High Court
Case Details
WP(C) 3698/2009 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. T. C. Khatri, learned Senior counsel assisted by Mr. B. Pushilal, lear ned counsel for the petitioners and Ms. P. Gogoi, learned CGC for the respondent s. 2. By way of this writ petition, petitioners seek quashing of orders dated 06.08.2009 and other related orders and for a direction to the respondents to tr eat the suspension period of late P. Chandra Mouli and Sri Kishan Chand as on du ty to entitle them to receive their retirement benefits. 3. ioner No. 1 P. Chandra Mouli expired and he is represented by his legal heirs. 4. Case of the petitioners is that they were members of GREF, which is a pa rt of the armed forces of the Union. On 15.12.1979 they had agitated before the Chief Engineer, Project Vartak. Several participants of the agitating group were It may be mentioned that during the pendency of the writ petition, petit taken into custody, including the petitioners. Following their arrest on 15.12.1979, orders were passed under Rule 10(1 5. ) of the Central Civil Services (Classification, Control and Appeal) Rules, 196 5 declaring them to have been put under deemed suspension from the date of their arrest. Petitioners were released on bail on 29.08.1980 after spending about 8 and ‰ months in jail. 6. Petitioners were tried in General Court Martial proceedings, at the end of which they were found guilty of the charges framed against them. The petition ers were sentenced to suffer imprisonment for periods of 30 months and 18 months respectively. Such conviction and sentence imposed on the petitioners were chal lenged by them in Court. Following the order of the Court, the sentence imposed on the petitioners were modified to the period undergone. Remission of the un-se rved sentence was granted. Thus, while the conviction of the petitioners were no t disturbed, the sentences were modified to the period they remained in custody from 15.12.1979 to 29.08.1980. 7.
Facts
Thereafter, the disciplinary authority imposed the penalty of compulsory retirement from service on the petitioners. Thus, petitioner No. 1 was given co mpulsory retirement on 19.12.1994 whereas petitioner No. 2 was given compulsory retirement on 23.03.1995. The respondents further decided to treat the period fr om 29.08.1980, which is the date of release of the petitioners from custody, to the respective dates of compulsory retirement, as (cid:28)dies-non (cid:29). Aggrieved by the decision to treat the period from their release till th 8. eir compulsory retirement as (cid:28)dies-non (cid:29), petitioner No. 1 had instituted WP(C) N o. 371/2002 and petitioner No. 2 had instituted WP(C) No. 1392/2005 before this Court. Both the cases were heard together by this Court and by a common judgment and order dated 05.01.2009, this Court quashed the impugned decision on the gro und that no opportunity of hearing was afforded to the petitioners before the or der of (cid:28)dies-non (cid:29) was passed against them. However, liberty was granted to the r espondents to pass fresh orders after affording reasonable opportunity to the pe titioners. Following the above order of this Court, Chief Engineer Project Vartak a 9. cting as the disciplinary authority issued show-cause notice to the petitioner N o. 1 on 05.03.2009 as to why the period of his suspension should not be treated as (cid:28)dies-non (cid:29). Similar show-cause notice was issued to the petitioner No.2 on 17 .03.2009. In response to such show-cause notices, petitioners submitted reply. T hereafter, Chief Engineer, Project Vartak passed order dated 04.05.2009 holding that period of suspension will not be treated as period spent on duty and will b e treated as (cid:28)dies-non (cid:29) for all purposes including pension. Likewise, Chief Eng ineer, Eastern Base Workshop (GREF), acting as the disciplinary authority, passe d the order dated 28.05.2009 similarly holding that period of suspension of peti tioner No. 2 will not be treated as period spent on duty and will be treated as (cid:28)dies-non (cid:29) for all purposes including pension. Petitioners preferred appeal before the Director General Border Roads, w 10. ho was the appellate authority. By separate orders dated 06.08.2009, appellate a uthority rejected the appeal of the petitioners holding that there has not been any failure of justice due to non-compliance of the procedure laid down in the statutory rules which would warrant intervention of the appellate authority. 11. Aggrieved, petitioners have preferred the present writ petition, seeking the reliefs as indicated above. 12. Contention of the petitioners is that in the facts and circumstances of the case, the entire period of suspension beyond 29.08.1980 up-to the date of co mpulsory retirement should be treated as on duty for all purpose. During the afo resaid period, the authorities did not allow the petitioners to resume duty or t o render service. In such circumstances, the said period of suspension could not be considered as (cid:28)dies-non (cid:29). 13. Respondents have filed common affidavit. The stand taken is that the of fence committed by the petitioners was a grave one which resulted in their convi ction and imprisonment. Because of their arrest, they were put under deemed susp ension w.e.f. 16.12.1979. Though penalty of removal from service was initially p roposed, considering the reply of the petitioners, the disciplinary authority im posed the penalty of compulsory retirement. Petitioners had challenged the impos ition of such penalty before this Court. Though this Court had quashed the penal ty imposed, when the matter reached the Hon’ble Supreme Court, the judgment of t his Court was reversed and the penalty imposed on the petitioners was upheld. Pe titioners then filed two writ petitions questioning the decision of the responde nts to treat the period from suspension till compulsory retirement as (cid:28)dies-non (cid:29) . This Court quashed the said decision on the ground that opportunity was not af forded to the petitioners before treating the period as (cid:28)dies-non (cid:29). However, the disciplinary authority was given liberty to pass fresh orders after affording r easonable opportunity to the petitioners. Thereafter, after giving reasonable op portunity to the petitioners, fresh orders were passed by the disciplinary autho rity treating the said period of suspension as (cid:28)dies-non (cid:29). Appeals filed by the petitioners were also rejected on proper application of mind. According to the r espondents, since the Apex Court had affirmed the penalty imposed, no interferen ce is called for in the present proceeding. Writ petition should therefore be di smissed, according to the respondents. 14. Mr. T.C. Khatri, learned Senior counsel appearing for the petitioners re fers to the provisions of FR 54 and contends that no reasons have been given as to why the said period from suspension to compulsory retirement has been treated as (cid:28)dies-non (cid:29). There was no objective assessment either by the disciplinary aut hority or by the appellate authority. Impugned order is not a reasoned order and requires interference by this Court. He has also placed reliance on a decision of the Hon’ble Supreme Court in the case of M. Gopala Krishna Naidu Vs. State of Madhya Pradesh reported in AIR 1968 SC 240 to contend that the respondents did not act in a fair and judicious manner and, therefore, the impugned decision sho uld be held to be invalid. 15.
Legal Reasoning
FR 54 of the Fundamental Rules and Subsidiary Rules deals with treatment of the suspension period of a Government servant. Sub-Rule (5) provides that th e period of absence from duty including the period of suspension preceding the o rder of dismissal, removal or compulsory retirement, as the case may be, shall n ot be treated as period spent on duty unless the competent authority specificall y directs that it shall be so treated for any specified period. As per the provi so to Sub-Rule (5), if the Government servant so desires, the competent authorit y may direct that the period of absence from duty including the period of suspen sion preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Governme nt servant. 23. This Court in the previous round of litigation had observed that non-ren dition of service may be a good ground for denying wages to an employee but whet her such non working periods can also be declared as (cid:28)dies-non (cid:29) for all purposes is an issue which would require examination with reference to the contextual fa cts of the case. On the ground that no opportunity was granted to the petitioner s before passing the (cid:28)dies-non (cid:29) orders, this Court had quashed such orders. Rele vant portion of the Court order dated 05.01.2009 is as under: (cid:28)17. krishna (supra) noted above, I am inclined to accept the submissions made on beh alf of the petitioners that such an order could not have been passed without aff ording a prior opportunity to the petitioners. 18. I am also of the view that such order could not be passed against Kishan Chand Sarma by referring to the powers under Rule 23 of CCS (Pension) Rules, al though the respondents by filing counter affidavit in W.P.(C) No. 1392/2005, see ks support of FR 54 also, to justify the order passed against the petitioner Kis han Chand Sarma. 19. Accordingly, I am inclined to allow these writ petitions by quashing the orders passed by the respondent authorities on the ground that an opportunity w as not afforded to the petitioners before passing the (cid:28)dies-non (cid:29) orders against them. However, it is made clear that the respondent authorities may pass fresh o rders notwithstanding the interference made by this Court, after affording a rea sonable opportunity to the petitioners as contemplated in law. (cid:29) 24. A perusal of the subsequent orders passed by the disciplinary authority woul d show that all that was done was to reiterate the earlier decision. There is no indication as to why the suspension period of the petitioners has been treated as (cid:28)dies-non (cid:29) for all purposes. To that extent, the decision of the disciplinary authority is a non-speaking one. The appellate authority while affirming such o rders also did not examine this aspect of the matter. Appellate authority simply stated that non-compliance of procedure laid down in the statutory rules did no Having regard to the ratio of the decision of the Supreme Court in Gopal t result in any failure of justice. 25. Suspension from service does not amount to cessation of service. An orde r of suspension does not put an end to the service of the Government servant. It merely suspends the claim to salary. The service rules provide for payment of s ome allowances during the period of suspension which is termed as subsistance al lowance. Thus, during the period of suspension, a Government servant continues t o remain a Government employee though he is not permitted to work. 26. If that be the position, particularly in the facts of the present case, the decision to completely obliterate the service of the petitioners during the period of suspension does not appear to be justified. The reference to the Apex Court decision reversing the High Court judgment and upholding the penalty of co mpulsory retirement imposed on the petitioners does not help the respondents as the Apex Court had considered the legality and validity of the procedure adopted while imposing the penalty of compulsory retirement and it was held that the pr ocedure followed was a fair one. The penalty of compulsory retirement was, there fore, restored. The question as to whether the period of suspension should be tr eated as (cid:28)dies- non (cid:29) or not was not an issue before the Apex Court. 27. The expression ’dies-non’ originated from the Latin phrase (cid:28)Dies-non jur idicum (cid:29) which literally means (cid:28)a day when Courts do not sit or carry on business (cid:29). As per dictionary meaning, the expression (cid:28)dies-non (cid:29) is used to define a day which is not a Court day or a day on which no legal business can be done or whic h does not count for legal purpose. 28. The doctrine of (cid:28)no work no pay (cid:29) is invoked while applying the concept o f (cid:28)dies-non (cid:29). The doctrine of (cid:28)no work no pay (cid:29) is based on the principle that wh en a person is employed, it is expected that the work assigned will be carried o ut by the person employed. But when this work is not done, the employee would no t be eligible for payment of any remuneration pre-assigned for such work. When a n employee expends his energy and effort in an assigned productive task, a pre-d etermined remuneration rewards his work. Employees are compensated for contribut ing their labour. When there is no contribution, there is no compensation in ret urn. Thus there is a quid pro quo between the employer and the employee that pro vides for equal and reciprocal responsibility. Viewed in the above context, the principle of (cid:28)no work no pay (cid:29) is not a punishment in service jurisprudence. In service law, the expression (cid:28)dies-non (cid:29) is widely used by the discipli 29. nary authorities to denote unauthorized absence by delinquent employees. (cid:28)Dies-n on (cid:29) is used to define a period which is neither counted as part of service nor c onsidered as break in service. A period of service can be marked as (cid:28)dies-non (cid:29) i f, (b) (c) the employee is absent without proper permission, (a) the employee, though on duty, leaves without proper permission, the employee is in office but refuses to perform duties. In other words, it must be a case of willful and unauthorized absence fr om work. In such a case, the days on which the work is not performed may be trea ted as (cid:28)dies-non (cid:29) based on the principle of (cid:28)no work no pay (cid:29). Such a course of a ction may be resorted to without prejudice to such disciplinary action the compe tent authority may contemplate. Therefore, in service law, (cid:28)dies-non (cid:29) means a day or a period which cann 30. ot be treated as spent on duty for any purpose. Though it does not constitute br eak in service but such a day or a period treated as (cid:28)dies-non (cid:29) would not qualif y as part of the employee’s service for pensionary benefits or increments. 31. Thus, to attracth the concept of (cid:28)dies-non (cid:29), it must be established that the absence from duty by the employee was willful and unauthorized. 32. However, in a case of suspension, the absence from active duty by the em ployee is not willful or unauthorized but is a forced one, at the instance of th e employer. Moreover, for the period of suspension, the employee is paid certain amount which is ordinarily lesser than the regular salary. Therefore, the conce pt of (cid:28)dies-non (cid:29) would not be applicable in respect of suspension period. 33. For the aforesaid reasons, the Court is of the view that the impugned de cisions dated 04.05.2009 and 28.05.2009 as affirmed by the appellate authority v ide the orders dated 06.08.2009 cannot be sustained. In the contextual facts of the case, Court is of the view that it will meet the ends of justice if the peri ods of suspension, particularly the period from 29.08.1980 to till the date of c ompulsory retirement, are taken into account for the purpose of granting pension ary benefit to the petitioners, including family pension to the legal heirs of p etitioner No. 1. Ordered accordingly. 34. 35. Writ petition is allowed. No cost.
Arguments
Opposing the submissions of the learned counsel for the petitioners, Ms. P. Gogoi, learned Central Government counsel submits that the present writ peti tion is not maintainable. According to her, petitioners have been repeatedly tak ing recourse to litigation though the matter had attained finality. She submits that when the Hon’ble Supreme Court had affirmed the penalty of compulsory retir ement by holding that there was no infirmity in the procedure adopted in the dep artmental proceeding and that the charges having been established against the pe titioners, the Court would not ordinarily interfere with the quantum of punishme nt, question of examining the decision of the authority to treat the suspension period of the petitioners as (cid:28)dies-non (cid:29) does not arise. She, therefore, seeks d ismissal of the writ petition. 16. In his reply, learned Senior counsel for the petitioners has referred to Rules 10 and 19 of the Central Civil Services (Classification, Control and Appe al) Rules, 1965 ( CCS Rules) and contends that the impugned decision of the resp ondents does not stand to the reason. He has also placed reliance on a decision of the Hon’ble Supreme Court in the case of State of Madhya Pradesh Vs. State of Maharastra and others reported in AIR 1977 SC 1466 to contend that when the pet itioner was not permitted to work by the authority, question of treating the sus pension period as (cid:28)dies-non (cid:29) does not arise. Submissions made have been considered. 17. There is no dispute regarding the facts of the case. 18. 19. Question for consideration is whether the period of suspension, more par ticularly the period commencing from the release of the petitioners from custody till the order of compulsory retirement, should be treated as (cid:28)dies-non (cid:29)? Before proceeding further, a brief reference to the relevant legal provi 20. sions may be made. Rule 10 of the CCS Rules deals with suspension. As per Sub-Rule (5), an 21. order of deemed suspension shall continue to remain in force until modified or r evoked by the authority competent to do so. As per Rule 19, where any penalty is imposed on a Government servant on the ground of conduct which had led to his c onviction on a criminal charge, the disciplinary authority may consider the circ umstances of the case and make such orders thereon as it deems fit. As per the f irst proviso, the Government servant is required to be given opportunity of maki ng representation on the penalty proposed before any order is passed. 22.