Case: MANGILAL KAJODIA Vs. UNION OF INDIA

was not on vacation when the transfer orders were issued and after availing joining time, he should have joined the new place of posting on expiry of the joining time. It is, therefore, clear that the petitioner, Shri Kajodia had wilfully violated the orders of transfer; Notwithstanding the above, in the light of the observations of the Hon?ble Supreme Court in its orders dated 9.8.2019 mentioned above, I am inclined to take a lenient view in the matter and the representation dated 29.9.2008 submitted by Shri Kajodia has been considered sympathetically and consequently order that he may be reinstated in the service of KVS from the date of his removal from service vide orders dated 21.7.2008 (i.e. w.e.f. 7.5.2008). However, the period of absence from the duty w.e.f. 7.5.2008 till the date of his joining his duties on reinstatement will be treated as ‘dies non? for all purposes.? 9. The Central Government?s order, under cover of the letter was taken on record and copy of it was made available to the petitioner. Subsequently, on 17.09.2019, when the matter was listed, the petitioner expressed his reservation with respect to the proposal to reinstate him but treat the entire period of absence as dies non. The petitioner submitted that the action of the authorities, particularly, the order of removal was actuated by mala fides and utterly unfair. It is submitted that the removal order is void on the ground that it is unreasoned and contrary to the rules. Just because the petitioner did not join KVS Kargil within the time prescribed, the same could not have been a justification for his removal or for that matter, to treat his absence as one leading to abandonment of services. The petitioner relied on Rule 12(2) of the Joining Time Rules to say that Kargil had no summer vacations but rather had winter vacations from 07.12.2008 to 15.02.2009 and on the other hand, in Devas, summer vacation had continued from 04.05.2008 to 22.06.2008. In these circumstances, the transfer order was made during the summer vacation and that the petitioner?s joining time would have commenced only after 22.06.2008. 10. The petitioner further submitted that even if reinstatement were to be accepted, the condition of dies non is extremely harsh inasmuch as 12 years of service would stand forfeited and he would be deprived of all benefits of pay, increased DA, accrual of PF and pension benefits. 11. The facts discussed reveal petitioner has approached this Court and sought substantive reliefs under Article 32 of the Constitution after almost 9 years of the accrual of cause of action. He approached the CAT which disposed of an application on 10.08.2011 with a direction that he could approach it afresh after the application/fresh petition preferred by him to the President was dealt with and disposed of. As a matter of fact, the petition - in the nature of a mercy plea, was not disposed of; the petitioner initiated contempt proceedings which led to the KVS approaching the Madhya Pradesh High Court. The High Court rebuked the KVS and granted time to it to comply with the directions. Eventually, the Minister, on 23.09.2015 rejected the mercy petition. 12. Having regard to the fact that the petitioner himself did not seek redressal substantively of his grievance, given that the petitioner did not approach the Court in a timely manner – (the application made to CAT itself was after three years of the removal order), and furthermore, has approached this court directly, it would not be appropriate to examine the correctness of the decision of the order of removal by the KVS. At the same time, the court had felt that the order of removal constituted a harsh disciplinary measure and that the petitioner could be meted a lighter penalty. It was with this in mind the Attorney General was asked to intervene and obtain instructions from the Central Government. The order made by the Union Minister now is clear that the petitioner would be taken back into the services in the post that he held at the time of removal. At the same time, the Central Government has clarified that the entire period of absence, i.e. from the date of removal till the date he rejoins would be treated as dies non for which no benefit would accrue to him. 13. This court is of the opinion that the position taken by the Central Government not to grant substantive benefit for the duration of absence cannot be per se termed harsh and arbitrary. The petitioner did not join the place KV Kargil, nor did he approach the court at the relevant time or even after his removal contemporaneously. In these circumstances, conceding the benefit of arrears of salary, seniority and continuity, arrears of salary and related benefits would not be fair. However, placing the petitioner in the same position he was as on 07.05.2008 (the date of his removal) would be what could be extremely harsh, in the opinion of the court, inasmuch as he would draw salary at the stage at which he was almost 12 years ago. 14. In the peculiar circumstances, in the opinion of this Court, the interest of justice lies in suitably modifying the order proposed by the Central Government. Although the petitioner would not be entitled to the payment of arrears of salary for the period he was out of service, the KVS should issue a separate order fixing his salary having regard to notional increments effective from the date he would have been entitled to the increment in the year 2009 after taking into consideration the relevant increments which accrue thereafter. In other words, the petitioner should be reinstated, and at the same time, the pay fixation order should ensure that the period of absence which would otherwise be treated as dies non is ignored for the purpose of fixation and fitment of salary alone. The order can also expressly state that the benefit of arrears of salary would not accrue to the petitioner.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. The facts discussed reveal petitioner has approached this Court and sought substantive reliefs under Article 32 of the Constitution after almost 9 years of the accrual of cause of action. He approached the CAT which disposed of an application on 10.08.2011 with a direction that he could approach it afresh after the application/fresh petition preferred by him to the President was dealt with and disposed of. As a matter of fact, the petition - in the nature of a mercy plea, was not disposed of; the petitioner initiated contempt proceedings which led to the KVS approaching the Madhya Pradesh High Court. The High Court rebuked the KVS and granted time to it to comply with the directions. Eventually, the Minister, on 23.09.2015 rejected the mercy petition12. Having regard to the fact that the petitioner himself did not seek redressal substantively of his grievance, given that the petitioner did not approach the Court in a timely manner – (the application made to CAT itself was after three years of the removal order), and furthermore, has approached this court directly, it would not be appropriate to examine the correctness of the decision of the order of removal by the KVS. At the same time, the court had felt that the order of removal constituted a harsh disciplinary measure and that the petitioner could be meted a lighter penalty. It was with this in mind the Attorney General was asked to intervene and obtain instructions from the Central Government. The order made by the Union Minister now is clear that the petitioner would be taken back into the services in the post that he held at the time of removal. At the same time, the Central Government has clarified that the entire period of absence, i.e. from the date of removal till the date he rejoins would be treated as dies non for which no benefit would accrue to him13. This court is of the opinion that the position taken by the Central Government not to grant substantive benefit for the duration of absence cannot be per se termed harsh and arbitrary. The petitioner did not join the place KV Kargil, nor did he approach the court at the relevant time or even after his removal contemporaneously. In these circumstances, conceding the benefit of arrears of salary, seniority and continuity, arrears of salary and related benefits would not be fair. However, placing the petitioner in the same position he was as on 07.05.2008 (the date of his removal) would be what could be extremely harsh, in the opinion of the court, inasmuch as he would draw salary at the stage at which he was almost 12 years ago14. In the peculiar circumstances, in the opinion of this Court, the interest of justice lies in suitably modifying the order proposed by the Central Government. Although the petitioner would not be entitled to the payment of arrears of salary for the period he was out of service, the KVS should issue a separate order fixing his salary having regard to notional increments effective from the date he would have been entitled to the increment in the year 2009 after taking into consideration the relevant increments which accrue thereafter. In other words, the petitioner should be reinstated, and at the same time, the pay fixation order should ensure that the period of absence which would otherwise be treated as dies non is ignored for the purpose of fixation and fitment of salary alone. The order can also expressly state that the benefit of arrears of salary would not accrue to the petitioner.