Muzaffar Hussain Attar, J.

Brother of petitioner was working as Accountant in the respondent Department. Allegation against him was that he un-authorisedly remained absent from duty from 08th August, 1997 to 20th December, 2004, the day he died. The petitioner filed the writ petition bearing SWP NO: 1333/2009, praying therein that respondents be directed to pay the service benefits to the petitioner, being the brother of the deceased employee. The writ petition was disposed of by the Court vide order dated 31.01.2011, directing the respondents to settle the service benefits as would be available to the petitioner in accordance with service rules applicable. The respondent-Director General, Accounts and Treasuries, J&K Government vide Order No. 168-Scctts of 2011 dated 08th December, 2011 ordered for treating the period with effect from 08th August, 1997 to 20th December, 2004 as Dies-non in terms of Article 163 of J&K Civil Services Regulations Vol-II. It is this order, which is called in question in this writ petition.

2. Learned counsel for the petitioner submitted that a show cause notice was issued to the deceased employee, same was responded and reply was filed stating therein that the deceased employee was suffering from Heart Ailment. It was further submitted that the deceased employee was initially granted leave and thereafter, because of ailment, he could not resume duty. Learned counsel submitted that on receipt of the reply of first show cause notice, respondents in order to settle the issue in accordance with rules, ought to have initiated departmental proceedings. Learned counsel submitted that in the departmental proceedings deceased employee would have satisfied the employer about the just reason of his absence from the duty. Learned counsel submitted that the respondent-employer having not dealt with the matter in accordance with rules, the period of absence could not be treated as Dies-non. Learned counsel submitted that admittedly final notice dated 19th December, 2004 was published in the newspaper on 25th December, 2004 i.e. one day after the death of deceased employee. Learned counsel submitted that in these circumstances, the respondents ought to have treated the period of absence from duty on leave and thereafter should have passed orders for giving service benefits to the petitioner-brother of the deceased employee. Learned counsel also stated that deceased employee has two sisters as well and their claim can be considered for granting service benefits.

3. Mr. Tasaduq H Khawaja, learned counsel for the respondents submitted that the deceased employee remained un-authorisedly absent from duty and was not entitled to receive the service benefits. Learned counsel submitted that the concession has been given to the petitioner by treating the period of absence from duty of the deceased employee as Dies-non. Learned counsel submitted that this writ petition requires to be dismissed.

4. Learned counsel for the parties could not show any rule which would directly cover the situation as has arisen in this case.

5. In the normal course, if it would be the case of the respondents that the deceased employee remained absent un-authorisedly from the duty, then duty was cast on them to initiate disciplinary proceedings against the deceased employee. In the disciplinary proceedings the deceased employee could have projected his case and may be that in the facts of the case the disciplinary authority would have exonerated the deceased employee of the charge of being un-authorisedly absent from duty. The respondents have failed to perform their statutory duties by not initiating disciplinary proceedings against the deceased employee, even when he responded to the show cause notice. The 2nd show cause notice was published in newspaper one day after the death of the deceased employee. Admittedly no disciplinary proceedings were initiated against the deceased employee in accordance with rules. In the facts of this case, no order

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