Central Administrative Tribunal - Delhi
Dr Deepak Chaudhary vs M/O Health And Family Welfare on 5 November, 2020
1 OA No.4455/2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.4455/2018
M.A. No.454/2019
M.A. No. 2053/2020
This the 05thday of November, 2020
(Through Video Conferencing)
Hon'bleMr. Justice L. Narasimha Reddy, Chairman
Hon'bleMs.Aradhana Johri, Member (A)
Dr. Deepak Chaudhury,
S/o Late ShriB.B.Chaudhary,
Aged about 57 years,
R/o K-19, HauzKhas Enclave
New Delhi-110016.
...Applicant
(By Advocate: Mr.A.K. Behera)
Versus
1. Union of India,
Through its Secretary,
Ministry of Health & Family Welfare,
NirmanBhawan, New Delhi.
2. Medical Superintendent,
Dr. Ram ManoharLohia Hospital,
New Delhi.
...Respondents
(By Advocate: Mr. Rajeev Kumar)
2 OA No.4455/2018
ORDER (Oral)
Mr.Justice L. Narasimha Reddy:-
The applicant was appointed as a Specialist in the Central Government Health Service in the year 1988. From the year 1995 onwards, he worked as Specialist in the Central Institute of Orthopaedics, Safdarjung Hospital. It is stated that he took the initiative for establishment of Arthroscopy and Sports Injury centre in Safdarjung Hospital. On 19.06.2018, the applicant was transferred to Ram Manohar Lohia(RML)Hospital. Feeling aggrieved by the transfer, the applicant submitted a representation on 21.06.2018 with a request to permit him to remain at the Sports Injury Centre.
When his representation was not considered, he submitted an application on 03.08.2018 under Rule 48-A of CCS(Pension) Rules with the request to permit him to take voluntary retirement w.e.f. 20.08.2018. On 06.08.2018, the Ministry of Health addressed a letter to the Medical Superintendent, RML Hospital seeking certain clarification and a reply was given on 07.08.2018 itself. Since no further action was taken thereon, the applicant submitted reminders dated 12.08.2018 and 16.08.2018. On 20.08.2018, the effective date indicated in the request for VRS, the applicant stated that he is relinquishing the duties from that date onwards. 3 OA No.4455/2018
2. On 02.11.2018, the Ministry of Health and Family Welfare informed the applicant that his request for voluntary retirement is not being acceded to. It was also stated that it would have been permissible to accept the request but for the fact that he has taken up employment at Dr.B.L. Kapoor Hospital without the permission of the Government. This OA is filed challenging the order dated 02.11.2018 and for a declaration that the applicant retired on VRS w.e.f. 20.08.2018.
3. The applicant contends that once his request to remain at the Sports Injury Centre, developed by him, was not acceded to, he submitted an application on 03.08.2018 for voluntary retirement and from the endorsement furnished by the RML in reply dated 07.08.2018, it is evident that nothing adverse against him warranting rejection of the voluntary retirement existed. He further contends that the reason mentioned in the impugned order dated 02.11.2018 hardly constitutes any basis, and in a way it supports his case.
4. The respondents filed a detailed reply. It is stated that though the application dated 03.08.2018submittedby the applicant seeking voluntary retirement, is otherwise in accordance with law, it was found that he joined a private organisation, without waiting for acceptance of his request for VRS. Other grounds are also mentioned therein. 4 OA No.4455/2018
5. The applicant filed a rejoinder contradicting the version of the respondents.
6. We heard Mr.A.K. Behera, learned counsel for the applicant and Mr. Rajeev Kumar, learned counsel for the respondents, at length.
7. The basic facts of the OA are not in dispute. The applicant was functioning in the Safdarjung Hospital since 1995, as Specialist and he is said to have been instrumental in developing the Arthroscopy and Sports Injury Centre. For more than two decades, he was associated with that hospital. When he was transferred on 19.06.2018, he felt a bit inconvenient and in fact made a request for his retention at Sports Injury Centre. When that did not happen, he has decided to take voluntary retirement.
8. Rule 48-A of the CCS (Pension) Rules enables an employee of the Central Government to seek voluntary retirement, in case he has completed 20 years of service or 50 years of age, depending upon the nature of his employment. The applicant fits into those parameters.
9. The ordinary notice period stipulated for the purpose is three months. In fact, a deeming provision exists in sub rule 2 to the effect that in case the appointing authority does not 5 OA No.4455/2018 take any decision on the application for VRS within the notice period, the request shall be deemed to have been accepted. The question as to whether the deeming provision would operate, only when the notice period of three months, or it would also apply even when the notice period is less than that, needs to be examined in a different case.
10. In the context of the present case, we need not take that into account. For the benefit of the respondents, we proceed on the assumption that the deeming provision does not get attracted, when the period of notice is less than three months.
11. On 06.08.2018, the Ministry of Health called for certain information from the Medical Superintendent of RML Hospital which reads as under:-
"Subject: Request or Voluntary Retirement of Dr. Deepak Chaudhary, Consultant (Orthopaedics) Dr.R.M.L. Hospital, New Delhi
-reg.
Sir, The undersigned is directed to refer to the application dated 3rd August, 2018 (copy enclosed) of Dr. Deepak Chaudhary, Consultant (Orthopaedics) Dr. R M L Hospital, New Delhi on the above subject with the following remarks of on the bottom of application.
"Dr. Deepak Chaudhary's request for curtailment of notice period for VRS would not affect patient care services or cause any administrative inconvenience as there are already 3 SAG officers in the Department"
2. However, the name and designation of the signatory of these remarks are not indicated. MS, Dr.RML Hospital is requested to re-affirm or otherwise the above remarks urgently.
6 OA No.4455/2018
3. The following information may kindly also be furnished urgently for processing the case further.
(i) Whether Dr. Deepak Chaudhary is under any Bond Obligation.
(ii) Whether any Government dues pending against the officer.
(iii) Whether any absence period has been treated as Dies-Non. If so, the details thereof.
(iv) period of unauthorized absence/EOL (without medical certificate), if any.
(v) Vigilance status of Dr. Deepak Chaudhary with regard to the following:
(a) under suspension
(b) Disciplinary proceedings are pending. In case, charge sheet has been issued, date of issue of charge sheet may be indicated.
(c) prosecution for criminal charges is pending.
4. Dr. Deepak Chaudhary, Consultant (Orthopaedics) Dr. R M L. Hospital may be advised to continue in service till his request for Voluntary Retirement is accepted by the competent authority & orders communicated in this regard."
12. The reply to that was furnished on the next day i.e. on 07.08.2018. Which reads as under:-
"Subject: Request for Voluntary Retirement of Dr. Deepak Chaudhary, Consultant (Orthopaedics) Dr.RML Hospital, New Delhi - regarding.
Reference: Letter No. A-38012/02/2018-CHS-IV, dated 6th August, 2018 on the above subject.
Madam, With respect to the letter under reference on the subject mentioned above, the clarification on the various points raised are as under:-
S. Points Clarification/Rem No. arks
1& 2 Dr. Deepak Chaudhary's request for These remarks are curtailment of notice period for VRS reaffirmed would not affect patient care services or 7 OA No.4455/2018 cause any administrative inconvenience as there are already 3 SAG officers in the Department 3 (i) Whether Dr. Deepak Chaudhary is No under any Bond Obligation.
(ii) Whether any Government dues No
pending against the officer.
(iii) Whether any absence period has No
been treated as Dies-Non. If so, the
details thereof.
(iv) period of unauthorized absence/EOL NA
(without medical certificate), if any.
(v) Vigilance status of Dr. Deepak Chaudhary with regard to the following:
(a) under suspension (a) No
(b) No
(b) Disciplinary proceedings are pending.
In case, charge sheet has been issued, (c) No. date of issue of charge sheet may be indicated.
(c) prosecution for criminal charges is pending.
2. It is requested that the request of Dr. Deepak Chaudhary for seeking Voluntary Retirement and curtailment of the notice period so that he can be relieved w.e.f. 20th August, 2018 may be favourably considered."
13. From the above, it is evident that the applicant was clear from all the relevant factors and nothing existed adverse to him, that warranted rejection of the application. Once the applicant indicated 20.08.2018 as the date of his voluntary retirement, he felt that in case his request is not rejected by that date, he is free to get relieved and can take any other assignment. Accordingly, he addressed a letter dated 20.08.2018, which reads as under:-
"Subject-Request for Voluntary retirement -regarding.8 OA No.4455/2018
Respected Madam, Kindly refer to my letter dated 3rd August 2018 whereby after completion of more than 20 years of qualifying service, I had applied for Voluntary Retirement in terms of Rule 48-A of the CCS Pension Rules. Through this communication, I had applied for voluntary retirement as above and had also requested for a special dispensation of the Appointing Authority to curtail the prescribed period of notice of three months in accordance with the provisions of Rule 48-A(3-A) of CCS Pension rules. Accordingly, I had sought voluntary retirement with effect from 20th August, 2018.
Subsequent to your request for reconsidering my decision regarding seeking VRS, I had reiterated my earlier request for seeking voluntary retirement by curtailment the notice period vide my letters dated 12th Aug 2018 as well as 16th Aug 2018.
It may be noted that the Medical Superintendent of Dr.RML Hospital has already given it in writing that my VRS with curtailment of notice period will not cause any administrative inconvenience nor affect patient care services.
I further undertake not to apply for commutation of a part of my pension before the expiry of normal period of three months.
In view of the fact that the appointment authority has not refused to grant the permission for retirement before the expiry of the period specified in my notice that i.e. 20th Aug 2018, I am hereby relinquishing charge and retiring from government service w.e.f. evening of 20th August 2018 under provisions of Rule 48-A (3-A) (b) read with proviso to Rule 48-A(2) of CCS Pension Rules. The necessary proforma for charge relinquishing is enclosed.
It is also further requested that my pension and retirement benefits may be computed and calculated keeping in view my qualifying service of 29 yrs8months and 20 days.
I shall remain obliged for a timely action."9 OA No.4455/2018
14. In case there was any objection from the respondents for the applicant proposing to get relieved w.e.f. 20.08.2018, he ought to have been informed so that necessary action could have been taken. Nothing of that sort took place till the respondents issued order dated 02.11.2018.
15. Various developments that have taken place ever since the applicant submitted his representation seeking voluntary retirement were mentioned. Paragraphs 5 and 6 are relevant, they read as under:-
"5. In view of the fact stated above, it would have been permissible to accept Dr. Deepak Chaudhary's request for voluntary retirement subject to provisions of Rule 9 of CCS(Pension) Rules, 1972 had it not been for the fact that he has taken up a job in B.L. Kapoor Hospital without Government's permission, even before his request for voluntary retirement has been accepted. Dr. Deepak Chaudhary has merely stated that he is not a salaried employee of B.L. Kapoor Hospital and has not clarified that he is not deriving any pecuniary advantage for providing professional services. Further, B.L. Kapoor Hospital has certified that Dr. Deepak Chaudhary is engaged with Dr.B.L. Kapoor Memorial Hospital, a unit of Lahore Hospital Society, on a professional basis to provide the services to Arthroscopy and sports medicine centre. Taking of an assignment in B.L. Kapoor Hospital without prior permission of the Government as per rule 10 of CCS (Pension) Rules, 1972 is a clear violation of conduct rules. Dr. Deepak Chaudhary is liable to be proceeded against for this action.
6. Accordingly, Dr. Deepak Chaudhary is hereby informed that his request for voluntary retirement has not been agreed to by the competent authority and he may explain his conduct in taking of a commercial assignment without prior permission of the Government."10 OA No.4455/2018
16. From a perusal of the above, it is evident that the respondents were otherwise inclined to accept the request of the applicant for voluntary retirement and the only fact that came in their way was that the applicant started working in B.L. Kapoor Hospital. It was not even indicated that such working at B.L. Kapoor Hospital was on any day anterior to 20.08.2018. As observed earlier, the applicant felt free to walk out of the employment after 20.08.2018.It cannot be said that there was any illegality on the part of the applicant. At the most, he can be denied the emoluments for the period subsequent to 20.08.2018 or for that matter, from the date of VRS application itself.
17. Normally the application for VRS is rejected only when an employee is facing departmental or criminal proceedings or when there is acute shortage of the officers in the department and the services of the employee are needed. None of those grounds are cited here. Even if the action of the applicant in treating himself as relieved from service on 20.08.2018 is to be treated as hasty, that should not have resulted in denial of his request for VRS.
18. We, therefore, allow the OA and set aside the impugned order dated 02.11.2018. The applicant shall be deemed to have retired from service w.e.f. 20.08.2018. He shall not be entitled to any wages or other benefits from 03.08.2018 11 OA No.4455/2018 onwards. Other retirement benefits and arrears of pension shall be worked out and released to him within three months from the date of receipt of a copy of this order. If the amount is paid within that period, it shall not carry any interest. If it is not paid within that time, it shall carry interest as per the provisions of law.
Pending MA(s) shall also stand disposed of. There shall be no order as to costs.
(AradhanaJohri) (Justice L. Narasimha Reddy) Member (A) Chairman /jyoti/vb/ankit/sd/akshaya7dec/