Shri Sayed Sohail Ahmed vs Union Of India Through General ...
2017 Latest Caselaw 3802 Bom

 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. 

 ---------------------------------------------------------------------------------------------------
                                  None for the petitioner.
                                None for the respondents. 
 ---------------------------------------------------------------------------------------------------

                                        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

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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

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

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

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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