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Judgment
Two doctors, the husband and wife were terminated from service. In a writ petition, registered as SWP No. 303/1994, they challenged their
order of termination. Said writ petition was dismissed. Against the order of dismissal, an appeal registered as LPA No. 219/1998, was preferred.
Division Bench found that order of termination was without taking recourse to initiation of disciplinary proceedings. Division Bench, accordingly,
set aside the order of termination. Division Bench directed the Appellant-State to hold inquiry. Division Bench made it clear that ultimate result
would depend upon the result of the inquiry which would be conducted now. The inquiry was not conducted. The wife died. Husband reached the
age of superannuation. A second writ petition registered as SWP No. 525/2003 was filed seeking service benefits from the date their services
were terminated, which termination was set aside by the Division Bench. Writ petition was not contested by filing any objections. By the judgment
and order under appeal, the Court directed the Appellant to give to said doctors or their heirs service benefits from the date of termination of their
services, which termination, as aforesaid, was set aside by the Division Bench. In the appeal, the grievance of the Appellant is in relation to grant of
service benefits from the date of termination of the services of the said doctors, which termination, as aforesaid, was set aside.
Learned Counsel for the Appellants submitted that there is now no scope of making fresh inquiry. Learned Counsel, however, submitted that
inquiry was made by the Inquiry Officer, appointed by the State, who also submitted a report. Admittedly, the said inquiry was not held on notice
to the said doctors. Inquiry report refers to only a telegram, said to have been sent. However, there is no dispute that the said inquiry did not result
in an order being passed on the basis thereof. The question is, in such situation, what could be done by the Court.
Rule 108-B of the applicable Rules deals with the matter, which suggests that when a dismissed Government employee is reinstated but has
been fully exonerated, the period of absence from duty shall be treated as period spent on duty. The obligation to order, accordingly, rests in the
authority competent. In the instant case, authority competent, i.e, the Appellant-State, was asked to do so by the Division Bench when it interfered
with the order of termination. The Appellant-State did nothing.
Rule 108-BB of the Applicable Rules deals with suspension and provides that in case of death of the Government servant during the period of
suspension, his legal representatives shall be entitled to full pay and allowances for the period of suspension. Rule 108-BB though does not deal
with a reinstated dismissed Government servant, who is dealt with specifically by Rule 108-B, but the said Rule in turn also deals with a suspended
Government servant. By reason of non action on the part of Appellants, the Appellant-State has created such a situation that it is now not possible
to hold that in the inquiry the said doctors could not be fully exonerated. That being the situation, we feel that what has been done by the judgment
and order under appeal, the same could only be done in the facts and circumstances of the case.
Learned Counsel appearing in support of the appeal drew out attention to a judgment of Hon'ble Supreme Court rendered in case Bhagwan Lal
Arya v. Commissioner of Police, Delhi and Anr. reported in AIR 2004 SCW 2288. In that case, Hon'ble Supreme Court after holding that
punishment of removal from the service is not only highly excessive and disproportionate, but is also not permissible to be imposed as per service
rules, instead of remitting back the matter to disciplinary authority, while setting aside the order of punishment of removal, directed not to count the
period spent from the date of removal until the date the person concerned reports back as the period spent on duty. Learned Counsel submitted
that the same recourse should have been taken in the instant case, too. As it appears to us, considering the nature of the case Hon'ble Supreme
Court was of the view that while punishment of removal from service was interferable, it did not say that the matter was such that there was no
ingredient to proceed departmentally against the delinquent. On the other hand, Hon'ble Supreme Court clearly felt that the matter in the normal
circumstances should have gone back to the disciplinary authority, but in order to shorten the life of litigation, it itself imposed the punishment by
ordering non treatment of the said period as period spent on duty while interfering with the order of removal. In the instant case, as aforesaid, the
matter cannot be proceeded departmentally, as fresh inquiry or further inquiry or extended inquiry, cannot be held now. This judgment, therefore,
appears to be not applicable to the instant case.
We, accordingly, refuse to admit the appeal.