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Jharkhand High Court · body

2009 DIGILAW 1116 (JHR)

Union of India v. Central Administrative Tribunal

2009-08-12

JAYA ROY, SUSHIL HARKAULI

body2009
JUDGMENT By Court.-We have heard the learned counsel for the petitioner. 2. The private-respondent was a workman in the Railways working as 'Khalasi'. He was appointed in 1970 and worked for almost 11 years. In January 1981, he went missing. after duty. His wife made applications to the Railways Officials requesting them to look into the matter. 3. The Railways had issued charge-sheets to which, the wife of the private respondent. who at that time was missing, had stated that because of the peculiar circumstances, he would be unable to participate or reply to the charge-sheet. 4. In 1987, the private respondent came back and claimed on the strength of a medical certificate that he had become mentally unstable because of which he was under treatment of one Dr. U.N. Choudhary. Ranchi. 5. The private respondent was not allowed to join duty and by an Order dated 24.2.1989, his service was terminated retrospectively w.e.f. 23.1.1986. 6. The Central Administrative Tribunal has allowed the claim petition of the private respondent on various grounds including the ground of retrospective termination. 7. It is absolutely settled law that the termination of service with retrospective effect is not permissible. Moreover, the Central Administrative Tribunal has, while directing reinstatement, placed toe rider that no salary would be payable for the period, during which, the private respondent has not worked, although, the period will be taken Into account for notional pay fixation and for retiral benefits. 8. Further, the Central Administrative Tribunal has permitted the Railways to take disciplinary action in accordance with law against the private respondent. 9. The State (which includes the Railways) is expected to act as an ideal employer and not as a purely commercial enterprise. 10. The learned counsel for the petitioner has invited our attention to the denial in the written statement of receipt of certain representations but these representations are all subsequent to 1987 when the private respondent had returned after his treatment. There is no denial of the representations of the wife alleged to have been made after the private respondent went missing, and made in response to the charge-sheets. 11. The ground for absence, which has been set up by private respondent and which is supported by the Medical Certificate, in the overall the facts and circumstances of the case, does not appear to be incorrect. 11. The ground for absence, which has been set up by private respondent and which is supported by the Medical Certificate, in the overall the facts and circumstances of the case, does not appear to be incorrect. However, this is only a prima facie finding for deciding the case and will not influence any enquiry, if set up by the respondent in pursuance to the order of the Central Administrative Tribunal. 12. The respondents have themselves treated the period from 1981 to 1986 as leave due or admissible together with extraordinary leave. 13. Considering the facts and circumstances stated above, the impugned Order of the Central Administrative Tribunal does not call for interference in the extraordinary, discretionary and equitable jurisdiction of the Court under Article 226 of the Constitution of India. 14. Accordingly, this writ petition is dismissed. 15. However, the amount paid under the interim order of this Court may be adjusted against the salary or treatment expenses, whatever is permissible.