IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <><> :: ORDER :: Sukh Lal Meena Vs. Union of India & Ors. D.B. CIVIL WRIT PETITION NO. 5238/2010. Date of Order :::: 27th May 2010. PRESENT HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Vijay Mehta, for the petitioner. <><><> BY THE COURT: By way of this writ petition, the applicant-petitioner Shri Sukh Lal Meena seeks to question the order dated 10.02.2010 passed in Original Application No. 124/2005 whereby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur [‘the Tribunal’] has rejected his challenge to the orders dated 09.08.2004 and 10.02.2005; and has disallowed his claim for pay and allowance for the period of absence from 08.10.1992 to 30.03.2000. The Original Application [OA No. 124/2005] leading to this Writ Petition had been in the third round of litigation between the parties that relates back to 08.10.1992, the date wherefrom the petitioner remained absent in his service as Extra Departmental Agent. The relevant facts and background aspects of the matter are that the petitioner was working as ED, Branch Post Master, Gadvas (Dhariwad), District Udaipur w.e.f. 1 03.02.1981. He got involved in Revenue Case No. 327/1992 under Section 91 of the Rajasthan Land Revenue Act, was taken in custody and sent to civil prison on 08.10.1992; and, thus, he remained absent from duty from 08.10.1992. The petitioner remained in custody from 08.10.1992 to 17.10.1992 before being released on bail. He was again in custody during the period 26.07.1994 to 14.08.1994. The respondents alleged that the petitioner did not inform about his arrest to the senior postal authorities; and issued a show cause notice on 10.11.1997 seeking to impose a penalty on the petitioner of removal from service on the ground that he had been convicted on criminal charge. This notice was, however, withdrawn by the respondents after finding that his conviction had been set aside by the Collector, Udaipur on 23.07.1997. However, when he was yet not taken on duty, the petitioner filed OA No. 09/1999 before the Tribunal, which was allowed on 13.03.2000 with the following order:- “The application is allowed and the respondents are directed to take the applicant on duty on the post he was holding on the date of his arrest i.e. 08.10.1992. So far as back wages are concerned, it is open to the applicant to make representations to the appropriate respondent and respondent may consider it. No costs. If the disciplinary action is initiated or contemplated, it is open to the department to take appropriate action as they deem fit. In the circumstances, the applicant is directed to report to respondent No. 2 on or before 1st April, 2000.” Thereafter, on 05.05.2000, the petitioner was served with a charge-sheet under Rule 8 of the Extra Departmental Agents (Conduct & Service) Rules, 1964; and, by the order dated 31.10.2001, he was awarded the penalty of censure and the period of absence from 08.10.1992 to 30.03.2000 was 2 ordered to be treated as that of unauthorised absence from duty, to constitute break in service, and not to be counted for any purpose. The petitioner preferred an appeal that came to be rejected on 22.05.2002. Aggrieved, the petitioner preferred second OA No. 210/2002 before the Tribunal that was partly allowed on 08.01.2004 with the following order:- “The Original Application is partly allowed. The Impugned order 31.10.2001 (Annex A.1) so far it relates to the following portion “यह अवध स व म वयव न म न ज ए व कस भ उद शय  लए नह ध न ज ए ", is hereby quashed and the applicant would be entitled to all consequential benefits to that extent. As regard the treatment of the period of absence, if the period is treated in any manner to the disadvantage to the applicant, the respondents shall give a show cause notice to him and after hearing the applicant, may pass necessary order in accordance with law. No order as to costs.” Pursuant to the order so passed by the Tribunal, the respondents served the petitioner with a show cause notice to which, the petitioner submitted his representation on 09.05.2004. Thereafter, the competent authority proceeded to pass an order dated 09.08.2004 treating the period of absence ‘dies non’. The appeal preferred by the petitioner against this order was also dismissed on 10.02.2005. Being aggrieved of the orders so passed, i.e., treating the period of absence, from 08.10.1992 to 30.03.2000, as dies non and depriving him of pay and allowances, the petitioner preferred third OA No. 124/2005 that has been dismissed by the Tribunal by its impugned order dated 10.02.2010. The petitioner contended before the Tribunal that the impugned orders were absolutely non-speaking; that no reasons were assigned as to why dies non was imposed on 3 him; and that the rules governing him do not provide for treating such period as dies non. As regards his wilful absence, the petitioner contended that he was prevented by respondents from discharging the duties; that though he tried his best to join the duties after release, but the respondents did not permit him to join; and that the action of the respondents had been wholly arbitrary and discriminatory. The Tribunal, after a thorough consideration of the submissions of the petitioner; and with reference to the history of the case, the various orders passed by the respondents, and the previous orders passed in the aforesaid OAs, found no case for interference with the following observations and findings:- “6. Applicant has come to this Tribunal third time against orders Ann.A-1 and Ann.A-2 stated above. He has contended that rules were not properly followed and that provisions of dies-non are not applicable to him. On perusal of records, this is clear that he was unauthorizedly absent from duties during the period in question for a long span of 7½ years. Applicant's version is that he tried to give joining, but respondents prevented him to join the service. But no such proof is given by him that he was prevented from joining the post at which he was working earlier. Applicant has termed the order as non-speaking one, but no such vacuum/default is found on respondents' part. The respondents have given proper opportunity to applicant, after getting his representation, decided the case on merits. On perusal of records, this is apparent that quite a liberal view has been taken in his case; he was absent wilfully from 08 Oct, 1992 to 30 March, 2000, this period of wilful unauthorized absence has been treated as that of no work, no pay. He was provided with an opportunity to save his services from forfeiture, there is no break in service; a big relief as per directions of CAT, Jodhpur was given. Appellate order itself is equally quite specific; there are no latches on respondents' part. Here also, a liberal view is adopted to save applicant's service; but period of absence is treated as dies-non and there is no break in his service. Applicant is afforded sufficient opportunity in defense of his case in support of his contentions. Applicant's version cannot be accepted that rule of dies-non is not applicable. There is a general principle of no work, no pay as in applicant's case; as he was absent for a long time. 4 Thus, rule of no work no pay would apply in case of his continued willful absence from service. Much relief is given to him by way of issuing such an order of dies-non on the basis of evidence adduced during the course of enquiry and that his services are intact today with no break in service. During enquiry, his unauthorized absence was established beyond doubt, thus the absence period was treated as 'dies-non' which was liberally construed by the respondents. The respondents have tried to give maximum possible relief to the applicant, thereby saving his future service career. 7. In the light of deliberations made above, no interference is called for in the orders dated 09.8.2004 (Ann.A-1) & 10.02.2005 (Ann.A-2). Resultantly, the present OA is hereby dismissed. No order as to costs.” Seeking to question the order so passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur, the learned counsel for the petitioner has strenuously contended that the Tribunal has totally failed to consider the fundamental submission of the petitioner that the provisions of dies non do not apply to him and the Rules governing his services carry no such provision for treating the disputed period of absence dies non. According to the learned counsel, the Tribunal has proceeded rather on assumptions that the period of absence could be treated dies non while ignoring the specific submission of the petitioner. The learned counsel further submitted that the Tribunal in its earlier order dated 08.01.2004 had not only quashed the penalty imposed on the petitioner whereby the disputed period was ordered to be not counted in service but further directed the respondents to give all consequential benefits to the petitioner. According to the learned counsel, the Tribunal has passed the impugned order dated 10.02.2010 rather contrary to the aforesaid order dated 08.01.2004. The learned counsel further submitted that the 5 impugned orders amount to double jeopardy particularly when the penalty of censure had already been imposed on the petitioner. After having given our thoughtful consideration to the submissions made by the learned counsel for the petitioner and having examined the material placed on record, we find absolutely no ground to consider interference in this case in our writ jurisdiction. A reference to the history of the case and the orders as passed in the earlier rounds of litigation makes it clear that by the order dated 13.03.2000 as passed in OA No. 09/1999, the Tribunal directed the respondents to take the petitioner on duty on the post he was holding on the date of his arrest, i.e., 08.10.1992. However, the matters regarding back wages and so also disciplinary action, if contemplated, were left open for the respondents to consider. The department did take up disciplinary action against the petitioner wherein, by the order dated 31.10.2001, the penalty of censure was imposed; and in addition to this, the period of absence was ordered to be treated as a break in service with further stipulation that such period would not be counted for any purpose. In the second round of litigation, OA No. 210/2002, the challenge on behalf of the petitioner was confined to the later part of the order dated 31.10.2001, i.e., regarding break in service and the treatment of interregnum. The Tribunal found that break in service was not a penalty envisaged by the Rules and so far treatment of the interregnum was concerned, before passing adverse order, principles of natural justice were required to be 6 followed. The Tribunal, thus, set aside such offending parts of the order dated 31.10.2001 but then, left again the question of treatment of the period of absence for consideration of the respondents with the stipulation that for any treatment disadvantageous to the petitioner, he shall be afforded opportunity of hearing. The respondents did serve the petitioner with a notice for the adverse order proposed to be passed and considered his representation before passing the impugned order dated 09.08.2004 treating the period of absence dies non while taking a lenient view of the matter. The appellate authority again thoroughly considered the submissions of the petitioner before rejecting his appeal on 10.02.2005. The Tribunal in its order dated 10.02.2010 has exhaustively considered all the relevant aspects of the matter and the history of the case before finding no case for interference where the respondents have taken rather a liberal view to save the petitioner’s service; and though the period of absence is treated as dies non but there is no break in service. The Tribunal, in our considered view, has rightly observed that on the basic and general principle of “no work, no pay”, the period in question could only be treated as dies non. The submission as made on behalf of the petitioner that the Rules do not provide for dies non remains baseless. If the submission is applied in abstract, it would be rather difficult to countenance the continuity of service as provided to the petitioner. The said period of absence could only work to the prejudice to the petitioner; and, but for the liberal view taken by 7 the respondents and the Tribunal, the petitioner would have suffered rather excessive disadvantage. The claim as made by the petitioner for grant of pay and allowances for the period of absence cannot be countenanced nor is referable to ‘the consequential benefits’ as envisaged by the order passed in OA No. 210/2002. As noticed, the Tribunal, while partly allowing the said OA No. 210/2002 on 08.01.2004, consciously set aside only the part of the impugned order whereby the period of absence was to be treated as break in service and not to be counted for any purpose; and held the petitioner entitled to the consequential benefits only ‘to that extent’. The Tribunal, however, left the matter regarding treatment of the period of absence for the consideration of the respondents with the requirements of opportunity of hearing in case of any treatment disadvantageous to the petitioner. The orders thereafter passed by the respondents, with adequate opportunity to the petitioner, remain just and unexceptionable. The petitioner having admittedly not worked with the respondents and having not rendered his services for the period in question, the claim for pay and allowances for this period could only be rejected. Similarly, the submission suggestive of double jeopardy has only been noted to be rejected. So far the penalty of censure is concerned, it is noticed that the same was not challenged by the petitioner even in OA No. 210/2002; and by the order passed in the said OA on 08.01.2004, the treatment of interregnum was left open. The order as passed in relation to the interregnum, being related to a different aspect, cannot 8 be construed as inflicting another penalty. Such an order was necessitated in the given set of facts and circumstances, in view of the orders passed by the Tribunal, and even in view of the orders earlier passed by the respondents where they chose to continue the petitioner in service. The order treating interregnum as dies non is not of double jeopardy as argued. Taking an overall view of the matter, we are satisfied that the order passed by the Tribunal does not suffer from any illegality or infirmity so as to warrant interference in writ jurisdiction. The writ petition fails and is, therefore, dismissed. (DINESH MAHESHWARI),J. (JAGDISH BHALLA),CJ. /MK/ /Mohan/ 9