Anurag Saxena vs Union of India and Others

Heard. The petitioner has filed this petition against the order dt. 2.5.2013 passed by the Central Administrative Tribunal, by which Original Application No. 293/2009 filed by the petitioner was dismissed.

The petitioner was appointed as Clerk in the office of Accountant General (Audit) Gwalior on 10.4.1995. He was transferred from Gwalior to Chhattisgarh from the office of Accountant General (Audit) Gwalior to the Accountant General (Audit) Chhattisgarh vide order dt. 18.10.2004 in pursuance to the order of transfer, however, he did not join at the transferred place.

The petitioner challenged the order of transfer before the Central Administrative Tribunal in O.A. No. 884/2004. The aforesaid application was dismissed. Thereafter, he challenged the order before this court in W.P. No. 5433/2005. This court vide order dt. 21.8.2006 disposed of the writ petition with the following directions:--

We have heard the learned counsel for the parties and perused the documents on record. Looking to the controversy between the parties about the transfer policy, if the transfer policy (Annexure R/1) is in existence or the same is continuing or any new transfer policy has been issued by the authority, the petitioner may file representation within two weeks from today and if any representation is filed, the concerned authority or the Cadre Controlling Authority shall decide the case of the petitioner regarding his transfer to the State of Chhattisgarh. If he has been transferred temporarily for a period of 18 months that shall be considered and if he has been transferred permanently that shall also be considered as per the policy and guidelines issued by the competent authority for transferring an employee on permanent basis. It is directed that the representation of the petitioner, if so filed, shall be considered by the competent authority after providing proper opportunity of hearing within a period of thirty days.

With the aforesaid directions this petition is finally disposed of.

After formation of new State of Chhattisgarh, the petitioner was allocated to the State of M.P. and he was posted at Gwalior and he joined at Gwalior in the month of September 2006.

A show cause notice was issued to the petitioner on 19.10.2006 that why absence of the petitioner from 18.10.2004 to 10.9.2006 be not treated as absence in accordance with F.R.-17(1) and 17-A(iii) and it be not declared as dies non. He filed reply and thereafter vide order dt. 3.1.2007 the period of absence of the petitioner of 693 days was declared as dies non. It is mentioned in the order that the aforesaid period could not be treated as break in service. He challenged the order before the Central Administrative Tribunal by filing O.A. No. 293/2009, the Tribunal dismissed the aforesaid Original Application.

From the aforesaid facts of the case, it is clear that the absence of the petitioner of 693 days was declared as dies non without conducting any regular departmental enquiry after giving show cause notice.

Division Bench of this court in Battilal Vs. Union of India (UOI) and Others, has held as under in regard to dies non:--

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 of will be treated ''dies non'', it means that continuity of service is maintained, but the period treated ''dies non'' will not count for leave, salary, increment and pension.

Division Bench has further held that the punishment of dies non could not be inflicted without conducting a regular enquiry. It is a major punishment. Because, the period treated dies non will not count for leave, salary, increments and pension, it could not be inflicted without a regular enquiry. Consequently, the petition is disposed of with the following directions:--

(i) Order dt. 3.1.2007 (Annexure A/13) and the order dt. 2.5.2013 (Annexure P/3) passed by the Central Administrative Tribunal in O.A. No. 293/2009 are hereby quashed.

(ii) It is further ordered that the period of absence of the petitioner be treated as without salary and if there was any leave due to the petitioner, the period be adjusted against the aforesaid leave.

(iii) The department is at liberty to conduct a regular enquiry in accordance with law.

No order as to costs.