Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 425 (JK)

Mohammad Iqbal Lone v. State of J&K

2019-09-24

ALI MOHAMMAD MAGREY

body2019
JUDGMENT : Ali Mohammad Magrey, J. By this petition, the petitioner is seeking a ‘Writ of Certiorari’ for quashing the order bearing No. 487 of 2010 dated 29th of May, 2010 issued by the Senior Superintendent of Police, Anantnag/ respondent No.4 insofar as it relates to treating the period of his discharge w.e.f. 18th of June, 1998 to 4th of August, 2009 as ‘Dies-non’. A ‘Writ of Mandamus’ is also sought by the petitioner in the name of the respondents commanding them to treat the period of his discharge w.e.f. 18th of June, 1998 to 4th of April, 2009 as on duty and pay him all the consequential benefits. 2. The case of the petitioner is that he came to be appointed as a Constable in the respondent Department and was, subsequently, allotted belt No. 1046. It is stated that the petitioner has been discharging his duties in the respondent Department to the best satisfaction of his superiors, however, in the year 1998, the petitioner came to be discharged from service for the reason of absenting himself from duty for 68 days with effect from 29th of September, 1997 till 6th of December, 1997. Thereafter, as stated, the petitioner resumed his duties on 6th of December, 1997, wherafter an enquiry was conducted against the petitioner in ex parte culminating in the issuance of order of discharge of the petitioner. Being aggrieved, the petitioner assailed the order of discharge issued by the respondents through the medium of writ petition bearing SWP No. 858/1999 before this Court. In the said writ petition, this Court, in terms of judgment dated 12th of February, 2009, while allowing the same, not only quashed the order of discharge of the petitioner, but also gave liberty to the respondents to conduct a fresh enquiry in the matter in accordance with the rules governing the field and kept the absence from 18th of June, 1998 to 12th of February, 2009 subject to outcome of the said enquiry. The petitioner has proceeded to state that he was, thereafter, subjected to enquiry by the respondents and on competition of the said enquiry, the petitioner, while being exonerated from all the charges of carelessness and negligence, was reinstated in service. The petitioner has proceeded to state that he was, thereafter, subjected to enquiry by the respondents and on competition of the said enquiry, the petitioner, while being exonerated from all the charges of carelessness and negligence, was reinstated in service. Thereafter, as stated, in terms of the order No. 487 of 2010 dated 29th of May, 2010 issued by the respondent No.4, a major punishment was inflicted upon the petitioner by stopping one annual increment and treating the period of his discharge w.e.f. 18th of June, 1998 till 4th of August, 2009 as ‘Dies-non’ on the principle of ‘No Work No Pay’. Faced with this situation, the petitioner contends that he filed a review petition before the respondents with respect to the issue of treating his period of discharge as ‘Dies-non’, however, the respondents, in terms of order bearing No. 722 of 2010 dated 14th of September, 2010 rejected the same as being devoid of any merit. It is pleaded in the petition that the petitioner did not stop there and filed a series of representations before the respondents thereby requesting them to set aside the portion of the order impugned declaring the period of his discharge w.e.f. 18th of June, 1998 till 4th of August, 2009 as ‘Dies-non’, however, since all the requests of the petitioner fell in deaf ears and did not entail any response from the respondents, the petitioner, as stated, was constrained to file the instant writ petition. 3. Counter stands filed on behalf of the respondents resisting and controverting the averments made by the petitioner in his petition. It is stated that the petitioner proceeded on 03 days leave, but after expiry of the said leave period, the petitioner did not report back for duties and, instead, remained unauthorizedly absent from duty for 68 days for which a departmental enquiry was initiated resulting in issuance of order dated 18th of June, 1998 whereby the petitioner was discharged from service. It is further stated that the petitioner, thereafter, approached this Court through the medium of SWP No. 858/1999, wherein this Court quashed the order of discharge of the petitioner vide judgment dated 12th of February, 2009 and also gave liberty to the respondents to conduct fresh inquiry in accordance with the rules governing the field. It is further stated that the petitioner, thereafter, approached this Court through the medium of SWP No. 858/1999, wherein this Court quashed the order of discharge of the petitioner vide judgment dated 12th of February, 2009 and also gave liberty to the respondents to conduct fresh inquiry in accordance with the rules governing the field. The respondents have proceeded to state that in compliance of the aforesaid judgment of this Court, the petitioner was reinstated in service vide order dated 5th of May, 2011 and a departmental enquiry was initiated against the petitioner which came to be disposed of vide order dated 29th of May, 2010 whereby the annual increment of the petitioner was forfeited for a period of one year and the period of absence of the petitioner viz., from 29th of September, 1997 till 6th of December, 1997; from 28th of April, 1998 till 17th of June, 1998 and also the period of his discharge w.e.f. 18th of June, 1998 till 4th of August, 2009 was treated as ‘Dies-non’ on the principle of ‘No Work No Pay’. The respondents contend that since the petitioner remained away from the rolls of the Department w.e.f. 18th of June, 1998 till 4th of August, 2009, as such, he is not entitled to any pay or other perks ancillary to such a period for which he has never worked. In the end, the respondents have prayed that the petition of the petitioner be dismissed. 4. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. 5. In order to appreciate the controversy involved in the matter in its right and correct perspective, it shall be advantageous to reproduce the provisions of SRO 514 dated 22nd of November, 1999, in terms whereof the Government, in exercise of powers conferred by Section 124 of the Constitution of Jammu and Kashmir, re-casted the explanation to Article 163 of the Civil Services Regulations Volume 1 as under: “The word ‘Dies-non’ is an abbreviated for of ‘Dies-non Juriducus’ means a day on which no legal business is transacted or which is not reckoned for some particular purpose. The period which is directed to be treated as ‘Dies-non’ cannot therefore be counted for service benefits otherwise available for that period. The period which is directed to be treated as ‘Dies-non’ cannot therefore be counted for service benefits otherwise available for that period. In fact, the period required or ordered to be treated as ‘Dies-non’ is by way of concession for permitting the beneficiary proceeded on un-unauthorized absence for a particular period. Literal ……. Meaning of ‘Dies-non’ would boll down to mean that this period is not capable of being counted at all for purposes of possible benefits to the beneficiary. Rights which have accrued to him till the date of his proceeding on un-authorized leave or rights which may accrue to him after he is allowed to join service as a result of direction that the period of absence be treated as ‘Dies-non’ remain quite intact, but no benefit whatsoever can accrue to him as a result of call it concession or legal fiction of construing the period of un-authorized absence as ‘Dies-non’ under any circumstance. This period cannot count for any purpose, whatsoever. Accordingly, the import of the term ‘Dies-non’ is that: - (i). It does not qualify for any remuneration (pay and allowances); (ii). It does not count for pension; (iii). It does not cause any interruption for leave earned up to the date proceeding that on which the period of Dies-non has commenced; (iv). It does not cause any interruption for the past service qualifying for pension; (v). It shall not count for experience; (vi). During ‘Dies-non’ the concerned Government servant shall not be entitled to promotion; (vii). The concerned shall lose seniority in his cadre/ category by the period which is treated as ‘Dies-non’.” From an appreciation of Article 163 and the explanation appended thereto in terms of SRO supra, it becomes axiomatic that the term ‘Dies-non’ entails several consequences insofar as the service career of a Government employee is concerned. Besides, it does not qualify for any remuneration and affects pension, increment, experience, seniority and promotion, etc. of the concerned official. The provision of ‘Dies-non’ has serious consequences on the service prospects of an employee and, therefore, cannot be invoked in a casual manner. 6. From the perusal of the pleadings on record, it is not clearly forthcoming as to whether the charges of carelessness and negligence were proved against the petitioner even in the enquiry proceedings conducted by the respondents. The provision of ‘Dies-non’ has serious consequences on the service prospects of an employee and, therefore, cannot be invoked in a casual manner. 6. From the perusal of the pleadings on record, it is not clearly forthcoming as to whether the charges of carelessness and negligence were proved against the petitioner even in the enquiry proceedings conducted by the respondents. The fact that the petitioner was serving as a Police Constable and that he was discharged from service for continuous absence from duty is not in controversy. Likewise, the factum of the petitioner having assailed the order of his discharge from service before this Court and this Court having set aside the order of his discharge from service is also not in controversy. Indisputably, too, the petitioner remained out of service w.e.f. 18th of June, 1998 till 4th of August, 2009, but this cannot be treated as an unauthorized absence. The petitioner remained out of duty for the said period because of an order of discharge issued by the respondents, which order was, ultimately, declared as null and void by this Court. The petitioner was then reinstated in service on 5th of May, 2011 pending an enquiry into his conduct. However, upon culmination of the Departmental enquiry proceedings, the penalty of stoppage of annual increment for one year was ordered against the petitioner, coupled with treating the period of his discharge w.e.f. 18th of June, 1998 till 4th of August, 2009 as ‘Dies-non’ by the respondent No.4. In this backdrop, the order impugned insofar as it pertains to treating the period of discharge of the petitioner as ‘Dies-non’ is apparently illegal, arbitrary and violative of Articles 14 and 16 of the Constitution. The respondent No.4 could well justify not to disburse the salary for the period w.e.f. 18th of June, 1998 till 4th of August, 2009 on the principle of ‘No Work No Pay’, but was not justified to treat the aforesaid period as ‘Dies-non’ which has serious consequences on the service career of the petitioner. In any case, ‘Dies-non’ is not one of the penalties prescribed under the J&K Police Manual. Similar view was taken by a Co-ordinate Bench of this Court in its decision dated 1st of September, 2017 passed in SWP No. 2008/2015 titled ‘Nazir Ahmad Baba v. State of JK & Ors.’ 7. In any case, ‘Dies-non’ is not one of the penalties prescribed under the J&K Police Manual. Similar view was taken by a Co-ordinate Bench of this Court in its decision dated 1st of September, 2017 passed in SWP No. 2008/2015 titled ‘Nazir Ahmad Baba v. State of JK & Ors.’ 7. In view of the preceding analysis, the petition of the petitioner is allowed, as a sequel thereto, the order impugned insofar as it pertains to treating the period of discharge of the petitioner from 18th of June, 1998 till 4th of August, 2009 as ‘Dies-non’, is quashed. However, the petitioner shall not be entitled to any salary for the aforesaid period only on the principle of ‘No Work No Pay’. 8. Writ petition disposed of as above, alongwith the connected IA.