Employees State Insurance ... vs Dr. Mohan Kumar
2009 Latest Caselaw 2065 Del

                             UNREPORTABLE

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P.(C) No. 9125 of 2007

                                                 Reserved on: April 20, 2009.
%                                               Pronounced on : May 15, 2009

Employees State Insurance Corporation & Ors.                   . . . Petitioners
                                    through :   Ms. Jyoti Singh, Advocate.

                              VERSUS
Dr. Mohan Kumar                                               . . . Respondent
                                    through:    Ms. Rashmi Chopra, Advocate.

CORAM :-
   THE HON'BLE MR. JUSTICE A.K. SIKRI
   THE HON'BLE MR. JUSTICE SURESH KAIT

       1.     Whether Reporters of Local newspapers may be allowed
              to see the Judgment?
       2.     To be referred to the Reporter or not?
       3.     Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. The respondent herein has preferred an OA No. 1997/2006 before

the Central Administrative Tribunal, Principal Bench, New Delhi. In

this OA, he had challenged the orders dated 24.03.2006 and

27.07.2006 passed by his employer, viz., Employees State Insurance

Corporation (the petitioner herein). By these orders, period of two

years from 01.07.2003 to 30.06.2005 during which the respondent had

done the DNB course was treated as dies non, that too as a special case

on the ground that normally the respondent was not entitled to leave

or to undertake the said course as per the Rules. He was also

directed to refund the excess amount of pay and allowances drawn

by him during this period over and above his entitlement as per W.P.(C) No. 9125 of 2007 Page 1 Rules. The Tribunal has allowed his OA holding that the plea of dies

non could not be opposed for the said period and also held the

direction of the petitioner to the respondent to refund the excess

amount of pay and allowances as unsustainable. The judgment of the

Tribunal is dated 01.05.2007, validity whereof is challenged by the

petitioner by means of the present writ petition.

2. The circumstances under which the orders dated 24.03.2006 and

27.07.2006 came to be passed treating the period as dies non may be

recapitulated at this stage. The respondent herein joined the service

with the petitioner as a Doctor on 16.06.2001. On 18.06.2003, a

Circular was issued by the ESI Hospital at Basaidarapur stating that

it had been recognized for DNB course and two primary candidates

and two associate candidates have been approved for admission in

ophthalmology. Vide this Circular, nominations of interested

candidates seeking their admission to DNB course in Ophthalmology

were called for and candidates were supposed to apply on or before

24.06.2003. An advertisement was also issued in June 2003 in the

leading newspapers calling for applications from Medical Graduates

for admission to DNB course. The respondent herein applied for

admission as associate candidate in response to the said

advertisement. He was selected for admission at the ESI Hospital,

Basaidarapur, New Delhi. Accordingly, he was relieved from his

W.P.(C) No. 9125 of 2007 Page 2 duty as GDMO, Gr. II, ESI Hospital, Noida with instructions to report

the Medical Superintendent, ESI Hospital, Basaidarapur, Delhi for the

DNB course and orders dated 01.07.2003 were issued stating therein

that the respondent was to join the course on the same day, i.e.,

01.07.2003. The respondent satisfactorily completed two years DNB

course from 01.07.2003 to 30.06.2005, during which he submitted a

thesis and maintained his log-book, etc. as certified by the Medical

superintendent of ESI Hospital, Basaidarapur, New Delhi on

01.07.2005. Thereafter, he rejoined the duty with GDMO, Gr. II with

ESI Hospital, Noida.

3. It so happened that after the respondent had joined the aforesaid

course on 01.07.2003, Memo dated 13.09.2003 was issued advising

him to apply for study leave for DNB course as required by

Headquarters letter dated 25.08.2003. We may mention at this

juncture that as per rule 50 (5) (i) of FRSR, Part III, Leave Rules that

study leave can be granted to a Government Servant who has

satisfactorily completed period of probation and has rendered not

less than 5 years of regular continuous service including the period of

probation. Since the respondent had joined the petitioner's hospital

on 16.06.2001 and had not completed 5 years of regular continuous

service, he was not entitled to study leave. However, he took the

stand that in his application for admission to DNB course, he had

W.P.(C) No. 9125 of 2007 Page 3 disclosed all the particulars based whereupon he was selected for

that course and no pre-condition of study leave was mentioned in the

advertisement nor was he declared ineligible for admission. A

circular dated 23.03.2004 was issued by the ESIC to the effect that

those GDMOs selected for the post, but not entitled to study leave,

would be required to resign from their post to pursue the study as in

external candidate. Aggrieved by this circular, the respondent along

with three other doctors approached the Tribunal and filed OA Nos.

880 -883/2008. These OAs were disposed of by a common judgment

dated 03.11.2004 with a direction that "the respondents should

resolve the matters in consultation with the National Board of

Examination and also the Ministry of Health and Family Welfare,

Government of India." It was also directed that the respondent and

other applicants will not be required to apply for study leave till such

time the matter had been given a careful consideration and resolved

in consultation with the aforesaid authorities.

4. The ESIC took considerable time to comply with the orders of the

Tribunal for consulting the National Board of Examination and

Ministry of Health and Family Welfare, Government of India. The

respondent even finished the course on 30.06.2005. Till then nothing

had happened. Much thereafter, i.e. on 24.03.2006, the impugned

orders were passed stating that those doctors who are entitled to

W.P.(C) No. 9125 of 2007 Page 4 study leave should apply for study leave from the date when they

joined the DNB course and refund the excess amount, if any, drawn

by them during the period over and above their entitlement as per

Rules. Another order dated 24.07.2006 was passed in respect of the

respondent herein. It was stated in the order that since the

respondent did not fulfil the eligibility criteria for sanction of study

leave nor was he eligible for extra-ordinary leave under Rule 32 (2)

(e) of the Leave Rules, the competent authority had accorded his

approval for granting relaxation under Rule 65 of CCS Leave Rules to

the extent that the entire period of study leave (i.e. two years) will be

treated as dies non. He was also directed to refund the excess amount

of pay and allowances as drawn by him during the said period over

and above his entitlement as per Rules.

5. The respondent in his OA challenged this order on the ground that

when he was given admission, there was no pre-condition attached

to seek study leave and he was not communicated any such

condition in the initial communication or in the advertisement by

which applications for admission were called for. Insofar as the

respondent is concerned, he had given complete and correct

particulars about joining the ESI Hospital and had not concealed

anything. He was still selected for the course after observing due

process and even deputed for the said course of DNB. Much after

W.P.(C) No. 9125 of 2007 Page 5 completion of the course during which period he attended to his duty

as well, it was impermissible for the ESIC to treat the said period as

dies non which course of action is resorted to in case of those persons

who do not discharge their duties or remain unauthorizedly absent.

He also contended that recovery was ordered without any issuance

of show cause notice or without granting opportunity of hearing. He

relied upon GOI instructions under Rule 11 of CCA (CCS) Rules 65 at

Sl. No. 6 which are to the following effect:

"(6) When a day can be marked as dies non and its effect. - Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them is subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non, i.e., they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the Competent Authorities might take against the persons resorting to such practices."

6. The aforesaid contentions of the respondent found favour with the

Tribunal on the ground that the respondent had specifically

mentioned his date of joining the service on 16.06.2001 in his

application for DNB course. Therefore, there was no mis-

representation on his behalf, still the ESIC selected him for the said

course with proper sanction. If he was not eligible for grant of study

leave/ELO, the ESIC could not explain as to why the respondent was

selected and not even any steps were taken to recall him from

continuing the said course nor any action was initiated for

W.P.(C) No. 9125 of 2007 Page 6 disregarding the direction of the requirement of the study leave. The

ESIC thus acquiesced in the respondents' continuing the course.

Midway, a Circular dated 23.03.2004 was issued stating therein that

regular GDMOs selected for the post, but not entitled to study leave,

would be required to resign from their post to pursue the study as an

external candidate. These orders were challenged and the Tribunal

stayed the effect of these orders while disposing of the earlier OA

filed by the respondent vide its orders dated 03.11.2004. Even then

the ESIC took considerable time in deciding the issue and impugned

orders came to be passed much after the completion of the course.

The Tribunal also accepted the contention of the respondent that

there was no provision for treating such period as dies non.

7. Submission of Ms. Jyoti Singh, learned counsel appearing for the

ESIC was that the communication dated 30.06.2003/01.07.2003 vide

which the respondent was offered admission for DNB course of

Ophthalmology, it was specifically mentioned therein that the study

period shall be governed under the relevant provision of FRSR as

applicable for study leave. Therefore, the respondent was admitted

to the course subject to the said study leave. The respondent was

fully aware of the fact that he was not entitled to grant of study leave

as he had not completed five years of regular continuous service

including that of probation period, which was precedent for grant of

W.P.(C) No. 9125 of 2007 Page 7 such leave as per Rule 50 of the Leave Rules. Therefore, it was not a

case of acquiescence by the ESIC. She submitted that as the ESIC

was directed to take action in consultation with National Board of

Examination and Ministry of Health and Family Welfare,

Government of India, the said consultation took some time and

before the decision could be taken, the respondent had completed his

course of DNB. In these circumstances, he could not have been asked

to resign and complete the course as an external candidate.

Therefore, in this peculiar circumstance, decision was taken vide

orders dated 24.07.2006 treating the aforesaid two years period as dies

non.

8. We are not impressed with this submission of learned counsel for the

ESIC. No doubt, in the communication informing the respondent

about admission to DNB course, it is stipulated that study period is to

be governed by the relevant Rules and the respondent was not

entitled to the leave. At the same time, it is also to be borne in mind

that insofar as the respondent is concerned, he had mentioned

complete particulars in his application for admission to the said

course, without any concealment. From these particulars, the

petitioner should have known that the respondent was not entitled to

study leave. In these circumstances, the ESIC was either supposed to

review his admission to the course or to call upon the respondent to

W.P.(C) No. 9125 of 2007 Page 8 resign from the job and then pursue the DNB course. Instead, it

relieved the respondent from his place of posting, i.e., ESI Hospital,

Noida and allowed him to join the ESI Hospital, Basaidarapur to

pursue his DNB course. Again it is the ESIC which compounded the

problem further by not taking the decision immediately after the

directions dated 03.11.204 were issued by the Tribunal in the first OA

filed by the respondent.

9. Important question in these circumstances which arises for

consideration is as to whether in a case like this two years period

during which the respondent did his DNB course can be treated as

dies non, as done by the ESIC in its impugned orders dated 24.07.2006.

Answer has to be in the negative. The respondent was not only

pursuing the DNB course while he was posted in ESI Hospital,

Basaidarapur, but he was also performing the duties there, as well.

As is well known and also clear from the instructions of the

Government of India at Sl. No. 6 under Rule 11 of the CCS (CCA)

Rules, extracted above, it is only in case of absence of official from

duty without permission or leaving the office without permission or

refusing to perform the duties assigned to such an official, the said

period can be treated as dies non. Thus, even if it is presumed that to

some extent the respondent is also responsible who was informed

that the period of DNB course shall be regulated by Study Leave

W.P.(C) No. 9125 of 2007 Page 9 Rules and thus he should also have known that he was not entitled to

the said Study Leave, but the effect cannot be so harsh, i.e., to treat

the period as dies non when no such orders of dies non can be passed

under the given circumstances. He had performed his duties during

this period and was given salary, which was ultimately due to him.

The petitioner is seeking to recover the payment on the purported

ground that it was excess amount of pay and allowances, over and

above his entitlement as per Rules, would clearly be impermissible as

there was no "excess" payment made. Even if it is presumed that

there is an excess payment, concededly it was not because of any mis-

representation or fraud on the part of the respondent. Therefore, as

per well-settled principle of law, it cannot be recovered. The

Supreme Court has repeatedly reiterated this principle in the

following judgments:

i) P.H. Reddy Vs. NTRD & Others, JT 2008 (2) SCC 483.

ii) Shyam Babu Verma & Others Vs. UOI & Others, 1994 (2) SCC 521.

iii) Sahib Ram Vs. State of Haryana, 1995 SCC L&S 248.

iv) SI (M) Shankar Lal Vs. UOI, 2002 III AD (Delhi 456).

10. In the present case, not even a show-cause notice or an opportunity

of being heard was given before passing the impugned orders dated

24.07.2006.

W.P.(C) No. 9125 of 2007 Page 10

11. We are thus in agreement with the view taken by the Tribunal and

finding no merit in this writ petition which is accordingly dismissed.

                                                          (A.K. SIKRI)
                                                            JUDGE



                                                       (SURESH KAIT)
                                                           JUDGE
May      , 2009.
pmc




W.P.(C) No. 9125 of 2007                                                 Page 11