COMMANDANT, 23RD BN. INDO TIBETAN BORDER POLICE FORCE, RECKONGPEO, DISTT. KINNAUR, H.P. Vs. PREM SINGH NO. 760060941/HC/GD SON OF SHRI HARI SINGH, R/O VILLAGE AND P.O. SARI, TEHSIL

JUDGEMENT

(1.) THIS appeal by the Union of India is directed against the judgment of the learned Single Judge dated 16.7.2007, whereby he quashed the order passed by the appellant treating the period of service from 9.9.1993 till 22.4.2002 as dies non and held that only the period from 9.9.1993 till 15.10.1993 be treated as dies non and the remaining period shall not be treated as dies non and had held that interest of justice would be met if 50% of the salary for this period is paid to the writ petitioner. There is no dispute that the petitioner remained willfully absent from 9.9.1993 to 25.9.1993. He was charged under Section 10(m) of the Central Reserve Police Force Act, 1949 (hereinafter referred to as the Act) and convicted and sentenced for imprisonment till rising of the Court. The petitioner was also dismissed from service vide order dated 15.10.1993. He challenged the said order by way of CWP No. 927 of 1994 and this Court vide its judgment dated 7.9.2001 set aside the order of dismissal on the ground that the petitioner was neither charged nor convicted under the provisions of Section 9 (f) of the Act. The conviction of the petitioner under Section 10 (m) of the Act was not disturbed. The present appellants were directed to pass a fresh order based on the conviction under Section 10(m) of the Act.

(2.) AFTER the judgment of this Court, the appellants reinstated the petitioner and no order of penalty in terms of the order of this Court was passed except that it was ordered that the period from 9.9.1993 to 22.4.2002 would be treated as dies non for all purposes. The learned Single Judge has made a reference to Section 13 of the Act and has come to the following conclusions: - It is thus clear that petitioner has been convicted and sentenced for less heinous offence under Section 10(m) of the Act i.e. for remaining absent without leave w.e.f. 9.9.1993 to 25.9.1993. He is sentenced for imprisonment till the rising of the Court only. Importantly no order of any fine as envisaged under Section 11 or forfeiture of pay and allowances etc. as envisaged under Section 12 has been passed against him. Pay and allowances for every day of absence without leave alone can be deducted under Section 13(a) of the Act. In the present case, the petitioner is seeking that service benefits be granted with effect from 9.9.1993 till 22.4.2002. In view of specific provisions of Section 13(a) of the Act, petitioner certainly cannot be given any benefit for the period of absence from 9.9.1993 to 25.9.1993 and the order dated 3.5.2002 cannot be faulted at all. For the period between 27.9.1993 and 15.10.1993, which is period of trial and since the petitioner has admitted his guilt and has been convicted and sentenced no fault can also be found with the order treating this period as dies non. Further, for the period between 16.10.1993 to 22.4.2002 the respondents admittedly did not pass any order under Sections 11, 12, 13 of the Act and relied upon the provisions of F.R. 54 -A to treat the said period also as dies non. Order shows that no reasons whatsoever have been assigned by the respondents while passing the impugned order. In the affidavit filed by the respondents, it is clarified that petitioner's case is governed under the provisions of FR 54(1)(a) and(b) and not FR 54 -A, which is a typographical mistake. Since the order of dismissal dated 15.10.1993 was set aside by this Court in CWP No. 927 of 2004 and respondents also of their own have reinstated the petitioner in service in terms of its order dated 17.4.2002, I am of the considered view that petitioner ought to have been granted some benefits for continuation of service for the said period.

(3.) WE have heard Mr. Sandeep Sharma, learned Assistant Solicitor General of India, who submits that since the petitioner did not work for this period he is not entitled to any salary and further more according to him under Section 13 of the Act, pay and allowances can be ordered to be deducted. We are not in agreement with this submission. The petitioner remained out of service for no fault of his. He was wrongly dismissed from service, as held by this Court in the earlier writ petition. There was no charge against him under Section 9(f) of the Act and he had only been charged under Section 10(m) of the Act. Therefore, it was not as if the petitioner himself voluntarily remained absent after the earlier order of termination of his services was passed.