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2011 DIGILAW 39 (JHR)

Deobrat Sahay v. Coal India Ltd. , Kolkata

2011-01-18

D.N.PATEL

body2011
Order The present petition has been preferred for challenging the orders/communications/letters issued by the respondents, which are at Annexure 2 dated 11 th April, 2003, Annexure 4 dated 61h May, 2003, Annexure-10 dated 7th May, 2004, Annexure-11 dated 6th July 2004 and Annexure-16 dated 5th December, 2005, whereby, the present petitioner was denied the benefit of continuation of services for the period running from 20th February, 2003 to 7th May, 2003. Against this decision of the respondents, the present petition has been preferred by the petitioner and thereby the petitioner has also prayed that the respondents be directed to make payment of attached pay allowances and such other service benefits for the aforesaid period. 2. The main issue raised in this petition is as under:- "What is the meaning of the term 'dies-non' and under what circumstances the period of service of an employee can be treated 'dies-non' period?" 3. Learned counsel appearing for the petitioner submitted that the petitioner was initially appointed as Chief General Manager (Personnel), Coal India Limited and, thereafter, he was appointed as Director (Personnel), Eastern Coalfields Limited, which was the tenure post i.e. for the particular period only. Thereafter, time and again tenure of the present petitioner as a Director (Personnel) was extended and he was transferred at Central Coalfields Limited. The petitioner was appointed as Director (Personnel) on 27th May, 1997 and again the tenure of the present petitioner was extended time to time and ultimately the tenure of the present petitioner was brought to an end with effect from 19th February, 2003 as a Director (Personnel), Central Coalfields Limited and, thereafter, he was also not allowed to join his original post of Chief General Manager (Personnel), Central Coalfields Limited. 4. Aggrieved with the same, the present petitioner had preferred a writ petition bearing WP (8) No. 1036 of 2003, which was partly allowed by this Court vide order dated 8th• April, 2003 (Annexure 1), wherein, it has been held by this Court in paragraphs 21,22, 23 and 26 as under: "21. Now, the question that consequently arises for consideration is whether the petitioner would be entitled to continue on the post which he was holding prior to his appointment on lion a tenure post. 22. It is well known that lien, in service law connotes the right of a public servant to hold the post substantively to which he is appointed. Now, the question that consequently arises for consideration is whether the petitioner would be entitled to continue on the post which he was holding prior to his appointment on lion a tenure post. 22. It is well known that lien, in service law connotes the right of a public servant to hold the post substantively to which he is appointed. Existence of such lien and the incidents thereof are dependent on the service rules or terms and conditions by which public servant is governed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the later post and lien against his previous post automatically disappears. But if the rules provides to the contrary, a public servant holding substantively a permanent post retains a lien on that post during the period provided in the rule. There are circumstances where the lien of a government servant is suspended on a permanent post which he holds substantively on his appointment on a tenure post in a substantive capacity. 23. Admittedly before appointment as Director (Personnel) in Western Coalfields Limited on substantive post the petitioner was holding a substantive post of Chief General Manager in Central Mine Planning and Design Institute Ltd. There is no dispute that all these Central Coalfields Ltd., Western Coalfields Ltd., Eastern Coalfields Ltd., Central Mine Planning and Design Institute Ltd. are the subsidiary companies of Coal India Ltd. Both in the capacity of Chief General Manager and Director (Personnel), petitioner was in the service of the Coal India Ltd. There is nothing in the letter of appointment or in the terms and conditions annexed therewith which expressly provides that after the expiry of the period of five years, petitioner shall cease to be the employee of the subsidiary company of Coal India Ltd. In the impugned order dated 19.2.2003 whereby extension of the tenure was not approved, it is directed that the petitioner is relieved from his duties as Director (Personnel), Central Coalfields Ltd., Ranchi. The respondents have not shown any rule or service conditions whereby in the event of non-extension of tenure, petitioner shall cease to be the employee of the Coal India Ltd. In any circumstance, the petitioner can not and shall not be deemed to have been removed from the service of the subsidiary company before attaining the age of superannuation only' because the tenure of service as Director expired. In that view of the matter, in my considered opinion, petitioner is entitled to continue as Chief General Manager of the subsidiary company of Coal India Ltd. 26. Taking into consideration the entire facts and circumstances of the case and the law discussed hereinabove, in my considered opinion, for the reasons aforesaid, the impugned order cannot be held to be illegal, arbitrary, malafide, discriminatory or violative of principle of natural justice and the same needs no interference by this Court. However, I hold that the petitioner is entitled to continue in the post of Chief General Manager which he was holding prior to his appointment as Director (Personnel). The respondents are directed to issue office order forthwith latest by 15th April, 2003 posting the petitioner as Chief General Manager in the respondent-company." In view of the aforesaid decision, the petitioner was not allowed to continue as Director (Personnel), Central Coalfields Limited rather he was allowed to resume the duties as Chief General Manager (Personnel), Coal India Limited. It is contended by learned counsel for the petitioner that in pursuance of the aforesaid decision, an order was passed by the respondents dated 11th April, 2003 (Annexure-2) to the effect that the petitioner may join as Chief General Manager (Personnel) but the period running from 20th February, 2003 till his date of joining will be treated as "diesnon". This condition has been continued in several other consequential written letters. The petitioner has objected this conditional joining. 5. It is further submitted by !earned counsel for the petitioner that the order passed by the learned Single Judge has never quoted such type of condition regarding joining of the petitioner and, therefore, such condition can never be added by the respondents. The order passed by the learned Single Judge has never been challenged by the respondents in the Letters Patent Appeal. On the contrary, the present petitioner had preferred a Letters Patent Appeal bearing LPA. The order passed by the learned Single Judge has never been challenged by the respondents in the Letters Patent Appeal. On the contrary, the present petitioner had preferred a Letters Patent Appeal bearing LPA. No. 269 of 2003, wherein, the order passed by the learned Single Judge in the writ petition was confirmed by the Division Bench of this Court vide order dated 191h December, 2003. It has been held in paragraph 14 of the said Letters Patent Appeal, which reads as under:- "14. The peculiar circumstance in this case is that on the date on which lien granted to him for the lower post expires, the appellant was already on the Board Level Post, when extension matter was also being considered. Therefore, if the authority was not willing to extend, then they should have asked the appellant to join the lower post prior to the date of expiry of his lien on the lower post, which was not done. It, thus, leaves the appellant in quandary because on the one hand, be is not given the extension and on the other hand, his lien expired, meaning thereby that the appellant had no post to revert back. This situation is the creation of the authorities themselves. Therefore, in this peculiar circumstances, his lien despite the existence of the circulars, will be deemed to have been continuing after its expiry and the appellant can hold that post of G.M." In view of the aforesaid decision also, the petitioner was allowed to join the post of Chief General Manager (Personnel) without any condition and, therefore, this condition which is added by the respondents that the period running from 20th February, 2003 till his date of joining will be treated as "dies-non" deserves to be quashed and set aside. It is further submitted by learned counsel for the petitioner that in various communications, this phraseology has been used with one more rider given in the order dated 7th May, 2004 (Annexure 10) that "dies-non" period is regulated as per extant rules. It is also submitted by learned counsel for the petitioner that there are no such type of rules. This contention is raised in paragraph 19 of the petition, which has not been replied by the respondents that which are these rules and what is the meaning of the words 'extant rules'. It is also submitted by learned counsel for the petitioner that there are no such type of rules. This contention is raised in paragraph 19 of the petition, which has not been replied by the respondents that which are these rules and what is the meaning of the words 'extant rules'. In fact, the petitioner ought to have been allowed to join the duties as Chief General Manager (Personnel), Central Coalfields Limited without any condition, as per the order passed in the writ petition and confirmed in the Letters Patent Appeal. 6. Learned counsel for the petitioner has taken this Court to various dictionary. meanings as" well as reference has also been pointed out to CCS-Central Civil Services (Classification, Control and Appeal) Rules, 1965 to be read with Post and Telegraph Manual (Vol. III) Rules 62 thereof and it is submitted by learned counsel for the petitioner that the period runnings from 20th February, 2003 to 7th May, 2003 cannot be treated as "diesnon". In the facts of the present case, there was. no error on the part of the petitioner and wrongly the petitioner was not allowed to join the duties as Chief General Manager (Personnel) with effect from 20th February, 2003 and, therefore, the petitioner was compelled to file• the writ petition bearing W.P. (S) No. 1036 of 2003 and even after the decision in the writ petition a rider/condition has been added which was never directed in the writ petition's order passed by this Court and, hence, the orders/communications/letters at Annexures 2, 4, 10, 11 and 16 deserves to be quashed and set aside and the respondents may be directed to make payment of salary and other allowances and to provide him the service benefits for the period running from 20th February, 2003 to 7th May, 2003;. 7. 7. Learned counsel for the respondents submitted that after the decision rendered by this Court in W.P. (S) No. 1036 of 2003 dated 8th April, 2003, a letter at Annexure 2 to the memo of the petition dated 11th April, 2003 was written and the petitioner was permitted to resume the duties as Chief General Manager (Personnel), but, as the petitioner has not joined the duties, the period for which the petitioner has not worked as Chief General Manager (Personnel) should be treated as "dies-non" i.e. the period for which the petitioner has not performed his duties and, therefore, in the communications, which are referred hereinabove, the clause "dies-non" has been used by the respondents and, therefore, the petitioner is not entitled for any salary, allowances and other benefits for the period running from 20th February, 2003 till the date of joining of the present petitioner as Chief General Manager (Personnel). 8. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, I hereby quash and set aside the orders/communications/ letters, issued by the Government, which are at Annexures 2, 4, 10, 11 and 16 mainly for the following facts and reasons:- (i) The present petitioner was initially working as Chief General Manager (Personnel) with Coal India Limited and, thereafter, he was appointed for a fixed term as Director (Personnel), Eastern Coalfields Limited with effect from 27th May, 1997. (ii) The aforesaid post of the Director (Personnel) was a tenure post for a period of five years and his term was extended upon completion of the fixed tenure. (iii) It appears from the facts of the case that the services of the present petitioner were not extended as Director (Parnell) with effect from 19th February, 2003 and he was also not allowed to resume the duties as Chief General Manager (Personnel), Coal India Limited, (iv) It also appears from the facts of the case that thereafter a writ petition bearing WP (8) No. 1036 of 2003 was preferred by the present petitioner, which was partly allowed, as stated hereinabove, since the petitioner was not allowed to continue as Director (Personnel), rather he was allowed to resume the duties as Chief General Manager (Personnel), Coal India Limited and considering his lien upon the said post, the directions have been given in paragraphs 21, 22, 23 and 26 of the aforesaid writ petition. (v) It further appears from the facts of the case• that after this decision, conditional joining was allowed to the petitioner as per communication dated 11th April, 2003 (Annexure 2), wherein, it was stated by the respondents. that the petitioner is allowed to join the post as Chief General Manager (Personnel) and the period running from 20th February, 2003 till the date of his joining, will be treated as "dies-non". This rider has again given another cause of dispute between the parties and consequently the petitioner pursued that the aforesaid period cannot be treated as "dies-non". This contention cannot be allowed to be attached with the joining letter at Annexure 2 because there was no fault lies on the part of the petitioner. Moreover, the order passed in the aforesaid writ petition is also not a conditional one. Unconditionally, the petitioner was permitted to join the duties as Chief General Manager (Personnel). What is not written in the order passed by this Court in the aforesaid writ petition cannot be permitted to be presumed by the respondents. Initially, the petitioner was already working as Chief General Manager (Personnel) and for a limited period of five years, the petitioner was appointed as Director (Personnel), which is a tenure post. Once the tenure is over, as per the lien of the petitioner, he will be again reverted back to his original post i.e. the Chief General Manager (Personnel), which was a mistaken belief of the respondents while not extending the period of the Director (Personnel) that the petitioner cannot also have a lien upon the original post i.e. of Chief General Manager (Personnel).This mistaken belief is corrected by the order of this Court in the writ petition and the respondents were directed to allow the petitioner to have his lien upon the post of Chief General Manager (Personnel). In paragraph 26 of the aforesaid writ petition, it has been ' directed by this Court that the petitioner is entitled to continue on the post of Chief General Manager (Personnel), which he was holding prior to his appointment as Director (Personnel) because the respondents were directed to issue office order forthwith. In paragraph 26 of the aforesaid writ petition, it has been ' directed by this Court that the petitioner is entitled to continue on the post of Chief General Manager (Personnel), which he was holding prior to his appointment as Director (Personnel) because the respondents were directed to issue office order forthwith. It ought to be kept in mind by the respondents that always the judgment delivered by a Court of law is after some time from the date of dispute between the parties and, therefore, whenever the decision is rendered by a Court, it will have its effect from the retrospective date. The petitioner was wrongly not allowed to resume the duties as Chief General Manager (Personnel), upon completion of his tenure post as Director (Personnel) and, therefore, a direction was given in the writ petition vide order dated 8th April, 2003. (vi) Looking to the order passed by this Court in WP(S) No. 1036 of 2003, it appears that no such condition was attached that the period running from 20th February, 2003 till the date of joining as a Chief General Manager (Personnel) by the petitioner will be treated as "dies-non" period. On the contrary, looking to paragraphs 21, 22, 23 and 26 of the order of the writ petition, it appears that clear direction was given to the respondents to issue office order forthwith to the petitioner and it was held that the petitioner is entitled to continue. These words, "entitled to continue", state that there is no break in service and as such, the period cannot be treated as "dies-non", No such condition was ever granted by this Court for resuming the duties. The order passed by this Court in WP{S) No. 1036 of 2003 was never challenged by the respondents by way of appeal and, therefore, such condition can never be attached in the communication at Annexure-2 dated 11th April, 2003 and, therefore, the communication at Annexure-2 was wrong as it treats the period running from 20th February 2003 till the date of joining of the petitioner on the post of Chief General Manager [Personnel) as a "dies-non", deserved to be quashed and 'set aside. (vii) It further appears from the facts of the case that that aforesaid decision was challenged by the petitioner in L.P.A. No. 269 or 2003 and the decision of the writ petition was confirmed by the Division Bench of this Court and it was held in paragraph 14 of the said judgment that in the peculiar circumstance, his lien despite the existence of .the circulars, will be deemed to have been continuing after its expiry and the appellant (petitioner herein) can hold the post of General Manager. Thus by the Division Bench of this Court also no condition during the period running from 20th February', 2003 till the date of joining was put, directing the respondents to consider the said period, as "dies-non" period. Looking to the paragraph 14 of the decision rendered by the Division Bench of this Court in the aforesaid L.PA, it, appears that condition attached by the respondents in their communications at Annexures 2, 4, 10, 11 and 16 that the period running from 20th February, 2003 till the joining of the post of Chief General Manager (Personnel) will be treated CG "dies-non" period, deserves to be quashed and set aside. (viii) The meaning of "dies-non" as per different dictionaries and Law Lexicon is as under:- "(a) Black's Law Dictionary (6th edition at Page 455) gives the following meaning: "Dies non-An abbreviation of Dies non iridaceous. Dies non-A day not juridical; not a court day. A day on which courts are not open for business, such as Sundays and some holidays." (b) The New Shorter Oxford English Dictionary (Thumb Index Edition-Vol. 1 at page 667): "Dies non-dies non juridical. Dies non juridical-=Law : a day on which no legal business is done" (c) Advanced Law Lexicon-P. Ramanatha Aiyar (3rd Edition 2005 at page 1372): "Dies non. (Lat.) A day which is regarded by the law as one on which no judicial act can be performed, or legal diligence used. (Trayner) An abbreviation of the phrase "dies non juridicus", non-judicial days-days during which the courts do not transact any business-as Sunday or the legal holidays. (Havens vs. Stiles, 56 LRA 736). It is frequently said that Sunday is "dies no juridicus" but this means only that process cannot ordinarily issue or be executed or returned, and courts do not usually sit, on that day; It does not mean that no judicial action be had on that day. (Havens vs. Stiles, 56 LRA 736). It is frequently said that Sunday is "dies no juridicus" but this means only that process cannot ordinarily issue or be executed or returned, and courts do not usually sit, on that day; It does not mean that no judicial action be had on that day. On the contrary, it is laid down in books of authority that warrants for treason, felony and breach• of the piece may be issued and executed on that day. (State vs. Ricketts, 74 N.C. 187, 193). A day on which the Courts do not ordinarily sit or carryon business; a day on which general business may not lawfully be transacted. A day on which a law-Court is not held. A day that is not counted for some purpose. For example, Saturday and• Sunday are not counted as days of the working week. See also Non-business days. (Trade Finance)" (d) Legal Maxims & Phrases Law Lexicon-cum-Digest-N.M. Mulchandani (Daulat Publications, at page 22):- "Dies non: An abbreviation of the phrase 'dies non injudicious' : non indicial days. days during which the Courts do not. " Dies: "A day" Dies Fasti: "Business day" Dies Feriati: "Holidays" Dies Solis: "Sunday" (e) Wharton's Law Lexicon (14th edition - at page 329): "Dies non juridicus, or Dies non, not a court day." (ix) It further appears from the correspondence at Annexure-10 dated 7th May, 2004 that the "dies-non" period will be regulated as- extant rules. It appears that there are no such extant rules as referred at communication at Annexure-10. The allegation levelled in paragraph-19 has not been properly answered in the counter affidavit. Even, on being asked, learned counsel for the respondents is unable to point out what are those extant rules and how any period can be treated as "dies-non" period. (x) In fact, the period running from 20th February, 2003 till date of joining of the present petitioner cannot be treated as "dies-non" period. Absence of an official from duty without prior permission or while on duty, if the officer leaves the office without prior permission or while in the office, any officer refused to perform his duties asked to him is subversive of discipline. In such type of cases, the period can be treated as "dies-non" period. Absence of an official from duty without prior permission or while on duty, if the officer leaves the office without prior permission or while in the office, any officer refused to perform his duties asked to him is subversive of discipline. In such type of cases, the period can be treated as "dies-non" period. In case of such absence of work, the rule sanctioning authority may order that the post on which the work is not performed be treated as "dies-non" i.e. it will neither be counted as service nor be construed as break in service. Thus, only in three circumstances. a period can be treated as "dies-non" period. which are as under:- (a) where any official remains absent from duty without prior permission; (b) while on duty, in office, any official has left the office, without prior permission; and (c) when the official remains in office, but, refuses to perform the duties assigned to him. In these three circumstances, the period can be treated as a "dies-non" period. (xi) In the facts of the present case, it appears that the respondents have not allowed the petitioner to retain the lien upon the post of Chief General Manager (Personnel). Consequently, the petitioner has to pursue the respondents that he should be retained on lien against the original post, when the tenure post comes to an end, but, because of the behaviour of the respondents, the writ petition bearing WP(S) No. 1036 of 2003 was instituted and it was decided in favour of the petitioner vide order dated 8th April, 2003 that the petitioner retains the lien upon the post of Chief General Manager (Personnel) and the respondents were directed to issue the joining order of the petitioner. This order was even confirmed in the L.P.A. No. 269 of 2003 by the Division Bench of this Court vide order dated 19th December, 2003 especially in paragraph-14 thereof. Thus, the respondents cannot be allowed to take benefit of their own• wrong. It is the respondents, who have not allowed the petitioner to resume the duties as Chief General Manager (Personnel) and, therefore, some time• has gone in the litigation and further directions by this Court and once the tenure post comes to an end, the petitioner ought to have been allowed to resume the duties as Chief General Manager (Personnel), immediately, because there was lien on the same post. In view of the order passed in WP(S) No.1036 of 2003 and the order passed in L.PA No. 269 of 2003, the period running from 20th February, 2003 till the joining of the petitioner as Chief General Manager (Personnel) i.e. upto 7th May 2003 cannot be treated as "dies-non" period. (xii) I therefore quash and set aside the orders/communications/letters, which are at Annexure-2 dated 11th April, 2003, Annexure-4 dated 6th May, 2003, Annexure-10 dated 7th May, 2004, Annexure-11 dated 6th July, 2004 and Annexure-16 dared 5th December, 2005, so far as it affects the present petitioner, and the condition attached with the joining of the post of Chief General Manager (Personnel) by the petitioner for the period running from 20th February, 2003 to 7th May, 2003 cannot be treated as "dies-non" period. I therefore direct the respondents to make the payment of salary for the period running from 20th February, 2003 to 7th May, 2003 along with other admissible allowances and the benefits attached with the service of the present petitioner as Chief General Manager (Personnel). 9. The petition is, hereby, allowed and disposed of.