Arathy K.N. v Union of India and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 WP(C) NO. 38847 OF 2023`** ## **`PETITIONER:`** ``` ARATHYK.N., AGED34YEARS STAFFNO.6043,ASSISTANTMANAGER,KERALAGRAMINBANK, REGIONALOFFICE,KOZHIKODE-673010,RESIDINGATKOYOLI HOUSE,ATHANIKKAL,WESTHILLP.O.,KOZHIKODE-., - PIN673005 BYADVTERRYV.JAMES ``` ``` RESPONDENTS: ``` ``` 1THEUNIONOFINDIA, MINISTRYOFFINANCE,REPRESENTEDBYITSSECRETARY, - ROOMNO.46,NORTHBLOCK,NEWDELHI,PIN110001 2THEKERALAGRAMINBANK, HEADOFFICE,KGBTOWERS,A.K.ROAD,MALAPPURAM, - REPRESENTEDBYITSCHAIRMAN,PIN676505 3THECHIEFMANAGER KERALAGRAMINBANK,HEADOFFICE,KGBTOWERS,A.K. - ROAD,MALAPPURAM,PIN676505 4THEKERALAGRAMINBANK REGIONALOFFICE,KARAPARAMBA,KOZHIKODE,REPRESENTED - BYITSREGIONALMANAGER,PIN673010 ``` ``` SRI.JAWAHARJOSE,SCFORKERALAGRAMINBANK SRI.SMANU,DSGI ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 07.12.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` **W.P(C) No.38847 of 2023** **2** ## **JUDGMENT** The petitioner is working as an Assistant Manager in the Mavoor Road Branch of the 4th respondent Bank. This writ petition is filed challenging Ext.P16 order issued by the Chief Manager, as per which the request made by the petitioner for the grant of sabbatical leave for pursuing education abroad was rejected. 2. Short facts are as under: 2.1 The petitioner states that she is a B.Sc. Computer Science graduate and has a degree in Master of Business Administration. In order to pursue a course in Post Baccalaureate Diploma in Business Analytics, she applied to Cape Breton University in Canada, and she was offered a seat. To join the University and pursue her higher education, she submitted Ext.P5 request for sabbatical leave. She states that the 3rd respondent sanctioned sabbatical leave to the petitioner by Ext.P10 letter dated 9.3.2023. 2.2 While so, the petitioner’s husband was diagnosed with “Total Retinal Detachment” and had to undergo surgery on 8.8.2023. This fact is **W.P(C) No.38847 of 2023** **3** evident from Ext.P11 treatment details. Faced with the said situation, the petitioner submitted Ext.P12 requesting the 2nd respondent to postpone the sabbatical leave from 8.1.2024 to 8.1.2026, which was the reworked course duration. She states that in the meantime, she had transferred funds for the study program and had expended a sum of Rs.32,78,322/- towards Course Fees, GIC remittance, air ticket charges and other expenses. She states that her request to postpone the leave was rejected by Ext.P14 letter. 2.3 Immediately thereafter, the petitioner approached the respondent and submitted Ext.P15 letter requesting that the sabbatical leave be truncated to the period commencing from 8.1.2024 to 6.9.2025. The petitioner asserts that the said request was rejected by Ext.P16 letter. According to the petitioner, Ext.P16 cannot be sustained under the law, and the same is illegal. 2.4 It is on these assertions that this writ petition is filed seeking the following reliefs: - i) call for the records leading to Exhibit-P16 Order of the 3rd Respondent and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction; - ii. declare that Exhibit-P2 Circular is so far as it gives discretion to grant Sabbatical Leave to the 2nd Respondent without stating on **W.P(C) No.38847 of 2023** **4** what grounds sanction can be rejected is unworkable, arbitrary and illegal; - iii. direct the 2nd Respondent to grant Sabbatical Leave to the Petitioner as requested vide Exhibit-P15 Letter; 3. A counter affidavit has been filed by respondents 2 to 4. After narrating the sequence of events, it is stated that the Bank was expecting a sufficient number of Assistant Managers through promotion during the financial year 2022-2023 while sanctioning sabbatical leave to the petitioner from 6.9.2023 to 6.9.2025. However, it so happened that out of 330 vacancies available in the cadre of Assistant Manager, only 157 vacancies were filled through promotion, leaving 173 vacancies in the cadre. As the Bank was facing an acute shortage of personnel, a decision was taken not to grant sabbatical leave to the petitioner as the shortage of staff would affect the banking activities. It is further stated that by virtue of paragraph No.57 in Chapter VI of the Kerala Gramin Bank (Officers and Employees) Service Regulations, 2013, the Bank is vested with the power to refuse leave or recall an officer who is on leave. It is stated that the above regulations have been promulgated in accordance with the provisions of Section 30 of the Regional Rural Banks Act, 1976. It is also stated that Ext.P2 Circular, which deals with the grant of sabbatical leave to women employees, also empowers the Bank **W.P(C) No.38847 of 2023** **5** to recall the services of an employee in the event of any exigencies. 4. A reply affidavit has been filed by the petitioner. It is stated that the petitioner was granted leave when 330 posts were vacant, and if that be the case, after having granted leave initially, the same could not have been rejected for the reasons stated in the counter. It is further stated that a certain Smt.Bhagyalakshmi, who was working in the Mavoor Road Branch as a Branch Manager, was sanctioned sabbatical leave from 15.5.2023 to meet her spouse, and if that be the case, there is no justification in taking a contrary stand insofar as the petitioner is concerned. 5. Sri. Terry V James, the learned counsel appearing for the petitioner, submitted that the rejection of the request for leave cannot be sustained under law. According to the learned counsel, the reliance placed by the respondents in the counter to the various provisions of the Rules and the Guidelines will not come to their rescue as, in the instant case, leave was originally granted to the petitioner. The learned counsel submits that based on the legitimate expectation that leave would be granted, the petitioner has invested more than 30 lakhs rupees, and it was due to an unfortunate medical situation involving her husband that she had to cancel the leave. It is **W.P(C) No.38847 of 2023** **6** submitted that the petitioner has to leave the country as early as possible, as the course is scheduled to commence in the 1st week of January, 2024. It is urged that in the order refusing leave, absolutely no reasons have been stated. As an afterthought, unsustainable grounds have been raised in the counter with regard to the shortage of personnel. 6. In response, the learned counsel appearing for the Bank submitted that the extant Rules, as well as the Guidelines, stipulate that leave cannot be claimed as a matter of right. It is submitted that even assuming that sabbatical leave was granted to the petitioner as per her initial application, the Bank could have revoked the leave and recalled the officer who is on leave to join duty in the Bank. It is submitted that it is on account of the exigencies of service and paucity of personnel that the Bank was constrained to reject the request for leave. It is urged that the contention that no reasons have been stated in the rejection letter cannot be sustained as it has been laid down in **Union of India and Others v. E G Nambudiri[1]** that the principles of natural justice would have strict application only where a vested right available to a person is adversely affected by an administrative > 1 [(1991) 3 SCC 38] **W.P(C) No.38847 of 2023** **7** order. In the case on hand, no vested right of the petitioner is adversely affected, and if that be the case, non-furnishing of reasons in the order impugned is of no consequence. 7. I have considered the submissions advanced and have carefully scrutinized the records. 8. I find that it was on 26.12.2022 that the petitioner had applied for sabbatical leave for the period from 10.8.2023 to 10.8.2025. It was by Ext.P10 letter dated 9.3.2023 that the petitioner, a woman employee, was granted leave for the period from 6.9.2023 to 6.9.2025 for pursuing education abroad. Ext.P11 treatment details would disclose that the petitioner's husband had to undergo eye surgery. It was for the above reason that the petitioner had to seek postponement of the leave period. However, the same was rejected. It is with a view to pursuing the Bank to grant her leave that she had truncated the leave period from 8.1.2024 to 6.9.2025 in her second application. However, the same was rejected by holding as under: We regret to inform you that the competent authority has not considered your request for sabbatical leave from 8.1.2024 to 6.9.2025 (608 days). Hence, as informed earlier vide letter **W.P(C) No.38847 of 2023** **8** Ref:9/KGB/HRW/LEAVE/548/2023 dated 12.9.2023 prevails. This is for your kind information. 9. As rightly submitted by the learned counsel appearing for the petitioner, the shortage of personnel in the bank is not stated as a reason for non-grant of leave. It would be pertinent to note that Ext.P10 was issued on 9.3.2023, sanctioning leave from 6.9.2023 to 6.9.2025. It is not disputed that it was by Ext.P18 Memo No. 17/2023 dated 3.2.2023 that 330 vacancies were notified. Later, Ext.P19 was issued on 8.3.2023, listing the result of 157 Office Assistants who were promoted to Junior Management Grade with effect from 8.3.2023. In other words, on the date of sanctioning of leave on 9.3.2023, the respondents were well aware of the vacancy position in the bank. If that be the case, the contention in the counter that the request for leave was rejected because of the shortage of staff cannot be sustained. 10. The contention of the petitioner that the letter refusing leave is bereft of reasons and is in violation of the principles of natural justice is countered by the learned counsel appearing for the respondents by relying on the law laid down in **E.G.Nambudiri** (supra). His contention is that in **W.P(C) No.38847 of 2023** **9** view of the Guidelines and Rules, the petitioner has no vested right and if that be the case, she cannot contend that any of her rights are adversely affected by the action of the respondents. In paragraph No.8 of the judgment, it was held by the Apex Court as under: **8.** The question is whether principles of natural justice require an administrative authority to record reasons. Generally, principles of natural justice require that opportunity of hearing should be given to the person against whom an administrative order is passed. The application of principles of natural justice, and its sweep depend upon the nature of the rights involved, having regard to the setting and context of the statutory provisions. Where a vested right is adversely affected by an administrative order, or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded opportunity of hearing before the order is passed. But principles of natural justice do not require the administrative authority to record reasons for the decision as there is no general rule that reasons must be given for administrative decision. Order of an administrative authority which has no statutory or implied duty to state reasons or the grounds of its decision is not rendered illegal merely on account of absence of reasons. It has never been a principle of natural justice that reasons should be given for decisions. See: Regina v. Gaming Board for Great Britain, ex p. Benaim and Khaida [(1970) 2 QB 417, 431] . Though the principles of natural justice do not require reasons for decision, there is necessity for giving reasons in **W.P(C) No.38847 of 2023** **10** view of the expanding law of judicial review to enable the citizens to discover the reasoning behind the decision. Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated. (emphasis supplied) 11. The Apex Court had held that where a vested right is adversely affected by an administrative order or where civil consequences ensue, principles of natural justice apply even if the statutory provisions do not make any express provision for the same, and the person concerned must be afforded an opportunity of hearing before the order is passed. In **S.L. Kapoor v. Jagmohan[2]** , the Apex Court had occasion to elucidate the meaning of “Civil Consequences”, and it was held that the said question was posed and answered in **Mohinder Singh Gill v. Chief Election Commissioner, New Delhi[3]** . Krishna Iyer, J., speaking for the Constitution Bench had held as under: “But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps? ‘Civil consequences’ undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive > 2 [(1980) 4 SCC 379] > 3 [(1978) 1 SCC 405] **W.P(C) No.38847 of 2023** **11** connotation, everything that affects a citizen in his civil life inflicts a civil consequence.” **==> picture [450 x 33] intentionally omitted <==** 12. As held by the Apex Court, Civil consequences undoubtedly cover infractions of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. As the rejection order was passed after initially granting leave to the petitioner and as it has civil consequences, it was desirable for the respondents to state reasons, which they have not done. Supplementing reasons in the counter affidavit cannot advance the case of the respondents in view of the law laid down in **Mohinder Singh Gill** (supra). 13. The next contention raised by the learned counsel appearing for the respondent is that leave cannot be claimed as a matter of right by the petitioner. The said provision in the Rules may have no application in the facts of the instant case since the respondents, after applying their mind, had sanctioned leave to the petitioner by Ext.P10 order. Due to an unfortunate medical condition in the family, the petitioner was unable to **W.P(C) No.38847 of 2023** **12** join the University. Without any delay, she had sought for sabbatical leave for a shorter period, i.e., from 8.1.2024 to 6.9.2025. This was rejected without affording any reasons whatsoever. I have already held that the explanations given by the respondents in the counter cannot be accepted. Furthermore, I find that the petitioner has invested huge sums of money to pursue her education abroad for her career advancement. After having granted leave initially, there was no justification on the part of the respondents in refusing her request at a later stage, that too, for a shorter period. The respondents ought to have considered the fact that the petitioner is a woman employee, that her request for leave was for pursuing education abroad and the initial postponement sought was for tending to her husband who had to undergo surgery. None of these aspects were considered by the respondents. 14. Having considered the matter from all its perspectives, I am of the considered opinion that the petitioner is entitled to succeed. Ext.P16 will stand quashed. There will be a direction to the 2nd respondent to grant sabbatical leave to the petitioner as requested in Ext.P15 letter. Orders shall be passed as expeditiously as possible, at any rate, within one **W.P(C) No.38847 of 2023** **13** week from the date of receipt of a copy of this judgment. This writ petition will stand allowed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP **W.P(C) No.38847 of 2023** **14** ## **`APPENDIX OF WP(C) 38847/2023`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE HR POLICY OF THE 2ND`| ||`RESPONDENT.`| |`Exhibit P2`|`TRUE COPY CIRCULAR NO.157/2015 DATED`| ||`17.8.2015 OF THE 2ND RESPONDENT`| |`Exhibit P3`|`TRUE COPY OF EMPLOYEES GRIEVANCES REDRESSAL`| ||`POLICY 2023-24 OF THE 2ND RESPONDENT.`| |`Exhibit P4`|`TRUE COPY NOTICE OF ACCEPTANCE DATED`| ||`15.12.2022 SENT BY CAPE BRETON UNIVERSITY,`| ||`NOVA SCOTIA, CANADA TO THE PETITIONER.`| |`Exhibit P5`|`TRUE COPY OF THE PETITIONER'S APPLICATION`| ||`VIDE LETTER DATED 26.12.2022 FOR SABBATICAL`| ||`LEAVE TO THE 2ND RESPONDENT.`| |`Exhibit P6`|`TRUE COPY OF APPLICATION FORM FOR`| ||`SABBATICAL LEAVE DATED 13.1.2023 ALONG WITH`| ||`RECOMMENDATION OF THE 4TH RESPONDENT DATED`| ||`16.1.2023, LETTER OF UNDERTAKING AND`| ||`DECLARATION DATED 13.1.2023 SUBMITTED BY`| ||`THE PETITIONER TO THE 2ND RESPONDENT.`| |`Exhibit P7`|`TRUE COPY OF LETTER DATED 6.3.2023 SENT BY`| ||`THE BANK TO THE PETITIONER.`| |`Exhibit P8`|`TRUE COPY OF FD RECEIPT DATED 18.10.2023 OF`| ||`THE KERALA GRAMIN BANK`| |`Exhibit P9`|`TRUE COPY OF AIR TICKETS BOOKED BY THE`| **W.P(C) No.38847 of 2023** **15** ``` PETITIONERANDPAYMENTCONFIRMATION ExhibitP10TRUECOPYOFLETTERDATED9.3.2023OFTHE 3RDRESPONDENTTOTHEPETITIONER ExhibitP11TRUECOPYOFTREATMENTDETAILSISSUEDBY THEARAVINDAEYEHOSPITAL,COIMBATORETO THEPETITIONER'SHUSBAND ExhibitP12TRUECOPYOFLETTERDATED9.8.2023SENTBY THEPETITIONERTOTHE2NDRESPONDENT. ExhibitP13TRUECOPYOFE-MAILDATED11.10.2023SENT BYTHEPETITIONERTOTHECAPEBRENTON UNIVERSITYANDREPLYDATED11.10.2023OF THEUNIVERSITYREPLIEDTOTHEPETITIONER. ExhibitP14TRUECOPYOFLETTERDATED12.9.2023OFTHE 3RDRESPONDENTTOTHEPETITIONER ExhibitP15TRUECOPYOFLETTERDATED19.9.2023SENTBY THEPETITIONERTOTHE2NDRESPONDENT. ExhibitP16TRUECOPYOFLETTERDATED21.10.2023SENT BYTHE3RDRESPONDENTTOTHEPETITIONER. ExhibitP17TRUECOPYOFLETTERDATED15.11.2023SENT BYTHEPETITIONERTOTHE2NDRESPONDENT ExhibitP18TRUECOPYOFMEMONO.17/2023DATED3.2.2023 OFTHE2NDRESPONDENT ExhibitP19TRUECOPYOFTHEMEMONO.29/2023DATED 8.3.2023OFTHE2NDRESPONDENT ExhibitP20TRUECOPYOFCOURSEFEESREMITTEDBYTHE PETITIONER ```