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2019 Supreme(Del) 738
IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
KULAMANI BISWAL - Appellant
Vs.
UNION OF INDIA AND ANR - Respondent
Writ Petition (Civil) No. 3640 of 2019; Civil Miscellaneous No. 16653 of 2019, 16654 of 2019
Decided On : 10-04-2019
Ashok Kumar Singh, Adv., Neeraj Lalwani, Adv., Ashutosh Ranjan, Adv., Arun Bhardwaj, Adv., Puneet Taneja, Adv., Laxmi Kumari, Adv.
The judgment clarified the scope of employment restrictions post-retirement and the applicability of the DPE's Office Memorandum in limiting the petitioner's professional activities.
Headnote:
Legal and Regulatory Consultant - Employment Restrictions - Prevention of Corruption Act, 1988, Section 11, 12; Indian Penal Code, Section 120-B; DPE's O.M. No.2(22)/99- GM-GL-91, Para 5(d)
Fact of the Case:
The petitioner, a former Director (Finance) at NTPC, sought permission to work as a legal and regulatory consultant after retirement. The request was denied based on employment restrictions outlined in the DPE's Office Memorandum.
Finding of the Court:
The court clarified that the petitioner is restricted from taking up employment in firms with which NTPC has had business relations for one year post-retirement, but is not restricted from carrying on professional practice.
Issues: Interpretation of employment restrictions post-retirement from NTPC and the applicability of the DPE's Office Memorandum.
Ratio Decidendi: The court held that the petitioner is not prohibited from carrying on professional work and rendering services to entities with which NTPC has had no dealings, but is restricted from accepting appointments or posts in firms with NTPC business relations for one year post-retirement.
Final Decision: The petition was disposed of, clarifying the restrictions on the petitioner's employment post-retirement from NTPC.
Vibhu Bakhru, J.
1. Issue notice. The learned counsel appearing for the respondents accept notice.
2. The petitioner has filed the present petition, inter alia, impugning an order dated 26.03.2019 passed by respondent no.1 (Union of India) rejecting the petitioner's application seeking permission to work as a "legal and regulatory consultant/advisor/partner/director in various companies /firms for remuneration."
3. The petitioner was employed as a Director (Finance) with respondent no.2 (hereafter "NTPC"). There were certain allegations in regard to corruption against the petitioner, and an FIR in this regard was also filed under Section 11, 12 of the Prevention of Corruption Act, 1988 read with Section 120-B of IPC. The petitioner was suspended from services on 16.12.2017. However, he was reinstated pursuant to an order passed by this Court on 31.10.2018 in a writ petition (being W.P.(C) 6859/2018) preferred by the petitioner. The petitioner claims that he re-joined services with NTPC on 31.10.2018. However, his term came to an end on 08.12.2018 and the same was not extended.
4. The petitioner holds a LLB degree and proposes to work as an independent legal consultant/legal practitioner.
5. There are certain restrictions on the petitioner taking up employment after retirement/resignation from services of NTPC.
6. Before proceeding further, it would be relevant to refer to the operative part of the impugned communication, which reads as under:-
"16. Thus, in view of the above, the request of Shri Kulamani Biswal made vide letters dtd. 08.01.2019 and 05.02.2019 seeking permission in terms of the clause 1.17 of the terms and conditions of his appointment issued vide letter dtd. 31.01.2016, to work as an Independent Legal professional and render services as legal and regulatory consultant/advisor/partner/director in various companies/firms for remuneration, is refused in terms of Para 5(d) of the DPE's O.M. No.2(22)/99- GM-GL-91 dtd.15.05.2008."
7. It is the petitioner's case that although there are certain restrictions on his taking up employment within a period of one year of his retirement/resignation, there is no restriction for the petitioner to work as an independent professional and, therefore, the impugned order indicating that the petitioner is not entitled to do so is erroneous.
8. The impugned order indicates that the same has been passed pursuant to the Office Memorandum (OM) dated 15.05.2008 whereby Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises had directed inclusion of a restrictive clause in CDA Rules/Service Rules of Public Enterprises. The relevant clause restricting the petitioner from taking up employment after retirement/resignation, as referred to in the said OM, is set out below:-
"No functional Director of the company including the Chief Executive who has retired/resigned from the service of the company, after such retirement/resignation, shall accept any appointment or post, whether advisory or administrative, in any firm or company, whether Indian or foreign, with which the company has or had business relations, within one year from the date of retirement without prior approval of the Government. The term retirement includes resignation; but not the cases of those whose term of appointment was not extended by Government for reasons other than proven misconduct. The term "business relations" includes official dealings as well."
9. Paragraph 5 of the said OM sets out the relevant aspects required to be considered by the Administrative Ministry/Department while granting permission as contemplated under the aforementioned clauses. Paragraph 5 of the said OM is set out below:-
"5. The administrative Ministry/Department may grant permission keeping in view of the following aspects:-
(a) The official concerned has had no official dealings with the prospective employers in the preceding five years.
(b) Whether the ex-functional Directors or ex-chief executiv
