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The Director, Rajiv Gandhi Indian Institute of Management, v/s Prof. Durgesh Kumar Agarwal & Others


Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    Writ Appeal No. 11 of 2015

    Decided On, 24 June 2016

    At, High Court of Meghalaya

    By, THE HONOURABLE CHIEF JUSTICE MR. DINESH MAHESHWARI & THE HONOURABLE MR. JUSTICE S.R. SEN

    For the Appellant: AK Bhattacharya, Sr. Advocate, D. Bhattacharya, Advocate For the Respondent: R1, N. Kaushik, HL Shangreiso, Advocate.



Judgment Text

1. In this intra-court appeal against the order dated 04.02.2015, as passed by the learned Single Judge of this Court in WP(C) No.168 of 2014, the parties were heard at length on 22.06.2016 but then, for some of the propositions that cropped up during the course of submissions, the learned counsel for the parties prayed for time to complete all their instructions and hence, the matter was deferred for this date.

Today, at the outset, the learned counsel for the parties frankly submitted that the parties have ultimately reached to a final settlement so as to give a quietus to the entire dispute and have agreed for disposal of this appeal in terms of their settlement.

Having gone through the terms of settlement placed before us and having taken into comprehension the subject matter of litigation, we are satisfied that the settlement reached by the parties deserves to be accepted and the matter deserves to be disposed of in terms thereof, particularly looking to the peculiar facts and circumstances of this case.

As the terms of settlement would require the parties to carry out respective obligations, appropriate does it appear to refer in brief to the relevant background aspects leading to this appeal and to the settlement.

The respondent No.1 herein (the writ petitioner) had earlier been working with FORE School of Management, New Delhi but, on being selected for the post of Associate Professor in Rajiv Gandhi Indian Institute of Management, Shillong (‘RGIIM’-represented by its Director, the appellant herein), he resigned from the service with his previous employer and joined RGIIM on 16.06.2008.

The issue leading to this litigation was a proposition of the respondent No.1 for rectification of his pay fixation in RGIIM with the suggestion that his previous employer had provided for his enhanced pay as per 6th Pay Commission recommendations from the month of July 2007. Suffice it to notice for the present purpose that the claim as made by the respondent No.1 for rectification so as to protect his basic pay with reference to the alleged enhanced pay by the previous employer, led to the exchange of certain communications between his present employer and the former and ultimately, the present employer i.e., the present appellant took a view that the respondent No.1 claimed and availed of re-fixation of his pay in RGIIM by submitting false/forged pay fixation statement from his previous employer.

In view of the above, the respondent No.1 was placed under suspension and was subjected to disciplinary proceedings, essentially on two charges: one, that he had submitted false/forged letters of the previous employer; and the second, that he had fraudulently obtained the pecuniary advantage causing loss to the Institute.

The Enquiry Officer, in his report dated 07.05.2013, though held on charge No.1 that filing of false/forged document by the respondent No.1 was not established conclusively but, nevertheless, held the charge No.2 proved that the respondent No. 1 made a false claim and received the arrears not actually due to him. The Disciplinary Authority forwarded the copy of the enquiry report to the respondent No.1 on 08.05.2013 and the respondent No.1 stated his response thereto on 20.05.2013. Thereafter, the Disciplinary Authority also served a note of dissent as regards in findings on charge No.1 on 05.06.2013 to which, the respondent No. 1 submitted his representation on 20.06.2013.

Ultimately, the Disciplinary Authority, in his order dated 21.08.2013, held both the charges established against the respondent No.1 and proceeded to award him the penalty of 'dismissal from service'. An appeal taken by the respondent No.1 to the Appellate Authority i.e., Personnel Committee of the Board of Governors was considered in the meeting held on 20.09.2013, and the Appellate Authority proposed to dismiss the appeal but while reducing the penalty from 'dismissal from service' to that of 'removal from service'. This proposition of the Appellate Authority was accepted by the Board of Governors on 04.04.2014 and the consequential order was conveyed to the respondent No.1 under the communication dated 21.04.2014.

Aggrieved by the aforesaid orders in the disciplinary proceedings, the respondent No.1 preferred the writ petition [WP (C) No.168 of 2014] leading to this appeal. The learned Single Judge of this Court, on examination of the record, took the view that in the departmental enquiry, the fact could not be finally established that the questioned pay fixation statement was indeed annexed by the employee i.e., respondent No.1 with his application; and with the observation that the burden of proving the negative could not have been shifted on the employee, the learned Single Judge held that the pivot of the departmental enquiry being not proved, both the charges No.1 and No.2 fell to the ground.

The employee i.e., the respondent No.1 had earlier submitted an undertaking to the employer on 02.02.2012 that any excess payment that may be found to have been paid to him as a result of incorrect fixation of pay or any discrepancies, would be refunded by him. Taking note of this, the learned Single Judge, while allowing the writ petition and while directing that the writ petitioner (respondent No.1 herein) shall be reinstated in service, left the question of arrears of pay and allowances to the wisdom of the present appellant and also indicated the aforesaid undertaking of the writ petitioner (respondent No.1 herein) dated 02.02.2012 for the purpose.

As noticed, on 22.06.2016, the matter was heard at length and several contentions were urged on behalf of the parties. However, during the course of submissions, certain propositions for settlement of the matter were exchanged and now, it is given out that the parties have ultimately arrived at a settlement. The terms of settlement, as signed by the appellant (Director, RGIIM) and respondent No.1, present in the Court and identified by their respective counsel, read as under:-

'TERMS OF SETTLEMENT

In view of the amicable settlement arrived at between the Appellant and the Respondent No.1, the following terms of settlement are arrived at upon between the Appellant and the Respondent No.1, which are being laid down herein below:

1. The Respondent No.1 will tender his resignation from the post of Professor of RGIIM, Shillong and the Appellant (Director, RGIIM) would accept his resignation w.e.f. 01.01.2017.

2. The Respondent No.1 will vacate the residential quarter provided to him by RGIIM, Shillong by 31.01.2017 and hand over the vacant possession of the said residence to the appropriate authority of RGIIM, Shillong.

3. That both the Appellant and the Respondent No.1 have agreed that the excess amount of Rs.1,66,061/- paid to the Respondent No.1 will not be recovered by RGIIM, Shillong.

4. Both the parties have also agreed that RGIIM, Shillong would make the payment of Rs.5,94,935/- towards amount payable to the Respondent No.1 as on 30.06.2016.

5. In view of the aforementioned terms of settlement, both the parties withdraw all their assertions, allegations, contentions raised in the pleadings before the Hon’ble Court.

6. The pending Writ Appeal No.11 of 2015 may kindly be disposed of in these terms of settlement.

Sd/- 24.06.2016 Sd/- 24.06/2016

APPELLANT RESPONDENT No.1

(DIRECTOR, RGIIM) (PROF. D.K. AGARWAL)'

On behalf of the appellant, a calculation chart has also been placed before us for perusal wherefrom, it is found that the amount of Rs.5,94,935/-, as agreed to be paid by the appellant, represents the remaining payment due to the respondent No.1 for the suspension period. Further, the parties have indicated that an excess payment of Rs.1,66,061/- has reached the respondent No.1 on the basis of revised pay, but the appellant will not recover the same. It is noticed that the respondent No.1 was ordered to be dismissed from service on 21.08.2013 and was reinstated in service only on 20.02.2015 after the order of the learned Single Judge dated 04.02.2015. The respondent No.1 has obviously not been paid any amount towards this period i.e., from the date of the order of the Disciplinary Authority until the date of reinstatement. Though it was feebly attempted to be suggested before us on behalf of the respondent No. 1 that in view of the order of the learned Single Judge, he might be entitled to the payment towards such period where he remained out of job though he was willing to serve but then, the respondent No.1 as also his learned counsel have rightly given up such a claim after the appellant has agreed not to insist for the recovery of the excess payment.

In the totality of circumstances, even if the payment on the basis of the questioned revised pay could have been a component of recovery but, when the parties, the appellant and the respondent No.1, have agreed to withdraw all their assertions, allegations and contentions raised in the pleadings before this Cour

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t; and when the respondent No.1 has also agreed to tender his resignation from the post of Professor of RGIIM and the appellant has agreed to accept his resignation w.e.f. 01.01.2017; and when the respondent No.1 has also agreed to vacate the residential quarter available to him by 31.01.2017; and thus, the ties of the parties are proposed to be severed in an amicable manner, in our view, the appellant cannot be said to be unjustified in not insisting on the recovery of excess payment. Taking an overall view of the matter, we are inclined to accept the terms of settlement and to dispose of this appeal accordingly. Consequently, this appeal stands disposed of in terms of the settlement between the parties as reproduced hereinabove. The parties are left to bear their own costs. It goes without saying that when this matter is being disposed in terms of the settlement in the peculiar and singular facts of the case, this order does not result in precedent on the terms of settlement herein.
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