Gp Capt Aw Thomas (Retd) & ANR v. Union Of India & ORS

$~35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 118/2019 & CM APPL. 8195/2019 GP CAPT AW THOMAS (RETD.) & ANR ..... Appellants Through:

Mr. A.K. Aggarwal, Adv.

Versus

UNION OF INDIA & ORS ..... Respondents Through:

Mr. Dev P. Bhardwaj, CGSC with Ms. Anubha Bhardwaj, Adv. for R-1 & 2/UOI.

Mr. Iftekhar Ahmad, Adv. for R-3.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V. KAMESWAR RAO

O R D E R

% 20.02.2019 CM APPL. 8195/2019 (delay) In view of the reasons stated in the application, delay in filing the appeal is condoned.

The application stands disposed of.

LPA 118/2019 1.

Seeking exception to an order passed by the writ Court on 12th December, 2018 in W.P.(C)13425/2018, this appeal has been filed by the appellant.

2.

Appellant was granted an agency by the Director General (Resettlement) under a Security Agency Scheme on the basis of his being an ex-serviceman. By an order passed on 2nd August, 2018, his name was removed from the list of authorized agencies primarily on the ground that in contravention of Para 16(c) of the Guidelines dated 9th July, 2012, he had paid remuneration in cash to the guards employed by him from October,

2016 to February, 2017. Treating this to be a violation, the impugned action was taken and the learned writ Court having dismissed the writ petition, this appeal has been filed.

3.

Learned counsel for the appellant argued that a complete reading of Para 16(c) indicates that in case salary cannot be paid by ECS or cheque in certain compelling reasons, there can be deviation from the norms prescribed under the said clause by intimating the DGR. Referring to the communication made by the appellant to the competent authority and the reasons indicated therein to be the compelling reasons which prevented the appellant from making payment by ECS or cheque, learned counsel argued that his explanation to the show cause has not been properly considered and the clause has been implemented in a manner without taking note of the complete defence of the appellant. Referring to the communication dated 7th June, 2018 made by the appellant to the competent authority in this regard, learned counsel argued that the appellant had already intimated the competent authority about the factum of his inability to make payment and the reason which compelled him to make the payment by cash. 4.

We have considered the rival contentions and the reasons indicated in the letter. We find that Para 16(c) of the Guidelines which is relevant for the issue in question reads as under:

"16. Wages (a) xxx xxx xxx (b) xxx xxx xxx (c) Principal employer will pay wages due to the security agency by 1st of every month. Payment to security guards/supervisors will be done by ECS/Cheque on by the security agency by 7th of each month. In case the salary is not

paid by ECS/cheque due to compelling reasons, DGR will be intimated accordingly.

(Authority - Amendment issued vide Para 7 of Office memorandum 28(3)/2012/D(Res-I) dated 16 January 2013)." 5.

A perusal of the aforesaid indicates that under normal circumstances payment to security guards is required to be made by ECS or cheque and in case the salary cannot be paid in this manner due to any compelling reasons the DGR will be intimated accordingly. In this case, the appellant has not indicated any compelling reasons, on the contrary, the findings recorded by the competent authority while taking the impugned action and considered by the learned writ Court indicate that the compelling reason offered by the appellant is that the guards had no objection, there were directions from respondent No.

3 not to employ guards other than those employed and as the appellant was not permitted to engage guards appointed by the earlier agency due to non-availability of the guards, it is said that the appellant had hired guards on temporary basis for short period as an interim measure and, therefore, he was required to make the payment in cash. This contention has been rejected by the authorities and it has been held that merely because ad hoc or temporary arrangements were made, that would not entitle him to deviate from the policy and make payment in cash for the period in question.

receipt and once there were no compelling reasons shown by the appellant, it was held that no interference could be made with regard to the discretion exercised by the competent authority. In doing so, we are of the considered view that the learned writ Court has not committed any error which warrants reconsideration.

6.

Accordingly, finding no ground, the appeal stands dismissed. CHIEF JUSTICE V. KAMESWAR RAO, J FEBRUARY 20, 2019 „anb‟