Allowed¶10

Bali Ram Chaurasia v. State Of Chhattisgarh

Chhattisgarh HC9 Jun 2024WPS/49/2016

Case brief

AI extract

What is this about?

dies non; absence after expiry of leave; declaration of dies non without departmental enquiry; punitive order; Rule 7 Chhattisgarh Civil Services (Conduct) Rules 1965; Rules 22 and 24 Chhattisgarh Civil Services (Leave) Rules 1977; Chhattisgarh Civil Services (Classification, Control and Appeal) Rules 1966; suspension revoked; transfer non-joining; Headmaster; District Education Officer Jashpur; Ali Hussain Asgar Ali 1984 JLJ 67; Battilal 2005 (3) MPHT 32 (DB); F.R. 54(1); Article 309; writ petition allowed; impugned order quashed; High Court of Chhattisgarh; WPS No. 49 of 2016; decision 10.06.2024.

What did the court decide?

The impugned order dated 30.11.2015 declaring the period as 'dies non' was quashed, and the concerned authorities were directed to proceed strictly in accordance with law; the writ petition was allowed to that extent.

Bali Ram Chaurasia Vs State Of Chhattisgarh — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the order dated 30.11.2015 passed by the District Education Officer, Jashpur, declaring the petitioner's period of absence from duty (21.10.2005 to 03.08.2006) as 'dies non' without conducting any departmental enquiry, is legal, valid and sustainable.

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Court's answer

From the record it is vivid that the order of dies non was passed by the District Education Officer, Jashpur and no disciplinary enquiry was conducted by the respondent authorities before passing the impugned order dated 30.11.2015 declaring the period 21.10.2005 to 03.08.2006 as 'dies non'.

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Ratio / Principle

To declare the period of absence from duty of a public servant, in violation of Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, as dies non is a punitive order and it cannot be passed without proceeding departmentally in view of the procedure laid down under the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966.

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Key takeaways

Since the State Government passed the order holding the petitioner guilty of Rule 7 and declared the period of absence as dies non without affording him the opportunity of hearing, the order passed by the District Education Officer, Jashpur is not sustainable in the eyes of the law; consequently the impugned order is quashed and the concerned authorities are directed to proceed strictly in accordance with law.ratio¶10

Detailed headnote1 paragraphs

HIGH COURT OF CHHATTISGARH, BILASPUR — WPS No. 49 of 2016 (Rakesh Mohan Pandey, J.), decided 10.06.2024: Dies non imposed without departmental enquiry is punitive and unsustainable. The District Education Officer, Jashpur's order dated 30.11.2015 declaring a serving Headmaster's absence from duty from 21.10.2005 to 03.08.2006 (09 months & 13 days) as 'dies non' was passed without any disciplinary enquiry. Holding that declaration of absence, in violation of Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, as dies non is a punitive order that cannot be passed without proceeding departmentally under the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 — relying on Ali Hussain Asgar Ali v. State of M.P., 1984 JLJ 67 (M.P. High Court) and Battilal v. Union of India, 2005 (3) MPHT 32 (DB) (M.P. High Court, Division Bench) — the Court quashed the impugned order and directed the authorities to proceed strictly in accordance with law. Writ petition allowed. (Counsel had also placed reliance on Smt. Mrudula Rishi Vs. State of Chhattisgarh, Writ Petition No. 101 of 2006, and Veenu Chaudhary Vs. State of Chhattisgarh, WPS No. 2238 of 2016.)

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Page 1 of 5

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 49 of 2016

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Bali Ram Chaurasia S/o Shri Chaitu Ram, Aged About 60 Years Head Master, Government Girls Middle School, Surangpani, Block Pathalgaon, Distt. Jashpur, Civil And Revenue Distt. Jashpur, Chhattisgarh, Chhattisgarh

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---- Petitioner

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Versus

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1. State Of Chhattisgarh Through Secretary, School Education Department, Mahanadi Bhavan, Mantralaya, New Raipur, Chhattisgarh, Chhattisgarh

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2. District Education Officer, Jashpur, Distt. Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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3. Collector, Jashpur, Distt. Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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4. Assistant Commissioner, Tribal Development, Jashpur, Distt. Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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5. Block Education Officer, Pathalgaon, Distt. Jashpur, Chhattisgarh, District : Jashpur, Chhattisgarh

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---- Respondents

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For Petitioner : Mr. Manoj Kumar Sinha, Advocate For Respondents-State : Ms. Prabha Sharma, Panel Lawyer

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Hon’ble Mr. Justice Rakesh Mohan Pandey Order on Board

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10.06.2024

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1. The petitioner has challenged the legality and validity of the order dated 30.11.2015 (Annexure P-1) passed by the District Education Officer, Jashpur, District Jashpur/respondent No. 2, declaring the period from 21.10.2005 to 03.08.2006 (09 months & 13 days) as 'dies non'.

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2. Learned counsel for the petitioner would submit that the petitioner is working on the post of Headmaster in the Government School, Surangpani, Block Pathalgaon, District- Jashpur. He was initially appointed on 08.03.1980

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Page 2 of 5

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as a Teacher. The petitioner was placed under suspension and later on, his suspension was revoked vide order dated 21.10.2005 and he was posted in Govt. Middle School, Jurtela. He would further submit that the petitioner submitted a representation to the Collector, Jashpur for staying his transfer from Government Middle School, Surangpani, Block Pathalgaon to Govt. Middle School, Jurtela. He would also submit that a departmental enquiry was initiated against the petitioner, as in pursuance of the transfer order; he could not join his services at Government Middle School, Jurtela. On 02.08.2008, the Assistant Commissioner, Jashpur passed an order revoking the petitioner’s suspension and posted him at Govt. Middle School, Ludeg. He would further contend that during the suspension period, the petitioner could not join his transferred place for the period from 21.10.2005 to 03.08.2006 i.e. 09 months & 23 days, which has been declared as dies non vide impugned order dated 30.11.2015 passed by the District Education Officer, Jashpur. He would also contend that the impugned order dated 30.11.2015 passed by the District Education Officer, Jashpur is a major punishment and no departmental enquiry was conducted by respondent authorities before passing the impugned order and, therefore, the impugned order being unsustainable in the eyes of law, is liable to be quashed/setaside. In support thereof, he placed reliance on the judgment passed by the Coordinate Bench of this Court in the matters of Smt. Mrudula Rishi Vs. State of Chhattisgarh & others¹ and Veenu Chaudhary Vs. State of Chhattisgarh & others² , in support of his submission.

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3. On the other hand, learned State Counsel would oppose and submit that sufficient opportunity was afforded to the petitioner and the authorities have taken the decision strictly in accordance with the law.

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1 Writ Petition No. 101 of 2006, decided on 30.10.2013 2 WPS No. 2238 of 2016, decided on 13.01.2022

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Page 3 of 5

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4. I have heard learned counsel appearing for the parties and perused the material available on the record.

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5. From the record, it is quite vivid that the order of dies non was passed by the District Education Officer, Jashpur, District Jashpur and no disciplinary enquiry was conducted by the respondent authorities before passing the impugned order dated 30.11.2015 declaring the period from 21.10.2005 to 03.08.2006 (09 months & 13 days) as 'dies non'

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6. Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965, provides that no Government servant shall proceed on leave before it has been sanctioned provided that in a case of emergency, the authority competent to sanction leave may for reasons to be recorded in writing accord ex post facto sanction for leave already availed of.

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7. Rules 22 and 24 of the Chhattisgarh Civil Services (Leave) Rules, 1977, which speak about recall to duty before the expiry of leave and absence after the expiry of leave, provide as under:-

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“ 22. Recall to duty before expiry of leave. -A Government servant while on leave if recalled to duty before expiry of the leave, he shall be entitled:-

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(a) If the leave from which he is recalled is in India, to be treated as on duty from the date on which he starts for the station to which he is ordered, and to draw: -

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(i) travelling allowances under rules made in this behalf for the journey; and

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(ii) leave salary, until he joins his post, at the same rate at which he would have drawn it but for recall to duty.

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(b) If the leave from which he is recalled is out of India, to count the time spent on the voyage to India as duty for purposes of calculating leave, and to receive-

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(i) leave salary, during the voyage to India and for the period from the date of landing in India to the date of joining his post, at the same rate at which he would have drawn it but for recall to duty;

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(ii) a free passage to India;

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(iii) refund of his passage from India if he has not completed half the period of his leave by the date of leaving for India on recall, or three months, whichever is shorter;

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(iv) travelling allowance, under the rules for the time being in force, for travel from the place of landing in India to the place of

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Page 4 of 5

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duty.

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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 extraordinary leave.

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(2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.”

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8. In the matter of Ali Hussain Asgar Ali v. State of M.P. and another , reported in 1984 JLJ 67 , the M.P. High Court while dealing with Rule 24 of the Madhya Pradesh Leave Rules, 1977, held as under: -

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“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 willful 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 lave being sanctioned to him, and the only course open to the Government was either to act under sub-rule (1) or under subrule (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 21-71979. It is also not in dispute that if the State Government has chosen to act under sub-rule (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.”

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9. Similarly, in a decision rendered in the matter of Battilal v. Union of

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India and others reported in 2005 (3) MPHT 32 (DB) , which appears to have been taken into consideration in earlier decisions, the High Court of Madhya Pradesh while considering the meaning of dies non pertinently held as under:-

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“3......When the Authority directs that the period will be treated 'diesnon', it means that continuity of service is maintained, but the period

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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-

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(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.”

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10. Thus, from a perusal of the Rules and the law laid down by the Madhya Pradesh High Court in Battilal's case (supra) , it would appear that to declare the period of absence from duty of a public servant in violation of Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965 and further to declare the period of absence as dies non are punitive order and it cannot be passed without proceeding departmentally in view of the procedure laid down under the provisions of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966. In the case in hand, the State Government straightway passed the order holding the petitioner guilty of Rule 7 of the Chhattisgarh Civil Services (Conduct) Rules, 1965 and declared the period of absence as dies non without affording the opportunity of hearing to him. Taking into consideration the facts of the present case and the law laid down by this Court, in the opinion of this Court, the order passed by the District Education Officer, Jashpur is not sustainable in the eyes of the law. Consequently, the order impugned is hereby quashed and the concerned authorities are directed to proceed strictly in accordance with law.

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11. The writ petition is allowed to the extent indicated herein-above.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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Amita

Bali Ram Chaurasia v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Bali Ram Chaurasia v. State Of Chhattisgarh

Case brief

What is this about?

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