Central Administrative Tribunal - Bangalore
Dr Shivakumar Babu M G vs M/O Labour & Employment on 20 August, 2019
1 OA.No.170/01465-01493/2018/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/01465-01493/2018
DATED THIS THE 20TH DAY OF AUGUST, 2019
HON'BLE DR.K.B.SURESH, MEMBER (J)
HON'BLE SHRI C.V. SANKAR, MEMBER (A)
1. Dr. Shivakumar Babu M.G,
S/o late T. Gangaiah,
Aged about 56 years,
#72, III Main, I Stage,
Karnataka Layout,
West of Chord Road,
Bengaluru-560 086.
2. Dr.R. Narasimha Murthy
S/o Ramaiah,
Aged about 61 years,
# 915, III Cross, II Stage,
Rajajinagar,
Bengaluru-560 010
3. Dr. Salma Jabeen,
D/o Ishaq Ahmed Shariff,
Aged about 46 years,
#41/1, 1st Main Road,
First Block, R T Nagar,
Bengaluru-560 032.
4. Dr.Giri T.V
S/o T.V.Venkateshaiah,
Aged about 56 years,
# 16, 9th D Main Road,
Vijayanagar
Bengaluru-560 040.
5. Dr.Kumar H.C
S/o H.Chandrashekar,
Aged about 46 years,
Flat No.B2-301,
White House Apartments,
6th Main, 15th Cross, R.T.Nagar,
Bengaluru-560 032.
2 OA.No.170/01465-01493/2018/CAT/BANGALORE
6. Dr.Nagaraj A Kagali
S/o O.T.Kagali
Aged about 57 years,
# 139, 20-B Main Road,
1st R' Block
Rajajinagar,
Bengaluru-560 010.
7. Dr.G A Latha,
D/o G.N.Anantharamaiah,
Aged about 60 years,
#281, 12th Main, N.T.I Layout,
Vidhyaranyapura,
Bengaluru-560 097.
8. Dr.Balaji Prabhu,
S/o. Praabhu,
Aged about 57 years,
#147, 3rd Floor, 3rd Cross,
3rd Stage, 3rd Block,
Basaveshwarnagar,
Bengaluru-560 079.
9. Dr.T.Narayanaswamy
S/o Thimma Shetty,
Aged about 56 years,
# 106, 6th Cross, 4th Main,
5th Phase,
West of Chord Road,
Mahaganapathinagar,
Bengaluru-560 044.
10. Dr.S.T.Rajappa,
S/o.Thimmaiah,
Aged about 58 years,
#17, Matha Enclave,
M.J.Nagar Road,
Chooda Sandra Huskur Post,
Bengaluru-560 099.
11. Dr.Mayadevi D.K,
D/o D.B.Khoday,
Aged about 53 years,
# 118/A, 24th Cross,
2nd Block, Rajajinagar,
Bengaluru-560 010.
12. Dr.Triveni S
D/o R.Srinivas,
3 OA.No.170/01465-01493/2018/CAT/BANGALORE
Aged about 46 years,
#192/1, 8th Cross,
1st Main Road,
West of Chord Road,
Chamarajapet, Bengaluru-560 018.
13. Dr.Lakshmi Narayana N,
S/o Narayana Swamy,
Aged about 60 years,
#299, Mathru Chaya,
2nd 'F' Main Road,
11th Block, 2nd Stage,
Nagarbhavi
Bengaluru-560 072.
14. Dr.T.S.Muralidhar
S/o T.M.Sathyanarayana
Aged about 54 years,
# 689, 6th Block,
Rajajinagar,
Bengaluru-560 010.
15. Dr.Sudhamani K,
D/o.K.Ramesh Kamath,
Aged about 64 years,
#1 C, Himagiri Apartments,
4th Main, 15th Cross,
Malleshwaram,
Bengaluru-560 055.
16. Dr.Ashok Kumar,
S/o A.K.Appukuttan,
Aged about 57 years,
#004, Gagan Shilp,
1, Ist Main, Ambedkar Layout,
K.B.Sandra, R.T.Nagar,
Bengaluru-560 032.
17. Dr.Usha Rani R,
W/o Giridharan A,
Aged about 57 years,
#B-308, Sahasra Grand Apt.,
Chalekere Main Road,
Kalyannagar Post,
Bengaluru-560 043.
18. Dr.Veda P,
D/o K.Parthasarathy,
Aged about 49 years,
4 OA.No.170/01465-01493/2018/CAT/BANGALORE
# 10, "Sridevi Krupa",
1st Main, 1st Block
R.T.Nagar,
Bengaluru-560 032.
19.Dr.Shashikala P,
D/o N.Puttaswamy,
Aged about 49 years,
#76, 1st Main, K.G.S Layout,
Vijayanagar,
Bengaluru-560 040.
20.Dr.Srinivasaiah
S/o Mudlappa,
Aged about 61 years,
# 13, 4th "D" Cross,
Rajanna Layout , Mallasandra,
T.Dasarahalli Post,
Bengaluru-560 057.
21. Dr.Prabhu Das,
S/o.Esaiah,
Aged about 57 years,
#405/HB-4, Suryanagar Phase-I
Hosur Road,
Bengaluru-560 099.
22. Dr.Imtiaz Ahmed Khan,
S/o Abdul Hameed Khan,
Aged about 55 years,
#4, 2nd Cross, Nandidurga Extn.,
Benson Town,
Bengaluru-560 046.
23. Dr.P.Sandhya,
D/o R.Puttaiah,
Aged about 57 years,
#581, 2nd Main, 8th Cross,
MICO Layout, B.T.M II Stage,
Bengaluru-560 076.
24. Dr.Mangalagowri
D/o Mariyappa,
Aged about 57 years,
#172/A, 8th Main,
4th Block, Rajajinagar,
Bengaluru-560 010.
5 OA.No.170/01465-01493/2018/CAT/BANGALORE
25. Dr.N.Meera Bai,
W/o Late Dr.Shankarappa,
S/o Narasimhaiah,
Aged about 55 years,
#2088/32, 5th Main, 9th Cross,
R.P.C Layout, Vijayanagar,
West of Chord Road,
Bengaluru-560 040
26. Dr.J.C.Panchasheelan
S/o A.Channabasappa,
Aged about 62 years,
#925, II Main, IV Block
Rajajinagar,
Bengaluru-560 010.
27. Dr.Gangadharaiah N,
S/o Narasimhaiah,
Aged about 63 years,
No.49, M.P.Layout,
2nd Cross, Chikkalasandra,
Bengaluru-560 057.
28. Dr.C.Asha,
D/o Chidambaram,
Aged about 64 years,
No.35, "SMRUTHI",
6th E Main Road,
West of Chord Road,
2nd Stage, 2nd phase,
Bengaluru-560 086.
29. Dr.P.Leelavathy,
D/o Parameshwariah,
Aged about 64 years,
No.9, 4th Cross,
Victoria Layout,
Bengaluru-560 047. ..... Applicants
(By Advocates Shri S.P. Kulkarni & Shri V. Thukarama Rao)
Vs.
1. The Union of India,
Represented by its Secretary,
Dept. of Labour & Employment,
Ministry of Labour,
Government of India,
Employees State Insurance Corporation,
6 OA.No.170/01465-01493/2018/CAT/BANGALORE
Shrama Shakthi Bhavan,
Shafi Marg,
New Delhi-110 001.
2. The Direct General,
Employees State Insurance Corporation,
Panchdeep Bhavan,
C.I.G.Marg,
New Delhi-110 001.
3. The Finance Commissioner,
Employees State Insurance Corporation,
Panchdeep Bhavan,
C.I.G.Marg,
New Delhi-110 001.
4. The Medical Commissioner,
Employees State Insurance Corporation,
Panchdeep Bhavan,
C.I.G.Marg,
New Delhi-110 001.
5. The Dean,
E.S.I.C Medical College,
PGIMSR & Model Hospital,
Rajajinagar,
Bengaluru-560 010.
6. Deputy Director (Finance),
E.S.I.C Medical College,
PGIMSR & Model Hospital,
Rajajinagar,
Bengaluru-560 010. ....Respondents
(By Shri M.V. Rao, Senior Panel Counsel for the Respondents)
O R D E R (ORAL)
(HON'BLE DR. K.B. SURESH, MEMBER (J) Heard. The matter seems to be covered by our earlier order in OA No. 809/2013 and other connected cases dated 16.10.2015 which we quote:
"ORDER HON'BLE SHRI RUDHRA GANGADHARAN .....MEMBER (A) We have heard twenty three applications (from OA No. 809/2013 to OA No. 831/2013) as a batch since the cause of action and the reliefs prayed for are common. The applicants are all 7 OA.No.170/01465-01493/2018/CAT/BANGALORE employees of the Employees State Insurance Corporation Model Hospital (ESIC MH), Rajajinagar, Bengaluru, who are aggrieved by the decision of the ESIC Headquarters, New Delhi, to count their date of absorption in the ESIC with effect from 1.1.2006 rather than from 1.4.2003.
2. After filing the OA the applicants filed certain documents on 7.4.2015 as well as a written submission dated 15.9.2015. The substance of all these pleadings is summarized below. The applicants submit they were initially appointed in ESI Hospital, Rajajinagar, coming under the Director, Employees State Insurance Scheme, [ESIS (M)] of the Government of Karnataka (GOK). In line with a policy decision the GOK (4th respondent) issued an order dated 30.1.2003 (Annexure A1) to convert the said hospital into a Model Hospital to be transferred to the ESIC, New Delhi, together with all infrastructure, inventory and equipment, with effect from 1.4.2003. The said order stipulated that the staff currently working there "... are transferred to the ESIC on deputation basis for an initial period of 3 years with option of absorption. The terms and conditions of deputation will be intimated later." It was evidently anticipated that all formalities in respect of absorbing these personnel in the ESIC would be completed within the said period. The draft terms and conditions of absorption were communicated by the GOK to the Director, ESIS (M), in a letter dated 30.06.2005 (Annexure A2) with an instruction to obtain the views of the employees association. This letter states that the draft terms and conditions were part of a letter dated 3.6.2005 sent by the ESIC, New Delhi (Annexure A4). However the letter actually appended to Annexure A2 is dated 9.10.2003 and paragraph 3 of the said draft is different from the one appended to the letter dated 9.10.2003. In the written submission the applicants say that they did not accept the terms and conditions in the draft attached to the letter dated 9.10.2003 and that Annexure A4 was issued thereafter. Paragraphs 1 to 3 of the draft attached to Annexure A4 are reproduced below:
1) Option may be exercised by each employee for absorption in Corporation service or for repatriation to the State Govt. service. This option may be exercised by each employee who has a minimum of 2 years' service left in the lending Department as on 01.01.2006.
2) Mere exercising of option for absorption in Corporation service shall not confer any right on any employee to claim absorption and the decision of the Corporation in the matter would be final based on consideration of due screening.
3) An employee option for absorption has to resign from State Govt. service and his absorption in Corporation service will take effect from the date of deputation in ESI 8 OA.No.170/01465-01493/2018/CAT/BANGALORE Corporation or from the date he joins the duty in the ESI Corporation whichever is earlier (emphasis added).
3. In a letter dated 1.8.2005 (Annexure A5), the Karnataka Employees State Insurance Model Hospital Welfare Association conveyed its views in respect of the terms and conditions, and accepted paragraphs 1 and 3 while opining in respect of paragraph 2 that all employees interested in such absorption should be considered. In a letter dated 8.9.2008 (Annexure A11)the ESIC MH, Rajajinagar, directed the employees to submit their options by 19.9.2008 positively. Thereafter in an order dated 30.8.2009 (Annexure A12) the GOK accorded sanction for absorbing the services of 179 medical officers and other staff of the ESIC (M) Services Department into the ESIC and directed such employees to submit their technical resignation to the GOK. Since this order was silent on the date of absorption, the following query was raised in a letter dated 20.10.2009 by Secretary, Labour Department, GOK (Annexure A13):
............ In the ordinary course, the absorption would take effect from the date of the Govt. Order. Therefore, I am directed to request you to issue clarification as to whether the absorbed Medical officers/employees have been absorbed in the corporation with effect from 1/1/2006? If so, whether the technical resignation submitted by them can be accepted by the Govt. Of Karnataka with effect from 31/12/2005.
In response the Joint Director, ESIC Model MH, Rajajinagar, stated that the absorption would be effective from 1.1.2006 and the technical resignations tendered by the staff may be accepted with effect from 31.12.2005 AN (Annexure A14). The ESI Corporation would therefore bear the pay and allowances of the officers and staff absorbed from 1.1.2006. The formalities related to finalizing the absorption took more time than anticipated and there is substantial amount of correspondence between the State Government and its agency and the ESIC New Delhi on this matter.
5. The ESIC, New Delhi, then issued two orders dated 11.2.2010 (Annexure A15) and 7.7.2010 (Annexure A16) formally absorbing a total number of 57 personnel into the ESIC with effect from 1.1.2006.
This date did not suit the applicants who submitted their representations to the second respondent (ESIC HQ). In an order dated 16.6.2011 (Annexure A7) the ESIC HQ constituted a cell to visit the respective hospitals and settle pending issues in respect of absorption as well as other matters. The cell was expected to complete its work by November, 2011. The applicants submit that they are not aware of what the committee has done so far. They have produced a copy of a letter dated 14/17.10.2013 from the ESIC in answer to an RTI query which states that "no report was submitted".
9 OA.No.170/01465-01493/2018/CAT/BANGALORE
6. The employees association of the ESIC MH submitted representations (Annexure A19 and A20) pressing their case for absorption from 1.4.2003 onward. They submit that the staff of the Asramam Hospital, Kollam, Kerala, were absorbed into the ESIC with effect from the date of their deputation to the ESIC. The ESI Hospital, Rajajinagar, was handed over to the ESIC on 1.4.2003. The staff were placed on deputation to ESIC with effect from the very same date. The applicants had no option at that time but to go on deputation to ESIC. However the terms and conditions in the annexure to the ESIC's letter dated 3.6.2005 (Annexure A4) clearly state that the seniority of an employee absorbed in the Corporation will be determined either from the date of deputation or from the date he joins duty in the ESIC, whichever is earlier. Hence there was a legitimate expectation that the date of absorption would count from 1.4.2003. In Annexure A20 the applicants have pointed out that in a letter no.A-37/18/1/2003-DM (Hqrs) dated 4.9.2006, the ESIC asked to obtain option for absorption to ESIC from those working on deputation with effect from 1.1.2006 subject to the terms and conditions of the letter dated 3.6.2005 (Annexure A4); this went against the condition laid down in paragraph 3 of the said terms and conditions. Hence ESIC's decision to enforce the date of absorption with effect from 1.1.2006 is unilateral and unjust. The designation of ESIC staff, their length of service and question of monetary benefits have been ignored by ESIC. The absorbed staff have been demoted to a junior cadre. The judgments of the Hon'ble Apex Court in (1998) 3 SCC 201 [paragraph 7 of K.Anjaiah and ors V/s. K.Chandraiah and ors] and (2000) 1 SCC 644 (paragraph 15 of Sub-Inspector Rooplal and another V/s. Lt. Governor through Chief Secretary, Delhi and others) have been cited in support of their claim.
7. Since the application was only filed on 5.8.2013 the applicants have filed an MA No.445/2013 for condoning the delay. They submit that the procedure for absorbing the applicants into the ESIC took several years. The actual orders of absorption were issued only in 2010 (Annexure A15 and A16). The employees objected to the date of absorption and in response the ESIC Headquarters constituted a cell on 16.6.2011 (Annexure A17) to go into and settle various pending issues including the date of absorption. The applicants claim that they made representations to this cell with no response. They have made a series of representations to the respondents as well.
8. In their reply statement the respondents point out that in their letter dated 9.10.2003 (Annexure A3) the ESIC had clearly stated that merely exercising the option for absorption in ESIC shall not confer any right to claim absorption, and that the decision of the Corporation in the matter would be final. As per paragraph 3 of the said terms of absorption, an employee opting for absorption had to resign from the state government and his absorption in ESIC would take effect from 10 OA.No.170/01465-01493/2018/CAT/BANGALORE the date of absorption in ESI Corporation or from the date he joined duty in the ESI Corporation whichever is later (emphasis added). Since all the applicants resigned from the State Government with effect from 31.12.2005 they were absorbed with effect from 1.1.2006. The ESIC could not have absorbed such persons until they had actually resigned from the service of the GOK. The respondents claim that even after handing over the management of the hospital the GOK continued to maintain full control over the employees. They have produced a copy of the minutes of a meeting held on 21.10.2003 (Annexure R1) which they claim makes it clear that employees were still under the control of State Government. Moreover, the State Government continued to transfer the officials to various posts in the hospital; they have named five persons who were posted to the ESIC MH on various dates in 2004 and 2006.
9. The respondents submit that Annexure A4 dated 3.6.2005 encloses the draft terms and conditions of absorption of employees with effect from 1.1.2006 and that "this communication was issued in supersession of all the previous communications regarding absorption of employees in this Hospital (emphasis added)." The process of obtaining, examining and disposing of the options of the employees took time since the concerns of the employees also had to be addressed. There were instances of employees initially opting for absorption and thereafter seeking to be repatriated to the GOK. It was made clear vide Annexure A4 that resignation from the State Government services would be effective from 1.1.2006. The applicants were free either to accept or reject this condition. The respondents attribute the delay in finalizing the matter to the State Government.
10. The respondents submit that one Dr. Imtiaz Ahmed Khan who was absorbed into the ESIC with effect from 1.1.2006 submitted an application requesting absorption with effect from 1.1.2003 (Annexure R3). This was rejected in a communication dated 17.7.2012 (Annexure R4) which pointed out that the date of absorption had been finalized by the Board of Directors of ESIC in its 134th meeting in respect of ten different hospitals. The respondents have also submitted a copy of a letter dated 30.5.2013 from ESIC HQ to the Union Ministry of Labour and Employment denying that the date of absorption was decided by the ESIC in a unilateral manner. In its 134th meeting held on 21.12.2005 the ESIC decided to allow option to the State Govt. employees working on deputation in 12 hospitals including ESIC MH, Rajajinagar, to be absorbed in ESIC with effect from 01.01.2006. All the State Government employees while exercising their options knew very well that they will be absorbed in ESIC with effect from a specific date, namely, 1.1.2006. They have referred to the decision of the Guwahati Bench of this Tribunal in OA No.39 of 2008 on exactly the same issue which was decided in favour of ESIC. They clarify that the employees of the ESIC, Asramam, 11 OA.No.170/01465-01493/2018/CAT/BANGALORE Kollam, were absorbed with effect from 1.1.2003 only because the retirement age in the Government of Kerala was then 55, whereas it was 58 or 60 in other States. If the policy to absorb all employees with effect from 1.1.2006 had been applied in the ESIC, Asramam, it would have been unfair, since most of the employees had less than two years service left for retirement as on 1.1.2006. The 134th meeting of the ESIC therefore took a conscious decision to fix 1.1.2003 as the date of absorption of the employees in respect of ESIC, Asaramam. The respondents also submit that when a similar matter was agitated before the Hon'ble High Court of Kerala, the latter decided in W.P.Nos.433, 546, 562 and 577 of 2013 to let the Ernakulam Bench of this Tribunal decide the said matter.
11. A separate statement of objections has been filed on behalf of respondents 3 and 4 who are the Director, Directorate of ESIC Scheme, and the State of Karnataka, Department of Labour, respectively. The third and fourth respondents submit that the ESIC has been lenient enough to absorb the applicants with effect from 1.1.2006 in a case of retrospective absorption, even though the process of absorption concluded only in 2010. The mere fact that the applicants were on deputation from 1.4.2003 onward does not entitle them to be absorbed from that particular date. There was also no provision to absorb them prior to 31.5.2005 unless they resigned from the posts held by them in the State Government. Hence the question of legitimate expectations being disappointed does not arise. However, the pay scales were also not the same. The decisions quoted by the applicants are not relevant to the present case.
12. In their written submission the respondents have stressed that the employees could have entered the service of the ESIC only after they ceased to be employees of the GOK. Their technical resignations took effect only from 31.12.2005; hence they could not have become regular employees of ESIC until 1.1.2006. The preamble to Annexure A12 dated 3.8.2009 had also indicated that the absorption would take effect from 1.1.2006. This order had not been challenged. The process of absorption had been finalized only after considerable correspondence, and the applicants were well aware of developments that took place before the orders of absorption were finally issued. The date of absorption, 1.1.2006, applies uniformly to various hospitals all over India and any change now would create administrative problems in respect of the all-India seniority of absorbed employees and disturb a settled matter. It would also impact the provisional seniority list of employees published on 16.11.2012 with effect from 31.3.2012 (Annexure R8 of additional reply statement).The date of absorption was decided after considerable deliberation and consultation, certainly not in an arbitrary manner. The respondents have submitted a copy of Resolution No.142 dated 22.2.2008 in which the draft terms and conditions of absorption were 12 OA.No.170/01465-01493/2018/CAT/BANGALORE amended. The significant changes relevant to the present matter were:
1. Date of absorption as 01/01/2006 in the existing document has been deleted as the date of absorption in the case of Madhya Pradesh would be the date decided between the State Government and the ESI Corporation.
2. The words, "whichever is earlier" appearing at the end of existing clause-3 have been deleted and only one date of absorption has been provided in the new draft.
Accordingly the second point of the draft in Annexure A4 was amended as follows:
2. Mere exercising of option for absorption in Corporation service shall not confer any right on any employee to claim absorption and the decision of the Corporation in the matter would be final based on consideration of the screening.
The respondents claim that consequently clause 3 of Annexure A4 was modified by a circular issued by the ESIC (Resolution No. 142 dated 22.2.2008). The applicants therefore could not seek absorption with effect from 1.4.2003.
13. Referring to the batch of cases heard in the Ernakulam Bench of this Tribunal the respondents say that in the said matter an order was inadvertently issued by the ESIC HQ, (vide enclosure to Applicant's Memo dated 7.4.2015) showing the date of absorption as 1.1.2003. But no such orders were issued in the case of applicants in the present case. An inadvertent order cannot be cited as a precedent and cannot be construed to replace another well considered decision.
14. The respondents have referred to the judgment in WP (O) No.3464/07 in the Hon'ble High Court of Guwahati wherein the issue regarding absorption of employees of the ESIC hospital Beltola, Guwahati, was closed in the following manner:
In view of the fact that the Writ Petitioner has already taken a decision to absorb Respondents with effect from 01.01.2006, the grievance of the Writ Petitioner in our view is only marginal and did not call for adjudication in this Writ Petition. The Writ Petition is therefore dismissed at the admission stage.
15. The applicants have sought condonation of the delay in filing the OA which they say is about 2 years and 6 months. The applicants were placed on deputation with the ESIC as far back as on 1.4.2003. The process of regularizing their services in ESIC took its own time. The applicants represented against the orders dated Annexure A15 and A16. They also made representation to the committee set up in 13 OA.No.170/01465-01493/2018/CAT/BANGALORE Annexure A17 to resolve various pending issue including the question of absorption. The applicants submit that they are not aware of what the committee has done so far and that their representations have received no response. They submit that the delay is not intentional and that they have a good case on merit.
16. The learned counsel for the respondents has cited the judgment of the Hon'ble Apex Court in Union of India and Others Vs. M.K.Sarkar [(2010) 2 SCC 59], on the question of delay and laches in filing the OA. The reply statement of the 3rd and 4th respondents submits that the cause of action arose as far back as on 11.2.2010 and 7.7.2010 when the abosorption was ordered. The applicant failed to approach the Tribunal at that time. They have also quoted the following judgment of the Hon'ble Apex Court in M.P.Palaniswamy v. A.Krishnan, [(2009) 6 SCC 428]:
30. It cannot be forgotten that this regularization was all along accepted by the present appellants. Once they chose to accept the regularization which was conditional, then it would have to be borne in mind that they have accepted the conditions also. It cannot be countenanced that only the favourable part of the GOMs was accepted by them and the unfavourable part was rejected. If they had to do it, they had to challenge the GOMs immediately.
They did not do it, instead they waited almost for six years. When for the first time, they came out with an Original Application vide OA No.3617 of 1994. Again, when the matters were decided in the Writ Petition Nos. 2911 and 3041 of 1998 on 24.3.1998 and the seniority prayed for on the basis of initial appointment was refused to them, they kept quiet, only to raise the same demand again in 2003 when the Panel was prepared.
17. We have studied the judgments of the Hon'ble Apex Court in a number of other cases where the context and the question of "sufficient cause" have figured. In the case of Collector, Land Acquisition Anantnag and another Vs. Mst.Katiji and others the Hon'ble Supreme Court held that:
3. The legislature has conferred the power to condone delay by enacting Section 51 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:-
14 OA.No.170/01465-01493/2018/CAT/BANGALORE
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...........
18. In N.Balakrishnan Vs. M.Krishnamurthy the Hon'ble Supreme Court held:
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 want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. 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 explanation 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. A court knows that refusal to condone delay would result foreclosing a suitor from putting 15 OA.No.170/01465-01493/2018/CAT/BANGALORE 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
19. In State of Bihar and Others Vs. Kameshwar Prasad Singh and another the Hon'ble Supreme Court held:
F. Constitution of India-Art.136 - Delay/Laches - Delay in filing appeal before Supreme Court - Condonation of - Liberal approach preferable - Sufficiency of cause - Where dismissing the appeal on technical ground of delay would, instead of advancing interests of justice, result in failure of justice inasmuch as by virtue of the impuned judgments of the High Court not only seniority and promotion of the parties before the Court be affected but those of several other incumbents also be affected, held Court would be inclined to condone the delay - Words and Phrases -
"sufficient cause"
18. Order on MA No.445/2013: We are guided by the wisdom of the Hon'ble Apex Court in the cases cited in paragraphs 17 to 19 above. We have therefore looked at the context in which the delay occurred as well the question of sufficient cause. We do not think the delay is due to any mala fides. We believe we would not be doing justice if we were to dismiss the OA simply because it has been filed late. We feel that the present issue is serious enough to warrant consideration of the MA. We feel that it will be in the interest of justice to decide this OA on merits. Accordingly the delay is condoned and the MA is allowed.
19. Having so condoned the delay in filing this application we now come to the main issue agitated by the applicants. We have carefully studied the pleadings of the both parties and considered the arguments of the learned counsel for both sides. We note that the respondents themselves sought the acceptance by the applicants of paragraph 3 of the draft terms and conditions appended to Annexure A4. This paragraph makes it clear that absorption in the service of the Corporation will take effect from the date of deputation or from the date of joining duty in the ESIC whichever is earlier. The Karnataka Employees State Insurance Corporation Model Hospital Welfare Association accepted this condition in its letter dated 1.8.2005 (Annexure A5). The respondents have informed us that this condition was subsequently amended in a circular adopted by ESIC (Resolution No.142 dated 22.2.2008); the words "whichever is earlier" were deleted, and only one date for absorption was provided in the new draft. This amendment took place almost three years after Annexure A4 was presented to the applicants for consideration. There is nothing to indicate that the subsequent resolution No.142 was ever the subject matter of discussion between the employees of the hospital and the management of the ESIC. There is nothing to indicate that this was the subject of discussion between the employees of hospital and 16 OA.No.170/01465-01493/2018/CAT/BANGALORE Government of Karnataka either. It appears that the ESIC shifted goal posts without keeping the applicants in the picture. This was nothing short of arbitrary. The applicants therefore could be pardoned for being under the impression that they would be regularized in the service of Corporation on 1.4.2003, the date from which they were deputation to the ESIC. The respondents argue that the applicants could not have been absorbed into the ESIC until they had formally quit the GOK; we agree. The point is that since the orders of absorption are dated 11.2.2010 (Annexure A15) and 7.7.2010 (Annexure A16) and take affect from 1.1.2006, the respondents cannot argue that the date of absorption cannot be further backdated.
20. The respondents claim that a considered decision was taken in respect of the employees of the Model Hospital at Asramam, Kollam, since the age of retirement for employees of the Government of Kerala was only 55 years. However we see that in subsequent cases the ESIC proceeded to absorb the employees of other hospitals in Kerala that were transferred to ESIC with effect from subsequent dates. We have seen the order of the Ernakulam Bench of this Tribunal in OA No.1175/2013 filed by the employees of the ESIC MH, Udyogamandal, Kerala. The latter were aggrieved because an Absorption Order dated 25.5.2011 which absorbed them with effect from 2.11.2009 was withdrawn by the ESIC, New Delhi; in subsequent orders their date of absorption was changed to 4.3.2011. The respondents in the said OA submitted that the order dated 25.2.2011 was issued by an incompetent authority and therefore had to be withdrawn. After careful consideration the Ernakulam Bench of this Tribunal accepted the prayer of the applicants and ordered on 26.2.2015 that "The applicants will stand absorbed to the ESIC with effect from 2.11.2009 and 3enjoy all consequential benefits."
21. The respondents in the present OA submit that the Absorption Order dated 25.5.2011 in the case of the employees of the ESIC MH, Udyogamandal, was inadvertently issued; however no such mistake has been made in the case of employees of the ESIC MH, Rajajinagar. A striking feature in that case as well as the present one is the fact that the ESIC made certain commitments and then backed out from the same.
22. It is worth noting here that the Hon'ble Guwahati High Court did not go into the merits of the case in respect of date of absorption of employees in WP (C) No. 3464/2007. Instead the Court dismissed the case at the admission stage, noting that the very same subject matter was being heard by the Guwahati Bench of this Tribunal of OA No. 39/2008. In turn the Guwahati Bench of this Tribunal disposed of OA No. 39/2008. "[at admission stage] with direction to the Respondents to treat the copy of present Original Application as a joint representation [of the Applicants] addressed to the Respondents and consider the same/the grievances of the Applicants [as noted in para 1 17 OA.No.170/01465-01493/2018/CAT/BANGALORE above] and pass necessary consequential orders expeditiously, preferably within 120 days from the date of receipt of a copy of this order". The ESIC then issued an order giving 1.1.2006 as the date from which the applicants in the said OA stood absorbed to the service of the Corporation. We do not know whether this decision was challenged thereafter. In any case the said cases by themselves do not substantiate the stand taken by the respondents in the present matter.
23. After carefully considering all relevant matters we conclude that it was not correct to go back on the condition prescribed in paragraph 3 of the draft terms and conditions (Annexure A4 dated 3.6.2005) circulated for acceptance by the respondents by resorting to a much- later circular (Resolution No. 142 dated 22.2.2008). We therefore set aside the office orders dated 11.2.2010 and 7.7.2010 (Annexure A15 and A16) in respect of the applicants alone. The applicants in all the OAs considered herein will stand absorbed to the ESIC with effect from 1.4.2003 and enjoy all consequential benefits. The OA is accordingly disposed of. No costs."
2. After this, the matter went to the Hon'ble High Court in WP No. 1596/2017 and other connected cases which was disposed off by the Hon'ble High Court vide order dated 09.02.2017 which we quote:
"ORDER All petitions are directed against the order dated 16.10.2015 passed by the Tribunal whereby, the Tribunal, for the reasons recorded in the order, has set aside the communication issued by the petitioner-herein and has directed to treat the original-applicants private respondents herein as stood absorbed from 1.4.2003 and consequential benefits.
2. We have heard Mr.Narasimha Holla, learned counsel appearing for the petitioner and Mr.Shankar G.Pandit appearing by caveat for R4 and Mr.D.Nagaraj, learned AGA appearing for R-3.
3. The contention raised on behalf of the petitioner was that, by the impugned order the Tribunal considered the earlier correspondence between the State Government and ESI ultimately decided that the absorption shall be from 1.4.2003. The learned counsel submitted that the absorption can be only when one has left the Government service. Until the resignation is accepted by the Government, ESI- petitioner could not absorb the private respondents. He submitted that offer was made prescribing various terms and 18 OA.No.170/01465-01493/2018/CAT/BANGALORE conditions and the same was forwarded with the letter dated June 3, 2005. If the agreement is considered in totality, it would mean that the employee concerned has to leave the Government service and has to opt for ESI services. It is only after the Government servant has left, absorption can be considered and therefore date given on 1.1.2006 is correct and the Tribunal ought not have interfered with the same.
4. Whereas, learned counsel Mr.Shankar G.Pandit, appearing for private respondent no.4 by caveat submitted that in the last proposed draft agreement which was forwarded with the letter dated 3.6.2005, it is clear that the date was to be considered for absorption "whichever is earlier". Therefore, the date of resignation will be inconsequential. As per him, the Tribunal has rightly considered the matter and this Court may not interfere.
5. We further put a query to the learned counsel for the petitioner that whether the petitioner has granted seniority to the private respondents who are absorbed with ESI and if yes, from which date but learned counsel stated he has to get the information for the seniority given.
6. We may at the outset record that the Tribunal in the impugned order has also reproduced the relevant terms of the draft agreement which for ready reference reads as under:
"1) Option may be exercised by each employee for absorption in Corporation service or for repatriation to the State Govt.
service. This option may be exercised by each employee who has a minimum of 2 year's service left in the lending Department as on 01.01.2006.
2) Mere exercising of option for absorption in Corporation service shall not confer any right on any employee to claim absorption and the decision of the Corporation in the matter would be final based on consideration of due screening.
3). An employee opting for absorption has to resign from Stat Govt. service and his absorption in Corporation service will take effect from the date of deputation in ESI Corporation or from the date he joins the duty in the ESI Corporation whichever is earlier (emphasis added)."
7. After considering the same, the Tribunal at para.19 observed thus:
"19. Having so condoned the delay in filing this application we now come to the main issue agitated by the 19 OA.No.170/01465-01493/2018/CAT/BANGALORE applicants. We have carefully studied the pleadings of the both parties and considered the arguments of the learned Counsel for both sides. We note that the respondents themselves sought the acceptance by the applicants of paragraph 3 of the draft terms and conditions appended to Annexure A4. This paragraph makes it clear that absorption in the service of the Corporation will take effect from the date of deputation or from the date of joining duty in the ESIC whichever is earlier. The Karnataka Employees State Insurance Corporation Model Hospital Welfare Association accepted this condition in its letter dated 1.8.2005 (Annexure A5). The respondents have informed us that this condition was subsequently amended in a circular adopted by ESIC (Resolution No.142 dated 22.2.2008);
the words "whichever is earlier" were deleted, and only one date for absorption was provided in the new draft. This amendment took place almost three years after Annexure A4 was presented to the applicants for consideration. There is nothing to indicate that the subsequent resolution No.142 was ever the subject matter of discussion between the employees of the hospital and the management of the ESIC. There is nothing to indicate that this was the subject of discussion between the employees of hospital and Government of Karnataka either. It appears that the ESIC shifted the goal posts without keeping the applicants in the picture. This was nothing short of arbitrary. The applicants therefore could be pardoned for being under the impression that they would be regularized in the service of Corporation on 1.4.2003, the date from which they were deputation to the ESIC. The respondents argue that the applicants could not have been absorbed into the ESIC until they had formally quit the GOK; we agree. The point is that since the order of absorption are dated 11.2.2010 (Annexure A15) and 7.7.2010 (Annexure A16) and take effect from 1.1.2006, the respondents cannot argue that the date of absorption cannot be further backdated."
8. The Tribunal has also taken note of the position prevailing in the other States for which of course, the learned counsel for the petitioner states that they were to be different situations. In our considered view, even if keeping aside fact situation prevailing in the other States and decision of the other Benches of the Tribunal, the matter is considered independently then also, we are unable to appreciate and accept the stand of the petitioner.
9. If absorption and seniority both are reconciled, the resultant effect would be that clause (3) of draft terms of absorption provides that once the employee has opted for absorption and resigned from 20 OA.No.170/01465-01493/2018/CAT/BANGALORE such service, his absorption in the Corporation will take effect from the date of deputation in ESI Corporation or from the date he joins the duty in ESI Corporation whichever is earlier. Therefore, for absorption, the requirement is that he has to resign from State Government service. But once he has opted to resign and the resignation is accepted, the date of absorption is to take effect from the date of deputation and the date on which he joins the ESI Corporation since it is with the words 'whichever is earlier'. Under the circumstances, it is not possible to interpret that until the resignation takes effect, the date of absorption can not be finalized. It is also not in dispute that the private respondents who were before the Tribunal did not join the services with ESI and deputation in any case on 1.4.2003. If the clause (3) is independently considered then also, the date of deputation and joining services which ever is earlier is to be treated as the date of absorption.
10. So far as determination of seniority is concerned, clause (4) of terms of agreement (absorption) provides for preservation of the seniority existing in the State Government prior to the absorption and it also provides for the different method of maintaining institutional seniority or all India seniority. In our view, it has relevance only for the purpose of reservation of the seniority in the State Government and maintenance of the seniority in the institutional seniority list as well as all India seniority. Such points were not agitated before the Tribunal. Hence, the deemed absorption as observed by the Tribunal with effect from 1.4.2003 cannot be said to be erroneous view.
11. In view of the aforesaid read with the reasons recorded by the Tribunal, we do not find that a case is made out for interference in exercise of power under Article 227 of the Constitution.
12. Under the circumstances, no case is made out for interference. Hence, the petition is dismissed."
3. Thereafter apparently the matter was taken to the Hon'ble Apex Court vide SLP No. 4698/2018 which was disposed off vide order dated 26.03.2018 which we quote:
"S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS SPECIAL LEAVE PETITION (CIVIL) Diary No.4698/2018 (Arising out of impugned final judgment and order dated 09-02-2017 in WP No.1596/2017 and WP Nos.5760-81/2017 passed by the High Court Of Karnataka At Bengaluru) 21 OA.No.170/01465-01493/2018/CAT/BANGALORE EMPLOYEES STATE INSURANCE CORPORATAION Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (FOR ADMISSION and I.R. and IA No.36080/2018-CONDONATION OF DELAY IN FILING) Date : 26-03-2018 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE R.K. AGRAWAL HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE For Petitioner(s) Mr. Santhosh Krishnan, Adv.
Mr. Yakesh Anand, Adv.
Mr. Sanjeev Anand, AOR For Respondent(s) Mr. Jayanth Muthraj, Adv.
Mr. Nishe Rajen Shonker, AOR Ms. Anu K. Joy, Adv.
Ms. Alia Anvar, Adv.
UPON hearing the counsel the Court made the following ORDER There is an inordinate delay of filing the Special Leave Petition for which no sufficient cause has been shown by the learned counsel for the petitioner.
Therefore, the Special Leave Petition(s) is/are dismissed on the ground of delay.
Pending application, if any, stands disposed of."
4. Therefore, the applicants submit that the matter had become final.
They also rely on Annexure-A6 No. A-37(18)-1/2007-Rajaji Nagar/Med. VI dated 17.09.2007 which we quote:
"EMPLOYEES' STATE INSURANCE CORPORATION PANCHDEEP BHAWAN, CIG ROAD, NEW DELHI No. A-37(18)-1/2007-Rajaji Nagar/Med. VI Dated 17.09.2007 22 OA.No.170/01465-01493/2018/CAT/BANGALORE The Medical Superintendent ESIC Model Hospital, Rajajinagar Bangalore Sub: Absorption of State Govt. Doctors working in ESIC Model Hospital, Rajaji Nagar, Bangalore.
Ref: No. 532/A/12/27/06-07 dated 13/6/2007.
Sir, I am directed to convey the approval of the Director General for absorption of State Govt. Medical Officers working in ESIC Model Hospital, Rajaji Nagar with effect from 1/1/2006 in the post indicated against each.
Sl Name of the Present Date of Pay scale as on Absorption in the ESIC
No Doctor & date of designati appointment 1/1/2006 in State
birth on in govt.
State
Govt.
Cadre Pay scale
1. Dr P.Leelavathi Surgeon 11/11/80 9580-200-14200/- CMO 12000-375-16500
01/10/1954
2. Dr.K.Sudhamani Surgeon 28/10/83 9580-200-14200/- CMO 12000-375-16500
26/10/1953
3. Dr.C.Asha Surgeon 23/10/83 9580-200-14200/- CMO 12000-375-16500
08/10/1954
4. Dr.R.Usha Rani Surgeon 01/04/85 9580-200-14200/- CMO 12000-375-16500
05/08/1961
5. Dr.M.G.Shiva Surgeon 11/06/86 9580-200-14200/- CMO 12000-375-16500
Kumar Babu
10/07/1962
6. Dr.M.Srinivasaiah Surgeon 04/06/86 9580-200-14200/- CMO 12000-375-16500 01/07/1957
7. Dr.N.Gangadharai Surgeon 11/06/86 9580-200-14200/- CMO 12000-375-16500 ah 08/04/55
8. Dr.G.A.Latha Dy. 22/11/89 8000-200-13440/- IMO 10000-325-15200 09/06/1958 Surgeon Gr.I
9. Dr.P.Sandhya Dy. 11/06/86 8000-200-13440/- IMO 10000-325-15200 06/10/1960 Surgeon Gr.I
10. Dr.S.T.Rajappa Dy. 21/11/89 8000-200-13440/- IMO 10000-325-15200
05.10.1960 Surgeon Gr.I
11. Dr.G.C.Shankarap Dy. 14/11/89 8000-200-13440/- IMO 10000-325-15200 pa Surgeon Gr.I 12/05/1960
12. Dr.Prabhu Das Dy. 11/06/86 8000-200-13440/- IMO 10000-325-15200 28/10/1961 Surgeon Gr.I
13. Dr.N.Lakshmi Dy. 21/08/86 8000-200-13440/- IMO 10000-325-15200 Narayana Surgeon Gr.I 22/12/1957
14. Dr.Venkatashiva Dy. 01/09/81 8000-200-13440/- IMO 10000-325-15200 Reddy Surgeon Gr.I 23 OA.No.170/01465-01493/2018/CAT/BANGALORE 01/07/1950
15. Dr.Imtiaz Ahmed Dy. 13/03/91 8000-200-13440/- IMO 10000-325-15200 Khan Surgeon Gr.I 19/10/63
16. Dr.R.Narasimha IMO 11/06/86 7400-200-13120/- IMO 8000-275-13500 Murthy Gr.II 04/05/1958
17. Dr.J.C.Panchashe IMO 14/11/89 7400-200-13120/- IMO 8000-275-13500 elan Gr.II 13/09/1955
18. Dr.T.S.Muralidhar IMO 20/11/89 7400-200-13120/- IMO 8000-275-13500 14/04/1964 Gr.II
19. Dr.P.Balaji IMO 21/11/88 7400-200-13120/- IMO 8000-275-13500 09/06/1961 Gr.II
20. Dr.T.Narayana IMO 07/08/95 7400-200-13120/- IMO 8000-275-13500 Swamy Gr.II 07/03/1962
21. Dr.P.Shashikala IMO 08/10/97 7400-200-13120/- IMO 8000-275-13500 09/07/1969 Gr.II
22. Dr.H.C.Hanumant IMO 24/11/97 7400-200-13120/- IMO 8000-275-13500 haiah Gr.II 20/07/1967
23. Dr.Jayashree IMO 25/11/97 7400-200-13120/- IMO 8000-275-13500 V.Kuravathi Gr.II 10/06/1963
24. Dr B.K.Bhaskar IMO 27/11/97 7400-200-13120/- IMO 8000-275-13500 30/08/1963 Gr.II
25. Dr.P.Veda IMO Repatriated to State Govt.
25/06/1969
26. Dr.Nagaraj. A IMO 01/12/97 7400-200-13120/- IMO 8000-275-13500 Kagali Gr.II 05/05/1961
27. Dr.V.Prasanna IMO 29/07/99 7400-200-13120/- IMO 8000-275-13500 30/07/1971 Gr.II
28. Dr.S.Triveni IMO 13/10/97 7400-200-13120/- IMO 8000-275-13500 25/05/1972 Gr.II
29. Dr.N.Shamkiran IMO 22/04/01 7400-200-13120/- IMO 8000-275-13500 21/04/1969 Gr.II
30. Dr.Salma Jabeen IMO 22/04/01 7400-200-13120/- IMO 8000-275-13500 15/05/1972 Gr.II
31. Dr.B.J.Radhika IMO 20/09/01 7400-200-13120/- IMO 8000-275-13500 Devi Gr.II 19/7/1973
32. Dr.Ashok Kumar IMO 23/11/89 7400-200-13120/- IMO 8000-275-13500 16/10/1961 Gr.II
33. Dr.H.C.Kumar IMO 05/01/02 7400-200-13120/- IMO 8000-275-13500 05/01/72 Gr.II
34. Dr.Mayadevi IMO 04/12/97 7400-200-13120/- IMO 8000-275-13500 06/07/1965 Gr.II
35. Dr.T.V.Giri IMO 17/11/89 7400-200-13120/- IMO 8000-275-13500 04/11/1962 Gr.II The absorption of these Doctors is subject to vigilance clearance from the State Govt.
24 OA.No.170/01465-01493/2018/CAT/BANGALORE
1. The Medical Superintendent is advised to convey the decision of the Competent Authority to absorb them by indicating the post in which they are absorbed and the pay scale of that post seeking unconditional acceptance of the offer in writing.
2. The Medical Superintendent will also obtain technical resignation from the individual Doctors and forward the same to the State Govt. for acceptance.
3. The Medical Superintendent may work out the basic pay in the post in which they are absorbed on the date of absorption in consultation with the concerned Jt. Director (Fin.) and submit the same for the approval of the Financial Commissioner.
4. The Medical Superintendent is also advised to write immediately to the State Govt. to submit the Confidential Reports, Vigilance Clearance and Seniority list as on the date of absorption in respect of all these Doctors who are proposed to be absorbed on priority.
5. The Medical Superintendent may also bring to the knowledge of the Doctors in writing that no private practice is allowed in respect of these absorbed Doctors as they are entitled to Non-Practice Allowance.
6. Since all the State Govt. Doctors who are being absorbed in ESIC have opted for institutional seniority, they will be eligible for promotions only upto CMO grade.
7. The Medical Superintendent should ensure that the revision of pay, if any, made by the State Govt. after the date of absorption i.e., 1/1/2006 should be excluded for arriving at the basic pay at the time of pay fixation. It may also be ensured that pay drawn in the regular post held under the State Govt. should only be taken into account at the time of fixation.
Yours faithfully, Sd/-
(C.R. Nageswaren) Joint Director (Med) For Director General"
5. Apparently the Non-Practicing Allowance had been allowed by the respondents from 01.01.2006 onwards. We had carefully gone through this with the help of both the counsels and found that this is an unconditional grant which indicates that all these absorbed doctors are entitled to Non-
25 OA.No.170/01465-01493/2018/CAT/BANGALORE Practicing Allowance. But then the fact remains that before their actual and formal absorption they were working for the department from the year 2003 itself. These aspects were considered by us in the OA above mentioned and we had held very categorically that from the year 2003 itself they are eligible for this Non-Practicing Allowance as it is a deemed and implied terms of contract which had gone up to the Hon'ble Apex Court and had become final.
6. At this point of time Shri M.V. Rao, learned counsel for the respondents, raises an objection that these people have not served on the respondents the non-practicing certificate. Therefore, we had asked him whether the department had asked for it. The answer is no. Further the learned counsel for the applicants points our attention to Annexure-A55 No. 532/E/11/16/2019/RTI/Vol-I dated 11.04.2019 which we quote:
"EMPLOYEES' STATE INSURANCE CORPORATION MODEL HOSPITAL Rajajinagar, Bangalore 560 010 Ministry of Labour, Govt. Of India e-mail:[email protected] Ph No. 23325130/23320271 Fax: 23325130 No. 532/E/11/16/2019/RTI/Vol-I Date: 11.04.2019 Sri. Sarvottam Swamy 118/A, 24th Cross, 2nd Block, Rajajinagar, Bengaluru 560 010 Sir, Sub: Furnishing the information under RTI Act, 2005 - reg.
******* 26 OA.No.170/01465-01493/2018/CAT/BANGALORE In response to your RTI application No. Nil dated 07.03.2019 which was received on 07.03.2019, the information pertaining to this hospital is furnished as under.
Sl Requisite Information Reply/Information No 1 Non-Practising Certificate/letters None of the medical submitted by all Medical Officers officers have submitted drawing Non-Practising Allowance the Non-Practising employed in ESIC Model Hospital & Certificate. PGIMSR, Rajajinagar, Bengaluru from 01.01.2003 to 06th March 2019.
2 Search Report conducted against all No search report is Medical Officers drawing Non- conducted. Practising Allowance employed in ESIC Model Hospital & PGIMSR, Rajajinagar, Bengaluru during the period from 01.01.2003 to 06th March 2019, with any type of documentary evidences to ascertain engaged activities into private medical practice. 3 Office Memorandum individually No Offie Memorandum addressed to the Absorbed Medical is issued Officers; from State ESIS (M) into ESIC Model Hospital & PGIMSR, Rajajinagar, Bengaluru directing them to submit Non Practicing certificate in terms of ESIC Headquarters letter No. U-11/11/2005Med-VI (Vol-II) dated 24.09.2010 The name and address of the Appellate Authority is Dr. Jeetendra Kumar JM, Dean, ESIC-MC, PGIMSR & Model Hospital, Rajajinagar, Bangalore 560 010.
Yours faithfully, Sd/-
(JYOTI PRAKASH) CENTRAL PUBLIC INFORMATION OFFICER"
7. It is clear from the answer given by the respondents that none of the medical officers have ever submitted a non-practicing certificate. It is also clear that no search or evidence collection was done by the respondents ever to see whether any of the doctors are practicing in violation of the 27 OA.No.170/01465-01493/2018/CAT/BANGALORE proposition mentioned above. It is also clear that no Office Memorandum is seen issued in this regard. Therefore, the legitimate expectation of the applicants seems to be satisfied as well as the respondents are barred by legal estoppel from claiming that the doctors need to give a non-practicing certificate as such a system has not been in vogue in the department from the very beginning. But then that is not to say that they cannot have a fresh system on this from a prospective date from which they need to give a non-
practicing certificate. The applicants are eligible to get the non-practicing allowance from the year 2003 without regard to them not submitting non-
practicing certificate which is not in vogue till now and not implemented at all. Therefore, all the recovery orders are hereby quashed and if any amounts had been recovered it shall be paid back within two months without interest and thereafter with interest at the rate of 12%.
8. The OA is allowed as above. No order as to costs.
(C.V. SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ksk/
28 OA.No.170/01465-01493/2018/CAT/BANGALORE
Annexures referred to by the applicant in OA No. 170/01465-01493/2018 Annexure A1:Copy of the proceedings of Government of Karnataka dated 31.03.2003 Annexure A2:Copy of the letter dated 16.10.2004 Annexure A3:Copy of the representation dated 12.10.2004 Annexure A4:Copy of the OM dated 05.01.1994 Annexure A5:Copy of the absorption order dated 03.06.2005 Annexure A6:Copy of the approval of absorption order dated 17.09.2007 Annexure A7:Copy of the communication dated 09.11.2007 Annexure A8:Copy of the OM dated 25.03.2008 Annexure A9:Copy of the order dated 11.02.2010 Annexure A10:Copy of the proposal dated 03.07.2010 Annexure A11:Copy of the approval dated 24.09.2010 Annexure A12:Copy of the pay fixation order dated 01.04.2011 Annexure A13:Copy of the final order dated 16.10.2015 in OA No. 809/2013 Annexure A14:Copy of the order dated 09.02.2017 in WP No. 1596/2017 Annexure A15:Copy of the order dated 26.03.2018 in SLP No. 4698/2018 Annexure A16:Copy of the office order dated 25.02.2016 Annexure A17:Copy of the office order dated 25.02.2016 Annexure A18:Copy of the representation dated 03.12.2016 Annexure A19:Copy of the representation dated 30.01.2017 Annexure A20:Copy of the representation dated 03.08.2017 Annexure A21:Copy of the show cause notice dated 07.12.2017 Annexure A22:Copy of the reply submitted by one of the applicant to the show cause notice Annexure A23:Copy of the representation dated 28.12.2017 Annexure A24:Copy of the order dated 20.07.2018 Annexure A25:Copy of the order dated 27.08.2018 issued to Applicant No.1 Annexure A26:Copy of the order dated 27.08.2018 issued to Applicant No.2 Annexure A27:Copy of the order dated 27.08.2018 issued to Applicant No.3 Annexure A28:Copy of the order dated 27.08.2018 issued to Applicant No.4 Annexure A29:Copy of the order dated 27.08.2018 issued to Applicant No.5 Annexure A30:Copy of the order dated 27.08.2018 issued to Applicant No.6 Annexure A31:Copy of the order dated 27.08.2018 issued to Applicant No.7 Annexure A32:Copy of the order dated 27.08.2018 issued to Applicant No.8 Annexure A33:Copy of the order dated 27.08.2018 issued to Applicant No.9 Annexure A34:Copy of the order dated 27.08.2018 issued to Applicant No.10 Annexure A35:Copy of the order dated 27.08.2018 issued to Applicant No.11 Annexure A36:Copy of the order dated 27.08.2018 issued to Applicant No.12 Annexure A37:Copy of the order dated 27.08.2018 issued to Applicant No.13 Annexure A38:Copy of the order dated 27.08.2018 issued to Applicant No.14 Annexure A39:Copy of the order dated 27.08.2018 issued to Applicant No.15 29 OA.No.170/01465-01493/2018/CAT/BANGALORE Annexure A40:Copy of the order dated 27.08.2018 issued to Applicant No.16 Annexure A41:Copy of the order dated 27.08.2018 issued to Applicant No.17 Annexure A42:Copy of the order dated 27.08.2018 issued to Applicant No.18 Annexure A43:Copy of the order dated 27.08.2018 issued to Applicant No.19 Annexure A44:Copy of the order dated 27.08.2018 issued to Applicant No.20 Annexure A45:Copy of the order dated 27.08.2018 issued to Applicant No.21 Annexure A46:Copy of the order dated 27.08.2018 issued to Applicant No.22 Annexure A47:Copy of the order dated 27.08.2018 issued to Applicant No.23 Annexure A48:Copy of the order dated 27.08.2018 issued to Applicant No.24 Annexure A49:Copy of the order dated 03.09.2018 issued to Applicant No.25 Annexure A40:Copy of the order dated 27.08.2018 issued to Applicant No.26 Annexure A51:Copy of the order dated 03.09.2018 issued to Applicant No.27 Annexure A52:Copy of the order dated 03.09.2018 issued to Applicant No.28 Annexure A53:Copy of the order dated 03.09.2018 issued to Applicant No.29 Annexure A54:Copy of the OM dated 02.03.2016 Annexures with Reply Statement Annexure R1 Copy of the undertaking given by applicant No. 7 & 14 Annexure R2 Copy of the letter dated 25.10.2013 Annexure R3 Copy of the letter dated 16.06.2016 Annexure R4 Copy of the letter dated 13.05.2016 Annexure R5 Copy of the order of the Supreme Court in Civil Appeal No. 3500 of 2006 dated 29.07.2016 Annexure R6 Copy of the order of Central Administrative Tribunal, Principal Bench in OA No. 3791/2015 dated 16.11.2018 Annexures with rejoinder Annexure A55:Copy of the information supplied by ESIC under RTI Act dated 11.04.2019 Annexure A56:Copy of the pay fixation order of Dr. S. Thriveni Annexure A57:Copy of the pay fixation order of Dr. M. Srinivasaiah Annexure A58:Copy of the pay fixation order of Dr. S.T. Rajappa Annexure A59:Copy of the pay fixation order of Dr. Salma Jabeen 30 OA.No.170/01465-01493/2018/CAT/BANGALORE Annexure A60:Copy of the notification dated 19.10.2006 Annexure A61:Copy of the letter dated 17.12.2009 Annexure A62:Copy of the clarification dated 20.12.2016 Annexure A63:Copy of the clarification dated 16.03.2017 Annexure A64:Copy of the relevant portion of KCSR 1957 Annexure A65:Copy of the pay slip dated 22.01.1990 of Dr. Ashok Kumar Annexure A66:Copy of the pay slip dated 05.06.1992 of Dr. M. Srinivasaiah *****