Habeas corpus petition - Judicial Custody - Not maintainable - petitioner is an accused in a criminal case and therefore he is in judicial custody by virtue of an order passed by the Judicial Magistrate -no illegal detention as alleged by the petitioner - Instead of applying for bail - came with this Habeas corpus petition - Apex court dismissed the same and directed to petitioner to file bail application before the concerned court = WRIT PETITION (CRL.) NO. 147 OF 2013 SAURABH KUMAR THROUGH HIS FATHER … PETITIONER VERSUS JAILOR, KONEILA JAIL & ANR. … RESPONDENTS = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41780

Habeas corpus petition - Judicial Custody - Not maintainable - petitioner is an accused in a criminal case and therefore he is in  judicial custody by virtue of an order passed by the Judicial  Magistrate -no illegal detention as alleged by the petitioner - Instead of applying for bail - came with this Habeas corpus petition - Apex court dismissed the same and directed to petitioner to file bail application before the concerned court =

On 30.6.2013 the police had called  the
petitioner to  the  Police  Station  for  enquiry  on  his  application  for
passport and after reaching inside the police  station  he  was  locked  up.
Thereafter on 1.7.2013 early  morning,  the  petitioner  was  taken  to  the
residence of one Shri Tripathi, Judicial Magistrate who is  arrayed  as  6th
respondent in this writ petition. There,  the  petitioner  was  beaten  with
lathi by DSP, Manish Kumar Suman, who is arrayed as 9th  respondent  herein,
in the presence of the said Judicial Magistrate and it is also alleged  that
while beating he was told that it is a reward for his parents for  reporting
or complaining against him  to  the  Supreme  Court,  and  insulted  him  by
stating that low caste people should not become malik of  the  land  of  the
upper caste people like mausaji. Thereafter, the petitioner was  taken  from
the house of the Judicial Magistrate to the Koneila jail where  he  is  kept
under detention.  The  petitioner  states  that  he  was  unnecessarily  and
illegally detained by  the  police.  It  is  also  a  further  case  of  the
petitioner  that  the  Judicial  Magistrate,  Shri  Tripathi   also   caused
prejudice as  he  is  out  of  vengeance  against  his  parents.  When  they
approached the local  MLA,  the  MLA  contacted  the  SHO  of  Dalsingsarai,
District Samastipur, and the police  informed  the  MLA  that  there  is  no
complaint against the writ petitioner and they are going to release him  but
in spite of repeated requests they have not released him.     =
  Hence, the petitioner prayed for grant of  a  writ  of  habeas  corpus
u/Art. 32 read with Art.14, 21 & 22 of the Constitution of  India  directing
the Respondents to produce the petitioner Saurabh Kumar before this  Hon’ble
Court=

 We have heard the counsel for the State Government  also  who  made  a
statement that the allegation  made  in  the  affidavit  is  false  and  the
petitioner is an accused in a criminal case and therefore he is in  judicial
custody by virtue of an order passed by the Judicial  Magistrate  and  there
is no illegal detention as alleged by the petitioner.=

whether the petitioner  can  be  said  to  be  in  the  unlawful
custody.  
Our answer to that question is in the negative. 
The  record  which
we have carefully perused shows that the petitioner  is  an  accused  facing
prosecution for offences, cognizance whereof has already been taken  by  the
competent Court.
He is presently  in  custody  pursuant  to  the  order  of remand made by the  said  Court.  
A  writ  of  Habeas  Corpus  is,  in  the circumstances, totally mis-placed.
Having said that, we  are  of  the  view
that the petitioner could and indeed ought to have filed an application  for
grant of bail which prayer could be  allowed  by  the  Court  below,  having
regard to the nature of the offences allegedly committed by  the  petitioner
and the attendant circumstances.
The petitioner has  for  whatever  reasons chosen not to do so.
He, instead, has been  advised  to  file  the  present
petition in this Court which is  no  substitute  for  his  enlargement  from
custody.
We are also of the view  that  the  Magistrate  has  acted  rather
mechanically in remanding the accused petitioner herein to judicial  custody
without so much as making  sure  that  the  remaining  accused  persons  are
quickly served with the process of the  Court  and/or  produced  before  the
Court for an early disposal of the matter.  
The Magistrate appears  to  have
taken the process in a  cavalier  fashion  that  betrays  his  insensitivity
towards denial of personal liberty of a citizen who is languishing  in  jail
because the police have taken no action for the apprehension and  production
of the other accused persons.
This kind of apathy is regrettable to say  the least.

We also find it difficult to accept the contention  that  the  other
accused persons who all belong to one family have absconded.  
The nature  of
the offences alleged to have been committed is also not  so  serious  as  to
probablise the version of  the  respondent  that  the  accused  have  indeed
absconded.  
Suffice it to say  that  the  petitioner  is  free  to  make  an
application for the grant of bail to the Court concerned who shall  consider
the same no sooner the same is filed and  pass  appropriate  orders  thereon
expeditiously.

 2014 July. Part – http://judis.nic.in/supremecourt/filename=41780

                                                          REPORTABLE



                       IN THE SUPREME COURTG OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION



                    WRIT PETITION (CRL.) NO. 147 OF 2013




SAURABH KUMAR THROUGH
HIS FATHER                      … PETITIONER

VERSUS

JAILOR, KONEILA JAIL & ANR.      … RESPONDENTS



                               J U D G M E N T


N.V. Ramana, J.


      This habeas corpus petition is filed by one Saurabh Kumar  who  is  in
Koneila Jail, Dalsingsarai, District Samastipur (Bihar).


2.    In brief the case of the petitioner  is  that  he  was  XII  pass  and
wanted to leave the village in search of a decent job.  In  that  connection
he made an application for passport. On 30.6.2013 the police had called  the
petitioner to  the  Police  Station  for  enquiry  on  his  application  for
passport and after reaching inside the police  station  he  was  locked  up.
Thereafter on 1.7.2013 early  morning,  the  petitioner  was  taken  to  the
residence of one Shri Tripathi, Judicial Magistrate who is  arrayed  as  6th
respondent in this writ petition. There,  the  petitioner  was  beaten  with
lathi by DSP, Manish Kumar Suman, who is arrayed as 9th  respondent  herein,
in the presence of the said Judicial Magistrate and it is also alleged  that
while beating he was told that it is a reward for his parents for  reporting
or complaining against him  to  the  Supreme  Court,  and  insulted  him  by
stating that low caste people should not become malik of  the  land  of  the
upper caste people like mausaji. Thereafter, the petitioner was  taken  from
the house of the Judicial Magistrate to the Koneila jail where  he  is  kept
under detention.  The  petitioner  states  that  he  was  unnecessarily  and
illegally detained by  the  police.  It  is  also  a  further  case  of  the
petitioner  that  the  Judicial  Magistrate,  Shri  Tripathi   also   caused
prejudice as  he  is  out  of  vengeance  against  his  parents.  When  they
approached the local  MLA,  the  MLA  contacted  the  SHO  of  Dalsingsarai,
District Samastipur, and the police  informed  the  MLA  that  there  is  no
complaint against the writ petitioner and they are going to release him  but
in spite of repeated requests they have not released him.
3.    Hence, the petitioner prayed for grant of  a  writ  of  habeas  corpus
u/Art. 32 read with Art.14, 21 & 22 of the Constitution of  India  directing
the Respondents to produce the petitioner Saurabh Kumar before this  Hon’ble
Court and also to direct the respondent-State to devise  a  way  to  prevent
malicious arrest and detention by the police that  too  without  maintaining
necessary record and further to direct  the  State  to  pay  the  petitioner
compensation considering that the detention is a black mark  to  his  career
prospects and future.
4.    Initially there were eleven persons shown as  respondents.  But  later
on, the petitioner has withdrawn respondent nos. 3 to 11 from the  array  of
parties.
5.    After issuing notice two counter affidavits have been  filed,  one  by
respondent nos. 1, 2, 7 and  8  and  the  other  by  the  sixth  respondent,
Tripathi, the Additional  Chief  Judicial  Magistrate  and  Judge  In-charge
(Administration) Dalsingsarai, District Samastipur, Bihar.  From  these  two
affidavits, it appears that there were land  disputes  between  petitioner’s
family and one Rama Kant Singh. A Mortgage Suit No. 30/94 was filed  against
Banwari Roy, who is the  grand-father  of  the  petitioner  and  obtained  a
decree against him  on  28.2.1997  by  the  Munsif  Court.  Thereafter,  the
grandfather of the petitioner preferred Title Suit bearing  T.A.  No.  17/99
against the said Rama Kant which was subsequently dismissed by  the  learned
Additional  District  and  Sessions  Judge-I,  Samastipur  by  order   dated
1.6.2013.
6.    The said Rama Kant Singh filed  an  execution  case  for  delivery  of
possession  of  the  land.  The   Munsif   (Civil   Judge,   Jr.   Division,
Dalsingsarai) ordered for deputing the police force for the delivery of  the
land to the decree-holder. In view of the said order,  the  6th  respondent-
Tripathi directed the  Nazir,  Civil  Court,  Dalsingsarai  to  execute  the
decree passed by the learned Munsif and on  3.3.2013  the  said  decree  was
executed which was confirmed by the Munsif by his order dated 15.3.2013.
7.    Thereafter, one Mohan Kumar filed a complaint  before  the  Additional
Chief Judicial Magistrate on 29.4.2013 which was referred to the  police  on
1.5.2013 P.S. No. 72/13 and was registered  under  Section  147,  148,  149,
323, 427, 504, 379 and 386 of the Indian Penal Code and under Section 27  of
the Arms Act for necessary action and  investigation  under  Section  156(3)
Cr.P.C. In the said complaint it is stated that the complainant Mohan  Kumar
was working in his fields of which possession was handed over  by  execution
of the decree. The writ petitioner Sumit Kumar  alias  Saurabh  Kumar  along
with his family members Banwari Roy, Dinesh Roy,  Rekha  Devi,  Golu  Kumar,
armed with lathis, pharsa, pistol beaten Mohan Kumar and snatched his  wrist
watch. It was also further alleged that at  the  gun  point  the  petitioner
party threatened the complainant therein to put his thumb  impression  on  a
stamp paper. On his refusal, the petitioner party threatened  him  to  kill.
The petitioner who is shown as accused in the said FIR was arrested  in  the
said case on 30.6.2013. Thereafter, he was produced  in  the  court  of  the
Additional  Chief   Judicial   Magistrate,   Dalsingsarai,   Samastipur   on
1.7.20123. On  orders  passed  by  him  (Annexures  R.6/2  and  R.6/3),  the
petitioner was remanded to judicial custody vide order dated 1.7.2013.
8.    When the matter  came  up  before  this  Court,  the  learned  counsel
appearing for the petitioner Smt. Lily  Isabel  Thomas  contended  that  the
petitioner is in illegal custody and sought a  direction  for  his  release.
This Court has pointed out to the counsel  for  writ  petitioner  about  the
counter affidavits filed by the respondents which show that  the  petitioner
is an accused in a criminal case which was registered  under  Sections  147,
148, 149, 323, 427, 504, 379 and 386 of IPC and under  Section  27  of  Arms
Act and after such registration he was  arrested  and  produced  before  the
Addl. Chief Judicial Magistrate, Dalsingsarai,  District  Samastipur,  Bihar
and  then  he  was  detained  in  judicial  custody.  However,  the  counsel
contended that a direction be  given  to  the  jailer-respondent  No.  1  to
produce the remand report  of  the  petitioner  as  that  itself  shows  the
illegal detention. In spite of this Court’s suggestion to  the  petitioner’s
counsel to approach the criminal court for obtaining  bail,  she  repeatedly
made request for the production of order passed by the  Judicial  Magistrate
remanding the petitioner to jail.
9.    We have heard the counsel for the State Government  also  who  made  a
statement that the allegation  made  in  the  affidavit  is  false  and  the
petitioner is an accused in a criminal case and therefore he is in  judicial
custody by virtue of an order passed by the Judicial  Magistrate  and  there
is no illegal detention as alleged by the petitioner.
10.   After hearing the counsel and  on  perusing  the  affidavits  and  the
material placed before us, it is evident that  there  are  series  of  cases
pertaining to land disputes between the family of  the  alleged  detenu  and
other villagers. Civil cases were filed initially. During the pendency of  a
Suit, the father and mother of the petitioner filed a Writ Petition No.  197
of 2012 before this Court. In the said Writ Petition, this Court has  passed
the following orders:
      Order dated 9.5.2013

      “Heard Ms. Lily Isabel Thomas, learned  counsel  for  the  petitioners
and perused the record.
       The  District  Judge,  Samastipur,  Bihar  is  directed  to  pass  an
appropriate order in the pending appeal within a period of  two  weeks  from
the date of receipt/production of copy of this order.

      With the above observation, the applications are disposed of.

      If any petition is filed by the applicants under Section  144  C.P.C.,
then the same may be considered on its own merits.”

      Order dated 7.6.2013

      “List on 10.6.2013.

      In the meantime and until further orders the petitioners shall not  be
dispossessed as the order dated  9.5.2013  indicates  that  this  Court  had
already permitted  the  petitioners  to  approach  the  District  court  for
disposal of their application. In the meantime, the learned counsel for  the
petitioners has sought protection from  dispossession,  which  prayer  prima
facie appears to be reasonable. Suitable modification in this regard in  the
order may be considered on the next date when the application is listed.  In
the meantime and  until  10.6.2013,  status  quo  in  the  matter  shall  be
maintained.

      The order may be given dasti.”

11.   A mortgage Suit No. 13/94  was  also  filed  in  which  a  decree  was
obtained against the  grandfather  of  the  petitioner  and  thereafter  the
grandfather of the petitioner Banwari Roy has also filed a civil Title  Suit
bearing T.A. No.  17/99  which  was  dismissed  by  the  learned  Additional
District  and  Sessions  Judge-I,  Samastipur  on  1.6.2013.,  taking   into
consideration the orders passed by this Court.
12.   After obtaining decree in the Suit for  delivery  of  possession  Rama
Kant Singh has filed Execution proceedings on which the Munsif  has  ordered
for police force for the  delivery  of  possession  which  was  executed  on
3.3.2013 and thereafter again an incident had taken  place  on  1.5.2013.  A
complaint was given by one Mohan Kumar which was registered as FIR P.S.  No.
72/13 under different Sections of the IPC and under Section 27 of  the  Arms
Act. At  that  point  of  time,  the  petitioner  was  produced  before  the
Additional Chief Judicial Magistrate. Then the  Magistrate  after  examining
him, directed to send him to jail by order dated 1.7.2013  (annexure  R.6/3)
. The said order reads as under:
“Sub Inspector, P.S. Ujiarpur arrested named accused  of  this  case,  Sumit
Kumar @ Saurabh  Kumar  aged  22  years  son  of  Shil  Kumar  Rai,  Village
Bhagwanpur Desua, P.S. Ujiarpur, District  Samastipur  and  sent  Forwarding
Report to the Court,  seeking  judicial  remand  of  accused  on  the  basis
evidence indicated in the report  and  arrest  memo  along  with  reasonable
escorting force. Accused has  no  complaint  against  the  escorting  force.
Nose, Ear, Eye etc. of the accused is functional and on query by the  Court,
accused said he is able to defend his case. The accused is remanded in  this
case and being sent to Up-Kara (Sub-Divisional Jail), Dalsinghsarai.  Office
clerk is directed to issue custody warrant.

      Fixed for 15.7.2013 for production of accused from jail.”

13.   It is clear from the said narration of facts that  the  petitioner  is
in  judicial  custody  by  virtue  of  an  order  passed  by  the   Judicial
Magistrate.  The same is further ensured  from  the  Original  Record  which
this Court has, by order dated 9th April, 2014, called for  from  the  Court
of Additional Chief Judicial Magistrate, Dalsingsarai, District  Samastipur,
Bihar.   Hence, the contention of the learned  counsel  for  the  petitioner
that there was illegal detention without any case is  incorrect.  Therefore,
the relief sought for by the  petitioner  cannot  be  granted.  Even  though
there are several other issues raised in the Writ Petition, in view  of  the
facts narrated above, there is no need for  us  to  go  into  those  issues.
However, the petitioner is  at  liberty  to  make  an  application  for  his
release in Criminal Case No. 129/13 pending before the Court of the  learned
Addl. Chief Judicial Magistrate, Dalsingsarai.
14.   After the conclusion of hearing, when  the  matter  was  reserved  for
judgment and the pronouncement of judgment is pending, a Crl.M.P. No.  12866
of 2014 has been filed by the writ petitioner seeking reliefs which are  not
concerned with the main  prayer.  The  petitioner  has  also  filed  another
Crl.M.P. No. 14378 of 2014 seeking release of petitioner’s mother and  grand
father. In view of the foregoing discussion and the  reasons  given  in  the
judgment, the reliefs so sought by the  petitioner  in  the  said  Crl.M.Ps.
also cannot be granted in the present habeas corpus writ petition.  However,
the petitioner is at liberty to  avail  remedies  as  available  to  him  in
accordance with law.
15.   Accordingly,  the  writ  petition  as  well  as  the  Crl.M.Ps.  stand
dismissed.

……………………………………..J.
(T.S. Thakur)


……………………………………..J.
(N.V. Ramana)

New Delhi,
July 22, 2014.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL ORIGINAL JURISDICTION


                      WRIT PETITION (Crl.) 147 OF 2013


Saurabh Kumar                                …Petitioner
Vs.
Jailor, Koneila Jail, & Anr.                 …Respondents

                               J U D G M E N T
T.S. Thakur, J.
1.    I have had the advantage of going through the  order  proposed  by  my
esteemed brother N.V. Ramana, J.  I entirely agree with the  view  taken  by
him that the petitioner cannot be said to be in illegal  custody  so  as  to
warrant the issue of a writ of Habeas Corpus.  I would all the  same  add  a
few words of my own to what has already  been  stated  by  my  esteemed  and
erudite brother.
2.    Petitioner’s case is that he was called to the police station on  30th
June, 2013 in connection with some enquiry about the issue  of  a  passport.
When he reached the police station, he was unceremoniously  locked  up  only
to be produced before Shri Tripathi, Judicial  Magistrate,  Respondent  No.6
in the writ petition, on the following date i.e. 1st  July,  2013.  He  was,
according to the averments in the petition, beaten up  with  lathis  by  one
Manish Kumar Suman, DSP arrayed as respondent No.9  in  the  writ  petition.
The beating is alleged to have taken place in the presence of  the  Judicial
Magistrate as  a  reward  for  the  audacity  of  the  petitioner’s  parents
reporting against the  Magistrate  to  the  Supreme  Court.  The  petitioner
alleges that when his parents approached the local MLA for help,  they  were
told that there was no complaint against the petitioner and that he will  be
released  shortly.  The  detention  of  the   petitioner,   in   the   above
circumstances,  it  is  asserted,  was  without  any  lawful  justification,
whatsoever hence illegal.
3.    The respondents have appeared to file two separate counter  affidavits
from which it appears that not only are there disputes  between  the  family
members of the petitioner, on the one hand, and one Rama Kant Singh, on  the
other, but on the complaint of one Mohan Kumar, filed before the  Additional
Chief Judicial Magistrate, the later had passed  an  order  on  29th  April,
2013, referring the matter to the police for  investigation.  Criminal  Case
No.72 of 2013 was on that basis registered in  the  police  station  against
the petitioner for offences punishable under Sections 147,  148,  149,  323,
427, 504, 379 and 386 of the Indian Penal Code read with Section 27  of  the
Arms Act.  The  affidavits  further  reveal  that  the  petitioner  was,  in
connection with the said case, arrested on  30th  June,  2013  and  produced
before the Additional Chief Judicial  Magistrate,  Dalsingsarai,  Samastipur
on 1st July, 2013 who remanded him to judicial custody  by  an  order  dated
1st July, 2013.  From the original record summoned  by  us  for  perusal  we
find that the petitioner had been remanded to judicial custody from time  to
time by the Court concerned.  In the meantime,  a  charge  sheet  was  filed
against the petitioner on 27th August, 2013 followed by a subsequent charge-
sheet filed against the remaining accused persons  on  3rd  December,  2013.
It is also manifest from the record that on a perusal  of  the  FIR,  charge
sheets and the case diaries, the Magistrate  has  taken  cognizance  of  the
offences punishable under Sections 147, 148, 149, 323,  447,  504,  379  and
386 of the Indian Penal Code read with Section 27 of the  Arms  Act  against
the petitioner-Saurabh Kumar, Banwari Rai, Dinesh Rai, Rekhad Devi and  Golu
Kumar in terms of his Order dated 19th December, 2013.  The Order passed  by
the Magistrate reads:
 “Accused produced from Jail.
Perused the FIR charge sheets and case diary.
After perusal prima facie case is made out against  the  accused  (1)  Sumit
Kumar @ Saurav Kumar, (2) Banwari Rai (3) Dinesh Rai,  (4)  Rekha  Devi  and
(5) Golu Kumar U/s 147, 148, 149, 323, 447, 504, 379, 386 IPC  with  Section
27 of the Arms Act
Hence cognizance taken against the accused persons in above  sections.   The
case record is kept in personal file for  trial  and  disposal  (sic)  issue
summon to the unappeared against persons.
Produce on 2-01-2014 for production and appearance. “

4.    Subsequent orders passed in the case show that the  accused  has  been
produced before the Magistrate concerned from time to time and  remanded  to
custody, awaiting service of summons upon the remaining accused persons  who
are, according to the affidavits filed by the respondents, absconding.
5.    Two things are evident from  the  record.   Firstly,  the  accused  is
involved in a criminal case for which he  has  been  arrested  and  produced
before the Magistrate  and  remanded  to  judicial  custody,  Secondly,  the
petitioner does not appear to have made any application for grant  of  bail,
even when the remaining accused persons alleged to be absconding and  remain
to be served.  The net result is that the petitioner continues  to  languish
in jail.
6.    The only question  with  which  we  are  concerned  within  the  above
backdrop is whether the petitioner  can  be  said  to  be  in  the  unlawful
custody.  Our answer to that question is in the negative. The  record  which
we have carefully perused shows that the petitioner  is  an  accused  facing
prosecution for offences, cognizance whereof has already been taken  by  the
competent Court.  He is presently  in  custody  pursuant  to  the  order  of
remand made by the  said  Court.   A  writ  of  Habeas  Corpus  is,  in  the
circumstances, totally mis-placed.  Having said that, we  are  of  the  view
that the petitioner could and indeed ought to have filed an application  for
grant of bail which prayer could be  allowed  by  the  Court  below,  having
regard to the nature of the offences allegedly committed by  the  petitioner
and the attendant circumstances.  The petitioner has  for  whatever  reasons
chosen not to do so.  He, instead, has been  advised  to  file  the  present
petition in this Court which is  no  substitute  for  his  enlargement  from
custody.  We are also of the view  that  the  Magistrate  has  acted  rather
mechanically in remanding the accused petitioner herein to judicial  custody
without so much as making  sure  that  the  remaining  accused  persons  are
quickly served with the process of the  Court  and/or  produced  before  the
Court for an early disposal of the matter.  The Magistrate appears  to  have
taken the process in a  cavalier  fashion  that  betrays  his  insensitivity
towards denial of personal liberty of a citizen who is languishing  in  jail
because the police have taken no action for the apprehension and  production
of the other accused persons. This kind of apathy is regrettable to say  the
least.  We also find it difficult to accept the contention  that  the  other
accused persons who all belong to one family have absconded.  The nature  of
the offences alleged to have been committed is also not  so  serious  as  to
probablise the version of  the  respondent  that  the  accused  have  indeed
absconded.  Suffice it to say  that  the  petitioner  is  free  to  make  an
application for the grant of bail to the Court concerned who shall  consider
the same no sooner the same is filed and  pass  appropriate  orders  thereon
expeditiously.



7.    With the above observations I agree with  the  order  proposed  by  my
esteemed brother N.V. Ramana, J.


                                                           ……………….……….…..…J.
         (T.S. Thakur)
New Delhi
July  22, 2014

Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) - Grant of Parole- declined - Permission to sale some properties situated in Off shore - granted = I.A. NOS. 8-9 & 10-12 OF 2014 IN CONTEMPT PETITION (C) NO.412 OF 2012 IN CIVIL APPEAL NO. 9813 OF 2011 S.E.B.I. …Appellant Versus Sahara India Real Estate Corporation Ltd. & Ors. …Respondents = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41779

 Sahara India Real Estate Corporation Limited (SIRECL)  and  Sahara Housing Investment Corporation Limited (SHICL) - Grant of Parole- declined - Permission to sale some properties situated in Off shore - granted =

whether the contemnors can  be  granted parole as prayed for in the applications?
We regret to say that we do  not,
for the present, see any justification for us to take a view different  from
the one taken in our order dated 4th June, 2014.  There  is  nothing  before
us to show that Shri Subrata Roy Sahara suffers  from  any  serious  medical
condition. At any rate, we expect the jail doctors to keep a  check  on  his
medical condition and provide necessary medical aid as  and  when  required.
The alternative ground urged for the grant of parole  also  does  not  stand
closer scrutiny. There is, at present, no  concrete  proposal  with  Saharas
for sale of the properties situate in India or abroad that may call for  any
negotiation by Shri Subrata Roy Sahara.  While it  may  be  true  that  such
negotiations cannot  be  said  to  be  advisable  when  properties  of  such
magnitude as in the instant case are sought to  be  sold,  yet  it  is  pre-
mature for us to make any arrangement to facilitate  any  such  negotiations
either by directing  release  of  Shri  Subrata  Roy  Sahara  on  parole  or
otherwise.
We may make it  clear  that  if  a  situation  arises  in  which
negotiations become essential, this Court may  consider  passing  orders  to
facilitate such negotiations. Beyond that we do not  consider  it  necessary
or proper to say anything at this stage.

 I.As. No.8-9 of 2014 in Contempt Petitions (C) No.412 and 413 of  2012
are dismissed.

2.    I.As. No.10-12 of 2014 in Contempt Petitions (C) No.412 of  2012,  413
of 2012 and 260 of 2013 are allowed to the extent that three offshore  hotel
properties  owned  by  Saharas  are  allowed  to  be  transferred,  sold  or
encumbered subject to the  condition  that  the  entire  sale  consideration
received by the Saharas after repayment of the loan outstanding towards  the
Bank of China is deposited with SEBI towards compliance with the  directions
contained in the conditional bail  order  dated  26.3.2014  passed  by  this
Court. The excess amount, if any, shall be deposited by  the  Saharas  in  a
separate  account  to  await  orders  from  this   Court   regarding   their
utilisation. The sale of the offshore properties shall not  be  at  a  price
lesser than the value estimated by CBRE and  JLL  for  the  said  properties
reduced at the most by 5% of such value.

3.    We clarify that sale of remainder  of  the  properties  which  Saharas
have been allowed to transfer, sell or encumber in terms of our order  dated
4th June, 2014 shall not be at a price less than the estimated value of  the
said properties reduced at the most by 5% of such estimate.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41779

REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                        I.A. NOS. 8-9 & 10-12 OF 2014
                                     IN
                    CONTEMPT PETITION (C) NO.412 OF 2012
                                     IN
                        CIVIL APPEAL NO. 9813 OF 2011


S.E.B.I.                                           …Appellant

Versus

Sahara India Real Estate Corporation Ltd.
& Ors.                                             …Respondents

                                    WITH

                        I.A. NOS. 8-9 & 10-12 OF 2014

                                     IN
                    CONTEMPT PETITION (C) NO.413 OF 2012
                                     IN
                        CIVIL APPEAL NO. 9833 OF 2011

                                     AND

                           I.A. NOS. 10-12 OF 2014

                                     IN
                    CONTEMPT PETITION (C) NO.260 OF 2013
                                     IN
                        CIVIL APPEAL NO. 8643 OF 2012


                               J U D G M E N T

T.S. Thakur, J.

1.    By our order dated 4th June, 2014 we had, while declining  the  prayer
made by the contemnors for modification of the  terms  on  which  they  were
granted interim bail, partially modified order  dated  21st  November,  2013
passed by this Court and that passed by SEBI on 13th February,  2013  so  as
to enable Sahara India Real Estate Corporation Limited (SIRECL)  and  Sahara
Housing Investment Corporation Limited (SHICL) (hereinafter referred  to  as
‘Saharas’  for  short)  to  deposit  with  SEBI  the   maturity   value/sale
consideration of FDs, bonds and securities held  by  the  Saharas.   We  had
also,  by  the  same  order,  permitted  Saharas  to  sell  nine   different
properties situate in nine different cities in the country  and  to  deposit
the sale proceeds thereof with SEBI, to the extent the  same  was  necessary
to make a total deposit of Rs.5,000/- crores required in terms of  the  bail
order. We had also  permitted  Saharas  to  charge  its  immovable  property
situate in Aamby Valley (Pune) for obtaining and furnishing to this Court  a
bank guarantee for an amount of Rs.5,000/-  crores  in  terms  of  the  bail
order dated 4th June, 2014. As regards Sahara’s  prayer  for  permission  to
sell three hotel properties situate outside the country,  we  had  left  the
question open  to  be  determined  after  Saharas  furnished  the  requisite
documents/information in terms of our order dated 29th May, 2014  evidencing
the approval of Bank of China to the proposed transfer of  the  stakes  held
by the Saharas in the said three properties. We were informed that  Bank  of
China had a charge over the three properties  and  that  it  had  agreed  in
principle to the  sale  of  the  stakes  held  by  Saharas  subject  to  the
repayment of the outstanding loan amount for which the said properties  were
charged. We had also noticed the valuation reports in regard  to  the  three
properties mentioned above and a contention urged by Saharas that  the  same
had been prepared by reputed valuers at the instance of the  Bank  of  China
in connection with the loan transactions as a part of the  ongoing  exercise
undertaken by the bankers. We had asked Saharas  to  obtain  a  confirmation
from the Bank of China to the effect that the valuation reports prepared  in
respect of the three offshore hotel properties by CBRE  and  JLL  have  been
prepared at the instance of the Bank of China and that  the  same  had  been
accepted by the bank to be correct.   We  were  of  the  view  that  such  a
confirmation would  lend  re-assurance  to  the  Court  that  the  valuation
reports represented the true value of the stakes held by the Saharas in  the
said three properties. This is evident from the  following  portion  of  the
order passed by us on 29th May, 2014:

“Dr. Dhawan submitted, on instructions, that  an  appropriate  communication
could subject to the order of this Court be addressed to the Bank  of  China
by the Saharas seeking its approval to the proposed transfer of  the  stakes
held by Saharas in the three properties  mentioned  above,  subject  to  the
repayment of the loan  outstanding  against  those  properties.  Dr.  Dhawan
submitted that a copy of the communication addressed to the  Bank  of  China
and its response shall be placed on record before this Court along  with  an
affidavit within one week from today. He further submitted that  apart  from
the correspondence that may be exchanged on the subject between Saharas  and
the Bank of China, the
Bank of China  will  also  be  requested  to  confirm  the  amount  that  is
outstanding towards the loan advanced by it in regard to  each  one  of  the
three properties mentioned above to give a clear picture to this  Courts  to
the outstanding liability that remains to be liquidated by the  Saharas  qua
the said properties.
Our attention was also drawn to the  valuation  reports  in  regard  to  the
three properties mentioned earlier. It was urged  that  the  said  valuation
reports have been prepared by reputed valuers at the instance  of  the  Bank
of China in connection with the loan transactions  as  a  part  of  on-going
annual exercise undertaken by the lending  Bank.  If  that  be  so,  Saharas
would do well to obtain a confirmation from the Bank of China to the  effect
that the valuation reports prepared  in  respect  of  the  three  properties
mentioned above by CBRE and JLL, have been prepared at the instance  of  the
Bank of China and that the said valuation reports have been accepted by  the
Bank to be correct. This could lend  re-assurance  to  the  Court  that  the
value/stakes  held  by  Saharas  in  these  properties  are  sought  to   be
transferred on the basis of the  true  market  value  of  the  said  assets.
Needful shall be done expeditiously,  but  not  later  than  one  week  from
today.”


2.    Saharas  have  now  made  the  present  applications  seeking  certain
directions. In I.As No. 8-9 of 2014, Shri Subrata Roy Sahara has prayed  for
temporary/conditional release from judicial custody for a period of 15  days
or so to meet his nonagenarian and ailing mother as also  for  taking  steps
for compliance with the order of this Court  dated  26th  March,  2014.  The
applicant has, inter alia, stated that his mother Smt.  Chhabi  Roy  who  is
aged over 93 years suffers from several ailments  which  complicate  matters
in view of her being in  a  fragile  emotional  state.  The  applicant  Shri
Subrata Roy Sahara is also, according to the  averments,  not  keeping  good
health requiring medical attention. The application,  however,  stops  short
of elaborating the medical condition of  the  applicant  Shri  Sahara.  More
importantly, the application seeks release of Shri Sahara on parole  with  a
view to negotiating deals  directly  with  the  purchasers  who  have  shown
interest in the purchase of the property  being  offered  for  sale  by  the
Saharas.

3.    In the accompanying I.As Nos.10, 11 & 12 of 2014 Saharas  have  prayed
for  permission  to  obtain  a  bank  guarantee  of  Rs.5,000/-  crores   by
leveraging the three overseas hotel properties by way of sale,  mortgage  in
the light of the Bank of China’s consent  to  such  sale  or  transfer,  and
certification that the valuation reports were prepared at  the  instance  of
the Bank and accepted by it. The Saharas  also  seek  permission  for  sale,
hypothecation, mortgage/leverage the land  owned  by  them  and  situate  in
Versova.

4.    Appearing  for  the  applicants,  Dr.  Rajiv  Dhavan,  learned  senior
counsel, argued that the applicants had, pursuant to our  order  dated  29th
May, 2014, addressed a joint letter to the Bank of China on 2nd  June,  2014
requesting the Bank of China to confirm the information sought for  by  this
Court.  The Bank of  China  had,  on  receipt  of  the  said  communication,
consented to the proposed sale of the stakes held by Saharas  in  the  hotel
properties subject to  the  repayment  of  the  amount  outstanding  against
Saharas. It had also confirmed the loan amounts and  the  valuation  reports
as required by the Order passed  by  this  Court.   Our  attention  was,  in
support of that submission, drawn by the learned  counsel  to  letter  dated
3rd June, 2014 sent by the Bank  of  China  to  the  Saharas  conveying  the
Bank’s consent to the sale and direct or indirect disposal  by  the  Saharas
Group of its interests in the three hotels subject  to  the  condition  that
the sale proceeds are  sufficient  to  and  the  same  are  applied  towards
repayment in full of the outstanding principal, interest and  other  amounts
including any applicable prepayment premia, fees, out of  pocket  costs  and
expenses of Facility Agents and lenders owned by Sahara Group in  connection
with the loans obtained from the Bank. The letter sets out  the  outstanding
amount under the Sahara Group loans as on 2nd June, 2014  in  the  following
words:

“2)   Amounts outstanding under the Sahara Group Loans as at 02 June 2014

A.   Amounts outstanding under the Sahara Group Loans as  at  02  June  2014
are:



|As at 02 June 2014 |GHH Loan            |Plaza/Dream Loan      |
|Loan outstanding   |£289,750,000.0      |US$427,241,303.00     |
|balance            |                    |                      |
|Accrued Interest   |£985,469.20         |US$244,036.67         |
|Prepayment Fee     |£2,897,500.00       |$8,544,826.07         |
|Libor Breakage     |Approximately       |Approximately         |
|Costs              |£11,873,16, final   |£9,740.96, final      |
|                   |amount to be        |amount to be confirmed|
|                   |confirmed at the    |at the prepayment date|
|                   |prepayment date     |                      |
|Legal Fees         |Approximately       |Approximately £15,000,|
|                   |£15,000 final amount|final amount to be    |
|                   |to be confirmed at  |confirmed at the      |
|                   |the prepayment date |prepayment date       |


Please note that the exact amounts  required  to  prepay  the  Sahara  Group
Loans will depend on when the prepayment is made.  Whilst the above  numbers
are accurate as at 2 June 2014 (Except that the  Libor  Breakage  Costs  and
Legal fees are estimates), they are subject to change.”



5.    The Bank of China has also, in the same communication, confirmed  that
valuation reports were instructed and accepted by the  Facility  Agents  for
loan security purposes in regard to the three properties  in  question.  The
bank says :

“Latest Valuation reports prepared pursuant to the Sahara Group loans

The following Valuation reports were instructed  and  accepted  by  Facility
Agent for loan security purposes:

Plaza Hotel Valuation Report prepared by CBRE dated 27  Oct  2013  with  the
Market Value of US$592,000,000;

Dream Downtown Hotel Valuation Report prepared by CBRE  dated  29  Oct  2013
with the Market Value of US$252,000,000

Grosvenor House Hotel Valuation Report prepared by Jones Lang LaSalle  (JLL)
dated 26 February 2014 with the Market Value of £516,000, 000

We understand that you will share a copy of this  letter  with  the  Supreme
Court of India.”



6.    It was in the above context, Dr. Dhavan submitted  that  (a)  Bank  of
China had no objection to the proposed sales/transfer of the stakes held  by
the Saharas in the three hotel properties  and  (b)  the  valuation  reports
indicating the value  of  the  assets  in  question  were  prepared  on  the
instructions of the Bank of China and had  been  accepted  by  it  for  loan
security purposes. Dr. Dhavan argued that the  valuation  reports  had  been
prepared in  the  ordinary  course  of  business  long  before  the  present
controversy arose and were truly indicative  of  the  market  value  of  the
properties. It was also submitted that the reports were prepared by  reputed
international  valuers  after  a  thorough  and  analytical  application  of
recognised methods of valuation of  a  going  establishment  like  a  hotel.
There was, therefore, no basis for  any  apprehension  that  the  properties
proposed to be sold may be sold at a  price  lesser  than  the  true  market
value with a view to defrauding the creditors or  siphoning  away  the  sale
consideration. Dr. Dhavan argued that while the encashment of FDs  and  sale
of  bonds  and  securities  had  already  resulted  in  the  deposit  of   a
substantial amount of over Rs.3,000/- crores in SEBI-Sahara Refund  account,
sale of the three hotel properties would enable the Saharas to make  up  the
deficit amount of Rs.2000/- crores besides helping Saharas  arrange  a  bank
guarantee for another Rs.5,000/- crores, as directed by this Court.

7.    Mr. Arvind P. Datar, learned Senior Counsel  appearing  for  SEBI,  on
the other hand, contended that the prayer made by the  contemnors/applicants
in I.As. No.8 and 9 for release on parole was not justified  on  the  ground
stated.  The material on record did not, according to the  learned  counsel,
suggest that Shri Subrata Roy Sahara had  any  serious  medical  problem  to
justify his release on parole nor can his release on parole be justified  on
the ground for facilitating negotiations with  the  prospective  purchasers.
It was submitted that Saharas had not come forward to disclose the names  of
the prospective buyers with whom they proposed  to  hold  such  negotiations
nor was there any concrete proposal at present under their consideration.

8.    As regards sale of the three hotel properties, Mr.  Arvind  P.  Datar,
did not deny that though the Bank of China has  a  substantial  charge  over
the said properties but according to the valuation reports the market  value
of the property is considerably higher than  the  outstanding  loan  amount,
thereby accepting the plea of the applicants  that  if  the  properties  are
sold, sufficient surplus would be available  even  after  discharge  of  the
Bank loan that could be utilised for deposit with SEBI and for furnishing  a
bank guarantee as demanded by this Court. Moreover,  the  valuation  reports
prepared by leading and reputed international valuers  were  not  questioned
by Mr. Arvind P. Datar nor was  it  suggested  that  the  reports  had  been
procured only for use in these proceedings.

9.    We have considered the matter in the light of the submissions made  at
the bar. The contemnors stand committed to jail by the Order of  this  Court
dated 4th March, 2014 on  account  of  their  failure  to  comply  with  the
directions of this Court’s Orders dated 31st August, 2012 and 5th  December,
2012 and those issued on 25th February, 2013 in I.A. No.67 of 2013 in  Civil
Appeal No.9813 of 2011 and  I.A  No.5  in  Civil  Appeal  No.9833  of  2011.
Interim bail order passed by this Court on 26th March,  2014  requires  them
to deposit Rs.10,000/- crores, out of which Rs.5,000/- crores has to  be  in
cash  while  the  balance  has  to  be  secured  by  bank  guarantee  of   a
nationalised bank furnished in favour of  SEBI.   It  was  with  a  view  to
enabling the contemnors to comply with the said direction  that  this  Court
had by Order dated 4th June, 2014 lifted the embargo placed  upon  operation
of the bank accounts and sale/transfer  of  immovable  assets  held  by  the
Saharas qua nine properties referred to in  the  said  order.  Saharas  have
since then deposited an amount of more than Rs.3,000/- crores with  SEBI  by
encashment of FDs, Bonds and securities.

10.   Saharas have also out of the nine properties referred  to  above  sold
the property situate in Ahmedabad for a sum of  Rs.4,11,82,55,138/-  (Rupees
Four Hundred and Eleven Crores Eighty  Two  Lacs  Fifty  Five  Thousand  One
Hundred and Thirty Eight only). The  remaining  eight  properties,  however,
remain to be sold or encumbered. We had in the light of the above asked  Dr.
Dhavan whether the proposed sale/transfer of the offshore  hotel  properties
was essential when no less than eight  other  properties  apart  from  Aamby
Valley (Pune) remained to be sold or encumbered for raising funds  necessary
for compliance with the order of this Court.  Dr. Dhavan argued that it  may
be  easier  for  the  contemnors-Saharas  to  leverage  the  overseas  hotel
properties for deposit  of  the  deficit  of  around  Rs.2000/-  crores  and
arranging a bank guarantee of Rs.5,000/- crores in  comparison  to  sale  or
transfer of property situate within the country which may take a  relatively
longer period leading to continued incarceration of the contemnors in  jail.
 It was submitted  that  so  long  as  it  was  ensured  that  the  offshore
properties are sold for the market value they command,  the  Saharas  should
have the liberty to do so.

11.   There is, in our  opinion,  merit  in  the  contention  urged  by  Dr.
Dhavan.  What is important is that the properties held by  the  Saharas  are
sold at their market value and the  sale  proceeds,  subject  to  any  other
directions issued by this Court, utilised for compliance with the  terms  of
the conditional bail order issued by this Court.   It  is  evident  that  if
sale of properties situate within the country is likely to  take  time,  the
contemnors may be exposed to a longer period of incarceration on account  of
their failure to comply with the directions of this  Court.   On  the  other
hand, quicker the compliance with the directions of the  Court’s  Order  for
deposit of cash and bank guarantee, the easier would be the way out of  jail
for them. The  anxiety  on  the  part  of  the  Saharas  generally  and  the
contemnors in particular to sell  the  offshore  properties  is,  therefore,
understandable especially when such sale and transfer is not only  going  to
help Saharas in liquidating the outstanding loan amount payable to the  Bank
of China but leave sufficient surplus with the Saharas to not  only  deposit
the balance of Rs.2,000/- crores approximately that needs to be  immediately
paid by them but also furnish a bank  guarantee  for  a  sum  of  Rs.5,000/-
crores, as directed. We, therefore, see no legal  impediment  in  permitting
the sale of the offshore properties owned by Saharas.  This is  particularly
so when not only do we have the valuation reports of the said properties  on
record prepared as they are by internationally reputed valuers but also  the
concurrence of SEBI for the sale of such properties at  that  value  subject
to the condition that the sale consideration shall as far as possible be  at
the estimated value of such properties, less, at the  most  by  5%  of  such
value.  We are, mindful of the fact that Saharas have sold the  property  at
Ahmedabad at more than three times the circle rates of  such  property.   No
such rates are, however, available or prescribed  for  offshore  properties.
We shall, therefore, have to  go  only  by  the  valuation  reports  of  the
valuers as the basis for such proposed sale/transfer subject to a margin  of
5% which we have indicated above. In case the offer received  is  lesser  by
more than 5%, they will seek prior approval of the Court.

12.   We may incidentally mention at this stage that Dr. Dhavan  had  sought
a clarification of our Order dated 4th June, 2014 inasmuch as  in  the  para
23 (iii) (b) of the  said  order,  we  had  stated  that  the  sale  of  the
properties referred to in the order shall not be for an amount  lesser  than
the circle rate for such properties or the estimated value indicated by  the
Saharas whereas in the operative portion of the said order we had  permitted
sale at a price that is not lower than the circle rate prescribed  for  such
properties.  Having regard, however, to the  experience  that  Saharas  have
had with the sale of properties in Ahmedabad which fetched more  than  three
times the circle rates prescribed for the same, we are of the view that  the
actual market value of the property held by Saharas is many times more  than
the circle rates for such property. This is evident not only from  the  sale
transaction relating to Ahmadabad property but also the  fact  that  Saharas
have themselves estimated the value of the properties much higher  than  the
circle rates for the same.  In the circumstances, we see  no  difficulty  in
clarifying that the sale of the remainder of the properties  which  we  have
permitted to be sold by our order dated 4th June, 2014 shall not  be  lesser
than the estimated value of the properties given by Saharas less by no  more
than 5% of such estimated value. In case the offer(s) received  is/are  less
by more than 5%, prior approval of the Court will have to be sought.

13.   That brings us to the question whether the contemnors can  be  granted
parole as prayed for in the applications?  We regret to say that we do  not,
for the present, see any justification for us to take a view different  from
the one taken in our order dated 4th June, 2014.  There  is  nothing  before
us to show that Shri Subrata Roy Sahara suffers  from  any  serious  medical
condition. At any rate, we expect the jail doctors to keep a  check  on  his
medical condition and provide necessary medical aid as  and  when  required.
The alternative ground urged for the grant of parole  also  does  not  stand
closer scrutiny. There is, at present, no  concrete  proposal  with  Saharas
for sale of the properties situate in India or abroad that may call for  any
negotiation by Shri Subrata Roy Sahara.  While it  may  be  true  that  such
negotiations cannot  be  said  to  be  advisable  when  properties  of  such
magnitude as in the instant case are sought to  be  sold,  yet  it  is  pre-
mature for us to make any arrangement to facilitate  any  such  negotiations
either by directing  release  of  Shri  Subrata  Roy  Sahara  on  parole  or
otherwise.  We may make it  clear  that  if  a  situation  arises  in  which
negotiations become essential, this Court may  consider  passing  orders  to
facilitate such negotiations. Beyond that we do not  consider  it  necessary
or proper to say anything at this stage.

14.   In the result :

1.    I.As. No.8-9 of 2014 in Contempt Petitions (C) No.412 and 413 of  2012
are dismissed.

2.    I.As. No.10-12 of 2014 in Contempt Petitions (C) No.412 of  2012,  413
of 2012 and 260 of 2013 are allowed to the extent that three offshore  hotel
properties  owned  by  Saharas  are  allowed  to  be  transferred,  sold  or
encumbered subject to the  condition  that  the  entire  sale  consideration
received by the Saharas after repayment of the loan outstanding towards  the
Bank of China is deposited with SEBI towards compliance with the  directions
contained in the conditional bail  order  dated  26.3.2014  passed  by  this
Court. The excess amount, if any, shall be deposited by  the  Saharas  in  a
separate  account  to  await  orders  from  this   Court   regarding   their
utilisation. The sale of the offshore properties shall not  be  at  a  price
lesser than the value estimated by CBRE and  JLL  for  the  said  properties
reduced at the most by 5% of such value.

3.    We clarify that sale of remainder  of  the  properties  which  Saharas
have been allowed to transfer, sell or encumber in terms of our order  dated
4th June, 2014 shall not be at a price less than the estimated value of  the
said properties reduced at the most by 5% of such estimate.
4.    We had by our order dated 4th June, 2014 requested Shri F.S.  Nariman,
Senior Advocate, to assist the Court  as  an  Amicus  Curiae.  We  had  also
permitted Shri Nariman to associate two juniors of his choice to  brief  him
in the matter. Shri Nariman as in terms of a communication dated  5th  June,
2014 regretted his inability to assist the Court as  he  had  also  appeared
for Saharas upto 31st August, 2012 when the main judgment was  delivered  in
the case.  That Shri Nariman had appeared on  behalf  of  Saharas  had  been
brought to our notice also but only after we had  pronounced  the  order  in
the Court on 4th June, 2014 by which he was appointed as Amicus Curiae.   It
is obvious that having appeared as  a  counsel  on  behalf  of  Saharas  Mr.
Nariman  cannot  possibly  take  up  the  assignment  offered  to  him.  We,
therefore, have no option but to modify our order dated 4th  June,  2014  to
the extent that in place of Shri F.S. Nariman, Senior Advocate,  we  request
Shri Shekhar Naphade, Senior Advocate, to assist the Court in  the  case  as
an Amicus Curiae. The terms and conditions  of  Shri  Naphade’s  appointment
shall, however, remain  the  same  as  were  stipulated  for  Shri  Nariman.



                                                          ………………….……….…..…J.
       (T.S. THAKUR)


                                                          ………………….……….…..…J.
       (ANIL R. DAVE)


                                                          ………………….……….…..…J.
       (A.K. SIKRI)
New Delhi
July 22, 2014

Service matter -Once Resignation was accepted in a case of temporary employee, there is no obligation on Govt. to relieve him from duties by way of separate letter to hold the validity of his resignation -No question of reinstatement - on probation - unauthorised absent during probation - on the next day sent resignation - resignation was accepted after long correspondence - Request for cancellation of Resignation letter subsequently - rejected - challanged in Tribunal - dismissed - High court allowed and directed to pay arrears too after reinstatement on the ground that he was not relieved from his duties after acceptance of letter - Apex court held that In our considered view, the part of clause (4) extracted above makes a distinction between the right of a temporary Government servant to sever his connection from Government service by giving a notice of termination and that of a temporary Government servant who chooses not to give such notice but opts to submit a letter of resignation. In the instant case, the letter of acceptance clearly shows that termination of Respondent’s service as per his offer of resignation was not deferred to any future date and hence there was no requirement to relieve him of his duties. Hence, in the instant case, there was no obligation on the Government to write a formal letter that the Respondent has been relieved. Even if such requirement had been there, in the case in hand it would be an empty formality as he absconded from duties for 8 months without joining inspite of letters = CIVIL APPEAL NO.10645 OF 2010 Union of India & Ors. …..Appellants Versus Hitender Kumar Soni …..Respondent= 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41787

 Service matter -Once Resignation was accepted in a case of temporary employee, there is no obligation on Govt. to relieve him from duties by way of separate letter  to hold the validity of his resignation -No question of reinstatement -  on probation - unauthorised absent  during probation - on the next day sent resignation - resignation was accepted after long correspondence - Request for cancellation of Resignation letter subsequently - rejected - challanged in Tribunal - dismissed - High court allowed and directed to pay arrears too after reinstatement on the ground that he was not relieved from his duties after acceptance of letter  - Apex court held that In our considered view, the part of  clause  (4)  extracted  above  makes  a distinction between the right of a temporary  Government  servant  to  sever his connection from Government service by giving  a  notice  of  termination and that of a temporary Government servant who  chooses  not  to  give  such notice but opts to submit a letter of resignation.  In  the  instant  case,  the letter of acceptance clearly shows that termination of Respondent’s  service as per his offer of resignation was not deferred  to  any  future  date  and hence there was no requirement to relieve  him  of  his  duties.   Hence,  in  the  instant case, there was no obligation on the Government to  write  a  formal  letter that the Respondent has been relieved.  Even if such  requirement  had  been
there, in the case in hand it would be an  empty  formality as he absconded from duties for 8 months without joining inspite of letters = 

His service was still temporary and  under
probation. He did not report for duty on 06.10.1997 and on the  next  day  a
letter of resignation dated 07.10.1997 sent by the Respondent  was  received
in the concerned office through post.  The reason for resignation  mentioned
in the letter was unavoidable family circumstances and  ill  health  of  the
Respondent.  For  some  administrative  reasons,  the  resignation  of   the
Respondent  could  not  be  accepted  immediately  although   he   disobeyed
directions through various letters to resume his duties and  never  reported
for  work  although  no  leave  was  sanctioned.   Through  a  letter  dated
31.10.1997 Respondent was informed that his resignation cannot  be  accepted
for some administrative reasons.
By  a  letter  dated 24.10.1997,
Respondent was informed that tendering of  resignation  was  not
sufficient to absolve him of his official duties unless it was  accepted  by
the Competent Authority.   He  was  asked  to  submit  some  other  official
documents such as Instructions Set, Identity Card,  Tour  Diary,  Kit  items
and  some  relevant  official  papers.   He  was   also   asked   to   offer
clarification regarding a sample survey  and  was  warned  that  on  failure
disciplinary  action  might  be  initiated  against  him.   In  reply,   the
Respondent through a letter dated 10.11.1997, informed that he had  returned
Instructions Set, Tour Diary, Random Table and NIC book.  He also  requested
that the cost of kit items may be adjusted from his pending dues.  He  again
made a request that his resignation which he had already  submitted  may  be
accepted.  Letters were issued to the Respondent in February and April  1998
regarding his obligation to join duties and  his  failure  to  submit  leave
application.   However,  ultimately  the  Competent  Authority,   as   noted
earlier,  by  letter  dated  16.6.1998  accepted  the  resignation  of   the
Respondent.  On 5.8.1998 the Respondent sent a letter  to  the  effect  that
the circumstances under which he  had  submitted  his  resignation  had  now
changed and hence his resignation letter may be treated as  cancelled.   The
concerned officials got the Identity Card of  the  Respondent  collected  on
25.8.1998 for fear of its misuse.
Since the Appellants did not accede to the request  of  the  Respondent,  he
preferred  O.A. in Tribunal - Tribunal dismissed and filed writ in High court  =

inspite of resignation of the  Respondent  dated  07.10.1997
having been accepted by the Competent Authority  by  order  dated  16.6.1998
The  High   Court held that the resignation could not have come into  effect  because  as  per
clause (4) of Office Memorandum dated 11.2.1988 issued by the Government  of
India,  Ministry  of  Personnel,  Public  Grievances   and   Pensions,  
the
Respondent was also required to be relieved of  his  duties  which  was  not done by the Appellants
and further held   the
Respondent  entitled  for  reinstatement  in  service   to   the   post   of
“Investigator”.  
The Government was directed  to  decide  the  admissibility
and entitlement of leave, arrears of pay and allowances  and  other  service
benefits  of  Respondent  upon  his  reinstatement  after   affording   full
opportunity to the Respondent, of hearing as well as leading evidence.=

 whether  relevant
clause (4) of the Office Memorandum dated 11.2.1988 takes away the power  of
the Government to effectively bring to an end the service of an employee  by
accepting his resignation  unless  the  Government,  besides  accepting  the
resignation also proceeds to relieve the employee.=

Clause (4): Since a temporary Government servant can  sever  his  connection
from Govt. service by giving a notice of termination of service  under  Rule
5(1) of the Central  Civil  Services  (TS)  Rules,  1965,  the  instructions
contained in this Office Memorandum relating to  acceptance  of  resignation
will not be applicable in cases where a notice  of  termination  of  service
has been given by a temporary Govt. servant.  If, however,  temporary  Govt.
servant submits a letter of resignation in which he does  not  even  mention
that it may be treated as  a  notice  of  termination  of  service,  he  can
relinquish the charge of the post held by him only after the resignation  is
duly accepted by the appointing authority and he is relieved of  his  duties
and not after the expiry of the notice period laid  down  in  the  Temporary
Service Rules.”

Apex court held that
In our considered view, the part of  clause  (4)  extracted  above  makes  a
distinction between the right of a temporary  Government  servant  to  sever
his connection from Government service by giving  a  notice  of  termination
and that of a temporary Government servant who  chooses  not  to  give  such
notice but opts to submit a letter of resignation.
In the  case  of  notice
of termination the concerned employee can relinquish the charge of the  post
on expiry of the period of notice, but, such right will not be available  to
a temporary employee in case he tenders a simple  resignation.  
The  reason
is obvious because a  resignation  requires  acceptance  by  the  appointing
authority and  till  then  his  right  to  relinquish  is  impinged  by  the
requirement, to be relieved of his duties.
On a joint  reading  of  clauses
(3) and (4) it can be safely inferred that  depending  upon  the  facts  and
circumstances of a case and nature of request made in a resignation  letter,
the Government has the power to accept the resignation so as to bring  about
a severance of relationship of master and  servant  with  immediate  effect.

But in cases where the letter of resignation itself specifies a future  date
for being relieved or where,  as  indicated  in  clause  (2)  the  concerned
Government servant is engaged on work of importance  etc.,  the  resignation
may not be accepted straightaway.
It is in  such  circumstances  only  that
Government may exercise its power to accept the offer  but  defer  the  date
from which resignation would become effective.
The  normal  rule,  however,
remains  that  Government  has  the  power  to  accept  a  resignation  with
immediate effect.
In case the Government for some reasons wishes  to  defer
or specify the date from which resignation would  become  effective,  it  is
entitled to take work from the  concerned  Government  servant  till  he  is
relieved in accordance with the facts and requirements  of  the  case.   
The
letter of  Government  accepting  an  offer  of  resignation  itself  should
normally be conclusive for deciding whether the  Government  has  opted  for
immediate termination  of  service  by  accepting  the  resignation  or  has
deferred such termination to a future date.
Only in the  latter  eventuality
the relationship of master and servant shall  continue  till  the  concerned
Government servant is relieved of his duties.  
In  the  instant  case,  the
letter of acceptance clearly shows that termination of Respondent’s  service
as per his offer of resignation was not deferred  to  any  future  date  and
hence there was no requirement to relieve  him  of  his  duties.  
Even  the
peculiar facts of this case show that the Respondent while on probation  had
already abandoned his temporary service for almost  8  months  and  had  not
cared to report for duty inspite of several requests.  
In such a  situation,
it would be impossible to relieve an absconding employee of his  duties  and
if the reasoning of the High Court is accepted such  employee,  even  if  he
has tendered resignation, must be continued in service till he  is  actually
found or till he presents himself to be relieved  of  his  duties.   Such  a
view would be impractical and run against larger public interest.
There may be cases where an employee resigning  from  service  has  gone  in
hiding or is  in  jail  custody  etc.  
The  construction  placed  upon  the
relevant clauses of the O.M. dated 11.2.1988 by the High Court  will  render
the provisions unworkable, hence such construction needs to be avoided.
The word, “relieving” itself must be understood  in  the  ordinary  parlance
because it is not defined in the  O.M.  or  in  the  relevant  rules  as  is
apparent from the judgment of the High  Court.  
The  meaning  of  the  word
“relieve” given in the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar)  is
– “to free or clear a person from an  obligation”.  
This  result  manifests
itself from the order accepting the resignation because no  reservation  has
been made by the Government that the Respondent has to continue  in  service
till any particular time or till being  relieved.  
Hence,  in  the  instant
case, there was no obligation on the Government to  write  a  formal  letter
that the Respondent has been relieved.  Even if such  requirement  had  been
there, in the case in hand it would be an  empty  formality.
The  wholesome
writ jurisdiction was not required to be  exercised  in  the  facts  of  the
present case keeping in view the conduct of the Respondent in escaping  away
from his duties without  obtaining  leave  when  he  was  only  a  temporary
employee under probation.
For the aforesaid reasons, we find no option but to set aside the order  and
judgment of the High Court under appeal.  We order accordingly.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41787

                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.10645 OF 2010

Union of India & Ors.                              …..Appellants

      Versus

Hitender Kumar Soni                                …..Respondent




                               J U D G M E N T



SHIVA KIRTI SINGH, J.

As Appellants the Union of India and its concerned officials  are  aggrieved
by the judgment  and  order  under  appeal  dated  11.12.2008  passed  by  a
Division Bench of High Court of Himachal  Pradesh  in  Civil  Writ  Petition
No.41 of 2001 whereby the High Court allowed the Writ Petition preferred  by
the sole Respondent  and  set  aside  the  impugned  order  of  the  Central
Administrative  Tribunal  dated  15.5.2000.   The  High   Court   held   the
Respondent  entitled  for  reinstatement  in  service   to   the   post   of
“Investigator”.  The Government was directed  to  decide  the  admissibility
and entitlement of leave, arrears of pay and allowances  and  other  service
benefits  of  Respondent  upon  his  reinstatement  after   affording   full
opportunity to the Respondent, of hearing as well as leading evidence.
Before adverting to the facts it is relevant to notice at  the  outset  that
the High Court, inspite of resignation of the  Respondent  dated  07.10.1997
having been accepted by the Competent Authority  by  order  dated  16.6.1998
held that the resignation could not have come into  effect  because  as  per
clause (4) of Office Memorandum dated 11.2.1988 issued by the Government  of
India,  Ministry  of  Personnel,  Public  Grievances   and   Pensions,   the
Respondent was also required to be relieved of  his  duties  which  was  not
done by the Appellants.
The question falling for determination in this appeal  is  whether  relevant
clause (4) of the Office Memorandum dated 11.2.1988 takes away the power  of
the Government to effectively bring to an end the service of an employee  by
accepting his resignation  unless  the  Government,  besides  accepting  the
resignation also proceeds to relieve the employee.  In  the  judgment  under
appeal, the relevant clauses,  i.e.,  clauses  1,  2,  3  and  4  have  been
extracted in paragraph 10(iii) and those clauses are reproduced  hereinbelow
for the sake of clarity and convenience :
“Clause (01) : Format  of  resignation:  Resignation  is  an  intimation  in
writing sent to the competent authority by the incumbent of a post,  of  his
intention or proposal to resign the office/post either immediately  or  from
a future specified date.  A resignation has to be clear and unconditional.

Clause (02): Circumstances under which resignation should be accepted.

It is not in the interest of Government to retain  an  unwilling  Government
servant in service.  The general rule, therefore, is that a  resignation  of
a Government  servant  from  service  should  be  accepted,  except  in  the
circumstances indicated below :-

Where the Government servant concerned is engaged on work of importance  and
it would take time to make alternative arrangements for  filling  the  post,
the  resignation  should  not  be  accepted  straightaway  but   only   when
alternative arrangements for filling the post have been made.
xxxx xxxx xxxx xxxx xxxx

Clause (03): A resignation becomes effective when it  is  accepted  and  the
Government servant is relieved of his duties.  If a Government  servant  who
had  submitted  a  resignation,  sends  an  intimation  in  writing  to  the
appointing authority withdrawing his earlier letter  of  resignation  before
its acceptance by the appointing authority, the resignation will  be  deemed
to have been automatically withdrawn and there is no question  of  accepting
the resignation.  In case, however, the resignation  had  been  accepted  by
the appointing authority and the Government servant is to be  relieved  from
a future date, if any request for withdrawing the  resignation  is  made  by
the Government servant before he is actually relieved  of  his  duties,  the
normal principle should be to allow the request of  the  Government  servant
to withdraw the resignation.  If, however, the request for withdrawal is  to
be refused, the grounds for the rejection of  the  request  should  be  duly
recorded  by  the  appointing  authority  and  suitably  intimated  to   the
Government servant concerned.

Rules governing temporary Government servants in reference to Rule  5(1)  of
the CCS (TS) Rules, 1965.

Clause (4): Since a temporary Government servant can  sever  his  connection
from Govt. service by giving a notice of termination of service  under  Rule
5(1) of the Central  Civil  Services  (TS)  Rules,  1965,  the  instructions
contained in this Office Memorandum relating to  acceptance  of  resignation
will not be applicable in cases where a notice  of  termination  of  service
has been given by a temporary Govt. servant.  If, however,  temporary  Govt.
servant submits a letter of resignation in which he does  not  even  mention
that it may be treated as  a  notice  of  termination  of  service,  he  can
relinquish the charge of the post held by him only after the resignation  is
duly accepted by the appointing authority and he is relieved of  his  duties
and not after the expiry of the notice period laid  down  in  the  Temporary
Service Rules.”

Now, the relevant facts.  After being selected and recommended by the  Staff
Selection Committee  for  appointment  as  “Investigator”  (Group  ‘C’  non-
gazetted post), the Respondent joined the said post in  the  Office  of  the
Assistant Director, National  Samples  Survey  Organisation,  Shimla,  Field
Operation Division on 24.6.1996.  His service was still temporary and  under
probation. He did not report for duty on 06.10.1997 and on the  next  day  a
letter of resignation dated 07.10.1997 sent by the Respondent  was  received
in the concerned office through post.  The reason for resignation  mentioned
in the letter was unavoidable family circumstances and  ill  health  of  the
Respondent.  For  some  administrative  reasons,  the  resignation  of   the
Respondent  could  not  be  accepted  immediately  although   he   disobeyed
directions through various letters to resume his duties and  never  reported
for  work  although  no  leave  was  sanctioned.   Through  a  letter  dated
31.10.1997 Respondent was informed that his resignation cannot  be  accepted
for some administrative reasons.  The details of  relevant  correspondences,
preceding and succeeding the letter dated 31.10.1997,  have  been  noted  by
the High Court in paragraphs 4 and 5 of the judgment.   By  a  letter  dated
24.10.1997, Respondent was informed that tendering of  resignation  was  not
sufficient to absolve him of his official duties unless it was  accepted  by
the Competent Authority.   He  was  asked  to  submit  some  other  official
documents such as Instructions Set, Identity Card,  Tour  Diary,  Kit  items
and  some  relevant  official  papers.   He  was   also   asked   to   offer
clarification regarding a sample survey  and  was  warned  that  on  failure
disciplinary  action  might  be  initiated  against  him.   In  reply,   the
Respondent through a letter dated 10.11.1997, informed that he had  returned
Instructions Set, Tour Diary, Random Table and NIC book.  He also  requested
that the cost of kit items may be adjusted from his pending dues.  He  again
made a request that his resignation which he had already  submitted  may  be
accepted.  Letters were issued to the Respondent in February and April  1998
regarding his obligation to join duties and  his  failure  to  submit  leave
application.   However,  ultimately  the  Competent  Authority,   as   noted
earlier,  by  letter  dated  16.6.1998  accepted  the  resignation  of   the
Respondent.  On 5.8.1998 the Respondent sent a letter  to  the  effect  that
the circumstances under which he  had  submitted  his  resignation  had  now
changed and hence his resignation letter may be treated as  cancelled.   The
concerned officials got the Identity Card of  the  Respondent  collected  on
25.8.1998 for fear of its misuse.
Since the Appellants did not accede to the request  of  the  Respondent,  he
preferred   Original   Application   No.798/HP/1998   before   the   Central
Administrative Tribunal, Chandigarh Bench, Circuit Bench at Shimla,  seeking
quashing of the order accepting his  resignation  and  for  a  direction  to
treat him in service and  grant  of  consequential  reliefs.   The  Tribunal
rejected the prayers made in the O.A. by  order  dated  15.5.2000  but  gave
liberty to the Respondent to apply for fresh  appointment  to  the  post  of
“Investigator”.   The  Appellants  were  directed  to   consider   such   an
application sympathetically and offer him employment in case  he  was  found
eligible.  Accordingly, Respondent made an application  dated  26.6.2000  to
consider    for    his    fresh    appointment    sympathetically.      That
representation/application was rejected on 27.11.2000 pointing out that  the
Respondent was already over-age at  the  time  of  order  by  the  Tribunal.
Thereafter, Respondent preferred Civil Writ Petition  No.41  of  2001  which
has been allowed by the order under appeal.
The High Court, in a rather lengthy judgment, has considered a large  number
of  judgments  of  this  Court  for  recapitulating  the  well   established
principles of law such as – normally,  the  tender  of  resignation  becomes
effective and the service or office tenure of the concerned employee  stands
terminated, when it is accepted  by  the  Competent  Authority.   For  this,
reference may be made to a judgment of a Constitution Bench in the  case  of
Union of India & Ors. v. Gopal Chandra Misra & Ors. (1978) 2  SCC  301;  and
that notice of voluntary retirement or resignation can be withdrawn  at  any
time before it becomes effective.
A plea was taken by the Respondent before the High Court that  the  decision
accepting his resignation was not received  by  him.   The  High  Court,  in
paragraph 27 of the judgment, took the view that such a plea would not  have
any effect upon the order of acceptance of resignation.   This  view  is  in
accordance with judgment of this Court in the case of Raj Kumar v. Union  of
India AIR 1969 SC 180.  In that case, the concerned employee  had  withdrawn
his resignation before the order accepting his resignation had reached  him.
 This Court, in paragraph 5 of the Report, made  a  distinction  between  an
order of dismissal on one hand and termination of employment  on  the  other
which is invited by a public servant through an offer  of  resignation.   In
the latter eventuality, the employee’s “services normally  stand  terminated
from the date on  which  the  letter  of  resignation  is  accepted  by  the
appropriate authority and in the absence of any law or  rule  governing  the
conditions of his service to the contrary,  it  will  not  be  open  to  the
public servant to withdraw his resignation  after  it  is  accepted  by  the
appropriate authority….”.
We have heard learned counsel for the Appellants  and  learned  counsel  for
the Respondent and we find, on a perusal of the  order  under  appeal,  that
the only ground, on which the High Court has allowed the writ  petition  and
granted  relief  to  the  Respondent,  is  its  opinion  that  in  view   of
requirement of clause (4) of O.M. dated 11.2.1988 it was incumbent upon  the
Appellants to bring some materials on record to  show  that  the  Respondent
was relieved from the duties of  his  office  following  the  acceptance  of
resignation on 16.6.1998.  For the reasons  indicated  hereinbelow,  we  are
unable to agree with the aforesaid view of the High Court.
A perusal of the relevant clauses of  the  O.M.  dated  11.2.1988  discloses
that resignation is required to  be  intimated  in  writing  disclosing  the
intention to resign the office/post either  immediately  or  from  a  future
date.  In the latter case,  such  future  date  should  be  specified.   The
resignation has to be clear  and  unconditional.   The  Respondent  did  not
specify any future date but submitted  his  resignation  in  writing  giving
reasons and his intention to resign is clear and unconditional.  Clause  (2)
contains circumstances under which resignation should be accepted.  This  is
for the guidance of the concerned officials and does not  create  any  right
in the concerned employee to resist acceptance of resignation.   Clause  (3)
specifies that a resignation becomes effective when it is accepted  and  the
Government servant is relieved of his duties.  A  careful  reading  of  this
clause  throws  some  light  as  to  why  the  requirement  of  relieving  a
Government servant has  been  indicated  in  this  Office  Memorandum.   The
second sentence of this clause states the  normal  rule  that  a  Government
servant can withdraw his letter of resignation before its acceptance by  the
appointing authority.  The next following sentence spells out that  in  case
the resignation had been  accepted  by  the  appointing  authority  and  the
employee is to be relieved from a future date, if a request  for  withdrawal
of resignation is received from the employee, the normal rule should  be  to
allow the request to withdraw the resignation.  But, even in  such  a  case,
the request for withdrawal may be refused but the grounds for the  rejection
should be recorded and intimated to the Government  servant  concerned.   In
continuity, clause (4) considers the case of a temporary Government  servant
who has a right to opt out of Government  service  by  giving  a  notice  of
termination of service as per applicable service rules of 1965.  In  such  a
case  the  Office  Memorandum  in  question  relating   to   acceptance   of
resignation will not be applicable.  The subsequent provision of clause  (4)
has been held applicable to the Respondent  because  instead  of  notice  of
termination he had tendered a letter of resignation.  In such a case as  per
clause  (4),  “….he  can  relinquish  the  charge  of  a  post  only   after
resignation is duly accepted by the appointing authority and he is  relieved
of his duties and not after the expiry of the notice  period  laid  down  in
the Temporary Service Rules”.
In our considered view, the part of  clause  (4)  extracted  above  makes  a
distinction between the right of a temporary  Government  servant  to  sever
his connection from Government service by giving  a  notice  of  termination
and that of a temporary Government servant who  chooses  not  to  give  such
notice but opts to submit a letter of resignation.  In the  case  of  notice
of termination the concerned employee can relinquish the charge of the  post
on expiry of the period of notice, but, such right will not be available  to
a temporary employee in case he tenders a simple  resignation.   The  reason
is obvious because a  resignation  requires  acceptance  by  the  appointing
authority and  till  then  his  right  to  relinquish  is  impinged  by  the
requirement, to be relieved of his duties.  On a joint  reading  of  clauses
(3) and (4) it can be safely inferred that  depending  upon  the  facts  and
circumstances of a case and nature of request made in a resignation  letter,
the Government has the power to accept the resignation so as to bring  about
a severance of relationship of master and  servant  with  immediate  effect.
But in cases where the letter of resignation itself specifies a future  date
for being relieved or where,  as  indicated  in  clause  (2)  the  concerned
Government servant is engaged on work of importance  etc.,  the  resignation
may not be accepted straightaway.  It is in  such  circumstances  only  that
Government may exercise its power to accept the offer  but  defer  the  date
from which resignation would become effective.  The  normal  rule,  however,
remains  that  Government  has  the  power  to  accept  a  resignation  with
immediate effect.  In case the Government for some reasons wishes  to  defer
or specify the date from which resignation would  become  effective,  it  is
entitled to take work from the  concerned  Government  servant  till  he  is
relieved in accordance with the facts and requirements  of  the  case.   The
letter of  Government  accepting  an  offer  of  resignation  itself  should
normally be conclusive for deciding whether the  Government  has  opted  for
immediate termination  of  service  by  accepting  the  resignation  or  has
deferred such termination to a future date. Only in the  latter  eventuality
the relationship of master and servant shall  continue  till  the  concerned
Government servant is relieved of his duties.   In  the  instant  case,  the
letter of acceptance clearly shows that termination of Respondent’s  service
as per his offer of resignation was not deferred  to  any  future  date  and
hence there was no requirement to relieve  him  of  his  duties.   Even  the
peculiar facts of this case show that the Respondent while on probation  had
already abandoned his temporary service for almost  8  months  and  had  not
cared to report for duty inspite of several requests.  In such a  situation,
it would be impossible to relieve an absconding employee of his  duties  and
if the reasoning of the High Court is accepted such  employee,  even  if  he
has tendered resignation, must be continued in service till he  is  actually
found or till he presents himself to be relieved  of  his  duties.   Such  a
view would be impractical and run against larger public interest.
There may be cases where an employee resigning  from  service  has  gone  in
hiding or is  in  jail  custody  etc.   The  construction  placed  upon  the
relevant clauses of the O.M. dated 11.2.1988 by the High Court  will  render
the provisions unworkable, hence such construction needs to be avoided.
The word, “relieving” itself must be understood  in  the  ordinary  parlance
because it is not defined in the  O.M.  or  in  the  relevant  rules  as  is
apparent from the judgment of the High  Court.   The  meaning  of  the  word
“relieve” given in the Law Lexicon (2nd Edn. 1997 by P. Ramanatha Aiyar)  is
– “to free or clear a person from an  obligation”.   This  result  manifests
itself from the order accepting the resignation because no  reservation  has
been made by the Government that the Respondent has to continue  in  service
till any particular time or till being  relieved.   Hence,  in  the  instant
case, there was no obligation on the Government to  write  a  formal  letter
that the Respondent has been relieved.  Even if such  requirement  had  been
there, in the case in hand it would be an  empty  formality.  The  wholesome
writ jurisdiction was not required to be  exercised  in  the  facts  of  the
present case keeping in view the conduct of the Respondent in escaping  away
from his duties without  obtaining  leave  when  he  was  only  a  temporary
employee under probation.
For the aforesaid reasons, we find no option but to set aside the order  and
judgment of the High Court under appeal.  We order accordingly.  The  appeal
is allowed and as a result, the writ petition of the Respondent shall  stand
dismissed.  In the facts of the case we pass no order as to costs.


…………………………….J.
[VIKRAMAJIT SEN]



……………………………..J.
[SHIVA KIRTI SINGH]

New Delhi.
July 21, 2014.

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