Ram Nath v. Govt. Of NCT Of Delhi & ORS

$~14 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 4949/2017 RAM NATH ..... Petitioner Through: Mr T.D. Yadav, Adv.

versus GOVT. OF NCT OF DELHI & ORS ..... Respondents Through: Sanjoy Ghose and Ms Pratishtha Vij, Adv for respondent/GNCTD

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE DEEPA SHARMA

O R D E R

% 30.05.2017 The petitioner has preferred the present writ petition to assail the order dated 16.12.2014 passed in Original Application (OA) No.2884/2013 and order dated 24.02.2015 passed by the Central Administrative Tribunal ("the Tribunal") in the Review Application, i.e., R.A. No. 26/2015, preferred in the said Original Application.

The Tribunal had partially allowed the said Original Application. In so far as the Tribunal dismissed the petitioner's claim for release of the leave encashment amount, the petitioner has preferred the present writ petition. The Tribunal had, however, held that the petitioner would earn the annual increments during the period of suspension. The petitioner has been chargesheeted in a criminal case in relation to alleged irregularities and illegalities in the revival of defunct Group Housing Society in Delhi. He was placed under suspension from 06.01.2006 onwards, and was reinstated in service on 12.03.2010. He was not granted annual increments during the period of his suspension, and the

consequential enhancement in subsistence allowance. The petitioner retired from service on 31.10.2010. The petitioner approached the Tribunal by filing the aforesaid Original Application. He inter alia sought the relief of release to him of the leave encashment amount. The Tribunal rejected the said relief sought by the petitioner, by referring to Rule 39(3) of the CCS (Leave) Rules, 1972, which stipulates that the authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires on attaining the age of retirement while under suspension, or while disciplinary or criminal proceedings are pending against him, if in view of such authority, there is a possibility of some money becoming recoverable from him on conclusion of proceedings against him, and on conclusion of proceedings, he may become eligible to the amount so withheld after adjustment of the Government dues, if any.

The petitioner placed reliance on the orders passed by the Tribunal in the case of Daya Nand Sharma vs. Government of NCT of Delhi and Ors., OA No.1522/2007, decided on 08.01.2008 and D.S. Negi vs. Government of NCT of Delhi and Anr., OA No. 1958/2012, decided on 27.8.2013. The Tribunal held in those cases that the Competent Authority had not passed the order withholding the leave encashment, and even before the Tribunal, it was conceded that no financial loss had been caused to the Government to justify the non-encashment of the earned leave upon retirement.

The Tribunal, while rejecting the petitioner's claim for leave encashment, observed that the parties had not placed material before the Tribunal inasmuch, as, they failed to give details of the criminal/departmental proceedings pending against the petitioner on the date of his retirement. The petitioner had merely sought to place reliance

on the stand taken by the Government in respect of the other employees, which did not relate to the petitioner.

We may notice that the impugned order was passed in the Original Application on 16.12.2014. The present petition has been preferred nearly after 21⁄2 years after passing of the said order. Consequently, there is substantial delay and laches on the part of the petitioner in approaching this Court. Merely because the petitioner preferred the Review Application, which too was dismissed on 24.02.2015, i.e., about 2 years and 3 months ago is not sufficient to explain the delay in filing the writ petition. This delay becomes more significant when viewed in the light of the developments which took place in the interregnum.

As we observed earlier, the Original Application of the petitioner was partly allowed and the Tribunal has held in favour of the petitioner that he would be entitled to annual increments during the period of his suspension and on that basis, his retiral benefits were directed to be re-fixed. The Government of NCT of Delhi assailed the impugned order passed by the Tribunal in so far as it granted the said relief to the petitioner herein, by filing W.P.(C) No.12109/2015. The petitioner contested the said writ petition which was allowed by Division Bench of this Court on 08.12.2016. Thus, even to the extent the petitioner was granted relief by the Tribunal, the same was set aside.

The petitioner did not raise the challenge to the order of the Tribunal in relation to denial of leave encashment to him, even when the impugned order was under challenge before this Court in W.P.(C) No. 12109/2015. Thus, in our view, the present writ petition is clearly barred by delay and laches and on that short ground, the same is liable to be dismissed.

Even on merits, we do not find any force in the submissions of learned counsel for the petitioners. The submission of Mr Yadav, learned

counsel for the petitioner, is that the case of the petitioner is identically placed as that of Daya Nand Sharma (supra), who was also one of the persons chargesheeted by the CBI in the same case. The Tribunal had granted him the relief of leave encashment in OA No. 1522/2007. The premise on which the said relief was granted was that the Competent Authority had not passed any order stating that the Government had suffered any pecuniary loss on account of alleged illegality/irregularity or misconduct of the Government servant. In the present case as well, no order has been passed by the Competent Authority to say that the Government has suffered any pecuniary loss on account of the petitioner's alleged misconduct.

A perusal of the order dated 08.01.2008 passed in Daya Nand Sharma (supra) shows that the Tribunal granted relief to the applicant in that case vis-à-vis encashment of earned leave on account of two factors. Firstly, the Competent Authority had not passed any order stating that financial loss had been caused to the Government and, secondly, in the counter-affidavit as well, there was no denial that the Government had suffered any pecuniary/financial loss.

In our view, the said decision is of no avail to the petitioner for the reason that in para 4.20 of the reply filed by the Government before the Tribunal, the respondents have taken the stand inter alia that "recovery of pecuniary loss, the same will be determined by the court of law in the criminal proceedings, hence, the question of leave encashment is pre-mature."

Thus, there is no admission made by the Government that the conduct of the petitioner, which is presently under enquiry in the CBI case, has caused no pecuniary loss to the Government.

For all the aforesaid reasons, we find absolutely no merit in this petition and dismiss the same.

VIPIN SANGHI, J DEEPA SHARMA, J MAY 30, 2017 bg