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Madhya Pradesh High Court · body

2022 DIGILAW 1200 (MP)

Ram Prasad Saral v. State of M. P.

2022-09-27

ANAND PATHAK

body2022
ORDER 1. The present petition is preferred by the petitioner being crestfallen by the order dated 8.7.2014 (Annexure P-1) passed by the Additional Director (Administration) from the Office of Directorate Health Services by which case of the petitioner on the basis of non-authorized absence for the period of 21.6.2011 to 25.11.2011 and from 1.12.2011 to 17.1.2012 was treated as Diesnon. 2. Precisely stated facts of the case are that petitioner was holding the substantive post as Medical Specialist (Class-I Officer) in Public Health and Family Welfare Department. At the relevant point of time, petitioner was holding the post of Specialist in Community Health Center (CHC) Bhitarwar, District Gwalior in addition to the charge of Block Medical Officer. 3. Vide order dated 4.6.2011, he was transferred from Bhitarwar, District Gwalior to District Anooppur and he was relieved on 20.6.2011. As per submissions, petitioner was relieved from the additional charge of Block Medical Officer on 5.7.2011 (Annexure P-4). It appears that during that period, petitioner as well as his wife fell seriously ill and both underwent treatment but ultimately his wife succumbed to her illness and died on 16.11.2011. 4. Petitioner duly intimated his sickness to the Civil Surgeon, Anooppur vide letter dated 11.7.2011 (Annexure P-5) and he was examined by the BMO at CHC, Bhitarwar on 6.7.2011. Thereafter, he got himself examined from Dr. K.K.Tiwari (Professor and Head, Chest and Tuberculosis) at G.R.Medical Collage. Copy of relevant documents are annexed with the petition. 5. After conducting last rites of his wife and making arrangements of his 16 years old son, who was alone at Gwalior, he joined at Anooppur on 26.11.2011 and he remained there for some days from 1.12.2011 to 17.1.2012, he applied for earned leave vide Annexure P-13. On 17.1.2012, he joined at Anooppur and remained there till 9.2.2012, when he was transferred back to Bhitarwar, Gwalior. A show cause notice dated 24.2.2012 was issued to the petitioner regarding his absence for which he responded by filing reply.However, vide impugned order dated 8.7.2014, his period referred above was treated as Dies-non. 6. It is the submission of counsel for the petitioner that order is punitive in nature and without jurisdiction and can be passed only by the disciplinary authority which is State Government in the case of petitioner whereas order has been passed on behalf of the Director Health Services, not by the State Government. 6. It is the submission of counsel for the petitioner that order is punitive in nature and without jurisdiction and can be passed only by the disciplinary authority which is State Government in the case of petitioner whereas order has been passed on behalf of the Director Health Services, not by the State Government. The order entails forfeiture of one increment and therefore, could not have been passed without full fledged inquiry because petitioner denies the allegations and given explanation for his absence duly intimated from time to time. In absence of any departmental inquiry, order is vitiated. 7. Learned counsel for the petitioner relied upon 2007(3) MPHT 362 , Mahesh Kumar Shrivastava v. State of M.P. and others and raised the point that order is non-speaking order and no reason has been assigned. According to him, leave applications were submitted to the Civil Surgeon who was duly competent to allow or reject the same but it appears that applications were deliberately kept pending and Civil Surgeon did not pass any order on the application whereas sent incorrect information to the Director Health Services about absence of petitioner. Therefore, he prayed for setting aside the impugned order. 8. Learned Government Advocate opposed the prayer and submitted that since Dies-non does not have any adverse effect on the pension of the petitioner therefore, no full fledged inquiry is required. He relied upon the order dated 5.12.2018 passed in W.P.No.5350/2017 (Annexure R-1) passed by coordinate Bench of this Court at Gwalior. Therefore, he prayed for dismissal of present petition. 9. Heard the counsel for the parties and perused the documents appended thereto. 10. This is the case where petitioner has suffered Dies-non for more than 6 months. First time between 21.6.2011 to 25.11.2011, around five months and 7-8 days and another period between 1.12.2011 to 17.1.2012, around one month and 17 days. As per Rule-9 of Madhya Pradesh Vetan Punrikshan, Niyam 2009, annual increment is applied on 1stJuly of every year and those employees are entitled to get increment who served more than 6 months in the relevant year, meaning thereby, if an employee completes more than 6 months in a preceding year then only he is entitled to get the increment. As per Rule-9 of Madhya Pradesh Vetan Punrikshan, Niyam 2009, annual increment is applied on 1stJuly of every year and those employees are entitled to get increment who served more than 6 months in the relevant year, meaning thereby, if an employee completes more than 6 months in a preceding year then only he is entitled to get the increment. Here, in period of year 2011-2012, petitioner suffered allegations of more than 6 months of unauthorized absence which was converted to Dies-non and therefore, he could not have received the increment on 1st July of next year. Therefore, apparently he was inflicted major penalty as per Rule-10(v) of M.P. Civil Services (Classification, Control and Appeal) 1966 (for brevity 'CCA Rules, 1966') . Once his case comes under major penalty then, as per Rule-14 of CCA Rule-1966, a detailed inquiry was required to be made. Learned Division Bench of this Court in the case of Battilal v. Union of India and Ors., 2005(3) MPHT 32 , holds as under:- “3. x x x x x x x x When the Authority directs that the period will be treated 'dies-non', it means that continuity of service is maintained, but the period treated as 'dies-non' will not count for leave, salary, increment and pension. In fact, F.R. 54 (1) casts such a duty on the authority. It provides that when a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review, the authority competent, to order 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 including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty.” 11. Learned Single Bench of this Court also had the occasion to consider such controversy in more or less identical set of facts because it has considered the scope of interplay of Dies-non vis a vis Rule-10 of M.P. CCA, 1966 and in case of Mahesh Kumar (supra) and considering the judgment of Division Bench in case of Battilal (supra) as well as the judgment of Single Bench of this Court in the case of Dr. Anil Kumar Varma v. State of Madhya Pradesh and Ors. 2005 (1) M.P.H.T. 24 (NOC) and held that due to order of Diesnon, pension of employee will be reduced hence it would amount to major penalty and therefore, regular departmental inquiry is necessary. 12. In the present case also, it appears that petitioner suffered reduction in increments and subsequently in pensionary benefits as per the impact of Rule-9 of Madhya Pradesh Vetan Punrikshan, Niyam 2009 and Rule-10 (v) of CCA Rule, 1966. It is apparent that petitioner is facing loss of increment and reduction in pension and other benefits. No clarification in this regard existed in the impugned order therefore, it makes the case of petitioner more susceptible to major penalty and thus, regular departmental inquiry was imperative. 13. Since in the present case, no regular departmental inquiry was conducted and only on the basis of show cause notice and reply, case has been decided therefore, the impugned order cannot be sustained in the eyes of law hence, set aside. However, respondents shall be at liberty to proceed against the petitioner by holding regular departmental inquiry in accordance with law. 14. Petition stands allowed and disposed of in above terms.