Himachal Pradesh High Court
Gian Chand vs State Of Himachal Pradesh And Ors on 16 May, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. : 6839 of 2020
Reserved on : 06.05.2025
Decided on : 16.05.2025
Gian Chand. ......Petitioner.
Versus
State of Himachal Pradesh and Ors. ...Respondents.
Coram
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1
For the petitioner : Mr. Prashant Sharma, Mr.
Vikrant Thakur and Ms.
Manish Thamta, Advocates.
For the respondents : Mr. Pratush Sharma, Additional
Advocate General.
Satyen Vaidya, Judge
By way of instant petition, petitioner has
prayed for following substantive reliefs:
1 Whether reporters of the local papers may be allowed to see the judgment?
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i) The respondents may be directed to not treat
the period of absence, w.e.f. 10.03.2018 to
24.09.2018 of 182 days as "DIES NON".
ii) The impugned orders dated 08.11.2018
(Annexure A/7), order dated 03.11.2009
(Annexure A/10) and order dated 08.04.2019
(Annexure A/12) may be held void and the
same may be set aside.
iii) The respondents may be directed to
commute/debit the period of absence 198
days, w.e.f. 10.03.2018 to 24.09.2018 from
the leave reserve account of the applicant as
medical leave, the applicant has sufficient 450
commuted leaves in his account.
iv) The respondents may be directed to pay the
salary to the applicant for the period of
absence of 198 days, w.e.f. 10.03.2018 to
24.09.2018 alongwith 9% interest from the
date of joining dated 24.09.2018.
2. Petitioner while posted as Head Constable
proceeded on sanctioned seven days special leave w.e.f.
23.02.2018. Petitioner extended his special leave for
eight more days for the period 02.03.2018 to 9.03.2018.
Petitioner did not join his duties w.e.f. 10.03.2018,
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however, the duties were resumed by petitioner
belatedly on 24.09.2018.
3. Petitioner had attributed the reasons for his
absence to his prolonged ailment. As per petitioner, he
had remained under treatment of Dr. Hemant Kumar
at 'NEEL KANTH' Multi-specialty Hospital Mandi.
4. Respondent No.4 by an order dated
08.11.2018 (Annexure A-7) ordered the period of
absence of petitioner from duty for 198 days w.e.f.
10.03.2018 to 23.09.2018 as period of "Unauthorized
absence" and regularized the same as under: -
Period Treated as
23.02.2018 to 09.03.2018 15 days special leave already
sanctioned in his favour, is hereby
cancelled and sanctioned 15 days
earned leave.
10.03.2018 to 23.09.2018 Un-authorized absence for 198
days is hereby treated as 'Dies Non'
under 25.1 CCS (Leave) Rule.
24.09.2018 01 day sanctioned as earned
leave
5. Another order came to be issued by
respondent No. 4 on 21.11.2018 (Annexure A-8) in
following terms: -
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"HHC Gian Chand No. 156 of this district
was absent from duty w.e.f. 10.03.2018 to
23.09.2018. The absence period of total 198
days w.e.f. 10.03.2018 to 23.09.2018 has been
treated as "DIES NON" vide this office order
Endst. No. 37648-52, dated 08.11.2018.
Hence, 198 days "DIES NON" period after
taking into account from the date of his annual
increment w.e.f. 01.06.2018, the same will be
deferred to 16.12.2018 as per FRSR-26(a). Now
he is entitled for the grant of annual increment
w.e.f. 16.12.2018 instead of 01.06.2018.
Order be published in Order Book."
6. Before passing aforesaid orders, respondent
No. 4 had issued a notice dated 16.10.2018 to the
petitioner requiring him to show cause as to why he had
not got further treatment from nearest Government
Hospital or any other Specialist from Government
Medical College, Nerchowk and I.G.M.C., Shimla.
Petitioner was required to submit his reply within five
days, failing which the right was reserved to presume
that petitioner had nothing to say and period of absence
was held liable to be treated as 'Dies Non' for all
purposes under CCS (Leave) Rules, 25.1.
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7. In response to the show cause notice,
petitioner submitted that during his sanctioned leave
between 23.02.2018 to 01.03.2018, he had a fall
resulting in injury and backache for which he visited
nearest clinic/hospital of Dr. B.D. Thakur, Retired
District Ayurvedic Officer for first aid as it was a holiday
on 01.03.2018. Petitioner had received first aid and was
advised rest for seven days. Petitioner had in such
circumstances applied for extension of leave upto
09.03.2018. Thereafter, the petitioner had also
consulted the Doctor at Zonal Hospital at Mandi on
02.03.2018 as the Government Medical College,
Nerchowk was not functioning at that time. Since,
petitioner did not recover, he consulted Specialist, Dr.
Hemant Kumar, M.D.(Medicine) at Neelkanth
Multispecialty Hospital, Mandi, H.P. Petitioner
continued to be treated in the said hospital from
09.03.2018 to 23.09.2018 for 'Asthmatic Bronchitis C'
with Hypertension. Petitioner was declared fit to resume
duty on 24.09.2018 and for such reasons, which
according to petitioner were beyond his control, he was
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unable to attend his duty w.e.f. 10.03.2018 to
23.09.2018.
8. Alongwith his response, petitioner also
submitted documents i.e. medical prescription slip of
Dr. B.D Thakur, medical prescription slip of Zonal
Hospital, Mandi, and medical prescription slip of
Neelkanth Multispecialty Hospital, Mandi, H.P.
alongwith treatment summary/fitness certificate.
9. Respondent No. 4, vide order dated
08.11.2018 held that the reply submitted by petitioner
was not convincing as the contents of said reply were
found contradictory to the contents of application
submitted by petitioner on 01.03.2018 for extension of
eight days special leave.
10. Petitioner assailed the orders dated
08.11.2018 (Annexure A-7), 21.11.2018 (Annexure
A-8) passed by respondent No. 4, by filing appeal before
DIG, Police Central Range, Mandi. Having remained
unsuccessful petitioner also filed revision petition before
Director General of Police, H.P. but the grievance of the
petitioner remained unredressed.
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11. I have heard learned counsel for the parties
and have also gone through the record of the case
carefully.
12. The main grouse of the petitioner is that
respondent No. 4 had passed orders dated 08.11.2018
and 21.11.2018 in violation of principles of natural
justice. Petitioner was condemned unheard. The
impugned orders were non-speaking and un-reasoned.
No inquiry was ever conducted.
13. There is no dispute on facts that the
sanctioned special leave of petitioner ended on
09.03.2018 and thereafter the petitioner had resumed
his duty on 24.09.2018.
14. It is the case of the petitioner that he had
informed respondent No. 4 by e-mail dated 09.03.2018
about his illness and the rest advised to him by Medical
Officer. A copy of e-mail has been placed on record as
Annexure P-2.
15. Respondent No. 4, vide order dated
08.11.2018 had ordered unauthorized absence for 198
days of petitioner to be treated as 'Dies Non' under
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Rules 25.1 of CCS (Leave) Rules. This order followed by
another order dated 21.11.2018 inter alia directing the
deferment of the date of annual increment of petitioner
from 01.06.2018 till 16.12.2018.
16. Under Rule 11 (iv) of CCS CCA Rules, 1965
withholding of increment of pay is a minor penalty.
17. In Mahesh Kumar Shrivastava Vs. State of
Madhya Pradesh and Ors., 2007 SCC Online M.P.
259, the Madhya Pradesh High Court has held that
when an authority directs any period to be treated as
'Dies Non', it means that continuity of service is
maintained, but the period treated 'Dies Non' is not
counted for leave, salary, increment and pension. Thus,
the order to treat any period of absence as 'Dies Non' is
also stigmatic.
18. Rule 16(1-A) of CCS CCA Rules, reads as
under: -
"(1-A) Notwithstanding anything contained in
Clause(b) of sub- rule(1), if in a case it is proposed
after considering the representation, if any, made
by the Government servant under Clause(a) of
that sub-rule, to withhold increments of pay and
such withholding of increments is likely to affect
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adversely the amount of pension payable to the
government servant or to withhold increments of
pay for a period exceeding three years or to
withhold increments of pay with cumulative
effect for any period, an inquiry shall be held in
the manner laid down in {sub-rules(3) to (24) of
Rule 14}, before making any order imposing on
the government servant any such penalty."
19. Thus, respondent No. 4 was obligated to hold
an enquiry in the manner laid down in sub-rules (3) to
(24) of Rule 14 of CCS CCA Rules before making an
order imposing the penalty of withholding of the
increment on the petitioner.
20. It can, otherwise, be seen that the petitioner
had not been afforded reasonable opportunity of being
heard. On receipt of reply of petitioner to the show cause
notice, petitioner was not afforded any opportunity to
prove his stand. Admittedly, disputed questions of fact
were involved but respondent No. 4 had proceeded to
reject the defence raised by petitioner without affording
him an opportunity to produce evidence in support
thereof. This clearly amounts to violation of principles of
natural justice.
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21. Thus, the orders dated 8.1.2018 (Annexure
A-7) and order dated 21.11.2018 (Annexure A-8) issued
by respondent No.4 cannot be sustained.
22. The Appellate and Revisional Authorities have
also failed to consider the effect of violation of principles
of natural justice and for such reason the order dated
03.01.2019, passed by DIG, Police Central Range,
Mandi, H.P. in appeal of the petitioner, Annexure A-10
and order dated 08.04.2019, Annexure A-12, passed by
Director General of Police, H.P. also cannot withstand
the judicial scrutiny.
23. In result, the petition is allowed. The
impugned orders dated 08.11.2018 (Annexure A-7),
21.11.2018 (Annexure A-8), 03.01.2019 (Annexure A-10)
and 08.04.2019 (Annexure A-12) are quashed and set
aside. However, respondents shall be at liberty to
proceed against petitioner strictly in accordance with law
after adherence to the principles of natural justice.
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24. The petition is accordingly disposed of, so also
the pending miscellaneous application(s), if any.
(Satyen Vaidya)
16th May, 2025 Judge
(sushma)
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