G. George Paracken, Member (J) - (1.) THE applicant was initially appointed as a Casual Labourer with the Railways in the year 1978 -79. Later on, he was granted temporary status w.e.f. 01.01.1984. Subsequently, he was also regularized as a Group -'D' employee. While he was working as Gateman at Jind Station, he was medically de -categorized from his original post w.e.f. 24.1.2004 and he was placed on supernumerary post till he was given an alternative post. According to him, since he was not given any alternative post for over three years, on the instigation of his Unit In -charge, he, vide application dated 31.10.2007, applied for voluntary retirement from service with the request to give appointment to his ward on compassionate ground. The respondents accepted his aforesaid request vide their letter dated 20.8.2008. Later on, vide Annexure A -1 order dated 23.03.2009, they cancelled his voluntary retirement on the ground that he did not have 20 years of qualifying service and put him back in service, vide Annexure A -2 order dated 18.9.2009. However, they have decided to treat the intervening period from 20.8.2008 to 29.3.2009 as dies non. The applicant's grievance is against the aforesaid decision of the respondents. The applicant challenged the aforesaid decision on the ground that the respondents have granted him voluntary retirement only after more than a year after he had made the representation for the same and it was granted with retrospective effect, which was quite illegal. He has also stated that the aforesaid decision of the respondents is in contravention of Chapter XVIII of Indian Railway Establishment Code Vol. II, Para 1805 which reads as under: - 1805. (i) If on a review of the case referred to in Rule 1802 (a), 1803(a) and 1804(a), either on representation from the Railway servant retired prematurely or otherwise, it is decided to reinstate the Railway servant in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement as duty or as leave of the kind due and admissible, including extra -ordinary leave, or by treating it as dies non depending upon the facts and circumstances of the case: Provided that the intervening period shall be treated as a period spent on duty for all purposes including pay and allowances, if it is specifically held by the authority ordering reinstatement that the premature retirement was itself not justified in the circumstances of the case, or if the order of premature retirement is set aside by a Court of law.
(2.) THE respondents have filed their reply. They have stated that the applicant's voluntary retirement w.e.f. 20.8.2008 was treated as cancelled "as his qualifying service was found to be less than the required minimum length. They have also stated that as per the provisions contained in Para 1805 (1) of IREC Vol. II, the authority ordering reinstatement can regulate the intervening period between the date of premature retirement and the date of reinstatement as duty or as leave of the kind due and admissible, including extra -ordinary leave, or by treating it as dies non depending upon the facts and circumstances of the case. We have heard the learned Counsel for the applicant, Mr. H.P. Chakarvorty and the learned Counsel for the respondents, Mr. Sat Pal Singh. As submitted by both the learned Counsel for both the parties, Para 1805(1) IREC Vol. II gives the discretionary power to the Competent Authority to regulate the intervening period between the date of premature retirement and the date of reinstatement as duty or as leave of the kind due and admissible, including extraordinary leave, or by treating it as dies non, depending upon the facts and circumstances of the case. In the present case, there is no dispute regarding the circumstances under which the applicant was allowed to be retired, prematurely. The applicant had submitted his request for premature retirement way back on 31.10.2007. On receipt of the said request, it was for the respondents to examine the same in accordance with the rules and then to take appropriate decision. If his request was not covered under the rules, they should have rejected it immediately. Instead, what happened in this case is that the respondents, without properly examining his case, accepted his request and allowed him to proceed on voluntary retirement. From the aforesaid factual position, it is clear that the applicant has not played any fraud or made any misrepresentation in getting his request for voluntary retirement accepted. Even though the applicant has stated in his representation that he is eligible to be admitted to voluntary retirement, no responsible administration would accept it without examining the same as per rules. Therefore, in our considered view, primarily the respondents are responsible for accepting the request of the applicant for voluntary retirement without examining it as per the rules. It was in the aforesaid circumstances, the Competent Authority should have exercised its discretionary power available to him under Para 1805 of IREC Vol. II to reinstate the employee and treating the intervening period as on duty or as leave of the kind due and admissible including extra -ordinary leave or as dies non. in our considered view, the Competent Authority can treat the intervening period as dies non only in such circumstances where the employee concerned was primarily responsible for wrongly admitting him to voluntary retirement. However, in the present case, no one can say with responsibility that the applicant was mainly responsible for granting him premature voluntary retirement as against the prescribed rules. We, therefore, allow this O.A. and quash and set aside the impugned orders dated 23.3.2009 and 13.9.2009 to the extent of treating the intervening period from 20.08.2008 and 23.03.2009 as dies non. However, we leave it to the discretion of the Competent Authority to regulate the aforesaid period in terms of the provisions contained in Para 1805 (1) IREC Vol. [I except by treating the same as dies non. The Competent Authority of the respondents shall also pass appropriate orders in the aforesaid terms under intimation to the applicant, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.;