JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. T.C. Khetri, learned senior Counsel appearing for the two Petitioners. Also heard Mr. H. Rahman, learned Asstt. Solicitor General of India in W.P.(C) No. 371/02 and Ms. R. Bora, learned Central Government Counsel in W.P.(C) No. 1392/05, who represents the Respondents. 2. The Petitioner P. Chandra Mouli in W.P.(C) No. 371/02 was a Superintendent and the petitions Kishan Chand Sharma in W.P.(C) No. 1392/05 was a Fire Supervisor under the Border Roads Organisation, being described hereinafter as 'GREF'. The two Petitioners have since been compulsorily retired from service by separate orders dated 19.9.94 and 23.12.94 and are before this Court to challenge the orders of the disciplinary authority, to treat the period of suspension till the effective date of compulsory retirement, as 'dies-non' for all purposes including pension. 3. It may be noted that the 'dies-non' order against the Petitioner P. Chandra Mouli has been passed by referring to the provisions of F.R. 54(5) and the order against the writ Petitioner Kishan Chand Sarma has been passed under the provisions of Rule 23 of the CCS (Pension) Rules 1922. However, in the counter affidavit filed in W.P.(C) No. 1392/05, the reference to exercise of powers under F.R. 54 has also been made, in addition to powers under Rule 23 of the CCS (Pension) Rules 1922, for justifying 'dies-non' order against Kishan Chand Sharma. 4. As facts are substantially similar in the two cases and common arguments have been advanced by the learned senior Counsel, both the writ petitions are being disposed of by this common order. The facts noted herein for the purpose of reference are taken from the W.P.(C) No. 371/02 filed by the Petitioner P. Chandra Mouli. 5. The writ Petitioners on 15.12.79 were members of an agitating group when the Chief Engineer VARTAK was gheraoed by the demonstrators. The Petitioner P. Chandra Mouli as the President of All India Border Roads Employees Association was leading the demonstration and the Petitioner Kishan Chand Sarma being an important leader, was also actively involved with the said demonstration. To control the demonstration, several rallyists were taken into custody. 6. After the arrest of the Petitioners on 15.12.79, orders were passed consequently by their employer, declaring that the Petitioners would be treated to be under deemed suspension by referring to the provisions of Rule 10(1) of the CCS (CCA) Rules. To control the demonstration, several rallyists were taken into custody. 6. After the arrest of the Petitioners on 15.12.79, orders were passed consequently by their employer, declaring that the Petitioners would be treated to be under deemed suspension by referring to the provisions of Rule 10(1) of the CCS (CCA) Rules. They were released on bail on 29.8.80. In this process they remained in jail for about 8 1/2 months. 7. Subsequently various charges were drawn up against the two Petitioners and they were subjected to general Court martial proceedings. The Petitioners were found guilty and sentenced to suffer imprisonment for 30 months and 18 months respectively. The conviction and sentence order was challenged by the petition CTS in Court. Eventually the remission of the unserved sentence was granted by the employer. Thus the sentence on the two Petitioners stood modified to the period they remained in custody from 15.12.79 to 29.8.80. 8. Since the Supreme Court declined to interfere with the conviction of the Petitioners, the disciplinary authority considering the record of the Petitioners, took a decision to compulsorily retire them from service. Accordingly P. Chandra Mouli has gone on compulsory retirement on 19.12.94 and Kishan Chand Sarma has gone on compulsory retirement on 23.3.95. 9. The Petitioners are aggrieved by the decision of the employer to treat the service status of the Petitioners w.e.f. 29.8.80 (date of release from jail) to their respective date of compulsory retirement w.e.f. Dec., 1994 and March, 1995 respectively, as 'dies-non' since the said decision of the employer led to denial of several service benefits to the Petitioners, including their pensionable dues. 10. Mr. T.C. Khetri, learned senior Counsel submits that the Petitioners were placed under deemed suspension under the provisions of Rule 10(2) of the CCS (CCA) Rules, because of their arrest and detention in custody and not because of any disciplinary proceeding drawn up against them. It is further submitted that no departmental enquiry was conducted against the Petitioners and the order of conviction and sentence have been passed against them on the basis of Court martial proceedings. As no disciplinary enquiry was conducted against the Petitioners, it is contended that a 'dies non' order under Rule 23 of CCS (Pension) Rules could not have been passed against the Petitioner Kishan Chand Sarma, directing treating of his service till he was compulsorily retired as 'dies-non' for all purposes. 11. As no disciplinary enquiry was conducted against the Petitioners, it is contended that a 'dies non' order under Rule 23 of CCS (Pension) Rules could not have been passed against the Petitioner Kishan Chand Sarma, directing treating of his service till he was compulsorily retired as 'dies-non' for all purposes. 11. The learned senior Counsel also contends that an order of 'dies-non' could not have been passed against the Petitioners till their effective date of compulsory retirement as it is the employer who did not allow them to resume their duties after their release. It is also submitted that such order cannot in any case could be passed, without affording an opportunity to the Petitioners. 12. In support of the said contention, the decision of the Apex Court in Gopalkrishna Naidu v. State of Madhya Pradesh reported in AIR 1968 SC 240 has been relied upon by Mr. Khetri. In Gopalkrishna (supra), the Supreme Court while examining the power of a disciplinary authority to decide on how to treat the service period of an employee facing departmental proceeding under F.R. 54(5) held that the disciplinary authority in such cases, has a duty to act judicially and under F.R. 54 justice and fair play has to be ensured for the affected party. Accordingly, the Supreme Court in Gopalkrishna (supra) held that- In our view F.R. 54 contemplates a duty to act in accordance with the basic concept of justice and fair play. The authority therefore had to afford a reasonable opportunity to the Appellant to show cause why Cls. 3 and 5 should not be applied and that having not been done the order must be held to be invalid. 13. It is not the case of the Respondents that any opportunity was afforded to the Petitioners prior to the orders passed against them to treat the period of service w.e.f. their being suspended till they actually were compulsorily retired from service as 'dies non'. But the said orders-are sought to be justified by the Respondents on the ground that the Petitioners had not rendered any service during the said period. 14. Non-rendering of service may be a good ground for denying wages to an employee but whether such non working periods can also be declared as 'dies-non' for all purposes is an issue which is required to be examined by reference to the facts in the instant case. 15. 14. Non-rendering of service may be a good ground for denying wages to an employee but whether such non working periods can also be declared as 'dies-non' for all purposes is an issue which is required to be examined by reference to the facts in the instant case. 15. It is already noticed that the two Petitioners were part of a group of demonstrators who were agitating before their employers on 15.12.79. Because of this, the Petitioners were arrested. They were also thereafter convicted and sentenced to undergo imprisonment after Court martial proceedings were initiated against them. The Petitioners remained in custody from 15.12.79 to 29.8.80 and although remission of their remaining sentence was ordered in the year 1987, they were not taken back in service. Although no documents arc available in the case records to show that the Petitioners sought reinstatement in service, it is not unlikely that reinstatement was demanded but the same was not allowed and eventually after about 14 years, the Petitioners were compulsorily retired from service. 16. Having regard to the ratio of the decision of the Supreme Court in Gopalkrishna (supra) noted above, I am inclined to accept the submissions made on behalf of the Petitioners that such an order could not have been passed without affording a prior opportunity to the Petitioners. 17. I am also of the view that such order could not be passed against Kishan Chand Sarma by referring to the powers under Rule 23 of CCS (Pension) Rules, although the Respondents by filing counter affidavit in W.P.(C) No. 1392/05, seeks support of F.R.54 also, to justify the order passed against the Petitioner Kishan Chand Sarma. 18. Accordingly, I am inclined to allow these writ petitions by quashing the orders passed by the Respondent authorities on the ground that an opportunity was not afforded to the Petitioners before passing the 'dies-non' orders against them. However, it is made clear that the Respondent authorities may pass fresh orders notwithstanding the interference made by this Court, after affording a reasonable opportunity to the Petitioners as contemplated by law. 19. The petitions stand disposed of accordingly.