He has acted in a manner which is prejudicial to the interest of the Authority. Seeing his past record and his acceptance of the charges, I hereby impose penalty of "Reduction of pay of Sh. Vijay Kumar, Asstt. (Driver)(SG) to the minimum of pay scale of `6300- 180-8460-200-12060 for a period of three years. It is further directed that Sh. Vijay Kumar, Asstt. (Driver) (SG) will not earn increment of pay during the period of reduction, and that on expiry of this period, the reduction will have the effect of postponing his future increment of pay i.e. on expiry of punishment period, he will draw basic pay what he was drawing at the time of imposing penalty.

His attendance will be kept under watch for one year. Any further lapse shall be viewed seriously.

4. The appeal against the order lies with the Appellate Authority as stipulated in AAI Employees (Conduct, Discipline and Appeal)

Regulations, 2003 which can be preferred within 30 days from the date of receipt."

6. I may note that when the aspect of passing of the penalty order

dated 28.10.2005 was mentioned in the additional affidavit filed on

23.9.2013 by the respondent no.1, no reply to this additional affidavit has

been filed till date by the petitioner and therefore there cannot be a dispute

that the penalty order dated 28.10.2005 was passed. Once the penalty order

is passed and which has become final the same has to operate by reducing

the pay as stated in the said order including the penalty of not earning any

increment during the period of punishment and postponing the future

increments.

7. A resume of the facts shows that petitioner has been less than

conscientious in performing his duties. Firstly, he was chargesheeted with

respect to theft of lady sandals from the export shipment and for which

penalty order was passed which became final. The petitioner thereafter was

lackadaisical in attending duties and marked attendance in spite of not

coming to duty. There was therefore passed a second penalty order dated

28.10.2005. Both the penalty orders of the years 2002 and 2005 have

become final and therefore they would have the necessary consequences on

the salary of the petitioner including the fact that for the period of

suspension as per the order dated 23.12.2002, nothing except the suspension

allowances has to be paid and so far as the rest of the monetary emoluments

is concerned the same will be after implementation of the orders dated

23.12.2002 and 28.10.2005.

8. One important aspect to be noted is that petitioner took

voluntary retirement in July, 2009. Pursuant to acceptance of his request for

voluntary retirement petitioner received the monetary package. The

petitioner accepted this package and the effect of accepting the package is

that in law no other claim can be made for the past dues because on

voluntary retirement the bond between the employer and the employee gets

snapped whereby the employee thereafter cannot claim benefits of alleged

past dues from the employer. This is stated by the Supreme Court in the

judgment in the case of A.K.Bindal Vs. Union of India (2003) 5 SCC 163.

Para 34 of the judgment in the case of A.K. Bindal (supra) reads as under:-

"34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same.

It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a compete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the

employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated." (underlining added)

I may note that the counsel for the respondent no.2 states that

whatever monetary package was calculated for being paid to the petitioner

was strictly done by complying with the penalty orders dated 23.12.2002 and

28.10.2005.

9. In fact, in my opinion, petitioner is guilty of gross concealment

of facts in not filing or stating about the penalty orders passed against him of

the years 2002 and 2005. Petitioner is also guilty of the concealment of fact

that he took voluntary retiremental benefits and which lumpsum package

being a golden handshake in term of A.K. Bindal's case (supra) the same

prevents the employee from claiming any further dues from the employer.

10. In view of the above, the writ petition is a gross abuse of

process of law. I was, in view of the facts of the present case, inclined to

dismiss the petition with costs of Rs.50,000/-, however, I am not doing so as

I am told that petitioner is suffering from partial paralysis and it is only on

this humanitarian consideration that costs are not imposed.

11. Writ petition is therefore dismissed, leaving the parties to bear

their own costs. However, in case petitioner files any other litigation against

respondent no.1/employer on the same facts then payment of costs will be a

condition precedent for initiating of any fresh litigation.

NOVEMBER 01, 2013                               VALMIKI J. MEHTA, J.
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