Allowed

Dr. Nohar Prasad Jangade v. State of Chhattisgarh

Chhattisgarh HC21 Nov 2024WPS/6087/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court held that declaring a government servant's unauthorized absence as 'Dies-Non' without initiating disciplinary proceedings is unsustainable. The court also quashed the rejection of a review application where the department's delay caused the inordinate lapse of time.

What did the court decide?

The order declaring the period of absence as Dies-Non was set aside. The order rejecting the review application on the ground of delay was also set aside.

Dr. Nohar Prasad Jangade Vs State of… — Pension and Retirement Benefits | Chhattisgarh HC (2024)

1 / 9

2024:CGHC:45921

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

WPS No. 6087 of 2019

¶6

Dr. Nohar Prasad Jangade S/o Shri Siyaram Jangade, Aged About 62 Years Senior Medical Officer, Posted At District Hospital Balodbzar, District Balodabazar - Bhatapara Chhattisgarh.

¶7

... Petitioner

¶8

versus

¶9

State Of Chhattisgarh Through Secretary, Health Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, District : Raipur,Chhattisgarh

¶10

Under Secretary, State Of Chhattisgarh, Health Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur, District Raipur Chhattisgarh.

¶11

Director, Directorate, Health Services, Chhattisgarh, Indrawati Bhawan, Atal Nagar, Raipur District Raipur Chhattisgarh.

¶12

Deputy Director, Directorate, Health Services, Chhattisgarh, Indrawati Bhawan, Atal Nagar, Raipur District Raipur Chhattisgarh.

¶13

Chief Medical & Health Officer, District Balodabazar-Bhatapara Chhattisgarh.

¶14

Civil Surgeon - Cum - Chief Hospital Superintendent, District Hospital Balodabazar, District Balodabazar Bhatapara Chhattisgarh.

¶15

... Respondents

¶16

For Petitioner : Mr. Raghvendra Pradhan, Advocate For State : Mr. Amandeep Singh, PL.

¶17

SB: Hon'ble Shri Parth Prateem Sahu, Judge

¶18

ORDER ON BOARD

¶19

22/11/2024

¶20

This petition has been filed by petitioner seeking for the following relief(s):-

¶21

Digitally NISHA signed by DUBEY NISHA DUBEY

¶22

“10.1 That, this Hon’ble Court may kindly be pleased to set aside the impugned order dated 22.6.2019 (Annexure-P/1) and order dated 11.10.2011 (Annexure-P/2) and further be pleased to direct the respondent authorities allow the application of the

¶23

2 / 9

¶24

petitioner for the sanction of leave period of 1392 days and calculate the period of 1392 days for all purposes of service period.

¶25

10.2 That, the Hon’ble Court may kindly be pleased to grant any other relief, as it may deem fit and appropriate.”

¶26

Learned counsel for petitioner submits that respondents have acted arbitrarily and discriminatory against the petitioner because application of one Sudhir Kumar Mishra, for sanction of similar nature of absence period was accepted by the same authority without there being any supporting document, however, application of petitioner for sanction of leave was arbitrarily rejected. Petitioner has enclosed medical documents of his wife along with application for sanction of leave. He contended that the order dated 11.10.2011 declaring the period of absence of petitioner for 1392 days to be ‘Dies-Non’, is without affording any opportunity of hearing and initiating departmental enquiry against petitioner. The order is having the effect of civil consequence, therefore, before passing such an order, respondent authority concerned ought to have given opportunity of hearing to petitioner. Effect of the treated period of absence as ‘Dies-Non’ would be that said period of service will not be counted for any purposes even for calculation of pensionary benefits and therefore, it cannot be imposed without a regular departmental enquiry. Hence, declaration of said period as ‘Dies-Non’ is punitive in nature. The order impugned Annexure-P/2 dated 11.10.2011 is passed in violation of principle of natural justice. In support of his contention, he placed reliance upon the order dated 21.3.2024 passed in WPS No.1610 of 2013.

¶27

Learned State counsel opposed submissions made by counsel for petitioner and raised an objection with regard to maintainability of writ petition on the ground of delay. He further submits that to avoid major punishment for his unauthorised absence of long period of 1392 days, petitioner has initially accepted the order declaring period of absence as ‘Dies-Non’, however, after

¶28

3 / 9

¶29

lapse of more than eight years, he has filed an application seeking review of the order passed by the competent authority, which was dismissed on the ground of inordinate unexplained delay. There is no error on the part of the respondent authorities in rejecting application for review on the ground of delay and laches. Petitioner cannot be permitted to take benefit of his own wrong. Petitioner cannot claim parity with order passed in favor of Sudhir Kumar Mishra because while considering application of two employees the facts of each case are to be considered by the authorities on its own merits.

¶30

Heard learned counsel for the parties and perused the documents placed on record.

¶31

Petitioner who is a qualified doctor and while posted in Primary Health Centre Temari, District Durg, proceeded on leave on 18.7.2006 for the treatment of his wife and joined the duties on 9.5.2010. Petitioner submitted application for sanction of leave for the period from 18.7.2006 to 9.5.2010 i.e. 1392 days, along with medical documents of his wife. Application of petitioner was duly forwarded to the Director, Health Services, Raipur. Respondent No.2 vide order dated 11.10.2011 rejected application of petitioner for sanction of leave for the aforementioned period. Perusal of the order dated 11.10.2011 would show that no regular departmental enquiry was conducted against the petitioner while passing the order of treating his absence of 1392 days i.e. from 8.7.2006 to 9.5.2010, as ‘Dies-Non’. The period of absence ordered as ‘Dies-Non’ will not be admissible for any purpose whatsoever. Application filed by petitioner seeking review of order dated 11.10.2011 came to be dismissed on 22.6.2019 on the ground of delay considering that the same was filed after lapse of about eight years.

¶32

From the facts pleaded in writ petition it is apparent that the impugned order is challenged by petitioner mainly on two grounds, firstly that it has been issued without holding any regular departmental enquiry; secondly, similarly situated person has been sanctioned leave of 1947 days, therefore, denial of

¶33

4 / 9

¶34

the same to petitioner is discriminatory.

¶35

In return filed on behalf of respondent State it is pleaded that considering reply authority decided not to conduct departmental inquiry against the petitioner for his unauthorized absence and his unauthorized absence is ordered and declared to be ‘Dies-Non’ for all purposes. Since the petitioner has accepted the order of ‘Dies-Non’ inasmuch as he has not challenged said order for sufficient long period, now it is not open to him to challenge the said order.

¶36

So far as the Annexure-P/1, rejection of the application dated 8.5.2019 for review of the order dated 11.10.2011 is concerned, petitioner filed an application on 18.11.2011 praying for review of the order dated 11.10.2011 and the same was forwarded by respondent No.5 to the respondent No.1 on 21.11.2011, which bears the signature and date of the forwarding authority. However, it is appearing from the record that no decision was taken on the aforementioned representation of the petitioner and thereafter last application was submitted on 3.4.2019 which came to be dismissed vide order dated 22.6.2019 on the ground that the same has been filed after lapse of eight years. The rejection of the application only on the ground of delay is arbitrary. The respondents cannot take benefit of their own wrong. They will not be permitted to take the plea of delay when they themselves have sat tight over the matter and kept the application for review of order pending without any decision for 8 long years. Petitioner cannot be made to suffer for the fault of the respondents.

¶37

From the aforementioned fact available in Annexure-P/5, it is apparent that the application for review was submitted by the petitioner within a period of one month and ten days, therefore, rejection of representation/application submitted by the petitioner on the ground of delay of 8 years, is not sustainable.

¶38

5 / 9

¶39

The order, Annexure P-2, passed by the Disciplinary Authority reads thus:-

¶40

“डॉ�. नो�हर ्ቚसा�द ाሞ��ग़ቨ�, वरिर्቗ चि�चि�त्सा� अधि��र�, धिाሞला�-द�ग� �� अनो�धि�� त अनो�पቝኌ$%चित चिदनो� 18.07.2006 सा� 09.05.2010 त� �� अवधि� �� उनो�� ቛኋ�र� अव��श $व�� त चि�ए ाሞ�नो� �� अनो�र�� चि�या� गया� ह+। डॉ�. ाሞ��ग़ቨ� �� साम्ቌ म/ चिदनो� 21.09.2011 �� सा�नोव�ई �� गई डॉ�. ाሞ��ग़ቨ� �� चिवरु्ቍ *चिवभा�ग�या ाሞ� � नो �रत� ह4ए र�ज्या श�सानो एतቛኋ�र� अनो�धि�� त अनो�पቝኌ$%चित चिदनो� 18.07.2006 सा� 09.05.2010 ��ला 1392 चिदवसा �� अ��या� चिदवसा (डॉ�य ा नो�नो) म�न्या * �रत� ह+। उ्ሹ अवधि� सा�व� �� चि�सा� ्ቚया�ाሞनो ह�त� म�न्या नोह8 ह�ग�।"

¶41

A bare perusal of order, Annexure P-2, would show that the Disciplinary Authority considering the request of petitioner to sanction the leave for the period of unauthorized absent i.e. from 18.7.2006 to 09.05.2010, has decided not to conduct disciplinary inquiry against petitioner and to treat the period of his unauthorized absence as dies-non and accordingly, period of unauthorized absence for the aforementioned period was treated as dies-non and this period will not be counted for any purpose whatsoever. Thus, it is appearing from the order Annexure P-2 that no regular departmental enquiry has been conducted against the petitioner while passing the order of treating his absence of 1392 days as Dies-Non.

¶42

Government servants are entitled for leave as per the Chhattisgarh Civil Services (Leave) Rules, 1977 (for short ‘Rules, 1977’) as applicable on the date of passing of an order impugned. Rule 24 of Rules, 1977 deals with which is pari materia to the Leave Rules, 2010. Rule 24 of the Rules, 1977 reads as under:-

¶43

“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, the period of such absence not covered by grant of leave shall have to be treated as 'dies-non' for all purpose including leave. He will not be entitled to any 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

¶44

6 / 9

¶45

to the extent such leave is due, the period in excess of such leave

¶46

due being treated as extraordinary leave.

¶47

(2) Willful absence from duty after the expiry of leave renders a

¶48

Government servant liable to disciplinary action.””

¶49

13.Rule 24 of the Civil Services (Leave) Rules, 2010 is also extracted below for

¶50

ready reference:-

¶51

“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, the period of such absence not covered by grant of leave shall have to be treated as 'dies-non' for all purpose including leave. He will not be entitled to any 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.

¶52

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

¶53

Perusal of sub-rule 2 of Rule 24 of the Rules, 2010 would show that the

¶54

government servant who was willfully absent from the duty is held liable for the disciplinary action. The erstwhile State of Madhya Pradesh issued the Circular dated 5.9.1992 clarifying as to what action is to be taken against the government servant for his unauthorised absence. Relevant portion of the said circular rule is extracted below:-

¶55

“अनोधि�� त अनो�पቝኌ$%चित �� म�मला� �� चिनोपटा�र� �� सा�बं � म/ त� चिवचिभा्ቐ ्ቚ��र �� ्ቚश्नो उठत� रहत� ह>। उनो�� मቌኔ�नोाሞर रखत� ह4ए, र�ज्या श�सानो इसा चिवषया पर पCव� चिनोदDशE �� सा�श�धि�त �रत� ह4ए त%� मध्या्ቚद�श धिसाचिवला सा�व� (आ�रण) चिनोयाम, 1965 �� चिनोयाम 24 �� अ��नो चिनोव � नो �� शचि्ሹयाE �� उपया�ग म/ ला�त� ह4ए याह चिनोदDचिशत �रत� ह+ चिI

¶56

(�) याचिद आप�त ��रणE �� छो�़ቨ �र, ��ई भा� श�सा��या सा�व� अनोधि�� त रूप सा� अनो�पቝኌ$%त ह� त� सा्ቌम ्ቚ�धि��रिरयाE �� आ�रण चिनोयामE �� चिनोयाम 7 �� अन्त�गत उपलाब्� अधि��रE �� उपया�ग �रत�

¶57

7 / 9

¶58

ह4ए याह साव�्ቚ%म सा�चिनोቝኌश्�त �रनो� ��चिहए चि� ऐसा� चिबंनो� सा्ቌम $व�� चित �� अनो�पቝኌ$%चित रह� श�सा��या सा�व� �� चिवरु्ቍ धिसाचिवला सा�व� (वगN�रण, चिनोया�्ቔण त%� अप�ला) चिनोयाम 1966 �� अ��नो अनो�श�चिनो� ��या�व�ह� अचिवला�बं ्ቚ�र�भा �र द� ाሞ�व�।

¶59

(ख) अनोधि�� त अनो�पቝኌ$%चित �� पश्��तP ाሞ+सा� ह� ऐसा� श�सा��या सा�व� ��या� पर उपቝኌ$%त ह�नो� और ቐ኏Cटा� ज्व�इनो �रनो� �� धिलाए उपቝኌ$%त ह�, उसा� उपቝኌ$%चित चिदनो� � सा� ह� चिनोला�चिबंत चि�या� ाሞ�या।

¶60

(ग) ��चिडॉ�� (�) म/ बंत�ई गई अनो�श�सानो�त्म� ��या�व�ह� श�्ቈ पCण� �� ाሞ�व� और उसाम/ या%�चि�त आद�श प�रिरत चि�या� ाሞ�व�। उ्ሹ ओदश प�रिरत �रनो� �� सा�% ह� ाሞ+सा� भा� ቝኌ$%चित ह�, उसा�� म�त�चिबं� चिनोला�बंनो अवधि� �� बं�र� म/ चिनोण�ला धिलाया� ाሞ�या।

¶61

(घ) याह�V याह ध्या�नो चिदया� ाሞ�या चि� उपया � आद�श ला�गC �रत� सामया ्ቚ त्या ्ቚ�रण �� ग�ण-द�षE म/ बं�� चिवश्ला�षण अवश्या चि�या� ाሞ�या त�चि� छो�टा�-छो�टा� अ%��तP ��वला ��छो चिदवसा �� ऐसा� अवधि� �� ऐसा� अनो�पቝኌ$%चित �� सा�बं � म/ अनो�श�सानो�त्म� ��या�व�ह� एव� चिनोला�बंनो �रनो� �� ቝኌ$%चित प+द� नो ह�, धिाሞनोम/ श�सा��या सा�व� �� आप�त रूप सा� अनो�पቝኌ$%चित रहनो� �� चिववशत� और आवश्या�त� �� प�्ቖ आ��र हE। इनो आद�शE �� प�लानो अत्या�त �़ቨ�ई सा� चि�या� ाሞ�व� त%� ाሞ� श�सा��या सा�व� अभा� भा� अनोधि�� त रूप सा�

¶62

इनो आद�शE �� प�लानो अत्या�त �़ቨ�ई सा� चि�या� ाሞ�व� त%� ाሞ� श�सा��या सा�व� अभा� भा� अनोधि�� त रूप सा� श�सा��या सा�व� सा� ला�बं� अवधि� सा� अनो�पቝኌ$%त ह+ त%� धिाሞनो�� चिवरु्ቍ अभा� त� ��ई चिवभा�ग�या ाሞ�V� सा� ቝኌ$%त नोह8 �� गई ह+. उनो�� चिवरु्ቍ भा� तत्��ला चिवभा�ग�या ाሞ�V� उपर�्ሹ�नो�$तर सा�ቝኌ$%त �� ाሞ�नो� सा�चिनोቝኌश्�त चि�या� ाሞ�व�।

¶63

श�सानो नो� अनोधि�� त अनो�पቝኌ$%चित �� द��रण एव� अनो�श�सानोह�नोत� म�नो� ह+। श�सा��या सा�व� सा� याह अप�्ቌ� �� गई ह+ चि� वह अपनो� �त�व्याE �� ्ቚचित पर�याण रह� त%� अपनो� उ्ቈरद�चियात्वE �� गरिरम� �� सामझे�।

¶64

अनो ्ቚ�रणE म/ ��या��लाया �� वरिर्቗ अधि��रिरयाE/सा्ቌम ्ቚ �धि��रिरयाE नो� अपनो� ��या� सा� अनोधि�� त रूप सा� अनो�पቝኌ$%त श�सा��या सा�व�E �� उपቝኌ$%त ह�नो� पर वनो�� या�भा�र ्ቇहण $व��र नोह8 चि�या�

¶65

8 / 9

¶66

गया�। इसा सा�बं � म/ सा�म�न्या ्ቚश�सानो चिवभा�ग नो� प %� सा� चिनोदDश ाሞ�र� चि�ए। सा�म�न्या ्ቚश�सानो चिवभा�ग �� प्ቔ ्ቅ . सा�-12/90/3/49 चिदनो� � 19/7/90 म/ उቤኔ�ख चि�या� गया� ह+ श�सानो �� ध्या�नो ��छो ऐसा� ्ቚ�रणE �� ओर आ� ्ቖ चि�या� गया� ह+ धिाሞसाम/ चिवभा�गE �� चितपया श�सा��या सा�व�E नो� अपनो� �त�व्या सा� अनोधि�� त रूप सा� अनो�पቝኌ$%त (अव��श पर) रहनो� �� पश्��तP सा�बं�धि�त चिवचिहत ्ቚ�धि��र� �� अपनो� ��या�भा�र ्ቇहण �रनो� �� ्ቚचितव�दनो ्ቚ$त�त चि�या�, चि��त� सा�बं�धि�त ्ቚ�धि��र� ቛኋ�र� ��या�भा�र ्ቇ हण �रनो� �� ्ቚचितव�दनो �� $व��र $व��र नोह8 चि�या�।

¶67

सा्ቌम ्ቚ �धि��र� सा�चिनोቝኌश्�त �र� चि� ला�बं� अवधि� त� अनोधि�� त रूप सा� अनो�पቝኌ$%त श�सा��या सा�व�E �� चिवरु्ቍ धिसाचिवला सा�व� (आ�रण) चिनोयाम 1966 �� अ��नो द�घ�श�ቝኌ$त ह�त� ��या�व�ह� अचिवला�बं ्ቚ �र�भा �� ाሞ�व�।

¶68

अनोधि�� त अनो�पቝኌ$%चित �� पश्��तP ाሞ+सा� ह� श�सा��या सा�व� ��या� पर उपቝኌ$%त ह�, उसा� उसा� चिदनो� � सा� चिनोला�चिबंत चि�या� ाሞ�व�।

¶69

अनो�श�सानो�त्म� ��या�व�ह� अचितश�्ቈ पCण� �रत� ह4ए आर�प धिसा्ቍ ह�नो� पर सा�व� सा� हटा�नो� या� पदच्या�त �रनो� सा�बं � � आद�श प�रिरत चि�ए ाሞ�व/। सा�% ह� चिनोला�बंनो अवधि� �� बं�र� म/ चिनोण�या भा� तत्सामया धिलाया� ाሞ�या। अनो�श�साचिनो� ��या�व�ह� �� चिनोर��रण अधि��तम 6 म�ह �� अवधि� म/ �र धिलाया� ाሞ�व�।"

¶70

State of Chhattisgarh has also issued the Circular dated 10.4.2006 on the subject regarding absent of a government servant from duty during the strike called by the employees and the mass leave, and it is decided that their act will come under the misconduct as provided under Chhattisgarh Civil Services(Conduct) Rules, 1965 and they will be liable for disciplinary action.

¶71

16.In the case at hand, though from the order it is appearing that notice was issued to the petitioner to which he submitted reply. If for any reason the authority was not satisfied with the reply submitted by the petitioner then the respondents ought to have initiated the disciplinary proceedings as provided under the Civil Services (Classification, Control and Appeal) Rules, 1966(for short’ Rules, 1966’), which the respondents have not invoked. In case of Dr. N.S. Patel v. State of Chhattisgarh and others in WPS No.4922 of 2010 ,

¶72

9 / 9

¶73

co-ordinate Bench of this Court considering the provisions of Rule, 24 of Rules, 1977 which is pari materia to the Rules of 2010 as held that declaration of period of absence as Dies-Non is a punitive order. It cannot be passed without proceeding departmentally in accordance with procedure laid down under the provisions of Civil Services (Classification, Control and Appeal)Rules, 1966.

¶74

For the forgoing discussion as the respondents have not initiated the proceeding as provided under sub Rule 2 of Rule 24 of Rules, 1977 and Rules, 2010 before passing of an order Annexure-P/1 declaring the period of 1392 days as ‘Dies-Non’ it is not sustainable and is accordingly set aside and also Annexure-P/1 whereby dismissing the order for review of the order Annexure-P/2 only on the ground of delay is set aside.

¶75

18.Accordingly, the writ petition is allowed. However, respondents will be at liberty to take decision afresh in accordance with law if law permits in the facts of the case.

¶76

Sd/-

¶77

(Parth Prateem Sahu)

¶78

JUDGE

¶79

NIsha

Dr. Nohar Prasad Jangade v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Dr. Nohar Prasad Jangade v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Anupama Singh Vs Udaypal Singh

Kaushal Prasad Kaushik Vs State of Chhattisgarh

Pramod Chandra Dutta Vs State of Chhattisgarh

State of Chhattisgarh Vs Rajesh Kumar Kotwani

Shiv Kumar Ahirwar Vs the State of Chhattisgarh

Chhattisgarh State Cooperative Dairy Fedration Limited Vs State of Chhattisgarh