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/