Vaishali Singh Koshal Vs. Indian Tourism Development Corporation, Ltd. Through Its Chairman-cum-managing Director - Court Judgment

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CourtCentral Administrative Tribunal CAT Delhi
Decided OnJun-16-2009
Case NumberTA No.673 of 2009
JudgeJudges: N.D. DAYAL, ADMINISTRATIVE MEMBER & THE HONOURABLE DR. JUSTICE DHARAM PAUL SHARMA, JUDICIAL MEMBER
AppellantVaishali Singh Koshal
RespondentIndian Tourism Development Corporation, Ltd. Through Its Chairman-cum-managing Director
Advocates:For the Appellant: M. Venkataraman, Advocate. For the Respondent: Ajay Kapur with Savita Rajdor, Advocate.
Excerpt:
dr. dharam paul sharma, member (j): the applicant herein filed civil writ petition no.6292/2002 in the high court of delhi praying that the honble court be pleased to issue a writ of certiorari or mandamus or any other writ, order or direction:- (i) set aside/ quash the impugned order/memorandum dated 14.3.2002 passed by the respondent as illegal, arbitrary and discriminatory and also undertaking obtained by the petitioner is per se illegal; writ of mandamus or any other writ directing the respondents to reinstate the petitioner as asstt. manager (m);award the cost of these proceedings in favour of the petitioner and against the respondents; and further issue any other appropriate writs, orders or directions are deemed fit and proper in the facts and circumstances of the case and to meet the ends of justice; 2. pursuant to notification no.so (e) issued on 1.12.2008, the matter came under the jurisdiction of the central administrative tribunal of this bench and accordingly the matter was transferred to be tried by this tribunal. this is how the matter has come up before us. 3. briefly stated, the facts of the case are that the applicant, assistant manager (marketing) applied for leave from 01.05.2001 to 31.08.2001 (55 days with pay and 68 days without pay leave) in order to accompany her husband to nepal along with her six years old child. on a request, the leave was further extended for four months without pay from 01.09.2001 to 31.12.2001. the applicant applied for further leave from 01.01.2002 to 30.04.2002 which was, however, declined by the respondent and the applicant was advised to report for duty immediately otherwise the undertaking submitted by her before going to abroad would be accepted as her resignation. the said undertaking is annexed as annexure-b to the counter affidavit filed on behalf of the applicant which reads as under: as per my leave application dated 25.04.01 requesting for grant of leave from 1/5 to 31/8 i hereby undertake as under: that i will return to india and shall report for duty within a period of three months from the date of expiry of leave originally sanctioned or subsequently extended failing which my leave application may be deemed as resignation from the services of the corporation with effect from the date of expiry of my sanctioned leave. i further undertake to abide by the terms and conditions laid down in circular no.p/v/misc/78 dated 12.6.1978. 4. the applicant wrote a letter to the respondent-corporation on 15.2.2002 seeking some time for making necessary arrangement. the respondent is said to have issued a memorandum on 27.02.2002 whereby the applicant was called upon to join the duties on or before 01.03.2002, failing which the undertaking given by her would be considered as resignation from service w.e.f. 31.3.2002. the applicant has stated that he did not receive the said memorandum. thereupon, on 14.03.2002, the respondents passed the impugned order treating the undertaking given by the applicant as her resignation w.e.f. 31.03.2002. however, on the very same date i.e. 14.03.2002 the applicant sent a fax to the respondents that she would be joining her duties on 18.03.2002. she came to india on 17.03.2002 and reported for duties on 18.03.2002 and handed over the joining report to gm-arms/ gm-personnel. after two or three days of her joining when the applicant learnt about the impugned letter of termination dated 14.03.2002, she wrote a letter/representation to the gm-arms/ gm-personnel on 21.03.2002 requesting for consideration of her case sympathetically. she again wrote a letter dated 30.03.2002 to the chairman-managing director, itdc, new delhi praying for regularization of her leave for the reason, inter alia, that she had resumed her duties within the stipulated period of three months from the date of expiry of sanctioned leave as per the undertaking. on failure to her necessary redresses, she filed the aforesaid petition/ta. 5. the applicant has assailed the legality of the impugned letter of termination as it purports to terminate the applicants services under the guise of acceptance of her resignation on the basis of undertaking which is per se illegal, involuntary, arbitrary and discriminatory. by terminating the applicants services in terms of the impugned order, the respondents have bypassed the itdc (cd and a) rules, 1978 which provides for regular departmental enquiry giving full opportunity to an employee to defend himself. since the resignation can never be conditional, the undertaking cannot be treated as resignation, especially so when the applicant had joined her duties in terms of said undertaking. it has further been submitted by the applicant that the respondents cannot impose any condition which is contrary to or which is not in conformity with the itdc (cd and a) rules, 1978. 6. the applicant has further assailed the legality of the impugned action of the respondents being discriminatory, illegal and in violation of article 14 of constitution of india inasmuch as in the cases of persons who were similarly placed, were given different treatment vis--vis the applicant herein. thus, it has been contended that the respondents have not acted upon the undertaking furnished by certain employees on their own sanctioning leave and mentioned the names of charu lata sukhija, prasanjeet mukherjee, ms. prakita verma and mr. duggal who had overstayed for such long period than that of the applicant. thus, the impugned action as subjected to the applicant to hostile discrimination is illegal and discriminated in law. without prejudice to the aforesaid contentions, the applicant has also submitted that the impugned action of the respondents is disproportionate to the charge. 7. in support of her contentions, the learned counsel for the applicant has relied upon a number of cases. a similar provision contained in amended rule 14(10) (c ) of delhi road transport authority (condition of appointment and service) regulations, 1952 for consideration before delhi high court in two cases which are delhi transport corporation vs. daya nand and ors. (2003 (2) all india services law journal 78) and delhi transport corporation vs. om kumar and ors. (95 (2002) delhi law times 425). in the first case of aforesaid cases, the services were deemed to have been terminated as per rule 14(1) (c) which provides for deemed resignation for unauthorised absence without notice. it was contended on the basis of said regulations, that no notice was required. this finds favor by the honble high court and it was held that the termination of service without following the principles of natural justice is bad in law. to the same effect is the decision in the case of om kumar (supra) wherein, it was, inter alia, held that the principle of audi alteram partem was applicable in the case of overstaying sanctioned leave. 8. the learned counsel for the applicant further referred to another case of delhi transport corporation, namely, d.t.c. vs. shishu pal and ors. (2000 iii ad (delhi) 712, wherein termination of service by invoking deemed resignation under clause rule 14(1) (b) of drta rules and regulations was held as retrenchment. it was further held that even absenting of respondent from service will be treated as misconduct for which a proper inquiry should have been held instead of taking recourse to clause rule 14(1) (b) of drta rules. the learned counsel for the applicant referred to the case of dr. prabha atri vs. state of up and others ( (2003) 1 scc 701 in support of his case that such a letter must be unconditional and as such applying this test, the undertaking given in this case cannot be viewed as resignation. on the strength of it, the learned counsel vehemently urged that the impugned order is unsustainable in law and deserves to be quashed with full consequential benefits to the applicant. 9. in their written statement, the respondents have contradicted the applicants contentions. the applicant was duly informed that in case she would not report back by 01.03.2002, her undertaking would be treated as her resignation. the respondents have referred to rule 5(a) of itdc (cd and a) rules which deals with voluntary abandonment of service and reads as under: if an employee overstays beyond the period of leave originally granted or subsequently extended or is otherwise absent beyond 21 days continuously without prior permission, or intimation to authority empowered to grant him leave, he shall be treated to have voluntarily abandoned the corporations service and the disciplinary authority may pass orders accordingly furthermore, the applicant has not exhausted her remedy under the aforesaid rules. 10. at the hearing, the learned counsel for the respondents submitted that it is not proper on the part of an employee to apply for leave and sit at home without getting sanctioned the leave. the learned counsel referred to the case of mirthless singh vs. union of india and others (2003 (3) scc 309) wherein it has been held that mere application for grant of leave cannot be construed to be a proper intimation of leave. 11. the learned counsel for the respondents further referred to the case of punjab and sind bank and others vs. sakattar singh ((2001) 1 scc 214), wherein it was, inter alia, held that the rules of natural justice could not be applied in a vacuum without reference to the relevant factual situation. in this case, it was held that in view of the provisions contained in clause 16 of iv bipartite settlement, termination of service for unauthorised absence for more than 90 consecutive days beyond the sanctioned period of leave, is not the punishment for misconduct but only a recognition of the realities of the situation and does not result in violation of principles of natural justice and in view of this, it has been contended that the applicant had voluntarily given undertaking at the time of availing leave, she cannot say that she was unaware after she had signed it. the applicant cannot have a legitimate effect if her undertaking is given effect to by the respondents. it is, thus, contended that the application is devoid of merits and is liable to dismissed as such. 12. we have given careful consideration to the respective submissions made by both the parties. we have also carefully perused the records of the case. 13. this is a case of termination of services on account of overstay beyond the sanctioned period of leave in terms of the undertaking and the competent authority is competent to operate his undertaking as deemed resignation. in such case for proper understanding and appreciation, it would be expedient to reproduce the said undertaking as well as the action taken by the respondents vide impugned letter dated 14.03.2002 as follows (even though at the cost of repetition): as per my leave application dated 25.04.01 requesting for grant of leave from 1/5 to 31/8 i hereby undertake as under: that i will return to india and shall report for duty within a period of three months from the date of expiry of leave originally sanctioned or subsequently extended failing which my leave application may be deemed as resignation from the services of the corporation with effect from the date of expiry of my sanctioned leave. i further undertake to abide by the terms and conditions laid down in circular no.p/v/misc/78 dated 12.6.1978. the impugned letter dated 14.03.2002 (annexure p-4) reads as under:- this has reference to your undertaking dated 25.4.2001 given by you for grant of ex. india leave from 1.5.2001 to 31.8.2001 (55 days with pay and 68 days without pay leave) and further extended 4 months leave without pay from 1.9.01 to 31.12.01. the competent authority has advised your vide memo of even number dated 27.2.2002 to report for duty on or before ist march, 2002, failing which your undertaking will be considered as resignation without any further information to you. you have neither reported for duty nor sent any communication with reference to our memo dated 27.2.2002. i am directed to inform you that the competent authority has decided to accept your resignation from the post of asstt. manager (arms division w.e.f. 31.3.2002 on the expiry of the required notice period of three months. you are advised to handover the complete charge of your post to vp (aitd) or his nominee and collect your dues in full and final settlement of your account with the corporation after furnishing the no demand certificate from the concerned departments. 14. it is admitted fact that the leave was sanctioned in the present case was 31.12.2001. accordingly, the applicant could have joined back her services after expiry of her extended leave within a period of three months. thus, she was well within her time of undertaking to join back her duties by 31.03.2002. she has indeed joined back her duties on 18.03.2002 well before her time. the respondents have not controverted and denied that the applicant did not join on 18.03.2002. in their written statement, the respondents have merely stated that no record was available with them regarding the applicants reporting for duty to the general manager (arms). the representation made by the applicant on 21.03.2002 was also not available. however, the respondents have not denied to have received the fax message sent by the applicant on 14.03.2002 intimating the respondent corporation that she is joining duty on 18.3.2002. in view of this, it was not open to the respondents to treat the undertaking given by the applicant as resignation for the reason that the conditions required to be complied with for this purpose are not duly satisfied in this case. furthermore, the respondents could not have insisted upon the applicant to join her duties on or before 31.3.2002 when the undertaking envisages joining within three months from the date of expiry of leave. de hors the undertaking, it was open to the respondents to hold a departmental enquiry for her absence. furthermore, the termination letter dated 14.03.2002 came into effect from 31.03.2002 after the expiry of required period of notice. i.e. three months. the letter would become redundant if the applicant joined before the expiry of required period of notice. 15. for the aforesaid reasons, the impugned order cannot be sustained in law and the same is quashed and set aside. in view of this, we do not feel necessary to go into the merits of other contentions submitted by the parties. 16. accordingly, the ta is allowed by quashing and setting aside the impugned letter dated 14.03.2002 with all consequential benefits. no order as to costs.
Judgment:

Dr. Dharam Paul Sharma, Member (J):

The applicant herein filed Civil Writ Petition No.6292/2002 in the High Court of Delhi praying that the Honble Court be pleased to issue a writ of Certiorari or Mandamus or any other Writ, order or direction:-

(i) set aside/ quash the impugned order/memorandum dated 14.3.2002 passed by the Respondent as illegal, arbitrary and discriminatory and also undertaking obtained by the petitioner is per se illegal; Writ of mandamus or any other writ directing the respondents to reinstate the petitioner as Asstt. Manager (M);Award the cost of these proceedings in favour of the petitioner and against the respondents; and further issue any other appropriate writs, orders or directions are deemed fit and proper in the facts and circumstances of the case and to meet the ends of justice;

2. Pursuant to Notification No.SO (E) issued on 1.12.2008, the matter came under the jurisdiction of the Central Administrative Tribunal of this Bench and accordingly the matter was transferred to be tried by this Tribunal. This is how the matter has come up before us.

3. Briefly stated, the facts of the case are that the applicant, Assistant Manager (Marketing) applied for leave from 01.05.2001 to 31.08.2001 (55 days with pay and 68 days without pay leave) in order to accompany her husband to Nepal along with her six years old child. On a request, the leave was further extended for four months without pay from 01.09.2001 to 31.12.2001. The applicant applied for further leave from 01.01.2002 to 30.04.2002 which was, however, declined by the respondent and the applicant was advised to report for duty immediately otherwise the undertaking submitted by her before going to abroad would be accepted as her resignation. The said undertaking is annexed as Annexure-B to the counter affidavit filed on behalf of the applicant which reads as under: As per my leave application dated 25.04.01 requesting for grant of leave from 1/5 to 31/8 I hereby undertake as under: That I will return to India and shall report for duty within a period of three months from the date of expiry of leave originally sanctioned or subsequently extended failing which my leave application may be deemed as resignation from the services of the Corporation with effect from the date of expiry of my sanctioned leave. I further undertake to abide by the terms and conditions laid down in circular No.P/V/MISC/78 dated 12.6.1978.

4. The applicant wrote a letter to the Respondent-Corporation on 15.2.2002 seeking some time for making necessary arrangement. The respondent is said to have issued a Memorandum on 27.02.2002 whereby the applicant was called upon to join the duties on or before 01.03.2002, failing which the undertaking given by her would be considered as resignation from service w.e.f. 31.3.2002. The applicant has stated that he did not receive the said memorandum. Thereupon, on 14.03.2002, the respondents passed the impugned order treating the undertaking given by the applicant as her resignation w.e.f. 31.03.2002. However, on the very same date i.e. 14.03.2002 the applicant sent a fax to the respondents that she would be joining her duties on 18.03.2002. She came to India on 17.03.2002 and reported for duties on 18.03.2002 and handed over the joining report to GM-ARMS/ GM-Personnel. After two or three days of her joining when the applicant learnt about the impugned letter of termination dated 14.03.2002, she wrote a letter/representation to the GM-ARMS/ GM-Personnel on 21.03.2002 requesting for consideration of her case sympathetically. She again wrote a letter dated 30.03.2002 to the Chairman-Managing Director, ITDC, New Delhi praying for regularization of her leave for the reason, inter alia, that she had resumed her duties within the stipulated period of three months from the date of expiry of sanctioned leave as per the undertaking. On failure to her necessary redresses, she filed the aforesaid petition/TA.

5. The applicant has assailed the legality of the impugned letter of termination as it purports to terminate the applicants services under the guise of acceptance of her resignation on the basis of undertaking which is per se illegal, involuntary, arbitrary and discriminatory. By terminating the applicants services in terms of the impugned order, the respondents have bypassed the ITDC (CD and A) Rules, 1978 which provides for regular departmental enquiry giving full opportunity to an employee to defend himself. Since the resignation can never be conditional, the undertaking cannot be treated as resignation, especially so when the applicant had joined her duties in terms of said undertaking. It has further been submitted by the applicant that the respondents cannot impose any condition which is contrary to or which is not in conformity with the ITDC (CD and A) Rules, 1978.

6. The applicant has further assailed the legality of the impugned action of the respondents being discriminatory, illegal and in violation of Article 14 of Constitution of India inasmuch as in the cases of persons who were similarly placed, were given different treatment vis--vis the applicant herein. Thus, it has been contended that the respondents have not acted upon the undertaking furnished by certain employees on their own sanctioning leave and mentioned the names of Charu Lata Sukhija, Prasanjeet Mukherjee, Ms. Prakita Verma and Mr. Duggal who had overstayed for such long period than that of the applicant. Thus, the impugned action as subjected to the applicant to hostile discrimination is illegal and discriminated in law. Without prejudice to the aforesaid contentions, the applicant has also submitted that the impugned action of the respondents is disproportionate to the charge.

7. In support of her contentions, the learned counsel for the applicant has relied upon a number of cases. A similar provision contained in amended Rule 14(10) (c ) of Delhi Road Transport Authority (Condition of Appointment and Service) Regulations, 1952 for consideration before Delhi High Court in two cases which are Delhi Transport Corporation Vs. Daya Nand and Ors. (2003 (2) All India Services Law Journal 78) and Delhi Transport Corporation Vs. Om Kumar and Ors. (95 (2002) Delhi Law Times 425). In the first case of aforesaid cases, the services were deemed to have been terminated as per Rule 14(1) (c) which provides for deemed resignation for unauthorised absence without notice. It was contended on the basis of said Regulations, that no notice was required. This finds favor by the Honble High Court and it was held that the termination of service without following the principles of natural justice is bad in law. To the same effect is the decision in the case of Om Kumar (supra) wherein, it was, inter alia, held that the principle of Audi Alteram Partem was applicable in the case of overstaying sanctioned leave.

8. The learned counsel for the applicant further referred to another case of Delhi Transport Corporation, namely, D.T.C. Vs. Shishu Pal and Ors. (2000 III AD (Delhi) 712, wherein termination of service by invoking deemed resignation under Clause Rule 14(1) (b) of DRTA Rules and Regulations was held as retrenchment. It was further held that even absenting of respondent from service will be treated as misconduct for which a proper inquiry should have been held instead of taking recourse to Clause Rule 14(1) (b) of DRTA Rules. The learned counsel for the applicant referred to the case of Dr. Prabha Atri Vs. State of UP and Others ( (2003) 1 SCC 701 in support of his case that such a letter must be unconditional and as such applying this test, the undertaking given in this case cannot be viewed as resignation. On the strength of it, the learned counsel vehemently urged that the impugned order is unsustainable in law and deserves to be quashed with full consequential benefits to the applicant.

9. In their written statement, the respondents have contradicted the applicants contentions. The applicant was duly informed that in case she would not report back by 01.03.2002, her undertaking would be treated as her resignation. The respondents have referred to Rule 5(A) of ITDC (CD and A) Rules which deals with voluntary abandonment of service and reads as under: If an employee overstays beyond the period of leave originally granted or subsequently extended or is otherwise absent beyond 21 days continuously without prior permission, or intimation to authority empowered to grant him leave, he shall be treated to have voluntarily abandoned the Corporations service and the Disciplinary Authority may pass orders accordingly Furthermore, the applicant has not exhausted her remedy under the aforesaid rules.

10. At the hearing, the learned counsel for the respondents submitted that it is not proper on the part of an employee to apply for leave and sit at home without getting sanctioned the leave. The learned counsel referred to the case of Mirthless Singh Vs. Union of India and Others (2003 (3) SCC 309) wherein it has been held that mere application for grant of leave cannot be construed to be a proper intimation of leave.

11. The learned counsel for the respondents further referred to the case of Punjab and Sind Bank and others Vs. Sakattar Singh ((2001) 1 SCC 214), wherein it was, inter alia, held that the rules of natural justice could not be applied in a vacuum without reference to the relevant factual situation. In this case, it was held that in view of the provisions contained in Clause 16 of IV Bipartite settlement, termination of service for unauthorised absence for more than 90 consecutive days beyond the sanctioned period of leave, is not the punishment for misconduct but only a recognition of the realities of the situation and does not result in violation of principles of natural justice and in view of this, it has been contended that the applicant had voluntarily given undertaking at the time of availing leave, she cannot say that she was unaware after she had signed it. The applicant cannot have a legitimate effect if her undertaking is given effect to by the respondents. It is, thus, contended that the application is devoid of merits and is liable to dismissed as such.

12. We have given careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.

13. This is a case of termination of services on account of overstay beyond the sanctioned period of leave in terms of the undertaking and the competent authority is competent to operate his undertaking as deemed resignation. In such case for proper understanding and appreciation, it would be expedient to reproduce the said undertaking as well as the action taken by the respondents vide impugned letter dated 14.03.2002 as follows (even though at the cost of repetition):

As per my leave application dated 25.04.01 requesting for grant of leave from 1/5 to 31/8 I hereby undertake as under:

That I will return to India and shall report for duty within a period of three months from the date of expiry of leave originally sanctioned or subsequently extended failing which my leave application may be deemed as resignation from the services of the Corporation with effect from the date of expiry of my sanctioned leave. I further undertake to abide by the terms and conditions laid down in circular No.P/V/MISC/78 dated 12.6.1978.

The impugned letter dated 14.03.2002 (Annexure P-4) reads as under:- This has reference to your undertaking dated 25.4.2001 given by you for grant of ex. India Leave from 1.5.2001 to 31.8.2001 (55 days with pay and 68 days without pay leave) and further extended 4 months leave without pay from 1.9.01 to 31.12.01.

The Competent Authority has advised your vide Memo of even number dated 27.2.2002 to report for duty on or before Ist March, 2002, failing which your undertaking will be considered as resignation without any further information to you. You have neither reported for duty nor sent any communication with reference to our Memo dated 27.2.2002.

I am directed to inform you that the competent authority has decided to accept your resignation from the post of Asstt. Manager (ARMS division w.e.f. 31.3.2002 on the expiry of the required notice period of three months.

You are advised to handover the complete charge of your post to VP (AITD) or his nominee and collect your dues in full and final settlement of your account with the Corporation after furnishing the No Demand Certificate from the concerned departments.

14. It is admitted fact that the leave was sanctioned in the present case was 31.12.2001. Accordingly, the applicant could have joined back her services after expiry of her extended leave within a period of three months. Thus, she was well within her time of undertaking to join back her duties by 31.03.2002. She has indeed joined back her duties on 18.03.2002 well before her time. The respondents have not controverted and denied that the applicant did not join on 18.03.2002. In their written statement, the respondents have merely stated that no record was available with them regarding the applicants reporting for duty to the General Manager (ARMS). The representation made by the applicant on 21.03.2002 was also not available. However, the respondents have not denied to have received the fax message sent by the applicant on 14.03.2002 intimating the Respondent Corporation that she is joining duty on 18.3.2002. In view of this, it was not open to the respondents to treat the undertaking given by the applicant as resignation for the reason that the conditions required to be complied with for this purpose are not duly satisfied in this case. Furthermore, the respondents could not have insisted upon the applicant to join her duties on or before 31.3.2002 when the undertaking envisages joining within three months from the date of expiry of leave. De hors the undertaking, it was open to the respondents to hold a departmental enquiry for her absence. Furthermore, the termination letter dated 14.03.2002 came into effect from 31.03.2002 after the expiry of required period of notice. I.e. three months. The letter would become redundant if the applicant joined before the expiry of required period of notice.

15. For the aforesaid reasons, the impugned order cannot be sustained in law and the same is quashed and set aside. In view of this, we do not feel necessary to go into the merits of other contentions submitted by the parties.

16. Accordingly, the TA is allowed by quashing and setting aside the impugned letter dated 14.03.2002 with all consequential benefits. No order as to costs.