Vinod Kumar Jharia vs State of M.P. and Others

Sanjay Yadav, J.

Heard.

Order dated 14.1.2008 has been assailed vide this petition. Vide impugned order 188 days between August 2005 to April 2006, the period during which petitioner remained unauthorized absence has been treated as dies non.

Appointed as Assistant District Prosecution Officer in 1996, services of the petitioner was placed with State Economic Offence Investigation Bureau, unit at Rewa in 2005 (4.8.2005).

There were, complaints against the petitioner of not attending duties and remaining unauthorized absence; whereon, decision was taken to maintain the attendance register even of the Gazetted Officer posted at unit level. Communication to that effect was entered into by the Deputy Inspector General of Police, State Economic Offence Bureau Annexure R/1. That Superintendent of Police, State Economic Offence Investigation Bureau, Rewa, on 31.12.2005 called upon the petitioner to be attentive towards his work and should avoid going on unauthorized leave. Thereafter, again on 13.1.2006.

It appears that, since there was no improvement, the petitioner vide show cause notice dated 6.7.2006 was called upon as to why 188 days (inclusive of different days from August 2005 to April 2006) be not treated as dies non.

The show cause notice was because as per State Governments'' FD Notification No. 245/2038/76/R-1/IV dated 9.3.77. "Willful absence from duty, even though not covered by grant of leave does not entail loss of Hen. The period of absence not covered by grant of leave, shall have to be treated as dies non for all purpose namely increment and leave." (FD/3/3/94/C/Chan dated 20.12.1994).

Petitioner replied to the show cause stating therein that the period said to have been on unauthorized leave the petitioner was touring and attending work at Rewa, Sidhi, Shahdol, Satna, Panna, Chhatarpur and Tikamgarh. However, no work chart was appended with the reply, nor the same has been filed before this Court to substantiate the claim that the petitioner was required to attend work at different places. In absence whereof, and relying upon the attendance register the reply filed by the petitioner was not found satisfactory as it did not contradict the fact of petitioner remaining unauthorized absence on various dates between August 2005 to April 2006; accordingly vide impugned order dated 14.1.2008 188 days have been directed to be treated as dies non.

Though it is emphatically urged that the decision for treating 188 days as dies non since is punitive in nature an opportunity of hearing by holding a regular departmental enquiry ought to have been granted. It is however, observed that the petitioner was afforded reasonable opportunity of hearing by issuing show cause notice and after considering the reply, the period has been treated as dies non.

Whether effect would be the same as when a major penalty is imposed. Because the petitioner has to submit on the basis of decision in Mahesh Kumar Shrivastava Vs. State of M.P. and Others, ; wherein paragraph 12 it is observed by his Lordship therein:

It is clear from the aforesaid Rule 10 that major penalty includes reduction of lower time of scale of pay. In the case of dies non when the pension of an employee will be affected then certainly in my opinion it would amount to major penalty and for that purpose as per the provision of M.P. Civil Services (Classification, Control and Appeal) Rules 1966, a regular departmental enquiry is necessary and since in the present case no regular departmental enquiry is being conducted. Hence the order of dies non is bad in law.

If treating certain period as dies non leads to permanent postponement of the increment, then the petitioner may have a case that regular enquiry contemplated under Rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 ought to have been taken recourse, if not then show cause notice under Rule 16 of 1966 Rules would be a sufficient compliance.

There are two different set of penalties which are provided under Rule 10 of Rules 1966 Rules: Minor Penalties and Major Penalties. Whereas Minor Penalties include

Minor Penalties:-

(i) Censure

(ii) Withholding of his promotion

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order.

(iv) Withholding of increments of pay or stagnation of allowance;

Major Penalties:-

(v) Reduction to a lower stage in a time scale of pay for a specified period with further direction as to whether or not the Government servant will earn increments of pay or the stagnation allowance as the case may be during the period on such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance."

(vi) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, Grade, post or service from which he was reduced with or without further direction regarding conditions of restorations to the grade or post or service from which the government servant was reduced and his Seniority and pay on such restoration to that grade, post or service.

(vii) compulsory retirement;

(viii) removal from service which shall not be a disqualification for future employment under the government.

(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;

Fundamental Rule 18 stipulates that unless the Government in view of the exceptional circumstances of the case otherwise determines, no government servant shall be granted leave of any kind for a continuous period exceeding 5 years." Government of Madhya Pradesh decision notified vide FD notification No. 245/2038/76/R-I/IV, dated 9.3.1977 stipulates that-

Willful absence from duty even though not covered by grant of leave does not entails loss of lien. The period of absence not covered by grant of leave shall have to be treated as dies non namely increment and leave.

Similarly FD/3/3/94/C/Chan/dt. 20.12.1994 stipulates-

The period of absence not covered by grant of leave, shall have to be treated as ''dies non'' for all purposes, namely increment and leave". The increment is earned annually and is drawn as a matter of course unless withhold (FR 24), whereas the leave is governed by M.P. Civil Services (Leave) Rules, 1977. In case no leave is due the period would at most be without pay, but the same will not have the permanent effect. Similarly the effect on increment would not be of permanent nature as would lead to deduction of pay for all times.

In view whereof, this Court is of the considered opinion that the period of dies non since will not permanently effect the pay of the petitioner, cannot be termed as major penalty as would warrant an action under Rule 14 of 1966 Rules. Show cause notice as contemplated, under Rule 16 being sufficient compliance, no interference is called for.

In the result, petition fails and is dismissed. No costs.