IN THE HIGH COURT OF UTTARAKHAND AT NAINTAL CLMA DELAY CONDONATION APPLICATION NO. 5014 OF 2008 MCC RESTORATION APPLICATION NO. 931 OF 2008 IN WRIT PETITION NO. 6063 OF 2001 (Old No. 37977 of 1998) Anand Singh Rawat ……..Petitioner. Versus Deputy Director (Communication), Office of the Director General CRPFC-60 Complex, Lodhi Road, New Delhi and others. …………..Respondents. Mr. S.K. Posti, learned counsel for the petitioner. Smt. Anjali Bhargawa, learned Standing Counsel for the Union of India. 8th August, 2008 Hon’ble P.C.Verma, J. Aforesaid applications have been filed for condoning the delay in filing the restoration application as well as for restoring the writ petition to its original number by recalling the order dated 1.9.2005. 2. I have perused the affidavit filed in support of the delay condonation application. Reasons for condoning the delay in filing the restoration application has satisfactorily been explained. Delay is condoned. 3. Restoration application has been filed for restoring the writ petition by recalling the order-dated 1.9.2005, whereby the writ petition has been dismissed for want of prosecution. Reasons explained for recalling the said order are satisfactory. Order dated 1.9.2005 is recalled. 2 4. Both the applications are allowed. 5. Writ petition is restored to its original number 6. By means of present writ petition, the petitioner has challenged the order of removal from service on the charge of over-staying after sanctioned leave period. 7. The petitioner was sanctioned leave with effect from 29.7.1991 to 26.9.1991. During this sanctioned leave period, the petitioner became mentally disturbed and this information was given by the father of the petitioner to the Commandant vide letter dated 15th October, 1991 and again on 3.11.1991. Thereafter, on the application of the mother of the petitioner, the Station Officer made an inquiry and submitted his report on 12.3.1992 and on the basis of that report, Sub District Magistrate Thalisain Pauri Garhwal passed an order on 13.3.1992 for keeping the petitioner in custody of Police and directing that his treatment be done by the State Government till he comes in normal position. The petitioner was first admitted at District Jail, Pauri Garhwal by District Administration in the month of March, 1992 and thereafter, was transferred to Mental Hospital, Bareilly on 11.5.1992. He remained there from 11.5.1991 to 22.5.1996. 8. In the meantime, the petitioner was charge-sheeted on 21.1.1992 and a departmental inquiry was held and by the impugned order, the petitioner was removed from service with effect from 26.5.1992 and was declared deserted w.e.f. 27.9.1991. The wife of the petitioner wrote an application to the respondent no. 1 on 7.12.1992 apprising him about the mental ailment of the petitioner 3 and he was admitted in the Hospital at the time of departmental inquiry. 9. The Commandant vide letter dated 6th February, 1993 (Annexure No. 9 to the writ petition) wrote to the wife of the petitioner asking her to file a departmental appeal. 10. Thereafter, the appeal was preferred by the petitioner. The appellate Authority referred the petitioner to a Doctor for medical fitness. The Doctor opened that the petitioner was not fit to be retained in service. On this advice, the appeal was dismissed. 11. Heard counsel for both the parties. 12. Learned counsel for the petitioner has submitted that the appellate Authority should have decided the appeal on merits considering the facts as to whether there was sufficient cause of over-stay or not as stated by the petitioner and is evident from the documents that he was on sanctioned leave for 29.7.1991 to 26.9.1991 and was in the hospital w.e.f. 11.5.1992 to 25.5.1996. 13. Referring the petitioner to the Doctor and to seek advice from the Doctor was beyond the scope of the appeal. Even receiving the information that the petitioner was declared to be unfit, he could not even be discharged simply on account of his ailment and unfit for service as the petitioner was entitled for certain benefits at least the disability etc. Thus, the order of the appellate Authority dated 15.7.1998 is set aside. 4 14. For the reasons recorded above, the matte is sent back to the appellate Authority to decide the same on merits considering the grounds mentioned in the appeal and the facts mentioned hereinabove within a period of two months from the date of receipt of the certified copy of this order. 15. Accordingly, writ petition is allowed. No order as to costs. (P.C. Verma, J.) 8.8.2008 Rathour