1 S.B.CIVIL WRIT PETITION NO.623/2003 Hanuwant Singh v. State of Rajasthan & Ors. Date of Order :: 5 th September, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.R.Singhvi, for the petitioner. Mr. B.L.Tiwari, for the respondents. .... For remaining absent from duties, the petitioner was subjected to disciplinary action and penalty of dismissal from service was imposed upon him by an order dated 15.10.1985. An appeal giving challenge to the order aforesaid came to be rejected on 1.3.1986, however, by an order dated 27.4.1987 the reviewing authority remanded the matter to the appellate authority with a direction to decide the appeal afresh by giving specific findings on every charge, after taking into consideration the evidence available on record. The appeal so remanded was considered and rejected by order dated 16.5.1995. The reviewing authority, by an order dated 2.9.2000, partly accepted the review petition filed by the petitioner and substituted the penalty of stoppage of five annual grade increments with cumulative effect in place of dismissal. While doing so, an order was also made to treat the period during which the petitioner remained out of employment as a consequent to his 2 dismissal from service as extra ordinary leave and not to consider that term as part of service for determination of pension and other service benefits. To challenge the order passed by the reviewing authority to the extent it denies for taking into consideration the period in which the delinquent employee remained out of employment as part of service and for determination of pension, this petition for writ is preferred. It is contended by counsel for the petitioner that against the order dated 15.10.1985 he preferred an appeal and that came to be rejected on 1.3.1986. A review petition giving challenge to the order dated 1.3.1986 came to be accepted on 27.4.1987 with a direction to the appellate authority to decide the appeal afresh, however, a period of more than eight years was consumed in adjudication of the appeal, similarly the reviewing authority took five years in deciding the review petition. The huge delay in adjudication of the appeal and review petition was because of authorities concerned, therefore, to treat the entire period subsequent to dismissal from service, dias-non is unjust and arbitrary. In reply to the writ petition it is stated that the petitioner was found guilty for remaining absent from duties unauthorisedly and, therefore, whatever penalty imposed is adequate and no 3 interference of this Court is warranted while exercising powers under Articles 226 and 227 of the Constitution of India. Heard counsel for the parties. As stated in preceding paras, the only argument advanced by counsel for the petitioner is regarding non-inclusion of the period in which the petitioner faced dismissal, as part of service for the purpose of determination of pensionary rights and other service benefits. The petitioner was found guilty for remaining absent from duties willfully and for that a penalty of stoppage of five annual grade increments is imposed upon him by the reviewing authority. The reviewing authority also ordered for treating the entire period in which the petitioner was not on duties as extraordinary leave, i.e. from 15.10.1985 to 2.9.2000. The petitioner by way of filing an appeal challenged the dismissal from service and appeal came to be rejected on 1.3.1986. The review petition thereafter was filed by the petitioner within the limitation prescribed and that came to be accepted in part on 27.4.1987 with a direction to the appellate authority to decide the appeal afresh. The appellate authority kept the appeal pending for more than a period of about eight years and ultimately decided the same on 16.5.1995. A review petition giving challenge to the order passed by the appellate authority on 4 16.5.1995 was also filed by the petitioner within the limitation prescribed and that was decided by the reviewing authority on 2.9.2000 i.e. after a lapse of more than a period of five years from the date the appeal was rejected. The period from 27.4.1987 to 2.9.2000 was consumed by the appellate authority and the reviewing authority in adjudicating the appeal and review petition preferred by the petitioner. Such an inordinate term in adjudication of departmental remedy is highly excessive and for causing such delay the delinquent employee cannot be penalised. The authorities concerned should have acted diligently in adjudication of departmental remedies. There was no lapse on part of the petitioner in getting his matter adjudicated and, therefore, for the period undertaken by the respondents in deciding the appeal and review petition, cannot be treated as dias-non. As a matter of fact such a long period on being treated as not a part of service will adversely effect the pensionary rights of the petitioner and also all other his service rights too. The denial of such a long period for consideration of pensionary benefits and other service benefits is highly arbitrary. For the reasons stated above, this petition for writ deserves acceptance and, therefore, the same is allowed. The order passed by the reviewing authority is declared illegal to the extent it prescribes for non-inclusion of the period during 5 which the petitioner faced dismissal for the purpose of determination of pensionary rights and other service benefits. While maintaining the penalty of stoppage of five annual grade increments with cumulative effect the respondents are directed to treat the period commencing from 27.4.1987 i.e. the day on which the first review petition preferred by the petitioner was accepted to 2.9.2000 i.e. the day on which second review petition preferred by the petitioner was accepted as part of the regular service of the petitioner. For the aforesaid period the petitioner shall be entitled to get all service benefits notionally and that period shall also be taken into consideration for determination of all pensionary and post retiral rights of the petitioner. The petitioner shall not be entitled to get any actual benefit for the period aforesaid. The period from 15.10.1985 to 26.4.1987 shall be treated as the period of extraordinary leave availed by the petitioner and this period shall not be taken into consideration for any purpose relating to service and for grant of pensionary benefits. ( GOVIND MATHUR ),J. kkm/ps.