Madhya Pradesh High Court
Hari Mohan Sharma vs State Of M.P. on 6 May, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6 th OF MAY, 2024
WRIT PETITION No. 1706 of 2010
BETWEEN:-
HARI MOHAN SHARMA S/O RAM NATH SHARMA,
AGED ABOUT 64 YEARS, OCCUPATION: PENSIONER, R/O
BAKSHI KI GOTH, JANAKGANJ LASHKAR, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIL SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH THE
PRINCIPAL SECRETARY, MINISTRY OF
TECHNICAL EDUCATION AND TRAINING,
D EPARTM EN T, VALLABH BHAWAN, BHOPAL
(MADHYA PRADESH)
2. THE DIRECTOR, DIRECTORATE OF TRAINING,
MADHYA PRADESH, JABALPUR (MADHYA
PRADESH)
3. THE TREASURY OFFICER, DISTRICT TREASURY
GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SOHIT MISHRA - GOVERNMENT ADVOCATE FOR STATE)
Th is petition coming on for final hearing/orders this day, t h e court
passed the following:
ORDER
The present petition under Article 226 of the Constitution has been filed
by the petitioner challenging the order dated 09.03.2010 contained in Annexure-
P/1 whereby in pursuance to order dated 21.09.2006 passed by this Court in
Writ Petition No.1257 of 2006 it had been directed the respondent authorities to
pass afresh appropriate order with regard to petitioner after giving him proper
opportunity of hearing, but the respondent/authority has decided the case of the
petitioner by passing impugned order treating the period of 06 years, 02 months
and 18 days w.e.f. 15.12.1981 to 02.03.1988 as dies non and as such, his
pension case has not been finalized.
2. By way of present petition, the petitioner is seeking following relief/s:
7. The Petitioner, therefore, most humbly prays that this Hon'ble
Court may kindly be pleased to allow this petition and thereby
issuing a writ/orders/directions and to quash the impugned order
dated 9.3.2010 as contained in Annexure P/1 and the respondent
may also kindly be directed to count the said period of the
petitioner as service for all purposes and the respondents may
also kindly be directed to issue revised PPO in favour of the
petitioner. To pass such other futher order(s) deemed fit and
proper in the interest of justice. Cost may also be awarded.
3. Learned counsel appearing for the petitioner submits that the petitioner
was in service and got retired on attaining the age of superannuation but till date,
his case with regard to pension has not been finalized because for the period
w.e.f. 15.12.1981 to 02.03.1988 the petitioner was treated to be absent from
duty and respondents have not regularized the said period and no order has
been passed by the authority about the same, however, they had declared the
said period as dies non and according to the petitioner, the order declaring the
said period as dies-non is illegal for the reason that dies non is nothing but a
major punishment and without giving any opportunity of hearing, the order of
dies-non could have been passed. In such a circumstance, the said order of
dies non is not sustainable and deserves to be set aside.
4. While placing reliance on the order of this Court in the matter of
Mahesh Kumar Shrivastava vs. State of M.P. & Others reported in 2007
(3) MPLJ 525, it was submitted that in case of dies non the pension of
employee will be adversely affected and the dies non has an effect of a major
penalty and accordingly provisions of M.P.C.S. (C.C.A.) Rules, 1966 are
required to be followed before treating a particular period as dies non. Further
reliance was placed on another order passed by this Court in the matter of
Rupesh Kumar Dwivedi vs. State of M.P. & Another (Writ Petition No.1555 of
2011), which is based on the aforesaid order of Mahesh Kumar Shrivastava
(supra).
5. Per contra, learned Goverment Advocate for the State submits that in
the existing circumstances, the authority had no other option but to declare the
said period as dies-non because the petitioner remained unauthorizedly absent
from duty during that period, therefore, there is no other mode available with the
department to decide the said period and as such, the authority taking shelter of
Rule 18 of the M.P. Civil Services (Leave) Rules, 1977 decided the said period
to be dies-non and there is nothing illegal, and the petition deserves to be
dismissed.
6. Heard counsel for the parties and perused the record.
7. It is seen that after considering the earlier judgments of this Court in
the matters of Battilal vs. Union of India & Ors. 2005 (3) MPHT 32 and
Dr. Anil Kumar Varma vs. State of M.P. & Ors. 2005 (1) MPHT 24 , in
the case of Mahesh Kumar Shrivastava (supra) the Gwalior Bench opined
as under:-
"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. 2005 (3) MPHT 32 (DB), 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.2005 (1) MPHT 24 (NOC), 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 casedies non is bad in law.
13. Consequently, the petition of the petitioner is allowed.
The impugned order, Annexure P-1, dated 8-1-2004 is
hereby quashed. It is further clarified that the respondents
are free to conduct regular departmental enquiry against the
petitioner."
7. In the present case, there is no dispute between the parties that before
treating the said period as dies non, no enquiry has been conducted as
mandated in the CCA Rules. I am bound by the order passed in the the case of
Mahesh Kumar Shrivastava (supra). As per principle laid down in the said
case, the impugned order dated 09.03.2010 (Annexure P/1) cannot sustain
judicial scrutiny and accordingly it is hereby set aside. Liberty is reserved to the
respondents to conduct a regular departmental enquiry against the petitioner.
8. The petition is allowed to the extent indicated above. No cost.
(MILIND RAMESH PHADKE)
JUDGE
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