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2025 DIGILAW 209 (MP)

Krishnapal Singh Tomar v. State of M. P.

2025-03-21

SUBODH ABHYANKAR

body2025
JUDGMENT 1. This petition has been filed by the petitioner under Article 226 of the constitution of India seeking following relief:- "(a) to call for the relevant records of the ‘case; (b) to quash the impugned order dated 24.4,2006 (Annexure P/1) as amended by impugned order dated 6.12.2022 (Annexure P/2), by a writ of CERTIORARI or any other appropriate writ, direction or order; (c) to command the Respondents to grant annual increment to. petitioner falling due on 1.7.2006 in the pay scale of Rs. 5200- 20200/-1900/- and to refix the pay of the petitioner and to release arrears thereof along with interest @ 12% p.a. by a writ of MANDAMUS or any other appropriate writ, direction or order; (d) to allow this petition with costs; (e) to pass such other order(s) as this Hon’ble Court may deem fit in the fact and circumstance of the case to grant relief to the petitioner;" 2. The petitioner is aggrieved by the order dated 6.12.2022 (Annexure P/2), whereby, it has been held that the petitioner was absent for a period of five days, i.e, from 18.3.2006 to 22.3.2006 without any leave. Prior to this order, order dated 24.4.2006 (Annexure P/1) was also passed in which the name of the petitioner was wrongly mentioned as Kalyan Singh instead of Krishnapal Singh Tomar. However, the aforesaid mistake was rectified subsequently, vide the impugned order dated 6.12.2022. 3. Counsel for the petitioner has submitted that the case of the petitioner is squarely covered by an order passed by the coordinate Bench of this Court in the case of Ali Hussain Asgar Ali v. State of M.P. and another reported as 1983 M.P.L.J 775 wherein while considering the same issue of leave without absence, this Court has opined that the only course available to the State in case of absence without leave is to proceed against the employee under rule 24 of the M.P. Leave rules, 1977, and it should be preceded by a notice, and if required, with a disciplinary action. 4. Counsel for the petitioner has submitted that the aforesaid rules of 1977 are also applicable to the present petitioner, and hence, the decision in the case of Ali Hussain Asgar Ali (supra) is also applicable with full force in the present case. 5. Counsel for the respondent/State has opposed the prayer and it submitted that no case for interference is made out. 5. Counsel for the respondent/State has opposed the prayer and it submitted that no case for interference is made out. It is also submitted that the petitioner has never raised any objection in the year 2006 and 2009 despite the fact that his increment was due. 6. In rebuttal, counsel for the petitioner has submitted that before passing the impugned orders, the petitioner was not given any opportunity of hearing and even the service book was not provided to him and he was also not made aware that earlier such orders were passed against him. 7. Be that at it may, taking note of the fact that the impugned order 6.12.2022 (Annexure P/2) has been passed against the petitioner without affording him any opportunity of hearing and without following the due procedure as prescribed under the rules of 1977, this Court is of the considered opinion that the petitioner has made out a case for interference also in the light of the decision rendered by the coordinate Bench of this Court in the case of Ali Hussain Asgar Ali (supra), the relevant paragraph 6 of which reads as under:- "6. Learned Government Advocate, on the other hand contended that the petitioner was not expected to avail of the leave before it is sanctioned and the Government was not bound to grant leave when an application for leave was submitted. In the return it has also been stated that medical certificates in proper form were not furnished. But that controversy is not of much consequence as apparently the leave was not sanctioned and the only question in the petition is as to whether the impugned order directing that this period of unauthorised absence be treated as break in service could be justified under any of the rules. It was contended, therefore, that even under rule 7 of the M.P. Civil Services (Conduct) rules, 1965, a Government servant if proceeded on leave before it is sanctioned the authority competent to sanction leave has to record in writing ipso facto sanction for leave already availed of. But it is not in dispute that in this case no such orders were passed. But it is not in dispute that in this case no such orders were passed. Learned Government Advocate attempted to refer to Fundamental rule 18, but that rule is of no consequence as that rule only provides that no Government servant shall be granted leave of any kind for a continuous period exceeding five years and it is not in dispute that in this case the leave which was sought only was for six months, although prayer was made for its extension but still the total period is not more than six months. Rule 24 of the Madhya Pradesh Leave rules, 1977, which will apply to the case of the petitioner, reads: “24. Absence after expiry of leave—(1) Unless the authority competent to grant leave extends the leave, Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave to the extent such leave is due, the period in excess of such leave due being treated as extra-ordinary leave. (2) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.” It is clear that sub-rule (1) provides that when a Government servant remains absent after expiry of leave he is entitled to no leave salary but it has been further provided that such period shall be debited against his leave account as though it were half pay leave to the extent such leave is due and the period in excess of such leave due being treated as extra-ordinary leave. Sub-rule (2) further provides that wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. It is, therefore, clear that on the facts as they stand that the petitioner remained absent without the leave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under sub-rule (2) of rule 24. It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21.7.1979. It could not be contended that the orders which were passed could be passed under sub-rule (1) and the learned Government Advocate could not refer to any rule which could justify an order as has been passed in this case, i.e. the order dated 21.7.1979. It is also not in dispute that if the State Government has chosen to act under subrule (2) of Rule 24, then it was necessary to follow the procedure of inquiry, which admittedly has not been done in this case. If it was chosen to act under sub-rule (2) then disciplinary action could only be taken after following the proper procedure. Admittedly, before passing of this order dated 21.7.1979 even a notice was not issued to the petitioner to pass such an order. It is, therefore, plain that this order which was passed by the State Government against the petitioner could not be justified under any of the rules framed under Article 309 of the Constitution of India." (Emphasis supplied) 8. In view of the aforesaid, this Court has no hesitation to hold that the impugned orders dated 24.4.2006 (Annexure P/1) and order dated 6.12.2022 (Annexure P/2), cannot be sustained in the eyes of law, and the same are hereby quashed. 9. Let the necessary consequential benefit shall be extended to the petitioner within a period of four weeks. 10. Accordingly, the petition stands disposed of.