- (1.) Leave granted.
(2.) This appeal, by special leave, has been preferred against the judgment and order dated 10.8.2005 of High Court of Kerala, by which the writ petition filed by the appellants challenging the order dated 17.9.1999 of the Central Administrative Tribunal, Ernakulam Bench, was disposed of with a direction that if Shri George Philip, respondent in the present appeal, reports for duty within a period of six months, he shall be reinstated in service but will not be entitled to any back wages and thereby order of the Tribunal which had awarded full back wages was modified.
(3.) Before dealing with the issue raised, it is necessary to mention the essential facts. The respondent herein, Shri George Philip, was working as Scientific Officer in Plasma Physics Division, Bhabha Atomic Research Centre, Trombay, Mumbai (for short 'BARC'). He applied for and was granted Commonwealth Scholarship by the Ministry of Education for advance research training in Plasma Physics. He moved an application in the prescribed proforma seeking permission of the Central Government for being given leave for two years for the said purpose. The application form contained several columns and in the column "duration and purpose of visit" it was mentioned "about two years for advance research training in Plasma Physics" and again in the column meant for aims and objects, the same thing was repeated viz. "advance research training in Plasma Physics". The department of Atomic Energy, Government of India, vide order dated 8.2.1982 granted permission to the respondent to accept the Commonwealth Scholarship for a period of two years and he was granted extraordinary leave for the said period, subject to the conditions laid down in the Ministry of Finance O.M. No.11(1)- E(B)/67 dated June 25, 1970. The order has some bearing and, therefore, it is being reproduced below :- "Government of India Department of Atomic Energy C.S.M. Marg Bombay -400 039 Sub : Commonwealth Scholarship offered by the Govt. of Canada - Shri George Philips SO(C), Plasma Physics Section. Reference is invited to BARC ID Note No.9/20/TSC/80/4922 dated 7.12.1981 on the above subject. The proposal to permit Shri George Philips, SO(SC), BARC to accept the Commonwealth Scholarship awarded by the Ministry of Education for a period of 2 years is approved in the Department. He will be granted extraordinary leave for the said period subject to the conditions laid down in the Ministry of Finance O.M. No.11(1)-E(B)/67 dated June 25, 1970 as amended from time to time. Sd/- ( P.B. Desai ) Director Secretary, TC & TSC, BARC, Bombay 400 085 DAE ID No.36/1/81-BARC Vol. II dated February 4, 1982 ... Government of India Bhabha Atomic Research Centre TC & TSC Ref: 9/20/TSC/80/540 8 February 1982 Copy forwarded to : 1. Head, Plasma Physics Section Leave order granting EOL for two years may be issued under intimation to this section subject to the condition that Shri 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 Shri George Philips and forwarded to this section for record. A service bond for Rs.10,000/- in the enclosed form may also please be obtained in triplicate and forwarded to this section. 2. ........................... 3. ........................... 4. ........................... 5. Shri George Philips, SO (SC) Plasma Physics Section. Sd/- 8.2.82 (G. Sethuraman) Secretary, TC & TSC" In accordance with the order issued by the Government of India, the respondent gave an undertaking on 9.2.1982, which reads as under :- "UNDERTAKING Consequent to the acceptance of the scholarship awarded by the Ministry of Education (Department of Education) for training in Canada and the grant of extra ordinary leave for a period of two years, this undertaking is given that I am not registering for a Ph.D. degree and will not request extension beyond the leave granted during the training abroad. Signature Sd/- Name : George Philip Designation : SO(SC) Comp. Code : G602/114 Dated : 9.2.82 Trombay, Bombay." Thereafter, the respondent proceeded on leave with effect from 24.8.1982 and the leave was to expire on 23.8.1984. The Bhabha Atomic Research Centre of Government of India issued a leave order on 6.9.1982, which specifically mentioned that the grant of leave to the respondent is subject to the conditions laid down in the Ministry of Finance O.M. No.11(1)-E(B)/67 dated June 25, 1970 as amended from time to time and as approved by Department of Atomic Energy vide its ID No. 36/1/81-BARC Vol. II dated February 4, 1982. The period of leave of two years from 24.8.1982 to 23.8.1984 was to be treated as extraordinary leave. It was further mentioned that but for proceeding on leave Shri George Philip would have continued to officiate on the said post and that the period of leave will count for increment. The respondent, however, did not return to India and did not report for duty after expiry of leave on 23.8.1984. He applied for extension of leave which was refused and he continued to overstay the leave. The department sent him as many as 8 notices and telegrams wherein it was clearly mentioned that his request for extension of leave had been refused and he should immediately report back for duty. After more than two years of expiry of leave, he came back to India and reported for duty on 10.12.1986. He was placed under suspension pending enquiry by the order dated 2.1.1987. An enquiry was accordingly held under Rule 14 of the Central Civil Services (Classification and Control of Appeal) Rules, 1965 (for short 'CCS(CCA) Rules') on the ground that by overstaying the leave w.e.f. 24.8.1984 onwards, the respondent is acting in a manner unbecoming of a government servant and had thereby contravened the provisions of Sub-rule (1)(iii) of Rule 3 of Central Civil Services (Conduct) Rules, 1964. Shri George Philip submitted his written statement of defence wherein it was mentioned that he had enrolled himself for a Ph.D. degree in the University of Alberta and as he had not been able to complete his work for award of the degree, he had not returned to India and had not joined duty. In the departmental enquiry copies of all the documents were supplied to the respondent and he was afforded opportunity to cross-examine the witnesses examined on behalf of the department. After a detailed consideration of the material on record, the enquiry officer gave his findings on 15.11.1989 to the effect that the respondent had overstayed the leave granted to him and the charge was fully established. The Secretary, Government of India, exercising powers under Rule 15(4) of CCS(CCA) Rules, after taking into consideration the representation made by the respondent and after consultation with Union Public Service Commission, imposed a penalty of removal from service with immediate effect upon the respondent by order dated 18.12.1990.;