The main legal point established is that an employee should not be arbitrarily deprived of discharging his duties, and if so, should be entitled to back wages.

( 1 ) HEARD Sri A. K. Srivastava, learned counsel for the petitioner-respondents No. 1, 2 and 3 are represented by Sri Tarun Verma, who has accepted notice vide endorsement on the petition, dated February 5, 2004.

( 2 ) ALL the respondents are represented. 1 his petition can be decided without calling for the counter and rejoinder affidavits. We decide this petition under Article 226 of the constitution of India, finally, at the admission stage itself, as contemplated under Chapter xxii Rule 2 (1), second proviso, Rules of the court, 1952.

( 3 ) PETITIONER, Sunder was serving as casual labour with temporary status in North eastern Railway, Gorakhpur. He was served with a memorandum of charge sheet on september 6, 1989 proposing major penalty on the charge of unauthorised absence. Petitioner claimed that he was never served with charge sheet. The Departmental inquiry proceeded. The Enquiry Officer submitted his report dated april 17, 1990 before Disciplinary Authority which considered it and passed following order:"on careful consideration of the enquiry Officers report; i agree with the findings of the E. O. I have come to the conclusion that Shri sunder son of Ghunai is not a fit person to be retained in service and I have decided to impose on Shri Sunder the penalty of removal from service. "

( 4 ) BEING aggrieved, petitioner filed O. A. No. 1087 of 1996 Sunder v. Union of India and others before the Central Administrative tribunal, Allahabad Bench, Allahabad (hereinafter called "the CAT" ).

( 5 ) AN objection was taken regarding delay. The said O. A. has been allowed in part. vide impugned judgment and order dated november 11, 2003 inasmuch it has directed that the petitioner shall be reinstated on the post with continuity in service but the petitioner shall not be entitled to back wages.

( 6 ) BEING aggrieved, the petitioner has approached this Court and filed this writ petition challenging the above impugned judgment and order dated November 11, 2003/ annexure ,"1" to the Petition.

( 7 ) WE have heard the learned counsels for the parties and perused the writ petition.

( 8 ) AT the outset, we reproduce paragraphs 2, 3 and 4 of the writ petition, which read:"2. That the petitioner, was appointed as khalasi under respondent No. 3 on June 16, 1978 and after completing about 6 years of i service the petitioner was given temporary status w. e. f. March 29, 1984. The petitioner was a regular Railway employee till he was illegally removed from service on April 17, 1990. The petitioner rendered continuous service till his removal and there was no complaint against the petitioner of any kind. The petitioner has completed the age of 54 years. The petitioner was not employed anywhere and was solely dependent on daily wage mason income which the petitioner was compelled to do during the period he was out of service and had no other income at all. 3. That the petitioner who was employed as khalasi, on October 22, 1988, suddenly fell ill due to liver pain, was taken to the railway Hospital, Gorakhpur and was advised by the Doctor for complete check up and the petitioner was admitted in railway Hospital on November 1, 1988 vide bht No. 54435. The petitioner could inform the respondent No. 3 nor he could apply for leave and the petitioner was treated as absent from duty without leave. 4. That from the Railway Hospital the petitioner was referred to another Doctor for treatment and it took time when he was fully declared fit by the doctor, and on october 20, 1989 the petitioner reported for duty to the respondent No. 3 but he was not allowed to resume duty. The petitioner was ready to work but was not allowed to work. There was no ground for not permitting the petitioner from performing his official duty. It is important to mention here that under the similar circumstances some other employees were removed from service and they were reinstated in service with all back wages. "

( 9 ) NO counter affidavit filed though copy of t