Chattisgarh High Court

Dr.Gourishankar Patel vs State Of Chhattisgarh And Ors on 16 June, 2022

                                                                             WPS 89/2013
                                         -1-



                                                                         AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR
                                  WPS No. 89 of 2013
                                            Judgment reserved on 21.03.2022
                                           Judgment delivered on 16.06.2022

•   Dr. Gourishankar Patel S/o Shri Minketan Patel, aged about 56 years,
    Ayurved Medical Officer, presently posted at Primary Health Centre-
    Bade Bhandar, Block Pussore, District Raigarh Chhattisgarh
                                                               ------Petitioner

                                       VERSUS
1. State of Chhattisgarh Through The Secretary, Department of Health and
   Family Welfare, Mahanadi Bhawan, Naya Raipur, District Raipur
   Chhattisgarh.
2. Director, Department of Ayush, Old Nurses Hospital, Behind DKS,
   Bhawan, Raipur, Chhattisgarh.
3. District Ayurved Officer, Opposite Collectorate, Raigarh, District Raigarh,
   Chhattisgarh
                                                          -------Respondents

For Petitioner : Mr. K.N. Nande, Advocate For Respondent-State : Mr. Richa Shukla, Dy. Govt. Advocate

Single Bench: Hon'ble Shri Parth Prateem Sahu, Judge C.A.V. JUDGMENT

1. Petitioner aggrieved by the order dated 05.02.2009 whereby the period

from 11.12.2002 to 13.02.2005 (794 days) has been declared to be

dies-non on account of unauthorised absence from service has filed this

writ petition with the following reliefs:

"10.1 That, the impugned order dated 05.02.2009 deserves to be set-aside and quash on the ground as narrated supra.

10.2 That the respondents may be directed to pay salary to the petitioner for 794 days alongwith other service benefits as per the petitioner entitlement.

10.3 that as the petitioner was treated diaznon for the period of 794 days, his seniority may be maintained and regularized. Other benefits in relating the seniority may be afforded to him.

10.4 That, the leave, which is left with the petitioner, details of which have been stated WPS 89/2013

above may kindly be adjusted against the leave period of 794 days and accordingly the impugned order may be set-aside.

10.5 Any other relief, which this Hon'ble Court may deem fit and proper, may also be passed in favour of the petitioner together with cost of the petition."

2. Learned counsel for petitioner submits that petitioner was appointed as

Ayurvedic doctor on 01.07.1987, since then he was continuously

working on the said post. He was transferred vide order dated

11.11.2002 from Ayurvedic Hospital, Lendhra, Raigarh to Ayurvedic

Hospital, Balangi Surguja. He challenged the order of transfer wherein

interim protection was granted to him of not relieving the petitioner if he

has already been not relieved. Petitioner was relieved ex parte but no

notice was served upon him. On 25.04.2003, petitioner was served with

the charge-sheet, enquiry was conducted and the enquiry officer

submitted its report that all the three charges levelled against him were

not found to be proved. The disciplinary authority considering the

enquiry report has held that the charge No. 3 was found to be proved

as he was absent unauthorizedly knowingly and has directed for

recording "Service Warning" in his confidential report and the case was

closed. Prior to it, the transfer order was modified, consequently writ

petition filed by petitioner challenging the order of transfer was

withdrawn on 25.09.2006 as having become infructuous. Petitioner

thereafter submitted an application for payment of salary. Respondents-

authorities surprisingly issued the order impugned declaring the period

from 11.12.2002 to 13.02.2005 ie., 794 days to be dies-non on account

of his unauthorized absence from service during that period. Petitioner

submitted representation with a prayer for cancellation of order which

came to be dismissed on 17.03.2009. Petitioner thereafter again

submitted representation on 05.05.2011 vide Annexure P-7 and

representation dated 12.12.2011 vide Annexure P-8 for review of order/ WPS 89/2013

decision taken for the period of his absence. The said representations

were not decided. He contended that the Respondents-authorities have

already passed an order of punishment of making entry of "Service

Warning" in his confidential report, hence, further penalty/ punishment

of declaring the period of unauthorized absence as dies-non is illegal

and arbitrary. He also contended that before issuance of order

impugned declaring the period of 794 days as dies-non, no show-cause

notice was issued to petitioner providing him an opportunity to make his

submission/ defence on the action proposed against him, hence, the

order passed by the authority is in violation of principles of natural

justice.

3. Ms. Richa Shukla, learned State counsel opposing the submission of

counsel for petitioner would submit that the departmental enquiry as

pointed out by petitioner was conducted for three charges of which the

enquiry officer submitted its report mentioning that all the three charges

were not found to be proved. The disciplinary authority accepted the

enquiry report with respect to two charges and with regard to charge

No. 3 held it to be proved as the petitioner remained absent from the

duty unauthorizedly. In the enquiry, absence of petitioner was proved

and therefore applying the principle of no-work no-pay he is not entitled

for payment of any salary. There is no arbitrariness or illegality in the

order passed against petitioner of declaring the period of 794 days as

dies-non. She further submits that there is delay in filing the writ petition

as the order impugned is dated 05.02.2009 whereas the writ petition is

filed in the month of January 2013. There is no substance in the writ

petition, hence, it deserves to be dismissed.

4. I have heard learned counsel for the parties and also perused the

record of writ petition.

5. Sofar as, the submission made by learned State counsel with regard to WPS 89/2013

delay in filing of petition is concerned, petitioner after issuance of

impugned order dated 05.02.2009 had submitted representation which

came to be dismissed and thereafter petitioner submitted

representations in the Month of May 2011 and December 2011 for

reviewing the order dated 17.03.2009 (rejecting the representation

against the impugned order). The said representation for review was

not decided. In the aforementioned facts of the case, I am of the view

that it cannot be said that petitioner has filed this petition with inordinate

delay when the suffering of petitioner is continuous and interest of any

other employee is not going to be affected if petition is allowed. In view

of above the ground of delay in filing of petition raised by respondent is

merit less and it is repelled.

6. Annexure P-3 filed along with writ petition is enquiry report submitted

by enquiry officer on 17.05.2006 recording that none of the three

charges levelled against petitioner were proved. Disciplinary authority

vide Annexure P-2 dated 11.01.2008 mentioned that Dr. D.K. Kataria

has been appointed as enquiry officer who submitted its report on

21.08.2006 and found all the three charges not to be proved against

petitioner. The disciplinary authority was not satisfied with the report

and has recorded that the charge No. 3 has been found to be proved

which was with respect to unauthorized absence of petitioner and

recorded "Service Warning" in the confidential report of petitioner. It

appears that the disciplinary authority disagreed with the finding of the

enquiry report and has passed the order on 11.01.2008. Order

Annexure P-1 is dated 05.02.2009 of declaring the period of 794 days

of unauthorized absence from 11.12.2002 to 13.02.2005 as dies-non.

From reading of impugned order it does not reflect that any show-cause

notice was issued to petitioner or the order has been passed after

considering the reply if any submitted by petitioner. The State

Government issued circular on 02.02.2000 wherein issuance of notice WPS 89/2013

to the concerned employee before passing of order of dies-non is made

essential. Another circular is dated 16.08.2000 issued by the State

Government mentions for issuance of show-cause notice for declaring

the period to be break-in-service/ dies-non. Relevant portion of both the

above-said circulars is extracted below for ready reference:

Circular dated 02.02.2000:

"3. अनधधिकृत रू से एक माह से अधधिक अवधधि तक अनुूसससत रहने वाले उूरोक सभी पकार के शासकीय सेवको को उनके दारा ददए गए अवकाश काल के ूते व अंधतम ज्ञात ूते दोनो ूर ही सefना ूत भेजा जाना fादहए दक वह 15 ददवस मे कारस बताए दक उसकी उक अनधधिकृत अनुूसससधत को ूेशन, उूदान आदद समसत उदेदयो के ललए क्यों न सेवा मे वायवधिान माना जाए ।ा यदद वह दी गईी अवधधि मे उधfत कारस नही बता ूाते है तब उनकी सेवा मे वायवधिान मानते हुए उनकी सेवा ूुससतका मे इन्ाज दकया जाए ।ा उनकी सेवा मे इस वायवधिान का असर यह होगा दक समसत पयोजन, जजनमे ूेशन संबंधिी लाभ भी ससममललत है , के ललए उनकी तब तक की सेवा का हरस हो जाएगा ।ा"

Circular dated 16.08.2000:

"7. एक माह से अधधिक अवधधि तक अनधधिकृत अनुूसससत रहने वाले शासकीय सेवको को उनके दारा ललए गए अवकाश काल के ूते व अंधतम ज्ञात ूते दोनो ूर ही सefना ूत भेजा जाना fादहए दक वह 15 ददवस मे कारस बताए दक उक अनधधिकृत अनुूसससधत को ूेशन , उूदान आदद समसत उदेदयो के ललए क्यों न सेवा मे वायवधिान माना जावे ।ा दी गईी अवधधि मे कारस न बताये जाने ूर सेवा मे वायवधिान मानते हु ए सेवा ूुससतका मे इन्ाज दकया जाएगा ।ा इस वायवधिान का असर यह होगा दक समसत पयोजन, जजनमे ूेशन संबंधिी लाभ भी शादमल है, के ललए उनकी तब तक की सेवा का हरस हो जाएगा ।ा"

7. In the reply filed by the State Government to the writ petition, there is

no averment that any notice whatsoever for taking action against

petitioner of declaring the period of unauthorized absence to be dies-

non was issued, neither in the impugned order there is any discussion

to this effect. Hon'ble Supreme Court while considering the order of

break-in-service, in case of Shiv Shanker and another v. Union of

India and other reported in (1985) 2 SCC 30 has held as under:

WPS 89/2013

"....Admittedly this order was made without any notice to the petitioners and without giving them any opportunity to show cause against the action......"

"....The question before us is whether the principles of natural justice should be observed when an order of forfeiture of service on the ground of participation in an illegal strike is to be made. Neither para 1301 nor para 1304 of the Railway Establishment Manual excludes the observance of the principles of natural justice either expressly or by necessary implication. We, therefore, allow the writ petitions and quash the orders dated February 19, 1981, February 21, 1981 and February 18,1981 which have been filed as Annexures I, II and III of the writ petition. The writ petitions are allowed as indicated."

8. In the case of Dr. N.S. Patel v. State of Chhattisgarh and others

passed in WPS No. 4922/2010, this Court considering the judgment

passed by High Court of Madhya Pradesh in the matter of Ali Hussain

Asgar Ali v. State of M.P. and another reported in 1984 JLJ 67 and in

Battilal v. Union of India and others reported in (2005) 3 MPHT 32

(DB) has held thus:

"12. In the matter of Ali Hussain Asgar Ali v. State of M.P. and another, 1984 JLJ 67, the M.P. High Court while dealing with Rule 24 of the Madhya Pradesh Leave Rules, 1977, held as under: -

"It is clear that sub-rule (1) provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it has been further provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due and the period in excess of such leave due being treated as extra-ordinary leave. Sub-rule (2) further provides that willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the leave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under sub-rule (2) of Rule 24. It could not be contended that the orders which were WPS 89/2013

passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21-7-1979. It is also not in dispute that if the State Government has chosen to act under sub-rule(2) of Rule 24, then it was necessary to follow the procedure of inquiry, which admittedly has not been done in this case. If it was chosen to act under sub-rule (2) then disciplinary action could only be taken after following the proper procedure. Admittedly, before passing of this order dated 21-7-1979 even a notice was not issued to the petitioner to pass such an order. It is, therefore, plain that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed under Article 309 of the Constitution of India."

13. Similarly, in a decision rendered in the matter of Battilal v. Union of India and others, 2005 (3) MPHT 32(DB), which appears to have been taken into consideration in earlier decisions, the High Court of Madhya Pradesh while considering the meaning of dies-non pertinently held as under: -

"3......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."

14. Thus, from perusal of the Rules and the law laid down by the Madhya Pradesh High Court in Battilal's case (supra), it would appear that to declare the period of absence from duty of a public servant in violation of Rule 7 of the Conduct Rules, 1965 and further to declare the period of absence as dies-non are punitive order and it cannot be passed without WPS 89/2013

proceeding departmentally in view of the procedure laid down under the provisions of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966. In the case in hand, the State Government straightway passed the order holding the petitioner guilty of Rule 7 of the Conduct Rules, 1965 and declaring the period of absence as dies-non without affording opportunity of hearing to him. The consequence would be, the order of the State Government dated 7-5-2005 becomes vulnerable and it is hereby quashed. However, liberty is reserved in favour of the respondent authorities to initiate departmental enquiry against the petitioner and proceed to take appropriate action against him in accordance with law and on its own merits."

9. In case of Basanti Joshi v. State of Chhattisgarh and others

passed in WPS No. 375/2010, this Court considering the case of

Battilal (supra) of High Court of Madhya Pradesh has held thus:

"7. A similar view has also been taken by this Court in the case of Bal Krishna Tamrakar v. State of Chhattisgarh and others, W.P. 4328/2004 decided on 31.03.2010, referred to by the Petitioner so also in the case of Smt. Mrudula Rishi v. State of Chhattisgarh & Ors., decided on 30.10.2013 in W.P. No. 101/2006.

8. In view of the afore cited authoritative decisions of this Court so also the Division Bench decision of the Madhya Pradesh High Court, in the opinion of this Court the order of dies-non which has an effect of major punishment and also adversely affects the pensionary benefits so also the retiral benefits payable to the Petitioner on her retirement. The least that is expected from the Government is that on an order of such nature which has an adverse civil consequence on the Government employee, an opportunity of hearing ought to had been provided to the employee. In the absence of any such proceeding being drawn the impugned order of the Government treating the period between 6.12.2005 to 25.4.2007 as dies-non is not sustainable and the same deserves to be is accordingly set aside/quashed."

10. In the case at hand also, there is no pleading and material to show that

petitioner was served with show-cause notice before passing the

impugned order. The effect of the order of declaring the period of

absence to be dies-non is having an adverse civil consequence upon WPS 89/2013

the petitioner and therefore before passing any order against the

employee/ petitioner, he ought to have been provided an opportunity of

hearing. In absence of any such proceeding initiated by the

Respondents-authorities the impugned order Annexure P-1 dated

05.02.2009 treating the period between 11.12.2002 to 13.02.2005 as

dies-non is passed in violation of principles of natural justice hence it is

not sustainable and the same is liable to be and accordingly it is

quashed/ set aside. Consequence to follow. Respondents-authorities