# R.P. Garg v. Indian Oil Corporation Ltd. & Ors

- **Citation:** (2016) 3 ILRA 321
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-03
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/r-p-garg-v-indian-oil-corporation-ltd-ors-43531
- **Pages:** 10

## Headnote

Service Law--Petitioner appointed as an electrician in corporation - his service was terminated -
termination was quashed by the Hn'ble High Court and the same was affirmed by the Hon'ble Apex
Court by dismissing the SLP filed by Respondent Corporation.

Reinstatement after quashing of illegal termination - Employer cannot impose distant reporting
location (Vadodara) as condition precedent where employee terminated from Mathura and no prior
transfer - Such condition lacks bona fides, amounts to malice in law - Employee entitled to
reinstatement at original place- cost of Rs.10,000/- imposed on Respondent Corporation.(para 14,
15,16)

Consequential Benefit & Back Wages - termination order already quashed - petitioner will be
entitled for all the benefit in accordance with law including back wages-- full back wages forthwith,
despite transferable post - Costs imposed on employer for non-compliant action.

Writ Petition Allowed with cost.

List of Cases cited:

Somesh Tiwari v. Union of India and others, 2009 (2) SCC 592

## Text

3 All. R.P. Garg Vs Indian Oil Corporation Ltd. & Ors.
321

17. In view of the discussions made above, we are of the considered opinion that the
Arbitrator was not appointed in accordance with law and the award cannot be held to be a
valid and legal award and, as such, it cannot be given effect to.

18. Thus, the appeal is bereft of merit and is, accordingly, dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. - 41673 of 2015

R.P. Garg ...Petitioner
Versus
Indian Oil Corporation Ltd. & Ors ...Respondents

Counsel for the Petitioner:
Gopal Misra

Counsel for the Respondents:
Shri Prakash Padia, Vivek Ratan Agrawal

Service Law--Petitioner appointed as an electrician in corporation - his service was terminated -
termination was quashed by the Hn'ble High Court and the same was affirmed by the Hon'ble Apex
Court by dismissing the SLP filed by Respondent Corporation.

Reinstatement after quashing of illegal termination - Employer cannot impose distant reporting
location (Vadodara) as condition precedent where employee terminated from Mathura and no prior
transfer - Such condition lacks bona fides, amounts to malice in law - Employee entitled to
reinstatement at original place- cost of Rs.10,000/- imposed on Respondent Corporation.(para 14,
15,16)

Consequential Benefit & Back Wages - termination order already quashed - petitioner will be
entitled for all the benefit in accordance with law including back wages-- full back wages forthwith,
despite transferable post - Costs imposed on employer for non-compliant action.

Writ Petition Allowed with cost.

List of Cases cited:

Somesh Tiwari v. Union of India and others, 2009 (2) SCC 592

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)
322 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Respondent corporation, having failed to defend its action of terminating petitioner,
while he was posted at Mathura, right upto the Apex Court, has passed the orders impugned,
requiring petitioner to report at Vadodara, Gujarat, for being reinstated in service and to
furnish details of his activity while he remained out of employment, failing which a
presumption would be raised that he was gainfully employed. Petitioner asserts that piqued
at having lost legal battle upto the Apex Court, the employer is devising newer methods of
harassment and victimization, by requiring petitioner to report for reinstatement at a distance
of a thousand kilometers, which in the facts and circumstances suffers from the vice of
malice in law and in fact.

2. Facts in brief, which give cause for filing of the present writ petition, are that
petitioner was initially appointed as Electrician Grade-III with the Indian Oil Corporation
(hereinafter referred to as the 'Corporation') vide order dated 21.4.1986. Admittedly,
petitioner joined on the post on 25.9.1986. He was terminated from service vide modal
standing order dated 26.4.1989, treating him to be on probation. Petitioner filed a Writ
Petition No.8502 of 1989. This Court speaking through the judgment dated 1.12.2006
opined that as the maximum period permissible under the standing orders for an employee to
be kept on probation had already expired, as such, he would be deemed to be confirmed in
the employment. Since no procedure was followed before terminating the service of
petitioner, as such, the writ petition was allowed and the order dated 26.4.1989, contained in
Annexure-3 to the writ petition was quashed. Liberty, however, was granted to the
respondents to pass a fresh order if they so desire, in accordance with law. The judgment
dated 1.12.2006 was challenged by the respondent corporation by filing Special Appeal
No.19 of 2007. The appeal by an elaborate order was dismissed on 17.9.2014. Operative
portion of the order passed in Special Appeal No.19 of 2007 is reproduced:-

"As such, we are of the opinion that even though the reasons given by the
learned Single Judge for treating the writ petitioner as a permanent employee may
be different from one which have been given hereinabove, but in the facts of the
present case, the writ petitioner could not be treated as a probationer after having
put in more than two years of service, and his service could not have been
terminated without assigning any reasons, treating him to be a probationer, as has
been done by the order dated 26.4.1989.

As we have already held, in the facts of the present case and in terms of the
model Standing Orders, the writ petitioner had automatically been confirmed, and
would be treated as permanent workman on the completion of three months
service in the year 1986 itself and thus, the termination simplicitor, treating the
writ petitioner to be a probationer, vide order dated 26.4.1989 has rightly been
quashed by the learned Single Judge, which does not call for interference in this
appeal.
3 All. R.P. Garg Vs Indian Oil Corporation Ltd. & Ors.
323

3. The special appeal stands dismissed. No order as to costs.

4. Petitioner also preferred a Special Appeal No.508 of 2007 against the judgment of
learned Single Judge to the extent the relief of back wages was not considered, and liberty
was granted to the employer to proceed afresh against the employee. The special appeal of
the petitioner was disposed of with following observations vide order dated 17.9.2014:-

"As regards the first prayer, we are of the opinion that since, while dismissing
the Special Appeal No. 19 of 2007, we have held that the termination simplicitor, in
the case of the writ petitioner, was not justified in law as by virtue of provisions of
the model Standing Orders, the writ petitioner had been treated as a permanent
workman on completion of three months of probation and he can be terminated
only in accordance with law i.e. after giving opportunity and following the Rules
prescribed for termination of a permanent employee, we are of the opinion that
liberty granted to the Corporation for passing fresh orders in accordance with law
is justified and does not call for any interference.

As regards the other prayer for grant of full back wages to the appellant, we
are of the opinion that once the termination order has been quashed, the
consequences will follow and the appellant would be entitled to all such benefits,
for which he may be entitled to, in accordance with law.

This appeal is accordingly disposed of. No order as to costs."

5. The judgment and order dated 17.9.2014 passed in Special Appeal No.19 of 2007
was then carried in Special Leave to Appeal by the respondent corporation, which came to
be dismissed by Hon'ble Supreme Court on 10.4.2015 by following orders:-

"Heard learned counsel for the petitioners.
No ground for interference is made out to exercise jurisdiction under Article
136 of the Constitution of India.

The special leave petitioners are dismissed."

6. It is, therefore, clear that with dismissal of Special Leave to Appeal by the Hon'ble
Supreme Court, the challenge laid by the petitioner to the order of termination is sustained.
Petitioner, consequently, submits that he is entitled to be reinstated and all benefits, as have
been found payable to the petitioner, are liable to be provided to him.

7. Petitioner armed with the orders of the Court approached the respondents corporation
for permitting him to join. It is at this stage that the first order under challenge came to be
324 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by the General Manager (HRD, MS & Training), acknowledging the orders passed
by this Court, as affirmed by Hon'ble Supreme Court. Petitioner, however, has been
reinstated and has been asked to report for duty before an officer posted as Deputy General
Manager at Koyali, Vadodara in Gujarat on or before 1.7.2015. It has also been provided that
before joining petitioner is to undergo medical examination at Mathura Refinery Hospital at
Mathura and his reinstatement in service would be treated from the date he reports for duty
at Vadodara in Gujarat. By the subsequent letter dated 7.7.2015, the respondent corporation
has called upon the petitioner to submit details of his working during the period he remained
out of employment. It is also observed that in case petitioner was not employed by the
respondent corporation, it would be assumed that he indulged in some form of employment
or activities for his livelihood and the corporation also has some reports. It would be
appropriate to reproduce the contents of the letter dated 7.7.2015:-

"This refers to your letters dated 12.6.2015 and 29.6.2015.

Your requirement is by Indian Oil Corporation Ltd. and in terms of your
letter of appointment dated 21.4.1986 you are liable to serve at any place in India
to which you are posted. Based on the administrative exigencies and the
requirements of the Corporation, you have been posted on reinstatement at the
installation of the Pipelines Division in the Wester Region at Koyali, Gujarat w.e.f.
1.7.2015.

Since you were posted at Mathura, Uttar Pradesh at the time of the
termination of your service, in accordance with the Corporation's practice
governing transfers, you were given 30 days to join service at Koyali in terms of
letter No.PL/HR/IR/48 dated 2.6.2015. You may contract the Chief Operation
Manager, Northern Region Pipelines Division at Mathura for the requisition of
transportation facility for transport of your personal belongings from Mathura to
Koyali if you are re-locating with your family.

As a special case, the Chief Operation Manager, Northern Region Pipelines at
Mathura will also upon request to him arrange 2nd Class AC rail tickets for your
travel (and the travel of any dependant family members accompanying you) from
Mathura to Koyali.

In the circumstances, the date for you to report for duty at Koyali is also
extended to July 27, 2015. On you reporting for and attending duty at Koyali, as a
special case, you will also be provided with any other benefit available on transfer.

It may also be clarified that while your reinstatement was with immediate
effect in terms of letter No. PL/HR/IR/48 dated 2.6.2015, you were given 30 days
time to report for duty at Koyali, and were clearly informed that you will be
considered to have rejoined duty on reinstatement only when you report for duty
3 All. R.P. Garg Vs Indian Oil Corporation Ltd. & Ors.
325
at Koyali. Should you fail to report for duty at Koyali as directed, you will be
understood to be in disobedience of the order conveyed to you by letter dated
2.6.2015 and this letter.

You will appreciate that you were not employed with the Corporation
between April, 1989 and March, 1999 and between July, 2003 to June, 2015. The
corporation would, therefore, like to have full disclosure of your activities during
this period, as also would like to have a report on your current medical status.

You are, therefore, requested to comply with Conditions 1 & 2 set out in the
letter dated 2.6.2015. These requirements may be regarded as orders or
instructions given by your superior.

It is assumed that during the period that your were not employed by the
Corporation you had indulged in some form of employment or activity for your
livelihood, and the Corporation has some reports with respect thereto. It is,
therefore, necessary that you give clear particulars/details of your past
employment and activities during the intervening period(s) in the prescribed
Declaration Format with a view both, to update the Corporation's records in
relation to your service, and to determine the arrears of pay and financial benefits
payable consequent upon your reinstatement. Mere bald and general declarations
are unacceptable. Please furnish the required particulars in the prescribed
Declaration Format on the clear understanding that any information given therein
which is false or misleading or conceals relevant facts will be attended by legal and
disciplinary consequences."

8. Sri Gopal Mishra, learned counsel for the petitioner submits that action of the
respondent corporation smacks of malice in law and fact apparent on face of the record,
inasmuch as all endeavours are being made to harass and victimize the petitioner by the
respondents, after their action has not found favour with the Court. It is submitted that at the
time petitioner was terminated, he was employed at Pipelines Division of Indian Oil
Corporation, Mathura, and the order of termination was passed against him at Mathura. It is
further submitted that once the order of termination has been set aside, petitioner ought to
have been allowed reinstatement at the same place, particularly as the Pipelines Division of
the corporation at Mathura continues to exist and there is absolutely no justification for
requiring the petitioner to report for duty to an officer situated thousands of kilometre away,
for the purposes. It is also stated that the work which was being performed by the petitioner
continues to remain available. Submission is that nature of queries, which are being raised
by the corporation, also show utter annoyance on part of the corporation merely because
action of respondent corporation has not found favour with the Court. Submission also is
that being an agency and instrumentality of the state, the corporation and its officers are
expected to rise above petty considerations so as to harass petitioner. Petitioner further
submits that although a period of nearly ten months have expired, but till date not a single
326 INDIAN LAW REPORTS ALLAHABAD SERIES
penny has been paid by the corporation and in the facts and circumstances, their action
clearly amounts to showing of utter disrespect to the orders of the Court. Petitioner also
submits that he ought to have been allowed joining at Mathura, as he was terminated from
the said place, and if he was reinstated at Mathura and paid his back wages in terms of the
Court's order, thereafter only petitioner could have been transferred to any other place, but
the course adopted, otherwise by the respondent corporation, clearly falls short of the
reasonable act on part of the state instrumentality.

9. Petition is opposed by Sri Vivek Ratan Agrawal, learned counsel for the respondent
corporation, who submits that petitioner is holder of transferable post and it is the sweet will
of employer to put him to work for the purposes of reinstatement at any part of the country
and petitioner cannot insist upon joining at Mathura. It is also pointed out that for such
travelling 2nd Class AC train tickets would be admissible to the petitioner. Learned counsel
further submits that it is within the right of the corporation to seek details regarding activity
of the petitioner, which he may have undertaken while petitioner remained out of service
and petitioner has no right to object to it.

10. I have learned counsel for the parties and have perused the materials available on
record.

11. Record of the petition shows that petitioner was appointed to a class III post, as
Electrician Grade-III, in the respondent corporation. It seems that without holding any
departmental proceedings, the respondent corporation proceeded to terminate his services on
26.4.1989, treating him to be on probation. The action of respondent corporation was
challenged by filing a writ petition, which was allowed, and the order of termination has
been set aside. Intra court appeals preferred both by the petitioner and the respondent
corporation stands decided with the order of termination dated 26.4.1989 quashed, and
petitioner entitled to full back wages and consequential benefits. The order passed in special
appeal, as extracted above, has attained finality with dismissal of Special Leave to Appeal,
by the Hon'ble Supreme Court on 10.4.2015. Once that be so, as a natural consequence,
petitioner is entitled to have been put back in service, and paid back wages, with liberty
reserved to the employer to take such fresh proceeding, in accordance with law, treating the
petitioner to be a permanent employee. The position to this extent is beyond any doubt.

12. Respondent corporation, however, has passed order impugned dated 2.6.2015,
granting reinstatement to petitioner in salary Grade-V as Senior Engineer Assistant
(Electrical). It would be appropriate to reproduce the order dated 2.6.2015:-
3 All. R.P. Garg Vs Indian Oil Corporation Ltd. & Ors.
327
"Further to our letter no.PL/HR/IR/48, dated 06.05.2015, this refers to the
above mentioned order of Hon'ble Supreme Court upholding the order dated
1.12.2016 passed by Single Judge of Hon'ble Allahabad High Court and order
dated 17.9.2014 passed by Division Bench of Hon'ble Allahabad High Court.

In compliance with aforesaid orders, you are hereby reinstated in services of
Corporation as Sr. Engineering Assistant (Electrical), in Salary Grad-V. You are
advised to report for duty to Shri S.D. Kamewad, DGM, WRPL, Koyali, Gujarat
on or before 01.07.2015.

Before joining:

1. You have to undergo medical examination at the following address:
Mathura Refinery Hospital
Mathura Refinery Nagar
Mathura-281006
Contact Person: Chief Medical Officer
(Contact No.: 0565-2416062)

2. You have to provide relevant information in the attached Declaration
Form, which shall facilitate calculation of back wages and antecedent verification.
This declaration would be in additional to and not in substitution of the
Declaration and information submitted by you and for and/or at the time of your
initial appointment.

3. You will be treated as reinstated in service from the date you report for
duty at WRPL, Koyali, P.O. Jawahar Nagar, Vadodara-391320.

The above is issued without prejudice to the right of the Corporation to take
any action action against you in accordance with the liberty provided in the
aforesaid orders."

13. The order further records that reinstatement in service would be treated from the
date petitioner reports for duty at Vadodara before the officer concerned. There is absolutely
no justification brought on record of this petition as to why the corporation was compelled
to require petitioner to report for duty at Vadodara. Learned counsel for the respondent
corporation does not dispute the fact that the Pipelines Division at Matura, in which
petitioner was appointed, continues to exist at Mathura.

14. It may further be noticed that although petitioner is holder of a transferable post, but
such a transfer cannot be made a condition precedent for permitting petitioner to be
reinstated. In the absence of any material brought on record to justify insistence on part of
the corporation for petitioner's reporting at Vadodara, this Court finds substance in the
328 INDIAN LAW REPORTS ALLAHABAD SERIES
contention of the petitioner that such a condition is imposed by the corporation only on
account of annoyance, which the officers felt due to their action having not found favour
with the Court. It is also apparent from the record that apart from putting a condition of
reporting at Vadodara, respondents further required the petitioner to furnish details of
activities which the petitioner may have undertaken during the period he had remained out
of employment. Record further shows that after the order impugned dated 2.6.2015 was
passed, petitioner represented before the respondents stating that all formalities in respect of
his joining has already been completed and he also submitted a declaration specified that he
was not employed anywhere else. Relevant portion of the petitioner's letter dated 12.6.2015,
dealing with three issues specified in the order dated 2.6.2015, reads as under:-

"You have also asked me to complete some formalities before joining such as
to undergo the medical, filling up the declaration for etc. My answer w.r.t. same is
given below.

Regarding point no.-1- I don't understand why I am being asked for to
undergo the medical examination at this stage. This formality is required for the
newly appointed person but I am not a new appointee. This is not a fresh
appointment; this is reinstatement which means to re-unite the service from the
date I was terminated. Therefore, I don't see any relevance/legitimacy with the
issue in question. You may note when I worked from June/July 1999 to July, 2003
at SMPL termination at Mathura under the effect of interim order of High Court
Allahabad, I was not asked for the same.

Regarding point no-2- you have enclosed some forms which are to be filled up
& signed & submitted to you before joining. Again my answer is the same as
replied above. I have completed all these formalities at the time of my joining in
May, 1986. Asking about the details of any employment in past period during
pendency of litigation, I have no hesitation to declare that I was unemployed
during these years except for from June/July 199 to July, 2003 where I had been in
Indian Oil at SMPL Mathura terminal (under the effect of interim order of High
Court, Allahabad). You are also asking me to have it signed by the two witnesses
which is not possible for me at this stage. Moreover, I have no hesitation in
declaring that I was by and large at my resident Mathura. Similarly, when I
worked from June/July, 1999 to July, 2003 at SMPL terminal at Mathura under
the effect of interim order of High Court, Allahabad, I was not asked for the same.
Therefore, it will not be possible for me to complete these formalities as asked by
you.

Regarding point no-3

"you will be treated as reinstated in the service from the date you report for
duty at WRPL, Koyali, PO- Jawahar Nagar, Vododara-391320"
3 All. R.P. Garg Vs Indian Oil Corporation Ltd. & Ors.
329

The above lines mentioned in your letter do not carry the true meaning of
reinstatement. I must be treated reinstated in the service from the date of my
termination i.e. 26.4.1989 considering me notionally to be in the service with due
consideration of my promotions, seniority & other benefits for which I may be
entitled to with retrospective effect.

Further, once again I request you to issue the directives following the verdict
of High Court & Supreme Court in true sense & spirit."

15. Aforesaid letter of petitioner followed with another reminder dated 29.6.2015, in
which petitioner pressed his claim for payment of back wages as well as for him to be
permitted to resume his duties at the place where he was in employment. It is at this stage
that subsequent letter dated 7.7.2015 has been issued to the petitioner, contents whereof has
already been extracted above. The facts which have been brought on record of the writ
petition clearly exposes an act on part of the corporation to circumvent the orders passed by
this Court in its true letter and spirit. There was absolutely no justification for the
respondents to have insisted upon petitioner's reporting at Vadodara when petitioner
admittedly was never transferred during his continuance in service. The condition precedent
imposed by the corporation for petitioner to report for duty at Vadodara, therefore, cannot be
held to be bonafide. The respondent corporation, in such circumstances, does not appear to
have acted in a fair and just manner.

16. Hon'ble Supreme Court in Somesh Tiwari vs. Union of India and others: 2009 (2)
SCC 592 has been pleased to hold that where transfer order was passed on non existent
material it not only suffers from non application of mind, but also suffers from malice in
law. Para 16 of the judgment is reproduced:-

"16. Indisputably an order of transfer is an administrative order. There cannot
be any doubt whatsoever that transfer, which is ordinarily an incident of service
should not be interfered with, save in cases where inter alia mala fide on the part of
the authority is proved. Mala fide is of two kinds - one malice in fact and the second
malice in law. "

17. For the reasons recorded above, the writ petition stands allowed. The order dated
2.6.2015 insofar as it requires the petitioner to report at Vadodara, for his reinstatement to be
effective from such date of reporting cannot be sustained and is hereby set aside. Petitioner
shall report for joining at Mathura, within a period of two weeks from today, and he shall be
reinstated in service at Mathura, by the respondent corporation.

18. It goes without saying that petitioner will be entitled to back wages/benefits, to
which he has been held entitled under the orders of this Court, as affirmed by the Hon'ble
330 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court with dismissal of Special Leave to Appeal, forthwith. Respondents, however,
shall have liberty to act in terms of the orders passed by this Court in Special Appeal.

19. In the peculiar facts and circumstances of the case, as the action of respondent
corporation has been found to be lacking in bonafide, a cost of Rs.10,000/- is imposed upon
the respondent corporation.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2016

BEFORE

THE HON'BLE V.K. SHUKLA, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Writ A No. - 1088 of 2011

J. K. Chandna ...Petitioner
Versus
The Prathama Bank & Ors. ...Respondents

Counsel for the Petitioner:
C. P. Gupta, Kunwar Jitendra B. Singh, K.N. Tripathi

Counsel for the Respondents:
P. K. Singhal, S.C.

Petitioner was branch manager - Sanctioned disbursed a secured overdraft limit of Rs.23,00,000/-- on
basis of co-lateral security, valuer report - borrower in conspiracy with others obtained said loan on
fake documents - Departmental Enquiry held - petitioner violated the regulations 17 and 19 of the
Prathama Bank (Officers and Employees) Service Regulation, 2001 - Penalty imposed on Petitioner -
Reduction by five stages and recovery of loss modified in appeal to three stage with recovery.
Service Law - Disciplinary proceedings - Scope of judicial review - High Court cannot reappreciate
evidence - Interference permissible only when findings are perverse, unsupported by evidence or
inquiry violates statutory rules/natural justice (Paras 19-23, 26-30).

Banking Sector - Misconduct - Gross negligence - Sanction and disbursement of loan without
proper KYC verification, property inspection, or compliance with conditions - Manager held
responsible - Acts detrimental to Bank's interest amount to misconduct under Regulation 38 of 2001
Regulations (Paras 13, 16-18, 31).

Departmental Inquiry - Adequate opportunity - Inquiry held strictly as per Regulations -
Petitioner's defence considered - Findings of guilt affirmed - No procedural violation shown (Paras
8-9, 17, 31).

Punishment - Reduction in pay scale and liability for pecuniary loss - Doctrine of proportionality -
Interference only if punishment shocks conscience - Appellate authority already adopted leniency -
No ground for judicial intervention (Paras 19-25, 31).