The main legal point established in this judgment is that the enhancement of a penalty after the punishment period is over is not justified. The court also clarified that treating a period of unauthorized absence as dies non is an administrative procedure to avoid a break in service and is not a punitive order.

ORDER :

This order will govern disposal of W.P.No. 7434/2006 (s) and W.P. No. 11196/2010(s) as both these writ petitions have been filed by same petitioner and they are in respect of inter-related issues.

2. In WP No. 7434/2006 (s) petitioner has challenged the order dated 26-10-2006 whereby for the period from 23-12-2001 to 30-8-2004 petitioner has been denied the suspension allowance and period from 1-9-2004 to 1-5-2005 has been treated to be a period of unauthorized absence and appropriate action for this period has been proposed. The petitioner has also challenged the order dated 8-1-2007 by which period from 23-12-2001 to 30-8-2004 and 1-9-2004 to 1-5- 2005 has been treated to be dies-non.

3. In WP No. 11196/10(s) petitioner has challenged the order dated 8-6-2010 by which major penalty of withholding of two increments with cumulative effect has been imposed.

4. The facts of the case are that petitioner was working as Sub Engineer and was placed under suspension by order dated 22-12-2001. Thereafter charge sheet dated 2-2-2002 was issued to petitioner which was replied by petitioner by denying the charges and after appointing enquiry officer and representing officer the enquiry was conducted and enquiry report dated 20th January, 2005 was submitted finding all the ten charges to be proved. The show cause notice along with the enquiry report was served upon petitioner which was replied by petitioner and penalty order dated 29-4-2005 was passed by respondent No. 2 inflicting the penalty of withholding of two increments without cumulative effect. Since the minor penalty was imposed therefore, petitioner had filed representations claiming full salary for suspension period and when these representations were not considered he had filed WP No. 3475/06 (s) which was disposed off by directing the competent authority to pass a reasoned order. Thereafter the impugned order dated 26-10-2006 was passed denying the salary for suspension period and proposing the action for unauthorized leave. This order is subject matter of challenge in WP No. 7434/06(s). This petition was earlier disposed off by learned Single Judge on 13-5-2008 holding the petitioner entitled for full salary for suspension period but in Writ Appeal No. 804/2008 the Division Bench vide order dated 25-1-2012 had set aside the order of learned Single Judge and remanded the mater back for fresh consideration. In the meanwhile, the petitioner had challenged the order dated 29-4-2005 by filing the appeal before respondent No. 1 on 13-6-2005. Respondent No. 1 had issued the notice dated 30th June, 2009 proposing to enhance the penalty and imposing the penalty of withholding of two increments with cumulative effect. The petitioner had filed the reply and thereafter the impugned order dated 8-6-2010 was passed modifying the order of penalty and imposing the major penalty of withholding of two increments with cumulative effect. This order is subject matter of challenge in WP No. 11196/2010(s). The respondents in the meanwhile had passed the order dated 8-1-2007 treating the period of absence as diesnon therefore, petitioner had amended the Writ Petition No. 7434/06(s) and challenged this order.

5. Learned counsel for petitioner submits that respondents are not justified in imposing the major penalty of withholding of two increments with cumulative effect as the same amounts to double jeopardy. He further submits that petitioner is entitled to full salary for the suspension period if the order of minor penalty is restored and that the period cannot be treated as dies non without conducting full fledged enquiry and such an order is punitive in nature. He has also submitted that penalty has been enhanced to circumvent the contempt proceedings and after 5 years the order of penalty has been mala fidely modified and none of the grounds raised in appeal have been considered by appellate authority.

6. As against this learned counsel for respondents has submitted that under Rule 27(2)(iii)