P.C. Sekhar v. New India Assurance Company Ltd. & Ors

\7/ * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on July 02, 2015 Judgment delivered on July 29, 2015 + W.P. (C) 10209/2009 P.C. SHEKHAR Petitioner Through: Petitioner in person Versus . M THE NEW ESIDIA ASSURANCE CO. LTD. & ORS. Respondents Through: Mr. Saurabh Prakash, Adv. CORAM: HON'BLE MR. JUSTICE V.KAMESWAR RAO V.KAMESWARRAO. J. For orders, see W.P.(C) No. 3416/2002. (V.KAMESWARRAO) JUDGE JULY 29,2015 akb f In the HIGHCOURTOF DEtHIAT NEW DELHI .h/dpment reserved on July 02. 2015 Judpment delivered on July 29. '2015 & vy.p.rcTi 3416/2002 & W.P. rn 10209/2009 P,€. SHEKHAR ......Petitioner V Tlirough: Petitionerin person : , versus THEikeWINDIAASSURANCECO. LTD. Respondents Through; Mr. SaurabhPrakash,Adv. With P.C. SHEKHAR .Petitioner Through: Petitioner in person versus THE NEW INDIA ASSURANCE CO. LTD. & ORS. Respondents I • Through: Mr. Saurabh Prakash, Adv. CQRAM: UON'JBLE MR. JUSTICE V.KAMESWAR RAO V.KAMESWARRAO, J.

¶1By this common order, I shall dispose of two writ petitions, as I ' . " • i , . . ^ they involve the same parties with common facts and the prayers are ^ interTConnected. * . 2. :The writ petition being W.P.(C) 3416/2002, which was initially ! •' ' filed illthe year 2002, was amendedand in the amendedpetitionfiled, in the year 2006, the following reliefs have.been claimed: I '• • , "(a) To issue a writ of Certiorari or any other appropriate writfor quashing the impugnedorders of i . • . • • • ' ] ' -' • • I • ' _ W.P:(C)N'os. 3416/2002&10209/2009 p^ge}of34 :;•••••Tr .Respondent No. 1 and bearing number DRO-I/Int- . Audit/R.K. Bhatia/VKS/98-81 Dated 17-04-98 (Annexure P-14 Pension Cell/RGH/99 dated 11/5/99 (Annexure P-17) and DRO-1 /PERS/CL-I CELL/SG/GIMP/2001 dated 28-12-01 (AnnexureP-19) as incorrect, arbitrary and illegal;

(b) issue a Writ ofMandamus or any other appropriate writ directing the Respondent that the retirerrient benefits admissible to the petitioner under the General insurance (Employees) Pension Scheme 1995 be assessed-on the basis of the combined qualifying service under the. Central Government and qualifying service unden the New India Assurance Company Limited;

(c) To issue a writ of Certiorari for quashing the Charge sheet dated 03-05-2006 and letter dated 22-06-2006 for proceeding on inquiry against the Petitioner on Charge Sheet [Annexure P-41 and Annexure P-45 respectively] with is improper, arbitrary, illegal, prompted by malice and arising out violation of this Hon'ble Court's directive to positively decide on the status ofSVRS ofPetitioner latest by 13-01-2005.

(d) To issue directions to the RespondentNo.1 to release all terminal benefits includingpension to the Petitioner with effectfrom 04-07-2006in pursuance of the Proviso W.P.(C)Nos. S'fJ6/2002^10209/2009 . Page2of34 to Para 30(2) ofGeneralInsurance(Employees)Pension Scheme, 1995 by declaringhis retirementas deemed;

(e) To declarethe denialofSVRSby the RespondentNo.l ... I as illegal, arbitrary, improper and malafide and issue directionsto the RespondentNo.1 to releasehis terminal benefitscommensuratewith the SVRS;

(f) To impose appropriatecost on the RespondentNo.1 for protractingthe justice to the Petitionerand causing extreme hardship to his life and liberty for over more than 10 months; ^

(g) To directthe RespondentNo.1to identifythe officers responsiblefor blatant violationofjudicial directivesand to initiate appropriate administrative action against them ; . for misusing their authority; 1(h) To direct the Respondent No.1 to pay salary to tine Petitioner from November 2005 till his relieving from services due to compulsory waiting arising out of inaction of Respondent No.l together with all benefits arising out of employment which were denied due to protracted SVRS; .

(i) To direct the Respondent No.1 to release salary arrears for 41 months and issue a TDS Certificate to the Petitioner for thefinancial year 2005-2006;

(j) To issue such other writ or order or direction as this Hon'ble Court deems fit and proper in the facts and circumstances ofthe case ". 3, Insofaras W.P.(C) 10209/2009 which was filed m the year 2009 W.P.(C)Nos.3416/2002&10209/2009 ' Page3of34 ^, . is concerned,the petitionerhas soughtfor the followingrehefs: "(a) To issuea writofCmiorariorany otherappropriate writfor quashingthe impugnedorder ofthe Disciplinary Authority (Respondent-3)dated 1109-2008and order of the AppellateAuthority(Respondent-2)dated 26-02-2009 (communicatedvide letter dated 23-03-2009)terminating the petitioner from services as incorrect, arbitrary, ^ fraudulent and illegal;

(b) to issuea WritofMandamusor any otherappropriate Writ directing the respondents to transfer back the service records of thepetitioner to Delhi and relieve thepetitioner immediatelyfrom the'services with his correct designation as .'Deputy Manager'with thefollowing benefits: ,

(i) Ex-gratia amount of SVRS held up fraudulently ever since 09-03-2004 by the respondents to be paid as On the . date ofrelieving thepetitioner by the respondents;

(a) Salary arrears withheld fraudulently by the respondent^ ever since 09-01-2006 alongwith interest thereon;

(Hi) Sglaryfrom November 2005 till the date of relieving the petitioner by the respondents after rectifying the manipulation ofsalary records together with interestfrorh the date oftheir accrual due tofraudulent withholdingand compulsory waiting;

(iv) Providentfund, Gratuity and Leave Encashment on W.P..(C)Nos.3416/2002&, 10209/2009 Page4of34 f:> accumulated leave of 240 days after rectifying the manipulationofsalaiy records;

(v) Pensionfrom the date ofrelievingthepetitionerfrom servicesafterrectifyingthe manipulationofsalaryrecords without prejudice to his part service under CWP-3416/2002;

(vi) Any otherterminalbenefitsundertheRules;

(vii)Monetdry value of Leave Encashment and LTS declinedfraudulently beyond 60 days from the date of notificationofthe Special VoluntaryRetirementSchemeon 01-01-2004;

(viii)Interest and penalty to the Income Tax Department on understatement ofsalary and evasion oftax;

(ix) Remittance of deductions made from the taxed salary f ofthe petitioner to various authorities on whose behalf the deductions were carried out but fraudulently withheld together with interest andpenalty for delayed remittance;

(c) to issue a Writ ofMandamus or any other appropriate Writ directing the respondents to pay damages to the petitioner arising out offraud and misrepresentation;

(d) to issue a WritofMandamus or any other appropriate Writ directing the respondents to pay compensation towards defamation, degradation, intimidation from better employment prospects commensurate with petitioner's professional qualification and mental trauma and torture towards thepetitioner and his aged mother; WJy(G)Nos.3416/2002&10209/2009 ' ' Page5of34 n

(e) to awardcoststo thepetitioner;

(f) to issue any other directionsdeemedappropriateby thisHon'blf Court". The impugned orders

¶4The letter dated April 17, 1998, is a communicationfrom the respondentNo. 1wherebythe petitionerwas informedthe rejectionof his request for inclusion of past service rendered by him in the Govermnentof Indiafor pensionand.otherbenefits;the letterdatedMay 11, 1999,wherebythe respondentNo. 1has communicatedthatinterms ofthe provisionsofthe GeneralInsurance(Employees)PensionScheme, 1995 ('Pension Scheme, 1995', in short) , the petitioneris not eligible for benefit of service rendered by him in the Ministry of Commerce, and letter dated December 28, 2001, whereby, the petitioner was communicated by the respondent No. 1 that his past service in the Ministry of Commerce for the purpose of voluntary retirement under the pension schenle cannot be considered; the memorandum dated May 3, 2006 issued by the respondent, whereby the petitioner Was issued charge sheet wherein three Articles of Charge were framed against him; and communication dated June 22, 2006, whereby the Disciplinary Authority has decided to hold domestic enquiry against the'petitioner in terms of memorandum of charges dated May 3, 2006 by appointing Enquiry W.P.fC)Nos.3416/2002& 10209/2009 Page 6 of34 A Officer .and Presenting Officer.

¶5The details of the impugned orders in W.P.(C) 10209/2009are; the orderdatedSeptember11, 2008, wherebythe DisciplinaryAuthority i.e. the respondentNo-3removedthe petitionerfrom the servicesofthe respondents and the order dated Februaiy 26, 2009, whereby the AppellateAuthorityrejectedthe appealofthe petitioner. The fa:cts:- ,6. . The brief facts are, on the death of his father, the petitioner was •given a compassionateappointmentas an 'Investigator'in the pay scale OfRs. 425-700/- with usual allowances vide order dated August 7, 1979 in Ministry of Commerce,Governmentof India (respondentNo.3). He was appointed on substantive basis on January 13, 1982. While the petitioner was serving in the Ministry of Comhierce, he being a Chartered Accountant, applied for the post of Assistant Administrative Officer in the respondent No. 1 company, which was a subsidiary of the respondent No. 2 company, in the pay scale of Rs. 530-1050/- through proper chamiel. The petitioner was given the offer of appointment and he joined the respondent No. 1 company on March 12, 1986, with the probation period of one year. In the meantime, the petitioner submitted technical resignation with the respondent No. 3 on March 10, 1986. At the time of the petitioner's appointmentin the companyon March 12, W.P.(C)Nos.3416/2002&10209/2009 Page 7of34 1986,therewas no pensionscheme. The petitionerhad hot receiyedany .retirement benefits from the Government for the service rendered up to March 1.0, 1986. However, Pension Scheme, 1995 was. introducedby the respondentNo. 1 on June 28, 1995 and the petitioner,by exercising an option under the scheme, was required to surrender company's contribution to Provident Fund together with interest thereon, from' the date of his appointment. The Pension Scheme, 1995 was made applicable for the service rendered prior to January 1, 1986 in terms .of Chapter 11 of the scheme read along with Explanatory Memorandum. Suffice to state, the petitioner was covered under the Pension Scheme, 1995 w.e.f his date of appointment in respondent No. 1. It may be stated here that the petitioner was confirmed in the service of the company as A.A.O. It is the case of the petitioner that the Department of Pension and Pensioners' Welfare has, from time to time, issued instructions with regard to the counting of the past service. On August 22, 1996, he made a representation to respondent No. 1 for counting of the past service in Ministry of Commerce (respondent No.3), which was followed by the reminder dated March 2, 1998. Unfortunately, said representations were rejected by the respondent No. 1 stating that the appointmentof the petitionerin the servicesof the companywas through open competition and not by way of transfer by Government of India on •W.P.(C)Nos. 3416/2002&10209/2009 . Page8of34 permanentabsorptionbasis, therefore,it is not possibleto considerthe requestmade by the petitioner. On receiptofsuch a correspondence,the petitioner made further representation dated May 12, 1998, to the respondentNo. 1, with a requestto forwardthe same to the respondent No. 4 i.e. the Ministry of Personnel; Pubhc Grievances and. Pensions. That apart, the petitioner had also made a representation directly to the ' respondentNo. 4 on October 22, 1998. No response was received from the respondent No. 4 oh the request made by the petitioner. In the meantime, on January 9, 1999, the petitioner had sought voluntary retirement 6n the ground that he had completed 20 years of service. A further request was made on February 8, 1999. The respondent No. 1, on May 11, 1999, conveyed to the petitioner that as per the existiiig provisions of the Pension Scheme, 1995, he is not eligible for the benefit of service rendered by him in the Ministry of Commerce, Government of India. A similar communication was made to the petitioner on December 28, 2001 inasmuch there is no provisionin the company's pension scheme to add the past service rendered in the Ministry of Commerce,Governmentof India. That apart, an observationwas made by the respondent No. 1, based on the decision of Central Administrative Tribunal that Government may sanction pro-rata pension to their employees,who resignedthe Govemnientserviceto joinPSU. Be that , W.P.(C)'Nos. 3416/2002-&10209/2009 Page9of34 •i' as it may, on May 17, 2002, the petitioner filed the present writ petition.

¶7The reliefs prayed for in W.P.(C) 3416/2002 were primarily related to the challenge to the orders dated April 17, 1998, May 11, 1999 & December 28, 2001. In any case, I have reproduced the prayers now made in the amended petition, which incorporates the prayers as.made by the petitioner initially in W.P.(C) 3416/2002.After the filing of the petition,the respondentNo. 1 introduceda SpecialVoluntaryRetirement Scheme (SVRS), 2004. The petitioner, accordingly, on January 14, 2004, applied for voluntaryretirement under SVRS, 2004. It is the case • of the petitioner that the authorities have issued certificates that no f disciplinary proceedings are pending against him. Audit clearance, vigilanceclearancewere also takenin favourofthe petitioner. He would state, that even though, the petitioner was not to be relieved without a substitute,the Chairmanand.ManagingDirectorofthe respoindentNo. 1, api^roved the request of the petitionerfor voluntary retirementunder SVRS, 2004. During the submission,it was statedthat the noting and approvalofCMD werenot providedto him underRTI. On July 8, 2004, the petitionerhad sent a reminder, calling upon the authoritiesin the respondentNo. 1to expeditehis requestfor SVRS at the earliest.During the hearingon October6, 2004, a submissionwas made on behalfofthe petitionerthat the petitionerhas submittedan applicationfor acceptance W.P.(C)Nos.3416/2002&10209/2009 Page Wof34 , ofVRS which is pending consideration with respondentNo. 1. This Court had called upon the learned counsel for the respondent to take instru^jtionson the same.Thereafter,effectivehearingin the writpetition could take place only on February 28, 2006 when a submissionwas made on behalf of the petitionerthat the inclusionof past service in the Central Govermnent would not be pressed if the respondent company acceptsthe request of the petitioner for relievinghim under SVRS and in that regard, the rehance was placed on the letter dated December 28, r 2004 of the respondent No. 1, in which it was stated that the competent . authority was willing to consider the SVRS application without taking into account his previous sei-vice with Government of India into consideration for, the purpose of terminal dues including pension, without prejudice to the stand taken in W.P.(C) 3416/2002; It is averred in the writ petition that a letter dated March 22, .2006 on SVRS was addressed to the advocate of the respondent No. 1. When the matter ' came up for hearing, on March 23, 2006, a statement was made by the learned counselfor the respondentthat it is not possibleto accedeto the request of the petitioner relieving him under SVRS. On such a submission, the learned counsel appearing of the petitioner, on instructions stalled that the petitioner would be approaching the respondent seeking voluntaryretirement in tenns of Pension Scheme, W.P.(C)Nos. 3416/2002&10209/2009 Page ]] of34 1995, as per which, an officer who has put in 20 years of quahfying service can seek voluntary retirement from the service. It was the case of thepetitionerduringthehearingthathe had put in 19 V2 yearsof service and would be entitled to the benefit of Regulation 18, which provides rounding off the services for broken period of service if they are in excess of six months. Accordingly, the Court directed the petitioner to approach the respondent with an application under Regulation 30, within, a period of two weeks. In such an event, the respondent was to pass appropriate order having regard to the circumstances of the case within two weeks of the receipt of such an application. The petitioner accordinglysubmittedhis requestfor VRS in tenns of the Court's order on April 3, 2006.

¶8In the meantime, a further development took place, that on August 11, 2005, the petitioner was transferred to Mumbai and was called upon to take new assignment on or before September 10, 2005.

¶9On receipt of the communication dated August 11, 2005, the petitioner made a representation dated August 18, 2005 to the respondents for cancellation of transfer order issued on August 11, 2005. He had given his mother's illness as one of the reasons. He had also highlighted that he had opted for SVRS in January 2004 and stated that it was becomingdifficultfor him to move out of stationintermittentlywith W.P.(C)Nos.3416/2002&.I0209/2009 Page 12of34 .the office work and abandon his mother to her own self care. He had also made a requestthat in the eventuality,the cancellationof transfer out of Delhi is not possible,then, he be relievedfrom the companyby accepting his retirement.

¶10It is, the case of the petitionerthat on May 3, 2006, despite the Court's order, voluntary retirement order was not passed but a charge sheet was issued wherein, it was alleged that the petitioner remained unauthorizedly absent without prior approval of the competent authority --y from September 19, 2005 and also failed and neglected to abide by the iawfiil orders of the superiorconveyedto him-videletter dated August 11, 2005. It was also alleged that the petitioner remained absent from office from September 19, 2005 without prior sanction by the superiors and not reported at his new assignment and thus, set a bad example amongst the employees of the organization and his conduct was A unbecomingof a pubhc servant. It is noted, when, on a CM No. 660-661/2006, proceedings were held on May 16, 2006, a statement was made, onbehalfoftherespondentNo. 1thatthe request ofthepetitioner for VRS cannot .be acceded to in view of proposed'disciplinary proceedingssincechargesheethas beenissuedon May 9, 2006.

¶11It is the case of the petitionerthat he filed a detailed reply in defenceto the chargeslevelledagainsthim vide his letterdatedMay 29, W.P.(C)Nos.34I6/2002.&10209/2009 Page 13 of34 Tr i- '(56. On June 22, 2006, the petitioner received a letter from the respondentNo. 1statingthat enquiryproceedingswould be conducted against him since the charges framed against him were denied. The petitionerin the petition has highlightedthe proceedingsheld in this Court!on June 1, 2006 wherein, a statementwas made by the learned counselfor the respondentthat he is making effortsto settlethe matter amicablyand to the satisfactionof the petitionerand failing which, the counter affidavit shall be filed. It is his case that the respondent No. 1 did not furnish any reply for the rejection of VRS under para 30 to the petitioner in pm-suanceof the directives of this Court on May 16, 2006. It is his case that deemed retirement under proviso to para 30(2) became ^effective.from July 2, 2006 by virtue of specific application moved by the petitioner-on April 3, 2006. It is the petitioner's case ,that the Enquiry Officer Sh. Rajesh Kalra commenced the preliminary enquiry on May 14, 20Q8, and concluded the same on May 29, 2008. Thereafter, J the petitionersubmittedhis writtenbriefto the EnquiryOfficer. OnJuly 21, 2008, the Enquiry Officer issued the enquiry report. The petitioner submitted representation to the disciplinary authority against the enquiry report on August 18, 2008. On September 11, 2008, order removing the petitioner was issued. On October 3, 2008, the petitioner filed an appeal against the termination order to the Appellate Authority, who upheld the w:p.(C)Nos.3416/2002&10209/2009 \ Page 14of34 removal order of the petitioner on February 26, 2009, which was conveyedto the petitioneron March 23, 2009. It is the order of the disciplinaryauthority dated September 11, 2008 and the order of the Apjpellate Authority dated February 26, 2009 which are the subject matter of the W.P.(C) 10209/2009.

¶120|:^ the other hand, it is the case of the respondentNo. 1 that the present petitions have been filed by the petitioner, praying for counting of service rendered by the petitioner with the Government of India, for the puipose of determination of his eligibility and computation of pension. During the pendency of the petitions, the respondent • announced the Special Voluntary Retirement Scheme, 2004. The stheme, inter alia, required that the concerned officer should apply unconditionally thereunder. Though the petitioner applied for the retirement thereunder, while doing so, he made his request conditionally upon reckoning of his past service with the Government for the purpose of benefits thereunder. Since the respondent was of the view that he was not entitled to count such service with the Government and since his i requestwas conditional,his applicationfor SVRS couldnot be accepted. During the course of the hearing of this petition, on October 6, 2004, upon the request of the counsel for the petitioner, this Court directedthe counsel for the respondent No.l to seek instruction as to whether the , W.P.(C)Nos.3416/2002&10209/2009 Page15of34 petitioner's request for SVRS could be accepted without prejudice to tlie 1question raised in the petition. The respondent No. 1 would highlight that ,the competent authority was willing to consider the application under SVRS of the petitioner without taking his previous sei-vice with the Government of India into consideration, for the purpose of terminal dues including pension, without prejudice to the stand taken in the writ , petition. Tl^e respondentNo. 1 statedthat despitethe said statement,the •. petitionerdid not askthat his applicationbe so considered;neitherdid he ask this Court to pass any orders•nor even did he address any communicationto the respondent asking that his application be so considered in accordance with what had been stated in the said letter. The respondentNo. 1wouldhighlightthat when the mattercame up for hearing on February28, 2006, the counsel for the petitionersubmitted thathe wouldnot press his claim for countingofhis past serviceon the conditionthat the respondentacceptliis requestfor being relievedfrom serviceunderthe SVRS. In makingsuchsubmission,he had reliedupon the letter of the respondent No. 1 dated December 28, 2004. The respondentNo. 1has also highlightedthe proceedingsofthe hearingthat took place on March 23, 2006, when it was submitted that it was not possible to accede to the petitioner'request for relieving him under SVRS. The respondentNo. 1 also stated that in terms of the statement W.P.(C)Nos.3416/2002&J0209/2009 Page16of34 OH made by the counselfor the petitionerthatthe petitionerwouldappl'oach the respondentNo. 1seekingVRS in terms ofPensionScheme, 1995 on the groundthat the petitionerhavingput in 19^2 years ofservicewould be entitledto the benefitof a provision,whichprovidesroundingoffthe servicesofbrokenperiodof services,if they are in excessof sixmonths. The petitioner,was accordingly,permittedto do so by this Courtand the respondentNo. 1 was directedto pass appropriateorders thereon. The respondent No. 1, has in its reply, referred to order dated August 11, 2005 vide which order, the petitioner was transfeiTed to Mumbai office , of the respondent. The respondent No. 1 also referred to the letter dated August 18, 2005 of the petitioner, citing various difficulties in reporting to. Mumbai and for withdrawal of transfer-order. The respondent No. 1 would submit that from a reading of letter dated August 18j 2005, the . petitioner seems to be requesting that he should be retained in Delhi until he is relieved under the SVRS or else to be relieved forthwith under the SVRS. According to the respondent No. 1, the said request was not a request for resignation. The respondent No. 1 has also stated that in view of that, the respondentNo. 1 was unableto act onthe said request. I • • ' • The respondentNo. 1 also statedthat the petitionerhad not reportedat the place of posting. It is the case of therespondentNo. 1that sincethe petitionerhad not reportedto the place of posting at Mumbai, he was W.P.(C)Nos. 3416/2002&'l0209/2009 Page 17of34 charge-sheetedon May 9, 2005. The respondeiitNo. 1 also highlighted the filing of the CM No. 12951/2006in order to bring closure to the matter. It is the.case of the respondent No. 1 that the petitioner had never wished to resign from service. Rather all his communications have been to request, either he be given the benefit of rounding of or SVRS or the benefit of the Pension Scheme, 1995, which according to the respondent No. 1 was not possible to accede to. They have also highhghted that counting of past service in the Government was given up by the counsel for the petitioner, on Febmaiy 28, 2006., Even his entitlement to SVRS , had also.been argued by his counsel but had also been given up,on March 23, 2006. -

¶13Mj.P.C.Shekhar,the petilioner,who appears in person,insofaras his plea of countingof his past serviceis concerned,wouldrely upon the various nofifications issued by the Government of India in that regard. According to him, this includes, the OM dated September 12, 1985, OM dated March 31, 1987, OM dated May 30, 1995. He state;s, he is entitled to the benefit of counting of past service put in by him with the Government of India, for which, he made representation to the respondentNo. 1 as well to respondentNo. 4. Unfortunately,the replies have been given by the respondent No. 1 only. He would state that the responseof the respondentNo. 4 in that regard, would be relevant as any W.P.(C)Nos.3416/2002&10209/2P09 Page18of34 j(r

3.^ benefit of the past semce to the petitionerwould be in the nature of settlementbetweenemployersas the Ministryof Commercewould pay the pensioncontributionfor the periodthe petitionerhad workedin that Ministry. He seeksthatthe reliefas prayedfor in thatregardbe granted by this Court.

¶14That apart, insofar as the grant of SVRS/VRS is concerned,he states that the respondentNo. 1 having introducedSVRS on January 1, 2004 for retirenient after 10 years and the petitioner having applied fw the same on January 14, 2004, the respondents were required to ,communicate the decision taken on the said application for SVRS. He , reiterates the clearances given by the various authorities under the respondent No. 1 including the decision taken by Chairman and Managing Director of the respondent No. 1 for grant of SVRS to the petitioner. Unfortunately, despite the same, there was no communication - conveying the decision. He would state that even the letter dated December28, 2004, wherein,it was statedthat the competentauthority was willing to consider the SVRS application without taking into , account his previous service with the Central Government, without prejudiceto the stand in these proceedingshad not been acted upon. Nothing precluded the respondent to take an action in favour of the petitioneras thepetitionerwas.in any case entitledto the retirementafter W.P.(C)Nos.3416/2002&10209/2009 ' Page 19 of34 •4 10 years ofservice;in termsofthe saidscheme. He wouldhighlightthat he vide his letter dktedJuly 8, 2004, had remindedthe respondentNo. 1, of his SVRS applicationand also, in the event of additionalbenefits arisingof the High Courtverdict,the same be settledafterthejudgment. ^He would also state,even this Court on October 6, 2004, had directed the counsel for the:respondent No. 1 to take instruction on VRS without the same in any manner prejudicing the question raised in the petition. He states that even the application made by him on April 3, 2006 in terms of ,the statement made by the learned counsel for the petitioner seeking voluntary retirement under the Pension Scheme, 1995 should have been considered •positively. Rather, the issuance of charge sheet for not obeying the order of transfer was an act of mala fide, as it is on record that even before the issuance of transfer order, the petitioner had shown the desire to take voluntaryretirement from the company. Accordingto him, there was no bona fide reasons for the respondents to deny the^ voluntary retirement to the petitioner. In fact, it is his case that even againstthe transferorder, he has shown genuinereasons of his inability to go to Mumbai. The saidreasonshave also not been consideredbythe respondentsin proper perspective. Accordingto him, it is an admitted c^se that the date on which he was relievedori September12, 2005, he {had already completedmore than 195^ years of service which could fV.P.fCJNos. 3416/2002&10209/2009 20 of34 ^ • ••rj-have been rounded of as 20 years for being ehgible for VRS under the Scheme of 1995. He would further state that when he submitted his SVRS/VRSapplications,there was no departmentalproceedingpending •which can be said to be an impeding factor for rejection of the applications. Even otherwise,the reasonsfor rejectingthe requestdated April 3, 2006 for not complying with the order of transfer, is unjustifiable^,when it is on record, requests were being made by the petitioner from time to time, for being relieved after the acceptance of the SVRSA^RS. He would in the last state, he should be deemed to have been voluntary retired, at least from September 12, 2005 when he was ; purported to have been relieved by the respondent No. 1 for his joining Mumbai. He would rely upon the judgments of RXMarwaha Vs. Union of India and Ors. (1987) 4 SCC 31, TS ThiruvengadamVs. -\ Secretary to GOI, Ministry of Finance, Departmentof Expenditure and Ors., (1993) 2 SCC 174, Bank of India Vs. O.P.Swaranakar,

(2003)2S(:c 721, StateofHaryanaandOrs. Vs. S.K.Singhal,(1999)4 SCC293, Dinesh ChandraSangma Vs. State ofAssam, (1978) 1 SCR 607, and Sukhdev Singh and Ors. Vs. Bhagatram Sardar Singh RaghuvanshiandAnr., AIR 1975SC1331in supportofhis contention.

¶15Mr.SaurabhPrakash,learnedcounselappearingfor the respondent No. 1, would reiteratethe stand taken by the respondentNo. 1 in the W,P.(C)Nos.3416/2002&10209/2009 Page21 of.34 '\ -J JcrT 3"^ counter affidavit. Tliat apart, he would highlightthat the questionof countingofpastservice had been declinedby the respondentNo. 1. He would also highlight as the petitionerhas npt completed20 years of service, his case for voluntary retirement could not have been . considered. He would state that the petitionerhas been insistingupon countingofthe past servicefor the purposeofeligibility. He statesthat since the countingof past sei*vice was rejected,it could not have been ,corisidered. Vide letter dated December 28, 2004, the respondent had stated before , this Court that the competent authority is willing to i consider the case of the petitioner under SVRS without taking into consideration his previous service. However, the petitioner did not ask that his application be considered so. He would highlight the Iproceedings held on March 23, 2006 in this Court. He would justify,the issuance of the charge sheet to the petitioner for not following the order :of transfer. He states that in his representation, the petitioner has shown his desire to continue in Delhi till such time, he is relieved under SVRS, and since it is not a case of resignation, and the petitioner was not ( entitledto SVRS, the respondentwas unable to act on the said request. He furtherstates that the petitioner's requestfor cari.celatidnof transfer order was consideredvide order dated September 12, 2005. Despite directionto reporton September19, 2005,the petitionerdid not reportto W.P.(C)Nos. 3416/2002&10209/2009 Page22 of34 % J, /: the place of posting. Accordingly,acharge sheet was issued, which resulted in his removal. That on the date, when the petitionerwas relieved on being transferredto Mumbai, the petitioner had put in sUghtlymore thati Wh of service,which is short of 20 years for bemg consideredfor VRS. Accordingto him, no doubt, interpretationgiven by various courts where an employee has completedmore than 19^2 years ofservice,ifthe brokenperiodsis morethansix months,it shallbe treated as one year which would enure to the benefitof the petitioner, and should have been treated as 20 years, was a declarationcame after the rejection of the request for VRS by the respondentNo. 1. He concedes,the said view has beenupheldby the SupremeCourtin a later judgmentin the case reportedSiS 2014 (3) LAJ 513 (SC), State Bank of Patiala Vs. Pritam Singh Bedi and Ors.

¶16Having considered the submissions made by the petitioner, who appears in person and learned counsel for the respondent(s)i insofar the issue of counting of past service by the respondent No. 3 is concerned, the following instructions have been issued by the respondent No.4:

(a) OM dated August 29, 1984: "Where a Central Government employee borne on pensionable establishment is allowed to be absorbed in • an autonomous body, the service rendered by him under W.P.(C)Nos.3416/2002&J0209/2009 Page 23 of34 -t—T the Goyeminentshall be allowedto be countedtowards pension under the autonomous body irrespective of whether the employeewas temporary.or permanent in Government. The pensionary benefits will, however, accrue only if' the temporary service is followed by confirmation.If he retires as a temporaryemployee in the autonomous body, he will get terminal benefits as are normally available to temporary employees under the Government. The same procedure will apply in the case of employees of the autonomous bodies who are permanently absorbed under the Central Government. The Government/autonomous body will discharge its pension liability by paying in lump sum as a one-time payment, the pro rata pension/service gratuity/terminal gratuity and retirement gratuity for the service up to the .date ofabsorption in the autonomous body/Government, as the case may be. " , (b) OM dated March 31,1987: " • i . • "(i) The terms and conditions of absorption of Central Government employees in the Central Autonomous Bodies will be, as applicable to thosepermanently absorbed in the public sector undertakings. In both the cases the instructionslaid down in theDepartmentofPersonnel and Training O.M. No. 28016/5/85-Est. (C), dated the 31st January, 1986, referredto above, willapply;

(a) Those absorbed in the autonomous bodies having W.P.(C)Nos.3416/2002&10209/2009 Page24of34 - J • r pmsion scheme shall have an option to receivepro rata retirement benefits or continue to have the benefit of combined service under the Government and in the autonomous body subject to the conditionslaid down in the-Department of Personnel and A.R's O.M. No. •28/10/84-PU, dated the 29th August, 1984 and 12th September, 19.85 (publishedin Swamysnewsas SI. Nos. . 118 and 203 of October, 1984 and October, 1985 respectively).Such option should be exercised,within six monthsfrom the date ofpermanent absorption. In case no option is exercisedwithin stipulatedperiod, he will be eligiblefor pension based on combined service.

(Hi) Encashment of earned leave shall be admissible up to the Maximum limit of 240 days. Halfpay leave will stand forfeited.

(iv) In respect ofofficers who are already on deputation to autonomous bodies, the existing terms and conditions of their deputation will operate and no extension of. deputation beyond the periods specified in their deputation orders should be allowed. In case a Government employee does not return to his parent Department during or after the sanctioned deputation period, he will be deemed to have beenpermanently absorbed in the autonomous body on the date ofexpiryofdeputationperiod. "

(c) OM datedMay 30, 1995,whichinteraliastipulatesas under: . • "The matter has been considered in consultation with the Ministiy of Finance (Department of Expenditure). It is r' W:P.(C)Nos, 3416/2002&10209/2009 ' Page25 of34 % clarifiedthat discharge ofpro rata pensionaryliabilityby theparent organizationis necessaryin all cases ofmobility ofpersonnelfrom Governmentto AutonomousBodies and vice versa, if the employee optsfor the pensionary benefits based on combined sei'vice in accordance with the above-menitioned Office Memorandum. The settlement of payments ofpro rata pension, etc., is required to be made .' between a Government department and an autonomous .body and not between Government and individuals. The question ofemployee's actual entitlement at the time ofsuch mobility is not. relevant. The amount should appropriately be calculated pro rata based on length of service rendered and would compromise of the terminal gratuity or service gratuity or pension, as the case may be, and retii'ement gratuity for the employeesonpensionable establishments. " In any" case, this Court is of the view, for countingof past service,the GoncuiTenceofthe parentofficei.e.Ministryof Commerceis mandatory as the Mir^istryhas to dischargeits obhgationof pensionarybenefitsfor the period'for whichthe benefitis sought. No doubt, the petitionerdid make a representationto the Ministryof Personnel,Pubhc Grievances and Pensions(respondentNo.4). It appears,no responsewas received for the same nor any affidavit,has been filed in these proceedings. Rath'er,astatementwas made on My 8, 2003 thatthe respondentNos. 3 and 4 do not wish to file any counteraffidavit. W:P.(C)No's. 3416/2002 & 10209/2009 Page 26 of34

¶17As no decisionhas been taken by the respondentNo! 3 till date, the petitionerwould bd at libertyto give afurtherrepresentationto the respondentNo. 3 within a period of two weeks from the date of the receipt of copy of this order. The respondentNo. 3 needs to take a decisionwhetherthe services'putin by the petitionerbetweenAugust3, 1979 to March 10, 1986, can be counted as service for the purpose of pensionary benefits under the respondent No. 1 within four weeks thereafter. The decision so taken be communicated to the petitioner as J well as to the respondent No. 1 for further action, if any.

¶18Insofar as the other issue of grant of SVRS/VRS is concerned, there is no dispute to the fact that the petitioner had submitted the applicationpursuantto the SVRS, 2004 on January 14, 2004. As per the petitioner, the scheme contemplates retirement after 10 years under SVRS.

¶19Insofar as the stand of the respondent that the petitioner submitted I . • his application subject to his being given benefit of counting of past service being conditional, his application could not be so considered, I may point out here that even otherwise, without counting of the past service, the petitioner was eligible for being considered for SVRS as he had put in 10 years of service. Be that as it may, on July 8, 2004, the petitioner in his representation did say that he be granted SVRS and in IV.P.fCJNos. 34]6/2002&10209/2009 Page27of34 1a^ the event,of additionalbenefitsarising out of High Court'sverdict,the same be settled,after the High Court's verdict. In other words, his request for SVRS be consideredwithout taking into account the past service rendered in the Government of India. In fact, such was the understandingduringthe hearingheld in W.P.(C)3416/2002on October 6,2004. . ,

¶20That apart, even that was the understanding of the respondent No. 1 in the letter dated December 28, 2004, which I reproduce hereunder: "This has a reference to your letter dated "V

03.12.2004 enclosingan opinion dated 02.12.2004of Advocate Mr S Prakash regarding the order passed by the Hon'ble High Court on 06.10.2004. We would like to inform you that the case of Mr. PC Sekhar as also the order dated 06.10.2004 were placed before the Competent Authorities. The, Competent Authority is willing to consider the application under SVRS of Mr.. PC Sekhar without ; taking his previous service with Government Of India ^ intd: consideration for the purpose of terminal dues including pension, without prejudice to the stand taken in the writ Petition No. 3416/2002. Kindly examine to whether the following points was argued before the Hon'ble Court. For releasingpension to an eligibleojficer, depending upon the quantum to be released as pension (which . W.P.(C)Nos.3416/2002&i0209/2009 Page28 of34 "T \ H\ again is based on the number of years of sei-vice rendered) we have to purchase annuities from LIC. In the instant case since no contribution is possible from the Government of India in.respect of Service rendered by an officerwith them; if we count : this service also, then we have to additionally buy annuities which will be an additional burden to our company These points may be clarified to the Hon'ble High Court. Please keep us informed of the developments in this matter" 21, Despite the above-said, the consideration was riot given. Rather in the (subsequent proceeding on March 23, 2006, a statement was made on behalf of the respondentNo. 1 that it was not possible to accede to the request of the petitionerfor relivinghim under SVRS. It is not known, what were the reasons,which weighedwith the competentauthoritynot ;to accedewiththe requestofthe petitionerfor beingrelivedunderSVRS when the petitionerhad:^ sufficientservice of 10 years for retirement underSVRS, and the standofthe respondentNo. 1thatby suchtime, the time for SVRS has long passed and respondentNo. 1couldnot penriit him to availthatoption,is not convincingas the petitionerhad expressed himselffor gettingrelievedfrom the respondentNo. 1 in Januaiy 2004 itselfwhen he submittedhis applicationfor SVRS. Even the requestfor VRS vide letter dated April 3, 2006 need to have been accepted,the W.P.(C)Nos. 3416/2002&• 10209/2009 d -,n Page 29 of34 w rejectionofthe samethatchargesheethas beenissuedfor not complying transferorder i's hyper-teclinical. He, rightlysought cancellationof the transferorderon the groundthathis applicationfor SVRS is pendingand also for' his mother's illness. I reproduce the following from his representationdatedAugust18, 2005 "/ am presently living with my mother at her own . residenceat Delhi. My mother is aged 70 years and my father is not alive. SinceI am not marriedandI do not have brothers or sisters, my mother is fully and solely dependenton me. There is nobodyelse exceptme to look •^^after my mother at her old age in respect of all her requirements whether related to her physical movements, administrative requirements of the house she owns, mental companionship or attendance to her health related matters by known physicians. I ;! During the past few years, my mother is sufferingfrom very acute problem of 'uterus prolapse' because of which she isforced to spent most of the time in sitting or sleeping posture. Her problem accentuates ifshe stands or walks around. Due to this problem she also has a need to make use of the toilet veiy often as per her convenience. Doctors have not recommended her for an operation because of her age and my mother is also not < mentally prepared, for any operation due to her own apprehensions andfear. W.P.(C)Nos.S416/2002& 10209/2009 Page 30 of34 This' apart, ,my mother has also been sufferingfrom 'High Blood Pressure' and on three occasions, in the past, she hadfainted on the road whenI was awayfrom Delhi during my audit assignments. During these occasions she was escorted back home by passer-by strangers out of sympathy. I had to learn these developments only after coming back to Delhi from my ojficial tour, as she did not want me topanic when I was out ofstation. In view of these difficulties and my indispensable need for staying with my mother all the time, I had opted for SVRS in January 2004 as I was finding it difficult to move out ofstation intermittently in connection with the office work and abandon my mother to her own self care. My SVRSapplication has not been disposed as yet by the company despite the directions of the Delhi High Court dated 17-11-2004 to consider my SVRS application withoutprejudice to my contentionsfor the combined service pleaded before Court. " reasonsgiven were compellingand justified. That apart, I note, on Jtine 1, 2006, a statement was made by the learned counsel for "the respondent to amicably settle the matter to the satisfaction of the petitioner.Further, the plea that the petitionerwas not eligibleto seek VRS is also not tenablein view ofthe interpretationgivenby Kamataka W.P.(C)Nos.3416/2002&10209/2009 Page31 of34 High Court in the case of New India Assurance Co. Ltd. Vs. G.S.Kamath, WritAppealNo. 1721/2006(S-R) decidedon December6, 2006, wherein, the Division Bench of Karriataka High Court was consideringin an appeal the judgment of the learned Single Judge in Writ Petition 13215/2005, whereby the learned Single Judge has allowed the writ petition wherein a challenge was made by the employee, for being denied, the pension after he was relieved by granting voluntaiy retirement under SVRS 2004. The stand of the appellant before the learned Single Judge was that the respondent/employee had not completed-20 years of quahfying service as he had completed 19 years, 8 months and 6 days was negated. The learned Single Judge, on an interpretation of clause 18, held that the same shall be applicable and the fraction of a year can be taken as one year as it was more than six months and in that case, the respondent can be deemed to have completed 20 years of qualifying semce. The Division Bench upheld the view taken by the learned Single Judge. On the other hand, Thave been infoimed that the SLP against the judgment of the Division Bench of the Kamataka High Court in Writ Appeal Noi 1721/2006(S-R) has been dismissedby the SupremeCourt. That apart. Mi*. SaurabhPrakash has placed before me the judgmentof the Supreme Court reported as 2014 (3) LAJ 513 (SC), StateBank ofPatiala Vs. PritamSingh Bedi W.P.(C)Nos. 3416/2002&10209/2009 - Page 32 of34 y •r . •. "A, t and Ors. wherein a similar regulation had come up for interpretation ' before the Supreme Court. The Supreme Court, interpreting the Regulation 18, which contemplatedthat if broken period is more than 6 months, it shall be treated as one year, held, the erhployees in that case having completed!-more than 19 years, 6 months of service in: the appellantbank, be treated to have complied20 years of service and _graiited the benefit under Regulation 29 of the Regulations 1995,;relating to pension on voluntary retirement. In the present case, Mr. Saurabh Prakash concedes to the fact that on the date when the petitioner was relieved on September 12, 2005 for his joining at Mumbai, he did complete 19 years and 6 months of service and was eligible for SVRSA/'RS. On'that date, the request of the petitioner for.SVRS was _ pending before the respondentNo. 1 and no departmentalenquiry has been initiated.

¶22Sufficeto state, in thf facts, more particularlythe stand taken by the respondentNo. 1, this Cburtis ofthe view that the respondentNo. 1 shouldhave acceptedthe VRS ofthe petitioner,ratherthan pursuingthe chargesheetwhichultimatelyentailedin the order ofremoval,whereby the petitionerhad to forfeit the past service of 20 years for frivolous reasonswhen the petitionerhad expressedhimselffor being relievedin 2004 and thereafteralso and at least, on September12, 2005 when the W.P.(C)Nos. 3416/2002&10209/2009 Page33 of34 petitionerwas relievedfrom Delhi's office to join at Mumbai, and on which date, he had more than 19^/2 years of service. The charge sheet dated May 3, 2006;needsto be quashedinthe peculiarfacts ofthis case. I order accordingly. •23. The subsequentordersdatedSeptember11, 2008 and February26, 2009 which have been passed against the petitioner also needs to be quashed and set aside. It is ordered accordingly. The petitioner shall be considered as having voluntary retired with effect from September 12, 2005,and he would be entitled to the consequential benefits of voluntary retirement with effect from that date, which shall be paid to him as expeditiously as possible, but not later than three months from today.

¶24Withthe abovedirections,the petitionsstanddisposedof.

¶25No costs. JULY 29,2015 akb tV.P.((^ Nos. 3416/2002 & J0209/2009 (V.KAMESWAR RAO) JUDGE Page 34 of34