Delhi High Court
Savinder Kaur vs Indraprastha Power Generation ... on 11 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 11, 2018
+ W.P.(C) 4963/2017
SAVINDER KAUR ..... Petitioner
Through: Mr. Raj Singh Phogat, Advocate
versus
INDRAPRASTHA POWER GENERATION CO. LTD.
.....Respondent
Through: Mr. A. S. Dater, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned order of 9th January, 2017 (Annexure P-1) declines
petitioner's request for retention of lien on the post of Deputy Manager
(HR) in Indraprastha Power Generation Company Limited (hereinafter
referred to as IPGCL). Upon submission of technical resignation from
the post of Deputy Manager (HR), petitioner was relieved by respondent-
IPGCL on 30th November, 2016 to enable her to join Pawan Hans
Limited on probation for a period of one year. It is so evident from Offer
of Appointment of 3rd October, 2016 (Annexure P-4) made by Pawan
Hans Limited. It is for this reason that petitioner while resigning had
sought retention of lien in respondent-IPGCL for a period of one year. It
is so reflected in technical resignation (Annexure P-5). Respondent-
IPGCL vide its Office Order of 30th November, 2016 (Annexure P-6) had
simply accepted the resignation of petitioner and had relieved her to
enable her to join M/s. Pawan Hans Limited. Since the relieving letter
(Annexure P-6) was silent about retention of lien, therefore, petitioner
vide letter of 5th December, 2016 (Annexure P-7) had written to
respondent-IPGCL to intimate the status of retention of lien to her.
Respondent-IPGCL vide its letter of 15th December, 2016 (Annexure P-8)
had informed petitioner that the competent authority has not accepted her
request for retention of her lien. Thereafter, petitioner vide letter of 16 th
December, 2016 (Annexure P-9) had again requested respondent-IPGCL
for grant of lien as she wanted to continue to work with respondent-
IPGCL. Reminder of 9th January, 2017 was sent by petitioner to
respondent-IPGCL, but to no avail. Petitioner vide letter of 13th January,
2017 (Annexure P-10) had sought withdrawal of resignation from
respondent-IPGCL with immediate effect.
2. According to petitioner's counsel, aforesaid letter of 13th January,
2017 (Annexure P-10) seeking withdrawal of the technical resignation
was not responded to by respondent-IPGCL. Learned counsel for
petitioner submits that despite repeated reminders on 27 th January, 14th
March and 25th April, 2017 (Annexure P-11 colly.), there was no response
to petitioner's aforesaid letter (Annexure P-10) seeking withdrawal of her
technical resignation. Learned counsel for petitioner submits that
instructions on Technical Resignation and Lien have been issued by the
Government vide Office Memorandum (henceforth referred to as 'O.M.')
of 26th December, 2013 (Annexure P-12), which mandate that if the
Government servant has proceeded on 'immediate absorption basis to
service outside his cadre/post in the government' then only, there will be
no lien.
3. It is submitted by petitioner's counsel that petitioner had not gone
to Pawan Hans Limited on 'immediate absorption basis' and so,
petitioner had inherent right to retain her lien and she had exercised her
lien vide letter of 13th January, 2017 (Annexure P-10). Reliance is placed
by petitioner's counsel upon O.M. of 17th August, 2016 on the subject of
Technical Resignation and Lien. Reliance is also placed by petitioner's
counsel upon Division Bench decision of this Court in Department of
Telecommunications v. Satya Prakash & Ors. 2016 SCC OnLine Del
3496 to submit that lien in the parent department is retained where an
employee goes on probation outside the service.
4. On the contrary, learned counsel for respondent supports impugned
order and draws attention of this Court to O.M. of 23rd December, 2013
containing instructions on forwarding applications of Government
servants for outside employment and submits that as per aforesaid O.M.,
no lien is to be retained where an employee joins the public sector
undertaking/ autonomous bodies. So, it is submitted that the O.Ms. relied
upon by petitioner's counsel do not apply to the instant case. Thus,
dismissal of this petition is sought.
5. Upon hearing and on perusal of impugned order, relevant O.Ms,
material on record and the decision cited, I find that as per O.M. of 23 rd
December, 2013 containing instructions on 'forwarding applications of
Government servants for outside employment', whenever such
applications are received, they are forwarded with a clear understanding
to the employees that in the event of their selection on the post applied
for, they will sever their connection with the Government. Thus, it
becomes clear that the relieving order should indicate that there would be
no lien in case an employee seeks employment outside. A perusal of
relieving letter (Annexure P-6) makes it abundantly clear that it is
conspicuous on lien aspect. Since reliving order (Annexure P-6) is not in
consonance with O.M. of 23rd December, 2013 relied upon by
respondent, therefore, the bar of 'no lien' would not apply to the case of
petitioner. Such a view is taken in view of dictum of Division Bench
decision in Satya Prakash (supra). Consequentially, impugned order
(Annexure P-1) is hereby quashed while holding that petitioner had
exercised lien within one year of her technical resignation i.e. on 13 th
January, 2017 vide letter (Annexure P-10). Learned counsel for petitioner
on instructions submits that the post of Deputy Manager (HR) in
respondent-IPGCL is still vacant. If it is so, then petitioner be permitted
to join back on the same post within a period of four weeks from today.
6. With aforesaid directions, this petition is disposed of.
Dasti to learned counsel for petitioner.
(SUNIL GAUR)
JUDGE
JANUARY 11, 2018
s
