Central Administrative Tribunal - Delhi
C.P. Abdul Rahoof vs Union Of India Through The Secretary on 19 March, 2010
Central Administrative Tribunal Principal Bench OA No.2615/2008 New Delhi this the 19th day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) C.P. Abdul Rahoof, S/o late Shri C.P. Mohammed, Chekidapurath House, PO Downhill Malappuram, Mylappuram, Distt. Malappuram-676519, Kerala. -Applicant (By Advocate Ms. Nasreen Alam) -Versus- 1. Union of India through the Secretary, Ministry of External Affairs, South Block, New Delhi-110 011. 2. Director (ADP) LC Section, Ministry of External Affairs, Akbar Bhawan, New Delhi-110021. 3. The Consul General, The Consulate General of India, Jeddah, Saudi Arabia, through Ministry of External Affairs, South Block, New Delhi-110011. -Respondents (By Advocate Shri A.K. Bhardwaj) O R D E R Honble Mr. Shanker Raju, Member (J):
This OA has been taken up on remand by the High Court vide order dated 14.9.2009 in Writ Petition (Civil) No.11648/2009 to be reconsidered and disposed of by an appropriate order, giving facts and reasons for the conclusion.
2. Applicant, by virtue of this OA has impugned respondents order dated 23.11.2009 and 23.5.2008 whereby pursuant upon his reinstatement as a locally recruited staff at Jeddah, Saudi Arabia, visa has been denied to him on the ground that it is the responsibility of the individual to procure it.
3. Applicant during Haj pilgrimage in Saudi Arabia came across a vacancy notification in the Consulate at Jeddah and while in Jeddah he was appointed as a cleaner messenger in the Consulate in July 1987 through a selection process. The applicant got the entry visa endorsement in his passport in the embassy of Saudi Arabia, New Delhi. The services of the applicants were regularized on 23.11.1994.
4. On 16.7.2000 applicant, in addition to his duties and responsibilities was also directed to do the domestic work at the residence of the then Consul General. Applicant applied for annual leave w.e.f. 22.3.2003, which was allowed for which visa was required and a request was sent for issue of exit/re-entry visa for applicant to the ministry of foreign affairs, Saudi Arabia. The applicant returned from India on 7.6.2003 and expressed his inability to perform work at the residence due to his ill health he was asked to sign resignation letter dated 10.6.2003, which was accepted vide office order dated 14.6.2003. Thereafter the services of the applicant were dispensed with, which was challenged by the applicant in OA No.2875/2004 before this Tribunal. By an order passed on 1.6.2005 the impugned orders were quashed and the applicant was directed to be taken back in service on the post on which he was recruited at Jeddah, Saudi Arabia. When the applicant was denied back wages from the date he resigned till reinstatement he made an application. Simultaneously a review application No.154/2005 was also filed by the respondents in the OA, which was turned down on 28.2.2006. Applicant had applied for visa to the respondents but an order passed on 22.6.2006 denied visa to the applicant by holding that the employer of the applicant is at Jeddah, Saudi Arabia and not the Ministry of External Affairs though applicant was reinstated back in service. This leads to the present OA.
5. An additional affidavit filed by the respondents on 27.4.2009 pursuant upon Tribunals order dated 20.4.2009 it has been stated by the respondents that in case of locally recruited employee a foreign national it is not necessary to issue notes to the concerned Embassy for issuing visa for locally recruited if he is a foreign national but in case of an Indian National who is recruited against local posts, the concerned Indian Mission/Post may request through Note Verbale the local foreign office to consider granting of work visa/resident visa to them, which have been issued by the mission for visas in number of cases. Accordingly, an order passed by the Tribunal has been set aside by the High Court and directions have been issued to Ministry of External Affairs to send note verbale to the local foreign office to grant visa and in turn the local foreign office to communicate it to the counterpart in India at New Delhi so that applicant is issued visa to comply with the directions of the Tribunal on being reinstated as locally recruited employee in Indian Mission at Jeddah. Tribunal has also granted back wages.
6. As the High Court of Delhi by an order passed on 5.12.2007 though affirmed the order passed by the Tribunal earlier, reinstating applicant in service, but denied back wages for the intervening period. However, directions have been issued to pass appropriate orders, reinstating applicant in service, which is complied with by the respondents by reinstating applicant. As the directions regarding back wages were found to have an effect of overruling the order of the High Court, the matter was remitted back.
7. Learned counsel of applicant at the outset states that denial of back wages was from the date of resignation till reinstatement but as the respondents by not sending the note verbale as sent in case of one Shri P.K. Harith there has been a rejection for work visa by the Embassy the applicant has been discriminated in the matter of consequences and methodology to put back applicant in service pursuant upon his reinstatement.
8. Learned counsel would also contend that delay in recommending the visa for the applicant in order to join the reinstated post should have been facilitated, such delay would be solely attributed to the respondents, for which applicant should not be made to suffer and the back wages from the date of reinstatement till actual joining are to be borne as a legal consequence by the respondents.
9. On the other hand, though learned counsel of respondents vehemently opposed the contentions but we find that in the rejoinder filed to the reply of the applicant in an affidavit dated 25.11.2009 that the Ministry of External Affairs has no objection in principle for sending a fresh request for visa directly to the Embassy of Saudi Arabia at New Delhi. However, it is quoted that in case of Shri Harith, who was reinstated by the Ernakulam Bench of the Tribunal and the Ministry had requested directly to kingdom of Saudi Arabia to issue visa to the applicant. Accordingly the visa was applied and was ultimately granted to the applicant.
10. Insofar as back wages are concerned, it is stated that once it has been denied to the applicant by the High Court being a locally recruited officer in whatever capacity he was at Jeddah, Saudi Arabia it is not the responsibility of the respondents for facilitating his transportation to the place of posting. It is also stated that the post on which applicant was regularized as a locally recruited employee might not have been filled up.
11. However, the learned counsel of applicant vehemently opposed this and stated that whereas the note verbale sent with request to the Embassy in case of Mr. Harith sought for issue of entry visa for working whereas in case of applicant a note verbale for fresh visa for work was sent, which has been turned down on an electronic message by the Embassy.
12. We have carefully considered the rival contentions of the parties and perused the material on record. At the outset, we must make it clear that from the date of resignation till reinstatement denial of back wages to the applicant as an implication of affirmation of the directions by the High Court binds us and the applicant is not entitled to the back wages. However, reinstatement of a person whose services have been dispensed with either on removal, dismissal or compulsory retirement and ceased to exist on account of resignation bringing the clock back insofar as continuity is concerned and in the particular case before us once the resignation of the applicant has been found to be illegally taken from him, applicant should be deemed in service as a legal fiction. However, the posting of the applicant at that time was in Embassy as a locally recruited employee on regular basis on reinstatement he is deemed to have been back on his post even if it is filled up. It is now for the answering respondents to lay down a methodology to reinstate him back. In such an event, law shall take its own course. It is very surprising that as an after effect of dispensation of services of resignation applicant ceased to be a locally recruited staff in the Embassy at Jeddah, Saudi Arabia and this was co-terminus on revoking his work visa on the assumption. As a legal fiction if the clock has been put back, except for back wages, the continuity of service has not been denied by the Tribunal, as affirmed by the High Court. The applicant would have been deemed to be in service. As the illegal act of resignation of applicant, which has attained finality in its applicability but for this resignation applicant would have stayed at Jeddah, Saudi Arabia on performing duty as a locally staff. Now, it is for the respondents, who have issued reinstatement order as an obligation to put applicant back in service on reinstatement as a locally recruited staff. Whether the impediment of visa coming in his way is to be decided by the Ministry of External Affairs or not is immaterial and inconsequential as well? In an identical situation when in case of one Mr. P.P. Harith whose services were also dispensed with and was to be put back as an impact of the decision of the Ernakulam Bench of the Tribunal a note verbale for entry visa for work in whatever methodology has been put back by the respondents as to whether applicant would be replacing any particular person in the Embassy or would be adjusted on the post, which he was holding the discrimination and a different methodology adopted by sending note verbale for facilitating visa to the applicant to be reinstated back in service cannot be countenanced in law, as being violative of Articles 14 and 16 of the Constitution of India. However, respondents on their own by making an assertion to send a fresh request for visa directly to the Embassy of Saudi Arabia on the lines of P.P. Herith would serve the ends and apply as a consequence of the directions of the Tribunal, as affirmed by the Delhi High Court.
13. Insofar as back wages are concerned, it is a future contingency. As first of all the primary issue is of grant of visa to the applicant and his joining back the post only then the issue of back wages from the date of reinstatement till he actually joins would be adjudicated. We refrain from doing so at this stage.
14. Insofar as the issue of grant of visa is concerned, at one point of time learned counsel of respondents took an objection of jurisdiction. Insofar as this plea is concerned, we are not coram non judice. What we are facilitating by this fresh cause of action is implication and implementation on reinstatement directed by us as affirmed by the High Court.
15. Resultantly, this OA is partly allowed by quashing the orders and directing the respondents to send a fresh request for visa to the Embassy of Saudi Arabia, as done in the case of P.P. Harith and on its outcome applicants reinstatement would be operationalized in the post he was occupying before his resignation. For back wages we accord liberty to the applicant on joining the post at Jeddah to agitate in accordance with law. No costs.
(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)
San.