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2002 DIGILAW 1714 (RAJ)

Radha Devi v. State of Rajashtan

2002-10-18

SUNIL KUMAR GARG

body2002
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India was originally filed by Permanand Sewak (hereinafter referred to as "the deceased"), who died during the pendency of this writ petition on 2.1.2001 and, thereafter, Smt. Radha Devi wife of deceased Permanand was substituted in place of deceased Perrmanand vide order dated 12.4.2001, with the prayer that by an appropriate writ, order or direction, the termination order dated 11.3.1996 (Annex. 3) passed against the deceased by the respondent No. 3 Vikas Adhikari, Panchayat Samiti, Jaisalmer be quashed and set aside and furthermore, retiral benefits be given now to Smt. Radha Devi, wife of deceased. 2. The case of the petitioner as put forward in this writ petition is as follows:- The deceased was appointed on substantive basis on the post of Teacher Gr. III on 20.7.1959, but due to loss of mental equilibrium, he filed an application for leave on 9.12.1982 and thereafter, he was continuously filing applications for extension of leave. Since the deceased was medically unfit, he remained absent from duty on medical grounds. The further case of the petitioner is that the respondent No. 3 Vikas Adhikari, Panchayat Samiti, Jaisalmer gave a notice (Annex.1) on 14.2.1996 to the deceased asking him to join duties within seven days. In pursuance of that notice Annex. 1, the deceased joined his duties on 29.2.1996 through joining report Annex. 2 and alongwith that, he also submitted medical certificates etc. etc. and he further made a request that he be taken on duty as he was to be superannuated with effect from 29.2.1996.However, without making any enquiry, the respondent No. 3 Vikas Adhikari, Panchayat Samiti, Jaisalmer passed an order Annex. 3 on 11.3.1996 by which the services of the deceased were terminated with effect from 29.2.1996 on the ground that he continuously remained absent from duty with effect from 8.12.1982 and that order Annex. 3 has been challenged in this writ petition.The main ground is that the termination order Annex. 3 was passed without making any enquiry under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") and, therefore, the same cannot be sustained and liable to be set aside. 3 has been challenged in this writ petition.The main ground is that the termination order Annex. 3 was passed without making any enquiry under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") and, therefore, the same cannot be sustained and liable to be set aside. Hence, this writ petition with the prayer as stated above.A reply to the writ petition was filed by the respondents and the case of the respondents is that as per the service record of the deceased, his date of birth was 5.2.1938 and, therefore, he attained the age of superannuation on 4.2.1996 and since he continuously remained absent from duty with effect from 8.12.1982, therefore, this aspect should be treated as he had abandoned his services under the Rules and in case of abandonment of service, no enquiry was necessary and thus, the impugned termination order Annex. 3 was rightly passed against the deceased. Hence, this writ petition be dismissed. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. 4. From perusing the impugned termination order Annex. 3 dated 11.3.1996, it is very much clear that the ground on which the services of the deceased were terminated was that he remained absent from duty and the ground of abandonment of service has not been mentioned in it. Since the ground of abandonment of service has not been mentioned in the impugned termination order Annex. 3, therefore, the case of the respondents that the services of the deceased were terminated on the ground of abandonment of service, cannot be accepted. 5. There is also no dispute on the point that deceased attained the age of superannuation on 29.2.1996 before the impugned termination order Annex. 3 was passed. 6. When the case of abandonment of service is not accepted, the necessary consequence of it would be that before passing termination order, enquiry as envisaged under rule 16 of the CCA Rules was must and since no enquiry as envisaged under Rule 16 of the CCA Rules was made before passing the impugned termination order Annex. 3, therefore, in absence of that, the impugned termination order Annex.3 cannot be sustained. For that, the decision of this Court in Ashok Kriplani v. State of Rajasthan & Ors. (WLR 1992(S) Raj. 3, therefore, in absence of that, the impugned termination order Annex.3 cannot be sustained. For that, the decision of this Court in Ashok Kriplani v. State of Rajasthan & Ors. (WLR 1992(S) Raj. 359) may be referred to, where it was observed:- "After advent of Constitution removal from service must conform to the conditions of Article 311 and in the absence of a proper order passed as a result of inquiry, the relationship of master and servant does not come to an end. A person is entitled to continue in service until his service is terminated in accordance with law and employee can rejoin anytime as his service continues till such termination order and is entitled to all consequential benefits including the benefit to emoluments as a result of joining his duty." 7. For the reasons stated above, the impugned termination order Annex. 3 dated 11.3.1996 cannot be sustained and liable to be set aside and this writ petition deserves to be allowed. 8. Now since the deceased has died, therefore, the only relief which could be granted to the wife of deceased is that she would be entitled to the retiral benefits applicable to her after the death of her husband (deceased).Accordingly, this writ petition is allowed and the impugned termination order Annex.3 dated 11.3.1996 passed by the respondent No. 3 Vikas Adhikari, Panchayat Samiti, Jaisalmer is quashed and set aside and the respondents are directed to make available all retiral benefits to Smt. Radha Devi wife of the deceased, in accordance with law.No order as to costs.Petition allowed. *******