Central Administrative Tribunal - Ernakulam
Dr. George Philip vs The Secretary Department Of Atomic ... on 22 August, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00141/2020
Tuesday, this the 22nd day of August, 2023.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
Dr. George Philip, Aged 72 years
S/o Late Varkey Philip, Ex-Scientific Officer
Plasma Physical Laser Technology Division
BARC, Tromby, Mumbai, Having Permanent Address @
Panickasseril, Krishnapuram
Alappuzha and Presently residing at Tharayil House,
Karunagappally (P.O), Quilon District, Kerala State
- Applicant
[By Party-in-person]
Versus
1. Government of India, Represented by
The Secretary to the Government of India
Department of Atomic Energy Anushakthi Bhavan
CSM Marg-Mumbai - 400 039
2. The Director, Department of Atomic Energy, Bhabha
Atomic Research Centre, Mumbai-400 085
Trombay
- Respondents
[By Advocate: Smt. Mini R Menon, ACGSC]
The applications having been heard on 09.08.2023, the
Tribunal on 22.08.2023 passed the following:
O.A No.141/2020 2
ORDER
Justice K.Haripal Applicant is a former Scientific Officer in Bhabha Atomic Research Centre, BARC for short, an organisation under the Department of Atomic Energy, initially recruited as Trainee on 15.08.1973 in the 17 th course of the Training School of the BARC. The immediate provocation in approaching this Tribunal is the rejection of his prayer for extension of Contributory Health Service Scheme of the BARC, CHSS for short, by Annexures- A1 and A2 documents dated 30.01.2019 and 13.12.2019 respectively.
2. According to the applicant, even though he had put in more than 10 years of service and acquired eligibility for minimum period for receipt of pension, he has been denied pension illegally. Right to receive pension is a right to property. Denial of such a valuable right is a continuing wrong. Every Government servant, who put in minimum five years of qualifying service, is entitled to get medical service and as held by the Hon'ble Supreme Court, no fetters can be placed on that right. Even though he had put in more than 10 years of qualifying service, benefits accrued to him like pension, gratuity, provident fund etc. have not been released to him. He had approached the respondents for extending the benefits of the CHSS but after O.A No.141/2020 3 keeping the request for more than four years, by Annexures-A1 and A2 communications, his plea was rejected.
3. Thus he has approached this Tribunal seeking the following reliefs:
"(a) Direct the 2nd Respondent to issue specific orders stating that the part of service of the Applicant from the date of joining in Plasma Physics Section on 01-8-1974, till 01-8-1979 shall be reckoned for the 5 year minimum qualifying service to become eligible for CHSS medical facilities and 'Retirement Gratuity.'
(b) Direct the 2nd Respondent to issue specific orders stating that the part of service of the Applicant from the date of joining in Plasma Physics Section on 01-8-1974 to the date of expiry of the DAE approved extra ordinary leave (EOL) on 23-
8-1984 for higher study in Canada shall be reckoned for the 10 year minimum period of qualifying service for pension benefits.
(c) Direct the 2nd Respondent to issue specific and speaking orders confirming the length of 'qualifying service' rendered by the Applicant herein
(d) Direct the 2nd Respondent to issue specific and speaking orders confirming that the Applicant herein was deemed to have opted for 'pensionary benefits' (Ref:Annexure O.A No.141/2020 4 A31)
(e) Declare that the impugned decision of the Respondents stated in ANNEXURE A1 (Ref: MD/CHSS/ Gapcases/1661) dated January 30, 2019 and ANNEXURE A2, (Ref: 32(1)/2007/Admin/OPA-17200) dated December 13, 2019 as illegal, arbitrary, discriminatory, unjust, unreasonable and against the extant CHSS rules and, therefore, quash and set aside the decision of the Respondents by which they are depriving the CHSS medical facilities to this applicant.
(f) Direct the Respondents to issue specific orders to restore the CHSS medical facilities with immediate effect to the Applicant and spouse with lifetime membership, without charging arrears of contribution for the period of gap, as per the revised CHSS Clause No. 2.1.10(ii) declared vide DAE Office Memorandum No.7/8/2015/IR&W/11378 dated August 29,2016 (Annexure A30).
(g) Direct the Respondents to issue orders for the immediate reimbursement of all expenses incurred so far for the medical treatment for the Applicant and spouse on production of original bills;
(h) Direct the Respondents to issue specific order for immediate reimbursement of all bills for medicines purchased or, alternatively, for the payment of fixed monthly expenses for medicines for the Applicant as per the extant CHSS Rules. O.A No.141/2020 5
(i) Direct the Respondents to issue specific orders for immediate provisional payment from Provident Fund, Gratuity, and Central Government Employees' Group Insurance Account due to great hardship and financial crisis for the Applicant;
(j) Direct the Respondents to issue specific and necessary orders to release "Provisional Pension" with calculations based on 'Notional Pay', with provision for revision after exact calculation of pay and allowances incorporating all pay revisions, increments and promotions;
(k) Direct the Respondents to issue specific and necessary orders for release of the unpaid subsistence allowance during the period of suspension;
(l) Direct the Respondents to issue specific and necessary orders to pay interest at the rate of 12% for all unpaid and delayed payments with respect to the medical bills, salary arrears, subsistence allowance and retirement benefits to the Applicant;
(m) Direct the 2nd Respondent to issue necessary and specific orders for the regularization of the periods of absence due to illness, for which the following medical certificates were submitted.
(i) 22/01/1986-01/4/1986 University of Alberta
Hospital, Canada
(ii) 01/5/1986-30/8/1986 University of Alberta
O.A No.141/2020 6
Hospital, Canada
(iii) 22/7/1986-07/11/1986 Govt. Hospital,
Thiruvalla;
(n) Direct the 2nd Respondent to issue specific orders for the regularization of the period of absence by overstay as per directions in Rule 25 and other in CCS (Leave) Rules 1972;
(o) Direct the 2nd Respondent to issue the Applicant an accurate statement of salary account including recoveries effected from salary, allowances and retirement benefits towards settlement of dues, if any, and towards contributions like Provident Fund, Central Government Group Insurance, CHSS and other deductions;
(p) Direct the 2nd Respondent to issue specific orders stating service conditions including the following:
(i) Implementation of various revisions of pay and allowances which emerged during all the years;
(ii) Salary and pension arrears consequent upon revisions by Pay Commission Recommendations;
(iii) Lost chances of options to be exercised in respect of pay revision, pension, employees' group insurance scheme etc.,
(iv) Various promotions with effective dates and other matters
(q) Pass such orders and directions to the Respondents O.A No.141/2020 7 and relief(s), including the cost of this application, for the Applicant as deemed just, fair and necessary in the facts and circumstances of the case."
4. The applicant has narrated the history of his service which began on 15.08.1973. He had joined the training school after completion of Post Graduation. After successful completion of the training, he was appointed as Scientific Officer/SC under the 2 nd respondent. While so, he was selected for the Canadian Commonwealth Scholarship and Fellowship Administration, an international award for higher studies/research, out of pure merit, in the latest field of Science and Technology in Canada, for which extraordinary leave for two years was sanctioned. But the scientific hierarchy in the BARC prevented him from taking a Ph.D as most of them did not have foreign Ph.D. Thus due to genuine, compelling reasons, he could not rejoin duty on the expiry of the sanctioned leave for two years from 24.08.1982. Later he rejoined duty on 10.12.1986. But after a few weeks, he was placed under suspension on initiating disciplinary proceedings against him. The disciplinary proceedings ended with awarding him punishment of removal from service, which was challenged before this Tribunal. By Annexure-A13 order this Tribunal quashed the punishment holding that the quantum of O.A No.141/2020 8 punishment is disproportionate to the charge proved against him; the applicant was relegated to the remedy under Rule 29A of the CCS(CCA) Rules. Then by Annexure-A18 order dated 03.04.1996, a punishment of compulsory retirement from service was slapped on him, with effect from 18.12.1990. That order was also challenged by the applicant. This Tribunal in Annexure-A19 order allowed the application and directed the respondents to reinstate him with back wages. When that order was challenged before the Hon'ble High Court, by Annexure-A20 the Writ Petition was partially allowed interfering with that part of the order granting him full back wages. Direction to reinstate him was not interfered with. The respondents challenged that finding before the Hon'ble Supreme Court. The Supreme Court through Annexure-A23 judgment allowed the Civil Appeal and the punishment imposed by the 1st respondent was upheld.
5. The grievance of the applicant is that even though he was made to compulsorily retire, the respondents did not grant him pensionary benefits. Even the amounts under provident fund, gratuity, insurance etc. were not paid to him despite he made repeated representations. He was denied even the subsistence allowance during the period under which he was kept under O.A No.141/2020 9 suspension.
6. During the old age, himself and his wife are under frequent hospitalisation and treatment. Huge amounts have been spent for their treatment. The respondents have a duty to reimburse the amounts incurred by himself and his dependent wife. At the instance of the respondents though the applicant had sent appropriate application forms, filled up, for extension of the CHSS benefit, after sitting over it for more than four years he was informed that such a benefit cannot be granted to him.
7. Thus according to the applicant, the nonfeasance on the part of the respondents in denying him pension, other retiral benefits, subsistence allowance and medical reimbursement claims is illegal and liable to be interfered with.
8. The respondents have denied the allegations of the applicant. They filed reply seeking to dismiss the application. The Contributory Health Service Scheme formulated by the Department of Atomic Energy is a unique scheme with the object of providing specialised and personalised health care to its employees and their family members, even after retirement. The employees have to make a contribution of one percent of their basic pay O.A No.141/2020 10 every month. An employee who has put in minimum of five years in service before retirement can opt benefit of this scheme on making advance payment for a minimum period of one calendar year; such payment shall be with reference to the pay drawn by him prior to retirement. Employees have an option to pay one time contribution for ten years for life long registration. Employees retired voluntarily or compulsorily can also avail this scheme subject to payment of prescribed contribution.
9. An employee of the Atomic Energy Department availing extraordinary leave, EOL for short, has to pay both individual and Government contribution towards provident fund and pension.
10. According to the respondents, the applicant was appointed in BARC on 01.08.1974 after successful completion of orientation training. Later, on 23.08.1982 he proceeded on EOL for two years to take up Common Wealth Scholarship offered by the Government of Canada. He had proceeded on leave after giving an undertaking on 09.02.1982 that he would not register for a Ph.D and would not request for extension of leave. But contrary to the said undertakings, he overstayed and did not rejoin on the expiry of the leave. Repeated reminders were of no use. He had reported back after such overstay O.A No.141/2020 11 only on 10.12.1986. Thus disciplinary proceeding was initiated against him. He was placed under suspension and an enquiry was followed. He was found guilty by the enquiry officer. This Tribunal interfered with the initial punishment imposed and thus the competent authority revised the punishment and removal from service was reduced to compulsory retirement. That order, even though interfered with by this Tribunal as well as the Hon'ble High Court, the Apex Court did not agree. Thus the punishment of compulsory retirement was restored and he stood removed from service with effect from 03.01.1991.
11. He did not have minimum 10 years of qualifying service, which is evident from Annexure-R5; after excluding non-qualifying service there is only 8 years 1 month and 12 days to his credit.
12. He had approached the respondents for extension of CHSS benefits after more than 20 years of removal from service. His prayer for renewal of the scheme was referred to the competent authority. But the competent authority rejected the same.
13. Regarding his claim for other retiral benefits, it is submitted that numerous communications were sent by the respondents, but none was O.A No.141/2020 12 responded. Ultimately, entire amounts stood in his credit were transferred to unclaimed deposit. Thus the respondents have claimed that the contentions of the applicant have no basis.
14. The applicant filed a detailed rejoinder reiterating his contentions blaming the respondents for denying him his legitimate claims. He asserted that he has more than 10 years qualifying service to his credit, but eligible spells of service acquired by him have been illegally denied. The spell of training undergone by him immediately prior to his appointment is liable to be reckoned as qualifying service. Similarly, it is the statutory mandate that EOL availed by him is liable to be reckoned for pension. The period of extraordinary leave availed with medical certificates, which were duly forwarded to the respondents have been ignored. Thus legitimate period of his service have been illegally curtailed and the respondents have arbitrarily taken the contention that he does not possess minimum qualifying service, which is unfair and illegal. According to the applicant, everything was done arbitrarily, without affording opportunity of being heard, in flagrant violation of the principles of natural justice.
15. Regarding the issue of Annexures-A1 and A2, he submitted that O.A No.141/2020 13 initially, when he moved for renewing the facility after compulsory retirement, he was made to submit the necessary forms, which he did. He is also ready to make necessary remittances as provided under the scheme. The respondents sat over it for more than four years and ultimately informed him that his application is rejected. Such a stand is illegal.
16. It is also asserted that there is no justification in denying him subsistence allowance payable during the period of suspension, besides amounts credited in his account towards payment to provident fund, insurance, leave encashment etc. The amount payable as gratuity also has been denied. Repeated representations were consciously ignored. He had made representations for giving him full details of the amounts payable to him. At last, it is understood through the O.A. that the amount has been transferred to the unclaimed deposit. Such a stand was taken without giving him opportunity of being heard, which is also illegal.
17. The respondents filed an additional reply to the rejoinder where they have reiterated the contentions in the earlier reply. According to them, the period of training cannot be counted as qualifying service. Similarly, during the EOL availed by him contribution of payment towards provident O.A No.141/2020 14 fund, pension etc. should have been remitted, which was not done, despite specific directions issued for the same. They are also not aware of any medical certificate produced by him, during the period he was remaining in Canada overstaying the extraordinary leave.
18. According to the respondents, facility for renewal of CHSS though available to a retired employee, the applicant had moved for the same only after more than two decades. Thus the matter was referred to the Administrative Department and the 1 st respondent decided not to grant him the benefits.
19. Regarding the non-payment of subsistence allowance it has been reiterated that the applicant had to produce non-employment certificate during the period of suspension. He was also addressed on large number of occasions to produce documents for claiming the amounts due to him. But there was no response and that was how the amounts were transfer credited to unclaimed deposit.
20. We heard the applicant who appeared in person and also Smt.Mini R Menon, learned Standing Counsel elaborately. Both of them filed detailed argument notes also.
O.A No.141/2020 15
21. Having regard to the rival contentions, the following points arise for consideration:
I. Whether the applicant has acquired minimum qualifying service in BARC and is there any justification in denying him statutory pension and other pensionary benefits?
II. Is he not entitled for restoration of CHSS facility as claimed?
III. Are the respondents justified in not releasing amounts towards subsistence allowance, provident fund, gratuity, leave encashment, insurance etc.?
22. Before proceeding to consider the points separately, it is only appropriate to set out the service history of the applicant, which does not have serious dispute.
23. The applicant bears a brilliant academic background. After acquiring first class in B.Sc. and University second rank in M.Sc., he aspired to enter scientific service in the BARC. He joined the BARC training school on 01.08.1973. After successful completion of about one year training, he was appointed as Scientific Officer/SC in the BARC on 01.08.1974 with an additional increment. In 1982, he applied for a prestigious Common Wealth O.A No.141/2020 16 Scholarship of the Canada Government. Thus he was granted EOL for two years. He was relieved on leave on 24.08.1982 and was expected to rejoin duty on 24.08.1984 on the expiry of the said spell of two years. But he did not rejoin duty. According to the applicant, it was practically impossible to complete the Ph.D programme in two years, even the Scholarship and Fellowship Committee of the University concerned had requested the Government of India for extension of leave; the Government of India had taken up the matter with the 2nd respondent for granting him extension of time, but the latter did not relent. Any how, without completing the course, he reported back only on 10.12. 1986.
24. Thereafter, disciplinary proceeding under Rule 14 of the CCS (CCA) Rules was initiated against him and he was placed under suspension on 02.01.1987. The enquiry proceedings continued for 21 months. Meanwhile he tendered resignation which was not accepted. Ultimately, the competent authority, by Annexure-A12 order dated 18.12.1990 decided to remove him from service with immediate effect. He challenged the order before this Tribunal through O.A.56/1992. The Tribunal, though upheld the finding of the enquiry officer, interfered with punishment as it did not O.A No.141/2020 17 conform to the doctrine of proportionality. Again the matter was considered by the respondents and by order dated 03.04.1996, Annexure-A18, punishment was modified into compulsory retirement with effect from 18.12.1990.
25. As already stated, this Tribunal as well as the Hon'ble High Court did not approve this punishment as well, set aside the same and directed the respondents to reinstate him. The Tribunal had directed to grant him entire back wages which was not approved by the High Court. However, the entire finding was upset by the Hon'ble Supreme Court in Annexure-A23 judgment dated 16.11.2006. Annexure-A18 order of the 1 st respondent was upheld and the direction to grant him compulsory retirement with effect from 18.12.1990 was sustained.
26. The Original Application was filed on 27.02.2020. As stated earlier, the immediate provocation in approaching the Tribunal was the rejection of his plea for extending the benefit of the CHSS, a unique scheme prevalent among the members of the BARC. It is the common case that the benefit of the health scheme is available to all employees of the BARC, who have put in more than five years of service. That benefit has been made O.A No.141/2020 18 applicable even to retired employees of the organisation. Such retired employees can avail the benefit of the same even after a gap. Attracted by such a clause, the applicant approached the respondents in the wake of serious health issues suffered by himself and his wife during 2004-2014.
27. We have noticed that the applicant has sought plural remedies in this Original Application. He has grievances against non-granting of service benefits like promotions, effects of successive Pay Commission reports, fixations, pension on retirement; at the same breath, Annexures-A1 and A2 which relate to denial of extending the benefits of the CHSS facility is called in question. He is also aggrieved by the denial of subsistence allowance and other retirement benefits. The applicant wanted this Tribunal to take that the cause of action is the same, but apparently the contention is not correct. Here plural remedies are sought when causes of action are different. Any how, at the fag end of the proceedings, we do not want to adopt a technical stand and non-suit him on that ground.
28. The broad facts having set out as above, we proceed to consider the major points of disputes, identified by us.
O.A No.141/2020 19
Point No.I
29. The contentions of the parties regarding the qualifying service of the applicant are cutting each other. While the applicant asserts that he has put in more than 10 years and thus has become eligible for getting minimum pension, the respondents say that the applicant had only 8 years 1 month and 12 days service to his credit and hence he is not eligible for pension.
30. The applicant claimed that he was appointed on 01.08.1974 which has been approved by the respondents. The order of removal from service was served on him on 02.01.1991. Referring to Annexure-R5, respondents have pointed out that his gross service starting from 01.08.1974 to 02.01.1991 is 16 years 5 months and 2 days, out of the same, 6 years 3 months and 19 days, in three spells, have been discounted as non-qualifying service for pension. They are:
(i) dies non period from 31.03.1989 to 02.01.1991 - 1 year 9 months and 3 days;
(ii) dies non period of overstay from 24.08.1984 to 09.12.1986 -
2 years 3 months and 17 days; and
(iii) dies non period of suspension from 02.01.1987 to O.A No.141/2020 20 30.03.1989 - 2 years 2 months and 29 days.
Aggregate of non-qualifying service is 6 years 3 months and 19 days. Thus the net qualifying service is 10 years 1 month and 13 days. From the above period, EOL availed for higher studies from 24.08.1982 to 23.08.1984, two years have been deducted and thus the total qualifying service is reckoned to be 8 years 1 month and 12 days. The applicant challenges that estimation of qualifying service on various grounds.
31. Firstly, it has been pointed out that non-taking of his period of training from 15.08.1973 till the successful completion of training is illegal. In this connection, he has relied on Rule 22 of the CCS(Pension) Rules 1972.
32. Rule 22 of the Pension Rules provides that 'the Government may, by order, decide whether the time spent by a Government servant under training immediately before appointment to service under that Government shall count as qualifying service.' In other words, the Statute does not specifically say that every period of training undergone by a Government servant immediately prior to his appointment shall count as qualifying service. Such a question has been relegated to the Government. In this O.A No.141/2020 21 regard, Government of India decision has been relied on by the respondents to say that the applicant as a Group-A employee is not entitled to reckon the period of training undergone by him from 15.08.1973 onwards.
33. This Tribunal is bound to uphold the contention. As noticed earlier, there is no positive direction as to whether such a period should be reckoned, as a matter of course. The question has been relegated to the Government. Accordingly, by Government of India decision, such a benefit has been limited only to Group-C and Group-D employees. The said decision goes like this:
"(1). Pre-appointment training period counts as qualifying service.-
The staff side of the National Council (JCM) had suggested inter alia that the service rendered by an employee during the training period before his regular appointment to the grade may be treated as qualifying service for pension.
2. The request made by the Staff Side of the National Council (JCM) has been examined and it has now been decided that in respect of Groups 'C' and 'D' employees, who are required to undergo departmental training relating to jobs before they are put on regular employment, training period may be treated as qualifying period for pension, if the training is followed O.A No.141/2020 22 immediately by an appointment. This benefit will be admissible to all Groups 'C' and 'D' employees even if the officers concerned are not given the scale of pay of the post but only a nominal allowance."
34. This order has come into force on 22.12.1983. There is nothing on record to show that this question of granting similar benefit to Group-A and B cadres was addressed by the Government. Any how, there is no formal decision to show that such a benefit was available to a Group-A employee like the applicant.
35. Here, it is very important to refer to Rule 13 of the CCS(Pension) Rules, which provides that qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. The applicant has averred in the O.A. that he was appointed as Scientific Officer in the then Plasma Physics Division of the BARC on 01.08.1974. Having made such a contention, he cannot be heard to say that his period of training also should have been reckoned as qualifying service.
36. Moreover, the applicant has no case that he was first appointed against a substantive post granting a scale of pay and deployed for O.A No.141/2020 23 undergoing in-service training. Instead, he was made to undergo a course of training and on successful completion of training, was appointed as Scientific Officer. There is also nothing in record to suggest that the period of training was reckoned for the satisfactory completion of the statutory period of probation as well.
37. In this connection, the applicant placed reliance on a decision of the Hon'ble Karnataka High Court in G.Padmanabha Shenoy v. Canara Bank [ILR 1996 KAR 1750]. But that case has turned up on its own facts and there is no factual similarity here. There the High Court of Karnataka was considering the case of an employee of the Canara Bank in the context of provisions of the Canara Bank Officers Services Regulations, 1979 and held that the scheme evolved by the Bank gives a reasonable presumption that 'employees taken on contract basis were considered to be on training for an initial period of two years, which training would after the period entitle them to be appointed on probation ultimately culminating in a regular appointment in their favour. We have no doubt that the judgment will not advance the case of the applicant.
38. In other words, the claim of the applicant that he is entitled to get O.A No.141/2020 24 the period of training from 15.08.1973 till 31.07.1974 reckoned as qualifying service, cannot be accepted.
39. Then we shall consider the period of extraordinary leave. Normally, such a period is liable to be reckoned for estimating as qualifying service under Section 49 of the Pension Rules. It is pertinent to note that long after his compulsory retirement, but prior to the institution of the SLP before the Supreme Court, through Annexure-R8 communication dated 23.02.1998, the applicant was called upon by the 2 nd respondent to remit the pension contribution. It is clear that in the absence of specific option exercised by him, he was deemed to have opted for pensionary benefits. But during the period of EOL for proceeding to Canada, he did not make any pension contribution. Thus Annexure-R8 dated 23.02.1998 was sent to him with the following note, relevant portion of which reads thus:
"............However, as is evident from the records, he has not remitted the employees share of contribution to the GPF and pension contribution during the time of his EOL abroad and hence the said period from 24.08.1982 to 23.08.1984 would not count as qualifying service and thus makes him run short of the minimum required period of 10 years for the purpose of grant of pension on compulsory retirement. In this connection, a O.A No.141/2020 25 copy of letter No.BARC/Accts/S-II/G-306-127/584 dated 01.07.1992 addressed to him by DCA (G),BARC is enclosed. He is requested to remit the above contribution within 30 days from the receipt of this letter failing which it will be presumed that he is not interested in getting the above service as qualifying service and action to settle the dues would be taken accordingly. He is also requested to return the forms duly filled in at the earliest to enable the office to settle his dues."
40. Receipt of this communication is not disputed by the applicant. In the rejoinder he has stated that Annexures-R7 and R8 are liable to be rejected being arbitrary, perverse and issued in outrageous defiance of the provisions of the Statutes and in violation of doctrine of legitimate expectation and doctrine audi alteram partem. He also added that in the wake of the order of this Tribunal against Annexure-A12 order dated 18.12.1990 he was on a legal advice against accepting any settlement of dues or making remittances which would have otherwise influence the pending legal process. Thus on the first part, it is patent that the applicant received Annexure-R8 communication and he chose not to respond the same in the wake of the order of this Tribunal as well as the legal advice received by him.
41. It was also pointed out that in the light of Annexure-A42 OM O.A No.141/2020 26 dated 11.02.1980 since he had not taken up any foreign assignment, he was not bound to make any pension contribution during the spell of the EOL.
42. In this connection, it is apposite to refer to Annexure-R9 OM dated 25.06.1970, which has been noticed in Annexure-A42. Clause 8 of Annexure-A42 reads thus:
" 8. Scientists, Technologists and Medical Specialists working under the Central Government, who, in the overall interest of Research and Development, are permitted by Government to take full time assignment either in foreign countries or within the country, as visiting Professors, students etc., in Universities, Scientific/Medical Institutions, may be allowed to retain in toto the remuneration received by them, subject to the following conditions.
(a) They may be granted extraordinary leave during the period of such assignments;
(b)The assignments should not be more than two years duration at a time; and
(c) They shall pay pension contribution to the Government of India as payable under the provision of Fundamental Rules by Government servants sent on deputation on foreign service..........."
Referring to FR 115, the applicant wanted to convince this Tribunal that he O.A No.141/2020 27 was not in a foreign service but was pursuing an academic course nor it was an assignment so that question of making pension contribution did not arise.
43. But we are not convinced. The stand of the applicant in this regard is totally inconsistent. At the first place, he said that he was on a legal advice not to relent for any such payment and now he wants to say that he was not in a foreign service or assignment so that he should not have been asked to make any payment during the spell of EOL.
44. On the other hand, above quoted Office Memorandum clearly mandates that even if he was on a foreign assignment as visiting Professor, student etc, is bound to make pension contribution.
45. Apparently at the time of proceeding on EOL he was holding a substantive post of Scientist; he had voluntarily opted a foreign scholarship availing two years EOL. In such a contingency the assignment mentioned in the OM cannot be given the meaning of any avocation or job. Any how he was getting scholarship, which he was entitled to retain in toto. But that does not abdicate his liability to make pension contribution as prescribed and fixed by the Government. As shown earlier, even long after his return from EOL, he did not remit his contribution which should have been done periodically at O.A No.141/2020 28 the end of every year. He was given a long hand to make the payment, but that opportunity was not utilised. In the circumstance, the decision of the respondents in excluding the period of EOL from reckoning cannot be found fault with.
46. The applicant had rejoined duty in BARC on 10.12.1986. Annexure-R8 was issued on 23.02.1998 giving a further period of 30 days. He did not make use of that golden opportunity. Even after the Apex Court had rendered its verdict, the applicant did not want to remit the payment, nor has sought enlargement of time for the same. At this distance of time, neither we were requested, nor inclined to grant any extension of time for the purpose, which would be inappropriate.
47. The applicant is also sceptical about the stand of the respondents that they did not reckon the period of absence conveyed to the respondents with the aid of Annexure-A10 series documents. Out of three documents produced as Annexure-A10 series, Annexure-A10(a) is a certificate dated 22.01.1986 issued by Dr.G.Mc Inroy M.D. of University Health Service, University of Alberta, Canada suggesting that he is suffering from symptomatology secondary to and aggravated by stress and pressure and he O.A No.141/2020 29 has been authorised a leave of absence until 01.04.1986. Annexure-A10(b) suggests that the applicant requires leave of absence for about 12 weeks from 01.05.1986. Annexure-A10(c) is a medical certificate issued by Dr.M.S.Chellappan, Assistant Surgeon saying that the applicant is suffering from anxiety neurosis and that he 'considers that period of absence for 21 days from 16.010.1986 is absolutely necessary for his restoration of health'. This is a medical certificate issued by Asst. Surgeon of the Government Hospital, Thiruvalla.
48. The case of the applicant is that Annexure-A10 series were duly communicated to the respondents, but they have ignored the same. The respondents have not denied the receipt of such medical certificates or any such communication. Atleast Annexure-A65 memorandum issued from the Personnel Division of the 2nd respondent suggests that a decision on the applications was deferred pending the disciplinary proceedings. Thereafter nothing was heard about it. But in our view, passing or otherwise of such applications for leave supported by medical certificates have no relevance. It is the specific case of the respondents that the applicant had overstayed the period of leave granted to him for two years, which is very true. Respondents O.A No.141/2020 30 did not condone the overstay or ratified it; instead, despite the fact that it was done in unavoidable, compelling circumstances, they took the matter as a very serious act of misconduct and launched disciplinary action against him, which ultimately resulted in imposing a major penalty of compulsory retirement. Moreover, that period has been treated as dies non.
49. He was granted EOL only for two years, under Annexure-A5 order. It is also evident from the averments of the respondents that before proceeding on leave the applicant had given clear written undertaking that he would return on the expiry of the period of two years, that he will not seek further leave etc.
50. The applicant had a contention that before proceeding on leave he had given written authorisation to the office, authorising them to make remittances whatever necessary, from the amount due to him etc. The respondents have stoutly denied receipt of any such authorisation. On the face of the argument, the contention does not appeal to reason. Firstly, copy of any such authorisation is not produced or proved; secondly, the contention of the applicant is rather abstract and lacking in particulars. Such an authorisation, relating to money transactions, cannot be made loosely. In O.A No.141/2020 31 other words, it should have been addressed to some person in particular, making specific authorisation. There is also no definite case as to from which source such payment should have been met. Even for availing a loan from the GPF, there should be specific application supported by affidavit etc. Therefore, the case of the applicant that he had given authorisation before proceeding on leave is only to be rejected. Worsening the case of the applicant, whatever may be the rationale, Annexure-A5 forwarding note indicates as follows:
" Leave order granting EOL for two years may be issued under intimation to this section subject to the condition that Sri.George Philips should not register for Ph.D. Degree and that no extension of leave beyond two years will be granted. An undertaking to this effect may please be obtained from Sri.George Phillips and forwarded to the section for record. A service bond for Rs.10,000/- in the enclosed form may please be obtained in triplicate and forwarded to this section."
51. As noted earlier, the respondents have contended that such an undertaking was given by him but he did not oblige the same.
52. The case of the applicant is that it is known even to a child that for prosecuting a Ph.D. Course, two years is of no avail. It is true like day O.A No.141/2020 32 light. But such an argument of the applicant has been taken against him. The applicant had availed two years EOL fully conscious that he may not be able to complete the course within the period. There was definite indication that he would not be granted any extension of time and that he should not register for Ph.D. In Canada. The documents including Annexure-A23 judgment of the Supreme Court show that he had registered for Ph.D. in Canada and that may be the reason which compelled him to remain beyond the sanctioned period of two years in Canada.
53. Whatever it may be, we are on the question of reckoning the period of leave availed by him with the help of Annexure-A10 series for reckoning qualifying service. We do not have slightest doubt in our mind that Annexure-A10 series cannot help the applicant. Firstly, such leaves were availed during the period of his overstay, which was unauthorised. Subsequent events indicate that the department disowned the action of the applicant; it resulted in initiation of disciplinary proceedings against him and ultimately he was slapped with a punishment of compulsory retirement with effect from 18.12.1990. So it is idle to contend that such a leave period, could be reckoned as qualifying service.
O.A No.141/2020 33
54. On an overall evaluation of the contentions of the parties, we find that there is absolutely no material to uphold the contention of the applicant that he had acquired minimum qualifying service for satisfying Rule 49 of the CCS(Pension) Rules and thus entitled to get pensionable service. The first point is found against the applicant.
Point No.II
55. Admittedly, the applicant was a subscriber to the Contributory Health Services Scheme which is in vogue in BARC. He continued to subscribe the scheme till his proceeding on leave on 24.08.1982. Annexure- A90 dated 02.04.1994, statement of final settlement of salary dues indicates that his share of CHSS as arrears from 9/1982 to 12/1990 was also recovered from him through the pay slip. That means, subscription towards his share towards the scheme has been recovered till December 1990. Later, in 2014 he wanted to restore the CHSS facility so that, Annexure-A26 request was given on 30.10.2014, on the strength of Annexures-A29, 30 series, after a gap. But Annexure-A26 dated 30.10.2014 was kept in cold storage for years and was ultimately rejected through Annexure-A1 dated 30.01.2019, after nearly four years. It is evident that the 2 nd respondent did not take any O.A No.141/2020 34 decision on his plea. But the question was referred to the 1 st respondent and it was the 1st respondent who ultimately took the decision that he is not entitled to get the facility. Annexures-A1 and A2 do not contain reasons for rejecting his plea for re-enrolling in the scheme. But after evaluating the circumstances, we do not find valid reasons to take such a harsh stand on the applicant who has turned a septuagenarian.
56. From Annexure-A29, 30 etc. it is clear that such a benefit is available to those employees of the BARC who have put in a minimum of five years service in the department before his retirement. The benefit is available to retired employees also, even if they are re-employed. Once such an employee has become a life member, benefit flowing there from is available to him without making any additional contribution.
57. Admittedly, the applicant was a member of the CHSS during his course of employment. Contributions towards the scheme was deducted even from the last salary disbursed to him. He has put in more than five years service in the organisation. Annexure-A30 extends the benefit of the scheme even after a gap, on retirement. Therefore, it was unwholesome to reject the request on consideration that he had made the request only in 2014 after more O.A No.141/2020 35 than 20 years. The respondents have not set out the reason for rejecting his plea. But the reply suggest that they were influenced by the delay. The scheme permits a retired employee to rejoin after a gap. A former employee, even after re-employment is entitled to enjoy the benefit. There is no stipulation that an ex-employee cannot be enrolled after a particular period. In the absence of any such stipulation, in our considered view, time lag should not have been taken against the request.
58. It is the settled proposition of law that the employer shall not put fetters on the medical reimbursement claims of an ex-employee. As ruled in Shiva Kant Jha v. Union of India[(2018) 16 SCC 187], the real test must be the factum of treatment; once it is established that the ex-Government servant had actually taken treatment and the factum is supported by document, the claim for reimbursement cannot be denied on technical grounds.
59. It is also held that the relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The applicant and his wife have grown aged. When one goes up in age demand for medical assistance and expenses also go up. It is the responsibility of a welfare State to cater to such medical O.A No.141/2020 36 requirements.
60. Sequences of events show that the applicant was unceremoniously removed from service. We have found that, for one reason or the other, he is not entitled to get pensionary benefits. All the same, having put in sufficient service for earning the benefits under CHSS, an empathetical consideration was called for.
61. Materials produced by the applicant shows that he is a heart patient and is under treatment for long. Similarly, the spouse of the applicant also has undergone treatment in different hospitals in Kerala and Tamil Nadu. As as ex-employee of the 2nd respondent, who has chosen to restore the benefit of the scheme with an offer to make remittances, he should not have been denied the benefit of the same. Therefore, the respondents are liable to be directed to consider the plea of the applicant for subscribing to the scheme even after a gap, within a period of 90 days from the date of receipt of a copy of this order. The respondents shall intimate the amount payable by the applicant as on 30.10.2014; it goes without saying that whatever benefits accrued to the applicant from such an enrollment shall be payable to him on his producing necessary documents before the 2nd respondent. Point No.II is O.A No.141/2020 37 answered accordingly.
Point No.III
62. The applicant is severely aggrieved by non-granting of pension and its arrears, subsistence allowance during the period of his suspension, gratuity, leave encashment, provident fund, amounts paid towards Central Government Employees Group Insurance Scheme etc. We have already dealt with the eligibility of getting his pension and held that the applicant does not have minimum qualifying service as provided under Rule 49 of the CCS (Pension) Rules and not entitled to get pension. That means, such a claim has already been declined. Now we shall consider other claims.
63. The most important claim of the applicant is that he was not paid subsistence allowance during the period of suspension. As noticed earlier, he was suspended from service on 02.01.1987 and was not paid anything till his compulsory retirement on 18.12.1990. There is no doubt that he is entitled to get subsistence allowance as provided under FR 53 of the Fundamental Rules. Rule 53(1)(ii)(a) of the Fundamental Rules insists that subsistence allowance at an amount equal to the leave salary which the Government servant would have drawn, if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible O.A No.141/2020 38 on the basis of such leave salary. That can be revised further. He is also entitled to get compensatory allowance admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfilment of other conditions laid down for the drawal of such allowances. FR 53(2) makes it very clear that 'no payment under sub rule(1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation'. That means, it is very important that for the grant of subsistence allowance it is a pre-condition that the officer placed under suspension is bound to produce a certificate of non-employment. The repeated grievance of the applicant that even though he was placed under suspension for more than 17 months, no amount was paid towards subsistence allowance, that he had submitted non-employment certificate for the period from 14.01.1987 to 29.03.1987. From this averment, it is very clear that he had taken care to give non-employment certificate only for nearly two months after placing him under suspension. He does not state anything about the submission of such a certificate after 29.03.1987.
64. But the respondents have denied the receipt of such a certificate from him during the period under suspension. They say that even after O.A No.141/2020 39 repeated directions, a certificate was not submitted and that made the respondents not to release any amount as subsistence allowance.
65. As adverted to earlier, payment of subsistence allowance is conditioned by submission of non-employment certificate. It is disbursement of money from the public exchequer. Therefore, the respondents are bound to follow codal formalities for effecting such payment. But the applicant did not take care to give any such certificate. Receipt of any certificate for the period from 14.01.1987 to 29.03.1987 is not accepted by the respondents. The burden is on the applicant to prove that a certificate was produced by him. He has not produced copy of the same. Therefore, it has to be presumed that such a certificate was not submitted before the respondents.
66. According to the respondents, in the order of suspension itself it was specified that his headquarters during suspension will be Mumbai, that he shall not leave the headquarters without obtaining previous permission of the competent authority. They have further averred that the service records indicate that the applicant had gone abroad even before conclusion of the departmental enquiry and was not available to receive or respond most of the communications sent by the department over a period of time. So, according to them, the applicant was working abroad for most of the period mentioned O.A No.141/2020 40 above and was not in need of any amount under the CHSS and other retirement benefits during the period and that is the reason why he did not bother to apply even for subsistence allowance.
67. We have reasons to uphold the contention regarding subsistence allowance. On 09.08.2023 when the case was heard last, we had specifically put a query to the applicant on his whereabouts during the post suspension period. According to the applicant, he had no other means of livelihood, for eking out livelihood he was taking some classes etc. May be true that he might have gone abroad. That precisely may be the reason why he had nominated a Power of Attorney during the period he was placed under suspension. One Prof.Mohan Joseph, his brother-in-law was the Power of Attorney and Annexure-R1 series, Annexure-R10 series and Annexure-R12 series were sent in the address of Prof.Mohan Joseph, Mohan Vilas, Othara, Thiruvalla. It is very clear that Annexure-R12 series communications were sent by the respondents in the given address, specifically for producing the non-employment certificate; still that were not responded, may be because that he had gone abroad, for finding out a source of earning. Whatever it may be, it is very clear that subsistence allowance was not released to him owing to the reason that he had failed to produce non-employment certificate, which O.A No.141/2020 41 is mandatory and pre-requisite for the release of the same. Therefore, that part of the claim cannot be raised by the applicant at this distance of time.
68. The applicant was also complaining that he was not paid other amounts like service gratuity, leave encashment, provident fund and amounts paid to a Central Government Employees Group Insurance Scheme etc. Prima facie, there is no justification in withholding such amounts, immediately after removing him from service.
69. It is mandatory under Rule 49 of the CCS(Pension) Rules that 'in the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service'. We have already found above that the applicant did not have 10 years qualifying service and has not qualified for getting minimum pension. Therefore, service gratuity in lieu of pension ought to have been granted. Similarly, other amounts like leave encashment, provident fund, which is his own money, with interest and amounts remitted by him towards Central Government Employees Group Insurance Scheme etc. should have been released to the applicant.
O.A No.141/2020 42
70. But the respondents have shown through Annexure-R1 series, R10 series and R12 series that numerous communications were sent to his Power of Attorney for producing documents. Annexure-R1 series, 13 documents are dated 06.10.2010, 30.08.2010 10.06.2010, 22.12.2009, 17.08.2009, 23.06.2009, 27.04.2009, 06.12.2008, 09.07.2008, 16.05.2008, 19.03.2008, 02.01.2008 and 22.01.2007 respectively. In the communication dated 22.10.2007, reference is made about a letter sent in the name of the applicant in the address of Prof.Mohan Joseph, Mohan Vilas, Othara P.O., Kerala State-689546, where mention is made about letter dated 17.03.1992 forwarding set of forms for settlement of dues. According to the respondents, the said forms are not yet returned, filled up, in spite of sending numerous reminders.
71. These letters, Annexures-R1/1 to R1/13 with reminders were sent in registered post acknowledgements due, in regular intervals between 2007 and 2010, which were not replied or responded. May be at that time, the litigation was pending before this Tribunal and also before the Hon'ble Apex Court, that he did not respond. Similarly, Annexure-R10 series are ten communications dated 06.06.1991, 11.07.1991, 19.08.1991, 17.03.1992, 20.04.1992, 18.06.1992, 23.07.1992, 24.08.1992, 30.09.1992 and O.A No.141/2020 43 23.05.1996. The difference is that Annexure-R10 series were issued prior to Annexure-A23 judgment of the Apex Court, whereas Annexure-R1 series are post judgment communications. Any how, such communications were not responded by the applicant. That means, there is little substance in his argument that he was not kept posted. These communications clearly indicate that, at regular intervals the respondents had taken care to remind the applicant for furnishing necessary details for disbursing the amounts due to him. In Annexure-R10 dated 30.09.1992 it is stated that if the requisite forms are not received in the office by 15.11.1992, the amount due to him in provident fund shall be deposited in the unclaimed deposit. So, there is no basis in saying that everything was done behind his back, that principles of natural justice were not followed etc. Obviously, those amounts, under different heads, though not quantified, are due to him and they are liable to be released to him despite the fact that the applicant had staked claim over the same after long period of time.
72. That means, there is nothing to blame the respondents for not releasing the amounts payable to the applicant like service gratuity in lieu of pension, provident fund, leave encashment and also the amount towards the Central Government Employees Group Insurance Scheme. Such amounts O.A No.141/2020 44 were reported to have been deposited in unclaimed deposit.
73. On 09.08.2023 when the case was heard, we had put a definite question to the learned Standing Counsel as to what are the Rules governing the subject in transferring such amounts to unclaimed deposit, whether such amounts cannot be retrieved and paid to the applicant etc. The learned Standing Counsel said that the averments made in the reply and the additional reply that it were transferred to unclaimed deposit are now found to be not correct, that such amounts are not yet transferred to such deposit, that if the applicant will give a representation, the 2 nd respondent is prepared to release the same to him. In fact, we do not deem it appropriate to ask the applicant to file a fresh representation. In fact, this O.A. should work as a representation. There is no such principle that the amount has lapsed. Now, it is very clear that the amounts are still available in the account of the 2 nd respondent and therefore we direct that the entire amount with accrued rate of interest shall be released to the applicant, after taking him into confidence, within a period of 90 days from today. Point No.III is found accordingly.
74. Applicant also is aggrieved by the non-granting of promotions, benefits during the successive pay commission recommendations. He will also aggrieved by not following the sealed cover procedure, during the period O.A No.141/2020 45 of disciplinary action. But in view of the subsequent developments, since he stands compulsorily removed from 1990, such grievances have lost relevance. Even though the Apex Court finally decided the fate of the proceedings on 16.11.2006, no action was taken by him till moving this Tribunal in 2020. He did not move any representation before the respondents raising these issues. Therefore, after long lapse of time, such questions cannot be raked up again.
75. Before parting with, we find it unwholesome that the applicant has taken much pain to challenge and criticize the verdict of the Hon'ble Apex Court. According to him, the imposition of such a punishment with retrospective effect is illegal. He has placed reliance on certain decisions also at this regard. We do not want to make any comment on the same, because judicial discipline does not permit. Once the Apex Court has rendered a verdict, which has become final, the applicant should not have forgotten that, that has become the law of the land and he is not heard to attack or criticize the same even remotely before a subordinate judicial forum. We do not want to say anything more about it.
76. In the result, the claim of the applicant that he has rendered more than 10 years qualifying service for getting pension is not sustainable and is O.A No.141/2020 46 rejected. The other two claims that he is entitled to get benefit under the CHSS is allowed and such a benefit shall be extended to him as stated earlier, as if he had moved before the respondents on 30.04.2014, within a period of 90 days from today after working out the periodical share of contribution payable by the applicant either yearly or life long, as the case may be. Similarly, all the monetary claims made by the applicants like gratuity in lieu of pension, provident fund, leave encashment etc. shall be released to him within a period of 90 days from the date of receipt of a copy of this order, without waiting for any further representation from the applicant.
77. At the time of releasing such amount, normally, the respondents are likely to say that amounts are due from him etc. regarding the bond executed by him. The respondents may seriously consider as to whether it is expedient to ask the applicant to make such payments. We feel that the applicant has already been sinned against than sinning. The applicant has narrated in the O.A. also the terrible experience meted out to him after serving copy of suspension order on him. He was immediately eased out from the guest house, even denying meals, he was made to get out of the guest house in the very night itself. Those are, no doubt, inhuman treatments which should not have been done from a prestigious organisation to a Group- O.A No.141/2020 47 A officer. Whatever it may be, while contemplating recovery of any amount from him, spirit of the provisions of the Limitation Act shall be borne in mind by the respondents. Similarly, the decision rendered in State of Punjab and Others v. Rafiq Masih (White Washer) [(2015) 4 SCC 334] also shall be borne in mind.
With these observations, the O.A. is disposed of. We make no order as to costs.
(Dated, this the 22nd August, 2023)
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A No.141/2020 48
List of Annexures
Annexure A1: True copy of the Communication dated
Ref:MD/CHSS/Gapcases/1661 dated 30.01.2019.
Annexure A2: True copy of the Communication
Ref.No.32(1)/2007/Admn./OPA-17200 dated 13.12.2019 Annexure A3 True copy of the Certificate No.1 Annexure A4 (Colly): True copies of Award Notification by Ministry of Education & Culture, Canadian Commonwealth Scholarship Committee Bond along with the Solvency certificate executed with Govt. of India dated 25.01.1982 Annexure A5: True copy of leave approval by the vide DAE ID No. 36/1/81- BARC Vol.II dated 14-02-1982.
Annexure A6: True copy of Relieving Order Ref.PPS/GP/911 dated 23-8- 1982 Annexure A7: True copy of leave order Ref.PPS/GP/967 dated 6.09.1982. Annexure A8: True copy of the letter No.F.8-5/81-ES.4 dated 01.03.1985 issued by the Assistant Educational Adviser.
Annexure A9: True copy of the Letter No. F.7-6/64-Com(ES4) dated 5.05.1967 issued by Deputy Secretary, Ministry of Education. Annexure A10(a)to(c): True Copies of Medical certificates recommending leave dated 22-01-1986, 01-05-1986 and 16-10-1986. Annexure A11: True copy of the order No15/3/85- (Vig.)-R dated 30-12-1986 issued by the Director, Department of Atomic Energy. O.A No.141/2020 49 Annexure A12: True copy of the Order No. 15/3/85/(Vig.)/R/1502 dated 18.12.1990 issued by the Secretary, Department of Atomic Energy, and Government of India.
Annexure A13: True copy of the order dated 06.01.1994 in O.A. 56/1992. Annexure A14: True copy of Communication Ref No.15/3/85/Vig./R/228 dated 22.08.1995.
Annexure A15: True copy of the Order dated 02.08.1994 in R.A.No. 45 of 1994 in O.A.56 of 1992.
AnnexureA16: True copy of the Order Ref.No:G/1306/L&PT/Estt.IA/2689 dated 29-5-1991 issued by Dy.Establishment officer, BARC AnnexureA17(Colly): True copies of two Standard form notices demanding refund of bond amount by BARC dated 06.01.1992 and 14.02.1992 issued by the Dy.Establishment officer, BARC AnnexureA18: True copy of the Order No.15/3/85/Vig./Vol.V/267 issued by the Secretary, Department of Atomic Energy, Govt of India. AnnexureA19: True copy of the order dated 17.09.1999 in O.A.No.1127/1996 passed by CAT, Ekm Bench.
Annexure.A20: True copy of the judgment of the Hon'ble High Court of Kerala dated 10-8-2005 in O.P.No.29344/1999.
Annexure.A21(Colly): True copies of the representations dated 07.09.2005, 14.11.2005 addressed to the respondents for his reinstatement in service. Annexure.A22: True copy of the Judgment dated 30.01.2007 in R.P.No. 816/2005 passed by Hon'ble High Court of Kerala.
Annexure.A23: True copy of the judgment dated 16.11.2006 in C.A.No. 4998/2006 of the Hon'ble Supreme Court.
O.A No.141/2020 50Annexure.A24: True copy of the Judgment dated 13.11.2007 in R. P. (C)No 13872/2007 in C.A. No. 4998 of 2006 passed by Supreme Court of India..
Annexure A25: True copy of the Communication Ref:
nd
G/306/126/Estt.II/11517 dated 29.09.2014 issued by the 2 Respondent. Annexure A26: True copy of the Application dated 30.10.2014 submitted by the applicant for registration under the CHSS Scheme Annexure A 27: True copy of the e-mail sent by the applicant dated 31.12.2014 to the 2nd respondent.
Annexure A 28: True copy of the e-mail dated 19.01.2015 sent by the applicant to the AO-III, Medical Division, BARC Annexure A 29: True copy of the Circular Ref.No.22/27/84/CHSS/IR&W/27 dated 16.02.1994 issued by the Staff Relations Officer, DAE. Annexure A30) (a) to (d): True copies of the said Official Memorandum No.7/8/2015/IR&W dated 29.08.2016 along with subsequent 3 notifications bearing No. 7/3/2017/IR&W(Vol.II)/15101 dated 4.12.2018, No. 7/3/2017/IR&W(Vol.II)/2235 dated 15.02.2019 and No. 7/2/2019/IR&W/14337 dated 21.11.2019.
Annexure A31: True copy of the communication D.O. No.5(5)/83SR&W/726 dated 09.06.1983 issued by the 2nd respondent.
Annexure A 32: True copy of the Circular Ref.No.117/PFC/Estt.VI/ (9)/87/1666 dated 3.04.1987 regarding Acceptance of IV th pay commission. Annexure A33: True copy of the Office Memorandum issued by the Ministry of Finance No. 11015/2/86-E.11(B) dated 19.03.1987 Annexure A34: True copy of the Circular Ref. No. 117/PFC/Estt.VI/(9)/86 dated 13.04.1987.
O.A No.141/2020 51Annexure A35: True copy of the Office Memorandum No.F.No.38/37/2016- P&PW(A) dated 06.07.2017 by Government of India.
Annexure A 36: True copy of the Office Memorandum No. F. 15(3/78-WIP) dated 14.02.1983 issued by the Ministry of Finance.
Annexure A37: True copy of the Circular Ref.No.16(19)/80-SR&W/300 dated 31.03.1983 issued by the Head, Personal Division, BARC. Annexure A38: True copy of the representation submitted by the applicant before Director, BARC dated 24.09.2019.
Annexure A39: True copy of the RTI Application submitted by the applicant dated 02.11.2019.
Annexure A 40(Colly): True copies of the RTI reply Ref.BARC/RTI/2019/11/5059/16581 dated 04.12.2019 issued by the Public Information Officer, BARC along with the Appeal dated 31-12-2019 submitted by the applicant to the 1 Appellate Authority at BARC Annexure A41(Colly): True copies of the Medical bills issued by the MIMS Hospital, Calicut and SUT, Trivandrum dated 8.12.2014,10.02.2015, 12.02.2015,14.02.2015 Annexure R1 (colly): True copy of the letters dated 22.10.2007, 02.01.2008, 19.03.2008, 16.05.2018, 09.07.2018, 06.12.2018, 27.04.2009, 23.06.2009, 17.08.2009, 22.12.2009, 10.06.2010, 30.08.2010 and 06.10.2010 Annexure R2: True copy of the note No.Ref:G/542/1/Est.IA/4983 dated 14.01.2011 Annexure R3: True copy of the Rule 49(2) of the CCS (Pension) Rules, 1972.
Annexure R4: True copy of the letter No. DAE ID Note No.7/8/2015/IR&W/630 dated 15.01.2019.
O.A No.141/2020 52Annexure R5(Colly): True copy of the Verification of qualifying service, letters dated 26.10.2018, 20.09.2019.
Annexure R6: True copy of the Rule 22 of the CCS (Pension) Rules, 1972. Annexure R7: True copy of the letter No.Ref:BARC/Accts/S(II)G-306- 127/584 dated 01.07.1992.
Annexure R8: True copy of the Note Ref:G/1306/L&PTD/Estt.IA/826 dated 23.02.1998.
Annexure A42: True copy of Notification regarding Pension contribution applicable to Central Government employees sent on deputation to foreign service on full time assignment No.16013/1/-Estt.(AL) February 11, 1980 Annexure A43: True copy of Notification showing FR115(a), FR115(c) and SR307, relevant to Pension contributions etc. applicable to Central Government employees on deputation to foreign service Annexure A44: True copy of the extract of BARCOA Bulletin VOL 22, March 1988, showing that the applicant was harassed before his eviction on 14.01.1987 in the BARC Training School Guest House AnnexureA45(Colly): True copies of representations to the respondents by the applicant at Bombay office by hand delivery, after he was refused an audience by the respondents on 13.03.2006 Annexure A46: True copy of the Notification No. 38/58/06-P&PW(A) dated 05.03.2008 showing the applicability of CCS(Pension) Rules 1972 for qualifying service for trainees with stipendiary pre-appointment training qualifies as period for pension Annexure A47: True copy of the Notification No.13017/20/85-Estt.(L) dated 18.02.1986 showing that EOL granted for prosecuting higher study will be treated as qualifying service for pension, without further order. O.A No.141/2020 53 Annexure A48: True copy of the email message from Vice-President of BARCOA showing the callous attitude and refusal by BARC Administration in renewing the CHSS medical facilities to the applicant. Annexure A49: True copy of the medical certificate showing that the applicant was admitted in KIMS Hospital Tvm. due to Cardiac disease on 12.01.2004 Annexure A50: True copy of the medical certificate dated 02.02.2015 issued by CMC Hospital Vellore showing that the applicant's wife was diagnosed with serious conditions of illness and she was advised for urgent treatment Annexure A51: True copy of Office Memorandum regarding the penal interest for delay for contribution to Pension etc. in respect of Government servant on deputation to Foreign Service with amendment to FR307, Notification F. No.1(1)E.III/83 dated 22.08.1983 Annexure A52: True copy of Office Memorandum regarding the rate of Pension contribution payable during foreign service Notification No.F. 8(9)- E,III/81dated 29.07.1982 Annexure A53: True copy of Office Memorandum regarding Pension contribution payable during foreign service in respect of Government servant on deputation to Foreign Service Notification No.F. 1(1)-E,III/76 dated 19.04.1976 Annexure A54(Colly): True copies of Office Memorandum/Gazette regarding Pension, CGEGI contributions etc. payable during foreign service of in respect of Government servant on deputation to Foreign Service Notification No.8. (3)-E,III/82 dated 11.05.1982 and Gazette dated 11.08.1983 Annexure A55(Colly) Copies of unused blank forms returned to 2 nd respondent by the applicant Annexure A56 (Colly): True copy of Press release & Office Memorandum No.12/9/2020-P&PW(C)-6450 dated 17.07.2020 regarding the Provisional release of retirement benefits as per Rule 64 of CCS(Pension) Rule 1972 and O.A No.141/2020 54 medical help during COVID-19 Pandemic Annexure R-9 Copy of Department of Expenditure OM dated 25.06.1970. Annexure R- 10 Copies of letters send to Applicant in order to settle his retirement dues.
Annexure R- 11 Copy of letter dated 20.01.1987 for releasing duty pay of the Applicant.
Annexure R- 12 Copies of order dated 27.02.1987 and Memorandum dated 06.05.1987 for granting subsistence allowance to the Applicant. Annexure R- 13 Copy of letter dated 19.04.1991 showing approval of Competent Authority in Department of Atomic Energy. Annexure A57 Extracts From The OA and The Rejoinder relevant to CHSSs benefits Annexure A58 A Compendium of landmark Judgments/ Judicial observations of the Hon'ble Administrative Tribunals, High Courts & the Supreme Court relevant to CHSS benefits Annexure A58: True copy of Section 15.1, Chapter 15- CHSS 'DAE Pension and Retirement Benefits at a Glance'. Retired employee having minimum of five years' service is eligible to the CHSS facilities with the "option to join any time after the retirement"
Annexure A59: True copy of the Medical Certificate indicating that the applicants' wife had to seek medical treatment in an emergency Annexure A60 (Colly) True copy of the Certificate No.1 with undertaking along with sponsorship agreement by the 2 nd respondent ensuring to protect the service of the scholar with conditions commensurate with experience and qualifications obtained from higher study in Canada.O.A No.141/2020 55
Annexure A61: True copy of pages from General Rules regarding Deputation out of India & Foreign Service are discussed in Chapter VII of Fundamental Rules FR51-2 Deputation terms for Scholarship Schemes- leave salary, DA etc. to be granted by the parent department besides maintenance allowance arranged by Ministry of education Annexure A62: A true copy of the letter dated 25 th November 1981, sent by the Ministry of Education to -BARC requesting to make arrangements for Deputation Pay etc., to the Applicant Annexure A63: True copy of extracts of relevant Fundamental Rules under Chapter XII, 'Foreign Service' showing that Pay and Allowances will be paid during Foreign Service and in that case foreign contributions for Pension need to be made FR 115 (a) and contribution towards Pension is not payable if no salary is received (FR111 .8 (2). (b) etc.) Annexure A64: A true copy of the Bond in Form 6, dated 11th February 1982 demanded by BARC in conflict with the agreement in the Original Bond made with the Ministry of Education before the award of the Commonwealth Scholarship.
Annexure A65: True copy of the letter dated January 21, 1987 issued by BARC confirming they had received applications 21.6.1986, 22.7.1986 & 16.10.1986 by the Applicant for medical leave supported by medical certificates for three separate periods.
Annexure A66: True copy of the ACR for the period 1982-1986 sent by the University of Alberta, Canada as an evidence to show that the Applicant had an excellent academic record during the study abroad Annexure A67: True copy of the testimonial dated January 23, 1987 issued by Professor Emeritus Dr. P.R. Smy- academic supervisor Annexure A68: True copy of the letter dated February 06, 1985 sent to Ministry of Education by Chairman of Dept. of Electrical Engineering, University of Alberta, Canada requesting for leave extension O.A No.141/2020 56 Annexure A69: True copy of the letter dated February 06, 1985 sent to BARC by Chairman of Dept. of Electrical Engineering at the University of Alberta, Canada requesting for leave extension Annexure A70: True copy of the letter dated April 23, 1986 sent to the 2 nd Respondent (Director, BARC) by the Dean/Research Director at the University of Alberta explaining the circumstances for overstay of the leave which was not wilful Annexure A71 A true copy of the written Statement of Defence (WSD) dated 17/18.12.1985 given by the applicant clearly proving that he had admitted the alleged charge of EOL "overstay" during higher study in Canada. Therefore, it is idle to contend that the "Applicant denied the charge"
Annexure A72: A true copy of the representation dated February 10, 1987 submitted by the Applicant against the biased 'Inquiry Officer' together with a repeated request to change the biased 'Inquiry Officer' and conduct inquiry de novo.
Annexure A73: A true copy of the letter of 'Resignation' dated March 29, 1987 submitted by the Applicant to the 1st Respondent Annexure A74: A true copy of the Consolidated instructions on 'SUSPENSION' as per notification dated November 08, 2021 -Procedural timelines Annexure A75: A true copy of 'Flowchart' showing time schedule for 'Processing of DISCIPLINARY PROCEEDINGS UNDER CCS (CCA) Rules 1965 Annexure A76: A true copy of the DAE Order dated October 04, 1988 appointing a second Inquiring Authority Annexure A77: A true copy of the Office Memorandum dated 24 th February 2003 giving clarifications about the 'Sealed Cover Procedure' for promotion settled by the Supreme Court O.A No.141/2020 57 Annexure A78: A true copy of the representation dated March 29, 1987 made by the Applicant for a 'Change of Headquarters' during Suspension Annexure A79: A true copy of the Order dated May 06, 1987 issued by the 1 st Respondent Department rejecting the request for 'Change of Headquarters' Annexure A80: A true copy of the notification dated February 17, 1988 issued by the 2nd Respondent department rejecting the resignation letter submitted by the Applicant dated March 29,1987 Deliberate delay of nearly 11 months to respond Annexure A81 (Colly): A true copy of typical representations dated 21 st January 1985 and 29th May 1985 made by the Applicant seeking information regarding his service related matters and pleading for leave extension required for completion of study.
Annexure A82: A true copy of typical representation dated 17 th September 1990 made by the Applicant seeking information regarding his service related matters, including promotions etc., and conditions of service before returning to duty on revocation of the 27 months' suspension.
Annexure A83(Colly):True copies of requests dated November 10, 1999 sent by the Applicant to the Respondents for reinstatement with service benefits subsequent to the quashing of the order of Compulsory Retirement by the Hon'ble Tribunal,Ernakulam Bench in OA No. 1127/1996 Annexure A84: True copy of 'Representation' dated September 07, 2005 by the Applicant to the 2nd Respondent for reinstatement with service benefits subsequent to the judgment order of the Hon'ble High Court of Kerala dated August 10, 2005 Annexure A85: True copy of 'Representation' dated November 14, 2005 by the Applicant seeking specific order regarding reinstatement in service Annexure A86: True copy of 'Representation' dated March 13, 2006 by the Applicant seeking specific order regarding reinstatement in service and O.A No.141/2020 58 service conditions Annexure A87: A true copy of the Memorandum dated November 09, 1985 notifying the Applicant about the initiation of enquiry under Rule 14 of CCS(CCA) Rules 1965 Annexure A88: A true copy of OM.No. 13017/20/85- Estt. (4) Government of India, Department of Personnel & Training dated 18 th February, 1986Allowing the delegation of powers to the Leave Sanctioning Authority for grant of even EOL for prosecuting scientific higher study (up to 5years) Annexure A89: A true copy of the letter Ref: BARC/Accts./PF-1/3187 dated October 25, 1990 clearly indicating that the Applicant had been making requests for information regarding his salary and other accounts related matters Annexure A90: A true copy of the letter Ref BARC/Accnts./Sal. II/G-306- 127/1293 dated April 02, 1994, showing illegal recovery proceedings by BARC from salary account of the Applicant, in violation of the doctrine of "audi alteram partem".
Annexure A91: A true copy of Notification No. 38/37/2016-P&PW(A)(ii) dated 4th August 2016 on the "Implementation of recommendations of the Seventh CPC revision of Pension of pre-2016 pensioners/family pensioners showing that the revised Basic Pension fixed under 7th CPC will be calculated by multiplying the Basic Pension as revised in 6 th CPC by 2.57 Annexure A92: Office Memorandum No.38/64/98-P&PW(F), Government of India, Ministry of Personnel, PG & Pensions dated 1 st May, 2012, Rule 68 CCS(Pension) Rules stipulates payment penal interest at the rate of 12% per annum on the retirement benefits Annexure A93: A true copy of OM. No.38/37/08- P&PW (A) dated 6 th April 2016 shows that all pensioners governed by the CCS (Pension) Rules 1972, including those who were compulsorily retired, are entitled to the CPC revisions of Pension O.A No.141/2020 59 Annexure A94 A true copy of the judgment order in OA/180/00645/2017 in Venkitachalam vs. Union of India & Ors., on 21 March 2018 in which the Hon'ble CAT-Ernakulam Bench reaffirmed the settled law that, as per 6 th CPC no one shall draw a Basic Pension less than 50% of the minimum of the scale of pay of the post/Notional pay fixed at the time of retirement. Annexure A95 (Colly) A true copy of two notifications OM No. CPAO/IT&Tech/Misc. Corres/35(Vol-II/2020-21/206 Dated 14.03.2022 and O.M. No. 12(9)/2020 P&PW(C) 6450 dated 23.02.2022. Applicant is also entitled to receive Provisional Pension and Gratuity under Rule 62 of the CCS(Pension) Rules, 2021, in case of delay in issue of PPO authorizing for regular pension Annexure A96: A true copy of OM No.14028/1/2001- Estt(L) Govt. of India, Ministry of Personnel, Public Grievances & Pensions dated 13 th February, 2006 showing that the Applicant is entitled to receive full encashment of his leave Annexure A97(a): A true copy of the report which appeared in the newspaper on 23rd January 2022 which clearly shows a typical case in which notional promotion with consequential pensionary benefits had been given. Sri K. A. Abdul Rahman, a retired Forest Range Officer was promoted to Assistant Forest Conservator, that too, 16 years after retirement, by the order of the Hon'ble Supreme Court.
Annexure A97(b):A true copy of the report in the newspaper dated 11 th February 1999 showing that Commodore C. P. George was promoted to Rear Admiral, several years after he retired, by the directions of the Hon'ble High Court of Delhi.
************