IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. 87 of 2005. Date of decision: 18.12. 2009 State of H.P. …..Petitioner Versus Sh. Rajinder Mohan Bali ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Petitioner: Mr. Ramesh Thakur Assistant Advocate General. For the respondent : Mr. Virender Verma, Advocate. Surjit Singh, J (Oral) State has challenged the validity of order dated 29.9.2004, of the H.P. State Administrative Tribunal (now abolished) and sought its judicial review by means of the present writ petition, under Articles 226 and 227 of the Constitution of India. 2. Facts relevant for the disposal of the writ petition lie in a very narrow 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - compass. Respondent Rajinder Mohan Bali was employed as Sub-Treasurer in the Treasury Department of the Government of Himachal Pradesh. He remained willfully absent from duty on two different occasions for very long duration. For the first duration of willful absence, he was charged sheeted and on being found guilty, was visited with the penalty of stoppage of increments. He again remained absent from duty. This time also, he was charge sheeted. On inquiry, he was found guilty of the charge and visited with the penalty of removal from service. His appeal was dismissed. Then he filed a mercy petition. Mercy petition was allowed by the Hon’ble Chief Minister and formal order was issued by the Finance Department on 3.12.1994 Annexure P-VIII. The operative part of the order reads as follows:- “….I am of the view that on humanitarian consideration, the order of removal be revoked: the period of absence and also the period since his removal i.e. the entire period since 13.11.1985 be regularized by way of leave of the kind due and the balance period by Extra Ordinary Leave…” - 3 - 3. Pursuant to the said order, respondent was allowed to join duty. He then submitted papers for premature retirement. His request was acceded to and he was retired w.e.f. 31.1.1997 vide Annexure P-IX. His pension and gratuity etc. were not released for quite some time even after his retirement. So, he approached the H.P. State Administrative Tribunal, seeking a direction to the petitioners for release of pension and gratuity amount. Even before the respondent filed Original Application, seeking the aforesaid direction, before the H.P. State Administrative Tribunal, the petitioner had made a reference to the Accountant General for grant of pension to respondent and also releasing the amount due on account of gratuity. However, the Accountant General returned the case back with the objection that there was no order of the competent authority as to how the period of extra ordinary leave was to be treated. It may be noticed that the extra ordinary leave had been granted in terms of the aforesaid reproduced portion of the order Annexure P-VIII. On receipt of the - 4 - case back from the Accountant General, a reference was made to the Governor, who passed the order Annexure P-X whereby the respondent was granted half pay leave for 212 days and extra ordinary leave for 2663 days. Extra ordinary leave was granted because in the leave account of the respondent, only 212 days of half pay leave was due to his credit. 4. After the passing of the order Annexure P-X, pension case of the respondent was re-submitted to the Accountant General, who ordered the payment of a sum of Rs.39078/- on account of gratuity and authorized payment of pension @ Rs. 1310/- per month. After the issuance of the aforesaid order by the Accountant General regarding payment of gratuity and authorization of payment of pension, petitioner pleaded before the Tribunal that the matter had become infructuous. Respondent, however, pleaded that the order Annexure P-X regarding grant of 2663 days of extra ordinary leave and treatment of the period of extra ordinary leave as not qualifying for the purpose of pension, was illegal as the - 5 - medical certificates submitted by him in support of his claim that his absence from duty was on account of his sickness, were not considered while passing the said order. Learned Tribunal accepted the respondent’s plea and directed that the period of extra ordinary leave of 2663 days be treated as qualifying service and pension and the amount of gratuity be worked out accordingly. It is against this order that the present writ petition is directed. 5. It is submitted on behalf of the petitioner that the period of extra ordinary leave qualifies for pension only if the absence is on account of sickness, study leave or inability to join duty on account of civil commotions, as per Rule 21 of the Pension Rules. 6. We have heard the learned Assistant Advocate General for the petitioner as also the learned counsel for the respondent and perused the record. 7. It is submitted by the learned counsel for the respondent that after his reinstatement, pursuant to order Annexure P-VIII, respondent had submitted medical - 6 - papers to the petitioner with the request that his entire period of absence, in excess of leave of the kind due be treated as extra ordinary leave qualifying for pension as the respondent had remained sick during the entire period of his absence and that those papers were not taken into consideration while passing the order Annexure P-X treating the period of extra ordinary leave as not qualifying for service. The submission merits out-right rejection because respondent was charged with willful absence from duty and presumably while meeting the aforesaid charge, he took the plea that he remained absent on account of his sickness but the charge was held to have been established meaning thereby that his presumed plea had been rejected by the Inquiry Officer. Report of the Inquiry Officer was accepted and the respondent was visited with the penalty of removal from service. His appeal against order of the punishment, passed by the appointing Authority was dismissed. He then filed mercy petition, which the Hon’ble Chief Minister accepted and on account of acceptance of the said - 7 - plea by the Hon’ble Chief Minister, formal order Annexure P-VIII, the operative part of which has been reproduced hereinabove, was passed. A bare reading of order Annexure P-VIII shows that the finding of the Inquiry Officer that respondent was guilty of charge of willful absence from duty had not been interfered with. Therefore, there was no occasion for the authorities, while passing the order Annexure P-X, to take into account medical certificates or other papers submitted by the respondent, as that would have meant passing an order contrary to the finding of the Inquiry Officer which had attained finality. 8. In view of the above stated position, we allow the present writ petition and set aside the impugned order dated 29.9.2004 of the H.P. State Administrative Tribunal. Consequently Original Application filed by the respondent before the H.P. State Administrative Tribunal is dismissed. (Surjit Singh),J. December 18, 2009 (Surinder Singh),J (cm)