Smt. Shashi Jain vs The State Of Madhya Pradesh
2023 Latest Caselaw 5471 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                                                  ON THE 3 rd OF APRIL, 2023
                                              WRIT PETITION No. 21449 of 2018

                           BETWEEN:-
                           SMT. SHASHI JAIN W/O LATE DR. K.K. JAIN, AGED 63
                           YEARS, OCCUPATION: HOUSE WIFE R/O AKASHDEEP,
                           SHIV SHAKTI NAGAR, WARD NO. 31, T.V. TOWER ROAD,
                           SHIVPURI DISTRICT SHIVPURI (MADHYA PRADESH)

                                                                                          .....PETITIONER
                           (BY SHRI D.P. SINGH - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 PRINCIPAL SECRETARY DEPARTMENT OF
                                 HIGHER EDUCATION MANTRALAYA GOVT. OF
                                 M.P. VALLABH BHAWAN, BHOPAL (MADHYA
                                 PRADESH)

                           2.    THE COMMISSIONER HIGHER EDUCATION
                                 D EPARTM EN T SATPURA BHAWAN BHOPAL
                                 (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI PRABHAT PATERIA - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                           following:
                                                              ORDER

The present petition under Article 226 of the Constitution of India has been preferred challenging the order dated 20.04.2012 whereby the intervening period from 21.12.2009 to 04.05.2010 of unauthorized absence of the husband of the petitioner Late Dr. K.K. Jain has been treated as 'dies non' which is affecting the pension of the husband of the petitioner and there upon is causing Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 03-04-2023 07:35:21 PM

her continuous monetary loss. The said order is further challenged on the ground that the order of 'dies non' has been passed by respondent no. 2 without holding any enquiry and without following the procedure as contemplated under Rule 14 of Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966 ("hereinafter to be referred as "Rules of 1966"). Thus, it is per se illegal and has been passed in excess of jurisdiction. The further challenge to the order dated 20.04.2012 is on the ground that the husband of the petitioner had preferred an appeal against the said before the State Government but the same has not yet been decided nor its outcome has been communicated to the petitioner, and thereafter, the husband of the

petitioner had, time and again, made various reminders but due to his illness he was unable to pursue his case, hence, the petitioner who is legal heir of Late Dr. K.K. Jain has filed the present petition.

Learned counsel for the petitioner submitted that the husband of the petitioner was initially appointed as an Assistant Professor on 04.09.1974 in the stream of Hindi and on attaining the age of superannuation, he retired from the post of Assistant Professor, Hindi from Government P.G. College, Shivpuri on 31.10.2015 and due to severe ailment of his kidney he expired on 26.09.2018. While, the petitioner was going through the service record of her husband she found that her husband was subjected to penalty of 'dies non' from the period 21.12.2009 to 04.05.2010 against which he had preferred an appeal but no documents of appeal were available in the record and therefore, it could not be gathered what happened to the appeal which was preferred by the husband of the petitioner or whether appeal was even preferred by him. During the scrutiny of the record, the petitioner also came through some documents relating to deciding of the leave application submitted for grant of leave for the intervening Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 03-04-2023 07:35:21 PM

period which has been treated as 'dies non' along with some applications duly forwarded on 29.09.2011 by the Principal of the College and without taking the decision over leave applications, a show cause notice was issued by respondent no. 2 on 07.12.2011. It was also found that the husband of the petitioner had disputed the same and has produced the medical certificate and leave application which was initially forwarded on 09.06.2010 but even after receiving the same the authority has failed to take any decision without holding enquiry under Rule 14 of the Rules of 1966 and had treated the intervening period as 'dies non' and thus, challenging the same this present petition has been filed. Learned counsel for the petitioner while placing reliance on the judgment passed in the matter of Dr. Nemi Kochar Vs. State of M.P. & Ors. reported in 2007 (III) MPJR 41 contended that the order of 'dies non' can only be passed after holding an enquiry as contemplated under Rule 14 of the Rules of 1966. Thus, the order dated 20.04.2012 (Annexure P/1) issued by respondent no. 2 is patently illegal and is totally without jurisdiction, thus, deserves to be quashed.

Per contra, learned Govt. Advocate submits that 'dies non' is a kind of punishment inflicted on the government servant for the period of absence without prior sanction or approval of leave and as such since the husband of the petitioner has already expired, issue relating to punishment of 'dies non' cannot be adjudicated on behalf of the petitioner, who is wife of deceased

employee. It was further argued that a show cause notice was issued to the husband of the petitioner on 07.12.2011 seeking reply as to why the period of absence from 21.12.2009 to 04.05.2010 should not be treated as 'dies non' and the husband of the petitioner did not file reply to the show cause notice nor submitted any representation, therefore, vide order dated 20.04.2012 the

Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 03-04-2023 07:35:21 PM

impugned order has came to be passed and since the husband of the petitioner has not filed any reply to the show cause notice, it cannot be said there was failure of principles of natural justice on the part of the respondents as the opportunity of hearing was granted to the husband of the petitioner by way of a show cause notice but as no reply was filed, now, at this stage, the petitioner again coming up with a case that since no enquiry was conducted by the respondents, the penalty order was bad in law cannot be accepted. It was further argued that requirement of enquiry under Rule 14 is discretion of the disciplinary authority only after when there is factual dispute. Once show cause notice was issued which was not replied, it can be said that averments to the show cause notice were accepted/admitted and thus, the order of penalty was inevitable and therefore, the petition is misconceived without merits and deserves to be dismissed.

Heard counsel for the parties and perused the record. The issue with regard to the fact that any punishment of 'dies non' is a major penalty and in cases of major penalty it is mandatory to conduct a full- fledged enquiry and only after enquiry any punishment can be imposed. It is also well settled that the order of 'dies non' is stigmatic in nature because the entire service period of an employee would be counted as break in service and therefore a full-fledged departmental enquiry is contemplated in the said situation merely stating that since no reply was filed which would amount to admission of facts & there was no factual dispute, cannot be accepted.

From the record, it is also not reflected that any charge-sheet was issued to the husband of the petitioner mentioning the specific charge with regard to the period which was declared as 'dies non' and in absence thereof this Court has no hesitation to hold that the very action of the respondents is dehors the Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 03-04-2023 07:35:21 PM

provisions of service jurisprudence. Such a harsh order which is based on alleged mis-conduct is stigmatic in nature and cannot be passed without holding a full-fledged enquiry. The same has been held by the Co-ordinate Bench of this Court in the matter of Dr. Nemi Kochar (supra) which has been relied by the learned counsel for the petitioner.

In view of the above, the order dated 20.04.2012 (Annexure -P/1) cannot be allowed to remain stand and same is hereby quashed. Let the pension of the husband of the petitioner be again re-fixed by treating the entire service period to be in continuity and re-fix the pension accordingly and also calculate the arrears and if it is found that some arrears are to be paid to the petitioner, the same shall be paid with the interest @ 6% p.a. from the date of its approval till the date of its payment.

With the aforesaid observation, the petition stands disposed of. E-copy/certified copy as per Rules and directions.

(MILIND RAMESH PHADKE) JUDGE Chetna

Signature Not Verified Signed by: CHETNA BEHRANI Signing time: 03-04-2023 07:35:21 PM