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2018 Supreme(Bom) 491
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.K. TAHILRAMANI, M.S. SONAK, JJ.
Union of India - Petitioner
Versus
Dr. Kiran Jadhav, IPS & Others - Respondents
Writ Petition No. 12203 of 2017
Decided On : 26-02-2018
For the Petitioner:Neel Helekar i/by Ashutosh R. Gole, Advocates.
For the Respondent:Sandeep V. Marne, Advocate.
The main legal point established in the judgment is the interpretation and application of the proviso to Rule 7(2) of the All India Service (Leave) Rules, 1955, emphasizing the principles of natural justice, flexibility, and the need to establish real prejudice before alleging non-compliance. The judgment also highlights the balance between public interest and the requirements of natural justice.
Headnote:
Deemed Resignation - Central Administrative Tribunal Judgment - All India Service (Leave) Rules, 1955 (Rule 7) - The court discussed Rule 7(2) of the said Rules, which provides for the resignation of a member of the service if absent without authorization for a period exceeding one year from the date of expiry of sanctioned leave or permission, or for a continuous period exceeding five years even if the period of unauthorized absence is for less than a year. The court highlighted the proviso to Rule 7(2), which mandates affording a reasonable opportunity to explain the reason for such absence before invoking the provisions. The court emphasized the interpretation and application of the proviso, stating that the finding of the CAT regarding the denial of reasonable opportunity to explain the absence was vitiated by perversity and a hyper-technical approach.
Fact of the Case:
The respondent, an IPS Officer, remained absent for over seven years without authorization, leading to the deemed resignation under Rule 7(2) of the All India Service (Leave) Rules, 1955. The petitioner challenged the judgment and order of the Central Administrative Tribunal (CAT) granting relief to the respondent based on alleged non-compliance with the proviso to Rule 7(2).
Finding of the Court:
The court found that the CAT's decision was contrary to the settled legal principles and the interpretation of the proviso to Rule 7(2). It held that the CAT's approach was hyper-technical and failed to consider the substance of the opportunity afforded to the respondent. The court also emphasized that the respondent's explanation for the prolonged absence was duly considered before the deemed resignation was invoked.
Issues: The issues revolved around the interpretation and application of Rule 7(2) of the All India Service (Leave) Rules, 1955, particularly the proviso requiring a reasonable opportunity to explain the absence before deeming it as resignation. The court also addressed the preliminary objections regarding the maintainability of the petition raised by the respondent's counsel.
Ratio Decidendi: The court's decision was based on the interpretation and application of the proviso to Rule 7(2) of the said Rules, emphasizing the principles of natural justice and the requirement to establish real prejudice before alleging non-compliance. The court highlighted the settled legal principles regarding the flexibility and realistic application of natural justice, as well as the need to balance public interest with the requirements of natural justice.
Final Decision: The court allowed the Writ Petition, making the Rule absolute in favor of the petitioner, and set aside the judgment and order of the CAT. The court held that the action under Rule 7(2) of the said Rules was justified and taken in accordance with the provisions of law. The court also declined to consider the alternate relief sought by the respondent, emphasizing that the provisions quoted did not deal with the situation of deemed voluntary retirement.
1. Heard Mr. Neel Helekar, learned counsel for the petitioner and Mr. Sandeep V. Marne, learned counsel for respondent No.1.
2. Rule. By consent and at the request of the learned counsel for the parties, Rule is made returnable forthwith.
3. This petition takes exception to the judgment and order dated 26.04.2017 made by the Central Administrative Tribunal, Mumbai (CAT) in Original N.S. Kamble /Chandka Application No.210/00205/2015 instituted by the respondent No.1. The respondent No.1 had instituted the OA No.210/00205/2015 to question impugned order/notification dated 16.12.2014 which treated his absence for over seven years as 'deemed resignation' in terms of Rule 7(2)(a) of the All India Service (Leave) Rules, 1955 (said Rules).
4. Mr. Helekar, the learned counsel for the petitioner-Union of India submits that the CAT has misconstrued the said rules and further, the finding that there was no compliance with principles of natural justice before action was taken under the said rules, is vitiated by perversity. He submits that respondent No.1, an IPS Officer, remained absent from 10.09.2007 until the impugned order was made on 16.12.2014, without even bothering to send intimation or applying for leave and in any case, without furnishing explanation for such inordinate and unauthorized absence. Mr. Helekar submits that the respondent No.1 has admitted in his Original Application that he was gainfully employed undertaking business along with his maternal uncle in Mumbai during the period of his unauthorized absence.
5. Mr. Helekar submits that leave was sanctioned for the period between 10.09.2007 to 19.09.2007 but thereafter, the respondent No.1, remained absent unauthorizedly. Mr. Helekar points out that on 24.09.2007, the respondent No.1 applied for voluntary retirement despite being aware that the respondent No.1 did not have the qualifying service to seek such retirement. Mr. Helekar submits that soon thereafter, the respondent No.1 purported to resign from services but after several years, even withdrew his resignation. In the meanwhile, since there was continuous absence exceeding five years, action was taken under Rule 7 to treat the same as deemed resignation. Necessary notices were issued to the respondent No.1 and even the explanation furnished by respondent No.1 was duly considered. Mr. Helekar submits that Tribunal has failed to consider all these aspects while granting respondent No.1 relief based upon hyper technical grounds, mis-construction of rules and perverse findings. For all these reasons, Mr. Helekar submits that the impugned judgment and order made by the CAT is liable to be set aside.
6. Mr. Marne, the learned counsel for the respondent No.1, at the outset submits that the directions in the impugned judgment and orders made by CAT apply to the State of Uttar Pradesh and since, the State of Uttar Pradesh has chosen not to question the impugned judgment and order, the Union of India, lacks the locus standi to institute the present petition. Mr. Marne further submits that the respondent No.1 has secured information under the Right to Information Act which reveals that no approval was obtained from the concerned authorities for instituting the present petition. On these two grounds, Mr. Marne submits that the present petition be not entertained. Mr. Marne however, made submissions on merits without prejudice to the preliminary objections regards maintainability of the present petition.
7. Mr. Marne, submits that on account of serious illness of the father and son of respondent No.1, the respondent No.1 had to stay in Mumbai and could not report for duties in the State of Uttar Pradesh. Mr. Marne submits that in fact, it was possible for the respondents to grant the respondent No.1 posting at Mumbai International Airport but such posting was unreasonably denied to the respondent No.1. Mr. Marne points out that son to of respondent No.1 was diagnosed with Cancer in the year 2009 and the respondent No.1 ha
