Delhi District Court
S. R. Hussain vs . A. K. Jhamb & Ors. Order Dt. 25.7.2016 on 25 July, 2016
S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
IN THE COURT OF SPECIAL JUDGE03,
(PREVENTION OF CORRUPTION ACT) (CBI) PHC, NEW DELHI
CC No. 2/2015
S. R. Hussain
S/o Late Sh. Reyazat Hussain
R/o House No. 101 C, NIT,
Faridabad (Haryana) .....Complainant
Versus
1. A. K. Jhamb
The then Director Engineering & CMD (Addl. Charge)
National Projects Construction Corporation Ltd.
(A Govt. of Indian Enterprises)
3031, Raja House, Nehru Place,
New Delhi - 110019.
2. G. Mohan Kumar
The then Additional Secretary
Ministry of Water Resources
Government of India
Shram Shakti Bhawan,
New Delhi - 110001.
3. Dhruv Vijay Singh
The then Secretary
Ministry of Water Resources
Government of India
Shram Shakti Bhawan,
New Delhi - 110001.
CC No. 2/2015 Page 1 of 36
S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
4. Salman Khurshid
The then Minister of Water Resources
Government of India
Shram Shakti Bhawan, Rafi Marg,
New Delhi - 110001.
5. Pawan Kumar Bansal
Minister of Water Resources at some point of time
Government of India
Shram Shakti Bhawan, Rafi Marg,
New Delhi - 110001. .....Accused
ORDER
1. Complainant has filed this criminal complaint under Section 200 of Code of Criminal Procedure 1973 alleging that he was working as an Assistant Engineer (Civil) with M/s National Projects Construction Corporation Limited (NPCC). He was also acting as a General Secretary, Staff Association, M/s NPCC and being General Secretary he had been raising voices against the issues relating to illegality, fraud, corruption prevalent in the organization and is competent to file the present complaint against the accused persons.
2. It is alleged in the complaint that M/s National Project Construction Corporation Ltd. (NPCC Ltd.) is a Public Sector Undertaking which comes under the Administrative Control of CC No. 2/2015 Page 2 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 Ministry of Water Resources, Government of India.
3. On 30.03.2007, PESB (Public Enterprises Selection Board) advertised for the post of Director (Engineering) indicating superannuation age as 58 years. On the basis of interview, Accused no.1 was shortlisted by PESB and the same was sent to Ministry of Water Resources, Government of India to obtain approval from ACC (Appointment Committee of Cabinet). Finally, accused no.1 was appointed as Director (Engineering) vide appointment letter for a period of 5 years w.e.f. 12.10.2007 till the age of superannuation i.e. 58 years, whichever was earlier, which was 31.03.2011. Accordingly, accused no.1 had to retire on 31.03.2011 and that is why PSEB has started next appointment process for the post of Director (Engineering) vide advertisement dated 15.06.2010.
It is important to mention there that in NPCC, for the Post of Director (Engineering), candidate was/is selected by PESB (Public Enterprises Selection Board), which comes under the Ministry of Personnel & Training on the final approval of ACC (Appointment Committee of Cabinet). The only role of the Ministry of Water Resources in this appointment process is to obtain approval of the candidate shortlisted by PESB within 15 CC No. 2/2015 Page 3 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 30 days from ACC (Appointment Committee of Cabinet).
4. As per the complaint, as the accused no.1 had to retire on 31.03.2011, he sent a proposal dated 19.08.2010 through Chief Manager (HR) which was approved by the accused no.1 himself as acting CMD to Under Secretary, Ministry of Water Resources, Government of India for extension of his tenure as Director (Engineering) in NPCC beyond 31.03.2011 which was declined by the Ministry of Water Resources, Government of India in first instant.
5. In November, 2010 Accused no.3 joined as a Secretary, Ministry of Water Resources, Government of India and he revived the earlier proposal of accused no.1 and got it recommended to PESB by the Minister, Water Resources, Government of India and again the said proposal of accused no.1 seeking extension of his tenure as Director (Engineering) beyond 31.03.2011, was declined by PESB on 20.01.2011.
6. It is alleged that when accused no.1 did not succeed twice in getting his extension of tenure as a Director (Engineering) beyond 31.03.2011, on instance of accused, no.1, accused no.3 hatched a conspiracy in connivance with accused no.1 to accused no.4 to abuse their respective official positions in order CC No. 2/2015 Page 4 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 to extend the tenure of accused no.1 as a Director (Engineering) with M/s NPCC Ltd. beyond 31.03.2011 and in furtherance of the said conspiracy they abused their official position with their common criminal intention to extend undue benefit to the accused no.1 in terms of his extension of his tenure as Director (Engineering), despite earlier rejections of the proposal of extension beyond 30.03.2011 by the PESB, asked accused no.1 to give one more representation addressing to accused no.3 and accordingly on representation dated 28.01.2011 of accused no.1, sidelining the undergoing fresh recruitment process of PESB for the post of Director (Engineering), NPCC and also by deliberately avoiding the consistent official Memorandums of Ministry of Water Resources and DOP&T, Government of India, mentioning age of superannuation for the post of Director (Engineering) as 58 years, illegally and dishonestly concluded the age of superannuation to 60 years without any basis by preparing and signing a false official noting dated 10.03.2011 and facilitated accused no.1 to continue as Director (Engineering) beyo0nd 30.03.2011 illegally.
7. During course of the above mentioned illegal process, on representation dated 28.01.201 of accused no.1 addressing to CC No. 2/2015 Page 5 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 accused no.3, the then Joint Secretary, Ministry of Water Resources, Government of India recorded that accused no.2 has desired to give some revised instructions and on 25.02.2011, accused no.2 noted that since all documents available with Ministry, clarification from DPE not required as the same will reflect poor light on Ministry and on 10.03.2011, a note was prepared enhancing retirement age of A1 to 60 years. The said note was signed by accused no2, 3 & 4 on the same day i.e. on 10.03.2011. Thereafter, accused no.5 succeeded accused no.4 as Minister of Water Resources, Government of India and despite having knowledge that official noting dated 10.03.2011 was illegally prepared and signed by accused no.2 to 4, abusing their official position with their common criminal intention to extend the benefit to accused no.1 in terms of extension of his tenure as Director (Engineering), NPCC beyond 31.03.2011 in furtherance of their hatched conspiracy, allowed the accused no.1 to continue beyond 31.03.2011 sharing their common criminal intention in furtherance of the hatched conspiracy to extend benefit to accused no.1 with the other accused persons and chosen not to take any action against the guilty persons.
CC No. 2/2015 Page 6 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
8. It is alleged that in pursuance of the above mentioned official notings, Ministry, Water Resources, Government of India issued a letter to Chief Manager (HR), M/s NPCC concluding that the retirement age of Board Level Appointment is 60 years.
9. Hence, it is submitted by complainant that the above mentioned illegal acts and deeds of the accused persons have made themselves liable to be prosecuted and punished for commission of offences under Section 120B/34 IPC read with Section 13(1)(d) of P. C. Act.
10. Ld. counsel for complainant submits that material on record is sufficient to prove commission of offences under Section 120B/34 of IPC read with Section 13(1)(d) of P. C. Act.
11. The cognizance of the offence was taken by my Ld. Predecessor on 24.03.2015. Complainant examined following witnesses in presummoning evidence :
(i) CW1, the complainant himself. CW1 testified as under :
"On instance of Sh. A. K. Jhamb, Director, Engineering, Sh. G. Mohan Kumar, Sh. Dhruv Vijay Singh and Sh. Salman Khursheed by abusing their official positions, extended the benefit in favour of Sh. A. K. Jhamb, in terms of his extension beyond the age of 58 years. Sh. Pawan Kumar Bansal succeeded as Minister of Ministry CC No. 2/2015 Page 7 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 of Water Resources to Sh. Salman Khursheed and allowed to continue the tenure of Mr. Jhamb as Director, Engineer, beyond 31.03.2011 despite knowing the continuation of Mr. Jhamb beyond 31.03.2011 as illegal and the same was done without any basis. In this process, the selection process of Director, Engineering of NPCC was derailed despite the fact that one person was already selected as Director, Engineering, PESB, after due process of selection. Due to illegal extension of Mr. Jhamb, the eligible duly selected candidate could not be promoted/ selected. In this illegal process, huge public money was wasted in the selection process and Mr. Jhamb was allowed to be benefited the monthly salary amount on account of illegal continuation beyond 58 years. I have filed this document on the basis of documents collected by RTI."
CW1 proves various documents, which are Ex.CW1/B to Ex.CW1/M.
(ii) CW2, C. A. Jacob, Deputy Secretary, Government of India, Department of Personnel and Training, Public Enterprises Selection Board. This witness brought the file CC No. 2/2015 Page 8 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 concerning the selection for the post of Director Engineering, National Project Construction Corporation Ltd. and proved following documents :
(a) Ex.CW1/E is the copy of the office copy of advertisement dated 30th March 2007 regarding selection for the post of Director (Engineering), National Project Construction Corporation Ltd.
(b) Ex.CW1/I is the true copy of letter dated 20th January 2011, whereby extension of tenure or otherwise of Sh. A. K. Jhamb, Director (Engineering), NPCC beyond 31.3.2011 was not recommended by the Public Enterprises Selection Board.
(c) Ex.CW1/M is copy of the noting dated 23rd March 2007, whereby Public Enterprises Selection Board was informed by Ministry of Water Resources that the age of retirement for Director (Engineering) is 58 years.
(d) Ex.CW1/C appears to be taken from the web site of Public Enterprises Selection Board.
(iii) CW3, Sh. Deshraj Chaudhary, Assistant Manager (P&A), National Project Construction Corporation Ltd.
proved a letter dated 19.08.2010 (Ex.CW1/G), issued by NPCC Ltd., addressed to Under Secretary, Ministry of Water Resources, Government of India.
CC No. 2/2015 Page 9 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
(iv) CW4, Smt. Mamta Sharma, Section Officer, Ministry of Water Resources produced the relevant documents, copy of which is Ex.CW1/D, Ex.CW1/H, Ex.CW1/J and Ex.CW1/K, concerning appointment process for the post of Director Engineering in NPCC Ltd.
12. Complainant closed evidence and arguments were heard.
13. Before considering the submissions of Ld. Counsel for complainant, I would like to reproduce a letter dated 19.8.2010 as under :
500400/800/P Shri D. K. PALIWAL Under Secretary, Dated : 198.2010 Ministry of Water Resources Shram Shakti Bhawan New Delhi Sub: Extension of tenure of Sh.A.K. JHAMB(Engg.)NPCC Limited beyond 58 years Dear Sir, Kindly find enclosed herewith the details pertaining to Company's performance prior and during the tenture period of Sh. A. K. JHAMB Director(Engg.) In this connection kindly refer to DPE Om No.18(II)2005GMGL88 dated 24th July 2007 (Copy enclosed) which states that the tenure of CMD /Functional Directors of sick/loss making company for which revival package has been approved can be extended till the age of 65 years if they have contributed exceeding well for the turn around and revival of the sick CPSE.
The Corporation has shown remarkable improvement in all sphere of works and has CC No. 2/2015 Page 10 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 earned a profit of Rs.32.77 Crs (Net) during 20092010(Unaudited) against loss of Rs. 28.70 Crs and Rs. 36.62 Crs during 200809 and 200708 respectively. In addition, Corporation has shown excellent results in all other fields and MOU rating for the year 200910 has been reported as "EXCELLENT" (Provisional).
The revival package of the corporation is under process of implementation.
Since the Balance Sheet figures were finalised and made available recently the proposal is forwarded for processing his case for extension of tenure beyond 58 years as per the above circular. We are also enclosing similar cases of other CPSE for your ready reference please.
Thanking You
Yours faithfully,
(K K Gupta) may kindly approve the proposed
CM (HR) draft letter............
SD
19/8/10
Enclosure: Details of company's performance CMD As proposed
SD
19/8/10
14. The letter was dealt in the Ministry of Water resources, the relevant noting is as under :
Chief Manager (HR). NPCC Ltd. vide letter dated 19.08.2010 has sent a proposed for extension of tenure of Shri A. K. Jhamb, Director (Engineering). NPCC beyond 31.03.2011 i.e. the date of his retirement. In view of the performance of the Company during his tenure as Director(Engg.). He has stated that during the tenure of Shri Jhamb, the Corporation has shown remarkable improvement in all spheres of works and has earned a net profit of Rs.32.77 Crore during the year 200910. (The figure is un audited) against a loss of Rs.28.70 Crore and Rs.36.62 during the CC No. 2/2015 Page 11 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 years 200809 and 200708 respectively. Also Corporation has shown excellent results in all other fields and MOU roling for the year 200910 has also been reported as provisionally excellent. He has, therefore, requested that the tenure of Shri A. K. Jhamb can be extended beyond 58 years as per the guidelines issued by the Department of Public Enterprises (DPE) vide their OM No. 18(11)2005GMGL88 dated 24.7.2007. He has also enclosed the copies of circulars of various Board level incumbents of other CPSEs, who have been allowed extension beyond the date of their superannuation.
2. The DPE's above said OM dated 24.7.2007 states that the National Common Minimum Programme (NCMP) interalia states that every effort will be made to modernize and restructure sick Public Sector Companies and revive sick Industry. The Govt. has considered the issue resoling to restructuring of CPSEs and also the ways and means for funding the scheme for revived of such CPSEs as well as providing strong and effective top management learn for them. In this context, it was felt that there was a need to attract Board level executives capable for turning around sick CPSEs and give them continuity of tenure for the revival package to succeed.
The Govt. has considered this matter and the Competent Authority has decided that in the case of sick/lossmaking CPSEs for which revival plan has been approved by the Govt., in case, any Board level incumbent of such CPSE who has contributed exceedingly well in the turnaround of that sick CPSE his tenure may be extended till he attains the age of 65 years.
3. As per the said OM, since the selection process to a Board level post is being initiated by Public Enterprises Selection Board (PESB) one year prior to the due date of superannuation of the incumbent, the proposal for extension of tenure beyond the age of superannuation will have to be initiated atleast one year prior to the date of superannuation of the incumbent. It has also been mentioned in the said OM that the decision on the extension of tenure beyond the normal retirement age will be taken as per the extant procedure for extension of tenure of Board level Executives CC No. 2/2015 Page 12 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 i.e. joint appraisal by Public Enterprises Selection Board followed by the approval of the Competent Authority. Further, such extension would be subject to annual review of the performance of the incumbent to be conducted by Secretary of the concerned Administrative Ministry.
4. Asper the guidelines of the Appointments Committee of the Cabinet (ACC) circulated by the Dopt. Vide OM dated 17.8.2005. action to fill up the Board level posts in PSUs should be initiated before 12 months in advance of the date of occurrence of vacancy.
5. Shri A.K. Jhamb has taken over charge of the post of Director (Engg.) NPEC in Schedule 'C' scale of pay of Rs.22500 60027300/ on 12.10.2007 for a period of five years or till the date of his superannuation whichever is earlier. The present tenure of Shri Jhamb will expire on 31.03.2011 i.e. the date when he attains the age of superannuation. His date of birth is 11.03.1953. At present the age of retirement in NPCC is 58 years.
6. In this connection it may be stated that when Shri Jhamb joined the NPCC as Director (Engineering) on 12.10.2007, the recommendations of Board for Reconstruction for Public Sector Enterprises (BRPSE) on the proposed of this Ministry for revival of NPCC Ltd. sent to them in August, 2005, had already been received. Also, on the basis of the recommendations of the BRPSE, the proposal for revival of NPCC had been sent for consideration by the Committee of Secretaries (COS). The COS in its meeting held on 1.2.2007 recommended the revival package for NPCC with some modifications. Thereafter, based on the recommendations of COS, as proposal in this regard was sent to Cabinet Secretaries for approval of the Cabinet Committee on Economic Affairs (CCEA) on 4.12.2008. The proposal sent for consideration of the CCEA was for conversion of Govt. of India principal amount of Rs.219.43 crore and cumulative interest due & occurred on it as on the date of conversion to equity capital and further written down to 10% of value by following the procedure as CC No. 2/2015 Page 13 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 prescribed in the Companies Act 1956. The said proposal has been approved by the CCEA in its meeting held on 26.12.2008. Certain actions/steps to implement the decision of the CCEA have been taken in the Ministry/NPCC and some actions are yet to be completed for which NPCC has been taking necessary action.
7. In view of the above, it may be seen that only the proposal on the basis of the recommendations of BRPSE and COS for revival of NPCC Ltd. was sent to the CCEA during the tenure of Sh. A. K. Jhamb. Thus, there has been no contribution on the part of Shri A. K. Jhamb in the revival of the NPCC approved by the CCEa on the basis of the recommendations of the BRPSE/COS.
8. As regard the ACR of Shri A. K. Jhamb, his two ACRs for the period from 12.10.2007 tol 31.3.2008 and for the year ending 31.03.2007 are available in PSU Division. In both the above said ACRs, although he was rated as 'Very Good' Officer by Secretary(WR), the Reviewing Officer in his case, the then Hon'ble Minister (WR) had assessed his performance as 'Average'.
9. As regards vigilance clearance in respect of Shri A. K. Jhamb, the same was obtained from Central Vigilance Commission by Vigilance Division of the Ministry of the time of issuing orders by PSU Section for confirmation other completion of first year during his tenure and the Commission accorded vigilance clearance to Shir Jhamb.
10. In view of the above, there seems to be no justification in the proposal sent by the NPCC for extension of tenure of Shri Jhamb as Director (Engineering) beyond the date of his superannuation. Therefore, perhaps, we may not recommend the some to the PESB.
Submitted please.
CC No. 2/2015 Page 14 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 SD 24/9/2010
15. The complainant has brought on record the following noting of Public Enterprises Selection Board as under :
PUBLIC ENTERPRISES SELECTION BOARD (Ministry of Personnel, Public Grievances & Pensions) Sub: Extension of tenure or otherwise of Shri A. K. Jhamb, Director (Engineering) NPCC beyond 31.03.2011.
The Board considered the proposal of the Ministry of Water Resources regarding extension of tenure or otherwise of Shri A K Jhamb, Director(Engineering) NPCC beyond 31.03.2011, as contained in the letter No. 9/1/2005PSU/1473 dated 9.12.2010 and 9/1/2005PSU/18 dated 5.01.2011.
2. As per the procedure laid down by the PESSB vide their C.M. No.5/16/96PESB dated 21.11.1996, the case of extension/nonextension of tenure of Board level appointees are required to be considered by the Board in the light of his performance as reflected in the documents like the data based performance report, the special performance report and the ACRs along with the inputs given by the Secretary of the administrative ministry etc. Shri Jhamb was also invited to meet the Board.
3. Against this background, the proposal of the Ministry of Water Resources regarding extension of tenure or otherwise of Shri A K Jhamb, Director (Engineering) NPCC beyond 31.03.2011, was considered by the Board in its meeting held at 5.00 PM on 19.1.2011 when Secretary, Water Resources was present to assist the Board. Secretary Water resources stated that in view of recent upgradation of ACRs of Shri Jhamb in the Ministry and the evaluation of his performance by the Ministry, he strongly felt that Shri Jhamb should be given extension beyond superannuation.
4. The Board noted that on the recommendation of the PESB and with the approval of the competent authority, Shri A K Jhamb was appointed as Director(Engineering), NPCC w.e.f. 12.10.2007(AN) for a period of five year CC No. 2/2015 Page 15 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 or till the date of his superannuation or until further orders. Board observed that as per the SPR sent to PESB at the time of confirmation of the officer vide letter 9/1/2005PSU/1007 dated 29.7.2009, the score of SPR was 29 out of 50 which was duly awarded by the then CMD and countersigned by the Secretary Water Resources, wherein it was also interalia stated that "
during 200708 MoU rating of NPCC has slipped from excellent to good".
This scoring was found to be below the benchmark of PESB. However, in view of the fact that only about a year was left before superannuation, PESB recommended his confirmation till superannuation even though the then CMD and Secretary, Water Resources had expressed views against his confirmation on the basis of below expected performance. Shri Jhamb will attain the age of superannuation on 31.3.2011, his date of birth being 11.3.1953.
5. Taking into account the totality of circumstances including his ACRs from 200708 to 200910 (copies enclosed) and SPR dated 19.1.2009 (Copy enclosed) and also the inputs given by the Secretary Water Resources, the board viewed that performance of Shri Jhamb could not be construed as exceedingly well so as to make an exceptional case of extension beyond superannuation in view of this the Board did not recommend extension of the tenure of Shri A K Jhamb, Director (Engineering) NPCC beyond superannuation and also recommended that the normal procedure for selection against the post of Dir(Engineering) should be followed.
(VEDANTAM GIRI) DIRECTOR(PESB) Ministry of Water Resources ( Shri dhruv Vijay Singh, Secretary), New Delhi PESB U.O. No. 9/48/2010PESB dated 20/1/2011
16. Before I proceed further, I would like to mention that the aforesaid noting should be seen in light of a Cabinet note date 10.3.20115, which is reproduced as under :
S E C R E T COPY NO. 61 CC No. 2/2015 Page 16 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 No. 18(9)/2004GM Ministry of Heavy Industries and Public Enterprises Department of Public Enterprises ******* Dated, the 10 March, 2005 NOTE FOR THE CABINET Subject: Review of delegation of powers to administrative Ministries to roll back age of retirement of employees of public sector enterprises.
Background The age of retirement of employees of Central Public Sector Enterprises (PSEs) was enhanced with the approval of Cabinet to 60 years in May, 1998 vide instructions issued by Department of Public Enterprises (DPE) on 19.5.1998 and 30.5.1998 (AnnexI and II).
2. The enhancement of age of retirement affected the performance of sick/unviable PSEs which are saddled with surplus manpower. It was, therefore, decided with the approval of Cabinet that in the cases of sick/unviable PSEs for which rehabilitation/revival packages are under consideration, the Board of the concerned company should review its decision on the raising of the age of retirement and make suitable recommendations to the administrative Ministry/Department concerned for taking the approval of the Cabinet. A copy of the instructions issued on 9.5.2000 is at AnnexIII.
3. While approving one such proposal relating to Hindustan Steelworks Construction Ltd. the Cabinet in its meeting held on CC No. 2/2015 Page 17 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 5.12.2000 directed that such proposals for roll back of age of retirement from 60 years to 58 years in public enterprises covered under the DPE O.M. Dated 9.5.2000, which are duly approved by the Board of Directors and also by the MinisterinCharge of the administrative Ministry need not be brought before the Cabinet (AnnexIV). A copy of the instruction issued in this regard on 1.1.2001 is at AnnexV. Subsequently, the Cabinet approved the proposal to delegate the authority to the MinisterinCharge of the administrative Ministry to approve proposals for roll back of age of superannuation from 60 years to 58 years for all PSEs and all categories of employees, both Board level and below Board level, which are duly approved by their Board of Directors. Copy of the minutes of the meeting of the Cabinet held on 31.7.2001 and copy of the instruction issued in this regard on 22.8.2001 are at AnnexVI and AnnexVII respectively.
Recommendation of the Committee of Secretaries
4. Based on the authority delegated to the administrative Ministries, the age of retirement was rolled back in the cases of some PSEs which included profit making PSEs also. List of PSEs where the age of retirement is rolled back to 58 years is at AnnexVIII. In some cases proposals were subsequently made to reverse the decision to roll back the age of retirement. This gave an impression that the decision is roll back was not always based on merit. The matter was, therefore, considered by the Committee of Secretaries (COS) in its meeting held on 29.3.2004. The COS recommended that the powers CC No. 2/2015 Page 18 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 for approval of roll back of age of retirement of employees of PSEs, including Board level executives, should vest with the Cabinet (AnnexIX).
Justification for review
5. Rolling back of age of retirement of employees of PSEs is an important matter which would require detailed examination at the Board level in PSE, in the administrative Ministry and nodal Ministries/ Departments like Ministry of Finance, Department of Personnel & Training and DPE so as to ensure that there is adequate merit in the proposal for such roll back. Hasty decisions would be counter productive and will lead to prolonged litigations. In view of this the power to approve proposals for roll back of age of retirement of PSE employees should vest with the Cabinet only. Comments of other Ministries
6. This Note was circulated to all administrative Ministries/ Departments and the Department of Personnel & Training. They have agreed to the proposal contained in the Note. A list of Ministries with responses is annexed (AnnexX). Three Ministries/ Departments have, however, not furnished any reply.
Approval solicited
7. The approval of the Cabinet is solicited for the proposal that the powers for roll back of age of retirement of employees of PSEs, including Board level executives, shall vest with the Cabinet.
8. The Statement of Implementation Schedule in respect of the above proposal has been given in Appendix to the Note.CC No. 2/2015 Page 19 of 36
S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
9. This Note has been seen and approved by the Minister of State (Independent Charge) for Heavy Industries and Public Enterprises.
(K.D. Tripathi) Joint Secretary to the Govt. of India.
17. Along with the note, the list of PSUs has been given. National Projects Construction Corporation Ltd. figures at serial no.61. I reproduce the relevant portion of the said list, which is Anexure8 to the Cabinet note as under :
S E C R E T No. 18(9)/2004GM Ministry of Heavy Industries and Public Enterprises Department of Public Enterprises ******* ANNEXVIII Name of Psus where the retirement age has been rolled back from 60 to 58 years With the approval of Cabinet
1. ............
25. ............
With the approval of the Ministerincharge
26. ...........CC No. 2/2015 Page 20 of 36
S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
61. National Projects Construction Corporation Ltd.
73. ..........
Age of retirement not raised
74. .........
18. Accordingly, the age of superannuation even of the CMD was reduced to 58 years and that is why A. K. Jhamb was appointed with 58 years being his age of retirement.
19. I would like to sum up the various incidents in following dateline :
30.12.1999: Age of retirement in NPCC Ltd. [national Project Construction Corporation Limited] was reviewed and it was decided that there should be uniform retirement age for board level employee and general employee of NPCC vide noting of MOS/WR [Minister of State, Water Resources] and M/WR [Minister of Water Resources].
31.03.2011: MOS/WR has proposed the age of retirement for all employees of NPCC as 58 years, which was approved by the then M/WR (Shri C. P. Thakur) on 21.06.2011.CC No. 2/2015 Page 21 of 36
S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 10.03.2015: Power to roll back the age of retirement which was earlier with the Minister InCharge, was now vested only with the cabinet. [Ex. CW 1/B].
19.01.2007: PESB [Public Enterprises Selection Board advertised a Post of Director [Engineering] for NPCC Ltd. [National Project Construction Corporation Limited], wherein the age of superannuation was 60 years.
23.03.2007: On instruction of Ministry of Water Resources, the said age of superannuation was reduced to 58 years vide a noting dated 23.03.2007 of PESB.
30.03.2007: PESB re advertised post of Director [Engineering], NPCC for the age of 58 years (Ex. CW1/E).
22.01.2008: A1 was appointed as Director [Engineering], NPCC vide appointment letter dated 22.01.2008 (Ex. CW1/F).
15.06.2010: PESB advertised and initiated fresh recruitment process for the post of Director [Engineering], NPCC as A1 had to retire on 31.03.2011.
19.08.2010: A1 gave a self approved representation to CC No. 2/2015 Page 22 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 Under Secretary, Ministry of Water Resources for extension of his tenure beyond 58 years (Ex. CW1/G).
06.12.2010: Despite adverse observation dated 24.09.2010 of under Secretary / Water Resources while examining the said representation of A1, the then Minister / water Resources [Shri Pawan Kumar Bansal] vide his noting dated 06.12.201 referred the proposal of extension to PESB for consideration. [Ex. CW1/H].
20.01.2011: The said referred proposal of Minister of Water Resources for extension of tenure of A1 beyond 58 years, was rejected by PESB (Ex.
CW1/I).
28.01.2011: Immediately after rejection of the proposal, A 1 gave fresh representation dated 28.01.2011 (Ex. CW1/J) to Secretary, Water Resources [A3] 10.03.2011: During examination of this fresh representation of A1 in Ministry, Director [PSU]/WR vide his noting dated 14.02.2011 proposed to seek clarification from DPE, but A2 vide his noting CC No. 2/2015 Page 23 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 dated 25.02.2011 did not allow the file to go outside Ministry, and contrary to their own consistent records /letters / stand (Ex. CW1/D), without any authority and power, illegally by abusing their respective official positions with their common criminal intention to extend benefits to A1 in terms of his tenure beyond 58 years, vide the noting dated 10.03.2011, allowed A1 to continue beyond 58 years without prior approval of the Cabinet. [Ex.
CW1/K].
20. The aforesaid summed up timeline shows that the noting Ex.CW1/K requires to be considered. I reproduce the same as under :
F.No.9/1/2005PSU(Vol.II)(pt.) Notes from prepages may be perused along with the representation dated 28.1.11 of Shri A.K. Jham, Director(Engg.), NPCC Ltd. placed in the file at CP/141.
2. In his representation, Shri A.K. Jhamb has raised an important issue relating to the retirement age of Board level appointees in NPCC by stating that:
"As per records of NPCC, the retirement age of Board level appointees is 60 and for below board level employees is 58 years"
and has sought consideration of the Ministry for allowing him to retire on completion of his 5 years term on 12.10.2012 (vide CP/586).
3. In support of his claim, he has cited the following points against which the status report as per the documents made available by the PSU Section are as follows: CC No. 2/2015 Page 24 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 S. Claim by Sh. A K Jhamb Satus as per Ministry record No.
(a) The retirement age of below Board level It is a fact that the age of retirement for PSU employees and the Board level appointees employees including Board level was enhanced to were increased from 58 to 60 years 60 years through both the DPE Oms issued in May basing on the DPE OM dated 19.5.1998 1998. The subsequent OMs seem to have referred dated 30.5.1998 respectively (vide CP/8 to the below Board level employees till the Om 11 after which the subsequent DPE OM issued on 2282001 (vide CP71_. However, a referred to the roll back of the age of reference to DPE in this regard will make it clear if retirement of below Board level any other reference was issued prior to OM dated employees; 22.8.01 for Board level employees.
(b) The Board of the NPCC had As per the available records it seems to be correct. recommended the roll back to 58 years However, the exact position can be collected from for below Board level employees only NPCC particularly on the action taken by them on (vide CP/20); DPE OM dated 2282001 circulated to them by the MOWR on 31.8.01 (vide CP73).
(c) The precedents of Sh. A. N. Jha, CMD, The retirement order of Sh. A. N. Jha show that the NPCC who retired on 31.1.01 at the age age of retirement in NPCC was 60 years in Jan'01 of 60 (vide CP/24) and that of Shri K. P. indicating the fact that the DPE OM dated 305 Naidu, Dir.(F) NPCC who retired on 1998 had been implemented in NPCC. 18.9.01 (vide CP/25) on completion of The retirement order issued for Sh. K. P. Naidu his 5 year tenure which was beyond his show that the continued beyond his 58 years age age of 58 years. (DOB=28.7.1943) and retired only on completion of his 5 years tenure on 18901. The corresponding notesheets are placed at (vide CP
25) rather than on 31.7.01 (vide CP27).
(d) No Board level appointee in NPCC had No such occasion till now as per records as retired at the age of the 58 years since mentioned by PSU Section. 2001;
(e) The Board level appointees are different The point that the Board level appointees are from that of below Board level employees different from that of regular employees of the in terms of their mode of appointment & Corporation is not clear as they do draw their pay service conditions; and allowances from the Corporation and are also governed by the Conduct. Discipline and Appeal Rules of the corporation as per their terms of appointment (vide CP/69). Whether the Board level appointees are considered within the domain of 'employees' of a CPSe can only be clarified by the nodal Ministry i.e. DPE.
(f) The other PSUs viz. NSCI, FACT & IT The para7 of the Cabinet Note that was circulated having retirement age of 60 years for by the DPE in the month of April'01 has a mention below Board level employees. about various decisions taken by various PSUs on the subject (vide CP80).
CC No. 2/2015 Page 25 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
4. The most points in this case are :
A. Whether the former Hon'ble Ministry (WR) had approved the roll back for all the employees including the Board level appointees. As per the photo copies of the note sheets of file No.6/13/98P.II placed at file at CP/4255, it may be seen that the order of the Hon'ble Minister(WR) was (vide CP/55):
"for the present, we may only agree for roll back of age of retirement from 60 years to 58 years in NPCC."
Before taking the above order, the Hon'ble Minister(WR) had sought an analysis of the financial implications in case the retirement age of both the Board and the employees is rolled back to 58 years and in case the roll back is done for the employees only (vide CP/38).
Prior to this, the Hon'ble Minister of State had mentioned that :
"There should be a uniform policy for the Board level officers and others, if the age is to be retained at 58 years, it should be same for everybody."
After this, the Hon'ble Minister (WR) written "review the service conditions of other PSU (vide CP/44)."
A perusal of the notes put up by DS(PR) vide CP43, S.O.(PII) at CP47, AS(WR) at CP47, SO(PII) at CP50, JS(A) at CP53 show that the proposal was for both and the same had not been contradicted at any stage. From the noting it may be seen that the Ministry took a conscious decision on the subject which was communicated to the NPCC on 2262001. B. whether the Ministry had been delegated the powers to roll back the age of retirement of the employees of PSU.
The DPE OM dated 1st January, 2001 (CP/21) which was referred to by the JS(Admn.) in his note (vide CP53) had delegated the powers to the Ministerin charge of the administrative Ministry for roll back of the age of superannuation from 60 to 58 years in respect of PSEs covered under DPE Om dated 9.5.2000 (vide CP/18). From the various Oms issued by the DPE after enhancement of retirement age to 60 years in the month of May, 1998, it is not clear if the DPE had issued any clearcut directives for roll back of the age of retirement of Board level appointees till the OM dated 22nd August, 2001 (CP/74). A perusal of the Order dated 9.5.2000 show that in respect of sick/unviable CC No. 2/2015 Page 26 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 PSUs, it had been decided that the Board of the concerned company should review its decision on raising the age of retirement and make suitable recommendations to the administrative Ministry/Department concerned for taking the approval of the Cabinet. A perusal of the DPE OM dated 30.5.1998 (vide CP/1011) and OM dated 19.5.1998 (vide CP/89) show that the DPE had decided to raise the age of retirement in respect of Board level appointees from 58 to 60 years from the date of issue of OM i.e. 30.5.1998 suo motto without any condition of getting the approval of the Board of PSE or any amendments to the relevant rules and regulations of the PSUs concerned which was a condition in their OM dated 19.5.1998. Hence, it is not clear if the approval of the Board of Directors was at all required for rolling back in case of Board level appointees as the same was suo motto decision of the government. However, from the Cabinet Note (para7), which had been circulated by DPE for comments in the month of April, 2001, it is seen that the DPE was well aware of the fact that some Corporations like ITDC and NTC had already rolled back the age of retirement uniformly for both below Board and Board level employees and therefore, it had sought the approval of the Cabinet to delegate the authority to the Ministerincharge of the administrative Ministry to approve proposals for roll back the age of superannuation from 60 years to 58 years for all PSUs and all categories of employees both Board level and below Board level which are duly approved by their Board of Directions. Since it is not known if the decisions taken in respect of ITDC and NTC were that of the administrative Ministry or the DPE, a reference to DPE is required in this regard. C. Whether the Board of Directors of NPCC had approved the roll back proposal in respect of Board level appointees. From the available documents, it is seen that the Board of NPCC had approved the roll back proposal in respect of below Board level employees (vide CP/20) in their 208th Meeting held on 3rd December, 1999. There is no mention about any decision of the Board of Directors for roll back in respect of Board level appointees in the note sheets of the old F.No.6/13/98P.II (vide CP/4255). Since the OM dated 3051998 was a suo motto decision by the government giving immediate effect (not requiring any approval of the Board) perhaps the review of decision in respect of the Board level appointees was beyond the purview of CC No. 2/2015 Page 27 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 the Board at that time. However, a final clarification on will be required from the DPE.
D. What is the date of retirement in respect of Board level appointee in NPCC as per Ministry records.
The Ministry intimated its decision of roll back of the age of retirement to 58 years to NPCC with immediate effect vide its OM dated 2262001 (vide CP22) after getting the approval of the Hon'ble Ministry (WR) (Vide CP/55). Thereafter, the Ministry permitted Sh. K P. Naidu, the then Director(Fin),NPCC to complete his 5 year from till 1892001 for which no reasons have been recorded in the file (vide CP86).
Paradoxically, the Ministry intimated the date of retirement to be 58 years for the recruitment to the post of CMD, NPCC to PESB in its OM dated 23.4.04 duly approved by the Secretary (WR) (vide CP/7273). Even the initial advertisement of PESB which had carried the date of retirement for the post of Director(E) to be 60 years (vide CP89) was corrected to 58 years (CP91) against which Sh. A K Jhamb was recruited (vide CP/6364). From the above it may be seen that the Ministry has been holding the date of retirement to be 58 years in respect of the Board level appointees after the retirement of Sh. K P Naidu on 18.9.2001. E. Whether the DPE had issued any order on the roll back of the date of retirement in respect of the Board level appointees. Yes, the DPE vide its OM No. 18/10)/99GMGL33, dated 2282001(vide CP 74/75), delegated the powers of roll back to the Ministerincharge of the administrative Ministry in respect of all categories of the employees (including Board level employees) which was communicated to the NPCC for information and necessary action by the Ministry vide its OM dated (vide CP87). It is seen that the Ministry did not pursue the matter with the NPCC subsequently for reasons not recorded in the file. The above mentioned DPE Om was a decision of the government applicable to all CPSEs uniformly, hence can be considered to be a Presidential Directive which is mandatory in nature for the CPSEs. It is also not known what action was taken by the Board of NPCC on the subject till now.
5. Under these circumstances we may seek clarification from DPE (after giving details of the case) if the decision taken by this Ministry on the roll back of the age of CC No. 2/2015 Page 28 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 retirement from 60 to 58 years in respect of the Board level employees prior to the issue of DPE Om 18(10)/99GMGL33, dated 22.82001 can be revoked on the ground of not having the approval of the Board of the NPCC and which was apparently taken before the DPE guideline was issued on the subject. Further, the DPE may be requested to intimate if different age of retirement i.e. 58 years for below Board level employees and 60 years for Board level employees can be maintained/retained after the decision of the government which was duly communicated by DPE in their OM dated 22.8.01 as referred to above.
Submitted pl.
(Srikanta Panda)
Director(PSU)
14/02/2011
J.S.(A)
X, Y1, Y2, may be seen
A1 'Z' there is a definite contradiction as
Sh. K. P. Naide was allowed to complete 5 year term after attaining the age of 58 years.
'A' indicates the subsequent position of the Ministry.
In view of above, we may take ______ to '5" above.
As prayed. SUDHIR GARG
Joint Secretary
....................
JS(A) would like to see before issue pl.
AS(WR) had denied to give some revised instructions. The file is accordingly put up.
SUDHIR GARG Joint Secretary This was subsequently discussed with Secy(WR). Since all the papers relating to the matter are available with MoWR, there is no point in seeking clarification from DPE which will only show this ministry in poor light. Therefore, the representation may be examined on merits and put up along with the file containing the original reference papers/correspondence.
CC No. 2/2015 Page 29 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 from prepage:
(xiv) On receiving the DPE's O.M. Dated 22.8.2001, the said O.M. Were forwarded by the Ministry to the PSUs under it for taking necessary action. As per the record available, till date no action was taken on the said O.M. Either by the Ministry or by the NPCC.
(xv) As per DPE's O.M. No. 18/(9)/2004GMGL62 dated 1.4.2005 the power to roll back the age of retirement of employees of PSUs including Board level executives vests with the Cabinet.
(xvi) After the decision was taken to roll back the age of retirement in respect of the employees of NPCC both Board level and below Board level in June, 2001, this Ministry has been informing the PESB that the age of retirement in respect of Board level employees of NPCC is 58 years. Accordingly, when the posts of CMD NPCC, Director (Engineering) and Director (Finance) in NPCC last fell vacant, the PESB was informed that the age of retirement in respect of these posts is 58 years and therefore in the vacancy circulars issued by the PESB in respect of these posts, the age of retirement was shown as 58 years.
(xvii) It is also stated there that on the request of this Ministry, the selection meeting has been postponed twice by the PESB. In this Ministry's last communication No. 9/2/2010PSU dated 2.2.2011 to the PESB, this Ministry has informed the PESB that a writ petition has been filed by Shri Arbind Kumar, Ex. CMD, NPCC in the Delhi High Court requesting for a story on the recruitment process for the post of CMD, NPCC. This Ministry has also informed the PESB that the issues relating to enhancing the retirement age of the employees of NPCC from 58 years to 60 years and also implementation of the revised scales of pay from 1.1.2007 are under consideration in the Ministry. If the retirement age is enhanced and also the revised scales of pay are implemented in NPCC, better candidates may apply for the post of CMD, NPCC and any other Board level posts. In view of this, the Ministry has requested the PESB to hold recruitments for NPCC in CC No. 2/2015 Page 30 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 abeyance including the recruitment to the post of CMD. NPCC till the above issues are decided.
4. (I) It is also stated here that the present incumbent of the post of Director (Engg.) in NPCC, namely Shri A. K. Jhamb has also made a representation stating that the age of retirement for Board level executives in NPCC is 60 years. The representation made by him is under consideration in a separate file i.e. File No.9/1/2005 PSU (Vol.II)(Pt.1)
(ii) It is also stated that in the vacancy circular for the post of Director (Enggg.) in response to which Shri Jhamb applied for the post and was selected by the PESB, the age of retirement was mentioned as 58 years. Had the age of retirement been mentioned as 60 years in that vacancy circular, perhaps some other persons might also have applied for the post.
(iii) it is also pertinent to point out that earlier he sent a proposal to this Ministry (through the P & A Division of the Company) for granting him extension beyond the date of his retirement i.e. 31.3.2011. That proposal was considered and with the approval of the former Minister (WR) the same was referred to the PESB recommending extension of tenure to him for a period of two years beyond his retirement i.e. from 1.4.2011 to 31.3.2013. However, the same has not been agreed to by the PESB.
5. The facts mentioned in para 3 above are submitted for taking a decision with regard to the date of retirement in respect of Board level executives in NPCC i.e. whether the same should be taken as 58 years as decided with the approval of the then Minister (WR) or the same should be reviewed to make it as 60 years.
6. The decision with regard to the age of retirement in NPCC in respect of their Board level executives taken in this file will be applicable in the case of the present incumbent(s) of the Board level posts in NPCC.
7. In case it is decided that the age of retirement of Board levels functionaries in NPCC is 60 years, the PESB will also be informed accordingly for readvertising the vacancy of CMD, NPCC, as in that case some more persons may also apply for the CC No. 2/2015 Page 31 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 post.
Submitted please.
SUDHIR GARG Joint Secretary from prepage: Notes from pages 37/N may kindly be seen. The question to be decided is whether the retirement age of Board level employees of NPCC stands reduced to 58 years or continues to be 60 years.
2. The MOWR, vide letter No.6/13/98P.II/897903 dated the 22nd June, 2001 had purportedly communicated the decision to reduce the retirement age of NPCC employees to 58 years from 60 years. However, this letter is very ambiguous and it does not specifically mention whether the reduction of retirement age to 58 years applied to board level appointees also. Moreover, this letter has a reference to the letter No.CMD/26/9/308 dated 13.12.1999 of CMD, NPCC which had specifically recommended only the roll back of retirement age in respect of below Board level employees. A copy of the Board resolution may be seen at page 148/C of F.No.6/13/98P.II/PSU lined below. In fact the Board of NPCC had never approved the roll back in respect of Board level appointees one of the requisites in the procedure prescribed by the DPE, vide their OM No18(10)/99/GMGL30 dated the 1st January, 2001.
3. It is also clear from the records that when letter No.6/13/98P.II/897903 dated 22.6.2001 purportedly reducing the retirement age to 58 years, was issued the Ministry was not vested with the authority to reduce the retirement age of Board level appointees. This is so because the Union Cabinet had delegated the powers in respect of Board level employees to Ministries or a subsequent date, vide their letter No.22/8/2001 dated 22.8.2001 of DPE. It is also pertinent to mention here that this Ministry did not take any action on the OM dated 22.8.2001 of the DPE. So, from the facts available on record, it can be concluded that the retirement age of Board level appointees had not undergone any change and continues to be 60 years.
4. If this is accepted, we may have to take the following steps:
(i) Request the PESB to readvertise the post of CMD, NPCC retaining 60 years as the retirement age;
(ii) Bring the matter to the notice of DOPT and invalidate the existing panel CC No. 2/2015 Page 32 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 for Director (Engineering), NPCC, prepared by PESB as in effect, there will be no vacancy at the level of Director (Engineering).
The above facts may be placed before Minister (WR) for information and orders.
(G. MOHAN KUMAR) Additional Secretary (WR) 10.03.2011 SECRETARY (WR) M/WR 10.3.2011 DHRUV VIJAI SINGH Secretary (WR)
21. Perusal of the noting dated 10.3.2011, signed by A2 i.e. G. Mohan Kumar, Additional Secretary (WR) and by A3 i.e. Dhruv Vijai Singh, the Secretary (WR), which was approved by Minister of Water Resources (i.e. Salman Khurshid) i.e. A4, shows that they have thoroughly considered all the issues involved and have expressly given their opinions. It is not necessary for a Minister to always agree to the previous notings and opinions. Further, Public Enterprises Selection Board is only a recommendatory body. It is not the case that a new appointment has been made flouting all norms. Here, A. K. Jhamb (A1) was already in service. He was making repeated CC No. 2/2015 Page 33 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 efforts to convince the Ministry that his retirement age should be 60 years and not 58 years. Although, his efforts did not succeed initially but finally the Ministry found merit in it and 60 years was retained as retirement age. Ld. Counsel for complainant has drawn my attention to the noting dated 25.2.2011 vide which, first matter was proposed to be sent to DPE for clarification but thereafter a uturn was taken mentioning that "no point in seeking clarification from DPE, which will show this Ministry in poor light. Therefore, the representation may be examined on merit and put up along with the file containing the original reference papers/correspondence."
22. I have considered this aspect and I am of the opinion that there may be some confusion as to whether the matter should be sent to DPE or not. But finally Ministry took up the matter itself and after considering all facts and circumstances of the case, took a decision. One may agree or disagree with the decision of the Ministry but it cannot be forgotten that ultimate authority to take decision was the Ministry in question i.e. Salman Khurshid (A4). Complainant has impleaded Pawan Kumar Bansal (A5), a successor Minister, submitting that he allowed the illegality committed by A4 to continue during his CC No. 2/2015 Page 34 of 36 S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016 tenure. I am of the opinion that a Minister, who had no role in enhancing the retirement age, cannot held responsible for the acts of his predecessor.
23. At the most, it appears that the issues raised by the complainant fall within domain of service law and I do not find anything on record to show that there was any abuse of official position by any of the accused or any corrupt or illegal means were used by any of the accused persons or while holding office as public servant obtained any pecuniary advantage without public interest for themselves or for A1. Hence, the matter does not fall within the four corners of Section 13(1)(d) of Prevention of Corruption Act 1988. No other provisions of criminal law have been pressed nor any material is appearing on record to take cognizance of the offences under any other provision of Prevention of Corruption Act 1988. All the acts appeared to have been done by the public servants in normal course of discharge of their official duties. There is no evidence, direct or circumstantial, on record to show that A1 entered in a criminal conspiracy with the remaining accused persons for the purpose of getting any pecuniary advantage.
CC No. 2/2015 Page 35 of 36S. R. Hussain Vs. A. K. Jhamb & Ors. Order dt. 25.7.2016
24. In view of this discussion, I find no material to summon any of the accused persons. Accordingly, I dismiss the complaint. File be consigned to record room.
Announced in the open court on 25.7.2016.
(Vinod Kumar) Special Judge03, CBI PC Act, PHC, New Delhi CC No. 2/2015 Page 36 of 36