An Analysis of 'Dies Non' in Indian Service Jurisprudence

An Analysis of 'Dies Non' in Indian Service Jurisprudence

Introduction

The concept of 'dies non' (literally, "a day not counted") in Indian service jurisprudence refers to a period during which an employee, though maintaining continuity of service for certain purposes, is not entitled to specific service benefits such as salary, leave, increments, and pension for that duration. This doctrine is typically invoked in cases of unauthorized absence or when regularizing the period of absence upon an employee's reinstatement after dismissal, removal, or compulsory retirement. While it serves as an administrative tool to address interruptions in service, its application has significant consequences for the employee, often carrying a punitive character. This article seeks to provide a comprehensive analysis of 'dies non', drawing upon statutory provisions, particularly the Fundamental Rules (FR), and judicial pronouncements from various High Courts and the Supreme Court of India. It will explore the conceptual underpinnings of 'dies non', the circumstances under which it is applied, the procedural safeguards required, and its varied implications on an employee's service record and benefits.

The Concept of 'Dies Non' in Service Law

Etymological and Dictionary Meanings

The term 'dies non' is an abbreviation of the Latin phrase 'dies non juridicus', meaning a day on which no legal business is transacted or which is not reckoned for a particular purpose. As noted in Deobrat Sahay v. Coal India Limited. Kolkata And Others (Jharkhand High Court, 2011), Black's Law Dictionary (6th edition) defines 'Dies non' as "An abbreviation of Dies non juridicus. Dies non - A day not juridical; not a Court day. A day on which Courts are not open for business, such as Sundays and some holidays." P. Ramantha Aiya's Advanced Law Lexicon (3rd Edition 2005) further clarifies it as "A day which is regarded by the law as one on which no judicial act can be performed, or legal diligence used... A day that is not counted for some purpose." The Gauhati High Court in DEBASHIS PUZARI v. THE STATE OF ASSAM AND 5 ORS. (2022) also referred to Black's Law Dictionary, noting 'dies non juridicus' means "a day exempted from the proceedings, such as a holiday or a Sunday." In the context of service law, this translates to a period that, while acknowledged, does not count towards the accrual of active service benefits.

Core Legal Implications: Continuity v. Non-Accrual of Benefits

The primary characteristic of an order treating a period as 'dies non' is that while the continuity of an employee's service is generally maintained, the specific period designated as 'dies non' is not reckoned for certain service emoluments and benefits. The Madhya Pradesh High Court, in Battilal v. Union Of India . (2005), articulated this principle clearly: "When the Authority directs that the period will be treated ‘dies non’, it means that continuity of service is maintained, but the period treated ‘dies non’ will not count for leave, salary, increment and pension." This position was reiterated in Mahesh Kumar Shrivastava v. State Of M.P And Others (Madhya Pradesh High Court, 2007) and Shailendra v. State Of Mp And Another (Madhya Pradesh High Court, 2019), where it was emphasized that "dies non means continuity of service but the period will not be counted for leave, salary, increment and pension." Consequently, as observed in Mahesh Kumar Shrivastava (2007), "due to the order of the dies non the pension of the employee will be reduced." The Central Administrative Tribunal in BHIKHABHAI MANGALBHAI v. M/O RAILWAYS (2025) defined 'dies non' as "a legal term that refers to a period of time that is not counted towards an employee's service or salary. It is a penalty measure that can be used to punish employees for unauthorized absences."

Circumstances Leading to the Application of 'Dies Non'

Unauthorized Absence

One of the common grounds for treating a period of service as 'dies non' is unauthorized absence. In Battilal (2005), reference was made to Government instructions under Rule 11 of the CCS (CCA) Rules, which permit marking 'dies non' in specific instances of unauthorized absence, such as when an official remains absent without prior information, leaves the office without proper permission while on duty, or remains in office but refuses to perform assigned duties. The Supreme Court's decision in State Of Punjab v. Dr. P.L Singla . (2008 SCC 8 469), while dealing with extraordinary leave (EOL) granted for a period of unauthorized absence, underscores the principle that unauthorized absence constitutes misconduct. Although EOL might regularize the absence for administrative purposes, it does not automatically condone the misconduct or nullify prior punitive measures. An order of 'dies non' for such a period serves as a specific administrative determination of how such absence is to be treated concerning service benefits.

Regularization of Period Upon Reinstatement

Another significant context for the application of 'dies non' arises when an employee is reinstated in service following a period of dismissal, removal, or compulsory retirement. Fundamental Rule 54 (FR 54) and its allied provisions (like FR 54-A and FR 54-B) empower the competent authority to decide on the pay and allowances for the period of absence and whether such period shall be treated as spent on duty. In Union Of India v. Madhusudan Prasad . (2004 SCC 1 43), the Supreme Court upheld the appellate authority's decision to treat the period of absence from the date of dismissal to reinstatement as 'dies non', thereby denying salary for that period but maintaining continuity for pensionary benefits. The Court noted that FR 54 enables the government to pass such an order. Similarly, in Battilal (2005), it was held that where a lesser punishment is imposed upon review or appeal leading to reinstatement, the disciplinary or appellate authority has "full authority to direct how the period between the date of termination to date of reinstatement is to be treated and pass appropriate orders thereon," including treating it as 'dies non'. The Central Administrative Tribunal in Jagdish Prasad Rajak v. Union Of India (2007) also noted that the intervening period from dismissal to reinstatement was treated as 'dies non', impacting service benefits.

Procedural Imperatives and Natural Justice

The Punitive Connotation and Requirement of Enquiry/Show Cause

Treating a period as 'dies non' has significant adverse consequences for an employee, affecting their salary, pension, and other benefits. Consequently, courts have often viewed such orders as punitive or stigmatic in nature, thereby necessitating adherence to principles of natural justice. In Mahesh Kumar Shrivastava (2007), the Madhya Pradesh High Court observed that "The order of dies non is stigmatic in nature for simple reason that the said period would not be counted in the entire service period of an employee... If a stigmatic order is being passed, holding a departmental enquiry is pre-supposed." The court quashed the 'dies non' order because no regular departmental enquiry was conducted, even though a show-cause notice had been issued. Similarly, in Anusuyya Bai And Others v. State Of Madhya Pradesh And Another (2004), the court held that an order treating a period as 'dies non' is "punitive in nature because treating the period as dies non would mean a break in service and therefore it is punitive in nature and cannot be passed without holding departmental enquiry." The order was quashed as no enquiry was conducted. This underscores the judicial insistence on procedural fairness before such an adverse order is passed.

Authority Competent to Order 'Dies Non'

The authority to order a period as 'dies non' typically vests with the competent disciplinary or appellate authority, often guided by service rules like FR 54. As discussed in Battilal (2005) and Union of India v. Madhusudan Prasad (2003), FR 54(1) casts a duty on the authority competent to order reinstatement to make a specific order regarding pay and allowances for the period of absence and whether such period shall be treated as spent on duty. The exercise of this power must be in accordance with the rules and principles of natural justice.

Judicial Scrutiny and Interpretation of 'Dies Non'

Impact on Pension, Increment, and Leave

The consistent judicial view, as seen in cases like Battilal (2005), Mahesh Kumar Shrivastava (2007), and Shailendra (2019), is that a period treated as 'dies non' will not count for pension (in terms of qualifying service for that specific period, thereby potentially reducing the pension amount), increments, and leave. This directly impacts the financial entitlements of the employee both during service and post-retirement.

The Question of Seniority: A Point of Consideration

Regarding seniority, the general implication of "continuity of service" would suggest that seniority is maintained. The Madhya Pradesh High Court in Shailendra (2019) explicitly stated, "it is clear that treating the period of unauthorized absence as dies non does not result into break in service because seniority is maintained." However, a somewhat different perspective was presented by the Jammu and Kashmir High Court in Mohammad Afzal Wani(Dr.) v. State of J&K & Ors. (2009). In this case, relying on specific SROs (Statutory Regulatory Orders), the court held that "The period of unauthorized absence treated as 'Dies-non' washes away the period of service from an employee's service which is treated as 'Dies-non'. The said period thus cannot be treated as continuous period of service and would not count for seniority." The court endorsed the view from Dr. Ashiq Hussain v. State of J&K and ors. (2004) that "When a period is directed to be treated as 'dies-non' the period in question does not count for any service benefit which would otherwise accrue during that period, including pension, increments, experience and seniority." This suggests that the impact on seniority might depend on the specific rules applicable to the service or the express terms of the 'dies non' order.

'Dies Non' Distinguished from Condonation of Misconduct

An order treating a period as 'dies non' is a specific administrative mechanism to regularize a period of absence or non-service for the record, while simultaneously imposing certain disabilities regarding benefits for that period. It should not be equated with a complete condonation of the underlying misconduct (e.g., unauthorized absence). The Supreme Court's reasoning in State Of Punjab v. Dr. P.L Singla . (2008), where granting extraordinary leave for unauthorized absence did not nullify the disciplinary punishment, is analogous. Treating a period as 'dies non' is a determination of how that period affects service benefits, rather than an erasure of the fact of absence or the reasons behind it.

Limitations on Imposing 'Dies Non'

The power to declare a period as 'dies non' is not absolute and must be exercised within the confines of the law and relevant rules. For instance, in A.N Kanthraj v. The Assistant Executive Engineer & Others (Karnataka High Court, 1999), where a Labour Court award directed reinstatement with continuity of service and back wages, and the employer failed to reinstate, the High Court held that the workman was entitled to full wages. It further stated, "The State Government, therefore, could not have treated the period concerned as ‘dies non’." This indicates that an administrative order of 'dies non' cannot override a judicial or tribunal award that grants full benefits for a particular period, unless the award itself provides for such a possibility or the rules governing the situation specifically permit it post-award.

Judicial Review of 'Dies Non' Orders

Orders treating a period as 'dies non' are subject to judicial review. Courts can intervene if such orders are passed in violation of principles of natural justice (e.g., without enquiry or show-cause notice, as seen in Mahesh Kumar Shrivastava (2007) and Anusuyya Bai (2004)), if they are contrary to statutory rules, or if they are passed arbitrarily or without proper application of mind. The very fact that 'dies non' orders have been quashed or modified by courts demonstrates the availability of judicial oversight.

Fundamental Rules and Other Statutory Provisions

Role of Fundamental Rule 54 (and variants like 54-A, 54-B)

Fundamental Rule 54 is a cornerstone provision dealing with the treatment of the period of absence when a government servant who has been dismissed, removed, or compulsorily retired is reinstated. As highlighted in Battilal (2005) and Union of India v. Madhusudan Prasad (2003), FR 54(1) mandates the competent authority to make a specific order regarding: (a) pay and allowances for the period of absence, and (b) whether the said period shall be treated as a period spent on duty. This rule provides the statutory basis for orders like 'dies non' in such contexts. Battilal (2005) also discussed FR 54-A, clarifying its inapplicability where a court directs imposition of a lesser punishment, leaving the discretion with the authority. DEBASHIS PUZARI (2022) referred to FR 54-B(1)(b) in the context of treating a period as not spent on duty and questioned whether treating the entire period as 'dies non' would correspondingly mean forfeiture of the service period under the law.

CCS (CCA) Rules and other relevant service rules

Apart from the Fundamental Rules, specific service rules like the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and corresponding state service rules, often contain provisions or instructions regarding unauthorized absence and its consequences, which may include treating such periods as 'dies non'. As mentioned in Battilal (2005), government instructions under Rule 11 of the CCS (CCA) Rules specify circumstances where 'dies non' can be marked for unauthorized absence. The interplay of these rules with the Fundamental Rules governs the application of the 'dies non' principle.

Conclusion

The principle of 'dies non' in Indian service law serves as a mechanism to address periods of unauthorized absence or to regularize periods of non-service upon reinstatement, without granting full service benefits for such durations. While it ensures continuity of service for certain overarching purposes, it curtails entitlements like salary, leave, increments, and often impacts pensionary benefits and potentially seniority for the specific period. Given its adverse and often punitive consequences, judicial authorities have emphasized the need for adherence to principles of natural justice, typically requiring a departmental enquiry or at least a show-cause notice before such an order is passed. The application of 'dies non' is governed by statutory provisions like Fundamental Rule 54 and relevant service conduct rules, and its imposition is subject to judicial review to ensure fairness, legality, and non-arbitrariness. A clear understanding of its implications is crucial for both employers and employees in the public sector, ensuring that its application aligns with the tenets of administrative law and justice.

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