The Delhi High Court has held that declaration of a period of unauthorised absence as dies non is only an accounting and administrative treatment of that period for service record purposes and merely disentitles the employee to pay for that duration; it does not amount to a punishment, regularisation of absence, condonation of misconduct, or sanction of leave.
Consequently, the Court clarified that where the period of unauthorised absence has only been treated as dies non and not regularised by grant of leave, initiation of disciplinary proceedings for misconduct in respect of the same period does not amount to double punishment, and the employer is not precluded from imposing a penalty in accordance with Statute 13(9) of the Statutes of IIT Delhi. The Court therefore affirmed the order passed by the Single Judge, and directed the respondent to release the retirement benefits, if any, to which the appellant may be entitled, within a period of two months.
The Division Bench comprising the Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia noted the principal submission of the appellant that, since the subject period had already been declared dies non by memorandum dated June 02, 2016, the later punishment of compulsory retirement for the same period of unauthorised absence amounted to double punishment. The Bench rejected this submission and observed that declaration of a period as dies non in service jurisprudence only means that, on the principle of “No Work No Pay”, the employee is not entitled to pay for that period, and such declaration is made to account for and deal with the period of absence in the service record.
The Bench further observed that unless the period of absence is regularised by grant of leave available to the credit of the employee, mere declaration of the period as dies non does not amount to regularisation of absence, condonation of misconduct, or sanctioning of leave.
The Bench also observed that dies non has not been defined as a punishment in Statute 13(9) of the Statutes of IIT Delhi, which specifically enumerates penalties such as censure, withholding of increments or promotion, reduction, compulsory retirement, removal, and dismissal. On that basis, the Court held that the memorandum dated 02.06.2016 declaring the absence as dies non did not amount to inflicting any penalty.
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Referring to State of Punjab v. Dr. P.L. Singla [(2008) 8 SCC 469], the Bench noted that an order directing how the period of absence should be accounted for is an accounting and administrative procedure; and that the bar against disciplinary proceedings arises where unauthorised absence is condoned and leave is sanctioned post facto, unless the employer reserves the right to proceed departmentally.
Since declaration as dies non did not amount to condonation or sanction of leave, it remained open to the respondent to initiate disciplinary proceedings. The Bench additionally found no flaw in the disciplinary proceedings and held that adequate opportunity had been given to the appellant, including opportunity to participate and to make representation against the inquiry report and proposed penalty.
Briefly, the appellant, a Group ‘D’ Helper appointed with IIT Delhi on Nov 27, 1992 and confirmed on May 05, 2003, remained unauthorisedly absent from duty from Sep 28, 2015 to Feb 26, 2016. In proceedings initiated through Office Memorandum dated Feb 15, 2016, he explained that he was away to attend to his wife, who was suffering from mental disorder, and sought humanitarian consideration. Thereafter, by memorandum, the competent authority recorded the said period of absence as dies non for all purposes except pensionary benefits.
Subsequently, a fresh charge sheet dated Aug 16, 2016 was issued under Statute 13(9) of the Statutes of IIT Delhi in relation to the same period of unauthorised absence, also referring to previous instances of unauthorised leave. Upon conclusion of the disciplinary proceedings, the disciplinary authority imposed the penalty of compulsory retirement by order dated Jan 18, 2018. This punishment was confirmed in appeal.
