@JUDGMENTTAG-ORDER
Sanjiv Khanna, J.@mdashIn the present writ petition the assail is to the order dated 19th April, 2010 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short, the Tribunal) allowing O.A. No. 2129/2008 filed by Dr. Dal Chand, the Respondent herein. By the impugned order, the penalty of removal from service has been quashed and it has been directed that the Respondent would be considered to have retired from service three months from the date of notice of voluntary retirement dated 30th July, 2004. It has been directed that the retirement and pensionary benefits of the Respondent will accordingly be calculated and released.
2. Learned Counsel for the Petitioner has submitted that the Respondent had proceeded on foreign assignment with the Government of Oman in the Royal Oman Police Hospital Authority in 1988 for a period of two years and thereafter this period was extended up to 5th March, 1993. It is submitted that the Respondent had reported to India only in June, 1999 and thereafter disciplinary proceedings were initiated after following due procedure and the penalty order for removal from service was passed on 31st July, 2007.
3. One fact may be noticed that during the pendency of the enquiry proceedings, the Respondent had submitted an application for voluntary retirement on 30th July, 2004. This application was sent to the Union Public Service Commission (UPSC) and was not accepted. Thereafter, UPSC recommended removal from service by giving the following reasons:
4.2 The Commission further observed that it is a fact that no realistic efforts were made by the Ministry of Health & F.W. with the Indian Embassy in Muscat or with the Omanese authorities or with the Ministry of External Affairs, New Delhi for the release of the CO. However, it is also a fact that the C.O. was granted extension of deputation to Oman till 05.03.1993 with the stipulation that no request for further extension would be entertained. He was also required to make arrangement for his release and reversion to India by 05.03.1993. Therefore, C.O''s contention that he had to continue with ROP Oman as he was not relieved is of no consequence as the onus to rejoin duty in India by 05.03.1993 lay on him. Inspite of this, the C.O. preferred to remain at ROP Hospital and was relieved by the Sultanate of Oman on 31.05.1999. Thereafter, he joined his duty in India. Thereafter, as per available records, the C.O. has submitted a notice seeking voluntary retirement and stopped coming to office forthwith. The Commission, thus, is of the considered opinion that the C.O. is not interested in continuing his services with Govt. of India. Keeping this in view, the Commission hold the charge as proved.
(Emphasis added).
4. It is accepted and admitted that the Respondent was sent on foreign assignment to Oman with permission of Ministry of Health and Family Welfare. The foreign assignment was in a Government Hospital of the Oman Police. It was the case of the Respondent that the Enquiry Officer had accepted that the Respondent could not come back to India because the Oman Government had refused to grant permission and relieve him. It is a case of the Respondent that he was entrusted and given duty to take medical care of the Sultan of Oman and even the Embassy of India at Sultanate of Oman was informed by the government authorities of Oman that the Respondent cannot be relieved and allowed to go back to India.
5. The Enquiry Officer had accepted the defence of the Respondent that he was barred and prevented from leaving Oman. He had also observed that Dr. Muneedra Gupta, Senior Medical Officer, who was deputed to replace the Respondent, did not join at Oman. However, the Disciplinary authority issued a note of disagreement and thereafter as noticed above the order of penalty from removal of service was passed.
6. As noticed above, the UPSC in paragraph 4.2 of their report has not examined the defence of the Respondent that he was not relieved by the Sultanate of Oman. The UPSC has recorded that the Respondent had submitted a notice seeking voluntary retirement and thereafter stopped coming to office forthwith and, therefore; it is considered that the Respondent was not interested in continuing his services. Learned Tribunal had noted that there was correspondence for further extension of the Respondent''s foreign assignment and it is not as if the Petitioners were not aware of the complications and difficulties which the Respondent had faced as he was not relieved from the State Police Hospital in Oman as he was treating the Sultan of Oman. In this regard, it will be appropriate if we reproduce the facts stated in paragraph 3 of the impugned order, which read as under:
3. We have also taken note of the letter written by the Counselor (P) of the Embassy of India at the Sultanate of Oman, which was written on 12.03.1997 (sic) after the Applicant had been served the Memorandum of charge dated 19.02.2007. The relevant portion of the letter is reproduced below:
Dr. Chand has been working in a hospital where all the VVIPS are treated and we have written to the Ministry of Health and Family Welfare, New Delhi as well as the Ministry of External Affairs, New Delhi several letters for granting him extension after the period of 5 years but so far we have neither received any reply nor any acknowledgement from the Ministry. Being an experienced doctor in that hospital, the Government of the Sultanate of Oman were not in a position to relieve him as especially he was taking medical care of His Majesty the Sultan of Oman.
Keeping in mind the cordial relations between the two countries and for no fault of Dr. Chand as all his correspondence was routed through this Embassy, I shall be grateful if his period after 5 years is regularized and he may allowed to stay here upto 31st August, 1997 and disciplinary action as mentioned in your above letter may be condoned.
The Royal Oman Police, by its letter dated 20.08.1997 had refused to relieve the Applicant by stating:
I would like to inform you that due to prevailing exigencies at the ROP Hospital, it has become necessary to retain your services at least till 14 March, 1998. As such I am pleased to inform you that your present contract has been extended till 14 March 1998, which might be renewed for a further period.
We do appreciate the services you have rendered to the Royal Oman Police` in various fields especially the Emergency Medical Services and the Medivac cover, besides you regular surgical services. As you very well know, our Omani doctors, who were scheduled to return to Oman could not do so due to their further studies oversees which they are likely to complete by mid 1998. Although, we are aware of your commitments in India, to rejoin you duties, we have, at present, no alternative but to request you to continue at least till 14 March 1998, which we hope you will accept.
The Applicant''s contract was further extended up to 14.03.1999 by the Royal Oman Police by letter dated 4.11.1997, placed at page 165 of the paper book. The Applicant kept the first Respondent au fait with the developments by his letters dated 28.06.1994, 15.01.1996, 12.02.1997 and 4.11.1997, placed on record in the rejoinder affidavit. On 4.11.1997 he informed the first Respondent that:
Although I would have joined my services back in India, in view of the prevailing exigencies at the ROP Hospital, I am compelled to continue my services till they release me. I would, therefore, be most grateful if kind consideration could be given to extend my deputation with the Royal Oman Police till 14 March, 1999.
7. Attention of the learned Counsel for the Petitioner was also drawn to the findings recorded by the Tribunal in paragraph 5 of the impugned order, which for the sake of convenience, are reproduced below:
With these facts in the background, the learned Counsel for the Applicant has argued that his overstay at Oman can neither be termed as willful nor as unauthorized. He was caught in a bind and could not get out. The Ministry failed to find suitable replacement in his place. There was pressure from the Embassy and Omani authorities. The learned Counsel has pointed out that the Applicant could not just run away from Oman. In paragraph 9 of the abortive appeal the Applicant has explained the procedure for leaving Oman, which reads thus:
9. As per the established procedure, I was required to obtain clearance from the following offices of Govt. of Oman namely Division Formation Mess, Dte. General of Supplies & Logistics/Project Maintenance, Directorate of Police Clubs, Directorate of Social Welfare, Royal Oman Police Pensions Trust LLC, Dte. Genl. Of information Technology and Dte. Genl. Of Human resources. After obtaining said clearances, I had to obtain an EXIT PERMIT from Omani Authorities in respect of all members of my family staying there in Oman. In absence of the abovesaid clearances/documents, it is not possible to leave that country. There is no way to run away from that Country in absence of necessary administrative requirements/clearances
(Emphasis added)
It is argued that the Applicant simply could not have got all the aforementioned approvals in the teeth of the resistance by the Government of Oman. The Indian Embassy was in touch with the first Respondent, who was trying, as late as November 1995, to get an extension for the Applicant by writing to the DoP&T.
8. Learned Counsel for the Petitioner was repeatedly asked whether the Government of India had written to the Government of Oman for relieving the Respondent, and permitting him to return to India. Learned Counsel for the Petitioner could not point out any letter or document to the said effect. He could not point out any correspondence and steps taken by the Petitioner with the Government of Oman to relieve the Respondent and allow him to leave Oman. It is clear from the aforesaid that the Government of Oman was not relieving the Respondent as he was treating the Sultan of Oman. The letters in this regard were written to the Embassy of India at Sultanate of Oman and were sent to the Government of India.
9. In these circumstances, we do not find any fault in the order passed by the Tribunal and the writ petition is dismissed in limine. At this stage, learned Counsel for the Petitioner submitted that the time for implementation of the order dated 19th April, 2010 may be extended. In view of the request made, we grant two months'' further time to the Petitioner to implement the order dated 19th April, 2010.
