Page No.# 1/5 GAHC010267302023 2025:GAU-AS:1472 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6863/2023 PREMALATA SAIKIA D/O LATE LERALA SAIKIA R/O QUARTER NO. LS-C-70, CID COLONY, LATAKATA, BASISTHA, GUWAHATI, P.S. BASISTHA, P.O. BELTOLA DIST. KAMRUP (METRO), ASSAM VERSUS THE STATE OF ASSAM AND 3 ORS. REP. BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006 2:INSPECTOR GENERAL OF POLICE (ADMINISTRATION) ASSAM AND APPELLATE AUTHORITY ULUBARI GUWAHATI PIN-781007 3:ASSISTANT INSPECTOR GENERAL OF POLICE (ADMINISTRATION) ASSAM AND DISCIPLINARY AUTHORITY ULUBARI GUWAHATI-781007 4:SMTI. MOUSHUMI KALITA ADDITIONAL DEPUTY COMMISSIONER OF POLICE (S AND I) AND ENQUIRY OFFICER ULUBARI GUWAHATI PIN-78100 Advocate for the Petitioner : MR. K N CHOUDHURY, MS N MAHANTA,MS A DAS,MR D S DEKA,MR. D J DAS,MR. T DEURI Page No.# 2/5 Advocate for the Respondent : GA, ASSAM, BEFORE HONOURABLE MR. JUSTICE NELSON SAILO ORDER Date : 13-02-2025 Heard Mr. KN Choudhury, learned senior counsel assisted by Mr. T Deuri, learned counsel for the petitioner. He submits that the petitioner is aggrieved with the impugned order dated 14.11.202 (Annexure-X) in so far as the period of judicial custody spent by the petitioner w.e.f. 15.07.2018 to 03.08.2018 has been treated as “Dies Non” on the principle of “No work No pay”. [2.] The learned senior submits that pursuant to the departmental proceeding drawn against the petitioner, the petitioner has been imposed with a major penalty of stoppage of two annual increments with cumulative effects and the period of her suspension has been treated as leave without pay. However, without there being any wilful absence of duty on the part of the petitioner, the period which the petitioner had spent in judicial custody has been treated as “Dies Non”. He submits that with the imposition of “Dies Non”, the petitioner is destined to forfeit all her service benefits and therefore, the same should be set aside. [3.] The learned senior counsel submits that a co-ordinate Bench of this Court in Swarnamai Sarma vs. The State of Assam & Ors., reported in 2014 LabIC 259 had the occasion to deal with the term “Dies Non”. After considering the decision of the Government of India reproduced in Swamy’s Page No.# 3/5 “Pension Compilation”, 19th edition page 65, with respect to the treatment of wilful absence from duty not being regularised, the Court held that unauthorised absence from duty per se need not entail forfeiture of past service. To entail forfeiture of past service of an employee, it has to be shown that the unauthorized absence is wilful. In other words, unless the unauthorized absence is proved to be wilful, the leave sanctioning authority is empowered under Rule 65 to retrospectively commute such period of absence without leave into leave without allowance. The Apex Court’s decision rendered in Krushnakant B. Parmar vs. Union of India & Anr., reported in (2012) 3 SCC 178, was further referred to, wherein the Apex Court held that if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. The learned senior counsel submits that in the instant case, it was on the account of the petitioner being kept in custody that she could not join duty. The same not being a case of wilful absence from duty, the disciplinary authority could not have imposed the period spent in judicial custody as “Dies Non”. He therefore, submits that the impugned order dated 14.11.2022 in so far as imposition of “Dies Non” for the period w.e.f. 15.07.2018 to 03.08.2018 is concerned should be set aside. [4.] Ms. U Sharma, learned Government Advocate on the other hand, referring to the affidavit-in-opposition filed by the respondent Nos. 3 on 07.01.2025 submits that Police Personnels are not only governed by Assam Police Act, 2007 and the Assam Police Manual but they are also governed by the provisions of various Act and Rules formulated by the legislature. That “Dies Non” on the principle of “No work No pay” is applicable to all Government employees as per Fundamental Rules 17(1). It is therefore, on the basis of the said provision that the disciplinary authority had imposed the penalty and Page No.# 4/5 treated the period concerned as “Dies Non”. She therefore, submits that no interference to the impugned penalty imposed upon the petitioner is called for and the writ petition being without merit should be dismissed. [5.] I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. [6.] The impugned order to which the petitioner is aggrieved with is in respect of treating the period w.e.f. 15.07.2018 to 03.08.2018 as “Dies Non”. There is no dispute to the fact that during the aforesaid period, the petitioner was in judicial custody. Fundamental Rule 17(1) provides that subject to any exceptions specifically made in the said Rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence. Admittedly the petitioner was absent from duty but the reason for such absence was due to her being in judicial custody. The Apex Court in Krushnakant B. Parmar (supra) in the given facts of that case, while considering what would amount to unauthorised absence held that if the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence. But it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc, but in such case, the employee cannot be held guilty of failure of devotion to duty or behaviour Page No.# 5/5 unbecoming of a Government servant. As already stated in the preceding paragraphs, the petitioner was in judicial custody for the aforesaid period and her absence for the given period cannot be treated as wilful absence. The respondent authority concerned upon due consideration may decide not to give the pay and allowance for the period of such absence but under the given circumstance cannot treat the period as “Dies Non” in the absence of any finding that such absence was a wilful absence from duty. [7.] Thus upon due consideration, this Court is of the considered view that the grievance projected by the petitioner is legitimate and accordingly the imposition of “Dies Non” for the period spent under judicial custody cannot be sustained and accordingly the same is hereby set aside but without interfering with the remaining part of the impugned order. It is needless to provide herein that with the interference of penalty of “Dies Non” the consequential benefit as entitled to the petitioner shall follow. [8.] With the above observations and directions, the writ petition stands disposed of. No cost. JUDGE Comparing Assistant