WP(C) 3436/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE C.R.SARMA (Amitava Roy, J) Being aggrieved by the judgment and order dated 3.8.2010 passed by the l earned Central Administrative Tribunal, Gauhati Bench, Guwahati (for short, here inafter referred to as ’the Tribunal’) in O.A. No. 144/2010, the petitioner is b efore this Court seeking redress. We have heard Mr B Hussain, learned counsel for the petitioner and Mr AK Sarkar, learned Standing Counsel, NF Railways for the respondents. The pleaded version of the petitioner, in short, is that he was appointe d as Assistant Inspector of Works (AIOW) in the month of September, 1963 with th e NF Railways and was posted at Fakirgram Junction. He rendered his services in the said capacity till 1966 when he was declared surplus. He was, thereafter, ap pointed as Assistant Permanent Way Inspector (APWI) in the last part of 1969 by the Chief Engineer, (Personnel), NF Railways. While he was serving in the said c apacity as PWI/III at Aluabari Railway Station he applied for and availed leave for 45 days with effect from 2.10.81 as he went home for family purposes. Accor ding to him, he was held back unavoidably and, thereafter, could not return to a ttend to his duties. Though he applied for extension of the leave period, accord ing to him, he received no response thereto. He, however, admittedly did not rej oin his duties. In these circumstances, being caught in the web of family proble ms he tendered his resignation on 1.7.85 with a request for release of his pensi on. Years rolled by without any response from the Railway authorities. Eventuall y on 13.9.88, a Memorandum of Charges was served on him accusing him of unauthor ised absence and proposing disciplinary action. In response thereto, the petitio ner on 3.10.88 submitted his reply before the Divisional Railway Manager (P), Ka tihar reiterating his inability to render further service due to family problems and drew the attention of the aforementioned authority to the fact that meanwhi le he had submitted his request for resignation which had remained unresponded t ill then. He also offered to go on voluntary retirement and requested the said a uthority to take necessary steps in that regard. As no action was forthcoming fr om the Railway authorities, the petitioner approached the learned Tribunal with O.A. No. 151/2008 which was disposed of on 12.11.2009 directing the respondents therein to examine as to whether for the services rendered by the petitioner he was entitled to pro rata pension in terms of the Railway Services (Pension) Rule s, 1993 (for short, hereinafter referred to as ’the Rules’). The learned Tribuna l while rendering the above decision, amongst others, took note of the fact that the petitioner had remained absent with effect from 16.11.81 and that consideri ng the tenure of his service he was not entitled to go on voluntary retirement. It was further observed on the basis of the materials available before it that t he petitioner had neither been allowed to proceed on voluntary retirement nor an y order had been produced to establish that any penalty in the departmental proc eeding initiated against him had been awarded. In compliance of the aforementioned determination made by the learned Tr ibunal, the issue was decided by the concerned authorities of the Railways and b y letter No. E/208/OA/151/08/CAT/GHY dated 4.3.2010 the office of the Divisional Railway Manager (P), Katihar intimated the petitioner that as he had been remov ed from service as a disciplinary measure, he was not entitled to receive pensio n under the Rules as in view of the penalty of removal he had forfeited his past service and, consequently, his claim for pensionary benefits. It was inter alia mentioned in the said letter that meanwhile he had been released his Provident Fund amount as admissible to him in law vide Cheque No. 138116 dated 26.3.2009. Situated thus, the petitioner laid a fresh challenge before the learned Tribunal which was registered as O.A. No. 144/2010. The pleaded stand of the Railways as can be culled out from the material s on record in substance is that after availing the 45 days’ leave applied for b y him with effect from 2.10.81 the petitioner neither reported for duty and rema ined unauthorisedly absent therefrom with effect from 16.11.81, nor intimated th e reason therefor to his immediate superior authority and, thus, as the same amo unted to serious misconduct, a disciplinary proceeding was drawn up against him in the year 1988. The respondents also contented that in his reply to the Memora ndum of Charges he did not offer any defence and only insisted for releasing the pensionary benefits on the ground of resignation/ voluntary retirement. While i nsisting that the petitioner not having completed 20 years of qualifying service was not entitled to go on voluntary retirement, the respondents further averred that due to his non-cooperation in the departmental proceeding he might be rem oved from service after ex-parte enquiry . That an amount of Rs. 13,352/- by Che que No. 138116 dated 26.3.2009 as Provident Fund dues had meanwhile been release d to him was reiterated. Whereas Mr Hussain with reference to the provisions of the Rules, more p articularly, Rule-2(4), Rule-6, Rule-41 and Rule-69 thereof has urged that the l earned Tribunal had apparently fallen in error in negating the petitioner’s clai m for pension on the purported ground that the Rules were inapplicable to him an d that in the facts and circumstances an appropriate direction to the respondent s ought to be issued by this Court, Mr Sarkar has pleaded to the contrary. On be ing queried by us, the learned Standing Counsel for the Railways, however, has n ot been able to assert with certainty as to whether the petitioner’s request for resignation had been accepted and/or rejected by the Railway authorities. He ha s also not been able to apprise us of the final decision taken in the disciplina ry proceeding drawn up against the petitioner awarding any penalty against him. This, the learned Standing Counsel has submitted, is due to absence of records t o that effect in view of long interval of time. We have considered the materials on record and the arguments advanced. T hat the petitioner had rendered his services from the year 1969 till 2.11.81 and had defaulted to rejoin his duties on the expiry of 45 days’ leave counted ther efrom is a matter of records. In any view of the matter, as he has not completed 20 years of qualifying service his request for voluntary retirement is unaccept able. In a way this plea is now unavailable to him in view of the decision of th e learned Tribunal negating the same as recorded in its judgment and order dated 12.11.2009. In absence of any categorical plea in the written statement filed b y the Railways that the petitioner’s request for resignation had been accepted, we are unable to proceed on that basis. By analogy of reasoning as well as for a bsence of records, we consider it absolutely inexpedient and inadvisable to infe r that the petitioner had been removed from service at the conclusion of the dep artmental proceeding drawn up against him. The factual scenario that emerges is that though the petitioner had remained absent from duties on the expiry of 45 d ays’ leave with effect from 2.10.81, his request for resignation has remained un decided. In law, therefore, one cannot conclude that his resignation was duly ac cepted by the Railway authorities. However, as admittedly the petitioner had not returned to his duties after the expiry of his leave, we cannot treat him to be in service since then till date. This is more so as meanwhile he has attained t he age of superannuation. A plain reading of Rule-2(4) of the Rules, according to us, makes the Ru les applicable to the petitioner in absence of any material to the contrary. In that view of the matter, in the face of the determination made hereinabove, we a re of the unhesitant opinion that his claim for the pension under the Rules ough t to be examined by the Railways in terms thereof. As the quantification of the pension under the Rules would require a probe into the essential factual aspects , we refrain from undertaking the exercise. However, as the petitioner waits in expectation, the same would be completed with a period of four weeks from the da te of receipt of a certified copy of this order. The impugned judgment and order is interfered with. The petition is allowed to the extent indicated above. No costs.