CAT Jurisdiction: Gujarat High Court Rejects Former IPS Officer Rajnish Kumar Rai's Plea In Case Against Preliminary Inquiry, Show Cause Notice

The Gujarat High Court has rejected former IPS Officer Rajnish Kumar Rai's plea against Central Administrative Tribunal Ahmedabad Bench's ruling that it does not have the jurisdiction to hear his challenge against a preliminary inquiry and a show cause notice issued to him by union government in 2021. 

A division bench Justice Vipul M. Pancholi and Justice Hasmukh D. Suthar said Rai was required to file his case against the issuance of show cause notice dated 28.12.2021 before CAT's Principal Bench in New Delhi.

"We are of the view that the Tribunal, Ahmedabad Bench has no jurisdiction to entertain the Original Application No.65 of 2023 filed by the petitioner, in the facts of the present case," said the court.

Rai, who was a Gujarat cadre IPS officer, was also the probe officer of the case related to high-profile alleged fake encounter of Sohrabuddin Sheikh.

He has been chargesheeted for unauthorizedly handing over the charge of IGP, CIAT School, CRPF, Chittoor, Andhra Pradesh in 2018 and abdicating office on his own without permission of the competent authority.

Background

Rai was posted as IG, NES, CRPF, Shillong, on 30-03-2017, when two persons were killed in an alleged fake encounter. The encounter was carried out in a joint operation of the Assam Police, the Indian Army, the CRPF.  He, therefore, duly informed about this operation to ADJ, NE Zone, CRPF, Guwahati and to the other competent authority as per the practice, his counsel told the court.,

However, Rai was transferred from the post of IG, NES, Shillong to IG, CIAT School, Chittoor, Andhra Pradesh. He also got to know that a preliminary inquiry was being conducted against him in the matter of the alleged fake encounter.

Subsequently, Rai filed an application before the Central Administrative Tribunal, Principal Bench, New Delhi challenging his transfer to Chittoor and also the institution of preliminary inquiry against him in the matter of fake encounter.

On 09.08.2017, the Tribunal, Principal Bench dismissed the application on the ground that since Rai had joined his new post, the grievance in respect of his transfer had become infructuous. 

Aggrieved by the dismissal of the Original Application as well as Review Application filed by Rai by the Tribunal, Principal Bench, he challenged the same before the High Court of Delhi.

During the pendency of the said proceedings before Delhi High Court, a show cause notice dated 28.12.2021 was served to Rai. He then filed an application in the writ petition requesting a stay of the show cause notice.

The Delhi High Court disposed of the Writ Petition, observing that the issuance of the show cause notice gave rise to a fresh cause of action and Rai could pursue his grievance before the Central Administrative Tribunal.

Rai therefore filed an application before the Tribunal, Ahmedabad Bench, challenging the issuance of the show cause notice. The respondents raised a preliminary objection with regard to the jurisdiction of the Tribunal, Ahmedabad Bench and requested that the said application be dismissed. The Tribunal, Ahmedabad Bench, vide order dated 16.02.2023, dismissed the application.

Rai, thereafter, filed a Review Application before the Tribunal, Ahmedabad Bench. The Ahmedabad Bench dismissed the review application vide order dated 22.03.2023. He thereafter moved the High Court.

The primary issue for consideration before the High Court was whether the Tribunal, Ahmedabad Bench, has the jurisdiction to hear the petitioner’s application challenging the issuance of show cause notice to him by the respondent.

Submissions

Advocate Rahul Sharma, appearing for the petitioner, argued that Rai had handed over the charge of IGP, CIAT School, CRPF, Chittoor, Andhra Pradesh on 30.11.2018 and abdicated office on his own without permission/orders of the competent authority. The petitioner continues to remain absent unauthorizedly, as alleged, till the date of filing of the petition and also he has no plan to return to the service of the IPS and he is in employment at IIM for almost four years.

Sharma referred to Rule 7(2)(a) of the All India Services (Leave) Rules, 1955 which provides that a member of the service shall be deemed to have resigned from the service if he is absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission.

The counsel then referred to Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 which provides that for the persons, who have ceased to be in service by reason of retirement, dismissal or termination of service, may at their option, file an application before the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.

It was further argued that the words ‘termination of service’ used in the aforesaid Rule had to be interpreted liberally and the focus of the words should be on the words ‘ceased to be in service’ and retirement and dismissal are simply examples of the same and are not exhaustive. Thus, the words ‘termination of service’ include all other eventualities (like death, removal, resignation, voluntary retirement, compulsory retirement, etc.) whereby an employee can be said to have ceased to be in service, it was argued.

Sharma argued that as the petitioner has submitted an application for voluntary retirement, his case is covered under Rule 6(2) of the Rules of 1987 and therefore the Tribunal, Ahmedabad Bench has jurisdiction to entertain the application filed by the petitioner challenging issuance of a show cause notice.

On the issue of cause of action, Sharma argued that the legal right of the petitioner, prima facie, has been infringed or has been threatened to be infringed by an act of service of show cause notice dated 28.12.2021 within the territorial limits of the Tribunal, Ahmedabad Bench.

Additional Solicitor General Devang Vyas who was assisted by Advocate Harsheel Shukla argued that when Rai had challenged inquiry initiated by the respondent by filing application before the Tribunal, Principal Bench, New Delhi as well as his transfer order and when the Delhi High Court granted him liberty to approach the Tribunal, it means that Delhi High Court has granted him permission to approach the Tribunal, Principal Bench, New Delhi and not the Tribunal, Ahmedabad Bench.

Vyas further argued that the petitioner cannot be permitted to take shelter of provisions contained in Rule 6(2) of the Rules of 1987 because he is not retired or dismissed from service yet.

Vyas further argued that if a member of the service has remained absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission, it is for the employer to consider that such a member of the service shall be deemed to have retired from service or not.

He further submitted that the said Rule is not applicable to the facts of the present case, because, though the petitioner has given an application for voluntary retirement, the same has not been accepted by the respondents and the issue is pending adjudication before the Tribunal, Ahmedabad Bench. 

Analysis

While noting that Rai had tendered application for voluntary retirement which was rejected by the respondents and the rejection order was further challenged by HOM right up to the high court which is still pending, the court said it is not open for him to presume that his application for voluntary retirement has been accepted and that he is retired from the service.

"Rule 6(2) of the Rules of 1987 specifically provides that the persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at their option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application. As observed hereinabove, in the present case, petitioner is not retired from service nor his services are terminated. Thus, it is not a case of deemed resignation, as contended by learned counsel for the petitioner," said the

The court also agreed with the Union and said that the cause of action dies not arise in Ahmedabad for the reasons that the respondent has issued the show cause notice from the office situated at New Delhi. “Thus, we are of the view that part of cause of action has not been arisen within the jurisdiction of the Tribunal, Ahmedabad Bench,” the bench noted.

Clarifying the position on Rule 7(2)(a), the court observed that it can be said that if a member of the service has remained absent without authorisation for a period exceeding one year from the date of expiry of sanctioned leave or permission, he shall be deemed to have resigned from the Service.

"However, in the present case, as discussed hereinabove, it is not the case of the petitioner that any leave or permission is sanctioned to the petitioner by the respondents and thereafter he has remained absent without authorisation…though the application for voluntary retirement has been tendered by the petitioner, the same has not been accepted by the respondents and this Court has directed both the parties to maintain status quo. Hence, in the facts of the present case, aforesaid provision would also not be applicable," said the court

Case Title: Rajnish Kumar Rai, IPS (Retd.) vs. Union of India R/Special Civil Application No. 7133 of 2023

Case Citation: 2023 Livelaw (Guj) 84

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