IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 17942 of 2007 Date of Decision: 4.11.2009 Union of India. ....... Petitioner through Shri Lakhinder Singh, Advocate. Versus Smt.Shakuntala Devi and others. ....... Respondent nos. 1 to 5 through Shri G.S.Punia, Advocate. Respondent no.6 through Nemo. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The instant petition under Articles 226/227 of the Constitution of India is directed against judgment dated 29.11.2006 passed by the Central Administrative Tribunal, Chandigarh Bench (hereinafter described as `the Tribunal'). The petitioner has prayed for quashing of the same on the ground that late Shri Ram Parshad (referred to hereinafter as `the employee'), who was compulsorily retired from service on account of his absence from duty, was not entitled to any pension as he did not complete the requisite period C.W.P.No.17942 of 2007 -2- .... of qualifying service of ten years. The facts of the case, in brief, are as under:- The employee, who was husband of respondent no.1 and father respondent nos. 2 to 5, was working as Constable in the Railway Protection Force having joined service on 11.6.1989 against the quota of Ex- servicemen. He was compulsorily retired from service with effect from 15.5.2003 on account of unauthorised absence from duty for which he was charge-sheeted after conducting departmental enquiry. Pension was denied to him on the ground that his service with the department was less than ten years which decision he impugned by filing an application before the Tribunal. The petitioner, who had contested the application, had set up a defence that the employee had not completed ten years of requisite service and that his total absence from duty came to four years eleven months and seventeen days which period was computed in accordance with the chart which has been attached with this petition as Annexure P3. The total period which was reckoned as service has also been detailed in Annexure P3 and according to which, he had completed eight years eleven months and seventeen days of service and this included the benefit of absence period which was regularised as extraordinary leave. The Tribunal, however, rejected the plea of the petitioner and held the employee entitled to the grant of pension by the impugned judgment which is the cause of its grievance and the same has been assailed C.W.P.No.17942 of 2007 -3- .... in the present petition. Learned counsel for the petitioner has contended that the employee remained absent from duty for the following period:- “1. From 17.2.1995 to 3.3.1995 -treated as leave due. 2. From 4.3.1995 to 4.4.1995 = 32 days From 17.6.1995 to 2.12.1995 = 169 days From 13.11.1997 to 19.9.1999= 686 days Total = 887 days = sanctioned as Extraordinary leave being Railway Medical Certificate and this period was treated as qualifying service. 3. From 5.4.1995 to 16.6.1995 = 73 days. From 3.12.1995 to 12.11.1997= 710 days. Total = 783 days – sanctioned as leave without pay being Private Medical Certificate and this period was not treated as qualifying service.” It was submitted that period of extraordinary leave,i.e., 887 days, was treated as qualifying service, whereas the period of the leave without pay, i.e., 783 days, was not included in the total qualifying service, for the purpose considering the case of pension of the employee for the simple reason that according to Rule 36 of the Railway Pension Rules,1993 (for short, `the Rules'), only that period of leave during service for which C.W.P.No.17942 of 2007 -4- .... salary was payable, was to be counted for the purpose of qualifying service. He further contended that the details of the service rendered by the employee reveal that he had remained unauthorisedly absent for four years eleven months and seventeen days, which details were tabulated in Annexure P3 and this period of four years eleven months and seven days did not include 783 days. It was submitted that in any eventuality, the order of compulsory retirement was passed as a measure of punishment for misconduct of the employee which was established during the course of enquiry and, therefore, the employee could not be granted pension which he had claimed. On the other hand, learned counsel for respondent nos. 1 to 5 contended with some vehemence that if the benefit of 783 days which period was treated as leave without pay is granted to the employee, then he completed ten years of qualifying service and became entitled to the grant of pension. He placed reliance upon Rule 14(10) of the Rules to contend that the periods which are not to be treated as service for pensionary benefits have been specified and leave without pay is not one of these contingencies in the said rule. He, thus, contended that leave period have been regularised, the same had to be considered while computing the qualifying service so as to entitle the employee to the benefit of pension. We have given our careful consideration to the submissions made at the Bar and gone through the material on record. Of some significance is the the document,Annexure P3, in C.W.P.No.17942 of 2007 -5- .... which the break-up of the period of absence of the employee on account of his illness has been mentioned and that period has been noticed hereinabove. This period was segregated into two categories by the petitioner, i.e., (i) R.M.C. (Railway Medical Certificate) and (ii) P.M.C. (Private Medical Certificate). In so far as the period of 887 days which fell within the category of R.M.C. is concerned, the same was considered as extraordinary leave and was ordered to be regularised as such for qualifying service, while the period of 783 days was directed to be regularised as leave without pay. In our opinion, this distinction as made by the petitioner was totally arbitrary without any justifiable basis. The only reason advanced by the learned counsel for the petitioner is that the period for which the employee reported to the Medical Officer of the Railway was treated as R.M.C., but the period for which he did not report to the Medical Officer of the Railway and remained under private treatment, the same was excluded in the absence of any proof of ailment of the employee. We are not impressed with the logic advanced before us for the simple reason that if the break-up of the leave period is to be seen, it reveals that the employee remained absent for the first time from 4.3.1995 and 4.4.1995. Ordinarily, he would have been required to report for duty on 5.4.1995. He, however, did not do so and remained absent from 5.4.1995 to 16.6.1995 (73 days), but he reported before the Medical Officer of the Railway on 17.6.1995, he was declared sick till 2.12.1995 and granted leave C.W.P.No.17942 of 2007 -6- .... as such. From 3.12.1995 when he was required to report for duty, he remained absent up to 12.11.1997 for 710 days, but again when he reported to the Medical Officer of the Railway on 13.11.1997, he was put on sick list till 19.9.1999, implying thereby that the ailment of the employee was continuous from 4.3.1995 till 19.9.1999. The authorities of the petitioner, while recommending regularisation of the period of absence from duty for qualifying service, noticed in their recommendations that the employee had been medically de-categorized, i.e., unfit for duty on the original post and was absorbed in Northern Railway at Bikaner as Lower Divisional Clerk as D.M.O., Northern Railway, Kapurthala, vide letter dated 29.1.1998, also recommended to provide alternative job to him where running was not required. In this view of the matter, the petitioner created an artificial distinction between the periods of R.M.C. & P.M.C. and thus, fell in error while ignoring the period of 783 days for computing the same as qualifying service. The details of the break-up as noticed above clearly reveals continuous ailment which was substantiated adequately by R.M.C. which breaks ensued immediately subsequent to the P.M.C. leaving hardly any room for doubt regarding continuous ailment of the employee. We are, thus, of the opinion that this period of 783 days of absence should have been treated at par with the period which has been treated as R.M.C. and ought to have been considered as extraordinary leave for the purpose of qualifying service. C.W.P.No.17942 of 2007 -7- .... That apart, a perusal of Rule 36 of the Rules which is extracted hereunder, clearly shows that all extraordinary leaves granted on medical grounds shall count for pensionary benefits:- “All leave during service for which leave salary is payable and all extraordinary leave granted on medical grounds shall count as qualifying service: Provided that in the case of extraordinary leave other than extraordinary leave granted on medical certificate, the appointing authority may, at the time of granting such leave, allow the period of that leave to count as qualifying service if such leave is granted to a railway servant (i)due to his inability to join or rejoin duty on account of civil commotion; (ii) for prosecuting higher scientific or technical studies.” The medical condition of the employee has not been denied and rather was affirmed in the recommendations made for regularisation of R.M.C. and P.M.C. and as mentioned above, the same was continuous and absence of 783 days was treated as leave without pay, implying thereby that the leave had been granted by the petitioner for medical grounds even though by making an artificial segregation, it was treated as leave without pay. In our view, the authorities of the petitioner have defeated the right of the employee while resorting to the aforesaid artificial segregation C.W.P.No.17942 of 2007 -8- .... and classification and besides, they did not intimate the employee the reasons for doing so, so as to enable him to meet the decision with some objections. It was only when a prayer for grant of pension had been raised by him, he was confronted with such a decision to deny him the benefit of pension. This, to our minds, has resulted in great prejudice to the employee whose legitimate pensionary benefits could not have withheld by taking a unilateral decision with which he was not associated and not confronted with. Looking at it from both the angles, we feel that the order of the Tribunal in the given set of circumstances is completely justifiable and does not warrant any interference. We, accordingly, decline to exercise our jurisdiction under Articles 226/227 of the Constitution of India in favour of the petitioner and dismiss the writ petition leaving the parties to bear their own costs. ( T.S.Thakur ) ( Mahesh Grover ) Chief Justice Judge November 4,2009 “SCM”