Dr. G. Sagar, vs The Jawaharlal Nehru ...
2022 Latest Caselaw 206 Tel

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                         AND
        THE HON'BLE SRI JUSTICE N. TUKARAMJI

                  WRIT APPEAL No.1014 OF 2017

JUDGMENT:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




     The present writ appeal is arising out of an order

dated 27.03.2017, passed in W.P.No.20877 of 2004 by the

learned Single Judge dismissing the writ petition filed by

the petitioner.


2.   The facts of the case reveal that the appellant/

petitioner was appointed in the post of Lecturer in the

services of the respondent/University in the year 1980. He

was promoted as Associate Professor in 1987 and was

subsequently promoted to the post of Professor in the year

1997. The appellant/petitioner in the month of October,

1999 applied to work as Professor in Al Ghurair Academy

at Dubai and he was selected to serve as a Professor. He

applied for sanction of leave for one year with effect from

15.10.1999 to take a foreign assignment with Al Ghurair

Academy at Dubai as an Associate Professor by retaining

the lien in the respondent/University. The respondent/

University issued an Order dated 08.10.1999 permitting

the appellant/petitioner to join abroad on the terms and

conditions, which are reproduced as under:-

"1. He shall not be paid his pay and allowances from the University funds during the period of the above assignment.

2. He shall not be eligible for transit pay or ITA from the University funds.

3. Contribution for Leave salary and Pension due in respect of the employee on foreign service, shall be paid monthly before 10th or annually within fifteen days from the end of financial year, or at the end of the foreign service, if the deputation on foreign services expires before the end of the financial year. If the payment is not made within the said period, interest must be paid to the University on the unpaid contribution, at the rate of 7.5 per cent per annum from the date of expiry of the period aforesaid, upto the date on which the contribution is finally paid, unless it is specifically exempted. The interest shall be paid by the incumbent of the foreign employee accordingly as the contribution is to be paid by former or the latter. Initially the amounts towards leave salary and pension contribution can be paid at the following rates subject to fixation by the I.F.Audit. Leave Salary Contribution : 11% of the pay drawn in foreign service.

Pension Contribution : 17% of the maximum monthly pay of the grade held by him in the University.

For the purpose of calculation of the exact amounts towards leave salary and pension contribution to be paid by him, he has to furnish the orders of appointment received by him in foreign service indicating the details of the salary paid to him every month in foreign service. If there is any change in the amount of salary during the course of his foreign service, orders to this effect should also be submitted to the University by him within one month from the date of taking charge of the foreign assignment. Similarly, orders affecting changes, if any, in his salary in foreign service should

also be intimated within one month from the date of such changes.

4. He shall not be eligible for any medical concessions during his lien period.

5. He shall not be eligible for any leave charges in respect of any special disability incurred during the foreign service.

6. He should apply atleast 30 days in advance for his reposting orders in the University.

7. The lien period will be reckoned from the date of relief in the University to date of rejoining again in the University.

8. The University reserves the right to recall him for duty in the University to the date of rejoining again in the University.

9. He shall not go on a further lien or deputation to another organisation from the present organisation.

10. His lien shall not be considered for conversion to deputation nor he shall be granted deputation in continuation of lien or vice versa."

3. The appellant/petitioner has again submitted an

application on 04.08.2020 and requested for extension of

leave for two years with effect from 15.10.2000 to June,

2002 and the respondent/University sanctioned lien for

one year only from 14.10.2000 vide order dated

15.11.2000. The appellant/petitioner again vide letter,

dated 21.08.2001 requested extension of leave upto

30.06.2002 and the University sanctioned Extraordinary

Leave (EOL) from 14.10.2001 to 30.06.2002 to continue

with a foreign assignment with certain conditions as

stipulated in G.O.Ms.No.214, dated 03.09.1998. The

conditions of the aforesaid G.O., are reproduced as under:-

(a) The period of absence during employment abroad will be treated as Extra-ordinary leave without allowances but such period of absence will not be construed as a break in service. It will not be counted for service benefits such as increment, pay, leave etc. However if contribution towards pension is paid by the foreign employer or employee such periods will count for pension.

(b) That no Government dues are pending recovery from the Government servant.

(c) That no prosecution is pending or contemplated in the Court of Law against the Government servant.

(d) If the absence of the employee exceeding five years, he ceases to be an employee of the University.

(e) On return from leave the government employee shall not claim any preference over others in their parent department for promotion or higher pay by virtue of the experience gained in foreign employment.

(f) The benefit of the scheme shall be given to the employee once in the entire service.

4. The appellant/petitioner in his letter dated

01.07.2002 again requested EOL from 01.07.2002 by

retaining his lien in the respondent/University and his

request for extension of lien was considered and the

respondent/University vide Memo dated 08.08.2002

informed the appellant/petitioner to report back to duty by

31.08.2002 without fail. The appellant/petitioner did not

report back to duty by 31.08.2002 and requested the

respondent/University to sanction EOL again. The

respondent/University vide Memo dated 25.09.2002

permitted the appellant/petitioner, as a last chance, to

avail EOL upto 31.03.2003 and after expiry, the

appellant/petitioner was directed to report to duty by

01.04.2003 without fail. Again, the respondent/University

vide Memo dated 10.12.2003 directed the appellant/

petitioner to report for duty by 31.12.2003 as his services

were essential to the College in view of shortage of faculty

in Computer Science and keeping in view the ongoing

PG/UG programmes in the College/University, failing

which necessary disciplinary action was to be initiated

against him treating the period of his absence from

31.03.2003 as unauthorised as per rules. The

appellant/petitioner did not report to duty on 31.12.2003

and again requested for EOL upto 30.06.2006. The

appellant/petitioner was informed by the respondent/

University that his request was turned down and he has to

report to duty on or before 20.08.2004, failing which

disciplinary action will be initiated for his unauthorised

absence. The appellant/petitioner was informed by order

dated 27.07.2004 and in spite of repeated letters/orders

issued by the respondent/ University, the appellant/

petitioner did not report back to duty and the matter was

placed before the Executing Council on 17.09.2004. The

Executive Council resolved to give a final notice to the

appellant/petitioner to report to duty on or before

18.10.2004, failing which his services shall stand

terminated. The said decision was informed to the

appellant/petitioner by the respondent/University vide

Memo dated 24.09.2004. The appellant/petitioner being

aggrieved by the proceedings, dated 24.09.2004, filed a

writ petition and the same was registered as W.P.No.19068

of 2004. As the appellant/petitioner did not report to duty,

his services are finally put to an end by an order dated

26.10.2004 with effect from 26.10.2004 and the

appellant/petitioner withdrew his writ petition, which was

filed against the proceedings, dated 24.09.2004. The

appellant/petitioner after returning back to India has

thereafter preferred the present writ petition, i.e.,

W.P.No.20877 of 2004 and the learned Single Judge

dismissed the writ petition, by order dated 27.03.2017. The

order passed in the said writ petition is reproduced as

under:-

"According to him, no order imposing the punishment referred to therein can be passed by the appointing authority and except by conducting an enquiry, the employee concerned has been given an opportunity of showing cause against the action proposed to be taken against him by the respondent University. As the proceeding terminating the petitioner's service did not

precede show-cause notice and enquiry, the impugned proceeding is liable to be set aside.

He further contends that G.O.Ms.No.214 dated 03.09.1996 provides for five years of stay abroad. The respondent granted permission in accordance with the Rules of the University to go abroad for the period 15-10- 1999 to 14-10-2001 and the five year period starts with effect from 15-10-2001 and comes to end by 15-10-2006 and therefore, the termination order for all purposes denies the benefit granted to petitioner by G.O.Ms.No.214 dated 03.09.1996 and liable to be set aside.

Learned counsel fairly admits that the petitioner continues to work abroad even as on date.

I have taken note of the contentions urged on behalf of the petitioner and perused the material available on record.

Now the point for consideration is whether the proceeding No.C2/5909/2004, dated 26-10-2004 is illegal and contrary to G.O.Ms.No.214 dated 03.09.1996 and voilative of Statutes of respondent University?

Before taking up the correspondence between parties, let me first examine how five years period to which a Government employee is permitted to go abroad on Foreign assignment.

The petitioner has not placed G.O.Ms.No.214 dated 03.09.1996 on record but as it is not substantially disputed by the respondent, the objection raised by reference to G.O.Ms.No.214 dated 03.09.1996 is considered from the material available on record.

According to petitioner, the period of lien was granted from 15-10-1999 to 14-10-2001 as per the Rules of the University. Therefore, the petitioner assumes starting point for five years from 15-10-2001. After

perusing the material on record, this Court is of the view that the submission of petitioner is contrary to the proceeding dated 08-10-1999 granting lien to petitioner. Condition No.7 of the proceeding dt.08-10-1999 stipulates that the lien period will be reckoned from the date of relieving in the University and to the date of rejoining again in the University. The fact that the petitioner has brought to the notice of the University G.O.Ms.No.214 dated 03.09.1996 through his representation dated 01-07-2002, is no answer to accept that the five years period of lien permitted by the Government Order starts from 01-07-2002. The condition incorporated in proceeding dt.08-10-1999 reserves right to University to recall the petitioner to duty at any time during the period of Foreign Service.

In the case on hand, the respondent did not recall when the lien was extended but refused to extend the lien beyond five years from 15-10-1999.

The interpretation or benefit sought to be derived through G.O.Ms.No.214 dated 03.09.1996, in my considered view, is untenable and this contention is liable to be rejected and accordingly rejected.

It is the further case of petitioner that the services of petitioner are terminated without conducting enquiry or affording opportunity to petitioner and therefore, the impugned proceeding is liable to be set aside.

After perusing the statute relied on by petitioner and chronological appreciation of dates and events, this Court has no hesitation to observe that one cannot have a cake and eat it too. The petitioner, admittedly, has denied his services to the students in the respondent University and has accepted Foreign assignment for whatever reason. When the Foreign Assignment has promoted him as Dean and he realized the responsibility entrusted to him by foreign University and requests that

further extension of lien be granted. In examining such request the respondent is entitled to take the requirements of its students and either can call back an employee on Foreign Assignment or refuse to further extend the lien.

In the case on hand, the respondent through Memo No.C2/5909/2002 dated 25-09-2002 has called upon the petitioner to report to duty by 01-04-2003 without fail. The petitioner did not comply with the order of respondent. The petitioner's reply that no further permission is required for working abroad was rejected by respondent and finally directed petitioner to report for duty by 31-12-2003.

The respondent has been informing the petitioner that necessary action against the petitioner would be initiated by treating his absence from 31-03-2003 as unauthorized as per Rules. The petitioner on 31-12-2003 replied that he is entitled for continuation of lien. He has further cautioned the respondent that the respondent would be held responsible for all the damages petitioner suffers on account of hasty action. Thereafter, the respondent issued Memo No.C2/5909/2004 dated 27-07-2004 informing that the absence of petitioner from 31-03-2003 is unauthorized as per Rules and necessary action will be initiated. Finally, as noted above, through Memo dated 24-09-2004 the Resolution of the Executive Council was informed to petitioner and one month time was granted to report back to duty. The petitioner though acknowledged Memo, did not send reply or comply with the Resolution. The correspondence clears the onus cast on respondent in showing that procedure was followed. Thereafter, the respondent issued proceedings impugned in the writ petition.

This Court is of the view that the petitioner for all purposes is absent from 31-03-2003 and same is rightly treated as unauthorized. That means, the respondent has

not extended the lien or permission to petitioner to stay abroad with effect from 31-03-2003. The petitioner having not complied with the demand of respondent to report back to duty cannot insist upon conducting a regular enquiry for terminating his services. The petitioner for his own reasons and views on scope of G.O. it has to abandon the service in respondent University and he cannot now rely upon the Statute to challenge the termination proceeding impugned in the writ petition. It could be different if the petitioner having acknowledged the registered air mail sent on 24-09-2004 sent a reply to respondent or complied with the demand of University, but having not done so the same has another implication particularly when the petitioner chooses to act as he has understood the G.O. The Resolution passed by the Executive Council has made termination automatic, if the petitioner does not report to duty as directed by the Executive Council.

Having regard to the sequence of events and the conduct of petitioner, I am satisfied the ground urged by reference to Statute is misconceived, not available and accordingly rejected.

The writ petition fails and is accordingly dismissed. There shall be no order as to costs."

5. This Court has carefully gone through the Order

passed by the respondent/University and the undisputed

facts reveal that the appellant/petitioner while working as

Professor in the Computer Science and Engineering at

JNTU College, at Hyderabad, applied for sanction of leave

for one year only from 15.10.1999 to take a foreign

assignment at Dubai. The undisputed facts make it very

clear that the appellant/petitioner did not report back to

duty in spite of issuance of several memorandums

informing him that his services shall be terminated in case

he fails to joint. He completed five years stay in Dubai as

on 14.10.2004. The G.O.Ms.No.214, dated 03.09.1996

contemplates for sanction of lien upto five years. The

respondent/University was facing enormous crisis on

account of shortage of teachers and because the

appellant/petitioner was holding lien, the respondent/

University was not in a position to fill up the post. The

appellant/petitioner was requested to join duties on or

before 18.10.2004, failing which his services shall be

terminated and as he did not join, the order was passed on

26.10.2004 putting an end to his services.

6. The undisputed facts make it very clear that it was

beyond the authority of the respondent/University to

extend the lien. The Rules were not permitting for the same

and therefore, it was made clear to him to report back to

the duty on or before 18.10.2004. The respondent/

University has accommodated the appellant/petitioner

from time to time and it was the appellant/petitioner, who

in spite of therebeing a clear notice, he did not report back

to the respondent/University and therefore, the action

taken by the respondent/University is in consonance with

the G.O.Ms.No.214, dated 03.09.1996.

7. Much has been argued by the learned counsel for the

appellant/petitioner that in the light of the clause 19(2) of

Statute XIV of the Jawaharlal Nehru Technological

University Act, 1972, the termination of the appellant/

petitioner is bad in law.

8. In the considered opinion of this Court, the aforesaid

provision is not applicable to the appellant/petitioner. The

aforesaid provision is applicable only in case the

respondent/University terminates the employee for want of

vacancy and abolition of posts. In the present case, the

services of the appellant/petitioner have been put to an

end keeping in view G.O.Ms.No.214, dated 03.09.1996,

which does not provide for any further extension beyond

five years. It is a case where an employee who opted not to

report back to the duties of the respondent/University in

spite of last notice issued to him informing well in advance

that in case he does not report back to duty, his services

shall stand terminated and therefore, the learned Single

Judge was justified in dismissing the writ petition as the

appellant/petitioner did not report to duty on or before

18.10.2004. The Executive Council being the appointing

authority was justified in passing the Resolution for

discontinuing the services of the appellant/petitioner, who

did not report back to duty in spite of therebeing a

categoric memo/notice issued to the appellant/petitioner.

9. In the light of the aforesaid, this Court does not find

any reason to interfere with the Order of termination

passed by the respondent/University as well as the Order

passed by the learned Single Judge. The writ appeal is

accordingly dismissed.

Miscellaneous applications, if any pending, shall

stand dismissed. There shall be no order as to costs.

_____________________________ SATISH CHANDRA SHARMA, CJ

________________ N.TUKARAMJI, J

25.01.2022 Pln