IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4461 of 2009. Date of Decision: 14th July, 2011. _______________________________________________________ Shri Surinder Singh Thakur ….Petitioner. Versus State of Himachal Pradesh and another.…Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 No. For the petitioner: Mrs. Ranjana Parmar, Advocate. For the respondents: Mr. A.K. Bansal, Additional Advocate General. _________________________________________________________ Surinder Singh, J. (Oral). The petitioner mainly sought the following relief: “That a writ of certiorari be issued and the orders dated 16.3.1991 and 2nd May, 2009 may kindly be quashed and set aside and the respondents may be directed to condone the break in service of the petitioner for the purpose of pensionary benefits.” 2. Heard and gone through the record. 3. The petitioner was appointed as Clerk in respondents-Department on 9.1.1968. He proceeded on earned leave with effect from 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - 2.4.1979 to 12.4.1979. It is stated that due to his constraints and ailment of his daughter, he could not join his duties on the due date, thus applied for extension. Even despite that he could not join the service. However, he kept on sending his applications for leave, but no intimation regarding rejection of his leave was conveyed to him. Therefore, he reasonably believed that it was being sanctioned by the competent authority. Ultimately, on 28.3.1984 he submitted his joining report to the respondent-Executive Engineer, Theog, which was not responded. He again submitted his joining report on 28.9.1987, when nothing was heard, ultimately the petitioner filed an Original Application before the erstwhile Administrative Tribunal and the respondents were directed by the learned Tribunal to take a decision on the joining report of the petitioner. Ultimately, he was allowed to join the duties, but vide Annexure P-4 dated 21.9.1989 the Engineer-in-Chief ordered to hold an inquiry and simultaneously the petitioner was also ordered to submit the grounds of his long absence supported with authenticated documents, if any, in order to justify his prolonged willful absence from duty to the Executive Engineer,Chopal Division/ - 3 - Superintendent Engineer, 2nd Circle, Shimla within a period of 15 days of his joining. 4. The respondents were dissatisfied with the explanation rendered by him, as such ordered to charge-sheet him under Rule 14 of the CCS (CCA) Rules, 1965. Thereafter the inquiry was held. He was held guilty for willful absence and a penalty was imposed vide office order dated 16.3.1991 (Annexure P-5). The operative part thereof reads as under:- “Now, therefore, in consideration of the above, the undersigned in exercise of the powers conferred by the Rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 hereby impose the penalty of stoppage of two increments ( to be earned) with future effect, upon Shri Surinder Singh Thakur, Assistant. It is further ordered that the period of absence w.e.f. 2.4.79 to 2.10.89 shall be treated as unauthorized, resulting in loss of pay and allowances under proviso to FR 17(1) and a break in service in respect of Shri Surinder Singh Thakur.” 5. Feeling aggrieved by the order of the Disciplinary Authority, the petitioner filed statutory appeal before the Secretary, (PW). When it was not decided, he again filed Original Application before the erstwhile Tribunal, but on its abolition, it was transferred to this Court. Vide judgment passed in CWP (T) No.2003/2008, this Court directed the - 4 - Secretary (PW) to decide the appeal of the petitioner by a speaking order within four weeks from that day after affording a personal hearing to the petitioner. 6. The petitioner did not present himself before the Appellate Authority. He expressed his inability to appear before it as he was in foreign country, i.e. Australia, on tourist visa, but made a request that his appeal may be treated as his written statement and the case be decided by condoning the period of break-in-service for the purpose of pension. The Appellate Authority dismissed the appeal affirming the order of Disciplinary Authority, against which the present writ petition has been filed seeking the above relief. 7. The perusal of Annexure P-9 passed by the Appellate Authority on 2.5.2009 does not show that the case of the petitioner was also considered for condoning the break-in-service for the purpose of pension, as requested by the petitioner in view of the proviso to FR 17-A. 8. FR 17-A of the General Rules (Part-I) in its entirety is reproduced as under:- “F.R.17-A. Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence- - 5 - (i) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force; (ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reasons to the satisfaction of the competent authority; and (iii) in the case of an individual employee, remaining absent unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in departmental examinations, for which a minimum period of continuous service is required”. 9. Rule 27 of the CCS (Pension) Rules, 1972 inter- alia except the cases entailing forfeiture of past service including the unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively. Whereas sub-rule (2) carries out an exception to sub-rule (1) that the Appointing Authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave. Further, Rule 28 of the above Rule deals with condonation of interruption in service. - 6 - Under Rule 28 above, there is a Government of India’s decision, which says as under:- “GOVERNMENT OF INDIA'S DECISIONS (1) Condonation of unauthorized absence for purpose of pension.- Instructions have been issued from time to time that unauthorized absence in pursuance of concerted action by a group of employees acting in combination should be treated as unauthorized absence resulting in break in service. Fundamental Rule 17-A has also been introduced which enumerates the disabilities that would occur as a result of break in service. It has been noticed that in a few cases of unauthorized absence as a result of concerted action, a few Appointing Authorities did not condone the break under Rule 27 of the pension Rules for counting the previous service which adversely affected the pension of the officials. In this connection, it needs to be pointed out that the principles to be adopted for condonation of break in service for purposes of pension and that for purposes of other disabilities enumerated in FR 17-A are different. The fact that break in service has not been condoned for purposes of Leave Travel Concession, quasi-permanency and eligibility to appear at departmental examination should and need not influence the Appointing Authority adversely in deciding the question of condonation of break for counting the past service of the official for purposes of pension. It is not the intention of Government to deny pensionary benefits to the employees in all cases of break of service. If necessary, the Appointing Authority may, in its discretion, not condone the break-in-service on account of unauthorized absence for purposes of pension only in exceptional and grave circumstances and not as a matter of course. The question of condonation of break-in- service for the purpose of Pension Rules may be considered suo motu without waiting for a representation from the affected officials and orders issued so that the retired employees are not put to financial hardship. It is requested that these instructions may be brought to the notice of all the Appointing Authorities for their information and guidance. - 7 - Non-condonation of break-in-service for concomitant disabilities should not be the guiding factor non-condonation of break-in-service for purpose of pension under Rule 27 of the Pension Rules. It is not the intention of the Government to deny the pensionary benefits to the employees in all cases of break of service. If necessary, the Appointing Authority, may in its discretion not condone the break-in-service, on account of unauthorized absence for purposes of pension only in exceptional and grave circumstances and not as a matter of course.” 10. In fact F.R. 17-A deals with and operates in a different situation. 11. In the present case, the request of the petitioner has been for condonation of interruption in service only for the purpose of pension, which was required to be dealt with by the Appellate Authority under the Pension Rules aforesaid, read with Government of India’s decision below Rule 28, which was not done. Therefore, the impugned order (Annexure P-9) passed by the Appellate Authority is quashed and set-aside and the Appellate Authority is hereby directed to deal with the case of petitioner in accordance with the above referred Rules of the CCS (Pension) Rules alongwith Government of India’s decision quoted above, as far as possible within four months, from the date of producing the certified copy of this judgment and if petitioner is found entitled to any - 8 - pensionary benefits, it be released to him within two months thereafter. 12. The writ petition stands disposed of in the above terms. July 14, 2011. (Surinder Singh), (rc) Judge.