Hon'ble Ashwani Kumar Mishra,J.
Heard Sri Sanjeev Singh, learned counsel for the petitioner and Sri P.K. Singh, holding brief of Sri P.K. Mukherji, learned counsel for the respondent no.1.
By means of the present petition, the petitioner has challenged the order dated 12th March, 2005, passed by the Chief Manager (Personnel & Administration), Annexure-1 to the writ petition, by which the petitioner has been awarded major penalty under TSL Discipline and Appeal Rules, by way of compulsory retirement with effect from 1st of July, 2004 and forfeiture of the ex-gratia amount and further sought mandamus to the respondents to disburse the benefit of Voluntary Retirement Scheme, as given to him vide order dated 2nd July, 2004.
The brief facts, giving rise to the present petition, are that Triveni Structural Limited-respondent no.1 is a Government of India Undertaking and is a subsidiary of Bharat Yantra Nigam Limited. The petitioner, who was working as the Deputy Manager (Administration) Personnel & Administration Department in Triveni Structural Limited, made a request for voluntary retirement, which has been granted vide order dated 2nd July, 2004, passed by the Chief Manager (Personnel and Administration). In the order it has been mentioned that the petitioner would be entitled to thirty six months' salary (Basic Pay Plus Dearness Allowance) towards ex-gratia, General Provident Fund, Gratuity and settling allowance as per the Company's Rules as well as encashment of Earned Leave/Causal Leave, as due on 1st July, 2004. It appears that a domestic enquiry was instituted against the petitioner in the year 2001 and the Enquiry Officer submitted a report on 2nd September, 2004. Referring the aforesaid enquiry report, a letter dated 19th September, 2004 has been issued by the Managing Director of the respondent-company to the petitioner, asking him to make a representation/reply, if he desires, within seven days. The petitioner filed the reply on 15th October, 2004.
The enquiry report reads as follows:
"LEGAL CELL CONFIDENTIAL Dated : 2.9.2004 Sub: Domestic Enquiry Report in D.A. Case No. 1592 against Shri V.P. Singh, Pers. No. 12891, Dy. Manager (Admin).
A domestic enquiry was instituted in the subject case by the competent authority and Shri A.N. Chakravarty, Manager (Law) was appointed the Enquiry Oficer.
Shri A.N. Chakravarty, Enquiry Officer conducted the proceedings on 20.1.2002 (page 19) and fixed the next date of enquiry on 3.2.2002 and again on 3.6.2002 (page 20). The proceedings were conducted on 3.6.2002 (page 281 and next hearing was fixed for 10.6.2002.
The Domestic Enquiry could not be held after 3.6.2002 due to one the other reason. In the meantime, Shri A.N. Chakravarty retired after availing V.R.
The under signed was appointed Enquiry officer on 30.1.2004 (page 39).
The presenting officer was asked to submit the documents as demanded by earlier Enquiry officer (page 27) which he ultimately submitted on 22.7.2004 (page 44).
During the period Mr. V.P. Singh Dy. Manager, the charged officer also opted for retirement under V.R. Scheme of the company and was relieved on 30.6.2004. He was somehow arranged to be summoned and Domestic Enquiry was held on 17.8.2004 (page 45 and 87).
Findings :-
1) The D.A. Case referred to above is "open and shut" case based on documents and enquiry conducted by C.V.O.
2) The charged officer has admitted to have submitted the I.T. Return to Finance Department in connection with his income Tax. His denial to the fact of submitting the photocopies of N.S. Cs. to Finance Department is baseless and not acceptable and his name and address is appearing on the N.S.C's which have been doctored by him to mislead the D.D.O.--a fact which has been exposed threadbare by the report of C.V.O.
3) The contention regarding reporting of the matter to I.T. Deptt. etc. have no relevance to the investigation of the case.
4) As regards opening of D.A. Cases and the related rulings of High Court cases etc. it is submitted that Domestic Enquiry officer is neither a High Court/Supreme Court Judge nor he is competent to go as per citations in High Court/Supreme Court cases. In my view this may be left to Hon'ble higher courts or Supreme Court to examine and take appropriate action.
Conclusion:-
It is established, beyond doubt, that Mr. V.P. Singh, Pers. No. 12491, Dy. Manager (I.R.) (Retired) appears to be guilty of committing gross misconduct under not only the provisions of T.S.L. Conduct Rules bu under the Criminal Law of the Land. The above acts of the charged officer has also resulted in misrepresentation of the facts to the I.T. authorities by the D.D.O. of Finance Department of the Company in case exemptions/rebate granted under I.T. Act are reported to I.T. Deptt.
It is most surprising to note that, an officer against whom such serious charges were probed by Chief Vigilance officer, and against whom a Domestic Enquiry was pending, was released under V.R.S. Of the company especially when co-ordinating deptt. for voluntary Retirement in the Company is Department of Personnel which is sending regular progress reports in all pending D.A. cases to C.V.O.
Submitted.
(D.K. DUBEY) Enquiry Officer"
By the impugned letter/order dated 12th March, 2005, it has been informed that the explanation of the petitioner has not been found satisfactory. Based on the Vigilance Report and after concluding the DA case, it has been decided by the Management to impose major penalty under TSL, Discipline & Appeal Rules upon the petitioner and, accordingly, the petitioner has been compulsorily retired from service with effect from 1st of July, 2004 and the ex gratia amount has been forfeited.
Learned counsel for the petitioner submitted that when the application of the petitioner for voluntary retirement has been accepted and the petitioner has been granted voluntary retirement on 2nd of July, 2004, the relationship of employer and employee ceased to exist and as such there was no justification in awarding major penalty of retiring the petitioner compulsorily. He submitted that initially the petitioner has been issued the chargesheet on 19th August, 2001 wherein charge levelled against him was that he claimed income tax relief under the Income Tax Act during the Financial Year 1993-94, by playing fraud/forgery and tampering the records maintained by the Company's Finance Department. In the chargesheet, it has been stated that it is learnt that two National Saving Certificates of Rs.10,000/= each (Total Rs.20,000/-), dated 18.3.1994, with registration NO. 17294 were issued from Kutchery Post Office, Allahabad in the name of Shri Ram Nayan Kushwaha, of which you obtained photostat copies and got your name and address manipulated over the same which were lateron submtited by you to Finance Department alongwith your Income Tax declaration form to avail income tax relief of Rs.4,000/= (20% of Rs.20,000/-) under Section 88 of the Income Tax Act on the NSCs issued in the name of R.N. Kushwaha. Such act has been considered fraud/forgery and, therefore, making you liable for disciplinary action under Rule 9 of the Conduct Rules and under Rules 6(x), 6(xii), 6(xiv) and 6(xxx) of the Discipline & Appeal Rules. The petitioner filed reply dated 15th September, 2001, which is annexed alongwith the counter affidavit wherein, he has specifically denied the charge of any forgery having been committed by him. The reply of the petitioner is being reproduced below:
"Chief General Manager, Triveni Structurals Ltd.
Naini, Allahabad Venerable Sir, Sub:- Charge Sheet No. TSA/PERS/DA-1592 dated 19.8.2001.
Undersigned is deeply shocked to receive the above mentioned charge sheet particularly at the time when still not fully recovered from a case of brain hemorrhage, wherein, mental tension may cost his life.
However, in this case, undersigned has to submit the following :-
1. Undersigned has never committed any forgery during his 26 years of service in T.S.L.
2. If something, has been observed after 7 years, that also, a case of Income Tax, is self explanatory that it is a connivance against me to malign the well known image of honesty of undersigned, due to political reasons.
3. If undersigned has the access to get the copy of N.C. of Mr. R.N. Kushwaha from finance deptt. and keep it back in Mr. Kushwaha's declaration, I was not insane to leave a forged declaration in my declaration.
4. Undersigned has not submitted his I.T. declaration of the period 2000 due to which, I have lost atleast a saving of Rs.10,000/-, why shall, I, commit a forgery of a meagre amount of Rs.4000/- only.
5. If such a case has been brought to your notice, then, it has been some also, who wants to put me in trouble for nothing as I am being chargesheeted for an outside case, falsely, where TSL's finance are not involved.
In the last, I will like to mention that I do not have memory for a case which is seven or more years old and would like to suggest that scrutiny of I.T. cases by TSL will put more than 50% of the executives of TSL only on account of house rent.
I hope, your honour will realise the motive behind this false case which is of political nature in which management should not involve itself.
Thanking you, Yours faithfully, (V.P. Singh) Dy. Manager (Admin.) PERS. No. 12491 Dated: 15.9.2001"
Learned counsel for the petitioner submitted that thereafter no proper enquiry was conducted. Neither statement of the petitioner nor the statement of any witness has been recorded in the enquiry proceeding. The allegation is wholly baseless and as such the impugned order is unjustified and is liable to be set aside.
Learned counsel for the respondent-company submitted that Rule 9(a) of the TSL, Discipline and Appeal Rules provides that the Officer against whom the disciplinary proceedings have been initiated, while in service, will cease to be in service on the date of superannuation, but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned Officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon, except his own contribution to CPF. Therefore, in view of the aforesaid provision, the proceeding can continue even after the acceptance of the application for the voluntary retirement. He further submitted that the allegation against the petitioner stood proved beyond doubt that he has made manipulation in the National Savings Certificates of someone else and also availed benefit of 20% exemption on Rs.20,000/=.
We have considered rival submissions and gone through the materials on record.
Rule 9(a) of the TSL Discipline and Appeal Rules reads as under:
"The Officer against whom the disciplinary proceedings have been initiated, while in service, will cease to be in service on the date of superannuation, but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned Officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon, except his own contribution to CPF."
Rule 9(a) of TSL, Discipline & Appeal Rules provides that the officer, against whom the disciplinary proceedings have been initiated, while in service, will cease to be in service on the date of superannuation, but the disciplinary proceedings will continue as if he was in service until the proceedings are concluded and final orders are passed in respect thereof. We are of the view that even after grant of voluntary retirement, the disciplinary proceeding could continue. However, we are of the view that once the claim of the petitioner, even during pendency of the disciplinary proceeding, for voluntary retirement has been accepted, he ceased to be the employee of the company. Thus, there appears to be no justification in awarding the major punishment of compulsory retirement, once he has already been retired by way of voluntary retirement.
We have also considered the charges levelled against the petitioner and the reply submitted by the petitioner.
In the reply dated 15th September, 2001, the petitioner has categorically denied the charge levelled against him. The enquiry report submitted by the Enquiry Officer on 2nd September, 2004 reveals that neither statement of the petitioner nor any witness has been recorded and even in the conclusion part, no finding has been recorded that the petitioner has made any forgery or manipulation in the National Saving Certificate, which stood in the name of Ram Narain Kushwaha. Thus, in the circumstances, we are of the view that the enquiry report is vitiated for want of proper opportunity and accordingly the impugned order dated 12th March, 2005, awarding major penalty to the petitioner, based on such enquiry report, is not sustainable.
In view of discussions made above, the writ petition is allowed. The impugned order dated 12th March, 2005 is set aside and the order 2nd July, 2004 by which the request of the petitioner for voluntary retirement has been accepted, is restored. Necessary consequences to follow.
Order Date :- 13.3.2014 bgs/