Published on: 15 October 2022 at 20:34 IST
The Bombay High Court ruled that “Discretion should not be exercised at the authority’s whim or in an arbitrary way. The writ court has the authority to issue necessary directives if, given the facts and circumstances, the Court finds that there has been a failure of justice.”
In granting relief to Rutuja Latke, an employee of the Mumbai Municipal Corporation and potential candidate in the upcoming by-elections for the legislative assembly, the Bombay High Court made this observation.
According to media sources, Latke submitted her nomination papers on Friday as a Shiv Sena (Uddhav Balasaheb Thackeray) candidate after the BMC accepted her resignation in accordance with the high court’s rulings.
The division bench of Justice Nitin Jamdar and Justice Sharmila Deshmukh made the observation against a writ petition filed by Latke seeking instructions to BMC to accept her resignation so that she can run in the by-election for the legislative assembly seat in Andheri East.
“Merely because the discretion is conferred on the authority, it does not mean that the judicial review is not permissible,” said the court.
The BMC employee in question wants to leave so that she might run for office, the court noted. The court noted that although this is solely a question of employer-employee relations, the BMC has unnecessarily complicated it.
Latke, wife of late MLA Ramesh Latke, was employed for the clerical work by the BMC. The ECI declared for by-election for the legislative assembly on October 3. The submission of nominations was October 14.
The Latke submitted her resignation letter on October 3 and also request for one month notice relinquish in view of election schedule. She also deposited one month pay in lieu of notice proof which was accepted by BMC. But no acceptance letter was issued by BMC. Therefore, Latke approaches the court.
BMC’s senior counsel, Anil Sakhare, argued that the decision to waive the notice time required by Regulation 28 of the Mumbai Municipal Corporation (Service) Regulations, 1989, is up to BMC. He maintained that the BMC cannot be given a writ ordering it to make a certain decision.
The petitioner is not the subject of any departmental inquiries, according to senior attorney Vishwajeet Sawant for Latke, and one month’s pay has already been deposited. In order to purposefully prevent Latke from running for office, BMC is not accepting the resignation.
Latke cannot run for office while working for the BMC, according to Article 191 of the Constitution and Regulation 6 of the 1989 Regulations, the court noted. Therefore, her job status needs to be established before the election.
The court ruled that although the Municipal Commissioner has the option to waive the notification requirement, only administrative needs can be taken into account when exercising this option. It would be arbitrary and outside of the scope of the law to refuse to use discretion when the conditions for doing so are there.
The petitioner is not irreplaceable, the court observed, as the BMC employs a sizable workforce in the clerical cadre. Since she had fewer than 15 days to submit nominations after the election timetable was established, the petitioner was left with little choice but to ask the commissioner to use discretion and waive the notice period.
The court agreed with the petitioner’s assertion that the complaint against Latke Sakhare was referring to was merely filed to thwart the petition. It merely mentions that the petitioner should be looked into and doesn’t provide any other information.
The bench, “Therefore, we find merit in the submission made by the Petitioner that the action/inaction of the Respondent. No.1 is based on extraneous considerations and not the ones germane for the exercise of discretion,”
The court did not agree with Sakare’s submission that the resignation letter is faulty. Even if it were faulty, the BMC as an employer should have immediately informed the petitioner to enable her to submit a proper application, said the court.
“We also do not find any merit in the Respondent’s contentions that if any direction is issued in this petition to the Municipal Commissioner, it will apply to all the employees. The discretion conferred on the Municipal Commissioner is to be exercised in the facts of each case and our discussion is in the facts of this case. Therefore, no legal position uniformly applicable to all employees is laid down in this order,” it added
According to the court, BMC’s actions were totally unnecessary and not tolerable for the Latke. Thus, it was determined that BMC had refused to waive the notice time without a valid justification.
“According to us, in these facts and circumstances, it will be a failure of justice if we do not intervene and issue the directions as sought by the Petitioner”, the court said.
With this Court ordered the Municipal Commissioner or the concerned competent authority to issue a letter of acceptance of Latke’s resignation by 11:00 a.m. on 14th October 2022.