Nazir Ahmad Khan vs State and Ors.

Terminated from service on the ground of unauthorized absence vide order No.378/90 dated 22.05.1990, the petitioner, a constable in J&K

Armed Police, challenged the same before this court through SWP No.632/92 which was allowed and the order impugned therein quashed with

liberty to respondent/department to place him under suspension and conduct an enquiry into his unauthorized absence, if so, intended within six

months from receipt of the order.

After disposal of his writ petition as such, an enquiry was initiated against him with framing of charge sheet on 29.12.97 which culminated into

enquiry officer's final order No. 119/89 dated 11.02.1989 whereunder he was reinstated and the period intervening between his previous

termination and the reinstatement i.e. from 01.08.1990 to 10.09.1997 treated as ""diesnon"" While accepting reinstatement, the petitioner felling

aggrieved by the treatment of intervening period aforesaid as diesnon which is under challenge in this writ petition on the grounds, that the enquiry

officer while ordering as such, acted arbitrarily and without jurisdiction and also that factual and legal merit of his case was not duly considered by

the enquiry officer.

In their reply affidavit the respondents while taking certain preliminary objections to the maintainability of the writ petition on the ground that an

efficacious remedy is available by way of appeal, the respondents have also maintained that the impugned part of the order was passed by the

enquiry officer in strict conformity with the rules governing the matter, and that he was within his powers to issue directions regarding treatment of

intervening period the way he did etc; and also that in view of his perpetual misconduct, and mispresentation of circumstances in the matter, the

petitioner did not deserve anything better.

During course of submissions the petitioner's counsel, besides reiterating the contents of the writ petition and the annexure appended therewith,

has further contended that after reinstatement of petitioner into service the intervening period should not have been treated as diesnon, because the

same, besides being injurious to him is not in keeping with the expected behaviour of the State as a model employer. In rebuttal respondents'

counsel has contended that petitioner's reinstatement was in essence a result of the lenient treatment that he was given by concerned enquiry officer

and in view of the circumstances attending the matter he did not deserve any more, particularly because, his period of unauthorized absence

coincide with eruption of militancy in the valley due to which the circumstances demanded presence of police force personnel on duty rather than

their absence without authority. In support of their respective contentions the learned counsel have quoted from certain judicial pronouncements

also, which if necessary would be discussed in due course.

I have heard learned counsel, gone through the record and considered the matter. The limited area to which the controversy is confined is the

vires and veracity of the enquiry officer's treatment of the period intervening between termination of petitioner's service and his subsequent

reinstatement as diesnon i.e., in given circumstances of the case non qualifying for remuneration. Before proceeding further it would be apt to notice

that realm of judicial review in case of domestic enquiries is comparatively limited. Except in cases where such enquiries are vitiated due to non

observance of principle of natural justice, denial of requisite opportunity to be heard, and perversity of enquiry officer's findings, or where the

punishment inflicted is totally disappropriate to the proven misconduct of the concerned employee, review power is seldom exercised, particularly

the procedure adopted appears to be regular, and the materials on file support the conclusions. Merely because a different or a parallel view to the

one taken by enquiry officer is possible, the conclusion arrived at by him would not be disturbed. Some is true about the punishment inflicted which

as said earlier, if not, grossly disapportionate to the proved misconduct would not warrant interference.

Instantly, however, the regularity of enquiry proceedings as culminating into the impugned order is not under challenge on any court whatsoever.

The challenge is limited to the exercise of enquiry officer's discretion regarding treatment of the intervening period as aforesaid. In order to sustain

his challenge the petitioner has pleaded that certain factual/legal features attending his case where not taken into account; repelling which the

Government counsel has contended that in view of his reinstatement, the enquiry officer's view was expressly lenient towards the petitioner who

has through out been habitual of misconduct of different magnitudes resulting in inflicting more than half a dozen punishments of varied proportions

upon him during the period of his service before termination. Contention of Government counsel is substantially supported by record of enquiry

also.

Coming direct to the question of treatment of the intervening period aforesaid as diesnon, before anything else, it would be appropriate to quote

the relevant Government instructions, under which as on the relevant date the subject of diesnon was covered i.e. Government instructions

appended to Article 136 of CSR as formulated under notification SRO 321 dated 7.12.1995 which is as under:

Government instructions: no period of unauthorized leave or absence may be treated Extraordinary 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 unauthorized absence the said period may be treated as 'Diesnon' (not qualifying for any remuneration). The

'Diesnon' 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 Diesnon is that

(a) it does not qualify for any remuneration (pay and allowances).

(b) it does 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 'Diesnon' 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...

It may be pertinent to mention that SRO 514 dated 22.11.99 which later substituted the aforesaid SRO did not exists when the petitioner's case

was decided by the concerned enquiry officer.

In light of the above quoted SRO (no.321) the discretion to treat the intervening period as diesnon squarely rests with the competent authority

where such authority intends not to allow remuneration etc. to the rein stated employee. That the said discretion has been badly used by enquiry

officer in the instant case, is not sufficiently established. On the contrary in view of the fact that petitioner has been habitually misconducting himself

through out his tenure, where upon he has earned many punishments, and that he absented from service on ground of what the enquiry officer has

categorized as unsubstantiated illness, and that too during a period when the very sense of duty of police men and their commitment was on test

due to the large scale public disorder, the treatment of the period as diesnon does not appear to suffer from arbitrariness. The petitioner having

been one among those, who conveniently left the field on different pretexts, to save their skin from adversities of the situation and took refuge in

comparatively comfortable environs, can perhaps not be heard to claim wages for the period he willfully avoided serving, when his very

commitment to serve was on test. In that view of the matter, the view taken by the enquiry officer in the instant matter does not appear to be

misplaced. Furthermore, petitioner has not brought anything on record to show that he was totally idle during all the period and not earning

anything at all.

Before parting however, it would be appropriate to refer to D.B Judgment of this court cited by petitioner's counsel in support of his contention

that the intervening period as aforesaid instead of being treated as diesnon should have been treated as on duty for the purpose of remuneration. In

Gh, Ahmed Bhat v. State"" reported as 1999 SLJ Page 560 where under the Hon'ble bench, while over setting a single bench judgment, allowed

the appeal, and directed the petitioner, who had been terminated from service on the ground of unauthorized absence without any proper enquiry,

to be deemed to have been in service with all consequential benefits. On appeal the Hon'ble Apex court modified the D.B judgment to the extent

that concerned employee, instead of getting full pay for the intervening period, would be entitled to half salary only. The Judgment however,

appears to be specific to the facts of that case, with which the petitioner in instant case cannot claim any parity. In that case the concerned

employee had been dismissed without any enquiry, and the learned bench, in its wisdom, without directing an enquiry, deemed the employee to

have been in service through out. Accrual of consequential benefits, therefore, was a natural out come of that order. In the instant case however,

while allowing petitioner's earlier writ petition, the concerned bench, while quashing his termination order on the ground that it was done without

enquiry, desired the same to be conducted, with liberty to respondentdepartment to place him under suspension, and on his emerging successful at

enquiry, reinstate him prospectively. The concerned bench did not award any consequential benefits to him; and left the matter to be decided by

the enquiry officer, who instantly is not shown to have misconducted himself in any manner what soever.

Accordingly, the petition does not appear to have any substance to support the prayer and is accordingly dismissed.