Author: Rushikesh Patil National Law University, Nagpur
Editor: Aanish Aggarwal The West Bengal National University of Juridical Sciences, Kolkata
In this case, we will cover and give an overview of the case ‘Mrs. Arti Saini vs. Govt. Of Nct Of Delhi’ and it will give you a brief yet precise outline regarding all the major facts and issues involved in this particular case which basically revolves around the concept of ‘dies non’.
Petitioner: Mrs. Arti Saini
Respondent: Govt. Of Nct Of Delhi
Bench: Mr. A.K. Bhardwaj
Court: Central Administrative Tribunal
Decision/ Judgement Date:- 18.09.2014
Timeline of events:-
21.08.1999: The applicant was appointed as the assistant teacher.
16.11.2000: Her maternity leave started
30.03.2001: Her extra ordinary leave in continuance of maternity leave started.
10.04.2001: Her leaves ended and she was supposed to go back to her job on this day.
01.02.2002: She was charge sheeted for remaining absent from her duty.
18.01.2011: She was penalized for the charges.
29.06.2011: She filed an appeal against the above order.
01.12.2011: The appeal was rejected by the appellate authority.
18.09.2014: The present appeal was filed in Central Administrative Tribunal for the order of penalty
and for the order of the appellate authority.
18.09.2014: The appeal was dismissed.
Facts of the case: The applicant was appointed as Assistant Teacher w.e.f. 21.8.1999. She availed maternity leave from 16.11.2000 to 29.3.2001. Being on maternity leave, she sought permission/NOC to go abroad for staying with her husband and also prayed for grant of extra-ordinary leave w.e.f. 30.3.2001 to 1.2.2002 as her husband had been transferred by the company to UK. The competent authority sanctioned the extra-ordinary leave only for 12 days, i.e., from 30.3.2001 to 10.4.2001 in continuation of maternity leave availed by the applicant. When the applicant did not join her duty on expiry of the extra-ordinary leave, i.e., after 10.4.2001, she was served with charge sheet dated 1.2.2002 for remaining absent from duty unauthorizedly w.e.f. 11.4.2001 till the date of charge sheet. The proceedings culminated with imposition of penalty of reduction to two lower stages in the time scale of pay for a period of one year upon the applicant. The entire period of unauthorized absence was directed to be treated as dies non (neither counted as part of service nor considered as break in service) without break in service. Against the penalty order, the applicant preferred an appeal on 29.6.2011, which was rejected by the appellate authority in terms of the order dated 1.12.2011. Then she has filed an appeal with the tribunal.
The contentions made by the applicant are:
i) During the period of absence the applicant was unwell and the concerned authority ought to have examined such plea taken by the applicant before imposing the penalty.
ii) She was not given proper opportunity to defend herself before imposition of the penalty.
Issues/ Controversies involved:
Does the period of absence not covered by grant of leave has to be treated as dies non?
Findings of the court: it was the disciplinary authority, which was to impose the said punishment. Furthermore, the petitioner had already been given an opportunity of hearing. The Rules do not provide for giving a further opportunity therefore, and as such the said submission cannot be accepted.
In Durga Prasad (05/RB) (Constable) v. Govt. of NCT of Delhi, 2003 (68) DRJ 63 it was viewed that the unauthorized absence is misconduct grave enough for imposition of penalty upon the delinquent. Relevant excerpt of the said judgment reads as under:- “It is a well-settled principle of law that even if the period of absence, which had been regularized, is excluded, the same remains a misconduct which, in our opinion, would be sufficient to award dismissal of punishment.”
In Maan Singh v. Union of India & others, (2003) 1 SCC 329, it could be viewed that habitual absence on several occasions unauthorizedly is a grave misconduct and the penalty imposed upon the appellant was justified. Relevant excerpt of the said judgment reads as under:- “Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, in making such an award regard shall be had to the length of service of the offender and his claim to pension.”
It has been provided in Rule 25 of CCS (Leave) Rules unless the authority is competent to grant leave extends the leave, a Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and the period is liable to be debited against his leave account.
Conclusion: The period of unauthorized leave can be treated as ‘dies non’ by taking into account the facts of the case.
Judgements quoted on settled law:-
Maan Singh v. Union of India & others, (2003) 1 SCC 329
State of U.P. & others v. Ashok Kumar Singh & another, (1996) 1 SCC 302
Durga Prasad (05/RB) (Constable) v. Govt. of NCT of Delhi, 2003 (68) DRJ 63
Mohan Lal Sharma Vs. Parveen, 2009 (4) RCR (Civil)
Swapnanjali Sandeep Patil Vs. Sandeep Ananda Patil