Delhi High Court
Mukesh Thakur vs Chairman Cum Managing Director, ... on 20 August, 2019
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20.08.2019
+ W.P.(C) 5769/2016 with CM APPLs. 16868/2017,
25771-72/2018, 4877/2019
MUKESH THAKUR ..... Petitioner
Through: Mr. K. K. Upadhyay, Adv.
versus
CHAIRMAN CUM MANAGING DIRECTOR, ENGINEERING
PROJECTS INDIA LTD. & ORS ..... Respondents
Through: Ms. Jagriti Ahuja and Mr. Amol
Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present petition, the petitioner prays as under:
(a) issue a writ of certiorari or any appropriate
writ/order or direction calling for the records which
led to the reduction in rank from the post of Group
General Manager to General Manager and then
suspension order by changing his headquarter from
Jammu to Kolkata and thereafter issuance of article
of charges dated 10.12.2014 and on consideration
of the submissions made in the present writ petition,
the same be quashed.
(b) set aside the order of reduction in rank.
(c) issue a writ of certiorari or any other
appropriate order/direction calling upon the
respondents not to take any steps pursuance to and
in furtherance of the impugned order dated
29.09.2014.
(d) stay the operation of the impugned order dated
29.09.2014 as it was prayed by the petitioner to the
Director Projects Disciplinary Authority vide letter
dated 10.10.2014 that reversion from GGM to GM
of applicant is a severe, final and irrevocable step
and no opportunity was given and management was
very harsh in bye-passing the principles of natural
justice.
(e) issue any other writ, order or direction granting
the petitioner all other and consequential relief as
are just and proper in the facts and circumstances of
the case.
(f) since all the proceedings right from beginning
i.e. the reduction in rank followed by suspension and
thereafter issuance of charge sheet and then holding
departmental inquiry be made null and void. The
entire proceedings has been made just to debar the
petitioner from further elevation to the next level of
Executive Director within a period of one year and
thereafter Board Level Post of Director of the
Respondents Company or elsewhere in other Public
Sector Enterprise through interview conducted by
public Enterprises Selection Board after rendering
one year service as Group General Manager,
(g) grant a further relief in the nature of mandamus
is sought for commanding respondents not to take
any further action either in furtherance or as a
consequence of the impugned order dated
29.09.2014 and to grant and restore all benefits for
which the petitioner is entitled but for the impugned
punishment awarded to him vide order dated
29.09.2014.
(h) order consideration of candidature of the
Petitioner for the post of Executive Director in the
ensuing DPC, 2016 of EPIL as petitioner is eligible
after completing 22 years service.
2. However, vide order dated 11.07.2016, learned counsel for the
petitioner has submitted that the petitioner is confined to Prayer 'b',
whereby he seeks to set aside the order for reduction in rank.
3. Case of the petitioner is that he had rendered 19 years of unblemished
service in his previous service right from 06.09.1993 to 26.04.2012
wherein he has been on various positions - Assistant Engineer/
Engineer/ Sr. Engineer/ Dy. Manager/ Manager / now Sr. Manager in
the pay scale of ₹43,200-3%-66,000.
4. The pre-employment history of the petitioner with SJVN Ltd. vis-a-
vis EPIL with the designation and pay scale is appended below:
SJVN Ltd.
Sl. Designation Period Pay scale Probation
No. (level) From to confirmation
date
1. Assistant 06.09.1993 to 2250-4000 Within
Engineer 31.12.1996 stipulated
period of one
year
2. Engineer 01.01.1997 to 10750-300- Within
31.12.1999 16750 stipulated
period of one
year
3. Senior 01.01.2000 to 13500-350- Within
Engineer 31.12.2002 18250 stipulated
period of one
year
4. Dy. Manager 01.01.2003 to 14500-350- Within
31.12.2005 18700 stipulated
period of one
year
5. Manager 01.01.2006 to 16500-500- Within
31.12.2008 22500 stipulated
period of one
year
6. Senior 01.01.2009 to 43200-3%- Within
Manager 26.04.2012 66000 stipulated
period of one
year
EPIL
Sl. Designation Period Pay scale Probation
No. (level) From to confirmation
date
1. General 27.04.2012 to 43200-3%- Within
Manager 26.04.2013 66000 stipulated
period of one
year
2. Group General 09.10.2013 to -do- (may please
Manager 08.10.2014* see footnote)
5. The Public Enterprises Selection Board (PSEB) has been set up with
the objective of evolving a sound managerial policy for the Central
Public Sector Enterprises ('CPSE') and in particular, to advise
Government on appointment to their top management posts.
However, if internal candidates are not available, preference is given
to candidates working in other Public Sector Enterprises ('PSEs').
6. Learned counsel appearing on behalf of the petitioner submits that the
petitioner has been aggrieved with the passing of impugned order of
his reversion from his holding the substantive and permanent
selection post of Group General Manager (E7A) in the pay scale of
₹43200- 3%-66000. The impugned reversion order dated 29.09.2014
was issued by lowering down his status and cadre affecting his overall
seniority and his future advancement in career has been marred. The
EPIL like other PSUs, made terms and conditions of Recruitment and
Promotion Policy of the EPIL were made applicable to the petitioner
like probation, confirmation etc.
7. The petitioner was confirmed to the post of General Manager (E7), on
26.04.2013 in the existing IDA pay scale of ₹43200-3%-66000 i.e. the
probation period of the petitioner was timely and successfully
completed within the stipulated period of one year.
8. The petitioner had been Senior Manager (Civil) in the same IDA pay
scale of ₹43200-3%- 66000 in his previous employment with SJVN
Ltd. (A Joint Venture of Government of India and Government of
Himachal Pradesh) and had been there in this pay scale from
01.01.2009 to 26.04.2012 and there also his services were confirmed
within the stipulated period of one year.
9. Learned counsel for the petitioner further submits that the petitioner
had joined the present service in respondents company because
pursuance to implementation of 2nd Pay Revision Committee
Recommendations approved by the Government of India for upward
revision of pay scales of Non- Board Level Executives as well as
supervisory and unionized workman category employees by the Pay
Revision Committee chaired by Justice Major Jagannadha Rao, Retd.
Judge of the Supreme Court of India. The pay scales of all the PSEs
were revised by respective PSE's on its financial capacity and on the
basis of existing designations adopted the Revised Pay Scales.
10. The department of Public Enterprises, New Delhi vide its Office
Memorandum dated 26.11.2008 notified the applicable Revised Pay
Scales pursuance to 2nd Pay Revision Committee under the
chairmanship of Justice M. Jagannadha Rao, Retd. Judge of Supreme
Court of India to recommend the revision of pay scales for categories
of employees following ID Pay scales.
11. Learned counsel further submits that there are consolidated
instructions on probation/ confirmation in Central Services under
Office Memorandum dated 21.07.2014 issued by the Government of
India, Ministry of Personnel, Public Grievances and Pensions
(Department of Personnel & Training) and a copy where has been
marked for distribution to all the ministries and departments. As per
the policy the appointing authority may declare successful
completion, extend the period of probation or terminate the services
of a temporary employee on probation, on the basis of evaluation of
performance. It further says that it is not desirable that a government
servant should be kept on probation for a long period. Under the Sub-
Head of 'Promotion' of the above office memorandum the guidelines
stipulates as under:-
"(i) Person who are inducted into a new service
through promotion shall also be placed on
probation but there shall be no probation on
promotion from one grade to another but within the
same group of posts, except when the promotion
involves a change in the group of posts in the same
service e.g. promotion from Group 'B' to Group 'A'
in which case the probation would be for the
prescribed period."
Apart from that under the head progress
during probation "Instead of treating probation a
formality, the existing powers to discharge
probationers should be systematically and
vigorously used so that the necessity of dispensing
with the services of employees at later stages may
arise only rarely.
"........but there should be a very careful
assessment of the outlook, character and aptitude
for the kind of work that has to be done in the
service before a probationer is confirmed."
"Termination of Probation
The decision whether an employee should be
confirmed or his probation extended should be taken
soon after the expiry of the initial probationary
period that is within six to eight weeks, and
communicated to the employee together with the
reasons in case of extension. A probationer who is
not making satisfactory progress or who shows
himself to be inadequate for the service in any way
should be informed of his shortcomings well before
the expiry of the original probationary period so
that he can make special efforts at self-
improvement."
12. It is further submitted that the respondents company EPIL is having
written policy in Human Resource Manual (HRM) having details like
Recruitment and Promotion Policy, Conduct Discipline and Appeal
Rules and other welfare schemes - EPF, Gratuity, House Building
Advance, Festival Advance, Accommodation of Allotment, Travel
Allowances etc.
13. Now, here is the root cause which has germinated into fatal
consequences in the career of the petitioner not only in the
respondents company but his future prospects of director level post, to
which he is eligible by way of submission of applications are blocked.
14. The Public Enterprise Selection Board, (A Government Body) keeps
on issuing vacancies of the Board Level Post of Chairman, Director in
the PSEs and by dint of sufficient grade service petitioner is eligible
but he cannot expect unless the whole proceedings initiated against
him are not made and declared ultra virus. The entire reputation of the
petitioner has been put to stake by the stark and gross violation of not
only the existing rules and regulations of the company covering the
probation of the petitioner and other related consequential atrocities
pertaining to his financial benefits and seniority as he has been
rendered by the respondents company junior to his juniors and he has
been denied annual increment for the last three years.
15. On the other hand, learned counsel appearing on behalf of the
respondents submits that the present petition is a simple case where an
employee was on probation for one year and during the probation
period, his performance was not found satisfactory. In terms of the
appointment letter dated 30.09.2013 his services could have been
terminated by ending the probation period. However, instead of
adopting this route the respondents have placed him back on the post
over which he had a lien being a departmental candidate. It may also
be noted that the petitioner herein has already availed the statutory
remedy of departmental appeal against the impugned order which has
culminated into a final order passed by the Appellate Authority.
16. The clause 20 of the EPI Recruitment Policy provides that all
appointment in the company are governed by the rules relating to
probation and confirmation as notified from time to time or specific
terms of appointment. Similarly clause 13 of the policy provides that
if performance of the employee during probation is not found
satisfactory he/she will be reverted to the post from which he was
promoted.
17. The services of the employees of respondent (LIC) are governed by
the rules and policies framed by and for respondent. The rules
applicable to other PSUs are not applicable to the employees of
respondent.
18. While relying upon the Guidelines on Corporate Governance for
Central Public Sector Enterprises, learned counsel for the petitioner
states that these Guidelines and policies evolved by the Central
Government with respect to the structure, composition, selection,
appointment and service conditions of Boards of Directors and senior
management personnel shall be strictly followed.
19. He submits that the petitioner is a Senior Manager, therefore, the
Guidelines of the Central Government is relevant in the present case.
But the fact remains that the statutory rules are there, whereby the
respondents have power to remove the employee who is on probation,
based upon the performance, if not found satisfactory and has power
to revert him/ her to the original post.
20. It is not in dispute that the probation of petitioner was for one year
and to be extended by three months, but not twice. The petitioner was
appointed as Group General Manager (Civil) on 30.05.2013 and an
impugned order is passed on 29.09.2014. Thus, the impugned order
passed by the respondent is within the extended period of probation.
The Guidelines issued by the Central Government is not applicable in
the present case for the reason that the respondent has satisfied the
statutory rules, whereby the impugned order has been passed. If the
other PSE has adopted the guidelines of the Central Government, that
cannot be made mandatory for the respondent herein.
21. It is settled law that when the statutory rules and administrative
guidelines both exist, the statutory rules will prevail over the
administrative guidelines. Accordingly, this Court hereby finds no
merit in the present petition and the same is accordingly dismissed.
(SURESH KUMAR KAIT)
JUDGE
August 20th , 2019
PB
