R.C. Aggarwal vs D.T.T.D.C. Ltd. and Others

Shiv Narayan Dhingra, J.—This LPA has been preferred against the impugned judgment of the learned Single Judge dated 02.01.2006 by which he has dismissed the writ petition.

Heard learned counsels for the parties and perused the record.

Brief facts of the case are that the appellant was working as Finance Controller and Secretary with the respondent. He applied for the post of Managing Director with Hotel Corporation of India through his department and was selected as the Managing Director in Hotel Corporation of India for a period of five years. The terms and conditions of his selection was that his performance was to be assessed for the first year and thereafter he was to be confirmed there. While leaving his parent department and joining the post as the Managing Director of Hotel corporation of India, he wrote a letter to the respondent requesting for continuation of his lien on the post of Finance Controller and Secretary for a period of five years. Vide letter dated 7.9.2000 the respondent while relieving him wrote the following letter:-

Delhi Tourism & Transportation Development Corporation 18-A, DDA SCO Complex, defense Colony, New Delhi

F. No. PER/579/5/91/DTTDC/5753/GM

Dated: September 7, 2000

Relieving Order

Consequent upon his selection as Managing Director, Hotel Corporation of India Ltd., Shri R. C. Aggarwal Financial Controller & Secretary is hereby relieved from the Corporation w.e.f. 7.9.2k (afternoon) to enable him to take over his new assignment.

Shri R. C. Aggarwal, Financial Controller & Secy. Is also informed that his lien on the post of Financial Controller & Secy. Will be as per rules.

This order is issued with the approval of Managing Director & Chief Executive, DTTDC.

Sd/-

V. K. Jain

General Manager

Shri R.C. Aggarwal

Financial Controller & Secy.

DTTDC

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It is evident that the petitioner was informed that his lien of Finance Controller & Secretary will be as per rules.

Petitioner''s lien was terminated by the respondent vide letter dated 24.12.2002, 3.1.2003 which read as under:-

DELHI TOURISM & TRANSPORTATION DEVELOPMENT CORPN.

18-A, DDA SCO COMPLEX defense COLONY NEW DELHI-24.

F. No. Per/579/5/91/DTTDC/Pt.F.909

Dated: 24.12.2002, 3.1.2003

OFFICE ORDER

Consequent upon tendering his Technical Resignation vide his application dated 7.9.2000 from the post of Financial Controller and Secretary and the expiry of Lien period of two years allowed to be retained by Shri Aggarwal on the said post vide this office relieving order No. Per/579/5/91/ DTTDC/ 5753/GM dated 7.9.2000, Competent Authority is hereby pleased to terminate the said lien w.e.f. 7.9.2002.

(S.P. Singh)

General Manager

This letter was posted to the petitioner at an address of Hotel Corporation of India Ltd. at Centaur Hotel, Mumbai. Since this Hotel had already been sold under disinvestments policy, letter could not reach the petitioner and he learnt about this letter very late. He then made a representation dated 3.3.2005 to the respondent of wrongful termination of his lien after a period of 2 years stating that as per the policy of Government of India, lien was to be continued for a period of five years. The policy letter of the Government of India relied by him reads as under:-

Government of India

Ministry of India

Department of Public Enterprises Public Enterprises Bhawan, Block No. 14,

CGO Complex Lodi Road New Delhi : the 13.1.1999

Office Memorandum

Subject:- Policy for retention of lien on appointments below the Board Level in the case of individuals selected and appointed to board level positions in the Public Sector.

*****

The undersigned is directed to refer to this Department''s OM No. 23(9)/93-CM dated 31.1.1994 on the subject.

In modification of the above the Government has decided that the/maximum period for which retention of lien to be permitted in the case of below board level employees of Public Sector Enterprises on their selection and appointment to board level posts in the same or any other Central Public Enterprises will be 5 years.

All the administrative Ministries/ Departments are, Therefore, requested to advise the PSUs under their administrative control to comply with the above decision of the Government.

(A. Luikham)

Director (MGT)

Tel. No. 4363038

All Administrative Ministries/Departments

(Secretaries by name)

This order was circulated by the Government of India to all the Ministries and directions were given to the Ministries to follow this order.''

The representation of the petitioner for continuation of his lien for a period of five years was rejected, hence he filed the writ petition.

A counter affidavit was filed by the respondent denying that lien could be of 5 years and we have perused the same. It was also stated therein that the petitioner did not come to the Court with clean hands and had not disclosed about the letter dated 11.3.2003 to the respondent wherein he had himself consented to the termination of his lien. The relevant part of the said letter reads as under:-

As you are aware, I relinquished the charge of the post of Financial Controller and Secretary on 7th Sept. 2000 and took charge as Managing Director of Hotel Corporation of India Limited w.e.f. 8.9.2000, as per the orders issued by Government of India. Initially, I had retained lien on my substantive post in Delhi Tourism & Transport Development Corporation Ltd. for a period of two years, which had expired on 7th Sept. 2002 thereafter, I had made a request for transfer of my terminal benefit viz. gratuity, leave to the credit of Hotel Corporation of India Ltd.

The learned Single Judge dismissed the writ petition arriving at the conclusion that the petitioner had by his conduct acquiesced to the termination of his lien and the order of termination of lien was validly passed by the respondent Corporation.

The petitioner''s contention is that his letter dated 11.3.2003 has been read out of context and he had not acquiesced termination of his lien. It is further contended that lien of a government servant as per FR 14 (a) cannot be terminated even with his consent if the same would leave him without any lien on any post. It is also contended that the petitioner was gravely prejudiced as he was given no opportunity to explain and the appellant was not even confirmed as the Managing Director in Hotel Corporation of India on the date of order terminating his lien, i.e., 3.1.2003. Hotel Corporation of India made confirmation order for remaining period only on 27.3.2003. Challenge to the order of termination of lien is also made on the ground that the representation against order was disposed of by Managing Director, Chief Executive of respondent and he was not competent to dispose of appeal in view of service rules. Termination of lien amounted to termination of his service, which could have been done only by appointing authority or a higher ranking authority. The appellant was appointed by Chairman of the company as per rules and his lien could have been terminated only by chairman and not by a lower ranking officer, i.e., by the Managing Director.

The writ of the petitioner has been rejected on the plea of acquiescence in view of the judgment of the Supreme Court in Canara Bank v. Canara Sales Corporation 1987 (2) SCC 677 (vide paragraph 30) which states:

A case of acquiescence also cannot be flourished against the plaintiff. In order to sustain a plea of acquiescence, it is necessary to prove that the party against whom the said plea is raised had remained silent about the matter regarding which the plea of acquiescence is raised, even after knowing the truth of the matter. As indicated above, the plaintiff did not, during the relevant period, when these 42 cheques were encased know anything about the sinister design of the second defendant. If the bank had proved to the satisfaction of the court that the plaintiff had with full knowledge acknowledged the correctness of accounts for the relevant period, a case of acquiescence against the plaintiff would be available to the bank. That is not the case here.

In the present case, the conduct of the petitioner has not been such as to disentitle him to lien on the ground of acquiescence. The petitioner joined Hotel Corporation of India Ltd. On 8.9.2000. On 29.12.2000 Account department of Hotel Corporation of India Ltd. sought information from the parent department of the petitioner, i.e., respondent No. 1 with regard to the accumulated leave, relevant status of LTC and transfer of accumulated provident fund and other benefits to designated fund Hotel Corporation of India as per the government rules. On 1.2.2001, the respondent had informed about the status of earned leave, LTC, etc. of the petitioner vide letter No. PER/579/2005/91/DTTDTC/Part-V/1176, and stated that the documents in this regard would be sent to the Hotel Corporation of India. Hotel Corporation of India again reminded the respondent No. 1 to effect the transfer of earned leave and half pay leave as well as gratuity to be transferred to the accounts of Hotel Corporation of India. On 10.3.2003, the Regional Provident Fund Commissioner, Mumbai addressed the letter to DTDTC for effecting the transfer of provident fund of the petitioner with copy marked to Hotel Corporation of India. In these circumstances, the appellant had written a letter dated 11.3.2003 which was relied upon by the learned Single Judge to hold that the writ petitioner had acquiesced in termination of his lien. The letter dated 11.3.2003 was a D.O. letter addressed to Sh. Rajiv Talwar, the Managing Director of DTDTC Ltd. In this letter it has been mentioned by the petitioner that a letter dated 10.3.2003 has been received from the Regional Provident Fund Commissioner for transfer of provident fund account being maintained by the DTDTC to the credit of Regional Provident Fund Commissioner, Mumbai by remitting the amount.

It is normal and routine procedure that when an employee is on deputation from one department to another department, his entire service record is sent to the new department where he is posted for deputation period so that all benefits which had accrued to the individual are known to the department where the individual has been posted on deputation. The writing of this letter does not show a conduct of the petitioner giving up his lien. No doubt he has mentioned that his lien for the period of two years has come to an end and hence funds should be transferred. But his conduct on coming to know of the letter of termination of lien by the department shows that his intention was not giving up any of his rights which were due to him. The principle underlying the doctrine of acquiescence is silence on the part of the petitioner to assert his right even after coming to know the truth has caused prejudice to the adverse party. In this case, the petitioner when learnt about the termination of his lien immediately wrote a letter to the respondent No. 1 protesting against his termination of his lien. There is no dispute about the fact that the letter dated 3.3.2003 by which the lien of the petitioner was terminated, was addressed to the petitioner at a wrong address, i.e., Hotel Centaur Hotel, which had already been divested and sold.

Consent can said to be given when one person proposes and other agrees. It is an act of reason accompanied by deliberations, weighing as in a balance, the good or evil on both sides. In this case there was no proposal of terminating lien put to petitioner which was consented. But considering there was consent, a Division Bench of this Court in D.K. Jain Vs. Union of India and Others, has held as under:-

In the light of what is discussed above, what follows is that the petitioner has a title to hold substantially the post of Director (Finance) in FCIL and hold a lien on that post. While he was in foreign service in CCI, such a lien in no circumstance could be terminated even with his consent if the result of that would be to leave him without a lien or a suspended lien upon a permanent post.

In view of the law laid down by this Court in the above judgment, we consider that the lien of the petitioner could not have been terminated either on the ground of consent or acquiescence.

The contention of the respondent that lien of the petitioner under FR-13 was only for two years does not stand the scrutiny. FR-13 reads as under:-

FR-13 [A Government servant who has acquired lien on a post retains the lien on that post;

while performing the duties of that post;

(b)while on foreign service, or holding a temporary post, or officiating another post;

(c)during joining time on transfer to another post, unless he is transferred along with his title to a post on lower pay in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the earlier post;

(d)while on leave and

(e)while under suspension.

Provided that no lien of a Government shall be retained.

(i) Where a Government servant has proceeded on immediate absorption basis to a post or service outside his service/cadre/post in the Government from the date of absorption and

(ii)On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time.

It is provided in the above rule that the lien is extendable up to maximum admissible limit under the order of the Government of India issued from time to time. The lien has been extended up to five years under foreign service, where public servants are deputed from the one country to other country.

In the preset case, when the Government of India formulated a policy that in order to harness the talent from internal sources, a lien of five years should be provided to person who comes from below board post, we find no reason why the benefit of the said policy was not given to the petitioner.

In D. K. Jain v. Union of India (supra), this Court held :

The next question that arises for consideration in whether or not the petitioner has held any lien on the post of Director (Finance) in FCIL after he has joined CCI or he has served all connections from FCIL. In this connection as already referred to earlier the petitioner has pleaded the application of fundamental rules in paragraph 2 (q) which has not been specifically denied by respondent No. 3. Apart from this, according to clause (x) of the letter dated 10th June 1983 ''for the period of service rendered by Shri D. K. Jain in Fertilizer Corporation of India from the date of permanent absorption, he will be entitled to all the benefits admissible to corresponding employees of the Organization and continue to be governed by Fertilizer Corporation of India rules in all respect''. The broad features of general terms and conditions of the employees have also been given in Chapter VI of Financial Handbook complied by FCIL in which we also find that on the point of retaining a lien there is no provision. However, Rule 6.4 provides that wherever any subject/point is not covered under any of the set of rules from (i) to (xiii) above, the Fundamental and Supplementary Rules as issued by the Government of India and the practices as applicable to the Central Government Employees would be followed. Under Article 69(2) of the Articles of Association of FCIL, Director (Finance) who is a functional director is a whole-time employee and shall be paid salary and allowances as may be fixed by the President. Therefore, Rule 6.4 of the Financial Handbook would be applicable in the case of the petitioner and for determining the question we can have resort to various provisions of Fundamental Rules regarding holding the lien.

As already discussed, the petitioner was holding a permanent appointment in FCIL and while being in foreign service in CCI under F.R. 13 (b) he was entitled to hold a lien on the post of Director (Finance) in FCIL. In the present case, the petitioner''s lien has neither been suspended under Rule 14 or transferred under Rule 14-B and, Therefore, there is nothing against the petitioner for holding/retaining a lien on the post of Director (Finance) in FCIL. ''Lien'' mans, according to definition under Rule 9 (13), the title of a Government servant to hold substantively either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. The petitioner''s lien which he held on permanent basis as Director (Finance) in FCIL in no circumstance could be terminated even with his consent if the result would be to leave him without a lien or a suspended lien upon a permanent post, under FR 14-A.

No prudent person would like to enter from the realm of security and certainty to insecurity and uncertainty. The petitioner who was holding the post of Finance Controller and Secretary had merely gone as the Managing Director with the consent of his parent department for a period of five years, he had not gone on permanent absorption with Hotel Corporation of India Ltd. His services were lent to the Hotel corporation of India Ltd. only for a period or five years since he was found capable and meritorious. He cannot be punished for his better performance so that after five years of his tenure of directorship coming to an end when he comes back he is on road. In order to get internal talent in public sector, Government of India made policy of providing lien for such person for a period of five years. There is no reason given for deviating from this policy in case of petitioner.

We hold that in view of the policy of the Government whereby maximum period of retention of lien was permitted to be five years in case of board level employees, the lien of the petitioner could not have been terminated vide letter dated 3.3.2003.

The petitioner by way of additional affidavit has given the names of other employees whose liens were retained in the department for more than two years. List of such employees is as under:-

S. Name of the employee Designation Period Assignment No. 1. Shri Piyush Aggarwal Dy. Manager-Legal October, Assignment to Nigeria 91 to July 95 2. Shri P. S. Mehra Manager-F&A July 99 to June 04 WHO 3. Shri Suman Sharma Chief Manager(T) May 96 to June 2000 Deptt. of Tourism GOI 4. Shri Y. K. Maghan Accounts Executive March 96 to June 2000 Kendiya Bhandar 5. Shri Vinod Kakkar Manager (F&A) April 2002 till date Jain Vishwa Bharti Institute Rajasthan 6. Smt. Sundri Sathy- Dy. Manager (F&A) May 2003 till date NHAI Delhi amani 23. We consider that the writ petition should be allowed even on the ground of discrimination since petitioner was discriminated from others as is seen from the table above.

The LPA is allowed, order of the respondent dated 22.12.2002/ 3.1.2003 terminating the lien of the petition/appellant is quashed and the petitioner shall have lien for a period of five years from 7.9.2000.

Since the petitioner had not been allowed to join his parent department on the ground of termination of his lien, he shall be allowed to join the post of Finance Controller & Secretary in DTDTC immediately. In case the petitioner''s post is not vacant, he shall be given an equivalent post with all benefits.

No order as to costs.