The court upheld the Tribunal's decision treating the petitioner's unauthorized absence as 'dies non', emphasizing the principle of 'no work no pay' due to lack of justification for absence.

JUDGMENT :

Per: Sanjeev Kumar-J

1. The petitioner, Rubia Akhtar, is before us in a writ petition filed under Article 226 of the Constitution of India, to throw challenge to an Order and Judgment dated 29^th March 2023, passed by the Central Administrative Tribunal, Srinagar Bench, [“the Tribunal”], in TA No. 4537/2021, titled “Mst. Rubia Akhtar vs. State of J&K and Others”. The petitioner also seeks a writ of certiorari to quash Order No. 1433-DSEK of 2014, dated 2^nd December, 2014, along with the inquiry report. The petitioner wants that her period of absence with effect from 19^th June, 2007, onward be treated as on duty with all consequential benefits.

2. Briefly put the facts as projected by the petitioner before the Tribunal are that, the petitioner was appointed as a Class-IV employee in the School Education Department vide Government Order No. 393-GAD of 1996, and was adjusted as Lab Bearer at Government Higher Secondary School, Nowhata, against available post. For remaining unauthorizedly absent from service, the petitioner was placed under suspension by the Director of School Education, Kashmir, vide Order No. 4047-DSEK of 2004, dated 2^nd September, 2004. The petitioner was subsequently reinstated from suspension Vide Order No. 763-DSEK of 2005, dated 12^th April, 2005, passed by the Director of School Education, Kashmir. The intervening period was treated as on leave whatsoever due.

3. Following her reinstatement, the petitioner claims to have approached the respondents to join her duties, but she was not permitted by the respondents to do so. The petitioner in the year 2005 itself, that is, immediately after her reinstatement, filed a suit before the civil Court, praying therein for the issuance of a decree of mandatory injunction directing the respondents herein to treat the period of her illness as on leave until she recovers and rejoins her duties. The suit was later abandoned and the same came to be dismissed for non-prosecution.

4. The petitioner, as is claimed, moved an application before the respondents on 19^th June, 2007, seeking payment of half salary with effect from June 2005 and her transfer to District Bandipora. However, the respondents neither allowed the petitioner to join her duties nor she was transferred to District Bandipora. Consequently, the petitioner filed SWP No. 785/2011, which came to be disposed of by a Single Bench of this Court vide judgment dated 26^th July, 2013. The respondents were directed to allow the petitioner to resume her duties, with liberty to inquire into her unauthorized absence in accordance with the applicable rules, after affording her a reasonable and adequate opportunity to project her case. The respondents were further directed to deal with the period of unauthorized absence i.e., from 12^th April, 2005, till the date she was allowed to resume her duties dependent upon the outcome of such inquiry.

5. In compliance with the judgment passed in SWP No. 785/2011, the petitioner was allowed to join her duties, and an Inquiry Officer was appointed on 18^th February, 2014. Based on the outcome of the inquiry, the petitioner’s period of absence from 12^th April, 2005, till the date of her joining was ordered to be treated as ‘dies non’ vide Order No. 1433-DSEK of 2014 dated 2^nd December 2014. It is this order, along with the inquiry report, which was called in question before this Court by way of a writ petition, which was later on transferred to the Tribunal and registered as TA No. 4537/2021.

6. The writ petition/TA was contested by the respondents by filing their objections. The order of treating the unauthorized absence of the petitioner as ‘dies non’ passed by the respondents was sought to be justified on the ground that the petitioner had failed to provide a proper explanation for her unauthorized absence, even after her reinstatement from suspension. It was thus contended that, since the petitioner during the period from 12^th April, 2005, till the petitioner actually joined her dut