State Of Rajasthan @APPELLANT@Hash Rajendra Kumar Bhola

Month,Year,Dated,Days

August,",1991,20.8.91 to 31.8.91,12

Sept.,",1991,1.9.91 to 30.9.91,30

Oct.,",1991,1.10.91 to 31.10.91,31

Nov.,",1991,1.11.91 to 30.11.91,30

Dec.,",1991,1.12.91 to 31.12.91,31

Jan.,",1992,13.1.92 to 31.1.92,19

Feb.,",1992,8.2.92 to 29.2.92,22

March.,",1992,1.3.92 to 31.3.92,31

April.,",1992,1.4.92 to 30.4.92,30

May.,",1992,1.5.92 to 31.5.92,31

June.,",1992,1.6.92 to 30.6.92,30

July.,",1992,"1.7.92 to 25.7.92

29.7.92 to 31.7.92",28

Aug.,",1992,1.8.92 to 31.8.92,31

Sept.,",1992,1.9.92 to 30.9.92,30

Oct.,",1992,"1.10.92 to 16.10.92

18.10.92 to 31.10.92",30

Nov.,",1992,1.1.92 to 30.11.92,30

Dec.,",1992,1.12.92 to 31.12.92,31

Jan. to Dec.,",1993,1.1.93 to 31.12.93,"365

(Full

Year)

Jan. to Dec.,",1994,1.1.94 to 31.12.94,"365

(Full

Year)

Jan. to Dec.,",1995,1.1.95 to 31.12.95,"365

(Full

Year)

Jan.,",1996,1.1.96 to 23.4.96,113

The learned Single Judge has referred to the averments made in paragraphs 9 and 10 of the writ petition to hold that the appellants, impleaded as",,,

respondents, admitted that the respondent who was the writ-petitioner had filed a reply to the enquiry report. Punching the order of removal from",,,

service which records that no reply was filed to the report of the enquiry officer the learned Single Judge has held that it is a case of a complete non-,,,

application of mind.,,,

Now, the so called reply to the report of the enquiry officer has been noted by us hereinabove. It is no reply to the report of the enquiry officer.",,,

The reasoning of the learned Single Judge that after a reply is filed to the report of the enquiry officer the order passed by the disciplinary authority,,,

must show application of mind and in this case there was none, is noted and rejected by us in the instant case for the reason the respondent did not",,,

point out anything to the disciplinary authority concerning the report of the enquiry officer.,,,

We add a line more. If all material has been considered by the enquiry officer and the same contentions which were advanced before the enquiry,,,

officer are repeated before the disciplinary authority after the enquiry report is forwarded to the delinquent, it would be enough for the disciplinary",,,

authority to record that said contentions have already been dealt with in the enquiry report and the disciplinary authority concurs. But, where the",,,

evidence not considered in the enquiry report is highlighted or a reason is given as to why an inference is not permissible, then alone the disciplinary",,,

authority needs to give reasons while dealing with said contentions.,,,

As noted above, in the instant case, nothing of the kind has happened.",,,

This takes us then to the merits of the enquiry report and we find that the respondent i.e writ-petitioner admitted his absence as per the first,,,

charge but claimed to be medically unfit. He had to prove the same. But, he failed to prove the same.",,,

The impugned order is palpably erroneous and has to be set aside. But a problem has arisen. In the absence of any stay the respondent was,,,

reinstated in service and back wages directed to be paid by the learned Single Judge i.e. from the date when the respondent filed the writ petition till,,,

when it was allowed has been paid. Date of removal from service is 10.8.1998. Date of reinstatement would be somewhere after April 16, 2009. The",,,

respondent is now nearing the age of superannuation.,,,

For nearly 9 years after the impugned order was passed the respondent has worked.,,,

Balancing the equities we maintain the impugned order passed by the learned Single Judge. The result of which is respondent being already,,,

reinstated and having worked for 9 years the back wages as per the impugned order have already been paid but the period post removal from service,,,

i.e. 10.8.1998 till when the respondent was reinstated in service would not be counted as pensionable service.,,,

Declaring as above the appeal is disposed of.,,,