Karuna Shankar Mishra vs State Of Chhattisgarh

The petitioner herein calls in question the legality, validity and the propriety of the order dated 29.07.2010 (AnnexureÂP/6) passed in pursuance of

the order dated 03.06.2010 passed by the Collector, Korba, whereby the period from 11.08.2009 to 27.08.2009 was declared as dies non and the

petitioner was asked to deposit Rs.9173, as the payment was already made to the petitioner for the aforesaid period due to typographical mistake. The

petitioner is also challenging the order 30.05.2011 (AnnexureÂP/8) passed by the respondent No.2, whereby the order dated 03.06.2010 passed by the

Collector, Korba was affirmed.

Mr. Patel, learned counsel for the petitioner, would submit that the period from 11.08.2009 to 27.08.2009 has been declared as dies non without

giving opportunity of hearing to the petitioner and the petitioner has been asked to pay Rs.9173/Â, which is unsustainable and bad in law. He would

further submit that even the order dated 03.06.2010 passed by the Collector, Korba, whereby the aforesaid period has been declared as dies non, has

never been served to the petitioner and straightway the order dated 29.07.2010 (AnnexureÂ​P/6) has been passed.

Mr. Sunil Otwani, learned Additional Advocate General for the State, would support the impugned orders and submit that the same have been

passed in accordance with law and no interference is required in the said orders, therefore, the writ petition deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submissions made hereinÂabove and went through the records with utmost

circumspection.

Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, provides that no Government servant shall proceed on leave before it has been

sanctioned provided that in a case of emergency the authority competent to sanction leave may for reasons to be recorded in writing accord ex post

facto sanction for leave already availed of.

Rules 22 and 24 of the Chhattisgarh Civil Services (Leave) Rules, 1977, which speak about recall to duty before expiry of leave and absence after

expiry of leave, provide as under: Â​

“22. Recall to duty before expiry of leave.ÂA Government servant while on leave if recalled to duty before expiry of the leave, he shall be

entitled:Â​

(a) If the leave from which he is recalled is in India, to be treated as on duty from the date on which he starts for the station to which he is ordered,

and to draw: Â​

(i) travelling allowances under rules made in this behalf for the journey; and

(ii) leave salary, until he joins his post, at the same rate at which he would have drawn it but for recall to duty.

(b) If the leave from which he is recalled is out of India, to count the time spent on the voyage to India as duty for purposes of calculating leave, and

to receiveÂ​

(i) leave salary, during the voyage to India and for the period from the date of landing in India to the date of joining his post, at the same rate at which

he would have drawn it but for recall to duty;13

(ii) a free passage to India;

(iii) refund of his passage from India if he has not completed half the period of his leave by the date of leaving for India on recall, or three months,

whichever is shorter;

(iv) travelling allowance, under the rules for the time being in force, for travel from the place of landing in India to the place of duty.

Absence after expiry of leave.Â​

(1) Unless the authority competent to grant leave extends the leave, Government servant who remains absent after the end of leave is entitled to no

leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave to the extent

such leave is due, the period in excess of such leave due being treated as extraordinary leave.

(2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.â€​

In the matter of Ali Hussain Asgar Ali v. State of M.P. and another 1984 JLJ 67, the M.P. High Court while dealing with Rule 24 of the Madhya

Pradesh Leave Rules, 1977, held as under: Â​

“It is clear that subÂrule (1) provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it

has been further provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due

and the period in excess of such leave due being treated as extraÂordinary leave. SubÂrule (2) further provides that willful absence from duty after

the expiry of leave renders a

Government servant liable to disciplinary action. It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the

leave being sanctioned to him, and the only course open to the Government was either to act under subÂrule (1) or under subÂrule (2) of Rule 24. It

could not be contended that the orders which were passed could be passed under subÂrule (1) and the learned Government Advocate could not refer

to any rule which could justify an order as has been passed in this case, i.e. the order dated 21Â7Â1979. It is also not in dispute that if the State

Government has chosen to act under subÂrule (2) of Rule 24, then it was necessary to follow the procedure of inquiry, which admittedly has not been

done in this case. If it was chosen to act under subÂrule (2) then disciplinary action could only be taken after following the proper procedure.

Admittedly, before passing of this order dated 21Â7Â1979 even a notice was not issued to the petitioner to pass such an order. It is, therefore, plain

that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed under Article 309

of the Constitution of India.â€​

Similarly, in a decision rendered in the matter of Battilal v. Union of India and others 2005 (3) MPHT 32 (DB), which appears to have been taken

into consideration in earlier decisions, the High Court of Madhya Pradesh while considering the meaning of dies non pertinently held as under:Â​

“3......When the Authority directs that the period will be treated 'diesÂnon', it means that continuity of service is maintained, but the period treated

as 'diesÂnon' will not count for leave, salary, increment and pension. In fact, F.R. 54 (1) casts such a duty on theauthority. It provides that when a

Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review, the authority competent, to

order reinstatement shall consider and make a specific orderÂ​

(a) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension

preceding his dismissal, removal or compulsory retirement, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.â€​

Reverting to the facts of the case in light of the principles laid down by the High Court of Madhya Pradesh in the matter of Battilal (supra), it would

appear that to declare the period of absence from duty of a public servant in violation of Rule 7 of the Conduct Rules, 1965 and further to declare the

period of absence as dies non are punitive orders, therefore, the order dated 03.06.2010 passed by the Collector, Korba could not have been passed

without affording opportunity of hearing to the petitioner and even the same has not been served to the petitioner. Consequently, the order dated

29.07.2010 (AnnexureÂP/6) passed in pursuance of the order dated 03.06.2010 and the order dated 30.05.2011 (AnnexureÂP/8) are hereby set

aside. However, the respondents are at liberty to take appropriate action against the petitioner in accordance with law on its own merits.

The writ petition is allowed to the extent indicated hereinÂ​above.