2025:HHC:44053 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9464/2023 Decided on: 17.12.2025 Hitender Mandyal …Petitioner Versus HRTC & Anr. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioner: Mr. R.K. Dogra, Advocate. For the respondent: Mr. Raman Jamalta, Advocate. Jyotsna Rewal Dua, J. CMP No. 30892 of 2025 Heard. Documents appended alongwith the application are taken on record. Application stands disposed of. CWP No. 9464 of 2023 Petitioner is serving as Driver in the respondents- Corporation. On 15.09.2022, he was transferred from Kullu, Unit to Shimla, Unit. Petitioner did not join his duties at the transferred station and w.e.f. 19.09.2022 remained continuously absent for a period of 231 days. Respondents transferred him to Mandi, Unit on 08.05.2023. Petitioner joined at the said station the same day and 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 2025:HHC:44053 later furnished following medical certificates from different hospitals and doctors covering the entire period of his absence: - Sr. No Period Medical Certificate issued Reason for issuance 1 19.09.2022 to 26.10.2022 Govt. Medical Hospital Mandi ATFL Sprain right ankle 2 26.10.2022 to 19.11.2022 Govt. Medical Hospital Mandi CBA radiculopathy 3 30.11.2022 Dr. R.P. Kaushal retd. MBSS Cervical spondylosis 4 13.01.2023 to 24.02.2023 Dr. R.P. Kaushal retd. MBSS Cervical spondylosis with pain right arm 5 25.02.2023 to 12.04.2023 Dr. R.P. Kaushal retd. MBSS Lumbago 6 13.04.2023 to 07.04.2023 Dr. I.P. Kaundal Retd. BMO Osteoarthritis both knee joints 3 2025:HHC:44053 Respondents-HRTC directed petitioner’s examination by a Medical Board. The Medical Board examined the petitioner on 27.10.2023 and reported that “Petitioner was advised rest for two weeks as per record. However, since there are incomplete records available, we cannot say how much rest was advised. Generally, ATFL sprain requires 3-6 weeks for rest. At present, he is fit for duty.” In view of Medical Board’s opinion, the respondent- Corporation, vide office order dated 21.11.2023, granted ex-post facto 38 days commuted leave in petitioner’s favour w.e.f. 19.09.2022 to 26.10.2022. Petitioner’s remaining absence period of 193 days w.e.f. 27.10.2022 to 07.05.2023 was ordered to be treated as dies- non for all intents and purposes. The period though was not to constitute a break in service nonetheless was to be treated as duties not discharged during the period for any purpose. Petitioner feels aggrieved and preferred this writ petition seeking directions to the respondents to grant him due and admissible salary for the period in question by treating him on medical leave during the period in question. 3. Heard learned counsel for the parties and considered the case file. 4 It is an admitted position that petitioner was transferred on 15.09.2022 from Kullu Unit to Shimla Unit, but he did not join at the transferred station. Petitioner remained continuously absent from 4 2025:HHC:44053 duties from 19.09.2022 onwards. On 29.09.2022, petitioner is stated to have sent a letter to the respondents that he was sick and could not join his duties. Petitioner remained absent from duties till his next transfer to Mandi Unit on 08.05.2023. During this entire period, no other communication was sent by the petitioner to the respondents. After joining Mandi Unit on 08.05.2023, petitioner furnished medical certificates (tabulated above): -  As per certificate at serial No.1 issued by Government Medical Hospital Mandi, the petitioner was stated to be suffering from ATFL sprain right ankle. This certificate covering the period of absence from duty w.e.f. 19.09.2022 to 26.10.2022 was issued on 11.11.2022.  The second certificate was issued to the petitioner again by the Government Medical Hospital Mandi, but by a different Doctor, in terms of which, the petitioner was statedly suffering from CBA radiculopathy. The certificate though does not bear any date of issuance, but covers the period of absence from duty w.e.f. 26.10.2022 to 19.11.2022.  The third certificate issued to the petitioner was from a private practitioner, describing the petitioner to be suffering from Cervical Spondylosis; Petitioner was advised rest from 20.11.2022 to 13.01.2023. The same private medical practitioner issued two other medical certificates to the petitioner i.e. one on 24.02.2023 covering 5 2025:HHC:44053 the period of absence from duty w.e.f. 13.01.2023 to 24.02.2023 for Cervical Spondylosis with pain in right arm & the other dated 12.04.2023, covering the period of absence from duty w.e.f. 25.02.2023 to 12.04.2023 for petitioner statedly suffering from Lumbago.  The last certificate was issued to the petitioner again by a private medical practitioner on 07.05.2023, covering the period of absence from duty w.e.f. 13.04.2023 to 07.05.2023, on account of petitioner’s purportedly suffering from osteoarthritis of both knee joints. The respondents have justly pleaded that, in view of the nature of the medical certificates produced by the petitioner from different doctors and from different institutes for several diseases in a row in order to justify his absence from duty, the genuineness of his claim of actually suffering from ailments during the relevant period stands cast in doubt. It cannot be ignored that the petitioner purportedly fell sick the moment he was transferred to the Shimla Unit and got well the moment he was transferred to the Mandi Unit. The petitioner remained absent from duty for a total period of 231 days. After petitioner’s joining the duty and considering the medical certificates produced by him, the respondents directed his examination by a Medical Board. The Medical Board’s opinion as extracted above was very categoric that ATFL sprain statedly 6 2025:HHC:44053 suffered by the petitioner does not require more than 3-6 weeks of rest. It is for the said reason that the respondents sanctioned ex-post medical leave to the petitioner for a period of six weeks under office order dated 21.11.2023 and the remaining period of his absence was ordered to be treated as dies-non for all intents and purposes but was not to constitute a break in service. Respondents’ decision is not unfair. The petitioner having not served during the said period, cannot be paid salary for the period in question. His claim is mis-founded. The respondents have also placed on record office circulars/notifications dated 19.07.2006, 24.12.2005, and 07.02.2009. The last circular dated 07.02.2009, issued by the respondent- Corporation for treating willful absence from duty as dies-non, reads as under: - “Despite of series of instructions issued from this office from time to time for treating period of willful absence from duty "Dien-non" it is noticed that. Instructions are not being complied with. No action is being taken against the defaulters especially those employees, who have been transferred from one place to another and are not joining at the respective places on their posting. They are managing to get their transfer canceled after lapse of considerable time. The intervening period in such cases is required. to be treated as "Dies-non". The cancellation of transfer by the competent authority will not make him entitled for grant of leave and for treating periods of absence as duty. In this behalf your kind attention is invited to this office memo of even No. dated 5.5.96, 23.01.2002 21.11.2002 and 28.07.2004. You are, therefore, directed to intimate action taken against those officials who failed to join duty at their place of posting on 7 2025:HHC:44053 transfer and later on managed to get their transfer canceled. The detail of action taken against the defaulters be submitted to this office on or before 28th February, 2009.” It would also be pertinent to take note of Rule 19(1)(ii) of the Central Civil Services (Leave) Rules, which governs sanction of medical leave to non-Gazetted Government servant and reads as under: - “19. Grant of leave on medical certificate to Gazetted and non- Gazetted Government servants- (1) An application for leave on medical certificate made by- (i) xxxxxxxxxxxxxxxxxxxx (ii) a non-Gazetted Government servant, shall be accompanied by a medical certificate Form 4 given by a Central Government Health Scheme Dispensary if such a Government servant is a Central Government Health Scheme beneficiary or by Government Hospital or by an Authorized Medical Attendant if he is not a Central Government Health Scheme beneficiary; and by an Authorized Doctor of the private hospital, recognized under Central Government Health Scheme or Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by the Competent Authority in respect of particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare: Provided that the non-Gazetted Government servant who is a Central Government Health Scheme beneficiary, if at the time of illness is away from Central Government Health Scheme area or proceeds on duty outside the Headquarters will produce Medical Certificate or Fitness Certificate in Form 4 or Form 5, as the case may be, given by an Authorized Medical Attendant or by Registered Medical Practitioner if there is no Authorized Medical Attendant available within a radius of eight kilometers from his 8 2025:HHC:44053 residence or place of temporary stay outside his Headquarters and also in the circumstances when he finds it difficult to obtain Medical Certificate or Fitness Certificate from a Doctor in a Central Government Health Scheme Dispensary or an Authorized Medical Attendant;” Here, it may be pertinent to take note of following Rules 17(1) and 17-A of the Fundamental Rules, which provide that an employee shall not be entitled to any pay or allowance for the period of absence from duty without authority: - “F.R. 17. (1) Subject to any exceptions specifically made in these 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. (2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed. F.R. 17-A. Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence— (i) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force; (ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, 9 2025:HHC:44053 without any authority from, or valid reason to the satisfaction of the competent authority; and (iii) in the case of an individual employee, remaining absent unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi- permanency and eligibility for appearing in departmental examinations, for which a minimum period of continuous service is required.” ‘Dies Non’ means ‘No Day’ i.e. where employee does not get pay for the day due to unauthorized & willful absence from duty. In the given facts and circumstances, the respondents were justified in issuing the office order dated 21.11.2023 (Annexure P-11) by granting ex-post facto sanction for 38 days of commuted leave w.e.f. 19.09.2022 to 26.10.2022 and treating the remaining period of absence, i.e. 193 days w.e.f. 27.10.2022 to 07.05.2023, as dies-non for all intents and purposes, though without treating the said period as a break in service. The petitioner is, therefore, not entitled to the relief claimed by him. Accordingly, the petition fails and is dismissed. Pending miscellaneous application(s), if any, also to stand disposed of. Jyotsna Rewal Dua Judge 17th December, 2025(rohit)