MS Zakhmi v. National Projects Construction Corp & Ors.

conveyed to the acceptance of request of Shri MS Zakhmi, Senior Executive Engineer (Mech.), Tanakpur PH/MIP Unit for retention of lien in the Corporation as per the terms and conditions notified vide circular No.500187 dated 26.12.1995.

1. Shri Zakhmi is allowed to retain lien for a period of three years from the date of relieving on lien from the services of the Corporation after handing over his charge (in consultation with Zonal Manager, Northern Zone, Faridabad.)

2. He may take up any employment to other organization or practice any profession but should not take a job with the Contractors engaged by NPCC in any projects during the lien period.

3. He can be recalled even during the period of lien in the exigencies of work and/or in the interest of the Corporation. In case after recalling he fails to report for duty at the place notified by the Corporation, the lien CWP No.4500 of 2007.doc - 3 – would stand terminated and disciplinary action will be taken against him. (3). The petitioner thereafter received another order dated 10.06.2005 (Annexure P3) whereby the previous order dated 18/21.02.2005 was ordered to be kept in abeyance and the petitioner was transferred from Faridabad to Tanakpur (Nepal) to attend the urgent works. The petitioner having failed to convince the authorities despite a long correspondence, he submitted the representation dated 08.05.2006 (Annexure P6) reiterating his request for “retention of lien” and or in the alternative treating the said application as his ‘Resignation from service’ forthwith. The petitioner also appended a Cheque dated 08.05.2006 for a sum of `42,675/- in favour of the Corporation in lieu of the notice period. The resignation letter was followed by a departure report dated 09.05.2006 (Annexure P7) as well as the petitioner’s request dated 09.05.2006 to issue a “No Demand Certificate” (Annexure P8). Pursuant to these letters, the Corporation though vide memo dated 16th May, 2006 (Annexure P9) asked various authorities to arrange the NDC in favour of the petitioner, nevertheless, the CWP No.4500 of 2007.doc - 4 – petitioner’s request for acceptance of his resignation was turned down by the Corporation, vide impugned memo/order dated 08.08.2006 (Annexure P11), on the following grounds: “In this connection, it is to intimate you that your request for acceptance of resignation could not be considered due to the following reasons:- i. Vigilance case is pending in Vigilance Division, Corporate Office against your name. ii. An amount of Rs.18,945/- (Rupees eighteen thousand nine hundred forty five) is outstanding in your name at Tanak PH Unit. (4). The petitioner, who, meanwhile, had submitted his departure report requested the Corporation to release his Gratuity, CPF & leave dues etc. after treating him to have resigned from service w.e.f.

08.05.2006. The Corporation instead served the petitioner with the show cause notice dated

17.10.2006 (Annexure P13) calling upon him to explain as to why disciplinary action be not initiated for his willful absence from duty. The petitioner represented against the said show cause notice also but it did not find favour with the respondents who CWP No.4500 of 2007.doc - 5 – meanwhile served him with a regular charge-sheet and appointed an Enquiry Officer as well. (5). The Corporation has filed its reply/affidavit explaining that vide order dated 18.02.2005, the petitioner’s request for retaining his lien was accepted on the basis of ‘Lien Scheme’ dated

26.12.1995 which is uniformly applicable to all the employees of the Corporation and since the ‘Lien Scheme’ nowhere provides for retention of lien for a period of three years in the event of acceptance of the employee’s resignation that the order dated 18/21st February, 2005 was later on kept in abeyance. The respondents maintained that there are separate terms and conditions for ‘retention of lien’ or ‘acceptance of resignation’. It is not denied that the petitioner submitted his ‘resignation’ but according to the Corporation it could not be accepted as the terms and conditions for acceptance of his resignation laid down in Clause No.(3)&(6) of the appointment letter dated 16.11.1981 read with the relevant Rules, were not complied with by the petitioner. It is claimed that the petitioner’s resignation was considered and rejected by the competent authority but as there was a ‘vigilance CWP No.4500 of 2007.doc - 6 – case’ pending against him besides recovery amounting to `18945/-. It is also explained that without acceptance of the petitioner’s resignation, he could not have been relieved and as such, the petitioner was guilty of willfully absenting from duty. The initiation of disciplinary action was said to be fully justified. (6). The petitioner in his rejoinder has reiterated that no ‘vigilance case’ was ever pending against him and there was no other legal embargo also against the acceptance of his resignation which was turned down on totally baseless and non-existent grounds due to mala fide reasons. (7). Having heard learned counsel for the parties at some length on 06.07.2010 and keeping in view the short stand taken on behalf of the respondents that the petitioner’s request was not accepted due to pendency of the ‘vigilance case’ or recovery of `18945/- and the categoric denial of both the objections by the petitioner, the Managing Director of the Corporation was directed to file a specific affidavit explaining the following :- i. “whether or not there was any vigilance case pending against the CWP No.4500 of 2007.doc - 7 – petitioner as on 08.08.2006 when the order (Annexure P11) was passed? ii. whether the petitioner was ever asked to deposit Rs.18945/- after he had submitted his resignation, so as to enable the Corporation to accept his resignation? iii. if there was no vigilance case pending against the petitioner, then why such a plea was taken in the impugned order and why the correct facts were not brought on record before this Court at the earliest? iv. why an amount of Rs.18945/- could not be deducted from the dues payable to the petitioner in the event of acceptance of resignation?” (8). In deference thereto, the Managing Director of the respondent-Corporation has filed his affidavit dated

28.07.2010, which is taken on record, Paragraphs 2,3 & 6 whereof reads as follows:-

2. It is most humbly and respectfully submitted that on 20th of April, 2005, a show cause notice was issued to the petitioner whereby he was directed to explain the circumstances under which he did not send the Clear No Demand Certificate to P&A Division, Corporate Office in time, incorporating therein the shortage of 16.92 MT steel in the name of Sh. B.N. Pandey and why ATD was not raised/sent to Pusa/Munirka Unit, where Shri Pandey was posted, in time, which resulted in loss of Rs.2,00,925/- to the CWP No.4500 of 2007.doc - 8 – Corporation. A copy of the said Show cause notice is annexed herein and marked as Annexure R/I.

3. Subsequently, the petitioner filed reply to the show cause notice which was received by the respondent- Corporation on 3rd of June, 2005 wherein he has categorically asserted that he is not at fault at any stage and cannot be held responsible for any omission or commission. The petitioner also requested that the Show Cause Notice dated 28.04.2005 should be dropped. A copy of the reply to the said show cause notice is annexed herein and marked as Annexure R/II.

6. Thus, there can be no manner of doubt that steps were taken by the Corporation to enquire into the allegations leveled against the petitioner and it is only on

28.02.2008 a decision was taken to close the cause against the petitioner. The said decision was based on a letter dated 20.02.2008 received from the MIP unit of the respondent-Corporation wherein it has been stated that total steel has been reconciled and no shortage of steel has been found. (Emphasis applied) (9). It may, thus, be seen that the petitioner’s reply was kept pending for almost three years though was finally accepted as the very basis of the show cause notice to the petitioner, namely, the alleged loss CWP No.4500 of 2007.doc - 9 – caused to the Corporation by one B.N. Pandey could not be proved. (10). Similarly, paragraphs 4.6, 4.7 and 4.11 of the Affidavit vindicate the petitioner’s stand in respect of the outstanding amount of `18945/- and the same read as follows:-

4.6 With respect to Question No.4 as formulated by the Hon’ble High Court, it is respectfully stated that an amount of Rs.18945/- was recovered from the petitioner in the year 2005.

4.7 With respect and humility, the respondent- Corporation begs to submit that the said fact could not be asserted at inception on account oversight/inadvertence.

4.11 It is submitted that notwithstanding the said fact, the non-mention of the fact of recovery of the amount was an error by oversight and inadvertent. Therefore, once again, the deponent humbly prays to this Hon’ble Court that the bonafide error as reflected in the office order dated 8/17.8.2006 with regard to the fact of the recovery of Rs.18945/- may kindly be considered an unintentional error and may kindly be condone. (11). It is mentioned here at the cost of repetition that in the matter pertaining to the shortage of 16.92 MT CWP No.4500 of 2007.doc - 10 – Steel, the only allegation against the petitioner was that he did not send the clear “No Demand Certificate” to P&A Division, CO in time regarding the above-stated shortage “in the name of Sh. B.N. Pandey”, which caused the alleged loss of `2,00,925/- to the Corporation. The petitioner submitted his reply to the show cause notice on

28.04.2005 (Annexure R/II) without loss of time which was found to be correct and accepted by the competent authority though after about three years. (12). As may be seen from the impugned order dated

08.08.2006 (Annexure P11), the Corporation had declined to accept the resignation of petitioner on two counts only, namely, (i) due to pendency of ‘vigilance case’ and (ii) recovery of `18,945/- outstanding against him. Both the grounds were non-existent and/or contrary to the records. (13). Faced with this and in order to justify their action, the respondent-Corporation in their additional affidavit has now attempted to take shelter behind clause (3) & (6) of the appointment letter dated

16.11.1981 according to which if the petitioner wanted to leave the services of the Corporation he CWP No.4500 of 2007.doc - 11 – was required to give six months’ notice period and wait for its acceptance. (14). Suffice it to say that the petitioner’s resignation was not turned down on account of the fact that his services were required at that time or that any ‘ongoing Project’ would suffer. A new plea which was never the basis for declining the petitioner’s request, cannot be allowed to be taken at this belated stage. In any case in such like eventuality, the Corporation would have been well within its right to insist for deposit of six months’ salary in lieu of the notice period if it so wanted or ask the petitioner to wait for expiry of that period. No such recourse was admittedly followed. (15). For the reasons afore-stated, the writ petition is allowed; the impugned order dated 08/14.08.2006 (Annexure P11) is hereby quashed and as a necessary corollary thereto, the subsequent show cause notice and the disciplinary action initiated against the petitioner are also quashed. The Corporation is directed to accept the petitioner’s resignation w.e.f. 08.05.2006 and release his dues like Gratuity, CPF etc. subject to further deduction, if any, required to be made as per the Rules. CWP No.4500 of 2007.doc - 12 – (16). The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. (17). Ordered accordingly. Dasti.

11.08.2010 vishal shonkar (SURYA KANT) JUDGE