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2011 DIGILAW 881 (GAU)

Minati Das v. State of Tripura

2011-11-08

I.A.ANSARI

body2011
JUDGMENT I.A. Ansari, J. 1. Heard Mr. K.N. Bhattacharjee, learned Senior counsel, appearing on behalf of the petitioners. Also heard Mr. B. Dutta, learned State counsel, appearing on behalf of the respondent Nos. 1, 3 and 4, and Mr. A. Sengupta, learned counsel, appearing on behalf of the respondent Nos. 2, 5 and 6. Before coming to the issues, raised in this writ petition, certain material facts, which would help disposal of the writ petition, need to be taken note of. These facts are, therefore, set out, in brief, as under: (i) Late Rasaraj Das was the husband of the petitioner No. 1, namely, Smt. Minati Das, and father of the rest of the petitioners. While serving as an employee of the State Government in its Department of Power, Rasaraj Das was sent, on deputation, to Tripura State Electricity Corporation Ltd. (in short, 'the respondent Corporation'), which is a Government owned Corporation. Rasaraj Das remained absent from duty with effect from 18.09.2005 to 1.12.2005. The Deputy General Manager, Tripura State Electricity Corporation Ltd, issued a letter, dated 19.10.2005, asking Rasaraj Das to join his service immediately. On his resumption of duty. Rasaraj Das sought for regulation of his said period of absence by granting him leave. A letter, dated 29.08.2006, was, then, issued by the Section Officer of the respondent-Corporation addressed to the Additional General Manager of the respondent-Corporation requesting him to direct regularization of the unauthorized leave period from 18-09-2005 to 01-12-2005 by granting admissible leave lying in the credit of Rasaraj Das and if no such leave was available, then, to regularize his service by granting extraordinary leave. (ii) Following a case registered against him, Rasaraj Das faced trial in the Court of Additional Sessions Judge, Sonamura, in Sessions Case No. S.T. 20 (WT/S) of 2007. By judgment and order, dated 27-11-2007, passed, in the said Sessions Case, Rasaraj Das was convicted under Section 304, Part-II, IPC and sentenced to suffer imprisonment for 10 years. Consequent to his conviction Rasaraj Das was put in prison. Against his conviction and sentence, Rasaraj Das preferred an appeal, which gave rise to Criminal Appeal No. 100 of 2007. While suffering his imprisonment, in the Central Jail, Agartala, Rasaraj Das died on 26-03-2009. Consequent to his conviction Rasaraj Das was put in prison. Against his conviction and sentence, Rasaraj Das preferred an appeal, which gave rise to Criminal Appeal No. 100 of 2007. While suffering his imprisonment, in the Central Jail, Agartala, Rasaraj Das died on 26-03-2009. Thereafter, his widow (i.e. the petitioner No. 1 herein), made a representation to the State Government and also to the respondent-Corporation to appoint her son, under the scheme meant for compassionate ground, who had, in the meanwhile, become major, and had already passed class-VIII examination. By yet another representation, dated 26-12-2009, Rasaraj Das's widow, namely, Smt. Minati Das, prayed for payment of all such sums of money, which were payable to Rasaraj Das. but had not been paid to them. 2. Alleging that Rasaraj Das had died due to the fact that he had not been provided with proper medical care inside the jail, her son ought to have been given appointment, on compassionate ground, and that the petitioners shall be paid all such sums of money as were payable to Rasaraj Das, the petitioners have filed the present writ petition, under Article 226 of the Constitution of India, for issuance of appropriate directions. 3. In their counter affidavit, the State respondents have contended that Rasaraj Das had been given best possible treatment available within the State of Tripura inasmuch as he was treated at Agartala Medical College and Gobind Ballabh Pant Hospital, Agartala, his treatment suffered from no negligence and he died despite proper treatment had been made available to him and necessary care had been taken by the State. 4. While considering the present writ petition, it needs to be noted that considering the fact that the State respondents have stoutly denied that there was any negligence or failure, on the part of the State respondents, to take care/treatment of Rasaraj Das, it is impossible to hold, in the absence of any material brought on record by the petitioners, that Rasaraj Das had died due to lack of proper treatment while undergoing imprisonment following his conviction under Section 304, Part-II, IPC. This apart, the question as to whether Rasaraj Das was or was not provided, while undergoing imprisonment, adequate medical treatment is, in the context of the facts of the present case, a disputed question of fact and determination of such a question of fact would require thorough enquiry calling for recording of evidence. This apart, the question as to whether Rasaraj Das was or was not provided, while undergoing imprisonment, adequate medical treatment is, in the context of the facts of the present case, a disputed question of fact and determination of such a question of fact would require thorough enquiry calling for recording of evidence. Such a course of action is not reasonable in a writ proceeding of present nature. This Court is, therefore, not inclined to enter into the arena of determination of the question as to whether the petitioners, being legal representatives, need to be compensated for the death of Rasaraj Das, who, according to the petitioners, had died due to lack of proper medical treatment and care, which ought to have been taken by the State. 5. As far as appointment of a son of Rasaraj Das, on compassionate ground, under the related scheme is concerned, the same is not possible to direct, unless the person, who seeks appointment, himself makes requisite application for appointment in accordance with the terms and conditions of the scheme applicable to such a case. When the writ petition does not disclose that any such application was made by any of the sons of the deceased Rasaraj Das no direction for appointment of any of the sons of deceased Rasaraj Das can be ordered by this Court in this writ petition. 6. Let me, now, come to the third and the last direction, which the petitioners have sought for, namely, that the petitioners are entitled to receive such sum or sums of money, which were due and payable to Rasaraj Das. This aspect of the writ petition brings me to a more important question and the question is: whether a Government servant, who is undergoing imprisonment following his conviction under Section 304, Part-II, IPC, is entitled to receive any monetary benefit, pensionary or otherwise, if he dies, while undergoing such imprisonment? 7. While considering the question posed above, it needs to be noted that it is the Central Civil Services (Classification, Control and Appeals) [CCS (CCA) Rules], 1965, which apply to a Government servant in the State of Tripura. In terms of sub-rule (2) of Rule 10, if a Government servant is detained in custody, on a criminal charge, or otherwise, for a period exceeding forty-eight hours, he shall be deemed to have been placed under suspension. In terms of sub-rule (2) of Rule 10, if a Government servant is detained in custody, on a criminal charge, or otherwise, for a period exceeding forty-eight hours, he shall be deemed to have been placed under suspension. Under sub-rule (7) of Rule 10, an order of suspension made, or deemed to have been made, under sub-rule (1) or (2) of Rule 10, as the case may be, shall not be valid after a period of ninety days, unless it is extended, after review, for a further period before the expiry of ninety days. 8. It is, thus, clear that on his conviction, when Rasaraj Das was sent to jail for undergoing imprisonment, and a period of more than forty-eight hours elapsed, he, by the legal fiction, which Rule 10(2) has created, stood suspended. His deemed suspension, having not been extended within next three months of his going to jail, had, automatically, stood revoked in terms of Rule 10(7). Rasaraj Das, therefore, continued to remain a Government servant and would have remained a Government servant until the time of his superannuation or until the time, he was, otherwise, removed from service by way of dismissal or otherwise. 9. What is, now, of great relevance to note is that under sub- rule (7) of Rule 10, when a Government servant is detained in custody, his suspension period will continue and the period of ninety days will be counted from the date, when he is released from custody or the date on which his release from detention is intimated to the appointing authority, whichever is earlier. 10. Applying the test of Rule 10(7), it becomes transparent that Rasaraj Das ought to have deemed to have been placed under suspension by virtue of Rule 10(2), the moment he was put in imprisonment following his conviction under Section 304, Part-II, IPC and since he was never released from imprisonment, his suspension, in the light of the provisions of Rule 10(7), continued. 11. 11. Let me, now, come to Fundamental Rule 54-B, which reads as follows:-- R. 54-B (1) When a Government servant who has been suspended is reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order-- (a) Regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained In Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the dote of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. 12. From a careful reading of FR. 54-B(2), what becomes transparent is that where a Government servant, under suspension, dies before the disciplinary or the Court proceedings, instituted against him, are concluded, the period between date of suspension and the date of death shall be treated as on duty for all purposes and his family shall be paid full pay and allowances' for the period to which he would have been entitled to receive such benefits, had he not been suspended subject, of course, to the adjustment in respect of subsistence allowance already paid. 13. In the present case, as Rasaraj Das had already preferred an appeal against his conviction as well as the sentence passed against him, the proceeding continued and, in such circumstances, when he died, he must be treated to have died, while under suspension. By virtue of suspension, he continued to remain in Government service inasmuch as the respondents/authorities concerned never dismissed him from service, though it was open to them to dismiss him from service, when he stood convicted under Section 304, Part-IL, IPC. By virtue of suspension, he continued to remain in Government service inasmuch as the respondents/authorities concerned never dismissed him from service, though it was open to them to dismiss him from service, when he stood convicted under Section 304, Part-IL, IPC. Having chosen not to dismiss him from service and continuing him under suspension, when Rasaraj Das died, his death ought to have been treated as having taken place on duty for all purposes and his family shall be paid full pay and allowances to which he may not have been entitled for such pay and allowances, had he not been suspended, subject, of course, to adjustment in respect of subsistence allowance, which had already been paid. 14. What emerges from the above discussion is that the present petitioners, being legal representatives of deceased Rasaraj Das, are entitled to receive full pay and allowances in terms of the provisions of F.R. 54-B(2). The respondent-Corporation is, therefore, directed to examine the case of the petitioners and whatever amount(s) are found due and payable to them, in terms of the provisions of F.R. 54-B(2), deeming deceased Rasaraj Das as having died, while on duty, the amount(s), so due, shall be made available to them within a period of three months from the date of receipt of a copy of this order by the respondent-Corporation. The petitioners may furnish to the respondent-Corporation a certified copy of this order along with a copy of the writ petition and annexures thereto. 15. In terms of the above observations and directions, this writ petition shall stand disposed of. No order as to cost.