Full Text
Through: Dr. M.P. Raju, Advocate with Ms. Mary Scaria, Advocate.
Through: Mr. Jayant Mehta, Senior Advocate with Mr. Madan Mohan, Advocate.
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This writ petition under Article 226 of the Constitution of India is filed by the petitioner, an employee of respondents/Indian Airlines Limited, seeking to impugn the orders dated 18.11.1993, 13.1.1994, 6.4.1994 and other orders especially the order dated 29.5.1995 of the Disciplinary Authority imposing the penalty of reduction of basic pay by two stages in time scale with cumulative effect against the petitioner. The 2013:DHC:335 penalty was imposed on the petitioner because the petitioner took the loan for housing purpose, although he already owned a house in Delhi.
2. The facts of the case are that the petitioner applied for a loan with the respondents/employer on 11.4.1990 for building of a new house at Loni, Ghaziabad. The application was processed and loan of Rs. 1,47,750/was granted to the petitioner on 19.1.1991. At the time of grant of loan, the petitioner gave an undertaking that neither he nor his dependent/children owned any house anywhere. It subsequently transpired that petitioner was the owner of a flat No.84-B, Pocket „B”, Dilshad Garden, Delhi which he was allotted by the DDA in the year 1986 and for which he has taken a loan of Rs. 61,000/- from Housing Development Finance Corporation repayable in equal monthly instalments of Rs. 828/- for 180 months. The petitioner was therefore held guilty of violation of the following rules of his service:- “Clause 28(11): Fraud and dishonesty in connection with the business or property of the Corporation. Clause 28(15): Breach of any Standing Order or any law or rules applicable to the establishment. Clause 28(20): Commission of any act subversive of discipline or of good behavior in the premises of the establishment. Clause 28(33): Giving false information…….”
3. After issuance of show cause notice, enquiry proceedings were held. Before the Enquiry Officer, the petitioner did not dispute that in fact he was allotted a flat by DDA and for which he had taken a loan of Rs. 61,000/- from Housing Development Finance Corporation Ltd. The petitioner however defended the action against him by stating that he was not the owner of the DDA flat when he applied for loan to the employer.
4. The Enquiry Officer has given a report against the petitioner because the petitioner did not produce any evidence whatsoever, whether oral or documentary during the course of enquiry. Though the report of the Enquiry Officer, proceeds on various aspects some of which may not be satisfactory, but in my opinion, the real crux of the order of Enquiry Officer is contained in the following portion under the heading of analysis of the evidence: “It may also be mentioned here that in his own statement duly signed by him on 12.8.93 before Sr. Vig. Officer, Mr. A.S. Trikha has himself stated that “Both the properties are in my name.” In the beginning of the same statement Shri Trikhas has mentioned himself as resident of 84-B, Pocket B, Dilshad Garden, Delhi which fact also tends to prove that even today he resides at a place which he does not claim as his „own‟ as according to him ownership rights of the said property have been transferred to another person through Power of Attorney. This explanation to any employee is basically granted for the purpose of acquiring a „living place‟ for self and family. In the instant case, the delinquent employee is not living in the house at Loni, Ghaziabad for which he was granted loan by I.A. In the light of these observations, I tend to conclude that Mr. A.G. Trikha „already owned‟ a house at the time of grant of housing loan to him.”
5. In my opinion, the fact as to whether the petitioner continued to be or did not continue to be the owner of DDA flat at Dilshad Garden when he applied for a loan in the year 1990, is a fact especially within his knowledge and burden of proving that fact was upon him vide Section 106 of the Evidence Act, 1872. The best way for the petitioner to prove that he was not the owner of the DDA flat was to file his bank account to show that he did receive moneys from his sister-in-law to whom allegedly the DDA flat was transferred on 4.1.1988. The petitioner however did not file his bank account to show that any amount was credited in his bank account on account of transfer of DDA flat to his sister-in-law. Not only that, the petitioner could have summoned his sister-in-law to prove that after the property was transferred to his sister-in-law on 4.1.1988 the further instalments payable for loan of Rs. 61,000/- were paid by sister-in-law and not the petitioner, but, the petitioner has again neither summoned the sisterin-law nor proved that loan instalments payable to Housing Development Finance Corporation were paid not by the petitioner but by the sister-in-law. Further also if really the sister-in-law became the owner by means of the documentation dated 4.1.1988 surely the sister-in-law thereafter would have applied either to the requisite local municipal authority for mutating of property in her name, or would have filed income tax returns, or other documents before any statutory authority to show that she was the owner and not the present petitioner. Admittedly, none of these documents are filed by the petitioner before the Enquiry Officer. I may note that counsel for the petitioner admits that the petitioner had taken divergent stands as to the transfer i.e either gift or sale, before the Enquiry Officer.
6. At the cost of repetition, the petitioner did not lead any oral or documentary evidence before the Enquiry Officer and therefore the Enquiry Officer held the charge to be proved against the petitioner and which effectively was concealment of facts for taking the loan from his employer besides committing fraud and dishonesty in connection with the business or property of the Corporation and also an act which would be subversive of discipline or of good behavior with the employer, and finally of giving false information.
7. This Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India has powers to interfere with the order of the Disciplinary Authority and the report of the Enquiry Officer only if the said report is either illegal or perverse or violative of principles of natural justice or against the doctrine of proportionality. In the present case, I do not find that the order is illegal inasmuch as it is against the law or that the order is in any manner violative of principles of natural justice (petitioner admittedly participated in the proceedings) or the findings of the Enquiry Officer are in any manner perverse (in fact the petitioner led no evidence before the Enquiry Officer).
8. Learned counsel for the petitioner sought to place reliance on the judgment of the Supreme Court in the case of A.L. Kalra Vs. The Project and Equipment Corporation of India Ltd. 1984 (2) Service Law Reporter 446 to argue that the consequence of the order of Disciplinary Authority has to be only followed in accordance with the rules and the only relevant rule in this regard for illegally taking the loan is clause 5(viii) of the Rules of the Employer which provides at best only for refund of loan. In order to appreciate the contention of the petitioner, let me reproduce the entire Rule 5. “5. General Conditions (i)The object of granting housing loans being merely to afford employees a facility as a staff welfare measure, no employee can claim such a loan as a matter of right, and every loan hereunder is subject to the decision of the Corporation of the Chairman or the Managing Director as the case may be, and on the merits of such case, and subject to availability of funds.
(ii) No such loan shall be permitted to any employee who has not completed at least five years continuous service in the Indian Airlines as a permanent member of its staff. This condition may, however, be relaxed or waived in respect of a co-operative housing society of employees one or more of whom may not satisfy the condition.
(iii) Neither the applicant, nor the applicant‟s wife/husband/minor child must be the owner of the house. However, this condition may be relaxed by the Corporation in exceptional circumstances, for example, if the applicant or the applicant‟s wife/husband/minor child owns a house in a village and the applicant desires to settle down in a town; or where the applicant happens to own a house jointly with other relations etc and he desires to build a separate house for the bonafide residential purpose.
(iv) In cases where both husband and wife are in the service of the Corporation and eligible for loan, a loan may be granted only to one of them.
(v) No loan will be permitted hereunder if the applicant has availed of any loan or advance for construction or purchase of a dwelling house from any Government or other source (such as the Ministry of Rehabilitation, or the Central or State Housing Scheme or any Bank or Life Insurance Corporation), unless he gives an undertaking in writing forthwith to repay in full the loan or advance so drawn.
(vi) Only one loan will be granted and that to construct or purchase only one house in the service career of an employee. Similarly only one society loan will be granted and that in respect of only one housing project of a co-operative housing society. An employee can have either an individual loan or society loan as a member of the Society and not both.
(vii) No loan shall be permitted to construct or purchase dwelling houses on lease-hold land, unless the unexpired residue of the lease period on the date of the advance is more than 25 years in the case of individual employees or more than 35 years in the case of co-operative housing society and unless the lease-hold rights are transferable or assignable.
(viii) Utilization of the loan for a purpose other than that for which it is sanctioned shall render the employee liable to disciplinary action under the Indian Airlines‟ Regulations, apart from his being called upon the refund to the Corporation forthwith the entire loan drawn by him.”
9. When we see sub rule (viii) of Rule 5, we find that it only deals with the position of a person taking a loan and utilizing the same for the purpose other than for which the loan is taken. It is only in those circumstances that sub-rule (viii) applies and which provides that in such cases refund can be called for by the employer/corporation. In my opinion, therefore, this rule has no application in the facts of the present case inasmuch as it is not the case that the loan taken by the employee was not being used for the purpose for which the loan was granted but was used for something else. Really the action against the petitioner was under sub-rule
(iii) of Rule 5 as aforesaid and which provides that no loan can be taken from employer unless the employee does not own a house. This rule was clearly violated in the facts of the present case and we are thus concerned with violation of this sub rule(iii) and not sub rule (viii). Once this sub rule
(iii) has been violated and the petitioner was held not entitled to take the loan, action of the respondents/employer to ask for repayment of the loan amount and thereafter adjusting the loan from his salary cannot be said to be in any manner illegal. The employer was justified in retaining the entire amount of salary till the loan amount illegally taken by the petitioner/employee stood cleared. In my opinion, therefore, the judgment in the case of A.L. Kalra(supra) as sought on behalf of the petitioner has no application to the facts of the present case.
10. In view of the above, I do not find any merit in the writ petition, which is accordingly dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J JANUARY 21, 2013 Ne