IN THE HIGH COURTOF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA th ON THE 5 OF MARCH, 2024 WRIT PETITION No. 13969 of 2022 BETWEEN:-

DR. RUDRA KUMAR GUPTA S/O LATE SHRI DR. O.P. GUPTA, AGED ABOUT 34 YEARS, OCCUPATION: DENTAL SURGEON 43-EH SCHEME NO. 54 VIJAY NAGAR INDORE (MADHYA PRADESH)

.....PETITIONER (SHRI VIVEK SHARAN, LEARNED COUNSEL FOR THE PETITIONER.)

AND PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT THROUGH

1.

PRINCIPAL SECRETARY VALLABH BHAWAN (MADHYA PRADESH)

COMMISSIONER PUBLIC HEALTH AND FAMILY WELFARE

2. DEPARTMENT SATPURA BHAWAN DISTRICT BHOPAL (MADHYA PRADESH)

DIRECTOR HEALTH SERVICE OF MADHYA PRADESH VALLABH

3.

BHAWAN DISTRICT BHOPAL (MADHYA PRADESH)

.....RESPONDENTS (SHRI TARUN KUSHWAH, LEARNED GOVT. ADVOCATE FOR THE RESPONDENTS/STATE.)

This petition coming on for hearing this day, the court passed the following: ORDER

1. The petitioner has filed the present petition being aggrieved by order dated 9.5.2022 whereby period of two years has been declared as dies-non treating him unauthorized absent from the duties.

2. According to the petitioner, because of this punishment he is not getting place in the seniority list and his juniors have been promoted. He further submits that treating a Government employee unauthorizedly absent and punishment of dies-non is a major penalty which could not have been imposed without conducting a departmental inquiry under the provisions of Rule 10 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 because dies-non amounts to break in service for two years. In similar place along with other Doctors, the petitioner affected by order dated 27.10.2016, whereas the other Doctors have not been given any such type of punishment, therefore, the impugned oorder is unsustainable and deserves to be quashed.

3. After notice, the respondents have filed the reply and in which, nowhere it is pleaded that the aforesaid punishment of dies-non was imposed after conducting a departmental inquiry. Since the petitioner had unauthorizedly remained absent without due permission from the competent authority, therefore, the period of absence has been declared as dies-non. The period of probation was also extended.

4. Similar issue came up for consideration before the co-ordinate Bench of this Court in W.P. No.9401/2021 (Dr. Alka Teja V/s. State of M.P. & others decided on 28.6.2021) and the order therein was set aside and the matter was remitted back to the respondents to decide the period of absence of the petitioner therein by conducting a departmental inquiry.

Para 11 and 12 of the aforesaid order are reproduced below :

“11. Rule 10 under Part V of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribes penalties, which are as under:

10. Penalties.-- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: Minor penalties:

(i) Censure;

(ii) Withholding of his promotion;

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;

(iv) Withholding of increments of pay or stagnation allowances;

(v) Reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not, the Government servant will earn increments of pay or the stagnation allowance, as the case may be, during the period, on such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the further increments of his pay or stagnation allowance; Note: The expression "reduction to a lower stage in the time scale of pay" shall also include reduction of pay from the stage of pay drawn by a Government servant of account of grant of stagnation allowance of any.

(vi) Reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Government servant to the time scale of pay, grade, post or service from whic