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Judgment
ORDER
Hon’ble Dr. Anand S. Khati, Member (A)
In the present Original Application (O.A.) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought for the following reliefs:-
"(i)Quash impugned order dated 18.02.2025 (Annexure A -1) passed by Respondent No.2;
(ii)Quash impugned order dated 14.07.2022 (Annexure A -2) passed by Respondent No.1;
(iii)Issue directions commanding the respondents to accept the voluntary retirement of the applicant;
(iv)Issue directions commanding the respondents to provide all the consequential benefits of the retirement to the voluntary retirement to the applicant;
Central Administrative Tribunal(v) Any other relief, order or direction this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of this case.”
The brief facts of the case as narrated by learned counsel for the applicant are that:
The applicant joined Kendriya Vidyalaya Sangathan (KVS) in 1992 as PGT (Chemistry) and served initially at Visakhapatnam and Dehradun. In July 2003, she was directly recruited to the post of Principal and was posted at KV-2, Jalandhar Cantt. And served there from 2003 to 2007 and at KV, Rishikesh from 2007 to 2011, before being posted to KV Jyotipuram, Jammu & Kashmir in September, 2011.
While serving at Jyotipuram, the applicant developed severe chronic health issues, including spondylosis with vertigo, osteoarthritis, hypertension, diabetes etc., leading her to apply for medical leave supported by medical certificates issued by the Doctors of Government hospitals. He also placed reliance upon the DoP&T O.M. dated 17.07.2018 on the subject ‘Leave to a Government servant who is unlikely to be fit to return to duty’, which inter alia provides that leave applied for under Rule 20 shall not be refused or revoked without reference to the Medical Authority, whose advice shall be binding. However, the respondents failed to comply with the said requirement and wrongly declined to act upon the medical certificate furnished by the applicant.
Central Administrative Tribunal2.3 In August 2016, KVS transferred her to KV, SSB Gwaldam, Uttarakhand. Citing her inability to serve in difficult, high-altitude terrain due to her medical condition, she preferred repeated representations with a request to modify her posting to Dehradun or another plain region. However, her requests were rejected and the applicant was relieved from her duties in absentia in December, 2016 while she was already on medical leave with a direction to report to SSB Gwaldam with fitness certificate.
On 17.03.2022, the respondents issued a Show Cause Notice proposing to treat her continuous absence since 03.10.2013 which is exceeding 5 years as deemed resignation under Rule 12(2) of the CCS (Leave) Rules. Although she submitted a reply explaining her health situation, she subsequently submitted a formal application for Voluntary Retirement (VRS) on 21.06.2022, which was duly forwarded by Respondent No. 3 to Respondent No. 1 on 08.07.2022. However, instead of processing her VRS request, Respondent No. 1 issued an order on 14.07.2022, deeming her to have resigned from service retrospectively w.e.f. 03.10.2013.
Earlier, the applicant challenged this deemed resignation order in O.A. No. 856/2022, which was disposed of by this Tribunal on 22.11.2023, directing her to submit an appeal to the Appellate Authority, i.e. Vice Chairman of KVS. Her statutory appeal dated 16.12.2023 was subsequently rejected by Respondent No. 2 vide the impugned order dated 18.02.2025.
The applicant contended that the deemed resignation order is legally invalid because her voluntary retirement papers were formally submitted and forwarded prior to its issuance. Furthermore, she contended that as per DoPT guidelines vide O.M. dated 17.07.2018, medical leave cannot be refused without reference to a Medical Authority, which had already verified her medical certificates as genuine. Consequently, she asserted that the rejection order by the Appellate Authority was passed mechanically without due application of mind, violating principles of natural justice and Articles 14, 16, and 311 of the Constitution of India.
Per contra, learned counsel for the respondents took a preliminary objection that the applicant approached the Tribunal without exhausting the alternative remedy of revision available under the KVS Education Code. He argued that granting the requested relief would impose an extra financial burden on the government exchequer without any irreparable loss having been caused to the applicant.
On the merits of the case, the learned counsel highlighted that the applicant was continuously on leave or unauthorizedly absent since 03.10.2013. During the course of her service, the applicant availed 1,455 days of Extra Ordinary Leave (EOL) and 358 days of Child Care Leave (CCL) on various pretexts. The competent Central Administrative Tribunalauthority lastly sanctioned EOL on medical grounds w.e.f. 10.09.2015 to 09.08.2016 (334 days) vide order dated 05.08.2016 and beyond that no leave was sanctioned.
He further submitted that when transferred from KV Jyotipuram to KV SSB Gwaldam in August 2016, her request for a modification to Dehradun was explicitly rejected. Despite clear instructions to join her at new place of posting, she disobeyed the orders and remained continuously absent on the pretext of medical reasons by submitting consecutive medical certificate. Eventually she was relieved in absentia in December, 2016. Placing reliance upon the Hon’ble Supreme Court decision in the case of S.C. Saxena vs Union of India & Ors., (2006) SCC 583 and Hon’ble Allahabad High Court’s decision in Sachidanand Pandey vs Managing Director, U.P. State Bridge Corporation in Writ A No. 34634/2015 decided in June, 2015 and emphasized that a government servant is legally bound to join a transferred post before submitting representations regarding personal grievances.
The competent authority had earlier issued show cause notices on three occasions for her unauthorized absence, but taking a lenient view, ample opportunities were given to join duty by withdrawing the same. Consequent upon continuous absence, she was again issued a show cause notice dated 17.03.2022, well before the applicant submitted a request for Voluntary Retirement (VRS), to show the cause as to why her continuous absence since 03.10.2013 which is exceeding five years should not be treated as deemed resignation.
In response thereto, the applicant submitted her reply dated 19.03.2022. After considering the grounds taken by the applicant for her long absence, the competent authority of KVS found the same as not convincing and decided to treat her absence as deemed resignation w.e.f. 03.10.2013 vide memorandum dated 14.07.2022.
Aggrieved by the aforesaid decision, without exhausting the further remedies available to her, the applicant filed O.A. No. 856/2022 which was disposed of by this Tribunal vide order dated 22.11.2023, with the following directions:-
“7.Taking note of the submissions of the counsel for the respondents without treating the case as precedence, in the peculiar facts and circumstances of the case and keeping in view the medical conditions of the applicant, let the applicant exhaust alternative remedies by way of an exhaustive appeal including all medical certificates and relevant documents in this regard to the Appellate Authority, i.e., Vice Chairman, KVS preferably within 30 days from the date of receipt of copy of the order. Thereafter, the Appellate Authority, i.e., Vice Chairman, KVS, after giving an opportunity hearing and taking a of holistic view, shall pass a reasoned and speaking order as per rule position governing the subject within a period of 3 months from the date of receipt of the applicant's appeal and other supporting documents. Needless to say, we have not expressed any opinion on merits of the case.
8.We make it clear that the issue of limitation shall not come into the way of the applicant in preferring the appeal as the period in preferring the present OA till expiry of 30 days shall be excluded in computation of period of limitation.
9.The OA stands disposed of in the aforesaid terms. No order as to costs."
He further submitted that in terms of the aforesaid directions, the Joint Secretary, MOE & Vice Chairman, KVS being an Appellate Authority provided an opportunity to the applicant for personal hearing on 04.12.2024 at 3:30 PM, where all her grievance were heard. However, after considering all the facts and circumstances related to the case and the outcome of the personal hearing, found no merit in the appeal made by the applicant.
Regarding the applicant's medical claims, the learned counsel asserted that the medical certificates submitted by the applicant were not found unconvincing, as the same were without any medical prescription as well as any details of treatment. Although residing in Dehradun, she repeatedly travelled to Government Hospital Uttarkashi, a hilly station approximately 180 kilometers away from Dehradun, to obtain medical certificates, demonstrating her physical capability to travel while she always denied to join at KV SSB Gwaldam on the pretext that she could not travel and despite the fact that Dehradun itself is having good and ample medical facilities in comparison to Uttarkashi. Additionally, a Regional Medical Board constituted in March 2021 formally examined her and vide letter dated 16.03.2021 certified her as medically fit to resume duty, noting that her health conditions were stable.
He also submitted that the applicant has misrepresented the facts and an unreasonable interpretation of Rule 20 of CCS (Leave) Rules, 1972, which applied to Government servants who have acquired a disability and are unlikely to be fit to be return to duty, whereas the applicant was suffering from common ailments and was declared fit twice by the Regional Medical Boards, which were constituted for second medical opinion in 2006 and 2021.
Finally, the respondents justified its action under Rule 12(2) of the CCS (Leave) Rules, 1972, which stipulates that a government servant continuously absent for over five years is deemed to have resigned. The respondents issued multiple Show Cause Notices and provided enough opportunities by KVS and, thereafter, formally initiated deemed resignation proceedings in March 2022, well before the applicant submitted a request for Voluntary Retirement (VRS), i.e. in June 2022. According to them, merely submitting application for VRS while action against her was already under process does not entail her claim for VRS. Further, following directions of the Tribunal, the Appellate Authority granted her a personal hearing and considering all the grounds of the Appeal, issued a reasoned and speaking order on 18.02.2025 upholding her deemed resignation effective from 03.10.2013 as per the governing service rules, which does not call for any interference. Consequently, the respondents prayed that the applicant is not entitled to any relief and prayed for dismissal of the O.A.
In rejoinder, the learned counsel for the applicant submitted that the applicant was never found fit to join duties by Medical Authorities and, as such, there is no disobedience of the order. The facts in the case of S.C. Saxena (supra) and Sachidanand Pandy (supra) are not applicable to the present case being distinguishable, as the same are applicable in ordinary grounds and not on medical grounds.
He also submitted that the applicant was absent on medical grounds and applied for leave for the same duly supported by medical certificates of Govt. Hospital. Immediately after submitting reply to the show cause notice, the applicant rushed to KVS (HQ), Delhi to meet the respondent No.1, but she was not allowed rather advised to seek appointment. The applicant took an appointment and met the Additional Commissioner, KVS on 07.04.2022 and apprised him all her grievances, and he assured to look into the grievances but all in vain. After losing all the hopes, she submitted application dated 21.06.2022 for voluntary retirement with an advance copy to the respondent No.1. On being asked by respondent No.2, she also filled up all the forms on 02.07.2022 which were forwarded to respondent No.1 on 08.07.2022. However, instead of accepting the request for voluntary retirement, the respondent No.1 passed order of deemed resignation on 14.07.2022.
He further submitted that the Appellate Authority disposed of the applicant’s appeal dated 18.02.2025 in a cursory and non-speaking manner, without due application of mind. The medical certificates furnished by the applicant in support of her medical leave were not duly considered.
He contended that the respondents had no authority to simply disregard the medical certificates issued by the competent Medical Officer of a Government Hospital. If any doubt existed regarding the applicant’s medical condition, the respondents ought to have referred her to the competent Medical Authority/District Hospital for a 2nd medical opinion, as contemplated under the applicable rules. There is also no requirement under the CCS (Leave) Rules, 1972 that a doctor’s prescription must necessarily accompany the medical certificate in support of medical leave applied for. As regards the medical certificates issued by CMO, Uttarkashi, it is submitted that the applicant was to travel once in a month to consult the CMO, whereas on her posting to Gwaldam, she has to travel in hilly area daily for which the aforesaid CMO found her unfit.
The learned counsel further contended that the medical opinion rendered on 16.03.2021 by the Medical Board comprising doctors of the Survey of India Dispensary are not authorized for the second medical opinion contemplated under the applicable rules, particularly when the applicant had produced the medical certificates issued by the authorized medical attendant of Central Administrative TribunalGovernment Hospital, i.e. Chief Medical Officer, Uttarkashi. The Appellate Authority failed to consider these material aspects and the applicant’s genuine medical grievances.
The allegation that the applicant had been availing EOL on various pretexts is also denied. It is submitted that leave was sought by the applicant only in unavoidable circumstances, on genuine medical grounds and for private affairs. The respondents’ reliance upon her service record does not justify the impugned action, particularly when the Appellate Authority failed to properly examine the medical documents and grounds raised in the appeal. He reiterated all the grounds taken in the O.A. and submitted that the same are legally sustainable and supported by the facts and documents on record.
He further submitted that the remedy of revision under the CCS (CCA) Rules, 1965 is available against a penalty imposed under the said Rules, whereas in the present case the applicant has been subjected to deemed resignation under Rule 12(2) of the CCS (Leave) Rules, 1972. Hence, the remedy of revision is not available against the impugned action. It is also admitted by the respondents that the impugned order was passed by the Apex body of KVS and there is no further provision of appeal. It is, therefore, prayed that the present O.A. is maintainable and deserves to be allowed.
Heard the learned counsel for both sides and carefully perused the pleadings/judgments placed on record.
7. ANALYSIS
In case of Civil Appeal No. 10567 of 2024 arising out of SLP (C) No. 15788 of 2021 S.D. Manohara vs Konkan Railway Corporation Limited & Ors. decided on 13.09.2024, the Apex Court held as under:
“6.Questioning the letter dated 23.06.2014, formally rejecting his withdrawal, the appellant filed a Writ Petition No. 50662/2014 (S-RES) before the High Court of Karnataka at Bengaluru. The learned Single Judge by its judgment dated 16.07.2019 allowed the Writ Petition and directed reinstatement of the appellant with all benefits. Challenging the said order of the Single Judge, the respondent filed a Writ Appeal No. 3982 of 2019 (S-RES) before the High Court of Karnataka at Bengaluru which was allowed by the Division Bench by the order impugned before us.
7.The analysis and decision of the Division Bench is confined to just two paragraphs in the otherwise long judgment. Paragraphs 5 and 21 of the judgment are as under:-
“5.… Here in the instant case, the resignation was not immediately accepted as sought for by the petitioner on expiry of one month. The resignation which was submitted on 05.12.2013 was accepted with effect from 07.04.2014. This was communicated to the petitioner on 15.04.2014 with a relieving date. The letter to withdraw the resignation was made on 26.05.2014. The petitioner was communicated rejection of his request to withdraw the resignation only on 23.06.2014. The petitioner was relieved on the basis of the said communication on 01.07.2014 and official order was issued on 15.07.2014.... In the present case, the resignation was not accepted as sought for by the petitioner at the expiry of one month from 05.12.2013 and he was allowed to work till he was relieved only on 01.07.2014 with office order issued on 15.07.2014...”
7.1Again in the concluding paragraph no. 21, the Division Bench of the High Court held as under:-
“21.In the light of the above discussion, this Court is of the opinion that the employer was justified in rejecting the request made by the respondent- employee in respect of withdrawal of resignation as his resignation dated 05.12.2013 Central Administrative Tribunalwas accepted with effect from 07.04.2014 and the application for withdrawal was submitted on 26.05.2014, i.e. after expiry of the period on which the resignation came into force.”
8.Questioning the correctness of the decision of the High Court the appellant filed the present appeal, and this Court issued notice on 29.10.2021. We heard Mr. Basavaprabhu S. Patil, Senior Advocate assisted by Mr. Anirudh Sanganeria, AOR and Mr. Samarth Kashyap, Advocate on behalf of the appellant. We also heard Mr. Atul Yeshwant Chitale, Senior Advocate assisted by Mr. Madhav Atul Chitale, Mr. Nirbhay Singh, Advocates, Mrs. Suchitra Atul Chitale, AOR and Mr. Sauryapratapsinh Barhat, Advocate on behalf of the respondents.
9.At the outset, we may record that, even assuming that the appellant withdrew resignation letter dated 05.12.2013 on 26.05.2014, it is just about five months in a long service of 24 years in the Indian Railways. Between these two admitted dates, lie the competing and highly contested claims of parties that the resignation is either withdrawn or not withdrawn before its acceptance. Our enquiry is confined to finding this fact.
10.The respondent-employer strongly relies on the letter of acceptance of resignation dated 15.04.2014 and submits that it has come into effect from 07.04.2014. We are inclined to accept the submission made by the appellant that the letter dated 15.04.2014 is an internal communication. There is no clear evidence about the service of such letter on the appellant. Further, it is also not denied that the appellant has been continuously in touch with the respondent. There is no reason as to why the respondent-Corporation would write a letter on 10.05.2014 requesting the appellant to report to duty for considering his unauthorised absence from 28.04.2014 to 18.05.2014.
11.It is an admitted fact that the appellant has in fact reported to duty on 19.05.2014. There is also the communication of the appellants wife on 17.04.2014 and 20.05.2014 requesting that the resignation dated 05.12.2013 should not be accepted by the respondents. As stated earlier, there is also the letter dated 10.05.2014 of the respondent asking the appellant to report on duty for considering his unauthorised absence from 28.04.2014 to 18.05.2014 which gives an indication that there was no finality to the letter of resignation dated 05.12.2013. The learned single Judge was correct in his conclusion that the resignation was withdrawn before its acceptance. The relevant portion of the single Judge order is as under:-
“13.In the present case, the resignation which was submitted on 05.12.2013 with a request to accept it at the expiry of one month was stated to have been accepted only on 15.04.2014. There is undue delay in accepting the resignation by the respondents. In the above decision, the delay of mere 13 days in communicating acceptance of the resignation, is held to be not an undue delay so as to infer that resignation had not already been accepted. Therefore, the decision in Vedpathi Central Administrative TribunalDinesh Kumar’s case is also of no help to the respondents.
14.In the circumstances, I am of the view that petitioner having submitted his letter dated 26.5.2014 seeking to withdraw the resignation much before the effective date, 01.07.2014 with official order on 15.07.2014 by which the petitioner was relieved of his duties, withdrawal of resignation ought to have been accepted by the respondents and continued the petitioner in service. The contrary decision by the respondents by the communication dated 23.06.2014 that withdrawal of resignation is not accepted and decision accepting the resignation stands good, is not sustainable in law....”
12.In our opinion, the decision of the Single Judge is correct, and the Division Bench committed an error in not eschewing the communication dated 15.04.2014 from consideration.
13.In view of the above, and in the facts and the circumstances of the case, we allow the appeal and set-aside the judgment of the Division Bench of the High Court of Karnataka in Bengaluru in Writ Appeal No. 3982 of 2019 (S-RES).
13.1In the facts and circumstances of the case, we direct that the appellant shall be reinstated into service within thirty days from the date of our order. He shall however be entitled to receive 50 percent of salary for the period he is said to have been relieved from service i.e. from 01.07.2014 under letter dated 23.06.2014 to the date of reinstatement, pursuant to our orders. The amount shall be calculated and paid within a period of two months from today. This period shall however be counted for pensionary benefits, if any.”
Further, in Review Petition (C) No. 2193/2024 in Civil Appeal No. 10567 of 2024, 2025 INSC 1368 filed by the respondents-Konkan Railway Corporation Limited, the Apex Court held as under:
“5.In any event of the matter, justice and equity lie in favour of the employee, who has rendered 23 years of unblemished service. Seen in this context, we are of the opinion that it will be unjust to interpret few letters exchanged between the parties to hold that the employee has deliberately and consciously resigned, particularly when he has been contesting the case for more than a decade. It is in this background we had directed that interests of justice would be sub-served if we direct that the respondent-employee will be entitled to receive only 50% of salary from 01.07.2014 to the date of reinstatement.”
In the present case, although there is no issue of the withdrawal of a resignation, we find that the applicant has put in 23 years of service. The applicant had been making requests for a medical review, which was only done on 16.03.2021 after a gap of 7½ years, as the applicant was absent since 03.10.2013. The applicant remained absent for a period exceeding five years on medical grounds and applied for leave for the same duly supported by medical certificates of Govt. Hospital, had made representations regarding her posting and medical condition. Immediately after submitting a reply to the show cause notice, the applicant rushed to KVS (HQ), Delhi to meet the respondent No.1, but she was not allowed rather advised to seek appointment. The applicant took an appointment and met the Additional Commissioner, KVS on 07.04.2022 and apprised him of all her grievances, and he assured to look into the grievances, but all in vain. After losing all hope, she submitted an application dated 21.06.2022 for voluntary retirement much before the impugned order of deemed resignation dated 14.07.2022 was passed, with an advance copy to respondent No.1. On being asked by respondent No. 2, she also filled in all the forms on 02.07.2022 which were forwarded to respondent No.1 on 08.07.2022. However, instead of accepting the request for voluntary retirement, respondent No. 1 passed an order of deemed resignation on 14.07.2022 based on a medical report dated 16.03.2021 that she is fit to perform the duty. No opportunity was given after obtaining medical advice from Board constituted by the respondents.
Procedurally, the respondents ought to have proceeded to hold a departmental proceeding for unauthorised absence, as she was a regular employee, under the relevant rules. The applicant had been making representations for reconsideration of transfer or modification of posting. It cannot, be construed that she intended to voluntary abandoning the job or deemed to have abundant the job. The claim of unauthorised absence could have been treated in different ways under the Conduct Rules. However, the respondents made an extreme decision to pass an order of deemed resignation instead of considering the case of VRS. Deemed resignation is not an order simpliciter.
The applicant has been held to be continuously on leave or unauthorizedly absent since 03.10.2013. During the course of her service, the applicant availed 1,455 days of Extra Ordinary Leave (EOL) and 358 days of Child Care Leave (CCL) on various pretexts. The competent authority last sanctioned EOL on medical grounds w.e.f. 10.09.2015 to 09.08.2016 (334 days) vide order dated 05.08.2016. It is not disputed that no leave was sanctioned to the applicant thereafter.
One more aspect is that the requirement of certification by a duly appointed Medical Board in a Government Medical College/Government District Headquarters Hospital, or by a panel of doctors nominated by the Company, is intended to ensure that the claim of medical incapacitation is duly verified and that frivolous applications are not entertained. Further, as the Scheme itself contemplates certification by a panel of doctors nominated by the respondents, the respondents were expected to take appropriate action upon receipt of the application and the Medical Board’s certificate. Having remained silent thereafter, the respondents could not subsequently deprive the applicant of the benefit of proper consideration of her case by issuing a charge memo under the Conduct Rules for not joining duty. Such a technical construction would place the applicant at the mercy of administrative delay and defeat the fairness inherent in the decision-making process.
If, at the time of passing the impugned order after receiving an employee’s application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service. Abandonment or relinquishment of service is always a question of intention, and Central Administrative Tribunalnormally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
In the instant case, we find the employer’s action to be lacking in authority of law on two counts. First, it is vitiated by a violation of the principles of natural justice, as the decision not to follow the service book record was taken without affording the applicant an opportunity of hearing. It cannot be gainsaid that there is no material to establish that the applicant had abandoned service either to take up alternative employment or to attend to personal affairs, nor had she failed to communicate with the employer by seeking leave or submitting a letter of resignation.
8. CONCLUSION
In view of the above discussion, we are of the considered opinion that the impugned order dated 14.07.2022, whereby the applicant was treated as deemed resigned from service with retrospective effect from 03.10.2013, and the consequential Appellate order dated 18.02.2025, are liable to be set aside.
Consequently, the impugned orders dated 14.07.2022 and 18.02.2025 are hereby quashed and set aside. The respondents are directed to accept the VRS application of the applicant, with the stipulation that any amount to be paid shall be reduced to the extent of subject to adjusting the leave(s) of all kinds due to her credit against the period of unauthorised absence. The respondents are Central Administrative Tribunalalso directed to assess the qualifying services for pension and pass the appropriate order(s) after giving due credit of the leaves to which she was entitled, as per applicable leave Rules.
The O.A. is allowed to the aforementioned extent only. The aforesaid exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall also stand disposed of. No costs.