UNION OF INDIA Vs. LAKSHMAN DAS

JUDGEMENT

(1.) It may be observed here that Dr.Lakshman initially filed OA No.405/2000 contending that his date of promotion to Special Grade I should be antedated and reckoned from 04.02.1990. The said OA was disposed of with directions given to Union of India to consider the claim of Dr.Lakshman. The claim was rejected by Union of India vide OM dated 11.06.2002. Being aggrieved by the said OM Dr.Lakshman filed OA No.3337/2002 which was allowed by the Tribunal vide order dated 03.10.2003. It is against this order Union of India has field W.P.(C) No.12554/2004.

(2.) On the other hand Dr. Lakshman despite an order passed by the Tribunal dated 28.01.2002 in OA No.405/2000 has filed W.P.(C) No.1304/2003 with the following prayers:-

(3.) The common facts relevant for the purpose of deciding both these matters are, that Dr.Lakshman joined as Specialist Grade II in Non-Teaching Specialist Sub Cadre in Neurosurgery w.e.f. 04.02.1982. In 1989 Dr.Lakshman got a foreign assignment. On his request President of India conveyed sanction vide letter dated 07.06.1989 for his transfer on deputation to Saudi Arabia for a period of one year. Some of the terms and conditions of the said letter dated 07.06.1989 are reproduced hereunder: "No.A.35014/2/89-CHS.IV Government of India Ministry of Health & Family Welfare (Department of Health) New Delhi, dated 7th June 1989 To The Medical Superintendent, Safdarjang Hospital, New Delhi, Subject: Terms and conditions of foreign assignment abroad relating to Dr.Lakshman Das, Neuro- surgeon, Safdarjang Hospital, New Delhi. Sir, I am directed to convey the sanction of the President to the transfer on deputation of Dr.Lakshman Das, Neurosurgeon, Safdarjang Hospital, New Delhi on foreign service in Saudi Arabia for a period of one year on the following terms:- (i) During the period of his foreign service Dr. Lakshman Das will receive, from the Razayat Company Limited monthly salary at the rate of 12,000/- Saudi Riyals (S.R.). (ii) The Razayat Company Ltd. of Saudi Arabia will intimate to the Ministry of health & Family Welfare, Govt. of India whether during the period of his foreign service Dr.Lakshman Das will or will not be liable to income tax. National income tax, if levied will be paid by Dr. Das. He will also pay income tax if levied by the Govt. of India on his earnings in Saudi Arabia. (iii) He will be paid by the Razayat Company Limited in Saudi Arabia travelling allowances for his journey to take up the assignment and to return therefrom, as well as the journey if any, in connection with his work in Saudi Arabia. Travelling allowances (both ways for the family of the officer will also be paid by the Razayat Company Limited of Saudi Arabia. (iv) The joining time pay of Dr.Lakshman Das when proceeding on foreign service and on reversion therefrom shall be payable by the Razayat Company Ltd. of Saudi Arabia. (v) The leave of Dr.Lakshman Das during the period of foreign service shall be regulated under the rules of the foreign employer. The leave salary in respect of leave granted by the foreign employer will also be paid by him and the leave will not be debited against the Government servants leave account. The period of foreign service will not count towards leave under the Government of India. (vi) The Govt. of India will not be liable to pay leave emoluments in respect of any special disability leave granted to Dr Lakshman Das on account of any disability incurred in any through foreign service under Razayat Company Limited in Saudi Arabia even if such disability manifests itself after the termination of service under Razayat Company Limited in Saudi Arabia. (vii) The service of Dr.Lakshman Das in Razayat Company Limited in Saudi Arabia will be pensionable subject to payment of pension contribution by him at the prescribed rates. After completion of his resident service contract satisfactorily, Dr.Lakhsman Das will be eligible to receive gratuity as admissible according to the rules in Saudi Arabia. The gratuity will be paid in rupees in India on rejoining Govt. of India service after expiry of foreign service in Saudi Arabia and it will be credited to the G.P. Fund account of the officer and will form part of the accumulation to his G.P.Fund. (viii) Dr.Lakshman Das shall pay to the Govt. of India pension contribution in respect of service rendered by him in Saudi Arabia and pension contribution shall be @ ` 792/- per month. These rates are provisional and the final rates of pension contribution will be determined by the Pay & Accounts Officer (Sectt.), Ministry of Health and Family Welfare, New Delhi according to the length of service of this doctor. (ix) Dr.Lakshman Das shall pay to the Govt. of India in the currency in which the salary is paid to him, the pension contribution in respect of the service rendered by him in Saudi Arabia, as determined by the Pay Accounts Office concerned according to the orders in force from time to time on the basis of the length of service of the officer. (x) The amount of pension contributions are to be remitted to the Pay & Accounts officer (Sectt.), Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi within 15 days of the end of the month of drawing pay and credited under the following Head of Account "XLIV Central Receipts in aid of Superannuation Contributions for pension and gratuities". The pension contributions should be paid promptly subject to adjustments and alterations in accordance with final rates as may be necessary after intimation of final rates by the Accounts Officer. Penal interest would be levied if payments are delayed. (xi) The Razayat Company Limited in Saudi Arabia shall afford to Dr.Lakshman Das medical facilities as may be provided by the foreign employer. He will not be entitled to claim reimbursement of any medical expenses that might be incurred by him on his own treatment or the member of his family during the period of foreign service, from the Govt. of India. (xii) The period of deputation of Dr.Lakshman Das will commence form the date of relinquishing charge of his post in India and end on the date of resuming charge of the post under the Govt. of India. (xiii) Residential accommodation will be provided by the foreign employer on terms and conditions prescribed by them (xiv) During the period of foreign service Dr.Lakshman Das will continue to subscribed to the Provident Fund and Central Govt. Employees Insurance Scheme to which he is subscribing at the time of proceeding on foreign service, in accordance with the Rules and repay the outstanding loans, advances, if any, in the foreign currency in which the salary is paid to him. (xv) In order to facilitate timely remittance of pension contributions, G.P.F. contributions and contributions towards compulsory Group Insurance scheme, and repayment of outstanding loans, advances, etc., Dr.Lakshman Das before proceeding abroad shall made standing arrangements with his local bankers in India whereby the bankers would arrange to remit to the Pay & Accounts Officer (Sectt.), Minsitry of Health & FW, Nirman Bhavan, New Delhi payment out of ,,Non-resident" Bank Account operated for this purpose in rupees during the period of foreign service within Saudi Arabia. It would be the responsibility of Dr.Lakshman Das to ensure that remittance in foreign currency to cover these payments are arranged by him at least once a year and that he would produce the requisite certificate about the remittance in foreign exchange to cover these payments from the ,,Non- Resident account to the Pay & Accounts Office (Sectt.). The exchange rates applicable will be official accounting rate at the time of actual remittances in foreign exchange are arranged by Dr.Das. (xvi) Dr.Lakshman Das will not be allowed to enter into any contract for extension of his assignment in Saudi Arabia without prior permission of the Govt. of India. In case the Razayat Company Limited in Saudi Arabia require his services beyond the period of present contract of one year, he should intimate this fact to the Govt. of India (Ministry of External Affairs, Economic Division and Ministry of Health & Family Welfare, New Delhi) as soon as it comes to his notice and also request the foreign Govt. to take up the matter with the Indias representative in that country. In no case Dr. Das should stay in beyond the period of contract without prior permission of the Govt. of India. He will also not be allowed to resign during his stay abroad. (xvii) The Govt. of India will not be liable for any extraordinary pension under the ,,Extra-ordinary pension scheme. (xviii) If his deputation term is not extended it will be his responsibility to ensure that he returns to India immediately on expiry of his term. It should also be his personal responsibility to initiate correspondence with his parent department for his return at least six months prior to the expiry of deputation term. He should also ensure that any request from the Razayat Company Ltd. in Saudi Arabia for extension of his period of deputation beyond one year, should be forwarded by the concerned Indian Mission in Saudi Arabia at least six months before the expiry of the deputation period. (xix) Dr.Lakshman Das should note that if he fails to fulfil the above obligations on his part, his continued stay outside India after the expiry of sanctioned term, shall be regarded as a deliberate act for which he shall be personally held responsible and which may entail institution of disciplinary action against him. (xx) The date on which Dr.Lakshman Das is released may be intimated to the Ministry of External Affairs (Economic Division) Shastri Bhawan, New Delhi and the Indian Mission in the Country of Saudi Arabia and this Ministry. (xxi) Dr.Lakshman Das should register immediately with the Mission on arrival in the country of Saudi Arabia ad intimate his residential as well as official address in Saudi Arabia for future correspondence, if any. (xxii) It is, however, made clear that Dr.Lakshman Das should be relieved of his duty only after his passage is booked by the foreign company and necessary pre- departure formalities are completed. Yours faithfully, (P.K.Kapur) Under Secretary to GOI."