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2009 DIGILAW 605 (JK)

Zahoor Hussain Zarger v. State

2009-12-03

MUZAFFAR HUSSAIN ATTAR

body2009
1. Notice in the writ petition as also in CMP was issued on 10th Sept. 2009. Report of the Registry reveals that notice has been served and service affidavit has also been filed. Despite service nobody has appeared on behalf of respondents. Learned counsel for petitioner addressed arguments in the case. 2. Petitioner who was Assistant Engineer proceeded on two years leave, which leave was sanctioned in his favour w.e.f. 25.05.1981 to 25th May 1983. Petitioner was to rejoin his duties on 25th May 1983. The petitioner did not resume his duties and it is only on 9th June 1992 he submitted his joining report after remaining unathorisedly absent from duty w.e.f. 25th May, 1983 to 8th June 1992. The authority did not accept the joining report of the petitioner, which action was called in question in SWP No. 1138 of 1993 by the petitioner. The court allowed the writ petition directed the respondents to accept the joining report of petitioner w.e.f. 9th of June, 1992. Liberty was given to respondents to initiate disciplinary proceedings against the petitioner for having remained unauthorisedly absent from duty for a period of more than nine years. 3. Govt. order No. 91-PW of 2000 dated 28th March 2000 reveals that disciplinary enquiry was initiated against the petitioner, however, matter was referred to Finance Department for their opinion. On 12th Oct. 1999 Finance Department conveyed their opinion which is reproduced as under: "In compliance of Court direction, Finance Department conveys its agreement to the treatment of un-authorised absence of 9 years and 14 days of Shri Zahoor Hussain Zarger AEE as dies-non; in terms of Article 163 read with Government Instruction No. 3 under the said Article of (CSRs). 4. The Government while accepting the opinion of the Finance Department passed order No. 91-PWD of 2000 dated 28th March 2000 and accordingly,-the period of unauthorized absence from duty which was nine years and fourteen days was ordered to be treated as dies-non in terms of Article 163 read with Government Instruction No. 3. 5. The petitioner accepted the order of 2000 treating his period of unauthorized absence as Dies Non. 6. The petitioner being satisfied about the treatment meted out to his period of unauthorized absence from duty did not take any action against the said decision of the Government reflected in order No. 91-PWD of 2000. 5. The petitioner accepted the order of 2000 treating his period of unauthorized absence as Dies Non. 6. The petitioner being satisfied about the treatment meted out to his period of unauthorized absence from duty did not take any action against the said decision of the Government reflected in order No. 91-PWD of 2000. The concerned Executive Engineer where the petitioner was posted, it appears wrongly and inadvertently gave benefits to the petitioner to which he was not entitled to in accordance with the law. 7. The petitioner as on date is working as In-charge Superintending Engineer. Because of the mistake committed by Executive Engineer in giving benefits to the petitioner to which he was not entitled to, the petitioner ranked senior to many of the officers who were continuing in service when the petitioner was absent from duty unathorisedly and because of this mistake committed by Executive Engineer the petitioner stole march over other officers. 8. The matter was considered by the Government vide order No. 194 PW (R&B) 2009 dated 31.08.2009. Considering the effect of the dies-non on the period of unauthorized absence of the petitioner, his seniority was ordered to be re-fixed and it was further ordered that petitioner will be deemed to have been placed in-charge Superintending Engineer (Mechanical) w.e.f. 31.05.2007 instead of 22.06.2006. It was also ordered that the concerned Drawing and Disbursing "officer shall re-fix the salary of the officer from 9.6.1992 and recover in lump sum the excess pay drawn by the officer. 9. Case FIR No. 76/09 is also registered on 1st August 2009 against the petitioner for allegedly having committed offences 420, 467,468 and 471 RFC. The AIG (Policy), For Commissioner of Vigilance, J&K Srinagar vide communication dated 16.09.2009 sought information from the Director Geology and Mining Department, Srinagar about the action taken with regard to the re-fixation of salary and recovery of excess payment drawn by the petitioner. Petitioner feeling aggrieved of Government order No. 194-PW (R&B) of 2009 and communication dated 24th June 2009, as also registering of FIR and communication dated 16th Sept. 2009 has filed this petition challenging these actions of the Government. 10. Mr. R.A. Jan, Id. Petitioner feeling aggrieved of Government order No. 194-PW (R&B) of 2009 and communication dated 24th June 2009, as also registering of FIR and communication dated 16th Sept. 2009 has filed this petition challenging these actions of the Government. 10. Mr. R.A. Jan, Id. counsel for petitioner vehemently argued that the case of the petitioner, is covered by J&K Civil Services (Leave) Rules of 1979, (for short rules of 1979) and submitted that the petitioner's case was to be dealt with in accordance with the rules of 1979 and no action could be taken against him. It was further submitted by Id counsel for the petitioner that the respondent-state could initiate disciplinary proceedings against the petitioner for having allegedly remained unauthorisedly absent from duty. The Id. counsel submitted that the action having not been taken against the petitioner, the order impugned in the petition could have not been passed. 11. By passing the order in 2000 treating the huge period of nine years and fourteen days of unauthorized absence from duty as Dies Non in terms of Article 163 read with Government Instruction No. 3 of the CSR, the competent authority in-fact bridged this yawning gap of unauthorized absence from duty. The petitioner was not entitled to get any benefit attached to his services for the period which has been treated as Dies-Non. 12. At the time when Government order No. 91-PW of 2000 dated 28th March 2000 was passed treating the period of nine years and fourteen days of unauthorized absence from duty as dies-non, SRO 514 dated 22nd Nov. 1999 was in-force and the petitioner's case was governed by the conditions contained therein. The said SRO interalia provides that when the period of unauthorized absence is treated as dies-non: (i) same will not qualify for any remuneration (pay and allowance); (ii) it does not count for pension; (iii) it does not count for increment; (iv) ....... (v) ....... (vi) it does not count for experience; (vii) during this period government servant shall not be entitled to promotion; (viii) the government employee shall lose sonority in his cadre/category by the period which is treated as dies-non; 13. By the operation of the statute the petitioner was entitled to get only what was given to him under the said SRO and would be stripped of the service benefits to which he was not entitled to in terms of the said SRO. By the operation of the statute the petitioner was entitled to get only what was given to him under the said SRO and would be stripped of the service benefits to which he was not entitled to in terms of the said SRO. The statutory rule thus, decided the fate of the petitioner about that part of the services for which he remained unauthorisedly absent from duty. Petitioner accepted the order No. 91-PW of 2000 and was thus bound by terms and conditions of SRO 514 of 1999. No authority, howsoever, high or low could give any of the benefits to the petitioner to which he was not entitled to in terms of the SRO 514. 14. The Executive Engineer in sheer ignorance of legal position dealt with the matter which action has been in stark contradiction to SRO 514 of 1999. 15. The Government order No. 194 PW (R&B) of 2009 dated 31.08.2009 has been issued only to enforce the Statutory Rule. The petitioner was not entitled to in law to get the benefits-which were denied by statutory rule and when incompetent authority gave those benefits to the petitioner, petitioner had not legally acquired the said benefits. The petitioner having not acquired the benefits legally cannot be said to be possessed of any legal right to retain those benefits. By issuing Government order No. 194 PW (R&BB) of 2009 what is done is that statutory rule is enforced. Consequently the statutory rule and Government Order No. 91-PW of 2000 has been enforced in its letter and spirit. The petitioner has not been denuded of any acquired legal right. The submission of the Id counsel for petitioner that the petitioner was entitled to issuance of notice before passing of the order impugned does not stand to reason, as in the facts and circumstances of this case no notice was required to be given to the petitioner. The order impugned in the writ petition, is only effectuating the purpose under lying SRO 514 of 1999 and Government Order No. 91-PW of 2000. The petitioner thus is precluded from challenging the impugned order as he has accepted the order dated 28th March 2000. 16. The order impugned in the writ petition, is only effectuating the purpose under lying SRO 514 of 1999 and Government Order No. 91-PW of 2000. The petitioner thus is precluded from challenging the impugned order as he has accepted the order dated 28th March 2000. 16. The petitioner having accepted the treatment meted out for unauthorized absence in the shape of Dies Non way back in the year 2000 cannot now call in question the order passed in 2009 which order has been passed to keep the record straight. The Division Bench of this Court, has had, occasion of considering the purport and import of expression "Dies Non" in LPA No. 98/2005 and the court vide judgment dated 29th Oct. 2009 has held that the period which is treated as Dies Non either in-terms of SRO 321 of 1995 or SRO 514 of 1999 or even independent of these SROs does not count for seniority of the officers besides not giving the benefits to him which are deleniated in the said SROs. The relevant part of the judgment is reproduced as under: "....A Government employee whose services are governed by rules is duty bound to obey the same. The unauthorized absence from duty is a serious misconduct and on proper enquiry thereof, an employee can suffer the punishment of dismissal from services as well. The Government, it appears has devised a method to condone the misconduct of unauthorized absence from duty of an employee by applying the concept underlying "Dies-non." On the one hand the employee who has committed misconduct, without any enquiry is allowed to resume his duties and further by applying principle underlying "Dies-non" the employee's title to earn leave is not disturbed neither same can constitute an interruption in services qualifying for pension, leave and increment. As already stated unauthorized absence from duty is a misconduct which in a departmental enquiry can get transformed even into dismissal of the employee from the services. By legal fiction "Dies-non" bridges the gap of period of unauthorized absence from duty, between past and future periods of authorized service, so as to enable the employee to get benefit of earned leave as also benefit of service to qualify for pension, leave and increment on the basis of his authorized services, preceding the period of unauthorized absence from the duty. Thus "Dies-non" acts as a legal bridge to connect two periods of authorized services which are distanced from each other by void created by period of unauthorized absence from duty. The Webster (1913) definition of "Dies-non" means a day on which courts are not held as Sunday or a legal holiday. It, otherwise, means a period or a day on which no legal business is transacted. "cgda.nic.in Website defines "Dies-non" to mean that it shall neither count as service, or will constitute a break in service." "Dies-non has also been defined to mean absence without proper permission; when on duty left without proper permission; while in office refused to perform." It appears to us that "Dies-non" as has been defined by the above said website, is the correct definition of the said Latin expression and appears to be inconsonance with the service jurisprudence. In a situation where an employee in obedience to the service rules continues to discharge his duties regularly and faithfully, is pitted against other employee who treats the same set of service rules in cruel disregard and remains unauthorizedly absent from duty, can by any standard of fairness he be equated in the matter of seeking service benefits under the same set of rules with the employee who performs duties regularly. The employee who suffers break and discontinuation in the length of his service on account of his remaining unauthorizedly absent from duty cannot be given the benefit of seniority, as the fall out of such an action would not only be illegal but would be illogical and unethical as well. Such an act will have the potential of affecting service rights of the employee who faithfully obeys the service rules. The employee committing misconduct cannot be permitted to steal a march over another employee who faithfully obeys service rules and performs duties without fail. A concession cannot be allowed to become a bonanza, as that will encourage indiscipline in service. Law courts cannot place such an interpretation on a rule or a word, which will create illegal and immoral situations. The seniority, in service jurisprudence has reference to continuous length of service. The seniority would thus be measured in terms of continuous length of service. Law courts cannot place such an interpretation on a rule or a word, which will create illegal and immoral situations. The seniority, in service jurisprudence has reference to continuous length of service. The seniority would thus be measured in terms of continuous length of service. A break caused in the continuity of service by an employee out of his own volition and by acting in cruel disregard to the service rules cannot result in continuation of service by mere condoning his misconduct and settling his period of unauthorized... absence from duty by creating a legal fiction called "Dies-non." Such employee cannot get benefit of continuity in service for the purpose of seniority. The word "Dies-non" would not repair the damage caused to the continuity of the service by an employee by his own voluntary act. The "Dies-non" would not be allowed to benefit an employee to such an extent. The period of unauthorized absence from duty constitute a break in service and that period cannot be treated to be continuous period of service for the purpose of seniority. The seniority, at the time of consideration of employees for being appointed by way of promotion to the next higher post does play a vital role. The "Dies-non" can only act as a bridge between the past and future authorized period of services of an employee, but cannot transform the unauthorized period of absence from service into a regular continuous service. The Black's Law Dictionary defines seniority as under: "Seniority. 1. The preferential status, privileges, or rights given an employee based on the employee's length of service with an employer. Employees with seniority may receive additional or enhanced benefit packages and obtain competitive advantages over fellow employees in layoff and promotional decisions. 2. The status of being older or senior." Seniority is a condition attached to service and benefit thereunder can be gained by an employee by continuously rendering service in tune with service rules. Unauthorized absence from service would necessarily denude an employee from gaining such benefit(s). The SRO 321 cannot confer any such benefit on an employee who remains unauthorizedly absent from duty. The notification SRO 321 is specific in its tenor and had it been intention to give benefit of seniority then it would have been specifically detailed out in the said notification SRO. The SRO 321 cannot confer any such benefit on an employee who remains unauthorizedly absent from duty. The notification SRO 321 is specific in its tenor and had it been intention to give benefit of seniority then it would have been specifically detailed out in the said notification SRO. The notification SRO 514 is issued only to clarify the existing position that period settled as "Dies-non" will have the affect to cause loss of seniority. The SRO does not add anything new but is only explanatory in nature. The period settled as "Dies-non" cannot thus be treated as to have the affect of continuation in length of services of the employee. An employee whose period of unauthorized absence is settled in terms of "Dies-non" even on the definition of this "Latin expression" would mean that he would certainly lose seniority for that period in his cadre/category. SRO 321 on its plain language and by the expressions used therein crystallize the benefits which are to be extended to an employee whose period of unauthorized absence from service is treated as "Dies-non". The employer being conscious that seniority in law has reference with continuous length of seryice, has not consciously, and rightly so, extended the benefit of seniority for the period of "Dies-non" to the employee. The court cannot add anything to SRO 321 and cannot declare that the intention of the employer was to give benefit of seniority in respect of period of unauthorized absence from service to the employee, when same is treated as "Dies-non". SRO 514, as already said is clarificatory and explanatory in nature. It has been clarified that the period which is treated as "Dies-non" cannot count for service benefit, otherwise, available therein. The two notification SROs are dealing with one situation which may accrue in the service career of government employees. The government cannot deal with employees covered by same circumstances in different manner, as that would give rise to an anomalous situation. It cannot be ascribed to Government that it will discriminate between the employees who constitute one single class. The notification SROs 321 and 514 are to be read down to make them in tune with the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. Both the notification SROs thus provide that the period which is settled as "Dies-non" will not count for seniority of such an employee. The notification SROs 321 and 514 are to be read down to make them in tune with the constitutional mandate contained in Articles 14 and 16 of the Constitution of India. Both the notification SROs thus provide that the period which is settled as "Dies-non" will not count for seniority of such an employee. The seniority begets from the length of service of an employee. The period of unauthorized absence treated as "Dies-non" washes away the period of service from an employee's service which is treated as "Dies-non". The said period thus cannot be treated as continuous period of service and would not count for seniority." 17. The government while passing the order No. 194-PW (R&B) of 2009 has only corrected the record. The order impugned in the writ petition does not call for any interference and it is held to be legal and valid in view of the law laid down by the Division Bench of this Court as referred to hereinabove and for the reasons recorded in this judgment. 18. The communications which are called in question being fall out of the Government order No. 194-PW (R&B) of 2009 on the same reasoning does not call for any interference. 19. The FIR registered against the petitioner cannot be quashed as it is the statutory duty of the police station to register a case when it is brought to their notice that a cognizable offence has been committed. It is the statutory duty of the Police to investigate the case and to find the truth or otherwise. The investigation cannot be halted in its tracks only when FIR is lodged. The FIR sought to be quashed does prima-facie discloses commission of offence mention whereof is made in the said FIR. 20. The submission that before passing the impugned order the petitioner was to be heard cannot be countenanced in the fact situation of this case. Doctrine of natural justice is not an unbridled horse. 21. Rules of 1979 would not prevent authorities to deal with case and settle same on the doctrine of Dies-non. In the fact situation of this case settling the unauthorized period of absence from duty as dies-non was in fact a favour done to petitioner, who, otherwise, would have suffered dismissal from service had the departmental inquiry be taken to its logical conclusion. In the fact situation of this case settling the unauthorized period of absence from duty as dies-non was in fact a favour done to petitioner, who, otherwise, would have suffered dismissal from service had the departmental inquiry be taken to its logical conclusion. It is why petitioner was satisfied with 2000 order and acted on it. The petitioner is precluded to challenge the action initiated against him on reasons given in this judgment. 22. This writ petition is found to be meritless and is accordingly dismissed alongwith connected CMPs. Registry is directed to place copy of the judgment passed in LPA No. 98/2005 on the record of this writ petition.