ORDER
S.K. Gangele, J.
1. Petitioner has filed this petition challenging the order Annexure P-1 dated 8-1-2004. By the aforesaid order the period of absence of the petitioner from 24-11-2002 to 21-7-2003 total period of 240 days have been declared as dies non.
2. As per the petitioner when he was working as Manager in District Commerce and Industries Centre, Morena (M.P.) a show-cause notice was issued to him mentioning the facts that he was absent from duty w.e.f. 24-11-2002 to 21-7-2003 near about 240 days and he did not submit any application for the aforesaid period of absence, hence, why the aforesaid period be not treated as dies non.
3. Earlier, the petitioner did not receive salary for certain period for the year of 2003. He filed a petition before this Court which was registered as W.P. No. 622/03 and this Court disposed of the petition with a direction to the respondents to pay the salary of the petitioner or assign reasons for nonpayment of salary. Thereafter, the aforesaid show-cause notice was issued to the petitioner. The petitioner submitted his reply. He specifically mentioned that he was present on duty from 24-11 -2002 to 21 -7-2003. He further submitted that he was working in the office in the aforesaid period and also went on tour to Bhopal and same facts could be verified from the records. The petitioner mentioned detail facts in the reply, copy of which has been field as Annexure P-3. However, vide impugned order the authority rejected the contentions of the petitioner and treated the period of absence of the petitioner as dies non. While rejecting the contentions of the petitioner the authority held that with regard to submission of the petitioner that he was present in the office, the General Manager, Industries in his noting mentioned that the petitioner was not present in the office and the documents submitted by the petitioner in his reply were related to his personal correspondence.
4. The respondents in the return denied the fact that the petitioner was present in the office during the period of absence i.e., from 24-11-2002 to 21-7-2003.
5. The petitioner who appeared in person submitted that dies non amount to major penalty because the period is not counted for leave, salary, increment and pension and it cannot be imposed without a regular departmental enquiry. In support of his contentions the petitioner relied on the judgments of this Court reported in Battilal v. Union of India and Ors. 2005 (3) M.P.H.T. 32 (DB) and also in Dr. Anil Kumar Varma v. State of Madhya Pradesh and Ors. 2005 (1) M.P.H.T. 24 (NOC).
6. Contrary to this the learned Deputy Government Advocate has submitted that a show-cause notice was issued to the petitioner and thereafter, impugned order of dies non has been passed and the dies non is not a major punishment as mentioned in M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. Hence, the order is as per law.
7. From the facts stated above, it is clear that no regular departmental enquiry has been held against the petitioner while passing the order of treating his absence of 240 days, i.e., from 24-11-2002 to 21-7-2003 as dies non. Earlier, when the salary of the petitioner for a certain period of 2003 was not paid to him, he filed a Writ Petition before this Court and this Court disposed of the petition of the petitioner with directions to respondents that either the salary of the petitioner be paid or reasons for non-payment be communicated to the petitioner. Thereafter, a show-cause notice was issued to the petitioner. The petitioner submitted a detailed reply mentioning the facts that he was present and working in the office. In support of his contentions, he submitted various documents of his acts which he had done during the aforesaid period and the same contentions have been negatived on the basis of report submitted by the General Manager, Industries by the authority in passing the order of dies non.
8. A Division Bench of this Court reported in Batiilal v. Union of India and Ors. (supra), has held as under with 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 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.
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 Ors. (supra), 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 of 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.
13. Consequently, the petition of the petitioner is allowed. The impugned order, Annexure P-1, dated 8-1-2004 is hereby quashed. It is further clarified that the respondents are free to conduct regular departmental enquiry against the petitioner.
No order as to costs.