Deemed resignation order under CCS Leave Rule 12(2) quashed for being non-speaking without cogent findings on medical explanations; authority must reconsider with possible medical verification before fresh speaking order (38 words).

ORDER

Per : Umesh Gajankush, Member (J)

The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 by challenging the order dated 07.03.2018 (Annexure A-1) passed by the respondent No.3 under Rule 12(2) of the Central Civil Services (Leave) Rules, 1972 treating the applicant as deemed to have resigned from the Government service with effect from 19.03.2011 and holding the applicant not entitled for retirement benefits. The applicant is also challenging the order dated 15.10.2018 (Annexure A-2) passed by the Higher Authority rejecting the representation of the applicant against the said order dated 07.03.2018.

2. The brief facts of the case stated in the Original Application are that the applicant has joined the office of Income Tax on 03.03.1998 as Peon. Thereafter, he was promoted as Daftar Band / Record Clerk on 10.10.2006 and further promoted as Tax Assistant on 12.05.2008. It is stated that these promotions were earned by the applicant in due course of merit.

2(a). In the year, 2008 when the applicant was posed in the office of Commissioner of Income Tax (Departmental Representative) attached to the ITAT F Branch where he has worked up to 11.05.2011. On 28.04.2017, a show cause notice was issued to the applicant mentioning therein that the applicant is on unauthorized absence from 19.03.2011 and in terms of the amended Rule 12(2) of the CCS (Leave) Rules, 1972, since the applicant has been on unauthorized leave for more than five years, his case is covered by Rule 12(2) of the CCS (Leave) Rules, 1972 and the applicant was called upon to explain why the provisions of the said Rules should not be invoked to treat the applicant as having resigned from the Government service.

2(b). The aforesaid show cause notice was replied by the applicant through reply dated 11.05.2017. In the said reply, the applicant pointed out that he was a person having only the left kidney. Further, his right kidney removed when he was very young as it was congenitally not developed and this fact was not clear in his memory as it had happened during his initial years immediately after his birth and his parents had not given any information about the same during their life time. In the said reply, the Applicant also pointed out that from 2010 onwards, his surviving left kidney was not functioning properly and for which he was taking the treatment and that a cyst was developed on his left kidney which was disturbing the kidney's normal functions. Further while undergoing treatment for the said cyst, the Applicant suffered a stroke, which left him with partial paralysis on the left side.

2(c). The applicant states that in the said reply, it was also pointed out that the applicant was also suffering from high blood pressure and all the related medical problems had prevented the Applicant from resuming the duties during the aforesaid period and that there is no willful or deliberate absence during the period in question and it was only because of the reasons mentioned hereinabove and which were set out in the reply to the show-cause notice. The Applicant along with the said reply enclosed the necessary medical certificates regarding his medical problems and requested for being taken back on duty since the applicant had provided fitness certificate from the Government run G.T. Hospital in Mumbai.

2(d). The Applicant states that prior to the said show-cause notice, it