Judgment:
1. By this OA, applicant has challenged order dated 24.12.2004 whereby his appeal has been rejected, order dated 3.9.2004 whereby he has been removed from service (page 14) and also letter dated 5.7.2007.i.e.
reply to the legal notice given by the counsel for applicant (page 9).
He has also sought direction to the respondents to disburse pension and Ors.pensionary benefits to the applicant w.e.f. 20.5.2001 along with interest.
2. It is submitted by the applicant that he was working as Senior Scientist in IVRI, Izatnagar, Bareilly. Vide order dated 3.10.1997, applicant was sent on deputation to the Government of Botswana for a period of two years and in the order itself it was mentioned that he was required to pay pension contribution on the normal rates (page 23).
His deputation period was extended for a period of one year w.e.f.
5.10.1999 with Government of Botswana vide order dated 12.11.1999 (page 24). Applicant requested for further extension but vide letter dated 2.2.2001, his request was not approved (page 25). At this stage, applicant sent his request on 16.2.2001 for voluntary retirement w.e.f.
20.05.2001 by giving notice of three months (page 26). This letter was received by the respondents but request was not refused, therefore, he is deemed to have retired voluntarily from respondent organization w.e.f. 20.05.2001 as per Rule 48 A of CCS (Pension) Rules.
3. Respondents issued Memorandum dated 10.04.2002 to the applicant with the charge of overstaying abroad unauthorizedly beyond the sanctioned period of deputation (page 16-18). The charge was held to be proved by the Inquiry Officer. Applicant was removed from service vide order dated 3.9.2004. Being aggrieved, applicant gave a detailed appeal but the same was also rejected by the same authority namely, President ICAR vide order dated 24.12.2004.
(i) the same authority could not have decided applicant's appeal. He has also submitted that applicant's case would not be covered under the three conditions mentioned in the proviso to Rule-48-A(1) because it does not include deputationists, whereas applicant had gone on deputation to the Government of Botswana. Therefore he was not required to join the organization before giving his request for voluntary retirement. Since his request for voluntary retirement was not rejected, he is deemed to have voluntarily retired w.e.f.
20.05.2001. In such circumstances, the order to initiate departmental enquiry or order removing him from service are void ab initio. Enquiry could have been held if relationship of master and servant existed since that relationship had severed w.e.f.
20.05.2001, therefore, all these orders are illegal and liable to be quashed.
5. He has also submitted that applicant is being discriminated against inasmuch as other officers who had overstayed, were allowed to go on voluntary retirement namely, Dr. H.P.S Makkar and Shri C.S. Dixit, therefore, applicant cannot be singled out to deny him the voluntary retirement. He has relied on following judgments:Tata Engg. And Locomotive Co. Ltd. v. Jitendra Prasad Singh and Another, JT 6. Respondents on the other hand have opposed this OA. They have taken preliminary objection to the maintainability of OA on the ground that ICAR can be sued only through Secretary, ICAR as per Rule 23 (c ) of ICAR Rules & Bye-Laws. President ICAR, is Minister-in-Charge of the portfolio of agriculture in the Union Cabinet, therefore, cannot be impleaded as respondent. Similarly impleadment of D.G., ICAR is not proper. Accordingly this OA is liable to be dismissed for misjoinder of parties. They have also taken objection to the maintainability of OA on the ground of limitation.
7. On merits, they have submitted as per proviso to Rule 48-A of CCS (Pension) Rules, 1972, a Government servant who is on an assignment to a Foreign Government could not serve a notice of voluntary retirement unless he resumes the charge of the post in India and serves for a period of not less than one year whereas applicant never resumed his duties in India as such his request itself is not maintainable.
8. They have explained that applicant while functioning as Sr.
Scientist in IVRI Izatnagar was selected as Principal Statistician on assignment with the Central Statistics Office, Gabrone, Government of Botswana for a period of two years, accordingly was relieved on 4.10.1997 which was extended by another year w.e.f. 04.10.1999.
Applicant had again requested for permission to continue his deputation but the same was not acceded to by the DARE and he was asked to resume duty at IVRI, Izatnagar vide letter dated 30.11.2000 (Annexure R-1).
Applicant, at this stage, sent voluntary retirement notice dated 16.02.2001 but it was clarified to IVRI that his request for voluntary retirement cannot be considered. Accordingly, a charge sheet was issued to the applicant vide OM dated 10.04.2002. Dr. Risherndra Verma, Head, Division of Standardization, IVRI, Izatnagar was appointed as Inquiry Officer on 07.01.2003. Applicant authorized Shri R.D. Sagar as defence assistant to present his case in the disciplinary proceedings. The charges were found to be proved in the enquiry. Accordingly, he has rightly been removed from service vide order dated 03.09.2004.
Similarly, his appeal was also rejected correctly by the President of ICAR vide order dated 24.12.2004 as per ICAR Bye-Laws.
9. They have further submitted that on one hand applicant states that he stood voluntary retired w.e.f. 20.5.2001 whereas as late as on 1.12.2003 also, he had requested for sanctioning him 24 to 36 months leave with effect from 5.10.2000 as is evident from the written brief submitted by his defence assistant (Annexure R-3). This shows he knew relationship of master & servant had not been severed. Full opportunity was given to the applicant to participate in the disciplinary proceedings wherein he was defended by the defence assistant as per his choice, which itself shows that applicant was also aware that disciplinary proceedings have rightly been initiated against him. There is no procedural irregularity as full opportunity was given to him but he did not come even at that stage. They have also submitted that applicant is not entitled to any pension as he has been removed from service. They have prayed that OA may be dismissed.
11. Before we deal with the contentions, it is relevant to point out that in respondents copy, two names have been handwritten in Para 4.18 namely, Dr. HPS Makkar and C.S. Rao whereas in the copies of OA before the Court, different name is shown namely, Dr. H.P.S. Makkar and Shri C.S. Dixit. Counsel for the applicant had strenuously argued that neither applicant had gone on assignment nor on contract but in defence statement applicant had himself written, he had entered into a contract with Government of Botswana, therefore, in order to satisfy ourselves, we had directed the respondent's counsel to produce the records for our perusal and also the relevant rules because counsel for respondents had submitted it is stated in the rules itself that disciplinary authority as well as appellate authority both are President ICAR. We had also directed the counsel for the respondents to produce the records pertaining to Dr. H.P.S. Makkar and C.S. Rao to see how their cases were dealt with. Records have now been produced by the counsel for the respondents.
12. The main contention of counsel for the applicant is that since applicant had given request for voluntary retirement on 16.2.2001 w.e.f. 20.5.2001 and the same was not rejected. Applicant was deemed to have retired on 20.5.2001. It would be relevant to quote Rule 48-A of CCS (Pension) Rules, which for ready reference reads as under: (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is on assignments under the Indian Technical and Economic Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes. Posted abroad in foreign based offices of the Ministries/ Departments, on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
(2) The notice of voluntary retirement given under Sub-rule (1) shall require acceptance by the Appointment Authority: Provide that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
13. Perusal of above shows though right is given to the government servant to seek voluntary retirement on completion of 20 years qualifying service by giving 3 months notice but this rule is not applicable to certain categories meaning thereby those government servant, scientists or technical experts, who fall in any of the categories as mentioned from serial No. (i) to (iii) are excluded from applying unless after having been transferred to India, they resume the charge of the post in India and serve for a period of not less than a year. In other words such of the persons as mentioned above can apply for voluntary retirement only after they join back in India and serve for one year.
14. Counsel for the applicant submitted applicant would not get covered under exceptions, i.e., any of these categories as he had gone on deputation. However, it seems Learned Counsel had probably not seen carefully applicant's own defence argument and above all the order dated 03.10.1997 itself whereby he is alleged to have been sent on deputation. To understand it correctly it would be necessary to quote the above said order. It, for ready reference, reads under: In pursuance of DARE's letter No. F.7(79)/97 IC-I dated 12.9.1997, the Director, IVRI, has been pleased to relieve Dr. V.K. Dwivedi, Sr. Scientist of his duties at this Institute w.e.f. the afternoon of 4.10.1997 to enable him to join his assignment as Principal Statistician with the Govt. of Botswana on deputation for a period of two years without any financial liability on the Institute/ICAR/DARE. The deputation of Dr. V.K. Dwivedi will be governed by the usual Foreign Service terms and conditions. During the period of deputation, Dr. Dwivedi will be required to pay pension contribution on the normal rates which will be intimated to him by this office in due course. He is also asked to make necessary arrangement to deposit the monthly instalments of HBA, GSLI and Computer Advance, etc. in the account of Director, IVRI, Izatnagar, since November, 1997, onwards.
Immediately on his joining the foreign assignment, Dr. Dwivedi will also communicate his mailing address in Botswana to this office.
15. The very first para shows, applicant, who was working as Sr.
Scientist with IVRI, was relieved of his duties at the IVRI w.e.f.
04.10.1997 to enable him to join his assignment as Principal Statistician with the Government of Botswana on deputation for two years. In the last paragraph it is once again stated on joining the foreign assignment, he shall communicate his mailing address.
16. It is pertinent to note that this is only a relieving order. Surely there would have been another order, contract entered into between applicant and the Government of Botswana and ICAR but for reasons best known to applicant, he has not placed them on record. It is absolutely clear from the above order also that applicant had gone to Botswana on foreign assignment. It cannot be disputed that applicant was indeed a scientist. Since he had gone for a period of two years, he had gone on a specific contract assignment with the approval of Government of India. This is also clear from applicant's own defence argument submitted through his defence Assistant to the Inquiry Officer (page-58) wherein it was repeatedly stated that applicant had entered into a contract with Government of Botswana and the contract had to be renewed after two years. The defence argument from page-58 onwards itself belies the argument of counsel for the applicant. The mere fact that the word deputation has been used in order dated 03.10.1997 would not change nature of his assignment. Perusal of defence argument makes it abundantly clear that applicant, who was a Scientist, had indeed gone on a specific contract assignment to a foreign government, therefore, he is fully covered under Clause (iii) of the proviso as such applicant could not have applied for voluntary retirement unless he had joined in India and worked for one year. In the instant case, admittedly, applicant did not resume the charge in India so question of serving for one year does not arise, as such applicant cannot seek any benefit flowing from Rule 48-A. The notice for voluntary retirement itself was not valid. The contention therefore that applicant stood deemed retired w.e.f. 20.5.2001 is rejected.
17. In view of above the main contention of counsel for the applicant that departmental enquiry could not have been issued as relationship of master and servant had severed is also rejected. At this stage it is relevant to note that applicant was fully aware his relationship of master and servant had not severed that is why, even as late as, on 01.12.2003, he had requested to sanction him leave of 24 to 36 months w.e.f. 05.10.2000.
18. As far as removal from service is concerned, counsel for the applicant did not point out any procedural irregularity in the enquiry.
On the contrary it is noted that full opportunity was given to the applicant to defend himself. Applicant did not come back to India in spite directions to join the duties and rejection of his request to extend the deputation period. Charge against applicant was as follows: Dr. V.K. Dwivedi, while functioning as Senior Scientist at IVRI, Izatnagar and on deputation with the Central Statistics, Gaborone, Govt. of Botswana, has unauthorizedly overstayed abroad beyond the sanctioned period of deputation (i.e. upto 4.10.2000) and did not comply with the instruction for returning back to India and reporting for duty at IVRI Izatnagar.
By his aforesaid acts Dr. V.K. Dwivedi, exhibited lack of devotion to duty and acted in a manner unbecoming of a Council's employee and thereby violated the provisions of Rule-3(1) (ii) (iii) of CCS (Conduct) Rule 1964 as extended to ICAR Employee.
Applicant authorized Shri R.D. Sagar to act as his defence assistant.
After hearing defence assistant and perusing the evidence on record, the charge against applicant was found to be proved by the Inquiry Officer. Copy of the report was sent to applicant vide letter dated 16.02.2004 followed by reminder dated 21.4.2004 wherein it was clearly stated that he may submit his response within 15 days failing which it would be presumed that he has nothing to say in the matter and action as per rule will be taken against him. In spite of it, applicant did not file his reply. From above it is clear that only one conclusion could be drawn that applicant was not at all interested in joining the job and he did not even contradict the report given by the Inquiry Officer. In these circumstances if disciplinary authority removed the applicant from service vide order dated 3.9.2004, we do not find any illegality in the order.
19. At this juncture it would be relevant to refer to the judgment of Hon'ble Supreme Court in the case of Aligarh Muslim University and Ors.
v. Mansoor Ali Khan Mr. Mansoor Ali Khan was working as a Laboratory Assistant and he applied for two years' extraordinary leave for joining Al-Fatah University, Tripoli, Libya. The Vice-Chancellor sanctioned leave for two years from 18-4-79. Before the expiry of the period, Mr. Khan applied on 18-4-81 for extension of leave by 3 years. On 12/23-9-81, the University granted extension only for one year from 18-4-81. The leave stood thus extended up to 18-4-82. It was, however, clearly stated by the University, in its letter as follows: ...You are required to resume duties by 18-4-1982. Please note that no further extension in the period of your leave will be possible and you are advised to make preparation for resuming duty positively by 18-4-82.
But, without waiting for the receipt of the above order dated 12/23-9-81, Mr. Khan entered into a fresh contract in Libya which, according to him, was to be for a minimum period of 2 years. The fresh contract was up to 17-4-83. Thereafter, he wrote a further letter to the University on 18-1-82 for grant of extension of leave for 1 more year upto 17-4-83 and stated that he would definitely join duty on 18-4-83. The University sent a telegram on 21-4-82 stating that his request for further extension was refused and that he should resume duties by 15th May, 1982, failing which "he would be deemed to have vacated" the post and "ceased" to be in University service. On 1-6-82, the University sent a cable extending the joining time up to 30-6-82 and stated that he must join on 1-7-82 failing which he would be deemed to have "vacated" the post and cease to be in University service from 18-4-82. Subsequently, by letter dated 7/9-6-1982, the substance of the telegram was confirmed. Mr. Khan failed to join by 1-7-82. Result was that the University deemed that he had vacated office w.e.f. 18-4-82. The appeal to the Visitor was rejected on 5-9-85.
20. In this case services of respondent were deemed to have been terminated as per the rule prevalent therein, without even giving show cause notice to the respondent.
21. Hon'ble Supreme Court propounded the theory of useless formality by observing that no purpose would have been served even if notice had been issued because admittedly respondent would not have returned back as he had entered into a further job in Libya. Hon'ble Supreme Court was pleased to observe as follows: It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad.
However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not unreasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself.
22. Orders passed by the Hon'ble High Court whereby termination was quashed for unauthroised absence were set aside and the Writ Petition filed by respondent was dismissed.Government of India and Another v. George Philip the Respondent working as Scientific Officer in the Bhabha Atomic Research Centre seeking two years' leave for pursuing an advanced research training under Commonwealth Schloarship in Canada Government granting him two years' leave for the advanced research training only with a condition that the respondent should not register for any Ph.D programme and that no extension of the leave shall be granted. Respondent also furnishing an undertaking in writing regarding the two conditions. However on the expiry of the two years' leave period respondent not reporting for duty. Also not responding to the several communications sent to him to join duty.
Ultimately reporting for duty after two years of expiry of the sanctioned leave and giving an explanation that since he registered for Ph.D overseas and could not report for duty earlier.
24. Punishment was imposed on respondent after holding a departmental enquiry. Tribunal set aside the order of compulsory retirement and direct reinstatement with full backwages. High Court modify it by observing if the respondent reports for duty within six months he shall be reinstated without back wages.
25. When the matter was carried to Hon'ble Supreme Court it was held as follows: Respondent having violated the conditions of leave and the terms of the undertaking given by him, the punishment of compulsory retirement could not at all be considered to be disproportionate much less shocking disproportionate and there was, therefore, no ground on which the Tribunal or the High Court could interfere with the penalty order.
It is trite that the Tribunal or the High Court exercising jurisdiction under Article 226 of the Constitution are not hearing an appeal against the decision of the disciplinary authority imposing punishment upon the delinquent employee. The jurisdiction exercised by the Tribunal or the High Court is a limited one and while exercising the power of judicial review, they cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial noncompliance of the rules of procedure or a gross violation of rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge. The scope of judicial review in matters relating to disciplinary action against employees has been settled by a catena of decisions of this Court. In the penultimate paragraph of the judgment, the High Court has observed that the respondent was not personally representing himself in the proceedings and he had authorized throughout his power of attorney holder, obviously indicating that he was not available for being considered for employment'. Then in the operative portion of the order six months' time is granted to the respondent to report for duty. It appears that this long period of time was granted to the respondent as he was not present in India and was abroad. In a case involving overstay of leave and absence from duty, granting six months' time to join duty amounts to not only giving premium to indiscipline but is wholly subversive of the work culture in the organization.
Article 51A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution has the tendency to negate or destroy the same.
27. In the backdrop of above judgment if we examine the facts of the present case, we find charge against applicant can be divided in two parts: (1) Applicant overstayed unauthorizedly abroad beyond the sanctioned period of deputation, i.e., upto 4.10.2000. (2) He did not comply with the direction for returning back to India and reporting at IVRI, Izatnagar.
28. It is relevant to note that applicant did not bother to come to India even after his request for extension was rejected and directed to join back. He was served with the charge-sheet. Even at that stage, he did not report back. He only authorized some person to defend him. The above said charge was proved against him and copy of same was sent to him followed by reminder but he did not even respond to that and did not even file any representation against the enquiry report, therefore, only one conclusion could have been arrived at, that applicant was not interested in respondents' job anymore, therefore, he has rightly been removed from service. We find nothing wrong in the order dated 3.9.2004 passed by the disciplinary authority.
29. Counsel for the applicant next contended that the same authority viz; President ICAR has decided his appeal, therefore, appellate order is liable to be quashed because his right of appeal has in effect been negated. However, perusal of the appeal (page 32) shows that applicant had himself addressed the appeal to the Hon'ble Agriculture Minister knowing fully well that he is also the President ICAR, who had passed the penalty order which is evident from page 15. Having submitted appeal to the same authority, it is not open to the applicant to challenge the authority of President, ICAR who decided his appeal. In this case since order of removal itself was passed on behalf of the President, ICAR who is the highest authority in ICAR and designated as disciplinary authorities per the schedule of ICAR Rules, applicant could have filed a representation under Rule 29 of CCS (CCA) Rules, 1965, in case any new facts had been brought out. Perusal of appeal shows no new fact was mentioned by the applicant. On the contrary he had himself stated that he was not able to return to the motherland and resume service under President, ICAR. According to us since applicant had not shown willingness to join the service even at that stage, President, ICAR rightly rejected his representation/appeal as he did not find any merit in the request to reduce the penalty in given circumstances. It is seen as per Rule 22 of CCS (CCA) Rules, 1965 read with ICAR Bye-Laws 31 and the Schedule therein, no appeal lies against the order of President ICAR, therefore, this contention is also rejected.
30. We also do not find any good ground to interfere with the order passed by authorities as there is no point in retaining a person in service, when admittedly he is not interested in the job and does not even obey the directions given to him. Hon'ble Supreme Court has repeatedly held once charge is proved in the departmental enquiry, what punishment should be given, should be left to the authorities, to decide and courts cannot sit in appeal over the decision of authorities so long it is based on evidence. We have already noted above that not only applicant overstayed abroad, disobeyed the directions but also did not show his intention to join back. Even at the time of arguments, counsel for the applicant informed us, his client is still abroad meaning thereby he is enjoying his assignment in Botswana. Applicant cannot have the cake and eat it too, therefore, we cannot even interfere on the quantum of punishment.
31. Counsel for the applicant next submitted applicant cannot be discriminated against as Dr. H.P.S. Makkar was allowed to retire voluntarily we have gone through the file pertaining to Dr. H.P.S.Makkar and find he had overstayed only for 6 days but thereafter he joined at this place of posting and worked thereafter sincerely. He also apologized so the proceeding were dropped and he was advised to be careful in future. The applicant cannot compare his case with that of Dr. Makkar because facts are absolutely different. They have further explained there is no such case with the name of DR. C.S. Dixit or DR.C.S. Rao. In view of above, no case of discrimination has been made out by the counsel for applicant. Accordingly, this contention is also rejected.
32. In view of the facts as explained above, judgments relied upon by the counsel for applicant, do not advance the case of applicant. Since we have upheld removal, applicant is not entitled to pensionary benefits as past service stands forfeited on removal from service.
Apart from above, this case was liable to be dismissed on limitation also because applicant was aggrieved by the orders dated 24.12.2004 and 03.9.2004, memorandum dated 10.4.2002, whereas the present OA was filed only on 08.8.2007 that is after more than 31 months. Period of limitation as per Section 19 of Administrative Tribunals Act, 1985 is one year, therefore, definitely the OA was barred by limitation.
Replying to legal notice does not give fresh cause of action to the applicant.
33. Applicant has filed MA 1565/2007 wherein the only ground taken is since applicant has been deprived of his pensionary benefit and that is recurring cause of action, therefore, there is no delay. Though we are not satisfied with the cause and could have dismissed the OA on this ground of limitation but since we had heard the arguments at length, we felt it would be better to decide the OA on merits. The MA accordingly stands disposed of.