Central Administrative Tribunal - Delhi
Dr. Dal Chand vs Union Of India on 19 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2129/2008 NEW DELHI, THIS THE 19th DAY OF APRIL 2010 HONBLE MR. JUSTICE V.K. BALI, CHAIRMAN HONBLE MR. L.K. JOSHI, VICE CHAIRMAN (A) Dr. Dal Chand, S/o Shri Chet Ram, R/o D403, Aangan, Opp. Thakur College, Thakur Village, Kandivali (E), Mumbai-400 101 Ex-CMO of Safdarjung Hospital, New Delhi (Under Ministry of Health & FW) Applicant (By Advocate: Shri Sushil Sharma) Versus Union of India, through: 1. Secretary, Ministry of Health & Family Welfare Nirman Bhawan, New Delhi 2. Under Secretary to The Government of India, Ministry of Health & Family Welfare Nirman Bhawan, New Delhi 3. Medical Superintendent, Safdarjang Hospital, New Delhi-110 001 4. Union Public Service Commission, (Sangh Lok Seva Ayog), Dholpur House, Shahjahan Road, New Delhi-110 069. Respondents (By Advocate: Shri R.V. Sinha) O R D E R
Mr. L.K. Joshi, Vice Chairman (A) The question arising in this second round of litigation is whether the dogged persistence of the Respondents to punish the Applicant for his alleged overstay on foreign posting is justified in the light of several extenuating arguments submitted by the Applicant in his favour.
2. The facts, which are not in dispute, are that the Applicant belonged to the cadre of Central Health Scheme (CHS) since 1982. He proceeded on foreign assignment with the Government of Oman in the Royal Oman Police Hospital Authority (ROPHA), with due permission of the first Respondent, Ministry of Health and Family Welfare (MH&FW) in 1988, for a period of two years. The period of his foreign assignment was extended by a period of three years by the first Respondent in consultation with the Ministry of External Affairs. The extension was thus up to 5.03.1993. When the Applicant did not return from his overseas assignment, departmental proceedings were initiated against the Applicant by issuing a Memorandum of charge dated 19.02.1997 for overstaying on foreign assignment beyond the period up to which it had been extended. The Applicant returned to India only in June 1999. A copy of the report of the inquiry officer was sent to the Applicant, immediately on his return, for making representation against the report. The Applicant approached this Tribunal through OA number 1624/2002, challenging the report of the inquiry officer on various grounds, including the bias of the inquiry officer against the Applicant. The aforesaid OA was allowed on 13.11.2002 with the following directions:
11. In the above view of the matter, OA 1624/2002 succeeds and is accordingly allowed. The inquiry report dt. 29-2-2000 is, therefore, quashed and set aside and the matter is remanded to the respondents to have the inquiry proceedings ordered with a different I.O. and action taken accordingly. This exercise shall be undertaken within three months from the date of receipt of a copy of this order. The applicant shall also co-operate with the inquiry so that it would be completed fast. We also make it clear that we are not expressing any opinion on the merits of the issue raised in the disciplinary proceedings. No costs. Fresh inquiry, however, commenced only on 4.07.2003. The Applicant made a representation on 15.07.2003, 22.08.2003, 15.09.2003 and 15.12.2003 about the maintainability of the inquiry on the ground that it had already abated as the time limit given by the Tribunal to commence fresh inquiry had already expired. Meanwhile, the Applicant submitted his application seeking voluntary retirement on 30.07.2004, as he had completed 20 years of service, under Rule 48-A of the CCS (Pension) Rules, 1972. Notice of three months, as prescribed in the Rule, was given. This was rejected by the MH&FW, the first Respondent, on 2.05.2005 in the following manner:
SUB: Voluntary retirement notice in respect of Dr. Dal Chand, CMO(NFSG), Safdarjung Hospital, New Delhi.
Sir, I am directed to refer to your letter No. PF-1-656/86-Admn.I dated 18.2.2005 on the subject mentioned above and to say that as the case regarding unauthorised absence of Dr. Dal Chand, CMO(NFSG) has not been settled yet, Dr. Dal Chand has not completed twenty years of qualifying service. Hence, he is not eligible to seek voluntary retirement under Rule 48-A of CCS Pension Rules.
2. Dr. Dal Chand, CMO (NFSG) may be informed accordingly. The inquiry proceeded against the Applicant ex parte. The inquiry officer gave his report on 24.01.2005 and came to the conclusion that the charges framed against Dr. Dal Chand, the Applicant have not been proved, on the basis of the following observations:
For (ii), it is not possible for a person to return of his own without intimation to/relieving by his employer with whom he has been working. Para-4, Line 21 onwards of letter No.MUS/235/2/88 27.9.1990 from Mr. Amrohi A.K., First Secretary, Embassy of India, Muscat may be referred to where it is clearly mentioned as expert Indian rather than individual person. A letter dated 10.1.1992 from Deputy Secretary or Ministry of External Affairs, Government of India may also be referred to where it was requested to extend the deputation of Dr. Dal Chand, as a special case, keeping in view relations of the Government of India with Sultanate of Oman. The letter No. MOS/235/2/88 dated 12.2.1997 from Sh. C.S. Khera, Consular, Embassy of India, Muscat where he has requested Government of India for extension of deputation of Dr. Dal Chand may also be referred to.
Department of Personnel and Training letter No.5/1/91-FAS dated 20.5.94 may also be seen where it was mentioned regarding posting of Dr. Muneedra Gupta, Senior Medical Officer from Deen Dayal Upadhyaya Hospital, New Delhi to Oman in place of Dr. Dal Chand. Ministry of Health and Family Welfare did not pursue the matter well to replace Dr. Dal Chand. Considering the prevalent situation including inability of Sultanate of Oman to relieve Dr. Dal Chand, pursuation of Embassy of India, Muscat and political relations of India with Sultante of Oman, it will not be appropriate to say that Dr. Dal Chand had willfully extended the contract violated the terms and conditions of his deputation. The disciplinary authority did not agree with the report of the inquiry officer and recorded a note of disagreement dated 24.08.2005 observing, inter alia, thus:
It is a matter of fact that while granting an extension of deputation for three more years beyond the original deputation period of two years, the Competent Authority had clearly and categorically informed Dr. Dal Chand that no request for further extension will be entertained and as such he was required to make timely arrangements for his release and reversion to India by 5.3.1993. There is also indisputable documentary evidence on over stayal in Oman by the official beyond the permissible term of deputation of five years. Further there is clear evidence indicating that Dr. Dal Chand did not make any written request to the concerned authorities in the Royal Oman Police Hospital where he was working for being released on completion of the foreign assignment. The Applicant made a representation and, among other grounds, stated that he had submitted his notice for voluntary retirement on 30.07.2004. The matter was referred to the Union Public Service Commission (UPSC). The UPSC recommended removal from service, on the basis of consideration in paragraph 4.2 of its report, which is extracted below:
4.2 The Commission further observed that it is a fact that no realistic efforts were made by the Ministry of Health & F.W. with the Indian Embassy in Muscat or with the Omanese authorities or with the Ministry of External Affairs, New Delhi for the release of the CO. However, it is also a fact that the C.O. was granted extension of deputation to Oman till 05.03.1993 with the stipulation that no request for further extension would be entertained. He was also required to make arrangement for his release and reversion to India by 05.03.1993. Therefore, C.Os contention that he had to continue with ROP Oman as he was not relieved is of no consequence as the onus to rejoin duty in India by 05.03.1993 lay on him. Inspite of this, the C.O. preferred to remain at ROP Hospital and was relieved by the Sultanate of Oman on 31.05.1999. Thereafter, he joined his duty in India. Thereafter, as per available records, the C.O. has submitted a notice seeking voluntary retirement and stopped coming to office forthwith. The Commission, thus, is of the considered opinion that the C.O. is not interested in continuing his services with Govt. of India. Keeping this in view, the Commission hold the charge as proved. (emphasis added) The appeal submitted by the Applicant against the order of the President was rejected on the ground that there was no appeal against the order of the President.
3. We have also taken note of the letter written by the Counselor (P) of the Embassy of India at the Sultanate of Oman, which was written on 12.03.1997 after the Applicant had been served the Memorandum of charge dated 19.02.2007. The relevant portion of the letter is reproduced below:
Dr. Chand has been working in a hospital where all the VVIPs are treated and we have written to the Ministry of Health and Family Welfare, New Delhi as well as the Ministry of External Affairs, New Delhi several letters for granting him extension after the period of 5 years but so far we have neither received any reply nor any acknowledgement from the Ministry. Being an experienced doctor in that hospital, the Government of the Sultanate of Oman were not in a position to relieve him as especially he was taking medical care of His Majesty the Sultan of Oman.
Keeping in mind the cordial relations between the two countries and for no fault of Dr. Chand as all his correspondence was routed through this Embassy, I shall be grateful if his period after 5 years is regularized and he may allowed to stay here upto 31st August, 1997 and disciplinary action as mentioned in your above letter may be condoned. The Royal Oman Police, by its letter dated 20.08.1997 had refused to relieve the Applicant by stating:
I would like to inform you that due to the prevailing exigencies at the ROP Hospital, it has become necessary to retain your services at least till 14 March 1998. As such I am pleased to inform you that your present contract has been extended till 14 March 1998, which might be renewed for a further period.
We do appreciate the services you have rendered to the Royal Oman Police in various fields especially the Emergency Medical Services and the Medivac cover, besides your regular surgical services. As you very well know, our Omani doctors, who were scheduled to return to Oman could not do so due to their further studies overseas which they are likely to complete by mid 1998. Although we are aware of your commitments in India, to rejoin your duties, we have, at present, no alternative but to request you to continue at least till 14 March 1998, which we hope you will accept. The Applicants contract was further extended up to 14.03.1999 by the Royal Oman Police by letter dated 4.11.1997, placed at page 165 of the paper book. The Applicant kept the first Respondent au fait with the developments by his letters dated 28.06.1994, 15.01.1996, 12.02.1997 and 4.11.1997, placed on record in the rejoinder affidavit. On 4.11.1997 he informed the first Respondent that:
Although I would have joined my services back in India, in view of the prevailing exigencies at the ROP Hospital, I am compelled to continue my services till they release me. I would, therefore, be most grateful if kind consideration could be given to extend my deputation with the Royal Oman Police till 14 March 1999. A note dated 14.11.1995 of the Respondent MH&FW has also been placed on record, which shows that the said Respondent had been making efforts for further extension of the Applicant in his foreign assignment. The relevant portions of the note read thus:
3.However, on receipt of further communications from the Embassy of India and the Ministry of External Affairs, where they expressed their feelings about the loss of Indias credibility as a source of supply of not only doctors, but also Engineers and other professionals and that our long term interests should not be allowed to be affected by some of our internal decisions, the matter was takenup with the DOPT (FAS Section). The DOPT informed in August, 1993 that Central Establishment Board which considered matter on 22.7.93, has directed that an expert must be found by the Ministry of Health and Family Welfare to replace Dr. Dal Chand and thereafter, the Ministry should indicate the date on which he would join in Oman, to the Ministry of External Affairs. The Ministry of External Affairs would instruct the Embassy of India in Oman to request the Omani authorities to accept the new expert to join and relieve Dr. Dal Chand to return to India. After circulating the post amongst various Delhi Hospitals, CGHS etc and also requesting the FAS Section to suggest Specialist in Surgery from the panel maintained by them, the Bio-data of 4 surgeons belonging to CHS, including one Dr. Muneeinder Gupta, SMO, CHS whose name was suggested by the Dept of Pers & Trg (FAS) Section who were willing to serve on deputation in Oman, was sent to Indian Embassy in Oman with the request that the Government of Oman may be requested to select an officer from these names for deputation in Oman in place of Dr. Dal Chand.
4. The Embassy was also informed that in any case, whether any surgeon out of these 4 is found acceptable or not for serving in Oman, the govt of Oman may be requested to relieve Dr Dal Chand immediately and that Dr Dal Chand may also be informed that he should either return to India or send his resignation, failing which he will be liable for disciplinary action being taken against him (p. 150). Dr. Dal Chand, in a separate communication addressed to him, was also informed that his requests for extension beyond 5 years had not been agreed to and he should either return and join duty in India immediately and if he is unable to join duty, he may send his letter of resignation from CHS. He was also informed that in case his resignation from CHS is not received within 30 days from the date of issue of this letter, he will render himself liable to disciplinary action for un-authorised absence.
5. The Indian Embassy, however, informed vide their letter dated 10th April, 1994 addressed to Shri SK Bhatnagar, Joint Secretary, Ministry of External Affairs, copy endorsed to us, that if we insist on Dr. Dal Chand returning to India, his replacement would certainly be a non-Indian doctor and requesting them (Ministry of External Affairs) to impress on the Ministry of Health and DOPT to review the 5 years rule and grant selective extensions to doctors beyond 5 years on the merits of each case. In reply to this also, this ministry had re-iterated its earlier decision (p. 165).
6. However, Dr. Dal Chand has not returned to re-join duty in India and instead, communications have been received from him, Royal Omani Police Hospital and Embassy of India, repeating their requests for an extension. This position was intimated to the DOPT vide our letter dated 27.10.94. In November, 1994, the DOPT has desired to know the period for which extension is sought in the term of deputation. This information was required by them for submission to CEB at their next meeting. They were informed that the term of deputation of Dr. Dal Chand with Royal Omani Police Hospital in Sultnate of Oman has expired on 14 March, 1993 and the period of extension for deputation has been requested upto 14 March, 1996. We have subsequently sent reminders to the DOPT on 14 March, 95, 4th April, 95 and 29th Sept 95, no reply has so far been received from them. Indian Embassys letter dated 12.4.95 addressed to MEA also refers in this connection.
4. Rule 48-A of the CCS (Pension) Rules, 1972 reads thus:
48-A. Retirement on completion of 20 years qualifying service (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.
Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is
(i) on assignments under the Indian Technical and Economic Co-operation (ITEC) Programme of the Ministry of External and other aid programmes.
(ii) posted abroad in foreign based offices of the Ministries/ Departments.
(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the Appointing Authority;
Provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3-A) (a) A Government servant referred to in sub-rule (1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reasons therefor;
(b) On receipt of a request under Clause (a), the Appointing Authority subject to the provisions of sub-rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the Appointing Authority, shall be precluded from withdrawing his notice except with the specific approval of such authority:
Provided that the request for withdrawal shall be made before the intended date of his retirement.
(5) The pension and [retirement gratuity] of the Government servant retiring under this rule shall be based on the emoluments as defined under Rules 33 and 34 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity.
(6) This rule shall not apply to a Government servant who
(a) retires under Rule 29, or
(b) retires from Government service for being absorbed permanently in an Autonomous Body or a Public Sector Undertaking to which he is on deputation at the time of seeking voluntary retirement.
5. With these facts in the background, the learned counsel for the Applicant has argued that his overstay at Oman can neither be termed as wilful nor as unauthorised. He was caught in a bind and could not get out. The Ministry failed to find suitable replacement in his place. There was pressure from the Embassy and the Omani authorities. The learned counsel has pointed out that the Applicant could not just run away from Oman. In paragraph 9 of the abortive appeal the Applicant has explained the procedure for leaving Oman, which reads thus:
9. As per the established procedure, I was required to obtain clearance from the following offices of Govt. of Oman namely Division Formation Mess, Dte. General of Supplies & Logistics/Project Maintenance, Directorate of Police Clubs, Directorate of Social Welfare, Royal Oman Police Pensions Trust LLC, Dte. Genl. Of Information Technology and Dte. Genl of Human resources. After obtaining said clearances, I had to obtain an EXIT PERMIT from Omani Authorities in respect of all members of my family staying there in Oman. In absence of the abovesaid clearances/documents, it is not possible to leave that Country. There is no way to run away from that Country in absence of necessary administrative requirements/clearances. (emphasis added) It is argued that the Applicant simply could not have got all the aforementioned approvals in the teeth of the resistance by the Government of Oman. The Indian Embassy was in touch with the first Respondent, who was trying, as late as November 1995, to get an extension for the Applicant by writing to the DoP&T.
6. The Respondents had been directed by this Tribunal in OA number 1624/2002, the earlier OA of the Applicant, to complete the departmental proceedings by appointing a new inquiry officer, within three months from 13.11.2002, the date of order in the aforesaid OA. The Respondents received the above judgement of the Tribunal on 29.11.2002, but initiated the proceedings only on 6.06.2003, when a new inquiry officer was appointed. Extension of time was also not sought from the Tribunal beyond the period of three months. This inquiry officer was also changed. The inquiry officer, who completed the inquiry was appointed only on 23.04.2004, almost more than one year beyond the limit fixed by the Tribunal. The Respondents did not even seek extension of time. The inquiry would thus have abated due to non-compliance of the Tribunals direction, contends the learned counsel.
7. It is further contended that the Applicant had submitted an application for voluntary retirement on 30.07.2004, after completing 22 years of service. Since there was no communication from the Respondents rejecting the notice for voluntary retirement, it would automatically become effective after three months as per the provisions of Rule 48-A ibid. The first Respondent rejected the notice on 2.05.2005, nine months after the date of notice. By this time the Applicant had retired from service. The inquiry officer gave his report on 29.01.2005, exonerating the Applicant. The notice of voluntary retirement was rejected three months thereafter on the ground that the Applicant had not completed 20 years of service, as the matter regarding his unauthorised absence had not been settled. The note of disagreement was issued seven months after the inquiry officers report and three months after rejecting his notice for voluntary retirement. The argument of the learned counsel is that on the day he gave his notice for voluntary retirement, his service of 22 years has been completed. The notice of voluntary retirement requires acceptance by the Appointing Authority under sub-Rule (2) of Rule 48 A. However, the proviso to sub-Rule (2) provides that, in case the Appointing Authority does not reject the notice by refusing to grant the permission for retirement before the expiry of the period in the notice, the retirement shall become effective from the day of expiry of the period specified in the notice. It is contended that there is no ambiguity in the aforesaid Rule and the Applicant shall be considered to have retired three months after 30.07.2004. The order dated 2.05.2005, rejecting his notice, is illegal.
8. It is also contended that the note of disagreement itself has not dealt with the reasons advanced by the inquiry officer for returning the finding of `not guilty. The reasons considered by the inquiry officer clearly show that the overstay of the Applicant at Oman was not wilful and he could not come out due to reasons beyond his control.
9. The learned counsel, making advertence to the advice of the U.P.S.C., would contend that the advice is based on fallacious logic. Paragraph 4.2 of the advice is specifically adverted to. It has already been reproduced in the preceding paragraph 5 of this order. The Commission was totally unjustified in inferring the Applicants guilt from the fact of his tendering notice for voluntary retirement, contends the learned counsel.
10. The Respondents have, on the other hand, contested the cause of the Applicant. The learned counsel has brought to our notice the following clauses of the terms and conditions governing the Applicants posting to Oman:
(xvii) If his deputation term is not extended it will be his responsibility to ensure that he returns to India immediately on expiry of his term. It should also be his personal responsibility to initiate correspondence with his parent department for his return at least six months prior to the expiry of deputation term. He should also ensure that any request from the Govt. of Oman for extension of his period of deputation beyond two years should be forwarded by the concerned Indian Mission in Oman atleast six months before the expiry of the deputation period.
(xviii) Dr. Dal Chand should note that if he fails to fulfil the above obligations of his part, his continued stay outside India after the expiry of sanctioned term, shall be regarded as a deliberate act for which he shall be personally held responsible and which may entail institution of disciplinary action against him. It is stated further that he never wrote to the Government of Oman for his relief, which shows his desire to continue on posting there, in defiance of the terms and conditions. He had been given sufficient warning that action would be taken against him, if he did not return within the stipulated period. These are the only arguments advanced on behalf of the Respondents.
11. We have considered the rival contentions and have minutely gone through the records.
12. From the record it is clear that the Applicant was caught in a cleft stick. Whatever action he might have chosen to take would cause adverse consequences to him. It is borne out by the correspondence between the Ministry of External Affairs and the first Respondent, the almost peremptory directions communicated by the Omani authorities to the Applicant, which we have quoted above, and the anxiety of the first Respondent to give him an extension, as late as 1995. It is amply established that it was quite difficult for the Applicant to extricate himself from the Omani job. The terms and conditions doubtlessly ordained that the Applicant should not overstay. However, it is easier to say that he should have returned than, in the circumstances in which the Applicant was placed, to do it. There are strong mitigating circumstances in the Applicants case as is apparent from the record, including the inquiry officers report. We are convinced that no case for wilful default on the Applicants part is made out by the Respondents. The observation of the UPSC, holding that his deliberate overstay manifests itself from his disinterest in serving the Government as seen from his notice of voluntary retirement, seems illogical.
13. In order for the overstay of the Applicant in Oman to be considered as misconduct, there had to be an element of deliberate defiance of the Respondents instruction, some element of wilfulness, demonstrable attempt to defy the instructions given by the MH&FW to return to India and making false excuses to stick to the post. It seems clear to us that there were compelling circumstances because of which the Applicant failed to extricate himself from his posting at Oman and which is borne out by the documents placed on record. The OA would succeed on this ground alone.
14. In view of the above considerations, we are not considering other arguments on Applicants behalf, although we have noted those arguments, regarding the abatement of the inquiry, the nature of the note of disagreement and voluntary retirement.
15. The order dated 31.07.2007 of the disciplinary authority is, therefore, quashed and set aside. Since the only ground given for not accepting the notice for voluntary retirement was that the period of service put in by the Applicant was not settled owing to the inquiry pending against him, we hold that the Applicant would now be considered to have retired from service three months from the date of notice of retirement because the above impediment is no longer there in view of the quashing of the disciplinary authoritys order. The post retirement benefits and pension of the Applicant may accordingly be calculated and the dues should be paid to him within three months of the receipt of a certified copy of this order. We are not awarding any interest or costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/