Central Administrative Tribunal - Delhi
Vipin Kumar Choudhary S/O Dr. R. N. Singh vs Union Of India Through on 11 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.2735 of 2010 This the 11th day of August, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Vipin Kumar Choudhary S/o Dr. R. N. Singh, R/o 38, Vikas Vihar, Mohan Puri, Meerut-250001. Applicant ( By Shri S. K. Gupta, Advocate ) Versus 1. Union of India through Secretary, Department of Agricultural Research &Education, Krishi Bhawan, New Delhi. 2. Director General, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi. 3. Director, Project Directorate on Cattle, PB No.17, Grass Farm Road, Meerut Cantt 250001 (UP). 4. Director, Project Directorate for Cropping System Research (now renamed as Project Directorate for Farming Systems Research), Modipuram, Meerut (UP). 5. Secretary, Indian Council of Agricultural Research, Krishi Bhawan, New Delhi. Respondents ( By Shri Gagan Mathur, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Vipin Kumar Choudhary, Scientist in the discipline of Computer Application in Agriculture in the Indian Council of Agricultural Research (ICAR), the applicant herein, in this Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, takes exception to the orders vide which recovery of an amount of Rs.6,005,576/- for the spell of his study leave at the rate of Rs.10,000/- per month in 60 installments plus Rs.5,576/- from the salary of July, 2009, is to be made, as also the orders vide which his appeal against the order of recovery was rejected.
2. The facts of the case as set out in the Original Application reveal that the applicant was appointed as Scientist in the discipline of computer application in agriculture on the basis of result of the Agricultural Research Service (ARS) Examination, 1996, vide order dated 20.11.1997. An advertisement appeared in the national newspapers as also in the Employment News dated 31st May to 6th June, 2003 regarding admission in various courses including M.Tech + Ph.D (Computer Science) course in University Teaching Department of Makhanlal Chaturvedi Rashtriya Patrakarita Vishwavidyalaya, Bhopal. The duration of the integrated M.Tech + P.D in computer science was prescribed as two years for M.Tech + two years for Ph.D. It is the case of the applicant that the said university is recognized under the University Grants Commission Act. While working in the Project Directorate on Cattle, the applicant applied for admission to the university, which has been established through an Act of the Madhya Pradesh Legislature in 1990 and recognized under the Act aforesaid, through proper channel, as acquiring higher qualifications for M.Tech + PhD in computer science was firstly beneficial to the job performed by him and secondly, it was an essential qualification for his career advancement. His application was forwarded by the Project Directorate on Cattle, Meerut, and he was granted admission in M.Tech + Ph.D course in Bhopal campus of the university as per notification dated 8.9.2003. The university granted him permission for submitting thesis after completion of M.Tech course. Thus, the total time permitted to complete the M.Tech + Ph.D programme was reduced from four to three and a half years. The course was to commence on 25.9.2003 and students were required to deposit their fees by 20.9.2003. The Project Directorate on Cattle, Meerut through whom the applicant had forwarded his application, accorded approval and sanctioned three years study leave to him w.e.f. 25.9.2003. The applicant was requested to hand over complete charge of ARIS/Computer Centre to the nominated officer and execute requisite bond so that he could be relieved in the afternoon of 24.9.2003. The applicant executed the bond which inter alia provided that in the event of obligor failing to resume duty, or resigning from the service or otherwise quitting service without returning to duty after expiry or termination of the period of study leave, or at any time within a period of three years after his return to duty, the obligor and the sureties would forthwith pay to the Council or as may be directed by the Council on demand, the sum of Rs.6,00,000/- together with interest thereon from the date of demand at the government rates for the time being in force on government loans. It is the case of the applicant that the bond nowhere mentioned that the obligor would have to pay back the bond money in case he is not able to complete the course in the circumstances beyond his control. The Directorate relieved the applicant in the afternoon of 23.9.2003 to join Ph.D programme in computer science on 25.9.2003 at the university, vide order of even date. The grant of study leave for three years was to be effective from the date of commencement of course, i.e., 25.9.2003 at the university. The registrar of the university was also informed accordingly with the request that the applicant may be allowed to join the course as per their programme. It is the case of the applicant that as per item 8 of the terms and conditions of the grant of study leave sanctioned vide memorandum dated 20/22.9.2003, he was required to submit six-monthly progress report in his study to Director, Project Directorate on Cattle, Meerut through his supervisor or head of the institution. This report was mandated to reach the competent authority within one month of expiry of six months of study leave, and if the report was not to reach the competent authority within the time specified, the period of study might be deferred till the report of such report. The applicant from time to time addressed to the Director, Project Directorate on Cattle informing about the six-monthly progress report on completion of M.Tech + Ph.D course work. The applicant completed the course and examination prescribed for the degree of Master of Technology in Computer Science in the month of November, 2006, as per the degree certificate dated 15.5.2007 issued to him by the university in that behalf. The applicant was declared qualified for award of the degree having passed the examination in first division. The university, however, informed the Project Director that the applicant had completed the requirement for fulfillment of M.Tech course, subject to examination of the project proposed to be held in March, 2006. It was also informed that due to some administrative reasons the continuation of Ph.D course at the university would take some more time than it was stipulated, and, therefore, the applicant was allowed to discontinue after completion of M.Tech to rejoin his duties. It was mentioned that he would be allowed by the university to complete his Ph.D course as soon as it was to continue the said course. In the circumstances as mentioned above, the applicant was allowed to join his duty in April, 2006. The Project Director vide memorandum dated 5/7.4.2006 allowed the applicant to rejoin duties at the Project Directorate on Cattle, Meerut before completion of Ph.D course, subject to the condition of study leave regulations 1991 of ARS. It is the case of the applicant that there was no fault at his end, and it is only the university which discontinued the Ph.D programme and, therefore, he was left with no choice but for to rejoin his duties at the Project Directorate after completion of the M.Tech degree, and that as it is due to negligent service of the university that the career of the applicant has suffered a setback, he approached the District Consumer Forum in Bhopal for redressal of his grievances. It was pointed out that the university had no faculty with Ph.D in computer science department and, therefore, the applicant could not continue the Ph.D. course, and that the requirements of UGC which were mandatory wee not met by the university. The District Consumer Forum vide its order dated 19.11.2007 accepted the complaint of the applicant and the university was directed to comply with the orders passed by the said forum. The university preferred an appeal before the State Consumer Forum against the order passed by the District Consumer Forum. The appeal was partly allowed and the order of the forum below was modified to the extent that the order for the compensation was reduced to Rs.7,00,000/-. The university was also required to pay Rs.5,000/- as costs to the applicant, but the order aforesaid has not been implemented so far. It is the case of the applicant that the fact remains that due to deficient service of the university, he had to suffer immense loss in his career progression. On joining of the applicant, without any show cause notice the respondents vide order dated 10.7.2009 informed the applicant that it was mandatory to make recovery of the leave salary and other allowances (Rs.6,23,177 paid to him plus interest of Rs.73,072/- for the period 25.9.2003 to 19.4.2006) immediately as per the study leave rules and regulations and the bond executed by him. In the meantime, the applicant was transferred from the Project Directorate on Cattle, Meerut to the Project Directorate for Cropping System Research, Modipuram vide order dated 12.6.2009. He was informed by the respondents on 29.30.7.2009 that the competent authority would recover the total amount of Rs.6,05,576/- for the spell of his study leave at the rate of Rs.10,000/- per month in sixty installments plus Rs.5,576/- from the salary of July, 2009, and he would be relieved from the Directorate in the afternoon of 31.7.2009 to join his place of transfer. Constrained, the applicant made a representation to the Director General, ICAR, stating that the provision of recovery of salary is to avoid misuse of study leave, but the applicant has done everything that was expected from him, and that he had successfully completed the Ph.D course work and even obtained M.Tech degree. The applicant further stated that he had started his research work, and that he would have submitted his Ph.D thesis in time but the university decided to discontinue the Ph.D course, and he was being penalized for no fault of his. The respondents, however, reiterated their decision. It is mentioned in the order that the applicant after availing study leave could not obtain the Ph.D degree within the stipulated period for certain reasons beyond his control, and that he had approached the judiciary for appropriate relief and the issue was sub judice. However, the litigation, it is mentioned, is between the applicant and a Bhopal based university and that ICAR is not a party to the said litigation, and insofar as ICAR is concerned, the applicant had not obtained the Ph.D degree within the stipulated time and, therefore, the pay and allowances that were paid to him for the spell of his study leave have to be recovered. On the directions of ICAR, recovery from the salary of the applicant is to be effected since July, 2009, as per office order dated 29/30.7.2009.
3. It is from the facts as fully detailed above that the applicant has called in question the initial order and the subsequent orders for recovery and reiteration thereof, and in consequence of setting aside the orders aforesaid, seeks further direction to the respondents to refund the amount already recovered from him. When the matter came up before us at motion stage on 20.8.2010, while issuing notice to the respondents, we ordered that the recovery would stand stayed.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their reply contesting the cause of the applicant, wherein some preliminary objections have been raised. As nothing based upon the said objections has been urged during the course of arguments, it would not be necessary to make a mention of the same. In the preliminary submissions, it has inter alia been pleaded that the ICAR had formulated its own Agricultural Research Service Study Leave Regulations, 1991 with the sole intention of encouraging talented technical manpower to acquire more professional competence and to enhance their qualifications. These regulations were very liberalized than the study leave regulations of DOP&T/Government of India. However, a scientist inter alia who is unable to complete his studies within the period of study leave granted to him would be liable to refund to the organization the amount of leave salary and allowances and all other expenses incurred on him or paid to him in connection with the course of study. The applicant, it is pleaded, had proceeded on his own volition for pursuing a Ph.D degree from the university aforesaid after executing a formal bond as per rules. However, he could not obtain Ph.D degree and was permitted to resume duty wit M.Tech (Computer Science) degree provided by the university. It is further pleaded that the applicant has not obtained the degree for which the study leave was sanctioned to him. Mention is then of the plea raised by the applicant that it was not possible for him to complete the Ph.D, and the complaint filed by the applicant in the consumer forum, wherein a direction was issued to the university to pay the applicant a sum of Rs.10 lacs by way of salary loss and compensation. This dispute, it is stated, is totally between the applicant and the university, and that the consumer forum has already ordered compensation to the applicant. In the reply on merits, there does not appear to be any serious dispute on the factual aspect of the case. The bond executed and the rules alone have been pressed into service.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The order dated 22.7.2009 for recovery, it is admitted position, came to be passed without putting the applicant to notice. In the other orders reiterating the earlier stand, some on which came to be passed on representations made by the applicant, we do not find any mention as regards the plea raised by the applicant that it was not possible for him to complete his Ph.D degree. The plea of the applicant spelt out from the orders passed by the district consumer forum and the appellate forum have been stated to be an inter partes litigation between the applicant and the university, to which the respondent ICAR was not a party. All that is mentioned is that considering the circumstances of the case, the recovery would be made in installments.
6. Since the order for recovery has been passed without even putting the applicant to notice, the same, in our view, is liable to be set aside on the ground alone. However, in the context of the stark fact that the respondents in response to the representation made by the applicant would not even consider the plea raised by the applicant, and at the most, would mention that the litigation in the consumer forum was between the applicant and the university to which the respondent ICAR was not a party, it may not be advisable to remit this matter to the respondents to put the applicant to notice, and in consideration his plea to determine the issue. Further, the facts as projected in the OA, and in particular, that the applicant was not at fault for not completing the Ph.D degree, has not been disputed, and, in any case, stands confirmed from the orders passed by the district consumer forum and the appellate forum. Indeed, the applicant has executed a bond that in case he would not complete the study he may have to refund the pay and allowances given to him during the period he was to be on study leave. This may be said to be a contract between the applicant and the respondents, but we are of the view that the applicant could not abide by the terms of the contract as the same stood extinguished by frustration and was incapable of performance at the end of the applicant. Even if one is to go by the provisions of the Indian contract Act and Section 56 thereof, the agreement which is incapable of performance has to be ignored on the principle of frustration of contract. To illustrate, if there is an agreement between two parties for sale and purchase of land, and before the date of sale, as mentioned in the agreement, may arrive, the land may be acquired by the government, or by alluvion and diluvian may come under riverbed, there would be no question for the vendee to execute the sale deed. The contract has to be given a quietus having been frustrated. The applicant did complete the M.Tech degree in first division and was in the process of submitting his thesis as well, but the university would be incapable of accepting his thesis and giving him degree of Ph.D. In the facts and circumstances, as mentioned above, there was no question for the applicant to complete his Ph.D.
7. In totality of the facts and circumstances of the case, as mentioned above, we are of the view that the applicant cannot be asked to return the amount of pay and allowances that may have been given to him up to the time he remained busy in doing M.Tech degree, and till the time he may have been informed that it was not possible for the university to confer the degree of Ph.D. The part of the period after which the applicant may not have continued with the study of Ph.D and might have to report back may be the only period for which the respondents may be able to recover the pay and allowances having already been paid for the said period.
8. This Application is partly allowed. The respondents shall put the applicant to notice only as regards recovery of pay and allowances given to him for that part of the study leave for which he came back and joined his services and may have been paid salary and allowances. There is no question for the respondents to recover the part of the salary and allowances given to the applicant for the period he remained on leave and was actually studying.
9. With these observations/directions this Original Application is allowed to the extent as fully detailed above. There shall, however be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/