IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 3900 of 1988 Date of Decision: April 1, 2009 Bhupinder Singh Rattan ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: Mr. Roshan Lal Sharma, Advocate, for the petitioner. Ms. Sudeepti Sharma, DAG, Punjab, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. Challenge in this petition filed under Article 226 of the Constitution is to the order dated 14.7.1987 (P-10) passed by the respondent State by treating the period of absence from 21.10.1971 to 22.11.1974 as ‘dies non’. In other words, the aforesaid period is not to be considered for pension, leave, seniority or any other purposes. 2. The case of the petitioner is that he was appointed as Sectional Officer in the year 1965 in the respondent department i.e. Beas Setluj Link Project. He was transferred on 8.2.1971 to join Concrete Production Division, Pandoh and was relieved on 2.7.1971 CWP No. 3900 of 1988 for joining new place of posting. He applied for leave on the ground of ill health of his mother, which was granted and later sought extension till 9.10.1973. Respondent No. 3 refused to sanction the leave. Accordingly, the petitioner stated to have reported back for duty on 10.10.1973. However, his services were terminated on 8.1.1974 (P-3), which order was withdrawn on 22.11.1974 (P-5). The respondents did not take any decision with regard to the period of absence of the petitioner although he was given posting on 30.11.1974 (P-6). 3. On 3.11.1977, the petitioner was then issued charge sheet for remaining absent from duty (P-7) and an Enquiry Officer was appointed vide order dated 6.4.1978 (P-8). The competent authority after taking into account the report of the Enquiry Officer, reply of the petitioner and other documents reached the conclusion that punishment of stoppage of two increments with future effect would met the ends of justice and accordingly the aforesaid punishment was inflicted on the petitioner under Rule 5 of the Civil Services (Punishment and Appeal) Rules, 1979. However, the dispute remains as to how the period of absence from 21.10.1971 to 22.11.1974 was to be considered. The recommendation made by the appointing authority to treat the same as a period of extra ordinary leave did not find favour with the Government and accordingly order dated 14.7.1987 (P-10), impugned in the instant petition, was passed holding that the period may be treated as ‘dies non’. In other words, the period of absence from duty was to be treated as non-existence for the purposes of pension, leave, seniority or any other purposes. 2 CWP No. 3900 of 1988 4. Reply only on behalf of respondent No. 4, namely, Director, Plant Design & Administration, Beas Sutlej Link Project, Sunder Nagar, has been filed and no reply has been filed by the State of Punjab-respondent Nos. 1 and 2. 5. The question which requires determination for the instant petition is whether an order which has civil consequences passed on 14.7.1987 (P-10) could be sustained in the eyes of law without issuing show cause notice and also whether it would amount to inflicting two punishments for the same lapse. 6. Mr. Roshan Lal Sharma, learned counsel for the petitioner has argued that the matter is covered in favour of the petitioner by a Single Bench judgment of this Court rendered in the case of Bhim Singh v. State of Haryana, 1991 (1) RSJ 408. It has been held in the aforesaid judgment that any order imparting break in service would amount to double jeopardy if in a regular inquiry, for the same lapse of absence from duty, an employee has been punished by a separate order. 7. Ms. Sudeepti Sharma, learned State counsel has, however, submitted that both the orders have different consequences and there is no question of double jeopardy. 8. Having heard learned counsel for the parties and perusing the paper book with their able assistance, I am of the considered view that the impugned order dated 14.7.1987 (P-10), is liable to be set aside on both the counts. The petitioner admittedly has not been given any show cause notice before passing the impugned order. Any order which has civil consequences could not be passed without following the basic minimum principles of ‘audi 3 CWP No. 3900 of 1988 alter partem’. The period from 21.10.1971 to 22.11.1974 was already subject matter of disciplinary proceedings for which the petitioner had been inflicted with punishment of stoppage of two increments with future effect. The second order declaring the aforesaid period as a ‘dies non’ could not be passed because it would amount to inflicting double punishment for the same lapse. The opinion expressed by the learned Single Judge in Bhim Singh’s case (supra) would be attracted to the facts of the present case as in para 4 it has been observed that after inflicting the punishment of warning for unauthorized absence from duty the order treating the period of absence as break in service was not warranted. Therefore, order dated 14.7.1987 (P-10) cannot be sustained in the eyes of law. The same is accordingly set aside. The period from 21.10.1971 to 22.11.1974 shall be treated as period of extra ordinary leave. The petitioner shall be entitled to all consequential benefits and refixation of his pay which may result into revision of his pension. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. 9. The writ petition stands disposed of in the above terms. (M.M. KUMAR) April 1, 2009 JUDGE Pkapoor 4