Prateek Sonvalkar vs State Of M.P

The petitioner has filed the present petition challenging the order dated 17/05/2019, passed by the respondent No.2 thereby, service period of the

petitioner from 15/04/2019 to 25/04/2019 was declared as unauthorized absence and as dies non, without holding any departmental enquiry or issuing

any show cause notice to the petitioner.

The petitioner was posted as Joint Commissioner, Regional Rural Training Centre, Rau and District â€" Indore. That, the respondent No.3 issued an

order dated 20/02/2019(Annexure-P/1) by which election duty order of certain Class-III employees were issued and in respect of Group No.4 in

Mahidpur Tehsil of Ujjain District, Shri Bharat Kumar Seghal, Sub-Engineer of Water Resources Sub Division, Mahidpur was posted as an Officer

and employees Shri Kamlesh Makode and Shri Jalam Singh of Janpad Panchayat of Mahidpur were posted as Assistants.

That, as the petitioner was not feeling well, he contacted Dr. Vijay Pendhharkar, MD(Medicine), a physician of Ujjain, on 12/04/2019 and treatment

was given by him vide his treatment sip dated 12/04/2019. The petitioner was also examined by Dr. C.M. Puranik, Physician of District Hospital,

Ujjain on 14/04/2019 and he advised 7 days rest to the petitioner w.e.f. 14/04/2019, as per medical certificate dated 14/04/2019. He was further

examined by Dr. Vinit Pandey and found the petitioner suffering from Accelerated HTN with Vertigo and advised the petitioner two weeks rest from

15/04/2019mas per medical certificate dated 15/04/2019.

The respondent No.3, thereafter, issued a letter dated 16/04/2019 directing the petitioner to submit a medical certificate of District Medical Board,

Ujjain. The petitioner presented himself before the District Medical Board, Ujjain and the petitioner was found suffering with the disease prescribed in

the medical certificate. That, on the basis of the aforesaid certificate, the petitioner submitted an application on 19/04/2019 to the respondent No.3

making a request for grant of leave from 154/04/2019 to 24/04/2019 stating that he did not receive any order of election duty and that he did not

misguide or suppress anything from respondent no.2.

That, on the basis of the aforesaid medical certificates as also the genuine representations submitted by the petitioner, the election duty of the

petitioner was cancelled by order dated 22/04/2019. In this order, a reference has been made to an order dated 12/04/2019 by which the petitioner

was shown to have been posted as election duty In-charge Officer. The petitioner, thereafter, was transferred vide order dated 25/04/2019 as Joint

Commissioner (Development) from Ujjain Division, Ujjain to Regional Rural Development Centre, Indore. The petitioner immediately joined at Indore

at his new place of posting in pursuance of the order. He, thereafter, submitted an application dated 1/05/2019 to the respondent No.2 making a

request for grant of 11 days medical leave and for adding 10 days earned leave in his leave account and to make relevant entry in his service book.

That, to the utter surprise of the petitioner, without holding any departmental enquiry against the petitioner, the respondent No.2, without jurisdiction

issued an order dated 17/05/2019 forfeiting salary of the petitioner from 15/04/2019 to 25/04/2019 on the princip0le of ‘No work No pay’ and

also ordered dies-non of the aforesaid period, which would result in break in service of the petitioner.

As per Circular dated 20/10/2008 and as clarified by another Circular dated 27/01/2010, such an order could not at all have been issued by

respondent No.2 against the petitioner. Thus, the said order is without jurisdiction.

Learned counsel for the petitioner has referred to the judgment passed by this Court in the case of Dr.Anil Kumar Verma Vs. State of M.P. [2005

(1) MPHT 24(NOC)]w herein it has been held by this Court that holding of a departmental enquiry is essential before issuing an order of dies-non.

Thus, in the light of the aforesaid judgment passed by this Court, the impugned order is illegal, unconstitutional and in violation of the petitioner’s

fundamental rights of the petitioner and deserves to be dismissed.

The respondents have filed their reply and in the said reply the respondents have stated that the petitioner is having an alternative remedy of filing

appeal under Section 23 of the M.P. Civil Services (Classification, Control & Appeal) Rues, 1996 and, therefore, without exhausting the said

efficacious remedy, the petitioner has directly approached to this Court by filing this petition and, thus, it is not maintainable. It is further submitted that

the order dated 20/02/2019 was revised by the Collector and District Election Officer, Ujjain and order dated 12/04/2019 was issued whereas, the

petitioner was deployed on election duty and copy of the same was served upon the petitioner on the same day i.e., on 12/04/2019. As the petitioner

did not want to perform election work, therefore, he received the certificate dated 14/04/2019 to declare him unfit for duty for next seven days.

Heard learned counsel for the parties and perused the record.

In the present case, on perusal of the record, it appears that the respondents without conducting any departmental enquiry against the petitioner

has passed the order dated 17/05/2019 thereby, forfeiting the salary of the petitioner from 15/04/2019 to 25/04/2019 and on the principle of ‘No

work No pay’ has also ordered dies-non stating that he will not be entitled to get any service benefit except pension for the said period.

That, this Court in the case of Dr.Anil Kumar Verma(supra), has held that punishment of the of dies-non cannot be imposed on any employee

without holding the departmental enquiry.

Consequently, in the light of the aforesaid, the present writ petition deserves to be and is, hereby, allowed. The impugned order dated 17/05/2019 is

hereby quashed. Also, the period from 15/04/2019 to 24/04/2019 be treated as on duty and his annual increment falling due on 1/07/2019 be also given

to the petitioner along with all arrears. The said amount be paid to the petitioner within a period of four months.

With the aforesaid, the writ petition stands disposed of.