Central Administrative Tribunal - Delhi
Dinesh Kumar Upadhyay vs Union Of India Through Secretary on 9 May, 2014
Central Administrative Tribunal Principal Bench OA No.4319/2011 Reserved on: 13.03.2014 Pronounced on: 09.05.2014 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) Dinesh Kumar Upadhyay, Ex-IFS S/o late Sh. Kedarnath Upadhyay, R/o 4, Aishwarya Residency, G.E. Road, Telibandha, Raipur (C.G.). Applicant (By Advocate: Ms. S. Janani with Sh. Sunando Raha) Versus 1. Union of India through Secretary, Ministry of Environment and Forests, CGO Complex, Lodhi Road, New Delhi. 2. State of Tripura through Secretary, Department of General Administration (Personnel & Training) Secretariat, Agartala (Tripura). 3. Under Secretary, Department of General Administration (Personnel & Training) Secretariat, Agartala (Tripura). Respondents (By Advocate: Sh. Ritu Bisbas) O R D E R By Dr. B.K. Sinha, Member (A):
The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 assailing the order of the respondent no.3 dated 09.04.2008 (Annexure P-1) considering the period of absence of the applicant as his deemed resignation.
2. The applicant has prayed for the following relief(s):-
That the Honble Tribunal may be kindly pleased to call for the entire records pertaining to the case of the petitioner for its kind perusal.
That this Honble Tribunal may kindly be pleased to set aside and quash the impugned order dated 09.04.2008 passed by the respondent no.3 (Annexure P/11).
That this Honble Tribunal may kindly be pleased to direct the respondent reinstate the petitioner into his services with all consequential benefits.
That the Honble Court may be pleased to grant any other relief which the Honble Court deems fit and proper in the facts and circumstances of the present case.
3. The case of the applicant, in very brief, is that he is an Officer of 1989 batch of the Indian Forest Service allocated to Tripura cadre. During the course of his service, the applicant was kidnapped and sustained gun- shot injuries in his chest by the terrorist of the National Liberation Front of Tripura in the year 1995. Requiring him to undergo a prolonged medical treatment, the applicant was transferred on inter-State deputation to Madhya Pradesh, his home State initially for a period of three years which was subsequently extended by another two years on the recommendations of the respondent no.2. Following the bifurcation of the State of Madhya Pradesh, the applicant was allocated to the State of Chattisgarh where he completed his deputation in the year 2001. The case of the applicant is that in the meantime, he had also submitted an application for permanent cadre change from Manipur-Tripura to Madhya Pradesh on humanitarian and medical grounds as the warm and humid climate of Tripura was not conducive to his health. The applicant has submitted a medical certificate signed by two doctors of Bilaspur, namely, Dr. R.S.L. Tripathi and Dr. Ram Tiwari. The same was forwarded to the Government of India by the respondent no.2. However, the Government of India vide its order dated 08.09.1998 turned the same down on the ground that inter-cadre transfer was permissible only in case of marriage with an AIS officer to any State other than the home State (Annexure R-3 of the paper book). The applicant filed a Writ Petition No.43/2000 before the Honble High Court of Chattisgarh against the afore decision of the Government of India, which was dismissed vide order dated 25.06.2001. The Government of Chattisgarh thereafter intimated that the applicant was relieved w.e.f. 28.06.2001 in compliance to the orders of the Honble High Court of Chattisgarh. However, the applicant did not report to his parent cadre. Instead, he filed an SLP before the Honble Supreme Court of India bearing SLP No.10869/2001. The Honble Supreme Court, during the pendency of the SLP, directed the respondent no.1 to consider the request of the applicant sympathetically in light of the new guidelines and the circumstances under which the prayer had been made. The respondent no.1 intimated vide its letter dated 03.05.2002 that the ACC had rejected the request of the applicant for a permanent cadre transfer from Manipur-Tripura to Chattisgarh, upon the receipt of which, the Honble Supreme Court was pleased to dismiss the SLP vide its order dated 10.05.2002 (Annexure R-6 of the paper book). However, Government of India had extended the deputation of the applicant for a further period of one year in Chattisgarh on compassionate grounds.
4. The applicant had filed OA No.275/2005 for implementation of the undertaking given by the respondent no.1 before the Honble Supreme Court and for favourably considering the case of the applicant for inter-State cadre transfer. The applicant submits that while the matter was sub judice before the Jabalpur Bench of this Tribunal, the respondent no.2 served a notice dated 02.03.2006 as to why the unauthorized absence of the applicant for a period of more than one year should not be treated as his resignation from service under Rule 7(2)(a) of the All India Service (Leave) Rules, 1955 [hereinafter referred to Leave Rules, 1955] with a direction to submit his reply within a period of fifteen days from the date of receipt of the notice. The applicant thereupon submitted his representation mentioning therein his own injuries sustained during the course of his duty on account of the negligence on part of the police administration and informed that he was awaiting the implementation of the ACC resolution. For the sake of greater clarity, concluding paragraph of the representation is extracted as hereunder:-
I am not resigning from the service by way of unauthorized absence for a period of more than one year, but am waiting with bonafide intentions for implementation of the ACC decision, which was taken in keeping in consideration the circumstances and that the Honble Supreme Court was also appraised of the same by the Govt. of India.
5. The respondents did not find this representation satisfactory and directed him to submit a second representation within 30 days of the receipt of the order vide OM dated 09.08.2007. In response to this, the applicant vide his communication dated 06.10.2007 expressed his willingness to join his duties. The respondent no.2 vide communication dated 26.10.2007 directed the applicant to report for duty to the parent cadre within a period of 30 days from the receipt of the afore communication. On 14.12.2007, another letter was sent to the applicant in the following terms:-
In inviting a reference to your letter No. Nil dated 06th October, 2007 and this Departments letter of even number dated 26th October, 2007, I am directed to request you to kindly report for duties in the Parent Cadre (Tripura) by 31st December, 2007, failing which further action will be taken as per rules.
6. The case of the applicant is that he had not received the afore mentioned two communications dated 26.10.2007 and 14.12.2007. He continued to labour under the genuine impression that he would get intimation regarding his joining. Instead, he received a communication from the respondent no.2 terminating his services vide the impugned order dated 09.04.2008 on grounds of unauthorized absence from the service for a period of more than 5 years.
7. The applicant has adopted the following grounds in support of his application:-
That he was not in receipt of the communications dated 26.10.2007 and 14.12.2007 and was awaiting the response to his offer of joining vide letter dated 06.10.2007.
That the impugned order dated 09.04.2008 has been issued in violation of Article 311 (1) as it is only the President of India, who is competent to order the removal of All India Service officer while the applicant has been removed from service by a Deputy Secretary to the Government of India under the seal of the Government of Tripura.
The respondents have applied the provisions of Rule 7(2)(a) of the Leave Rules, 1955 as amended in the year 2004 treating the applicant to be unauthorizedly absent from the year 2001 whereas the amended rule would have no retrospective operation.
The applicant has relied upon the decision of this Tribunal in the case of Rahul Rai Sur, IPS versus Union of India and Another (OA No. 1505/2007 decided on 01.04.2008) submitting that the provisions of Rule 7(2)(a) of the Leave Rules, 1955 would not be applicable to the facts of the instant case. The only logical construction of Rule 7 of the Rules ibid in view of Articles 310 and 311 is that he could only be removed from service under the terms of Article 311(2) of the Constitution of India by the competent authority and none others.
The applicant has further alleged interpolation of records on part of the respondent no.2 and that he has not been duly solicitous of the sufferings of a loyal Government servant.
8. The respondents have filed a counter affidavit wherein the sequence of dates narrated is the same as had been discussed and need not be repeated for this purpose. It appears from the records and submissions of the applicant that the applicant had also filed a WP(C) No.213/2010 before the Honble High Court of Guwahati challenging the order dated 09.04.2008, which was dismissed vide order dated 05.04.2011 with liberty to approach this Tribunal and to condone delay, if any, for the period of pendency of the writ petition.
9. The basic submission of the respondents is that the applicant was released from inter-cadre deputation to Madhya Pradesh (later Chattisgarh) for a period of three years in June, 1996 extended by a further period of two years upto 23.06.2001 yet the applicant continued to absent himself unauthorizedly. The Ministry of Personnel, Public Grievances and Pension intimated the rejection of the request of the applicant for cadre transfer to Chattisgarh and the Honble Supreme Court had also dismissed his SLP vide order dated 10.05.2002. The Government of Chattisgarh intimated that the applicant had been released from the State w.e.f. 28.06.2001 for joining the parent cadre following the expiry of deputation period on 23.06.2001. In compliance to the order dated 25.06.2001 of the Honble High Court of Chattisgarh passed in WP(C) No.43/2000. When the applicant did not report for joining, this necessitated the issue of the show cause notice dated 26.03.2006. When the explanation submitted by the applicant was found unsatisfactory as also he even did not submit any leave application, a decision was taken to request the respondent no.1 for intimating the next course of action vide communication dated 26.07.2006 of the respondent no.2, the reply submitted by the Government of India is extracted hereunder for easy reference:-
I am directed to refer to your No.F35(81)-GA (P&T) dated the 14th May, 2007 on the above subject and to say that the State Government of Tripura may kindly take appropriate action against Shri D.K. Upadhyay, IFS (MT:89) as per the prevailing All India Services Leave Rules under intimation to this Ministry [which also has a foot note stating Provided that a reasonable opportunity to explain the reason for such absence shall be given to the member of the service before the provision of sub rule (2) are invoked] Accordingly, a second show cause, as referred to above, vide letter dated 09.08.2007 was issued. On the same date, a communication was received from the applicant indicating his willingness to join his duties and requesting the respondent no.2 to act accordingly. When the applicant failed to join his duties, a show cause was issued to the applicant with a direction to join his parent cadre within thirty days followed with by yet another letter dated 14.12.2007. When the applicant did not bother to join his duties, the impugned order dated 09.04.2008 had to be issued.
10. The respondents have further submitted that this is not a case of removal from service but it is a case of deemed resignation, therefore, under the Leave Rules, 1955 it is the State Government which is competent to take action. The respondents have further submitted that even if the contention of the applicant regarding changes in the Leave Rules, 1955 in the year 2004 were to be accepted on their face value still a period of more than one year (almost four years) had lapsed before the deeming resignation clause under Rule 7(2)(a) of Leave Rules, 1955 was invoked. The learned counsel for the respondents vehemently opposed the instant OA and submitted that it was without any basis and deserved to be dismissed as being totally misplaced and devoid of substance.
11. The applicant has submitted a rejoinder and also written arguments both of which have been encompassed while dealing with the arguments of the applicant. The respondents have also submitted their written submissions which have already been taken into account as mentioned earlier.
12. We have carefully examined the pleadings of the parties as also such documents as have been submitted by them and have also listened patiently the arguments put forth by the learned counsel for the parties. On the basis thereof, we find that the following issues necessary to decide the OA one way or the other way emerging:-
Whether the plea of non-receipt of the orders of the respondents dated 26.10.2007 and 14.12.2007 is sustainable in the facts and circumstances of the case?
Does the impugned order violates the vires of Articles 310 and 311 of the Constitution of India?
Was the State Government within its jurisdiction to invoke the provisions of Rule 7(2)(a) of the All India Service (Leave) Rules, 1955?
What relief, if any, could be granted to the applicant?
13. In so far as the first of the issues is concerned, we have examined the communications sent to the applicant vide OM dated 26.03.2006, 09.08.2007, 26.10.2007 and 14.12.2007. All these communications have been consistently addressed to the applicant at his given address i.e. Shri Dinesh Kumar Upadhyay, IFS(MT:89), Tripura Part, Palipura Saraugarh, P/o Saraugarh, Distt. Raipur, Chattisgarh. Evidently, the first communication was received as it was followed by a reply dated 21.04.2006. The communication dated 09.08.2007 was also addressed to the applicant at his address i.e. 115, Sector-III, Gitanjali Nagar, Palipur Saraugarh, P/o Saraugarh, District Raipur, Chattisgarh. This is the same address on which the earlier communication had been sent but with greater details this time. Subsequently, the communication of the applicant of the same date i.e. 09.08.2007 indicating his wiliness to join was received from the same address as above. The next two communications dated 26.10.2007 and 14.12.2007 have also been dispatched on the same address, though the latter being sent by speed post. We are of the view that while some of the communications have been received and replied to by the applicant, the question of non-receipt of others does not arise. Moreover, the respondents claim to have posted the communications in question to the applicant. The applicant, apart from denying the receipts of these two communications, has not adduced any other proof in this regard. On the other hand, the fact that other communications sent at the same address have been received and that these two communications once posted will give rise to the presumption that they have been received does not stand rebutted. This is the inference which a prudent man would draw from the sequence of events. A communication once posted shall draw the presumption of having been received is a presumption of fact and has to be rebutted by the person who seeks to draw advantage from the same. In the facts and circumstances of the case, we are to hold that the plea of non-receipt of the communications is not sustainable in view of the strong presumption arising towards its receipt and in absence of any proof to the contrary adduced otherwise.
14. In so far as the second issue is concerned, the arguments of both the parties have already been taken note of. Article 311 of the Constitution provides as under:-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
15. The very wordings of the Constitution indicate that the protection of Article 311 extends to a certain limited circumstances. In the first place, the persons whose services are terminated must be a Member of the Civil Service or Civilian post either under the Union or the State. It is only attracted when such civil servant is reduced in rank or dismissed or removed that is to say his services are terminated before normal period in service against his will by the way of penalty. However, where the termination of service is brought about otherwise then by the way of punishment, then the Government servant, whose services are so terminated, cannot claim protection of Article 311(2) of the Constitution as held by the Honble Supreme Court in the cases of Purshotam Lal Dhingra versus Union of India [AIR 1958 (SC) 36] and Khem Chand versus Union of India [AIR 1958 (SC) 300]. The instant action has been taken under the provisions of Leave Rules, 1955. These rules, as stated above, are related to the conditions of leave, their sanction, compliance thereof and what would happen in case of non-adherence. These rules also place restriction upon the maximum period for which a member of the service could absent himself. Clause (1) of the Rules clearly provides that no member of the service shall be granted leave of any kind for a continuous period of not exceeding 5 years. Clause (2) (a) under which the action has been taken is a deeming provision. It clearly provides that a member of the service will deem to have resigned from the service if he is absent without authorization for a period of one year. Here, we are to note that applicant was relieved from the State of Chattisgarh w.e.f. 28.06.2001. He should have reported to the parent cadre after having availed the joining time. Alternatively, he could have applied for leave which the respondent no.2 could have or might not have sanctioned. Instead, he submits that he awaited the decision on the direction of the Honble Supreme Court to treat his case sympathetically and he neither applied for any leave nor does he communicate anything to the respondent no.2 or to respondent no.1 for that matter.
16. The applicant has sought to rely upon a decision of this Tribunal in the case of Rahul Rai Sur, IPS versus Union of India and Another (supra). In this case the applicant was on foreign service with the Secretary General to the United Nation and was In-charge of the Conduct and Discipline Unit. He was sent on UN deputation w.e.f. 15.07.1997 which was subsequently extended to 31.05.2004 on his request. On 04.09.2004, the respondents in that case reiterated his request to continue on deputation and advised him to seek voluntary retirement, if he desires to continue posted at United Nation. The applicant pleaded non-receipt of this communication and the respondents sought invoking the Rule 7 of the Leave Rules, 1955. On 26.09.2005 the respondents passed an order under the deeming resignation clause of Rule 7(2)(a) which was challenged before this Tribunal and the same was allowed on the grounds that there was no proof of the delivery of the order and that the Leave Rules as amended w.e.f. 30.10.2004 would not have retrospective effect and stood to prejudicially affect the interest of the applicant. The respondents challenged the Tribunals order before the Honble Delhi High Court by filing WP(C) No. 6512/2008 which came to be decided on 08.11.2010 where the Honble High Court did not accept the plea of the respondents in that case and maintained the setting aside of the order dated 26.09.2005 modifying the same in the process.
17. Having gone through the decision in the case Rahul Rai Sur, IPS versus Union of India and Another (supra), we are of the view that the facts of the instant case are different from that case. The applicant herein is in India and there is a presumption of receipt attached to the communications. Moreover, show cause notice was served before the Rule 7(2)(a) was invoked. There is no prayer for voluntary retirement as was in the case of Rahul Rai Sur, IPS versus Union of India and Another (supra).
18. Another fact that we are compelled to take note of is that there were changes in the Leave Rules in the year 2004. Admittedly, the embargo of one year in Rule 7(2)(a) has been put in place as a consequence of amendments notified on 30.10.2004 before that the Rules reads as under:-
7. Maximum period of absence from duty (1) No Member of the Service shall be granted leave of any kind for a continuous period exceeding five years.
Even if we discount the period of absence from 2001 to 2004, the absence of the applicant exceeds almost 4 years till the date of issue of the impugned order on 09.04.2008. During this period the applicant is aware of what is happening. He is also aware that the provisions of Rule 7(2)(a) are getting invoked against him. He, however, appears to be past caring. Instead, he seeks to pursue a series of fruitless litigation in order to insulate himself against any future possibility of invoking such rules. The proposition which appears to our mind is simple. Once the rules provide that any unauthorized absence cannot exceed one year following which the deemed resignation from service will come into effect, the effect has began with the completion of the absence period of one year. However, the provisions also provide that a reasonable opportunity has to be given to the member of the service before invoking this sub rule. To our mind, the respondents have been very liberal in providing repeated opportunities to the applicant to come and join even well after the expiry of mandated year of one year as would be evident from the narration above. Therefore, to our mind, the protection provided to the government servant under Article 311 of the Constitution is not attracted to the facts of this case and it would not constitute a legitimate defence. Therefore, this issue is decided against the applicant.
19. In so far as the third issue is concerned, we take note of the fact that the Government of India was kept in picture. From the circumstances narrated earlier, the Central Government was asked to intimate the next course of action vide letter dated 26.07.2006 addressed to the respondent no.1 seeking the necessary instructions. The Government of India suggested vide its communication dated 16.07.2010 as per the Rule 7(2)(a) fully observing the safeguards in the proviso. The definition of the Government has been provided in All India Service (Leave) Rules, 1955, which reads as under:-
(g) Government means In the case of a member of the Service serving in connection with the affairs of the Union, the Central Government, or In the case of a member of the Service serving under a foreign Government (whether on duty or on leave), the Central Government, or In the case of a member of the Service serving in connection with the affairs of a State, the Government of that State :
Provided that the President in the case of members of the Service referred to in Sub-clause (i) or (ii) and the Governor in the case of members of the Service referred to in Sub-clause (iii) shall be deemed to be the Government for the purpose of assignment of an insurance policy or mortgage to Government;
Explanation. A member of the Service whose services are placed at the disposal of any company, corporation, organization or any local authority by the Central Government or the Government of a State shall, for the purposes of these rules, be deemed to be a member of the Service serving in connection with the affairs of the Union or the affairs of that State, as the case may be, notwithstanding that his salary is drawn from sources other than the Consolidated Fund of the Union or of that State.
In the case of a member of the Service on leave, the Government who sanctioned him the leave.
20. It is an admitted fact that the definition of the Government, as extracted above, would apply to the facts of this case. The Government shall include the Government of the State on whose cadre he is borne and this has also been the advice tendered by the Government of India. We have also seen that the provisions in respect to Issue no.2 that Article 311 (2) of the Constitution are not attracted to the facts of the present case. Rather, it is getting covered by the provisions of the Leave Rules, 1955. Therefore, to our mind, the applicant has no case for pleading that it is the Honble President alone who is the competent authority to remove, as discussed earlier. This not being the case of removal but rather an application of deeming provision, we are clear that there is no error of jurisdiction on part of the respondent no.2 as has also been supported in the affidavit by the respondent no.1. Therefore, this issue is also decided against the applicant.
21. Now we come to the last of the issues as to what relief could be provided to the applicant. We have seen that the first three issues have consistently been decided against the applicant. We are of the opinion that the rules have been framed with the intention that they be implemented otherwise they stand to lose their sanctity and effect. There is no denying that the applicant was injured in the service of the State and it was the State Government which recommended his case for inter-State deputation and also for inter-cadre transfer. However, when the cadre controlling authority took a decision to repatriate the applicant and relieved him, what a prudent man would have done is to report back to the State Government for duty. In case he had some difficulties, he could either sought leave from the State Government or could have pursued his interest after having re-joined the parent cadre. Instead, the applicant has continuously taken recourse to subterfuge in order to evade the application of rules of which he was fully aware. Even after notices had been issued to him, he failed to join his parent cadre. We also find him consistently knocking the judicial doors for relief and failing everywhere. Mercy could accrue to persons who are in ignorance. Here, it was a deliberate decision on part of the applicant to act as the way he has done. We do not find even hints of irregularities on part of the respondent nos. 1 & 2 in this entire legal episode.
22. In totality of the facts and circumstances of the case and in view of our above discussion, we find the OA devoid of substance and is, therefore, dismissed leaving the parties to bear their own costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/