STATE OF M.P. Vs. A.K. BATRA

JUDGEMENT

(1.) By this writ petition filed under Articles226and227 of the Constitution of India, the State of M.P. has challenged the pregnability of the order dated 11 -6 -1998 passed by the Administrative Tribunal, Bhopal (for brevity 'the Tribunal'). The respondent herein was the applicant before the Tribunal. He filed an Original Application (O.A. No. 174/94) seeking the following reliefs:

(2.) THIS Hon'ble Tribunal may be pleased to declare that on 28 -2 -1994 this applicant had retired voluntarily under Rule 42 of the M.P. Civil Service (Pension) Rules 1976, after having completing more than 20 years of qualifying service; to be exact from 8 -9 -1967 to 28 -2 -1994. This applicant had served the Government of M.P. continuously from 8 -9 -1967 to 20 -4 -1978 and thereafter went on deputation to Algeria from where he returned on 18 -11 -1986 and for no fault of his, he was not allowed to resume his duties. The period from 18 -11 -1986 to 28 -2 -1994 may be ordered to be counted towards qualifying service because the applicant did not abstain from duty and was always willing to serve at any place. The respondents having failed to issue the posting order, are themselves responsible for all the consequences arising out of inaction on their part. The respondents may be directed to get the pension papers of this applicant prepared expeditiously and pending their finalisation sanction amount of anticipatory pension and gratuity in accordance with the provisions of the M.P. Civil Service (Pension) Rules. The respondents may be directed to sanction final withdrawal of the amount remaining at the credit of this applicant in his GPF account, and also release the amount deposited by him in the Family Benefit Fund. In the alternative respondent No. 1 if he is unwilling to accept the notice of voluntary retirement Annexure A -2, submitted by this applicant in service after regularising the period commencing from 18 -11 -1986, the day on which his joining report. This Hon'ble Tribunal may be pleased to grant any other relief which may be deemed appropriate in the circumstances of the case. This Hon'ble Tribunal may be pleased to award suitable costs including counsel's fee to this applicant. The case of the respondent as put forth by him before the Tribunal was that he started his service as an Assistant Surgeon on 8 -9 -1967 on temporary basis, which was subsequently regularised after his selection by the M.P. Public Service Commission. Thereafter, he obtained the post graduate diploma in Radiology in April, 1976 and was posted as Assistant Surgeon in J.P. Hospital, Bhopal where he worked upto 20 -4 -1978. The respondent was selected for Foreign assignment under the Government of Algeria where he served upto October, 1986. On his return from deputation the respondent submitted his joining report to the Director of Medical Services on 18 -11 -1986 and copy of the same was also endorsed to the Secretary, Public Health and Family Welfare Department, but he was not allowed to take over the charge nor was given any posting order. The respondent thereafter sent reminder on 11 -12 -1986 to the Secretary Public Health and Family Welfare Department, but no importance was given to it as a result of which the respondent sent a notice under section 80, Civil Procedure Code on 15 -5 -1987 by registered post to the Secretary and the Director of Medical Services. The respondent, however, received a written endorsement/communication from the Chief Medical Health Officer, J.P. Hospital, Bhopal. From this communication, it appears that the matter was under consideration. When nothing found favourable, the respondent met the Director of Medical Services, Secretary, Public Health and Family Welfare Department and Joint Director of Medical Services and Deputy Secretary, Public Health and Family Welfare Department for a number of times with a prayer for early orders on joining report. But the personal efforts of the respondent failed as a result of which he sent another reminder on 14 -11 -1992 by registered post as well as a notice through his counsel on 31 -2 -1993, but no action was taken and the respondent remained without a posting since 18 -11 -1986. As the respondent did not receive any response and favourable result got disgusted and eventually he sought voluntary retirement under Rule 42 of the M.P. Civil Service (Pension) Rules, 1976 (hereinafter referred to as 'the Rules of 1976') and accordingly he sent notice by registered post to the Director and the Secretary seeking voluntary retirement w.e.f. 28 -2 -1994. The Secretary Public Health and Family Welfare Department did not send any reply. In this factual background, it was taken by the respondent that his voluntary retirement has been accepted. The respondent thereafter requested the authorities to prepare and finalise his pension papers and also to sanction final withdrawal of the GPF amount. The respondent therefore sent a registered notice to the Accountant General of M.P. Gwalior and a copy thereof was sent to the petitioner. According to the respondent he was entitled for all the pensionary benefits including the amount of gratuity, GPF and Family Benefit Fund. In the return filed, before the Tribunal, the petitioner pleaded that respondent was not entitled for the relief he has claimed in his application. According to the petitioner the respondent was permitted to go on deputation to Algeria for two years and was granted extension for one year more. It has further been pleaded that extension was not allowed by the Department on 23 -2 -1980. In spite of this the respondent did not return from Algeria to join his duties and subsequently, when he came back and appeared before the Department and requested for the post, the Department took a lenient view and posted the respondent in the Government Hospital, Seoni. Since this date 17 -6 -1980, the respondent did not return to India and did not join his posting at Seoni and unauthorisedly remained in Algeria for about six years without previous approval and sanction of the department which amounted to misconduct. The respondent submitted joining report in the year 1986 after having remained absent for considerable length of time. As per the petitioner, the respondent was appointed in the year 1967 and prior to the joining at Algeria in the year 1978 he completed hardly 11 years of his service and therefore he was not entitled to take advantage of Rule 42 of the pension Rules, 1976 nor is he entitled for the pensionary benefits as he has not 20 years of qualified service. As per the return, the application of respondent for voluntary retirement was rejected vide order dated 1 -7 -1997 which was annexed as Annexure R -l before the Tribunal. The tribunal after considering the pleadings of the parties and the other material placed on record in para 15 passed the following order: (i) the applicant be permitted to join his duties as per his joining report Annexure A -9 dated 18 -11 -1986 by passing necessary order of posting. (ii) the respondents shall pass necessary orders for regularisation for the period he remained absent from India after the expiry of three years of the period of deputation to Algeria till 18 -11 -1986 when the applicant submitted his joining report, permitting the applicant to avail the leave if due during the said period in accordance with the rules. (iii) After permitting the applicant to join his duties as per joining report dated 18 -11 -1986 and regularisation of the period, the applicant remained absent from duty, the respondents are directed to pass necessary orders for voluntary retirement, as sought by the applicant by his notice Annexure A -2 dated 22 -11 -1993 w.e.f. 28 -2 -1994 and accordingly the respondents are further directed to give all the pensionary benefits to the applicant including sanction for final withdrawal of the GPF amount payable to the applicant as well as release of family benefit fund. However, it is made clear that the applicant will not be entitled to get pay for the period he has not served on the principle of 'no work no pay' as the applicant is completely responsible for the delay in moving this petition. A bare perusal of the order of the Tribunal, it would indicate that while allowing the reliefs to the respondent, the Tribunal did not allow the back wages for the period as he had not served, on the principle of "No Work No Pay" because the respondent himself was responsible as he filed the petition before the Tribunal after long delay. Be it noted that the respondent has not assailed the order disallowing the wages in this Court. However, the State of M.P. has challenged the validity of the order passed by the Tribunal. We have heard Shri Hemant Shrivastava, learned Government Advocate for the petitioner. Nobody has apprised us on behalf of the respondent. Having heard the learned counsel for the petitioner, we are of the view that the petition deserves to be dismissed. Admittedly no enquiry was initiated by the respondent for unauthorised absence of six years and the termination order has not yet been issued. In the absence of any order of the dismissal an employee had all right to join his services before he reaches the age of superannuation. That apart, no order of suspension was ever issued. The averment of the respondent has not been challenged by the petitioner that after submitting his joining report on 18 -11 -1986, he sent several reminders but the authorities did not pay any heed to pass any order in that regard. The Chief Medical and Health Officer, J.P. Hospital, Bhopal forwarded a memo dated 10 -4 -1987 to the respondent which was sent by the Joint Director of Medical Services to the Secretary, Public Health and Family Welfare Department, Bhopal. The tribunal in its order considered the said document and held that, in para 4 of the said document, there is mention of order dated 17 -6 -1980 issued to the respondent regarding posting him at the Government Hospital, Seoni in anticipation of his return from deputation. Needless to say that on 17 -6 -1980 the extended deputation period of the respondent did not come to an end and was not terminated. The said period was to be terminated on 1 -2 -1981. The Tribunal has given a finding that the copy of the said memo dated 17 -6 -1980 has not been filed and it is not established that the said memo was ever served on the respondent. It is not the case of the petitioner that after submitting the joining report, the respondent was directed to report his joining in the Government Hospital, Seoni.

(3.) The respondent was repeatedly requesting the authorities to issue posting order as it has been held by the Tribunal in para 10 while discussing the Annexure A -14 dated 14 -11 -1992 brought before it. On considering the entire gamut of facts we find that after the Original Application was filed by the respondent the authorities rejected his application for voluntary retirement vide its order dated 1 -7 -1997. The Tribunal rightly held that the said action of the authorities was not in accordance with the law for the simple reason that as per section 19(4) of the Administrative Tribunals Act, 1985 when proceeding on the relevant Services Rule for the redressal of grievance in relation to the subject matter of the application pending immediately before such admission would remain abated and, therefore, the said order was rightly ignored by the Tribunal. We have bestowed our anxious consideration to the reasonings ascribed by the Tribunal while arriving at the conclusions and allowing the reliefs to the respondents. After scanning these reasonings we find that the Tribunal has not erred in arriving at these findings. Thus, we hereby, give our stamp of approval to the same. In the result, the petition is devoid of any force. The same is hereby dismissed. There shall be no order as to costs.