Union of India and Others v. B. Suja Pillai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **SATURDAY, THE 4[TH] DAY OF DECEMBER 2021/13TH AGRAHAYANA,1943 OP (CAT) NO. 66 OF 2021** **AGAINST THE ORDER IN OA NO.401/2020 DATED 09.04.2021 OF THE** ## **CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN O.A.:** - **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI-110001.** - **2 THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI-110001.** - **3 THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.2, R.K. PURAM, NEW DELHI110006, THROUGH ITS REGISTRAR.** - **BY SRI.S.MANU, ASSISTANT SOLICITOR GENERAL OF INDIA** ## **RESPONDENT/APPLICANT IN O.A.:** **B.SUJA, AGED 50 YEARS, W/O. K.N. ANIL KUMAR, FORMERLY ASSISTANT REGISTRAR, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, CHENNAI-600006, RESIDING AT VI/644A, HARIHARAIYER ROAD, PERUMBAVOOR-683542, ERNAKULAM DISTRICT.** **BY ADVS. M/S. T.C.GOVINDASWAMY, KALA T.GOPI, B.NAMADEVA PRABHU** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 04.12.2021,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT) No.66 of 2021 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **----------------------------------------------------------------------** ## **O.P.(CAT) No. 66 of 2021** _[arising out of the impugned final order dated 9.4.2021 in O.A. No.401/2020 on the file of the CAT, Ernakulam Bench]_ ## **-----------------------------------------------------------------------** ## **Dated this the 4[th] day of December, 2021** ## **J U D G M E N T** ## **Alexander Thomas , J.** The sole respondent herein has filed the instant Ext.P1 original application, O.A. No.401/2020 before the Central Administrative Tribunal, Ernakulam Bench, with the following prayers:- - _“(i) Call for the records leading to the issue of Annexure A39 and quash the same;_ - _(ii) Declare that the applicant must be deemed to have withdrawn her resignation and that the applicant must be deemed to be on duty w.e.f. 10.11.2016 or w.e.f. such date as this Hon’ble Tribunal might be plelased to consider just and proper;_ - _(iii) Award costs of and incidental to this application;_ - _(iv) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case.”_ 2. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 09.04.2021, finally disposing of the instant O.A. No.401/2020, by holding that the impugned order at Anx.A39 refusing to accept the withdrawal of the resignation of the applicant in terms of Rule 26(4) of the CCS (Pension Rules), 1972, is illegal and arbitrary and accordingly the impugned O.P.(CAT) No.66 of 2021 3 Anx.A39 rejection order has been quashed and the Tribunal has declared that the applicant is entitled for withdrawal of resignation in terms of Rule 26(4) of the CCS (Pension) Rules and the respondents in the O.A. have been directed to reinstate the applicant after allowing the withdrawal of resignation within a period of 30 days, etc. 3. Being aggrieved by the impugned Ext.P3 final verdict of the Tribunal in the above O.A., the respondents in the O.A. have filed the instant original petition under Articles 226 & 227 of the Constitution of India, with the following prayer:- _“………..to set aside Ext P3 Order in O.A. No.180/0401/2020 dated 09.04.2021 of the Central Administrative Tribunal Ernakulam Bench, in the interest of justice.”_ 4. Heard Sri.S.Manu, learned Assistant Solicitor General of India, appearing for the petitioners in the O.P./respondents in the O.A. and Sri.T.C. Govindaswamy, learned counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal. 5. The sole respondent herein (hereinafter referred for convenience as the original applicant/applicant) who is a LLB & LLM Graduate with MBA, was initially selected through the selection process of the Union Public Service Commission (UPSC) O.P.(CAT) No.66 of 2021 4 and appointed as Assistant in Group B Gazetted service in the Legislative Department of the Union Ministry of Law and Justice in the year 1993. Later, she was selected and appointed as Assistant Registrar in Group A Gazetted service in the Junior Time Scale in the Customs, Excise & Service Tax Appellate Tribunal ('CESTAT' for short) and she was offered to be relieved from the Legislative Department and then joined the CESTAT service with continuity of service. Consequently, she was initially posted at the Principal Bench of the CESTAT in Mumbai. It is stated that the applicant is a native of the State of Kerala and she is the mother of two daughters; elder one of which was then about 5 years of age and the younger was 1 year at that time. As of now the applicant's daughters are aged 23 & 20, respectively. After joining the Mumbai Bench, the applicant was on deputation to Kerala for two short spells and later she was directed to join at the Delhi Bench of the CESTAT. At that time she was forced to leave her two daughters who were then in serious health problems mainly for want of maternal care and attention to them. The records would clearly show that the applicant's mother-in-law was an acute cancer patient. The applicant's husband is a practicing O.P.(CAT) No.66 of 2021 5 Advocate, who is having his main practice in Perumbavoor in Ernakulam District. Faced with various issues relating to the mental well being and illness of her two daughters as well as the serious cancer ailments of her mother-in-law, the applicant was constrained to seek a transfer on deputation to Kerala, but the same was not considered by the departmental authorities. Her request for transfer to southern Benches of the CESTAT was also not acted upon. It appears that she was also denied Child Care Leave (CCL) and that owing to severe mental stress and frequent travels, she had also become sick. 6. From the pleadings and materials on record it appears that the respondents in the O.A. were threatening to initiate disciplinary action against the applicant for taking leave. This constrained her to approach the competent authority of the Union Ministry of Finance for their intervention and consequent to the intervention made by the Ministry, she was given posting at Southern Bench at Chennai, as can be seen from Anx.A1 order dated 27.03.2012, issued by the Ministry of Finance. While working at Chennai, she was again constrained to take the medical leave in the year 2015 due to serious Gynecological ailments. She O.P.(CAT) No.66 of 2021 6 had then submitted requisite medical certificates along with the application for leave. While working at Chennai, she had to travel frequently to Kochi every week to meet the requirements of her young daughters and aged mother-in-law, who were all then based in Ernakulam District, Kerala. It appears that her request for deputation to Kerala was not acted upon and when she sought sanction for leave on medical grounds, the respondents had issued order dated 03.09.2015, transferring her all the way from Chennai in Tamil Nadu to Allahabad in Uttar Pradesh. Consequently she was relieved from Chennai, in her absence with a direction that she should join at Allahabad. She had then filed representation for review of the said transfer order to Allahabad and she had also given a representation in that regard to the President of the CESTAT for considering her case sympathetically, since the applicant was constrained to continue on medical leave due to her treatment and R3 in the O.A. directed the Medical Superintendent, Government Hospital, Ernakulam, on 10.12.2015 to subject the applicant for medical examination, as can be seen from Anx.A11 dated 10.12.2015. She had undergone the medical examination process before the medical board on 29.12.2015, 08.01.2016, O.P.(CAT) No.66 of 2021 7 15.01.2016 & 19.01.2016 for various medical check-ups as is evident from Anx.13 series of documents dated 08.01.2016, 15.01.2016 & 19.01.2016 issued by the Superintendent and Chairman, Government General Hospital, Ernakulam. The respondents in the O.A. had issued communication on 13.06.2016 alleging that she was not properly attending the medical examination there and she was directed to appear before the Medical Board constituted by the Rajeev Gandhi Government General Hospital, Chennai. Thereafter she received a letter dated 25.02.2016, directing her to join at Allahabad and if she fails to do so she will be proceeded against for misconduct. Thereupon she had given representation to R3 in the O.A. highlighting her difficulties and problems. According to the applicant, she was made to suffer a series of tragic incidents including the various problems of her growing up daughters and the serious cancer ailments of her mother-in-law as well as various serious ailments suffered by her and then she was made to face series of proceedings issued by the respondents in the O.A. threatening to take disciplinary action against her and transferring her all the way from Chennai in Tamil Nadu to Allahabad in Uttar Pradesh and O.P.(CAT) No.66 of 2021 8 her request for deputation to Kerala was not even considered, in any manner, she thought that this was the last straw on the camel's back and that the only way that she could live in peace in the world is to attend her family members and due to this cumulative tragic incidents the only way out is to tender her resignation from the service as otherwise the respondents would take disciplinary action which would only add to her woes and sufferings. Thereupon she had submitted Anx.A20 letter dated 08.03.2016 seeking to resign from the post of Assistant Registrar of CESTAT. It appears that there was no response to Anx.A20 letter dated 08.03.2016 for a long time and finally the resignation letter was accepted as per Anx.A21 dated 27.10.2016, wherein it is stated that her resignation will stand accepted with retrospective effect from 21.10.2016, presumably on the ground that the competent authority had granted sanction to accept the resignation on 21.10.2016. 7. Further that, her well-wishers, close family members and friends advised that it will be only in the better interest of her and her family members that she withdrawn her resignation and in the changed circumstances, she had submitted Anx.A22 letter O.P.(CAT) No.66 of 2021 9 dated 10.11.2016, for withdrawing the abovesaid resignation. It is clearly averred in the O.A. that Anx.A22 letter dated 10.11.2016 was, in fact, personally handed over to the Registrar, CESTAT. Anx.A23 is the covering letter dated 10.11.2016, addressed to the R3 in the O.A. (Registrar) requesting to forward Anx.A22 letter dated 10.11.2016 withdrawing her resignation, to R1 in the O.A. Further that, the applicant was never served with any formal order relieving or terminating her from service, consequent to the acceptance of the resignation and also there was no response as to her request of withdrawal of resignation. That, her mother was then constrained to submit Anx.A24 representation dated 21.11.2016, addressed to the Union Minister for Finance, requesting to ensure the withdrawal of resignation. Still further on 10.08.2017 the applicant had submitted yet another representation directly to the Registrar and to the President of the CESTAT by personally going over to Delhi and requested those authorities to allow her to withdraw the resignation, but it was in vain. It is much later that she was served with Anx.A27 letter dated 20.09.2017 issued by the Joint Registrar of the CESTAT informing that the competent authority of the Union Government has refused to allow the plea of O.P.(CAT) No.66 of 2021 10 the applicant for withdrawal of resignation in terms of Rule 26(4) of the CCS (Pension) Rules, 1972. Then the respondents in the O.A. had taken the stand that the delay on her part in submitting the withdrawal of resignation she had also submitted a formal request for condoning the delay in that regard and the same was also not acted upon. An alternate plea was also made that she may be given atleast monthly pro-rata pension for the service rendered. Faced with the situation she was constrained to approach the Central Administrative Tribunal, Chennai Bench, by filing an O.A. which was disposed of by directing the respondents therein to consider the representation of the applicant under Rule 26(4) of the CCS (Pension) Rules and to pass a speaking order, etc. She had also submitted yet another representation on 18.11.2019 along with a copy of the order of the Tribunal, to R1 in the O.A. Later, R1 in the O.A. has issued Anx.A39 letter dated 06.01.2020 rejecting the plea in her representation. The operative portion of the impugned Anx.A39 order dated 06.01.2020 issued by R1 in the O.A. as contained in para No.10 thereof reads as follows:- _“10. Now, vide representation dated 18.11.2019, Ms. B Suja has forwarded therewith a copy of Hon’ble CAT order dated 08.11.2019 in O.A. No.310/2019 and once again requested to withdraw her resignation and allow her to join the duty. In this regard, as noted above, DoPT guidelines provides that it is only in exceptional cases,_ O.P.(CAT) No.66 of 2021 11 _which are properly justified from the point of public interest by the Administrative Department concerned would it entertains any request to relax the above time limit of 90 days. Even in such exceptional cases, proposals will be considered only if the time limit is exceeded only very marginally. Therefore, the request of Ms. B Suja for withdrawal of resignation cannot be acceded to in terms of sub-rules (4) of Rule 26 of the CCS (Pension) Rules, 1972 and DoPT OM No.28035/2/2007-Estt.(A) dated 04.12.2007.”_ 8. The Tribunal has found as per the impugned Ext.P3 final verdict that the applicant has made the request for withdrawal of the resignation well within the time and in accordance with the parameters envisaged in Rule 26(4) of the CCS (Pension) Rules. 9. Sub-Rule (4) of Rule 26 of the CCS (Pension) Rules, 1972, is the relevant Rule that governs the field, which reads as follows:- _“Rule 26(4) The Appointing Authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:--_ - _(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;_ - _(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;_ - _(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;_ O.P.(CAT) No.66 of 2021 12 - _(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.”_ 10. Clause (i) of Sub-Rule 4 of Rule 26 stipulate that the appointing authority may permit a person to withdraw his resignation in public interest, if the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on account of the integrity, efficiency or conduct and the request for withdrawal of resignation is to be made as a result of material changes in circumstances which originally compelled him to tender the resignation. Further, Clause (ii) thereof envisages that during the period intervening between the date on which resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper. 11. More importantly, Clause (iii) of Rule 26(4) stipulate that the period of absence from duty between the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days. Further, Clause (iv) of Rule 26(4) also provide that the post, which was vacated by the Government servant on the acceptance of his O.P.(CAT) No.66 of 2021 13 resignation or any other comparable post, is available. 12. Here one of the main grounds of rejection cited in the impugned Anx.A39 order to reject the plea for withdrawal of resignation is that the applicant had not adhered to the time line stipulated in Clause (iii) of Rule 26(4). The Tribunal has found that from the pleadings and materials on records, it is evident that the applicant has, in fact, submitted Anx.A20 letter dated 08.03.2016 resigning from service. Further that, Anx.A21 is the letter dated 27.10.2016, whereby the Registrar of the CESTAT has conveyed that the competent authority of the Union Government has accepted the resignation of the applicant as per Anx.20 letter dated 08.03.2016 with effect from 21.10.2016. Hence, 90 days' period contemplated in Rule 26(4)(iii) will start running from 27.10.2016 (date of issuance of Anx.A21 letter accepting Anx.A20 resignation letter dated 08.03.2016). The 90 days' period from the date of issuance of Anx.A21 letter dated 27.10.2016 was to expire on 26.01.2017. The Tribunal has noted that the applicant has, in fact, submitted Anx.A22 letter dated 10.11.2016 withdrawing her resignation. Hence, the Tribunal has found that the withdrawal of resignation has been made by the petitioner well before the expiry O.P.(CAT) No.66 of 2021 14 of the 90 days' outer time limit conceived in Rule 26(4)(iii), which was to expire only on 26.01.2017. On this basis, the Tribunal has held that though there was no delay on the part of the petitioner in submitting the withdrawal of the resignation and since the plea for withdrawal of resignation has been made well before the expiry of the 90 days' period of limitation prescribed in Rule 26(4)(iii), the ground of rejection cited in the impugned Anx.A39 rejection order that the withdrawal of resignation is liable to be rejected on the ground of exceeding of the time limit, etc. was found to be plainly untenable, unreasonable and against the statutory Rules. Further the Tribunal has also noted that the applicant has been made to suffer a series of travails and woes and that it is much more that could have been suffered by any woman employee and that her children were having serious issues and sufferings on account of them being parted away from their mother, who was then serving far outside Kerala and her mother-in-law was having serious cancer ailments and top it all the applicant was also suffering from serious gynecological diseases and some ailments relating to spinal cord as evident from the MRI records produced in the O.A. 13. The Tribunal has also noted that none other than the O.P.(CAT) No.66 of 2021 15 competent authority of the Union Ministry of Finance has noted that the earlier action of the other respondents in the O.A. in not even considering the plea for transfer on sympathetic grounds was wrong and the Union Ministry authorities had intervened in the matter, as can be seen from Anx.A1. On this basis, the Tribunal has found that the other parameters envisaged in Clauses (i) & (ii) of Rule 26(4) are also broadly satisfied by the applicant, etc. Further, there was no dispute that at that point of time, a post in the cadre of Assistant Registrar of CESTAT was in fact available, and so the condition in Clause (iv) of Rule 26(4) was also satisfied. In the light of these cumulative aspects, and taking note of the extreme difficulties and travails undergone by the applicant as a woman employee, which is much more than what any woman could have suffered under the circumstances that the Tribunal has taken the stand that the rejection of the plea for withdrawal of resignation is plainly arbitrary, unreasonable and illegal and consequently the impugned directions as above has been issued by the Tribunal. It is this verdict of the Tribunal at Ext.P3 that is under challenge in this O.P. 14. The main ground urged by the petitioners in the O.P. to O.P.(CAT) No.66 of 2021 16 impugn the correctness of Ext.P-3 verdict of the Tribunal is that Anx.A22 letter dated 10.11.2016 regarding withdrawal of resignation submitted by the application was never in fact received by the respondents, and that for the first time they have received a withdrawal application only as per Ext.P-4/Anx.A-40 dated 10.8.2017 which is a letter addressed by the applicant to the President of the 3[rd] respondent Tribunal. It is urged that the time gap between Anx.A21 letter dated 27.10.2016 (accepting Anx.A-20 resignation letter dated 8.3.2016) and Ext.P-4/Anx.A-40 letter dated 10.8.2017 in the matter of withdrawal of resignation is much more than the outer time limit of 90 days envisaged in Clause (iii) of Rule 26(4) of the CCS (pension) Rules, 1972. Further, it is pointed out that marginal delay beyond the said period of 90 days in submitting an application for withdrawal of resignation is tolerable, but a delay involved in this case is about one year inasmuch as, the said period involved in this case is computed w.r.t Ext.P-4/Anx.A-40 dated 10.8.2017 is 8 months 15 days ie (27.10.2016 to 10.8.2017) which is much beyond the tolerable period of outer time limit of 90 days stipulated in Rule 26(4)(iii) supra. Further, it is submitted that even in Ext.P-4/Anx.A-40 O.P.(CAT) No.66 of 2021 17 letter dated 10.8.2017, the applicant has not mentioned anything about AnxA-22 letter dated 10.11.2016 said to have been submitted by her. That is also clear indication that her version that she had earlier submitted Anx.A-22 letter on 10.11.2016 is not to be acted upon by this Court, etc. 15. The respondent herein/original applicant has filed a counter affidavit in this O.P. and has given various factual details to strongly deny the abovesaid allegations raised by the petitioners in the O.P./respondents in the O.A. We have anxiously considered the rival pleas in that regard, which is the main objection raised by the petitioners herein. It has to be borne in mind that the present O.A. is not the first litigative proceedings initiated by the applicant on abovesaid related issues. As a matter of fact, it is common ground that the applicant had initially filed Anx.A-37 before the CAT, Chennai Bench, in which the Tribunal has disposed of the same as per Anx.A-37 final order dated 8.11.2019 directing the respondent authorities therein to consider the letters submitted by the applicant for withdrawal of resignation . 16. Both sides have made available to us the pleadings in Anx.A-37 O.A. filed by the applicant herein before the Chennai O.P.(CAT) No.66 of 2021 18 bench of the Tribunal. There is clear and categorical averment in Anx.A-37 O.A. about the very same factual averments made in this O.A. regarding the submission of resignation letter by the applicant on 8.3.2016 and also about the letter dated 27.10.2016 issued by the respondents in the O.A. of the acceptance of resignation letter as per Anx.A-21 herein/A-21 therein, and also crucially about the submission of letter dated 10.11.2016, withdrawing her resignation as per Anx.A-22 herein/Anx.A-22 therein. Further, as a matter of fact, the Tribunal as per Anx.A-37 verdict rendered as early as on 8.11.2019 has specifically directed the respondents therein to consider and take a decision on the plea made by the applicant as per Anx.A-22 for withdrawal of resignation, etc. These averments where never controverted by the respondents in Anx.A-37 O.A. at that stage. 17. After the rendering of Anx.A-37 verdict, the respondents herein/petitioners herein have never even bothered to file a review application before the Chennai bench of the Tribunal alleging that the submission of Anx.A-22 withdrawal letter is false, and such a plea has never been made till then. This is all the more so because, Anx.A-37 verdict has been rendered on 8.11.2016, O.P.(CAT) No.66 of 2021 19 whereas Ext.P-4/Anx.A-40 representation is subsequently given by the applicant on Moreover, there is specific averments in Anx.A-37 OA that about the submission of Ext.P-4/Anx.A-40 representation dated 10.8.2017. So also the respondents in the O.A. have never bothered to challenge Anx.A-37 verdict of the Tribunal in public law remedy by approaching the competent High Court concerned. On the other hand, the respondents in the O.A. fully accepted Anx.A-37 verdict of the Tribunal, then it is now making their stand that Anx.A-22 letter is never received by them, and more crucially that the factual averment made by the applicant regarding the submission of Anx.A-22 withdrawal letter is false, and that she has never submitted it at that point of time, and she has actually submitted her first request for resignation only very belatedly, as per Ext.P-4/Anx.A-40 dated 10.8.2017. So, the abovesaid conduct of the respondents in the O.A. is highly relevant for this Court to determine with the correctness or otherwise of the rival pleas in that regard. It is all the more so because, the Tribunal as per the present impugned Anx.A-39 verdict has fully acted upon the correctness of the averments in the present O.A. regarding the submission of Anx.A-22 withdrawal letter, etc. Such a factual O.P.(CAT) No.66 of 2021 20 appreciation made by the Tribunal cannot be simply overruled by us sitting in supervisory jurisdiction unless it is proved before us that the said averments are false. Hence, at the outset, we have to hold that the conduct of the respondents in the O.A. in not challenging the averments in the first O.A. referred to in Anx.A-37, especially about the submission of Anx.A-22 withdrawal letter on 10.11.2016, would be highly relevant and crucial in this matter. 18. Moreover, it has to be borne in mind that both in Anx.A-37 O.A. filed before the Chennai Bench and the present Ext.P-1 O.A. filed before the Ernakulam Bench of the CAT, the applicant has consistently and unequivocally averred that she had submitted Anx.A-22 withdrawal letter dated 10.11.2016 by going over personally to the chambers of the Registrar of the Tribunal, who had assured her that the same would be immediately forwarded with the remarks of the Tribunal to the competent authority of the Union Government in the Finance Ministry. Further, it has been specifically stated both in Anx.A-37 O.A. as well as in the present Ext.P-1 O.A. that since, no immediate action was forthcoming on the request made by the applicant, the applicant’s ailing mother was concerned about the future of the O.P.(CAT) No.66 of 2021 21 applicant and her family, and had in fact sent Anx.A-24 letter dated 21.11.2016 to the Hon’ble Minister for Finance of the Union Government requesting the Union Government authorities to sympathetically and seriously consider the request of the applicant for withdrawal of resignation. It has to be borne in mind that Anx.A-24 produced in the present O.A. dated 21.11.2016 has been produced as Anx.A-24 in Anx.A-37 O.A. before the Chennai Bench of the CAT. These averments in the present O.A. regarding Anxs.A-22 , A-24 etc made in Anx.A-37 O.A. has never been denied by the respondents in the O.A. and has also not ever been challenged by them either on the ground that those averments are false, and therefore the claim of the petitioners for withdrawal of resignation is plainly untenable and would go against the period of limitation, etc, has never been raised by them either by filing review petition before the Chennai Bench or by filing petition under Articles 226 & 227 of the Constitution of India, before the competent High Court concerned. More importantly, these specific factual averments made in the present O.A. regarding Anx.A-22 withdrawal letter complemented with Anx.A-24 representation dated 21.11.2016 given by the applicant’s mother to O.P.(CAT) No.66 of 2021 22 the Union Government, etc has also not been controverted even in the present O.P. All what has been urged in the present O.P. is that, Anx.A-22 withdrawal letter has never been received by them, and that the first letter that they received as per file is the one at Ext.P-4/Anx.A-40 dated 10.8.2017. The abovesaid averments in Anx.A-37 O.A. and the present Ext.P-1 OA regarding the factual aspects borne out from Anx.A-22 withdrawal letter, Anx.A-24 representation etc appear to be quite natural in the ordinary course in a case like this. 19. It has to be borne in mind that the applicant was initially a practicing advocate and a part time lecturer in law, and had later secured regular appointment as a Gazetted Officer in the rank of Legal Assistant attached to the Legislative Department of the Union Government and later, on the basis of a fresh recruitment conducted through the UPSC, she secured appointment in the CESTAT as Assistant Registrar, which is a Group A Gazetted Service of the Union Government. The Registrar of CESTAT would alone be either a judicial officer or a high ranking administrative officer with legal background. In a scenario like this, an applicant holding a responsible post like the Assistant O.P.(CAT) No.66 of 2021 23 Registrar had various other issues regarding her leave and her family problems, and she had submitted resignation letter. So, ordinarily in the course of human conduct as well as in the context of hierarchy in the office etc, an incumbent in the post of Assistant Registrar would seek a personal appointment with the Chief Executive of the Tribunal, who is the Registrar, so that she can apprise him about her considered decision to withdraw her resignation. The applicant has clearly asserted and averred in both the OAs that she had personally gone over to the chambers of the then Registrar of CESTAT and had then personally handed over Anx.A-22 withdrawal letter dated 10.11.2016 along with Anx.A-23 covering letter dated 10.11.2016. We are constrained to assess the factual scenario on the basis of preponderance of probability, so as to gauge the rival pleas as on the one hand the petitioners would assert that Anxs.A-22 & A-23 have never been received by them, whereas the applicant would assert that she had in fact submitted those letters. Hence, the Tribunal has clearly found in favour of the applicant. If we have to upset that fact findings, we can do so only on the basis of cogent materials atleast on the basis of the lower standard of proof based on O.P.(CAT) No.66 of 2021 24 preponderance of probability, and to hold that the said averments made by the applicant are false. We are even prepared to take a lower standard of proof of preponderance of probability in favour of the petitioners in the O.P. in a situation like this. Even, taking such lower standard of proof of preponderance of probability, we are not in a position to hold that the abovesaid factual averments and assertions made by the applicant should be treated as false. This is all the more so since, the abovesaid specific averments regarding handing over of Anxs.A-22 & A-23 personally to the then Registrar, etc and the mother of the applicant later submitting Anx.A-24 letter dated 21.11.2016 to the petitioners have never been denied at any stage either in the previous round of litigation or in the present O.A. 20. The petitioners would urge that the omission to mention in Ext.P-4/Anx.A-40 about the alleged submission of Anxs.A-22 & A-23 is a serious omission, and therefore that would show that the abovesaid factual averments of the applicants are false. 21. After hearing both sides we are afraid that we are not in a position with our limited supervisory jurisdiction to accept or O.P.(CAT) No.66 of 2021 25 countenance the said factual plea made by the petitioners in the O.P. Merely because the applicant has not mentioned in Ext.P-4/ Anx.A-40 about the submission of Anxs.A-22 & A-23, or about even Anx.A-24, cannot lead to a situation that the petitioners can establish on the basis of even the lower standard of proof based on preponderance of probability that the abovesaid factual averments of the applicant regarding Anxs.A-22 & A-23 as false. Hence, we are constrained to hold that the abovesaid factual pleas made by the petitioners will have to be overruled. This is all the more so, because unless we hold that the factual appreciation made by the Tribunal in the impugned verdict at Ext.P-3 is vitiated by manifest perversity or unreasonableness, especially regarding the said factual finding. Since, we are not in a position to hold so, we have no other option, but to reject the abovesaid pleas of the petitioners. 22. There is yet another perspective in the matter. The present Ext.P-1 O.A. was filed on 23.8.2020 and the learned Central Government Counsel had taken notice for all the respondents in the O.A. before the Tribunal. Several reasonable opportunities have been given by the Tribunal to the respondents to file their reply statement in the matter. It was ultimately on O.P.(CAT) No.66 of 2021 26 9.4.2021, that the Tribunal has issued Ext.P-3. On 9.4.2021, the Tribunal has set the respondents in the O.A. as ex parte. However, both sides admit that the learned Central Government Counsel was also heard by the Tribunal in the rendering of Ext.P-3 final verdict. 23. The learned Assistant Solicitor General of India has pointed out before us that it is well known that the country was facing lockdown due to COVID-19 pandemic issues since 24.3.2020, and that the period in August, 2020 and even thereafter, was also quite problematic and that is the reason why they could not secure instructions and get the filing of reply statement in the O.A. However, in that regard, we have to bear in mind the conduct of respondents in the O.A. inasmuch as, they have no case that Ext.P-37 O.A. was filed during the COVID-19 pandemic times. This is so, as it is common ground that Ext.P-37 O.A. has been filed before the Chennai bench of the CAT, some time in November, 2019, and final verdict thereon as per Anx.A-37 was rendered on 8.11.2019. 24. As noted hereinabove, the abovesaid identical averments in Anx.A-37 O.A. about Anxs.A-22, A-23 & A-24 etc have never been denied by them, atleast by seeking time for filing O.P.(CAT) No.66 of 2021 27 review petition thereto or to subsequently file a reply, or to file writ proceedings thereon. That conduct of the respondents in the O.A. will have to be taken as a highly relevant aspect on this issue. Apart from that, it has to be borne in mind that matters relating to setting a party _ex parte_ are also regulated by the provisions contained in the Administrative Tribunals Act, 1985, and the CAT (Procedure) Rules, 1987, framed under Sec.35 of said Act. 25. Sec.22(1) of the Administrative Tribunal Act stipulates that the Tribunal shall not be bound by the procedure laid down in the CPC, but shall be guided by the principles of natural justice, subject to other provisions of this Act, and of any rules framed by the Central Government. The Tribunal shall have power to regulate its own procedure, etc. Sec.22(3)(g) confers power in the Tribunal dismissing a representation for default or deciding it ex parte; Sec.22(3) (h) further empowers the Tribunal to pass orders setting aside any order of dismissal of any representation for default or any order passed by it ex parte. Sec.35 of the Administrative Tribunals Act, 1985, confers power on the Union Government to frame rules subject to Sec. 36 on the matters enumerated in sub section (2). Sec.35(2)(e) empowers Union Government to frame O.P.(CAT) No.66 of 2021 28 rules subject to which the Tribunal shall have power to regulate its own procedure under Sec.22(1) and the additional matters of which the Tribunal may exercise the powers on which Clause (i) of Subsection 3 of that section. 26. Rule 16 of the CAT (Procedure) Rules, 1987, deals with ex parte hearing and dismissal of application, and the same reads as follows: ## _**16. Ex-parte hearing and disposal of application.—**_ _(1) Where on the date fixed for hearing the application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the application is called for hearing, the Tribunal may, in its discretion adjourn the hearing, or hear and decide the application ex-parte._ _(2) Where an application has been heard ex-parte against a respondent or respondents such respondent or respondents may apply within 30 days from the date of the order to the Tribunal for an order to set it aside and if such respondent or respondents satisfy the Tribunal that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing when application was called for hearing the Tribunal may make an order setting aside the ex-parte order as against him or them upon such terms as it thinks fit, and shall appoint a day for proceeding with the application:_ _Provided that where the ex-parte order of the application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also :_ _Provided further that in cases covered by sub-rule (8) of rule 11, the Tribunal shall not set aside ex-parte order of an application merely on the ground that it was not served upon a respondent or respondents._ 27. Rule 16(2) specifically stipulates that where an applicant has been decided as ex parte, then those parties should O.P.(CAT) No.66 of 2021 29 file application within 30 days from the date of order of the Tribunal for an order to set aside the same, and if those parties satisfy the Tribunal that notice was not duly served and that they were prevented by any sufficient cause from appearing, when the application was called for hearing, the Tribunal is empowerd to make an order setting aside the ex parte order as against him, or them upon such terms as the Tribunal thinks fit, etc. 28. Therefore, it can be seen that as against the impugned order at Ext.P-3 setting the respondents in the O.A. as ex parte, the petitioners herein/respondents in the O.A. have a specific statutory remedy in terms of Rule 16 of the CAT (Procedure) Rules to approach the Tribunal to file an application to set aside the ex parte order, and if there is any delay, the same has to be accompanied by an application for condonation of delay. Though Rule 16(2) does not speak about power of the Tribunal to condone delay in filing an application beyond 30 days in the matter of an application to set aside exparte order, etc it appears that the Full Bench of this Court in _**Haris K.M. & Ors. v. Jahfar K. & Ors. [2020(5) KHC 123 (FB)]**_ has held that the provisions contained in the Administrative Tribunals Act and the rules framed O.P.(CAT) No.66 of 2021 30 thereunder, do not preclude the Tribunal from entertaining an application filed under Sec.5 of the Limitation Act, to condone the delay in filing an application like the application for review, if it is filed beyond the period of 30 days. 29. The abovesaid statutory remedy has not been invoked by the respondents in the O.A. However, in view of the COVID-19 pandemic issues, we are prepared to take a liberal view to entertain the pleas of both sides on merit in this Original Petition filed under Articles 226 & 227 of the Constitution of India. If we had given liberty to the petitioners in the O.P. on an application to set aside exparte order, delay condonation, etc or to remit to the Tribunal then, it would have been detrimentally affected both sides. Hence for these reasons we are fully prepared to consider the rival pleas on merits. However, the abovesaid factual findings made by the Tribunal regarding the aspects about Anxs.A-22, A-23, A-24 etc can be upset by us only if it is found as perverse, and due to detailed reasons given hereinabove, we are not in a position to accept the said pleas of the petitioners in the O.P. In other words, the impugned decision of the Tribunal at Anx.A-39 that the main reasons/grounds for rejection made by the respondents in the O.A. O.P.(CAT) No.66 of 2021 31 in Anx.A-39 rejection order that the withdrawal of resignation is liable to be rejected on that ground that it is submitted beyond the period of limitation envisaged in Rule 26(4)(iii) of the CCS (Pension) Rules, is illegal, arbitrary and _ultra vires_ . The Tribunal has held so, mainly because Anx.A-22 withdrawal of resignation has been made well before the expiry of the period of limitation of 90 days envisaged in Rule 26(4)(iii). The Tribunal cannot be faulted for having said so. Further, the other parameters envisaged in Sub Clauses (i), (ii) & (iv) of Rule 26(4) is also broadly satisfied in this case. Those aspects will be dealt with by us due to the aspects mentioned hereinafter. 30. Clause (i) of Rule 26(4) lays down that one of the contention should be that the resignation should be tendered by Government servants for some compelling reasons which did not involve any reflection on his integrity, efficiency, or conduct and the request for withdrawal of resignation has been made as a result of a material change in the circumstances which originally compelled him or her to tender resignation. In the instant case there are abundant pleadings and materials on record that the applicant at an young age graduated in law, and had enrolled in O.P.(CAT) No.66 of 2021 32 legal practice, and was also retained by some leading insurance companies owned by the Government of India. She had appeared in the competitive examination and got selected as a Gazetted Officer in the rank of Legal Assistant in the Legislative Department of the Union Government in the tough selection process conducted by the UPSC. Later, she again competed open selection process and secured selection for appointment by direct recruitment to the post of Assistant Registrar of CESTAT, which is a Group A Gazetted service post. Except allegation that she was forced to take leave on many occasions as mentioned in the O.A., etc no allegations are raised by the respondents in the O.A. that the applicant was in any other way had held up in misdemeanor or misconduct or was inefficient, etc or that there has been repeated adverse entries in her appraisal records. The main complaint raised by the respondent Tribunal authorities in the present proceedings is that she has repeatedly taken leave and that detrimentally affected the functioning of said Tribunal, etc. There are various materials to show that the applicant’s husband is a practicing advocate at Perumbavoor in Ernakulam district and that she had 2 young daughters and she had ailing mother-in-law who O.P.(CAT) No.66 of 2021 33 was suffering from serious cancer ailments and her mother was also having serious ailments. When she had worked outside Kerala, her husband who was a practicing advocate in Ernakulam district could not join her. Moreover, her mother-in-law was seriously suffering from serious cancer ailments. Due to her posting, she was not able to take her 2 young daughters with her, and the husband and mother-in-law had to look after the young daughters while the applicant was far off. There are materials to show, which are also accepted by the 1[st] respondent Union Government in proceedings as in Anxs.A-1 & A-2 which would show that the 2 young daughters was suffering from various disturbances since the applicant was working far off and the only person to look after them was the mother-in-law of the applicant, who was also laid up with serious cancer ailments. Faced in this situation, she was always in travails and suffering and she was compelled to seek deputation posting in the State of Kerala, or atleast for a posting in nearby southern benches of CESTAT. That apart, there cannot be any dispute that the applicant herself was suffering from serious ailments. Anx.A-17 is medical record issued by the General Hospital, Ernakulam, run by the Government of O.P.(CAT) No.66 of 2021 34 Kerala, which would show that the applicant was subjected to MRI scan wherein the consultant radiologist has certified that she was suffering from _'loss of cervical lordosis with degenerative vertebral body changes' [See page 86 of the paperbook of this O.P.]_ . Further, Anx.A-3 is a medical certificate issued by a qualified gynecologist which would show that the applicant was then suffering the serious gynecological ailment called _'Menorrhagia'_ and at that time she was even forced to undergo Dilation and Curettage (D&C), which is a procedure to remove tissue from inside uterus. It is common ground that the ailment 'M _enorrhagia'_ is a gynecological condition of abnormal heavy bleeding during period. The fact that the 2 young daughters of the applicant was suffering from mental disturbances was also reiterated by her in series of representations as can be seen from a reading of last para on page 1 of Anx.A-7 representation dated 15.9.2015 submitted by the applicant before the President of the CESTAT. Anx.A-9 is yet another representation dated 3.10.2015 submitted by her and para 4 thereof clearly show that her younger daughter then aged 14 years was under continuous treatment and the doctors advised proper O.P.(CAT) No.66 of 2021 35 maternal attention, and at that time the girl was studying in Std IX in Government School, Perumbavoor, Ernakulam district, and the elder daughter then aged 19 years was also studying in the native district, etc. Therein, she had repeatedly requested for posting by way of deputation to any purposeful post in State of Kerala, etc. When her repeatedly request for availing Child Care Leave (CCL) which is permissible as per the rules was denied by the respondent Tribunal authorities, she had no other way, but to approach the 1[st] respondent Union Government in the Finance Department. The 1[st] respondent has considered the entire gamut of issues and Anx.A-1 is the transcript of the files concerned which would show that the competent authority concerned was fully convinced, especially from the representations submitted by the applicant as well as her mother addressed to the Minister of State, that her younger daughter was not in good health and she requires the mother’s attention and care. Further that, 2 years of child care leave is admissible to her and only 105 days of CCL has been sanctioned to her by date, and that her application for CCL for the period mentioned therein has been rejected by the CESTAT, etc. It will be pertinent to refer to paras 9 & 10 of Anx.A-1 proceedings O.P.(CAT) No.66 of 2021 36 ## dated 19.4.2011 issued by the 1[st] respondent Union Government, which reads as follows _[See page 52 of the paper book of this O.P.]_ : _“9. From the representation submitted by the Asstt. Registrar to Revenue Secretary and the representation from the mother of the Asstt. Registrar submitted to MOS(Revenue), it appears that the younger daughter of the Asstt. Registrar aged about 8 years not in good health and requires the mother's attention and care. Although two years of CCL is admissible to the Asstt. Registrar, only 105 days CCL has been sanctioned to her till date. Her application for CCL from 1.1.2011 to 15.1.2011 and from 16.1.2011 to 30.6.2011 were rejected by CESTAT. It appears that the Asstt. Registrar has not submitted any application for CCL upto 31.3.2012 to CESTAT._ _10. It is also true that on average, Asstt. Registrar has been on authorized/unauthorized leave of about 4 months per annum. It appears that she availed so much leave due to compelling circumstances. She may not have remained on such long leave had she been posted in the Southern Benches of CESTAT at Bangalore/Chennai or she was allowed deputation or she was not recalled from deputation at CADA in Kerala after one year. She has 625 days CCL is in her credit. If approved, CESTAT may be requested to furnish comments on the two representations in the first instance.”_ 31. In this context, we are also reminded of the observations of the House of Lords of the United Kingdom in the celebrated decision in _**Huang v. Secretary of State for the Home Department [2007 UKHL 11],**_ which reads as follows: _“.....Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant..... In most cases where the applicants complain of a violation of their Article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of the Article 8, the_ O.P.(CAT) No.66 of 2021 37 _crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved.....”_ 32. Of course, the abovesaid case dealt with a claim under Article 8 of the European Convention on Human Rights regarding Right to Family Life, and the case dealt with an application of a Chinese Citizen seeking permission to remain in UK, where other members of family were residing, which was declined by the Secretary of State of the UK. We have only quoted the observations of House of Lords regarding the importance of family life. It has to be borne in mind that the abovesaid observations have been rendered by a Court in a leading Western Country, where importance and relevance of family life is declining. Yet, the House of Lords of the UK has held that human beings are social animals and they are forced to depend on others. That, family or extended family is a group on which many people most heavily depend socially and emotionally, and even financially, and that there may come a point at which some prolonged and unavoidable separation from this group, seriously inhibits their ability to live full and fulfilling lives, etc. 33. The case of the applicant that she was forced to give her resignation in view of the concatenation of tragedies and sufferings O.P.(CAT) No.66 of 2021 38 undergone by her, and that it turned out to be the last straw on the camel's back, etc appears to be a quite probable conduct judging ordinary human behavior, especially coming as it is from a woman employee who was separated from her family, her young daughters, husband, cancer ailing mother-in-law and aged ailing mother, etc. 34. Various other factual aspects are borne out from Anx.A-1 which would show the plight of the applicant. Anx.A-2 is the formal proceedings dated 13.6.2011 issued by the 1[st] respondent Union Government in the Ministry of Finance, therein it has been specifically ordered that no disciplinary proceedings will be initiated against her, and that the CESTAT shall consider and sanction her CCL as per the admissible statutory rules in 2011, and consider the other points raised in the representations submitted by her, and to take _‘suitable ’ constructive action . {Emphasis supplied}_ 35. It will be pertinent to refer to the contents of Anx.A-2 letter issued by none other than the competent higher authority of the Union Government in the Ministry of Finance, which reads as follows: O.P.(CAT) No.66 of 2021 39 _“With reference to your letter F.No.26(14) DISCP/CESTAT/SBPAR/Admn-2011 dated 7.3.2011 and letter No. 26(14)DISCP/CESTAT/SBP-AR/Admn-2011 dated 16.5.2011 on the above mentioned subject, it is stated that the matter he been examined in this Department in detail. In the process of examination of the request for disciplinary action against Smt. B.Suja Pillai, Asstt. Registrar, representation submitted by her to Revenue Secretary and a representation submitted by her mother to Minister of State (Revenue) were sent to CESTAT for comments vide letter of even number dated 21[st] April, 2011. The comments received from CESTAT in this regard were examined in this Department along with the proposal for disciplinary action and the following observations are made thereon:-_ _(a) 11 spells of leave were applied for by Smt. Suja B.Pillai, Asstt. Registrar, CESTAT;_ _(b) CCL was sanctioned to Smt. Suja B.Pillai for 19.2.2010 to 5.4.2010, 6.4.2010 to 5.5.2010 and 6.5.2010 to 4.6.2010. As Per DOPT Order dated 7.2.2010, only three spells of CCL can be sanctioned to a Govt. Servant in a calendar year and therefore other applications for CCL were rejected;_ _(c) Similarly applications for CCL in 2011 were also rejected; (d) Although the CCL and other leave applications submitted by the Asstt. Registrar were rejected and she was asked to resume duty, she did not do so and submitted further representations for sanction of leave._ _(e) CESTAT did not address several other important points raised in the two representations such as rejection of her applications for deputation/absorption in organizations in Kerala, sanction of earned leave, half pay leave and CCL rejected in 2010, sanction of CCL in 2011, posting refused in CESTAT Bench, Chennai/Bangalore, recall of the Ass Registrar from deputation in CADA, Kerala after one your etc._ _2 From the representation submitted by the Asstt. Registrar to Revenue Secretary and the representation from the mother of the Asstt Registrar submitted to MOS(Revenue), it appears that the younger daughter of the Asstt Registrar aped about 8 years not keeping good health and requires the mothers attention and care. Although two years of CCL is admissible to the Asstt Registrar, only 105 days CCL has been sanctioned to her till data and 625 days CCL is in her credit. However, her applications for CCL in 2011 were rejected by CESTAT. CCL is meant for such situations. There is no mention of work pressure or insufficient staff in the reply from CESTAT._ _3. In view of the above, no disciplinary action is proposed to be taken against the Asstt Registrar, CESTAT is requested to consider sanction of CCL as admissible under rules to the Asstt Registrar in 2011 and consider the other points raised in the two representations and take suitable constructive action_ _4. This issues with the approval of Revenue Secretary.”_ ## 36. Repeated representations and applications have O.P.(CAT) No.66 of 2021 40 been given by the applicant even after Anxs.A-1 & A-2 to the respondent Tribunal authorities to sympathetically consider her pleas. Considering the sufferings of the applicant, her 2 young daughters, her ailing mother-in-law and her mother,etc to get a posting by way of deputation in Kerala State, etc. Ultimately, it appears that she had given a posting in the Chennai Bench of CESTAT. Thereafter, suddenly, she was transferred from Chennai Bench of CESTAT in Tamil Nadu to Allahabad Bench of CESTAT in Uttar Pradesh. The specific case of the applicant is that the same has been ordered by the respondent Tribunal authorities mainly because the applicant had approached the Union Government authorities and she had secured favourable orders from that higher authority. It is asserted by the applicant that there are very few women in the cadre of Assistant Registrar of the CESTAT, and many of the incumbents are male officers. It is not known as to why the Tribunal has not considered it fit to post a male officer in the Allahabad Bench of the CESTAT. At any rate, as to why the applicant has been chosen to be posted to Allahabad in Uttar O.P.(CAT) No.66 of 2021 41 Pradesh, in spite of various series of travails and sufferings undergone by her, it is not known either to the Tribunal or to this Court. This is all the more so, since, the 1[st] respondent Union Government in the Finance Ministry had taken a very proactive and very sympathetic approach to the applicant who was a senior woman officer, who was suffering series of travails and woes. A reading of Anx.A-2 would make it clear that the direction of the competent authority of the Union Government was that no disciplinary action should be taken against her, and that the CESTAT shall consider the CCL to be granted to her, as leave is permissible to her, and further that the Tribunal shall also consider the other points referred to in two other orders referred to therein, and take a _‘suitable ’ constructive action_ . _[Emphasis supplied]_ 37. Further, it has to be borne in mind that the respondent Tribunal authorities, presumably on the ground that, the applicant may be feigning illness had directed to undergo medical examination before the Government Hospital, Ernakulam, Kerala. Anxs.A-12 & A-13 series of documents issued O.P.(CAT) No.66 of 2021 42 on 14.12.2015, 8.1.2016, 15.1.2016 & 19.1.2016 would show that the applicant had been consistently approaching before the Government General Hospital, Ernakulam, and it is a matter of common knowledge that the Government General Hospital, Ernakulam, is one of the most efficient and reputed hospitals in the State. The doctors serving the Government General Hospital are qualified in MBBS and most of them are qualified in broad specialties, and they are all selected and appointed through the strict selection process conducted by Kerala Public Service Commission, and most of the doctors are graduates and Post Graduates from Government Medical Colleges. The reputation and efficiency of Government General Hospital in Ernakulam and many other district centres are matters of common knowledge and the high level of medical service is well known to the public. For reasons which are not known, the CESTAT had suddenly directed that the applicant shall immediately go and undergo medical examination in Tamil Nadu. This was a time when the applicant was suffering from serious ailments and she was then based in Perumbavoor in Ernakulam district, and she fully complied with the directions of respondent Tribunal authorities in undergoing medical O.P.(CAT) No.66 of 2021 43 examination process, as can be seen from abovesaid documents. 38. For instance, as mentioned hereinabove, Anx.A-17 is a medical record issued by the Government General Hospital, Ernakulam, wherein the consultant radiologist who is a MD degree holder in the specialty of radiology, has clearly certified on 10.2.2016 that the applicant is suffering from _'loss of cervical lordosis with degenerative vertebral body changes'._ The serious gynecological issues faced by her are also self evident from Anx.A-3 certificate issued by a qualified gynecologist. In the light of these facts and circumstances, it is not known either to the Tribunal or this Court as to why the respondent Tribunal authorities have insisted that the applicant, who is lady who was already in deep trouble, due to circumstances more than one, should be compelled to go to Chennai for the mere purpose of undergoing medical examination. Presumably, this will be on the ground that the respondent Tribunal authorities may have doubt regarding the authenticity of the medical examination process in Government General Hospital, Ernakulam. 39. The said ground is not acceptable to us. It is a matter of common knowledge that the Government Hospital structure and O.P.(CAT) No.66 of 2021 44 scheme in the State is rendering yeoman service to the public at large and aspects thereof have already been highlighted herein as above. In this situation, we are not in a position to appreciate, as to how one can justify that a woman officer with all these problems should leave Kerala and go to Chennai for further medical examination. Therefore, the applicant is fully justified in again making repeated pleas before the respondent Tribunal authorities that the direction that she should again undergo medical examination at Chennai be waived inasmuch as, she has obediently complied with the directions to undergo medical examination process in Government General Hospital, Ernakulam, in Kerala. In the light of these circumstances, the case of the applicant as admitted by the Tribunal is that, faced with this concatenation of tragedies and series of sufferings, the lady officer had no other go, but to submit a resignation, presumably out of her sheer frustration, and helplessness in the situation. It is in the light of these aspects that the Tribunal has appreciated about the aspects relating to the submission of resignation of the applicant as per Anx.A-20 letter dated 8.3.2016. We are not, in any manner, persuaded to hold that the abovesaid factual appreciation made by O.P.(CAT) No.66 of 2021 45 the Tribunal is, in any manner, perverse or unreasonable. On the other hand, we are fully in agreement with the said factual appreciation made by the Tribunal regarding the extreme plight faced by this lady officer. At any rate, we are constrained to hold that the abovesaid factual appreciation made by the Tribunal cannot be branded as manifestly perverse or unreasonable. Therefore, the Tribunal has been fully satisfied that the other parameters of Rule 26(4), more particularly Clause (i) thereof, has been fully satisfied in the instant case. 40. The other aspect is regarding the fulfilment of Clause (ii) and Clause (iv) of Rule 26(4). Clause (ii) of Rule 26(4) insists that during the period intervening between the date on which resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper. The respondents in the O.A. have not even raised a whisper anywhere that the conduct of the applicant was, in any manner improper, during the period between the date on which resignation became effective and the date from which the request for withdrawal was made, etc. The respondents are conspicuously silent about that. Hence, it is only to be held that O.P.(CAT) No.66 of 2021 46 they have no case that the conditions envisaged in Clause (ii) of Rule 26(4) of the CCS (Pension) Rules, have been satisfied. At best, it can be said that the applicant has litigated against the respondents as per Anx.A-37 O.A. before the Chennai Bench of the CAT as well as the the present Ext.P-1 O.A. before the Ernakulam Bench of the CAT. Initiating litigative proceedings to vindicate the rights of an employee cannot be said to be an improper conduct of the official concerned. Nobody has a case that there are no vacant post in the cadre of Assistant Registrar to accommodate the reinstatement of the applicant. Hence, Clause (iv) was also satisfied as per Rule 26(4). 41. We have already given detailed reasons as to why we are not in a position to interfere with the considered findings of the Tribunal regarding fulfillment of Clause (iii) of Rule 26(4) of the CCS (Pension) Rules, which is the vital issue concerned in this case. During the course of hearing in this case, the petitioners submitted as an alternate plea that the direction of the Tribunal to reinstate the applicant with all consequential benefits, may not be fully tenable, etc. Hence, we persuaded the counsel for the respondent herein/applicant to ascertain whether some middle ground could O.P.(CAT) No.66 of 2021 47 be struck in this matter. 42. Sri.T.C.Govindaswamy, learned counsel appearing for the sole respondent herein/sole applicant in the O.A. has made submission on the basis of the pleadings in the affidavit dated 4.11.2021 filed by the respondent herein. It may be pertinent to refer to the contents of said affidavit dated 4.11.2021 filed by the respondent in this O.P., and the same reads as follows: _“I, B. Suja, aged 51 years, W/o K. N. Anilkumar, former Assistant Registrar, Customs Excise and Service Tax Appellate Tribunal, Chennai 600 006, residing at 6/ 644 A, Harihara Iyyer Road, Perumbavoor - 683 542, Ernakulam district, Kerala do hereby solemnly affirmed and sincerely state as follows:_ - 1) _I am the respondent in the above OP (CAT) 66/21, pending before this Hon'ble Court. I know the facts of the case._ - 2) _When the above OP (CAT) 66/2021 came up for hearing on 26[th] October 2021, this Hon'ble Court was pleased to direct my counsel to get instructions on;_ - _a) My claim for seniority and promotions, which were missed during the above said period and;_ _b) Also for arrears of wages, that might arise etc._ - _3) It is submitted, as regards seniority, I pray, that the same be maintained in the cadre and, regarding promotions on par with juniors, who might have been promoted in the mean while, I have no grievance on the same;_ - 4) _As regards arrears of wages, that might arise, I respectfully submit that I am prepared to forego the same;_ - 5) _However, may I seek the gracious pleasure of this Hon'ble Court to treat the intervening period as qualifying for all purposes like drawal of annual increments, financial up-gradations under the MACP Scheme, leave, pension and other retirement benefits etc._ - 6) _May I also submit that, it is understood that there are atleast six vacancies in the cadre of Assistant Registrars as of now, and therefore, there may not be any difficulty in accommodating me;_ - 7) _It is humbly submitted that in the absence of atleast these benefits, I would be subjected utmost injustice, considering my long service._ - 8) _The facts are being submitted as directed by this Hon'ble Court;_ - 9) _Statements of facts above are true to the best of my knowledge,_ O.P.(CAT) No.66 of 2021 48 _information and belief._ 10) _Statements on law are made on the advice of my counsel.”_ 43. Sri.T.C.Govindaswamy, learned counsel would submit on the basis of pleadings in the abovesaid affidavit and also on the basis of instructions of his party that the applicant is willing to forego her claim/entitlement for arrears on full pay and allowances for the period she has been kept out of service from the date of acceptance of resignation up to the date of reinstatement, but that the said period from the date of resignation up to the date of reinstatement may be counted for the purpose of seniority, notional pay, notional increments, and that she will also not dispute the promotion if any, granted to the next higher category post to the incumbents who are juniors to her in the cadre of Assistant Registrar in case of promotions made during the period which she was kept out of service from the date of resignation to the date of reinstatement. But that, based on her seniority, etc she should be considered for promotion to the next higher category post in the next available vacancy, and that she will not dispute with the promotions already granted during the abovesaid interregnum period. Further that, the abovesaid interregnum O.P.(CAT) No.66 of 2021 49 period should be counted for notional pay, notional increments, seniority and as qualifying service for pension, and even for the purpose of counting said service for the purpose of determining her claim and eligibility entitled for financial upgradations, MACP scheme, etc. 44. After hearing both sides, we are of the view that the applicant has fairly made lot of compromise in the matter instead of fully sticking to her legal entitlements. We had specifically queried as to the availability of vacancies in the cadre of Assistant Registrar in the CESTAT. The Assistant Solicitor General of India had apprised us on instructions that there are 5 vacancies in the cadre of Assistant Registrar in the CESTAT, out of which 2 vacancies are in General category and 2 vacancies are set apart for OBC recruitment and one vacancy for SC/ST recruitment, and that all the abovesaid 5 vacancies have now been reported to the UPSC for recruitment, etc. Hence, we passed an order on 23.11.2021 that since, the abovesaid action of the petitioners in the O.P. is a _lis pendens_ action, and that too during the pendency of this O.A. and O.P. and the period after the disposal of the O.A. including the pendency of this O.P., etc. It is ordered that one vacancy in the O.P.(CAT) No.66 of 2021 50 General category in the post of Assistant Registrar of CESTAT shall not be utilized for any purpose, either by the Union Government or any other authority, until orders of this Court. Later, we had also passed an order yesterday (3.12.2021) directing that the abovesaid direction shall be conveyed by the Assistant Solicitor General of India not only to the Union Government authorities, but also to the UPSC. Therefore, vacancy is in existence at the time of the rendering of Ext.P-3 verdict of the Tribunal as well as even now. So, there cannot be any dispute regarding the fulfilment of the condition envisaged in Clause (iv) of Rule 26(4). For all these reasons, we are of the view that the main findings of the Tribunal regarding the illegality and unjusticiability of the impugned Anx.A-39 rejection order, and also the entitlement of the petitioner to reinstatement in service, cannot be interfered with by us. However, the petitioner need not be paid all consequential benefits, including arrears of full pay and allowances, and the abovesaid period from the date of resignation up to the date of reinstatement may be regulated in the manner held hereinabove. 45. For the sake of clarity, it is ordered that consequent to the upholding of the impugned Anx.A-39 rejection order and in O.P.(CAT) No.66 of 2021 51 pursuance of the directions of the Tribunal at Ext.P-3, the respondents in the O.A. shall immediately reinstate the petitioner in service as Assistant Registrar, and the respondents will ensure that the applicant may be given a suitable posting, and if any vacancies available in any of the Southern Benches, as far as possible she may be accommodated as Assistant Registrar in one of the Southern Benches of CESTAT. The applicant need not be given arrears of full pay and allowances for the period from the date of resignation/acceptance of resignation up to the date of reinstatement. However, the said period shall count for the purpose of seniority, notional pay, notional increments, financial upgradations in MACP Scheme, and also for the purpose of qualified service for pension and all other retirement benefits. However, if the respondents have made any promotions from the post of Assistant Registrar to the next higher post during the abovesaid interregnum period in the case of incumbents who are juniors to the applicant in the cadre of Assistant Registrar, then those promotions need not be disturbed. However, taking note of the seniority of the applicant, her case for promotion to the next higher category post in the next available vacancy, should be O.P.(CAT) No.66 of 2021 52 considered. The directions of reinstatement shall be immediately complied with by the respondents without any further delay, at any rate within one month from the date of receipt of a certified copy of this judgment. The abovesaid directions and orders of the Tribunal at Ext.P-3 will stand modified to the limited extent as above. With these observations and directions, the above Original Petition (CAT) will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** Skk MMG O.P.(CAT) No.66 of 2021 53 ## **APPENDIX OF OP (CAT).NO.66/2021** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF OA NO.180/00401/2020 DATED 23/08/2020 FILED BY THE RESPONDENT BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH. ANNEXURE A-39 TRUE COPY OF THE ORDER BEARING F. NO. A 50050/77/2016-AD.IC (CESTAT) DATED 6TH JANUARY, 2020 ISSUED BY THE 1ST RESPONDENT.** **ANNEXURE A-1 TRUE COPY OF PROCEEDINGS OF THE MINISTRY RECEIVED UNDER LETTER BEARING F. NO. R.20011/27/2012-A.IC DATED 27/03/2012. ANNEXURE A-2 TRUE COPY OF ORDER BEARING F. NO. A50050/9/2011-A IC (CESTAT) DATED 13/06/2011 ISSUED BY THE 1ST RESPONDENT MINISTRY. ANNEXURE A-3 TRUE COPY F APPLICATION DATED 16/07/2015 ADDRESSED TO THE SENIOR MEMBER (TECHNICAL), CESTAT, CHENNAI. ANNEXURE A-4 TRUE COPY OF OFFICE ORDER BEARING NO. 23(51)/ TRANS./CESTAT/ADMN. 2014 DATED 03/09/2015 ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT. ANNEXURE A-5 TRUE COPY OF THE LETTER BEARING F. NO. 4(6)CESTAT/PF/ADMN/2003 DATED 23/09/2015. ANNEXURE A-6 TRUE COPY OF THE OFFICE ORDER BEARING F. NO. A19(1)/PERS. FILE/SBP-AR/CHE/2011VOL.II DATED 03/09/2015. ANNEXURE A-7 TRUE COPY OF THE DETAILED REPRESENTATION DATED 15/09/2015, SUBMITTED BY THE APPLICANT ADDRESSED TO THE 3RD RESPONDENT. ANNEXURE A-8 TRUE COPY OF THE LETTER BEARING F. NO. 4(6)/CESTAT/PF/ADMN./2003 DATED 23/09/2015 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A-9 TRUE COPY OF REPRESENTATION DATED 03/10/2015 SUBMITTED BY THE APPLICANT, ADDRESSED TO THE 1ST RESPONDENT. ANNEXURE A-10 TRUE COPY OF REPRESENTATION DATED** O.P.(CAT) No.66 of 2021 54 |||**04/10/2015 SUBMITTED BY THE APPLICANT.**| |---|---|---| |**ANNEXURE**|**A-11**|**TRUE COPY OF LETTER DATED 10/12/2015**| |||**ISSUED BY THE 3RD RESPONDENT WITH COPY**| |||**MARKED TO THE APPLICANT.**| |**ANNEXURE**|**A-12**|**TRUE COPY OF LETTER NO./ C2-8133/2013**| |||**DATED 14/12/2015, ISSUED BY THE**| |||**GOVERNMENT TO THE APPLICANT ALONG WITH**| |||**ITS TRUE TRANSLATION.**| |**ANNEXURE**|**A-13**|**TRUE COPY ATTENDANCE CERTIFICATE ISSUED**| |**SERIES**||**BY THE SUPERINTENDENT AND CHAIRMAN,**| |||**GENERAL HOSPITAL, ERNAKULAM DATED**| |||**08/01/2016, 15/01/2016 AND 19/01/2016.**| |**ANNEXURE**|**A-14**|**TRUE COPY OF LETTER BEARING DATED**| |||**13/01/2016 ISSUED FROM THE OFFICE OF TH**| |||**3RD RESPONDENT.**| |**ANNEXURE**|**A-15**|**TRUE COPY OF COMMUNICATION RECEIVED BY**| |||**THE APPLICANT ADDRESSED TO THE CHIEF**| |||**MEDICAL OFFICER OF THE RAJEEV GANDHI**| |||**GOVERNMENT GENERAL HOSPITAL, CHENNAI**| |||**DATED 13/01/2016.**| |**ANNEXURE**|**A-16**|**TRUE COPY OF THE LETTER DATED 18/01/2016**| |||**ISSUED BY THE APPLICANT TO 3RD**| |||**RESPONDENT.**| |**ANNEXURE**|**A-17**|**TRUE COPY OF THE MRI SCAN REPORT OF THE**| |||**APPLICANT CONDUCTED AT THE GENERAL**| |||**HOSPITAL, ERNAKULAM.**| |**ANNEXURE**|**A-18**|**TRUE COPY OF THE LETTER DATED 25/02/2016**| |||**ISSUED BY THE 3RD RESPONDENT.**| |**ANNEXURE**|**A-19**|**TRUE COPY OF THE REPRESENTATION DATED**| |||**29/02/2016 SUBMITTED BY THE APPLICANT**| |||**ADDRESSED TO THE 3RD RESPONDENT.**| |**ANNEXURE**|**A-20**|**TRUE COPY OF THE LETTER DATED 08/03/2016**| |||**SUBMITTED BY THE APPLICANT BEFORE THE**| |||**1ST RESPONDENT.**| |**ANNEXURE**|**A-21**|**TRUE COPY OF THE LETTER BEARING F. NO.**| |||**4(6)/CESTAT/PF/ADMN./2003**<br>**DATED**| |||**27/10/2016, ISSUED BY DEPUTY REGISTRAR**| |||**(ADMN.).**| |**ANNEXURE**|**A-22**|**TRUE COPY OF THE LETTER DATED 10/11/2016**| |||**SUBMITTED BY THE APPLICANT ADDRESSED TO**| |||**THE 1ST RESPONDENT.**| |**ANNEXURE**|**A-23**|**TRUE COPY OF THE COVERING LETTER DATED**| |||**10/11/2016 ISSUED TO THE REGISTRAR, IN**| |||**THE OFFICE OF THE 3RD RESPONDENT.**| O.P.(CAT) No.66 of 2021 55 |**ANNEXURE A-24**|**TRUE COPY OF THE REPRESENTATION DATED**| |---|---| ||**21/11/2016, SUBMITTED BY THE APPLICANT**| ||**ADDRESSED TO THE HON'BLE MINISTER FOR**| ||**FINANCE.**| |**ANNEXURE A-25**|**TRUE COPY OF THE BEARING F. NO.**| ||**4(6)/CESTAT/PF/ADMN./2003**<br>**DATED**| ||**10/08/2017 RECEIVED FROM THE THIRD**| ||**RESPONDENT.**| |**ANNEXURE A-26**|**TRUE COPY OF THE LETTER DATED 25/08/2017**| ||**SUBMITTED BY THE APPLICANT TO THE 3RD**| ||**RESPONDENT.**| |**ANNEXURE A-27**|**A TRUE COPY OF THE LETER BEARING F. NO.**| ||**4(6)/CESTAT/PF/ADMN./2003**<br>**DATED**| ||**20/09/2017 ISSUED BY DEPUTY REGISTRAR**| ||**(ADMN.).**| |**ANNEXURE A-28**|**TRUE COPY OF THE DETAILED REPRESENTATION**| ||**DATED 28/12/2017 SUBMITTED BY THE**| ||**APPLICANT BEFORE THE HON'BLE MINISTER**| ||**FOR FINANCE.**| |**ANNEXURE A-29**|**TRUE COPY OF THE COMMUNICATION BEARING**| ||**F. NO. 4(6)/CESTAT/PF/ADMN./2003 DATED**| ||**05/02/2018 RECEIVED BY THE APPLICANT.**| |**ANNEXURE A-30**|**TRUE COPY OF REPRESENTATION DATED**| ||**26/02/2019 SUBMITTED BY THE APPLICANT.**| |**ANNEXURE A-31**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**23/04/2019 SUBMITTED BY THE APPLICANT**| ||**ADDRESSED TO THE 1ST RESPONDENT.**| |**ANNEXURE A-32**|**TRUE COPY OF THE LETTER BEARING**| ||**F.NO.A50050/77/2016-AD.IC(CESTAT) DATED**| ||**10/06/2019 ISSUED BY THE 1ST RESPONDENT.**| |**ANNEXURE A-33**|**TRUE EXTRACT OF RULE 26 OF THE CC**| ||**(PENSION) RULES, 1972.**| |**ANNEXURE A-34**|**TRUE COPY OF THE DEPARTMENT OF PERSONNEL**| ||**AND TRAINING OM NO. 28035/2/2007-ESTT.**| ||**(A) DATED 04/12/2007 (AS PUBLISHED IN**| ||**PAGES 65 AND 66 OF SWAMY'S PENSION**| ||**COMPILATION, 2018 EDITION.**| |**ANNEXURE A-35**|**TRUE COPY OF PAGES 64 AND 67 AS**| ||**CONTAINED IN OF SWAMY'S PENSION**| ||**COMPILATION, 2018 EDITION, INDICATING**| ||**THE PROCEDURE TO BE FOLLOWED IN**| ||**ACCEPTING THE RESIGNATION FROM SERVICE.**| |**ANNEXURE A-36**|**TRUE COPY OF THE SENIORITY LIST OF**| ||**ASSISTANT REGISTRARS PUBLISHED BY THE**| O.P.(CAT) No.66 of 2021 56 **RESPONDENTS UNDER NO.17(1) SEN. LIST/AR/CESTAT/ADMN. 2007 DATED 01/08/2011.** **ANNEXURE A-37 A TRUE COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,CHENNAI, BENCH IN MA NO.310/695/2019 IN OA NO.310/..../2019 DATED 08/11/2019.** **ANNEXURE A-38 TRUE COPY OF THE REPRESENTATION DATED 18/11/2019 SUBMITTED BY THE APPLICANT ADDRESSED TO THE TO THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF MISCELLANEOUS APPLICATION TO ADMIT ADDITIONAL DOCUMENTS.** - **ANNEXURE A40 A TRUE COPY OF REPRESENTATION DATED 10/08/2017 SUBMITTED BY THE APPLICANT TO THE PRESIDENT OF THE 3RD RESPONDENT APPELLATE TRIBUNAL.** - **EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.401/2020 DATED 09/04/2021 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P4 TRUE COPY OF LETTER DATED 10/08/2017 SUBMITTED BY THE RESPONDENT TO THE PRESIDENT, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL.**