Madhya Pradesh High Court
K.K. Gupta vs The State Of Madhya Pradesh on 19 June, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 19th OF JUNE, 2025
WRIT PETITION No. 7567 of 2023
K.K. GUPTA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Siddharth Sharma - Advocate for the petitioner.
Shri B.M. Patel - GA for the respondents/State.
ORDER
The petitioner has filed this writ petition under Article 226 of the
Constitution of India challenging the order dated 3/3/2021 (Annexure P/2)
whereby punishment of stoppage of one increment without cumulative effect
has been imposed upon him on account of certain misconducts alleged
against him. He has also challenged the order dated 3/2/2021 (Annexure P/1)
whereby the period from 26/2/2020 to 27/4/2020 has been treated as dies-
non. He has also prayed that the aforesaid period of his absence be declared
as leave period.
2. The facts as gathered from records of this case are that the
petitioner was initially appointed as Inspector (Technical) in the Cottage &
Rural Industry Department on 11/1/1984. He was later on promoted as
Assistant Director and at the relevant point of time was posted at Chanderi.
He was under transfer from Chanderi pursuant to order, dated 03.09.2019,
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however was not relieved. In relation to his daughter's marriage, the
petitioner applied for grant of leave for the period from 2/3/2020 to
20/3/2020 vide application dated 5/2/2020. However, by the time, he could
proceed on leave, the petitioner was relieved from Chanderi to Neemuch
vide order, dated 20/2/2020. He was thus relieved from Chanderi for
submitting joining at Neemuch on 25/2/2020. Being aggrieved, the petitioner
challenged the order of relieving before this Court in W.P. No.5338/2020,
wherein this Court passed the interim order on 29/2/2020. This Court stayed
the operation of relieving order and directed the respondents to permit the
petitioner to continue to work at Chanderi. It is the case of the petitioner that
he submitted the interim order of this Court in the Office at Chanderi, but he
was not allowed to join.
3. As per the assertion made by the petitioner, he again submitted a
leave application on 7/3/2020 requesting for leave from 9/3/2020 to
23/3/2020. The application was submitted to the Commissioner, Directorate
of Handloom, Bhopal. Since, the marriage of the daughter was already
scheduled, the petitioner left for Pune on 9/3/2020. It is his case that he fell
ill at Pune and accordingly submitted an application on 23/3/2020 requesting
for medical leave from 21/3/2020 to 28/3/2020. Due to spread of COVID-19
pandemic, the complete lockdown was imposed in the entire country by the
Central Government w.e.f. 25/3/2020. Nobody was allowed to travel without
obtaining pass from the authorised officer. It is the case of the petitioner that
he applied for e-pass for travelling from Gwalior to Chanderi on 17/4/2020,
which was declined. He again applied for e-pass on 27/4/2020, which was
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granted and accordingly, the petitioner joined at Chanderi on 28/4/2020.
Immediately after two days, the petitioner, since was not feeling well, applied
for permission to leave headquarters on 30/4/2020. However, on the same
day, he was found infected with COVID-19 infection and was accordingly
placed under quarantine for 14 days from 30/4/2020 to 15/5/2020. This is
evident from document filed at page 46 of the writ petition.
4. It is the case of the petitioner that while he was quarantine, the
respondents placed him under suspension on account of remaining absent
from duty from 25/2/2020 to 23/4/2020 vide order dated 1/5/2020 (Annexure
P/4) and his headquarter was fixed in the office of Commissioner,
Directorate of Handloom, Bhopal. Thereafter, a show cause notice was
issued to him on 1/5/2020 (Annexure P/5) asking him to explain his absence
for the aforesaid period. The petitioner submitted response to the show cause
notice on 14/5/2020 (Annexure P/6) and also submitted virtual joining at
Bhopal as there was complete lockdown in the city. Thereafter, the petitioner
physically appeared and joined his duty on 5/6/2020. He requested for salary
for the month of February' 2020. From the document filed at page No.24, it
is gathered that petitioner was again quarantine on account of COVID-19
infection from 6/6/2020 to 19/6/2020.
5. The respondents thereafter issued a charge-sheet to the petitioner
vide memo dated 10/7/2020 (Annexure P/9) whereby the charge relating to
his unauthorized absence w.e.f. 25/2/2020 onwards was imposed.
Subsequently, vide memo dated 26/9/2020 (Annexure P/12), a
supplementary charge-sheet was issued regarding his absence w.e.f.
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5/6/2020. As per the petitioner's case, he received copy of supplementary
charge-sheet on 27/10/2020. He submitted a consolidated reply to both the
charge-sheets on 6/1/2021 (Annexure P/13). Surprisingly, no enquiry was
conducted pursuant to aforesaid two charge-sheets. The Under Secretary,
Cottage and Rural Industry Department passed the impugned order dated
3/2/2021, whereby the period from 26/2/2020 to 27/4/2020 has been treated
a s dies-non . The said authority passed the other impugned order, dated
3/3/2021, whereby the suspension of the petitioner was revoked and the
penalty of stoppage of one increment without cumulative effect was imposed
on him. The petitioner preferred an appeal against both the orders. The
appellate authority partly allowed the appeal vide order dated 17/1/2022
(Annexure P/3) whereby, the order of punishment dated 3/3/2021 was upheld
while the order dated 3/2/2021 was modified and the period of dies-non was
reduced to the period from 26/2/2020 to 6/3/2020 and 21/3/2020 to
27/4/2020. Being aggrieved by these orders, the petitioner is before this
Court.
6. The learned counsel for the petitioner, while referring to the
various documents filed alongwith the writ petition and the facts narrated
hereinabove, submitted that the petitioner did not remain absent from duty
wilfully. It is his submission that even though this Court passed a positive
direction to respondents to allow the petitioner to continue to work at
Chanderi, respondents did not allow him to join. His application for leave
submitted almost one month prior to the date of marriage of his daughter,
was not decided as a result of which he was constrained to leave for his
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daughter's marriage on 7/3/2020 as the marriage was already scheduled at
Pune. The Counsel for the petitioner further submitted that, having suffered
COVID - 19 infection, he was required to remain in quarantine on two
occasions. It is his submission that all these facts were stated by the
petitioner in detail in his reply to the charge-sheets dated 6/1/2021, but the
respondents failed to take into account the said facts. The learned counsel
further submitted that after issuance of the charge-sheets, the respondents
were required to conduct departmental enquiry, however, without conducting
any enquiry, impugned orders were passed. It is his submission that for
treating the period of his absence as dies-non also, even a show cause notice
was not given to the petitioner. The learned counsel submitted that the
petitioner has already retired from service on 31/7/2022 and because of the
impugned orders, the quantum of his retiral dues have been seriously
affected. He, therefore, prays for setting aside of the impugned orders and for
grant of consequential benefit.
7. The respondents have filed reply to the writ petition. It is their
case that the petitioner did not join pursuant to the relieving order dated
25/2/2020 and joined his duty only on 7/3/2020. It is their case that in view
of the Circular dated 20/12/1994 (Annexure R/1), the period in question has
been treated as dies-non . The respondents have further submitted that since
the petitioner did not deny the factum of his unauthorized absence, no
enquiry was required to be conducted before treating the period of absence
as dies-non .
8. A bare perusal of the reply given by the respondents reveals that
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the specific reply in relation to various factual averments made in the writ
petition has not been given.
9. Considered the arguments and perused the records.
10. This petition deserves to be allowed only on the short ground
that no enquiry was conducted by the respondents before passing the
impugned orders. Even though, the charge-sheets were issued and the reply
was taken from the petitioner, no enquiry thereafter was conducted and
directly the impugned orders have been passed. Even perusal of the
impugned orders does not reflect that the respondents/authorities have
considered the explanation given by the petitioner to the charges levelled
against him. The impugned orders are wholly non-speaking and only states
that the petitioner remained absent for the period in question and, therefore,
the punishments in question are imposed. Even the appellate authority failed
to consider the explanation given by the petitioner and in mechanical
manner, the appeal has been rejected.
11. The law with regard to imposition of even minor punishment is
well settled. The Apex Court in the case of O.K. Bhardwaj Vs. Union of
India & Ors. reported in (2001)9 SCC 180, while dealing with the similar
situation has held that even a minor penalty cannot be imposed without
conducting any enquiry particularly when there are factual assertions made
by the incumbent denying the charges. The Apex Court held in para 2 & 3 as
under:-
"2.The High Court has recorded its opinion on two questions: (i)
that the punishment imposing stoppage of three
increments with cumulative effect is not a major penalty but a
minor penalty; (ii) in the case of minor penalties, "it is not
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necessary to give opportunity to the employee to give explanation
and it is also not necessary to hear him before awarding the
penalty": a detailed departmental enquiry is also not contemplating
in a case in which minor penalty is to be awarded.
3. While we agree with the first proposition of the High Court
having regard to the rule position which expressly says that
"withholding increments of pay with or without cumulative effect"
is a minor penalty, we find it not possible to agree with the second
proposition. Even in the case of a minor penalty an opportunity
has to be given to the delinquent employee to have his say or to
file his explanation with respect to the charges against him.
Moreover, if the charges are factual and if they are denied by the
delinquent employee, an enquiry should also be called for. This is
the minimum requirement of the principle of natural justice and
the said requirement cannot be dispensed with."
Thus the imposition of penalty of stoppage of one increment without
cumulative effect without conducting enquiry is unsustainable in law.
12. Regarding the order dated 3/2/2021 and order passed by the
Appellate Authority on 17/1/2022 with regard to treating the period of
absence as dies-non , the law in this regard is also well settled. This Court has
dealt with this issue in the case of Mahesh Kumar Shrivastava Vs. State of
M.P. and Ors. reported in 2007(3) MPLJ 525 and held in paragraph no.9 &
10 as under:-
"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 Kumnar Varma vs. State of Madhya Pradesh and
Ors., reported in 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.
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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."
13. Again in the case of Kalyan Ashish De Vs. Union of India and
Ors. reported in 2024 SCC Online MP 2356 , a Division Bench of this Court
dealt with the similar issue and held as under :-
"5. Moreover, the subsequent order dated 24.07.2020 making
recovery of salary for the period of 80 days from petitioner and
thereafter declaring the said period as break in service is further
vitiated by the same procedural lapse of failing to afford
reasonable and sufficient opportunity to petitioner to be heard.
5.1 A break in service or dies non leads to serious adverse
consequences upon the service of a Government servant since it
not only wipes out a particular period from the service tenure but
also dis-entitles the Government servant from counting the said
period for computing pensionary benefits. Thus, serious adverse
consequences befall an order of break in service which ought not
to be passed without affording reasonable opportunity of being
heard as contemplated by Rule 14 of CCS (CCA) Rules, 1965
unless the break-in-service does not cause adverse consequences
on pensionary benefits.
5.2 The break in service cannot be categorized as an order
entailing minor penalty since it casts an adverse shadow on the
pensionary benefits of Government servant, which can be withheld
only for causing grave misconduct as stipulated by Rule 9 of CCS
(Pension) Rules, 1972. It is for this reason that this Court observed
above that break in service can be caused only after conducting a
full scale enquiry under Rule 14 of 1965 Rules."
14. Similar view was taken by the another Division Bench of this
Court in the case of Dr. Bharti Shrivastava Vs. Higher Education Department
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and Ors. reported in 2024 SCC Online MP 248 2,wherein, in para 7, the
Division Bench held as under:-
"7. We are unable to accept the aforesaid contention. Appellant in
Para 8 and memo of writ petition has specifically pleaded that she
was never afforded any opportunity of hearing before issuing the
impugned order. Thereafter, she submitted a representation on
07.06.2008, meaning thereby, she did not accept the order of
punishment and was vigilant about her right. She sent several
reminders and finally when the representation was not given any
heed, she approached this Court. Now vide order dated
31.08.2020. Even otherwise the 'dies non' is a major punishment
and that will affect her pension also. The effect of punishment will
be recurring cause of action for the appellant throughout her
career. Therefore, the writ petition has wrongly been dismissed on
the ground of delay."
15. Yet another Division Bench of this Court has reiterated the
similar legal position in the case of Dr. Syed Shahid Ali Vs. State of M.P. &
Anr. reported in 2024 SCC Online MP 3150 .
16. In view of the discussion of facts and the legal position made
above, the order, dated 03.02.2021 (Annexure P-1), 03.03.2021 (Annexure
P-2) & 17.01.2022 (Annexure P-3) impugned in this writ petition are
unsustainable in law and are accordingly quashed. In view of the fact that
petitioner has already retired from service w.e.f. 31/7/2022, it is not proper to
remit the matter for conducting enquiry inasmuch as the documents filed
alongwith the reply as also the uncontroverted assertions made in the writ
petition show that sufficient explanation was given by the petitioner for his
absence. Thus, the matter is not required to be remitted to the respondents.
Ex-consequentia, the respondents are directed to restore the benefit to the
petitioner and revise his salary/retiral dues as if the impugned orders were
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never passed.
17. Looking to the facts of this case, this Court is constrained to
make an observation with regard to the manner in which the senior official
of the Govt. have dealt with the matter. This has been a consistent settled
view of the Courts that neither minor penalty can be imposed nor period can
be declared as dies-non, without conducting enquiry. However, in this case,
even though the charge-sheets were issued, the authorities went on to pass
impugned orders without holding enquiry. In respect of treating the period
as dies-non, not even a show cause notice was issued to the petitioner. The
disciplinary authority as also the appellate authority did not even take pains
to deal with the explanation given by the petitioner and record reasons for
not accepting his explanation. Dealing with disciplinary matter in such a
manner is not expected from superior officials who passed the impugned
order. Thus, the petitioner is put to serious mental and financial agony
because of the aforesaid illegal act. Consequently, the petitioner is also held
entitled to cost of Rs. 25,000/-. The Government is at liberty to recover the
aforesaid amount from the erring officials in accordance with law.
18. Petition stands allowed and disposed of in the aforesaid terms.
(ASHISH SHROTI)
JUDGE
JPS/-
