1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S. G. PANDIT AND THE HON'BLE MR. JUSTICE K.V.ARAVIND WRIT PETITION NO.22581/2022 (S-KSAT) BETWEEN: SRI KALEEMULLA KHAN S/O LATE HASSAN ALI KHAN AGED ABOUT 61 YEARS RETIRED ASSISTANT TEACHER GOVERNMENT URDU HIGHER PRIMARY SCHOOL, SOMINAKOPPA SHIVAMOGGA – 577 203 R/AT NO.10, 3RD MAIN 5TH CROSS, RML NAGAR, 2ND STAGE SHIVAMOGGA – 577205. ... PETITIONER (BY SRI. M.P. SRIKANTH, ADV.) AND: 1. STATE OF KARNATAKA REP. BY PRINCIPAL SECRETARY PRIMARY AND SECONDARY EDUCATION M.S. BUILDING DR. AMBEDKAR VEEDHI BANGALORE- 560 001. 2. THE COMMISSIONER FOR PUBLIC INSTRUCTIONS PRIMARY & SECONDARY EDUCATION 2 NEW PUBLIC OFFICES NRUPATHUNGA ROAD, K.R. CIRCLE, BANGALORE-560001. 3. THE DIRECTOR PRIMARY EDUCATION NEW PUBLIC OFFICES NRUPATHUNGA ROAD BENGALURU- 560001. 4. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS SHIVAMOGGA DISTRICT SHIVAMOGGA – 577201. 5. THE BLOCK EDUCATION OFFICER SHIVAMOGGA TALUK SHIVAMOGGA – 577201. 6. THE HEAD MASTER GOVERNMENT URDU HIGHER PRIMARY SCHOOL SOMINAKOPPA SHIVAMOGGA- 577203. …RESPONDENTS (BY SRI V SHIVAREDDY, AGA FOR R1 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) SET ASIDE THE ORDER DATED 15.12.2021 PASSED IN APPLICATION NO.1169/2021 PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL, BENGALURU, VIDE ANNEXURE-C AND B) PASS ANY ORDER OF CONSEQUENTIAL RELIEF OR ANY OTHER APPROPRIATE ORDER OR DIRECTION. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 08.09.2025 COMING ON THIS DAY, S.G.PANDIT J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE K.V.ARAVIND 3 CAV ORDER (PER: HON'BLE MR JUSTICE S.G.PANDIT) Petitioner, a retired Assistant Teacher, is before this Court under Article 226 of the Constitution of India, questioning the order dated 15.12.2021 in Application No.1169/2021 passed by the Karnataka State Administrative Tribunal at Bengaluru (for short, ‘the Tribunal’) wherein the petitioner’s challenge to the order of penalty of censure and to treat the period of absence as dies non was rejected. 2. Brief facts of the case are that, the petitioner was appointed as a Primary School Teacher by order of appointment dated 02/04.11.1988. The petitioner remained unauthorizedly absent from 06.03.1995 on medical grounds. During his unauthorized absence, the fourth respondent is said to have issued notices dated 29.01.1996, 11.04.1996 and 09.07.1996 calling upon the petitioner to join 4 duty. The Block Education Officer is also said to have personally visited the Institution where the petitioner was working, but he was found absent at the address provided by him. As such, a paper publication on 14.08.1996 in ‘Udayavani’ Kannada daily was published asking the petitioner to report to duty. As the petitioner failed to report to duty, the respondents by order dated 17.10.1996 dismissed the petitioner from service. The petitioner filed an appeal and the said appeal was dismissed on the ground of delay. The petitioner approached the authorities by making a representation. By notice dated 16.10.2000, the petitioner was asked to appear along with his passport, but as the petitioner failed to appear, the request of the petitioner was rejected as per the endorsement dated 17.01.2003. 3. Questioning the said endorsement as well as order of dismissal, petitioner approached the 5 Tribunal in Application No.4345/2004 contending that no enquiry was conducted before dismissing the petitioner from service and also contending that the order of dismissal was is in total violation of principles of natural justice. The Tribunal under order dated 31.05.2017 partly allowed the petitioner’s application, quashed the order of penalty of dismissal and remitted the matter back to the fourth respondent to take recourse to Rule 14(ii) or to follow the procedure under Rule 11 of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (for short, ‘CCA Rules’) and to take a fresh decision in accordance with law. The Tribunal also observed that the applicant would not be entitled to any retrospective benefits except counting of his service. In pursuance thereto, the petitioner was reinstated into service by O.M., dated 23.10.2018, and the petitioner reported to duty at Government Urdu Higher Primary School, Sominkoppa, Shivamogga. 6 Thereafter, invoking liberty granted by the Tribunal, the petitioner was issued with charge memo dated 01.08.2019 under Rule 11 of CCA Rules. After conducting enquiry, the Enquiry Officer submitted his report dated 16.10.2020. Thereafter, the petitioner was issued with second show cause notice dated 04.11.2020 enclosing enquiry report. The petitioner submitted his reply on 23.11.2020. The Disciplinary Authority by order dated 03.02.2021, imposed punishment of censure under Rule 8(ii) of CCA Rules and treated the period from 06.03.1995 to 17.10.1996 as well as 17.10.1996 to 23.10.2018 as dies non, which would mean that it would not count for any purpose. Questioning the said order of penalty, the petitioner was before the Tribunal in the above stated application. The Tribunal under impugned order, found no infirmity in the enquiry and also was of the opinion that the punishment imposed was a minor penalty and that the same was not a 7 ground to interfere with the order of penalty. Aggrieved by the same, petitioner is before this Court in this writ petition. 4. Heard learned counsel Sri.M.P.Srikanth for petitioner and learned Additional Government Advocate Sri.V.Shivareddy for respondents. Perused the entire writ petition papers. 5. Learned counsel for the petitioner would submit that the petitioner remained unauthorizedly absent solely due to medical grounds, and the authorities, both the Enquiry as well as Disciplinary Authority failed to appreciate the said fact. Further, learned counsel would submit that for no fault of the petitioner, he was not permitted to join duty in the year 1996. He further submits that, challenge to the order of dismissal was pending before the Tribunal for more than 10 years and that the period during which, the application was pending before the Tribunal, could 8 not have been treated as dies non. Learned counsel would submit that the petitioner joined service in the year 1988 and on the ground of his ill-health, he remained absent in the year 1995. Subsequently, he was permitted to join duty only on 29.10.2018. Thereafter, he retired from service on attaining the age of superannuation on 31.05.2020. As on the date of his superannuation, the petitioner would have no qualifying service for pension, in view of treating the above period as dies-non. 6. Further, learned counsel Sri.M.P.Srikanth would invite attention of this Court to the observations of the Tribunal in the earlier round of litigation and would submit that the Tribunal has observed that the applicant is not entitled for any retrospective benefits except counting of service. When the Tribunal has treated counting of service, the authorities could not have treated the entire period as dies non. Moreover, 9 the earlier order of the Tribunal has become final and as such in terms of the earlier Tribunal order, the petitioner would be entitled for his service for the purpose of pension and pensionary benefits. Further, learned counsel would also submit that the State has not followed the procedure prescribed under Rule 100 of KCSRs before treating the period between 06.03.1995 to 23.10.2018 as dies non. Thus, learned counsel would pray for allowing the writ petition. 7. On the contrary, learned Additional Government Advocate Sri.V.Shivareddy would submit that the petitioner remained unauthorizedly absent from duty and he failed to produce any medical certificates. The material produced by the petitioner would only indicate that he was taking treatment as an outpatient, and no documents have been placed on record, to prove his serious illness. In the absence of any material to establish that his absence was due to 10 medical grounds, the finding of the Enquiry Officer holding that the petitioner’s absence was unauthorized is proper and correct. Learned Additional Government Advocate would submit that as the petitioner was out of service from 1995 onwards till 2018, the authorities have rightly treated the said period as dies non. Further, learned Additional Government Advocate would submit that it is not the case of the petitioner that he was not given proper opportunity or that there was violation of procedure followed as prescribed under Rule 11 of CCA Rules. In those circumstances, learned Additional Government Advocate would pray for dismissal of the writ petition. 8. Having heard the learned counsel appearing for the parties and on a perusal of the entire writ petition papers, the only point which falls for our consideration is as to, 11 “Whether the Tribunal is justified in refusing to interfere with the impugned order of penalty and further whether the Tribunal was justified in refusing to interfere with the impugned order insofar as treating the period between 06.03.1995 to 17.10.1996 as well as 17.10.1996 to 23.10.2018 as dies non?” 9. Answer to the above point would be partly in the Affirmative and partly in the Negative. The Tribunal is justified in not interfering with the penalty imposed, whereas the Tribunal is not justified in not interfering with the portion of the order in which, the period from 06.03.1995 to 17.10.1996 as well as 17.10.1996 to 23.10.2018 is treated as dies non for the following reasons: In the instant case, the facts are not in dispute. The petitioner was dismissed for unauthorized absence without conducting any enquiry by a Memorandum dated 17.10.1996 of the 4th respondent and appeal filed against the said order of dismissal is rejected, 12 which was the subject matter of Application No.4345/2004. The Tribunal, by order dated 31.05.2017 allowed the application, setting aside the order of dismissal with a direction to the respondents to reinstate the petitioner into service with a further direction to the 4th respondent to take recourse to Rule 14(ii) or to follow the procedure under Rule 11 of CCA Rules. Further, it was made clear that the petitioner is not entitled for any retrospective benefits except counting of service. Thereafter, the petitioner was reinstated into service; a charge memo was issued and an enquiry was conducted, in which the charge of remaining unauthorizedly absent against the petitioner was proved. Under the O.M. dated 03.02.2021, since the petitioner is already retired, punishment of censure under Rule 8(ii) of CCA Rules and treating the period from 06.03.1995 to 17.10.1996 as well as from 17.10.1996 to 23.05.2018 as dies non which would not be counted for any other 13 purpose was imposed. The charge is proved against the petitioner and the said finding of the Enquiry Officer is not in challenge in the present writ petition. Learned counsel for the petitioner contended that treating the period from 06.03.1995 to 23.05.2018 as dies non is opposed to the earlier order of the Tribunal and that no opportunity whatsoever is provided before treating that period as dies non. 10. The Tribunal, in its order dated 31.05.2017 in Application No.4345/2004 while setting aside the order of dismissal of the petitioner has specifically observed that the petitioner is not entitled for any retrospective benefits except counting of service, which would mean that the period during which the petitioner was out of service could be counted for pension and pensionary benefits and not for any arrears of salary or financial benefits. The Disciplinary Authority has failed to take note of the said 14 observation of the Tribunal while passing the impugned order of penalty of censure. 11. Rule 8(14-A) of KCSRs defines “Dies non” as follows: “Dies non means non-duty period or period not spent on duty” Note: The period treated as ‘dies non’ will not count as service nor will it be construed as break in service.” The above definition makes it abundantly clear that the period treated as dies non could not be treated as a period spent on duty, nor could it be counted as service nor it could be construed as a “break in service”. Rules 99, 99A and 100 of KCSRs provide for regulating service of a Government servant where the order of dismissal or removal is set aside by the Court and he is reinstated into service with a de nova enquiry. The authorities ought to have followed the procedure prescribed therein. As the respondents 15 have failed to follow the said procedure, the same has resulted in putting the petitioner in a prejudicial position. In that, the petitioner would not be entitled for pension or pensionary benefits, as he would not be having qualifying service for pension. If the period during which the petitioner was out of service is treated as duty, then only, the petitioner would become entitled for pension and pensionary benefits. The Tribunal in its earlier order dated 31.05.2017 in Application No.4345/2017 has held that the same shall be counted for the purpose of pension and pensionary benefits. 12. Hence, the following order: (i) Order dated 15.12.2021 passed in Application No. 1169/2021, insofar as dismissing the application and treating the period from 06.03.1995 to 17.10.1996 as “unauthorized absence period” is hereby is confirmed. The order of the Tribunal and 16 penalty insofar as treating the period from 17.10.1996 to 23.10.2018 as “dies non period” is quashed. (ii) Respondents are directed to count the period from 17.10.1996 to 23.10.2018 for the purposes of pension and pensionary benefits and sanction pension and pensionary benefits to the petitioner. (iii) The petitioner would not be entitled to count the said period for any other purpose. (iv) With the above modification, the writ petition stands disposed of. Sd/- (S.G.PANDIT) JUDGE Sd/- (K.V.ARAVIND) JUDGE NC/MPK CT: bms