UNION OF INDIA Vs. OM PRAKASH

JUDGEMENT

(1.) The instant writ petition has been preferred by the Union of India (Defence) for assailing the order dtd. 27/9/2018 passed by Central Administrative Tribunal, Jodhpur Bench whereby, the Original Application No. 290/00455/2015 with MA No. 290/00231/2015 filed by respondent/applicant Shri Om Prakash was accepted and a direction was issued to the petitioners to release gratuity after deducting the period which has been held as 'Dies Non' for all purpose from respondent's total length of service. Further, the respondent/applicant was held entitled to interest at the rate applicable to the GPF deposits prevailing at the relevant point of time.

(2.) Brief facts relevant and essential for disposal of the writ petition are noted hereinbelow:- The respondent/applicant was appointed as civilian cook at Military Hospital, Jodhpur on 7/10/1996. He joined on the said post on 9/11/1996. The respondent/applicant was issued a Show Cause Notice dtd. 11/8/2009 to explain reasons for his absence from duty since 1/5/2008 without any information. The respondent/applicant thereafter joined his duties and also submitted a reply to the show cause notice, denying the said allegation. The respondent/applicant again remained absent from duty without leave w.e.f 29/11/2009 to 26/7/2011. On 03. 05.2011, another show cause notice was issued to the respondent/applicant, directing him to immediately join the duties and submit an explanation for unauthorized absence. Vide application dtd. 25/5/2011, the respondent/applicant submitted resignation and at the same time, requested for premature retirement due to domestic problems. The petitioner department accepted the resignation of the applicant w.e.f 26/7/2011 from the post of Civil Cook of Military Hospital, Jodhpur. The period of unauthorised absence from 29/12/2009 to 26/7/2011 was ordered to be treated as 'Dies Non' for all purposes. The respondent/applicant thereafter requested for release of retiral benefits and regular pension. However, the retiral benefits were not released in his favour. Thereupon, the respondent/applicant filed the Original Application before the Central Administrative Tribunal seeking a direction for release of retiral benefits which has been accepted and applicant has been held entitled for gratuity after deducting the period which had been held 'Dies non' for all purposes from his total length of service.

(3.) Shri Deelip Kawadia, learned counsel representing the employer writ petitioner, vehemently and fervently urged that the Original Application was filed by the respondent/applicant without sufficient explanation for the gross and inordinate delay and therefore, the O.A. ought to have been dismissed on this ground alone. On merits, it was argued that the respondent/applicant has already been paid amount of Leave Encashment and GPF in the year 2012-13 as per the rules in vogue. Rule 26 of Central Civil Services (Pension) Rules, 1972 entails forfeiture of past service if an employee tenders resignation from service or post. The respondent/applicant did not complete minimum service of 20 years for claiming gratuity. On these grounds, Shri Kawadia implored the Court to accept the writ petition and set aside the impugned order passed by the learned Tribunal.