Back
2017 Supreme(Del) 3984
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. KAMESWAR RAO, J.
R.P. TAK - Petitioner
Versus
SECRETARY, MINISTRY OF HEAVY INDUSTRIES & PUBLIC ENTERPRISES AND ANR - Respondents
W.P.(C) 1798 OF 2016, CM Nos. 7698, 10460 OF 2016
Decided On : 27-09-2017
For the Petitioner: Ms. Anju Bhattacharya, Adv. with Ms. Nandita Chandra & Mr. Abhimanyu Singh Khatri, Advs.
For the Respondent: Mr. Umesh Sharma, CGSC & Mr. Pradeep Jha, Mr. Sanjiv Sen, Sr. Adv. with Mr. Dev J. Roy, Mr. Alok Sinha, Mr. Rajiv Shankar Dwivedi & Mr. S.K. Sankar, Advs.
Withholding of retiral benefits without disciplinary proceedings initiated before superannuation is unjustified, and exclusion from consideration as an Independent Director without providing a copy of the CVC advice and an opportunity to respond violates principles of natural justice.
Headnote:
Retiral Benefits - Withholding of Retiral Benefits - Rule 30A of CCI Conduct, Discipline and Appeal Rules - Judgment of the Supreme Court in the case reported as 2013 (12) SCC 2010 State of Jharkhand and Ors. v. Jitender Kumar Srivastava and Anr. - Judgment of the Supreme Court in the case reported as 1993 (1) SCC 13 State Bank of India and Ors. v. D.C. Aggarwal and Anr.
Fact of the Case:
The petitioner, a former Director (Finance) and Chairman and Managing Director of the respondent, filed a petition seeking the release of his retiral benefits and inclusion in the panel for consideration as an Independent Director on the Board of CPSEs. The respondent withheld the retiral benefits citing pendency of vigilance clearance and excluded the petitioner from the panel based on advice from CVC.
Finding of the Court:
The court found that the withholding of retiral benefits without disciplinary proceedings initiated before the petitioner's superannuation was unjustified. The court also held that the exclusion from consideration as an Independent Director without providing a copy of the CVC advice and an opportunity to respond violated principles of natural justice.
Issues: 1. Whether the withholding of retiral benefits was justified. 2. Whether the exclusion from consideration as an Independent Director was in accordance with principles of natural justice.
Ratio Decidendi: The court ruled that the withholding of retiral benefits without disciplinary proceedings initiated before superannuation was unjustified, citing the judgment in State of Jharkhand and Ors. v. Jitender Kumar Srivastava and Anr. The court also held that the exclusion from consideration as an Independent Director without providing a copy of the CVC advice and an opportunity to respond violated principles of natural justice.
Final Decision: The court directed the release of retiral benefits with interest and set aside the exclusion from consideration as an Independent Director, allowing the petitioner to respond to the proposed action.
V. KAMESWAR RAO, J.
1. The present petition has been filed by the petitioner with the following prayers: “In view of the aforementioned facts and circumstances, it is most respectfully prayed that this Hon’ble Court may be graciously pleased to:-
(a) Issue a writ in the nature of certiorari quashing the decision of respondent No.1 contained in Office Memorandum dated 10.09.2015 and 09.02.2016;
(b) Issue a writ in the nature of certiorari quashing the decision of the respondent No.2 as contained in order dated 10.12.2015 withholding the petitioner’s retiral benefits on the ground that vigilance clearance is awaited from respondent No.1 which is contrary to their Rules and also provisions of law;
(d) issue a writ in the nature of mandamus directing the respondent to release the petitioner’s retiral benefits with upto date interest @ 18% per annum;
(e) Pass such other of further order(s) as may be deemed fit and proper in facts and circumstances of the present case.”
2. The facts as averred by the petitioner in the writ petition are, he joined the respondent no. 2 as Director (Finance) on January 4, 2006. On November 26, 2010, he was appointed as Chairman and Managing Director in terms of the procedure followed by the Government of India through PESB. On September 30, 2014, the petitioner superannuated from service but his retiral dues were not released on the ground of pendency of vigilance clearance from respondent no.1 which according to him is in clear violation of applicable Rule 30A of Cement Corporation of India Conduct, Disciplinary and Appeal Rules. It is averred that respondent no.2 vide its communication dated September 10, 2015 to the Department of Public Enterprise requesting therein to list out / earmark the name of the petitioner for not considering him to the post of non-official Director on the Board of any CPSE. The petitioner filed a Writ Petition (Civil) No. 10041/2015 on October 16, 2015. On October 28, 2015, this Court had passed the order in the said Writ Petition directing the respondent no.2 to treat the Writ Petition as a representation and decide it within a period of six weeks by passing a speaking order and if need be, the petitioner be call for clarification. It is averred that on December 10, 2015 respondent no.2 passed an order reiterating the petitioner’s retiral dues have been withheld on the ground of pendency of vigilance clearance. On February 9, 2016, respondent no.1 also passed an order reiterating that the impugned order was passed on the advice and opinion of CVC.
3. It is contended by Ms. Anju Bhattacharya, learned counsel appearing for the petitioner that the impugned orders with regard to stoppage of retiral dues and the exclusion of the petitioner from the panel for consideration as Independent Director on the Board of CPSE is legally untenable. She qualifies her submission by stating that, in so far as the retiral dues are concerned, the petitioner having retired and as no disciplinary proceedings have been initiated before retirement, respondent no. 2 could not have withheld the same. On the aspect of the exclusion of the petitioner from the panel for consideration as Independent Director is concerned, the same being on the advice of the CVC, such an order could not have been passed without supplying the petitioner a copy of the advice of the CVC. She also state that action against the petitioner being complete and final with the issuance of order dated July 17, 2015 by the respondent no.1 whereby the competent authority has conveyed displeasure to the petitioner for the irregularities alleged to have been committed, nothing further required to be done nor is permissible in law, the respondents could not have withheld the retiral benefits. She would also refer to an amendment brought to Rule 30A of CCI Limited Conduct, Disciplinary and Appeal Rules in the following manner:
“The employee against whom disciplinary proceedings have been initiated will cease to be in service on the dat
