Petitioner sought counting of period of absence as duty under Fundamental Rule 54 after conditional reinstatement. Court held reinstatement was not full exoneration and dismissed the petition.
Petitioner's petition dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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C.W.P No. 1891 of 2004
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P No. 1891 of 2004
Date of decision : November 03, 2008
Som Nath
...... Petitioner
through Mr.APS Rana, Advocate
v. Post Graduate Institute of Medical Science and Research, Chandigarh & Anr
...... Respondents
through Mr.Harsh Aggarwal, Advocate
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
AJAY TEWARI, J
The petitioner was found guilty in a departmental inquiry of having obtained a sum of Rs.108/- in cash from a patient on the pretext of arranging for a senior doctor to examine him. He was awarded punishment of removal from service which would not, however, operate as disqualification for further employment. Ultimately, on a representation made by the petitioner, the Minister of Health and Family Welfare, New Delhi passed the following order :-
“On reviewing the orders of the Disciplinary Authority, it
is observed that the penalty imposed on Sh. Somnath was excessive and he should be reinstated in service with immediate effect provided he has not already attained the
C.W.P No. 1891 of 2004 ::2::
age of superannuation i.e 60 years. The period between his removal from service and reinstatement will be treated as dies-non.”
Consequently, by subsequent order dated 16.3.1992, the petitioner was reinstated in service. Thereafter, the petitioner represented that his past service should not be washed away. He ultimately filed CWP No.13413 of 2002 which was disposed of with the following order :-
“ Counsel for the petitioner wishes to withdraw the writ petition with a liberty to pursue his departmental remedy and request the department to deal with the matter expeditiously.
Dismissed as withdrawn. Liberty as prayed for granted.”
The petitioner thereafter represented and the impugned order dated 2.12.2002 was passed declining his prayer for counting the period he remained out of job as a period spent on duty.
Learned counsel for the petitioner has urged that under sub rules (2) and (3) of Fundamental Rule 54, the petitioner was entitled to have his period of absence from duty as a period spent on duty for all purposes. Relevant portion of Fundamental Rule 54 reads as follows :-
“ 54. xx xx xx (2) Where the authority competent to order
reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6) be
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C.W.P No. 1891 of 2004
paid the full pay allowances to which he would have been entitled, had he not been dismissed, removed or compulsory retirement, as the case may be.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.”
In my opinion, the key concept in sub-rule (2) of Fundamental Rule 54 is the opinion of the competent authority that the government servant has been fully exonerated. In the present case, as narrated above, the impugned order did not exonerate the petitioner but only found that the penalty of termination of service was excessive. It is note worthy that the petitioner never challenged this order of conditional reinstatement. Only after having taken the benefit of that order and thereafter having superannuated, the petitioner for the first time approached this Court in 2002, as noticed above. Even that petition was not pressed and was dismissed as withdrawn.
Learned counsel for the petitioner has not been able to show how the petitioner is entitled to the benefit of counting his past service, in view of the order dated 9.3.1992.
On a conspectus of all the facts noticed above, I hold that there is no merit in the petition and consequently dismiss the same with no order as to costs.
( AJAY TEWARI ) November 03 , 2008. JUDGE `kk'
C.W.P No. 1891 of 2004 ::4::
2 issues framed by the court
Whether a government servant reinstated with the condition that the period of removal was treated as dies-non is entitled to count such period as time spent on duty under Fundamental Rule 54.
Whether the conditional reinstatement order amounts to full exoneration required to invoke the benefit of Fundamental Rule 54.
1 provisions across 1 enactments
Som Nath
Post Graduate Institute of Medical Science and Research, Chandigarh & Anr
Ajay Tewari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
