Delhi High Court
Surender Singh Hooda vs Union Of India And Ors on 25 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 08, 2022
Pronounced on: July 25, 2022
+ W.P.(C) 7382/2012
SURENDER SINGH HOODA ..... Petitioner
Through: In person with Mr. Narender Hooda,
Senior Advocate with Mr. Ishan Jain,
Advocate
Versus
UNION OF INDIA AND ORS. .... Respondents
Through: Mr. Apoorv Kurup, CGSC with
Mr. Ojaswa Pathak, Ms. Nidhi Mittal
& Ms. Aparna Arun, Advocates for
R-1/UOI
Mr. Hemendra Singh, Deputy
Commandant (Law) BSF for
respondents
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SURESH KUMAR KAIT, J
1. The petitioner claims to have joined services of Border Security Force
(BSF) in the rank of Assistant Commandant on 10.12.1991. He was serving
as Second in Command as on 16.09.2006, with Department of Personnel and
Training (DoPT), Ministry of Personnel, Public Grievances and Pensions,
sought nominations from Government department‟s Class-I Officers, having
minimum 07 years of service and below 50 years of age for the post of
fourth Post Graduate Diploma in Public Policy and Management (PGDPPM)
at MDI, Gurgaon for the academic year 2009-11. In pursuance to the
aforesaid, BSF called for nominations from its establishments and; petitioner
claims to have applied for it through proper channel; was selected for
PGDPPM to be conducted at Management Development Institute (MDI),
Gurgaon w.e.f. 07.12.2009, furnished requisite bond and the PGDPPM
commenced on 16.12.2009.
2. According to petitioner, subsequent upon joining the PGDPPM, he
and other participants were informed that the venue of international module
was shifted from George Mason University, USA to Sciences PO
University, Paris by MDI, Gurgaon with the approval of DoPT, which was
objected to by the petitioner vide protest letter dated 19.10.2010, as in the
advertisement as well as the bond, it was specifically mentioned that the
international module will be held at George Mason University, USA. The
petitioner further claims to have completed his training at MDI, Gurgaon
and international module of six weeks duration at Science PO University,
Paris; and he reported back to his work on 01.01.2011. Petitioner claims to
have been supposedly granted nine months at his work place for completing
his dissertation, however, he got posted in the extremely hard area of Gurez
Sector in Bindapur district of Jammu and Kashmir. Petitioner further claims
that his telephonic request for his posting at BSF, Headquarters, Delhi or
some other establishment of BSF for nine months to enable him to complete
his dissertation to successfully complete his PGDPPM, was declined by IG,
Training. Thereafter, petitioner claims to have applied for voluntary
retirement due to domestic reasons.
3. Petitioner claims to have made a representation dated 19.12.2011 to
the then Hon‟ble Home Minister for waiving off his liabilities of bond
furnished at the time of joining PGDPPM, as he was not granted time for
writing his dissertation due to hard posting and also because the conditions
to complete the course were changed due to change in venue of international
module without any prior intimation. However, he was telephonically
informed by the Commandant (Pers) that his case for voluntary retirement
will be processed only if he furnishes undertaking for deducting the dues
arising out of bond from his terminal benefits and so, he furnished
undertaking dated 23.07.2012 in the requisite format. Thereafter, an office
Order dated 07.09.2012 was issued by the Ministry of Home Affairs
accepting petitioner‟s request for voluntary retirement w.e.f. 31.07.2012,
however, it was directed that the whole expenditure incurred on him for
undergoing PGDPPM with interest, barring the period he was not offered
opportunity for completing his dissertation, be recovered from his due
entitlements.
4. Petitioner also claims to have written a letter dated 20.10.2012 to the
Director General, BSF for release of his admissible benefits. However, in
terms of impugned order dated 07.09.2012, his pensionary benefits have
been withheld for recovery of expenditure incurred on petitioner for
undergoing PGDPPM at Management Development Institute, Gurgaon.
5. In the aforesaid background of facts asserted by the petitioner, the
present petition has been filed seeking a direction to respondent No.3 in the
nature of mandamus to release his retiral benefits without any deduction in
terms of impugned order/letter dated 07.09.2012. In addition, quashing of
impugned order/letter dated 22/25/2012/Pers/BSF/57976-58022 dated
07.09.2012 itself is also sought.
6. During the course of arguments, leaned senior counsel for petitioner
submitted that the petitioner had joined the course primarily for the reasons
that the international module of the course was to be held at George Mason
University, USA, however, the same was shifted to Sciences PO University,
Paris, whereas as per the advertisement as well as the bond, it had to be
George Mason University, USA only. He submitted that PGDPPM was a
twenty one month programme, which included one year institutional training
at MDI, Gurgaon and the remaining nine months was for completion of
dissertation, whereas, the petitioner completed international module of six
weeks duration at Science PO University, Paris and thereafter, he had to
report back to his work place on 01.01.2011 having been deployed in
extremely hard area of Gurez Sector in Bandipur District of Jammu and
Kashmir. It is pleaded on behalf of petitioner that respondent No.3 was
supposed to provide period of nine months to petitioner for completing the
dissertation, however, he was given charge of Commandant in an extremely
hard area and even his request for posting at BSF headquarters to enable him
to complete his dissertation was declined by the IG Training. It was
empathetically submitted by learned senior counsel that instead of posting
the petitioner at a suitable place to enable him to complete his dissertation,
he was posted in extremely hard area, requiring round the clock duty with
utmost responsibility. Even his requests to the IG, Training and the then
Hon‟ble Home Minister of India were not considered and therefore, the,
respondents are solely responsible for not allowing the petitioner to
complete his dissertation and diploma; and wastage of precious one year of
petitioner‟s career. Learned senior counsel submitted that besides petitioner,
other officer from BSF, namely, Shri Y.D. Vashisht, Commandant, was also
not able to complete the dissertation and diploma due to non-availability of
time.
7. Learned senior counsel next submitted that petitioner‟s application for
voluntary retirement was accepted and he was relieved from service on
13.09.2012 (afternoon), however, his retiral dues were not released despite
his letter dated 20.12.2012. Even vide order dated 19.03.2013, this Court
had directed the respondents to release the terminal benefits of petitioner
within two weeks, however, in violation thereof, the respondents released
Rs.20,66,214.00 on 06.06.2014 and other terminal benefits of Rs.63,012/- on
21.01.2014; Rs.36,796/- on 25.04.2013 and Rs.420/- on 06.05.2013, causing
huge loss to the petitioner in respect of utilisation of said terminal benefits.
It was submitted that though the pension of petitioner has also been restored
in April, 2014, but the respondents had no right to recover the bond amount,
especially when no such demand was raised by the respondents. Further
submitted that the retiral dues to the tune of Rs.39,02,427/- were lying with
the respondents which were released belatedly, still interest amount to the
tune of Rs. 3,20,303/- has been charged. Thus, it was submitted by learned
senior counsel for the petitioner that for the own lapse of respondents for not
letting petitioner complete his PGDPPM, recovery of expenditure incurred
on his undergoing PGDPPM at Management Development Institute,
Gurgaon, is bad in law. Reliance was placed upon Supreme Court‟s decision
in Gorakpur University Vs. Shitla Prasad Nagendra (2001) 6 SCC 591 has
awarded 18% interest for withholding and delayed payment on terminal
benefits.
8. To the contrary, the present petition was strongly opposed by learned
Central Government Standing Counsel (CGSC) appearing on behalf of the
respondent on the ground that the recoveries made from the petitioner are as
per rules, which do not call for any interference by this Court.
9. Learned CGSC submitted that for the PGDPPM at MDI Gurgaon, the
officers were nominated subject to certain terms and conditions, which
specified that it was a residential programme; included international module
of six weeks and in the second year, the officers would return to their
departments but continue to work on dissertation in consultation with the
assigned faculty. For the entire period of course, the officers were treated on
duty and their pay and allowances as well as travelling expenses to Gurgaon
and back were borne by the Department/Ministry/State Government for
which they were deputed. Also, lodging expenses were borne by the
sponsoring organization and that the DoPT bore all expenses for travel to
USA and back. It was submitted by learned CGSC that in lieu of above, the
officers were required to execute a bond that in the event of officers failing
to resume duty, resigning or retiring, or quitting the service anytime within
five years from return to the duties, the officers shall pay the entire amount
with interest thereon to the authorities concerned. Learned CGSC submitted
that petitioner had submitted his willingness and bond for the aforesaid
course.
10. Learned CGSC submitted that the final choice of international
institution was joint by DoPT and MDI, Gurgaon and shifting of venue of
the course was an administrative decision and that the petitioner interfered
by sending a direct mail to George Mason University, USA on his own for
arranging a visit of participants without knowledge of MDI, Gurgaon, due to
which he was issued a warning letter dated 19.06.2011. Further submitted
that the petitioner had to complete his dissertation in 09 months while being
at his work place, however, he failed to do so. It was urged that no request
citing difficulty in completing the dissertation or extension of time was
made by the petitioner to the respondent and in the terms and conditions, it
was nowhere specified that suitable posting was necessarily to be provided
by the respondents to enable the participants to complete their dissertation.
11. Learned CGSC also brought to the notice of this Court that prior to
making a representation dated 19.12.2011 to the Hon‟ble Home Minister for
waiving off his liabilities of bond furnished at the time of joining PGDPPM,
the petitioner had made a representation dated 25.02.2011 before the
Director General, BSF, which was examined and rejected being devoid of
merit. The petitioner had thereafter filed an application dated 09.07.2012
seeking voluntary retirement on the ground that he had compelling
circumstances at his home.
12. Thereafter, his representation dated 19.12.2011 to the Hon‟ble Home
Minister was decided vide letter dated 07.09.2012 whereunder petitioner‟s
request for voluntary retirement was accepted, however, it was directed that
the whole expenditure incurred on him for undergoing diploma such as pay
and allowances; leave salary; cost of fee, travelling and other expenses, cost
of international travel and cost of training abroad met by the department;
together with interest, barring the period for which he was not offered the
opportunity for completing his dissertation, was directed to be recovered
from his due entitlements. The petitioner stood relieved from service on
13.09.2012 (afternoon).
13. Learned CGSC for respondent also submitted that petitioner had filed
representation for voluntary retirement on 10.12.2011 citing family reasons
and prayed for acceptance of his voluntary retirement w.e.f. 31.07.2012.
Petitioner also sent a reminder dated 27.06.2012 seeking expedition of his
voluntary retirement and gave an undertaking that all dues arising out of
liabilities furnished under the bond at the time of undergoing the subject
course, be deducted from his retiral dues.
14. According to respondents, in terms of letter dated 07.09.2012, the
whole expenditure incurred on petitioner for undergoing PGDPPM
including pay and allowances, leave salary, travelling expenses both
domestic and international etc., barring dissertation period, has to be
recovered from his entitlements and so, from the proposed recoveries arising
out of bond dated 27.11.2009, the period of dissertation was barred. Further
submitted that the petitioner had made various representations only for the
waiver of liability, however, no request for extension of time to submit
dissertation or for his posting to any other place where he could devote his
time on dissertation, was made. It is urged that the petitioner was infact
never willing to complete his dissertation but was willing to take voluntary
retirement to pursue the legal profession. Thus, dismissal of the present
petition is sought by the respondents.
15. In rebuttal, learned senior counsel for petitioner submitted that
petitioner was not allowed to complete his dissertation and for this reason he
could not complete his diploma and for the fault of respondents, petitioner
cannot be held liable and, therefore, impugned recoveries are bad in law.
Further, submitted that the respondent in the impugned order has admitted
that the petitioner was not offered opportunity to complete his dissertation.
Accordingly, the respondent instead of exempting from the liabilities of the
bond with regard to dissertation period, has issued order no. 16/civil/Trg/4th
PGMDI/Il/BSF113491-94 dated 21.11.2012 for recovery of full amount.
Also, the respondents have included the amount of Rs. 90,562l- as cost of
accommodation at MDI Gurgaon; have not deducted the income tax paid by
the petitioner on the salary drawn by him during the period of one year and
also levied interest @ 10% p.a. in gross violation of terms and conditions of
the bond, whereas the respondents could only recover the interest from the
date of demand as per the terms and conditions of the bond. Hence, it is
urged that the present petition be allowed and respondent No.3 be directed to
release the complete retiral benefits along with interest, without making any
deductions under the bond furnished by the petitioner.
16. The arguments advanced by both the sides were heard and have been
considered in the light of material placed before this Court.
17. The petitioner had applied and was selected to undergo Post Graduate
Diploma in Public Policy and Management at MDI, Gurgaon for the
academic year 2009-11 from George Mason University, USA for a period of
one year and nine months and had submitted the requisite bond dated
28.11.2009; accepting the terms and conditions implied therefor. However,
the venue of international module got shifted to Sciences PO University,
Paris, which was resisted to by the petitioner vide letter dated 19.10.2010,
however, the same is an administrative decision and nothing had stopped the
petitioner to deny to undergo the course/ training if at all he was totally
unwilling to join it from a university of Paris.
18. We have gone through the document/letter dated 21.02.2011 written
by MDI, Gurgaon to the DG, Training BSF informing that the petitioner had
contacted with the George Mason University, USA to visit along with the
participants, directly/ bypassing the procedure, for which an Explanation
vide letter dated 08.03.2011 was sought from the petitioner. The petitioner
in his explanation had admitted having communicated the George Mason
University, USA and was therefore, warned not resort to any unauthorized
communication. The courses or diplomas for higher education under
renowned universities are provided to the eligible officers of the force to
enhance their skills and personality for their benefit as well as that of the
organization. The conduct of the petitioner to over reach the George Mason
University, USA has been highly deprecated by the BSF.
19. The petitioner had joined the course on 16.12.2009 and completed the
training at MDI, Gurgaon and international module of six weeks duration at
Science PO University, Paris and thereby, completed one year. It is not
disputed by the petitioner that the fee of the course, including the cost of
international travel and domestic travel, pay and allowances during the
training period, residential accommodation and other allowance in
connection thereto, were borne by the DoPT; respective cadre of controlling
authority in the Government of India; the sponsoring organization. In terms
of bond furnished by the petitioner, in the event of failure on the part of
official to complete the course or leave the programme or quitting the
service, the sum together with the interest has to be paid by the official to
the Government. As per the advertisement and terms and conditions
stipulated for the programme, the petitioner was supposed to complete his
dissertation from the place of work within a period of next nine months.
However, the petitioner did not complete the dissertation. The petitioner has
pleaded that he got posted in the extremely hard area of Gurez Sector in
Bindapur district of Jammu and Kashmir, requiring round the clock duty
with utmost responsibility and therefore, could not complete dissertation
within nine months. It cannot be lost sight of the fact that being a
Commandant and having been posted on a tough posting, the petitioner
rightly would not have got time to complete the dissertation; but again
petitioner has not placed on record any document / communication to show
his bona fide that he had requested the authorities to place him at a soft
posting where he could complete his dissertation. Petitioner‟s plea that it
was the duty of BSF officials to provide him free time of 09 months for
devoting time to complete dissertation, does not appeal to this Court as it
was made clear in terms of the conditions of the bond that the officials shall
complete dissertation at their work place.
20. This Court has also gone through the copies of communication/
representation made by the petitioner to the authorities concerned but the
only plea raised therein is to waive off the liabilities of bond, and nowhere
on record request is made to transfer him at a suitable place or to grant
further time to complete the dissertation. One of his representation dated
19.12.2011 was to the then Hon‟ble Home Minister wherein the petitioner
had raised objections in Paras-(aa) and (bb) with regard to change of venue
of the course and providing of visa for US. Additionally, the petitioner has
also raised objection with regard to the contents of the course calling it
routine management subjects and relevant only to policy making and
functioning of Government departments and not of any help or benefit of the
BSF. It seems the petitioner had joined the „Post Graduate Course in Public
Policy and Management‟ with the intention to have exposure to a University
in USA and first, he lost the interest due to change of venue from USA to
Paris and thereafter, the contents of the course did not appeal him and
thereby, he turned indifferent to complete the dissertation.
21. Moreover, in the afore-said representation dated 19.12.2011 the
petitioner has also contended that he is willing to join legal profession,
which is his passion; and in another representation/ communication dated
28.06.2012, the petitioner has sought voluntary retirement citing personal
reasons and requirement of his presence with his family. This further shows
that the petitioner had lost interest in his job and was willing to quit his
official responsibilities at the earliest and in haste, vide communication
dated 27.06.2012, petitioner even undertook to pay off the outstanding dues
towards the subject course, barring the period he could not complete his
dissertation.
22. The aforesaid representation dated 19.12.2011 was decided by the
Ministry of Home Affairs vide communication dated 07.09.2012 while
holding as under:-
"2. Shri Surinder Singh Hooda, Commandant will
thus retire w.e.f. 31.07.2012 or from the date of his
release, whichever later. The officer would be entitled
to pension and other benefits as admissible under
Rule-49 of CCS (Pension) Rules, 1972.
3. Outstanding dues, if any as well as all charges
and expenses i.e. whole expenditure incurred on him
for undergoing Post Graduate Programme in Public
Policy and Management (PGPPPM) at Management
Development Institute, Gurgaon or expended on his
account during training such as pay of international
travel and cost of training abroad met by the
government/agency concerned together with the
interest barring the period for which he was not
offered the opportunity for completing his
"Dissertation" may be recovered from his due
entitlements".
23. In our considered opinion, we find force in the stand taken by the
respondents that "A candidate who avails of study leave but takes no interest
to complete the course is and doesn't furnish the completion certificate to
that effect is doing a disservice to the organization" and, therefore, we are
not convinced with the plea of the petitioner that due to hard posting he
could not complete his dissertation in view of the fact that despite being a
person of prudent knowledge and holding an imperative designation, he did
not write even once for extension of time to write the dissertation, whereas
he had all the time to un-authoritatively communicate with the University of
USA on travel and visa issues, which is purely an administrative decision. It
was neither submitted by learned counsel for petitioner during the course of
arguments nor pleaded in the petition, that there was no provision for
extension of time to conclude the dissertation. On the other hand,
respondents have pleaded that no request/communication was made by the
petitioner seeking extension of time. Hence, the petitioner cannot be
absolved of his liability to pay the Government all charges and expenses,
which were incurred on account of his training such as pay and allowances,
leave salary, cost of fee of travelling and other expenses, cost of
international travel and cost of training abroad etc., as per rules.
24. On this aspect, reliance placed by petitioner‟s counsel upon decision
in Gorakhpur University (Supra) is of no help to the case of petitioner,
being distinguishable on facts. In the said case, the authorities had withheld
the retiral benefits of the petitioner therein towards recovery of amounts due
for overstay in official accommodation, however, accepted the normal rent
without raising demand for penal rent; the demand of penal interest was
raised after one year of vacating the accommodation and that too on the
basis of certain subsequent orders increasing the penal rate of interest. In
such circumstances, the Hon‟ble Supreme Court upheld the decision of High
Court for payment of PF and gratuity with interest @18%. Whereas in the
present case, the petitioner was fully aware of the terms and conditions of
joining the course/ training, which were duly mentioned in the
advertisement, circular as well as the bond and he had full knowledge of the
fact that in case of his failure to complete the course or leaving the job
within five years of completion of course, he will have to face the
consequences.
25. On the count what is due and payable by the petitioner, we find that
the petitioner had joined the subject course in the year 2009 and proceeded
on voluntary retirement on 13.09.2012. In terms of communication dated
21.11.2012 written by Ministry of Home Affairs to the Director, BSF;
deduction of Rs,.15,01,089/- with interest @10% per annum (Rs.3,.20,203/-)
has to be made from the retiral dues of petitioner. The aforesaid
communication dated 21.11.2012 reads as under:-
"3. XXXXX
The total expenditure incurred on account of subject training
programme by BSF, BPR&D and DoPT is as per Appendix "A" to
this letter and following details:-
(a) Paid by BSF
(i) Pay (From 16 Jan 2009 to 15 Dec 2010) Rs.2,19,376
(ii) TA (From 16 Dec 2009 to 15 Dec 2010) Rs.78, 478/-
(iii) Cost of travel from MDI Gurgaon to 27Bn BSF Rs.1,597/-
(b) Cost of Domestic Component of the programme
Paid by BPR & D Rs.2,87,500/-
(c) Paid by DoPT
(i) Cost of international components of the
Programme paid by DoPT (US $ 2300 X Rs.46.80
(exchange rate on 16.7.2020+1,07,640/- Rs.1,07,640/-
(ii) Per dien and lodguing charged during
International component of the programme
US $ 4113, i.e. 4113xR.44.356
(exchange rate on 19.10.2010 = Rs.1,82,436/-)
Rs.1,82,436/-
(iii) Air Fare for International component of the
Programme Rs.33,500/-
_____________
Grand Total Rs.15,01,089
Total recovery to be made = Rs.15,01,089 + interest @10%
per annum
26. This Court does not dispute the various heads shown in the
communication dated 21.11.2012 above and find that for the purpose of
calculation of pay and TA, the period considered is from 16.01.2009 till
15.12.2010; the petitioner had joined the PGDPPM at MDI, Gurgaon on
16.12.2009 and had reported to his work place on 01.01.2011; and so, the
period thereafter has rightly not been taken into consideration. However, on
recovery of interest component @10%, we find that the total retiral dues of
the petitioner were pending with the respondents; and only after the present
petition came up for hearing for the first time on 27.11.2012 and pursuant to
direction of this Court vide order dated 19.03.2013; that the respondents
released a sum of Rs.20,66,214.00 on 06.06.2014 and other terminal benefits
of Rs.63,012/- on 21.01.2014; Rs.36,796/- on 25.04.2013 and Rs.420/- on
06.05.2013. Even petitioner‟s pension has been restored only on 06.05.2013.
Thereby, petitioner has received his retiral benefits in piece-meal and has
suffered loss of interest. Moreover, the expenses incurred by the respondents
on the training programme were fixed and onetime expenses, without
continuous loss of interest and no prejudice would be caused to the
respondents if only the total expenditure incurred on the training of
petitioner is paid by the petitioner.
27. In view of the aforesaid, the impugned order / letter dated 22/25/2012/
Pers/BSF/57976-58022 dated 07.09.2012 is partly allowed to the extent that
the respondents are entitled to recover from petitioner only fixed expenses of
Rs.15,01,089/- towards the total expenditure incurred on training
programme but not entitled to recover interest for the reasons mentioned in
Para-26 above. Accordingly, the respondents are directed to refund the
interest component with interest @7.5% p.a. in favour of the petitioner
within four weeks from today.
28. With directions as aforesaid, the present petition is partly allowed and
accordingly disposed of.
(SURESH KUMAR KAIT)
JUDGE
(SAURABH BANERJEE)
JUDGE
JULY 25, 2022
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