Allowed

Arup Jyoti Karmakar v. Union of India and 5 Ors.

Gauhati HC4 Sept 2019WP(C)/4075/2019

Case brief

AI extract

What is this about?

Petitioner, an Assam Rifles medical officer, approached the High Court to recall calling letters issued for disciplinary proceedings and to regularize leave. The bench held leave regularization is administrative and does not require physical presence, directed issuance of NOC for resignation acceptance, and criticized respondents for threatening disciplinary action after bond dues were settled.

What did the court decide?

Respondents directed to process regularization of overstay leave within 4 weeks; issue NOC; accept resignation; release pending payments.

Arup Jyoti Karmakar Vs Union of India and 5… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010174202019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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WP(C) No. 4075/2019

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1:ARUP JYOTI KARMAKAR S/O- LT BINOD CHANDRA KARMAKAR R/O- BIRKUCHI WARD NO. 52 GHY-6 (ASSAM)

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VERSUS 1:UNION OF INDIA AND 5 ORS. REP. BY THE SECY. TO THE MINISTRY OF HOME AFFAIRS NORTH BLOCK CENTRAL SECRETARIAT NEW DELHI- 110001 2:THE DIRECTOR GENERAL ASSAM RIFLES NONGRIMMAW LAITUMKHRAH RYNJAH VIA GORALINE SHILLONG MEGHALAYA- 793011 3:THE ADDL. DIRECTOR GENERAL (MEDICAL) CAPF NSG AND AR NOIDA NEW DELHI 4:THE BRIGADIER (ADMN) HQ DGR LITEKOR SHILLONG- 793002 5:THHE DIRECTOR (MEDICAL)HQ

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DGR LITEKOR SHILLONG- 793002

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6:THE COMMANDANT 3 (NH) BN ASSAM RIFLES C/O 99 APO

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Advocate for the Petitioner : MR. U K NAIR Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN

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ORDER

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04.09.2019

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Heard Mr. U. K. Nair, learned Sr. Counsel assisted by Ms. P. Bhattacharya, learned counsel for the petitioner and Ms. A. Gayan, learned Central Govt. Counsel.

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2 . By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of letters dated 03.05.2019 and 17.05.2019 issued from the Office of Commandant 3 (NH), Battalion, Assam Rifles calling upon the petitioner to report back to the Commandant for regularization of dues and disciplinary proceedings in order to process No Objection Certificate (NOC) required for acceptance of resignation of the petitioner from the service of Assam Rifles.

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Case of the petitioner is that he had joined service in the Assam Rifles as Assistant Commandant (Medical Officer) on 20.02.2004. In the course of his service, he was promoted to the rank of Deputy Commandant (Senior Medical Officer) and thereafter to the next higher rank of Section In-charge (Chief Medical Officer) on 20.02.2013.

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While in service petitioner was sponsored by the Assam Rifles for undergoing Post Graduation in Radio Diagnosis in Armed Forces Medical College (AFMC) at Pune. As part of the sponsorship, petitioner executed a bond with Assam Rifles on 24.06.2013. In terms of the bond, in the event of petitioner not resuming duty or resigning etc within a period of 3 years

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after his return to duty he would have to pay to the Government a sum of Rs.28,79,460.00. Accordingly, leave was sanctioned to the petitioner to undergo the said course for a period of 36 months w.e.f. 26.06.2013 to 25.06.2016.

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Petitioner successfully completed his post graduation and obtained the degree of MD, Radio Diagnosis from AFMC, Pune on 25.06.2016. Thereafter he reported back for duty and started discharging his duties in the Assam Rifles.

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Because of severe personnel inconvenience and medical issues, petitioner initially sought for a choice posting but as that did not materialize, he submitted application before the Director General on 03.02.2017 seeking to resign from the service of Assam Rifles w.e.f. 25.06.2017. The ground for such resignation was mentioned as extreme medical condition of his family members rendering his continuance in the Assam Rifles wholly untenable. That apart, petitioner himself suffers from several medical issues.

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However, for one reason or the other his resignation was not accepted. When the issue relating to returning of bond money cropped up petitioner agreed to repay the same after making deduction from the pension amount. Even then no decision was taken regarding acceptance of resignation of the petitioner.

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At that stage, petitioner approached this Court by filing WP(C) No. 1773/2017. The writ petition was contested by the respondents. Stand taken by the respondents was that there were procedural formalities to be completed before acceptance of resignation. Bond amount had to be realized from the petitioner.

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This Court by order dated 30.08.2017 allowed the writ petition by directing the respondents to allow the petitioner to resign from his post by accepting his application for resignation and to release him from service within a period of 10 days. Regarding recovery of the dues, liberty was granted to the respondents to adjust the same from his pension amount and if that was found to be inadequate, it was directed that balance amount should be repaid by the petitioner.

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In the meanwhile, instead of complying with the aforesaid order dated 30.08.2017 and accepting the resignation of the petitioner an arrest warrant was issued by the Office of the Commandant against the petitioner on 03.01.2018 and also freezing the bank account of the petitioner in the State Bank of India, Guwahati Branch. At that stage, petitioner again approached this Court by filing WP(C) No. 272/2018. This Court by order dated 19.01.2018, issued notice and passed an interim order staying the arrest warrant and directing de-freezing the bank account of the petitioner.

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Respondents thereafter preferred writ appeal against the order dated 30.08.2017 passed in WP(C) No. 1773/2017. The said writ appeal was registered as WA No. 75/2018. By the order dated 15.02.2019, the writ appeal was disposed of by directing the petitioner to pay back the bond amount which was quantified at Rs. 26,67,022.00 on or before 12.04.2019 and thereafter to immediately report to the Commandant for processing no objection certificate to enable acceptance of resignation. Respondents were directed to process the papers of the petitioner seeking no objection certificate and to complete the exercise within two weeks from the date on which the payment was made. On such no objection certificate issued by the respondents, resignation of the petitioner would stand accepted. Referring to Rule 63 of the Central Civil Services (Leave) Rules, 1972, Division Bench held that petitioner was required to pay the bond amount before acceptance of resignation and thereafter passed the aforesaid directions and modified the order of the learned Single Bench to the above extent.

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Relevant portion of the order dated 15.02.2019 is extracted hereunder:-

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“ Hence, to the said extent, we are of the opinion that the direction issued by the learned Single Judge to accept resignation and deduct the amount payable by the respondent as service/terminal benefits would not be justified as it would amount to putting the cart before the horse. The said direction as ordered would call for modification. Hence, we make it clear that from the bond amount of Rs.28,79,460.00 payable, the amount which is presently quantifiable as payable by the appellants in a sum of Rs.2,12,430.00 be deducted. If that be the position, the respondent would be liable to pay the sum of Rs.26,67,022.00 to the appellants. The said amount is required to be paid before the resignation is accepted by the appellants.

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Hence, we direct that the respondent shall pay the amount of Rs.26,67,022.00 on or before 12.04.2019. Immediately on payment of the said amount, the respondent shall

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report to the Commandant, 3rd Assam Rifles, Kohima and arrange for processing the ‘no objection’ certificate to be issued so as to accept the resignation. The appellants shall, in that regard, take steps to process the papers of the respondent seeking for ‘no objection’ certificate and complete within two weeks from the date on which payment is made and the application is submitted by the respondent seeking for ‘no objection’ certificate. On such, ‘no objection’ certificate being issued by the appellants within time frame, the resignation shall stand accepted and the further process to quantify and pay the service/terminal benefits shall be undertaken by the appellants. The terminal benefits shall be paid to the respondent within one month from the said date indicated above as the date of acceptance of the resignation. In terms of the modification made to the order of the learned Single Judge, the same shall be regulated. In all other aspects, the order of the learned Single Judge shall remain undisturbed.”

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Thus from the above, it is evident that petitioner was to pay a sum of Rs.26,67,022.00 to the respondents.

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It is stated that though petitioner was making efforts for payment of the dues as above he was not furnished with the information as to how the money was to be deposited. Ultimately, petitioner made a demand draft of the aforesaid amount in favour of the Drawing and Disbursing Officer 3, Assam Rifles which was dispatched by courier on 12.03.2019. Thereafter petitioner physically reported before the Commandant i.e. respondent No. 6 on 01.05.2019 and requested for issuance of no objection certificate. It is stated that at the time of physical reporting of the petitioner before respondent No. 6, petitioner had got clearance from all the branches of Assam Rifles barring energy bills of Engineering Branch.

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It is further stated that on 02.05.2019, petitioner’s son suddenly fell severely sick for which he had to rush to Guwahati to attend to the emergent medical situation of his son.

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Instead of issuing NOC, Office of the Commandant i.e. respondent No. 6 issued the two impugned letters. From a perusal of the two letters, it is seen that respondent No. 6 had taken the stand that the amount of Rs.26,67,022.00 was required to be deposited in Government treasury instead of demand draft and that process to provide NOC could only start after deposit of the money in Government treasury. Necessary administrative/disciplinary action was also required to be taken regarding over-stay of leave of the petitioner.

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In the second letter dated 17.05.2019, it was clarified that processing of letters submitted by the petitioner could not be done without his physical presence. The issue of petitioner’s over stay of leave w.e.f. 30.11.2017 was also required to be regularized for which disciplinary proceedings were pending for processing NOC.

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18 . Aggrieved, present writ petition has been filed.

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This Court by order dated 21.06.2019 had issued notice. A prima-face view was taken that only a few formalities were required to be completed by the respondents for issuing the NOC and acceptance of resignation for which continuous presence of the petitioner in the unit may not be necessary. Therefore, petitioner was asked to report to respondent No. 6 on or before 05.07.2019 to enable respondent No. 6 to start and complete necessary process for issuance of NOC. In the meanwhile, respondents were directed not to take any prejudicial action against the petitioner in terms of the aforesaid two letters.

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20 . Respondents have filed a common affidavit. Stand taken in the affidavit is that petitioner was absent from service for a period of 517 days w.e.f. 30.11.2017 to 30.04.2019 which period is required to be regularized. It was therefore that petitioner was directed to report back to the unit for completion of the procedure. In paragraph 9 of the counter affidavit, respondents have admitted that the amount of Rs. 26,67,022.00 submitted by the petitioner by way of demand draft has been deposited into the Government treasury. It is also stated that petitioner reported to the Battalion office on 01.05.2019, 18 days after forwarding of the demand draft, thereby delaying the process of issuance of NOC. Further stand taken is that amounts of Rs.9,795.00 and Rs.21,742.00 were due from the petitioner on account of officers’ mess bill, electricity charges and licence fee which amounts are yet to be cleared. That apart, since petitioner has not yet been discharged from service, he is still subject to the rigors of Assam Rifles Act, 2006 and Assam Rifles Rules, 2010.

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20.1 . Referring to the absence period of 517 days, it is stated that the same is required

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to be regularized by initiating suitable action/proceeding as per the aforesaid Act and Rules. It is further stated that pay and allowance of the petitioner was stopped w.e.f. November, 2017 on account of over-stay of leave effective from November 30, 2017.

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21 . Petitioner in his reply affidavit has stated that electricity charges and licence fee have already been debited from the bank account of the petitioner which has been confirmed by the respondents on 14.07.2019. There are no outstanding dues to be paid by the petitioner. Regarding regularization of over-stay of leave, it is stated that Central Civil Services (Leave) Rules, 1972 does not provide for or require initiation of any disciplinary action for regularization of leave. Therefore, physical presence of petitioner before respondent No. 6 would not be necessary. Regularization of leave period is an administrative/ministerial work and does not require physical presence of the petitioner. It is stated that petitioner had to avail financial assistance from various institutions for deposit of the bond amount besides having to look after his ailing mother and his only sister who is completely blind. In addition, his 9 year old son has been diagnosed as suffering from Generalized Tonic Clonic Seizure due to Encephalomalacia Lt. Frontal Lobe (Brain) with Rt, Leg Dorsiflexors Weakness since 09.01.2011. It is stated that due to severe mental stress and apprehension, petitioner had to take admission in the Gauhati Medical College and Hospital and therefore he was unable to report to respondent No. 6 on or before 05.07.2019 as was directed by this Court. In this regard an interim application has been filed which has been registered as IA(C) No. 2438/2019.

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In the said Interlocutory application, petitioner has stated that his physical presence is not required for regularization of his over stay of leave to complete the documentation process. Therefore he has requested for modification of the order dated 21.06.2019.

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Mr. U. K. Nair, learned Sr. Counsel for the petitioner submits that all requirements have been completed by the petitioner. Therefore in terms of the order of the Division Bench dated 15.02.2019, respondents are required to issue NOC which would lead to acceptance of resignation. Insistence of respondent No. 6 on physical reporting by petitioner and threatening

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disciplinary action for the purpose of regularization of leave is uncalled for and unwarranted besides being an attempt to over-reach the order of the Division Bench. He therefore submits that necessary directions may be issued to respondent No. 6 for issuance of NOC and to accept resignation of the petitioner. Because of the stalemate, petitioner is going through tremendous stress and mental agony besides adversely affecting his financial condition.

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24 . On the other hand, Ms. Gayan, learned Central Govt. Counsel submits that petitioner is required to be present before respondent No. 6 so that respondent No. 6 can complete the necessary formalities for regularization of the leave period. Petitioner’s presence is required because during regularization process many queries may arise and clarifications required. Since petitioner is protected by the order dated 21.06.2019 there should not be any apprehension in the mind of the petitioner regarding any prejudicial action by respondent No. 6.

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25 . Submissions made by learned counsel for the parties have been considered.

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26 . As would be evident from the pleadings, the dispute in question has now boiled down to a very narrow compass. As a matter of fact, Division Bench in its order dated 15.02.2019 had virtually settled the issue. As per the said order, an amount of Rs.26,67,022.00 was quantified to be paid by the petitioner to the respondents which has been acknowledged by the respondents. Division Bench had also directed that after payment of the aforesaid amount petitioner should report before respondent No. 6 who should arrange for processing NOC so as to accept resignation. No time frame was mentioned by the Division Bench for appearance of the petitioner before respondent No. 6 though it was mentioned that the above amount should be paid on or before 12.04.2019 and immediately after payment, petitioner should report before the Commandant. The demand draft for the aforesaid amount was dispatched to the Commandant by courier on 12.03.2019 and petitioner reported before the Commandant physically on 01.05.2019. Respondents have admitted receipt of the amount. Three issues cropped up thereafter. First issue was regarding payment of Rs.9,795.00 as officers’

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mess dues; second was payment of Rs.21,742.00 on account of electricity charges and licence fees; and the third issue was regularization of over-stay of leave of 517 days by initiating suitable disciplinary proceeding.

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In so far the two amounts are concerned those two have already been debited from the bank account of the petitioner. Therefore the only area which remains to be addressed is regularization of the leave period of 517 days.

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28 . Granting of leave under the Central Civil Services (Leave) Rules, 1972 is an administrative exercise which does not call for initiation of any disciplinary proceeding. In any case question of any disciplinary proceeding does not arise because there is neither any showcause nor any charge memo against the petitioner. Therefore, in the opinion of the Court matter can be easily handled at the administrative level by following the laid down procedure under the Leave Rules, which does not mandate physical presence of the Central Government employee before the leave granting authority for the purpose of grant of leave.

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29 . That apart, after the order of the Division Bench dated 15.02.2019 raising the issue of over-stay of leave and threatening the petitioner with disciplinary proceeding does not appear to be in good taste. This appears to be an attempt to over reach the order of the Division Bench. Instead of issuing the impugned letters dated 03.05.2019 and 17.05.2019, respondent No. 6 could have handled the matter in a dignified manner considering the fact that till this date petitioner is still a senior officer of the Assam Rifles and is required to be treated in a manner befitting an officer of the Assam Rifles. Threatening him with disciplinary action that too after the order of the Division Bench of this Court is wholly unwarranted and untenable. It is therefore necessary that a senior officer of the Assam Rifles should look into this aspect of the matter and ensure that there is no further procrastination in the matter which should be given a quietus in a decent and dignified manner.

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Accordingly and in the light of the above, the following directions are issued:-

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Office of the respondent No. 6 shall process the related papers relating to regularization of over-stay of leave and complete the exercise within 4 (four) weeks from the date of receipt of a certified copy of this order.

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Thereafter, No Objection Certificate (NOC) shall be issued.

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On issue of NOC, resignation of the petitioner from Assam Rifles would stand accepted.

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Office of the Director General, Assam Rifles i.e., respondent No. 2 shall monitor the above exercise and ensure that the matter is settled as directed by this Court.

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5 . All payment due to the petitioner shall be released thereafter within a period of 4 (four) weeks.

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31 . Writ petition is allowed but there shall be no order as to cost.

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JUDGE

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Comparing Assistant

Arup Jyoti Karmakar v. Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Arup Jyoti Karmakar v. Union of India and 5 Ors.

Case brief

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What did the court decide?

What the court decided

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