Madhya Pradesh High Court
L.R. Meena vs The State Of Madhya Pradesh on 27 February, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 14093/2016
L.R. Meena
Vs.
State of Madhya Pradesh and Others
Shri K.C. Ghildiyal, learned counsel for the petitioner.
Ms. Vandana Shrivastava, learned Panel Lawyer for the
respondents/State.
ORDER
(27.02.2017) The petitioner has filed the present petition challenging the order dated 03.04.2010 passed by respondent No. 3 thereby treating the period from 02.02.2010 to 07.02.2010 as Dies- Non.
2. The petitioner is holding the substantive post of Research Officer in the Tribal Development Department which is equivalent to the Assistant Commissioner of the State Government. A meeting of Divisional Deputy Commissioners / Assistant Commissioners and District Coordinators of Tribal Development was scheduled in the office of respondent No. 2 at Bhopal on 3rd and 4th February, 2010. The petitioner being the Assistant Research Officer and at No. 2 in the hierarchy of the officers posted in the office of respondent No. 4, in absence of respondent No. 4 was required to attend the said meeting. Accordingly, the petitioner prepared a note-sheet on 02.02.2010 for grant of permission to leave the Headquarters to attend the meeting at Bhopal. In anticipation of the approval, the petitioner left his headquarters and attend the meeting on 3rd and 4th February, 2010. Thereafter, on return in the headquarters at Shahdol, the petitioner initiated another note- sheet on 08.02.2010 giving out the details of the meeting held in Bhopal attended by the petitioner. Thereafter, a notice was issued to the petitioner on 04.03.2010 wherein, it was stated that the petitioner had remained unauthorizedly absent from the night of 02.02.2010 to 07.02.2010 without any prior intimation and approval. The petitioner was asked to show cause as to why the period of five days be not declared as Dies-Non.
3. The petitioner submitted a reply to the said show cause notice on 10.03.2010. Respondent No. 3, thereafter, issued an order dated 03.04.2010 whereby the period from 03.02.2010 to 06.02.2010 has been declared as Dies-Non on the ground that the petitioner had remained unauthorizedly absent from the headquarters on the aforesaid dates. Being aggrieved by that order, the petitioner has submitted a representation to review the order dated 03.04.2010, however, no action was taken by respondent No. 3. The petitioner has, therefore, submitted a repeated representation. Thereafter, approached to this Court by filing the present writ petition.
4. Learned counsel appearing on behalf of the petitioner submits that the order dated 03.04.2010 passed by respondent No. 3 is illegal, arbitrary and contrary to the statutory provisions. He submits that the order declaring the period of absence as Dies-Non is a major penalty and the same could not have been passed without holding a regular departmental enquiry. He further submits that while passing the order, respondent No. 3 does not consider the reply submitted by the petitioner to the show cause notice and it was an order issued without application of mind. Learned counsel for the petitioner relies on the judgement passed by this Court in the case of Mahesh Kumar Shrivastava Vs. State of M.P. & Others, 2007(3) MPLJ 525 as well as the judgement passed by this Court in the case of Battilal Vs. Union of India and others, 2005 (3) M.P.H.T. 32.
5. Learned counsel for the respondents/State had filed reply and in the reply they have stated that the present petition suffers from inordinate delay and, therefore, it should be dismissed on the ground of delay and latches. She further submits that the Dies-Non is not a major penalty and, therefore, no regular departmental enquiry has to be held before passing the order of Dies-Non and for the said preposition the counsel for the respondents relied on the order passed by this Court in the case of Vinod Kumar Jharia Vs. State of M.P. passed in W.P. No. 2372/2008 decided on 24.01.2013 in which this Court has held that the Dies-Non is a minor penalty and can be imposed by issuance of show cause notice. In the instant case also a show cause notice was issued to the petitioner and the petitioner was asked to submit his explanation as to why the period of absence may not be treated as Dies-Non. The petitioner submitted his reply to the said show cause notice and after taking into consideration the reply submitted by the petitioner, the impugned order has been passed. In view of the aforesaid facts, the learned counsel for the respondents submits that the petition filed by the petitioner deserves to be dismissed.
6. I have heard learned counsel for the parties and perused the record. The petitioner is working on the post of Assistant Commissioner was issued a show cause notice dated 04.03.2010 wherein it was alleged that the petitioner had remained unauthorizedly absent from the night of 02.02.2010 to 07.02.2010 without any prior intimation and approval. The petitioner submitted a reply to the said show cause notice on 10.03.2010. Thereafter, the respondent No. 3 issued an order dated 03.04.2010 whereby the period from 03.02.2010 to 06.02.2010 has been declared as Dies-Non. Being aggrieved by that order the petitioner has submitted a number of representations, but no action was taken by the respondents, therefore, the petitioner has filed the present writ petition.
7. The impugned order has been challenged by the petitioner on the ground that the same has been issued without holding any regular departmental 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 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; (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 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;
(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;
(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 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 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 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 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.
14. Thus, in light of the aforesaid submissions as well as the judgments referred above, the petition deserves to be and is hereby allowed. The impugned order dated 03.04.2010 is hereby set aside. However, respondents are free to pass a fresh order in accordance with law.
(Ms.Vandana Kasrekar) Judge ashish