JUDGEMENT
-
(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.