Case: P. Lal Vs. Union Of India

Respondent No.3 worked in the Research and Analysis Wing (RAW) of the Government of India from 1982 to September 1990. With effect from October 1990 Respondent No. 3 was repatriated to the State of Punjab. He did not join duty till 30th September, 1991. On 24th October, 1991, i.e. 23 days later, Respondent No.3 applies for Ex-India leave. Even before the leave could be sanctioned Respondent No.3 leaves India and goes to England. From England he again applies for further leave. Leave is sanctioned till 10th January, 1992. Respondent No. 3 is informed that no further extension would be granted even on medical grounds. Respondent No.3 still does not join duty. He then sends in, on 30th June, 1992, an application for voluntary retirement. However, on 19th July, 1992, he sends a telegram withdrawing his application for voluntary retirement. As Respondent No.3 continues to remain absent he was charge-sheeted on 14th January, 1993. On 12th April, 1993 he reports for duty in the Office of the D.G.P., Punjab.4. On 5th May, 1993 he again applies for voluntary retirement with immediate effect. He deposits Rs. 30,870/- in lieu of three months advance notice. Respondent No.3 does not even wait for his application to be accepted. He again goes away abroad. As Respondent No.3 had applied for voluntary retirement DGP, Punjab recommends that the charge-sheet against him be withdrawn. On 27th September, 1993 the Government of India rejects the request for voluntary retirement on the ground that three months notice period had not been given. The Government of Punjab by its representations dated 29th September, 1993 and 8th July, 1994 requests the Government of India to accept the application for voluntary retirement. This request is again turned down by the Government of India on 13th September, 1994. As Respondent No.3 was not even in India and was not reporting for duty the Government of Punjab, on 29th November, 1994, points out to the Government of India that Respondent No.3 has not been attending office since 5th May, 1993 and that his three monthsâ€™ notice period may be considered from the date of application i.e. 5th May, 1993 and he may be allowed to voluntary retirement. On 2nd March, 1995 the Government of India permits Respondent No.3 to retire from service with effect from May, 1993. It may be mentioned that in the meantime, on the recommendation of the D.G.P., Punjab, the charge-sheet had been dropped against Respondent No.3. This was done in view of the fact that he was retiring voluntarily.5. In his application for voluntary retirement, Respondent No. 3 had given his contact address asR.K. Sharma,R-862, New Rajinder Nagar,New Delhi-110order of the Government of India dated 2nd March, 1995 permitting Respondent No.3 to retire from service was forwarded to Respondent No.3 at the above mentioned address. It was however received back undelivered from the postal authorities with the remarks "despite repeated visits, could not be delivered to addressee as he was not available". The D.G.P., Punjab therefore deputes a Constable to deliver the Order to Respondent No.3. When the Constable goes to the above address the father-in-law of Respondent No.3 states that no officer by name R.K. Sharma stays in this house. The father-in-law further states that he knows nothing about R.K. Sharma.6. On 18th April, 1995 Respondent No.3 withdraws his request for voluntary retirement. Significantly, the address given in his letter is the above mentioned address. This shows that Respondent No.3 was purposely evading receipt of Government Order dated 2nd March, 1995. On 20th June, 1995 the Government of India rejects his request for withdrawal of voluntary retirement on the ground that the period within which such request could be made had already expired. By his letters dated 20th July, 1995 and 4th March, 1996 Respondent No.3 again requests the Government of India to allow him to withdraw his application for voluntary retirement. Surprisingly, on 14th August, 1997, the Government of India accepts the request of Respondent No.3 for withdrawal of voluntary retirement.7. At this stage it must be mentioned that documents brought on record show that between the period 15th March, 1996 and 12th August, 1997 Respondent No.3 took up employment with a foreign firm by name M/s. California Designs and Constructions Inc. and represented the firm, as its director, before various departments of the Government of Punjab and the Government of Haryana. It is being assumed that Respondent No.3 concealed this fact from the Government of India and that the Government of India accepted his request for withdrawal of voluntary retirement in ignorance of this fact.8. The Appellant therefore approached the Central Administrative Tribunal against re-induction of Respondent No.3 into service. The Appellant claims that by such re-induction his seniority in the cadre gets affected. The Government and Respondent No.3 contested the application. Before the Central Administrative Tribunal it was urged that the Appellant had no locus to challenge the action of the Government in permitting Respondent No.3 to withdraw his application for voluntary retirement. It was also urged that the Central Administrative Tribunal had to jurisdiction. The Central Administrative Tribunal negatived both these contentions. The Central Administration Tribunal holds that Respondent No.3 having left without waiting for his application to be sanctioned and Respondent No.3 having taken up employment with a foreign company amounted to severance of the relationship of master and servant. It was held that as the severance had attained finality the Government of India had no jurisdiction to pass the impugned order dated 14th August, 1997. It was held that the effect of the Order was to give lateral entry into service which was not permissible. It was held that Respondent No.3, by his conduct, having severed the relationship of master and servant could not now be allowed to come back into service. By its Order dated 3rd February, 1998 the Central Administrative Tribunal quashes the Order dated 14th August, 1997 allowing Respondent No.3 to withdraw his voluntary retirement.9. Respondent No.3 as well as the Government of India file Writ Petitions in the Punjab and Haryana High Court challenging the order dated 3rd February, 1998 passed by the Central Administrative Tribunal. On 10th September, 1998 these Writ Petitions were taken up for admission. At that stage a statement is made on behalf of Respondent No.3 (herein) that he will not claim seniority over the Appellant (herein).10. During the pendency of the Writ Petitions, the Government of India produces an affidavit of one Malkait Singh Sidhu who claimed that he was President of M/s. California Designs and Construction Inc. In the affidavit it was claimed that Respondent No.3 was not a Director in this Company. It was claimed before the High Court that Respondent No.3 had not taken employment with this firm. That this was a false stand came to light after arguments in the two Writ Petitions were over. The High Court has, in the impugned judgment, set out what happened. The relevant portion reads asproceeding further, we deem it proper to mention that after conclusion of the arguments, Shri P. Lal filed C.M. 27489-50 of 2000 in C.W.P. No. 6196 of 1998 for placing on record additional affidavit dated 18.11.2000 along with Annexure R1/26 to R1/29 to show that between 1995 and 1997, Shri R.K. Sharma had actively represented M/s. California Design and Construction INC for the purpose of award of contract for construction, erected and commission of ten sewage treatment plants under Yamuna Action Plan. He also filed C.M. No. 27491-92 of 2000 in C.W.P. No. 6461 of 1998 for placing on record additional affidavit dated 18.11.2000 and documents Annexure R3/26 to R3/29, C.M. NO. 28355-56 of 2000 was also filed on behalf of Shri R.K. Sharma for placing on record his affidavit dated 27.11.2000 and documents Annexures P35 to P40 to show that he was no longer Director of M/s. California Designs and Constructions IndiaNo.3 had attempted to mislead the High Court of Punjab and Haryana. He obviously had also mislead the Government of India by getting them to file, before the High Court of Punjab and Haryana, the affidavit of Malkait Singh. In any event now the Government of India and the Government of Punjab know that Respondent No.3 had not just absented himself from duty but had in fact taken up employment with a foreign firm and represented it with various departments of the State Government. Their conducted in continuing to side with Respondent No.3 is to say the least surprising.12. The High Court, after considering the submissions of the parties, negatives the contentions that the Appellant did not have locus. It is held that the Central Administrative Tribunal had jurisdiction. The High Court had adversely commented upon the conduct of Respondent No.3 in going abroad without prior permission; in remaining absent for such a long time, in taking up employment with a foreign company. The High Court then holds that as the order of the Government of India dated 2nd March, 1995 was not communicated to Respondent No. 3 the relationship of master and servant continued. It is held that Respondent No.3 was therefore entitled to treat himself as continuing in service and was not even required to submit an application for withdrawal of his request for voluntary retirement. The High Court holds and the decision of the Government of India to allow Respondent No.3 to withdraw the request for voluntary retirement cannot be termed as illegal or vitiated due to want of jurisdiction. The Writ Petitions were accordingly allowed. The High Court however directed that disciplinary proceedings be held against Respondent No. 3. Even though, on 10th September, 1998 a statement had been made that Respondent No.2 would not claim seniority over the Appellant, the High Court in the impugned Order has held asthe result, the writ petitions are allowed. Order dated 3.2.1998 passed by the Tribunal is set aside. This shall be subject to the direction that Shri R.K. Sharma shall not be assigned seniority over Shri P. Lal and other officers, who had been promoted during his absence from duty till the government takes a comprehensive decision on the allegations of his absence from duty, going abroad without prior permission, taking up employment with a foreign company and joining the Board of Directors of a company registered in India and he is exonerated in the departmental enquiry, if any, held in thesenow the High Court has left it open for Respondent No.3 to claim seniority if he is exonerated in the departmental enquiry or if the departmental enquiry is dropped. As is being set out hereinafter there is already a proposal to drop the departmental enquiry.The appellant has now produced a letter dated 15th March, 1996 addressed by Respondent No.3 as a Director of M/s. California Design and Construction INC. to the Superintendent Engineer to the Public Health Circle, Faridabad. This shows that even on 15th March, 1996 Respondent No.3 was a director of this foreign firm. His statement of oath before this Court that he took employment with effect from 28th March, 1996 is shown to be patently false. It is clear that he was employed with the foreign firm even prior to 28th March,No.3 had also filed a Special Leave Petition before this Court challenging that portion of the impugned judgment which held that the Appellant had locus; that the Central Administrative Tribunal had jurisdiction and the directions to hold a disciplinary enquiry against him. The Special Leave Petition was dismissed by an Order dated 10th December, 2001. This Court however clarified that the enquiry must be conducted without being influenced by any observations made by the High Court. Thus so far as Respondent No.3 is concerned the findings in the impugned judgment, that the Appellant had locus and that the Central Administrative Tribunal had jurisdiction, have become final.16. In these Special Leave Petitions by Order dated 11th January 2002, this Court stayed the impugned judgment. This necessarily meant that the judgment of the Central Administrative Tribunal became effective again. The effect of the order of the Central Administrative Tribunal is that Respondent No.3 ceased to be in service. In view of the above position the Principal Secretary to the Government of Punjab, by an Order dated 23rd January, 2002, held that Respondent No.3 ceased to be in service with immediate effect in view of the order of this Court. Surprisingly another Principal Secretary, one Mr. S.K. Singh, by an Order dated 31st March, 2002 withdraws the earlier order dated 23rd January, 2002. Respondent No.3 immediately assumes charge as Inspector General of Police on 31st March, 2002. By an Order dated 18th April, 2002 he is posted against the vacant post of ADGP/Internal Vigilance Cell to look after the Litigation Wing and Internal Vigilance Cell. On 10th May, 2002 these facts are then brought to the notice of this Court. This Court therefore directs the Principal Secretary to state on affidavit as to how the Order dated 31st March, 2002 came to be passed in violation of the order passed by this Court on 11th January, 2002. The Principal Secretary has filed an affidavit dated 13th June, 2002 stating that the earlier Order of 23rd June, 2002 had been passed by the Principal Secretary to the Government of Punjab, but that on a representation submitted by Respondent No.3 it was found that the power to relieve an officer from service rests with the Government of India and not with the Government of Punjab. It was stated that it was found that the Order dated 23rd January, 2002 was without jurisdiction and deserved to be withdrawn and was therefore withdrawn. It was stated that the subsequent order was passed after obtaining legal advice. The reasoning given is entirely untenable. The effect of the order of the Central Administrative Tribunal was that Respondent No.3 ceased to be in service. Respondent No.3 was not being relieved by Order dated 23rd January, 2002. The Order dated 23rd January, 2002 merely informed Respondent No.3 that he had ceased to be in service. In any event, in view of the stay order, Respondent No.3 could not have been given a posting order. By an Order dated 24th May, 2002 the posting order of R.K. Sharma has been held in abeyance pending decision in these Appeals. But Respondent No.3 is still allowed to continue to service in breach of an interim order of this Court and in violation of the order of the Central Administrative Tribunal.17. One last fact which requires to be mentioned is that as per the direction of the High Court a charge-sheet has been issued against Respondent No.3 on 27th September, 2001. As has now become common for Respondent No.3, he again applies for voluntary retirement on 10th October, 2001. The D.G.P. again recommends that the charge sheet be dropped as he has applied for voluntary retirement. Following the recommendation for dropping of the charge sheet Respondent No.3 has, on 26th November, 2001, again withdrawn his request for voluntary retirement.

Court's reasoning:
It is held that theHigh Court erred in coming to the conclusion that the relationship of master and servant had not been terminated. As has been set out hereinabove, the relationship of master and servant had been terminated before Respondent No.3 sought to withdraw his request for voluntary retirement on 18th April, 1995. Once relationship of master and servant had been severed and/ or terminated, by this back door method, Respondent No.3 could not get back to service. The Order of the Government of India dated 14th August, 1997 cannot be sustained and was correctly quashed by the Central Administrative Tribunal. In this view of the matter the impugned judgment requires to be and is hereby set aside. The Order of the Central Administrative Tribunal dated 3rd February, 1998 is restored.