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Friday, July 26, 2013

grant of study leave = whether the appellant-institute is justified, in directing the respondent to refund the entire amount of Rs.12,32,126/- paid to him towards salary and other allowances for pursuing Ph.D studies at IIT, Kanpur, on failure to produce the certificate of obtaining the Ph.D, for which study leave was granted.= A Government servant or person like the respondent is given study leave with salary and allowances etc. so as to enable him to complete the course of study and to furnish the certificate of his successful completion, so that the institute which has sanctioned the study leave would achieve the purpose and object for granting such study leave. The purpose of granting study leave with salary and other benefits is for the interest of the Institution and also the person concerned so that once he comes back and joins the institute the students will be benefited by the knowledge and expertise acquired by the person at the expense of the institute. A candidate who avails of leave but takes no interest to complete the course and does not furnish the certificate to that effect is doing a disservice to the institute as well as the students of the institute. In other words, such a person only enjoys the period of study leave without doing any work at the institute and, at the same time, enjoys the salary and other benefits, which is evidentially not in public interest. Public money cannot be spent unless there is mutual benefit. Further, if the period of study leave was not extended or no decision was taken on his representation, he could have raised his grievances at the appropriate forum. 16. We notice that the appellant-institute has already recovered an amount of Rs.6.5 lacs as monthly installments from the salary of the respondent and the appellant-institute has also recovered an amount of Rs.1,75,000/- from the salary of the respondent and Rs.4,75,000/- from the arrears of revised scales admissible to the respondent with effect from 01.01.2006 and as such approximately Rs.6,50,000/- has been recovered from the respondent. Now the appellant-institute claims balance amount of Rs.6,18,000/-. 17. Considering the facts and circumstances of the case and considering the fact that the bond executed by the respondent is found to be vague, we find no reason for the appellant-institute to recover the balance amount of Rs.6,18,000/- from the respondent but the amount already recovered be not refunded, since public interest has definitely suffered due to non- obtaining of Ph.D by the respondent after availing of the entire salary and other benefits. We do so taking into consideration all aspects of the matter and to do complete justice between the parties. 18. Appeal is allowed to the above extent and the judgment of the learned Single Judge and Division Bench is modified accordingly and no further amount be recovered by the appellant-institute from the respondent.

                           reported in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40583               
                   Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPEALLATE JURISDICTION

                       CIVIL APPEAL NO. 5828  OF 2013
                  (Arising out of SLP(C) No.39067 of 2012)


Sant Longowal Instt. of Engg. & Tech. & Anr.       Appellant(s)

                                   Versus

Suresh Chandra Verma                               Respondent(s)



                               J U D G M E N T


K.S. Radhakrishnan, J.


      Leave granted.

2.    The question that has come up for  consideration  in  this  appeal  is
whether the appellant-institute is justified, in  directing  the  respondent
to refund the entire amount of Rs.12,32,126/- paid  to  him  towards  salary
and other allowances for pursuing Ph.D studies at IIT,  Kanpur,  on  failure
to produce the certificate of obtaining the Ph.D, for which study leave  was
granted.

3.    The appellant-institute was  established  by  the  Ministry  of  Human
Resource & Development, Government of India in the year 1989  and  has  been
fully funded by the Central Government.
The respondent joined  the  service
in  the  appellant-institute  as  Lecturer  in  Mechanical  Engineering   on
30.08.1993.
He applied for grant of study leave for pursuing  his  Ph.D  at
IIT, Kanpur.
The competent authority acceded to that  request  and  granted
three years study leave  commencing  from  24.07.1999  to  22.07.2002.  
The
respondent after executing  necessary  bond  proceeded  on  study  leave  on
24.07.1999 and three years period  was  completed  on  24.07.2002.  
Due  to
various reasons, the respondent could not complete his Ph.D studies  and  he
joined back in service as Lecturer in the Institute in November  2003.  
The
respondent was asked to produce  the  completion  certificate  of  the  Ph.D
course which respondent could not produce,  hence,  the  appellant-institute
demanded the refund of the amount of Rs. 12,32,126/- paid to him during  the
period of study for pursuing Ph.D as per the terms and  conditions  of  bond
executed by the respondent.

4.    Aggrieved by the steps taken by  the  appellant-institute  to  recover
the amount, the respondent filed Civil  Writ  Petition  No.  12555  of  2010
before the High Court of Punjab and Haryana.
Writ Petition was allowed  by  learned  Single  Judge  vide  judgment  dated
02.02.2012 quashing the demand notice and also ordered refund of the  amount
already recovered with interest from the respondent.

5.    Aggrieved by the same, the appellant preferred LPA  No.  363  of  2012
before the Division Bench of the High Court of  Punjab  &  Haryana  and  the
High Court vide judgment dated 23.08.2012 took the view that  the  appellant
could not point out any term in the bond executed by the respondent that  he
had to complete the Ph.D programme within a period of three years  and  that
the only condition was that the respondent had to serve for a period of  six
years after joining service on the expiry of the  study  leave.  The  appeal
was dismissed by the Division Bench of the High Court.


6.    Aggrieved by the judgment of the Division Bench  of  the  High  Court,
this appeal has been preferred.


7.    Shri Ajay Jain, learned counsel appearing for the appellant  submitted
that the High Court has completely misunderstood  terms  and  conditions  on
which the respondent was granted study leave which is reflected in the  bond
executed by the respondent on 5.05.1999.   Learned  counsel  submitted  that
the High Court has completely ignored the salutary principle of “no work  no
pay” and that the respondent during the period of study not only not  worked
in the appellant-institute but also was  not  successful  in  obtaining  the
Ph.D.  Consequently, neither the institute, the respondent nor the  students
have been benefited and public money has been spent for no use.


8.    Shri Himanshu Shekhar, learned counsel  for  the  respondent,  on  the
other hand, submitted that he has completed his  course  work  required  for
the Ph.D programme, completed comprehensive examination etc. but the  thesis
could not be completed due to retirement of  the  guide.   Further,  it  was
pointed out  that  the  respondent  had  also  made  a  written  request  on
24.05.2002 seeking extension of six months period  so  that  the  respondent
could  complete  his  thesis  work.   Another  representation  was  made  on
04.06.2002 and  all  those  representations  left  unattended.   Under  such
circumstances, he had to join duty without obtaining Ph.D.  Learned  counsel
also pointed out that similarly situated employee named Abanish Kumar  Singh
was provided extension of time but the same was not done in the case of  the
respondent.  Further, it was pointed out that there is no condition  in  the
bond that if the respondent could not complete  the  Ph.D  then  the  entire
salary and other benefits could be recovered from the  respondent.   Learned
counsel pointed out that the High Court has rightly  interpreted  terms  and
conditions of bond, consequently the demand made for  the  reimbursement  of
the salary and other allowances is not justified.

9.    We have gone through terms and conditions of the bond executed by  the
respondent on 05.05.1999.  Some of the relevant portions of  the  bond  read
as follows:
      “Whereas I, Suresh Chandra Varma, am granted (kind of  leave)  by  the
      Institute.


      And whereas for the better protection of the Institute, I have  agreed
      to execute this Bond with such conditions as hereunder is written.


      Now the condition of the above written obligation is that in the event
      of my failing of resume duty, or resigning or retiring from service or
      otherwise quitting service  without  returning  from  duty  after  the
      expiry of termination of the period of study  leave  or  at  any  time
      within a period of three years  after  my  return  to  duty,  I  shall
      forthwith pay to the institute or as may be directed by the Institute,
      on demand, pay & allowances received by me  during  study  leave,  the
      said amount of Rs.10,000/- (ten thousand only) together with  interest
      thereon from the date of demand at Govt. rates for the time  being  in
      force on Govt. loan.


      And upon my making such payment the above written obligation shall  be
      avoided and of no effect, otherwise I shall  be  and  remain  in  full
      force and virtue.


      The bond shall in all respects be governed by the laws  of  India  for
      the time being in force  and  the  rights  and  liabilities  hereunder
      shall, where necessary, be accordingly determined by  the  appropriate
      courts in India.”


10.   Further, it is the specific case of the appellant that the  respondent
herein is governed by the provisions of the Central Civil  Services  (Leave)
Rules, 1972 forming part of the Fundamental Rules and  Supplementary  Rules,
Part III framed by the Constitution of India.  We notice there is  no  clear
cut provision in the bond either expressly referring to Rule 63 or  strictly
imposing a condition that if a candidate fails to complete the course  study
during the period of sanctioned  leave,  he  will  have  to  refund  to  the
appellant-institute the total amount of leave,  salary  and  other  benefits
availed of by him during the period of study leave.


 11.  Of late, such a specific provision was incorporated  in  bond  by  the
 Board of Governors of the appellant-institute in its 22nd meeting  held  on
 28.06.2002, which reads as follows:
      TO APPROVE THE AMENDMENT IN BOND CONDITIONS  TO  BE  EXECUTED  BY  THE
      FACULTY MEMBERS WHILE PROCEEDING ON STUDY LEAVE.




      The Board of Governors of the Institute in its 22nd  meeting  held  on
      28.06.2002 decided that a faculty member, who is granted  study  leave
      for possessing higher education such as M.E./M.Tech. and Ph.D,  he/she
      is required to execute a bond to serve the Institute  for  double  the
      period of study leave after returning from study leave.


      The conditions of the bond are silent on  the  point  when  a  faculty
      member resume his/her  duty  but  fails  to  produce  the  educational
      qualifying certificate for which he/she was sanctioned study leave.


      Following provision may kindly be allowed to be  incorporated  in  the
      proforma of bond to be executed by a faculty member  while  proceeding
      on study leave / extra ordinary leave of study  /  special  leave  for
      training / sabbatical leave on the pattern of Central Government Rules
      to avoid legal complicacy.


      |Proforma of bond presently filled by a  |Proposed Proforma of bond to be  |
|faculty members while proceeding on     |filled by a faculty members while|
|study leave / extra ordinary leave of   |proceeding on study leave / extra|
|study/special leave for                 |ordinary leave of study / special|
|training/sabbatical leave               |leave for training / sabbatical  |
|                                        |leave.                           |
|KNOW ALL MEN BY THESE PRESENTS THAT     |KNOW ALL MEN BY THESE PRESENTS   |
|I,___________resident of ____________ at|THAT I, ________ resident of     |
|present employed as __________ in the   |_________ in the district of     |
|Sant Longowal Institute of Engineering &|___________ at present employed  |
|Technology, do hereby bind myself and my|as _______in the Sant Longowal   |
|heirs, executors and administrators to  |Institute of Engineering &       |
|pay to the Director, Sant Longowal      |Technology, do hereby bind myself|
|Institute of Engineering & Technology   |and my heirs, executors and      |
|(hereinafter called the Institute) on   |administrators to pay to the     |
|demand the sum of                       |Director, Sant Longowal Institute|
|Rs.____________(Rs.____________only)    |of Engineering & Technology      |
|together with interest thereon from the |(hereinafter called the          |
|date of demand at Government rates for  |Institute) the total amount of   |
|the time being in force on Government   |leave salary and other expenses  |
|loans or, if payment is made in a       |incurred by the Institute, if    |
|country other than India, the equivalent|any, along with bond money       |
|of the said amount in the currency of   |prescribed the Institute together|
|that country converted at the official  |with interest thereon from the   |
|rate of exchange between that country   |date of demand at Government     |
|and India AND TOGETHER WITH all costs   |Rates for the time being in force|
|between attorney and client and all     |on Government loans or if payment|
|charges and expenses that shall/or may  |is made in a country other than  |
|have incurred by the Institute.         |India, the equivalent of the said|
|                                        |amount in the currency of that   |
|WHEREAS I, ___________, am granted      |country converted at the official|
|______(kind of leave) by Institute.     |rate of exchange between that    |
|                                        |country and India AND TOGETHER   |
|AND WHEREAS for the better protection of|WITH all costs between attorney  |
|the Institute, I have agreed to execute |and client and all charges and   |
|this bond with such condition as        |expenses that shall/or may have  |
|hereunder is written                    |incurred by the Institute.       |
|                                        |WHEREAS I, ___________am granted |
|NOW THE CONDITION OF THE ABOVE WRITTEN  |___________(kind of leave) by    |
|OBLIGATION IS THAT in the event of my   |Institute.                       |
|failing to resume duty, or resigning or |                                 |
|retiring from service or otherwise      |AND WHEREAS FOR THE BETTER       |
|quitting service without returning to   |protection of the Institute, I   |
|duty after the expiry of termination of |have agreed to execute this bond |
|the period of study leave or at any time|with such condition as hereunder |
|within a double the period of study     |is written.                      |
|leave after my return to duty, I shall  |                                 |
|forthwith pay to the Institute or as may|AND WHEREAS for the better       |
|be, directed by the Institute on demand,|protection of the Institute, I   |
|the said sum of Rs.______________only   |have agreed to execute this bond |
|together with interest thereon from the |with such condition as hereunder |
|date of demand at Government Rates for  |is written.                      |
|the time being in force on Government   |                                 |
|loans.                                  |NOW THE CONDITION OF THE ABOVE   |
|                                        |WRITTEN OBLIGATION IS THAT in the|
|AND upon my making such payment the     |event of my failing to resume    |
|above written obligation shall be void  |duty, or resigning or retiring   |
|and of no effect, otherwise it shall be |from service or otherwise        |
|and remain in full force and virtue.    |quitting service without         |
|                                        |returning to duty after the      |
|The bond shall in all respects be       |expiry or termination of the     |
|governed by laws of India for the time  |period of study leave or failing |
|being in force and the rights and       |to complete the course of study  |
|liabilities hereunder shall, where      |or at any time within the period |
|necessary, be accordingly determined by |of sanctioned leave after my     |
|the appropriate courts in India.        |return to duty, I shall forthwith|
|                                        |pay to the Institute the total   |
|The Institute has agreed to bear the    |amount of leave salary and other |
|stamp duty payable on this bond.        |expenses incurred by the         |
|                                        |Institute, if any, along with    |
|Signed and dated this __________day of  |bond money prescribed by the     |
|one thousand nine hundred and signed and|Institute together with interest |
|delivered by in the presence of         |thereon from the date of demand  |
|_________________.                      |at Government Rates for the time |
|                                        |being in force on Government     |
|                                        |loans.                           |
|                                        |                                 |
|                                        |AND upon my making such payment  |
|                                        |the above written obligation     |
|                                        |shall be void and of no effect,  |
|                                        |otherwise it shall be and remain |
|                                        |in full force and virtue.        |
|                                        |                                 |
|                                        |The bond shall in all respects be|
|                                        |governed by the laws of India for|
|                                        |the time being in force and the  |
|                                        |rights and liabilities hereunder |
|                                        |shall, where necessary, be       |
|                                        |accordingly determined by the    |
|                                        |appropriate courts in India.     |




 12.  The above mentioned clause was inserted in the absence of  a  specific
 clause to that effect in the bond executed by the faculty members.


 13.  The question  as  to  whether  Rule  63  referred  to  above  is  also
 applicable to the  respondent  was  not  seen  specifically  urged  by  the
 appellant-institute either before the learned Single Judge  or  before  the
 Division Bench, hence, the High  Court  had  no  occasion  to  examine  its
 applicability.  In this connection, we may refer to Rule 63 which reads  as
 follows:
       “63. Resignation or retirement after study leave  or  non-completion
       of the course of study.


            1) If a Government servant resigns or retires  from  service  or
               otherwise quits service without returning  to  duty  after  a
               period of study leave or within a period of three years after
               such return to duty or fails to complete the course of  study
               and is thus unable to furnish  the  certificate  as  required
               under sub-rule (5) of Rule 53 he shall be required to refund-
               i) The actual amount of leave salary, study  allowance,  cost
                  of fees, travelling and other expenses, if  any,  incurred
                  by the Government of India; and
              ii) The actual amount, if any, of the cost incurred  by  other
                  agencies  such  as  foreign  Government,  Foundations  and
                  Trusts in connection with the course  of  study,  together
                  with interest thereon at rates for the time being in force
                  on Government loans from the date of  demand,  before  his
                  resignation is accepted or permission to retire is granted
                  or his quitting service otherwise.:
             iii) Provided that except in the case of employees who fail  to
                  complete the course of study nothing in  this  rule  shall
                  apply –
            a) To a Government servant who, after return to duty from  study
               leave,  is  permitted  to  retire  from  service  on  medical
               grounds; or
            b) To a Government servant who, after return to duty from  study
               leave, is deputed to serve in  any  Statutory  or  Autonomous
               Body or Institution under the control of the  Government  and
               is subsequently permitted to resign from  service  under  the
               Government with a view to his  permanent  absorption  in  the
               said Statutory or  Autonomous  body  or  Institution  in  the
               public interest.


       2) (a)     The study leave availed  of  by  such  Government  servant
          shall be converted into regular leave standing at  his  credit  on
          the date on which the study leave  commenced,  any  regular  leave
          taken in continuation of study leave being suitably  adjusted  for
          the purpose and the balance of the period of study leave, if  any,
          which cannot be so converted, treated as extraordinary leave.
            (b)   In addition to the amount to be refunded by the Government
       servant under sub-rule (1), he  shall  be  required  to  refund  any
       excess  of  leave  salary  actually  drawn  over  the  leave  salary
       admissible on conversion of the study leave.


            3)   Notwithstanding  anything  contained  in  this  rule,   the
               President may, if it is necessary  or  expedient  to  do  so,
               either in public interest or having regard  to  the  peculiar
               circumstances of the case or class of cases, by order,  waive
               or reduce the amount  required  to  be  refunded  under  sub-
               rule(1) by the  Government  servant  concerned  or  class  of
               Government servant.”


14.   If a Government servant resigns or retires from service  or  otherwise
quits service without returning to duty after a period  of  study  leave  or
within a period of three years  after  such  return  to  duty  or  fails  to
complete the course of study and is thus unable to furnish the  certificates
as required under sub-rule (5) of Rule 53, he shall be  required  to  refund
the  actual  amount  of  leave  salary,  study  allowance,  cost  of   fees,
travelling and other expenses, if any, incurred by the Government of India.


15.   The above mentioned provision has a laudable  object  to  achieve.
 A
Government servant or person like the respondent is given study  leave  with
salary and allowances etc. so as to enable him to  complete  the  course  of
study and to furnish the certificate of his successful completion,  so  that
the institute which  has  sanctioned  the  study  leave  would  achieve  the
purpose and object for granting such study leave.  The purpose  of  granting
study leave with salary and other  benefits  is  for  the  interest  of  the
Institution and also the person concerned so that once  he  comes  back  and
joins the institute the students will be  benefited  by  the  knowledge  and
expertise acquired by the  person  at  the  expense  of  the  institute.   A
candidate who avails of leave but takes no interest to complete  the  course
and does not furnish the certificate to that effect is  doing  a  disservice
to the institute as well as the students of the institute.  In other  words,
such a person only enjoys the period of study leave without doing  any  work
at the institute and,  at  the  same  time,  enjoys  the  salary  and  other
benefits, which is  evidentially  not  in  public  interest.   Public  money
cannot be spent unless there is mutual benefit.  Further, if the  period  of
study  leave  was  not  extended  or  no   decision   was   taken   on   his
representation, he could have  raised  his  grievances  at  the  appropriate
forum.

16.   We notice  that  the  appellant-institute  has  already  recovered  an
amount of Rs.6.5 lacs  as  monthly  installments  from  the  salary  of  the
respondent and the appellant-institute  has  also  recovered  an  amount  of
Rs.1,75,000/- from the salary of the respondent and Rs.4,75,000/-  from  the
arrears of revised scales admissible to  the  respondent  with  effect  from
01.01.2006 and as such approximately Rs.6,50,000/- has been  recovered  from
the respondent.   Now  the  appellant-institute  claims  balance  amount  of
Rs.6,18,000/-.

17.   Considering the facts and circumstances of the  case  and  considering
the fact that the bond executed by the respondent is found to be  vague,  we
find no reason for the appellant-institute to recover the balance amount  of
Rs.6,18,000/- from the respondent but the amount already  recovered  be  not
refunded,  since  public  interest  has  definitely  suffered  due  to  non-
obtaining of Ph.D by the respondent after availing of the entire salary  and
other benefits.  We do so taking  into  consideration  all  aspects  of  the
matter and to do complete justice between the parties.

18.   Appeal is allowed to the above extent and the judgment of the  learned
Single Judge and Division Bench  is  modified  accordingly  and  no  further
amount be recovered by the appellant-institute from the respondent.



                                                             ….…….…….……………J.
                                                (K.S. Radhakrishnan)






                                                             ………..………………….J.
                                                      (Pinaki Chandra Ghose)

New Delhi,
July 18, 2013

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