Central Administrative Tribunal - Delhi
Mrs. Rita Dua vs India Tourism Development Corporation ... on 16 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No. 3662/2011
Reserved On: 08.07.2013
Pronounced on:16.08.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Mrs. Rita Dua
W/o Shri Sunil Dua
12, Defence Enclave,
Vikas Marg,
Delhi-110092. Applicant
(By Advocate: Ms. Maninder Acharya with Shri A.M.
Tripathi)
Versus
1. India Tourism Development Corporation Ltd.
Through its Chairman, ITDC,
Scope Complex, Core-8, 7 Lodhi Road,
New Delhi-110003.
2. Mr. B.S. Gosain
Assistant Manager (HR)
India Tourism Development Corporation Ltd.
Scope Complex, Core-8, 7 Lodhi Road,
New Delhi-110003. ..Respondents
(By Advocate: Ms. Shikha Singh with Shri Sushant Kumar)
ORDER
Shri G. George Paracken:
The Applicant is aggrieved by the denial of her request dated 3.1.2008 to allow her to avail herself of the benefits under the Voluntary Retirement Scheme (VRS for short) by the Respondents as well as the impugned Office Memorandum dated 08.01.2008 issued to her by the 2nd Respondent holding that she deemed to have resigned from the Respondent Corporation w.e.f. 08.12.2007.
2. The brief facts of the case are that the Applicant was initially appointed as Lady Sales Assistant in the Duty Free Shops under the Ist Respondent with effect from 12.6.1981. Later on, she was promoted as Assistant Manager, DFS, AITD Division, New Delhi. While she was serving the first Respondent in the said category, she applied for Extra Special Leave for 2 years w.e.f. 01.08.2005 to 31.08.2007 to attend her ailing sister in Canada. On being sanctioned, she availed herself of the said leave. She returned from leave on 17.7.2007, i.e., prior to the expiry of the aforesaid period but made an application on 23/7/2007 which has been rejected as she was not entitled for it. However, on her further request, she was granted Ex-India leave for a period of 90 days from 10.09.2007 to 07.12.2007 but it was expired, she sent an application on 09.12.2007 to extend her leave period for 6 months from 10.12.2007 to 09.06.2008 on medical grounds but the same was rejected. However, when she came to know about another VRS floated by the Respondents on 31.12.2007, she made an application on 03.01.2008 to allow her to voluntary retire from service. The Respondents did not accept her request and vide the impugned order dated 08.01.2008 held that she deemed to have resigned from service w.e.f. 08.12.2007. The said letter dated 08.01.2008 reads as under:-
This has reference to your request dated 09.12.2007 for extension of 6 months medical leave w.e.f. 10.12.2007 to 09.06.2008 addressed to GM(AITD), ITDC.
In this connection, I am directed to inform you that as per CM&HO, ITDC observations with the clinical condition, you have been diagnosed (spondylosis) and you can travel to India. As such extension of leave for 6 months on such medical grounds is not justified.
Further, attention in invited to this office communication of even number dated 06.09.2007 while granting you 89 days Ex-India Leave from 10.09.2007 to 07.12.2007 to visit Canada, it was clearly informed that in the event of your failure to report back on duty immediately on expiry of your sanctioned leave, your undertaking shall be invoked and you will be deemed to have resigned from the services of the Corpn.
Since, you failed to report back on duty immediately on expiry of your sanctioned leave your undertaking dated 31.8.2007 is deemed as your resignation from the services of the Corpn w.e.f. 08.12.2007 (F.N.). Further you are advised to settle full and final of your accounts after producing No Demand Certificate from all concerned.
This issues with the competent authority.
3. According to the Applicant, she has been suffering from the diseases of spondylosis and backache for more than a decade and they became a cause of great concern for her. She also met with an accident in Canada and as a result the said diseases got aggravated and she was recommended for complete bed rest for six months. However, it continued for longer period. As a result, she could not resume her duty after the expiry of the sanctioned leave on 10.12.2007. She has, therefore, sent a letter on 09.12.2007 itself to the Respondents apprising them about her aggravated illness and sought more time to resume office. The Respondents neither denied her request nor sent any other communication to her. She was not in a position to apply for voluntary retirement under the VRS introduced by the Respondents on 31.12.2007 as she was not aware of it and she was unwell. However, as soon as she recovered from her diseases, at least marginally, she preferred the application on 03.01.2008 to allow her avail of the said VRS. But instead of responding to it, the Respondents, in a mala fide and arbitrary manner, soon after they got it, vide the impugned Office Memorandum dated 08.01.2008, they held that she has already deemed to resigned from the service of the Corporation w.e.f. 08.12.2007, thus arbitrarily bringing her service to the end. According to the Applicant, the said impugned letter was issued as an afterthought by the Respondents with the sole mala fide intention of depriving her of the benefits of VRS. Further, according to her the said order was passed without giving her an opportunity for hearing and, therefore, there was a blatant violation of the principles of natural justice, especially when said order is stigmatic in nature. Furthermore, she has submitted that passing the aforesaid order dated 08.01.2008, the Respondents have intentionally avoided her request for voluntary retirement as infructuous. They were also unfair in dealing with her inasmuch as that on one hand, they failed to consider her submissions made in her application dated 09.12.2007 seeking extension of her leave period and on the other hand, they did not inform her about the VRS already floated by them on 31.12.2007. She has further submitted that even if the Respondent was right in not further extending her leave, in the aforesaid facts and circumstances, they were duty bound to inform her about the VRS since, at that time, she was in Canada and she was not aware that the said Scheme was floated. Otherwise, instead of requesting for the extension of leave, she could have very well applied for the voluntary retirement. Further, according to the Applicant, the Respondents, on receipt of her request for extension of leave dated 09.12.2007 neither accepted it nor rejected it till 08.01.2008. Meanwhile, she came to know about the VRS and she applied for the retirement on 03.01.2008. The dishonest intentions of the Respondents is clear from the fact that on receipt of the said application dated 03.01.2008, they immediately, vide their letter dated 08.01.2008, rejected her request for extension of leave and held that she seemed to have resigned from the service of the Corporation, without following the principles of natural justice, terminated her services. She has, therefore, filed this OA on 15.09.2011 seeking the following reliefs with an accompanying Miscellaneous Application for condonation of delay:-
(i) Quash the illegal and arbitrary office orders dated 08.01.2008 passed by Respondent No.1 and 2;
(ii) direct the respondents to grant her voluntary retirement and the consequential benefits therein under the VRS Scheme dated 31.12.2007, along with interest @ 12% p.a. from the ate of application of voluntary retirement, i.e., 03.01.2007 till the grant of said benefits to Applicants; and
(iii) pass any other orders that this Honble Tribunal may deem fit in the facts and circumstances of the case.
4. As far as the delay is concerned, she has stated that she was suffering from the diseases of spondylosis and backache for more than a decade and the said ailments have been great cause of concern for her towards her health and she was bound to take care more than normal/extra care and precautions for her health. She has further stated that she met with an accident in Canada which aggravated her spondylosis and backache and she was recommended complete bed rest for six months and to avoid long distance travel. She continued to suffer from such diseases during and after the impugned order of termination she sent several representations to Respondents till May, 2008. In support of her aforesaid submissions, she had also submitted medical certificate to the Respondents.
5. In this regard she has relied upon the judgment of the Apex Court in Dakshin Haryana Bijli Vitran Nigam and Others Vs. Bachan Singh 2009 (14) SCC 793 where it has been held as under:-
20. This court has taken the view that pension is reward for long service rendered by the employee and not a bounty. The Supreme Court in the case of Subrata Sen & Others v. Union of India & Others reported as 2001(8) SCC 71 held that:-
"14....As observed in Nakara's case, pension is neither a bounty, not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic to those who in the day-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch..."
21. The appellants had issued circulars dated 6.8.1993 and 9.8.1994 for giving pensionary benefits to the respondent and similarly placed employees.
22. This court time and again had observed that the principle underlying the guarantee of Article 14 of the Constitution is that all persons similarly placed shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation without any discrimination.
23. In E.P. Royappa v. State of Tamil Nadu & Anr. (1974) 4 SCC 3, this court observed as under:-
"From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment."
24. In Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248, this court observed as under:-
"Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. .........Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence."
25. In D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305, this court observed as under:-
"The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare state will have to strive by both executive and legislative action to help the less fortunate in the society to ameliorate their condition so that the social and economic inequality in the society may be bridged. This would necessitate a legislation applicable to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in Article 14. The court realistically appraising the social stratification and economic inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in part IV of the Constitution, evolved the doctrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such segments of the society in need of succor. Legislative and executive action may accordingly be sustained if it satisfies the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied. It can only be satisfied if the State establishes not only the rational principle on which classification is founded but correlate if to the objects sought to be achieved."
26. In Ajay Hasia & Others .v. Khalid Mujib Sehravardi & Others (1981) 1 SCC 722 this court observed as under:-
"That is must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law, and is, therefore, violative of Article 14."
27. In Ramana Dayaram Shetty v. International Airport Authority of India & Ors. (1979) 3 SCC 489 again this court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
28. In view of the law as has been articulated in a large number of cases where this court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence, in this case, it would be totally unreasonable and irrational to deny the respondent the pensionary benefits under the scheme particularly when the appellants have failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing by the respondent. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants.
6. Learned counsel for the Applicant has argued that the delay in filing the present Original Application is to be condoned as the same has happened as the circumstances explained in it were beyond her control. In support of her aforesaid submission, she has relied upon the following judgments of the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji & Ors. 1987 (2) SCC 107 and in Ram Nath Sao Alias Ram Nath Sahu & Ors. Vs. Gobardhan Sao & Ors. 2002 (3) SCC 195.
7. In the case of Collector, Land Acquistion (supra), the Apex Court held that Courts should adopt a liberal and justice-oriented approach in dealing with matters regarding condonation of delay. The relevant part of the said judgment is as under:-
3. The legislature has conferred the power to condone delay by enacting S. 5*1 (1. "Any appeal or any application, other than an application under any of the provisions of 0. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay. every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State', which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay.
8. In Ram Naths case (supra), the Apex Court has again held that the expression sufficient cause should be given a liberal interpretation to ensure that substantial justice is done. The relevant part of the said judgment is as under:-
7. The expression 'sufficient cause' within the' meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as 'the Act'), Order 22 Rule 9 of the Code of Civil Procedure (hereinafter referred to as 'the Code') as well as similar other provisions and the ambit of exercise of powers thereunder have been subject matter of consideration before this Court on numerous occasions. In the case of The State of West Bengal v. The Administrator, Howrah Municipality and others (1972) 1 Supreme Court Cases 366, while considering scope of the expression 'sufficient cause' within the meaning of Section 5 of the Act, this Court laid down that the said expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.
8. In the case of Sital Prasad Saxena (dead) by Lrs. v. Union of India and others AIR 1985 Supreme Court 1, the Court was dealing with a case where in a second appeal, appellant died and application for substitution after condonation of delay and setting aside abatement filed after two years by the heirs and legal representatives was rejected on the ground that no sufficient cause was shown and the appeal was held to have abated. When the matter was brought to this Court, the appeal was allowed, delay in filing the petition for setting aside the abatement was condoned, abatement was set aside, prayer for substitution was granted and High Court was directed to dispose of the appeal on merits and while doing so, it was observed that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing inasmuch as in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party. It was further observed that Courts should recall that "what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties." (Emphasis added)
9. In the case of Rama Ravalu Gavade v. Sataba Gavadu Gavade (dead) through LRs. and another (1997) 1 Supreme Court Cases 261, during the pendency of the appeal, one of the parties died. In that case, the High Court had refused to condone the delay in making an application for setting aside abatement and set aside abatement, but this Court condoned the delay, set aside abatement and directed the appellate court to dispose of appeal on merit observing that the High Court was not right in refusing to condone the delay as necessary steps could not be taken within the time prescribed on account of the fact that the appellant was an illiterate farmer.
10. In the case of N. Balakrishnan v. M. Krishnamurthy (1998) 7 Supreme Court Cases 123, there was a delay of 883 days in filing application for setting aside exparte decree for which application for condonation of delay was filed. The trial court having found that sufficient cause was made out for condonation of delay, condoned the delay but when the matter was taken to the High Court of Judicature at Madras in a revision application under Section 115 of the Code, it was observed that the delay of 883 days in filing the application was not properly explained and it was held that the trial court was not justified in condoning the delay resulting into reversal of its order whereupon this Court was successfully moved which was of the view that the High Court was not justified in interfering with order passed by trial court whereby delay in filing the application for setting aside exparte decree was condoned and accordingly order of the High Court was set aside. K.T. Thomas, J., speaking for the Court succinctly laid down the law observing thus in paras 8, 9 and 10 :
"8. The appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. 9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the fewer court.
10..................................................
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
[Emphasis added]
11. The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is pre- clous and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. u. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanatlon_does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses."
[Emphasis added]
12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependant upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
9. The Respondents have filed their reply in which they have stated that the application is not maintainable and is liable to be dismissed in-limine as the same is hopelessly barred by time. Admittedly, there is a delay of more than 3 years in challenging the order dated 08.01.2008 as this OA has been instituted only on 05.09.2011 and no sufficient cause has been given in the application for condonation of delay. They have further stated that it is settled proposition of law that the Applicant must explain each days delay from the last date of limitation which she has not done in this case. They have further submitted that producing certain general medical certificates cannot be considered adequate for condoning the delay. According to the Respondents, the Applicant was negligent in instituting this application and she has not explained the cause for delay clearly and hence the same cannot be condoned. Moreover, the medical certificates filed by the Applicant in support, date back to years 2002, 2003 and 2004. No certificate/prescription has been filed to substantiate her illness for the period from 2008 to 2011. Further, the medical certificate dated 08.12.2007 filed by her specifies bed rest of 6 months only i.e. till 07.06.2008. They have also denied the receipt of any representations from the Applicant after May, 2008 and she has also not filed any documents to substantiate her plea of treatment in Canada.
10. On merits, the Respondents have stated that the Applicant joined service with them in the year 1981 on the basis of the appointment letter dated 12.06.1981 issued to her. On 01.11.2001, the ITDC, vide Office Order No. VP(HR)/2001-02/00 dated 01.11.2001 provided that henceforth Ex-India leave shall not be sanctioned for more than 90 days and that for further extension needs fresh approval. Later, in accordance with circular bearing No. VP(HR)/Cir/2002 dated 26.08.2002, Extra Special Leave was permissible for two years. Accordingly, based on her application dated 29.06.2005, vide office order Ref. No. PER/1804 dated 05.08.2005, she was granted Extra Special Leave for a period of two years w.e.f. 01.08.2005 to 31.07.2007. Thereafter, she re-joined her duty on 17.07.2007. On 23.07.2007, she made an application for availing the VRS floated by ITDC in accordance with circular No. HRM/VRS/07 dated 06.07.2007 but it was rejected by them, vide Memorandum dated 09.08.2007, on the ground that the said scheme was applicable only for non-executive employees of DFS at different locations. But, she again, vide her letter dated 16.08.2007, applied for grant of Ex-India Leave of 90 days from 29.08.2007 to 26.11.2007 for the purpose of going to Canada to attend to her ailing sister. Along with the leave application, she also gave an undertaking that in case she fails to join the services immediately after the date of expiry of leave, her leave application may be deemed as her resignation from the services of ITDC with effect from the date of expiry of the sanctioned leave. Later on, on her subsequent application dated 31.08.2007, the aforesaid period of leave already granted has been changed for the period from 10.09.2007 to 07.12.2007. She has given a similar undertaking along with the said application also. The Respondents have produced a copy of the said undertaking and it reads as under:-
General Manager (HR) India Tourism Development Corporation Ltd.
SCOPE COMPLEX, Core-8, 7 Lodhi Road, New Delhi-110003.
Sir, As per my leave application dated August, 31, 2007, requesting for grant of leave from 10.09.2007 to 07.12.2007 hereby undertake as under:-
That I will return to India and shall report for duty immediately after the date of expiry of leave originally sanctioned and will report to my present place of posting, i.e., DET, AITD. In case if I fail to do so my leave application may be deemed as my 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 as laid down from time to time.
Thanking you, Yours faithfully, Signature: Sd/-
Name: RITA DUA (Mrs.) Designation: Asstt. Manager Division: DET, AITD.
11. Thereafter, vide letter dated 06.09.2007, the Respondent No.1 accorded approval and sanctioned her 89 days leave subject to the terms and condition of undertaking that was signed by her and it reads as under:-
MEMORANDUM
From: Asstt. Mgr (HR)/ To: Mrs. Rita Dua
DGM(HR) Asstt. Mgr. (DFS)
AITD Division,
New Delhi.
Ref No:PER-1804 Date:6.9.2007
______________________________________
This is with reference to your request dated 31.8.2007 for grant of 89 days Ex India Leave from 10.09.2007 to 07.12.2007 to visit Canada.
We are pleased to inform you that the Competent Authority has accorded necessary approval and sanctioned you 89 days leave from 10.09.l2007 to 07.12.2007 with the permission to leave the country in accordance with the terms and conditions of the undertaking signed by you.
Your are further informed that in the event if you fail to report back on duty immediately on expiry of your sanctioned leave, your undertaking shall be invoked and you will be deemed to have resigned from the services of the Corporation.
(B.S. GOSAIN) CC:- Accounts Executive of AITD.
12. The Applicant, however, failed to resume her duty on 07.12.2007. Instead, vide letter dated 09.12.2007, she sought six months extension of leave on medical grounds from 10.12.2007 to 09.06.2008. According to them, as the Applicant failed to place her request for the extension of Ex-India Leave before the expiry of the leave on 07.12.2007, as required in terms of the Office Order No.VP(HR)/2001-02/OO dated 01.11.2001, her request was not allowed. The said letter reads as under:-
INDIA TOURISM DEVELOPMENT CORPORATION SCOPE COMPLEX, LODHI ROAD, NEW DELHI.
VP(HR)/2001-02/00 01/11/2001 Office Order
In view of the present scenario of disinvestment, it has been decided that henceforth any ex-India leave will not be sanctioned for more than 90 days. However, in case of any further extension required a fresh approval needs to be taken.
This issues with the approval of the competent authority.
Sd/-
(M.L. Jain) Vice President (HR) Distribution:
D(F)-for kind information All VPs/AVPs All Corp. Office GMs OSD to C&MD.
C&MD: May please approve before issue.
13. Later, on 03.01.2008, the Applicant submitted an application seeking to avail the VRS floated by the Respondent No.1 vide circular No. HRM/VRS/07 dated 31.12.2007. The said circular is extracted as under:-
INDIA TOURISM DEVELOPMENT CORPORATION LTD HUMAN RESOURCE MANAGEMENT DIVISION SCOPE COMPLEX, LODHI ROAD, NEW DELHI.
No.HRM/VRS/07 Dated: 31.12.2007 CICULAR
SUB: VOLUNTARY RETIREMENT SCHEME FOR THE EMPLOYEES (BOTH EXECUTIVES AND NON-EXECUTIVE EMPLOYEES) OF DUTY FREE SHOPS AT DIFFERENT LOCATIONS The Management has decided to introduce Voluntary Retirement Scheme for the regular employees (both executives and non-executives) of the Duty Free Shops at different locations. However, this scheme will not cover employees on Headquarters strength. A copy of ITDC Voluntary Retirement Scheme-2008, is enclosed.
The employees, who wish to seek Voluntary Retirement under the scheme, may send their applications in the prescribed format through proper channel positively by Tuesday, the 15th January, 2008 to enable the Management to process their cases expeditiously.
This is the last opportunity being extended to the employees of duty free shops to apply for Voluntary Retirement Scheme. Further, necessary action as per law and deemed fit and proper shall be initiated.
The Management will have full discretion to reject the application of any employee for Voluntary Retirement depending upon the exigency as well as administrative & organizational requirements.
As per Para 9.3 of the scheme, Notice period as applicable in respect of all employees opting for VRS will commence from the date the acceptance is communicated to the employee concerned in writing by the Management.
As per Para 9.4 of the Scheme, the employees who are currently on extra special leave, on opting for VRS, shall not be entitled for notice period pay.
This issues with the approval of the Competent Authority.
Sd/-
(S.K. Maitra) General Manager(Legal-HR-Admn.) DISTRIBUTION
1. Director (Finance/ Director (C&M)/CVO
2. Sr. VP (Engg.)/Alll VPs
3. All GMs of Hqrs.
4. All Regional Managers
5. All Managers/Sr. Mgr. of Duty Free Shops
6. Hr/Accounts Executives of Hqrs./RO
7. OSD to C&MD/Co.Secy.
14. Immediately on receipt of her aforesaid application, vide the impugned Memorandum No. PER/1804 dated 08.01.2008, the Respondent No.1 informed her that as she failed to report for duty immediately on expiry of her sanctioned leave and in accordance with her undertaking dated 31.08.2007, she deemed to have resigned from services of ITDC w.e.f. 08.12.2007. Further, she was called upon to settle her full and final accounts with the Respondent No.1. After the receipt of the aforesaid letter dated 08.01.2008, the Applicant continued to send letters dated 11.01.2008, 06.02.2008 and 27.08.2008 seeking extension of leave on medical grounds up to 09.06.2008 and also sought for approval of her request for VRS. As the services of the Applicant has already deemed to have been terminated w.e.f. 08.12.2007, the Respondents held that she is no more entitled to avail the said VRS dated 31.12.2007 which was applicable only to the regular employees.
15. We have heard the learned counsel for the Applicant, Ms. Maninder Acharya, Sr. Counsel with Shir A.M. Tripathi and the learned counsel for the Respondents Ms. Shikah Singh with Shri Sushant Kumar. The issues for consideration in this OA is whether the Respondents were justified in not considering the request of the Applicant dated 03.01.2008 for voluntary retirement introduced by them vide the VRS issued on 31.12.2007 and whether the Applicant is justified in seeking enforcement of her aforesaid request after 3 years and 9 months. The Respondents, in fact, did not consider the request of the Applicant for voluntary retirement made on 03.01.2008 at all. But the reason given by them in their reply is that since the services of the Applicant deemed to have been terminated w.e.f. 08.12.2007, she is no more entitled to avail herself of the benefits under the VRS issued on 31.12.2007. In our considered view, the aforesaid stand of the Respondents is not sustainable. Admittedly, the Respondents have sanctioned Ex-India leave for 90 days from 10.09.2007 to 07.12.2007. Immediately, on expiry of the aforesaid leave period, she applied for extension of leave for 6 months on medical grounds on 09.12.2007 itself. Meanwhile, the Respondents have introduced the VRS on 31.12.2007 and the Applicant applied for the same on 03.01.2008 itself, i.e., well before its closing date on 15.1.2008. The Respondents have no case that the said Scheme is not applicable to employees on leave. Rather, the grounds available to the Respondents to reject the request for VRS of any employee are on the grounds of exigency as well as administrative organizational requirements. However, according to the reply filed by the Respondents in this OA, the Applicants request for voluntary retirement was rejected on the ground that her service has already been deemed to have been terminated w.e.f. 08.12.2007. Admittedly, there is no sanction of any law for the Respondents to take such a stand and, therefore, it is devoid of rules. The respondents are relying upon the undertaking given by the Applicant along with her application for leave and subject to which her leave was sanctioned. The said undertaking says that she should report for duty immediately after the expiry of her leave period and in case she fails to do so, her leave application itself shall be deemed as her letter of resignation from the services of the Corporation with effect from the date of expiry of her sanctioned leave. It is obvious from the wordings of the aforesaid undertaking, itself that it is not a voluntary one and the Applicant under the prevailing circumstances was forced to submit it as the same was the pre-condition unilaterally laid down by the Respondents for sanctioning her Ex-India leave. Further, no undertaking or promise which has not provided for any unforeseen circumstances beyond the control of the person concerned can be considered absolute. Again, the Respondents being a public body cannot prescribe any such undertaking without the support of any rules/regulations made to that effect. In any case, immediately on expiry of her leave, the Applicant has made an application on medical grounds stating that the serious ailments of spondylosis and backache being suffered by her got aggravated due to fall and she was bed ridden. However, the Respondents, invoked her aforesaid undertaking without even considering her changed circumstances and, therefore, the said action on their part is quite arbitrary and illegal.
16. Moreover, the VRS was introduced by the Respondents on 31.12.2007. The Respondents were well aware that the Applicant was on leave. They were also aware that she was interested in voluntary retirement as she had applied for the same under the Scheme introduced by them earlier but it was rejected only because she was not entitled for it. Therefore, they were duty bound to consider her application dated 3.1.2008 for voluntary retirement along with her earlier application for extension of leave submitted on 09.12.2007. Instead, their endeavor was to make her request for voluntary retirement infructuous by arbitrarily rejecting her request for extension of leave invoking the provision of her undertaking given to them. It shall be borne in mind that on 31.12.2007, the date on which the Respondents have introduced the VRS, the Applicant did not cease to be an employee of the Respondents by any of their orders as their order of deemed termination from service itself was issued only on 3.1.2008. On that date her Application for extension of leave submitted on 09.12.2007 was pending. The Respondents did not take any action on it. In any case, before any decision was taken on it, the Applicant has submitted her request for VRS on 3.1.2008. Moreover, in terms of Respondents own Office Order dated 01.11.2001 (supra), only condition with regard to extension of Ex-India leave is that it requires fresh sanction. Further, according to the Respondents circular dated 31.12.2007 intimating about the VRS also, the only disadvantage for the employees who are currently on Extra Special Leave, who have opted for VRS is that they will not be entitled for notice period pay. On the other hand, the Respondents contention in this OA is that since her application for extension of leave was not submitted before the expiry of the leave on 07.12.2007 but it was only after two days on 09.12.2007, her request could not be allowed in terms of their Office Circular dated 01.11.2001. In fact, there are no such conditions at all in their said circular. It only says that extension of Ex-India leave beyond 90 days requires fresh sanction. In our considered view, the Respondents have dealt with both the requests of the Applicant for extension of Ex-India leave and for voluntary retirement under the VRS introduced by them in a mechanical and arbitrary manner ignoring the fact that the said Scheme has been introduced by them for the benefits of both the Respondent-Corporation and the employees concerned. They have also ignored the fact that the Applicant has already put in more than 26 years of service w.e.f. 12.06.1981 to 10.09.2007. As in the case of Nakara (supra), once an employee is entitled for voluntary retirement and it is not denied for any valid reason, the benefits arising therefrom cannot be treated as a bounty or grace by the employer.
17. As regards the delay in filing this OA is concerned, admittedly, the Applicant was on sanctioned leave in Canada up to 07.12.2007. She had stated in her application for condonation of delay that she was bed ridden due to the aggravation of her diseases of spondylosis and back pain after a fall. However, she had applied for voluntary retirement on 03.01.2008, i.e., within time limit prescribed in the Scheme. The Respondents have not considered it at all. They have only considered her earlier request for extension of leave submitted on 09.12.2007 and conveyed their decision on 8.1.2008 but ignored her request for voluntary retirement made on 3.1.2008. An employee who is bed-ridden obviously could not challenge the aforesaid order within the prescribed time limit. It is also seen that the Applicant has also made further representations on 11.01.2008, 06.02.2008 and 27.08.2008 to consider her request for voluntary retirement but the Respondents did not take any action. Therefore, she could not approach this Tribunal within the prescribed time limit and filed the OA only on 15.9.2011. The Respondents have not denied any of her aforesaid contentions.
18. In view of the aforesaid facts and circumstances, we allow this OA as well as the MA for condonation of delay. Consequently, we quash and set aside the impugned Annexure A-1 letter dated 08.01.2008 and direct the Respondents to consider the request of the Applicant dated 3.1.2007 for voluntary retirement strictly in terms of their VRS dated 31.12.2007 treating that she was on Ex-India leave up to 3.1.2008, i.e., the date on which she has submitted her application for voluntary retirement. If the Applicant is found eligible in terms of the aforesaid Scheme, she shall be given the benefits as have been granted to other employees who have been admitted to the voluntary retirement in terms of their aforesaid VRS issued on 31.12.2007. However, we are not inclined to grant the relief sought by her for payment of any interest on the consequential arrears payable to her from 3.1.2007 as prayed for. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. However, in case she is not found eligible for the voluntary retirement for any other reasons, the Respondents are not precluded from taking action against her for absence from duty beyond the sanctioned leave in accordance with the rules, if so advised. There shall be no order as to costs.
(MR SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh