Delhi High Court
D.K. Jain vs Union Of India And Ors. on 24 September, 1990
Equivalent citations: 43(1991)DLT179
JUDGMENT P.N. Nag, J.
(1) This is a glaring case where the petitioner, who was a member of the Indian Audit and Accounts Service, has been put on the road without any job due to indifferent and unconcerned attitude of the resents I to 3 and 5.
(2) The petitioner joined the Indian Audit and Accounts Service in 1958 and was holding a substantive post in Junior Administrative Grade of Rs. 1500-100-3000 with effect from 15th July, 1982.
(3) In 1982 itself, the petitioner, while was working as Joint Advisor (Finance), Ministry of Finance, Bureau of Public Enterprises, New Delhi on deputation from his parent cadre of Indian Audit and Accounts Service, was selected by the Public Enterprises Selection Board for the post of Director (Finance) in the Fertilizer Corporation of India Ltd. (for short 'FCIL'), without his application for such job.
(4) On his selection in the Fcil by the Public Enterprises Selection Board, the petitioner vide letter dated 9th March, 1982 (Annexure 'A') gave his option for getting permanently absorbed in the public sector immediately on appointment with the reservation that his emoluments drawn by him before absorption should be fully protected and other pensionary benefits as admissible to Government servants on absorption in public sector in public interest should also be made available to him immediately. This letter of option after having been forwarded by the Comptroller & Auditor General, to whom it was addressed by the petitioner, to the Government of India, Department of Chemicals & Fertilizers. The Government of India, Ministry of Petroleum, Chemicals & Fertilizers (Department of Chemicals & Fertilizers) on behalf of the President of India vide order dated 8th June, 1982 (Annexure 'D'), pursuant to Article 66(1) of the Articles of Association of the Fcil appointed the petitioner as Director oil the Board of FCIL. In addition, the President, on the basis of immediate permanent appointment in the grade of Rs. 2500-3000, further appointed the petitioner in terms of Article 69 of the Articles of Association of Fcil as Director (Finance) of Fcil for a period of five years or till the age of his superannuation, whichever is earlier. It was stipulated therein that other conditions of his appointment in his capacity as Director (Finance) will be issued separately. According to the petitioner, he did not accept the terms and conditions of five years as Director (Finance) in Fcil and wrote certain letters to the Comptroller & Auditor General, his parent cadre, who in turn took the matter with the Government of India for his permanent absorption or appointment in FCIL.
(5) Again, vide letter dated 5th October, 1982 (Annexure 1'), the Government of India Ministry of Chemicals & Fertilizers finalised some of the terms and conditions of the petitioner. As regards his tenure as Director (Finance), it was again fixed for 5 years and such appointment was terminable by either side by giving 3 months' notice or salary in lieu thereof, without assigning any reason.
(6) It appears that the petitioner still not being satisfied with such terms and conditions, further negotiations between the parent cadre, i.e., Asstt. Comptroller & Auditor General and Government of India, Ministry of Chemicals & Fertilizers took place for finalisation of terms and conditions, including the permanent absorption of the petitioner in Fcil and consequently the Government of India asked the petitioner to take up the matter with the Fcil to expedite the steps so that the Comptroller & Auditor General could obtain the sanction of the Government for permanent absorption of the petitioner in FCIL.
(7) Ultimately the petitioner in his to letters dated 4th May, 1983 (Annexure 'L') addressed to the Comptroller & Auditor General while enclosing as formal letter giving his consent for absorption in Fcil agreed for his permanent absorption in Fcil with effect from 17th July, 1982 A/N in public interest and on having been permanently absorbed in the Fcil for termination of his lien in the parent cadre with effect from that date. Further, the Petitioner requested that he should be also be sanctioned pensionary benefits, encashment of leave and other benefits including gratuity etc. as well. 'Consequently the Government of India vide letter dated 10th June 1983 (Annexure 'M') addressed to the Comptroller & Auditor General ultimately finalised the terms and conditions of the petitioner's absorption in Fcil including family pension, carry forward of leave, grant of pension, gratuity etc. Vide this letter, the petitioner was permanently absorbed as an officer in the Selection Grade in the Administrative Grade with Fcil in public interest with effect from 17th July, 1982 without any stipulation of any tenure of 5 years. Although this letter was addressed by the Government of India, Ministry of Finance, to the Comptroller & Auditor General and not to Fcil it goes without saying that under Article of Association, the President has retained overall control over the appointment of Directors and the Government had every power on behalf of the President to issue such letter incorporating terms and conditions of the petitioner as Director (Finance).
(8) It has not been disputed either in the counter affidavit or at the Bar by the respondent No. 3's counsel, Dr. Anand Prakash, that this appointment of the petitioner was as Director (Finance). This letter referred to the petitioner's appointment as permanent absorption with effect from 17th July, 1982 with the Fcil and elaborate terms and conditions were provided therein. Consequent upon the issuance of this letter and permanent absorption in Fcil with effect from 17th July, 1982, the Comptroller & Auditor General, parent cadre of the petitioner, issued an order of retirement of the petitioner providing therein that the petitioner is deemed to have retired from Government service with effect from the same date in terms of Rule 37 of the Central Civil Service (Pension) Rules, 1972 (Annexure 'N').
(9) Consequent upon the issuance of the letter dated 10th June, 1983 by the Government of India, petitioner's permanent absorption in Fcil and retirement from Government service with effect from 17th July, 1982, the petitioner held a permanent post of Director (Finance) in Fcil and held a lien on that post on his joining Cci afterwards. It has been specifically pleaded by petitioner in para 2(q) of the petition that he held a lien on the post of Director (Finance) in Fcil and under Rule 14-A of the Fundamental Rules read with Government of India instructions dated 1st October, 1963 (Annexure 'Y'). His lien on a permanent post can, in no circumstances, be terminated even with his consent. Such a lien can be terminated only in case an employee resigns his appointment. This argument would be discussed afterwards.
(10) According to the petitioner, because of the good work done by him in Fcil, he was selected by Public Enterprises Selection Board for the post of Director (Finance) in Cement Corporation of India (for short 'CCI') and he was appointed as such vide letter of the Government of India, Ministry of Industry dated 12th November, 1984 (Annexure '0'), in pursuance of Article 95 (a) and (b) of Articles of Association of Cci for two years with effect from the date he assumed charge. He was relieved by Fcil from the post of Director (Finance) vide Government of India's letter dated 12th December, 1984 (Annexure'Q') with effected from 5th December 1984. Ultimately his terms and conditions of appointment of the petitioner as Director (Finance) in Cci were finalised vide letter dated 4th February, 1985 (Annexure 'S') issued by the Government of India, Ministry of Industry and one of the conditions in the appointment letter was that his appointment would be for a period of 2 years in the first instance which would be liable for termination of 3 months' notice from either side. According to the petitioner, after he joined Cci he observed many deficiencies and irregularities in the functioning of the organisation, insofar as the same fell within the province of his duties as Director (Finance) and additional charge of Marketing Division entrusted to him by the then Chairman & Managing Director of Cci and set himself to the task of removing them. The petitioner was also holding a prestigious position as Vice President of the Institute of Cost & Works Accountants of India-a professional accounting body set up under an Act of Parliament, during this period. Due to his initiative and keenness to improve the working in Cci and to remove the deficiencies and irregularities, he came into conflict with the then Chairman & Managing Director of Cci who was responsible for all these irregularities and deficiencies. As a result of this hostility of the then Chairman & Managing Director of Cci, the petitioner's services were terminated forthwith vide Government of India, Ministry of Industry's letter dated 20th January, 1986 (Annexure "I") and the petitioner was paid three months' pay and allowances in lieu of the period of notice. According to the petitioner, because of his pointing out irregularities, deficiencies and mal-practices in Cci, the Government of India appointed an Expert Committee to hold an enquiry in the matter about the conduct of the then Chairman & Managing Director of Cci and the Government on the basis of the findings of that Expert Committee sacked the then Chairman & Managing Director of Cci, which clearly showed that the petitioner was penalised for working honestly in Cci and for exposing the then Chairman & Managing Director of CCI. The order, therefore, being malafide passed at the behest and at the -instance of the then Chairman & Managing Director of Cci, requires to be set aside apart from being in violation of principles of natural justice, arbitrary and against the rules.
(11) Consequent on the termination of service, the petitioner wanted to revert back to his parent department Fcil as Director (Finance), with effect from 20th April, 1986 on expiry of notice period of termination of service in Cci (Annexure 'W), the post on which he held his permanent lien But Fcil refused to take him back in service which is apparent from the letter dated 14th April, 1986 (Annexure 'X') wherein they have clarified that the employment of the petitioner as Director (Finance) clearly ceased with effect from the afternoon of 5th December, 1984 immediately .on his being relieved of the charge of Director (Finance), Fcil, consequent upon his appointment as Director (Finance) in Cci under reference of Government of India, Ministry of Chemicals & Fertilizers Order No 76/17/82-FDC dated 12th December, 1984. In this letter, again, it was stated by Fcil that Fcil had also effected final settlement of his Gratuity and Provident Fund and transferred them to Cci as terminal benefits accruing to his account. Therefore, the question of his seeking reversion to his earlier appointment as Director (Finance) of Fcil d')es not arise at all and Fcil would not be in a position to take any cognizance of his letter seeking issue of any order to enable him to resume duty in FCIL.
(12) According to the petitioner, he resigned from his parent cadre, i.e., Comptroller & Auditor General on his permanent absorption in Fcil and that is why his parent cadre, ie.. Comptroller & Auditor General issued a notification dated 21st June, 1983 vide which he was ordered to be ret'red by deeming fiction with effect from 17th July, 19b2, which was clearly made contingent on his permanent absorption in FCIL. His retirement from his parent cadre, therefore, depends upon the permanent absorption in FCIL. In case the prevent stand of Fcil is taken into account that he does not hold a lien in the post of Director (Finance) in Fcil, the necessary consequence that will follow is that he cannot be considered to have been permanently absorbed in Fcil and, therefore, he still continues to be in Government service, i.e., in the office of the Comptroller & Auditor General. A the cost of repetition this retirement of the petitioner was only dependant on the condition of his permanent absorption in Fcil, which position had not been accepted by Fcil as they refused to take him back in FCIL. Therefore, in these circumstances, he is entitled to go back to the Government service in his parent cadre.
(13) The petitioner in this writ petition, therefore, has prayed for quashing of the impugned order of termination dated 20th January, 1986 (Annexure T). impugned letter of Fcil dated 14th April. 198 ' (Annexure 'X') refusing reversion of the petitioner to Director (Finance) in Fcil, and the impugned order No. 2^01-GE.I/J-13/PF/Pt. Iv dated 12th May, 1986 of Comptroller & Auditor General refusing the petitioner to take back in permanent cadre of Indian {Audit & Accounts Service, and for a writ of mandamus directing respondents to take the petitioner back in service and award him consequential benefits as a result of re-instatement.
(14) The case set up by respondent No. 4-CCI-is that the petition is not maintainable as it does not disclose any legal right of the petitioner and the petitioner is governed by contractual terms of appointment and his services have been terminated in terms of the appointment, particularly clause I thereof, and as such there is no question of any opportunity being given to the petitioner or the order being arbitrary. Further, it has been denied that the services of the petitioner have been terminated because he exposed the mis-management and mal-practices of the then Chairman & Managing Director of Cci, which resulted into an enquiry against him and ultimately his termination. It has been specifically denied that the then Chairman & Managing Director of Cci harboured any prejudice or bias or hostility against the petitioner on account of which his services were terminated. In fact, decision for termination of the petitioner was taken at the highest level and the then Chairman & Managing Director of Cci was not connected with the decision for termination of services of the petitioner.
(15) The case set up by respondent No. 3, Fcil, is that the petitioner joined the services of Fcil with effect from 17th July, 1982 in the capacity of Director on the Board of Directors of Fcil and as Director (Finance) on an immediate absorption basis for a period of 5 years or till the age of superannuation, whichever was earlier. The immediate absorption means that the petitioner had joined Fcil by totally severing his connections with the Government. It has been clarified that the petitioner was appointed only in one capacity, namely. Director (Finance) of Fcil in the grade of Rs. 2500-300U for a period of 5 years or till the age of superannuation whichever was earlier. The post of Director on the Board of Fertilizer Corporation of India is a post which goes along with the post of Director (Finance) and hence it is really one post only and not a separate post in itself. The tenure of the petitioner has been fixed vide letter dt. 8th June, 1982 (Annexure 'D') issued for and on behalf of the President of India, which provision was again incorporated in the letter dated 5th October, 1982 (Annexure I') issued by the Government of India. Government of India's letter dated 10th June, 1983 (Annexure 'M'), which refers to the permanent absorption of the petitioner with effect from 17th July, 1982 in Fcil, does not over-ride the provision of fixation of tenure of the petitioner as Director (Finance) for a period of 5 years which was originally fined by the President in his letter dated 8th June, 1982 (Annexure 'D') as this letter only conveys the sanction of the President to the permanent absorption of the petitioner in Selection Grade, Junior Administrative Grade, in Fcil with effect from 17th July, 1982 and the provision of fixing the tenure of the petitioner as Director (Finance) remained unaltered as the permanent absorption can only be interpreted if both the notifications are read harmoniously as permanent absorption/appointment for a period of 5 years or till the age of superannuation, whichever is earlier. The period of tenure of 5 years of the petitioner as Director (Finance) would have ended on 16th July, 1987 and as such it is not possible to take him in the service of FCIL. At any rate, on the petitioner having been selected as Director (Finance) in CCl and the appointment letter having been issued to him on 4th February, 1985 (Annexure 'S'), the petitioner was relieved from the post of Director (Finance) in the afternoon of 5th December, 1984 and the petitioner relinquished charge of the said post on the same date. The petitioner had not maintained any lien of his post in the Fcil nor had he requested for this and that he could not be taken back in FCIL. The Fcil had only one post of Director (Finance) which has already been filled up with effect 9th July, 1985 on immediate absorption basis under Presidential order up to the date of his superannuation. Respondent No. 3 has again denied that the petitioner has retained a lien in Fcil as the petitioner has stood relieved from Fcil and joined CCl under new master, and as such be has severed all connections with FCIL. In fact.he has accepted the settlement of Provident Fund and Pension etc. and asked for the transfer of those to his account in CCl and as such he is estopped from challenging the position that he has not severed his connections with FCIL.
(16) However, it may be noted that respondent No. 3 has deemed to have admitted in reply to para 2(q) of the petition that FR. 14-Aand Government of India's instructions dated 1st October, 1963 (Annexure "Y') are applicable in this case about retention of lien while he was in foreign service ia CCl and such averment has not specifically been denied.
(17) At this stage, it may be pointed out that respondent No. 3 has moved Cm 3^88/90 for placing additional affidavit on the record which relates to various documents, on which they went to rely upon. This application has been moved when arguments were already in advanced stage. In our opinion, these documents could be placed on the record by way of amendment of the writ petition, and not through this application, as. For Example, the decision of the Board of Directors dated 20th September, 1979 (Annexure 'A-4' to the application) relates to retention of lien in respect of certain employees of Fcil, if allowed to be placed on the record.would have taken '.way the admission of respondent No. 3 in the reply that Fundamental Rules for retention of lien will apply in this case. At least, this would have set up an inconsistent and different case, set up in the reply of respondent No. 3. In such a situation this would have resulted in adjournment of the case practically we have already heard the case at length, and as such, we did not consider expedient in the interest of justice to pass any order on this application, and we have proceeded to decide the case on the record already available.
(18) Respondents 1,' 2 and 5 have filed a common reply and, in substance supported the stand of respondents 3 & 4. The stand taken by them is that CCl has terminated the services of the petitioner in accordance with the terms and conditions of the letter of appointment as he was found unfit on account of inefficiency and not on account of any malice, grudge ill-will, the then Chairman & Managing Director of CCl had against him. Further, he was appointed only for 5 years as Director (Finance)-functional director-or till the age of superannuation, whichever was earlier, in Fcil and on having joined CCl, he served his connections with the Fcil and as such he could not have retained a lien in that Corporation. However, insofar as service rendered by the petitioner in Government is concerned, the petitioner had retired from Government service under Rule 37 of the Central Civil Service (Pension) Rules, 1972 after he resigned from the Indian Audit & Accounts Service vide his letter dated 4th May, 1983 (Annexure 'L'). Therefore, petitioner's lien in Indian Audit & Accounts Service automatically stood terminated from 18th July, 1982 in terms of the position clarified in Ministry of Finance 0.M. No. 4 (3)-E. IV/A/63 dated 1st October, 1963 (Annexure 'Y'). As such there was no question of retaining a post or lien of the petitioner under respondent No. 5 after his retirement from Government service. It is further stated that F.R..14-A applies only in a case where the Govt. servant remains a Govt. servant and goes on deputation from one department to another. In the case of the petitioner, F.R. 14-A ceased to apply after his retirement from Government service and his absorption in FCIL. However, it may be pertinent to mention here that the petitioner appeared before the Public Enterprises Selection Board on 31Ist August, 1984 on the basis of an invitation for the purpose of consideration of his candidature for the post of Director (Finance), Cci and the very fact that the petitioner appeared before the Public Enterprises Selection Board of his own will shows that he himself was interested for appointment for the post of Director (Finance), CCI.
(19) Mr. Gupta. learned counsel appearing for the petitioner vehemently assailed the order of termination (Annexure "T") on the ground that the order of termination has been passed at the instance of the then Chairman & Managing Director of Cci who was biased against the petitioner and who harboured ill-will against him as the petitioner had pointed out various deficiencies, irregularities and mal-practices against him on the basis of which an Expert Committee was appointed by the Government resulted in his ultimate sacking on the basis of the Committee's findings which went against him. Since the order was passed at the behest of the then Chairman & Managing Director due to ill-will against him, the order is bad in the eyes of law being mala fide as well as arbitrary.
(20) This contention of the petitioner has no force and cannot be accepted. In the first instance, the then Chairman & Managing Director against whom mala fides have been alleged by the petitioner has not been imp leaded as party in the absence of whom these allegations cannot be gone into. it is settled principle of law that a person against whom mala fides are alleged has necessarily to be imp leaded as a party. Secondly, there is no material on record to suggested that the enquiry was instituted against the then Chairman & Managing Director of Cci only at the instance of complaint of the petitioner or there was other material available on the record as well warranting such an enquiry. The courts do not act on mere suspicion-which cannot take the place of proof, and are slow to draw dubious inferences. In E.P. Royappa v. State of Tamil Nadu and others (1974-1 Slr 497) the Supreme Court has observed that the burden of the establishing mala fide is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The court would, therefore, be slow to drawn dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.
(21) At any rate, these facts of bias, mala fides as alleged by the petitioner have been seriously disputed by respondent No. 4 and as such disputed question cannot be gone into the writ petition. In our opinion, therefore, it cannot be held in the present circumstances that the petitioner's services were terminated out of malice, grudge, animosity or bias of the then Chairman & Managing Director.
(22) Further, we find that this appointment was contractual appointment and according to clause (1) of the appointment letter dated 4th February, 1985 his appointment was fixed for 2 years in the first instance which was liable for termination by notice from either side. In view of this clause the services to the petitioner were terminated vide annexure 'I" and it was decided that the petitioner be paid three months' pay and allowances in lieu of period of notice. Since the petitioner's appointment was terminated in accordance with the appointment letter, there is no question of any violation of principle of natural justice or such action being arbitrary or violation of provisions of Article 14 of the Constitution of India. The services of the petitioner were terminated by the President who admittedly has such power under Article 95 (d) of the Articles of Association of CCI. Therefore, the contention of the petitioner fails.
(23) Mr. Gupta, learned counsel for the petitioner next vehemently contended and insisted time and again that after having joined CCl, the petitioner continued to have ' a lien in FCIL. In support of his submission he relied upon Fundamental Rules and Instructions of the Government of India which would be discussed hereinafter. These seems to be a good deal of force in the submission of the learned counsel for the petitioner.
(24) In order to appreciate the contention of the learned counsel for the petitioner, the first question that arises for consideration is as to what are the terms and conditions proved for Director (Finance) in FCIL. At this stage, it may be stated that the petitioner had neither applied for the appointment as Director (Finance) nor was he in any manner associated with the negotiations and agreement regarding terms and conditions of his appointment as Director (Finance) in FCIL. He could join in Fcil and leave his parent cadre, i.e., Comptroller & Auditor General of India in case the terms and conditions in Fcil were to his satisfaction and only thereafter his parent cadre could order for his retirement. Therefore, it was found necessary for the office of the Comptroller & Auditor General to finalise the terms and conditions of the petitioner in Fcil to his satisfaction. As a result thereof negotiations for finalisation of the terms and conditions for absorption of the petitioner in Fcil between the F.C.I.L., Comptroller & Auditor General and Union of India at the instance of the petitioner started with effect from March, 1982. Consequent upon the selection in Fcil on the basis of the letter written by the petitioner on 9th March, 1982 (Annexure 'A') that he has no hesitation to gave his option for getting permanently absorbed in the public sector immediately on appointment subject to the protection of his emoluments drawn by him immediately before absorption, the Comptroller & Auditor General on the same date forwarded that letter to the Government of India Department of Chemicals & Fertilizers (Annexure 'B') wherein the petitioner has given his consent for appointment in public sector undertaking. Further the Comptroller & Auditor General office vide letter dated 17th May, 1982 (Annexure 'C') informed the petitioner that his services would be placed at the disposal of the Government of India, Department of Chemicals & Fertilizers for appointment as Director (Finance), Fcil in the pay scale of Rs. 2500-300O on immediate absorption basis and that his terms & conditions shall be regulated by the orders of the Government regulating terms and conditions of absorption of Central Government employees in Central Public Sector Undertakings as amended from time to time.
(25) It is apparent from the letter of the petitioner giving his option for permanent absorption in public sector undertaking which was sent by the Assistant Comptroller & Auditor General to the Government of India that the petitioner in fact asked for permanent absorption in public sector undertaking and nowhere did he accept the tenure appointment. As a result of such an option the Director, for and on behalf of the President of India, by virtue of Article 66(l)of the Articles of Association of the Fcil appointed the petitioner as Director on the Board of FCIL. Further, the President, on the basis of immediate permanent appointment in the grade of Rs. 2500-3000, appointed the petitioner, in terms of Article 69 of the Articles of Association of Fcil as Director (Finance) of the Corporation for a period of 5 years or till the age of his superannuation, whichever is earlier. Other terms and conditions of appointment were to be issued separately. The petitioner, it appears, joined the appointment with effect from 17th July, 1982. No doubt, in this order of 8th June, 1982 (Annexure'D') the petitioner has been appointed as Director (Finance) in Fcil for a period of 5 years of the date of superannuation, whichever is earlier, however, in the Articles of Association no age/ period has been prescribed for Director (Finance) who is admittedly the functional director under Article 66(2) of the Articles or Association.
(26) The petitioner vide his letter dated 'nil' (Annexure 'E') while referring to letter dated 8th June, 1982 appointing him as Director {Finance) of Fcil in the scale of Rs. 2500-100-3000 on immediate permanent appointment, brought to the notice of the Secretary, Ministry of Petrol (27) The petitioner, in his letter dated 31st August, 1982 (Annexure 'G') addressed to the Comptroller & Auditor General again wrote that since he has given his consent for getting him permanently absorbed in public sector undertaking, necessary orders/sanctions for his permanent absorption in Fcil in public interest with effect from 17th July, 1982 (A/N) may kindly be issued in order to enable him to draw pension, gratuity etc. and avail of the benefits like un-availed leave L.T.C., family pension etc. in accordance with he standing orders issued on the subject by the Government of India. In response to this letter of 31st August, 1982 (Annexure 'G'), the Assistant Comptroller & Auditor General (Personnel) vide annexure 'H' wrote to the petitioner that the should get the terms and conditions for his permanent absorption expedited in Fcil which should be sent to them and this unconditional acceptance thereof in order to enable them to take further action in the matter.
(28) These two letters clearly show that both the petitioner and his parent cadre, i.e., the Comptroller & Auditor General of India were contemplating the petitioner's absorption in Fcil on permanent basis and not for a fixed tenure.
(29) It appears on 5th October, 1982 (Annexure 'I') the Government of India, Ministry of Chemicals & Fertilizers on behalf of the President was further pleased to decided the terms and conditions of the petitioner in which, again, one of the conditions provided was that the appointment will be effective with effect from 17th July, 1982 (A/N) for a period of 5 years and the appointment was terminable by either side on three month's notice or with salary in lieu thereof without assigning any reason.
(30) It appears that even after the issue of this letter of 5th October, 1982 providing further terms and conditions of the petitioner as Director (Finance) the tenure of the petitioner as Director (Finance) originally fixed for 5 years, remained unaltered. The Government of India, Ministry of Chemicals vide letter dated 22nd February, 1982 (Annexure 'K') further wrote to Fcil that further action for the finalisation of the terms and conditions regarding permanent absorption of the petitioner in Fcil be expedited so that the Comptroller & Auditor General of India could obtain the sanction of the Government for petitioner's permanent absorption in FCIL. The petitioner vide letter dated 4th May, 1983 (Annexure 'L') while addressing a letter to the Comptroller & Auditor General gave his consent for permanent absorption in Fcil with effect from 17th July, 1982 subject, however, to the condition that the absorption is treated in public Interest in terms of existing orders issued by the Government of India and simultaneously he agreed for termination of his lien in the Indian Audit & Accounts Service from that date.
(31) The letter of the Government of India dated 22nd February, 1983 and the letter of the petitioner dated 4th May) 1983 clearly show that the petitioner did not accept at any stage his appointment as Director (Finance) for a tenure of 5 years or till the age of superannuation whichever was earlier. Ultimately, the Ministry of Finance letters dated 8th June, 1982 and 5th October, 1982 were superseded. As has been discussed in detail that although in earlier two letters aforementioned 5 years' tenure of the petitioner as Director (Finance) was fixed but the petitioner at no stage accepted this position and has been objecting to the fixation of such a tenure to his parent cadre who in turn was writing to the Government of India who was the final authority in the matters of appointment of the top post of Director (Finance) and other directors. As a result of the negotiations that went on between the Comptroller & Auditor General, the Government of India at the instance of the petitioner from March, 1982 to June, 1983, finally his terms and conditions were finalised vide letter dated 10th June, 1983 (Annexure 'M') and he was permanently absorbed. Vide this letter other provisions which provide for terms and conditions of the petitioner vide letters dated 8th June, 1982 and 5th October, 1982 stood superseded insofar as these provisions were inconsistent and in conflict with the provisions finally incorporated in the letter of 10th June, 1983, aforementioned. The terms and conditions having been finalised on the basis of the petitioner's letter dated 4th May, 1982, the Comptroller & Auditor General, parent cadre, vide notification dated 21st June, 1983 (Annexure 'N') retired^ the petitioner in the following terms : "Consequent upon his permanent absorption in the Fertilizer Corporation of India Ltd. (A Central Public Sector Undertaking), New Delhi in public interest, with effect from 17th July, 1982 A.N., Shri D.K. Jain, I.A. & A.S., is deemed to have retired from Government service with effect from the same date in terms of Rule 37 of the Central Civil Services (Pension) Rules, 1972."
Consequently a lien of the petitioner, after retirement, in Government service was terminated.
(32) It appears that the terms and conditions for permanent absorption of the petitioner were under process and the post of Director (Finance) was to be filled urgently, the President issued order of appointment dated 8th June, 1982 as (i) Director in the grade of Rs. 2500-3000 and (ii) Director (Finance) for five years. The terms and conditions were to be issued separately. Thereafter the terms and conditions were issued on 5th October, 1982. The said two orders are in the nature, of interim arrangement pending finalisation of terms and conditions of permanent absorption of the petitioner in FCIL. After the issue of order dated 10th June, 1983 the said orders have no force and became redundant since by order dated 10th June, 1983 the petitioner is absorbed permanently with effect from 17th July, 1982 in FCIL. The petitioner acquired lien on the post of Director (Finance) in FCIL.
(33) In the light of the negotiations between the parties, as discussed above, it is clear that what the parties in fact understood and intended by the words 'permanent absorption" was 'absorption in Fcil on the basis of appointment permanent' as Director (Finance) and not for a tenure of 5 years. In fact this is in consonance with the Articles of Association of Fcil as no tenure has been fixed for the Director (Finance) who is a functional director. The petitioner held a substantive post in Indian Audit & Accounts Service in the Junior Administrative Grade. It seems inherently improbable and unlikely that by opting for permanent absorption in Fcil, the petitioner would have opted for a temporary post or a post with limited term. Having regard to the human conduct no person is likely to enter from the realm of security and certainty to insecurity and uncertainty, more particularly in the same grade, and almost with same emoluments, therefore, in such circumstances the petitioner's permanent absorption in Fcil could only mean that he wanted to become an inseparable part of the Corporation by acquiring the status of a permanent or regular employee and could not be assumed to mean appointment against any temporary post or a- post with a limited term. Therefore, the only rational interpretation that can be put to the words "permanent absorption" as used in Government of India's letter dated 10th June, 1983 is that the petitioner was absorbed in Fcil permanently on a substantive appointment.
(34) The next question that arises for consideration in whether or not the petitioner has held any lien on the post of Director (Finance) in Fcil after he has joined Cci or he has severed all connections from FCIL. In this connection as already referred to earlier the petitioner has pleaded the application of fundamental rules in para 2(q) which has not been specifically denied by respondent No. 3. Apart from this, according to clause (x) of the letter dated 10th June, 1983 'for the period of service rendered by Shri D.K. Jain in Fertilizer Corporation of India from the date of permanent absorption, he will be entitled to all the benefits admissible to corresponding employees of the Organisation and continue to be governed by Fertilizer Corporation of India rules in all respect'. The broad features of general terms and conditions of the employees have also been given in Chapter Vi of Financial Handbook complied by Fcil in which we also find that on the point of retaining a lien there is no provision. However, Rule 6.4 provides that wherever any subject/point is not covered under any of the set of rules from (i) to (xiii) above, the Fundamental and Supplementary Rules as issued by the Government of India and the practices as applicable to the Central Government Employees would be followed. Under Article 69(2) of the Articles of Association of Foil, Director (Finance) who is a functional director is a whole-time employee and shall be paid salary and allowances as may be fixed by the President. Therefore, Rule 6.4 of the Financial Handbook would be applicable in the case of the petitioner and for determining the question we can have resort to various provisions of Fundamental Rules regarding holding the lien.
(35) The petitioner, while was in service of CCl, was receiving his pay with the sanction of the President/Government from the source other than the Consolidated Fund of India or of a State and as such according to the definition of F.R. 9(7) while working in CCl, be was on foreign service.
(36) As already discussed, the petitioner was holding a permanent appointment in Fcil and while being in foreign service in CCl under F.R. 13(b) he was entitled to hold a lien on the post of Director (Finance) in FCIL. In the present case, the petitioner's lien has neither been suspended under Rule 14 or transferred under Rule 14-B and, therefore, there is nothing against the petitioner for holding/retaining a lien on the post of Director (Finance) in FCIL. 'Lien' means, according to definition under Rule 9(13), the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. The petitioner's lien which he held on permanent basis as Director (Finance) in Fcil in no circumstance could be terminated even with his consent if the result would be to leave him without a lien or a suspended lien upon a permanent post, under F.R. 14-A. (37) A question was raised before the Government of India as to what procedure should be followed for terminating the lien of a permanent Government servant who is transferred on foreign service and is subsequently absorbed in the service of the foreign employer, and vide Government of India's notification dated 1st October, 1963 (Annexure'Y') it was clarified that F.R. 14-A applies only so long as a Government servant remains in Government service. Obtaining of consent of the Government servant to the termination of lien is necessary in certain circumstances where the Government servant is to be confirmed in another post under Government. Such consent is not necessary in cases where the Government ceases to be in Government employment. The proper course in such cases, where it is proposed to absorb him in non Government service in public interest, would be to ask the Government servant concerned to resign appointment under the Government with effect from the date of such permanent absorption -and the lien will stand automatically terminated with the cessation of Government service.
(38) In the light of what is discussed above, what follows is that the petitioner has a title to hold substantially the post of Director (Finance) in Fcil and hold a lien on that post. While he was in foreign service in CCl, such a lien in no circumstance could be terminated even with his consent if the result of that would be to leave him without a lien or a suspended lien upon a permanent post. Such lien, however, in case of absorption in service of foreign employer could only be terminated by resigning the appointment from the post on which lien is held and in that case the lien stands automatically terminated with the cessation of Government service, the substance of F.R14-Aandthe Government of India instructions is that unless a person ceases to be an employee of the Corporation under which he holds a lien of particular post, his lien in no circumstances can be terminated even with his consent if the result would be to leave him without a lien or a suspended lien upon a permanent post. In this case, the petitioner had not applied for the post of Director (Finance) in Cci but he was selected by Public Enterprises Selection Board and joined the CCI. He did not resign from Fcil nor did he retire from that Corporation nor in any way did he severe his connections with that Corporation. Therefore, he did not cease to be in the service of Fcil and continued to hold a lien in the post of Director (Finance) of Fcil while he was in service of CCI.
(39) Even if it is assumed that he has been appointed for a period of 5 years as the case appears to have been set up by the respondent, still the fact remains that in the light of the discussion above, he holds a lien on this post, may be against a tenure post, and he has a right to revert to Fcil after termination of service by Cci as by that time the period of 5 years has not elapsed.
(40) In the light of the discussion above, we hold that the petitioner has a right of lien on his post of Director (Finance) in Fcil and after his services were terminated by Cci he has every right to revert back to FCIL. In case the post of Director (Finance) is already filled up by some other incumbent and it is not possible to appoint the petitioner against this post, then he should be appointed in another equivalent post. The action of respondent No. 3 in not taking him back and putting on the post of Director (Finance) vide letter dated 14th April, 1986 (Annexure 'X') is wholly unsustainable in the eyes of law and the impugned order deserves to be set aside.
(41) Dr. Anand Parkash, Senior Advocate for respondent No. 3 however, equally vehemently defended the case of respondent No. 3 and submitted that the basic letter on the basis of which the petitioner has been appointed as Director/ Director (Finance) is a letter of 8th June, 1982 which appoints him (i) as Director on Board of Fcil ; and (ii) as Director (Finance) on ihe basis of immediate permanent absorption in the grade of Rs. 2500-3000 for 5 years or till the age of superannuation, whichever is earlier. Although, the letter uses the words 'permanent' appointment, it simultaneously makes it clear that the appointment is for a period of five years. Thus, it is a permanent appointment on a tenure of 5 years. However, it does not lay down the other conditions of his appointment in his capacity as Director (Finance). The subsequent correspondence is in connection with other conditions of his appointment in his capacity as Director (Finance). They do not and cannot vary either the capacity in which he was employed or the tenure for which he was employed. It uses the words 'permanent appointment' but, also makes it clear that the appointment is for a period of five years or till the age of superannuation, whichever is earlier. It was further submitted that the petitioner did not object to the period of 5 years which was fixed for his appointment as Director (Finance). However, he was insisting only for the protection of his emoluments and other conditions of service Government of India's letter dated 10th June, 1983 does not in any way superseded the original letter of 8th June, 1982 vide which the petitioner's tenure as Director (Finance) of 5 years was fixed. This letter only talks of permanent absorption which term has been explained by respondents l,2&5 in their reply-affidavit in para 2(a). According to them 'Permanent absorption' mentioned in letter dated 9th March, 1982 means that his appointment in public sector would not be on deputation terms but that from the date of his appointment in public sector, he would severe all his connections with the parent cadre of Indian Audit & Accounts Service and would become an employee of that public undertaking. His terms of appointment with the public sector would be in accordance with the terms and conditions mutually agreed between him and his public sector employer.
(42) We have carefully considered this submission of Dr. Anand Prakash and we regret that we are unable to accept this contention. At the cost of repetition it may be noticed that .the orders dated 8th June, 1982 and 5th October, 1982 which provide for tenure of 5 years were not accepted to by the petitioner in various letters, as already referred to and need not be repeated here. In fact, as already stated, negotiations for permanent absorption were going on at the instance of the petitioner, his parent cadre, Fcil and the Govt. of India from March, 1982 to June, 1983 and ultimately this letter of 10th June, 1983 was issued by the Government of India. It is, therefore, incorrect to say that this term and condition of 5 years was not objected to by the petitioner. Even if all the three letters are to be read together and not in isolation but in the context of the background in which this letter of 10th June, 1983 was issued by the Government of India and immediately thereafter on 21st June, 1983 the Comptroller & Auditor General issued an order of retirement of the petitioner in view of Rule 37 of the Central Civil Services (Pension) Rules, 1972, the provision of fixing tenure of the petitioner for 5 years stood impliedly repealed by letter of 10th June, 1983. Not only this, the latest order providing terms and conditions for him also clearly provide for the permanent absorption of the petitioner with effect from 17th July, 1982 and does not speak at all for fixing of tenure of the petitioner in Fcil for 5 years or till the age of superannuation whichever is earlier. This provision also appears to be in consonance with the articles of Association wherein no tenure has been fixed for Director (Finance) who is admittedly a functional director under Article 66(2) of the Articles of Association. Furthermore, as already discussed earlier, permanent absorption referred to in the letter of 10th June, 1983 can only mean absorption on permanent appointment as other interpretation will lead to absurdity. The interpretation to the words 'permanent absorption' given by respondents 1, 2 & 5 cannot also be accepted as for the interpretation of these words that the appointment of the petitioner in public sector would not be on deputation terms but that from the date of his appointment in public sector, he would severe all his connections with the parent cadre of Indian Audit & Accounts Service and would become an employee of that public undertaking the word 'absorption' itself would have been sufficient and there was no necessity of using the word "permanent". The mere fact that the words "permanent absorption" have been used, it implies that he has been appointed in Fcil severing all his connections from his parent cadre and has been appointed permanently.
(43) The next submission made by counsel for respondent No. 3 was that Government of India's letter dated 10th June, 1983 is not complete in itself. It does not even refer to the capacity of appointment in which the petitioner was appointed. This letter was only issued by the Government in order to provide for the absorption of the petitioner in Fcil with effect from 17th July, 1982. It was necessary because the petitioner had been absorbed with effect from afore- mentioned date about eleven months earlier to the issue of this letter. It also sets out certain other terms and conditions which were not fully provided earlier. However, no necessity was felt to provide for a tenure of the petitioner's appointment as Director (Finance) as this was already fully covered under letter dated 8th June, 1982.
(44) This contention of the learned counsel for respondent No. 3 is completely devoid of force and deserves to be rejected. It is no doubt true that the petitioner was absorbed in Fcil with effect from 17th July, 1982 and it was necessary to provide for such absorption in FCIl with effect from the same date to enable the Chief Comptroller & Auditor General to issue a letter of retirement of the petitioner which in fact was issued on 21st June, 1983. However, it is absolutely incorrect to say that such letter is incomplete in itseif. No doubt, there is no mention of the petitioner's appointment as Director (Finance) in this letter but the very fact that the President was pleased to appoint him on permanent absorption basis as an officer of the selection grade of Junior Administrative Grade in Fcil clearly shows that he was appointed as Director (Finance). In fact, in counter affidavit of respondent No. 3, in reply to para 2(h) it has been admitted that he was appointed Director (Finance) on permanent absorption basis in public interest with effect from 17th July, 1990 under terms and conditions set out therein. However, according' to them that was subject to the earlier letter dated 8th June, 1982 vide which the petitioner had been appointed to the post of Director (Finance) for 5 years. Therefore, there is no dispute about the appointment of the petitioner as Director (Finance) vide letter dated 10th June, 1983. In view of what has already been discussed earlier, it may not be desirable to repeat again that Government of India's letter dated 10th June, 1983 laying down certain terms and conditions of the petitioner superseded the earlier two letters, including letter of 8th June, 1982 vide which the tenure of the petitioner was fixed for 5 years. Even if it is assumed that all the Government of India's letters dated 10th June, 1983, 5th October, 1982 and 8th June, 1982 are read together, in our opinion it does not improve the case of the petitioner further rather it only shows that the petitioner, to begin with, vide letter dated 8th June, 1982 was absorbed as Director (Finance) on the basis of immediate permanent appointment and after further negotiations the term of 5 years was superseded by appointing him vide letter dated 10th June, 1983 on permanent absorption basis by appointing him substantively to the post of Director (Finance). We have seen other terms and conditions set out in this letter which are almost the same which are normally applicable to other employees of the Corporation.
(45) The next submission raised by Dr. Anand Parkash, learned counsel for respondent No. 3 is that no reliance can be placed on the letter of 10th June, 1983 as this has not been issued on behalf of the President of India who in fact is the proper authority for providing terms and conditions of the petitioner. It is only letter of 8th June, 1982 which has been issued for and on behalf of the President of India and which provides for a fixed tenure of 5 years, can be taken note of. Furthermore, the letter of 10th June, 1983 is an internal communication addressed by the Government of India to the Comptroller & Auditor General of India and even no copy thereof has been addressed to the petitioner and it is Fcil alone which is distinct and legal entity which can provide for terms and conditions and not the Government of India. So, according to him, this order is in fact without jurisdiction and cannot bind the FCIL. This argument of Dr. Anand Parkash is completely devoid of force and has to be rejected. It may be noted that the Government of India has formulated a policy of appointment of top posts of Directors in the public undertakings and has constituted Public Enterprises Selection Board. The public sector enterprises of the Central Government are expected to play a crucial role in the development of the national economy. Their financial and managerial health, their growth, expansion and development and the attainment of the objectives for which they have been set up are matters, therefore, of very serious concern. Government feels that if the above-stated objectives are to be achieved, the procedure for managing of posts at all levels in Public Sector Enterprises must firstly be reoriented in a way which gives the top management of enterprises greater responsibility and accountability for performance. Secondly and no Jess important is the need to improve management motivation by ensuring that merit and potential are recognised and properly utilised.195 (46) No doubt, the power for the recruitment, training and promotions in respect of the bulk of managerial posts in the Public Enterprises have been delegated to the companies themselves. However, Government has retained the prerogative of appointment of the Chairman, both part-time and full-time, and the members of the Board of Directors. In order to evolve a sound managerial personnel policy for the Public Sector Enterprises and in particular to advise Government on appointments within its prerogative and also to advise the enter- prises on management development within the companies, the Government of India have decided to constitute a Public Enterprises Selection Board with the membership. Keeping this background in view it appears that under Articles of Association the President has been empowered to make certain appointments of the Board of Directors etc. in corporations and that is why the 'orders are sometimes issued for and on behalf of the President of India, at certain times orders are issued by the Government of India conveying the sanction of the President and thereby laying down certain terms and conditions of the top-most post. In the present case, we have seen the orders that have been issued either on behalf of the President or by the Government of India itself conveying the sanction of the President. It would be seen from the letter of 10th June, 1983 that the sanction of the President has been conveyed to the permanent absorption of the petitioner in Fcil in public interest with effect from 17th July, 1982 and the order has been issued on behalf of the Government of India. We, therefore, fail to understand how this letter does not bind the Fcil under Articles of Association when the President of India/Government of India on behalf of Fcil has the power to appoint the top officers including the Directors and to lay down terms and conditions. It is not merely an internal communication between the Comptroller & Auditor General and the Ministry of Finance but it is a letter laying down terms and conditions of the appointment of the petitioner as Director (Financed by the Government/President of India which power they derive from the Articles of Association. Such terms and conditions, therefore, are wholly binding on Fcil and they cannot be permitted to raise this contention (47) It was next contended by Dr. Anand Parkash that Rule 6.4 of Chapter Vi of the Financial Handbook cannot be relied upon by the petitioner as this book is only/merely a compilation and nothing more and the only authenticated documents which prescribe the terms and conditions of the petitioner's appointment are those which have already been produced and one of the basic document for that purpose is dated 8th June, 1982 which prescribes a period of 5 years or till the age of superannuation, whichever is earlier. The reference to para 6.4 that if any appointment is not covered under any of the rules in respect of the employees of the Corporation, the Fundamental Rules & Supplementary Rules would be followed, is wholly misconceived as the Director and Director (Finance) cannot be considered as employees of Fcil for the purpose of Chapter Vi as in the Articles of Association there is a separate provision provided for the Directors.
(48) We regret we are unable to accept this contention also. In the first instance it may be noted the application of Fundamental Rules and Govt. of India instructions has not been specifically denied by respondent No. 3 in para 2(q) of the reply. Even otherwise, under Articles 69(2) of the Articles of Association functional director which includes Director (Finance) is an employee of the Corporation and as such Rule 6.4 of Financial Handbook is applicable. There may be different other provisions for the Directors under Articles of Association but these provisions do not show anything to the contrary. Furthermore , nothing has been shown that there is anything in the Articles of Association or otherwise under some instructions/rules under which there is a provision for retention of lien of the employees in FCIL. The Financial Handbook is the authoritative book of Fcil and issued by that Corporation and on the face of that we see no reason why the provisions found in Chapter Vi, particularly Rule 6.4, should not be followed by that Corporation when no provisions to the contrary for providing or retaining lien in Fcil when a man is appointed on permanent basis has been pointed out. Therefore, it is reasonable to hold that Rule 6.4 is applicable in the present case and for the purpose of retaining/hold- ing a lien on permanent assignment as Director (Finance), Fundamental Rule are applicable.
(49) It was next argued that the petitioner has been appointed in Cci as Director (Finance) for 2 years by letter dated 12th November, 1984 (Annexure '0') and that he was issued a letter dated 4th February, 1985 (Annexure'S') laying down certain terms and conditions. It is not disputed that both the Fcil and Cci are two distinct corporations and as such two distinct legal entities. The appointment of the petitioner with Cci, therefore, was a fresh appointment under new master. In fact, each appointment in public sector is a fresh appointment and the tenure of appointment in these posts will also count afresh from the date of appointment to the new posts. Therefore, the appointment of the petitioner with Cci was a new appointment and not appointment which was in continuation of the appointment with FCIL. Further, Cci is a separate legal entity under Companies Act and with the appointment of the petitioner with Cci, his appointment with Fcil automatically came to an end. In these circumstances, there is no question of petitioner's holding any lien on the post of Director (Finance) in FCIL. In support of this submission the petitioner heavily relied upon Sindhu Resettlement Corporation Ltd. v. Industrial Tribunal of Gujarat and others . R.S. Ambwaney, respondent No. 3 in that case, was originally employed by Sindhu Resettlement Corporation, principal company, as Accounts Clerk and was transferred to subsidiary company, namely, Sindhu Hotchief (India) Ltd. which was incorporated for the purposes of developing Kandia port. The services of Ambwaney were terminated by Sindhu Hotchief (India) Ltd., the subsidiary company and he was given retrenchment compensation by Hotchief (India) Ltd. which he accepted. After retrenchment Ambwaney wanted to revert back to his principal company, i.e., Sindhu Resettlement Corporation Ltd. on the ground that he was a permanent employee of that Company and held a lien in that company. However, that principal company refused to take him back as according to them he had severed his connections with that company by having joined the subsidiary company and his lien also stood terminated. It appears that the Industrial Tribunal, to whom the matter was referred for adjudication, gave an award in favor of Ambwaney and ordered that he should be re-instated by Sindhu Resettlement Corporation Ltd. and he should be paid consequential wages. Against that order of the Industrial Ttibunal, Sindhu Resettlement Corporation filed a petition in the High Court which was dismissed. Against that dismissal order of the High Court and of the award of the Industrial Tribunal, Sindhu Resettlement Corporation came up by way of Special Leave Petition and the Supreme Court of India allowed the petition on the ground that Ambwaney in the new company, viz., Sindhu Hotchief (India) Ltd. was appointed on probation for a period of 3 months in the first instance and that probation could be extended further for another period of 3 months. The petitioner, however, continued to service for a period of 41 years. In these circumstances it was held by the Supreme Court that although Ambwaney did not cease to be the employee of the appellant corporation when his services were placed at the disposal of Sindhu Hotchief by the appellant with effect from 18 September, 1953, he ceased to be an employee of the appellant later when he was confirmed in Sindhu Hotchief. The other circumstances that bears out this conclusion is that, at the time of termination of the employment of respondent No. 3, Ambwaney, in Sindhu Hotchief, he was given retrenchment compensation which he accepted. In case he had continued to be in the service of the appellant, he would not have been entitled to retrenchment compensation from Sindhu Hotchief and, even if Sindhu Hotchief had any legal liability to contribute towards his retrenchment compensation which might have become ultimately payable to him on his retrenchment from the appellant Corporation that amount would have been paid by Sindhu Hotchief to the appellant and not to Ambwaney himself.
(50) In the present case, the petitioner has not been appointed in Cci on probation and the question of his confirmation does not arise. On the other hand, he has been appointed only for two years. Moreover, he has not accepted any retrenched compensation from CCI. The case cited by the learned counsel for respondent No. 3 is, therefore, distinguishable and cannot improve the case of respondent No. 3 further. On the other hand, we have already held that the petitioner after he has joined Cci, he held a lien in original post of Director (Finance) in Fcil in which he was appointed on immediate permanent basis.
(51) It was pointed out by Dr. Anand Parkash time and again that the petitioner vide annexureA-3, to the application under Section 151 for placing additional documents on record, while serving in Cci, asked for transfer of his Provident Fund and Family Pension Accounts etc. from Fcil to Cci under intimation to him and which in fact was transferred by FCIL.
(52) This clearly shows that the petitioner has severed his connections with Fcil and he cannot have a lien there. In the first instance, as we have already stated, these documents have not been placed on record by us for the reasons stated earlier. But, even otherwise, if these documents are taken into account, this will not improve the case of respondent No. 3. According to the petitioner, he has not received any intimation regarding transfer of Provident Fund, Family Pension Accounts etc. by fcil to Cci and there is no material to show that in fact intimation has been given to him. Writing of this letter by the petitioner, however, is a circumstance which helps the petitioner as he has only asked for transfer of the Provident Fund and Family Pension Accounts etc. from Fcil to Cci but he has not received that amount himself and appropriated it. In case of his reversion this amount of Provident Fund and Family Pension which were transferred to Cci, could revert back to Fcil again in case the petitioner reverted back to FCIL. At any rate this argument of the petitioner is hardly of any relevance and significance as it is settled principle of law that principle of estoppel or waiver cannot be applied against the statute. We have already held that the petitioner's lien under the law cannot be terminated even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post and as such he continues to have a lien on his post of Director (Finance) which he substantively held.
(53) It was next contended by learned counsel for respondent No.3 that every appointment to a new public sector undertaking is a fresh appointment, but assuming that it is taken to be a transfer then it is a transfer by mutual consent from one employer to the other. In that event also there will be a change of employer as decided by the Supreme Court in The Manager, M/s Pyarchand Kesarimal Porma, Bidi Factory v. Onkar Laxman There and Others . Therefore, the question of petitioner's wanting to come back to the service of Fcil does not arise. The position has been made clear in the letter of Fcil dated 14th April, 1986 (Annexure 'X') which refers to the fact that the Fcil had also effected final settlement of his gratuity and provident fund transfer to CCl as terminal benefits accruing to the account of the petitioner. We regret we are usable to accept this contention as well as in the peculiar facts and circumstances of the present case this is not a case where there is a change of employer. In our opinion, the case of The Manager, M[s Pyarchand Kesarimal Formal Bidi Factory (Supra) cited by the learned counsel is not applicable.
(54) The petitioner strenously urged that in case he is considered and found not to have retained lien in Fcil, then he has a right to go back to his parent cadre, i.e.. Chief Comptroller & Auditor General of India. The argument of the petitioner proceeds on the basis that if the case now put forth by respondents 3 & 4 is true that the petitioner, after permanent absorption in Fcil has permanently severed his connections with the office of Chief Comptroller & Auditor General and has been appointed in Fcil on the basis of permanent appointment for five years only, then the said authorities in conspiracy with each other have played a fraud on the petitioner and the very appointment of the petitioner in Fcil and the notification dated 21st June, 1983 deeming to retire the petitioner are void on the principle that fraud vitiates any action. Further, the condition precedent under Rule 37 of Central Civil Services (Pension) Rules, 1972 for retirement of the petitioner from Indian Audit & Accounts Service of his permanent absorption in Fcil, in case of present stand of respondents 3 & 4 is lacking and hence the notification dated 21st July, 1983 retiring the petitioner from Indian Audit & Accounts Service is bad in Jaw, and void. the result will be that petitioner's deemed retirement from Government service goes and hence the petitioner continues to be Government servant.
(55) We regret that we are unable to accept this contention. We find from the letter dated 4th May, 1983 that the petitioner has given his consent for permanent absorption in Fcil with effect from 17th July, 1982 in public interest and ban also agreed to termination of his lien in Indian Audit & Accounts Services with effect from that date and on that basis the order dated 21st June, 1983 (Annexue'N')was issued by the Assistant Comptroller & Auditor General, after the terms and conditions of the petitioner were finally finalised by letter dated 10th June, 1983 (Annexure 'M'). Since the petitioner has agreed in categorical terms for termination of his lien from Government service, i.e., Indian Audit & Accounts Services with effect from 17th July, 1982 and has also resigned from Government service, he cannot be permitted to say now that the has not resigned from that service and that his lien does not stand terminated. There is no fault or legal infirmity in the notification issued by the Government of India (Annexure 'N') whereby the petitioner -is deemed to have retired from Government service with effect from 17th July, 1982 in terms of Rule 37 of Central Civil Services (Pension) Rules, 1972, consequent upon his permanent absorption in FCIL. In these circumstances and situations there is no question of any fraud having been played on the petitioner by the Government by issue of notification dated 21st June, 1983 and such an order being void ab-initio. This contention of the petitioner fails.
(56) However, at the same time we cannot help in observing that once the Assistant Comptroller & Auditor General has passed the impugned order of deemed retirement of the petitioner consequent upon his permanent absorption in Fcil, it does not lie in their mouth to take a different stand that the petitioner was appointed as Director (Finance) in Fcil on immediate permanent appointment for 5 years or till the age of superannuation, whichever is earlier. Had the petitioner not been permanently absorbed/appointed in Fcil, he perhaps would not have left the Indian Audit & Accounts Service as no person would like to enter the realm of uncertainty and insecurity.
(57) In the light of the discussion above, the writ petition is allowed and the impugned letter of Fcil dated 14th April, 1986 (Annexure 'X') refusing reversion of the petitioner to Director (Finance) in Fcil is quashed. Respondent No. 3 is directed to take back the petitioner in service as Director (Finance) with effect from 20 April, 1986. Incase the post of Director (Finance) is already filled up by some other incumbent and it is not possible to appoint the petitioner against this post, then he should be appointed in another equivalent post. The petitioner shall also be entitled to all consequential benefits. The petitioner will be paid costs by respondent No. 3; counsel's fee Rs. 2,0OO.00 .