Allowed

Sidheshwar Sharma v. D.M. College, Moga

Punjab & Haryana HC20 Feb 2014RSA/463/1989

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by a professor against an appellate decree that denied his claim for three annual increments during a foreign deputation. The court held the original trial court's decree correctly interpreted the deputation as continuous service entitling the professor to increments.

What did the court decide?

The impugned judgment of the lower appellate court was set aside; the trial court's decree was restored, mandating the defendants to release three withheld increments.

Sidheshwar Sharma Vs D.M. College… — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

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RSA No. 463 of 1989 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 463 of 1989 (O&M) Date of Decision: 20.2.2014

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Prof. Siddheshwar Sharma

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.....Appellant

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Versus

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D.M. College Managing Committee Moga and others

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.....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Satya Pal Jain, Sr. Advocate with

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Mr. Dheeraj Jain, Advocate and Mr. Vijay Chaudhary, Advocate for the appellant.

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Mr. Dhirender Chopra, Advocate for the respondent.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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Plaintiff is in appeal, against the impugned judgment of

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reversal passed by the learned Additional District Judge Faridkot, whereby the judgment and decree dated 7.1.1986 decreeing the suit of the plaintiff-appellant, were set aside.

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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To unravel the short controversy involved between the parties, narration of the essential facts would be required. Plaintiffappellant joined as Lecturer at D.M. College of Education, Mogadefendant No.1 on 1.8.1970. It was pleaded case of the plaintiff that after completing all the formalities and obtaining sanction of defendants No. 1 and 2, he proceeded to Ethiopia on deputation, pursuant to an assignment offered to him by the Department of Personnel and Administrative Reforms, Govt. of India, New Delhi, from 20.9.73 to 1976. Defendant-management sanctioned his three years leave without pay. Plaintiff returned to India and went to join his duty on 17.7.1976, but he was not allowed to join. However, permission was granted to him to join his duty on 21.7.1976. He was paid salary for 11 days through a cheque but without including any increment. He requested defendant-management to grant three increments on 1.1.1974, 1.1.1975 and 1.1.976, but he was informed vide letter dated 17.10.1980 by defendant No.2 that he was not entitled for increments. When his request was not accepted by the defendant-management, he filed the present suit.

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Having been put to notice, defendants No. 1 and 2 appeared and filed their joint written statement taking more than one preliminary objections that suit was barred by limitation, suit was not maintainable, plaintiff was estopped from filing this suit by his own act and conduct and plaintiff has no locus standi to file the suit. On merits, it was denied that plaintiff went on deputation. However, it was admitted that he joined foreign assignment on contractual basis.

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Leave without pay was granted to the plaintiff on the stipulation that Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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he would not demand higher grade of pay, because of which he was not entitled to increments demanded. Denying all other averments taken in the plaint, dismissal of the suit was prayed for.

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On completion of pleadings of the parties, learned trial court

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framed the following issues:_

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“1. Whether the suit is time barred?OPD

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Whether this court has no jurisdiction to entertain and try the suit?OPD

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Whether the suit for declaration is not maintainable?OPD

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Whether the plaintiff is estopped by his act and conduct, and undertaking to file the suit?OPD

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Whether the impugned order dated 17.10.80 of defendant No.1 and 13.8.1981 of defendant No.4 is illegal, inoperative and ineffective?OPP.

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Whether the plaintiff is entitled to the declaration prayed for?OPP

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Whether the plaintiff had gone to Ethopia on foreign assignment on deputation. If so, its effect?OPD

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Whether the suit against defendant No.4 has been un-necessarily filed? If so, its effect?OPD (4)?

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Relief”

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In order to prove their respective stands taken, both the

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parties led their documentary as well as oral evidence. After hearing Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has proved his case. Consequently, his suit was decreed and defendants were directed to release three increments to the plaintiff, which were illegally withheld by the defendants. Feeling aggrieved, defendants filed their first appeal which was allowed by the learned Additional District Judge, Faridkot, vide impugned judgment and decree dated 27.10.1988. Hence this appeal at the hands of the plaintiff.

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Learned senior counsel for the appellant submits that learned trial court rightly decreed the suit of the plaintiff, holding him entitled for three annual increments for the period he remained on foreign assignment, because he went on deputation after taking due permission from the concerned authorities including the defendants. He further submits that competent authority sanctioned leave and allowed the appellant to go to Ethiopia on foreign assignment, offered to him by Government of India, after due selection. He next contended that since the respondent-college was affiliated to Panjab University, leave rules for teachers working in non-government colleges affiliated to Panjab University, contained in Volume III Chapter X of the Panjab University Calendar, would apply in the present case. He also submits that as per the Note given at the end of Rule 7 of Chapter X of the Panjab University Calendar, leave rules given in the Punjab CSR Volume-I (Part-I) will be final, in case some clarification was required. Finally, he prays for setting aside the impugned judgment and decree passed by the learned lower appellate court.

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M) 5

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Per contra, learned counsel for the respondents submits that defendant-management never granted permission to the plaintiff to go on deputation. He further submits that learned trial court wrongly decreed the suit, but the judgment of the learned lower appellate court was based on sound reasons and deserves to be upheld. He prays for dismissal of the appeal.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that present appeal deserves to be allowed. To say so, reasons are more than one, which are being recorded hereinafter.

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Under the peculiar facts of the case, following substantial question of law arises for consideration of this Court:-

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“Whether the impugned judgment and

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decree passed by the learned Additional District Judge were based on patently illegal approach and he misread, misconstrued and misinterpreted the true facts of the case as well as evidence available on record.”

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A combined reading of Ex.P2, P3 and P15 would make it clear that defendant authorities allowed the plaintiff to go on deputation, granting him leave without pay. Ex.P2 is copy of the application dated 31.8.1973 submitted by the appellant to the Secretary of D.M. College, Managing Committee, Moga. Plaintiff submitted his application for grant of leave without pay for three Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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years and also for keeping his lien intact. It was recommended and forwarded by the Principal of the college, vide his endorsement dated 31.8.1973. Ex.P3 was an application dated 8.9.1973 submitted by the plaintiff-appellant to the management of the defendant-college, whereby he offered to deposit three months' salary in the college as security, which would be forfeited in the event of submission of resignation by the plaintiff, from Ethiopia after three years.

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The competent authority passed an order on the application submitted by the plaintiff which is also a part of Ex.P3. Ex.P15 was the copy of communication dated 23.8.1973, addressed to the appellant by the Deputy Secretary to Government of India, Department of Personnel. Subject of this letter Ex.P15 was selection of teachers on deputation to Ethiopia. Plaintiff submitted his very first application in this regard, Ex.P2 dated 31.8.1973 with the opening sentence that “kindly find enclosed herewith an attested true copy of selection in Ethiopia on a teaching job”. It was recommended and forwarded by the Principal of the defendant-college. Thus, defendantrespondent cannot be heard to say at this belated stage that plaintiff was not allowed to go on deputation.

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In fact, Ex.P15, i.e. communication dated 23.8.1973 addressed by Government of India to the plaintiff, was an integral part of Ex.P2, which was an application dated 31.8.1973 seeking grant of leave without pay for three years. This was the most relevant piece of evidence and crucial aspect of the matter which was completely misread, misconstrued and misinterpreted by the learned Additional District Judge, while upsetting the judgment and Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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decree passed by the learned trial court. Having said that, this Court feels no hesitation to conclude that learned Additional District Judge failed to appreciate the true import of the abovesaid three pieces of evidence, because of which the impugned judgment and decree cannot be sustained.

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This also goes a long way in favour of the appellant that defendant-management was itself treating the appellant on deputation, for three years on the foreign assignment. Otherwise, there could have been no scope for keeping lien of the appellant intact. It was undisputed on record that appellant was not claiming any higher pay scale, as per his undertaking given to the respondentmanagement by way of Ex.P2. There was also no dispute about the seniority. Thus, keeping in view the peculiar facts of the present case, noticed hereinabove, it is unhesitatingly held that learned trial court rightly decreed the suit of the plaintiff. However, learned first appellate court misdirected itself and completely misread the voluminous documentary evidence, available on record in favour of the appellant, while allowing the appeal of the defendants. Thus, impugned judgment cannot be sustained, for this reason also.

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The learned trial court discussed each and every aspect of the matter in minute detail, referring to the relevant provisions of law applicable in the present case. Cogent findings recorded by the learned trial court in para 9 to 14, read as under:-

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“Section 27 of the Pb. University Act ( No.7 of 1947) covers affiliated colleges. According to

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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S.27 (10 (b) the college applying for affiliation to the university, shall satisfy that the qualification of the teaching staff, their grades of pay an the conditions governing their tenure of officer are such as to make out provisions for the courses of instruction to be undertaken by the college. All the changes in the teaching staff shall be reported to the university syndicate.

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Chapter VIII-A of Pb. University Calendar, Vol. I of 1984, further prescribes condition for affiliation Rule 9 (b) (1) lays down that the rules relating to conditions of service and conduct of teachers as contained in Part E are being observed. Chapter VIII-E of Pb. University Calendar Vol. I, 1984 relates to the condition of services. College has been defined as a college under the private management affiliated to the Pb. University. Rule 4 (ii) lays down the annual increment shall be granted to each teacher on the recommendation of the Principal. Rule 24 (3) of Chapter 8-E lays down that no teacher shall apply for any job without the previous sanction of the Principal of his college and in case of the principal without previous sanction of the Managing Committee. Rule 124 (4) lays down that no teacher shall absent himself from his duties without having first obtained the permission of the authority provided in the leave rules. Leave rules are contained from the Rule 15 to Rule 20. Rule 15 lays down that leave account shall be maintained by the Head of the Institution. Rule 16 lays down that leave can be refused. Rule 17 lays down that period of casual leave, leave for attending meeting, seminars etc. Rule 19 lays down procedure for sick leave. Rule 19 relates to study. Rule 20 relates to

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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maternity leave.

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The interpretation of the order dated 8.9.1978 where by 3 years leave was sanctioned subject to applicant deposit 3 months salary less his share of PF with college which shall stand forfeited, in case he does not re-join services after three years or sends his resignation which may be treated as a salary in lieu of 3 months notice, has to be made by this court, in the light of above rules. This leave does not fall under any of the rules, between rule 15 to 20 discussed above. The dictionary meaning of the leave are 'permission'. It is clear that Govt. wanted to send teacher to Ethiopia. Plaintiff made it clear that he accepted the offer to Ethiopia. It is clear that it is only a case of deputation, that is to foreign service. It is not a case of leave without pay.

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Pb. University calendar is silent about deputation out of India. In such circumstances the plaintiff is to be considered on dieputation for all purposes. Except for pay and allowances which were to be paid by foreign employer contribution to provident fund etc., is to be paid by the plaintiff during this period. I take help of the anomalous provisions contained in the Punjab Civil Services Rule Vol.I PartI. Rule 6.3 lays down that when a Government employers is with proper sanction deputed for duty out of India, to hold a regular constituted permanent or quasi-permanent post, other than a post borne on the cadre of the service to which he belongs his pay shall be regulated by the orders of the competent authority. Rule 6.2 envisages that when a Govt. employee is with proper sanction temporarily deputed on duty out of

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RSA No. 463 of 1989 (O&M)

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India either in connection with the post held by him in India or in connection with any special duty on which he may temporarily be placed, he may be allowed by the competent authority to draw during the period of deputation the same pay which he would have drawn had he remained on duty in India, Note (3) further lays down that the period of deputation runs from the date on which the Government employee takes over charge of his office in India. Note (4) lays down that the term 'pay' should be interpreted literally with reference to the definition in rule 2.44 and the pay which a Government employee would have drawn if they were on duty in India. Similarly, analogue provisions i.e. rule 4.9. of the Punjab Civil Services Rules, Vol. I, Part I lays down that all duty in a post on a time-scale counts for increment in that time scale. The period of duty shall be counted for increment in the post, in case of officer is sent for training. Further rule 6.9. (b) (ii) lays down that all leave except extra-ordinary leave shall count for increment in the time scale. In the instant case the order discussed above does not indicate the nature of the leave sanctioned to the plaintiff. In my opinion, in such circumstances it could not be taken that it was a leave without pay, but it is to be taken as on deputation to foreign service Gian Mittal Sood, Secretary (PW-2) has admitted that 2 officers Sht. M.L.Sood and Sh. K.K. Gupta who proceeded on 2 years leave each, were granted increments, under the Security of Service Act and rules for nonGovt. Affiliated college lecturers. The above said provisions have been withheld for the court by the defendant. A presumption is to be drawn that it is

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RSA No. 463 of 1989 (O&M)

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not favourable to the defendant. Shri Ram Parkash Garg, Principal (DW-1) stated the plaintiff filed an application on 31.8.1973 for grant of leave without pay. I have gone through the application, referred to by him dated 31.8.1973, Ex.D6 wherein the plaintiff submitted an attested copy of the selection letter, relating to his contract of assignment. It is mentioned therein that he may be ranted leave without pay for 3 successive years and his lien may be kept for this period. He also undertook that he shall not claim higher grade or salary shall restart salary which is drawn by him at the time of leave. The only order passed on is 'recommended and forwarded'. No specific order has been passed after the submission of thsi application that he has been granted leave without pay and that the said leave does not count for increment. Once an employee is considered to be continued on the job, his emoluments are to be regulated by the service rules and not by such undertakings. The defendants have failed to bring forward the rules. Thus the order dated 17.10.1980 wherein it has written that the plaintiff is not entitled to increments during the lee period under the rules is not sustainable and is quashed. Simiarly, the letter dated 13.8.1981, written on behalf of Panjab University that the claim is an after-thought because the plaintiff himself committed that he would not claim higher pay or salary after coming from abroad is also not substantiated by certain rules and is liable to be set aside and is hereby quashed.

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Learned counsel for the plaintiff has placed reliance on Shri Manmohan Singh Jaitla Vs. The Commissioner Union Territory Chandigarh and

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RSA No. 463 of 1989 (O&M)

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others and Amar Singh Vs. Deputy Commissioner and other 1985 (1) SLR 505. The facts of this case are different as such I need not discuss. Reliance has also been placed on M/s. Amabla Bus Syndicate (P) Ltd., Rupnagar Vs. Presiding Officer, Labour Court, Patiala, and Ors. 1985 (1) SLR 52. The facts of this case are also not applicable to the case in hand. However, in case R.G.Prasad and another Vs. State of U.P. And other 1985 (2) SLR 287, it was held in (para 41) as under:-

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“In view of these authorities where there are no services rules applicable to a class of Government services but there are administrative instructions of general applications which are attracted to their case, there is no justification for not applying the same to some of them while applying them to others.”

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In Panjab University Calendar Volume-II, 1981 rule 24 relates to Extra-ordinary leave which does not count for increments. Rule 25 lays down that leave without pay shall not count towards gratuity. But these rules are applicable to non-teaching employees lays down that the period spent on foreign service shall count for increment. It is thus clear that the service rule for the plaintiff are not in existence and case is to be regulated on the basis on instructions and the precedents as already discussed. I treat the plaintiff on deputation on foreign service and not on extra-ordinary leave as alleged in the order by the plaintiff with the rider that contribution to Provident Fund etc., shall be borne by the plaintiff. It is held that both the orders dated 17.10.1980 and 13.8.1981 are illegal. This issue is

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RSA No. 463 of 1989 (O&M)

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decided in favour of the plaintiff and against the defendant.”

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A bare perusal of the abovesaid findings recorded by the learned trial court would show that suit of the plaintiff was rightly decreed vide judgment dated 7.1.1986 and the same deserves to be restored, whereas the impugned judgment passed by the learned lower appellate court is liable to be set aside, being not sustainable in law. It is so said, because learned Additional District Judge committed patent illegality, while setting aside the findings recorded by the learned trial court on issues No. 4 to 7. The findings recorded by the learned Additional District Judge have been found to be contrary to the true facts of the case, as well as against the evidence available on record, because of which the impugned judgment cannot be sustained.

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During the course of hearing, learned counsel for the respondents could not substantiate any of his arguments. In fact, he wanted to ignore Ex.P15 which was not permissible in law, because Ex.P15 itself was the genesis for the cause of action in favour of the appellant. It was neither pleaded nor argued case of the defendantsrespondents that plaintiff-appellant ever misrepresented his case at any point of time. Learned counsel for the respondents also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken hereinbove.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the judgment passed by the

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Kumar Amit 2014.05.22 14:10 I attest to the accuracy and integrity of this document

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RSA No. 463 of 1989 (O&M)

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learned trial court deserves to be restored and the impugned judgment passed by the learned lower appellate court is liable to be set aside. Consequently, judgment and decree passed by the learned trial court are hereby restored and the impugned judgment passed by the learned lower appellate court is set aside.

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Resultantly, the instant regular second appeal stands allowed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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20.2.2014 AK Sharma

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Sidheshwar Sharma v. D.M. College, Moga

Case brief

What is this about?

What did the court decide?

Sidheshwar Sharma v. D.M. College, Moga

Case brief

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What did the court decide?

What the court decided

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