1. Facts leading to filing of this current O.A. are that the applicant was appointed as Junior Engineer (Civil) in the New Delhi Municipal Council
(NDMC) on 22.03.1978. He was promoted to the post of Assistant Engineer (Civil) on 02.11.2004. Vide order dated 10.07.2017, the respondents
refixed the pay of the applicant in the DTL pay scale w.e.f. 01.04.1998 and fixed his basic pay as Rs.39100/- + grade pay of Rs.7600/- w.e.f.
01.07.2015. The applicant retired from the NDMC on 31.07.2017.
2. The applicant submitted a representation to respondent No.1 on the date of his retirement i.e. 31.07.2017 stating that all his retiral dues have been
withheld by the respondents on the ground that a case for major penalty is in progress against him. The applicant averred that he is entitled to at least
grant of his leave encashment as has been done in the cases of his similarly placed colleagues (Sh. J.K. Katyal, retired AE(C) and Sh. P.B. Lal,
retired EE(C), who are also facing similar proceedings. When no response was forthcoming, the applicant filed a detailed representation on 30.10.2017
to respondent No.2 explaining the financial hardships being faced by him due to non-release of his leave encashment amount.
3. The applicant has submitted that Hon’ble Supreme Court and Central Administrative Tribunal have clearly laid down that an employee cannot
be deprived of his retiral dues without the authority of law. He has placed reliance on the judgments of Hon’ble Supreme Court in the case of
Vijay L. Malhotra Vs. State of U.P. & Ors., JT 2000(5)SC 17,1 D.D. Tiwari through LRs Vs. Uttar Haryana Bijli Vitaran Nigam Limited & Ors.
decided on 01.08.2014 and State of U.P. & Ors. Vs. Dhirendra Pal decided on 15.11.2016 holding that employee are fully entitled to interest on the
delayed payment of his retiral dues.
4. Aggrieved, the applicant has filed the current O.A. seeking the following reliefs:-
“To direct the respondents to release the entitled amount of leave encashment to the applicant within a month alongwith the interest @12% per
annum for the period of delayed payment.â€
5. In the counter affidavit, the respondents submit that the applicant was served with Memorandum dated 10.04.2015 proposing to hold an inquiry
against him under Rule 14 of the CCS (CCA) Rules, 1965. The applicant retired from service on 31.07.2017 and his leave encashment was withheld
in terms of Rule 39(3) of the CCS (Leave) Rules, 1972.
6. The respondents state that in cases of similarly placed persons, namely, Sh. J.K. Katyal and Sh. P.B. Lal (wherein disciplinary proceedings are also
pending), the payment was made (to the said officers) due to oversight of correct rule position, which was virtually irreversible. Thus, the plea taken
by the applicant for claiming release of leave encashment by citing their cases is not justified.
7. I have gone through the facts of the case carefully and considered the rival submissions.
The applicant, Sh. P.K. Punn retired as Assistant Engineer (Civil) from the NDMC on 31.07.2017. The applicant is aggrieved due to denial of his
leave encashment by the respondents. The respondents state that the applicant is undergoing disciplinary proceedings under Rule-14 of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965 and his leave encashment has been withheld in terms of Rule-39(3) of CCS (Leave)
Rules, 1972.
7.1 The applicant, who was Assistant Engineer during the relevant time has been charged with manipulation and favouring the contractor M/s China
Railway Shisiju Group Corporation by accepting poor quality of concrete and submitting the bill for full payment for the same. It has been alleged that
instead of taking action against the contractor, he submitted fabricated test registers so that full payment may be made to the Contractor.
7.2 The applicant in OA was issued a Memorandum on 10.04.2015 (Annexure-A9(Colly.)) enclosing the following articles of charge against him. The
same read as under:-
“ARTICLE-1
He, as Assitant Engineer (Civil), failed to get executed the Item of cement concrete while supervising the work, “Improvement/upgradation of
Shivaji Stadium. SH: - Construction of sport facility block, Hockey Stadium, Warm up pitch with two level basement for parking including Electrical,
Fire-fighting & Protection, HVAC, lifts etc. complete as composite work†as per specifications and conditions of the agreement and favoured M/s.
China Railway Shisiju Group Corporation, the contractor by accepting the poor quality of concrete, submitting the bill for full payment of the same and
fabricated/got fabricated the Test Registers instead of taking action against the said contractor and getting improved the quality of work.
ARTICLE-2
He, as Assistant Engineer (Civil), in connivance with S/Sh. V.K. Gulati, the then EE(C) and Roshan Lal, JE(C) manipulated the cement concrete
cores which were collected on 05.10.2009 and duly sealed and were marked with Emblem of Govt. of India, Central Vigilance Commission, New
Delhi by the concerned Technical Examiner of CTE for testing,. Samples of the cement concrete core were sent to M/s National Council for Cement
and Building Materials in place of Shriram Institute of Industrial Research, that too after more than three months without mentioning the seal of Govt.
of India, Central Vigilance Commission, New Delhi’s Emblem on it, as was directed by the said Technical Examiner of CTE. The results of cores
indicate much higher strength than required (46.52 MPa to 54.00 MPa for M30 grade concrete against 34.125 Mpa).
ARTICLE-3
He, as Assistant Engineer (Civil), failed to supervise the working of the Third Party Quality Assurance Agency, M/s SGS India Pvt. Ltd. which was
engaged to have independent comprehensive check on the quality of all the works so that all tests are carried out in systemic manner as per
specifications in order that noting is overlooked while carrying out the work “Improvement/upgradation of Shivaji Stadium. SH: -Construction of
sport facility block, Hockey Stadium, Warm up pitch with two level basement for parking including Electrical, Fire-fighting & Protection, HVAC, lifts
etc. complete as composite work†for Common Wealth Games, 2010 but during the inspection by CTE, all the cement concrete cubes failed during
tested, defeating the very purpose of engaging TPQA and favoured the contractor for not getting complied with the conditions of the Agreement with
the said Agency and submitting the bill for full payment.
ARTICLE-4
He, as Assistant Engineer (Civil), failed to implement/get implement the various conditions of the contract during execution of the work,
“Improvement/upgradation of Shivaji Stadium. SH: -Construction of sport facility block, Hockey Stadium, Warm up pitch with two level basement
for parking including Electrical, Fire-fighting & Protection, HVAC, lifts etc. complete as composite work†as per the agreement with M/s China
Railway Shisiju Group Corporation, the contractor.
ARTICLE-5
He, as Assistant Engineer (Civil), failed to supervise/to have superintendence over his subordinates in getting executed the work,
“Improvement/upgradation of Shivaji Stadium. SH: Construction of sport facility block, Hockey Stadium, Warm up pitch with two level basement
for parking including Electrical, Fire-fighting & Protection, HVAC, lifts etc. complete as composite work, “ as per the specifications mentioned in
the agreement with M/s China Railway Shisiju Group Corporation, the contractor.
The above misconduct on the part of Sh. P.K. Punn, Assistant Enginner (Civil), Civil Engineering Department, New Delhi Municipal Council, New
Delhi amounts to unbecoming of the Council Employee. He has thus violated the provisions of Rule 3 of CCS (Conduct) Rule- 1964.â€
Annexure-2 of Memorandum of Charges dated 10.04.2015 further elaborates in detail how the applicant in OA failed to maintain devotion to duty by
not following the necessary directions/guidelines in getting the samples tested from the designated laboratory viz. Shriram Institute of Industrial
Research.
8. During the course of hearing, learned counsel Sh. Yogesh Pachauri with Ms. Sriparna Chatterjee emphasized that due to extremely serious lapses
on part of the applicant, the quality assurance and quality control of the work could not be carried out in a systematic manner. It was emphasized that
the entire tender amount of the work was to the tune of Rs. 1,60,27,16,430/- but only an amount of Rs.3.44 cores could be withheld as compensation
for delay in the absence of proper recommendation from the applicant. It was forcefully argued that there are numerous instances on record to show
that the applicant favoured the contractor M/s China Railway Shisiju Group Corporation against the provisions of the agreement, and did not take or
recommend a corrective action against the aforementioned contractor for slow progress of work and also for the sub-standard quality material being
used, which resulted in huge financial loss to the respondents.
During the course of hearing learned counsels for the respondents relied upon the following judgments:-
(i) V.K. Gulati Vs. NDMC (OA-1470/2018) decided by Principal Bench of CAT on 19.12.2018.
(ii) Director Genjeral of Ordnance Services & Ors. Vs. P.N. Malhotra, JT 1995(2)SC 98.
(iii) P.K. Mehra Vs. GNCTD (OA-1663/2013) decided on 16.12.2014.
9. Sh. K.L. Manhas, the learned counsel for the applicant, on the other hand, strongly argued that out of the other people, who were also charge
sheeted along with the applicant, two of his (the applicant) similarly placed colleagues, namely, (Sh. J.K. Katyal, retired AE(C) and Sh. P.B. Lal,
retired EE(C), who are also facing similar proceedings in the NDMC have received their leave encashment whereas the applicant has been arbitrarily
discriminated again.
10. The leave encashment of the applicant has been withheld as per provisions of Rule-39(3) of CCS (Leave) Rules, 1972, which stipulates as under:-
“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 from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if
in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On
conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.â€
10.1 It cannot be disputed that the charges against the applicant are serious. The possibility of some money becoming recoverable from him on
conclusion of the proceeding cannot be ruled out. There is also a possibility that the said amount may not be fully recoverable from other retiral dues
of the applicant like his gratitute. Hence, action of the respondents for non release of leave encashment dues to the applicant seems justified.
11. As far as release of leave encashment to the other alleged accomplices of the applicant is concerned, the respondents have admitted that the same
was done inadvertently for which they must take appropriate redeemable steps, as per law.
12. In view of the aforementioned facts, the request of the applicant to release the leave encashment amount to him is rejected. O.A. is dismissed. No
costs.
