SURENDER BABBAR Vs. DELHI TRANSCO LTD.

JUDGEMENT

(1.) W.P.(C) 5260/2017

(2.) Some of the relevant facts as noted from the writ petition are, the petitioner was appointed in DTL as Deputy General Manager (Finance) [DGM (F) in short] on April 11, 2007. On Nov. 19, 2012, he was given the Current duty Charge as GM (Finance) in DTL without any extra financial benefit. On Aug. 1, 2014, he was promoted as GM (Finance) in DTL in the revised Pay Scale of Rs. 37,400 - 67,000.00 with Grade Pay of Rs.10,000.00. While working as GM (Finance) DTL, respondent issued one of the impugned orders dated April 29, 2016 whereby the petitioner was assigned the charge of GM (Finance) of Delhi Power Company Limited (DPCL in short) previously looked after additionally by respondent No. 4. The petitioner represented to the Chairman, DTL on Sept. 16, 2016, Dec. 6, 2016 and May 12, 2017 for cancellation of order dated April 29, 2016. It is the case of the petitioner that he made representation on Feb. 15, 2017 for his elevation as ED (Finance) in DTL. It is also stated that the representation was made on May 30, 2017 to the CMD, DTL for giving the charge of Director (Finance) to the petitioner. On June 5, 2017, another impugned order was passed, whereby consequent to the promotion of Mr. J.P.S. Chawla working as Director (Finance) DTL, as Principal Chief Controller of Accounts in the Department of Expenditure of Govt. of India, resulting in his repatriation, the Honourable Lt. Governor ordered the Executive Director (Finance), DTL and IPGCL/PPCL shall hold the additional charge of the post of Director (Finance) in the respective companies till further orders. It is the submission of Mr. J.P. Sengh, learned Sr. Counsel appearing for the petitioner that the order dated April 29, 2016 is arbitrary, inasmuch as DPCL is a separate company with a separate legal and corporate entity, the charge of GM (Finance) in DPCL given to the petitioner is neither by way of transfer within the same organization, i.e., DTL nor an appointment on deputation basis. It is also not in the form of additional charge by the petitioner by holding, permanent and regular appointment of GM (Finance) in DTL. He would draw my attention to the order dated April 8, 2005 to contend that the employees on the rolls of the DTL are required to provide necessary assistance to the holding company, i.e., DPCL in addition to their normal duties as and when requested by CMD, DTL. According to him, the petitioner's position as GM (Finance) DTL is required to be restored with the additional charge of GM (Finance), DPCL. He states in view of this order, giving exclusive charge of GM (Finance) in DPCL to the petitioner vide order dated April 29, 2016 is liable to be set aside. In so far as the challenge to the order dated June 5, 2017 is concerned, it is the submission of Mr. Sengh, the order suffers from an error apparent on the face of it as there is no post of ED (Finance) in DTL, and as such, the charge of Director (Finance) could not have been given to a non-existent holder of post of ED (Finance). Secondly, respondent No. 4 being the Company Secretary/ED Corporate Governance in DTL is not from Finance cadre of DTL; thirdly, respondent No. 4 does not meet the eligibility criterion for the appointment to the post of Director (Finance) in DTL as per the eligibility and experience criterion notified by the Power Department, Govt. of NCT of Delhi. In this regard, he draws my attention to Page 89 of the paper book which prescribes, qualification and experience required for the post of Director (Finance). He states that it is relevant for an incumbent to have at least 20 years of experience in handling accounts and financial matters in Central Govt./State Level PSUs. Fourthly, he states that the impugned order of June 5, 2017 attracts statutory restriction as per the provisions of Sec. 203 of the Companies Act, 2013. He qualifies the aforesaid broad submissions to contend that the respondent No.4 who is holding the post of ED Corporate Governance, DTL is not ED (Finance). According to Mr. Sengh by giving the charge of Director (Finance) to a Company Secretary, petitioner has been ignored, who is the senior most officer in the Finance cadre of DTL, below the Director (Finance) and as an internal candidate of DTL he meets fully the eligibility criterion for the post of Director (Finance) in DTL and on that basis was shortlisted previously for the post of Director (Finance) in DTL and IPGCL. This additional charge of Director (Finance) would render respondent No. 4 to act and function as the controlling officer of the petitioner. Mr. Sengh has also drawn my attention to the order dated Aug. 1, 2014 to contend that petitioner on his promotion as a GM (Finance) was directed to report to the Director (Finance). If that be so, grave prejudice shall be caused to the petitioner. The effect of the charge of Director (Finance) to the respondent No. 4 would result in the respondent No. 4 acting as Director (Finance), ED Corporate Governance, Company Secretary GM (Finance) of DTL simultaneously, which is in gross violation of basic tenets of corporate governance. Mr. Sengh had submitted that the respondent Nos. 1 to 3 purposely have filed short affidavits instead of detail affidavits incorporating para-wise reply. He states that the respondents have not answered the plea made by the petitioner on the ineligibility of respondent No. 4 to hold the post of Director (Finance) except that the respondent No. 4 possess the qualification of Costs and Works Account. In other words, it is his submission that respondent Nos. 1 to 3 have not specified as to how respondent No. 4 has at least 20 years of experience in handling accounts and financial matters as required under the relevant rules. He states that despite making representations for withdrawing the order dated April 29, 2016, no steps have been taken by the concerned authority to address the grievance of the petitioner. He states that the action of the respondents is mala fide only to give benefit to the respondent No. 4 even though he is not eligible. He states that record of the petitioner is outstanding since his joining in DTL and at no point of time, did the CAG commented adversely on any work relating to accounts/financial matters. Mr. Sengh has also stated that despite applications being called for making regular appointment in the year 2016, no steps have been taken appointing a regular Director (Finance) till date except a Selection Committee has been constituted only in June, 2017. That apart he states that as per the communication received by the petitioner, the petitioner's application dated June 23, 2016 for Director (Finance) on deputation in DTL has not been forwarded by the DTL to the concerned authority even though the petitioner has sent an advance copy to the concerned authority. Mr. Sengh would rely upon the judgment of the Allahabad High Court in the case of Srinivash Sharma Vs. State of UP Through Its Secretary, Basic Education and Ors. 2007 (115) FLR 383 to contend that a person who does not possess the eligibility for a post, cannot be held to be a person suited for holding the charge even as a stop gap arrangement.

(3.) On the other hand, Mr. Dinesh Agnani, learned Sr. Counsel appearing for the respondent Nos. 1 and 2 would justify the impugned orders. His first submission is on the locus of the petitioner to challenge the order date June 5, 2017 whereby the respondent No. 4 was given the charge of Director (Finance) by stating, the petitioner having been given the exclusive charge of GM (Finance), DPCL and is not on the rolls of DTL cannot challenge the same as he cannot be a contender. He also states that challenge to the orders dated April 29, 2016 and June 5, 2017 is not maintainable as the prayers are mutually exclusive and as such petition is bad for misjoinder of prayers. He also states that the order having been passed on April 29, 2016, more than one year back cannot be challenged now. That apart, it is his submission that as the respondent No. 4 was given the charge of GM (Finance) in DTL vide order dated April 29, 2016, more than one year back, was rightly given the charge of Director (Finance) in DTL. In other words, the respondent No. 4 has been looking after the finance work of DTL for the last one year and giving the charge of Director (Finance) is justified. Mr. Agnani states that even though the petitioner is on the rolls of DTL, he is exclusively looking after the work of GM (Finance) DPCL and could not have been considered for giving the appointment of Director (Finance) in DTL. In so far as the submission of Mr. Sengh that the impugned order dated June 5, 2017 attracts statutory restriction as per the provisions of Sec. 203 of the Companies Act, 2013 is concerned, Mr. Agnani would submit that as per the said section the Managing Director, Company Secretary and the Chief Financial Officer are the key managerial positions in a Company. He states there is no dispute that there is a Managing Director of DTL in place, that apart respondent No. 4 is the Company Secretary and one Mr. Narendra Dev Govind is holding separately the position of Chief Financial Officer and therefore, giving charge of Director (Finance), which does not divest the respondent No. 4 of his position of Company Secretary, would not violate Sec. 203 of the Companies Act. On the submission of Mr. Sengh that respondent No. 4 does not have the eligibility to the post of Director (Finance) is concerned, Mr. Agnani has drawn my attention to running page 526 of the paper book to contend that respondent No. 4 is M.Com, LLB, FCS and ICWA. That being so, respondent No. 4 having qualification for the post of Director (Finance) cannot be said to be ineligible for being given the charge of the post of Director (Finance) in DTL. Mr. Agnani states that the impugned order does not call for interference as the process for making regular appointment to the post of Director (Finance) having been initiated, a time period be fixed for completing that process leading to the appointment of Director (Finance).