Hon'ble ASOPA, J.—By this writ petition, the petitioner has challenged the order dated 5.11.1992 (Anx. 10) whereby penalty of withholding of two annual grade increments without cumulative effect has been inflicted with further penalty of recovery and consequential direction that the leave of the absence period will be regularized as per his entitlement for leave. Another direction was also issued that the period of date of removal from service i.e. 19.1.1978 to one day prior to the date of joining i.e. 30.9.1984 shall also be regularized as per the direction of the State Government. On receipt of direction from the State, another order dated 12.11.1983 (Anx. 11) has been passed whereby it had been directed that the regularisation of the period of absence from 19.1.1978 to 3.11.1978 will be made as per the leave account and the period from 4.11.1978 to 30.9.1984 will be treated as `dies non'. The aforesaid order dated 12.11.1993 is also under challenge. 2. Briefly stated the relevant facts of the case are that charge sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short `the CCA Rules') was issued to the petitioner on 10.8.1978 for not joining duty from 19.1.1978 onwards and vide order dated 4.11.1978, the petitioner was removed from service w.e.f. 19.1.1978. 3. On filing review petition under Rule 34 of the CCA Rules, the said removal order was quashed and set aside by the Governor on 26.5.1984 and the case was remanded back to the Government on the ground that no enquiry under Rule 16 of the CCA Rules was conducted. 4. On 22.9.1984, the petitioner was reinstated with effect from the date of joining on the post of Live Stock Assistant, which post was held by him prior to the removal. The petitioner joined on 1.10.1984 and was placed under suspension vide order dated 29.10.1984. On 21.9.1985, a charge sheet under Rule 16 of the CCA Rules was issued to the petitioner levelling six charges including the period of alleged charge of absence. In the said enquiry under Rule 16 of the CCA Rules, the aforesaid impugned order of punishment dated 5.11.1992 of withholding two annual grade increments with the further direction was passed. Thereafter, another impugned order of punishment dated 12.11.1993 was passed by the State Government for the same misconduct of wilful absence, as detailed out hereinabove. 5. In the said enquiry under Rule 16 of the CCA Rules, the aforesaid impugned order of punishment dated 5.11.1992 of withholding two annual grade increments with the further direction was passed. Thereafter, another impugned order of punishment dated 12.11.1993 was passed by the State Government for the same misconduct of wilful absence, as detailed out hereinabove. 5. The respondent State filed reply to the writ petition and submitted that since the petitioner was wilfully absent from duty, as detailed out in Charges No. 1 and 2 and further there was Charge No. 5 of the short fall of store items, therefore, the respondents have rightly proceeded against him under Rule 16 of the CCA Rules and punished him with minor penalty. Counsel for the State orally submitted that the period of non working from 4.11.1978 to 30.9.1984 was rightly treated as `dies non' under Rule 86 R.S.R. 1951. 6. Submission of counsel for the petitioner is that the de novo enquiry was conducted under Rule 16 of the Rules of 1958 wherein copy of the enquiry report was not given to him and further, when the Enquiry Officer himself found Charges No. 1 and 2 of willful absence as `not proved', then no note of disagreement was served, therefore, not only Rule 16 of the CCA Rules has been violated but the principles of natural justice have also been violated as held by the Supreme Court in Paras 17, 18 and 19 of Punjab National Bank vs. Kunj Behari Misra (1998) 7 SCC 84 . Counsel for the petitioner also submits that when the removal was held to be without jurisdiction vide order dated 26.5.1984 by the Governor under Rule 34 R.S.R. then the period from 4.11.1978 i.e. the actual date of removal to 30.9.1984 a day before his joining stand regularized and further he has been punished with withholding of two annual grade increments vide order dated 5.11.1992 for alleged wilful absence from 19.1.1978 to 4.11.1978 then the Disciplinary Authority has passed order of regularization of the period from 19.1.1978 to 4.11.1978 as per Rule 54 R.S.R. 1951 for the reason that the suspension was held to be unjustified as ultimately the minor penalty was inflicted and the said period of suspension was also regularized. Thus, reference to the Government for the said period was wholly without jurisdiction. 7. Thus, reference to the Government for the said period was wholly without jurisdiction. 7. Counsel for the petitioner then submitted that forfeiture of the past services under Rule 86 R.S.R. 1951 is a penalty and the same cannot be imposed without following the principles of natural justice and before imposing the said penalty, no notice was given to the petitioner, therefore, principles of natural justice have not been followed. 8. Lastly, counsel for the petitioner submits that Rule 16 of the CCA Rules and Rule 86 R.S.R. 1951 both will not operate simultaneously in respect of the same incident. The choice is with the Government, either to proceed under Rule 86(1) and (2) R.S.R. 1951 for wilful absence or over staying leave exceeding period of one month or conduct an enquiry under Rule 16 of the CCA Rules for other punishment including removal under Rule 86(3) R.S.R. 1951. In case of removal, the question of treating the intervening period as `dies non' does not arise when removal was held to be without jurisdiction and that would arise only in respect of the contingency mentioned in Rule 86(1) and 86(2) R.S.R. 1951. 9. Alternatively, it has also been submitted that the first part of the order dated 12.11.1993 is the same, as observed by the Disciplinary Authority, that the period of absence would be treated on leave as per the entitlement of the petitioner, therefore, the same could be saved and the later part relating to the period 4.11.1978 i.e. the date of dismissal to 30.9.1984 i.e. just before the joining deserves to be quashed. 10. Counsel for the State submits that since minor penalty was inflicted, therefore, the procedure under Rule 16 of the CCA Rules would not apply. Counsel has orally defended the order dated 12.11.1993 passed by the Director as per Government directions with the support of Rule 86 R.S.R. 1951. 11. I have gone through record of the writ petition and further considered rival submission of counsel for the parties. 12. Before proceeding further, Rule 54 and Rule 86 R.S.R. 1951 along with the Government decision are quoted as below: Rule 54, R.S.R. 1951 "Rule 54. 11. I have gone through record of the writ petition and further considered rival submission of counsel for the parties. 12. Before proceeding further, Rule 54 and Rule 86 R.S.R. 1951 along with the Government decision are quoted as below: Rule 54, R.S.R. 1951 "Rule 54. Re-instatement: (1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is re-instated or would have been reinstated out for his retirement on superannuation while under suspension, the authority competent to order the reinstatement shall consider and make a specific order:- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spend on duty. (2) Where such competent authority holds that the Government servant has been fully exonerated or, in the case of suspension that it was wholly unjustified, the Government servant shall be given the full pay and dearness allowance to which he would have been entitled had he not been dismissed, removed or compulsorily retired as a penalty or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and dearness allowance as such competent authority may prescribe. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period on duty unless such authority specifically directs that it shall be so treated for any specified purpose. Provided that if the Government so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. Note : The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servants are concerned. Note : The order of the competent authority regarding the treatment of the period of absence from duty passed under this proviso is absolute and no higher sanction would be necessary for the grant of extra-ordinary leave in excess of three months in so far as temporary Government servants are concerned. (6) In cases where punishment order does not indicate as to whether the suspension period is to be counted for the purpose of pension or not, the period of suspension shall be counted for the purpose of pension. In all other cases, action shall be taken as per punishment order. (7) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment, business profession, or vocation during the period between the date of removal dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment, business, profession or vocation else where, nothing shall be paid to the Government servant. Rule 86, R.S.R. 1951 "Rule 86. Absence after expiry of leave: (1) A Government servant who is absent from duty without leave or before applied for has been sanctioned by the competent authority shall be treated to have remained willfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularized by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2)(a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularized by grant of leave due by the authority to grant leave. (b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. (b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. (4) Unless the State Government, in view of the special circumstances of the case, determines otherwise a State Government employee who remains absent from duty for a continuous period exceeding five yeas other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of the sub rule are invoked. Government of Rajasthan Decision (i) Treatment of wilful absence from duty not recognised: Wilful absence from duty, even through not covered by grant of leave does not entail loss of lien. The period of absence not covered by grant of leave shall have to be treated as `dies non', for all purposes viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorised leave of absence will constitute an interruption of service for the purpose of pension and the entire past service will stand forfeited. (ii) Action for over stayal of leave: Doubts were raised in certain quarters as to how the cases in which an official over stays the prescribed quantum of extraordinary leave should be dealt with. The matter has been considered and it is clarified that the aforesaid rule does not take away the power of disciplinary authority to take appropriate disciplinary action for any misconduct and impose one of the penalties under Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. Action can, therefore, be taken under these rules for unauthorised absence from duty or over stayal of leave even for one day, treating it as misconduct, if the facts and circumstances of the case warrant such an action." 13. Action can, therefore, be taken under these rules for unauthorised absence from duty or over stayal of leave even for one day, treating it as misconduct, if the facts and circumstances of the case warrant such an action." 13. On consideration of the aforesaid pleadings, submissions and provisions of law, the following crucial questions are involved in the matter: (1) Whether in case where removal order is held to be without jurisdiction and in de novo enquiry, punishment of stoppage of two annual grade increments along with recovery of amount of the short fall of items is passed, will Rule 86 R.S.R. 1951 could be invoked in relation to the period from the date of removal to the date of reinstatement or Rule 54 R.S.R. 1951 will apply? (2) Whether in case of absence, once finding is given by the Disciplinary Authority that the said period will be regularized as per the leave entitlement of the delinquent, still direction could be sought from the State Government also for the period other than absence by applying Rule 16 of the CCA Rules and R.S.R. 1951 simultaneously in respect of the same incident. In the instant case, the same is period of removal when the petitioner was not allowed to perform the duties for the fault on the part of the respondents by proceeding under wrong rule and reference to the Government was not warranted? (3) Whether forfeiture of the past services amounts to severe major penalty and the same could be imposed without following the principles of natural justice and giving notice. 14. (3) Whether forfeiture of the past services amounts to severe major penalty and the same could be imposed without following the principles of natural justice and giving notice. 14. It is also useful to quote the orders dated 4.11.1979, 5.11.1992 and 12.11.1993 which are as under: Order dated 4.11.1978 jktLFkku ljdkj funs'kky;] HksM+ ,oa Åu foHkkx] jktLFkku] t;iqj Øekad i-1¼,Q½¼x½¼120½ laLFkk@tkap fnukad dk;kZy; vkns'k Jh ekupUn iq= tLlkjke] Lda/kiky] fnukad 19-1-78 ls fujUrj M~;wVh ls vuqifLFkr py jgs gSaA ftlds fy;s mUgsa funs'kky; ds i=kad 46981&84 fnukad 10-8-78 }kjk iathd`r Mkd ls jktLFkku tuin lsok,a ¼oxhZdj.k] fu;a=.k ,oa iqujkosnu½ fu;e 1958 ds fu;e 17 ds vUrxZr uksfVl fn;k x;k ysfdu fu/kkZfjr le; O;rhr gksus ds mijkUr Hkh muls dksbZ Li"Vhdj.k izkIr ugha gqvkA mDr Jh ekupUn dk funs'kky; ds iathd`r i=kad 93837 fnuakd 15-9-78 }kjk jktLFkku lsok fu;eksa ds fu;e 23¼,½ ds vUrxZr muds ?kj ds irs ij lsok lekIr djus ds Øe esa uksfVl Hkstk x;k tks fd muds }kjk ysus ls bUdkj fd;s tkus ds dkj.k okfil vforfjr izkIr gks x;kA pwafd mDr Jh ekupUn] Lda/kiky us uksfVl fnukad 15-9-78 ysus ls bUdkj fd;k gS vr% mls uksfVl dh rkehy ekurs gq, fuEu gLrk{kjdrkZ Jh ekupUn Lda/kiky dks fnukad 19-1-89 ¼vuqifLFkfr dh frfFk½ ls jkT; lsok ls i`Fkd ¼fjewo½ djrs gSaA ,lMh funs'kd] Øekad&i-1¼,Q½¼x½¼120½laLFkk@tkap@63662-68 fnukad 4 uoEcj 1978 izfrfyfi lwpukFkZ ,oa vko';d dk;Zokgh gsrq%& 1- d`f=e xHkkZ/kku izlokj vf/kdkjh] lwjrx< 2- ftyk HksM o mu vf/kdkjh] lhdj 3- HksM+ ,oa mu izlkj vf/kdkjh] Qrsgiqj 4- Jh ekupUn iq= tLlkjke] xzke ljnkjiqj iks- njkjksi rglhy Qrsgiqj 'ks[kkokVh ftyk lhdj 5- laLFkku , vuqHkkx 6- j{kd i=koyhA lgk;d funs'kd ¼iz'kklu½** Order dated 5.1.1992 jktLFkku ljdkj funs'kky;] HksM+ ,oa mu foHkkx] jktLFkku] t;iqj Øekad i-1¼,Q½¼x-120½ tkap fnukad dk;kZy; vkns'k Jh ekpUn Hkkjrh; Lda/k lgk;d ftUgsa fnukad 19-1-78 ls fujUrj M;wVh ls vuqifLFkr jgus ds dkj.k funs'kky; ds vkns'k Øekad 63662-69 fnukad 4-11-78 }kjk vuqifLFkfr dh frfFk fnukad 19-1-78 ls jkT; lsok ls i`Fkd ¼fjewo½ fd;k x;k Fkk dks] 'kklu ds vkns'k Øekad i- 3¼5½ d`f"k-3@81 fnukad 26 ebZ] 84 dh ikyuk esa funs'kky; ds vkns'k Øekad 36619-25 fnukad 22-9-84 }kjk HksM+ o mu izlkj dsUnz tkykSj esa LdU/k lgk;d ds in ij dk;ZHkkj xzg.k djus dh frfFk ls okfil lsok esa fy;k x;kA 'kklu ds mDr lela[;d vkns'k fnukad 26-5-84 }kjk funs'kky; dk vkns'k fnukad 4-11-78 fujLr dj izdj.k fjek.M fd;k x;kA Jh Hkkjrh; }kjk HksM+ mu izlkj dsUnz tkykSj ij fnukad 1-10-84 dks e/;kUg iwoZ esa mifLFkfr nh xbZA funs'kky; ds vkns'k Øekad 39166-72 fnukad 29-10-84 }kjk mDr Jh Hkkjrh; dks rqjUr izHkko ls fuyafcr fd;k x;k rFkk Kkiu Øekad 34087-93 fnukad 21-9-85 }kjk jktLFkku flfoy lsok,a ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;e 1958 ds fu;e 16 ds v/khu fuEu 6 vkjksiksa ds fy;s vkjksfir fd;k x;k%& 1- LosPNk ls vuqifLFkr jgus jktdh; dk;Z ds izfr mnklhurk cjrdj vuq'kklughurk ds Øe esaA 2- fty HksM+ o mu vf/kdkjh lhdj ds Hkze.k ds le; M~;wVh ls vuqifLFkr ik;s tkus ds Øe esaA 3- HksM+ o mu izlkj vf/kdkjh Qrsgiqj ds vkns'kksa dh vogsyuk djukA 4- fnukad 21-11-77 dks >waBh fjiksVZ nsdj ykijokgh ,oa vuq'kklughurk ds fy;sA 5- mi dsUnzksa dk pktZ ugha laHkyokus ,oa jktdh; lkeku dh jkf'k :- 2352-10 tek ugha djkus ckcrA 6- LFkkukUrj.k vkns'kksa dh vogsyuk djrs gq, LosPNkiwoZd M~;wVh ls vuqifLFkr jgdj vuq'kklughurk ds fy;sA mDr Jh ekupUnz Hkkjrh; Ld- lgk- ¼fuy-½ us lacaf/kr vfHkys[kksa dk fujh{k.k dj viuk Li"Vhdj.k izLrqr fd;k tks ftyk HksM+ o mu vf/kdkjh tkykSj us Øekad 679 fnukad 27-2-86 }kjk izkIr gqvkA Jh Hkkjrh; }kjk mDr vkjksiksa dks vLohdkj fd;s tkus ds dkj.k mudh foLr`r tkap gsrq funs'kky; ds vkns'k Øekad 10633-38 fnukad 29-3-86 }kjk ftyk HksM+ o mu vf/kdkjh >qa>uwa dks tkap vf/kdkjh fu;qDr fd;k x;kA funs'kky; ds vkns'k Øekad 29939-48 fnukad 22-10-86 }kjk mDr Jh Hkkjrh; dks foHkkxh; tkap ij fcuk fdlh izfrdwy izHkko ds tkap ds fopkjkfJr HksM+ o mu izlkj dsUnz ckM+esj ij LdU/k lgk;d ds fjDr in ij mifLFkfr nsus dh frfFk ls fuyEcu ls cgky fd;k x;k rFkk mDr Jh Hkkjrh; dh vkifRr ij fopkj fd;k tkdj vkns'k Øekad 5755 fnukad 23-2-87 }kjk ftyk HksM+ o mu vf/kdkjh >qa>uwa ds LFkku ij ftyk HksM+ o mu vf/kdkjh lhdj dks in uke ls tkap vf/kdkjh fu;qDr fd;k x;kA tkap vf/kdkjh us tkap dj vius i=kad 965 fnukad 31-3-88 }kjk tkap izfrosnu izLrqr fd;kA tkap izfrosnu ds fu"d"kZ ds vk/kkj ij vkjksi la[;k 5 ds vuqlkj midsUnzksa dk pktZ ugha laHkykus ,oa jktdh; lkeku dh jkf'k :- 2352-10 iSls tek ugha djkus ds Øe esa iathd`r i=kad 33001-02 fnukad 24-11-88 }kjk Jh Hkkjrh; dks rF;kRed Li"Vhdj.k rqjUr izLrqr djus rFkk fnukad 5-12-88 dks futh lquokbZ gsrq mifLFkr gksus ckcr funsZf'kr fd;k x;kA ftlds lanHkZ esa Jh ekupUn Hkkjrh; LdU/k lgk;d us fnukad 5-12-88 dks funs'kky; esa mifLFkr gksdj viuk izfrosnu izLrqr fd;kA funs'kky; ds vkns'k Øekad 1286-90 fnukad 4-1-89 }kjk vkjksi la- 5 dh iqu% foLr`r tkap gsrq fpfdRlk vf/kdkjh HksM+ iztuu QkeZ Qrsgiqj dks in uke ls tkap vf/kdkjh fu;qDr fd;k x;k] ftUgksaus tkap dk;Zokgh iw.kZ dj ftyk HksM+ o mu vf/kdkjh lhdj ds i=kad 538 fnukad 15-3-90 }kjk tkap izfrosnu izLrqr fd;kA Jh ekupUn Hkkjrh; dks fnukad 16-9-92 dks futh :i ls lquk x;kA lacaf/kr vfHkys[kksa ,oa tkap izfrosnu dk v/;;u fd;k x;kA vkjksi la 1 o 2 Jh Hkkjrh; dh vuqifLFkfr vof/k ls lacaf/kr gSA tkap vf/kdkjh us bu vkjksiksa dks fl) gksuk ugha crk;k gS ijUrq blls iw.kZr% lgefr ugha gSA Jh Hkkjrh; vuqifLFkr jgdj jkT; dk;ksZ esa mnklhurk cjrus ds nks"kh gSA ftlds fy;s mudh nks okf"kZd osru o`f);ksa vlap;h izHkko ls jksdh tkrh gSA vuqifLFkfr dh vof/k dk fu;eu muds gd ds vk/kkj ij vodk'k Lohd`r dj fn;k tkosxkA vkjksi la- 5 esa :- 2352-10 iSls dk jktdh; lkekUk dk pktZ ugha laHkykus dk mYys[k gSA Jh Hkkjrh; }kjk mDr lkeku esa ls 870-50 iSls dk lkeku mudh vuqifLFkfr esa miyC/k gqvk gSA 'ks"k :- 11481-60 iSls dk lkeku tek ugha djk;k x;k gS ;g jkf'k muds osru ls fu;ekuqlkj fd'rksa esa olwy dh tkosA Jh Hkkjrh; dh fuyEcu vof/k lHkh iz;kstukFkZ lsok ij fcrkbZ ekuh tkosxh vkSj mUgsa bl vof/k dk iw.kZ osru o HkRrs ns; gksaxsA Jh Hkkjrh; dks jkT; lsok ls i`Fkd djus dh frfFk fnukad 19-1-78 ls okfil M;wVh ij vkus dh frfFk 30-9-84 dh vof/k ds fu;eu ds lEcU/k esa 'kklu ls funsZ'k izkIr fd;s tkosaA Øekad i- 1¼,Q½¼x-120½tkap@30291-99 fnukad 5-11-92 izfrfyfi lwpukFkZ ,oa vko';d dk;Zokgh gsrq%& 1- HksM+ikyu vf/kdkjh o`gn Lrjh; HksM+ iztuu QkeZ] Qrsgiqj 2- HksM+ o mu vf/kdkjh] Qrsgiqj 3- HksM o mu vf/kdkjh] tkykSj@ckM+esjA 4- Jh ekupUnz Hkkjrh;] Lda/kiky }kjk HksM+ ikyu vf/kdkjh o`gn Lrjh; HksM+ iztuu QkeZ Qrsgiqj 5- laLFkkiu ch@xksiuh; 'kk[kk funs'kky;A 6- jf{kr i=koyhA g- lgk;d funs'kd izlkj** Order dated 12.11.1993 jktLFkku ljdkj HksM+ o mu foHkkx Øekad ,1¼,Q½¼120½tkap@ t;iqj] fnukad dk;kZy; vkns'k funs'kky; ds iwoZ izlkfjr vkns'k Øekad 30291-99 fnukad 5-11-92 ds Øe esa 'kklu ds i=kad ,Q 3¼51½ d`f"k@3@81 fnukad 15-4-93 ,oa 13-8-93 }kjk izkIr funsZ'kkuqlkj Jh ekupUnz Hkkjrh; LdU/k lgk;d dh 'ks"k vuqifLFkfr vof/k fnukad 19-1-78 ls 30-9-84 dk fuEu izdkj fu;eu fd;k tkrk gS%& 1- fnukad 19-1-78 ls 3-11-78 dh vof/k dk fu;eu Jh Hkkjrh; ds gd esa cdk;k vodk'k gd ds vk/kkj ij fu;ekuqlkj vodk'k Lohd`r dj fd;k tk;sxkA 2- fnukad 4-11-78 ls 30-9-84 dh vof/k ^^Mkbtuu** ekuh tkosxh vFkkZr bl vof/k dk mUgsa fdlh Hkh izdkj dk dksbZ ifjykHk ns; ugha gksaxkA ,lMh ¼,l-Mh- dYyk½ funs'kd Øekad tkap@30957-65 fnukad 12-11-93 izfrfyfi lwpukFkZ ,oa vko';d dk;Zokgh gsrq%& 1- mi 'kklu lfpo] i'kqikyu foHkkx] jkt- t;iqjA 2- HksM+ ikyu vf/kdkjh] o`gn Lrjh; HksM+ iztuu QkeZ Qrsgiqj 'sk[kkokVh 3- ftyk HksM+ o mu vf/kdkjh tkykSj@ckM+esj 4-Jh ekupUnz Hkkjrh; LdU/k lgk;d }kjk lgk;d funs'kd] d`-x- ¼HksM+½ pw: 5- laLFkk ^^ch**@xksiuh; 'kk[kkA 6- j{kd i=koyhA ,lMh funs'kd** 15. The scope of Rule 86 R.S.R. 1951 has been considered by the Division Bench of this Court in Mohan Lal vs. Jodhpur Central Cooperative Bank and others 1994(2) WLC 204 = RLW 1994(1) Raj. 384 (Para 55), Kana Ram vs. Sate of Rajasthan (1998 (1) WLC (Raj.) 656 = RLW 1998(2) Raj. 1374, para 16) and by the Singh Bench of this Court in Kailash Chand Sethi vs. State of Rajasthan and others (1993 (3) WLC 188) (Paras 8, 10, 11 and 12) wherein it has been held that penalty of forfeiture of past services is a severe penalty and the principles of natural justice are required to be followed and CCA Rules are in the nature of special provision and they take procedence over the general provisions contained in R.S.R. 1951 This will save the government servant from double punishment. Relevant paras of the aforesaid three judgments are as under: Para 55 of Mohan Lal vs. Jodhpur Central Coop. Bank and others 1994 (2) WLC (Raj.) 204 "55. So far as the order Annexure-4 dated 28.6.1989 filed in the writ petition filed by petitioner Birmaram is concerned, the petitioner Birma Ram has been treated to be absent from duty from 1.5.1989 to 13.5.1989. Treating a person willful absent from duty is not a punishment. However, forfeiting his earlier services is a very severe penalty and as per R.12 of the Rules of 1976, such a severe penalty should have been got approved from the Board of Directors of the respondent Bank and that has not been done and, therefore, to that extent, the order forfeiting his earlier services vide, Annexure-4 dated 28.6.1989 deserves to be quashed." Para 16 of State of Rajasthan vs. Dr. Mahaveer Chand (1998 (1) WLC (Raj.) 656) "16. A bare perusal of the rule shows that if an employee remains absent from duty without sanction of leave, such absence amounts to interruption involving forfeiture of past service unless the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. Mahaveer Chand (1998 (1) WLC (Raj.) 656) "16. A bare perusal of the rule shows that if an employee remains absent from duty without sanction of leave, such absence amounts to interruption involving forfeiture of past service unless the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. Sub-rule (2) of Rule 86 provides that a Government servant who remains absent from duty after the expiry of the sanctioned leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra-ordinary leave unless on satisfactory reasons being furnished, the period of his absence is furnished, the period of his absence is regularised by grant of leave. Clause (b) of sub-rule (2) of Rule 86 makes it very clear that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Sub-rule (3) of Rule 86 provides that notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules against the Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. Rule 86 confers upon the State Government right to take disciplinary action for wilful absence of duty and in view of the fact that wilful absence from duty amounts to interruption in service and forfeiture of past service, it empowers the State Government to regularise the wilful absence from duty by grant of extraordinary leave without pay. This provision is obviously for the benefit of the public servant so that he may not suffer double punishment; one under the Rules of 1958 and the other by forfeiture of his past service on account of the interruption caused by his wilful absence from duty. It may also be noted that power to impose punishment on a public servant, though in an incident of employment, is governed by separate Rules, namely Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 enacted under Article 309 of the Constitution. It may also be noted that power to impose punishment on a public servant, though in an incident of employment, is governed by separate Rules, namely Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 enacted under Article 309 of the Constitution. It is well established rule of interpretation that when there is a special provision for a certain matter, the general provisions must make room for the special provision. In the matter of initiation of disciplinary proceedings and imposition of penalties for conduct, Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 are in the nature of special provisions and they take precedence over the general provisions contained in Rajasthan Service Rules. Therefore, the conduct of disciplinary inquiry and imposition of penalties for misconduct is governed not by the Rajasthan Service Rules, but by the Rules of 1958. As a result, nothing contained in Rule 86 of the Rajasthan Service Rules can be so interpreted as to confer upon the authority empowered to sanction leave under sub rule (1) and (2) of Rule 86, to modify or alter the order passed under the Rules of 1958, without resorting to the relevant provisions of those Rules. It is a well established principle of the law that where the law confers a power to do a certain act and prescribes the mode in which the act is to be performed, that act must be performed in that mode and not otherwise. We, therefore, find force in the submission of the learned counsel for the appellant that the order dated 8th October, 87 passed under Rule 86 of the Rajasthan Service Rules cannot modify or alter the order dated 5th May, 1986 passed by His Excellency the Governor of Rajasthan in exercise of the powers conferred by the Rules of 1958." Paras 8, 10, 11 and 12 of Kailash Chand Sethi vs. State of Rajasthan and others (1993(3) WLC (Raj.) 188. "8. The next question which warrants consideration is, as to whether such an order could have been made without compliance of the provisions of 1958 rules and the principles of natural justice. Exhibit-1 read with Ex. 3 shows that the Collector has invoked rule 86 of 1951 rules. Ex. "8. The next question which warrants consideration is, as to whether such an order could have been made without compliance of the provisions of 1958 rules and the principles of natural justice. Exhibit-1 read with Ex. 3 shows that the Collector has invoked rule 86 of 1951 rules. Ex. 1 also shows that notice was given to the petitioner for submitting an explanation with a specific stipulation that in case of his failure to submit explanation, departmental action will be taken against him for remaining absence from duty without permission. Absence of the petitioner was shown to be w.e.f. 9.8.95. After the petitioner had submitted his reply on 18.7.86 stating that he had not remained absent from duty and that he was present on 9.8.85 in Patwar Circle, Pagara and cited his daily in support of his assertion, no charge sheet was served upon the petitioner containing allegation of wilful absence from duty on 9.8.85 or of any other date. When no charge sheet was served upon the petitioner question of taking proceedings in accordance with Rule 16 of 1958 rules was never there. It is thus clear that the respondent No. 3 passed the impugned order without following the procedure prescribed in Rule 16 of 1958 rules for imposition of major penalty. Consequently, unless the action of the respondent No. 3 can be sustained with reference to any other rule, the impugned order is liable to be declared as void, arbitrary and capricious. The respondents have tried to justify the impugned order with reference to rule 86 of 1951 rules. 10. A Look at the rule quoted above shows that while under rule 86(1) a Government servant who remains absent from duty without leave or before sanction of the leave applied for is to be treated as having remained wilfully absent from duty and such absence amounts to interruption in service involving forfeiture of past service unless absence is regularised by grant of leave due or is commuted into extraordinary leave by the competent authority on satisfactory reasons being furnished. Sub rule (2) provides that a person who remains absent from duty after expiry of sanctioned leave or after communication of refusal of extension of leave is not allowed to pay and allowances for the period of absence and the period of such absence is commuted into extraordinary leave unless the order for regularization is passed on furnishing satisfactory reasons. Sub rule (3) empowers the competent authority to initiate disciplinary action under 1958 Rules who wilfully remains absent from duty for a period of one month, penalty of removal from service can be imposed if charge of wilful absence from duty is proved against the government servant. 11. In the present case, it has not been alleged by the respondents that the petitioner remained wilfully absent from duty for a period exceeding one month and, therefore, rule 86(3) is of no avail to the respondents. Rule 86(1) consists of two parts. In the first part, a deeming clause has been incorporated whereby a person who absents from duty without leave or without sanction of leave applied for is to be treated as having remained wilfully absent from duty. In terms of the second part, he suffers forfeiture of past service unless the period of absence is regularised. Before this provision can be invoked by the competent authority, it has to be established that the government servant remained absent from duty without leave or without sanction of the leave and that he has failed to give any satisfactory reason for regularisation of his absence from duty. Unless a person remains absent from duty without leave, question of invoking power under section 86(1) simply does not arise. Even in case, where the government servant remains absent he has a right to apply for regularisation of the period of absence by sanction of leave due or commutation of the absence into extraordinary leave. This by itself envisages giving of notice to the concerned employee before taking of an action against him. This also envisages recording of a finding that the government servant has remained wilfully absent from duty before an order of forfeiture of past service can be passed. 12. This by itself envisages giving of notice to the concerned employee before taking of an action against him. This also envisages recording of a finding that the government servant has remained wilfully absent from duty before an order of forfeiture of past service can be passed. 12. In Jai Shanker vs. State of Rajasthan ( AIR 1966 SC 492 ), there Lordships of the Supreme Court had examined the provisions contained in Jodhpur State Regulations which are identical to rule 86 and held that no action can be taken against the employee involving forfeiture of his past service without an enquiry in the matter in accordance with the principles of natural justice. In the present case, I find that no such enquiry involving an allegation of wilful absence from duty was ever held against the petitioner. The notice (Ex. 1) issued by the Collector, Ajmer, cannot be treated as a notice indicating that the petitioner has wilfully remained absent from duty. Order (Ex. 3) does not show that the petitioner has been treated as wilfully absent from duty on 9.8.85. Thus, the order passed by the Collector cannot be sustained with reference to Rule 86(1) of 1951 Rules." Findings and Answer to the question are as follows: Question No. 1 16. Rule 54(2) R.S.R. 1951 deals with the cases where the employee is fully exonerated or in case the suspension order was wholly unjustified then the employee is entitled that the period of absence from duty shall be treated as period spent on duty for all purposes. The question involved in the present case that the period of suspension was regularized by the Disciplinary Authority and the removal order, which is a major penalty, was passed in an enquiry under Rule 17 of the CCA Rules meant for minor penalty, therefore, the removal order was without jurisdiction and amounts to exoneration. As per Rule 54(2) read with Rule 54(4) R.S.R. 1951 the employee concerned is entitled for the full service benefits of the said period and Rule 86 R.S.R. 1951 has no application. As per Rule 54(2) read with Rule 54(4) R.S.R. 1951 the employee concerned is entitled for the full service benefits of the said period and Rule 86 R.S.R. 1951 has no application. Otherwise also, during the intervening period from the date of removal to the date of reinstatement, the employee remains out of employment for the fault of the government and prevented from discharging duty, therefore, he is entitled for reinstatement with continuity in service as a matter of course and he cannot be allowed to suffer for fault on the part of the Government. Question No. 2 17. Once the period of absence was ordered to be regularized by the Disciplinary Authority as per leave entitlement of the petitioner, there was no need for seeking direction from the Government for the period from the date of removal i.e. 19.1.1978 to one day before of joining i.e. 30.9.1984 as the petitioner was prevented by the government itself from performing his duty. In such cases, period is required to be treated as spent on duty for all kind of service benefits. Therefore, second part of the order dated 12.11.1993 is liable to be quashed. 18. In view of the above, it is held that the provisions of Rule 86 R.S.R. 1951 and Rule 16 of the CCA Rules are optional and before taking any action, the Government has to decide as to under which Rule it has to proceed against the delinquent employee and in case the Government proceeds under one particular rule then another rule will be excluded. In a departmental proceeding under Rule 16 of the CCA Rules, reference to the Government as well as passing order under Rule 86 R.S.R. 1951 is wholly unwarranted. Question No. 3 19. In the facts and circumstances of the case, in my opinion, before imposing the penalty of forfeiture of the past services, which is severe punishment, principles of natural justice are required to be followed which have been violated. 20. Question No. 3 19. In the facts and circumstances of the case, in my opinion, before imposing the penalty of forfeiture of the past services, which is severe punishment, principles of natural justice are required to be followed which have been violated. 20. On consideration of the aforesaid facts and circumstances of the case, submissions, and the citations, I am of the view that the principles of natural justice have also been violated by not supplying copy of the enquiry report as well as note of disagreement but still giving that opportunity of hearing to the petitioner on finding of Charge No. 5 vide order dated 18.11.1988 regarding short fall of the store item, justified the punishment order dated 5.11.1992 of withholding two annual grade increments as well as recovery. However, the order dated 12.11.1993 treating the period from 4.11.1978 to 30.9.94 as `dies non' is liable to be quashed. 21. The writ petition is partly allowed and the later part of the order dated 12.11.1993 relating to treating the period as `dies non' from 4.11.1978 to 30.9.84 is hereby quashed, as indicated above. Consequential benefits of fixation of pay and revision thereof be granted within a period of three months from the date of receipt of certified copy of this order.