JUDGMENT
Vijender Jain, J.
1. Order of the Tribunal is impugned by the petitioner on the ground that the petitioner retired on 31st January, 2001 and after the retirement the Director, Education passed an order on 20th September, 2002 declaring the period of unauthorised absence w.e.W.f. 1.2.1984 to 14.9.1989 and 1.9.1995 to 7.4.1999 in respect of the petitioner as ‘DIES-NON’ for all purposes including break in service. The petitioner had already filed an OA before the said order was passed, therefore, this averment relating to ‘Does-Non’ could not have been made in the OA. The petitioner filed an MA No.2560/2002 in the pending OA No.2099/2002 with the following prayer:-
I, therefore, most respectfully pray that necessary orders may kindly be passed to cancel the impugned order i.e. order treating unauthorised absence as Dies-Non and break in service and, inter alia, prayed to the CAT to direct the concerned officers of the Education Department to pay his salary at the earliest for the said period.
2. Thereafter the CAT passed following order in M.A No. 2560/2002 on 16th January, 2003:-
By virtue of the present application, the applicant seeks cancellation of the impugned order. This can only be taken up when the matter is argued on its merits. Thereafter, no fresh order is required to be passed.
3. Thereafter a final order was passed by CAT on 5th August, 2003. The point which had been raised in the said MA, has not been specifically dealt with by the CAT. As a matter of fact in para 5 the CAT has relied upon the said impugned order without particularly adverting to the issue raised in the MA. The reliance placed by CAT on the said order of the Director of Education declaring the unauthorised absence as Dies-Non to be treated as break in service was in our view an error apparent on the face of the record. Therefore, the review petition which was filed by the petitioner ought to have been entertained which has not been done in the case. Without expressing any opinion on merits of the controversy, we set aside the impugned order and remand the case back to the Tribunal to decide afresh in accordance of law, after giving opportunities to both the parties.
4. Writ petition stands disposed of.
5. Parties to appear before the Tribunal on 13.4.2005.