Central Administrative Tribunal - Delhi
Dr. Aman Dua S/O Rajinder Pal vs All India Institute Of Medical Sciences on 8 October, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI T.A. NO.354/2009 This the 8th day of October, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Dr. Aman Dua S/O Rajinder Pal, R/O 2049 First Floor, Oatram Lane, Kingsway Camp, New Delhi. Applicant ( By Shri Anirudh Sharma, Advocate ) Versus All India Institute of Medical Sciences through its Director, Ansari Nagar, New Delhi. Respondent ( By Shri Mukul Gupta with Shri Sanjiv Joshi, Advocates ) O R D E R Justice V. K. Bali, Chairman:
Dr. Aman Dua, the applicant herein, filed WP(C) No.6666/2008 before the High Court of Delhi challenging office memorandum dated 21.8.2008 vide which his services were terminated w.e.f. 15.1.2008 (F.N.) on account of his unauthorized absence. The applicant has sought some other reliefs as well, which, in the limited controversy as survives on date, may not be relevant to mention. The writ petition came up for hearing before the Honble Single Bench of the High Court on 12.9.2008. Two civil misc. applications also came up for consideration before the High Court. Whereas, the one pertaining to seeking amendment in the writ petition may not be relevant, the other dealing with stay sought for by the applicant would need specific mention. Notice was given to the respondent on the writ. Shri Mukul Gupta accepted notice on behalf of the respondent. Arguments were heard at length and vide a detailed order the applicant was allowed to discharge duties till expiry of his tenure up to 3.10.2008 without prejudice to the rights and contentions of parties on merits of the case. Inasmuch as, relevant facts and basic contentions raised by the applicant have been mentioned in the order aforesaid, we would prefer to reproduce the said order instead of culling out the facts from the Application, and then referring to the contentions that have been raised by the learned counsel representing the applicant, and which, we may mention, are only reiteration of what was urged before the learned single Judge of the High Court. Relevant order dealing with stay application reads, thus:
The petitioner seeks interim stay against the operation of OM No.F.10-197/05-Acad-I dated 21.08.2008 by which his service as Senior Resident in AIIMS stand terminated w.e.f. 15.01.2008.
Arguments on these applications were heard in the pre-lunch session and the case was passed over for remaining hearing at the request of Mr. Mukul Gupta, appearing on behalf of the respondent. Remaining arguments on stay application have been heard in the post-lunch session.
The petitioner was appointed as a Senior Resident in AIIMS initially for a period of three months on ad-hoc basis vide appointment letter dated 03.10.2005 (Annexure P-1 at page 20 of the amended petition). In terms of clause 1 of his said ad-hoc appointment, he was not entitled to any regular appointment unless he was selected in the meanwhile for appointment on regular basis by the competent authority. The respondent vide its letter dated 03.01.2006 (Annexure P-2 at page 22 of the amended petition) conveyed to the petitioner sanction of the Director for extension of his ad-hoc appointment till 03.10.2008 on the same terms and conditions as contained in his initial appointment letter referred above. While he was working as Senior Resident with the respondent, the petitioner applied for permission to go Brisbane, Australia for a fellowship programme in Adult Joint Reconstruction and Bone and Cartilage Transplant and had applied for leave for the period from 15.01.2008 to 15.07.2008. The respondent vide its letter dated 31.07.2007 (Annexure P-3 at page 23 of the amended petition) sanctioned extraordinary leave for six months from 15.01.2008 to 15.07.2008 and granted permission to the petitioner to attend the fellowship programme at Brisbane, Australia. The fellowship programme for which the permission was granted to the petitioner was for a period of six months. However, Dr. Morgan, Fellowship Supervisor in Australia vide his letter dated 14.07.2008 (Annexures P-8 to P-10 at pages 32 to 34 of the amended petition) wrote to the concerned authorities of the respondent that the petitioner was involved in a number of very important clinical research projects and that he would be required for the said projects till the end of August, 2008 and therefore requested the concerned authorities of the respondent to allow the petitioner to remain in his post of fellowship programmer till the end of August, 2008. The petitioner also sent an E-mail to the Head of the Orthopedic Department which is Annexure P-11 at page 35 of the amended petition intimating that he was sending an application for extension of his leave on account of unexpected development. The petitioner sent a formal request for extension of leave till end of August, 2008 vide his application Annexure P-12 at page 30 of the amended petition. The respondent, however, vide its letter dated 31.07.2008 (Annexure P-19 at page 47 of the amended petition) sent to the petitioner at his Ludhiana and Delhi address informed him that the Chief, Trauma Centre has not recommended leave for 46 days from 16.07.2008 to 31.08.2008 due to his requirement for patient care in the Department and accordingly required the petitioner to report for duty within 7 days from the date of issue of this memo. The said letter of the respondent dated 31.07.2008 was not received by the petitioner till he came back after completing his fellowship programme on 01.09.2008. He got the copy of the said letter for the first time on 04.09.2008 through his parents who are residing in Ludhiana.
The petitioner before he had received the aforementioned communication of the respondent dated 31.07.2008 was asked by the concerned authorities of the respondent to tender resignation under threat of terminating his services. The petitioner did submit his resignation on 02.09.2008 which is annexure P-20 at page 48 of the amended petition.
The petitioner was aggrieved from communication dated 31.07.2008 received by him through his parents on 04.09.2008 and under the circumstances, under which he was compelled to submit his resignation on 02.09.2008, he therefore filed the present writ petition seeking to challenge the communication of the respondent dated 31.07.2008 and within one hour of his filing the said petition, he received the impugned letter dated 21.08.2008 terminating his services w.e.f. 15.01.2008 from the respondent on 10.09.2008. The petitioner immediately made consequential amendments in his writ petition and has challenged the said termination order also.
The tenure for which the petitioner was appointed as Senior Resident in AIIMS is coming to an end on 03.10.2008. Hardly 20-21 days are left in expiry of the tenure of the petitioner. The petitioner has been terminated from service vide impugned termination letter dated 21.08.2008 before expiry of his tenure. The moot question before the court is what interim relief can be granted to the petitioner in order to vindicate the legal injury allegedly suffered by him.
Mr. Mukul Gupta, learned counsel appearing on behalf of the respondent on instructions says that the respondent has already accepted the resignation of the petitioner and therefore, according to him, the petitioner is not entitled to any interim relief from the Court. Mr. Gupta has also argued that the petitioner was not entitled to any extraordinary leave because he is under instructions to say that the petitioner was entitled only to 2= days leave for each month of service rendered by him in AIIMS. On the other hand, Mr. Sandeep Sethi, learned senior counsel appearing on behalf of the petitioner has argued that the petitioner has been terminated from service of the respondent vide impugned termination order on account of his alleged unauthorized absence and this casts a stigma on the petitioner. The learned senior counsel appearing on behalf of the petitioner has further argued that the absence of the petitioner from AIIMS during the period he was undergoing fellowship programme in Australia was beyond his control as he was not relieved by his fellowship Supervisor. According to the learned senior counsel for the petitioner, the petitioner has acquired eminence by undergoing fellowship programme in Bone and Cartilage Transplantation and he according to him is the best orthopedic surgeon in Bone Transplant Surgery. According to the learned senior counsel, in case the impugned order of termination is allowed to stand then it would create obstacle in the future career of the petitioner.
I have given my thoughtful consideration to the rival arguments advanced by the counsel for the parties and have also gone through all the documents annexed along with present petition.
The argument urged on behalf of the respondent that the resignation of the petitioner has already been accepted is of no consequence because in case the resignation of the petitioner was accepted then where was the need to terminate him from service and that too with retrospective effect i.e. w.e.f. 15.01.2008. A perusal of the impugned order would show that the services of the petitioner have been terminated on the ground of his unauthorized absence.
The arguments of the respondents counsel that the petitioner was not entitled to extraordinary leave beyond 15.07.2008 seems to be without any substance. In case the petitioner was entitled only to 2= days extraordinary leave for each month of service, as contended by the respondents counsel, how and why the respondent sanctioned extraordinary leave for six months to the petitioner vide its letter dated 31.07.2008. The respondents counsel could not give any explanation for the same. I am of the view that the extraordinary leaves, which are in the nature of leaves without pay, are sanctioned to an employee to meet the unforeseen exigencies. Admittedly, the respondent had sanctioned leave to the petitioner from 15.01.2008 to 15.07.2008 and therefore at least during this period, he cannot be said to be absent unauthorisedly. The absence of the petitioner beyond 15.07.2008 till the end of August, 2008 appears to be beyond his control as he was not relieved by his fellowship Supervisor in Australia. When the petitioner was prevented for reasons beyond his control in joining his duties after expiry of his sanctioned leave, he cannot be blamed for remaining absent during the period from 16.07.2008 to 31.08.2008. His service could not have been terminated by the respondent on account of his absence from the respondent hospital during the aforementioned period. Reference is made to a judgment of the Honble Supreme Court in Jai Shanker Vs State of Rajasthan, (1966) 1 SCR 825.
In view of the above and having regard to the peculiar facts and circumstances of the present case, I am of the view that the petitioner has made out a prima-facie case for grant of interim relief as prayed for in the instant applications. The equity and balance of convenience for grant of such interim relief are in favour of the petitioner and against the respondent. In case the interim relief as prayed for is not granted to the petitioner, he is likely to suffer an irreparable injury which cannot be compensated in terms of money. Accordingly, the respondent is hereby directed to allow the petitioner to discharge his duties in the respondent hospital till the expiry of his tenure up to 03.10.2008 without prejudice to the rights and contentions of the parties on merits of the case. Anything said or observed in this order shall not influence the final decision of the case.
These applications for interim relief stand disposed of accordingly. Vide order dated 23.1.2009, this matter has been transferred to this Tribunal as the primary jurisdiction to deal with the matter had come to be vested with the Tribunal vide notification dated 31.10.2008. When the matter came to be transferred to this Tribunal, counsel for the respondent has been appearing but the records show that it did not choose to file any reply. On 28.8.2009 when the matter came up for hearing before us, no one had even chosen to appear on behalf of the respondent, despite the fact that the case was called both before and after lunch. However, in the interest of justice, we deferred orders and adjourned the matter to 5.10.2009. A direction was issued in the order to send copy of the order to Director, AIIMS as also Shri Mukul Gupta, learned counsel defending the respondent, forthwith.
3. Shri Gupta has appeared and at the very outset stated that he has instructions to make a statement that since the tenure of the applicant has come to an end and the applicant has indeed worked with the respondent Institute on the dint of interim directions issued by the Honble Single Judge of the High Court, the matter be given a quietus with liberty to the parties to choose their remedies. Counsel for the applicant would, however, vehemently contend that even though, the tenure of the applicant may have come to an end, but inasmuch as the impugned order terminating his services be punitive in nature, the applicant who is more keen to serve the nation by accepting a Government job, even though his qualifications are such that he can earn far more elsewhere, and the impugned order would be stumbling block all through his life to pick up a Government job, he would insist upon setting aside the same. The impugned order reads, thus:
Subject: Termination from service in respect of Dr. Aman Dua senior resident/demonstrator in the Department of Orthopaedics (Casualty).
The services of Dr. Aman Dua, Senior Resident in the Department of Orthopaedics (Casualty) is terminated/cancelled w.e.f. 15.01.2008 (F.N.) on account of his unauthorized absence. The salary w.e.f. 15.01.2008 (F.N.) may not be released in his favour.
4. There is no manner of doubt nor any contentions to the contrary have been raised that the impugned order is stigmatic and would indeed come in the way of the applicant in securing another Government job. That the order came to be passed without hearing the applicant and without holding an enquiry is not in dispute. Such an order would be violative of Article 311 (2) of the Constitution of India. The position in law is settled and we need not refer to the basic provisions of law and judicial precedents, but would only refer to one Constitutional Bench judgment of the Honble Supreme Court in Jai Shanker v State of Rajasthan (1966) 1 SCR 625. Facts of the said case would revel that even though, there was a rule by which an employee who may have absented himself without permission or remained absent without permission for one month or longer after expiry of leave, was to be considered to have sacrificed his appointment, and could only be reinstated with the sanction of the competent authority, the Honble Supreme Court held that even when such an order is passed in view of provision of rule as mentioned above, the same would be punitive and violative of Article 311.
5. Impugned order dated 21.8.2008 has to be set aside. Ordered accordingly. As regards the contention of Shri Gupta that parties may be left to have their remedies, we may only mention that insofar as, the applicant is concerned, he may not have any surviving cause after order dated 21.8.2008 is set aside. Insofar as, the respondent Institute is concerned, we can only observe that it may not be advisable at this stage to proceed against the applicant for variety of reasons, like that the tenure of service of the applicant has already come to an end and it may not serve any useful purpose in proceeding against him, as also that the Honble Single Bench while issuing interim directions did, even though prima facie, observe that there was justification for the applicant to have joined back the Institute after being relieved from the fellowship programme at Australia, where he had gone after leave was sanctioned to him, the matter needs to be given a quietus. However, we cannot direct the respondent Institute not to proceed against the applicant. We may only observe that if the respondent Institute may be at liberty to proceed against the applicant, surely the applicant may also have reasons to challenge any such proceedings that may be initiated against him. We do not wish to comment finally with regard to right of the Institute to proceed against the applicant at this stage. As mentioned above, it is up to the Institute to think over whether it is advisable at this stage to proceed against the applicant, and if the Institute may so choose, the applicant may also have his remedies.
6. In view of the discussion made above, this Application is allowed in the manner indicated above, but there shall be no order as to costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/