SHILLY THOMAS Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India has been filed for setting aside the order dtd. 16/2/2016 (Annexure P/1) as well as the order dtd. 26/8/2016 (Annexure P-11) passed by the respondent authorities whereby the suspension period of the petitioner from 25/10/2008 to 28/9/2011 has been declared as dies non and her representation against the said order has been rejected.

(2.) Brief facts of the case, as mentioned in the writ petition, are that when the petitioner was posted as Tahsildar at Arang, Distt. Raipur, on account of some health issues, she made application dtd. 29/10/2008 (Annexure P/3) for grant of leave to have treatment abroad. The said application was never replied to by the respondents and therefore, she moved another application dtd. 25/10/2008 (Annexure P/4) for grant of earned leave from 25/10/2008 to 19/1/2009 (for 87 days) which also evoked no response. The petitioner was carrying pregnancy at that time and having some complications, so she decided to have medical treatment and went to USA where her husband was working as Software Engineer and there she underwent many operations, however, her baby could not survive as a result thereof she suffered mental shock. After returning from USA, the petitioner moved an application for joining her duties at Durg but the same was refused and later on, she came to know about her transfer to Kanker. She was suspended for not joining the place of her transfer, on which she filed a detailed representation (Annexure P/5) and thereafter, her suspension was revoked vide order dtd. 29/9/2011 (Annexure P/6). Thereafter, vide order dtd. 4/10/2011 she was posted at Narharpur, Distt. Kanker. Subsequently, on her representation, she was allowed salary of October, 2008 and subsistence allowance of the suspension period vide Annexure P/8. Meanwhile, a departmental enquiry was instituted against the petitioner on the alleged unauthorized absence from duties and finally, vide order dtd. 16/12/2013 (Annexure P/9) penalty of withholding of one increment without cumulative effect was imposed on her as per Rule 10 of CCA Rules,1966. Thereafter, surprisingly, by the impugned order dtd. 16/2/2016 (Annexure P/1) the period from 25/10/2008 to 28/9/2011 was declared as dies non. Immediately thereafter, the petitioner moved a representation on 8/3/2016 (Annexure P/10) before the respondent No.1 against the said order, which was rejected vide order dtd. 26/8/2016 (Annexure P/11). Hence this petition on the following grounds:

(3.) Learned counsel for the petitioner submits that under the service rules, dies non is a major penalty which has its consequential effects, therefore, before imposition of this penalty, a full-fledged departmental enquiry is required to be conducted. On the same charges, a departmental enquiry was conducted against the petitioner, in which she was punished vide order dtd. 16/12/2013 by withholding her one increment without cumulative effect and therefore, she cannot be punished twice for the same misconduct or charges. The petitioner was having unblemished service record, there was no allegation or complaint against her and she had sufficient leaves in her account which could be sanctioned by the respondent authorities but they acted with malafides and declared the said leave period as dies non, and no opportunity of hearing was afforded to her before passing such order. Reliance has been placed on the order dtd. 30/10/2013 of this Court in the matters of Smt. Mrudula Rishi Vs. State of CG and others passed in WP No.101 of 2006 and the order dtd. 11/1/2018 passed by this Court in WPS No.1554 of 2005 in the matter of Mrs. Shubhara Kundu Vs. State of MP and others.