High Court Jharkhand High Court

Mundirika Prasad Singh vs Union Of India Thr & Ors on 22 October, 2008

Jharkhand High Court
Mundirika Prasad Singh vs Union Of India Thr & Ors on 22 October, 2008
             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     L.P.A. 30 OF 2008

            Mundrika Prasad Singh                ....    Appellant
                          Versus
            Union of India and ors.              .....    Respondents

            CORAM :           HON'BLE THE CHIEF JUSTICE
                             HON'BLE MR.JUSTICE D.K.SINHA


            For the Petitioner  : Mr.P.Gangopadhyay
            For the Respondent
            (Railways)         : Mr.Ram Nivas Roy

                                 ......

6/ 22.10.2008

. This appeal has been filed by the appellant-Mundrika Prasad Singh

against the order dated 31.10.2007 passed by the learned Single Judge in

W.P.(S) No. 1885 of 2007 by which the writ petition filed by the petitioner,

challenging his dismissal from service in the year 1983, was not

entertained and consequently the writ petition was dismissed.

2. The admitted case of the parties is that the petitioner-appellant

was discharging his duties as Havildar in the Railway Protection Force and

was posted under South Eastern Railway Administration in Chakradharpur

Division. During the employment, the petitioner-appellant remained

absent from duty for a period of ten months for which a proceeding was

initiated against him for his unauthorized absence. According to the

respondents, notice in regard to the enquiry was duly served on him.

However, the appellant-delinquent did not respond to the show cause and

hence by virtue of an ex parte enquiry, the charge of unauthorized

absence from duty was held to have been established. Consequently an

order of his removal from service was passed in the year 1983.

3. The petitioner-appellant challenged the order of his dismissal for

the first time in the year 2007 by filing a writ petition, wherein it was

contended that the petitioner was suffering from mental depression and

was undergoing treatment in Mental Hospital at Kanke-Ranchi. It was also

stated that he had preferred an appeal against the order of his dismissal
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before the competent authority which was not decided and when no

order was passed on his appeal, he finally filed the writ petition before the

Single Bench after he recovered from his mental illness.

4. However, the writ petition was dismissed by the learned Single

Judge by order dated 31.10.2007 and hence this appeal.

5. We have heard the counsel for the parties and on hearing them it

could be gathered that the petitioner-appellant had served for 18 years

before the order of his dismissal was passed way back in the year 1983.

We have also noticed that the petitioner-appellant became a mental

patient after his dismissal from service and perhaps he might have lost his

mental balance even before that as he had remained away from service

for ten months without any information to the authorities, which gave rise

to a departmental proceeding for his removal from service. In sofar as his

unauthorized absence from duty is concerned, it could not be established

that adjustment of earned leave was considered in any manner except the

fact that appellant was affected with some disease and was undergoing

treatment and therefore the earned leave that might have accrued in

favour of the appellant could have been adjusted towards his leave period

and a lighter punishment could have been awarded. But, we have also

noticed that the appellant by now has already crossed the age of

superannuation, nevertheless he had rendered eighteen years of service

prior to removal of service after which he had suffered mental illness.

6. Taking an over all view of the entire facts and circumstances, we

are of the view that the appellant’s removal from service is fit to be

converted into an order of his compulsory retirement on the ground of his

mental illness and in that view of the matter, he would be entitled to

pensionary benefits which would be calculated and paid in proportion to

the services rendered by him for the period of 18 years. We, therefore,

direct the respondent- competent authority to calculate the pensionary
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benefits payable to the petitioner-appellant, in accordance with the Rules,

and pay him the same from 1st of January, 2009.

7. We make it clear that the claim of arrear of pension will not be

allowed to be raised by the appellant as the conversion of the order of

removal from service into one of compulsory retirement becomes effective

only after we have passed this order of conversion not as a legal right but

on the ground of equity and therefore he cannot be held entitled for

arrears of pension when the order of his dismissal was still in effect.

8. The appeal, accordingly, is disposed of.

( Gyan Sudha Misra,C.J.)

( D.K.Sinha, J. )

G.Jha/