1. Government employees went on foreign service without permission — dispute over date of re-joining service and consequential benefits following non-implementation of tribunal orders. (Para 1 , 3 , 4 , 5 , 6 )
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2017 Supreme(SC) 1053
SUPREME COURT OF INDIA
S.A. Bobde, L. Nageswara Rao, JJ.
Shobha Nelson - Appellants
Versus
The State of Madhya Pradesh & Ors. - Respondents
Civil Appeal No. 17425 of 2017 (Arising Out of Special Leave Petition (Civil ) No.18737 of 2007) With Civil Appeal No. 17426 of 2017 (Arising Out of Special Leave Petition (Civil) No.19004 of 2007), Civil Appeal No.17428 of 2017 (Arising Out of Special Leave Petition (Civil) No.23332 of 2007), Civil Appeal No. 17427 Of 2017 (Arising Out of Special Leave Petition (Civil) No.21415 of 2007)
Decided On : 31-10-2017
Important Points
IMPORTANT POINT
In absence of termination of service following departmental enquiry, or treating any period of service as unauthorized absence, employees cannot be denied any service benefit for any part of their service.
In absence of termination of service following departmental enquiry, or treating any period of service as unauthorized absence, employees cannot be denied any service benefit for any part of their service.
Subject
Employment Law - Government Service
Headnote
Service law – Foreign service – Appellants permitted to go to foreign country in public interest – Appellants not taking permission to leave before actually going – Serving in foreign country from 1975 to 1991 – Submitting joining report in 1991 – Not given posting orders despite tribunal’s direction – Joining accepted in 1996 after orders of Tribunal in contempt proceeding – Joining subject to departmental proceeding – Respondents neither treating period from 1975 to 1991 as unauthorized absence nor holding any enquiry – Appellant’s services never terminated – Appellants held entitled to service from 1991 – Period from 1975 to 1991 held on duty but only for computation of pension. (Para 10, 11)
Facts of the case:
The appellant Dr. Shobha Nelson was a Lecturer in Gynaecology while her husband Dr. Sudhir Kumar Nelson was a Surgeon in the Cancer Hospital, Medical College, Jabalpur. The appellants went to Zanzibar in 1975 on foreign service in public interest, while they were in Government service of the State of Madhya Pradesh.
Though they had submitted a joining report on 13.08.1991, they were allowed to join back in Government service only from 03.01.1996.
Aggrieved, the apppellants approached the High Court and the Writ Petitions filed by them were disposed of by the High Court with a direction to the Respondents therein to accept the joining report of the writ petitioners w.e.f. 13.08.1991 with consequential benefits.
The State of Madhya Pradesh filed Writ Appeals which were allowed in part holding that the Appellants shall be deemed to be in service w.e.f. 03.01.1996 and entitled to 20 per cent of their salary from 03.01.1996 till the date they attained their superannuation.
Finding of the Court:
Having never been terminated or no period treated as unauthorized absence, appellants are entitled to be treated as always been on duty.
Result: Appeals disposed of.
Legal Category Hierarchy
Advocates Appeared:
For the Appellants :- Dr. Kailash Chand, Adv.
For the Respondents:- Mishra Saurabh, Adv.
For the Appellants :- Dr. Kailash Chand, Adv.
For the Respondents:- Mishra Saurabh, Adv.
Table of Contents
2. Whether employees are deemed in service from the date of joining report or from the date of the subsequent government order. (Para 1 , 5 )
3. Respondent held responsible for failing to issue posting orders despite tribunal directions; status as civil servants remained uninterrupted despite absence. (Para 7 , 10 )
4. Absence without permission may be treated as duty for pension computation in exceptional circumstances of retirement, while salary is denied for the unauthorized period. (Para 11 )
5. Joining date fixed as 13.08.1991 with full benefits; period of foreign absence treated as duty for pension purposes only. (Para 11 , 12 )
6. Does the failure of the government to issue posting orders after a tribunal's direction affect the deemed date of joining?
Yes. If the government is responsible for not issuing posting orders despite directions, the employees are entitled to the benefit of joining from the date they originally submitted their joining report. (Para 7 , 10 )
7. How is a period of foreign service without prior permission treated regarding salary and pension upon re-joining?
Such a period may be treated as duty for the purpose of computing pension, but the employees are not entitled to salary or allowances for the period of unauthorized absence. (Para 11 )
8. Does the lack of a formal termination order maintain the status of a civil servant during a period of absence?
Yes. If there is no interruption of status and services were not terminated, the individual remains a civil servant, even if the period of absence is later scrutinized. (Para 10 )
JUDGMENT
L. Nageswara Rao, J.
Leave granted.
Dr. Shobha Nelson and Dr. Sudhir Kumar Nelson went to Zanzibar in 1975, while they were in Government service of the State of Madhya Pradesh. Though they had submitted a joining report on 13.08.1991, they were allowed to join back in Government service only from 03.01.1996. Aggrieved, Dr. Shobha Nelson and her husband Dr. S.K. Nelson approached the High Court of Madhya Pradesh at Jabalpur. The Writ Petitions filed by them were disposed of by the High Court with a direction to the Respondents therein to accept the joining report of the writ petitioners w.e.f. 13.08.1991 with consequential benefits. The State of Madhya Pradesh filed Writ Appeals which were allowed in part by a Division Bench of the High Court. The Division Bench held that the Appellants i.e. Dr. Shobha Nelson and Dr. S.K. Nelson shall be deemed to be in service w.e.f. 03.01.1996 and entitled to 20 per cent of their salary from 03.01.1996 till the date they attained their superannuation. Dr. Shobha Nelson and Dr. S.K. Nelson filed Civil Appeals assailing the legality of the said judgment of the High Court. The State of Madhya Pradesh also filed two Civil Appeals having been aggrieved by the same judgment.
2. Dr. S.K. Nelson was a Surgeon in the Cancer Hospital, Medical College, Jabalpur. Dr. Shobha Nelson, his wife was a Lecturer in Gynaecology, Cancer Hospital, Medical College, Jabalpur. For the sake of convenience Dr. Shobha Nelson and Dr. S.K. Nelson will be referred to as the Appellants and the State of Madhya Pradesh as the Respondent.
3. The Government of Madhya Pradesh informed the Appellants that they have been selected by the Zanzibar Government to serve as Medical Officers and they will be permitted to go to Zanzibar on Foreign Service in public interest. They were also told that their resignation from State Government service during their stay abroad would not be accepted. The Appellants were informed that they would be permitted for the foreign assignment after the completion of required formalities. The Respondent communicated their unwillingness to release the Appellants for the foreign assignment to the Central Government on 15.04.1975. The Appellants left India and started working in Zanzibar from May, 1975. According to the Appellants, they returned to India and requested the Respondent to give them posting orders in 1980. As they were not given posting orders by the Respondent they went back to Zanzibar. They returned to India and requested the Respondent to permit them to join back in service. As their request was not acceded to, they approached the Madhya Pradesh Administrative Tribunal. An interim order was passed by the Tribunal on 13.03.1991 directing the Respondent to issue posting orders to the Appellants. Due to the non compliance of the direction in the order dated 13.03.1991 of the Tribunal which was reiterated in another order dated 28.10.1991, the Appellants filed a contempt petition before the Tribunal.
4. By an order dated 03.01.1996, the Under Secretary, Medical Education Department, Government of Madhya Pradesh permitted the Appellants to join their duties in their original posts. It was mentioned in the said proceeding that an inquiry will be conducted to find out whether the Appellants took prior permission before leaving for Zanzibar on deputation. In case the Appellants had gone abroad without seeking permission from the Government of Madhya Pradesh, the period spent by them in Zanzibar will be treated as 'period of absence' and a departmental inquiry would be initiated against them for going to a foreign country without taking permission from the competent authority.
5. The Director of Health Services, Madhya Pradesh conducted an inquiry and held that the Appellants did not seek permission before going on deputation to a foreign country. The Appellants filed Writ Petitions 15094 of 2003 and 15095 of 2003 seeking a direction to the Respondent to permit them to join w.e.f. 13.08.1991 with
