Union of India Vs Rameshwar Prasad

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)

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... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Satyabir Bharti, Advocate For the Respondent/s : Mr. Pandit Jee Pandey, Advocate ======================================================

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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE ACTING CHIEF JUSTICE)

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Date : 11-02-2025

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We have heard Mr. Satyabir Bharti, the

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learned Advocate for the appellants/Union of India and Mr. Pandit Jee Pandey, the learned Advocate for the respondent.

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Patna High Court L.P.A No.536 of 2022 dt.11-02-2025 2/5

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Re. I.A. No. 02 of 2024 :-

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We have perused I.A. No. 02 of 2024

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seeking condonation of delay of 269 days in preferring the appeal.

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For the reasons stated in the application,

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we are convinced that good grounds exist for the delayed

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filing of the appeal. As such, we condone the same.

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I.A. No. 02 of 2024 stands allowed.

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Re. L.P.A. No. 536 of 2022 :-

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By the impugned judgment, the order passed

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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

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would be treated as period not adjusting it as an extraordinary leave, was set aside by the learned Single Judge.

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The respondent, who was a cook in Border

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Patna High Court L.P.A No.536 of 2022 dt.11-02-2025 3/5

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Security Force, was dismissed from service after a disciplinary proceeding was initiated against him for remaining on unauthorized leave for a long time.

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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).

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This was challenged by the respondent before

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Patna High Court L.P.A No.536 of 2022 dt.11-02-2025 4/5

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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.

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We are in absolute agreement with the opinion of the learned Single Judge.

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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.

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Patna High Court L.P.A No.536 of 2022 dt.11-02-2025 5/5

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