O‘A‘NO. Qk @‘OF‘ 200i k9m)3mumv. N F396 ioda by Shri-... . KULESHWAR LAL DEWANGAN, S/o Shri BR‘ Dewangan, Aged about 49 yrs, Dresser, Employees State Insurance Services, Madhu Pillay Chowk, Shantinagar, Raipur C.G. My pagigtwr, ém‘ Tribunai, W? - ’pp rcanf‘ VERSUS 1 THE STATE OF M.P., K“ THROUGH THE SECRETARY, Deptt. ofLabour, Vallabh Bhawan, Bhopal, MrP. THE STATE OF CHHATTISGARH, THROUGH THE SECRETARY, Deptt, ofLabour, Mantralaya, Raipur C.G. 3 THE DIRECTOR, Employees State Insurance Services, - Nanda Nagar, Indore M.P. THE REGIONAL DEPUTY DIRECTOR, Employees State Insurance Services, Jabalpur MP, > THE INSURANCE MEDICAL OFFICER, Employees State Insurance Services, Incharge Raipur Centre, Shantinagar, Raipur CG, Non—Applicants 2, BEFORE THE M‘P. STATE ADMINISTRATIVE TRIBUNAL RAIPUR BENCH o. . y . v W a M HIGH COURT OF CHHATTISGARH : BILASPUR $INGLE BENCH : HON’BLE SHRI MAMNDRA MOHAN SHRNASTAVAQ WRIT PETlTtON {3.3 NG.3534I2005 Kuleshwar La! Dewangan Versus The State of M. P. and others PETITIONER: RESPONDENTS: FOR PRONOUN6MENT GF ORDER \‘m HIGH COURT OF CHHATTISGARH : §1LA$PUR WRIT PETITION {5.} NO.3584I2WS pETITIONER: ‘ Kuleshwar Lal Dewangan (Passed on 27A day of May, 2010) This petition has been med by the petitioner aggrieved by order dated 17-01-2000 (Annexure A48) passed by the Under Secretary, Depanment of I Labour, $tate of Madhya Pradesh, by which, period of absence from 11-04-1938 absence and consequentiy deciared “dies non“. (2) Briefiy stated, the caee Vof the petitioner is that White he was pasted at Raipur, on 22-04-1988, he Wes sent on temporary duty to Raigarh. After compiet-ion of the temporary duty, as ciaimed by the petitioner, he was reiievect to 21-04-1988 and 26-04-1988 to 27-08-1989 has been treated as unauthorized from Raigarh. it is also asserted that the petitioner, after having been reiieveei from Raigarh. on 25-04-1988 vide,Annexure A-2. rejoined and resumed dutyat Raipur centre on the very next day i.e.26-G4-1988. When the petitioner approached the office for receipt of his saiary on 30-04-1988, he came to know I I A‘ that pay biit has been drawn only in respect of the period from 01-04-1938 to dated 08-04-1988 and 09-054 988. By order dated 08-04-1988 (Annexure A6), Versus RESPONDENT$: The State of M. P. and others @mle Bench: Hon’ble Shri Manindra Muhan Shrjvastava. 3$ Present: - Shri P. P. Sahu, counsel for the petitioner. V State/respondents. Shri Chandresh Shrivastava, Panel Iawyer for the petitioner was attached at Raigarh. Another order dated 10-05-1988, in continuatien of earlier order dated 08-04-1 988 was issued, which was ailegediy received by the petitioner on 12—05-1988. Order dated 10-05-1988 states that the petitioner has been attached in the office at Raigarh until further orders. According to the petitioner, he was not reiieved in pursuanoe of order dated 08*04-1988 or 10-05-1 988, and therefore, he coutd not proceed to Raigarh on attachment. Further case is that the petitioner was pressurized to apply for extra- ordinary leave from 11-04-1 988 to 30-04—1 988, and on refusal, the petitioner was humiliated. The petitioner, later on, sent an application for grant of Earned Leave from 02—05-1988 to 07—05-1988. Further case of the petitioner is that vide a application dated 12054988, the petitioner applied for grant of advance of T.A./D.A. as atso for payment of salary for the month of April, 1988. According to the petitioner, he was neither paid advance of T.A.}D.A. nor salary for the month of April, 1988, nor relieved. The petitioner then sent an application on 09-06-1 988 to the Director for payment of salary, treating him on duty at Raipur and also for the release of T.A./D.A. Vide office letter dated 25-06-1988, the petitioner was informed that he has not joined at Raigarh, and if, he does not join at Raigarh._ disciplinary action may be taken. He was also required to submit explanation for his absence. The petitioner again sent a representation in response to letter § dated 25-66-1988 claiming for payment of entire dues and he be relieved for Raigarh. The Collector, Raipur‘also sent a memo dated 14-07-1988 (Annexure A-10) to the Ofhcer-in-charge regarding payment of saiary to the petitioner. The petitioner then approached the Principal Secretary, State of Madhya Pradesh, Ehopa‘l, by submitting a representation on 29-10-1988 (Annexure A-11). The Under Secretary, Department of Labour, State of Madhya Pradesh vide his memo dated 31 -03-1989 (Annexure A—12) states that as no order of relieving was issued, the petitioner continued to work at Raipur and prohibiting from joining his $3> duties and withhoiding of his 5alary from 13-05-1988 is not justified. Thereafter, another Ietter waS issued by the Under Secretary en 29-06-1989 (Annexure A- 13) instructing the Director to withdraw petitioner's attachment at Raigarh centre and make payment of his saiary and other dues without any deiay. Thereafter, another letter was issued on 22~07-1989 by the Under Secretary to the Director requiring the Director to submit a report to the Government, after takihg explanation from the Officer-'inncharge at Raipur centre as to why the petitioner is / not being ailowed to join his duties. it was aiso stated in the said order that the petitioner be allowed to join his duties. Finally, an order was issued on 67-08- 1989 (Annexure A—i 5) cancelling petitioner's attachment at Raigarh centre and posting him at Raipur centre. The said order of the office of the Director also contains a note that pursuant to government order dated 22-074989, a detailed report regarding not ailowing the petitioner to join his duties, has been sent on 04—07-1 989. The petitioner resumed his duty at Raipur on 28-08-1989 (Annexure A47). (3) Submission of learned counsel for the petitioner is that the entire episode finally ended in allowing the petitioner to join his duties at Raipur by cancelling his order of attachment at Raigarh centre. He submits that from communication dated 14~07—1988 (Annexure A-iO) made by the Collector, order dated 31433- 1989 (Annexure A42), order dated 29-06-1989 (Annexure A—i 3) and order dated 22—07-1989 (Annexure A44) of the Government, it is clearly established that petitioner was entitled to payment of salary in respect of the entire period, yet by impugned order dated 17-01-2000 (Annexure A-18), the period of absence has been treated as unauthorized and consequently declared “Dies-non". Learned counsel for the petitioner submits that‘the impugned order is contrary to government’s own orders, without affording any opportunity of hearing, and therefore, the same is arbitrary and irrational. Further submission of learned $ counsel for the peti‘iianer is that as the peried 0f unauthorized absence with effect from 11m04-1988 to 21—04-1988 and 26-04-1988 to 27-08-1989 33 declared as “Dies-non”, it is stigmatic and results in eerious and adverse civii consequences because the period of unauthorized absence wouid not be counted as qualifying service for the purpose af pension. Therefore, the petitioner was entitled to an opponunity of hearing and the order of “Dies—non" could not have been passed without affording due and proper opportunity of hearing. lt is also submitted that the tmpugned order is completely non-speaking, therefore, it reflects non- application of mind. (4) On the other hand, learned counsel for the respondents submits that the petitioner did not disclose to this Court in the instant petition that earlier he had preferred a petition ventilating grievances that he has not been paid saiary and other allowances for the period with effect from 11-04-1 988 to 21-04-1988 and 26-04-1 988 to 27-08-1 989. Learned counsel for the respondents further submits that the petitioner's services were ‘initially terminated vide order dated 25-08-1 $89, and later on, the same was set aside by the State Government vide f order dated 30-12-1989 and the Director was asked to regularize the period of absence and pay his claims, Whereafter. petitioner again joined on 27-01-1990. lt is further submitted that the Tribunal further directed the respondents to take a decision whether the remaining period of absence with effect from 28-08-1989 to 26-01--1§90 may be treated as,on duty, in accordance with the provisions of leave rules. The Tribunal further directed that whatever amount becomes it payable to the petitioner, as a result of the decision taken by the respondents, should be paid within three months of the receipt of this order. The respondents finally passed an order in case of the petitioner on 17~01 -2000 (Annexure Add) declaring the relevant period as “Dies-non“ on account of unauthorized absence. Even though, the petitioner was attached at Raigarh vide order dated F ,, gar 08-04-1988, he did not proceed; Thereafter, in continuation, another order was issued on 10-05-1988 (Annexure A-4) foilowed by letter dated 25-06-1988 (Annexure A-8). but he did not proceed to his piace of attachment at Raigarh nor worked at Raipur and remained unauthorized absent. It is further argued that the Coiiector and the State Government passed orders from time to time as they were not aware about the correct facts. The government earlier vide his communication dated 31-03-1 989 (Annexure A42), 29-06-1989 and 22-074 98g (Annexure A—t 4), ordered the Director to pay salary on the basis that petitioner is working atRaipur and was not relieved to proceed to Raigarh. Finally, an order of attachment at Raigarh was cancelled vide order dated 07-08-1 989 (Annexure A- 15). The petitioner's services were terminated vide order dated 25-08-1889. Later on, order of termination was set aside vide its order dated 30-12-1989. In compliance of the order passed by the Tribunal on 24-04-1999 (Annexure R-2) in Original Application No.630 of 1997, entire case of the petitioner was examined and then upon a finding that the petitioner was unauthorizedly absent from his duties, the said period of unauthorized absence was declared as “EJies-non". it is further submitted that such a declaration is not a penalty, and therefore, no opportunity of hearing is required. lt is further submitted that petitioner was unauthorizedly absent andlmere withdrawal of attachment order would not mean that the petitioner was on duty during the said period. {5) l have heard learned counsel for the rival parties and perused the records. (6) At theoutset, it is found that the petitioner while filing the instant petition, did not disclose the fact that earlier he had approached the Tribunal by filing an original application wherein he hadctaimedysalary and the Tribunal passed an order dated 24-04-1 999 directing the respondents to take decision with respect to the remaining period in dispute in accordance with the Leave Rules. Though the o impugned order dated 17~O1-2000 (Annexure A48) does not show m so many words that the same has be$n passed m compliance of the Tribunals order dated 24-04-1999 (Annexure R-2), It has been stated in the return that the impugned Order was passed in purported uompliance of the Tribune! s direction dated 24 O4 1999 in the opinion of this Court fairness required the petitioner t0 disciose this fact It is so because the Tribune! While constdenng the ciaim 0f the petitioner for grant of salary, directed the respondents to take a deCiSion about the period of absence under the Leave Rules. From a perusal of the order passed by the Tribunal, it is ctear that such direction was issued by the Tribunai on the basis that the petitioner was absent from his duties during the period 1104-1988 to 21-04-1988 and 26-04-1988 to 2108-1989. There is nothing on record nor any assertion of the petitioner that the aforesaid order of the Tribunal was challenged by either of the parties. The inescapable conclusion, therefore, is that the order of the Tribunal attained finality, The subsequent claim of the; petitioner that he be declared to be onduty during the period of unauthorized absence, could not be entertained. The petitioner is therefore entitled to claim leave and payment of salary. if permissible under the Leave Rules, in respect ot‘ the period of absence. Now,vthe petitioner could not be heard saying that he performed his duties on the strength that he was on duty during the period of s unauthorized absence which has been deciared as "Dies-non”. True it is that the Collector vide his memo dated 14-07-1988 (Annexure A40) and the Government in its communications dated 31 03 1989 (Annexure A42), 29-06-1989 (Annexure A43) and 22-07-1989 (Annexure A-14) recorded that petitioner was not relieved and continued to work at Raipur, and therefore, he was entitled to payment of salary but in the order passed by the Tribunal, no such direction for payment of salary or treating the period of unauthorized absence on duty was issued in favour of the petitioner. The Tribunal directed the respondents to take a decision . “an“... about the remaining period under dispute in accordance with the provieions Qf the leave rules. (7) From the return of the respondents, it is revealed that in response to vernment memo dated 10-12-1990. Director vide his memo dated 30438-1991 (Annexure R-3) recommended lee without pay. A memo was also writen on 28-05-1 992‘to the Director by the Oilicer-in-charge at Raipur centre. lt appears that the matter remained pendin with the respondent authorities and the petitioner approached the Tribunal by filing Origina Application No.30 of 997 claiming salary for the intervening piod including the period during which he was under termination and the Tribunal decided the matter vide its orer dated 24~04~1 999. () Submission of learned counsel for the petitioner hat as decaration of the period as “Dies-non" results in serious civi conseqnces, therefore, petitioner was entitled to opponunity of hearing, requires consideration. it appears hat after passing of the order by the Tribunal on 24-04-1999 directing the respondents to take a decision in accordance with the provisions of Leave Rules, e respondent authorities having found that no leave is admissible to the petitioner, decided to declare the period as ‘Dies-non”. Thus, period of bsence was not regularized by > grant of any leave amissible under M.P./C.G. Civil Services Leave Rules, 1977. Rule 21 of the M.P./C:G, Civil services Pension Rules, 1976 provides that all leave including extraordinary leave taken during service and granted by proper i authority counts as qualifyingservice. However, xtra-ordinar leave exceeding 120 days if ot sanctioned by proper authority, remaining period shail not quaiify for pension. ln te resent case, the entire. period has not been regularized as leave is not covered under specific kind of leave including extraordinary leave , under the Leave Rules, 1977, the period having been treated as unauthorized ga av t g l 6 1 er d 8 t l l ue t th a d ey n h p / absence, petitioner haS been adversely affented. Had it been é case of grant of Ieave of any kind including extraordinary Ieave, with or without pay, things weuid have been different. Rule 6 of the Leave Rules, 1977 clearly states that leave. eould not be claimed as of right. Thus, in the present case, period from 11-04- y 1988 to 21-044988 and 26-04»1988 to 27-08-1989 was treated as unauthorized absence and declared as ‘Dies-non". The Rules of 1977 do not previde as to what is the consequence when a particular period of unauthorized absenee is declared as “Dies-non” except that willful absence from duty after the expiry of leave renders a government servant liable to disciplinary action. However, in View of the provisions contained in Rule 21 of the M.P./C.G. Civil $ervices Pension Rules, 1976, consequences are that the period of unauthorized absence declared as “Dies-non" shall not count forqualifying service. Neither M.P./C.G, Civil Services (General Conditions of Services) Rules, 1961 nor Leave Rules, 1977 define or explain “Dies-non". However, Fundamental Rule-18 provides as unden FR. 18 Effect of continuous absence- Unless the Government in View of the exceptional circumstances of the case otherwise determines, no Government servant shall be granted leave of any kind for a continuous period exceeding five years. > The Finance Department Notification No.245/2038/76/R-l/IV, dated 09-03 1977 provides as under:- 'a Treatment of willful ahsence from duty not regularized: willful absence from duty, even though not covered by grant of leave does not entail loss of lien. The period of absence not covered by grant of leave, shall have to be treated as dies- non for all purpose, namely, increment and leave. The meaning assigned to “Dies-non" in common parlance is “No-work day“. A perusal of the impugned order dated 17-01—2000 (Annexure A-1 8) shows ’ “w cf that the government‘s decision declaring the periad as ‘Dies-non"was based on .its findings. that the period during which petitioner remained absent from his duties was unauthorized. Thus, expreesion of unauthorized act against the government servant is stigmatic, though, strictly speaking, not a penaity mentioned in any of the Clauses under Ruie 1O of the M.P./C.G. Civii Sen/ices (Classification, Control & Appeal) Rules, 1966. Though absence from duty and regularization of the same as leave with er without pay would be the consequential act of absence. declaration that action was unauthorized leads not only declaring the period as ‘b’ies—non" but also entails other consequences viz loss of seniority‘ nominclusion in the period of qualifying service for pension. lt therefore involved civil consequences and not mere grant or refusal of leave. The principies of natural justice and fair hearing therefore obliged the respondents to afford an opportunity of hearing to the petitioner before coming to the conclusion that the absence was unauthorized warranting declaration of the period of absence as Wise-non". (9) Learned counsel for the petitioner has relied upon a decision of the High Court of Madhya Pradesh invthe case of Director General, lndian Council of Medical Research, New Delhi and another vs. Dr. S. C. Dixit and others, 200774) MRI-LT. 525 (FB). Though‘ question of law referred for the opinion of Fuli Bench was ”Whether when the authority directs that a particular period wilt be treated as dies-non would it ipso facto mean that there would be continuity of service but the period would not be counted towards the pension, or the principles of natural justice are to be followed. as the said act visits the delinquent officer with adverse civil consequence7", the Full Bench held that in the given situation as obtaining in that particular case, the question did not arise for decision. Learned counsel for the petitioner has also relied upon a decision of High Court of Madhya Pradesh in the case of Dr. Anil Kumar Varma vs. $z‘ai‘e of Madhya Pradesh and others, 2005 (1) M.P.H.T. 24 (NOE), wherein it has been he!d that order of dies-non is stigmatic in nature for the reaeon that the said period would not be counted in the entire service period and would be treated as, break in service and the salary would also not be payable. lt has aleo been held that if a stigmatic order was paseed. holding a department enquiry is pre- suppoeed. (10) ln the present case, the order is stigmatlc in nature, though it does not constitute any of the penalties as speoified in Rule 10 of M.P./C.G. Civil Services (Classihcation, Control & Appeal) Rules, 1966. in the opinion of this Court, therefore, respondent authority ought to have afforded an opportunity of hearing to the petitioner before declaring the period as unauthorized, because that finding led to adverse civil consequences. From the material which has been placed on record, it has been reveaied that Collector and the State Government from time to time in their various correspondences have directed for payment of salary on a specific finding that the petitioner was not at fault. Had an opportunity of hearing been afforded, the petitioner would have placed before the authorities his submission to persuade not to declare the period of absence as unauthorized. (11) Consequentiy, the petition is allowed and the impugned order dated 17-01-2000 (Annexure A48) is set aside. The matter is remitted to the State Government to re-consider the whole issue after affording due and proper opportunity of hearing to the detitioner and take decision in the case of the petitioner, in accordance with law. l Sdl- Tumane Maningra Mohan Judge Shrivastava