Delhi High Court
Dr. Ajit Kr. Nag vs M.M.T.C. Ltd & Ors. on 20 November, 2012
Author: Suresh Kait
Bench: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4695/1997
% Judgment reserved on: 25th July, 2012
Judgment delivered on:20th November, 2012
DR. AJIT KR. NAG ..... Petitioner
Through: Mr. M.N. Krishnamani, Sr. Adv.
with Mr. Soumyadip Pani, Adv.
versus
M.M.T.C. LTD & ORS. ..... Respondents
Through: Mr.Rajinder Dhawan and
Mr. B.S. Rana, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant petition petitioner is seeking relief as under:
i) Issue a writ of mandamus commanding the respondents to pay Rs.9,50,000/- (Rupees Nine Lakhs Fifty thousand only) along with interest @ 18% per annum in lieu of the benefits and dues to the petitioner.
ii) Declare that the resignation of the petitioner is deemed to have taken effect from 29.11.1996 and or / 02.01.1997; and that the petitioner ceases to be an employee of the respondent corporation from the respective dates.
2. The facts of the case in brief are that the petitioner was selected W.P.(C) 4695/1997 Page 1 of 18 as Economic Advisor by respondent no. 1 in the year 1980. He was given the designation of DM which is equivalent to the rank of DGM at present.
3. The petitioner was discriminated by the Management of MMTC in October, 1996 when he was arbitrarily transferred to the corporate office to Delhi Regional Office, whereas the Officers with Station Seniority like CGM R. Hari (who joined MMTC in 1988) was never ever transferred out of the Corporate Office. Likewise, Mr. M.J. Rehman (who was also in the Corporate Office since 1984) was never been transferred even once out of it. According to the norms and practices of the transfer of MMTC, there is a three years rotational system and Officers with Station seniority should be transferred first. But the respondents flouted its own norms and procedure to victimize the petitioner, he was transferred vide order dated 29.10.1996. Since the transfer is not the issue in the instant petition, therefore it does not require further discussion.
4. Being aggrieved by the order of transfer, petitioner resigned from the respondent Corporation on 08.11.1996 asking to be relieved w.e.f 02.01.1997 which is annexed as Annexure B. Same is reproduced as under:
"I hereby tender my resignation as CGM of MMTC. Requirement of 3 months' notice may please be waived for me and I may be relieved on January 2, 1997. If during the period of notice / the Corporation opens voluntary retirement scheme, I may be allowed to avail of the Scheme."W.P.(C) 4695/1997 Page 2 of 18
5. Resignation of the petitioner was accepted after a vigilance clearance by the respondents on 22.11.1996, vide order of the same date bearing no. SCI/418/96 which is annexed as Annexure C. Same is reproduced as under:
"The Competent Authority has accepted the resignation of Dr. A. Nag, Chief General Manager (Emp. No. 911475), Corporate Office, with effect from 22nd November, 1996 (AN), subject to his furnishing the necessary undertaking / settlement of dues to the Company.
Accordingly, Dr. Nag stands relieved of his duties from the Corporation with effect from 22nd Nov 1996 (AN)."
6. Subsequently vide order of the same date the petitioner stands relieved from his duties w.e.f 29.11.1996, the same is annexed as Annexure D, which is reproduced as under:
"The Competent Authority has accepted the resignation of Dr. A. Nag, Chief General Manager (Emp. No. 911475), Corporate Office, with effect from 29th November, 1996 (AN), subject to his furnishing the necessary undertaking / settlement of dues to the Company.
Accordingly, Dr. Nag stands relieved of his duties from the Corporation with effect from 29th Nov 1996 (AN)."
7. The petitioner gave a note dated 27.11.1996 to the respondents pointing out that he had requested the respondent corporation to relieve him w.e.f 02.01.1997, however if the respondent no. 1 insisted on relieving him on 29.11.1996, then, he be compensated for those financial benefits, which he would be losing because of being relieved earlier. A copy of note dated 27.11.1996 which is annexed as W.P.(C) 4695/1997 Page 3 of 18 Annexure E is reproduced as under:
"Ref.: O.O. NO. SCI/418/96, dt. November 22, 1996 Relieving me on November, 29, 1996 Received on November 26,1996 I thank the Corporation for accepting my resignation.
In this connection reference may be made to my letter of resignation dated November 8, 1996, in which I had requested for relieving on 2nd January, 1997. I would still maintain that I am available to the service of Corporation till January, 2, 1997 and I would like to be relieved on that date. If the Corporation insists that I be relieved on November 29, 1996, I may be provided the following:
1. I may be paid the salary for the period November 30, 1996 to January 2, 1997 which is the balance of the notice period.
2. I had planned to avail LTC to home town for me and family during December, 1996. Because of early relieve with very short notice I would not be able to avail of the same. I may, therefore, be reimburse the air (entitled class) fare for me and my family to Calcutta (declared home station).
3. If during the notice period till January 2, 1997 Corporation opens Voluntary Retirement Scheme, I may be allowed to avail of the scheme as requested in my letter of resignation.
4. Next pay revision of MMTC Managers is due to be effective from January 1, 1997. Benefits of such revision may please be extended to me as and when available."
8. The petitioner was further relieved from duty on 28.11.1996 when he was asked to officially hand over his Charge of the Division to GM (GPS), which note was issued by Mr. S.D. Kapoor in the morning. On the same day i.e. 28.11.1996 at 5 PM respondent no. 1 W.P.(C) 4695/1997 Page 4 of 18 suddenly issued an Office Order withdrawing the relieving order dated 22.11.1996.
9. The petitioner handed over the Charge of Metals Division along with all the Papers and files on 29.11.196 by writing a note to the respondents whereby the charge was accepted by the respondents. The handing over of charge is reproduced as Annexure F-3. Same is reproduced as under:
"I hereby hand over the charge of the Metals Division to GM (GPS) as per the following:
i) I am not holding any files in my personal possession. They are all in the division. Therefore, no files are to be handed over.
ii) The official papers in Dak, which have still not been disposed of, are placed below (10 in nos.).
iii) The following matters need immediate attention and disposal:
a. Board note for copper pricing - the file and
papers are already with GM (GPS).
b. SPC note for pre-pricing and de-pricing of
nickel - papers are already with GM (GPS).
c. Board note for hedging - proposal with GM
(GPS).
d. Board note for write off of exchange
fluctuation losses for asbestos and steel during 1989-90 and 1990-91 files / papers with GM (GPS) / Division.
e. Comprehensive drill on highseas sale, ex- godown sale and optimal inventory levels metalwise and godown-wise. For this Committee consists of GM(GPS), DGM (AK) AND SR. MGR (AS).
f. Settlement of claims with Metal Distributors and recommencement of business with them particularly for Copper and zinc. For this Committee consist of GM (GPS), DGM (AK) AND SR. MGR (IJB)."
W.P.(C) 4695/1997 Page 5 of 1810. Mr. M.N. Krishnamani, ld. Senior Advocate appearing on behalf of the petitioner submitted that the respondent had relieved the petitioner after accepting the handing over of charge from him on 29.11.1996. It is further submitted that the petitioner was relieved on two occasions, once on 22.11.1996 and again on 29.11.1996. Then on 20.12.1996, arbitrarily and without giving any reasons, respondent deferred the acceptance of his resignation till 31.03.1997.
11. Ld. Counsel has further submitted that the petitioner was directly relieved from duty w.e.f 29.11.1996 when charge of Metals Division was handed over by him and accepted by the respondents. But he was not relieved by the respondents for the reasons best known to them. So, the petitioner wrote to the respondents requesting to be relieved on 02.01.1997.
12. The respondent Corporation issued memo to the petitioner for disciplinary enquiry on 09.01.1997. Thereafter on 13.05.1997, Charge Memo was issued to the petitioner.
13. It is pertinent to mention here that the Charges were the same as in memo dated 09.01.1997, which was replied by the petitioner on 29.01.1997 itself.
14. Whileso to defame the petitioner, who was a high functionary, MMTC Officials got a news paper publication about the charge memo on 07.07.1997. The petitioner pointed out the injustice that was being done to him to the Appellate Authority. There was no reply to it. The W.P.(C) 4695/1997 Page 6 of 18 charges were very flimsy and not of moral turpitude. In any case, once his resignation was accepted, his employment with MMTC ceased. Therefore, these proceedings were void ab initio.
15. Ld. Senior Counsel has further submitted that after accepting the resignation, the MMTC could not go back upon it. Petitioner asked for settling of his dues in PF account and Gratuity Account to which he was entitled. Since there was no reply, the petitioner filed the petition urging for his dues being settled.
16. It is further submitted that after filing of the petition, without information to the petitioner, the Officials of MMTC purported to hold ex-parte enquiry and terminate his services vide order dated 28.07.1998. Thereafter, petitioner amended the petition while challenging the termination order also.
17. He submitted that once resignation is accepted, the Master and servant relationship gets snapped and thereafter the Management of MMTC cannot go back upon it.
18. It is submitted that the petitioner has submitted his resignation on 08.11.1996 and same was accepted on 22.11.1996 and relieved him on the very same day i.e. 22.11.1996. The MMTC' purported withdrawal of acceptance dated 28.11.1996 is void and is nullity in law.
19. He further submitted that the only contention of MMTC is that Annexure B referred above is only a notice of resignation and not W.P.(C) 4695/1997 Page 7 of 18 resignation as such. A bare reading of Annexure B shows that it is very much a resignation letter. In any case, it was accepted by the Annexure C mentioned above and the petitioner was relieved on 22.11.1996 itself.
20. Ld. Senior Counsel has argued that even assuming that Annexure B constituted only offer of resignation, its acceptance by Annexure C terminated the relationship of Master and servant. Therefore, subsequent action of the respondents is illegal and void.
21. It is further submitted that apart from resignation, the petitioner prayed for waiver of notice period of 3 months. On acceptance by the respondents and by asking the petitioner to hand over the charge, the request for waiver too stood accepted.
22. Ld. Senior Counsel has argued that since disciplinary action was taken after acceptance of resignation, the subsequent withdrawal of the acceptance being void ab initio, therefore, the entire disciplinary proceedings were rendered void.
23. He submitted that the Officials of MMTC were vindictive. They found scape-goat in the petitioner. The persons really guilty were let off. The petitioner was harassed for no valid reason. His Gratuity, PF and other dues were not paid from 22.11.1996 up to date. There is an undue delay of nearly 15 years.
24. It is further submitted that the employer is the trustee of Gratuity Account and PF Account. These amounts could not be delayed even if W.P.(C) 4695/1997 Page 8 of 18 there is a termination unless the charges constituted any moral turpitude.
25. By concluding his arguments, ld. Sr. Counsel has submitted that on a mere glance on the charge issued against the petitioner, it would show that there is no allegation involving moral turpitude in any of the 5 charges. In short they alleged only supervisory failure. Whileso, leaving everyone including those who were directly guilty and to proceed against the petitioner alone for alleged supervisory failure is wholly unfair, vindictive and vitiated by mala fides. As such, ex-parte enquiry held after the petitioner demitting office is ex facie illegal and null and void.
26. Respondent MMTC has filed reply to the instant petition, wherein it is stated that the petitioner being an employee of the respondent, is governed inter alia by the MMTC Rules Regulations, 1976 (hereinafter called as Service Regulations). Rule 11 of the MMTC Service Regulations which provides for resignation by an employee reads as under:
"An employee who has completed his period of probation shall not resign from the service of the company without giving three months' notice of his intention to do so. Failure to give the adequate notice shall make the employee liable to pay the company as compensation a sum equal to his pay and allowances for three months provided the Competent Authority may waive giving of such notice at its discretion. Provided that where any disciplinary proceedings are pending or a prima facie case has been established for initiating action against him, the company reserves the right not to accept such W.P.(C) 4695/1997 Page 9 of 18 notice of resignation or in lieu thereof three months' pay and allowances at its discretion."
27. It is further stated that such Rule clearly provides that the resignation tendered by an employee is required to be accepted. Thus, unless the resignation is accepted, the employee does not cease to be in the employment of the respondent Company.
28. Rule 5 lists some of the acts / omissions which will be treated as misconduct. Rule 23 provides of penalties which can be imposed. Rule 33 provides for an Appeal against an order imposing any of the penalties specified in Rule 23.
29. It is further stated that the petitioner inter alia has prayed for quashing of order dated 27.09.1998, whereby he was dismissed from service. As the punishment awarded is one of the punishments mentioned in Rule 23 and the order imposing punishment was appealable under Rule 33, therefore, an alternative remedy was available to him against the said order. The domestic remedy was equally efficacious remedy. In view of the aforesaid, petitioner cannot be allowed to approach this Court by way of a Writ Petition.
30. It is further submitted that as the petitioner has not filed any Appeal against the order dated 29.07.1998, therefore, it is proved that he had accepted the said order. The petitioner was very much in service. Therefore, he was dismissed from service.
31. Counsel for the respondent has submitted that the petitioner vide his letter dated 08.11.1996 gave notice to resign from service. As per W.P.(C) 4695/1997 Page 10 of 18 the Service Regulations he was required to give three months' notice, but he requested that he should be relieved on 02.01.1997. The said letter was only a notice to resign and was not a resignation as such. Though, the respondent Company vide its Office Order dated 22.11.1996 informed the petitioner that his resignation had been accepted and that he will be relieved on 22.11.1996, but by subsequent Office Order dated 22.11.1996, the date of his relieving at his request changed to 29.11.1996.
32. It is further submitted that the acceptance of resignation of the respondent Company as is evident from the communication dated 22.11.1996 was conditional viz. it was subject to furnishing the necessary undertaking for the settlement of dues with the Company. The petitioner did not comply with the said condition. Therefore, the said communication in any case did not become effective.
33. The petitioner unauthorizedly stopped attending the Office w.e.f 12.03.1997 as is evident from the note dated 11.03.1997 annexed as Annexure L to the Writ Petition.
34. It is pertinent to mention here that while the petitioner was working as Chief General Manager (Metals Division) in the respondent company, he was heading the said Division. It came to the notice that that during his said working he committed acts, which prima facie amounted to violation of MMTC Employees (Conduct, Discipline and Appeal) Rules, 1975 (hereinafter called as CDA Rules). Accordingly, the petitioner was informed vide letter dated 20.12.1996 that the W.P.(C) 4695/1997 Page 11 of 18 acceptance of resignation vide letter dated 08.11.1996 had been deferred till 31.03.1997. Subsequently, a memorandum dated 09.01.1997 was issued to the petitioner and he was asked to furnish his explanation. Accordingly, he has submitted his explanation. The same was examined and was not found to be satisfactory and it was decided by the competent Authority to initiate disciplinary action against him for which a charge sheet was issued to him on 13/19th May, 1997 in terms of MMTC CDA Rules.
35. It is further pertinent to mention here that the petitioner did not participate in the enquiry proceedings whereupon the Enquiry Officer was compelled to proceed ex-parte against him. The petitioner was unauthorizedly absented himself from his duties w.e.f 12.03.1997 and has reportedly taken up employment with M/s. Birla Copper Limited without having been relieved from the service of the respondent company, which he could not.
36. As per the procedure, a copy of the enquiry report was forwarded to the petitioner and he was asked to make representation if he wanted to make against the said report.
37. After considering the enquiry proceedings, Enquiry Officer's Report and the submission made by the petitioner to the Enquiry Report, the Authority concerned came to the conclusion that the charges have been proved. As the charges were grave, therefore, the petitioner was dismissed from service.
38. Ld. Counsel for the respondent company has submitted that it is W.P.(C) 4695/1997 Page 12 of 18 not appropriate to accept that the resignation of the petitioner which was accepted twice by the respondent Company vide letters dated 22.11.1996 and 29.11.1996. The petitioner's resignation letter dated 08.11.1996 itself nullify the contention of the petitioner that he wanted to be relieved on 02.01.1997. He reserved his right that in case the Company opens voluntary retirement scheme he may be allowed to avail the same. Therefore, he sought waiver of 3 months notice. Thus the letter dated 08.11.1996 was not a resignation, but an offer of resignation.
39. Ld. Counsel has further submitted that as per Rule 11 of the Companies Rule, the resignation needed acceptance before its becoming effective. It was in view of the said provision the petitioner had contended that his resignation was accepted by the respondent company. Resigning from Company's service thus was not a unilateral act.
40. The petitioner's letter dated 27.11.1996 would show that the said letter did not result into an agreement. In fact Company by its letter dated 22.11.1996 did not accept petitioner's offer made vide its letter dated 08.11.1996 as it is mentioned that he would be relieved on 22.11.1996 by a second letter dated 29.11.1996. It thus was a counter offer and the petitioner vide his letter dated 27.11.1996 did not accept the Company's said letter. He wanted to be relieved on 02.01.1997. Thus, no agreement regarding the petitioners resignation and acceptance thereof, took place between the parties. In view of the aforesaid facts, Company vide its letter dated 28.11.1996 withdrew its W.P.(C) 4695/1997 Page 13 of 18 letter dated 22.11.1996, which withdrawal thus was valid. The petitioner continued in service as he even proceeded on tour to Kolkata on 22.12.1996.
41. In judicial review, Court's jurisdiction is limited. It does not exercise the power of Appellate Court as law has been settled in Indian Oil Corporation v. Ashok Kumar Arora 1997 (3) SCC 72.
42. In B.C. Chaturvedi v. Union of India 1995 (6) SCC 748, the Apex Court has held that High Court while exercising its power of judicial review cannot normally substitute its own conclusion on penalty.
43. Rule 33 of Rules provides for an Appeal against imposing of punishment mentioned in Rule 23. Therefore, the petitioner is not entitled to any monetary relief on the grounds taken in the petition.
44. After hearing ld. Counsel for the parties, it is established that the petitioner resigned from the Respondent Corporation on 08.11.1996 with further putting 2 conditions (i) to be relieved w.e.f 02.01.1997 (ii) if during the period of notice, Corporation opens Voluntary Retirement Scheme, he may be allowed to avail of the same.
45. The respondent Corporation, without looking into the two conditions mentioned above, after getting the vigilance clearance accepted his resignation vide order dated 22.11.1996 and relieved him. The aforesaid order was changed vide subsequent order dated 29.11.1996, vide which it is conveyed to the petitioner that the W.P.(C) 4695/1997 Page 14 of 18 competent authority had accepted his resignation w.e.f 29.11.1996 (A/N), subject to his furnishing necessary undertaking / settlement of dues to the Company.
46. The petitioner did not comply with the condition imposed vide order dated 29.11.1996, however, he sent a note dated 27.11.1996 in reply to the order dated 22.11.1996 while pointing out that he had requested the respondent Corporation to relieve him w.e.f 02.01.1997, however, if the respondent no. 1 insisted on relieving him on 29.11.1996, then he was entitled to be compensated for those financial benefits which he would be losing because of being relieved earlier.
47. I note by the above said communication of the petitioner, he sought (i) the salary for the period of November 30, 1996 to January, 2, 1997 be paid to him which is the balance of the notice period; (ii) he may be reimbursed the air fare (entitled class) for him and his family to Calcutta (home station); (iii) if during the notice period, till January, 2, 1997, Corporation opens Voluntary Retirement Scheme, he may be allowed to avail of the Scheme as requested in his resignation letter; (iv) next pay revision of MMTC Managers was due from January 1, 1997, therefore, benefits of said revision may be extended to him as and when available.
48. Vide order dated 28.11.1996 respondent no. 1 withdrew the relieving order dated 22.11.1996.
49. Thereafter, Respondent Corporation issued memo to the petitioner for disciplinary enquiry on 09.01.1997, the petitioner replied to the same. After due consideration, respondents decided to initiate W.P.(C) 4695/1997 Page 15 of 18 disciplinary action against him for which charge sheet was issued to him on 13/19.05.1997 in terms of MMTC (CDA Rules).
50. The petitioner did not participate in the enquiry proceedings whereupon Enquiry Officer was compelled to proceed ex-parte against him. As per the procedure a copy of the Enquiry Report was forwarded to the petitioner and he was given opportunity to make representation.
51. After considering the enquiry proceedings, enquiry report and the submission made by the petitioner to the Enquiry Report, Disciplinary Authority came to the conclusion that the charges have been proved. The charges being so grave, he was dismissed from service.
52. Rule 11 of the MMTC Service Regulations provides that employee who has completed his period of probation shall not resign from the service of company without giving 3 months' notice of his intention to do so.
53. The resignation tendered by an employee is required to be accepted, otherwise, the employee does not cease to be in the employment of the respondents.
54. The petitioner has been punished as per the penalties provided under Rule 33. The petitioner had an opportunity to file an Appeal against the said order under Rule 33, which he did not prefer.
55. As is clear from the Rules mentioned above, the petitioner was required to give 3 months' clear notice, but he requested to be relieved on 02.01.1997 vide his resignation letter dated 08.11.1996.
56. I am of the considered opinion that the aforesaid resignation W.P.(C) 4695/1997 Page 16 of 18 letter was only a notice to resign and was not a resignation as such. The resignation should be clear and without any further condition whereas in his resignation he made two conditions (i) that resignation would be accepted from 02.01.1997 and (ii) if during the period of notice / the Corporation opens Voluntary Retirement Scheme, he may be allowed to avail of the same. Thus he sought waiver of the notice period also.
57. The respondents also accepted his resignation vide communication dated 22.11.1996 conditionally vis-a-vis subject to furnishing necessary undertaking for the settlement of his dues with the Company. The petitioner did not comply with the said condition. Therefore, the said communication, in any case, did not become effective.
58. Moreover, the petitioner unauthorizedly stopped attending the office w.e.f 12.03.1997 as is evident from the note dated 11.03.1997 annexed as Annexure-L to the Writ Petition.
59. Undisputedly, the petitioner was informed vide letter dated 22.12.1996 that the acceptance of his resignation had been deferred till 31.03.1997. Subsequently, a memorandum dated 09.01.1997 was issued to the petitioner and he was asked to furnish his explanation. Accordingly, he submitted his explanation. Same was examined and was not found to be satisfactory. Thereafter, Disciplinary Authority proceeded further as per rules. The petitioner did not participate in the enquiry, however, he filed representation to the Enquiry Report which was considered by the Disciplinary Authority.
60. Law is settled on the resignation that it should be without any W.P.(C) 4695/1997 Page 17 of 18 condition. However, prerogative of the employer is to accept it with or without condition. The petitioner's resignation was accepted with condition which were not complied with by the petitioner thereafter.
61. Therefore, I am of the considered opinion that the acceptance of the resignation was conditional and not absolute. Therefore, it cannot be considered that the orders on resignation dated 22.11.1996 and 29.11.1996 were absolute. Moreover, the petitioner being continued in service, even proceeded on tour to Kolkata on 22.12.1996.
62. In view of the above discussion and settled law, I find no merit in the instant petition. Same is dismissed.
63. No order as to costs.
SURESH KAIT, J.
NOVEMBER 20, 2012 Jg W.P.(C) 4695/1997 Page 18 of 18