OA No. 4319/2011. Case: Dinesh Kumar Upadhyay Vs Union of India through Secretary, Ministry of Environment and Forests, State of Tripura through Secretary, Department of General Administration (Personnel & Training) Secretariat and Under Secretary, Department of General Administration (Personnel & Training) Secretariat. Central Administrative Tribunal
| Case Number | OA No. 4319/2011 |
| Counsel | For Appellant: Ms. S. Janani and Sh. Sunando Raha, Advocates and For Respondents: Sh. Ritu Bisbas, Advocate |
| Judges | Syed Rafat Alam, J. (Chairman) and Dr. B.K. Sinha, Member (A) |
| Issue | Constitution of India - Articles 311, 311(2) |
| Judgement Date | May 09, 2014 |
| Court | Central Administrative Tribunal |
Order:
Dr. B.K. Sinha, Member (A), (Principal Bench, New Delhi)
1. The applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 assailing the order of the respondent no. 3 dated 09.04.2008 (Annexure P-1) considering the period of absence of the applicant as his deemed resignation.
2. The applicant has prayed for the following relief(s):-
That the Hon'ble Tribunal may be kindly pleased to call for the entire records pertaining to the case of the petitioner for its kind perusal.
That this Hon'ble Tribunal may kindly be pleased to set aside and quash the impugned order dated 09.04.2008 passed by the respondent no.3 (Annexure P/11).
That this Hon'ble Tribunal may kindly be pleased to direct the respondent reinstate the petitioner into his services with all consequential benefits.
That the Hon'ble Court may be pleased to grant any other relief which the Hon'ble Court deems fit and proper in the facts and circumstances of the present case.
3. The case of the applicant, in very brief, is that he is an Officer of 1989 batch of the Indian Forest Service allocated to Tripura cadre. During the course of his service, the applicant was kidnapped and sustained gun- shot injuries in his chest by the terrorist of the National Liberation Front of Tripura in the year 1995. Requiring him to undergo a prolonged medical treatment, the applicant was transferred on inter-State deputation to Madhya Pradesh, his home State initially for a period of three years which was subsequently extended by another two years on the recommendations of the respondent no.2. Following the bifurcation of the State of Madhya Pradesh, the applicant was allocated to the State of Chhattisgarh where he completed his deputation in the year 2001. The case of the applicant is that in the meantime, he had also submitted an application for permanent cadre change from Manipur-Tripura to Madhya Pradesh on humanitarian and medical grounds as the warm and humid climate of Tripura was not conducive to his health. The applicant has submitted a medical certificate signed by two doctors of Bilaspur, namely, Dr. R.S.L. Tripathi and Dr. Ram Tiwari. The same was forwarded to the Government of India by the respondent no.2. However, the Government of India vide its order dated 08.09.1998 turned the same down on the ground that inter-cadre transfer was permissible only in case of marriage with an AIS officer to any State other than the home State (Annexure R-3 of the paper book). The applicant filed a Writ Petition No. 43/2000 before the Hon'ble High Court of Chhattisgarh against the afore decision of the Government of India, which was dismissed vide order dated 25.06.2001. The Government of Chhattisgarh thereafter intimated that the applicant was relieved w.e.f. 28.06.2001 in compliance to the orders of the Hon'ble High Court of Chhattisgarh. However, the applicant did not report to his parent cadre. Instead, he filed an SLP before the Hon'ble Supreme Court of India bearing SLP No. 10869/2001. The Hon'ble Supreme Court, during the pendency of the SLP, directed the respondent no.1 to consider the request of the applicant sympathetically in light of the new guidelines and the circumstances under which the prayer had been made. The respondent no.1 intimated vide its letter dated 03.05.2002 that the ACC had rejected the request of the applicant for a permanent cadre transfer from Manipur-Tripura to Chhattisgarh, upon the receipt of which, the Hon'ble Supreme Court was pleased to dismiss the SLP vide its order dated 10.05.2002 (Annexure R-6 of the paper book). However, Government of India had extended the deputation of the applicant for a further period of one year in Chhattisgarh on compassionate grounds.
4. The applicant had filed OA No. 275/2005 for implementation of the undertaking given by the respondent no.1 before the Hon'ble Supreme Court and for favourably considering the case of the applicant for inter-State cadre transfer. The applicant submits that while the matter was sub judice before the Jabalpur Bench of this Tribunal, the respondent no.2 served a notice dated 02.03.2006 as to why the unauthorized absence of the applicant for a period of more than one year should not be treated as his resignation from service under Rule 7(2)(a) of the All India Service (Leave) Rules, 1955 [hereinafter referred to Leave Rules, 1955] with a direction to submit his reply within a period of fifteen days from the date of receipt of the notice. The applicant thereupon submitted his representation mentioning therein his own injuries sustained during the course of his duty on account of the negligence on part of the police administration and informed that he was awaiting the implementation of the ACC resolution. For the sake of greater clarity, concluding paragraph of the representation is extracted as hereunder:-
I am not resigning from the service by way of unauthorized absence for a period of more than one year, but am waiting with bonafide intentions for implementation of the ACC decision, which was taken in keeping in consideration the circumstances and that the Hon'ble Supreme Court was also appraised of the same by the Govt. of India.
5. The respondents did not find this representation satisfactory and directed him to submit a second representation within 30 days of the receipt of the order vide OM dated 09.08.2007. In response to this, the applicant vide his communication dated 06.10.2007 expressed his willingness to join his duties. The respondent no.2 vide communication dated 26.10.2007 directed the applicant to report for duty to the parent cadre within a period of 30 days from the receipt of the afore communication. On 14.12.2007, another letter was sent to the applicant in the following...
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