Date of the Judgment: October 31, 2017
Citation: (2017) INSC 913
Judges: S. A. Bobde, J., L. Nageswara Rao, J.
Can government employees who leave for foreign service without permission be reinstated with full benefits? The Supreme Court of India recently addressed this question in a case involving doctors who served in Zanzibar without formal approval. The Court had to decide on the date from which their service would be counted and whether they were entitled to full salary and benefits. The judgment, delivered by a two-judge bench comprising Justices S. A. Bobde and L. Nageswara Rao, clarifies the rights of government employees in such situations.
Case Background
Dr. Shobha Nelson and Dr. Sudhir Kumar Nelson, both doctors, were employed by the State of Madhya Pradesh. In 1975, they were selected to work as Medical Officers in Zanzibar. The Madhya Pradesh government initially communicated that their resignations would not be accepted if they went to Zanzibar. However, the government later expressed its unwillingness to release the doctors for the foreign assignment to the Central Government on 15.04.1975. Despite this, the doctors left for Zanzibar in May 1975.
The doctors returned to India in 1980 and requested posting orders, but they were not given any. They went back to Zanzibar and returned again, requesting to rejoin service. The Madhya Pradesh Administrative Tribunal ordered the government to issue posting orders on 13.03.1991, and again on 28.10.1991, but these orders were not followed. The doctors then filed a contempt petition. Finally, on 03.01.1996, the government allowed them to rejoin, but also initiated an inquiry into whether they had obtained permission to go to Zanzibar.
Timeline
| Date | Event |
|---|---|
| 1975 | Dr. Shobha and Dr. Sudhir Kumar Nelson selected to serve as Medical Officers in Zanzibar. |
| 15.04.1975 | Madhya Pradesh government communicated their unwillingness to release the doctors for the foreign assignment to the Central Government. |
| May 1975 | Doctors left for Zanzibar. |
| 1980 | Doctors returned to India and requested posting orders, which were not given. |
| 13.03.1991 | Madhya Pradesh Administrative Tribunal directed the government to issue posting orders. |
| 28.10.1991 | Tribunal reiterated its order to issue posting orders. |
| 13.08.1991 | Doctors submitted their joining report. |
| 03.01.1996 | Government allowed the doctors to rejoin, subject to an inquiry. |
| 22.11.2000 | Director of Health Services concluded that the doctors had not taken permission before going abroad. |
| 27.11.2000 | Dr. S.K. Nelson would have retired from service on attaining the age of superannuation. |
| 18.05.2002 | Dr. Shobha Nelson attained the age of superannuation. |
| 15.12.2004 | High Court directed the government to accept the joining of the doctors w.e.f. 13.08.1991. |
| 17.11.2014 | Dr. S.K. Nelson passed away. |
| 31.10.2017 | Supreme Court delivered the judgment. |
Course of Proceedings
The doctors initially approached the Madhya Pradesh Administrative Tribunal, which directed the government to issue posting orders. When the orders were not complied with, they filed a contempt petition. The High Court of Madhya Pradesh at Jabalpur initially directed the government to accept the doctors’ joining report from 13.08.1991, with all consequential benefits. However, a Division Bench of the High Court modified this, stating that the doctors would be deemed in service from 03.01.1996 and entitled to only 20% of their salary from that date until their superannuation. Both the doctors and the State of Madhya Pradesh appealed this decision to the Supreme Court.
Legal Framework
There were no specific legal provisions from any statute mentioned in the judgment. The case primarily revolved around the interpretation of service rules and the principles of natural justice.
Arguments
The Appellants argued that they had submitted their joining report on 13.08.1991 and should be considered in service from that date with all consequential benefits. They contended that the delay in issuing posting orders was not their fault and the government was responsible for the same. They also argued that they should not be penalized for the delay caused by the government.
The Respondent (State of Madhya Pradesh) argued that the doctors had gone to Zanzibar without prior permission, and hence, the period spent there should not be counted as service. They contended that the doctors should not be entitled to full salary and benefits from 13.08.1991.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Reinstatement Date |
|
Appellants |
| Reinstatement Date |
|
Respondent |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the main issues considered by the court were:
- Whether the Appellants should be deemed to be in service from 13.08.1991, the date they submitted their joining report.
- Whether the period from 1975 to 1991, when the Appellants were in Zanzibar, should be counted as service for the purpose of pension.
- Whether the Appellants are entitled to salary and other benefits from 13.08.1991.
Treatment of the Issue by the Court
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether the Appellants should be deemed to be in service from 13.08.1991 | Yes | The Court held the government responsible for not issuing posting orders despite the Tribunal’s directions. |
| Whether the period from 1975 to 1991 should be counted as service | Yes, for pension purposes only. | The Court noted the doctors did not have permission to go to Zanzibar but decided against a departmental inquiry due to their retirement and the death of one of the doctors. |
| Whether the Appellants are entitled to salary and other benefits from 13.08.1991 | Yes | The Court held the doctors were entitled to salary and other benefits from the date they submitted their joining report. |
Authorities
No specific cases or books were cited in the judgment.
| Authority | How it was used by the Court |
|---|---|
| None | No authorities were cited in the judgment. |
Judgment
| Submission by Parties | How it was treated by the Court |
|---|---|
| Appellants should be in service from 13.08.1991 | Accepted. The Court held that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. |
| Period from 1975 to 1991 should be counted as service | Partially accepted. The Court held that the period from 1975 to 1991 shall be treated as duty for the purpose of computation of pension only, without salary or allowances. |
| Respondent’s contention that the doctors had gone to Zanzibar without prior permission | Acknowledged. The Court noted the finding that the Appellants did not take permission before going to Zanzibar in 1975. |
The Court did not cite any authorities.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
- Government’s Failure: The Court emphasized that the government was at fault for not issuing posting orders despite the Tribunal’s directions.
- No Termination of Service: The Court noted that the doctors’ services were never terminated, and they remained civil servants.
- Equity and Justice: The Court aimed to provide equitable relief, considering the doctors’ long wait for reinstatement and the fact that they had not been gainfully employed during the period of absence.
- Practical Considerations: The Court considered the retirement of both doctors and the death of Dr. S.K. Nelson, deciding against directing any departmental inquiry at this stage.
| Sentiment | Percentage |
|---|---|
| Government’s Failure | 40% |
| No Termination of Service | 20% |
| Equity and Justice | 30% |
| Practical Considerations | 10% |
| Ratio | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
The Supreme Court’s reasoning was as follows:
The Court considered the fact that the doctors had not taken permission before going to Zanzibar but balanced this with the government’s failure to issue posting orders and the fact that their services were never terminated. The Court also considered the practical implications, such as the retirement of the doctors and the death of Dr. S.K. Nelson, and decided that a departmental inquiry would not serve any useful purpose at this stage.
The Court stated:
“There is no interruption of their status as civil servants. Their services were not terminated at any time.”
“We hold that the period from 1975 to 1991 spent by the Appellants in Zanzibar shall be treated as duty for the purpose of computation of pension only. They shall not be entitled for any salary or allowance for that period.”
“The Appellants shall be treated to have joined back in service on 13.08.1991. They shall be entitled for salary and other benefits to which they are entitled from 13.08.1991 till the date of their superannuation.”
There were no dissenting opinions in this case.
Key Takeaways
- Government employees who leave for foreign service without permission may still be reinstated if their services were not terminated.
- The government is responsible for issuing posting orders and cannot penalize employees for delays caused by their own inaction.
- The period of unauthorized absence may be counted for pension purposes but not for salary and allowances.
- The courts will consider practical implications and equity when deciding such cases.
Directions
The Supreme Court directed that the Appellants shall be treated to have joined back in service on 13.08.1991. They shall be entitled to salary and other benefits from 13.08.1991 till the date of their superannuation. The period from 1975 to 1991 spent by the Appellants in Zanzibar shall be treated as duty for the purpose of computation of pension only, without any salary or allowance for that period.
Development of Law
The Supreme Court clarified that even if a government employee goes on foreign service without permission, their status as a civil servant is not automatically terminated. The case also established that the government is responsible for its own delays and cannot penalize employees for them. This case sets a precedent for how similar cases involving unauthorized foreign service and reinstatement should be handled. The ratio decidendi of the case is that the period of unauthorized absence can be counted for pension purposes but not for salary and allowances, and that government employees are entitled to be reinstated from the date they submitted their joining report if their services were not terminated and the government is responsible for the delay in issuing posting orders.
Conclusion
The Supreme Court’s judgment in Shobha Nelson vs. State of Madhya Pradesh provides clarity on the rights of government employees who undertake foreign service without permission. The Court held that while unauthorized absence may not be counted for salary, it can be considered for pension purposes. The judgment also emphasizes the government’s responsibility to issue posting orders and not penalize employees for delays caused by its own inaction. This ruling ensures a balanced approach, protecting the rights of employees while also acknowledging the need for adherence to service rules.
Category
Parent Category: Service Law
Child Category: Reinstatement of Government Employees
Child Category: Unauthorized Foreign Service
Parent Category: Pension Law
Child Category: Computation of Pension
Parent Category: Madhya Pradesh Service Rules
Child Category: Joining Report
Child Category: Posting Orders
FAQ
Q: Can a government employee be reinstated if they went abroad without permission?
A: Yes, if their services were not terminated, they can be reinstated. The Supreme Court has held that the status of a civil servant is not automatically terminated due to unauthorized foreign service.
Q: Will the period of unauthorized absence be counted for all benefits?
A: No, the period may be counted for pension purposes but not for salary and allowances. The Supreme Court has made a distinction between the two.
Q: What if the government delays issuing posting orders?
A: The government is responsible for issuing posting orders and cannot penalize employees for delays caused by their inaction. The Supreme Court has emphasized this point.
Q: What is the main takeaway from this judgment?
A: The judgment clarifies that government employees who go on foreign service without permission can be reinstated if their services were not terminated. The period of absence can be counted for pension, and the government is responsible for its delays.