Delhi High Court
Kewal K.Duggal vs The Up Export Corporation Ltd. on 10 February, 2020
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2809/2002
KEWAL K. DUGGAL ..... Petitioner
Through: Mr. Amrit Pal Singh Gambhir,
Adv.
versus
THE UP EXPORT CORPORATION LTD. ..... Respondent
Through: Mr. Rajesh Chhetri, Mr. Pawan
Upadhyaya and Ms. Meenakshi
Rawat, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT
% 10.02.2020
1. During the pendency of this writ petition, the first respondent
Corporation has been renamed as "Uttar Pradesh Handicrafts
Development and Marketing Corporation Limited", vide fresh
certificate of Incorporation dated 23rd September, 2008, issued by the
Deputy Registrar of Companies, Uttar Pradesh and Uttaranchal. The
cause title of the present writ petition, shall, therefore, reflect the name
of the first respondent as "Uttar Pradesh Handicrafts Development and
Marketing Corporation Limited". Amended memo of parties shall be
filed, by the Petitioner, on or before 25th February, 2020.
The Challenge
2. This writ petition impugns
(i) Office Order No. FIN/VAR/5405, dated 8th November,
2000, issued by the Managing Director of the Respondent no. 1
corporation, whereby an earlier order, dated 23rd August, 2000,
was cancelled, and deduction of ₹ 4,350/-, per month, from the
salary of the petitioner, was directed to be continued "till such
time the loss suffered by the Corporation is not recouped",
(ii) Show Cause Notice No.SEC/K-02/6472, dated 20th
August, 2001, whereby the petitioner was alleged to have
violated Suspension Order No. 5407, dated 8th November, 2000,
which directed the petitioner to be present in the Export
Division, Bhadohi, everyday, and not to leave the station
without the permission of the Managing Director (MD) of the
Respondent No.1 - Corporation (hereinafter referred to as „first
respondent‟),
(iii) Charge-sheet No. SEC/K-02/6474 (hereinafter referred to
as "charge-sheet No. 6474"), dated 20th January, 2001, issued to
the petitioner by the MD, of first respondent, alleging
"slackness", by the petitioner, in the realisation of ₹
30,40,350.06, from four companies in the US,
(iv) Charge-sheet No. SEC/K-02/6475 (hereinafter referred to
as "charge-sheet No. 6475"), dated 20th January, 2001, whereby
the petitioner was charged with having concealed, from the first
respondent, information regarding the allotment, to the
petitioner, of government accommodation at E-328/A, Sector-
27, Noida, which resulted in disbursal, to the petitioner, of
House Rent Allowance (HRA), to which the petitioner was
allegedly not entitled,
(v) Charge-sheet No. SEC/K-02/6942 (hereinafter referred to
as "charge-sheet No. 6942"), dated 16th February, 2001, issued
to the petitioner by the MD, of the first respondent, whereby the
petitioner was alleged to have
(a) supplied goods, of the first respondent, to foreign
buyers, after expiry of the Letter of Credit (L/C) executed
in that regard, and after expiry of the date of delivery, as a
result of which receipt of payment, from certain specified
firms, totalling ₹ 1,17,502/-, was substantially delayed,
and
(b) supplied M/s Aid and Trade International, USA,
goods worth ₹ 3,02,199.25 on documents against
acceptance at 60 days sight, against which payment had
not been made by the concerned buyer,
(vi) Memo No. 7071, dated 3rd March, 2001, issued to the
petitioner by the MD of the first respondent, alleging
(a) delayed submission, by the petitioner, of TA Bills,
relating to international journeys undertaken by the
petitioner during various periods of time, between 26th
November, 1994 and 8th April, 1997, and
(b) making of foreign trips, by the petitioner, without
due permission from the Government, and
(vii) Order No. MD/Surplus/2447, dated 15th September, 2001,
issued to the petitioner, by the MD of the first respondent,
informing the petitioner that several posts in the first
respondent-Corporation, including the post of Regional
Manager, on which the petitioner was posted, had been declared
surplus and abolished and, consequently, terminating the
services of the petitioner against payment, to the petitioner, of
three months‟ salary in lieu of notice.
3. Apart from the above, the writ petition also prays for quashing
of order, dated 2nd November, 2000, whereby the petitioner was
transferred from Delhi to Bhadohi, and relieved for the said purpose.
However, this prayer has been rendered infructuous by efflux of time,
as has already been noticed by this Court, in its order dated 6 th March,
2017, in the present proceedings.
Order dated 6th March, 2017 and its sequelae
4. During the course of these proceedings, the following order was
passed, by this Court, on 6th March, 2017:
"1. There are a total of nine prayers in this writ petition. Five
prayers are for challenging five chargesheets with three chargesheets
being of the same date i.e. 20.1.2001 and two other chargesheets
being 16.2.2001 and 3.3.2001.
2. Obviously, a chargesheet research on disciplinary proceedings
and unfortunately none of the counsels for the parties is able to
inform this Court as to whether proceedings took place pursuant to
the five chargesheets and whether after holding departmental
proceedings any orders were passed by the disciplinary authority,
and if so what are those orders. Challenge to the chargesheets will
fall into insignificance once chargesheets result in orders of the
disciplinary authority. If there are orders of the disciplinary
authority of the five chargesheets, then petitioner had to challenge
the orders passed by the disciplinary authority on the five
chargesheets.
3. As stated above, unfortunately none of the counsels are able
to inform me whether the chargesheets were carried forward and
resulted in any order of the disciplinary authority. I may note that
there were no interim orders passed in favour of the petitioner in this
writ petition staying operation of the aforesaid five chargesheets.
4. There are two other prayers being prayers (i) and (ii) with
respect to challenge the petitioner to this post being declared surplus
and petitioner challenging his transfer order, however, it is seen that
so far as challenge to the transfer order is concerned the same would
be infructuous at this stage after roughly 16 years of passing of the
same and which transfer order since was not state was acted upon by
the petitioner by joining his place of posting. So far as the issue of
petitioner being deployed as surplus is concerned, that issue will
have to be examined along with the issue if orders are passed by the
disciplinary authority on the five chargesheets against the petitioner,
in any penalty order or orders which have been imposed upon the
petitioner.
5. Let parties filed the affidavits within two weeks from today
setting out the factual position as to whether or not disciplinary
proceedings or departmental proceedings were conducted pursuant to
the five chargesheets, and if orders were thereafter passed by the
departmental authorities against the petitioner. If orders are passed
against the petitioner on the five chargesheets by the departmental
authorities such orders will also be filed by the parties along with
their affidavits.
6. List on 24th April, 2017."
(Emphasis supplied)
5. In compliance with the directions issued in the afore-extracted
order dated 6th March, 2017, an affidavit, verified on 8th May, 2017,
was filed, before this Court, on 9th May, 2017, by the first respondent.
Orders, dated 3rd April, 2002, adjudicating the charge-sheets No. 6474
and 6475, dated 20th January, 2001, and Order dated 3rd April, 2002,
adjudicating charge-sheet No. 6942 dated 16th February, 2001, have
been filed with the said affidavit.
6. Additionally, a communication dated 20th October, 2009, passed
by the MD of the first respondent purportedly with respect to the
Memo No. 7071, dated 3rd March, 2001 (as per the averment in the
affidavit of the first respondent) has also been filed. This aspect would
be discussed, in greater detail, hereinafter.
7. The Order, dated 3rd April, 2002, adjudicating charge-sheet No.
6474, dated 20th January, 2001, finds the charges, against the
petitioner, in the said charge-sheet, to be proved, and the petitioner,
consequently, "entitled for punishment". Similarly, the Order, dated
3rd April, 2002, which adjudicates charge-sheet No. 6475, also finds
the petitioner guilty of the charge, against him, in the said charge-
sheet, and "eligible for hefty punishment", which the said Order goes
on to visualise as dismissal from service. The third Order, dated 3rd
April, 2002, similarly finds the petitioner guilty of the charges
contained in the charge-sheet No. 6942, dated 16th February, 2001 and
liable, therefore, to be removed from service.
8. Having so observed, however, the aforesaid three orders, dated
3rd April, 2002, do not impose any punishment, on the petitioner, as
his services already stood "finished" on 15 September, 2001, the
order, dated 1st September, 2001 supra, whereby consequent to its
being declared surplus, the post of Regional Manager, held by the
Petitioner, was abolished. At the same time, certain recoveries, from
the petitioner, of losses found to have resulted, to the first respondent,
as a result of the acts of the petitioner, had been directed.
9. The aforesaid three Orders, dated 3rd April, 2002, whereby the
charge-sheets, No. 6474 and 6475, dated 20th April, 2001 and charge-
sheet No. 6942, dated 16th February, 2001, have been adjudicated, has,
apparently, not been challenged by the petitioner, even by amending
the writ petition. Though the said Orders do not specifically impose
any specified "punishment" on the petitioner, consequent on the
charges, against the petitioner, having been found to be proved, they
do contain findings, of the petitioner being guilty of the charges
against him, and also direct recovery of amounts, from the petitioner,
consequent thereupon. Similarly, the decision communicated, to the
petitioner, on 20th October, 2009, with respect to Memo No. 7071
dated 3rd March, 2001, has never been challenged by the petitioner
before any forum.
10. No decision, on the Show Cause Notice No. 6468, dated 20th
January, 2001 - which is also impugned in the writ petition - is,
however, forthcoming on the record.
11. With this prefatory introduction, intended principally at
delineating the precise scope of the controversy before me, I proceed
to the facts.
Facts
12. The petitioner joined the first respondent-Corporation, on 1st
February, 1978, as Export Officer. The post was, subsequently, re-
designated as Senior Manager (Export). The petitioner was promoted,
in 1993, as Regional Manager (Export) and was posted in New Delhi
w.e.f. 1994.
13. While he was thus posted as Regional Manager (Export), of the
first respondent, vide order dated 25/28th October, 2000, removed the
petitioner from service with effect from 30th October, 2000,
purportedly by way of acceptance of an application, of the petitioner,
for voluntary retirement.
14. The petitioner challenged the said order, before this Court, by
way of CW 6503/2000. Vide order dated 30th October, 2000, this
Court stayed the operation of the aforesaid decision, dated 25/28 th
October, 2000, removing the petitioner from service. Subsequently,
the said CW 6503/2000 was permitted to be withdrawn, by the
petitioner, by this Court vide order dated 30th January, 2002, with
liberty, to the petitioner, to file a fresh writ petition, ventilating all his
grievances.
15. The present writ petition purports to have been filed consequent
on the liberty thus granted.
16. Three days after the passing of the order dated 30th October,
2000 supra, by this Court, in CW 6503/2000, the petitioner was
transferred to the Carpet Branch of the first respondent at Bhadohi,
and was relieved for taking charge, at his new place of posting, vide
two separate orders, dated 2nd November, 2000. The petitioner avers
that the said transfer was vindictive in nature, and was effected
because of the order of stay, passed by this Court, on 30th October,
2000 in CW 6503/2000.
17. Vide order dated 8th November, 2000, issued by the MD of the
first respondent, the petitioner was suspended from service, on the
ground that disciplinary proceedings were contemplated against him.
18. It was alleged, in the said order, that four firms, located in the
US, to whom goods had been supplied by the first respondent during
the period 1987-1988, had effected payments, thereagainst, only in
1997. It was further alleged that the financial loss, suffered by the first
respondent, as a result of delay in the said payments had been referred,
for investigation, to the Economic Offences Wing (EOW) of the
Government of U.P., which recommended initiation of disciplinary
proceedings against the delinquent officer. Alleging that the petitioner
was guilty for the aforesaid delay in payment, by the aforesaid four
firms, located in the US, the petitioner was suspended from service.
The petitioner was also directed, during the period of his suspension,
to mark his attendance, everyday, at the Carpet Division at Bhadohi.
19. The petitioner avers, in the writ petition, that the aforesaid
allegations, on the basis of which he was suspended from the service,
were completely bereft of substance. It is pointed out that the
petitioner was neither Regional Manager (Export) nor posted at Delhi,
during the period 1987-1988, and was not associated, in any manner,
with ensuring recoveries/payments for supplies effected during the
said period. It is further pointed out that the petitioner was promoted
as Regional Manager only in 1993 and was posted in Delhi only in
1994. In fact, contends the petitioner, the aforesaid recoveries were
made only because of the petitioner‟s efforts.
20. On 17th August, 2000, an order was issued, by the first
respondent, directing recovery, from the petitioner‟s salary, of an
amount of ₹ 4,350/- per month. The petitioner represented, against the
said order, on 19th August, 2000 and, vide order dated 23rd August,
2000, the order of recovery, dated 17th August, 2000, was postponed
("sthagit" being the expression used, in vernacular, in the order).
21. Subsequently, without prelude or preface, vide order dated 8th
November, 2000, the aforesaid order dated 23 rd August, 2000,
whereby the recovery order dated 17th August, 2000 had been
postponed, was "cancelled" and the direction to recover, from the
petitioner‟s salary, an amount of Rs.4350/- per month, was revived.
22. The petitioner impugns the said order dated 8 th November,
2000, pointing out that it was not preceded by any show cause notice,
and was completely unreasoned in nature. The petitioner‟s submission
is that there is nothing forthcoming, from the record, to explain why
the first respondent backtracked on its earlier decision, dated 23rd
August, 2000, and revived the order dated 17th August, 2000.
23. On 20th January, 2001, four communications were addressed, by
the MD of the First Respondent to the petitioner, the particulars
whereof may be provided, thus:
(i) On 20th January, 2001, the Managing Director of the first
respondent wrote to the petitioner, seeking the explanation, of
the petitioner, for his having undertaken foreign trips without
prior approval of the Government of U.P. and having drawn the
expenses, for the said trips, from the funds of the of the first
respondent. The petitioner was directed, by the said letter, to
return the amounts so drawn and was also directed to explain
why greater punishment be not imposed on him. The petitioner
submitted an interim reply, dated 27th January, 2001, to the said
communication, dated 20th January, 2001, whereby further time,
to respond thereto, was sought.
(ii) The second communication, dated 20th January, 2001,
from the MD of the first respondent, to the petitioner, required
the petitioner to show cause as to why he had not complied with
the direction, contained in the order, dated 8th November, 2000,
requiring him to report everyday at Bhadohi, as also as to why
he had left Bhadohi without the permission of the MD.
(iii) Apart from the aforesaid two communications, the
petitioner was issued two charge-sheets, on 20th January, 2001.
(iv) The first Charge-sheet, viz. Charge-sheet No. 6474, was
premised on the same allegation which found place in the order,
dated 8th November, 2000 supra, whereby the petitioner was
suspended from service, i.e., that the petitioner was remiss in
failing to ensure timely payment, from the firms located, in the
US against the goods supplied to them in 1987-1988.
(v) The second Charge-sheet, also dated 20th January, 2001,
alleged that the petitioner had suppressed, from the first
respondent, the fact that he had been allotted a government
quarter at E-328/A, Sector-27, Noida, and had, thereby, illegally
availed HRA, which would, otherwise, have been deducted
from his monthly salary @ 10%.
24. A third Charge-sheet was issued, to the petitioner, on 16th
February, 2001, alleging that the petitioner had supplied goods, of the
first respondent, to oversees companies/firms after the date of expiry
of the Letters of Credit(L/Cs) opened by the said companies/firms,
and, in certain cases, after the due date of delivery. It was alleged,
secondly, in the said charge-sheet, that the petitioner was remiss in
ensuring payments from foreign buyers, of goods supplied to them.
25. On 22nd February, 2001, the petitioner addressed three
communications, to the MD of the first respondent, with respect to the
aforesaid charge-sheets issued to him, denying the allegations against
him and seeking certain documents. The respondent replied, vide
communication dated 14th February, 2001, informing the petitioner
that all documents were available at the Head Office of the first
respondent, and that he could visit the Head Office and inspect the
documents at his convenience. The petitioner was, accordingly,
directed to inform the proposed date of his visit, and the nature of the
documents that he required.
26. On 3rd March, 2001, yet another communication, also impugned
in the present writ petition, was issued, to the petitioner, by the MD of
the first respondent, alleging that the petitioner was remiss in (a)
submitting TA bills after considerable delay, and (b) undertaking
foreign trips without government permission.
27. The petitioner responded, to the above communication dated 3 rd
March, 2001, vide letter dated 9th March, 2001, addressed to the MD
of the first respondent, asserting that the trips, abroad, undertaken by
him, had been approved by the MD of the first respondent (who held
office at that time) as well as the Board of Directors of the first
respondent, and that there was no reason to assume that the approval,
of the Government of Uttar Pradesh had not been obtained, for the
said trips, by the first respondent. He also maintained that the
expenses, incurred on the trips, had the prior approval of the MD of
the first respondent.
28. On 9th March, 2001 itself, the petitioner addressed a second
representation, to the MD of the first respondent, by way of response
to the impugned charge-sheet No. 6474, dated 20th January, 2001,
defending himself against the charges contained therein.
29. On 11th September, 2001, the MD of the first respondent, issued
an Order, vide which, even while observing that the conduct of the
petitioner was against the service Rules of the first respondent-
Corporation, the suspension of the petitioner was revoked "on
humanitarian grounds", as it had continued for over 10 months. It was
further stated, in the said Order, that the petitioner would continue to
be posted at Bhadohi.
30. Consequent to the issuance of the said Order, dated 11 th
September, 2001, and, directed therein, the petitioner rejoined duties,
at Bhadohi, on 13th September, 2001.
31. Two days thereafter, on 15th September, 2001, an Order - also
impugned by the petitioner - came to be issued by the first respondent,
whereby the petitioner was intimated that, as his post has, among
others, the abolished, having been declared surplus, his services were
being terminated, and three months‟ salary, of ₹ 46,767/- was being
disbursed to him. A Demand Draft for the said amount, was enclosed
with the letter. The letter concludes with a tabular statement, setting
out the posts which had been abolished, as having become surplus, as
well as the number of employees employed on the said posts, vis-à-vis
the number of employees required and, consequently, the number of
employees who had been rendered surplus. The petitioner has pointed
out that 33 posts had been serialised in the said table, and had been
assigned Serial Numbers 1 to 33. The post of Regional Manager, it is
pointed out, is not one of the said 33 posts. Rather, the petitioner
points out, the post of Regional Manager has been inserted, without
any accompanying Serial Number assigned thereto, above Serial
Number 1, which is "Senior Manager". This, according to the
petitioner, indicates that the said insertion of the post of Regional
Manager was by way of an afterthought, solely with the intention of
laying off the petitioner.
32. A representation, preferred by the petitioner against the
aforesaid order, dated 15th September, 2001, was also dismissed, by
the MD of the first respondent, vide Order dated 10th May, 2004.
Pleadings and proceedings in the writ petition
33. It is in the above circumstances that the petitioner has
approached this Court, ventilating the grievances, as set out in the
prayers in the writ petition, which already stand noted hereinabove.
34. The writ petition contends, inter alia, that the decision, to
terminate the services of the petitioner, as having been rendered
surplus, was illegal as well as mala fide, as the post of "Regional
Manager" was inserted, by way of interpolation, above S. No. 1 in the
tabular statement of the posts which had been abolished, as contained
at the conclusion of the Report of the six-member committee, wherein
the said recommendation was made. This, according to the petitioner,
indicates that the post of Regional Manager was, in fact, not one of the
posts which were actually intended to be abolished as having become
surplus, but that the said post had been inserted in the list of posts, as
set out in the aforesaid report, only so as to dislodge the petitioner.
The petitioner also contends, in the writ petition, that the termination
of the petitioner, even on the ground that he had become surplus,
overreached the stay order, dated 31st October, 2000, passed by this
Court, and was additionally unsustainable even on that ground. The
petitioner has also questioned the propriety of the decision to treat the
post of Regional Manager surplus on merits, contending that the
Export Division of the first respondent was, in fact, probably the only
division which was not running in losses. The said decision has also
been questioned on the ground that it violates the principles of natural
justice, not having been preceded by the issuance, to the petitioner, of
any prior Show Cause Notice.
35. In its counter-affidavit, filed by way of response to the
petitioner, the first respondent has contended that all actions, taken by
it, were bona fide and that, in fact, the charges, against the petitioner,
as contained in the impugned charge-sheets, had been enquired into,
and all charges had been found to be proved, by the Enquiry Officer
appointed in that regard. The decision to abolish the post of Regional
Manager, as having been rendered surplus, too, it is submitted, was
bona fide, and taken in view of the financial stringency in the first
respondent-Corporation, which had necessitated discontinuance of
several schemes being administered by it. It is further asserted that the
recommendations, of the six-member Committee, for abolishing of
various posts, as having become surplus, was forwarded, by way of a
proposal, dated 19th May, 2001, to the Department Of Small Scale and
Export Promotion, which was the administrative Department
controlling the First Respondent and, thereafter, to the Department of
Public Enterprises and Department of Finance. Consequent to
obtaining the approval, of these Departments, to the decision to
abolish the aforesaid posts, the counter-affidavit asserts that
permission, to do so, was obtained from the Hon‟ble Governor of the
state of Uttar Pradesh, and communicated to the First Respondent.
36. Vide order dated 6th March, 2017 - which stands reproduced in
para 4 ibid - this Court noticed the fact that the record did not disclose
the fate of the impugned charge-sheets, issued to the petitioner, and
also opined, tentatively, that, if the charge-sheets had culminated in
any orders, passed by the disciplinary authority, it would be necessary
for the petitioner to impugn the said orders. The challenge to the
order, dated 15th September, 2001, terminating the services of the
petitioner, consequent to abolition of the post held by him, too, it was
observed, would have to be examined in the backdrop of the orders, if
any, passed by the disciplinary authority, on the charge-sheets issued
to the petitioner, and any penalties/punishments imposed on the
petitioner thereby. Affidavits, setting out the factual position in this
regard, were, therefore, directed to be filed.
37. In compliance with the above directions, affidavits have been
filed by the petitioner as well as by the first respondent. The first
respondent has annexed, with its affidavit, three Orders, dated 3rd
April, 2002, adjudicating the charge-sheets No. 6474 and 6475, dated
20th January, 2001, and the charge-sheet No. 6942, dated 16th
February, 2001, issued to the petitioner. No decision, on the charge-
sheet No. 6468, dated 20th January, 2001 has, apparently, been taken.
The affidavit of the first respondent also encloses a decision, dated
20th October, 2009, purportedly taken on the allegations contained in
the Show Cause Notice No. 7071, dated 3rd March, 2001, whereby the
petitioner is found to have availed TA in excess of his entitlement,
and the differential amount, availed by the petitioner, has been
directed to be recovered.
38. Despite the observations contained in the order dated 6 th March,
2017 supra, passed by this Court in these proceedings, the petitioner
has not chosen to challenge the aforesaid orders, dated 3 rd April 2002,
or the decision dated 20th October, 2009.
39. The petitioner has, however, filed an affidavit, dated 9 th May,
2017. In the said affidavit, the petitioner has asserted that, despite
repeated entreaties by him, no opportunity of personal hearing was
extended, to the petitioner, on any of the charge-sheets issued to him,
and that he had not received a single communication, from the
concerned Enquiry Officers, granting him an opportunity to present
his case. He has drawn reference to as many as nine communications,
by him, to the first respondent, copies of which were endorsed to the
concerned Enquiry Officers. The only communication, received from
any Enquiry Officer, it is asserted, was dated 26th September, 2001,
which was posted on 20th October, 2001 and received, by the
petitioner, on 25th October, 2001, more than a month after he had been
terminated from service, by declaring his post as surplus. The said
communication, dated 26th September, 2001 sought the response, of
the petitioner, to the charge-sheets has issued to him. The petitioner‟s
response, dated 31st October, 2001, draw the attention, of the Enquiry
Officer, to the aforesaid 11 letters, stated to have been sent by the
petitioner, seeking documents, in order to enable him to defend the
charges against him. The affidavit of the petitioner also questions the
merits of the decision, contained in the communication dated 20 th
October, 2009 supra, wherein it was held that the petitioner had
availed TA in excess of his entitlement, to the extent of ₹ 4,73,336.26.
The petitioner asserts that he had, indeed, undertaken the trips, against
which the aforesaid TA was claimed by him, and that there was no
excess TA claim.
40. I have heard learned counsel, Mr. Amrit Pal Singh Gambhir,
counsel for the petitioner and Mr. Rajesh Chhetri, counsel for the
respondent, at length, who have ventilated their respective stances in
accordance with the pleadings.
Analysis
Impugned „Order‟/communication dated 15th September, 2001
41. Adverting, first , to the order, dated 15th September, 2001,
whereby the petitioner was informed, by the first respondent, that,
following the decision to reduce the number of posts in the first
respondent, the post of Regional Manager, held by the petitioner, had
become surplus and had accordingly been abolished, the petitioner has
sought to submit that, in the report of the six-member committee,
which are recommended abolition of 142 posts, the post of Regional
Manager has been inserted by way of interpolation, above S. No. 1 in
the said list, which is "Senior Manager". In order to appreciate this
contention, it is necessary to reproduce the said tabular statement of
abolished posts, as contained in the said report of the six-member
committee, along with the immediately preceding paragraph, thus:
"Because of contained losses and closure of loss making
scheme/projects/craft Dev. Centre & showroom and the
Lucknow Divisional Office, after this the present activities of
the Corp. and work - employee ratio, the Committee after
review has found that of the present employed 273
officer/workers, following, posts of officer/workers are
required and for the balance surplus workers the Corp. has
neither the work nor the source of any income or resources
from where the salary to them is possible to be paid.
In references to the above, post-wise details are given below:
No. of Workers
S. Name of Post
On Requirements Surplus
No.
Duty
Manager
Manager
2. Co-Secretary 01 01 -
Executive
6. Inspector 01 01 -
7. Sr. Salesman 04 04 -
8. A.C. Operator 01 01 -
Cum Salesman
10. Personal Asstt. 01 01 -
11. Typist 04 04 -
Accountant
15. Office Asstt-I 06 06 -
18. Driver 04 04 -
19. A.C. Operator 01 01 -
21. Electrician 02 02 -
22. Clean 01 01 -
Operator
23 Jamadar 02 02 -
24. Boilerman 01 01 -
25. Chowkidar 01 01 -
26. Computer 01 01 -
Operator
27. Field Asstt. 01 01 -
Incharge
Supervisor
32. Senior Cashier 11 11 -
Total 273 142 131"
While it is true that, in the afore-extracted tabular statement, figuring
in the report of the 6-member Committee which deliberated on
abolition of posts in the first respondent corporation, the post of
Senior Manager figures at S. No. 1, and no Serial Number is to be
found against the post of Regional Manager, which is entered above
the post of Senior Manager, no benefit, in my opinion, can accrue, to
the petitioner as a result thereof, in view of the following subsequent
developments:
(i) The Report of the six-member Committee was put up to
the Board of Directors of the first respondent which, in
Resolution No. 6, taken in its meeting held on 17th May, 2001,
resolved "authorising the Managing Director to send a proposal
to Government of U.P. to fix the staff strength of U. P. Export
Corporation Ltd at 12 officers and 130 employees and to
surrender all the remaining sanctioned posts."
(ii) The first respondent, accordingly, wrote, on 19th May,
2001, to the Department of Small Scale and Export Promotion,
Government of U. P., forwarding the proposal for re-fixation of
the permanent staff strength of the first respondent. It is stated,
therein, that "the Board also passed a resolution fixing the staff
strength of 12 officers and 130 employees (for the post of
Assistant Executive and below) the details of which is given
below:
"
2. Senior Manager (Finance & 2
Account)
3. Senior Manager (Commercial) 2
5. Dy. Executive( Commercial) 3
6. Dy. Executive( Accounts) 3
8. Assistant Executive (Accounts) 2
9. Assistant Executive (Legal) 1
(Commercial)
20. A.C.Operator Cum Salesman 1
Total: 142"
(iii) The Government of U. P. responded, to the first
respondent, on 30th May, 2001, intimating the first respondent
that the proposal for fixation of Staff Strength, along with the
recommendation, had been forwarded to the Department of
Public Enterprises.
(iv) On 1st September, 2001, the Government of U. P.
communicated, to the first respondent, the approval, accorded
by the Hon‟ble Governor of U. P., to the reduction of the
permanent staff strength of the first respondent "from the
present strength of 273 to 142". The letter also stated that it had
the approval of the Department of Public Enterprises. The first
respondent was requested to take necessary action accordingly.
42. Clearly, therefore, the decision to reduce the number of posts,
in the first respondent, from 273 to 142, was approved up to the level
of the Hon‟ble Governor of U. P. The break-up of the said 142 posts is
clearly set out in the letter, dated 19 th May, 2001 supra, from the first
respondent-Corporation to the Department of Small Scale and Export
Promotion, Government of U. P. The post of Regional Manager does
not figure in the said list, thereby indicating that the post of Regional
Manager was not one of the posts which was intended to be retained
in the first respondent corporation. The mere fact that, no Serial
Number has been assigned to the post of "Regional Manager", in the
Report of the 6-member Committee, cannot, therefore, lead, in the
facts of this case, to any legitimate inference that the post of Regional
Manager was not one of the posts, intended to be abolished.
43. The reliance, by the petitioner, on the alleged "interpolation", of
the post of Regional Manager, in the Report of the six-member
Committee - which, though undated, is annexed as Annexure P-28 to
the writ petition - has, therefore, necessarily to be regarded as
misconceived.
44. The petitioner has also sought to call, into question, the merits
and justifiability, of the decision, of the first respondent, to abolish the
post of Regional Manager.
45. Abolition of posts, whether on the ground that the posts had
become surplus, or for any other reason, is essentially a matter of
executive and administrative discretion, and does not readily lend
itself to interference, in judicial review, save and except in cases
where the decision is found to be tainted with mala fides, or is readily
discernible as an oblique attempt to do away with the services of a
particular "inconvenient" employee. H. Eliot Kaplan, in his book The
Law of Civil Service (cited, with approval, by the Supreme Court in
K. Rajendran v. State of Tamil Nadu1), went to the extent of
authorizing that "where there is any reasonable justification for
eliminating positions in the public service, even where such abolition
of positions may be subject to judicial review, the inclination of the
courts is not to interfere, avoiding substitution of judicial wisdom or
judgement for that of the administrator‖.
46. The following passages, from K. Rajendran1, are relevant in
this regard:
"12. The power to abolish a civil post is inherent in the
right to create it. The Government has always the power,
subject, of course, to the constitutional provisions, to
reorganise a department to provide efficiency and to bring
about economy. It can abolish an office or post in good faith.
The action to abolish a post should not be just a pretence
taken to get rid of an inconvenient incumbent. We have the
(1982) 2 SCC 273
following statement of the law in American Jurisprudence 2d,
Vol. 63 at p. 648-49:
"37. Manner, sufficiency, validity, and effect.--It is not
always easy to determine whether a public office has
been abolished. It is not sufficient merely to declare
that a particular office is abolished, if in fact it is not
abolished, and the duties thereof are continued. An
office is abolished when the act creating it is repealed.
But the repeal of the statute creating an office,
accompanied by the re-enactment of the substance of
it, does not abolish the office. Abolition of an office
may also be brought about by a constitutional
provision, or by a new constitution or a constitutional
amendment. A non-constitutional office may be
indirectly abolished as by legislating away the duties
and emoluments of the office.
The legislature may not evade constitutional
provisions by a sham or pretended abolition of an
office, as where there is a mere colorable abolition of
the office for the purpose of getting rid of its
incumbent. This may happen where an office is
abolished in terms and promptly re-created under the
same or a different name, provided the legislature does
not attach duties and burdens to the new office of a
character such as to make it in reality a different
office.
Where an office is duly abolished by the
legislature or the people, it ceases to exist and the
incumbent is no longer entitled to exercise the
functions thereof, or to claim compensation for so
doing, unless he is under contract with the state so as
to come within the protection of the constitutional
inhibition against impairment of the obligation of
contract. Since a de jure office is generally essential to
the existence of a de facto officer, persons cannot act
as de facto officers of an office which has been
abolished."
13. H. Eliot Kaplan writes in his book entitled The Law of
Civil Service at p. 214-15 thus:
"8. „Good Faith' in Abolition of Positions.--There, of
course, is no vested right to employment in the public
service. The notion, much too prevalent, that any one
who has been appointed after a competitive
examination is entitled to be retained in the service is
erroneous. Where there is any reasonable justification
for eliminating positions in the public service, even
where such abolition of positions may be subject to
judicial review, the inclination of the courts is not to
interfere, avoiding substitution of judicial wisdom or
judgment for that of the administrator.
A position is not lawfully abolished solely
because it has been left vacant for a short period of
time and subsequently filled by another appointee than
the one laid off and entitled to re-employment.
Good faith of a head of department in
abolishing a position on alleged grounds of economy
has often been challenged. Most courts have held that
the issue of good faith on the part of an administrative
official is one of law solely for the court to pass on,
and not an issue of fact which may be submitted to a
jury for determination. The jury may determine the
facts, which the court in turn may find as a matter of
law constitute bad faith; but a verdict by a jury that a
department head had acted in bad faith in abolishing a
position was set aside as a conclusion of law, and not
properly finding of fact. What constitutes bad faith as
a matter of law in abolishing positions must be
determined by the precise facts in each case. As a
general rule, where positions are purported to be
eliminated and incumbents laid off, and thereafter
identical or similar positions are re-established and
the positions filled by others not entitled under the civil
service law and rules to such employments, the courts
will not hesitate to order re-employment of the laid-off
employees.‖
*****
19. We shall next examine the argument based on Article
311(2) of the Constitution. We have already seen in
the Fertilizer Corporation Kamgar Union case [(1981) 1
SCC 568 : AIR 1981 SC 344 : (1981) 2 SCR 52 : (1981) 1
LLJ 193 : 1980 Lab 1C 1367]2 the observation to the effect:
―Even under Article 311 of the Constitution, the right to
continue in service falls with the abolition of the post in
which the person is working.‖ It is said that the ―act of
removing a person from a chair is different from the act of
removal of the chair itself‖ although the incumbent loses the
chair in both the cases. Since it is strenuously urged before us
that there is some amount of contradiction in some of the
rulings of this Court, we shall review the legal position to the
extent necessary before reaching our own conclusion on the
question.
*****
22. While the doctrine of pleasure incorporated in Article
310 cannot be controlled by any legislation, the exercise of
that power by the President or the Governor, as the case may
be, is however made subject to the other provisions of the
Constitution, one of them being Article 311, which is not
made subject to any other provision of the Constitution and is
paramount in the field occupied by it. The contention urged
before us is that every kind of termination of employment
under Government would attract Article 311(2) of the
Constitution and a termination on the abolition of the post
cannot be an exception. While construing Article 311(2) of
the Constitution, as it stood then, in Parshotam Lal
Dhingra v. Union of India [AIR 1958 SC 36 : 1958 SCR
828, 841 : 1958 SCJ 217; (1958) 1 LLJ 544] Das, C.J.
observed:
"... The Government cannot terminate his service
unless it is entitled to do so (1) by virtue of a special
term of the contract of employment, e.g., by giving the
requisite notice provided by the contract or (2) by the
rules governing the conditions of his service, e.g., on
attainment of the age of superannuation prescribed by
the rules, or on the fulfilment of the conditions for
compulsory retirement or, subject to certain
safeguards, on the abolition of the post or on being
found guilty, after a proper enquiry on notice to him,
Fertilizer Corporation Kamgar Union v U.O.I.
of misconduct, negligence, inefficiency or any other
disqualification...."
(emphasis supplied)
23. Again at SCR pp. 857-58 in the same judgment, the
learned Chief Justice observed:
"The foregoing conclusion, however, does not solve
the entire problem, for it has yet to be ascertained as to
when an order for the termination of service is inflicted
as and by way of punishment and when it is not. It has
already been said that where a person is appointed
substantively to a permanent post in Government
service, he normally acquires a right to hold the post
until under the rules, he attains the age of
superannuation or is compulsorily retired and in the
absence of a contract, express or implied, or a service
rule, he cannot be turned out of his post unless the post
itself is abolished or unless he is guilty of misconduct,
negligence, inefficiency or other disqualifications and
appropriate proceedings are taken under the service
rules read with Article 311(2)....‖
(emphasis supplied)
24. It may be mentioned here that the words ―subject to
certain safeguards‖ found in the earlier extract are not used
with reference to abolition of posts in the above extract. ...
*****
26. The majority judgment in this case, however, observed
that a government servant on being appointed to a post
permanently acquired a right to hold the post under the Rules
until he attained the age of superannuation or was
compulsorily retired or was found guilty of an act of
misconduct in accordance with Article 311(2). It disapproved
the statement found in Parshotam Lal Dhingra case [AIR
1958 SC 36 : 1958 SCR 828, 841 : 1958 SCJ 217; (1958) 1
LLJ 544] at SCR pp. 857-58 to the extent it recognised the
removal of a permanent government servant under a contract
express or implied or a service rule. After referring to one
passage at SCR p. 841 and another at SCR p. 843
in Parshotam Lal Dhingra case [AIR 1958 SC 36 : 1958
SCR 828, 841 : 1958 SCJ 217; (1958) 1 LLJ 544]
Gajendragadkar, J. (as he then was), who delivered the
majority judgment in Moti Ram Deka case [AIR 1964 SC
600 : (1964) 5 SCR 683 : (1964) 2 LLJ 467] observed at
SCR p. 718-19 thus:
"Reading these two observations together, there can be
no doubt that with the exception of appointments held
under special contract, the Court took the view that
wherever a civil servant was appointed to a permanent
post substantively, he had a right to hold that post until
he reached the age of superannuation or was
compulsorily retired, or the post was abolished. In all
other cases, if the services of the said servant were
terminated, they would have to be in conformity with
the provisions of Article 311(2), because termination
in such cases amounts to removal. The two statements
of the law to which we have just referred do not leave
any room for doubt on this point."
(emphasis supplied)
27. It may be noticed that removal of a government
servant from a post on its abolition is recognised in the above
passage as a circumstance not attracting Article 311(2) of the
Constitution."
(Italics supplied; underscored words emphasised in original)
47. Paras 50 and 59 of Avas Vikas Sansthan v. Avas Vikas
Sansthan Engineers Assn3 say much the same thing, thus:
"50. It is settled law that the power to abolish any civil post
is inherent in every sovereign Government and such abolition
will not entail any right on the person holding the abolished
post the right to re-employment or to hold the same post. In
the present case, the State Government was benevolent
enough to float a scheme to absorb such employees whose
posts were abolished. Therefore, in our opinion, the
arguments advanced by the counsel for the respondents with
regard to unfairness meted out to the employees of the Avas
Vikas Sansthan hold no water.
(2006) 4 SCC 132
Power to abolish posts as a measure of economy
59. It is well settled that the power to abolish a post which
may result in the holder thereof ceasing to be a government
servant has got to be recognised. The measure of economy
and the need for streamlining the administration to make it
more efficient may induce any State Government to make
alterations in the staffing pattern of the civil services
necessitating either the increase or the decrease in the
number of posts or abolish the post. In such an event, a
department which was abolished or abandoned wholly or
partially for want of funds, the court cannot, by a writ of
mandamus, direct the employer to continue employing such
employees as have been dislodged."
48. In the instant case, the exercise of absorption was not limited to
the post held by the petitioner, but covered as many as 131 posts. A
conscious decision, at every level, approved of till the Hon‟ble
Governor of U. P., was taken, to scale down the staff-strength of the
first respondent, from the pre-existing 273, to 142. The possibility of
being laid off, consequent on down scaling of the strength of an
organisation, remains one of the inglorious uncertainties of
employment, for which, in the absence of any taint, colouring the
decision, there is, really, no judicial remedy.
49. Ubi jus, no doubt, ibi remedium; however, with the abolition of
a post, the right to hold the said post, as vested in the holder thereof,
ceases. The cessation of the right extinguishes, in its inevitable wake,
the remedy as well.
50. Courts are required, as a matter of practice and propriety, to
accord deference to the discretion, vested in the organisation
concerned, to reduce its staff-strength so as to maintain optimum
efficiency and tide over financial stringencies. I am unable, in the
facts of this case, to return any finding that the decision, to terminate
the services of the petitioner, as a consequence to abolition of the post
of Regional Manager, treating the said post as having become
surplus, is vitiated, in any manner, either on account of want of good
faith, or for any other reason. A conjoint reading of the various
communications, starting from the report of the six-member
Committee, and culminating in the conveying of the approval,
accorded by the Honourable Governor of U. P., to downsizing of the
staff-strength of the first respondent corporation to 142, clearly
defeats any possibility of interference, therewith. It is not as though
the petitioner‟s post, alone, was abolished, or that, having removed the
petitioner, the post continued to exist, or that any further recruitments,
to the said post, had been made. The petitioner has, no doubt, sought
to establish, by reference to facts and figures, that there was no
necessity to establish the post of Regional Manager in the Export
Division of the first respondent. Reference has also been invited to
communications, by two of the members of the six-member
Committee, to the effect that no conscious decision, to abolish the
post of Regional Manager, was taken. It is trite, however, that, though
man may prevaricate, documents do not. In the face of the
communications, referred to in para 41 supra, the decision to reduce
the staff-strength of the first respondent-Corporation to 142, is
unmistakable. Equally unmistakable is the fact that the post of
Regional Manager, occupied by the petitioner, was not one of the said
142 posts. The sequitur is inevitable. The petitioner, being the holder
of a post which, for valid reasons, was abolished, cannot maintain any
right to continue holding the post.
51. The termination of the petitioner‟s services, by the impugned
Order dated 15th September, 2001, on the ground that the post of
Regional Manager stood abolished does not, therefore, merit
interference, by this Court, in exercise of the power of judicial review,
vested in it by Article 226 of the Constitution of India. The challenge,
by the petitioner, to the said order, dated 15th September, 2001 has,
therefore, necessarily to fail.
Impugned charge-sheets No. 6474 and 6475 dated 20th January, 2001
and 6942 dated 16th February, 2001
52. Charge-sheets No. 6474 and 6475, dated 20th January, 2001 and
6942, dated 16th February, 2001 have culminated in the three orders,
dated 3rd April, 2002, to which reference already stands made of in
para 37 ibid. This Court had, in its order dated 6 th March, 2017,
specifically observed that, if the charge-sheets had culminated in
orders, passed by the disciplinary authority, the challenge to the
charge-sheets would not survive, and the petitioner would, if so
advised, have to challenge the orders passed by the disciplinary
authority. No challenge has, however, been ventilated, by the
petitioner, to the three orders dated 3rd April, 2002. Though certain
grievances, regarding the said orders, have been made, by the
petitioner, in his affidavit, filed on 9th May, 2017, grievances in an
affidavit cannot substitute a substantive challenge.
53. In any event, with the passing of the aforesaid three orders,
dated 3rd April, 2002, the prayers, in the writ petition, to the extent
they are directed against the charge-sheets No. 6474 dated 20th
January, 2001, 6475 dated 20th January, 2001, 6942 dated 16th
February, 2001, do not survive for adjudication. No orders are,
therefore, required to be passed on the said prayers, which have been
rendered infructuous.
Memos No. 6468, dated 20th January, 2001 and 7071, dated 3rd March,
54. The Memo No. 6468, dated 20th January, 2001, required the
petitioner to give his explanation "on the following" within seven
days, "relating to unauthorised travel in the year 2000 for Gems and
Jewellery Exhibition":
"(1) Why did you undertake foreign travel without the prior
approval of the U. P. Govt., and why did you draw the
expenses on it from the Corporation.
(2) Please deposit back the advance drawn in this
connection with Corporation.
(3) Please explain why greater punishment should not be
given to you under the disciplinary action for violation of
rules in travelling abroad without the approval of the
Government."
55. Memo No. 7071, dated 3rd March, 2001, referred to the
following eight TA bills, submitted by the petitioner:
S. Travel Period Travel details Amount
No. (₹)
1 13-10-96 to 20-10- Delhi to Singapore 96,248
2 29-1-97 to 7-2-97 Delhi to Muscat 1,07,642
3 22-3-97 to 8-4-97 Delhi to Kuwait 1,80,189
4 26-11-94 to 1-12- Delhi to Doha to 41,935
94 Dubai
5 26-3-95 to 7-4-95 Delhi/Doha/Dubai 1,00,200
6 26-4-95 to 5-5-95 Delhi/Berlin/London 1,00,472
7 15-1-96 to 25-1-96 Delhi/Muscat 1,18,222
8 13-2-96 to 28-2-96 Delhi, Doha, Dubai 1,35,944
With respect to these trips, undertaken by the petitioner, the Memo
queried, of the petitioner, as to the delay in submission, by him, of the
T. A. Bills, and sought his explanation for the following alleged
irregularities, in the aforementioned foreign journeys:
"1. Why were the illegal journeys performed by you in the
absence of permission from the Government.
2. Why you are the expenses incurred on the journeys.
3. Why should the disciplinary action against you not be
taken for the foreign travel undertaken by you without the
permission of the Government."
The Memo further purported to intimate the petitioner that, besides
the above, the Chief Auditor General had raised objections for the
daily allowance drawn, by the petitioner, allegedly in excess of the
allowance due for Government Officers, for foreign journeys
undertaken in the month of November, 1996, to the tune of ₹
4,87,096/-.
56. In the affidavit, filed by the first respondent-Corporation, before
this Court on 9th May, 2017, in compliance with the directions
contained in the order, dated 6th March, 2017th supra, passed by this
Court in the present proceedings, it has been averred that the Memo
No. 7071, dated 3rd March, 2001, stood decided vide the
communication dated 20th October, 2009 supra. A reading of the
communication dated 20th October, 2009, however, reveals that the
communication purports to be a response to an earlier letter, dated 3rd
August, 2009, from the petitioner, for passing of the T. A. Bills, raised
by the petitioner with respect to foreign tours undertaken by him,
which were pending clearance. The communication states that the
petitioner had provided photocopies of only nine foreign travel bills,
which did not contain photocopies of the rear side of the said bills.
Even so, it was averred, a three-member committee, of senior officers
of the first respondent corporation, was constituted, to look into the
said bills, and that, consequent to pre-audit of the bills, as directed by
the said committee, the petitioner was found entitled to an amount of
₹ 4,26,058.50, as against the amount of ₹ 931,749.35 claimed by him.
As ₹ 899,394.76 was, allegedly, recoverable from the petitioner, the
communication, dated 20th October, 2009, directed recovery, from the
petitioner, of the differential amount of ₹ 4,73,336.26.
57. It appears, ex facie, that the aforesaid communication, dated
20th October, 2009, purported to decide the TA claims of the
petitioner, regarding all earlier foreign trips undertaken by him. This
impression is underscored by the representation, dated 12 th November,
2009, addressed, by the petitioner, to the M. D., of the first
respondent-Corporation, by way of response to the aforesaid order
dated 20th October, 2009. Vide the said representation, the petitioner
asserted that the proposed demand, of ₹ 4,73,336.26, from him, was
without justification. Accordingly, the petitioner reiterated his claims
for adjustment of his earlier T. A. bills. The petitioner submits that,
thereafter, vide letter dated 24th December, 2010, addressed, to him,
by the Finance Controller, U. P. Handicrafts Development and
Marketing Corporation Ltd (the first respondent-Corporation,
rechristened), the petitioner was requested to attend a meeting, in the
office of the Principal Secretary, Small Scale Industries and Export
Promotion, Government of U. P., At Lucknow, with reference to the
petitioner‟s aforesaid communication dated 12th November, 2009.
58. The record does not disclose that the matter proceeded, beyond
this point. The petitioner, in his affidavit, avers that the meeting, in the
office of the Principal Secretary, Small Scale Industries and Export
Promotion, Government of U. P. did, indeed, take place on 20 th
December, 2010, whereafter the petitioner addressed yet another
representation, dated 14th January, 2011, to settle his old TA Bills, but
that nothing happened thereafter.
59. Though the first respondent filed his affidavit, in compliance
with the directions contained in the order, dated 6 th March, 2017, of
this Court, on 9th May, 2017, the affidavit makes no reference to any
proceeding, by the first respondent, against the petitioner, vis-à-vis the
demand of ₹ 4,73,336.26, as raised by the communication dated 20 th
October, 2009 supra.
60. I am, in the circumstances, inclined to believe that the first
respondent has accepted the representation, dated 12th November,
2009, submitted by the petitioner by way of response to the
communication, dated 20th October, 2009. At this juncture in time, no
useful purpose would be served, in my view, in allowing the first
respondent to proceed to recover, from the petitioner, the amount of ₹
4,73,336.26, as demanded vide the communication dated 20th October,
2009 supra.
61. The Show Cause Notice No. 6468, dated 20th January, 2001,
and the Memo No. 7071, dated 3rd March, 2001 have, therefore, been
rendered unenforceable, and are, therefore, quashed as such.
Re. impugned Office Order dated 8th November, 2000
62. The record reveals that, on 17th July, 2000, a copy of the Audit
Report, relating to the period during which the petitioner was posted
as In charge, Gangotri, New Delhi, which reported gross financial
irregularities, resulting in financial loss suffered the first respondent,
had been sent, to the petitioner, under cover of letter No.
FIN/VAR/2831, dated 17th July, 2000. Following this, vide
communication No FIN/VAR/3514/15, dated 17th August, 2000,
addressed by the MD of the first respondent corporation, the petitioner
was informed that, till the recouping of the aforesaid financial loss, a
sum of ₹ 4350/- would be deducted from his salary.
63. The petitioner represented, against the said communication
dated 17th August, 2000, vide his representation dated 19th August,
2000, addressed to the MD of the first respondent corporation. The
petitioner specifically challenged the correctness of the findings of the
internal audit team, on the basis whereof the communication dated
17th August, 2000, had been issued. Further, the petitioner submitted,
no loss had ensued, to the first respondent corporation, as a result of
any act committed by the petitioner. The propriety of the manner in
which the audit team had acted was also specifically impugned.
64. Consequent on the submission, by the petitioner, of the said
representation, dated 19th August, 2000, the implementation of the
Office Order, dated 17th August 2000, was postponed (the vernacular
expression used in the Office Order is "sthagit‖), vide Office Order
dated 23rd August, 2000. At the very least, this decision would give
rise to a legitimate expectation, in the mind of the petitioner, that the
first respondent had found some merit in his representation, dated 19th
August, 2000.
65. Thereafter, by the impugned communication, dated 8 th
November, 2000, the Office Order, dated 23rd August, 2000, was
cancelled, and the direction for recovery, from the petitioner salary, of
₹ 4,350/-, per month, was resumed.
66. It is not in dispute that, before issuance of the communication,
dated 8th November, 2000, whereby the Office Order, dated 23rd
August, 2000, which was, unquestionably, beneficial to the petitioner,
was withdrawn, and recoveries, from the petitioner salary, were
resumed, no opportunity of hearing, or the courtesy of any prior
written communication, was afforded to the petitioner. In my opinion,
the Office Order, dated 23rd August, 2000, gave rise, at the very least,
to a legitimate expectation, in the mind of the petitioner, that his
representation, dated 19th August, 2000, had been found to be
meritorious. If, therefore, the first respondent decided to cancel the
Office Order dated 23rd August, 2000, and revive the decision to
recover, from the petitioner‟s salary, ₹ 4350/- per month, the
petitioner ought to have been heard prior thereto. The Office Order,
dated 8th November, 2000, resulted in civil consequences to the
petitioner, and it is axiomatic, in law, that a decision, which results in
civil consequences to the citizen, has to be preceded by true and
explicit compliance with the principles of natural justice and fair play.
67. In the circumstances, I am of the opinion that the Office Order
No. 5405, dated 8th November, 2000, having been issued in violation
of the principles of natural justice, cannot sustain. Any monies,
recovered from the petitioner, consequent on the passing of the said
Office Order would, therefore, necessarily have to be returned to the
petitioner. Needless to say, however, this would not impede the first
respondent from reviving the order for recovery, from the petitioner‟s
salary, if permissible in law. Prior thereto, however, the petitioner
would have to be issued due notice, and granted an adequate
opportunity of hearing.
Conclusion
68. Resultantly, this writ petition is disposed of in the following
terms:
(i) Order No. MD/Surplus/2447, dated 15th September,
2001, terminating the services of the petitioner, consequent on
the abolition of the post of Regional Manager, occupied by him,
is upheld.
(ii) The challenge, to the Orders, dated 2nd November, 2000,
transferring the petitioner to Bhadohi, has been rendered
infructuous, and the prayer, to that extent, in the writ petition is,
therefore, disposed of as such.
(iii) Memo No. 6468, dated 20th January, 2001 and Memo No.
7071, dated 3rd March, 2001, are quashed and set aside.
(iv) Charge Sheets No. 6474 and 6475, dated 20th January,
2001 and 6942, dated 16th February, 2001, do not survive for
adjudication. The prayers for quashing of these charges are,
therefore, rendered infructuous and are disposed of as such.
(v) Office Order No FIN/VAR/5405, dated 8th November,
2000, is quashed and set aside. Subject to the liberty reserved in
para 67 supra, any amounts, recovered from the petitioner
consequent on the passing of the said Office Order shall be
returned, to the petitioner, forthwith.
69. No costs.
C. HARI SHANKAR, J.
FEBRUARY 10, 2020
dsn/HJ
