Orissa High Court
Umesh Chandra Pati vs State Of Orissa And Others on 7 April, 2015
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
O.J.C. No. 419 of 2001
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Umesh Chandra Pati ......... Petitioner
-versus-
State of Orissa and others ......... Opp. Parties
For Petitioner : M/s U.K. Samal,
B.R. Barik, S. Jena
For Opp.Parties : M/s B.K. Nayak,
D.K. Mohanty.
(For Opp. 2 and 3)
Mr. B. Senapati
Add. Govt. Advocate (Opp.1)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 18.03.2015 | Date of judgment: 07.04.2015
Dr. B.R.Sarangi, J.The petitioner, who was appointed as a Lecturer in Electrical Department in Indira Gandhi Institute of Technology, Sarang has filed this application seeking for a direction for refund of Rs.1,11,651/-, which has been recovered from him towards salary, 2 leave salary and allowances received during the period from 20.07.1995 to 17.01.1997 along with interest thereon.
2. The short fact of the case in hand is that the petitioner was appointed as Lecturer in Electrical Department in Indira Gandhi Institute of Technology, Sarang on 18.5.1990. The petitioner having been selected, applied to undergo higher studies for M.Tech. Course at IIT, Kharagpur in the quality improvement programme for a period of one and half year as a sponsored candidate. The Principal, Indira Gandhi Institute of Technology, Sarang directed the petitioner to execute an undertaking to the effect that after returning from the higher studies the petitioner shall serve for a period of at least twice the period of deputation in the IGIT, Sarang vide letter dated 7.7.1995. Consequentially, the petitioner executed the bond on 10.07.1995 vide Annexure-3. Thereafter, the Principal relieved the petitioner on 15.7.1995 from his duty to enable him to prosecute his M.Tech. Course at IIT, Kharagpur. After successful completion of the M.Tech. Course at IIT, Kharagpur, the petitioner was relieved from the said institution on 17.1.1997. Consequentially, he submitted his joining report before the Principal, IGIT, Sarang on 22.1.1997. While he was so continuing, pursuant to the open advertisement issued by the Regional Engineering College, Rourkela for the post of Applied Electronics and Instrumentation Engineering, he submitted an application through IGIT, Sarang which was forwarded to the Registrar, REC, Rourkela on 13.5.1997. The petitioner appeared in the 3 interview and having become successful, he was issued with an offer of appointment letter on 29.5.1997 by the REC, Rourkela calling upon him to join between 1.7.1997 to 12.7.1997 as Lecturer in the Department of A.E.I.E. at REC, Rourkela. On receipt of such offer of appointment, the petitioner requested the Principal, IGIT Sarang to relieve him from the post as he has been selected by following due procedure of selection by the REC, Rourkela, which is Govt. College. It has also been indicated that he has executed the bond to serve the institute for a period of three years. Since REC, Rourkela is a Govt. College, the bond be transferred to REC, Rourkela where the petitioner wanted to complete the balance bond period. In support of his contention, he has produced certain circulars/guidelines of the Government regarding the transfer of bond from one Government institution to another institution vide Annexure-8. The Principal, IGIT, Sarang did not accept the resignation of the petitioner and also did not relieve him from IGIT, Sarang. Consequentially the petitioner requested the Principal to deduct Rs.1,11,651/- which includes an amount of Rs.95,850/- and the interest of Rs.15801/-. On receipt of the entire amount, the petitioner was relieved on 20.11.1997 from his duties in order to enable him to join in his new assignment at REC, Rourkela. After joining at REC, Rourkela, the petitioner made several representations to the Principal, IGIT, Sarang for refund of the amount and also relied upon the circular of the Govt. of Orissa in Education and Youth Services Department dated 12.11.1984 vide 4 Annexure-13 stating that the officers who are holding teaching post under any of the five Universities of the State under bond obligation to serve the Government for the specified time shall be permitted to complete the said bond period in any of the Universities. Relying upon such circular, the petitioner sought for refund of the amount. The same having not been acceded to, he filed this application.
3. Mr. U.K. Samal, learned counsel for the petitioner strenuously urged that in view of the circular vide Annexure-13 dated 12.11.1984, the petitioner is entitled to get refund of the amount already deducted while relieving him from the Indira Gandhi Institute of Technology, Sarang to enable him to join as a Lecturer in REC, Rourkela.
4. Mr. B. Senapati, learned Addl. Govt. Advocate for the State, submits that the recovery having been made by the opposite party nos. 2 and 3 pursuant to a bond executed by the petitioner in which the State has no role to play and the opposite party no.2 being a society registered under the Societies Registration Act and governed by its Board of Governors as an autonomous body and since there has been no allegation against opposite party no.1 by the petitioner, the writ petition should be dismissed as against opposite party no.1 while adopting the contention raised by opposite party nos. 2 and 3 in its counter affidavit.
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5. Mr. B.K. Nayak, learned counsel for the opposite party nos. 2 and 3 admitted the fact that the petitioner while continuing under the opposite party no.2 applied for the post of Lectureship under the REC, Rourkela and having been selected, he was relieved from the post subject to recovery of an amount of Rs.1,11,651/- in view of the condition stipulated in the bond executed between the parties. As per the condition stipulated in the bond, the petitioner was allowed to avail the deputation-cum-leave for his M.Tech course for a period of one and half year w.e.f. 15.07.1995 subject to condition mentioned in clauses 1 and 2 of the bond executed in Annexure-C/2. Therefore, there is no illegality and irregularity committed by the authority in recovering the amount in terms of the bond executed between the parties and as such the opposite party nos. 2 and 3 are not liable to refund the said amount as claimed by the petitioner.
6. Considering the contention raised by learned counsel for the parties and after going through the records, the admitted fact is that the petitioner was issued with an offer of appointment as Lecturer on temporary basis in Electrical Department of Indira Gandhi Institute of Technology, Sarang on an initial pay of Rs.2200/- per month in the time scale of pay of Rs.2200-75-2800- 100-4000 pursuant to Annexure-1 dated 18.05.1990. While he was so continuing, he having been selected, opposite party no.3 allowed him to go for higher studies for M. Tech. Course at Indian Institute of 6 Technology, Kharagpur for a period of one and half year in the quality improvement programme as a sponsored candidate by executing a bond to the effect that after returning from the higher studies, the petitioner shall serve for a period of at least twice the period of deputation in the IGIT, Sarang vide letter dated 7.7.1995. Consequentially, the petitioner executed the bond on 10.07.1995 and he was relieved on 15.07.1995 to enable him to prosecute his higher studies in M.Tech Course. After successful completion of the course, the petitioner was relieved by the IIT, Kharagpur by office order dated 17.1.1997. Thereafter, he joined in his former post at IGIT, Sarang on 22.01.1997. While he was so continuing, he was selected for the post of Lecturer in Applied Electronics and Instrumentation Engineering at Regional Engineering College, Rourkela. After being selected, offer of appointment vide Annexure-7 dated 29.5.1997 was issued to him directing him to join between 1.7.1997 to 12.7.1997 at REC, Rourkela. As per the terms and condition, the petitioner was allowed for deputation-cum-study leave for his M.Tech Course at IIT, Kharagpur for a period of one and half year w.e.f. 15.7.1995, which states as follows:
"(1) He has to execute a bond on non-
judicial stamp paper in the prescribed format available in Establishment Section to serve the institute for a period of three years after expiry of his leave as above, or pay the salary that would have been paid to him by the Institute for the above period in lump-sum after expiry of the leave and submit to the Registrar for his relief as per the rule of the Institute.
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(2) He shall be under obligation to submit periodical report (six months) to the Principal on the progress of his studies through his HOD at the I.I.T. Kharagpur and a comprehensive report at the end of the leave."
7. Accepting the aforesaid condition, the petitioner executed the bond in favour of the institute vide Annexure-C/2, wherein it has been specifically mentioned that he is bound to pay Rs.95850/- together with interest thereon from the date of demand at the prevailing bank rate of interest in India per annum, in the event, he failed to rejoin the post originally held by him or refused to serve the institute or any of its subsidiaries for a period equivalent to the period of three years on successful completion of his studies as per clause (e) of the bond. It is further stated that the petitioner has agreed and accepted that if he does not return to the institute service on expiry of the sanctioned deputation-cum-study leave, he shall be deemed to have resigned from the institute service from the day following the date on expiry of the sanctioned deputation-cum-study leave.
8. In view of the condition stipulated in the bond itself, since the petitioner has not discharged his duty for a period of three years in the institute or any of its subsidiaries, he is liable to pay an amount of Rs.95850/- along with interest of Rs.15,801/- in total Rs.1,11,651/- in terms of the condition stipulated in the bond itself. 8
9. „Bond‟ dictionarily means "with a certificate or evidence of debt".
- In Oxford Dictionary, it is defined as:
"a binding engagement, agreement, deed by which person binds himself to pay another; government‟s or public company‟s documentary promise to repay borrowed money".
- In Stroud's Judicial Dictionary, it is defined as:
"an obligation by deed".
- In Black's Law Dictionary, it is defined as:
"a certificate or evidence of a debt on which the issuing company or governmental body promises to pay the bondholders a specified amount of interest for a specified length of time, and to repay the loan on the expiration date. In every case a bond represents debt, its holder is a creditor. Commonly, bonds are secured by a mortgage."
- In Webster's Dictionary of Law, Indian Edn.
(2005), Page-55, it is defined as:
"Bond, usually means:- formal written agreement by which a person undertakes to perform a certain act (as appear is court or fulfil the obligation of a contract) or abstain from performing an act (as committing a crime) with the condition that failure to perform or abstain will obligate the person or often a surety to pay a sum of money or will result in the forfeiture of money put up by the person or surety."
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- In Leak's Law of Contract, it is defined as:
"A bond is a deed wherein a party acknowledgeing himself to be bound or indebted to another in a certain sum of money. It is sometimes called an obligation in a special sense of the word;
and the parties are called respectively the obligor and the oblige."
Considering the above meaning of „bond‟, it is nothing but a promise to pay money at a future date. It is an instrument in writing or written acknowledgement for the payment of debt.
10. Considering Section 2 (5) of the Stamp Act in Jiwanlal Achariya v. Rameshwarlal Agarwalla, AIR 1967 SC 1118, the apex Court held as follows:-
"It is true that a bond for the purpose of the Stamp Act is not the same thing as promissory note. But it appears to us that the word "Bond" is not used in Section 2 (f) in the special sense in which it has been defined in the Indian Stamp Act. It appears to have been used in its general sense that is a deed by which one person binds himself to pay a sum to another person."
11. In State of Kerala v. McDowell & Co. Ltd., AIR 1995 SC 1445, the apex Court held as follows:
"................ In order that a certain document should be bond it was necessary that document itself should create its liability to pay money to another person. Where, however, there is a pre- existing liability and the subsequent document merely evidences the liability of the debtor for the balance of the money due from him, that document would not be a „bond‟ but merely an „agreement‟.10
In order to bring the case within the definition of the word „bond‟ it was necessary that the obligation should be created by the instrument itself."
12. Applying the aforesaid condition of the bond to the present context, since the petitioner on his own commitment executed a bond and deposited the bond amount with interest and got relieved to join in another institute, there is no scope to get refund of the deposited amount as he has not satisfied the condition stipulated therein to the extent that after returning he has not rendered three years of service to the institution.
13. Much reliance was placed on annexure-13, the letter of the Government of Orissa in Education and Youth Services Department dated 12.11.1984 wherein consideration was made with regard to forwarding of the applications of the OES Officers under bond obligation for teaching posts of the University of the State. The general rules was that the officers of the Orissa Education Service, who are under bond obligation to serve the State Government for five years on return from study leave, training etc. are not eligible to apply for any posts under any authority other than the State Government during the period of bond obligation. However, in relaxation of the general rule, Government was pleased to decide that applications of the officers of Orissa Education Service who are under bond obligation may be forwarded for teaching posts under any of the five Universities of the State subject to the condition that in the event of selection they would serve under the University concerned atleast till the expiry of 11 the period of bond obligation and they would not be permitted to apply for any other posts while serving in the University during the unexpired portion of the period of bond obligation. It was further decided that applications from Officers of Orissa Education Service who are under bond obligation for teaching posts under any one of the five Universities of the State may be dealt with in accordance with the above instruction. The said letter dated 12.11.1984 in Annexure-13 is not applicable to the petitioner as he is not an employee under the Orissa Education Service, rather being an employee of the opposite party no.2, a "society" governed by the conditions stipulated by its governing body. Therefore, the government circular is not applicable to the said petitioner. Above all, the petitioner is not an officer of OES cadre so that the said principle evolved in Annexure-13 would be applicable to him.
14. The further contention raised by Mr. U.K. Samal, learned counsel for the petitioner is that since the petitioner prosecuted studies under quality improvement programme, the amount so deducted should be refunded to him. But no such materials has been produced before this Court to indicate that the Government of India has issued any circular with a direction to Government/Private/Government Aided/Autonomous Organization to waive out the bond period and the bond amount relating to deputation-cum-study leave be refunded. Per contra, there is provision under the Quality Improvement Programme rules for all the 12 participants to execute bond so as to avail the study leave with full salary and with condition that such teacher are to serve for a minimum period of double the study leave period, failing which they are to deposit the bond amount. So far as the deduction of the entire amount of CPF of the petitioner is concerned, the petitioner himself has pledged the amount to recover from his CPF accumulation as per the condition stipulated in the bond itself. Therefore, the amount which has been pledged by the petitioner himself has only been recovered from the CPF accumulation to the extent he is liable to pay as per the terms and conditions of the bond.
15. In view of the aforesaid facts and circumstances of the case, since the petitioner is obliged to perform his part of obligation in terms of the bond and as he has not completed the minimum period of double the study leave period, the bond amount has to be recovered from him and as such as per clause (e) of the bond, after returning from the higher studies the petitioner has to serve the institute or any of its subsidiaries for a period equivalent to the period of three years and he having not served the said period, he is liable to refund the amount in respect of pay and allowances, leave salary costs of his traveling and other expenses on account of his selection for higher studies for an amount of Rs.95850/- along with interest of Rs.15801/- totaling Rs.1,11,651/-. 13
16. In that view of the matter, the petitioner having not satisfied the condition stipulated in the bond is not entitled to get refund of the aforesaid amount. Therefore, this Court finds no merit in this application and accordingly the same is dismissed. However, there would be no order as to costs.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 7th April, 2015/Jagdev