Dr. Alka Teja vs The State Of Madhya Pradesh
2021 Latest Caselaw 2749 MP

                             1                                    W.P. No. 9401/2021



     THE HIGH COURT OF MADHYA PRADESH
                         W.P. No.9401/2021
                      (Dr. Alka Teja v. State of M.P. & Others)



Jabalpur, dated 28.06.2021
      Shri V.D.S. Chouhan, learned counsel for the petitioner.
      Shri Piyush Dharmadhikari, learned Govt. Advocate for the
respondents/State.

Learned counsel for the petitioner is heard on the question of admission.

The petitioner has filed this petition is under Article 226 of the Constitution of India, questioning the validity of the order dated 09.02.2021 (Annexure P/4) whereby the respondent no.2 in pursuance to the direction issued by this Court in W.P. No. 2056/2019 on 26.02.2019 directed the respondents to consider the case of the petitioner and pass appropriate order in the light of the judgment passed by this Court in case of Mahesh Kumar Shrivastava Vs.State of M.P. reported in 2007(3) M.P.H.T. 362 wherein the Court has observed that dies-non is a major punishment and cannot be passed without conducting a regular departmental enquiry.

The respondents thereafter passed the impugned order after giving opportunity of hearing to the petitioner asking her reply and considering the said reply, declaring the period of her absence of 529 days as dies non.

Learned counsel for the petitioner submits that the order is liable to be set aside on the ground that the same has not been decided as per the direction of the Court and the law laid down by the High Court in the case of Mahesh Kumar (supra) has not been followed and the claim of the petitioner has been decided by the authority only after seeking explanation/reply from her but that is not the requirement of law for imposing the punishment of dies non because the High Court in the case of Mahesh Kumar (supra) has clearly laid down that the same is a major punishment and cannot be imposed without conducting a regular departmental

enquiry. He further submits that the order, therefore, is contrary to law and deserves to be set aside.

Shri Piyush Dharmadhikari, learned Govt. Advocate appearing for the respondents/State although opposed the submission made by learned counsel for the petitioner but is not in a position to distinguish the legal position as has been laid down by the High Court and also not in a position to contradict the factual position that the authority has not followed the order passed on earlier occasion in W.P. No. 2056/2019. The law laid down by the High Court in case of Mahesh Kumar (supra) in paras 5 to 12 is relevant which reads as under:-

"5. The petitioner who appeared in person submitted that dies non amount to major penalty because the period is not counted for leave, salary, increment and pension and it cannot be imposed without a regular departmental enquiry. In support of his contentions the petitioner relied on the judgments of this Court reported in Battilal v. Union of India and Ors. 2005 (3) M.P.H.T. 32 (DB) and also in Dr. Anil Kumar Varma v. State of Madhya Pradesh and Ors. 2005 (1) M.P.H.T. 24 (NOC).

6. Contrary to this the learned Deputy Government Advocate has submitted that a show-cause notice was issued to the petitioner and thereafter, impugned order of dies non has been passed and the dies non is not a major punishment as mentioned in M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. Hence, the order is as per law.

7. From the facts stated above, it is clear that no regular departmental enquiry has been held against the petitioner while passing the order of treating his absence of 240 days, i.e., from 24-11-2002 to 21-7-2003 as dies non. Earlier, when the salary of the petitioner for a certain period of 2003 was not paid to him, he filed a Writ Petition before this Court and this Court disposed of the petition of the petitioner with directions to respondents that either the salary of the petitioner be paid or reasons for non-payment be communicated to the petitioner. Thereafter, a show-cause notice was issued to the petitioner.

The petitioner submitted a detailed reply mentioning the facts that he was present and working in the office. In support of his contentions, he submitted various documents of his acts which he had done during the aforesaid period and the same

contentions have been negatived on the basis of report submitted by the General Manager, Industries by the authority in passing the order of dies non.

8. A Division Bench of this Court reported in Batiilal v. Union of India and Ors. (supra), has held as under with regard to dies non:

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 'dies non' will not count for leave, salary, increment and pension.

9. It is clear from the judgment of this Court that dies non means continuity of service but the period will not be counted for leave, salary, increment and pension. It means that due to the order of the dies non the pension of the employee will be reduced.

10. The learned Single Judge of this Court held in the case of Dr. Anil Kumar Varma v. State of Madhya Pradesh and Ors. (supra), as under with regard to dies non:

2. Annexure A-1, dated 12-5-1997 is impugned order in this petition. On going through this order, it is gathered that the period in between 8-8-1990 to 22-3-1993 has been treated as dies-non. The order of dies-non is stigmatic in nature for simple reason that the said period would not be counted in the entire service period of an employee and that period would be counted as break in service and for that period salary is also not being paid to the delinquent employee. If a stigmatic order is being passed, holding a departmental enquiry is pre- supposed. Admittedly no departmental enquiry is being conducted in the present case and, therefore, the impugned order cannot be allowed remain stand and the same is hereby quashed.

11. Rule 10 under Part V of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribes penalties, which are as under:

10. Penalties.-- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant,

namely:

Minor penalties:

(i) Censure;

(ii) Withholding of his promotion;

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;

(iv) Withholding of increments of pay or stagnation allowances;

(v) Reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not, the Government servant will earn increments of pay or the stagnation allowance, as the case may be, during the period, on such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance; Note: The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a Government servant of account of grant of stagnation allowance of any.

(vi) Reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service;

(vii) compulsory retirement;

(viii) removal from service which shall not be a disqualification for future employment under the Government;

(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;

Explanation : The following shall not amount to a penalty within the meaning of this rule, namely:

(i) withholding of increments of pay of a

Government servant for his failure to pass any departmental examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the terms of his appointment;

(ii) stoppage of a Government servant at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar;

(iii) non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a service, grade or post for promotion to which he is eligible;

(iv) reversion of a Government servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post or on any administrative ground unconnected with his conduct;

(v) reversion of a Government servant, appointed on probation to any other service, grade or post, to his permanent service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;

(vi) replacement of the services of a Government servant, whose services had been borrowed from the Union Government or any other State Government, or an authority under the control of any Government, at the disposal of the authority from which the service of such Government servant had been borrowed;

(vii) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement;

(viii) termination of services:

(a) of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or

(b) of a temporary Government servant

appointed until further orders on the ground that his services are no longer required; or

(c) of a Government servant, employed under an agreement, in accordance with the terms of such agreement.

12. It is clear from the aforesaid Rule 10 that major penalty includes reduction of lower time of scale of pay. In the case of dies non when the pension of an employee will be affected then certainly in my opinion it would amount to major penalty and for that purpose as per the provision of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, a regular departmental enquiry is necessary and since in the present case no regular departmental enquiry is being conducted. Hence, the order of dies non is bad in law."

(Emphasis supplied)

Considering the legal position laid down by the High Court, as above, I am of the opinion that the impugned order is not sustainable in the eye of law, therefore, it is set aside.

Ex consequentia, the petition is allowed. However, liberty is granted to the respondents to decide the period of absence of the petitioner by conducting a regular departmental enquiry, if they are of the opinion that the said period has to be declared as dies non.

(SANJAY DWIVEDI) JUDGE

rao

Digitally signed by SATYA SAI RAO Date: 2021.07.02 17:28:23 +05'30'