JUDGMENT
A.V. Haridasan, Vice Chairman
1. In this application the applicant Sri George Philip, Scientific Officer (SC), Plasma Division of the Bhabha Atomic Research Centre (BARC for short) has challenged the order of the 1st respondent imposing on him the penalty of compulsory retirement from service with effect from the date of earlier order of removal from service dated 18th December, 1990.
2. Shorn of details which are not relevant, the material averments in the application can be stated as follows.
3. The applicant joined the Plasma Physics Section of BARC as a Scientific Officer (SC) on 1st August, 1974. The applicant in 1980-81 applied for a Commonwealth Scholarship for higher studies offered by the Ministry of Education and Culture, Government of India, through proper channel. Pursuant to the above application, the applicant was directed to appear for an interview before the selection committee on 2.2.81. He was selected by the interview board. Pursuant to the above selection, the applicant received an official notification dated 28.10.1981 from the Canadian Commonwealth Scholarship and Fellowship Committee offering him a Canadian Commonwealth Scholarship (Annexure-A3) and Annexure-A3(a). It was mentioned in the notification that the Award was tenable at the University of Alberta for “provisional Ph.D candidate in the Department of Physics.” It was also mentioned therein that the time required for completing the programme would be 3 to 4 years. The Ministry of Education and Culture, Department of Education, Government of India, vide its letter dated 18th November, 1981 (Annexure-A6) informed the applicant that he was selected for the award of scholarship for “Provisional Ph.D candidate in the Department of Physics tenable of the University of Alberta in period for three to four years from January, 1982.” In accordance with the stipulation in Annexure-A6 letter, the applicant together with his surety executed a bond (Annexure-A7) in favour of the Ministry of Education and Culture, Government of India, in which one of the condition was that in the event of the applicant returning to India without completing the course for which he had been selected, he would forthwith pay to the Government of India a sum of Rs. 10,000/-. It was clearly understood by the Government of India as also the second respondent that the applicant was being granted leave for the purpose of undertaking an educational programme for Ph.D which would take 3 to 4 years to complete. On the applicant executing a bond, the second respondent issued proceedings dated 4th February, 1982 ordering that the applicant would be granted extraordinary leave for 2 years to accept the Commonwealth Scholarship awarded by the Ministry of Education (Annexure-A8). The applicant was relieved by the Head, Plasma Physics Section BARC with effect from 23rd August, 1982 to take up the Commonwealth Scholarship. As the Ph.D programme was not over by 1984, long before the expiry of the extraordinary leave of the applicant, the Canadian Commonwealth Scholarship Association at the request of the applicant made repeated requests through the Ministry of Education (India) for extension of leave of the applicant to enable him to complete his studies. Even on 10.12.1984 the Canadian Commonwealth Scholarship Committee addressed the Ministry of Education and Social Welfare, Government of India, requesting that the applicant might be granted extension of leave to enable him to complete his studies. The applicant believed that the order of the competent authority extending the extraordinary leave would be issued in due course and therefore he felt that he need not return to India without completing the study programme of Ph.D in terms of the scholarship awarded to him and as has been understood by all concerned before he was relieved to take up the scholarship. The applicant himself sent a letter on 21st January, 1985 (Annexure – A12) to the Head of the Plasma Physics Division praying for extension of leave to enable him to complete his studies. The Ministry of Education, Government of India, had in its letter dated 1st March, 1985 (Annexure-A13) requested the Secretary (TC and TSC) to sympathetically consider the question of granting extension of leave to the applicant to enable him to complete his Ph.D programme. However the Department of Atomic Energy did not take a helpful attitude. The applicant was informed by letter dated 27th May, 1985 by the Ministry of Education of the decision not to extend the leave of the applicant and directing the applicant to return to India
under intimation to the Ministry. However, in a final attempt to get extension of leave for completion of his studies, the applicant sent a letter dated 2nd July, 1985 to the Head of the Personnel Division (Annexure-A14). However, the Secretary to Government of India, Department of Atomic Energy issued a Memorandum of Charges dated 9th November, 1985 (Annexure-A15) proposing to proceed against the applicant under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS (CCA) Rules for short) alleging that the applicant by overstaying the leave granted upto 23rd August, 1984 contravened the provisions of Sub-rule 1(iii) of Rule 3 of Central Civil Services (Conduct) Rules, 1964. The applicant submitted an explanation to the Memorandum of Charges, pleading that he was not guilty. However, he being constrained to abandon his studies, came back to India and joined duty in BARC with effect from 10th December, 1986. On the basis of the Memorandum of Charges an enquiry was held. The Enquiry Officer held the applicant guilty of the charge. The disciplinary authority vide its order dated 18th December 1990 (Annexure-A1) found the applicant guilty and imposed on him the penalty of removal from service with immediate effect. Aggrieved by the Annexure-A1 order the applicant filed O.A. No. 56/1992 before this Tribunal. This Tribunal disposed of the application by order dated 6th January, 1994 (copy — Annexure-A22). The Tribunal in its order confirmed the finding that the applicant was guilty, but set aside the penalty of removal from service by Annexure-A1 order as the penalty imposed was found to be unduly harsh and not commensurate with the gravity of the misconduct. The Tribunal however instead of substituting its punishment directed the applicant to move the competent authority under Rule 29A of the CCS (CCA) Rules within one month from the date of judgment and the competent authority to consider the quantum of punishment in the light of the principles enunciated by the Apex Court in the rulings referred to in paragraph 3 of the order. Though the respondents filed review application, the same was dismissed by the Tribunal. The applicant submitted his representation to the President on 22nd January, 1994. Though he awaited reinstatement and an order on the review, the respondents did not reinstate the applicant despite representations made by the applicant in that behalf. Ultimately the impugned order dated 31st March, 1996 (Annexure-A28) was issued by the first respondent imposing on the applicant the penalty of compulsory retirement with effect from the date of Annexure-A 1 order dated 18th December, 1990. Aggrieved by this order (Annexure-A28) the applicant has filed this application praying that the order Annexure-A28 inflicting on the applicant the penalty of compulsory retirement may be set aside and the letter dated 23rd May, 1996 treating certain period of absence as dies-non also may be set aside and the respondents may be directed to reinstate the applicant in service with effect from 18th December, 1990 with all consequential benefits.
4. The respondents have filed a detailed reply statement. It has been contended that while granting the extraordinary leave to the applicant, the applicant was informed that he should not register for Ph.D and that no request for extension of leave should be made, that the overstayal of the applicant without grant of leave being unauthorised, the penalty imposed on him was well commensurate with the gravity of the misconduct. The respondents contend that as the decision to impose the penalty of compulsory retirement was taken in consultation with the Union Public Service Commission, judicial intervention is not called for. Adverting to the contention of the applicant that retrospective retirement is not permitted by law, the respondents contend that the penalty of compulsory retirement was only a modification of the initial order imposing the penalty of removal from service and that there was no direction in the Tribunal’s order in O.A. 56/92 to reinstate the applicant in service. It is also contended that in view of the decision in O.A. 56/92 the application is barred by res judicata.
5. The applicant has filed a rejoinder reiterating the contentions raised in the Original Application and refuting the averments made in the reply statement.
6. We have perused the pleadings and the documents and have heard the learned counsel
appearing for the parties.
7. Sri George Varghese Kannanthanam, the learned counsel of the applicant, after taking us through the details as to how the applicant as also his employer understood the purpose and period for which the applicant was granted the leave, the request made by the Canadian Commonwealth Scholarship Committee to the Government of India for extension of the leave of the applicant to enable him to complete the Ph.D programme and the recommendation of the Government of India, Ministry of Education contained in its letter dated 1st March, 1985 addressed to the Secretary (TC and TSC), BARC (Annexure-A13) for favourable consideration of the request for extension of leave, in which it was stated that if the applicant was recalled before he completed the study programme it would amount to a wastage of time and energy of the scholar and also the huge amount that has been invested for his research programme, argued that the lapse on the part of the applicant to return to India abandoning his precious opportunity to take a Ph.D degree can only be treated as a minor lapse and that therefore the penalty of compulsory retirement is shockingly disproportionate to the proved misconduct. He further argued that the impugned order dated 31.3.96 (Annexure-A28) imposing on the applicant the penalty of compulsory retirement with effect from 18th December, 1990 is illegal and unsustainable because the order of removal from service dated 18th December, 1990 has already been set aside by this Tribunal in its order dated 6th January, 1994 in O.A. 56/1992. Learned counsel argued that once the order of removal was set aside by the Tribunal, the respondents should have reinstated the applicant in service forthwith and the competent authority in review should have awarded to the applicant a penalty which is commensurate with the minor lapse of the applicant. The learned counsel also argued that the order dated 23rd May, 1996 treating the period of absence as dies-non and of suspension as suspension only is also unsustainable.
8. Learned counsel of the respondents on the other hand argued that as the applicant has not returned to India on expiry of the leave sanctioned, the overstayal of the applicant without reporting for duty is a serious misconduct, for which the penalty of compulsory retirement imposed cannot be considered as shockingly disproportionate. Regarding the retrospective effect given to the compulsory retirement in the order at Annexure-A28, the learned counsel of the respondents argued that the penalty of compulsory retirement have been awarded in modification of the original order of removal from service dated 18th December, 1990, the argument that compulsory retirement was made with retrospective effect, has no force. Regarding the treatment of the period under suspension as suspension only and the period of absence which was not authorised as dies-non, the learned counsel of the respondents argued that the said period could not have been regularised in any other manner.
9. The plea of res judicata has only to be rejected as the order passed by the respondent pursuant to the order of the Tribunal is challenged in this Application. In the order of the Tribunal in O.A. 56/92, two points have been concluded. One that the applicant was guilty of the misconduct alleged and two that the penalty of removal from service was unduly harsh. However, the Tribunal did not wish to substitute its opinion regarding the quantum of punishment. As the respondents had pointed out that the applicant could avail of the remedy under Rule 29A of the CCS (CCA) Rules, the Tribunal while affirming the finding on facts, set aside the penalty of removal from service imposed vide order dated 18th December, 1990 and left the applicant to seek his remedy under Rule 29A of the CCS (CCA) Rules with a direction to the competent authority to consider the quantum of punishment in the light of the principles enunciated by the Apex Court in its judgment referred to in paragraph 3 of the order of the Tribunal. In paragraphs 4 and 5 of the judgment in O.A. 56/92 the Tribunal observed as follows:
“4. We are not unaware, that the facts of some of those cases are slightly different, but the principles laid down, is one of uniform application. The principle is that there should be proportionality between punishment and gravity of the wrong committed. There is no doubt that applicant is guilty of abandoning the post of duty. But there can be little doubt that he was caught in a mental conflict. On one side there was the prospect of career improvement by availing a Commonwealth Fellowship which does not come in the way of everyone. On the other side, there was an obligation to return to his post of duty on the expiry of leave. Applicant might not have weighed the consequences in golden scales.
5. It appears to us that having regard to the facts of the case, the punishment imposed is harsh. Annexure A6 shows that even the department considered that if the applicant obtained a doctoral degree, it would be of use to the Department.”
While considering the quantum of penalty, the first respondent does not seem to have cared to bear in mind the principle of proportionality of penalty enunciated in the various judgments of the Apex Court referred to in the judgment of the Tribunal in O.A. 56/92. The penalty of dismissal, removal or compulsory retirement from service is to be awarded if a grave misconduct is proved to have been committed. Can it be said that the applicant in this case was guilty of a grave misconduct? The sole charge against the applicant was that he overstayed the leave granted and the period of overstayal was unauthorised absence. The applicant was granted leave for two years to take up the Canadian Commonwealth Scholarship for provisional Ph.D candidate in the Department of Physics of the University of Alberta. In the document for award of scholarship (Annexure-A3), it was very clearly mentioned that the University estimated the period required to complete the programme as 3 to 4 years. From the letter dated 18th November, 1981 (Annexure A-6) of the Government of India, Ministry of Education and Culture addressed to the applicant requesting the applicant to let the Ministry know whether the offer of scholarship on conditions mentioned therein was acceptable to him, it was clearly stated that the scholarship was for a period of 2 academic years with the possibility of extending for a further period if the programme of study required it. In the bond executed by the applicant with a surety he had inter alia agreed to refund to the Government of India a sum of Rs. 10,000/- in the event of his returning to India without completing the programme. All these would go to show that the understanding was that the applicant would continue the study programme till its completion and the leave was granted to enable the applicant to undertake the study programme. Though the respondent had contended in the reply that before granting leave, the applicant had undertaken not to register for Ph.D and not to apply for extension of leave. In spite of several opportunities given to the respondents to produce the letter of undertaking, if any, the respondents failed to produce the same. The case of the respondent that the applicant had made such an undertaking has therefore to be rejected. Further the scholarship awarded was for doing Ph.D., it is idle to contend that the applicant was not to register for Ph.D. From Annexure-A13 letter written by the Assistant Educational Adviser to Government of India, Ministry of Education addressed to the Secretary (TC and TSC), BARC on 1st March, 1985 it has been stated that the Scholarship Committee had stated that to recall the applicant before completion of the study programme would not only mean wastage of time and energy of the scholar but also huge amount that had been invested for his research programme. The Ministry had also made a recommendation in its letter for considering the extension of leave sympathetically. It is also evident from the materials available on record that the scholarship committee had been requesting the Government of India, Ministry of Education and Culture to grant further leave to the applicant to enable him to complete the Ph.D. programme. It was under these circumstances that the applicant overstayed the leave. He could not be faulted very much for hoping that in the light of the request made by the scholarship committee and the recommendation of the Government of India, Ministry of Education, the competent authority would extend leave. Although technically the applicant’s omission to report for duty immediately on the expiry of the leave granted to him can be said to be a lapse amounting to overstayal of leave, we are of the considered view that this minor lapse on the part of the applicant cannot be considered to be graver than the lapse on the part of the authority concerned in recalling the applicant without allowing him to complete the scholarship programme which was understood by all concerned to last for a period of 3 to 4 years. As stated by the Scholarship Committee and appreciated by the Government of India, Ministry of Education in its letter Annexure-A13 recalling the applicant before he completed the scholarship programme resulted in a colossal waste of time and energy of the applicant and huge amount of money invested by the scholarship committee. The efforts of the applicant was to avoid the loss. We are of the considered view that for this reason, the applicant cannot be considered to be a person whose retention in service is undesirable in public interest. The penalty of compulsory retirement imposed on the applicant therefore is shockingly disproportionate to the misconduct which the applicant has been held to be guilty of. In Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454, the Hon’ble Supreme Court observed as follows:
“It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.”
The Apex Court has again in AIR 1987 SC 2386, Ranjit Thakur v. Union of India and Ors., observed as follows :
“Recontention (d): Judicial review generally speaking, is not directed against a decision, but is directed against the “decision making process.” The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive and unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174 (HL) Lord Deplock said:
“….. Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which
administrative action is subject to control by judicial review. The first ground I would call ‘illegality,’ the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community…”
Though the Apex Court was considering the proportionality of punishment imposed by Court Martial for offence proved, the principle of law enunciated has application to imposition of penalties for misconducts. In the light of the above principle of law laid down by the Apex Court that the penalty disproportionate to the misconduct offends Article 14 of the Constitution, we are of the considered view that the impugned order of compulsory retirement awarded to the applicant for his lapse which can be considered as a minor lapse in the backdrop in which the applicant failed to report for duty immediately on the expiry of the leave granted, is liable to be set aside.
10. As argued by the learned counsel of the applicant, there is an infirmity in the order of compulsory retirement with effect from the date of applicant’s removal from service by order No. 15/3/85 (Vig)/R/1502 dated 18th December, 1990 because by the order of the Tribunal in O.A. 56/92, the penalty of removal from service has already been set aside. Therefore after the order of the Tribunal in O.A. 56/92, the order of removal did not survive for modification. The Tribunal having set aside the order of removal from service, the respondents should have reinstated the applicant in service and considered the revision filed by him as directed by the Tribunal in its order in O.A. 56/92. That having been not done, we find that the period between the date of removal of the applicant from service and the date of reinstatement should be treated as duty for all purposes.
11. Now that the finding that the applicant is guilty of a lapse however minor stands and as the penalty of compulsory retirement is to be set aside, we have to consider as to whether any penalty is to be imposed on the applicant and if so, what. The Tribunal in its order in O.A. 56/92 while setting aside the penalty of removal from service as highly disproportionate, did not wish to substitute it by awarding any other penalty by itself. It was thus that the competent authority was directed to decide the quantum of penalty bearing in mind the principles of law laid down by the Apex Court in regard to proportionality of misconduct vis-a-vis penalty. The respondents have failed to consider the issue in the right perspective and that was why the impugned order of compulsory retirement was imposed on the applicant. We are of the considered view that in the nature of the lapse of the applicant and the background in which it had occurred, the maximum penalty that could be awarded to the applicant would be stoppage of increments for some period. However the period and number of increments to be stopped are again left to the discretion of the competent authority to decide. Regarding the challenge to Annexure-A29 order of treatment of the period of absence and suspension, a fresh order would have to be passed by the competent authority after passing a final order imposing on the applicant an appropriate penalty in the light of the observations supra.
12. In the result in the light of what is stated above, the impugned order Annexure-A28 imposing on the applicant the penalty of compulsory retirement from service with effect from the date of the original removal order No. 15/1/85(Vig)/R/1502 dated 18th December, 1990 and Annexure-A29 order are set aside. The respondents are directed to reinstate the applicant forthwith and to pay to him the full back wages for the period between the date of his removal from service and reinstatement, treating this period as duty for all purposes. The respondents may pass an appropriate order awarding to the applicant a penalty commensurate with the proved misconduct keeping in view the observations in this regard made supra and a further order regarding treatment of the period between 24.8.84 to 9.12.86, 2.1.87 to 30.3.89 and 31.3.89 to 2.1.91 depending on the penalty that would be imposed on the applicant. All the aforesaid directions shall be complied with within a period of three months from the date of receipt of a copy of this order. There is no order as to costs.