IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3937 of 2009. Date of Decision: 1st August, 2011. _______________________________________________________ Smt. Sukha Devi .. Petitioner. Versus State of H.P. & another .. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Dilip Sharma, Advocate. For the respondents: Mr. A.K. Bansal, Additional Advocate General. _________________________________________________________ Surinder Singh, J (Oral). By means of present petition, the petitioner seeks quashment of Annexure P-9 imposing the penalty of reduction to the minimum in the time scale and treating the period w.e.f. 1.9.1984 to 12.5.1986 (except 14.1.1985) as dies-non and also seeks the release of pension and consequential benefits including arrears of salary and pension etc. 2. In fact, the petitioner was appointed as TGT (Arts) on regular basis in Government High School, Kamroo, District Sirmour on 19.3.1981. She proceeded on leave 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - with effect from 1.9.1984 on account of the illness of her mother-in-law. Thereafter she reported for duty on 14.1.1985, but again on the next day she proceeded on leave due to adverse family circumstances. Thereafter, she reported for duty on 22.4.1986, but she was not allowed to join and the Headmaster of the school directed her to obtain orders for allowing her to join duty from the higher authorities. She made the representation vide Annexure P-1 25.4.1986 to the respondent-Director. Vide Annexure P-2 dated 5.5.1986 respondent No.2-Director directed the District Education Officer (D.E.O.) to allow the petitioner to join the duties and send her case regarding absence from duty with full documents for initiating action in accordance with law. 3. The D.E.O. further sent a communication dated 12.5.1986 Annexure P-3 to the Headmaster of Government High School, Kamroo to allow the petitioner to join the duties and asked for her submitting the documents regarding her absence as aforesaid. 4. The petitioner joined the duties on 13.5.1986 in the said school. She also made the representation dated 3.6.1986 (Annexure P-4) alongwith the requisite documents, explaining her circumstances and - 3 - requested for sanctioning of her leave for the period aforesaid. 5. Respondent No.2 vide Annexure P-5 dated 24.3.1987 directed the Headmaster of the said school that the leave in question may be sanctioned in favour of the petitioner after observing all the codel formalities. 6. Thereafter vide memo dated 19.9.1987 (Annexure P-6), the petitioner was served with a charge-sheet with respect to her misconduct, i.e., absence from duty with effect from 3.7.1984 to 12.5.1986, i.e., 679 days during the period she remained absent, though submitted her applications. The findings of the enquiry were against her. She was held guilty for the alleged misconduct, but strongly recommended that the period of absence of the petitioner be allowed to be treated as leave of the kind due with a warning not to repeat such lapses in future. 7. Vide memo dated 23.3.1990 (Annexure P-8), the petitioner was called upon to show cause as to why she should not be reduced to the minimum of her pay scale with immediate effect and the period of alleged willful absence from 1.9.1984 to 12.5.1986 except 14.1.1985 be not treated as dies-non. She - 4 - made the representation against the penalty, but finally vide Annexure P-9 dated 24.2.1994 the penalty was imposed by the disciplinary authority reducing her pay to the minimum of her pay scale with direction that the period of her alleged willful absence from duty from 1.9.1984 to 12.5.1986 except 14.1.1985 be treated as dies-non. She filed an appeal against this penalty and the appellate authority dismissed her appeal vide Annexure P-11 dated 2.9.1994. Petitioner then filed OA No.2711 of 1994 challenging the said order, the respondents in reply in that O.A. submitted that the penalty of dies-non is not a reduction to a lower stage. It is only a specific period which is neither counted as service nor can it be counted break in service. On account of the abolition of the Tribunal, the OA was transferred to this Court and was registered as CWP (T) 2335 of 2008, which was allowed by this Court on 26.2.2009 and the impugned order dated 2.9.1994 was quashed and set aside. The appellate authority was directed to rehear the appeal within a specified period. But again the appeal was rejected by the appellate authority on 24.8.2009 by an order Annexure P-16 maintaining the earlier penalty. The said order of penalty has been assailed in the present petition mainly on the ground - 5 - that Annexure P-6, i.e., Article of Charges relating to the alleged misconduct of the petitioner often remaining on extraordinary leave with the result the instructional work suffered in the school. 8. The petitioner contended that she was charge- sheeted for the unauthorized absence, but her leave stood already sanctioned. Once the period of absence has been regularized by granting her leave, there was no question of charge-sheeting her for the said period. Further, the petitioner submitted detailed representation dated 13.6.1986 Annexure P-4 explaining her circumstances and made a request to sanction her leave for the absence period. Consequently, vide letter dated 24.3.1987 Annexure P- 2, respondent No.2 directed the Headmaster, GHS, Kamroo to sanction the leave in favour of the petitioner. Thereafter, the petitioner did not receive any communication, but her service-book which has been produced in the court shows that the absence period for which she was charge sheeted stands already regularized by sanctioning the leave without pay. 9. According to Shri Dilip Sharma, learned Counsel for the petitioner, once the leave is granted, the misconduct would disappear. - 6 - 10. Shri A.K. Bansal, learned Additional Advocate General, admits the above position that the period of absence of the petitioner was regularized. 11. In my opinion, once the absence period has been regularized, there was no question of charge- sheeting the petitioner for the alleged absence. Therefore, the impugned order dated 24.2.1994 Annexure P-9 whereby petitioner has been imposed penalty by the disciplinary authority which was affirmed by the appellate authority treating the absence period as dies-non, are wrong and illegal thus quashed and set aside. Accordingly, the petition is allowed and the respondents are hereby directed to re-fix the salary of the petitioner and release the consequential benefits within a period of four months from the date of production of the copy of the order. 12. The matter stands disposed of in the above terms. August 1, 2011. (Surinder Singh), (rc) Judge.