Central Administrative Tribunal - Kolkata
Dr Saswati Mukhopadhyay vs Employees State Insurance Corporation on 1 January, 2020
.. ' / 1
m
CENTRAL ADMINISTRATIVE TRIBUNAL
CALCUHA BENCH
Original Application No. 350/01443/2016
\£\~ day of ) 2.0%€> ■
Date of Order: This, the
THE HON'BLE SMT. MANJULA DAS, MEMBER (J)
THE HON'BLE MR. NEKKHOMANG NEIHSIAL, MEMBER (A)
Dr. Saswati Mukhopadhyay, W/O Sri
Ambarish Mukherjee, aged 49 years,
^\n>str86i
By Faith-Hindu, By Occupation-
Doctor, Residing at Genexx Valley,
mm -3
T16/4B, D.H. Road, P.O. Joka,
o Kolkata - 700104.
...Applicant
By Advocate: Sri B. Bhushan
-VERSUS-
1. Union of India, through Secretary,
Employees' State Insurance
Corporation, Ministry of Labour &
Employment, Government of India
Panchdeep Bhawan, CIGMarg, New
Delhi-110002.
2. Director General, Employees' State
Insurance Corporation, Ministry of
Labour & Employment, Government
of India, Panchdeep Bhawan, CIG
Marg, New Delhi - 02.
3. Medical Commissioner, Employees
State Insurance Corporation, Ministry
of Labour & Employment,
Government of India, Panchdeep
Bhawan, CIG Marg, New Delhi - 02.
4. Deputy Director (Medical),
Employees' State Insurance
J
2
Corporation, Ministry of Labour &
Employment, Government of India,
Panchdeep Bhawan, CIG Marg, New
Delhi-110002.
5. ESI-PGIMSR, ESIC Medical College &
ESIC Hospital & GDC (EZ), Joka,
Diamond Harbour Road, P.O. - Joka
Kolkata-700104.
6. Dean, ESI-PGIMSR, ESIC Medical
College & ESIC Hospital & ODC (EZ),
Joka, Diamond Harbour Road, PO -
Joka, Kolkata - 7000104.
Medical Superintendent, ESIC
Hospital & ODC (EZ), Joka, Diamond
Harbour Road, P)- Joka, Kol - 104.
Head of Department (Obs & Gyn.
Department), ESI-PGIMSR, ESIC
Medical College & Hospital & ODC
(EZ), Joka, Diamond Harbour Road,
PO- Joka, Kolkata - 700104.
9. Deputy Director, (Admin), ESIC
Hospital & ODC (EZ), Joka, Diamond
Harbour Road, PO-Joka, Kol - 104.
••• Respondents
By Advocate: Ms. P. Saha
ORDER
NEKKHOMANG NEIHSIAL. MEMBER fAV.
This is a second round of litigation. In the previous O.A. No. 350/01636/2015, this Tribunal in its order dated 20.01.2016 directed the respondent No. 2 i.e. the Director General, ESI, New Delhi to accord 3 personal hearing to the applicant and dispose of the * representation of her representation dated 17.07.2015 in accordance with law within six weeks from the date of communication of the order. The respondent No. 2, after affording personal hearing, rejected the representation of the applicant dated 17.07.2015 vide speaking order under No. C-18(11 )/10/15/M-VI/Saswati Mukhopadhyay dated 11.07.2016.
In the present O.A., the applicant is seeking following reliefs:-
8.(a) Quashing of Impugned Memo C-18 (li)/10/15/M-VI/Saswati Mukhopadhyay dated July 11,2016 being Annexure "A-12"
herein;
(b) Quashing of Memo A/19/N/2017/97/CHI-
4/Saswati Mukhopadhyay dated
September 10, 2015;
(c) Direction upon Respondent 2 to consider afresh her Applications dated July 17, 2015;
August 27, 2015 in terms of CCS (Pension) Rules, 1972 in view of the ratio laid down by the several Judgments by Hon'ble High. Courts, Central Administrative Tribunals on the point of "Withdrawal of Resignation"
which act as binding precedents; and
(d) Any other Order(s)/Direction (s) as this Ld. Tribunal may deem fit and proper."
3. The applicant also filed additional affidavit on 20.07.2018.
/^aaAaAI i / 4
4. Apart from the arguments in the hearing, the respondent authorities also submitted brief notes of argument on 27.12.2018.
5. This is a case where the respondent authorities have rejected the request for withdrawal of resignation of the applicant from service.
6. The case was last heard on 25.09.2019. In the brief notes of argument, the respondent authorities submitted that as per guideline contained in Rule 26 of CCS (Pension) Rules 1972, the case of the applicant has been appropriately examined and rejected as per provisions therein. The condiiYions enumerated as stated in the above Rule stipulated that the appointing authority may permit a person to withdraw her/his resignation in public interest on fulfilment of certain conditions as follows:-
(a) Availability of the vacant post.
(b) The resignation was tendered by the Govt, servant for some compelling reasons which did not involve any reflection of his integrity, efficiency on conduct.
(c) The request of withdrawal has been made as a result of material change in the circumstances which originally compelled him/her to tender the resignation.
W 5
(d) The resignation was not tendered with a view to.take an outside employment.
(e) The period of absence from duty between relief on resignation and resumption of duty is not more than 90 days.
7. Since the conditions stipulated at para (c) and
(e) have not been fulfilled by the applicant, her application has been rejected by the competent ^•vnlstr*^ authority even after affording personal hearing in wm WM % I] compliance to the previous order of this Tribunal order dated 20.01.2016 in O.A. No. 350/01636/2015.
8. We have gone through the case carefully. It is observed that the applicant was working as CMO in ESI- PGIMSR and ESIC Hospital & ODC 9E.Z.), Diamond Harbour Road, Joka, Kolkata. She applied for Study Leave from 17.04.2015 to 16.04.2018 for undergoing DNB (Super Speciality) in Medical Genetics. The application was forwarded to the competent authority vide letter under No. H.41.A/19/11/138(H)/Estt.94 dated 15.04.2015. Since the response was not immediately forthcoming from the competent authority, the applicant applied for Extra-Ordinary Leave (EOL) for 03 years w.e.f. 27.04.2015 on 20.04.2015, for the purpose of prosecuting study in Medical Genetics, withdrawing her Study Leave 6 '' :F / •■■: ■■■■ y / J /• application vide her representation dated 22.04.2015.
This was followed by another application dated 24.04.2015. On 28.04.2015 in which she submitted her resignation to be effective from 30.04.2015 enclosing a cheque of Rs. 3,91,630/- as salary for 03 months in lieu of 03 months notice period. The resignation was accepted by the competent authority on 06.05.2015 effective from $»w's4r««i 30.04.2015 (A/N) as requested and accordingly, she 4 % it stood relieved from her duties with effect from the same date i.e, 30.04.2015.
9. On 17.07.2015, applicant submitted an appeal for 'Withdrawal of Resignation1 from the service, but attached with the request for grant of EOL for 03 years to complete the course and allow her to join at ESIC after completion of course in May 2018. This was followed up in her appeal dated 27.08.2015 repeating the same for reinstating of her service- following the provisions of Leave Rule and GCS (Pension) Rules 1972 and allow her to re-join at ESIC after completion of course in May 2018. This has not been acceded to by the competent authority vide their letter under No. 19/11 /217/97/C-4/Saswati Mukhopadhyay dated 10.09.2015.
7/ /
10. The question now to be examined is whether the respondent authorities have violated any provisions of the relevant service rules in rejecting the application of the applicant for withdrawal of resignation from service and is there any specific judicial ruling which can be in favour of the applicant in this context. We have carefully considered the case. It is seen that the applicant was very keen to undergo in the said course Pi I |\ of DNB (Super Speciality) in Medical Genetics. With © WjM i 511 provisional permission of local authority, she appeared in the entrance test and she got selected. Accordingly, she applied for Study Leave which was not responded by the competent authority in the Headquarter. Thereafter, she applied for extraordinary leave which was also not communicated by the competent authority from their Headquarter. Ultimately, she submitted her resignation so as to enable her to attend the course. This was accepted and properly communicated to the applicant through her office at Kolkata. Subsequently, she had submitted application for 'Withdrawal of the Resignation' from the service in the month of 17th July 2015. This has not been acceded to by the competent authority.
..
8,,y 11. The reason for non-acceptance of the request of the 'Withdrawal' as cited by the competent authority is that there is no material change in the circumstances of the applicant [para 'c' of Rule 26 of CCS [Pension) Rules, 1972] and also there was no chance that she would re-join in her duty within a period of 90 days from the date of acceptance of her resignation [para 'e' of Rule 26 of CCS (Pension) Rules, 1972], Accordingly, Pi §a rejection of her application for 'withdrawal of WM visa resignation1 is within the provisions of relevant rules applicable to the case.
12. It is indeed seen from the appeal of the applicant for withdrawal of resignation is essentially tagged with her condition for granting of EOL for a period of 03 years and to allow her to join in duty on completion of course in May 2018. Considering this fact that acceptance of request for withdrawal would consequently need sanctioning of 03 years of the EOL to complete the course. The applicant obviously would not be able to join duty within a period of 90 days from the date of acceptance of her resignation as her request of withdrawal of resignation is found to be tagged with the need for sanctioning for EOL of 3 years.
kJVk/ 9 is/ • 13. At para 8.(c) of the O.A., the applicant cited / that direction be issued upon respondent No. 2 to consider afresh her application dated July, 17, 2015 and August 27, 2015 in terms of CCS (Pension) Rules, 1972 in view of the ration laid down by the several judgments by Hon'ble High Courts, Central Administrative Tribunals on the point of "Withdrawal of Resignation" which act as binding precedents. The applicant has annexed only C ' I) a judgment of Hon'ble Delhi High Court of W.P.(C) ' 2475/2011 dated 20.09.2011 IDr.(Mrs.) Radhika Bahl Vs. Union of India & Anr.]. But the respondent authorities contested in their submission that the cited judgment of Hon'ble Delhi High Court of Dr.(Mrs.) Radhika Bahl (supra) was 'the reasons for tendering resignation was due to grave domestic problem of education and accommodation of her only for causing serve mental stress to her. As such, the reason the resignation in both cases are totally different and cannot be relied upon."
14. Keeping in view of the above since leave of any kind including EOL is a privilege and not a matter of right and since the applicant has attached her application for withdrawal of resignation with the request for sanction of EOL for 3 years, we are of the considered rflj 'V 10 view that we do not see any justified reason to interfere ■ & with the decision of the competent authority in rejecting the appeal of the applicant for withdrawal of her resignation vide Memo No. C-18 (n)/10/15/M- Vl/Sdswati Mukhopadhyay dated July 11, 2016 as well as Memo No. A/19/11 /2017/97/CHI-4/Saswati Mukhopadhyay dated September 10, 2015. Hence the O.A. is found to be devoid of merit and the same is % |) hereby dismissed.
o
8? w/
15. No order as to costs.
<r\
K. (
"J'V
(NEKKHOMANG NEIHSIAL) (MANJULA DAS)
MEMBER (A) MEMBER (J)
PB
•' f