Delhi High Court
Harsh Munjal vs The Director General, Sports Authority ... on 31 May, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These writ petitions arise out of a judgment and order dated 23.08.1999 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') in T.A. No. 1 of 1998 and O.A. No. 1825 of 1998.
BACKGROUND FACTS:-
1.1 The petitioner joined the services of the Government of Gujarat as 'Hockey Coach' in the year 1997. He was promoted as 'Hockey Coach, Group - A' on 01.09.1986, The services of the petitioner were requisitioned by the Sports Authority of India (in short, 'the SAI') before its amalgamation in the year 1984. The petitioner was deputed to the post of 'Hockey Coach' by the Government of Gujarat in the services of the SAI on the terms and conditions as contained in the letter dated 11.12.1986, the relevant portion of which is as follows:-
"3. The lien of Shri Harsh Munjal will continue on his present post of Hockey Coach till his deputation period and it may be terminated from the date of his absorption thereon on Shri Harsh Munjal giving option to continue on the post under the Sports Authority of India."
Pursuant to or in furtherance thereof, the petitioner joined as 'Hockey Coach' in the pay scale of Rs. 700/- -- Rs. 1,100/- on deputation on foreign service terms for a period of 2 years in the first instance on 13.01.1987, which was accepted by him. Thereafter, on or about 05.02.1987, the petitioner was offered appointment to the post of 'Assistant Director' in the SAI in the scale of Rs. 700/- -- Rs. 1,300/- on foreign service terms.
1.2 On or about 31.03.1987, the Government of India issued an Office Memorandum wherein it was provided that in case the Government employee on deputation in Autonomous Bodies did not return to his parent Department during or after the sanctioned deputation period he would be deemed to have been permanently absorbed in the Autonomous Body on the date of expiry of the deputation period. The said period of the petitioner's deputation ended on 12.01.1989 but no order had been passed either extending the period of deputation or reverting him. Despite the same he continued to work as Additional Director in the SAI.
According to him, he would having regard to the said office-memorandum be deemed to have been absorbed w.e.f.
13.01.1989, which claim he put forth before SAI by a letter dated 17.04.1989.
1.3 SAI in terms of its letter dated 14.06.1989 contended that the policy decision of the Government of India has no application to the post of 'Additional Director' stating:-
"3. Deemed Absorption:-
The Govt. of India orders dated 31.03.1987 quoted by him are inapplicable in his case as appointment to the post of Asst.
Director has been exempted from the operation of these orders by Department of Personnel."
The petitioner was thereafter sought to be reverted to his permanent post. He filed a writ petition before this Court, which was marked as CWP No. 1814 of 1989 wherein an order of stay was passed. The said writ petition was subsequently transferred to the Central Administrative Tribunal and, was registered as T.A. No. 1 of 1998.
1.4 We may notice that SAI in the said proceedings also contended that the petitioner remained a deputationist at the time when the impugned order of repatriation was issued. No other plea was advanced by it. During pendency of the said writ petition, disciplinary proceedings were initiated against him in the year 1991. The said disciplinary proceedings were completed in the year 1994 and a copy of the enquiry report was furnished to the petitioner on 25.04.1994 whereagainst he submitted his representation. No action thereupon, however, was taken.
1.5 In the meanwhile, an application for modification of the interim Order of Stay dated 22.07.1989 was filed by SAI on 27.05.1994 wherein it was contended:-
"The approval of the Gujarat Government for the permanent absorption of the petitioner has not been received till date by the petitioner (sic)"
The said application was dismissed.
1.6 On or about 01.12.1994, the Government of Gujarat purported to be in response to the letter of SAI stated:-
"I am, therefore, to inform you that the services of Shri Munjal, Hockey Coach, will be with you for a permanent absorption with effect from 8.2.1987 (Eighth February Nineteen Eighty Seven) as a Hockey Coach with all responsibilities of the SAI, New Delhi."
In response thereto the SAI by a letter dated 03.04.1995 wrote to the Government of Gujarat in the following terms:-
"...It is requested that your concurrence for his permanent absorption as Asst. Director w.e.f. 08.02.1989 be conveyed at an early date."
The Government of Gujarat, however, stuck to its stand that the petitioner should be absorbed by SAI w.e.f. 08.02.1987 stating:-
"4. In the basis of this, you may do the needful in his career prospects by absorbing him from 8th February, 1987".
1.7 Yet again on 21.11.1995, the Government of Gujarat asserted that the petitioner's effective date of absorption would be 08.02.1987 and reiterated his stand as contained in its letter dated 01.12.1994. Thereafter on 13.05.1996, the Government of Gujarat by way of a letter addressed to SAI inter alia stated:-
"2. Sports Authority of India had agreed to all the terms in total, including the option given to Shri Harsh Munjal for deciding his date of his permanent absorption in SAI.
3. ...Government of Gujarat has already committed to fulfilll all administrative/financial obligations in respect of Shri Harsh Munjal till 08.02.1987.
4. The letter No. SAI-Pers-1059-92 dated 24.07.1995 from Assistant Director (Pers) has no sanctity because decision of Government of Gujarat has already been communicated and confirmed twice prior to this letter of yours...
6. ...The option of absorption in SAI was to be exercised by Shri Harsh Munjal who requested for the dated 9.2.87 which has already been agreed by Government of Gujarat."
1.8 Yet again the Government of Gujarat by a letter dated 01.03.1997 reiterated and reaffirmed its stand and stated that the petitioner's effective date of permanent absorption in SAI would be 08.02.1987.
1.9 The petitioner was also issued with a certificate dated 01.09.1997 by the Director (Pers) of SAI to the effect that he had become its permanent employee on 09.02.1987 stating:-
"certified that Shri Harsh Munjal is a permanent employee of Sports Authority of India from 9.2.1987 and is at present holding the post of Deputy Director. This organization has no objection to his acquiring India Passport. The undersigned is duly authorised to sign this No Objection Certificate."
1.10 On or about 29.01.1998, the petitioner was sought to be permanently absorbed w.e.f. 09.02.1989 as 'Assistant Director' purported to be with the approval of his lending Department, namely, Government of Gujarat. The said letter purported to have been issued under the authority of the Government of Gujarat under O.M. dated 08.04.1976 read with O.M. dated 31.03.1987.
1.11 The petitioner by a letter dated 11.03.1998 addressed to SAI sought for clarification in the following terms:-
"To The Deputy Director (Personnel), Sports Authority of India, Jawaharlal Nehru Stadium, Lodhi Road Complex, New Delhi - 110003.
Sub:- Absorption Orders.
Sir, Please refer your office order vide which SAI has proposed to absorb me w.e.f. 09/2/89.
Along with this you were also supposed to issue pay fixation as done in all other cases of the officers who have been taken on SAI strength between 1987 to 89. There is a need to irrevocable placement in the seniority list too.
You will appreciate that in absence of these two, the orders issued by you remains incomplete thus giving acceptance is not feasible.
You are requested to look into the matter and get the other two orders issued to enable me give my acceptance which will be subject to the contents of orders to be issued by you.
Thanking you, Yours faithfully, (HARSH MUNJAL)"
1.12 SAI thereafter filed a Miscellaneous Application by placing on record the said order dated 29.01.1998 and sought for dismissal of the Transfer Application as having become infructuous.
He filed Miscellaneous Applications in the aforementioned Transfer Application for impleading the Sports Authority of Gujarat in respect whereof SAI filed its replies. The petitioner sought for and was granted two weeks' time to file rejoinder thereto. In the meanwhile, by an order dated 24.04.1998, major penalty of compulsorily retirement was imposed on the petitioner.
1.13 Thereafter, the petitioner filed an original application before the Tribunal, which was registered as O.A. No. 1825 of 1998, for quashing the orders dated 29.01.1998 and 24.08.1998.
1.14 The learned Tribunal without going into the merit of the contentions of the parties dismissed the original application only on the ground that the petitioners were estopped from questioning the said order. The Tribunal noticed that the petitioner had not questioned the order of penalty on merits.
In the aforementioned proceedings, the Government of Gujarat did not appeal.
1.15 In the writ petition also, the Government of Gujarat did not appear for a long time. This Court by an Order dated 21.11.2001 directed:-
"A court notice was ordered to be issued to Chief Secretary, Gujarat Government by court order dated 26.7.2001 after it was felt that representation of Gujarat Government before the court was necessary for resolving the controversy. This notice was served on the concerned Chief Secretary, but he had again gone unrepresented today. It appears that Chief Secretary was avoiding the court process, which arises a matter of concern. We could have issued a coercive process to seek compliance of our order but we thought it appropriate to afford him one more chance to respond to court notice. A special court notice shall again issue accompanied by a communication from Registrar requiring him to make appropriate arrangements for representation of Gujarat Government before this court through some competent decision making authority along with any counsel if necessary on the next date. This shall be served through Registrar, Gujarat High Court who is required to seek compliance and submit a report to this court. A copy of this order shall also be faxed to the Resident Commissioner, Gujarat Government at New Delhi for onward transmission to concerned Chief Secretary and his compliance report sought.
Registrar to take necessary steps to seek compliance."
1.16 The Government of Gujarat only thereafter filed an affidavit, which has been affirmed by Shri K.K. Patel, an Officer of the status of Under Secretary alleging that the petitioner stood permanently absorbed w.e.f. 12.01.1989. It was contended:-
"(ix) The Government of Gujarat vide its letters dt. 23.6.94 and 1.12.94 had given its approval for the permanent absorption of the petitioners in SAI, New Delhi. Therefore, his lien with the Government of Gujarat came to an end with his permanent absorption in SAI and on his submitting consent to SAI and technical resignation to Government of Gujarat vide letter dated 18.6.1993."
As regards the question as to whether the Government of Gujarat can repatriate the petitioner, it was contended:-
"5. It is submitted that the Government of Gujarat has accepted the judgment and order dated 23.8.1999 of the Central Administrative Tribunal, Principal Bench, New Delhi in T.A. N. 1/98.
6. There is no suitable vacancy in the department in which he can be re-inducted. His re-induction in the parent Department at this stage would disturb seniority of many other employees in the department. Moreover admitting lien to the petitioner in the parent Department who has already resigned and voluntarily accepted absorption in the borrowing department would set up a bad precedent."
SUBMISSIONS:-
2.0 Mr. Ganesh, the learned senior counsel appearing on behalf of the petitioner inter alia would submit that in law no person can be absorbed by the borrowing department without the concurrence of the Parent Department. Such permanent absorption, the learned counsel would contend must be effective from the date to which both the parties agree.
2.1 It was urged that the stand of the Government of Gujarat had all along been that the petitioner should be absorbed only w.e.f. 08.02.1989 itself, as would appear from its several letters, some of which are dated 01.12.1994,
13.05.1996, 01.03.1997 and 02.10.1998 and, thus, it could not here, at a subsequent stage, take a stand contrary thereto and inconsistent therewith.
The learned counsel also drew our attention to the letters dated 03.02.1999 and 02.07.1999 and submitted that from a perusal thereof it would appear that even in the year 1989, SAI and the Government of Gujarat were clear and unequivocal about their respective stands.
The said letters read as under:-
"... 21st March, 1994 Dear Shri Bhagwat, Shri Harsh Munjal, Hockey Coach with the Government of Gujarat was released to the SAI on deputation on 11.12.86 for a period of two years. His deputation was extended by a further three years, which ended in December, 1991. Meanwhile, SAI by a letter dated 11.4.89 sought the permanent absorption of Shri Munjal. Government have considered this request and decided that Shri Munjal be reverted to the State Government with immediate effect. Please note that no correspondence has been initiated by the SAI for extension of the period of Shri Munjal between Jan'92 and the present date. This will also have to be regularised.
I may bring to your information that a police case is pending against Shri Munjal with this Department. Kindly arrange for Shri Munjal's immediate release."
"Date: 02-07-1999 To The Secretary' Sports Authority of India, J.N. Stadium, Lodhi Road, New Delhi - 110003.
Sub: Permanent absorption of Shri Harsh Munjal in SAI Ref: Your letter No. SAI/Pers/1059/92/491 dated 12-10-98 and letter No. Dir/Con/SAI/NSWC/99 dated 28-06-99.
Sir, This is with reference to your above mentioned office letters on the subject cited above I am to state that matter is under scrutiny and examination. The decision on the said matter shall be communicated to you in due course.
Meanwhile a copy of letter of Shri Harsh Munjal dated 20-07-93 addressed to this Directorate regarding the date of absorption w.e.f. 08-02-87 is endorsed herewith for your ready reference.
Thanking you, Your faithfully, COMMISSIONER Y.S. & C.A. GANDHINAGAR' 2.2 The learned counsel would contend that the purported order of permanent absorption keeping in view the time gap is contrary to the provisions of Rule 37 of the Central Civil Services (Pension) Rules, 1972 (in short, 'the CCS Rules').
In this view of the matter, the learned counsel would submit that the impugned order dated 29.01.1998 must be held to be bad in law.
2.3 As regards the departmental proceedings, the learned counsel would contend that the purported disciplinary action which had been taken in the year 1987 wherefor enquiry was held in the year 1991-92 and report was submitted in the year 1994 must be held to be bad in law. In any event, there was absolutely no reason as to why no action was taken for a period of 4 years, which would clearly demonstrate that even according to the respondents, no action thereupon was contemplated. It was contended that having regard to the fact that the petitioner was not permanently absorbed, the said authority could not have initiated the disciplinary proceedings. Even assuming that in the facts and circumstances of the case, even CCS and CCA Rules were applicable, as the provisions of Rule 2(c) thereof had not been complied with, the impugned order cannot be sustained. SAI, the learned counsel would contend, not being the Employer of the petitioner could not have thus imposed a major penalty upon him.
The learned counsel in support of the aforementioned contentions strongly relied upon the decision of the Apex Court in Union of India v. H.P. Chothia and Ors., .
3.0 Mr. Raju Ramchandran, leaned senior counsel appearing on behalf of SAI, however, would submit that the petitioner is not entitled to any equitable relief from this Court as was rightly refused to him by the Tribunal having regard to the shifting stands taken by him from stage to stage.
3.1 The learned counsel pointed out that the writ petition was filed by the petitioner questioning an order of repatriation and, thus, he could not have resoled from the said stand. He further pointed out to a letter dated 21.03.1994, which is to the following effect:-
"Dated the 21st March, 1994 To Shri A.S.V. Prasad, Executive Director, (Operations) Sports Authority of India, Jawaharlal Nehru Stadium, Lodhi Road Complex, New Delhi - 110003.
Sub: Repatriation of services of Mr. Harsh Munjal, Hockey Coach, from SAI to the Directorate of Youth Services & Cul. Activities.
Sir, With reference to the Government letter, Youth Services & Cultural Activities Department, No. YHN-1193-2577-C dated the 21st March, 1994, on the subject mentioned above, Mr. Harsh Munjal, Hockey Coach from Gujarat, is on deputation with the Sports Authority of India, New Delhi from 8-1-1987 till to-day. Government of Gujarat has decided to revert Shri Harsh Munjal from your authority to this Directorate with immediate effect in view of the Police case which is pending against him with this office for misappropriation of Government money.
I, therefore, request you to kindly revert him to the post of Hockey Coach in the pay scale of Rs. 2,000-3500 and relieve him with immediate effect.
Yours faithfully, Encl: Govt. letter Dt. 21-3-94 (J.K. DORICHA) DIRECtor, YOUTH SERVICES & CUL. ACTIVITIES GANDHINAGAR."
It was, contended that, as the petitioner did not want to face Police action, he took his chance by taking part in the disciplinary proceedings. Had he been aggrieved by initiation of the said disciplinary proceedings, the learned Counsel would contend, he could not have brought the same to the notice of this Court in the pending writ petition and/or could have filed a fresh writ petition questioning the enquiry itself.
3.2 The learned counsel submitted that a person, who sit on the fence and takes a chance, cannot at a later stage be permitted to question the proceedings wherein he took part. The learned counsel would contend that as soon as the petitioner was permanently absorbed, the Tribunal was informed thereabout.
4. Ms. Hazarika, the learned counsel appearing on behalf of the State of Gujarat submits that at this juncture it is not possible to take back the petitioner inasmuch as his lien has come to an end.
The learned counsel has taken us through the counter affidavit filed on behalf of the State of Gujarat and submitted that the Order of the Tribunal is based of its letters dated 01.2.1994 and 13.05.1996 regarding "Permanent absorption of Shri Harsh Munjal, Hockey Coach", which were addressed to The Executive Director, SAI and The Secretary, SAI respectively. The relevant portion of the letters dated 01.12.1994 and 13.05.1996 respectively are as under:-
"I am, therefore, to inform you that the services of Shri Munjal, Hockey Coach, will be with you for a permanent absorption with effect from 8.2.1987 (Eight February Nineteen Eighty Seven) as a hockey coach with all responsibilities of the SAI, New Delhi."
"4. The letter No. SAI-Pers-1059-2 dated 24.7.95 from Assistant Director (Pers) has no sanctity because decision of Government of Gujarat has already been communicated and confirmed twice prior to this letter of yours. We have been asked to accept 8th of Feb. 89 as date of absorption of Shri Harsh Munjal which is more than the deputation period of two years, as agreed by all of us."
5. These writ petitions pose a difficult question as regards adjustment of enquiry.
6. There cannot be any doubt whatsoever that the petitioner is guilty of shifting his stands from stage to stage. The very stand, he had taken for filing the writ petition before this Court, namely, the applicability of O.M. dated 31.03.1987 had been given a go by whereas the said O.M. had been given effect to. Similarly, although he took part in the disciplinary proceedings purported to be relying on or on the basis of the interim Order passed by this Court in the aforementioned writ petition, he questioned of the order of compulsorily retirement only on the ground that the respondent had no jurisdiction therefore.
7. However, the petitioner in his original application categorically stated:-
"6. Details of the remedies exhausted:
The Applicant declares that in regard to the subject matter of the present O.A. and the reliefs claimed herein, the question of his availing of any alternative remedy does not arise either in the facts and circumstances of the case or in law. The petitioner is challenging the impugned orders dated 29.1.1998 and 24.8.1998 on the preliminary ground of lack of jurisdiction and power on the part of respondent Nos. 1 & 5 to issue the same and on the further preliminary ground that the impugned orders are vitiated at the threshold as being a fraud on power and colourable exercise of powers and vitiated by mala fides as also on a third preliminary ground that the impugned orders are vitiated by the contravention of the principle of sub judice i.e. they have been made during the pendency of T.A. No. 1/98 wherein the issue of the Applicant's legal status in the service of respondent No. 1 is pending adjudication by this Hon'ble Tribunal. The applicant hereby expressly reserves his right to challenge the said impugned orders on merits by way of appropriate proceedings separately, if need be, after this Hon'ble Tribunal adjudicates upon the preliminary jurisdiction issue raised herein regarding the legality and validity of the said impugned orders."
8. It is, thus, evident that he confined his original application only with regard to the jurisdiction of the SAI inasmuch as otherwise the same might not have been entertained. Although the stand of the petitioner cannot be appreciated, the conduct of the respondents is no better. The respondents are also equally guilty of relying on the very same O.M. dated 31.03.1987 for the purpose of absorption of the petitioner, which according to them was not applicable in his case at all.
9. The question, which is required to be posed and answered, is as to whether there had been a valid absorption of the petitioner in the SAI. The answer to that question must be rendered in a big emphatic 'NO'. The law as regards deputation although revolves around the actions of the lending authority, the borrowing authority and the deputationists, there cannot be any doubt whatsoever that the matter relating to absorption mainly depends upon the action on the part of the lending authority.
10. The Government of Gujarat evidently had all along been contending that it could grant approval for permanent absorption of the petitioners only from the year 1987. Their records clearly show that the parties were not ad-idem as to the date from which such absorption take place. In absence of a consensus having been reached between the borrowing authority and the lending authority, the absorption of the petitioner was not complete. In fact from the letter conveying approval of the Government of Gujarat whereupon reliance has been placed by SAI while issuing the impugned order dated 29.01.1998 it would clearly appear that such approval was sought to be granted from 1987, how then in its letter, SAI mentioned that approval of the Government of Gujarat has been obtained to absorb the petitioner w.e.f. February, 1989. Surprisingly, the lending authority and the borrowing authority themselves were not sure of their stand despite passing of the order of compulsory retirement in its letter dated 12.10.1998.
11. Even during pendency of the original application, SAI sent a letter to the Government of Gujarat wherein it was stated:-
"Under these circumstances it is not possible to absorb Shri Harsh Munjal w.e.f. 9.2.87 and it is not possible to change our decision regarding his absorption w.e.f. 8.2.89. If the same is not acceptable to you the only course left will be to take the services of Shri Harsh Munjal back to your department.
Your decision in his regard is requested at the earliest."
(Emphasis supplied)
12. Such a stand had never been taken in the original application by SAI. On the other hand, it was categorical in its stand therein that the petitioner stood permanently absorbed with the approval of his Parent Department, namely, the Government of Gujarat. It may be noticed that the Government of Gujarat in response to the SAI's aforementioned letter dated 12.10.1998 by a letter dated 03.02.1999 purported to have pointed out that the petitioner had submitted resignation to the State w.e.f. 08.02.1997 and, thus, he was allowed to get absorbed in the SAI w.e.f. 09.02.1987 and it had committed itself to fulfill all its administrative obligations accordingly. It, thus, reiterated the stand taken by it in its letter dated 01.12.1994. The Commissioner, Youth Services and Cultural Activities by a letter dated 02.07.1999 contended that the matter was under scrutiny and examination and the decision on the said matter would be communicated to the SAI in due course. But it was not done.
13. The contention of the learned counsel appearing on behalf of the State of Gujarat that her client does not stand by the said letter is of no consequence. It is stated that he petitioner herein had submitted his resignation twice -- one was a qualified one being dated 18.06.1993 and another being unqualified one dated 20.07.1993. The said letters are as under:-
To, The Director Youth Services & Cultural Activities Block No. 11, 3rd Floor, Jiv Raj Mehta Bhawan OLD SACHIVALAYA, GANDHINAGAR - 380 010 Subject: TECHNICAL RESIGNATION FROM THE POST OF HOCKEY COACH W.E.F. 07-02-1989 (A/N) Sir, In terms of Govt. of India OM No. 4(12) P&PW dated March 31st, 1987, I stood absorbed in SAI on expiry of terms of deputation issued by Govt. of Gujarat vide its letter No. YSP-1086-GOI-373-P dated 11th December, 1986. I am submitting my technical resignation from the post of hockey coach w.e.f. 7th February, 1989 (However, period from 12th January, 1989 to 7th February, 1989 has to be regulated) in accordance with para 3 of said letter.
This may kindly be kept for record purposes.
Yours faithfully, (HARSH MUNJAL) Asst. Director Sports Authority of India Submitted through Director (Personnel), Sports Authority of India - in response to letter No. SAI/Admn/804/91/2609 dated 16th June, 1993.
From, HARSH MUNJAL CAMP AT GANDHINAGAR Dtd. the 20th July, 93 To The Director Youth Services & Cultural Activities, Block No. 11, 3rd Floor, Sachivalaya, GANDHINAGAR - 382010.
Sub: Permanent absorption in SAI.
Sir, Reference our discussion and letter from Dy. Director (Personal) SDAI regarding my permanent absorption in SAI (Copy attached for ready reference).
SAI has proposed to absorb me with effect from 8.2.89, it is the date when I had completed two years as assistant director but fact is that on this date I had over exhausted my deputation period.
It is requested that proposal may please be approved for my permanent absorption in SAI from the date, I was promoted to Assistant Director i.e. 8.2.87 in grade of 2200-4000.
This is for information that I was relieved by Govt. of Gujarat as a Hockey Coach to join SAI w.e.f. 13.1.87 in the grade of 700-1100 (pre-revised).
You are requested to kindly take a decision in the matter and inform SAI accordingly.
Thanking you, Yours faithfully, Sd/-
(HARSH MUNJAL) CAMP: GANDHINAGAR.
14. It is not the case of the Government of Gujarat that the aforementioned resignation letter dated 20.07.1993 was accepted by it. Can the Government of Gujarat by way of an affidavit in this case for the first time grant its approval or accept the resignation of the petitioner? The answer to that effect must again be rendered in negative. Till 1999, the Government of Gujarat having not taken a categorical stand as regards the status of the petitioner, it cannot be permitted to do so by way of an affidavit. The decision on acceptance of the resignation submitted by the petitioner or approval as regards proposal of the SAI for his absorption must undergo the processes as contained in Article 166 of the Constitution of India. The appropriate authority must apply its mind and take a decision thereupon. Shri K.K. Patel, who has affirmed the affidavit filed on behalf of the Government of Gujarat, was not the competent authority in that behalf.
15. In H.P. Chothia's case (Supra), the law is stated by the Apex Court in the following terms:
"7. Lastly, Mr. Bhatt submitted that in view of the reply-affidavit filed by Mr. Bhardwaj, Deputy Secretary to the Government of India, it would appear that the reasons were given by the Board which were that the service record of the respondent did not justify the inclusion of his name in the select list. In the first place, the affidavit appears to have been given by a person who was not a member of the Selection Board and as the recommendation was by a non-speaking order he would not at all be conversant with the manner in which the recommendation was made ignoring Respondent 1. Nor had he any knowledge of the way in which the mind of the Board was working at that time. The deponent, therefore, was not at all competent to certify as to what was the reason given by the Board as required by Regulation 5(2)(b) nor could the affidavit supply an omission made by the Selection Board in not complying with the mandate contained in Regulation 5(2)(b) . Secondly, the affidavit is abstruse because according to the Deputy Secretary, there was no obligation placed on the Selection Board to give reasons for the supersession of the said Forest Services Officers. This view, as we have pointed out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the High Court has pointed out in its judgment at page 31 of the brief that the Court had given an opportunity to the appellant to produce the records before it so as to find out if the confidential records of Respondent I did not justify the selection. The appellant did not choose to avail of the opportunity given to it by High Court which clearly indicates that the position was somewhat obscure."
16. Further, continuation in service is necessary also for the purpose of initiation of proceeding under the CCS Rules. As indicated hereinbefore, the Government of Gujarat had all along been insisting that the petitioner should be absorbed w.e.f. 08.02.1987 while admittedly, the deputation of the petitioner ended on 13.01.1989 and the SAI directed his absorption w.e.f. 09.02.1989. The question as to whether what would happen to these 26 days has not been answered.
17. Rule 37 of the CCS Rules reads thus:-
"37. Pension on absorption in or under a corporation, company or body.-
(1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service form the date of such absorption and subject to Sub-rule (3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
Explanation.--Date of absorption shall be-
(i) in case a Government employee joins a corporation or company or body on immediate absorption basis, the date on which he actually joins that corporation or company or body;
(ii) in case a Government employee initially joins a corporation or company or body on foreign service terms by retaining a lien under the Government, the date from which his unqualified resignation is accepted by the Government.
(2) The provisions of Sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Governments / Union Territory Administrations or under the joint control of two or more State Governments / Union Territory Administrations.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation.--Body means autonomous body or statutory body."
18. The purported absorption of the petitioner does not satisfy the legal requirement. Even the requirements of the said O.M. had not been fulfillled.
In the aforementioned situation, such Executive instructions had been issued supplementing the Rule, in view of the fact that the purported absorption of the petitioner is contrary to Rules.
19. The question, which arises for consideration now, is as to whether the petitioner is to be denied the reliefs to which he is entitled to on the ground of estoppel?
Estoppel is a rule of procedure; such rule of procedure cannot stand in the way of Court's granting the relief when the action on the part of the respondents was wholly without jurisdiction.
An order passed by an authority, who inherently lacks the jurisdiction, would be nullity.
20. In Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors, etc., , the Apex Court held:-
"...Moreover, this is a pure question of law depending upon the interpretation of Article 371-D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."
The said principles would apply squarely in the instant case.
In the instant case, all the parties are guilty of shifting their respective stands. Even the Sports Authority of India and the Government of Gujarat did not agree as to what should be done with the petitioner herein despite passing an order of major punishment. The Sports Authority of India offered to place the services of the petitioner at the hands of the Gujarat, which was declined. Thus, even the Sports Authority of India did not take a firm stand that it had the jurisdiction to terminate the services of the petitioner. It may be true that the petitioner did not question the initiation of the departmental proceedings at the threshold, but only because he took part therein cannot be a ground to deny him grant of an appropriate relief.
In view of our findings aforementioned, it must be held that the Sports Authority of India lacked inherent jurisdiction in initiating a departmental proceeding against the petitioner. The Government of Gujarat being the employer of the petitioner, could initiate the disciplinary proceedings in terms of the CCS (CCA) Rules. Even if the borrowing authority could initiate such departmental proceedings, the order of punishment could be imposed only by the lending authority.
The right of employment is a fundamental right. Right to continue in employment, having a direct nexus with the right of livelihood as enshrined in Article 21 of the Constitution of India is, thus, a fundamental right.
21. In Basudeo Tiwary v. Sido Kanhu University and Ors., , the Apex Court held that before termination of services not only the principles of natural justice are required to be complied with, the procedural safeguards are required to be strictly followed.
22. The learned Tribunal, as noticed hereinbefore, did not ask itself to the right question. It merely refused to grant a discretionary relief to the petitioner on the ground that he could not have changed his stand. The learned Tribunal, however, failed to notice that the Government of Gujarat did not appear before it. It also failed to notice that the Sports Authority of India also in passing the impugned order of compulsory retirement resorted to the Office Memorandum dated 31.03.1987, which according to it, was not applicable and, thus, it also changed its stand. As would be evident from its letter dated 14.06.1989, it is not known as to what impelled the Sports Authority of India to change its stand and what impelled the Government of Gujarat to change its stand.
23. When both the parties, thus, have been shifting stands, in the peculiar facts and circumstances of the case, we think that the interest of justice would be sub-served if the writ petition is disposed of with the following directions:-
a. the petitioner shall stand reverted to the Government of Gujarat;
b. the Government of Gujarat will take appropriate decision as regard imposition of punishment upon the petitioner; and c. the Government of Gujarat would also be entitled to pursue the criminal case against the petitioner;
d. the petitioner shall, however, be deemed to be placed under suspension since the date of compulsory retirement till an appropriate order if any, is passed and would only be entitled to subsistence allowance. However, the period of suspension shall abide by the ultimate order of punishment.
24. These writ petitions are disposed of with the aforementioned directions. However, in the facts and circumstances of the case, there shall be no order as to costs.