N THE HIGH COURT OFMADHYA PRADE‘SHKAT JABALPUR GJK” Q (1 WRIT PmITlON N01 :2 / “99¢ S ~ VIJAY LAmI swKLA, Daughter of Shri S.K. Shukla,‘ Aged abwt 35 years, Field Officer, Dug Raj’nandgaon Gramin Bank, Branch Sambalmr, Distr ict mrg (MP). P ETITION ER \ *** 1e, EESPQEEM§ *** §I.D.1rg ‘V -Ra‘jnandgaon Gramin Bank Thrwgh the Chairman, Head Office ‘at Rajnandgaon, (MP).‘ S :Board {3f Directors Through the Chairman, mrg—‘Rajnahdg’aon Gramin Bank, Head Ofi‘iCe at ,Rajnandgaon, (MP) . . 3.The Qlaiman, \ Darg¥Rajna ndgadn Gramin Bank, \Head Offi‘Ce at Rajnandgaon, (MP). WRIT PETITION UNDER ARTICLES 226/227 OF THE wN/STI'IUTICN OF INDIA. k I HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 121 of 1995 ‘5'; PETiTiONER Vijay Laxmi Shukla x RESPONDENTS Durg-Rajnand others gaon Gramin Bank and Post for pnouncement of the order on K 12.201 1. i f; er bl Sd/- i Pritink Diwake Judge VERSUS ro VHIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 121 of 1995 PETITIONER Vijay Laxmi Shukla VERSUS \ RESPONDENTS Durg—Rajnandgaon Gramin Bank and others Shri Anup Majumdar counsel for the petitioner. Shri P.S. Koshy counsel for the respondents. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA ORDER (5.12.2011) Challenge in this petition is to the orders dated 2.7.1993'(Annexure P-11), 4.10.1993 (Annexure P-15) and 6.10.1993 (Annexure P-16). By order dated 2.7.1993 (Annexure P—11) the petitioner’s absence on 27.9.1990; on 29.9.1990 & 30.9.1990; and from 1.10.1990 to 17.12.1990 has been deciared as Leave Without Pay whereas vide order dated 4.10.1993 (Annexure P—15) pay increment has been granted to her afterr81 days and likewise by order dated 6.10.1993 (Annexure P—16) the pay increment has been granted after four days by treating the said period as Leave Without Pay. 2. Facts of the case in brief are that at the reievant time the petitioner tyvas working as Field Supervisor in Durg-Rajnandgaon Gramin Bank and she remained absent from 25.9.1990 till 17.12.1990. In respect of ........L..,.-_.ml 25.9.1990 and 26.9.1990 the petitioner had applied for casual leave which i ‘ i was duly sanctioned by the department. However, for 27.9.1990, she was declared as Leave Without Pay. For 28.9.1990, casual leave was sanctioned whereas in respect of 29.9.1990 and 30.9.1990, according to the respondents, no application was submitted by the petitioner and therefore, her absence for these two days was declared as Leave Without Pay. With respect to her absence from 1.10.1990 to 17.12.1990 ( period comes to 78 days),the petitioner had submitted medical certificates _2_ whereas according to the respondents, the petitioner did not submit the appiication as provided under the Ruies nor the medical certificates submitted by her were as per the Ruies. 3. Counsei for the petitioner submits that the petitioner proceeded on Ieave from 25.9.1990 and for first two days i.e. 25.9.1990 and 26.9.1990 she had applied for casual ieave which was duly sanctioned by the department whereas for 27.9.1990, it was declared as a public holiday on account of Maha Ashtami whereas for 28.9.1990 the casual leave was sanctioned by the department. According to the counsel for the petitioner, on 29.9.1990 Dussehara holiday was there and on 30.9.1990 it was Sunday and therefore the petitioner was not required to submit any ‘ application. He submits that from 1.9.1990 to 17.12.1990, the petitioner was sick and in this respect she has submitted her application dated 1.10.1990 (Annexure P-1) along with medical certificate (Annexure P-2); application dated 16.10.1990 (Annexure P-3) along with medical certincate (Annexure P-4) and application dated 15.11.1990 (Annexure P-5) along with medical certificate (Annexure P-6). He further submits that on 15.12.1990 when the petitioner went to join her duties before the Branch Manager, Sambalpur, she was not permitted to do so and was directed to contact the Chairman of the said Bank. He submits that pursuant to the letter dated 15.12.1990 (Annexure P-8) of Branch Manager, Sambalpur Branch, the petitioner appeared before the Chairman at Rajnandgaon on 17.12.1990 vide AnnexureP-7 and ultimately the Chairman permitted her to join her duties on 18.12.1990 vide Annexure P-9. He submits that in*the letter dated 17.12.1990 the Chairman permitted the petitioner to join her duties, clearly mentioning therein that on the basis of medical certificate the Branch Manager, Sambalpur should allow her to join and then intimate to him accordingly, but until further orders, no payment be made to her in respect of her absence. Counsel for the petitioner further submits that vide Annexure P—10, the petitioner had also submitted her fitness certificate issued by the Chief Medical and Health Officer, Durg but on account of human error, no date was mentioned in it by the issuing authority. According to the counsel for the petitioner, once the petitioner made proper applications duly supported by medical certificates, there was no occasion fo'r the Bank to declare her absence as Leave Without Pay for a total " k ”‘3... period of 81 days. He submits that against the order dated 2.7.1993, the petitioner had preferred an appeal vide Annexure P-12 before the Board of Directors on 19.4.1994 but till date she has not received any information about the decision thereof. Hesubmits that even the iegai notice was sent to the Board of Directors on 1.9.1994 which was duly received by it vide Annexure P-14r but no communication has been made to her about the decision of her appeai. Counsel for the petitioner further submits that on account of her absence being declared as Leave Without Pay, the _ petitioner has suffered an irreparable loss because the increment has been given to her with the delay of 81 days. He submits that under the Right to information Act, the information has been given to the petitioner from the office of Chief Medical and Health Officer, Durg on 20.10.2008 informing her that the certificate (Annexure P-10) was issued from the office of Chief Medical and Health Officer Durg but on account of human error the date has not been mentioned in it. it is further clarified that merely because the date and OPD number is not mentioned, the said certificate cannot be invalidated. He submits that none of the Rutes of the respondent/Bank provide for submission of fitness certificate in a particular proforma and thus there was no occasion for the respondent/Bank to reject the applications and medical certificates submitted by the petitioner. He submits that had the Bank been having any doubt, it could have asked the petitioner to clarify the things before rejecting her claim. He submits that the claim of the petitioner has been rejected on 2.7.1993 i.e. after almost three years of the period for which she had applied for leave. According to the counsel for the petitioner, if inadvertently, the date was not mentioned in the fitness certificate (Annexure P-10), the respOndent/Bank should have pointed out the same immediately so that the petitioner could have approached the authorities concerned again to get the same mentioned. He submits that all the medical certificates submitted by the petitioner were issued after being referred by the Government Hospital and they all bear the OPD number. Counsel for the petitioner submits that sufficient earned leaves were there to the credit of the petitioner and if the respondents were not satisfied with the medical certificates submitted by the petitioner, her absence could have been adjusted as earned leave. .___Q __ 4. Replying to the arguments advanced by the counsel for the petitioner, counsel for the respondents submits that on 16.7.1990 the petitioner was transferred from Sambaipur to Rajnandgaon and on 25.9.1990 she was relieved there-from. According to him, as soon as the petitioner came to know about her relieving on 25.9.1990, she proceeded on leave and subsequently filed the writ petition before the High Court of Madhya Pradesh in which stay was granted in her favour on 29.11.1990 and along with the copy of the said order she gave her joining on 15.12.1990 and when the same was not accepted by the Bank, she approached the Chairman of the Bank who permitted her to resume her duties. He submits that the medical certificates submitted by the petitioner are not genuine and during her leave period she was trying to obtain the order from the High Court of Madhya Pradesh and immediately after getting the same she gave her joining. He submits that as the fitness certificate of the petitioner (Annexure P-10) was undated, same has rightly been rejected by the Bank. He submits that as per the regulation of the Bank of 1982 amended in 2000, it is for the satisfaction of the Bank authorities and if it is not satisfied, the application and the certificate as submitted by the petitioner can be rejected. He submits that appeal of the petitioner was duly decided by the Bank on 19.12.1994 and the orders were duly communicated to her. According to him, as the medical certificates did not appear to be genuine, they have rightly been rejected by the Bank. He submits that on number of occasions the petitioner was called upon by the Bank to submit the proper medical certificate issued by the competent authority but she did not pay any heed to it. He submits that i t on one occasion, the petitioner had even refused toget herself medically examined by the Chief Medical and Health Officer which left the Bank with no other option but to pass the impugned order. j 5. Heard counsel for the parties and perused the documents on record. 6. From the documents filed by the petitioner it is apparent that along with her first application dated 1.10.1990 (Annexure P—1) she had submitted medical certificate (Annexure P-2) and likewise along with application dated 16.10.1990 (Annexure P-3) and 15.11.1990 (Annexure P-5) she had submitted the medical certificates dated 16.10.1990 l ’15 .. (Annexure P-4) and 14.11.1990 (Annexure P-6). From the said medical certificates, it is clear that they were issued by the government doctors even mentioning the OPD number. It is not the case of the respondents that medicai certificates submitted by the petitioner were the procured documents and the petitioner in fact was not sick. The order impugned (Annexure P-1 1) mereiy says that in the fitness certificate (Annexure P-10) no date is mentioned and therefore the same cannot be accepted. In the additional document (Annexure P—17) dated 20.10.2008 filed by the petitioner it is mentioned that fitness certificate was issued from the office of Chief Medical and Health Officer, Durg and not mentioning the date thereon is merely a human error. Document dated 20.10.2008 further mentions that in the certificate (Annexure P-10) OPD number is not required to be mentioned and merely on account of non-mentioning of date, same should not be disbelieved. Furthermore, the respondents have not expressed any doubt on the other certmcates submitted by the petitioner showing her illness and document of Annexure (P—10) is merely a fitness certificate. That apart, even while passing the order dated 17.12.1990 (Annexure P—9) it was ordered by the General Manager to the Branch Manager to allow the petitioner to join her duties on the basis of the medical certificate. Regulation of Bank nowhere explains as to on which proforma fitness certificate is required to be submitted before it. Regulation 50 merely speaks that a certificate of the medical practitioner could be submitted by the incumbent and that can be accepted by the Bank at its discretion. lt is a settled legal position that the discretion cannot be exercised in an arbitrary manner. in this case if it is taken that some ( discretion has been exercised by the Bank, it has not been clarined by the Bank as to on what basis it has been done. Though it has been argued by the counsel for the respondents that the appeal of the petitioner was decided, no such document has been placed on record to substantiate the same. Furthermore, though the reference of documents of Annexures R-1, R-2 and R-3 has been given in the return, no such document is available on record. There is no force in the argument of the counsel for the respondents that several correspondences were made by the respondents asking the petitioner to submit the proper medical certificate but she has failed to do so because not even a single document such as / 4,4?! W, _é_ acknowledgement has been flled by the respondents to show that such correspondence was ever made by them. 7. Considering the facts and circumstances of the case, this Court is of the considered opinion that decision of the respondent/Bank declaring the absence of the petitioner from 1.10.1990 to 17.12.1990 as Leave Without Pay does not appear to be just and reasonabie and that being so it is hereby set aside. So far as Leave Without Pay for the absence on 27.9.1990 is concerned, on that day it was declared a public holiday and Iikewise the Leave Without Pay for 29.9.1990 & 30.9.1990 which according to the petitioner were closed for Dussehra festival, it requires re- consideration by the department subject to the vermcation of the facts. As "v‘the decision declaring the petitioner’s absence from 1.10.1990 to 17.12.1990 as Leave Without Pay has been set aside, thee is no need to adjudicate upon the orders dated 4.10.1993 and 6.10.1993 (Annexures P- 15 and P—16 respectively) because consequent to the said quashment, the petitioner would automatically be entitled to all‘the consequential benefits. 8. The petition is consequently allowed. l Sd/- jl Pritinker Diwakerf' Judge {j