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2013 DIGILAW 572 (JK)

State v. Shakti Bala

2013-09-24

ALI MOHAMMAD MAGREY, Virender Singh

body2013
Per Virender Singh, J. 1. Dr. Shakti Bala, respondent herein (hereinafter to be referred to as `petitioner') remained absent from duty unauthorisedly from 24.03.1986 up to 15.06.1994 which period was treated as dies non under Article 163 of Jammu and Kashmir Civil Service Rules, consequently an order No. HME of 1998 dated 21.05.1998 came to be passed by Commissioner/ Secretary to Government Health F.W and Medical Education Department which reads: "The unauthorized absence period of Dr. Shakti Bala Assistant Surgeon from 24.03.1986 to 15.06.1994 is hereby treated as dies-non under Article 163 of Jammu and Kashmir CSRs not counting for pay increments and pension. This is in continuation to letter of even No dated 31.05.1994" 2. Aggrieved of the aforesaid order, the petitioner filed SWP No. 438/2002 seeking its quashment, asserting therein that she, in fact, submitted her joining report on 22.01.1991 in the office of Directorate of Health Services, Jammu (respondent No. 3 in the writ petition), but, instead of allowing her to perform her duty, referred the matter to Principal Secretary and Secretary to Government Health and Medical Education Department, Jammu(respondent No. 2 in the writ petition) and thereafter Government Order No. MDG-245/89-S-32 dated 31.05.1994 came to be passed, pursuant thereto she submitted her joining report on 16.06.1994. The case set up by the petitioner before learned Writ Court was that the delay in not accepting her joining report was attributable to the officials respondents only. 3. The plea of the petitioner was refuted by the appellants/official respondents by filing a detailed reply stating therein that when the petitioner was not joining her duties for a considerably period, she was reverted back to the Health Department vide Government Order No. 537-HME of 1987 dated 10.10.1987 and when she did not join thereafter also, a show cause notice was issued upon her. It was further stated in the reply that the petitioner submitted her joining report on 22.01.1991, but thereafter her whereabouts were not known. However, it was admitted that the matter was sent to Administrative Department and ultimately after considering her case, vide Government Order No. MDG/89-S-332 dated 31.05.1994 she was asked to join the duty and she submitted her joining report on 16.06.1994, as such, unauthorized absent was treated as dies-non from 24.03.1986 to 15.06.1994. 4. However, it was admitted that the matter was sent to Administrative Department and ultimately after considering her case, vide Government Order No. MDG/89-S-332 dated 31.05.1994 she was asked to join the duty and she submitted her joining report on 16.06.1994, as such, unauthorized absent was treated as dies-non from 24.03.1986 to 15.06.1994. 4. Learned Writ Court found fault at the end of the official respondents and accepted the plea of the petitioner, as such, observed that the period mentioned in the aforesaid Government Order No. HME of 1998 dated 21.05.1998 impugned in the writ petition shall not be treated as dies-non holding the petitioner entitled to all the consequential benefits including her seniority. Aggrieved thereof, the State is before us through the medium of instant Letters Patent Appeal which stands admitted vide order dated 18.11.2002 with an interim direction that there shall be no monetary flow out of the judgment. 5. Perusal of one of the short orders (Zimni order) dated 27.11.2003 indicates that the Court at one stage had taken a serious note of the fact that after serving of a show cause notice upon the petitioner for terminating her services for remaining unauthorisedly absent from duty challenge to which was thrown by her by filing another writ petition which came to be dismissed as withdrawn, what action was taken by the concerned department vis-a-vis the said notice for which the Court felt the necessity of perusing the record on a particular date, on which date, the matter was adjourned for absence of learned counsel for the petitioner, although the record was made available to the Court. The instant appeal thereafter is posted in September 2013 only and during this period the petitioner retired from service. We, therefore, refrain from commenting upon that aspect. 6. Heard Mrs. Goswami learned Dy. AG and Mr. Gandotra learned counsel for the petitioner and perused the Writ Court record. 7. Mrs. The instant appeal thereafter is posted in September 2013 only and during this period the petitioner retired from service. We, therefore, refrain from commenting upon that aspect. 6. Heard Mrs. Goswami learned Dy. AG and Mr. Gandotra learned counsel for the petitioner and perused the Writ Court record. 7. Mrs. Goswami submitted that the case set up by the petitioner vis-a-vis her joining on a particular date i.e 22.01.1991 was refuted vehemently, stating that, no doubt, she had submitted her joining report on 22.01.1991, but the matter was referred to Administrative Department for appropriate orders and thereafter her whereabouts were not known and it is only after passing of aforesaid order dated 31.05.1994 the petitioner submitted her joining report on 16.06.1994 in the office of Directorate of Health Services from where she was adjusted at ICDS Billawar. Learned State counsel submitted that whatever is stated by the official respondents before learned Writ Court is not controverted by the petitioner by filing any counter affidavit, therefore, no fault can be attributed to the official respondents and it is on the basis of the joining report only that the period from 24.03.1986 up to 15.06.1994 has been treated as dies-non. 8. Mrs. Goswami further submitted that the learned Writ Court has virtually given bucket full of relief to the petitioner holding her entitled to all the consequential benefits including her seniority despite the fact that she suffered break and discontinuation in the length of her services on account of her remaining unauthorisedly absent from duty. According to her, such type of concession, if granted, would become a bonanza which will encourage indiscipline in the Government service. In support of her submissions, she relied upon a Division Bench Judgment of this Court rendered in case titled Mohammad Afzal Wani (Dr) v. State and ors, reported in 2009 (Supp) JKJ 369 [HC]. 9. Mr. Gandotra is not able to wriggle out of the factual situation that the petitioner has not categorically refuted the specific stand taken by the official respondents before the learned Writ Court with regard to the period from September 1991 up to passing of the aforesaid order dated 31.05.1994 pursuant to which the petitioner joined on 16.06.1994. He, however, submitted that the petitioner had been moving representations after 21.09.1991 which bald statement we are not going to accept. He, however, submitted that the petitioner had been moving representations after 21.09.1991 which bald statement we are not going to accept. Even otherwise, the petitioner could not ask for accepting her joining report on 21.09.1991 as matter of right after remaining absent from duty unauthorisedly right from 24.03.1986. Undoubtedly, the matter was required to be considered by the Administrative Department. 10. Concept of `dies-non' has been extensively considered by the Division Bench of this Court in Mohd Afzal Wani's case (supra) vis-a-vis all the aspects including the seniority of an employee in which the Bench ultimately agreed with the view taken by Division Bench of this Court in another case titled Dr. Ashiq Hussain v. State and ors, reported in 2004(1) SLJ 143: 2004 (1) JKJ[HC] 438. It would be apt to reproduce para 22 of Mohd Afzal Wani's case (supra). It reads: "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 unauthorisedly absent from duty cannot be given the benefit of seniority, as the fall out of such an action would not only be illegally 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." 11. The case set up by the appellants-State, in our considered view, is squarely covered by the ratio of Mohd Afzal Wani's case (supra). In the aforesaid backdrop, the judgment impugned herein passed by learned Single Judge in SWP No. 438/2002 deserves to be set aside, upholding the Government Order No. 384-HME of 1998 dated 21.05.1998. The case set up by the appellants-State, in our considered view, is squarely covered by the ratio of Mohd Afzal Wani's case (supra). In the aforesaid backdrop, the judgment impugned herein passed by learned Single Judge in SWP No. 438/2002 deserves to be set aside, upholding the Government Order No. 384-HME of 1998 dated 21.05.1998. Ordered accordingly. 12. Resultantly, appeal on hand stands allowed, in turn, SWP No. 438/2002 filed by the petitioner stands dismissed. 13. Disposed of along with CMA No. 529/2002.