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2025 Supreme(HP) 502
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SATYEN VAIDYA, J.
Gian Chand - Appellant
Versus
State of Himachal Pradesh and Ors. – Respondents
CWPOA No. : 6839 of 2020
Decided on : 16-05-2025
For the Appellant :Mr. Prashant Sharma, Mr. Vikrant Thakur and Ms. Manish Thamta, Advocates.
For the Respondents:Mr. Pratush Sharma, Additional Advocate General.
The absence of an employee cannot be treated as 'Dies Non' without adhering to principles of natural justice, including providing a fair hearing and opportunity to present evidence.
Headnote:
(A) CCS (Leave) Rules, 1972 - Rule 25.1 - CCS CCA Rules, 1965 - Rule 11(iv) and Rule 16(1-A) - Petition challenging orders treating absence as 'Dies Non' - Petitioner was absent due to medical reasons and did not receive a fair hearing - Orders were found to violate principles of natural justice. (Paras 12, 20, 21)
(B) Natural Justice - Requirement of a fair hearing - The authority must provide an opportunity to the petitioner to present evidence before imposing penalties. (Paras 20, 21)
Facts of the case:
The petitioner, a Head Constable, was absent from duty for 198 days due to medical issues and was penalized without a proper inquiry or hearing.
Findings of Court:
The court found that the orders treating the absence as 'Dies Non' were issued without adhering to the principles of natural justice and were therefore unsustainable.
Issues: The main issues were whether the absence could be treated as 'Dies Non' and if the petitioner was afforded a fair hearing.
Ratio Decidendi: The court ruled that the absence was improperly classified as 'Dies Non' due to the lack of a fair hearing and inquiry, emphasizing the necessity of following due process.
Result: The petition is allowed, and the impugned orders are quashed.
JUDGMENT :
Satyen Vaidya, J.
By way of instant petition, petitioner has prayed for following substantive reliefs:
i) The respondents may be directed to not treat the period of absence, w.e.f. 10.03.2018 to 24.09.2018 of 182 days as “DIES NON”.
ii) The impugned orders dated 08.11.2018 (Annexure A/7), order dated 03.11.2009 (Annexure A/10) and order dated 08.04.2019 (Annexure A/12) may be held void and the same may be set aside.
iii) The respondents may be directed to commute/debit the period of absence 198 days, w.e.f. 10.03.2018 to 24.09.2018 from the leave reserve account of the applicant as medical leave, the applicant has sufficient 450 commuted leaves in his account.
iv) The respondents may be directed to pay the salary to the applicant for the period of absence of 198 days, w.e.f. 10.03.2018 to 24.09.2018 alongwith 9% interest from the date of joining dated 24.09.2018.
2. Petitioner while posted as Head Constable proceeded on sanctioned seven days special leave w.e.f. 23.02.2018. Petitioner extended his special leave for eight more days for the period 02.03.2018 to 9.03.2018. Petitioner did not join his duties w.e.f. 10.03.2018, however, the duties were resumed by petitioner belatedly on 24.09.2018.
3. Petitioner had attributed the reasons for his absence to his prolonged ailment. As per petitioner, he had remained under treatment of Dr. Hemant Kumar at ‘NEEL KANTH’ Multi-specialty Hospital Mandi.
4. Respondent No.4 by an order dated 08.11.2018 (Annexure A-7) ordered the period of absence of petitioner from duty for 198 days w.e.f. 10.03.2018 to 23.09.2018 as period of “Unauthorized absence” and regularized the same as under: -
| Period | Treated as |
| 23.02.2018 to 09.03.2018 | 15 days special leave already sanctioned in his favour, is hereby cancelled and sanctioned 15 days earned leave. |
| 10.03.2018 to 23.09.2018 | Un-authorized absence for 198 days is hereby treated as ‘Dies Non’ under 25.1 CCS (Leave) Rule. |
| 24.09.2018 | 01 day sanctioned as earned leave |
5. Another order came to be issued by respondent No. 4 on 21.11.2018 (Annexure A-8) in following terms: -
“HHC Gian Chand No. 156 of this district was absent from duty w.e.f. 10.03.2018 to 23.09.2018. The absence period of total 198 days w.e.f. 10.03.2018 to 23.09.2018 has been treated as “DIES NON” vide this office order Endst. No. 37648-52, dated 08.11.2018.
Hence, 198 days “DIES NON” period after taking into account from the date of his annual increment w.e.f. 01.06.2018, the same will be deferred to 16.12.2018 as per FRSR-26(a). Now he is entitled for the grant of annual increment w.e.f. 16.12.2018 instead of 01.06.2018.
Order be published in Order Book.”
6. Before passing aforesaid orders, respondent No. 4 had issued a notice dated 16.10.2018 to the petitioner requiring him to show cause as to why he had not got further treatment from nearest Government Hospital or any other Specialist from Government Medical College, Nerchowk and I.G.M.C., Shimla. Petitioner was required to submit his reply within five days, failing which the right was reserved to presume that petitioner had nothing to say and period of absence was held liable to be treated as ‘Dies Non’ for all purposes under CCS (Leave) Rules, 25.1.
7. In response to the show cause notice, petitioner submitted that during his sanctioned leave between 23.02.2018 to 01.03.2018, he had a fall resulting in injury and backache for which he visited nearest clinic/hospital of Dr. B.D. Thakur, Retired District Ayurvedic Officer for first aid as it was a holiday on 01.03.2018. Petitioner had received first aid and was advised rest for seven days. Petitioner had in such circumstances applied for extension of leave upto 09.03.2018. Thereafter, the petitioner had also consulted the Doctor at Zonal Hospital at Mandi on 02.03.2018 as the Government Medical College, Nerchowk was not functioning at that time. Since, petitioner did not recover, he consulted Specialist, Dr. Hemant Kumar, M.D.(Medicine) at Neelkanth Multispecialty Hospital, Mandi, H.P. Petitioner co
