Calcutta High Court
Tushar Kanti Samaddar vs Tyre Corporation Of India And Ors. on 8 December, 1999
Equivalent citations: (2001)IIILLJ86CAL
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT Ruma Pal, J.
1. This appeal has been preferred from an order dated August 18, 1999 by which the learned single Judge disposed of two writ applications. The first writ application (W.P. No. 2695 of 1997) was filed by the appellant for direction on the respondents to release the appellant's dues on account of Provident Fund, salary for 18 days, pay against unavailed leave for 82 days, conveyance allowance for the months of June and August, 1997 along with interest and a further claim on account of interest by way of damages alleged to have been suffered by the appellant because the respondents did not make payment on the appellant's account to the S.B.I. Home Finance Limited.
2. The second writ application (W.P. No. 498 of 1999) has been filed by the respondent Corporation challenging proceedings under the Payment of Gratuity Act, 1972 (referred to as the 1972 Act) which have been initiated at the instance of the appellant.
3. By the impugned order of the learned single Judge, the learned single Judge held-
(i) That the disciplinary proceedings have been commenced against the appellant before the appellant resigned from the respondent Corporation;
(ii) The appellant had not been relieve (sic) by the respondent Corporation
(iii) That the disciplinary proceedings should be completed (sic) within two months, if such steps were not taken within the aforesaid period the respondent Corporation should release all dues to the appellant within two months thereafter. No specific order was passed in respect of the second writ petition.
4. The disputes between the parties relate primarily to the continuation of the appellant in the service of the respondent Corporation. The appellant was serving with the respondent Corporation since December 16, 1987. He was appointed as Personnel Manager (Staff and Administration) and in the course of the next seven days was promoted thrice. In April, 1995 he was holding the post of General Manager (Personnel and Administration) with the additional charge of Chief Vigilance Officer.
5. According to the appellant being dissatisfied with his working conditions he sought to resign from the services of the respondent Corporation by submitting a letter on July 1, 1997 to the Chairman-cum- Managing Director of the respondent Corporation which reads as follows:
"This is to inform you that due to personal dissatisfaction I am no longer interested to remain in the service of this Corporation and accordingly, I am tendering my resignation. I shall be obliged if you kindly release me from August 18, 1997 after adjusting my unavailed leave in lieu of notice period. I shall remain grateful to you for the support as given to me by you as CMD."
6. The Chairman-cum-Managing Director of the respondent Corporation accepted the resignation of the appellant in the following language:
"As desired by you, your resignation is hereby accepted. As per your request Company agrees to release you from August 18, 1997 and the shortfall in the Notice period will be adjusted against your due leave as per Company rule.
You are requested to handover charge to Mr. D.K. Roy, DGM(P&A) with immediate effect so that he can take over the responsibilities of Personnel and Administration function presently held by you."
Copies of that letter were sent to the General Manager (Finance) Secretary/CVO and to the DGM (P&A) to take over charge from the appellant immediately.
7. According to the appellant charge was duly handed over and accepted by the DGM (P&A) on August 14, 1997 and after that date the appellant ceased to be associated with the respondent Corporation. It is the appellant's grievance that after the appellant's resignation, the appellant was not paid his balance wages, other retirement benefits including gratuity and provident fund etc. despite repeated reminders. He accordingly, filed the first writ application.
8. Accordingly the affidavit-in-opposition was filed on behalf of the respondent Corporation by one Gautam Bandopadhay, Secretary of the respondent Corporation. In the: affidavit-in-opposition it was stated that the appellant was a corrupt officer and that there were serious allegations against him which were "presently being investigated by Central Investigation Bureau." It was also stated that the allegations against the appellant is 'under investigation' by the Vigilance Cell of the Corporation. It was further stated that the Corporation had not given release to the appellant by reason of the process of investigation in connection with the various allegations. It is stated that the Chief Vigilance Officer had issued a note to the Chairman- cum-Managing Director regarding the activities of the appellant on April 27, 1997. Incidentally it may be mentioned that the Chief Vigilance Officer then was Gautam Bandopadhay, the present deponent.
9. The allegations contained in the note dated April 25, 1997 were briefly speaking-
(1) That the appellant abuses the present CMD and other Senior Executives. He had not taken appropriate action to check corrupt practices. He had got promotion in quick succession and also training in England;
(ii) He instigated the Workers' Union for making demonstrations/agitation before the present CMD;
(iii) He was instrumental in pressurising the management through the Officers Association for revision of Grade and Scale;
(iv) He was instigating Trade Unions for submitting their Charter of Demand;
(v) He had handled a litigation in the Calcutta High Court on behalf of the Corporation which was ultimately lost and for which the Corporation had to suffer loss;
(vi) He had complained against the CMD and other Senior Executives.
It does not appear to us that any of these allegations by themselves can justify Gautam Bandopadhyay in labelling the appellant as "the most corrupt officer in Tyre Corporation of India Limited."
10. Be that as it may, the Chairman-cum-Managing Director even after receipt of this note did not hesitate to accept the resignation letter of the appellant as already noted. Gautam Bandopadhay then writes a letter on July 9, 1997 to the Chairman-cum- Managing Director to a large extent reiterating what had been stated in his note dated April 25, 1997. It was further stated "in view of the dubious activity of Shri T.K. Samaddar, General Manager (P&A) though his resignation has been accepted, he should not be released on the date as desired i.e. August 18, 1997 till disposal of the aforesaid Vigilance cases." On this basis the Chairman-cum-Managing Director wrote to Gautam Bandopadhyay which reads as follows:
"This refers to your Note No. TCI/CVD/1 dated July 9, 1997 regarding release of Shri T.K. Samaddar, G. M. (P&A), H.O. w.e.f. August 18, 1997.
In the light of your observation, it is decided that formal release letter to Shri Samaddar, would be issued only after all the vigilance investigations are completed."
A copy of the letter was sent to the DGM (P&A). This memo is dated August 14, 1997. However, as already noted the DGM (P&A) accepted the handing over of charge from the appellant on that date. It can only be presumed that the charge must have been handed over prior to the DGM (P&A) receiving the memo quoted earlier.
11. The respondent Corporation has relied on a letter also bearing the date August 14, 1997 alleged to have been sent to the appellant and the receipt of which is disputed by the appellant. This letter needs to be set out verbatim:
"Ref: TCI : NEP: 205 August 14, 1997 CONFIDENTAL Shri T.K. Samaddar, General Manager (F&A) Tyre Corporation of India Ltd.
Head Office Dear Sir, In supersession to our earlier letter No. TCI; NEP: 205 dated July 8, 1997 in response to your resignation letter dated July 1, 1997 please note that you cannot be released with effect from August 18, 1997, as desired by you, in view of the vigilance cases pending against you. Further please note that you will only be released after the disposal of the aforesaid vigilance cases on various matters.
Thanking you, Yours faithfully, for Tyre Corporation of India Ltd.
Sd/-
(D.N. Banerjee) Chairman-cum-Mg. Director cc : C.V.O. (HQ): This is in terms of your Memo.
No. TCI CVD-1 dated July 9, 1997."
Significantly no copy of this letter was sent to the officers to whom the letter dated July 8, 1997 had been sent viz. General Manager (Finance) or the DGM (P&A). The only copy was sent to Gautam Bandopadhyay to whom it was stated "this is in terms of your memo. No. TOI : CVD-1 dated July 9, 1997."
12. According to the respondent Corporation this letter was communicated to the appellant. There is no proof of such communication except a statement in the second writ application filed by the Corporation verified by the said Gautam Bandopadhyay who does not claim to have communicated the letter himself.
13. This Court also called for the records.
Upon scrutiny of the same it does not appear that the letter dated August 14, 1997 alleged to have been addressed to the appellant had been referred to in any other document. It is therefore extremely doubtful, euphemistically speaking that the letter was either written or if written, sent to the appellant as claimed by the respondent Corporation.
14. Assuming that there was such a letter the next question is whether this letter was sufficient to treat the acceptance of the appellant's resignation as withdrawn and whether as a consequence thereof the appellant continued in service.
In our view the alleged letter dated August 14, 1997 cannot be legally sustained. (1) There is no ostensible reason why the Chairman-cum-Managing Director took a stand different from the one he had adopted when issuing the letter dated July 8, 1997. All that the note of Gautam Bandopadhyay dated July 9, 1997 did was to reiterate the materials which had already been drawn to the notice of the Chairman-cum-Managing Director prior to the issuance of the letter dated July 8,1997 (2) The alleged letter dated August 14, 1997 appears to have been written at the dictates of the said Gautam Bandopadhyay, the then Chief Vigilance Officer (HO) The use of the phrase, "This is in terms of your memo" is telling.
Such an abdication of power by the Chairman-cum-Managing Director cannot be supported.
15. Having held that the letter dated August 14, 1997 is unsustainable, the further question, namely, whether in law an acceptance can be revoked prior to the effective date, need not be decided by us. The respondent Corporation has never acted on the basis that by the alleged letter dated August 14, 1997 the appellant continued in the service of the Corporation. It is not in dispute that the appellant has not attended the office since August 14, 1997. Yet, no notice has been issued by the Corporation to the appellant asking him to continue in service or taking disciplinary proceedings] against him for his failure to attend office. Admittedly, the appellant has not been paid any salary whatsoever since August 14, 1997. The correspondence appearing from the records, produced by the respondents, also indicates that the respondents were proceeding on the basis that the appellant had resigned with effect from August 18, 1997. The letter of the Deputy General Manager (P&A Corporate) to the Personnel Department, dated January 18, 1998, reads as follows:
"Sub : Final Settlement of Mr. Tushar Kanti Samaddar, Ex- General Manager (P&A) of Head Office resigned with effect from August 18, 1997.
Consequent upon the resignation (vide his letter dated July 1, 1997) of Mr. TusharKanti Samaddar, General Manager (P&A) of Head Office and the same has been accepted by the Management with effect from August 18, 1997, you are requested to please arrange final payment of Mr. Samaddar on the basis of the following particulars:
Name : Mr. Tushar Kanti Samaddar Designation : General Manager (P&A) Date of Joining : February 16, 1987 Date of Release : August 18, 1997 (afternoon) Last Basic : Rs. 6,250/- per month Leave Salary : As per Leave Statement enclosed In this connection please note that the balance period of notice to be adjusted with this due Privilege Leave.
We are enclosing the following papers in connection with the above:
(a) Gratuity Claim in Form-I
(b) Charge Handover Certificate."
Again, in answer to a note, written by Gautam Bandopadhyay on September 23, 1998 to the Chairman-cum-Managing Director relating to the alleged wrongful sale of the Corporation's vehicles by the appellant, the Chairman-cum-Managing Director by the letter dated October 7, 1998, addressed to the Chief Vigilance Officer, says, "Subject: Disposal of Company's Vehicles Please refer to your note No TCI CVO-1/034 dated September 23, 1998 regarding disposal of Company's vehicles. As the person concerned had already left the service of the Company . I feel no useful purpose will be served by persuing the matter further. However, this matter is kept in the personal file of the concerned official as record of the subject matter."
16. It was not drawn to the attention of the learned single Judge that disciplinary proceedings had, in fact, not been initiated against the appellant when he resigned. The principle that a person may be continued in service provided disciplinary proceedings have already commenced would not apply, therefore, in this case. The other consequence of the failure to initiate disciplinary proceedings even till date is that the respondent would be debarred from withholding any of the moneys payable to the appellant. According to the respondent's affidavit, affirmed on January 14, 1998, the appellant was entitled to the following amounts:
(a) Salary for 18 days in August, 1997 :
Rs. 5,311.71.
(b) Leave Salary after adjustment of balance notice period for 43 days : Rs. 10,530.56. (c) Conveyance Charges : Not determined due to non-submission of claim by the petitioner. (d) Gratuity :
The petitioner's application for payment of gratuity filed before the Controlling Authority under the Payment of Gratuity Act, 1972 is pending for disposal.
(e) Provident Fund :
Approximately Rs. 42,570/- in P.F. Account of the petitioner lying with T.C.I. Employees Provident Fund Trust No. 1. The petitioner should take up the matter with the Trust, inasmuch as the Respondent No. 1 cannot release the P.F. Money"
The respondents have also claimed a sum of Rs. 30,000/- on account of Hire Charges, from the appellant. It is clear that whatever amounts are payable to an employee upon superannuation, either by way of retirement or resignation, in accordance with the rules of the Corporation must be made available to the appellant.
17. As far as the payment of gratuity is concerned, proceedings had already been initiated by the appellant under the Payment of Gratuity Act, 1972 and the respondents had sought to resist the same primarily on the ground that the issue as to whether the appellant was continuing in service or not was the subject matter of the first writ petition and was, therefore, subjudice. As we have come to the conclusion for the reasons stated earlier that the appellant's resignation was effected, to terminate the relationship between the appellant and the respondent Corporation on August 18, 1997, the proceedings pending before the appropriate authority under the Payment of Gratuity Act, 1972 may be proceeded with.
18. As far as the Provident Fund is concerned, the learned counsel appearing on behalf of the respondents, has fairly stated that the amount may be transferred to the Provident Fund Account of the appellant in his new employment with Price Waterhouse and Peat subject to an appropriate application being made to the Trustees of the Corporation's Provident Fund.
19. However, the respondents have submitted that this Court cannot direct payment of any money to the appellant by virtue of provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. According to the respondents, reference had been made to the Board for Industrial and Financial Reconstruction (in short, BIFR) and a scheme was in the course of preparation under Section 18 of the said Act. It is submitted that Section 22 of the said Act specifically forbade "any suit for recovery of money". Without going into the question whether the provisions of Section 22 of the 1985 Act will apply to the proceedings under Article 226 of the Constitution of India, we clarify that as far as this proceeding is concerned, the Court has merely declared the status of the appellant, namely, that he has ceased to be an employee of the respondent-Corporation with effect from August 18, 1997. It is made clear that any proceeding for recovery of money due to him may be taken by the appellant subject to the consent of the BIFR as provided under Section 22 of the 1985 Act. This observation, however, will not apply to the mere continuation of the proceedings under the Payment of Gratuity Act, 1972, nor to the transfer of the Provident Fund dues as fairly offered by the respondent Corporation.
20. It is also made clear that the findings of this Court will not preclude the respondents from filing any appropriate proceeding for recovery of the amount which the respondents claim to have suffered by way of loss and damage on account of the actions of the appellant, if they are otherwise so entitled, in accordance with law.
21. To sum up, the appeal is disposed of by setting aside the order under appeal. It is declared that the appellant's resignation was effective and his services with the respondent Corporation came to an end on August 18, 1997. The appellant must be paid all retiral benefits of the respondent Corporation as are admissible in law to him. There is no question of initiation of any disciplinary proceeding against the appellant subsequent to his resignation. The proceeding under the Payment of Gratuity Act may continue. The transfer of Provident Fund dues must be made on an application by the appellant to the appropriate authority. The amounts which the appellant may seek to recover otherwise from the respondent Corporation must be subject to the consent of the BIFR.
22. There will be no order as to costs.
23. Let xeroxed copies of this Judgment' and Order, duly signed by the Assistant Registrar of this Court, be made available to the parties upon their undertaking to apply for and obtain certified copies thereof on payment of usual charges.
S.N. Bhattacharjee, J.
24. I agree.