DR GURUPRASAD R v. EMPLOYEES STATE INSURANCE CORPORATION (ESIC)

3

impugned order and to reimburse the recovered amount along with interest @ 12% per annum; and

(c) Grant such other relief or reliefs as this Hon'ble Tribunal deems fit including the costs of this proceedings, in the interest of justice and equity."

2. Briefly stated the facts as narrated by the applicant are that he was selected to the post of Insurance Medical Officer, Grade II pursuant to the Notification issued by the respondent Corporation calling for the applications from the eligible candidates for recruitment to the said post, consequent to his application submitted. The applicant's probationary period was declared satisfactory and his services were confirmed with effect from 30.06.2011 as per the Office Order dated 26.07.2013. Applications were invited from the in-service candidates as well as from outsiders for Post Graduate studies in the Medical College of Karnataka in the month of March/April, 2013, accordingly, the applicant submitted his claim for in-service quota for Post Graduation, after obtaining permission from the department. The applicant got selected for MD, Biochemistry in the ESIC PGIMSR College, Rajajinagar, Bengaluru under in-service quota. On the request made by the applicant, Extraordinary Leave was granted to him initially for a period commencing from 25.07.2013 to

4

24.07.2015 (two years) with certain conditions. The applicant executed the Bond required. Subsequently, by an order dated 03.12.2015, Extraordinary Leave for a further period of one year from 25.07.2015 to 24.07.2016 was extended.

3. After relieving from the college, the applicant reported for duty as Insurance Medical Officer, Grade II immediately. Thereafter, he was promoted to the post of Insurance Medical Officer, Grade I and further to the post of Chief Medical Officer with effect from July, 2019. The applicant was paid monthly stipend approximately of Rs. 65,000/- for 36 months from the date of commencement of the course till completion of the course i.e., from 25.07.2013 to 24.07.2016, but after lapse of nearly about five years, an order came to be passed by the Deputy Director with the approval of the Medical Superintendent and Dean stating that stipend paid to the applicant during the PG course in MD is sought to be recovered as it was wrongly paid and to be recovered from the salary. The amount has been quantified as Rs.23,86,478/-. Being aggrieved, the applicant has preferred this OA.

5

4. Learned counsel Shri Vishwanath Bhat representing the applicant submitted that the action of the respondents in issuing the recovery order is in violation of principles of natural justice. No prior notice was issued to the applicant and he was not heard. Nextly, the object of granting stipend to the medical students is to maintain the day-to-day expenditure and for their survival. Keeping that in mind, the State Government and the Medical Council of India (MCI) Regulations have been suitably amended in the year 2008. The 2^ndrespondent issued a Memorandum dated 04.05.2021 allowing the in-service candidates on Extraordinary Leave pursuing PG courses in the ESIC institutions at the same rate and on same terms and conditions as has been given to non in-service students. In-service candidates who are on Extraordinary Leave ought to be treated on par with the non in-service candidates. The in-service candidates who are on Study Leave are eligible for salary for the said period whereas in-service candidates who are on Extraordinary Leave are not eligible for salary. Now, after lapse of five years from the date of completion of the course, stipend amount paid is sought to be recovered from the salary of the applicant. This action of the respondents is illegal and arbitrary.

6

5. Learned counsel Shri N. Amaresh representing the respondents submitted that the applicant was granted Extraordinary Leave, as such, the applicant is not entitled for any pay and allowances from his parent department nor any stipend from the Institution from where the Medical Officer pursued his studies. As per the norms prevailing at the relevant point of time, if the stipend has been drawn in respect of a non in-service PG student, the student has to serve ESIC for a period of five years under ESIC Senior Residency scheme. Otherwise, the candidate has to deposit an amount of Rs.7,50,000/- to ESIC towards the Bond for not serving the ESIC for a period of five years. In the case of the applicant, the ESIC has exempted the application of said clause for serving as ESIC SR after the successful completion of the PG course and permitted him to continue in his post of appointed cadre of GDMO and drawn salary in the same cadre. Due to an error committed in disbursing the stipend to the applicant, an in-service PG candidate, recovery proceedings were initiated with the approval of the competent authority. Referring to the letter dated 15.09.2021 (Annexure-A11) addressed by the applicant to the Dean/Medical Superintendent, learned counsel submitted that the applicant has accepted the recovery but sought for extension of

7

tenure of recovery to 9 to 10 years and the official respondents are ready and willing to extend the same. Hence, submits that the OA being bereft of any substance, deserves to be rejected.

6. Having heard the learned counsel appearing for the parties and perusing the material on record, it is not in dispute that the applicant has availed Extraordinary Leave for pursuing three years course of MD (Biochemistry) under in-service quota. No salary was paid to the applicant during the said period. Had the applicant applied for Study Leave and drawn the salary, it would have been a different matter. Recently, the Hon'ble Apex Court while considering the case of Abhishek Yadav and Ors. vs. Army College of Medical Sciences & Ors in Writ Petition (C) No. 730/2022 expressed its concern at the complaints of MBBS interns that medical colleges are not adequately paying them stipend. Ordinarily, stipend is a form of support paid to individuals/students to help them meet their living expenses. Stipends are not directly related to the hours worked. It is extended to facilitate focus on learning without the stress of financial constraint. Stipend cannot be confused with salary.

8

7. Knowing well the object of extending stipend, the respondents paid the stipend amount over a period of three years to the applicant from 25.07.2013 to 24.07.2016. After relieving from the college, the applicant is serving with the respondent institution. If the non in-service candidate is entitled to that benefit, why a discrimination is meted out to the applicant, an in-service candidate, who was under Extraordinary Leave without salary. We find no rationale in such discrimination made. Further, it is pertinent to note that as per Memorandum dated 04.05.2021 (Annexure-A14) issued by the Medical Education Cell, ESIC, stipend would be paid to all in-service candidates on Extraordinary Leave pursuing PG courses in ESIC institutions at the same rate and the same terms and conditions as given to non in-service students. The in-service PG students on Extraordinary Leave are required to execute Bond either with (i) parent organization; or (ii) with ESIC (in event the grant of Extraordinary Leave by the parent organization is without condition of Bond), so that the candidate renders public service for a defined period after completion of the course or pays an amount in lieu. However, it is made clear that this payment of stipend would be made to existing in-service candidates on Extraordinary Leave with effect from the date of admission after

9

scrutiny of all relevant documents. The provision would not apply to candidates who have already completed their course and have been relieved from the PG institute. By issuing this Memorandum, it has been made clear that the in-service candidates on Extraordinary Leave pursuing PG courses in ESIC institutions are entitled to stipend on par with non in-service students but the same has been given effect prospectively. In our considered view, this Memorandum can be considered as clarificatory. Even if it has to be considered as prospective in nature, not to reopen the settled issues, i.e., claiming stipend for the completed courses, the same cannot be held to be not applicable to a case where stipend was already paid and recovery has been initiated subsequent to this Memorandum dated 04.05.2021 by issuing recovery order dated 02.08.2021 (Annexure-A9).

8. Clause 13.3 of the MCI Post Graduate Medical Education Regulations, 2000 reads thus:

"The Post Graduate students undergoing Post Graduate Degree/Diploma/Super-Specialty course shall be paid stipend on par with the stipend being paid to the Post Graduate students of State Government Medical Institutions/Central Government Medical Institutions, in the State/Union Territory where the institution is located. Similarly, the matter of grant of leave to Post Graduate students shall be regulated as per the respective State Government rules."

10

The stipend has been paid pursuant to the aforesaid Regulations by the College.

9. It is well settled that the principles of natural justice demands an opportunity of being heard before issuing recovery order towards the stipend amount of Rs. 23,86,478/- paid over 36 months from 2013 to 2016 to the applicant. Infraction of this fundamental principle of natural justice would vitiate the entire recovery proceedings. The applicant is not paid the stipend amount on account of any misrepresentation or fraud played by him. No unilateral decision could have been taken by the respondents to recover the stipend amount paid for three years from 25.07.2013 to 24.07.2016 from the salary of the applicant. Further, we are astound by the recovery action initiated by the respondents vide the impugned order dated 02.08.2021 i.e. after five years of the last payment made, that too subsequent to the Memorandum dated 04.05.2021 (Annexure-A14) issued extending payment of stipend/emoluments to in-service candidates on par with non in- service candidates. Thus, the recovery proceedings initiated by the Respondents No. 3 and 4 is arbitrary, irrational and contrary to MCI Regulations.

11

10. For the reasons aforesaid, we pass the following:

:ORDER:

1) The impugned order dated 02.08.2021 (Annexure-A9) issued by the Respondents No. 3 and 4 is set aside.

2) The respondents are directed to refund the recovered amount to the applicant, if any.

3) Compliance shall be made in an expedite manner, in any event, not later than eight weeks from the date of receipt of certified copy of this order.

4) OA stands allowed to the extent indicated above. No order as to costs.

(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)

MEMBER (A) MEMBER (J)

/ksk/