High Court
Case Details
WP(C) 2208/2005 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER
Legal Reasoning
1. This writ petition was originally filed by the husband of the deceased, who died on 1-12-2006 during the pendency of the writ petition, and was thereaft er substituted by the present petitioner vide the order dated 30-11-2007 passed by this Court in Misc. Case No. 4121 of 2007. The interesting question of law ra ised in this writ petition is whether the period of absence of the deceased from 14-10-1973 to 3-5-1990, which was subsequently regularized by the respondent au thorities by treating such period as (cid:28)Dies Non (cid:29), can be counted for the purpose of pension benefit? 2. The controversy arose on the following facts and circumstances: The dece ased joined the post of Forest Guard on 1-5-1956 at the Office of the Forest Ran ge Officer, Lumding and was continuing in that post in that capacity till 1973 b y drawing his salaries. However, he had to remain absent from between 14-1-1973 and 3-5-1990 due to mental illness. After his recovery from the illness, he appr oached the respondent authorities for work. The respondent No. 4 again appointed him as Gate Chowkidar on 24-1-1985. Subsequently, he was appointed as Forest Gu ard with effect from 2-5-1990; his service was eventually confirmed on 1-12-1995 . The deceased retired from service on 31-3-1996 on attaining the age of superan nuation. The respondent authorities thereafter counted the total period of his s ervice i.e. from the date of his second appointment as 2-5-1990 to the date of h is superannuation as 31-1-1996 to be five years, ten months and twenty-nine days . He, therefore, received a sum of Rs.2,227/- as his monthly pension, which was fixed on the basis of his service for the period between 2-5-1990 and 31-1-1996. It would appear that the period of absence from duty from 14-1-1973 to 3-5-1990 was subsequently regularized by the respondents by treating such period as (cid:28)Die s non (cid:29) to bridge the gap between previous service and existing service without g iving the benefit of pay, increment, leave, pension to the deceased for that per iod. The deceased made representation to the respondents to count the said perio d of his absence without leave for the purpose of pension, but the same proved f utile. This prompted him to file this writ petition for appropriate relief.
Decision
3. The writ petition is contested by the respondent authorities by filing t heir affidavit-in-opposition. The case of the answering respondents is that the total period of qualifying service for entitlement of pension under the Assam Pe nsion Rules, 1968 is 20 years. The deceased was admittedly appointed as Forest G uard on 1-5-1956, but he was found absent from duty without leave for the period indicated in the writ petition; due to his unauthorised absence, he was not in service in that period. It is, therefore, submitted that the deceased has failed to make out any case for invoking the extra-ordinary jurisdiction of this Court , and the writ petition is liable to be dismissed. 4. From the letter dated 26-2-2004 addressed to the Principal Chief Conserv ator of Forest, Assam by the Under Secretary to the Govt. of Assam, Environment & Forest Department, it has been admitted by the State-respondents that the abse nce from duty by the deceased for the period of 17 years, 3 months and 18 days w as due to mental illness. It may be noted that this prompted the State-responden ts to regulate such period of absence by treating it as (cid:28)dies non (cid:29). Such period was not meant to give any benefit of pay, increment, leave, pension, etc., but (cid:28) to bridge the gap between previous service and existing service (cid:29). Rules 64 and 6 5 of the Assam Services (Pension) Rules, 1969 ( (cid:28)the Rules (cid:29) for short) deals with the effect of interruptions in service, which are in the following terms: (cid:28)64. Interruptions ? An interruption in the service of an officer entails f orfeiture of his past service except in the following cases: Authorised leave of absence. (a) (b) Unauthorised absence in continuation of authorised leave of absence so l ong as the office of the absentee is not substantively filled; if his office is substantively filled, the past service of the absentee is forfeited. Suspension immediately followed by reinstatement, which need not be to t (c) he same office or where the officer died or is permitted to retire or is retired while under suspension. (d) ment. Abolition of post or loss of appointment owing to reduction of establish Note.? The above clause (d) applies only in case of abolition of permanent offic e or loss of permanent appointment. (e) Transfer to non-qualifying service in an establishment under Government control. The transfer must be made by a competent authority; an officer who vol untarily resigns qualifying service cannot claim the benefit of this exception. Transfer to grant in aid school entails forfeiture. Transfer to service on household establishment of the Governor. (f) (g) Time occupied in transit from one appointment to another, provided that the officer is transferred under the orders of competent authority, or, if he is non-gazetted officer, with the consent of the head of his old office. 65. The authority who sanctions the pension may commute retrospectively pe riods of absence without leave into leave without allowances. (cid:29) 5. In the instant case, though the deceased was found to be in an unauthori zed absence from duty for 17 years, three months and 18 days, the State-responde nts did not expressly declare such period of his absence to be an interruption i n service entailing forfeiture of his past service. They merely declared such pe riod of absence as (cid:28)dies non (cid:29). The term (cid:28)dies non (cid:29) is nowhere defined in the Rul es. The decision of the Government of India reproduced in Swamy’s (cid:28)Pension Compi lation (cid:29), 19th Edn., p. 65, will be instructive: (cid:28)Treatment of wilful absence from duty not regularized.? wilful absence fro m duty, even though not covered by grant of leave does not entail loss of lien. The period of absence not covered by grant of leave shall have to be treated as ’dies non’ for all purposes, viz. increment, leave and pension. Such absence wit hout leave where it stands singly and not in continuation of any authorized leav e of absence will constitute an interruption of service for the purpose of pensi on and unless the pension sanctioning authority exercises its powers under Artic le 421, Civil Service Regulations [now Rule 27 of the CCS (Pension) Rules] to tr eat the period as leave without allowance, the entire past service will stand fo rfeited. (cid:29) Reading the aforesaid decision carefully unmistakably conveys the idea t 6. hat unauthorized absence from duty per se need not entail forfeiture of past ser vice. To entail forfeiture of past service of an employee, it has to be shown th at the unauthorized absence is wilful. In other words, unless the unauthorized a bsence is proved to be wilful, the leave sanctioning authority is empowered by R ule 65 to retrospectively commute such period of absence without leave into leav e without allowance. What is ’wilful absence from duty’ is recently explained by the Apex Court in Krushnakant B. Parmar v. Union of India and another, (2012) 3 SCC 178 in the following manner: (cid:28)16. In the case of the appellant referring to unauthorised absence the dis ciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether (cid:28)unauthor ised absence from duty (cid:29) amounts to failure of devotion to duty or behaviour unbe coming of a government servant cannot be decided without deciding the question w hether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which i t was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does no always mean wilful. There may be differ ent eventualities due to which an employee may abstain from duty, including comp elling circumstances beyond his control like illness, accident, hospitalisation, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. (cid:29) (Bold letters mi ne) 7. As already noticed, the letter dated 26-2-2004 at Annexure-G, the respon dent No. 2 has recognized the fact that the absence of the deceased was occasion ed by the mental illness. Thus, on the undisputed facts on record that the unaut horised absence of the deceased was occasioned by mental illness, there is no di fficulty in holding that his absence from duty, even though unauthorised, cannot be held to be wilful absence from duty. Consequently, the respondent No. 2 has committed an error of law in treating the period of absence from duty of the dec eased for the period in question as dies non merely (cid:28)to bridge the gap between p revious service and existing service without giving to the incumbent any benefit of pay, increment, leave, pension, etc. for that period. The respondent No. 2 i n issuing the impugned order has apparently failed to notice the provisions of R ule 64 and Rule 65 of the Rules.; this is non-application of mind. The deceased was under Rule 65 of the Rules entitled to have his period of absence without le ave commuted retrospectively into leave without allowances. 8. In the result, this writ petition succeeds. The impugned letter dated 26 -2-2004 (Annexure-G) is hereby quashed. The respondent No. 2 shall now commute r etrospectively the period of absence of the deceased without leave from 14-1-197 3 to 3-5-1990 into leave without allowance in accordance with Rule 65 of the Rul es, count the entire past services of the deceased w.e.f. 1-5-1956 including the said period of absence for the purpose of pension and family pension and therea fter pay all the pension and family pension admissible to the deceased under the rules to the petitioner. Such payment shall be made by the respondent authoriti es to the petitioner within a period of three months from the date of receipt of the certified copy of this judgment from her. No costs.