Madhya Pradesh High Court
Gulab Singh Solanki vs The State Of Madhya Pradesh on 6 July, 2017
1 W.P. No.4986/2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB : HON'BLE MS. JUSTICE VANDANA KASREKAR
Writ Petition No.4986/2011
Gulab Singh Solanki
vs.
State of M.P. & Others
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Shri D.K. Dixit, learned counsel for the petitioner.
Smt. J. Pandit, learned Government Advocate for
respondents/State.
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ORDER
( 06/07/2017) The petitioner has filed the present petition under Article 226 of the Constitution of India for challenging the order dated 06.06.2007 passed by respondent no.2 thereby treating the period from 14.08.2003 to 26.11.2006 as Dies-Non.
2. The petitioner was appointed on the post of Food Inspector vide order dated 06.01.1989. In the year 1995, the petitioner was posted at Burhanpur, and in the year 2003 at Khandwa. Thereafter, his services were transferred at Burhanpur and while he was posted at Burhanpur, vide order dated 2 W.P. No.4986/2011 18.07.2003, he was transferred to Indore. The petitioner, therefore, submitted a representation to the respondents to continue him at the same place and, therefore, vide order dated 22.09.2003, the order of transfer has been kept in abeyance thereafter vide order dated 06.12.2003, the petitioner was posted at Burhanpur itself.
3. On 05.02.2004, respondent no.2 has requested the respondent no.3 to continue the petitioner at Burhanpur itself looking to the need of the Food Inspector. However, abruptly, an order was passed on 25.04.2006 by which he was directed to be relieved to join at Indore. However, respondent no.3 did not relieve him and the petitioner continued to work at Burhanpur itself. Thereafter respondent no.3 had passed an order dated 07.07.2006 thereby placing the petitioner under suspension.
Thereafter, he was served with Charge-sheet dated 05.08.2006.
The petitioner submitted the reply to the said charge-sheet on 28.08.2006. The order of suspension was revoked vide order dated 13.10.2006 and vide order dated 13.11.2006, he was again transferred and posted at Burhanpur. The petitioner, 3 W.P. No.4986/2011 thereafter, submitted an application to regularize the period from 07.07.2006 to 13.10.2006. The respondent no.2 passed an order dated 06.06.2007 thereby declaring the period from 14.08.2003 to 26.11.2006 as dies-non. Being aggrieved by that order, the petitioner has submitted the representation to the respondents, but no action has been taken in the matter.
4. Learned counsel appearing on behalf of the petitioner submits that the impugned order is illegal and arbitrary. He submits that this Hon'ble Court in series of judgments has held that the dies-non is a major penalty and cannot be inflicted on a employee without holding Regular Departmental Enquiry. In the instant case, he submits that although a charge-sheet has been issued but no enquiry has been made and the period has been declared as dies-non. He also relied on the judgment passed by this Court in the case of L.R. Meena Vs. State of M.P. and Others passed in W.P. No.14093/2016 on 27.02.2017.
5. The respondents have filed their reply and in the reply they have stated that the petitioner without exhausting statutory alternative and efficacious remedy of departmental 4 W.P. No.4986/2011 appeal under Rule 23 of the M.P. Civil Services (CCA) Rules 1966, has directly approached to this Court. It has further been submitted that as the petitioner has disobey the order of transfer and, therefore, the period from 14.08.2003 to 26.11.2006 has been declared as dies-non including the period spent by the petitioner under suspension. She further submits that in the present case, the issuance of show cause notice under Rule 16 of C.C.A. Rules is sufficient compliance of Rule and no Regular Departmental Enquiry is required to be initiated in the present case.
6. I have heard, learned counsel for the parties and perused the record. From perusal of the record, it reveals that the punishment order has been passed by the respondents without holding Regular Departmental Enquiry. This Hon'ble Court in the case of L.R. Meena (supra) in para 7 to 13 has held as under:-
7. The impugned order has been challenged by the petitioner on the ground that the same has been issued without holding any regular departmental 5 W.P. No.4986/2011 enquiry. The Division Bench of this Court in the case of Battilal (supra) in paragraph 3 has held as under:-
"3....................The authority imposing the punishment can direct how the period when the employee was out of service shall be treated. 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....................."
8. Relying on the judgement passed by the Division Bench, the learned Single Judge in the case of Mahesh Kumar Shrivastava (supra) in paragraphs 9 to 12 has held as under:-
"9. It is clear from the judgment of this Court that dies non means continuity of service but the period will not be counted for leave, salary, increment and pension. It means that due to the order of the dies non the pension of the employee will be reduced.
10. The learned Single Judge of this Court held in the case of Dr. Anil Kumar Varma v. State of Madhya Pradesh and otheres, reported in 2005(1) MPHT 24 (NOC) as under with regard to dies non:
"2. Annexure A-1, dated 12-5-1997 is impugned order in this petition. On going through this order, it is gathered 6 W.P. No.4986/2011 that the period in between 8-8-1990 to 22-3-1993 has been treated as dies-non. The order of dies-non is stigmatic in nature for simple reason that the said period would not be counted in the entire service period of an employee and that period would be counted as break in service and for that period salary is also not being paid to the delinquent employee. If a stigmatic order is being passed, holding a departmental enquiry is pre-supposed. Admittedly no departmental enquiry is being conducted in the present case and, therefore, the impugned order cannot be allowed remain stand and the same is hereby quashed."
11. Rule 10 under Part V of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribes penalties which are as under:
10. Penalties.-- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
Minor penalties:-
(i) Censure;7 W.P. No.4986/2011
(ii) Withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;
(iv) withholding of increments of pay or stagnation allowances;
(v) reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not, the Government servant will earn increments of pay or the stagnation allowance, as the case may be, during the period, on such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance;
Note:- The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a Government servant of account of grant of stagnation allowance if any.
(vi) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or 8 W.P. No.4986/2011 service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service;
(vii) compulsory retirement;
(viii) removal from service which shall not be a disqualification for future employment under the Government;
(ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;
Explanation :- The following shall not amount to a penalty within the meaning of this rule, namely:
(i) withholding of increments of pay of a Government servant for his failure to pass any departmental examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the terms of his appointment;
(ii) stoppage of a Government servant at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar;9 W.P. No.4986/2011
(iii) non-promotion of a Government servant, whether in a substantive or officiating capacity, after consideration of his case, to a service, grade or post for promotion to which he is eligible;
(iv) reversion of a Government servant officiating in a higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher service, grade or post or on any administrative ground unconnected with his conduct;
(v) reversion of a Government servant, appointed on probation to any other service, grade or post, to his permanent service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;
(vi) replacement of the services of a Government servant, whose services had been borrowed from the Union Government or any other State Government, or an authority under the control of any Government, at the disposal of the authority from which the service of such Government servant had been borrowed;10 W.P. No.4986/2011
(vii) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement;
(viii) termination of services:
(a) of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation; or
(b) of a temporary Government servant appointed until further orders on the ground that his services are no longer required; or
(c) of a Government servant, employed under an agreement, in accordance with the terms of such agreement.
12. It is clear from the aforesaid Rule 10 that major penalty includes reduction of lower time of scale of pay. In the case of dies non when the pension of an employee will be affected then certainly in my opinion it would amount to major penalty and for that purpose as per the provision of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 a regular departmental enquiry is necessary and since in the present case no regular departmental enquiry is being 11 W.P. No.4986/2011 conducted. Hence, the order of dies non is bad in law."
9. In both the judgements this Court has held that the 'dies-non' is a major penalty as it affects the increment and pension also, therefore, the same could not be passed without holding the regular departmental enquiry. The judgement relied on by the counsel for the respondents is per incuriam. In light of the judgement passed by the Apex Court in the case Sundeep Kumar Bafna Vs. State of Maharashtra and Another, (2014) 16 SCC 623. The Apex Court in the above mentioned case in paragraphs 19 and 20 has held as under:-
"19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High 12 W.P. No.4986/2011 Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.
Validation of ratio in Niranjan Singh
20. We must now discuss in detail the decision of a two-Judge Bench in Rashmi Rekha Thatoi vs State of Orissa, for the reason that in the impugned Order the Single Judge of the High Court has proclaimed, which word we used intentionally, that Niranjan Singh is per incuriam. The "chronology of cases" mentioned in Rashmi Rekha elucidates that there is only one judgment anterior to Niranjan Singh, namely, Balchand Jain vs State of M.P., which along with the Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically concerned itself only with anticipatory bail. It is necessary to give a salutary clarion caution to all Courts, including High Courts, to be extremely careful and circumspect in concluding a judgment of the Supreme Court to be per incuriam. In the present case, in the impugned Order the learned Single Judge appears to have blindly followed the incorrect and 13 W.P. No.4986/2011 certainly misleading editorial note in the Supreme Court Cases without taking the trouble of conscientiously apprising himself of the context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally importantly, to which previous judgment. An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. Rashmi Rekha dealt with anticipatory bail under Section 438 and only tangentially with Sections 437 and 439 CrPC, and while deliberations and observations found in this clutch of cases may not be circumscribed by the term obiter dicta, it must concede to any judgment directly on point. In the factual matrix before us, Niranjan Singh is the precedent of relevance and not Gurbaksh Singh Sibbia or any other decision where the scope and sweep of anticipatory bail was at the fulcrum of the conundrum."
10. As per the judgment passed by the Apex Court if mutually conflicting decisions of co-equal Benches cited then the judgment which is earlier one should be followed and latter decision would be per incuriam.
11. Thus, in light of the said judgment passed by the Apex Court, the judgment relied on by the learned 14 W.P. No.4986/2011 counsel for the respondents is per incuriam and the judgment which is passed in the case of Mahesh Kumar Shrivastava (supra) and the Division Bench judgment in the case of Battilal (supra) would be applicable.
12. Even if in the judgment relied on by learned counsel for the respondents it has been stated by learned Single Judge in para 7, if treating certain period as dies non leads to permanent postponement of the increment, then the petitioner may have a case that regular enquiry contemplated under Rule 14 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 ought to have been taken recourse. Thus, as per the observations made by the learned Single Judge in the case of Vinod Kumar Jharia Vs. State of M.P. and Ors., that due to dies-non if the date of increment is extended or the disputed period is not being counted towards the pension then the respondents are bound to initiate the regular departmental enquiry.
13. In the present case, the learned counsel for the petitioner submits that due to the dies-non his pension as well as increment will be adversely affected, therefore, before passing the order of dies-non the respondents should have held the regular departmental enquiry.
7. Thus, in light of the aforesaid judgment, the present petition deserves to be and is hereby allowed. The impugned 15 W.P. No.4986/2011 order dated 06.06.2007 passed by respondent no.2 is hereby quashed and respondents are directed to treat the period from 14.08.2003 to 26.11.2006 as on duty for all purposes.
(MS. VANDANA KASREKAR) JUDGE Tabish 16 W.P. No.4986/2011