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Rajasthan High Court · body

2014 DIGILAW 199 (RAJ)

Ganesh Ram Chopra v. State of Rajasthan

2014-01-15

VINEET KOTHARI

body2014
JUDGMENT 1. - The petitioner working as Typist in the respondent - LIC has challenged the penalty order passed against him vide Annex.4 dated 31.8.2001 on the alleged charge against him that he did not refund the LTC advance taken by him in the year 2001 for the travel journey which he never actually undertook. 2. The learned counsel for the petitioner, Mr. Kuldeep Mathur, submitted that the relevant Rule 19 of the LIC (Leave Travel Concession) Instructions, 1994 permitted refund or re-deposit of the such LTC advance, which the petitioner did not utilize, since the journey could not be undertaken for any over-riding reasons. The petitioner admittedly fully refunded and redeposited the entire LTC advance. 3. The said Clause 19(7) of the Instructions of 1994 is quoted in para 13 of the writ petition. Para 13 of the writ petition is quoted below for ready reference: "13. That at this juncture, it is relevant to mention here that the instructions/regulations 19 of the LIC of India (Leave Travel Concession) Instructions, 1994 deals with the provisions for reimbursement of the LTC Advance which may be granted to an employee. The 19(vi)(c) states the entire amount of advance drawn shall become due for refund if outward journey is not commenced on the date on which it was to commence. The instructions (vii) reads as under: (vii) The employee concerned should refund LTC advance sanctioned to them within 7 days after the advance drawn by them becomes due for refund as per clause (vi) above, under the instructions. If the employee fails to refund it within the prescribed period of 7 days then the amount of advance due for return or refund shall be recovered from the next pay bill of the employee." 4. The learned counsel for the petitioner, Mr. If the employee fails to refund it within the prescribed period of 7 days then the amount of advance due for return or refund shall be recovered from the next pay bill of the employee." 4. The learned counsel for the petitioner, Mr. Kuldeep Mathur, also relied upon the Division Bench judgment of this Court in similar controversy in the case of Sandeep Bansal v. Life Insurance Corporation - DBSAW No.165/2006 arising out of SBCWP No.4777/2003 - Sandeep Bansal v. LIC, decided on 9.10.2006 in which the Division Bench of this Court held as under: "Apparently, for the amount which the incumbent is required to refund which remained with him unutilized, the procedure laid down under the rules leaves no room of doubt that amount required to be refunded has to be determined by the competent authority sanctioning the advance and he has to intimate the incumbent concerned about the amount required to be refunded by him. It is only on receipt of said intimation that the incumbent becomes under an obligation to refund the amount within seven days. If the employee fails to refund it within the prescribed period of seven days then the amount of advance due for return or refund shall be recovered from the next pay bill of the employee. No other consequences is envisaged. Therefore, under the rules no the element of misappropriation of advance money which has been refunded by the incumbent without there being any call by the competent authority sanctioning advance arises. The Rule 21 in our opinion is not applicable in this case. Inasmuch as delay in refunding the money which was not even called upon by the competent authority in terms of para 19(vii) could not amount to misappropriation or any other misconduct as defined in the orders or guidelines. Nor it can be considered insubordination or failure to maintain absolute integrity or a conduct unbecoming of an employee. Charge of failure to maintain absolute integrity appears to have been imputed very casually by reproducing the words of rules without application of mind whether such conduct can at all be said to be failure to maintain absolute integrity and devotion to duty. Charge of failure to maintain absolute integrity appears to have been imputed very casually by reproducing the words of rules without application of mind whether such conduct can at all be said to be failure to maintain absolute integrity and devotion to duty. The another side of the present case being that the charge sheet has been issued after three years of settling all advances which goes to show the lack of nexus between the alleged omission and holding of enquiry for indicting the appellant with temporary misappropriation. Looking to the nature of allegations, we are also of the opinion that the ratio laid in A.K. Kalra's case (Supra) is fully applicable to the facts of the present case and has been erroneously distinguished by learned Single Judge. It was a case in which the appellant was an employee of Public Sector Undertaking and was charged of non-refunding the advance taken for Housing Building within the time stipulated under the Rules. He was also charged of not returning within stipulated time the advance taken for purchase for Motor Cycle. This Act was considered to be an Act amount to gross misconduct resulting in failure to maintain absolute integrity and a conduct which is unbecoming of a Public Servant and he was removed from service. The appellant who was failed before the High Court appealed before the Supreme Court. The appeal was allowed by the Supreme Court in respect of charge relating to misconduct amounting to failure to maintain absolute integrity and a conduct unbecoming of public servant. The Court opined that unless a misconduct is specified with sufficient accuracy to fall within the ambit of grave charge, mere failure to refund the amount within stipulated time cannot be considered as failure to maintain absolute integrity and devotion to duty and an act unbecoming of a public servant. The Court said: "Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post factor interpretations of some incident may not be camouflaged as misconduct. The Court said: "Where misconduct when proved entails penal consequences, it is obligatory on the employer to specify and if necessary define it with precision and accuracy so that any ex post factor interpretations of some incident may not be camouflaged as misconduct. Where one of the Rules of the public sector company relating to conduct and discipline of its employees provided for maintaining "absolute integrity" and to "do nothing which is unbecoming of a public servant" held that the rule was vague and of a general nature what is unbecoming of a public servant may vary with individuals and expose employees to vagaries of subjective evaluation. What in a given context would constitute conduct unbecoming of a public servant to be treated as misconduct would expose a grey area not eminable to object evaluation. Failure to keep to high standard of moral, ethical or decorous behaviour befitting an officer of the company by itself cannot constitute misconduct, unless the specific conduct falls in any of the misconduct enumerated in the conduct and discipline rules." Adverting to consequences envisaged under the rules, the Court held where the rules granting advance themselves provide the consequence of breach of condition, it is no ground for initiating disciplinary inquiry as the breach of Rules did not constitute misconduct. In view of the aforesaid conclusion we are of the opinion that the initiation of the enquiry and penalty were not warranted for drawing of advance for traveling expenses and delay in refund of the unutilised amount for traveling expenses by the incumbent. Particularly,in the circumstances, when he was never called upon to deposit such amount with the sanctioning authority and it was not deducted through deduction from his next pay bill, which was only mode of recovery and consequences of non-payment within time was provided in the rules. Accordingly, the appeal succeeds and is allowed, the judgment under appeal is set aside, the writ petition is allowed and the impugned order of punishment imposed by the authority as well as the order of the appellate authority and the Chairman are quashed. No costs. Sd/- Sd/- (Gopal Krishan Vyas), J. (Rajesh Balia),J." 5. The learned counsel for the respondent - LIC, Mr. No costs. Sd/- Sd/- (Gopal Krishan Vyas), J. (Rajesh Balia),J." 5. The learned counsel for the respondent - LIC, Mr. Rajeev Purohit, however submitted that not only the writ petition has been filed after a prolonged period of about 8 years from the date of impugned order dated 31.8.2001 in the year 2009, but he also sought to distinguish the judgment relied upon by the learned counsel for the petitioner by submitting that the case of Sandeep Bansal was of different nature, where the employee concerned was supposed to travel by higher class Railway accommodation but he travelled by lower class and the unutilized amount of LTC Advance was required to be refunded back. In these circumstances, the Division Bench of this Court has held that no misconduct is made out and the charge sheet cannot be issued to the delinquent official and therefore, in the present case, the penalty order deserves to be upheld. He also submitted that the petitioner in the reply admitted his guilt and therefore, he cannot challenge the impugned order by way of present writ petition. He also raised a plea of availability of alternative remedy to the petitioner by way of appeal under the relevant disciplinary Rules, namely, Life Insurance Corporation of India (Staff) Regulations, 1960, against the impugned order reducing the basic pay of the petitioner by two stages in the time scale. 6. Having heard the learned counsels for the parties, this Court is of the opinion that in view of Rule 19 specifically permitting the deposit back of the unutilized amount of LTC advance and the same having been done by the petitioner during the contemprary period, no misconduct is made out against the petitioner. In these circumstances, plea of admission by the petitioner which is not borne out and also delay in challenging the penalty order or remedy by way of appeal does not bar the jurisdiction of this Court. Unnecessarily issuance of charge sheet and holding of disciplinary enquiry and imposition of penalty order can demoralize the employee, which cannot be said to be in the interest of the Corporation. Unnecessarily issuance of charge sheet and holding of disciplinary enquiry and imposition of penalty order can demoralize the employee, which cannot be said to be in the interest of the Corporation. Thus, this Court is of the clear opinion that the controversy in hand is squarely covered by the Division Bench judgment of this Court in the case of Sandeep Bansal v. LIC in which the Division Bench in the similar circumstances held that no misconduct is made out and no charge sheet can be issued to the delinquent official of the Corporation. 7. Accordingly, the present writ petition is allowed and the impugned order Annex.4 dated 31.12.2001 is quashed. No order as to costs. A copy of this order be sent to the parties concerned forthwith.Petition allowed. *******