Bombay High Court
Mr.Dev Raj Mehta Of Bombay vs Union Of India on 13 February, 2014
Author: G.S.Kulkarni
Bench: V.M. Kanade, Girish S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1200 OF 2007
Mr.Dev Raj Mehta of Bombay, an Indian }
Inhabitant residing at A-21, Diamond Twins,
Bhat Lane, Near Poisar Bus Depot, }
Kandivli (W) MUMBAI-400 067. .. Petitioner
versus
1. Union of India,through the Ministry
ig }
of Textiles having its office at
Udyog Bhavan, NEW DELHI-110 001 }
2. The Managing Director
The National Textile Corporation Limited }
a Statutory Corporation wholly owned
by the government of India having
registered Office at Sector IV,Scope Complex }
Lodi Road, NEW DELHI-110 002.
3. The Managing Director }
The National Textile Corporation'(Maharashtra
North) Limited, a Statutory Corporation
and subsidiary of the Respondent No.2 }
above named and a Government of India
Undertaking having its office at NTC House
15, Narottom Morarji Marg, Ballard Estate }
Mumbai-400 001. .. Respondents
Appearances:
Ms.Nayana Buch i/b Ms.B.B.Dholakia for Petitioner
Ms.Vanita Kakkar i/b Ms.Nandini Menon for Respondent Nos.2 and 3
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CORAM : V. M.KANADE &
G. S. KULKARNI, JJ
DATED : 13.2.2014
JUDGMENT ( Per G.S.Kulkarni, J )
1. By this petition under Article 226 of the Constitution, the Petitioner who was an employee of the National Textile Corporation Limited has prayed for the following reliefs :-
(a) that in exercise of its jurisdiction this Hon'ble Court be pleased to declare that the action of the Respondents in effecting illegal deduction from the legal dues of the Petitioner is violative of Articles 14, 19, 21, 39 (2) and 300A of the Constitution of India ;
(b) that in the exercise of its jurisdiction under Article 226 of the Constitution of India this Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction directing the Respondents to cancel and/or to withdraw the Order dated 24.12.2004 issued by the Respondents effecting illegal deductions of Rs.3,01,361/- from the legal dues of the Petitioner.
(c) direct the Respondents to pay the Petitioner sum of Rs.3,01,361/- together with interest at the rate of 18% per annum from the date the amount became due and payable till payment and/or realisation;
(d) to direct the Respondents to produce in this Hon'ble Court the Reports dated October/November 1998 of one Shri K.K.Mishra, report of the CBI in the year 1999 and the Report of the High-Power Committee under the Chairmanship of one Mr Khatau in year 2000 ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 3 wp1200.07 as herein above referred to in paragraph nos. 8,9 and 10 respectively."
The facts in brief underlying the dispute in the present proceedings are as under :
2. The Petitioner was appointed as Chairman-cum-Managing Director (Maharashtra North) of the National Textile Corporation with effect from 29.3.1996 for a period of five years ending on 28.3.2001. The letter of appointment issued to the petitioner inter alia stated that the appointment may be terminated on either side on three months' notice or payment of three months salary in lieu thereof. During the tenure of the petitioner, a preliminary inquiry was held against the petitioner in regard to his actions concerning promotions and transfers of some of the employees of the Corporation. The allegations against the petitioner was that he had granted illegal/irregular promotions and transfers. It was therefore, decided to hold an inquiry against the petitioner in respect of the said allegations under the provisions of the National Textile Corporation (MN) Limited, Employees Conduct, Discipline and Appeal Rules, 1975.
3. It is stated that in November/December,1998 an inquiry was held by ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 4 wp1200.07 Mr.K.K.Mishra Chairman cum-Managing Director of the National Textile Corporation and a report was submitted to the Ministry of Textiles.
However, no action was taken on the basis of the said inquiry. Thereafter, in October, 1999 another inquiry was held by the Chief Vigilance officer, Mr.A.S.Bhattacharya. Under this inquiry no action was taken. The C.B.I. was also asked to investigate. However, it is the Petitioner's case that the C.B.I. did not find any case against the Petitioner. Another inquiry was held in the year 2000 by the High-Power Committee consisting of three IAS Officers. By a letter dated 14.2.2000 of the Member Secretary, Ministry of Textiles, Government of India for the first time the petitioner was called upon to give an explanation in which it was stated on the basis of an inquiry conducted by a three member Committee. It was inter alia stated in this letter that the three member committee based on available information, documents and reports had come to certain observations that prima facie evidence existed in the complaint as made against the Petitioner. A brief note of the observations of the committee was enclosed to the said letter. The petitioner was called upon to give his comments on each of the issues as raised in the said letter.
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4. The Joint Secretary to the Government of India on behalf of the President of India issued a memorandum dated 15.6.2001 to the Petitioner inter alia stating that it was proposed to hold an inquiry against the Petitioner under the National Textile Corporation (MN) Ltd Employees Conduct,Discipline and Appeal Rules, 1975. A statement of the imputations of misconduct was enclosed along with the statement of articles of charges.
A list of documents as also list of witnesses were also enclosed. The petitioner was called upon to submit his statement of defence. The gist of the charges against the Petitioner were that the Petitioner had shown favouritism and bias in favour of certain officers in the matter of promotions whose names were specifically set out in the original charges.
It was therefore, alleged that the petitioner had acted against rule 4 (i) (ii)
(iii) and (v) of the National Textile Corporation (MN) Ltd Employees Conduct, Discipline and Appeal Rules, 1975.
5. During the pendency of the inquiry proceedings, the petitioner had approached this Court by filing a Writ Petition No.2015 of 2001 praying for release of the dues of the Petitioner in view of the fact that the term of the Petitioner had come to an end and that the Petitioner had become ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 6 wp1200.07 entitled for all the terminal dues. A Division Bench of this Court by an order dated 21.1.2002 disposed of the Writ Petition by passing the following order :
"1. Mr.Rana appearing for respondent nos. 2 and 3 stated that they are willing to release the dues of the petitioner if he withdraws the petition and gives appropriate undertaking to return the amount in case it is proved that has caused monetary loss to the Corporation.
2. Petitioner's counsel pointed out that there is no charge causing any monetary loss to the petitioner and the only charge is that the petitioner showed favourtism to certain employees in the matter of promotion etc. The learned counsel however, stated that petitioner is aggreable to withdraw the petition in view of statement made by Mr.Rana.
3. Accordingly, Writ Petition is allowed to be withdrawn. The Respondents nos. 2 and 3 are directed to pay the dues of the petitioner within a period of two weeks. In case it is found in the proceeding that the petitioner has caused any loss to the Corporation, Corporation will be entitled to recover the same from the petitioner in accordance with law. Respondents are directed to dispose of departmental proceedings as expeditiously as possible preferably within a period of four months. " (emphasis supplied)
6. The Inquiry Officer entered upon the inquiry under the said memorandum and Charge sheet dated 15.6.2001 issued to the Petitioner. An inquiry report dated 21.3.2001 came to be submitted. The Inquiry Officer has recorded that the Petitioner had remained absent throughout despite ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 7 wp1200.07 repeated opportunities given to him and hence it was presumed that he has no defence to put forth. The Inquiry Officer has recorded in his report that Charge Nos. I, II, V, VI and VIII stood proved and that Charge No.II was partly proved. In pursuance of the inquiry report, the National Textile Corporation by its letter dated 22.8.2003 addressed to the Managing Director of National Textile Corporation (Maharashtra North) Limited requested to furnish details of the financial loss incurred by the National Textile Corporation (Maharashtra North) Limited due to the illegal promotions effected by the Petitioner so as to forward a reply to the Ministry of Textiles, Government of India.
7. In the meantime, the Petitioner himself and through his Advocate insisted the Respondents for releasing the balance terminal benefits pertaining to gratuity and leave encashment on the basis of the revised pay scales. However, the respondents by their letter dated 24.12.2004 informed the Petitioner that in pursuance of the orders passed by this Court in Writ Petition No.2015 of 2001, the petitioner was paid terminal dues namely gratuity and leave wages as was due at that time and that as recorded in the order passed by this Court the Petitioner had also given an ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 8 wp1200.07 undertaking that if the disciplinary authority comes to a conclusion that monetary loss has been caused to the Corporation the Corporation will be entitled for the said amount of loss. It was stated that as the departmental proceedings were initiated and final orders of the disciplinary authority are issued action to release the payment to the petitioner on account of his terminal dues/arrears would be taken after appropriate orders of the disciplinary authority.
8. By an order dated 24.12.2004 passed by the Joint Secretary to the Government of India issued on behalf of the President of India the following punishment of minor penalty was imposed on the Petitioner on the basis the findings in the Inquiry Report :
" NOW THEREFORE, after considering the record of the enquiry and the facts and circumstances of the case, the undersigned has come to the conclusion that minor penalty of recovery of Rs.3,01,361/- (Rupees Three lakhs one thousand three hundred sixty one only) should be imposed on Shri. D.R.Mehta Ex-CMD Ltd.Mumbai and orders accordingly. It is further ordered that the penalty amount of Rs.3,.01,361/- should be recovered by NTC (MN) Ltd Mumbai from Shri D.R.Mehta in pursuance of the orders dated 21.01.2002 of the Hon'ble High Court at Mumbai..................."::: Downloaded on - 29/03/2014 18:51:40 :::
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9. The respondents after taking into consideration the order dated 24.12.2004 imposing minor penalty calculated the payment of arrears on the basis of IVth and Vth Pay Commission to be released to the petitioner and by a letter dated 2.2.2005 the respondents forwarded a cheque for an amount of Rs.1,31,137/- being the amount payable towards IDA arrears. It was stated that the said amount has been arrived after deducting Rs.3,01,361/- being the minor penalty imposed on the petitioner as per order of the Disciplinary authority dated 24.12.2004. A statement of the exact calculations after such deduction was enclosed to the said letter.
The said amount of Rs.1,31,137/- was accepted by the petitioner.
10. The Petitioner being aggrieved by the order passed by the disciplinary authority dated 24.12.2004 and principally being aggrieved by the deduction of the amount of Rs.3,01,361/- which was not released to the petitioner has filed this Petition on 15th March 2007.
11. We have heard Ms.Nayana Buch learned counsel appearing for the Petitioner and Ms.Vanita Kakkar learned counsel appearing for the respondents.
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12. Learned counsel for the petitioner submitted that the respondents were not justified in deducting the amount of Rs.3,01,361/- and that the respondents have misconstrued the order dated 21.2.2002 passed by the Division Bench in Writ Petition No.2015 of 2001. It was submitted that the Inquiry Officer has not given any findings in respect of the financial loss caused to the respondents on the basis of the alleged conduct of the petitioner. It was further submitted that the charges as levelled against the petitioner were devoid of any merits and that it was nothing but, an attempt to malign the petitioner by passing the financial burden on the petitioner that a financial penalty was imposed on the petitioner without the petitioner being heard.
13. On the other hand, learned counsel appearing for respondent nos.2 and 3 has contended that the order dated 24.12.2004 as passed by the Ist respondent was valid and proper and contended that except for one hearing the petitioner did not attend the subsequent hearings before the Inquiry Officer. She submitted that the charges against the petitioner stood proved as reflected in the report of the Inquiry Officer and that the Joint Secretary, ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 11 wp1200.07 Government of India has appropriately taken into consideration the report of the Inquiry Officer, the representation of the petitioner against the inquiry report and other records of the case and has rightly come to a conclusion that the petitioner while working as Chairman-cum-Managing Director, National Textile Corporation (Maharashtra North) Ltd had effected irregular individual promotions/transfers and had caused a loss of Rs.3,01,361/- to the Corporation. It was submitted that in the facts and circumstances the minor penalty of recovery of Rs.3,01,361/- was justified and that the recovery of the said amount by the 2 nd respondent was also justified as was clear from the order dated 21.1.2002 passed by this Court in Writ Petition No.2015 of 2002. The learned counsel appearing on behalf of respondent nos.2 and 3 submitted that the Writ Petition was filed after a gross delay in as much as the order dated 24.12.2004 passed by the disciplinary authority was being challenged in the present petition which was filed on 15.3.2007 without making any averments whatsoever to justify the delay and latches in approaching this Court. It is therefore, submitted that no case is made out by the petitioner for interference by this Court. It is further contended that the respondent nos.2 and 3 have without any delay released the other amounts/arrears payable to the petitioner ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 12 wp1200.07 except for an amount of Rs.3,01,361/- which was part of the penalty amount. It is also pointed out that an amount of Rs.1,31,137/- which is the final amount arrived at after deducting the minor penalty of Rs.3,01,361/-
has been paid and accepted by the petitioner.
14. The respondent nos. 2 and 3 have also filed an affidavit in reply to the petition opposing the writ petition. Also an affidavit in reply has been filed on behalf of the respondent on.1-Union of India in which the respondent no.1 has also taken a plea of gross delay on the part of the petitioner in approaching this Court particularly when the petitioner all throughout was aware of all the orders passed against him. It is contended on behalf of the respondent no.1 that the inquiry has been held as per NTC (MN) Ltd Employees Conduct,Discipline and Appeal Rules, 1975 and that the departmental action of imposition of minor penalty on the petitioner is in consonance with the said rules applicable to the petitioner.
15. We have gone through the writ petition and the counter affidavits filed on behalf of the respondents with the assistance of the learned counsel appearing for the parties.
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16. It is an indisputed position that the petitioner was issued a charge sheet on 15.6.2001 in which about eight charges were leveled against him in regard to the various acts of commissions and omissions in discharge of duties of the post of Chairman-cum- Managing Director (NM) namely for granting illegal promotions/transfers thereby violating rule 4 (i)(ii) (iii) and
(v) of the National Textile Corporation (Maharashtra North) Ltd Employees Conduct, Discipline and Appeal Rules, 1975. An Inquiry Officer was appointed to inquire into the said charges. The petitioner only appeared for the preliminary hearing of the inquiry held on 13.2.2002 and thereafter did not attend the subsequent hearings before the Inquiry Officer. An inquiry report was submitted to the disciplinary authority in which except article no.2 which was partly proved all the articles of charges were held to be proved against the petitioner. A copy of the inquiry report was duly furnished to the petitioner and a representation against the same was also made by the petitioner. The disciplinary authority namely the Joint Secretary to the Government of India, Ministry of Textiles acting for and behalf of the President of India imposed a minor penalty by an order dated 24.12.2004 by which an amount of Rs.3,01,361/- was directed to be ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 14 wp1200.07 recovered. It is apparent from the record that the petitioner chose not to participate in the inquiry proceedings. However, during the pendency of the inquiry proceedings the petitioner had approached this Court by filing Writ Petition No. 2015 of 2001. It is clear from the order dated 21.2.2002 (supra) passed by the Division Bench of this Court that the petitioner had agreed to entitle the Corporation to recover the monetary loss caused to the Corporation and had given an undertaking in that behalf. Therefore, it cannot be accepted from the petitioner to take a stand contrary to what has been recorded in the order passed by this Court.
It is also an admitted position that the respondents have released of all other amounts as also an amount of Rs.1,31,137/- after deducting an amount of Rs.3,01,361/- as per order of the disciplinary authority which has been duly accepted by the petitioner on 2.2.2005 and subsequently two years thereafter has filed the present petition.
17. In view of the aforesaid clear position, we cannot persuade ourselves to accept the submissions made on behalf of the petitioner in support of the prayers as made in the writ petition for more than one ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 15 wp1200.07 reason. Firstly, no fault can be found in the order dated 24.12.2004 passed by the disciplinary authority of imposing a minor penalty to recover an amount of Rs.3,01,361/-. It is clear that inquiry proceedings were held in accordance with the rules where a complete opportunity was accorded to the petitioner to participate. However, the petitioner chose not to participate and was not serious about the inquiry proceedings. It is not the case of the petitioner that the petitioner was not aware of the nature of the penalty which may be imposed. In fact, the petitioner himself gave an undertaking as recorded in the order dated 21.1.2002 passed in Writ Petition No. 2015 of 2001 that other dues be released to him, he being agreeable to entitle the respondent nos.2 and 3 to recover the said amount.
After having given the undertaking and a solemn statement in that behalf as recorded in the order of this Court, the petitioner cannot make a grievance against the recovery of the said amount by the respondent nos.2 and 3.
This surely is not permissible and the same would be contrary to the order dated 21.1.2002 passed by this Court. We therefore, find no infirmity in the impugned order dated 24.12.2004 passed by the Joint Secretary to the Government of India, Ministry of Textiles in imposing the minor penaltyon the petitioner. The other prayers which are incidental to this main prayer ::: Downloaded on - 29/03/2014 18:51:40 ::: RNG 16 wp1200.07 also cannot be entertained.
18. We are therefore of the view that the present writ petition does not call for any interference of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.
19. Writ Petition therefore fails and is accordingly dismissed. Rule is discharged. No order as to costs.
(G.S.KULKARNI, J) (V.M.KANADE, J)
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