BMC's Refusal To Exercise Discretion Without Justifiable Reason, Situation Was Avoidable: Bombay High Court On Rutuja Latke Resignation
"Discretion is not to be used at the sweet will of the authority and in a whimsical manner. If, in the given facts and circumstances, the Court finds that there is a failure of justice, the writ court has the power to issue necessary directions," the Bombay High Court has observed while granting relief to Rutuja Latke, a Brihanmumbai Municipal Corporation employee and prospective candidate...
"Discretion is not to be used at the sweet will of the authority and in a whimsical manner. If, in the given facts and circumstances, the Court finds that there is a failure of justice, the writ court has the power to issue necessary directions," the Bombay High Court has observed while granting relief to Rutuja Latke, a Brihanmumbai Municipal Corporation employee and prospective candidate for the upcoming legislative assembly by-polls.
According to media reports, Latke filed the nomination papers as a Shiv Sena (Uddhav Balasaheb Thackeray) candidate on Friday after her resignation was accepted by the BMC on the basis of the orders passed by the high court.
The division bench of Justice Nitin Jamdar and Justice Sharmila Deshmukh made the observation in the order dated October 13 on a writ petition filed by Latke seeking directions to BMC to accept her resignation so that she can contest the by-poll for Andheri East legislative assembly seat.
"Merely because the discretion is conferred on the authority, it does not mean that the judicial review is not permissible," said the court.
The court observed that this is a case where a clerical employee of the BMC wants to resign to contest an election. This is a matter purely of employer-employee relationship and the BMC has needlessly complicated it, the court observed.
Latke, wife of late MLA Ramesh Latke, was employed as a clerk by the BMC. On October 3, the Election Commission of India announced a by-election for the legislative assembly which included Andheri East assembly constituency. October 14 was the last date for submitting nominations.
On October 3, Latke had submitted her resignation and requested that one-month notice be waived in view of election schedule. She deposited one month pay in lieu of notice period which was accepted by BMC. However, BMC did not issue acceptance of the resignation. Hence, Latke approached the court.
Senior Advocate Anil Sakhare for BMC submitted that BMC has discretion whether to waive the notice period under Regulation 28 of the Mumbai Municipal Corporation (Service) Regulations, 1989. Writ cannot be issued to the BMC to decide in a particular manner, he argued.
Sakhare also submitted that there was a complaint against the petitioner which needed to be considered and it will take at least a week to decide. The court noted that this was 'akin to a rejection' of the petitioner's resignation letter as she was facing a deadline of October 14.
Senior Advocate Vishwajeet Sawant for Latke submitted that there is no department inquiry pending against the petitioner and one month pay has already been deposited. BMC is not accepting the resignation with sole object to block Latke from contesting the election deliberately.
The court noted that under Regulation 6 of the 1989 Regulations and Article 191 of the Constitution, Latke cannot contest the election while being employed by the BMC. Thus, her status of employment must be determined before the election.
The court said that while the Municipal Commissioner has the discretion to waive the notice period, the only factor that could be considered in the exercise of this discretion are the exigencies of administration. If the circumstances for the exercise of discretion exist and discretion is still withheld for no reasons, such refusal would be arbitrary and ultra vires.
The court noted that the petitioner is not irreplaceable as the BMC has a large number of employees in the clerical cadre. The petitioner had no option but to request the commissioner to exercise discretion and waive the notice period as she had less than 15 days to file nominations once the elections schedule was announced, it added.
Regarding the complaint against Latke referred to by Sakhare, the court agreed with the petitioner's stand that it is put up only to defeat the petition. It contains no particulars and only states that the petitioner should be investigated.
"Therefore, we find merit in the submission made by the Petitioner that the action/inaction of the Respondent. No.1 is based on extraneous considerations and not the ones germane for the exercise of discretion," said the bench.
The court did not agree with Sakare's submission that the resignation letter is faulty. Even if it were faulty, the BMC as an employer should have immediately informed the petitioner to enable her to submit a proper application, said the court.
"We also do not find any merit in the Respondent's contentions that if any direction is issued in this petition to the Municipal Commissioner, it will apply to all the employees. The discretion conferred on the Municipal Commissioner is to be exercised in the facts of each case and our discussion is in the facts of this case. Therefore no legal position uniformly applicable to all employees is laid down in this order," it added
The court said that the situation created by BMC was entirely avoidable, and caused great prejudice to Latke. It thus concluded that BMC refused to use its discretionary power to waive the notice period without any justifiable reason.
"According to us, in these facts and circumstances, it will be a failure of justice if we do not intervene and issue the directions as sought by the Petitioner", the court said.
The court directed Municipal Commissioner or the concerned competent authority to issue a letter of acceptance of Latke's resignation by 11:00 a.m. on 14th October 2022.
Case no. – Writ Petition (L) No. 32602 of 2022
Case title – Rutuja Ramesh Latke v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2022 LiveLaw (Bom) 383
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