The central legal point established in the judgment is the interpretation and application of Rule 40(3) of the SBI Officers Service Rules in justifying the order of voluntary vacation of service.

BADAR DURREZ AHMED, J.

1. This Letters Patent Appeal is directed against an interim order passed by a learned Single Judge of this Court in CM No.8979/2012 in WP(C) No.4327/2012.

2. Normally, we would not like to interfere with any interim orders passed by a learned Single Judge of this court while issuing notice in the main matter. However, the circumstances warrant our interference in this case. This would be clear from what is indicated below.

3. On 01.02.2012 the appellant took a decision to transfer the respondent from New Delhi to Lohaghat in Uttarakhand as Branch Manager. It is material to point out that the transfer order was not just in the case of the respondent but there were 36 other transfers by virtue of the same order dated 01.02.2012. The order also indicated that all the transferred officials are to be relieved by 11.02.2012 by making internal arrangements. On 10.02.2012 the respondent was relieved from New Delhi with instructions to join at Lohaghat Branch in Uttarakhand. According to the appellant, the respondent did not join at Lohaghat. But, according to the respondent he reported for duty at Lohaghat on 09.05.2012.

4. The learned counsel for the respondent drew our attention to the certificate dated 09.05.2012 issued by the officiating Branch Manager which was to the following effect:-

“To whom it may concern This is certify that Shri Himanshu Kapur, MMG S III PF No. 2586150 reported at Lohaghat Branch on 09.05.2012.”

5. But, the learned counsel appearing on behalf of the appellant drew our attention to a letter of the very same person i.e., Mr. Suresh Chandra Arya who had purportedly given the said certificate dated 09.05.2012. The letter is dated 04.07.2012 and is addressed to the Branch Manager, Lohaghat. It is indicated in the letter that the respondent had visited the branch on 09.05.2012 at 9.30 a.m. where he stayed up to 11.45 a.m. He again came to the branch at 2.30 p.m. and when Mr. Suresh Chandra Arya had asked him to take over the charge he stated that he would come back after some time and left the branch but did turn up thereafter. Our attention was also drawn to an affidavit sworn at Haldwani, Uttarakhand on 19.07.2012 by the same Mr. Suresh Chandra Arya. The affidavit reveals disturbing facts. It indicates that on 09.05.2012 under coercion and threat from the respondent, the letter dated 09.05.2012 had been signed by him. He also indicated that the contents of the letter had been dictated by the respondent and the same had not been given by him as per his free will. In the said affidavit he also confirmed that on 09.05.2012, the respondent had not joined his duties. Paragraph 4 of the affidavit indicates that a copy of the letter dated 09.05.2012 was enclosed with the affidavit and that the said letter was taken coercively and Mr. Suresh Chandra Arya categorically denied the contents of the said letter.

6. Mr. Rao, appearing on behalf of the respondent states that this affidavit has come to his knowledge for the first time before the learned Single Judge and he had no opportunity to respond to the same. In any event he has instructions to dispute the contents.

7. This in itself would indicate that there are serious disputed questions of facts. The entire case hinges upon whether the respondent reported for duty on 09.05.2012 at Lohaghat or not. If he had reported on 09.05.2012 as contended by the respondent, then possibly Rule 40(3) of the SBI Officers Service Rules has been wrongly involved while issuing the order dated 14.07.2012 holding that the respondent had voluntarily vacated his service. At this juncture it would be pertinent to set out Rule 40(3) of the SBI Officers Service Rules:-

“Where an officer who has not submitted an application for leave or where an officer having submitted his application was refused sanction of leave, absent himself for a period of 90 or more consecutive days or over stay the sanctioned leave by 90 or more consecutive days notwithstanding the provision