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Judgment
S.K. Gupta, J.—Petitioner was appointed as a Junior Assistant by the Dy. Registrar, Cooperative Societies, Supvn. Jammu. While, the
petitioner was in service he applied for leave on medical ground with effect from 4.4.1972, after putting 08 years of service in the Department. His
leave application was, however, neither accepted nor rejected by the Assistant Registrar Cooperative Societies Reasi, respondent-6. After availing
the medical leave, the petitioner submitted his joining report to the Assistant Registrar Cooperative Societies Reasi, respondent-6 on 28.7.1976,
i.e., after the absence of four years and three months but he was not allowed to join. The petitioner, however, again fell ill and, accordingly, he
proceeded on leave on medical ground. This leave was also, however, not sanctioned by the competent authority. The petitioner, however,
reported for duty and submitted his joining report to the Dy. Registrar, Cooperative Societies, Udhampur on 28.7.1976 after availing the leave
applied for by him which was not sanctioned by the competent authority. The petitioner was not allowed to join his duty and, in fact, he was forced
to remain absent from duty till 1990 when his case was examined by the then Registrar, Co-operative Societies J&K Govt. Jammu for settlement
of period of absence. The petitioner further stated that the Registrar Cooperative Societies J&K Govt. Jammu, respon-dent-3, vide his order
dated 1.8.1990 decided the leave case of the petitioner on merits and directed the Dy. Registrar, Cooperative Societies Udhampur, respondent-5
to immediately allow the petitioner to resume the duty against the available post. The petitioner, however, retired on superannuation on 30.6.2001.
Pension case of the petitioner was recommended and alongwith it original service book was also sent to the Accountant General, J&K State,
Jammu, respondent-2 to authorize the payment of pension by the Assistant Registrar Cooperative Societies, Reasi, respondent-6 but the same has
been denied without any justification by the Accountant General, respondent-2 on the ground that the petitioner had remained on continuous
absence from duty exceeding five years (from April, 1972 to 1990) and his case is being squarely covered under Article 113 of the J&K CSR
Vol. I which contemplates that after the continuous absence from duty beyond five years, the employee would be deemed to be out of service.
In repelling the contention of the petitioner, respondents-1, 3 to 6 in their detailed reply have submitted that the absence of the petitioner from
duty with effect from 4.4.1972 to 28.7.1976 was without any sanction of leave. The petitioner again absented himself and reported for duty on
28.7.1976 but he was not allowed to join. Further stand of the respondents is that the petitioner remained absent from duty for about 18 years
when his leave case was decided by the then Registrar, Cooperative Societies, J&K Govt. Jammu, respondent-3 vide his order dated 1.8.1990.
Pension case of the petitioner recommended by respondent-6 has been rejected by the Accountant General, respondent-2 by applying the
provision of Article 113 of the CSR Vol. 1, whereby maximum continuous leave admissible without pay or with pay is about five years and
thereafter, an employee is considered to be out of State employment.
Whereas Accountant General, respondent-2 in its reply has submitted that though the period of absence effective from 4.4.1972 to 2.8.1990 in
respect of the petitioner has been regularized as leave of whatever kind due and remaining as leave without pay vide his order dated 1.8.1990, but
necessary entries with regard to the leave sanction and leave without pay and period dies non duly approved/ sanctioned has not been made in the
service book of the petitioner with specified period. The case of the petitioner was, therefore, returned to the respondents seeking clarification in
terms of Article 163 and Article 113 of J&K CSR Volume-1 with regard to the period of leave sanction in favour of the petitioner.
I have heard the learned counsel appearing for the respective parties and also considered their rival contentions meticulously.
The petitioner has clearly indicated in the writ petition that he had applied for leave on medical ground as he was ailing with effect from 4.4.1972
but the same was neither accepted nor rejected. The petitioner, however, after availing leave on medical ground though applied but not sanction
and after recovery from his ailment reported for duty on 28.7.1976 but he was not allowed to join. It was further contended that he again felt ill
and, accordingly, applied for leave on medical ground but the same was also not sanctioned. When he reported to Dy. Registrar, Cooperative
Societies, Udhampur on 28.7.1987, he was not allowed to resume the duty. The respondents in their reply have no where controverted that
petitioner before proceeding on leave on medical ground had applied for its sanction but the same was neither accepted nor rejected. Even after
availing the medical leave and on recovery from ailment when petitioner attempted to report back to duty he was not permitted to resume his duty.
This fact was also not refuted by Mr. Vinod Bakshi, learned Dy. Advocate General appearing for the respondents 1,3 to 6 during his arguments.
This clearly shows that the petitioner was forced to remain absent from duty by the concerned officers in not permitting him to join when he
reported back after recovery from his illness. This state of affairs admittedly continued till 1.8.1990 when the case of the petitioner was examined
by the then Registrar, Cooperative Societies, J&K Govt. Jammu, respondent-3 for settlement of period of absence with reference to letter No.
2180 dated 16.3.1987 from the Dy. Registrar, Cooperative Societies, Udhampur, respondent-5 and representation dated 19.7.1980 made by the
petitioner. Respondent-3, Registrar, Cooperative Societies J&K Govt. Jammu decided the leave case of the petitioner in the following manners:
(1) The period from 4-4-72 to date till he resumes his duty is treated as leave whatever kind due and for the period privilege/medical leave is not
due, the said period will be treated on leave without pay. The period of leave without pay shall not qualify for annual increments but it will qualify
for pension purposes.
(2) The Deputy Registrar Udhampur will immediately allow him to resume duty against the available post under an intimation to this office.
(3) Relevant entries shall be made in the Service book of Shri Bansi Lal Sharma by the Deputy Registrar, one copy of the order should be sent to
Sh. Bansi Lal Sharma, Jr. Asstt. For joining and reporting in the office of Deputy Registrar Udhampur.
The petitioner thereafter continued in service and used to receive all service benefits, including salary till his date of superannuation. This fact,
however, has not been disputed by Mr. Vinod Bakshi, learned Dy. Advocate General appearing for the respondents-1, 3 to 6 during his
arguments. He also admitted that the case of the petitioner was recommended by the Assistant Registrar, Cooperative Societies, respondent-6 to
the Accountant General, Respondent-2 for authorizing the payment of pension to the petitioner but the same was declined for want of certain
clarifications and effecting entries with regard to the settlement of the period of absence of the petitioner with details in respect of leave sanction,
leave without pay and period of dies non in the service book of the petitioner
It is significant to point out that the order passed by respondent-3, the then Registrar Cooperative Societies, J&K Jammu dated 1-8-1990 in
regard to the settlement of the period of absence and also allowing him to join the duty was never questioned by the higher administrative
authorities till the date of superannuation of the petitioner. This clearly shows that the basis on which the period of absence was regularized by the
Registrar, Cooperative Societies J & K Govt. Jammu, respondent-3 was sound and genuine. Further no action had been taken against the
petitioner by the respondents during the period he remained absent on leave on medical ground by way of suspension or otherwise as warranted
under relevant Rules and Regulations, though he had applied for leave but the same was not sanctioned by the Competent Authority. He was also
not allowed to join when he submitted his joining report to resume the duty till his period of absence was settled by the Registrar Cooperative
Societies, J&K Govt. respondent-3. This makes pellucid that the petitioner was forced to remain absent form the duty by the concerned officers
without any fault or negligence on the part of the petitioner. The petitioner, therefore, in such circumstances cannot be penalized for none of his fault
but due to the fault/inaction on the part of his officers who did not permit him to join the duty when reported to them after the recovery from his
ailment. The respondents in their reply have no where disputed the fact that the petitioner had applied the leave on medical ground as he had fallen
ill but the same was, however, neither sanctioned nor the petitioner was allowed to report back to his duty when he submitted his joining report to
the Deputy Registrar, Cooperative Societies, Udhampur, respondent-5. The Registrar Cooperative Societies, J&K Govt. Jammu, respondent-3,
while deciding the leave case of the petitioner has clearly indicated in un-equivocal terms that the period of leave without pay will not qualify for
new increments but it will qualify for pension purpose.
Before dealing with the argument put across by the respondents, it would be appropriate to notice the provision of Article 163 J&K CSR Vol.
1 on which the reliance has been placed by the respondents, Government instructions under Note 4, relevant in this case are reproduced as under:
Government Instructions: - No period of un-authorized leave or absence may be treated as Extraordinary Leave without allowances when a
Government servant has at his credit earned leave. Where it is the intention of the competent authority not to allow the concerned Government
servant any pay and allowances for the period of un-authorized absence the said period may be treated as 'Dies-non' (not qualifying for any
remuneration). The 'Dies-non' in such cases shall not disturb the title of earned leave nor shall it constitute an interruption for service qualifying for
pension, leave and increment. Explanation: - The import of term Dies-non is that-
(a) it does not qualify for any remuneration (pay and allowances).
(b) It does not count for pension.
(c) It does not count for increment.
(d) It does not cause any interruption for leave earned up to the date preceding that on which the period of 'Dies-non' has commenced unless it is
the intention of the competent authority to have such period of leave forfeited in which case mention about it should be made in the order itself.
(e) It does not cause any interruption for the past service qualifying for pension.
The order passed by the Registrar, Cooperative Socities, J&K Govt, Jammu, respondent-3 is clearly in accord with the aforesaid provisions of
Article 163 J&K CSR vol.1. It has been made very much clear that without pay viz. the period 'dies non' would not cause any interruption in the
service qualifying for pension.
Mr. Vinod Bakshi, learned Dy. Advocate General appearing for the respondents-1, 3 to 6 could not justify the stand taken by these
respondents that the provisions of Article 113 CSR Vol. 1 are attracted in the case of petitioner who admittedly was not allowed to resume the
duty when he reported to the Deputy Registrar, Cooperative Societies, Udhampur, respon-dent-5 after availing the leave on medical ground
applied for by him but the same was not sanctioned, i.e., after recovery from his ailment and, thus, he was kept on forced absence from duty.
It was obligatory for the Dy. Registrar, Cooperative Societies, Udhampur to have taken a decision on the leave application of the petitioner on
medical ground, particularly when it was submitted and supported by medical certificates issued by the competent authority. The inaction of the
competent authority by not issuing a formal order of suspension or termination against the petitioner for his absence from duty has further
aggravated the situation in exhibiting the lack of concerned human plight in respect of the employee. An attitude as has been exemplified by the
respondents is deleterious and demoralizing, besides an effort, initially in not taking action on the application for leave filed by the petitioner on
medical ground which was supported by medical certificate and thereafter not permitting him to resume his duty when he reported to the
respondents. This also I say because after the settlement of period of absence of the petitioner, he remained in service and also enjoyed his service
benefits, including salary up to the date of his superannuation.
If that be the position, how the petitioner can be denied his pensionary benefits merely on the ground that his case is covered under Article 113
of the J&K CSR Vol. 1 where under it is made clear that continuous leave admissible is five years and thereafter the official is considered to be out
of State employment, is not understandable.
Viewed thus, the action of the respondents in withholding the pensionary benefits seems to be unjustified on the face of it.
Resultantly, this petition is allowed and the respondents-1, 3 to 6 are directed to recommend the case of the petitioner for pensionary benefits
after making entries into his service book alongwith service book/pertaining to the settlement of period of absence to the Accountant General,
Respondent-2 for authorizing payment of pension alongwith entire arrears in terms of the order of the Registrar, Cooperative Societies, J&K Govt.
Jammu, respondent-3 dated 1.8.1990. Let this exercise be done by the respondents within a period of two months from the date the copy of this
order is made available to the respondents by the petitioner and also the learned counsel appearing for the respondents. On the failure of the
respondents to do so within aforesaid period, they shall be liable to pay interest @ 9% per annum.
Disposed of accordingly.