@JUDGMENTTAG-ORDER
R.V. Raveendran, C.J.@mdashThe petitioner was appointed as an Unskilled Labourer on 26-12-1976. Disciplinary proceedings were initiated against him in regard to a charge of making bogus LTC claim without actually undertaking the journey, culminating in imposition of punishment of compulsory retirement by order dated 2-7-1994, which was affirmed by the Appellate Authority. That was challenged by the petitioner in O.A. No. 124 of 1997 before the Central Administrative Tribunal, Bench Jabalpur. The Tribunal by order dated 1-11-2002 disposed of the matter with a direction to the Appellate Authority only to reconsider the case of the petitioner in regard to quantum of punishment on the ground that in the case of some similarly placed the employees, a penalty of compulsory retirement had been reduced to a lesser penalty. In pursuance of the said order, the Appellate Authority reconsidered the matter and passed the following order on 28-1-2003 :--
".....In deference to the observations made by CAT regarding differential treatment meted out to the appellant, the undersigned has re-appreciated the case and after proper examination has decided to moderate the penalty of compulsory retirement to reduction of pay to the minimum of the pay scale for a period of 3 years with cumulative effect with the stipulation that the intervening period between the date of compulsory retirement and the date of re-instatement shall be treated as dies-non and no back-wages shall be payable for the period in question."
In pursuance of the order dated 28-1-2003, the petitioner was reinstated by order dated 21-2-2003 by treating the period between 2-7-1994 to 20-2-2003 as dies-non.
2. Feeling aggrieved, the petitioner again approached the Tribunal in O.A. No. 44 of 2004 for quashing the order dated 28-1-2003 and 21-2-2003 to the extent it treated the period from 2-7-1994 to 22-2-2003 as dies-non and denied pecuniary benefits and consequentially for quashing the order dated 12-6-2003 regarding recovery of pension that was paid from 2-7-1994. He also sought a declaration that the said period should either be treated as period on salary or the period during which he was entitled to half salary. The said application has been rejected by the Tribunal by order dated 17-12-2004, which is under challenge in this petition.
3. The petitioner contends that when an order of compulsory retirement or termination is set aside in pursuance of the order of the Court and the delinquent employee is reinstated, the period between the date of termination to the date of reinstatement should be regularised and he should be paid pay and allowances in accordance with the relevant rules. In that behalf, the petitioner relied on FR 54-A (1), which reads as under :--
"F.R. 54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowance in accordance with the provisions of Sub-rule (2) or (3) subject to the directions, if any, of the Court."
A careful reading of the said clause would show that it applies only where the order of dismissal, removal or compulsory retirement is set aside unconditionally by a Court of Law and the Government servant is reinstated without holding any further inquiry and without any further consideration relating to punishment. It does not apply where the punishment imposed is set aside by a Court or a Tribunal with a direction to impose a lesser punishment. Where the Tribunal directs the authority to consider and impose a lesser punishment than what is imposed, the matter is wholly within the discretion of the authority who decides on the punishment, subject only to the condition that the punishment should be lesser than the earlier punishment. Therefore, FR 54-A would have no application. The authority imposing the punishment can direct how the period when the employee was out of service shall be treated. When the Authority directs that the period will be treated ''dies-non'', it means that continuity of service is maintained, but the period treated as ''dies-non'' will not count for leave, salary, increment and pension. In fact, F.R. 54 (1) casts such a duty on the authority. It provides that when a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review, the authority competent, to order reinstatement shall consider and make a specific order--
(a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
4. The petitioner next referred to the Government instructions noted under Rule 11 of the CCS (CCA) rules in (Swamy''s Compilation) clarifying that marking of dies-non by the leave sanctioning authority is permissible, only in three circumstances, namely (a) when the official remains absent from duty without prior information; (b) when on duty in office, the official leaves the office without proper permission; and (c) the official remains in office, but refuses to perform duty assigned to him. According to the petitioner, ''dies-non'' can be marked only in the said three situations and not otherwise. The entire contention is misconceived and if we may say so, absurd. The three instances were referred, while clarifying that marking of dies-non is not permissible for late coming. It has nothing to do with the period between the date of termination and reinstatement being treated as dies-non, where an employee is reinstated as a consequence of imposition of a lesser punishment. The Disciplinary Authority or the Appellate Authority, while imposing a lesser punishment in pursuance of the order of the Tribunal has full authority to direct how the period between the date of termination to date of reinstatement is to be treated and pass appropriate orders thereon. In this case the Appellate Authority has considered the matter and directed that the said period be treated as dies-non. Therefore, the question of interfering with it does not arise as there is no legal infirmity in the order.
5. The petitioner next contended that if the period between 2-7-1994 and 20-2-2003 was treated as dies-non, it would mean that he will not get any salary for the said period and the said period will also not be treated as qualifying service for purpose of pension, and that would cause hardship to him. The petitioner was earlier compulsorily retired. He should count himself lucky that in spite of the charge of production of fake documents for claiming benefit of LTC being proved, the Tribunal was kind enough to direct lesser punishment than compulsory retirement resulting in reinstatement. The petitioner should not expect more.
6. The petitioner is absolutely without merit and is dismissed.
