Priya Lal Chakma vs State Of Tripura And Ors

[1] In this writ petition, the petitioner has challenged the impugned memo dated 10th March, 2015 (Annexure-5 to the writ petition), wherein, the respondents imposed penalty of "Dies-non‟ for unauthorized absence from duties on 20.01.2015 and w.e.f. 29.01.2015 to 31.01.2015 and has prayed for quashing the said memo dated 10.03.2015, issued by the Director of the Directorate of Employment Services & Manpower Planning, Agartala, Tripura.

[2] The brief facts are:

[2.1] The petitioner was appointed as Lower Division Clerk (LDC for short) in the year 1983. Subsequently, he was promoted to the post of Statistical Inspector in the year 2010 and was posted at District Employment Exchange, Kanchanpur. While posted at District Employment Exchange, Kanchanpur, for aforementioned period of absence, the service of the petitioner was treated as "Dies-non‟.

[2.2] Before issuance of the impugned memo dated 10.03.2015, the petitioner was issued with a show-cause notice, intimating the petitioner that he was absenting from the government duties on 20th January, 2015 and w.e.f. 29th January to 31st January, 2015 and asked to explain as to why the said period of unauthorized absence from the office duties should not be treated as "Dies-non".

[2.3] After receipt of the show-cause notice, the petitioner had submitted a representation dated 09.03.2015 wherein, he stated that he could not attend his duties on 20.01.2015 and w.e.f. 29.01.2019 to 31.01.2019 due to illness for which, he had submitted medical certificates i.e. the illness and fitness certificate issued by a registered doctor of a hospital. Explaining his absence on 20.01.2015, the petitioner stated that mistakenly he did not put his signature in the attendance register on the second half of the day, for which, he might be pardoned.

[2.4] The petitioner further prayed for consideration of his representation and granting him „leave‟ for those dates and period he remained absent from duties. After considering the said representation dated 09.03.2015, the respondent No. 3, the Director, Employment Service & Manpower Planning, Govt. of Tripura had issued the memo dated 10.03.2015 treating 20.01.2015 and the period from 29.01.2015 to 31.01.2015 as "Dies-non‟ as per CCS & CCA Rules, 1965. After receipt of the said memo dated 10.03.2015, the petitioner had submitted a representation for revoking the order of "Dies-non‟ by the respondent No. 3.

[2.5] It was further stated in the said representation dated 25.03.2015 that as per CCS & CCA Rules, 1965, there is no provision to submit leave application or any intimation of such absence for a period to the extent of three consecutive days. Finally, the petitioner prayed for reconsideration of his matter. Thereafter, again the petitioner had filed a representation for reconsideration of the penalty imposed upon him by way of revoking the memo dated 10.03.2015, but to no effect.

[3] The respondents in their reply pleaded that the petitioner was absent from service without any cause and on sympathetic ground no disciplinary proceeding was drawn up against the petitioner. They have further stated in their counter-affidavit that the petitioner is very irregular in attendance and duties in the office. The main contention of the respondents is that in order to take a lenient view, absence of the petitioner was considered as „Dies-non‟.

[4] Mr. Chowdhury, learned counsel appearing for the petitioner has submitted that the penalty of „Dies-non‟ is a major penalty and it cannot be declared without initiation of disciplinary proceeding. The solitary question raised in this writ petition is as to whether the penalty of „Dies-non‟ can be imposed without regular departmental examination.

[5] It is now well settled that the penalty of "Dies-non‟ is a major penalty, when the authority directs that the period will be treated as "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. The "Dies-non‟ amounts to awarding major punishment and it cannot be awarded without regular inquiry. Further, the penalty 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 naturally no salary would be paid for that period. 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 to sustain and as such, the same is hereby quashed.

[6] I have taken into account the submission of Mr. Sarma, learned Addl. G.A. appearing for the State-respondents that a lenient view has been taken against the petitioner. But the Court of law always looks for law. It is the solemn obligation of every executive authority to act in accordance with law. If a delinquent employee is found to be negligent in his duties, then, the authority concerned must take appropriate steps against such person within the ambit of law, but in all matters, they have to observe doctrine of fairness and fair play in the interest of justice. They should not be lenient if an employee is found to be involved in illegal acts, and for their negligent acts they should be punished, in accordance with law.

[7] As discussed earlier that the penalty of "Dies-non‟ being a major penalty as it financially affects the employee concerned, initiation of disciplinary proceeding is must, which is not done in the present case. Penalty of „Dies-non‟ may be imposed through regular departmental proceeding, otherwise, it will run in utter disregard to the principle of natural justice. Consequently, the present petition stands allowed with the following directions viz. (a) the impugned memo dated 10.03.2015 (Annexure-5 to the writ petition) imposing penalty of "Dies-non‟ is hereby quashed, (b) period of absence of the petitioner be counted for continuity of service (c) the respondents are at liberty to decide the period of absence of the petitioner in accordance with law, further if there is any leave due to the petitioner that may be granted to him. It is made clear that the petitioner shall be entitled for all future service benefits, in accordance with law.

[8] The order passed by this Court be complied with within a period of 2(two) months from the date of receipt of this order.

[9] The writ petition stands allowed with the aforesaid terms.