Central Administrative Tribunal - Ahmedabad
Sunil Kumar Maheshwari vs Union Of India (Uoi) And Anr. on 30 August, 2005
Equivalent citations: 2006(2)SLJ215(CAT)
JUDGMENT Shankar Prasad, Member (A)
1. Aggrieved by the order dated 08.07.1999 and the order dated 10.04.2003 the applicant has preferred the present O. A. It is not accompanied by any application for condonation of delay. The applicant has sought for the following reliefs:-
(i) This Hon'ble Tribunal may be pleased to quash and set aside the orders contained in the Railway Board's letter dated 8.7.1999 at Annexure A/1.
(ii) This Hon'ble Tribunal may be pleased to quash and set aside the directions contained in the RSC, Vadodara letter dated 4.2.2004, at Annexure A above, asking the applicant to deposit an amount of Rs. 2,27,223.
(iii) This Hon'ble Tribunal may be pleased to" direct the respondents to immediately transfer the Provident Fund balance, Gratuity and pension liability/contribution of the application to IIM, Ahmedabad with compound interest @ 12% p.a. on all the amounts due till the same are received by the IIM, Ahmedabad.
(iv) This Hon'ble Court may be pleased to direct the respondents to arrange payment of his dues under the Group Insurance Scheme and the amount payable as Leave Encashment with compound interest @ 12% p.a.
(v) This Hon'ble Court may be pleased to grant cost of this application to the applicant.
(vi) Any other relief(s) considered just and fair in the facts and circumstances of this case may be granted.
2. The applicant joined the Indian Railways Personnel Service (IRPS) as a probationer on 19.8.1989 and on completion of training was posted as Asst. Personnel Officer on 16.9.1991. He was promoted as Divisional Personnel Officer on 11.3.1993. The Railway Board nominated him for Fellow Programme in Management at I.I.M. Ahmedabad. The applicant executed a bond dated 9.6.1993 as per Railway Board's Telex message dated 27.5.1993 (Annexure A/3). It provided that the applicant is required to serve the Railways for six years after the completion of fellowship programme. He has been relieved vide order dated 22.6.1993 (Annexure A/4) issued pursuant to Railway Board message dated 27.05.1993. This letter dt. 22.06.1993 indicates that fellowship programme must be completed within three and half years as per the condition laid down in the said message. Instructions have also been given for collecting his metal pass. The Board vide its letter dated 21.06.1993 (Annexure A-2) has sponsored him for two years 29.6.1993 to 28.6.1995. The terms and conditions mentioned in this letter are as under:-
2. The terms and conditions will be as under:-
(i) the period of participation will be treated as duty.
(ii) He will have to execute and bond to serve Indian Railways including Railway Staff College, Vadodara for a minimum period of 6 years after successful completion of the programme.
(iii) He will have to refund the stipend received from IIM/Ahmedabad to Central Rly.
(iv) No TA/DA will be admissible.
The fellowship programme concluded on 29.3.97. He has been posted as Divisional Personal Officer, Bhopal vide order dated 31.03.1997 on his return from training. The Railway Board have then transferred him to Railway Staff College, Baroda vide orders dated 6.5.1997 and he has joined at Railway Staff College (RSC in short) at Baroda on 27.05.1997. Annexure 7 is his letter dated 29.10.97 to Director IIM Ahmedabad for a suitable faculty position. It is stated to be through proper channel but no letter recommending the same is produced by the applicant. Principal, Staff College Baroda in his letter dated 5.5.1998 (Annexure A-8) has stated as follows:-
1.2. Earlier, Shri Maheshwari was sponsored for a Fellow Programme in Management at IIM, Ahmedabad from June, 1993 to March, 1997. Since then he has been very keenly pursuing his professional responsibilities of Prof. Dev. Mgt. at RSC & in his pursuit to improve professional competence, he has been availing of an opportunity to deliver lectures at IIM, Ahmedabad, once in a while.
2. He had applied for an assignment with IIM, Indore & IIM, Lucknow, both Govt. of India Organisations, to enrich his professional experience. Both the Institutes have offered him the post of Assistant Professor (Lucknow-at the pay of Rs. 4575 in Gr. Rs. 3700-5000 and Indore - at the pay of Rs. 4075 in Gr. Rs. 3700-5000).
2.2. Shri Sunil Kumar is very keen to take up the assignment of Asst. Professor at IIM, Lucknow for a duration of 2 years or so and then return to Railways to contribute his enriched professional experience.
Even while working with IIM, Lucknow, he is inclined to take up Project work associated with both the Lucknow divisions and RDSO, Lucknow.
However, he would prefer to be away on deputation, if required can resign as per provision in para 1404 of IREM Volume I under which he can retain his lien in the parent department for a period of 2 years.
2.3. He had submitted his notice of his intention to join IIM, Indore on 2.1.1998 & to join IIM, Lucknow on 2.5.98.
He has recommended his case as the Railways will get back an enriched and competent faculty at Railway Staff College. Having regard to Rule 302 of IREC Vol. I sanction of the President was sought for to facilitate the taking up of assignment with IIM Lucknow. The Railway Board informed the Principal that he is competent to forward the application/accept the resignation as the applicant is a Group A Officer (Annexure A/9). (He has been promoted to Junior Administrative Grade on ad hoc basis on 07.08.1997). The applicant was relieved on 19.05.1998. It was indicated that the lien will be maintained for two years (Annexure A/10). IIM Lucknow has informed vide his letter dated 01.07.1998 that Prof. Maheshwari has joined on 27.05.1998 and that IIM Lucknow has no objection to his lien being maintained for two years while he is working there. A copy of the offer of appointment issued to and accepted by Prof. Maheshwari was enclosed (Annexure A/12). This offer of appointment is dated 26.02.1998 (Annexure A/1). The applicant has also executed a bond dated 17.3.1998 signed by applicant, two witnesses (on 17.3.1998) and on behalf of IIM, Lucknow. The applicant has after the hearing produced a copy of IIM Lucknow' letter dated 7.5.1999 offering him the post of Associate Professor pursuant to interview held on 21.04.1999.
The Railway Board have thereafter issued a letter dated 08.07.1999 in response to Railway Staff College's letter dated 31.03.1999 that the matter has been considered and it has been decided that the lien maintained by RSC is not in order and Shri Maheshwari is deemed to have severed his connection with Railways w.e.f. 19.05.1998 consequent upon his joining IIM Lucknow. (This letter dated 31.03.1999 has been produced after the hearing). This order was communicated to the applicant (Annexure A-l Coll.). Nothing is on record to suggest as to how the decision was re-examined. Is it because the leave salary, pension contribution etc. were not accepted by the Accounts Branch because of the Railway Board policy? The applicant wrote back to RSC stating amongst others that his lien could not have been unilaterally terminated and asking for a decision of the Railway Staff College. It is also stated amongst others that he has reaching commitment till April 2000 and he plans to be back with the Railways thereafter and requested for his posting (Annexure A/13). He has written to Member (Staff) Railway Board that he will be completing his two years in May 2000 and he will be back to RSC by April 2000 and requesting for posting orders (Annexure A/14).
It appears that IIM (A) offered the position of Associate Professor vide their letter dated 30.03.2000 (Annexure to Rejoinder). He joined at IIM (A) on 1.5.2000 as per Annexure A/5. Vide this letter he has requested RSC to transfer P.F., Gratuity and Contribution towards pension to IIM (A). He was informed that matter is under correspondence with Board (Annexure A/16). The applicant wrote a letter to Chairman, Railway Board that he joined IIM Ahmedabad seeing no hope to be back with Railways. A request was made to transfer all his dues including pension contribution. It is, thereafter, that the order dated 04.02.2004 was issued.
3. The case of applicant as made out in this O.A. in brief is that the decision of the Railway Board regarding unilateral termination of his lien and severance of the relationship with Railway administration is illegal, unfair and unjust and in violation of principles of natural justice. It is in violation of statutory provisions relating to lien as contained in Rule 242 of IREC. Such severance amounts to penalty of removal which attracts Article 311(2). IREM contains provisions relating to forwarding of applications in respect of notices of Govt. P.S.Us/Autonomous bodies etc. wholly or substantially financed and controlled by Government. RSC Baroda has maintained his lien and permitted him to join IIM Lucknow. At that time, he had been asked to execute a bond which he did on 17.3.1998. This bond supersedes the earlier bond as he was allowed to join IIM Lucknow and was required to remain at IIM Lucknow or to come back to Railways before 9.4.2003. If the applicant had been told that he would have to resign if he wanted to join IIM Lucknow, and that his lien would not have been maintained then he would not have left the Railway Service at RSC. The decision of Railway Board is against the rules of equity principles of promissory estoppel or estoppel by conduct. The Board's decision tries to put the clock back which cannot be permitted as it has caused great injustice to the applicant. The applicant therefore cannot be asked to pay back the salary paid to him during the Fellow Programme at IIM Ahmedabad and the value of passes which applicant availed as per the rules of the Railways. As no order posting the applicant had been received by April 2000 he was compelled to join IIM Ahmedabad.
4. The respondent Railway Administration have raised a preliminary objection that the order dated 08.07.1999 has been challenged after more than one year of the passing of the same and the O.A. is accordingly barred by limitation. There is no application for condonation of delay. As per the Railway Board Circular dated 16.4.1986 and subsequent instructions, the applicant had to severe his link before being relieved to take up his appointment with a Central Government enterprise. The offer of appointment by IIM, Lucknow, which has not been produced by the applicant, shows that this is a case of fresh appointment in a Central Government Organization. The applicant was required to resign before taking up this assignment. The grant of lien was accordingly not found to be in order. Hence the order dated 8.7.99 was issued. The Railways Board's reply dated 30.07.02 to RSC refers. The provisions of Rule 242 are not applicable to the facts of the present case. There is no violation of Article 311(2). The applicant being an officer of IRPS was expected to be aware of service rules and regulations. The fact that application was forwarded by RSC and he executed another bond does not regularize the action done contrary to rules, it appears that the applicant was not interested in serving the Railway Administration for six years inspite of having executed the bond and was interested in serving IIM.
5. Rejoinder/sur rejoinder has been filed.
6. We have heard the learned Counsels.
7. The Ministry of Finance O.M. 5(25)/83-BPE (PESE) dated 6.3.1985 conveys the policy decision of Central Government that deputation of Central Govt. Officers to all posts in Central Public Enterprises shall be on immediate absorption basis, except in the cases mentioned therein Railway Board have issued orders vide their letter dated 25.3.1986 extending this policy.
The Ministry of Industry, Department of Public Enterprises, thereafter, in consultation with Ministry of Personnel (Department of Personnel) and Ministry of Finance (Department of Expenditure) have issued letter dated 09.01.86 in continuation of letter dated 06.03.85. It has been indicated that policy of immediate absorption will apply to all appointments of Central Govt. employees and whether the same is in public interest or otherwise, provided they had applied through proper channel and that they should be released only after obtaining and accepting their resignation from the Government service. It is also stated that 'immediate absorption' is to be treated as permanent absorption so far as pensionary benefits are concerned. The Department of Personnel and Training have thereafter issued a detailed O.M. dated 31.01.86 regarding terms and conditions of such appointment on immediate absorption basis. Clause 1 & 2 of these terms and conditions are as under:-
(1) Release of the Government servants for appointment in the enterprises: A Government servant who has been selected for a post in a Central public enterprise may be released only after obtaining and accepting his resignation from the Government service.
(2) Retention of lien/quasi-permanent status: No lien/quasi permanent status of the Government servant concerned will be retained in his parent cadre. All his connections with the Government will be severed on his release for appointment in an enterprise and he will not be allowed to revert to his parent cadre.
The Railway Board has adopted this policy vide its letter dated 16.04.1986.
The Department of Pension and Public Welfare has extended this policy and these terms and conditions to Central Autonomous Bodies vide their letter dated 31.03.1987. The word 'Central Autonomous Body' is defined in para 5 of this O.M. The Department of Pension and P.W. have thereafter issued O.M. Dated 13.11.1991 partially modifying para 1(1) of O.M. dated 31.1.1986. It states that it has now been decided that the Government servant will be required to give his/her technical resignation before his release from Govt. and that the Government servant may be relieved to take up his appointment in the PSU/Autonomous Body. The period between the date of relief and date of joining may be regularized by grant of leave due/EOL. Necessary orders accepting the resignation from the date of his joining the PSU/Autonomous Body, should be issued after he has joined. A format of relieving order is also prescribed. The order regarding payment of pro rata terminal benefits has to be issued thereafter. Railways Board has adopted this policy vide RBE 139/95 dated 22.12.1995.
8. The Department of Pension and Pension Welfare in their O.M. dated 19.04.1988 read with O.M. dated 29.1.1997 has laid down guidelines for exception to the immediate absorption principle in Central Autonomous Organizations. It has also laid down the procedure for seeking such exemption and subsequent action has to be taken. Whether this policy has been adopted by the Railway Board is not clear? Nothing has been brought on record in this regard by either the applicant or the respondent Railway Administration.
9. F.R. 13, as substituted vide D.O.P.T. Notification dated 09.02.1998 (GSR 44) has the following proviso:-
Provided that no lien of a Government servant shall be retained-
(a) Where a Government servant has proceeded on immediate absorption basis to a; post or service outside his service/cadre/post in the Government from the date of absorption; and
(b) On foreign service/deputation beyond the maximum limit admissible under the orders of the Government issued from time to time.
Rule 242 of IREC (Volume 1) does not have these provisions. Whether such an amendment has been carried out is not clear from records.
10. Railway Board Circular dated 5.12.1994 regarding terms and conditions of deputation and foreign service (Railway Establishment Manual K.P. Sharma, Bahri Brothers, page 198-209) amongst others provides as under:-
3.1 The terms deputation/foreign service will cover only those appointments that are made by transfer on a temporary basis provided that transfer is outside the normal field of deployment and is in the public interest.
The question whether the transfer is outside the normal field of deployment or not will be decided by the authority which controls the service or post from which the employee is transferred.
3.2 Appointment of service employees made either by promotion or by direct recruitment with open market candidates whether on permanent or temporary basis shall not be regarded as deputation/foreign service.
3.3 Permanent appointments made by transfer will also not be treated as deputation/foreign service.
3.4 Temporary appointment made on the basis of personal requests of employees will also not be treated as deputation/foreign service.
Para 10 : Relaxation of conditions Any relaxation of these terms and conditions will require the prior concurrence of the Department of Personnel and Training.
11. We note that except for the letter of the Principal there is nothing on record to suggest as to whether the applicant has applied through proper channel for the post in IIM, Lucknow. Whether an undertaking had been obtained in terms of para 1404 is also not clear? The applicant states that he applied on 9.2.1998. Neither the letter dated 9.2.1998 nor the offer of appointment nor his subsequent letter dated 02.03.1998 referred in para 4.6 of O. A. Have been brought on record. A copy of the offer of appointment is produced by respondent Railway Administration. The offer of appointment begins with: "With reference to your application for a faculty position and interview for the same held on 19.2.1998...." The offer of appointment issued in favour of the applicant is dated 26th February, 1998.
The forwarding letter of the Principal is silent about this offer of acceptance.
12. We note that the relevant para of the Railway Board Order dated 8.7.1999 is as under:-
The matter regarding maintenance of lien in respect of Shri S.K. Maheshwari, IRPS, has been considered by the Board and it has been decided that the lien maintained by RSC in respect of him is not in order and Shri Maheshwari is deemed to have severed his connection with the Railways with effect from 19.5.98 consequent upon his joining IIM/Lucknow.
All outstanding dues recoverable from Shri Maheshwari should be adjusted against his settlement dues.
The relevant part of the two representations of the applicant to the Principal Railway Staff College and Member Staff Railway Board are as under:-
Letter dated 2.11.1999 to RSC:
(1) I was granted the permission to retain lien by competent authority. The lien will be retained till May 2000.
(2) How can a decision be taken unilaterally without informing me that is so vital and important.
(3) I may be communicated the decision of the Railway Staff College.
(4) Regarding HBA, kindly let me know the exact amount and my pending salary and other dues with the College.
(5) However, I have been planning to be back with the Railways in the month of April, 2000. I have commitment of teaching here till then. My orders could be issued and a copy of the same be sent to me. Under such conditions, do I have to pay back the HBA? Kindly let me know.
(6) The board letter also mentions that the outstanding dues be recovered from settlement. Hence, HBA recovery should not be initiated and my posting orders may be issued.
Letter dated 6.12.1999 to Member (Staff):
This refers to the Letter No. E/98/29 dated 19.05.1998 from Principal, Railway Staff College, Vadodara. Copy of the letter is enclosed. I will be completing my two years here in May 2000. I wish to be back with the Railway Staff College (where my lien is retained) by April 2000. I will be completing my teaching commitments here by March, 2000. I will have to intimate to IIM Lucknow three months in advance for my relieving.
I wrote for my posting orders to RSC. However, they have asked me to approach board for the same. Kindly get my posting orders issued at the earliest. I shall remain thankful to you.
13. It is clear from a bare reading of the first letter that the applicant only challenges the termination of his lien and not the retrospective termination of his service. The subsequent letter to Member (Staff) refers to a communication from RSC but the same is not produced. In the letter to the Member (Staff) there is no reference either to the termination of lien or retrospective severance of his service.
14. The Apex Court in Dhurandhar Prasad Singh v. Jai Prakash University and Ors. has held:
Para 22: Thus the expressions "void and voidable" have been the subject-matter of consideration on innumerable occasions by Courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initiovoid and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e. g., may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.
15. It has been contended by the respondents Railways Administration that as the order severing the services of the applicant from the Railways w.e.f. 19.5.1998 was passed on 8,7.1999 and the same is sought to be challenged after a gap of more than four years and without any application for condonation of delay the O.A. is barred by limitation, It is further asserted that inspite of this contention having been raised in the reply the applicant has not moved any application for condonation of delay.
Mr. Shevde has also drawn our attention to the decisions of Apex Court in Secretary to Govt. of India v. S.M. Gaekwad 1995 (Supp). 3 SCC 251 and R.C. Sharma v. D.S. Kamal
16. On the other hand, it is contended by the applicant that the matter had been taken up and there had been no response from the Government of India to his representation. It is also contended that the Order dated 8.7.1999 is an internal correspondence. Factually this letter dated 8.7.1999 has been sent to the applicant with the forwarding letter dated 08.10.999 and the applicant has responded to the same.
17. Following comments have been recorded in Note 3 & 4 below the preamble in the Limitation Act in AIR Manual (1989) edition:
3. Doctrine of limitation distinguished from the doctrine of laches.
(1) The doctrine of laches is an application of maxim of equity "Delay, defeats equities". This principle is applicable in this country also in so far as discretionary orders of the Court are claimed, such as specific performance, permanent or temporary injunction, appointment of receiver, In such cases Courts can still refuse relief where the delay on the applicant's part has prejudiced the defendant even though the applicant might have come to Court within the period prescribed by the Limitation Act. (1875) 1 All 82 (86.87) (DB).
4. Doctrine of limitation distinguished from the doctrine of acquiescence (1) If a party having a right stands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. This is the proper sense of the word acquiescence. (1878) LR 8 Ch. Div 286 (314).
(2) Acquiescence may be direct or indirect. Direct acquiesence is where the act complained of is done with the express approbation of another. Indirect acquiesence is where a person having a right to set aside a transaction stands by and is quiescent under circumstances from which assent may be reasonably inferred. (1878) 8 Ch Div 286 (314).
18. The Apex Court in Secretary to Govt. of India and Ors. v. S.M. Gaikwad, (supra) was considering an appeal from the order of Tribunal directing re-instatement in service without considering the delay of 3 l/2 years in filing of O.A. It held:
When we turn to the judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7.10.1986 and that application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under Sub-section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the Tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the Tribunal under Article 136, but it seems that the Tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation.
19. The Apex Court in R.C. Sharma v. D.S. Kamal and Ors. (supra) has held:
7. On a perusal of the materials on record and after hearing Counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provisions contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled (see Secy. to Govt. of India v. Shivram Mahadu Gaikwad).
20. The Constitution Bench of the Apex Court in R.N. Bose and Ors. v. Union of India and Ors. held:
The fact that in respect of those matters representations were being received by the Government all the time was not sufficient to explain the delay. There is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines will not explain the delay.
21. A 7 Judge Bench ion S.S. Rathore v. State of Madhya Pradesh has held:
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal of making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
22. Mitra's Legal and Commercial Dictionary (fourth edition) refers as follows to acquiescence:
Acquiescence is used in two senses. Sometimes it is used to denote conduct which is evidence of an intention by a party, conducting himself, to abandon an equitable right; sometimes it denotes conduct from which another party would be justified in inferring such an intention. Krishna Dev v. Ram Piari If a party having a right stands by an sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards, complain. That is the proper sense of the word acquiescence. Duke of Leeds v. Amherst 2, P 124.
Delay and acquiescence do not bar a party's right to equitable relief, on the ground of undue influence, unless he knew that he had a right or, being a free agent at the time, deliberately determined not to inquire what his rights were or to act upon them. Jugal Kishore v. Charoo Chandra AIR 1939 PC 159; Allcard v. Skinner (1887) 36 ChD 145.
Venkataramaiya's Law Lexicon (Second Edition) refers to following:
Acquiescence is not a question of fact, but of legal inference from the facts found. (Murarilal v. Balkisan AIR 1926 Nag. 416 at p. 422 : 95 I.C 636). The word is used in two senses; sometimes it is used to denote conduct which is evidence of an intention by a party, conducting himself, to abandon an equitable right; sometimes to denote conduct from which another party would be justified in inferring such an intention- Krishna Dev v. Smt. Ram Piari AIR 1964 H.P. 34 at p.37.
23.The Apex Court in State of U.P. and Ors. v. Dr.Ved Prakash 1995(Suppl.)SCC 582 considered the case of a doctor in P.M.S. in technical service. He submitted resignation w.e.f. 14.3.1983. No communication was received from the employer and continued in service till August, 1983 and thereafter ceased to work. He submitted an application in 1981 withdrawing the resignation. Hon'ble High Court allowed the writ petition. The Apex Court in the case of State of U.P. and Ors. v. Ved Prakash Sharma (Dr.) (supra) has observed as under:
...It is also an admitted fact that after August, 1983 he ceased to report for work which is indicative of his desire to terminate the contract of employment. Till 1987, i.e., for over four years he remained quiet and 'thereafter it suddenly occurred to him that he could take advantage of the fact that there was no formal acceptance of his resignation. He, therefore, dashed off a letter dated December 10,1987 with a view to withdrawing his resignation letter of March 14, 1983. Even thereafter he did nothing and went on making periodical representations, the last of which was rejected on June 13,1990. Treating that as a cause of action he filed the writ petition in question. We think that in the circumstances it is absolutely clear that he had the animus to terminate his relationship by the letter of March 14, 1983. There was, therefore, no question of his being taken back in service after such a long lapse merely because of want of a formal communication accepting the resignation. The conduct of the parties has also relevance and the conduct of respondent in particular shows his intention to terminate the contract.
24. What we find in the instant case is that the Railway Board has taken the stand that as per the general policy a person seeking an appointment under a Central Autonomous organization has to resign his post before taking up his assignment and that lien cannot be maintained. It therefore came to the conclusion that decision taken by the Principal to grant lien was contrary to the existing Railway Board Instructions. It, therefore, cancelled the order dated 18.5.1998 granting lien. It also held that the applicant is deemed to have severed his links w.e.f. 18.5.1998.
The case of the applicant on the other hand is that the Principal Railway Staff College had permitted him to go on lien for two years and that in case he knew that he had to resign he would not have taken up the assignment at IIM Lucknow.
We have noted in Para 11 above the two representations filed by the applicant while he was at IIM Lucknow. They do not at all refer to the fact of severance of his services from the Railway Board. Only in the letter addressed to Railway Staff College the question of termination of lien has been raised. It has to be noted that the bond executed by the applicant for pursuing the fellow programme in Management was in force. Yet the applicant neither challenges that order nor approaches the Tribunal with in 18 months of the letter sent to Railway Staff College/Member (Staff).
It is also clear from the Apex Court's decision referred to in Paras 19, 20 above that once a decision has been taken further representations are not to be entertained and that repeated representation do not provide a fresh cause of action.
It is also clear from the Apex Court decision in Paras 17 and 18 above that the delay has to be explained and delay condoned before the O, A. Can be decided on merit.
In the instant case it is stated that it is within the period of limitation. Inspite of the plea of limitation raised by the respondent no Miscellaneous Application for condonation of delay was moved. Rule 8(4) of Central Administrative Tribunal (Procedure) Rules, 1987 requires filing of a separate application accompanied by an affidavit for condonation of delay.
While Sub-clause (a) and (b) of the relief clause asked for quashing of the order dated 08.07.1999 and 10.4.2003 that the a declaration that decision regarding severance of relationship w.e.f. 19.5.1998 be set aside. Sub-clause (c) and (d) asked for remittance of provident fund/terminal benefits to IIM (Ahmedabad), When confronted with this position the learned Counsel for the applicant stated that the applicant has already received the P.F. amount. It was stated that relief in Sub-clause (a) and (b) be suitably modified to hold that applicant is not required to refund the amount in terms of the bond and the cost of passes utilised by him.
25. In view of the above discussions we are of the view the O.A. is barred by limitation and is also hit by delay and laches and that the applicant has acquiesced in the order dated 08.07.1999.
26. As regards merits of the case it is contended on behalf of the applicant that Chapter 14 of 1REM contains instructions regarding forwarding of applications from serving Railway employees for posts outside Railways. Specific attention has been drawn to Para 1404 regarding retention of lien in cases where the selection is on the basis of forwarded application. It is further contended that the Railway Board had informed that the Principal RSC was competent to take a decision in this regard. Once the lien has been granted it was not open to the respondents to terminate the lien and to hold that applicant has severed the links retrospectively.
The case of the Railway administration on the other hand is that these provisions have been subsequently modified and the applicant has to resign his job while taking up the new assignment. Lien also cannot be granted. Principal Railway Staff College had granted lien contrary to the policy. It is the error which has been rectified by the impugned order dated 08.07.1999.
27. Para 1401 provides that a railway employee will be given four opportunities to respond to notices of Government Department/Public Sector Undertakings/Autonomous bodies wholly or substantially financed and controlled by the Central or State Government. Applications in response to UPSC advertisement are not included. Note below this rule is as under:
Note : The authorities should interpret the term 'public interest' strictly subject to the condition that forwarding of application should be the rule rather than the exception. In taking the decision to withhold the application the competent authority has to balance the interest of the state against the necessity of causing hardship to the individual. This discretion should be applied with utmost objectivity and not mechanically. While it is not feasible to lay down the specific exhaustive guidelines for withholding of applications, some of them can be listed illustratively as follows:
(i) The Railway employees is engaged on important time-bound projects and the work would be seriously dislocated if he is relieved.
(ii) A railway employee is under suspension or is facing departmental proceedings/prosecution in a Court.
(iii) A railway employee is applying for a post which is equivalent in status and rank.
Para 1404 makes it clear that if the applicant is selected on the basis of such an application, his lien may be retained in the parent department for a period of two years. If the employee is not permanently absorbed within a period of two years from the date of his appointment to the new post, he should immediately on the expiry of period of two years either resign from railway service or revert to his parent office. An undertaking to this extent shall be taken before forwarding his application to other departments.
Para 1403 provides that in case of an application for employment in private concern, the concerned railway employee should have to first resign or retired from Government service.
The 1989 Edition of IREM refers to Railway Board Circular dated 27.2.1979 for Para 1401 and earlier circulars for Paras 1403 and 1404.
28. We find that the Railway Board have subsequently issued Circulars referred to in Para 7 above and modified the policy regarding forwarding of applications in case of appointment under Public Sector Undertakings and Central autonomous bodies. The Central Autonomous Body, for the purposes of this order is generally a non-profit making organization which is financed wholly or substantially from Cess or Central Government grants Substantially means that more than 50% of the expenditure of the autonomous body is met through Cess or Central Government grants. An autonomous body may be a Society registered under the Societies Registration Act, 1860 or a Statutory body or a Central University having its own governing council whose memorandum of association/by laws, etc. contains provision for complying with Government directives for carrying out its business in achieving the objectives for which the organization is established.
These subsequent instructions require the applicant to tender a technical resignation before leaving Railways to take up an assignment in the Central autonomous body. The format of relieving order has also been prescribed. Formal order accepting the resignation is issued after the applicant takes over his assignment and the pro rata benefits will be worked out. The Circular makes it clear that the lien will not be maintained in such cases.
29. This new definition of Central Autonomous Organization has to be compared with the definition given in Chapter 14 which says that autonomous bodies must be wholly or substantially financed and controlled by the Central or the State Government.
30. Whether the IIM Lucknow is wholly or substantially financed and controlled by Central or State Government as mentioned in IREM or falls within the definition of Central autonomous organization as per the definition given in subsequent circular is not a question in this O.A. We are therefore expressing no opinion on his subject.
31. The applicant dated 9.2.98 by which he applied for the post of Assistant Professor in IIM (Lucknow) nor the notification inviting application is on record. The offer of appointment dated 26.02.1998, produced by respondents and not the applicant, commences with the following words:
With reference to your application for a faculty position and interview for the same held on February 19, 1998....
Para 1.5 of the letter says that you will be on probation for 12 months and on the completion of this period the probationary period will either be extended by another 12 months or appointment confirmed in writing. Para 4 states that his whole time will be at the service of Institute except academic work and consultancy work undertaken with the prior permission of the Director. It is indicated in the annexure that he is entitled to consultancy for 52 days in a year. The applicant has produced a bond signed by him, two witnesses and Director IIM Lucknow. It is as under:
Bond for Permanent Railway Servant Proceeding on to join IIM, Lucknow before Expire of the Bond Period with the Railways.
1. Sunil Kumar, Resident of Kasganj in the District of Etah (U.P.), at present employed as Professor at Railway Staff College, Vadodara and planning to join IIM, Lucknow do bind myself to pay to the President of India on demand the study expenses, spent during the sponsorship of my study at IIM, Ahmedabad in case I plan to quit IIM, Lucknow subsequent to my joining the institute before 09.04.2003 to join any firm in the private sector.
And upon my making such payment the above written obligation shall be void and of no effect, otherwise it shall be and remain in full force and virtue till 09.04.2003.
The Government of India have agreed to bear the stamp duty payable on this bond.
Indian Institute of Management, Lucknow agrees to recover the cost as directed by the Government of India, in the event of quitting IIM, Lucknow by Sunil Kumar before 09.04.2003 to join any of the private sector firm. IIM, Lucknow would keep the Government informed about the movement of Mr. Sunil Kumar, if any, from the institute.
Signed on seventeenth March of one thousand nine hundred ninety eight.
Signature Sd/-
(Sunil Kumar) Witness (1) Sd/-
Illegible 17.3.98 (2) Sd/-
Illegible 17.3.98 Signature on behalf of IIM Lucknow Sd/-
Name: Prof. J.L. Batra, Ph.D. Designation: Director Indian Institute of Management Prabandh Nagar, Off Sitapur Road Lucknow-226013 (India).
The forwarding letter of Principal is silent on all these aspects but recommends it on the ground that it will give RSC an enriched facility. After the Railway Board advice that RSC is empowered to forward applications/accept resignation. The Principal RSC allowed him to proceed on two years lien vide order dated 19.5.1998. There is a letter dated 01.07.1998 of IIM (L) that they have no objection to lien being maintained for two years. The offer of appointment for the post of Associate Professor in IIM (A) is dated 30,03.2000.
32. Rule 1401 as it existed earlier provided that Railway employee may apply in response to notice. Some examples of cases when the application can be withheld have also been given. Rule 1404 makes it abundantly clear that the applicant has to sign an undertaking at the time of forwarding of his application.
33. Coming to the facts of the present case, we find that it is not clear from the O.A. as to whether there was a public notice. It is, however, seen that the applicant applies on 9th February, is interviewed on 19th February and the offer of appointment is issued on 26th February. No bond is visualised in Para 1404 appears to have been taken as the same has not been produced by the applicant. He has, on the other hand, produced another bond dated 17.3.2003 which specifically talks of a six year period. None of these aspects unfortunately have been mentioned in the forwarding letter of the Principal or appears to have been considered while permitting the applicant to proceed to IIM, Lucknow with lien. As per the offer of appointment, probation was for 12 months and accordingly, the said period could have been completed in May, 1999. Whether the probation period of applicant was extended or he was confirmed at the end of 12 months period, is not clear from the records. The applicant has subsequently produced offer of appointment dated 7.3.1999 for the post of Associate Professor in IIM, Lucknow. Yet another crucial aspect in this case is as to whether teaching in IIM would have been considered to be service for the purposes of the bond executed by the applicant when he proceeded to IIM Ahmedabad for the Fellowship Programme. It is finally seen that the applicant left the job at IIM, Lucknow on 28.04.2000 and joined IIM Ahmedabad w.e.f. 01.05.2000 which is before the expiry of the two year period for which lien had been granted by the Principal.
34. The Indian Railways Establishment Manual is a compilation of instructions issued by Railway Board from time to time. The Railway Board Circulars referred to in Paras 1401 and 1404 are of 1979 and pre-1986 respectively. The Railway Board has subsequently modified its policy as per the two instructions referred to in Para 7 above. As per these revised instructions, the applicant has to tender a technical resignation before taking up a post in Centra] Govt. Autonomous Organization. No lien also have been maintained.
35. We also note that the applicant is an officer of Indian Railway Personnel Service. The Railway Staff College has been set up to train Group 'A' officers of various Services constituted under the Indian Railways. It is accordingly expected that Principal/Other Officers of the Staff College are fully aware of these later developments.
36. It would appear from the above discussion that the Principal could not have permitted the applicant to proceed to IIM, Lucknow while retaining his lien. He had to tender his resignation before taking up this assignment. The lien could not have also been maintained. The subsequent orders is therefore a case of correction of administrative error.
37. Mr. Mukul Sinha, learned Counsel for the applicant has relied on a decision in R. Sulochana Devi v. D.M. Sujata and Ors. It lays down that any order which visits the applicant with evil consequencies must be passed after giving an opportunity of hearing.
38. The Apex Court in Aligarh Municipal University v. M.A. Khan 2000 SCC (L&S) 965 : 2001(1) SLJ 409 (SC) was amongst others considering the provision under Rule 5(8) regarding deemed vacation of posts and whether a show cause notice was necessary. The Apex Court held:
In the case of deemed vacation of office under Rule 5(8) (i) of the 1969 Rules, there is a deeming provision of vacation of the post where the explanation offered by the employee, consequent upon a notice, is found not satisfactory. But in the peculiar circumstances of M's case, he has no other explanation - from what is revealed in his writ petition filed later- other than his further commitment abroad for 2 more years. Hence, even if no notice was given, the position would not have been different because that particular explanation would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in M's case must be treated as having no difference. The only conclusion that can be drawn is that even if M had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8) (i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L Kapoor case. It has, therefore, to be held that no prejudice was caused to M for want of notice under Rule 5(8) (i). Point 5 is decided therefore, against M.
39. The applicant in Dr. Anil Bajaj v. Postgraduate Institute of Medical Education & Research and Anr. 2002 SCC (L & S) 289 : 2002(2) SLJ 356 (SC) had been granted ex-post facto sanction of leave for two years. The order also provided that in case of his failure to resume duties before the expiry of the said period the lien will automatically expire and he shall be deemed to have permanently left the institute from original date. The High Court had dismissed the writ petition filed by the applicant. The Apex Court held:
3. It is an admitted fact that the appellant did not come back till after 1998. It is also an admitted fact that his request for extension was rejected specifically in, 1997. This being the position the principle of estoppel, apart from anything else, would clearly be applicable in a case like this. A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if he does not come back, his lien will automatically be regarded as being terminated, he then cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted. Of course, if there is a dispute with regard to the question whether he had in fact come back within the stipulated period or an extension had been specifically granted an inquiry may be necessary but where the facts are not in dispute the inquiry would be an empty formality. In any case, the principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination.
40. The first respondent in Dr. G. Garewal (Mrs.) v. Sumitra Dash (Mrs.) and Ors. had been granted ex-India leave for period of two years with the express condition that she will neither resign/seek voluntary retirement while on leave nor will request for further extension of ex-India leave. She had filed a writ petition in Punjab and Haryana High Court challenging the appointment of the applicant as Prof. of Homeology. Her request for extension of ex-India leave was rejected and she was asked to resume her duties. She did not respond to the said notice. She was informed that she would deemed to have permanently left the Institute w.e.f. 1991. She obtained a stay from Punjab and Haryana High Court against any disciplinary proceedings against her. P.G.I.M.E.R. moved an application for vacating this stay in 1999. The said respondent submitted joining report on 27.12.1999 which was rejected vide memo dated 10.01.2000. Hon'ble High Court allowed the said writ petition by observing that the applicant should not have been declined permission to join duty without giving her an opportunity of hearing to put forward her case. The P.G.I.M.E.R. thereafter allowed the first respondent to resume duty. An SLP was filed thereafter. The Apex Court after noticing the decision in Aligarh Muslim University & Anil Bajaj (supra) held:
Similarly, in the case in hand the 1st respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time inspite of the repeated reminders from P.G.I.M.E.R. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or the other.
...Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the P.G.I.M.E.R. authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorised absence from duty. Since R-1 is allowed to rejoin her duty under the orders of the High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. P.G.I.M.E.R. may complete the enquiry as expeditiously as possible. If necessary P.G.I.M.E.R. is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.
41. A 3 Judge Bench of the Apex Court in Vice Chairman Kendriya Vidyalaya Sangathan and Anr. v. Girdharilal Yadav has held:
In terms of Section 58 of the Evidence Act, 1872 facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula.
42. The Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma has amongst others held:
The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.
43. Coming to the facts of the present case, we find that the Railway Board policy as indicated in Para 7 above, makes it absolutely clear that the railway servant has to resign his job before taking up an assignment in a Central Autonomous Organization. It is further provided that no lien shall be maintained. As IREM is a compilation of Railway Board's instructions these amend; Para 1404 as far as retention of lien is concerned. Even otherwise, Para 3.1 of the 1994 Railway Board instructions makes it very clear that deputation/foreign service cover only those appointments where appointments are made by transfer on a temporary basis. This can be for a maximum period of three years. Para 3.4 makes it clear that temporary appointment made on request cannot be treated as deputation/foreign service. The conditions can be relaxed only with prior concurrence of Department of Personnel and Training. It is thus clear thai as per the existing policy, the applicant had to tender his resignation before proceeding to join I.I.M. Lucknow, and that the lien could not have been maintained.
44. It is a settled position in law that principles of natural justice are not a straight jacket formula and apply to facts and circumstances of each case. They cannot be taken to such an extent that the result is an illegal order coming into existence. The Apex Court following S.L Kapoor's case has in Aligarh Muslim University's (reiterated) case that service of notice is immaterial where only one conclusion is possible. In Anil Bajaj's case when the termsprovided for termination for not resuming duty, the termination without notice was held valid. These principles have been reiterated in Garewal's case.
45. The learned Counsel for the applicant has relied on the decision of Apex Court in R. Sulochana Devi v. D.M. Sujata and Ors. (supra). The Regional Joint Director Education had given an opinion dated 15.02.2000 that one Mr. Andrews was senior to the appellant and was promoted as Principal by the Management Committee. The appellant preferred a Writ Petition in Kerala High Court. The respondents filed two writ petitions one against the appointment of Mr. Andrews as she was senior to him and Anr. against the Government order declaring the appellant as senior. The learned Judge a common order allowed the writ petition of appellant. On appeal the Division Bench set aside the order giving rise to the SLP.
It had been contended on behalf of appellant:
According to Mr. T.L.V. Iyer, the opinion rendered by the RJD dated 15.2.2000 is not under any of the provisions of the Act and that the Division Bench is wrong in construing that such an opinion is an order passed under the provisions of the Act. It was further submitted that the Division Bench is not right in interfering with the discretionary power that is vested with the management to choose a Head of the institution/Principal and, therefore, such interference is impermissible in law. This apart, the opinion dated 15.2.2000 rendered by the competent authority was given behind the back of the appellant herein without there being any notice. He further contended that the Division Bench is not right in giving so much sanctity to the opinion dated 1.5.2.2000 when it is vitiated for non-adherence to the principles of natural justice and that such an order is a nullity in the eyes to the law and a void one being non-est in law.
The Apex Court held:
23. As rightly pointed out by Mr. T.L.V. Iyer that the opinion of the RJD dated 15.2.2000 is an opinion which is non-est in law since no notice has been given to parties before passing such an order and, therefore, the subsequent order was passed by the RJD dated 15.4.2002 after considering all the relevant documents. Mr. Iyer is also right in contending that the order dated 15.2.2000 is a nullity and, therefore, it can be ignored by the appellant and the question of filing a review by the appellant does not arise. When the order passed by an authority is not in accordance with law and no notice was communicated to the party, it is a nullity and need not be challenged in a court of law.
24. We see merit in the submission of Mr. Iyer that an order made in violation of natural justice is void. Mr. T.L.V. Iyer in support of his above contention relied on the judgment of this Court in Krishan Lal v. State of J & K to the effect that an order passed in violation of the principles of natural justice renders an order invalid. Likewise, an order made without hearing the party affected is also bad in law. In the instant case, the order made in violation of natural justice is void.
46. It is clear that this matter was regarding inter se seniority. The instant O.A. On the other hand the present case is regarding the correction of an administrative error, where only one view was possible. Hence this decision is not applicable. Rather the decisions referred to in Para 42 apply. Hence this contention has to be rejected.
47. The learned Counsel for the applicant has also relied on the decision in Balbir Singh v. State of H.P. and Ors.
It is surprising to note that prior to disposal of the writ petition, the appellant was reverted allegedly on the ground that he had been promoted erroneously under a mistaken belief. The records reveal that Government had taken a conscious decision to promote the appellant and was, therefore, not justified in reverting him allegedly on the ground of non-availability of reservation. Government cannot be permitted to blow hot and cold in the same breath inasmuch as against the writ petition, they justified appellant's promotion but when the question of appellant's promotion came, Government took the plea that appellant was promoted under mistaken belief. Under peculiar circumstances of this case appeal is allowed and order dated 2.7.1988 by which appellant was reverted, is set aside.
The facts in this case are clearly distinguishable. The policy required the applicant to resign before taking over this assignment and not to maintain lien. The Principal maintained lien in disregard of the policy. The letter received by applicant after receiving the order severing his services retrospectively has been discussed in Para 12 above and we have concluded that he has acquiesced in the order. This contention has also to be rejected.
48. In view of the conclusions recorded in Paras 25, 44,46 and 47 above, we are of the view that the O.A. is barred by limitation, delay and latches and that the applicant has acquiesced in the letter dated 8.7.1999. Even on merit, the applicant has no case. The O.A. is accordingly dismissed without any order of costs. Interim relief granted stands vacated.