Treating Employee's Absence As 'Dies-Non' A Penalty Measure, Cannot Be Imposed Without Affording Hearing: J&K High Court

Justice Sindhu Sharma said,

“The order adverse to the employee for willfully remaining absent after expiry leave cannot be passed without initiated any disciplinary proceedings. The respondent is competent to direct the period of willful absence be treated as Dies Non but it would be as a measure of penalty and such order cannot be passed without holding enquiry and providing opportunity of hearing to the petitioner”.

The case involved petitioner Abdul Rahim Ganai, an employee of the State Road Transport Corporation (SRTC), who remained absent from duty for a period on medical grounds. Ganai provided a medical certificate to justify his absence, which was initially accepted by the SRTC in terms of an Order dated 18 October 2008. However, the corporation later rescinded its decision by a subsequent order and treated Ganai's absence as "dies non", effectively erasing it from his service record and denying him benefits accrued during that period.

Ganai contested the rescission of the earlier order, arguing that the absence period had been settled. He contended that the subsequent order treating a part of his absence period as Dies Non, was arbitrary and deprived him of financial benefits and pension calculations.

The respondents countered the petitioner's claims by asserting that the petitioner himself disputed the previous order. They stated that a fresh enquiry was conducted due to the petitioner's request, revealing tampering in the attendance register. Arguing that the petitioner was facing disciplinary proceedings, the respondents contended that he was ineligible for the Golden Handshake Scheme.

Upon scrutinising the record Justice Sharma noted the lack of evidence supporting the respondents' claim of tampering in the attendance record. The court also noted that no request for a fresh enquiry was made by Ganai, and the rescission of the previous order lacked procedural fairness.

“There is no enquiry report on the record to show that the respondents have conducted an enquiry and provided any opportunity of hearing to the petitioner before rescinding the order dated 18.10.2008 or issued order dated 29.07.2009.This order has affected the petitioner harshly and the same has been done in an arbitrarily and unreasonable manner”, the court recorded.

Observing that it was imperative for the respondents to provide an opportunity of hearing to the petitioner before passing the subsequent order whereby a particular period of his service was treated as Dies Non Justice Sharma clarified that treating a period of absence as "dies non" essentially amounts to a penalty, and like any other disciplinary measure, it cannot be imposed without a proper inquiry and the right to be heard.

In light of these observations, the court revived the previous order and accordingly, the subsequent order prescribing Dies Non was set aside.

Case Title:Abdul Rahim Ganai V/s State of JK and others (SRTC)

Citation: 2024 LiveLaw (JKL)

Click Here To Read/Download Judgment