R. Sasi Kumar vs The Additional Commissioner Of ...
2022 Latest Caselaw 10306 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
             THE HONOURABLE MR.JUSTICE BASANT BALAJI
  FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                      OP (CAT) NO. 59 OF 2022
            OA 180/567/2019 OF CENTRAL ADMINISTRATIVE
                      TRIBUNAL,ERNAKULAM BENCH
PETITIONER/S:

            R. SASI KUMAR
            AGED 72 YEARS
            FORMER STENOGRAPHER, INCOME TAX DEPARTMENT,
            A.WARD, SATNA (MP II).
            NOW RESIDING AT THOPPIL HOUSE,
            PARUMALA P.O., PATHANAMTHITTA, KERALA, PIN -
            689626

            BY ADVS.
            T.KABIL CHANDRAN
            R.ANJALI



RESPONDENT/S:

    1       THE ADDITIONAL COMMISSIONER OF INCOME TAX
            RANGE SATNA, SATNA (MP), PIN - 485001

    2       THE PRINCIPAL COMMISSIONER OF INCOME TAX II
            CENTRAL REVENUE BUILDING, NAPIER TOWN,
            JABALPUR (MP), PIN - 482001

    3       THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX
            (CCA), MP & CHATTISGARH, BHOPAL (MP), PIN - 462011


     THIS     OP   (CAT)   HAVING       COME   UP   FOR   ADMISSION   ON
07.10.2022,     THE   COURT   ON    THE    SAME     DAY   DELIVERED   THE
FOLLOWING:
 OP (CAT) NO. 59 OF 2022



                                         -2-


                       A.K.JAYASANKARAN NAMBIAR
                              & BASANT BALAJI, JJ.
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                         O.P. (CAT) .NO. 59 OF 2022
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                                 JUDGMENT

(Dated this the 7th day of October 2022)

Basant Balaji J.,

This Original Petition is filed challenging the order dated

17.6.2022 in OA. No.180/00567/2019 on the files of the Central

Administrative Tribunal, Ernakulam bench.

2. The petitioner filed the Original Application for calling

records leading to Exts.A1 to A10 and to set aside Ext.A10 and to

grant service benefits to the applicant. The Tribunal, by the

impugned order, dismissed the application.

3. The brief facts necessary for the disposal of this Original

Petition are as follows: The petitioner joined the Income Tax

department on 25.2.1969 and was working as Stenographer in

various places of Madhya Pradesh from 1969 onwards. During the

second half of 1980 he proceeded on leave, and it was extended

twice on medical grounds for 30 days each. Later the department OP (CAT) NO. 59 OF 2022

issued letter to the petitioner informing that no further extension

of leave would be granted, and he was directed to report back to

duty. Instead of joining the duty, the petitioner submitted his

resignation on 1.8.1981. On 5.9.1986 the petitioner submitted a

resignation withdrawal application along with the fitness

certificate from the Medical Officer. From 1986 to 2017 the

petitioner was filing representations one after the another.

Ultimately by Ext.A10 communication dated 12.3.2019 he was

informed that the application filed claiming service benefits is

rejected. Challenging Ext.A10, the petitioner filed the Original

Application before the Tribunal.

4. A reply statement was filed by the respondents in which

it was contended that the Original Application is hopelessly

barred by limitation and that he is claiming benefits after 40

years of his resignation. The petitioner joined the department

during February 1969, and he continued service till February

1981. Though leave was granted to him he was directed to join

duty. But he did not do so, and he submitted resignation in the

year 1981. Thereafter, in 1986 after a lapse of 5 years, an

application was filed for withdrawal of his resignation application. OP (CAT) NO. 59 OF 2022

The next correspondence is made by the petitioner in 2014 and

the third correspondence in the year 2016. Thus, the application

is hopelessly barred by laches. The respondents also contended

that as per Rule 12 of Central Civil Services (Leave) Rules, 1972

(for short 'the CSS Rules'), no Government servant shall be

granted leave of any kind for a continuous period exceeding 5

years. The petitioner, after filing his resignation application in

1981, did not join the department. Therefore, he is deemed to

have abandoned his service and the question of accepting the

resignation does not arise. It was also contended that under Rule

26 of the CSS Rules, a resignation from a service or post, unless it

is allowed to be withdrawn in public interest by appointing

authority entails for forfeiture of past service. Hence the

petitioner is not entitled to any of the reliefs.

5. The petitioner filed a rejoinder to the reply filed by the

respondents. An additional reply was also filed by the

respondents. Thereafter, the Tribunal considered the merits and

dismissed the Original application.

6. It is an admitted fact that the petitioner proceeded on

leave in the year 1981 and his leave was extended twice for a OP (CAT) NO. 59 OF 2022

period of 30 days each. To the letter sent by the department

informing that no further extension would be granted and

directing him to report back, the petitioner did not join duty.

7. Annex.R(2) is the letter dated 18.2.1982 issued by the

Assistant Commissioner of Income Tax informing the petitioner

about the amounts due to the department and directed the

petitioner to clear it for consideration of the resignation letter.

Though he responded to the letter by issuing a reply, the

petitioner did not take any step to join duty nor clear the arrears.

His request for recalling the resignation was filed after a period of

5 years from the date on which the resignation letter was

submitted. Hence it can be taken that he had abandoned the

service. Though according to the petitioner, he had filed repeated

representations, he has not approached any legal Forum for

redressal of his grievance and the Original Application was filed

before the Tribunal only in the year 2019 i.e.,after a period of 38

years from the date on which the resignation letter was

submitted.

8. The Tribunal relying on the decision reported in State of

Tamil Nadu v. Seshachalam [(2007) 10 SCC 137], wherein the OP (CAT) NO. 59 OF 2022

Supreme Court observed that "delay or laches is a relevant factor

for a court of law to determine the question as to whether the

claim made by an applicant deserves consideration. Delay and/or

laches on the part of a Government servant may deprive him of

the benefit which had been given to others ... ...."

9. The Tribunal also relied on the decision reported in State

of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396]. The

same dictum was laid down in the decisions reported in State of

Orissa v. Arun Kumar Patnaik [(1976) 3 SCC 579]. Similarly, in

Chennai Metropolitan Water Supply and Sewerage Board & others

v. T T Murali Babu in Civil appeal No.1941 of 2014 it was

reiterated that making repeated representations is not a

satisfactory explanation for delay.

10. The main contention raised by the counsel for the

petitioner is that resignation letter submitted by him in the year

1981 was never accepted and hence he had to be deemed as in

service. Though he has filed a letter recalling resignation in the

year 1986, it was also not accepted. So, by no stretch of

imagination, it can be said that he was not an employee.

Therefore, the laches is on the part of the department in not OP (CAT) NO. 59 OF 2022

accepting the resignation and allowing him to go out of service

without the benefits that accrued to him over the years.

11. It may be noted that if the resignation is not accepted

by the department, then the petitioner is deemed to be in

service. He was directed to report for duty before the leave

period was over, stating that no further extension of leave would

be granted. In such a case keeping out of service for a period of

five year and thereafter submitting application for recalling of the

resignation may not be said to be a valid application and it is only

abandonment of service. Moreover as per Rule 12 of the CSS

Rules', the maximum amount of continuous leave that a

Government servant can take is five years. Admittedly the

petitioner has not taken any leave nor it was sanctioned and he

was out of service for a period of five years. So, it is a case of

abandonment of service and the petitioner has left the job. The

Tribunal has appreciated the merits of the case considered the

relevant Rules as well as the dictum of the honorable Apex Court

and held that the petitioner is not entitled for any reliefs and

accordingly the Original Application was dismissed.

12. On going through the order of the Tribunal, we are in OP (CAT) NO. 59 OF 2022

full agreement with the findings entered by the Tribunal, and we

see no ground to interfere with the order of the Tribunal. The

Original Petition is devoid of merits and is accordingly dismissed.

sd

A.K.JAYASANKARAN NAMBIAR JUDGE

sd BASANT BALAJI, JUDGE

dl/OP(CAT)592022 OP (CAT) NO. 59 OF 2022

APPENDIX OF OP (CAT) 59/2022

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE CONDUCT CERTIFICATE OF THE APPLICANT DATED 14.08.1980

Annexure2 TRUE COPY OF THE RESIGNATION LETTER DATED 01.08.1981 ALONG WITH ITS TYPED VERSION

Annexure A3 TRUE COPY OF THE RESIGNATION WITHDRAWAL LETTER DATED 29.10.1986

Annexure A4 TRUE COPY OF THE FITNESS CERTIFICATE DATED 05.09.1986

Annexure A5 TRUE COPY OF THE LETTER DATED 08.05.2017 ISSUED BY THE 2ND RESPONDENT

Annexure A6 TRUE COPY OF THE RTI APPLICATION DATED 27.11.2018

Annexure A7 TRUE COPY OF THE REPLY TO THE RTI APPLICATION DATED 30.12.2018

Annexure A8 TRUE COPY OF THE LETTER DATED 05.02.2019 ISSUED BY THE 2ND RESPONDENT

Annexure A9 TRUE COPY OF THE ORDER DATED 18.02.2019 ISSUED BY THE 2ND RESPONDENT

Annexure A10 TRUE COPY OF THE LETTER DATED 12.03.2019 ISSUED BY THE 1ST RESPONDENT

Annexure R1 TRUE COPY OF THE RESIGNATION LETTER DATED 01.08.1981 OP (CAT) NO. 59 OF 2022

Annexure R2 TRUE COPY OF THE LETTER DATED 18.02.1982

Annexure R3 TRUE COPY OF THE REPLY TO THE LETTER DATED 18.02.1982 SUBMITTED BY THE APPLICANT REGARDING OUTSTANDING AMOUNT

Exhibit P1 A TRUE COPY OF THE O.A. NO.

180/00567/2019 ALONG WITH ANNEXURES

Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT IN O.A. NO. 180/00567/2019 ALONG WITH ANNEXURES

Exhibit P3 A TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A. NO.

180/00567/2019

Exhibit P4 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT IN O.A. NO. 180/00567/2019

Exhibit P5 A TRUE COPY OF THE ORDER PASSED BY THE CAT, ERNAKULAM BENCH IN O.A. NO.

180/00567/2019 DATED 17.06.2022