Patna High Court
Union Of India vs Rameshwar Prasad on 11 February, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.536 of 2022
In
Civil Writ Jurisdiction Case No.7724 of 2007
======================================================
1. Union of India through the Secretary and Ministry of Home Affairs, New
Delhi.
2. The Director General, Border Security Force, Government of India, Ministry
of Home Affairs, New Delhi.
3. The Additional Deputy Inspector General, (Establishment), Border Security
Force, Block No. 10, 5th Floor, CGO Complex, Lodhi Road, New Delhi-
110003
4. The Commandant, 193, Battalion, Border Security Force, 56 A.P.O.
... ... Appellant/s
Versus
Rameshwar Prasad, Son of Sri Ram Janam Prasad, Resident of Village
Dhamar, P.O. Dhamar, P.S. Arrah Mufassil, District Bhojpur, presently posted
as Cook, 193 Battalion, Border Security Force, Kalyani (Kolkata), District
Nadia (West Bengal)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Satyabir Bharti, Advocate
For the Respondent/s : Mr. Pandit Jee Pandey, Advocate
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 11-02-2025
We have heard Mr. Satyabir Bharti, the
learned Advocate for the appellants/Union of India and
Mr. Pandit Jee Pandey, the learned Advocate for the
respondent.
Patna High Court L.P.A No.536 of 2022 dt.11-02-2025
Re. I.A. No. 02 of 2024 :-
2. We have perused I.A. No. 02 of 2024
seeking condonation of delay of 269 days in preferring
the appeal.
3. For the reasons stated in the application,
we are convinced that good grounds exist for the delayed
filing of the appeal. As such, we condone the same.
4. I.A. No. 02 of 2024 stands allowed.
Re. L.P.A. No. 536 of 2022 :-
5. By the impugned judgment, the order passed
by the appellate authority setting aside the dismissal of
the respondent but invoking the provision contained in
Section 54(5) of the Fundamental Rules, and thus
directing that the intervening period between the
dismissal order and the reinstatement of the respondent
would be treated as period not adjusting it as an
extraordinary leave, was set aside by the learned Single
Judge.
6. The respondent, who was a cook in Border
Patna High Court L.P.A No.536 of 2022 dt.11-02-2025
Security Force, was dismissed from service after a
disciplinary proceeding was initiated against him for
remaining on unauthorized leave for a long time.
7. The afore-noted dismissal order was
challenged by the respondent vide C.W.J.C. No. 2365 of
2000. The writ petition was dismissed, whereafter the
respondent preferred L.P.A. No. 334 of 2002. The appeal
of the respondent was allowed. The order of the learned
Single Judge was set aside and the case of the respondent
was remitted to the appellate authority to test the
correctness of the order of dismissal. The appellate
authority passed the order on 13.01.2005 by which the
order of dismissal was set aside but it was directed that
the reinstatement of the respondent would be subject to
his medical fitness. It was further clarified that the period
from the date of dismissal to the date of rejoining service
was required to be regularized as a leave of kind due in
terms of the Fundamental Rules 54(5).
8. This was challenged by the respondent before
Patna High Court L.P.A No.536 of 2022 dt.11-02-2025
the learned Single Judge, who, on a reading of the
Fundamental Rules 54, in its entirety, found that such
adjustment could have been made by the disciplinary
authority and not the appellate authority. Even otherwise,
for invoking the provisions contained in Fundamental
Rules 54(5), the respondent/appellant was required to be
given notice.
9. We are in absolute agreement with the
opinion of the learned Single Judge.
10. The contention raised on behalf of the Union
of India that because the respondent was not fully
exonerated, therefore, the provisions of Fundamental
Rule 54(2) would not be attracted, is without substance.
The order of dismissal was set aside and the respondent
was directed to be reinstated. In that case, it had to be
treated as an order fully exonerating the respondent. In
that case, again, it was the disciplinary authority, in
whose domain the power lay with respect to adjustment
of the period immediately before the order of termination.
Patna High Court L.P.A No.536 of 2022 dt.11-02-2025
11. Thus, we find that no good ground has been
made out by the appellants/Union of India to make any
interference with the judgment passed by the learned
Single Judge, referred to above.
12. The appeal is dismissed.
13. Interlocutory application/s, if any, also
stands disposed off accordingly.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
Sauravkrsinha/
Praveen-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.02.2025
Transmission Date NA
