ORDER
P.K. Sinha, J. (Vice Chairman)
1. A writ petition, (CWJC No. 11332 of 1996) was filed by the applicant against Kendriya Vidyalaya Sangathan (hereinafter referred to as ‘The Sangathan’) and others praying therein for issuance of appropriate writ directing the Sangathan and its officials to accept the joining of the applicant to the post of TGT (Mathematics) in which he was working. The matter remained pending before the Hon’ble Court but by order dated 08.05.2003, the Hon’ble Court transferred the petition to this Tribunal on the ground of jurisdiction, which is how this application has come-up before us for disposal.
2. The facts, in brief, as coming out of the application are that having been appointed as a Primary Teacher under the Sangathan at Barauni in due course the applicant was promoted as Trained Graduate Teacher (for short, TGT) (Mathematics) and worked satisfactorily throughout. Thereafter, the applicant applied for the post of Secondary Teacher in Zambia for which he was interviewed and was appointed as such on 06.06, 1989 whereafter he applied for leave of three years to the Commissioner of the Sangathan, which application was duly forwarded to him, but that remained pending till 1991. Thereafter, the Assistant Commissioner of the Sangathan under letter dated 10.1.1992 (sic) granted lien to the post of TGT for a period of two years only w.e.f. The date he was relieved from his school (Annexure-A/1). Thereafter, the applicant obtained passport and visa from the High Commission of the Government of Zambia and was relieved from his school on 5.12.1992. Rejoined his post in Zambia on 10.12.1992.
3. The lien to his original post was to expire on 05.12.1994, hence the applicant applied to the Permanent Secretary, Ministry of Education, Lusaka on 16.03.1994 for arranging his return (Annexure-A/3). In order to avoid any difficulty the applicant also filed an application dated 30.05.1994 to the concerned authority in the Sangathan, duly forwarded by the High Commission of India at Zambia, for considering request of the applicant for extending the lien whereafter the Assistant Commissioner (Personnel) intimated through the High Commission of India at Lusaka that the prayer for extension of lien was rejected, intimating that unless the applicant repatriated himself within time, his lien would stand terminated. The Ministry of Education at Lusaka under their letter dated 23.09.1994 had also requested to extend the contract of the applicant for further three years after the term there expired oh 10.12.1995 (Annexure-A/5),
4. The applicant also filed a representation to respondent No. 2 for extension of his leave till 30.06.1995 as otherwise he would lose his gratuity as also other benefits receivable from the Govt. of Zambia as it was necessary to complete 30 months’ service for getting such benefits. That also was forwarded by the High Commission to the respondent No. 2 (see Annexures-A/6 & A/6(1). By memo dated 29.11.1994 the applicant was informed through the High Commission’s official the order of the authority of the Sangathan that period of lien could not be extended, directing him to revert back to his service on expiry of the lien “failing which he will be deemed to have resigned from the post and service of KVS w.e.f. 05.12.1994”. This letter dated 29.11.1994 was received after expiry of the period of lien.
5. Further representation dated 10.04.1995 was also sent. Thereafter the applicant resigned from his post at Zambia and after getting clearance he left the country and reached Patna where he fell ill and, thereafter, went to his school for joining on 10.01.1996 along with medical report which joining report was not accepted by respondent No. 3. The applicant also represented before respondent No. 3 to condone over-stay of about one year and to be allowed to join, also intimating as to under what circumstances he could not leave the service at Zambia.
6. The respondents appeared and filed their counter affidavit before the High Court claiming that the lien was granted for two years which could not have been extended of which the applicant was duly informed but instead of joining the applicant had continued filing representations which were not allowed, including his representation for condoning one year of over-stay, in view of the fact that Article 65 of the Education Code for the Sangathan (hereinafter referred to as ‘the Code’, in short) provided for grant of lien only for two years. It was also submitted in the counter affidavit that the applicant had not applied for his assignment in Zambia through the Sangathan, nor the Sangathan had issued “No Objection Certificate”, but even then taking a lenient view two years lien was granted. It was also submitted that leave could not have been granted for taking an assignment in a foreign land and, in any case, not for three years. It has been claimed that the directions at Annexures-A/7 & A/8 and A/9 to the application were rightly issued by the Sangathan.
7. Rejoinder to the written statement was also filed mostly on the same lines.
8. This application was originally filed for directing the respondents to accept the joining report of the applicant which he had submitted after return from Zambia. Thereafter, a further development took place. While this application was pending, the applicant reached the age of superannuation and had he continued in the service, he would have finally superannuated in July 2002. In view of this development, the learned Counsel for the applicant moved this Court also to consider grant of pensionary benefits also which relief would be a natural corollary to the relief sought by the applicant in the application.
This argument has been countered by the learned Counsel for the respondents, Shri G.K. Agarwal on the ground that this relief was not sought and that the applicant, on reaching the age of superannuation had filed a separate O.A but Shri Agarwal also admitted that the aforesaid application was dismissed for non prosecution as the applicant did not pursue the same. Therefore, just filing of an application which was not decided on merit but was dismissed for non prosecution evidently would not bar any subsequent prayer for the same because of the doctrine of resjudicata. In so far as the other argument of Shri Agarwal is concerned, we would come to that later.
9. Mr. Vinod Kanth, learned Senior Advocate and Mr. G.K. Agarwal, learned ASC appearing for the respondents respectively have made out following arguments:
(i) Whether or not the applicant had filed his application for service in Zambia through the Sangathan is now immaterial since after his appointment there he was granted lien by the Sangathan.
There is no difficulty in accepting this argument.
(ii) Shri Kanth also argued that what the applicant had asked for was grant of leave and since under Rule 49(d) of the Code, the leave would be admissible to the employees of the Sangathan in accordance with the provisions of the Central Civil Services (Leave) Rules, 1972 hence under the provisions of 1972 Rules (in short), leave could have been granted by the Sangathan as was demanded by the applicant. It was pointed out that even in Annexure-6/1 a representation was sent from Zambia dated 22.11.1994 after the prayer for lien was rejected in which, the subject of the letter stated – “Extension of Leave ….
To this, the learned Counsel for the respondents submitted that in some other representations he had prayed for extention of lien and the main application also revolves round the grant of two years of lien.
10. Mr. Kanth replied to that submitting that since lien was granted, though leave was prayed for, the prayer for leave having been finally denied, the applicant had to refer to the grant of lien while making his submissions in the O.A. and elsewhere, but the position remained that the original prayer was for grant of leave and by Annexure-6/1 and, subsequently, extension of leave was sought.
11. Mr. Kanth also pointed out that under Rule 80 of the Code all the employees of the Sangathan, including the employees of the KVS, were madef (sic) subject to the disciplinary control of the Sangathan and it was provided CCS (CCA) Rules, 1965, (referred to as the CCS Rules) as amended from time to time, would apply mutatis mutandis to all the members of the staff of the Sangathan. It was argued that the order that if the applicant did not join by a certain date, with effect from the next date he would be deemed to have resigned from service, was arbitrary, unwarranted and against the provisions of the CCS Rules as the services of a permanent employee could not have been terminated in that manner, even if he had over-stayed the period of leave/lien, without a departmental inquiry as the allegation of over staying leave/lien would be deemed to be an act of misconduct or at least, such bald termination would be against the canons of Natural Justice.
12. In reply, Shri Agarwal placed before us a circular letter issued by the authorities of the Sangathan bearing No. FA-1/71/KVS(SS) dated 8.6.1972 through which it was communicated that a permanent employee of the Sangathan selected for appointment in Govt. or State Govt. Institutions, Public Sector Undertakings/Autonomous Bodies/Semi Govt. Organisations, etc. on the basis of their applications duly forwarded by the Sangathan, should be allowed to retain lien on their permanent post for a period of two years or till they were permanently absorbed in the Undertakings, etc. whichever was earlier and also provided that if such employees were not permanently absorbed within two years, on expiry of that period of two years he should either resign from Sangathan Service or revert to the Sangathan. It also provided that “If the employee concerned does not revert to the Sangathan within a period of two years, he will be deemed to have resigned from the Sangathan and sever all connections with it”. It was argued that in view of this circular letter the applicant was rightly deemed to have resigned from his post.
13. Mr. Kanth also submitted that even by the time the applicant was deemed to have resigned, the applicant had completed about 20 years of service and had qualified for pension which also was denied to him.
Shri Agarwal, in reply to that submitted that it was not a case of termination of service by the respondents, but a case in which the applicant was deemed to have resigned from his post and in such circumstances under Rule 26 of the CCS (Pension) Rules, a resignation by the employee could entail forfeiture of past services. We will no w examine these contentions of the contending parties.
There could have been only two circumstances under which the applicant on return from Zambia could have been refused permission to join his service, firstly, that vide communication at Annexure-A/7 and A/8, he was deemed to have resigned on his non joining the duties w.e.f. 5.12.1994 and, secondly, the authorities might have treated the case of the applicant as of expiry of the lien to his permanent post which was granted only for two years, under the rules.
Let us first consider the case if the applicant was deemed to have resigned from the post w.e.f. 5.12.1994 on account of his non joining the post by then, as he was intimated by Annexure-A/7 and A/8,
14. Resignation is voluntary relinquishment of employment and, to be effective, the offer to resign requires acceptance by the employer. In other words, to be effective, a resignation must be offered voluntarily, and any amount of coercion or use of force in that regard would amount to termination [See Jainath Mandal v. State of Haryana 1993(52) Service Law Reporter 618, by the High Court of Punjab and Haryana].
15. Now, it may also be seen as to what was the basis of intimating the applicant that if he did not join by the given date he would be deemed to have resigned
16. Sangathan is an autonomous body and is guided by the rules made thereunder, i.e. the ‘Code’. This Tribunal has a copy of the Code corrected up to December, 1980 in revised edition. Under Article 49(f), a permanent employee of the Sangathan who is selected for appointment in Central Govt. or State Govt. Institutions, Public Sector Undertakings/ Autonomous Bodics/Semi-Govt. Organisations etc. would be permitted to retain lien for two years or till he is permanently absorbed in the Department/Undertaking whichever is earlier, subject to specified conditions. The rules of the Code do not say as to what would happen if a person, for some reasons, remains absent beyond two years aforesaid or beyond that period he continues in a foreign service, may be on deputation. However, the Code no where provides that after this period of two years, an employee of the Sangathan would be deemed to have resigned from service. But, the learned Counsel for the respondents placed before us a circular letter dated 8.6.1972 [F-No. 4-1/71-KVS (SS)] which relates to the retention of lien as already discussed in paragraph 12 of this order. As already seen if the person concerned does not revert to the Sangathan within the period of two years, he will be deemed to have resigned from the Sangathan and severe all connections with it. Obviously, such a condition would amount to termination of service of such an employee, the deemed resignation being coercive in nature and not voluntary. If an employee wants to serve and to remain in service he cannot be said to have resigned from the service as he has right to so remain in service till his services are terminated under due process of law. The Code also does not provide is to whether after loss of lien the employee could or could not be allowed to rejoin.
17. Therefore, if it is treated that the applicant was deemed to have resigned, this resignation not having been voluntary rather forced one by the employer, would amount to termination from service. If a permanent employee is to be terminated from service, this cannot be done without giving him an opportunity to defend himself, i.e., without conducting departmental inquiry against him. That obviously has not been done in this case, which should have been done under the CCA Rules.
18. Now coming to the point of loss of lien, under the service laws, lien connotes a right of the public servant to hold the post substantively which he is appointed. However, the existence of such lien and the incidents thereof would be dependent upon the Service Rules (including the terms and conditions) under when the public servent is governed.
19. The expression ‘lien’ originally mean ‘binding’ derived from the latin word “Legamen” and its lexical meaning is “right to retain”. Rule 13 of the Fundamental Rules provides that a Govt. servant who has acquired lien on a post, retains the lien on that post under the circumstances given therein. This is subject to the condition that the lien shall not be retained when a Govt. servant has joined, on immediate absorption basis, a post or service outside his service/cadre/post in the Govt. from the date of absorption, and when in a Govt. service/deputation, beyond the maximum limit admissible under the orders of the Govt. issued from time to time. Under Fundamental Rule 17(a), period of unauthorized absence shall be deemed to cause an interruption or break in the services of the employee. However, it has not been provided under the Code as to whether the provisions of Fundamental Rules would be applicable to an employee of the Sangathan. But the general law is that when the lien to a permanent post is lost that would amount to break in service. Similarly, break in service is caused if an employee over stays his leave or remains on unauthorized leave. But even if loss of lien is to invite a situation such as break in service which is penal in nature, that also cannot be automatic and cannot be enforced before giving the concerned employee at least a show-cause notice so as to enable him to satisfy the employer as to why the alleged action should not be visited with a penal action. If this is not done, then the rule of natural justice is breached. Admitted position in law in that an action cannot be sustained which in violation of the rules of natural justice.
20. In the case of Dr. Ali Hussain v. State of Madhya Pradesh 1984(1) SLR 162 : 1983(2) SLJ 619 (MPHC), the Madhya Pradesh High Court has held, after discussing the relevant rules, that a disciplinary action could be taken only after following the proper procedure. In the case of Bhim Singh v. State of Haryana 1991 (1) SLR 528, the High Court of Punjab and Haryana has held, in the case of break in service, besides dealing with the case of double jeopardy, as follows:
Even if the period of during which the plaintiff had remained absent from duty had to be treated as break in service, this could be done after giving an opportunity of hearing to the plaintiff.
Hon’ble High Court also held that the order was passed in violation of the principles of natural justice. It was further reiterated that the settled position in law was that an order passed in violation of principles of natural justice was a void order. As is position in this case, (sic) in that case also pension was denied. About that it was observed that the superannuation pension was not a bounty and was not given as a matter of grace rather it was a right to property and a Govt, employee could not be deprived of that right….
21. Similar question of break in service on account of unauthorized leave came up for consideration of Kolkata High Court in the case of Sukumar v. West Bengal 1977(1) SLR 775. It was also held therein that unauthorized leave of absence by a Govt. employee might be an act of indiscipline but in the absence of specific in clear rules, without proper disciplinary proceedings and holding an inquiry, the consequences of break in service could not be imposed.
22. Decision on the same line may be seen in the case of Jaishankar v. State of Rajasthan AIR 1966 SC 392, which related to the service regulation about automatic termination of service, in which Their Lordships held that removal from service without giving an opportunity to show-cause was illegal. In this regard the decision in the case of Anoop v. Govt. of India , may also be seen.
23. The learned Counsel for the applicant had argued that when the CCS (Leave) Rules, 1972 were applicable to an employee of the Sangathan an unauthorized absence could have been regularised even by grant of extraordinary leave for which grant there was no restriction of specific period in the aforesaid Rules for permanent employees. It was also submitted that the Code providing no procedure after the expiry of the period of lien, grant of leave to the applicant should have been considered. At least such an action of the applicant could not have been visited by penal consequences without complying with the rules of natural justice.
24. It may be argued, though not argued, here that these decisions relate to over staying leave or remaining absent unathorizedly which are to be treated as misconduct and a permanent employee in such a case, could be punished only after a departmental inquiry, but the loss of lien as the respondents claim, will not come in the category of misconduct, hence no departmental inquiry was required under the CCS Rules.
25. Similar matter had come up before the Apex Court in the case of Hindustan Paper Corporation v. Purnendu Chakrobary 1997 SCC (L&S) 244. Taking into consideration the provisions under Hindustan Paper Corporation, Conduct, Discipline & Appeal Rules Their Lordships held that the order relating to loss of lien to the employee was subject to the compliance of the principles of natural justice, though it could not be said that the rules was arbitrary or ultra vires Article 14 of the Constitution of India. It was held that before taking action under the said clause, an opportunity should have been given to the employees to show-cause against the action proposed and if the cause shown by the employee was good and acceptable, it followed that no action in terms of the said clause would be taken. In such a case, requirement of complying with the principles of natural justice before terminating the lien would be, it was observed, satisfied by calling for an explanation from the employee concerned, without holding of a full fledged inquiry which was not necessary as loss of lien under the said rule did not amount to a penalty. In such circumstances, since rules of natural justice were not adhered to, their (sic) directed to treat that case to be of compulsory retirement and directed to give to the employee the pensionary and terminal benefits.
26. In that case, the first respondent, who was wanted in relation to a criminal case, firstly had gone on leave, and then he applied for extension of leave without ascertaining as to whether previous applications were allowed whereafter, by the impugned order, he was called upon to submit his explanation as his leave on medical grounds was not sanctioned and, thus, he was liable to be treated as an unauthorized absentee. The facts in this case are on a far better footing. The applicant had gone to Zambia for service for a particular period but was granted lien only for two years whereafter he prayed for extension of leave/lien which was not allowed, rather Annexure-A/7 and A/8 were issued, and then Annexure-A/ 9 was issued intimating him that since he did not report to his duty, his lien stood terminated w.e.f. 5.12.1994, though the applicant also appears to have explained the circumstances under which he could not come to join his duties earlier.
27. Vide Annexure-A/9, his lien was terminated bringing with it penal consequences without issuing a show-cause to him as to why his lien should not be terminated which was a must in order to adhere to the principles of natural justice.
28. Not having done that on this count also, the action of the respondents in terminating the lien cannot be sustained. A question now would arise as to what relief under the circumstances can be granted to the applicant. As already noticed, the argument advanced on behalf of the respondents was that the applicant not having pleaded for pension and terminal benefits, those could not be allowed to him.
29. This Administrative Tribunal is governed under the provisions of Administrative Tribunals Act, 1985 and Rules made thereunder. Section 22 of the Administrative Tribunals Act provides that the Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Govt…. Therefore, the prime consideration of the Tribunal is to provide justice to the parties who are before the Tribunal in a given case, also by granting relief if it is deserved. .
30. This application was filed before the High Court when the applicant was in service. During the pendency of this case, which took almost 9 years, the applicant reached the age of superannuation in the meantime. Now so far as his prayer for being allowed to join the Vidyalaya is concerned, that has lost meaning. But had his prayer been allowed, if this case was disposed of during the period of his service, he would have joined there and superannuated with all consequential benefits. Therefore, if the prayer of the applicant for grant of benefits, which he would have received automatically had this application succeeded during his service period, should be considered in the interest of justice.
31. Had this application been allowed during the service period, he would have joined and would have been getting his regular remuneration. But so far as the back wages are concerned, in the circumstances and particularly when it has not been brought on the record if during this period, at least till the date of superannuation, the applicant had or had not been gainfully employed elsewhere, we are not inclined to grant back wages. However, since even before his proceeding to Zambia, he had worked in the Sangathan for more that the period required to make him eligible for pension and other retiral benefits, which has not been disputed by the other side, that benefit in full should be allowed to him in view of the conclusions arrived at by us in preceding paragraphs.
32. In the result, this application is allowed and, so far the order of the respondents terminating his lien w.e.f. 5.12.1994 as communicated through Annexure-A/9 is concerned, that order is set aside. The respondents are directed to treat the applicant to be notionally in service till the date of his retirement and to calculate his pension on that basis. This should be done within three months of this order whereafter, within two months, the arrears of pension so calculated would be paid to him and the applicant would be continued to be paid his pension regularly therefrom. If this is not done within the period as stipulated, the arrears as well as the pension would be payable to the applicant with interest @ 9 per cent per annum, simple, to be counted from the date of the expiry of the stipulated period, till the payments are made.
33. This application is disposed of accordingly. No cost.