30063742.13-Judgment 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3742 OF 2013
PETITIONER :- Shri Sayed Sohail Ahmed, Aged 49 years, Ex-
ESM, Khapri (Compulsorily Retd.), R/o
Opposite Choti Masjid, Sadar, Nagpur.
...VERSUS...
RESPONDENTS :- 1. Union of India, Through General Manager,
Central Railway, Mumbai-CST.
2. The Divisional Railway Manager, Central
Railway, Nagpur.
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None for the petitioner.
None for the respondents.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 30.06.2017 O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.) By this petition, the petitioner challenges the order of the Central Administrative Tribunal, Nagpur dated 05/12/2012 dismissing the original application filed by the petitioner against the order dated 31/01/2008 treating the intervening period between the date of his termination and the date of his reinstatement as dies non.
2. The petitioner, who was working with the Railways was proceeded against in a departmental enquiry for remaining ::: Uploaded on - 04/07/2017 ::: Downloaded on - 06/07/2017 00:23:38 ::: 30063742.13-Judgment 2/5 unauthorisedly absent for about two years and after the culmination of the departmental enquiry, he was removed from service on 11/09/2001. The petitioner filed an appeal and a revision against the order of his removal before the appellate and the revisional authorities but the same were dismissed. Being aggrieved by the orders of the disciplinary, appellate and revisional authorities, the petitioner filed an original application before the Central Administrative Tribunal bearing Original Application No.2195 of 2002. By the order dated 16/03/2006, the Central Administrative Tribunal partly allowed the original application filed by the petitioner. It was held by the tribunal that the enquiry was vitiated as the respondent had appointed the enquiry officer on the day on which the charge-sheet was served on the petitioner. According to the tribunal, there was a non-compliance of the provisions of rule 9 of the Rules of 1968 and hence it was necessary for the respondents to conduct an enquiry, if they so desired from the stage of issuance of the charge-sheet. After holding so, the tribunal set aside the orders of the disciplinary, appellate and revisional authorities. The tribunal directed that the respondents should take a decision in respect of reinstatement of the petitioner and also about the payment of pay and allowances from the date of his termination till the date of his reinstatement. After the tribunal partly allowed Original Application No.2195 of 2002, the respondents reinstated the petitioner in service and after conducting an enquiry, imposed the punishment of ::: Uploaded on - 04/07/2017 ::: Downloaded on - 06/07/2017 00:23:38 ::: 30063742.13-Judgment 3/5 compulsorily retiring the petitioner from service. In the order of compulsory retirement of the petitioner, it was observed that the period during which the petitioner was not on duty i.e. from the date of his termination till the date of his reinstatement would be considered as dies-non. The petitioner never challenged the order of compulsory retirement. The petitioner filed Original Application No.2022 of 2009 challenging the part of the order of the disciplinary authority that directed that the period during which the petitioner was not on duty should be treated as dies non. The tribunal, on an appreciation of the material on record, by the impugned order dated 05/12/2012 dismissed the original application filed by the petitioner. The petitioner has challenged the said order in the instant petition.
3. On a reading of the petition and the grounds raised therein as also the impugned order, it appears that there is no scope for interference with the impugned order, in exercise of the writ jurisdiction. While partly allowing Original Application No.2195 of 2002, filed by the petitioner, the tribunal had permitted the respondent to conduct the disciplinary enquiry against the petitioner from the stage of issuance of the charge-sheet. Though the respondents reinstated the petitioner in service after the tribunal partly allowed his original application, the respondents conducted an enquiry against the petitioner and imposed the punishment of compulsory retirement and ::: Uploaded on - 04/07/2017 ::: Downloaded on - 06/07/2017 00:23:38 ::: 30063742.13-Judgment 4/5 also directed that the period during which the petitioner was not on duty should be treated as dies non. The petitioner never challenged the order of the disciplinary authority before the appellate or the revisional authorities. The order of compulsory retirement of the petitioner from service was not challenged. The petitioner only challenged the part of the order that directed that the period during which the petitioner was not on duty should be treated as dies non. While deciding this original application, the tribunal rightly held that the petitioner was not justified in relying on FR 54-A, on which great reliance was placed by the petitioner, for seeking the monetary benefits for the period during which he was out of service. The tribunal rightly held that as per FR 54-A, only when an order of dismissal or compulsory retirement of a government servant is set aside by a court of law and the government servant is reinstated without holding a departmental enquiry, the period of his absence from duty should be regularized and he would be entitled for the pay and allowances. The tribunal rightly held that FR 54-A could not have applied to the case of the petitioner as an enquiry was conducted against the petitioner after the tribunal had set aside the order of his removal by partly allowing Original Application No.2195 of 2002. The tribunal had while partly allowing Original Application No.2195 of 2002, permitted the respondents to conduct a departmental enquiry from the stage of issuance of the charge-sheet. The respondents conducted the departmental enquiry against the petitioner in pursuance ::: Uploaded on - 04/07/2017 ::: Downloaded on - 06/07/2017 00:23:38 ::: 30063742.13-Judgment 5/5 of the liberty so granted and after the conclusion of the departmental enquiry, imposed the punishment of compulsorily retiring the petitioner from service and treating the period during which he was out of service as dies non. In the circumstances of the case, FR 54-A could not have been applied to the case of the petitioner. The charge of remaining unauthorisedly absent for nearly two years was duly proved against the petitioner and hence, the petitioner was compulsorily retired from service and considering the gravity of the cahrge proved against him the period during which he was out of service was considered as dies non. The tribunal rightly appreciated the material placed by the parties before it, while dismissing the original application filed by the petitioner. We do not find any fault with the impugned order, so as to interfere with the same, in exercise of the writ jurisdiction.
Hence, we dismiss the writ petition with no order as to costs. Rule stands discharged.
JUDGE JUDGE
KHUNTE
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