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Madhya Pradesh High Court · body

2013 DIGILAW 594 (MP)

Hardeep Kaur v. Mahakaushal Kshetriya Gramin Bank

2013-05-03

ALOK ARADHE

body2013
JUDGMENT : With the consent of learned Counsel for the parties the matter is finally heard. In this petition, the petitioner has assailed the validity of the order dated 31-1-2012 by which penalty of recovery of pecuniary loss caused to the respondent-Bank from the emoluments payable to the deceased husband of the petitioner has been imposed. 2. The facts, giving rise to filing of the writ petition, briefly stated, are that the husband of the petitioner late Harpreet Singh Chandok was an officer in the respondent-Bank. He was served with a charge-sheet dated 25-11-2009. The husband of the petitioner submitted a reply to the aforesaid charge-sheet. On 17-4-2010, the Presenting Officer was asked to submit a written brief and defence representative was also asked to submit a written brief on 15-5-2010. Thereafter, it appears that the proceeding in the departmental enquiry was adjourned for submission of written brief of defence representative up to 25-9-2010. In the meanwhile, the husband of the petitioner died on 31-8-2010. After the death of the husband of the petitioner the Enquiry Officer submitted the report on 8-10-2010. An intimation was furnished on 25-9-2010 by the defence representative in the proceeding of the departmental enquiry about the death of the husband of the petitioner. The petitioner, thereafter, submitted a representation to. the respondent-Bank for payment of the amount of GPF, gratuity, leave encashment and amount of group insurance etc. The petitioner sent a reminder to the respondents on 12-4-2011. However, by the impugned order dated 31-1-2012 punishment was imposed on the deceased husband of the petitioner. In the aforesaid factual backdrop, the petitioner has approached this Court. 3. Learned Counsel for the petitioner submitted that admittedly, before conclusion of the departmental enquiry the husband of the petitioner expired, therefore, the proceeding which was initiated against the husband of the petitioner had abated and consequently, no order of punishment could have been passed. It is further submitted that the petitioner is entitled to receive all the emoluments which were payable to the husband of the petitioner. In support of his submissions, learned Counsel for the petitioner has placed reliance on the decisions in Hirabai Bhikanrao Deshmukh and another Vs. State of Maharashtra ana1 others, 1985 Mah.LJ 73 and Smt. Rajeshwari Devi Vs. State of U.P. and others, (2011) 2 All LJ 287. 4. In support of his submissions, learned Counsel for the petitioner has placed reliance on the decisions in Hirabai Bhikanrao Deshmukh and another Vs. State of Maharashtra ana1 others, 1985 Mah.LJ 73 and Smt. Rajeshwari Devi Vs. State of U.P. and others, (2011) 2 All LJ 287. 4. On the other hand, learned Counsel for the respondents submitted that the writ petition preferred by the petitioner is premature as under Regulation 47 of the regulations governing the service conditions of the employees the petitioner has a remedy to file an appeal against the impugned order. It is further submitted that the husband of the petitioner participated in the departmental proceeding from 25-11-2009 till 17-4-2010 and at the instance of the defence representative the proceeding in the departmental enquiry was adjourned. It is also submitted that if any pecuniary loss is caused to the Bank, the Bank is entitled to recover the said amount from the emoluments payable to the employee. In support of his submissions, learned Counsel for the respondents has invited attention of this Court to Explanation to Regulation 44 of the Regulations. In support of his submissions, learned Counsel for the respondents has placed reliance on the decision in Shiwalik Transport Co. Ltd. Vs. Thakur Ajit Shrgh and others, (1978) 48 Comp.Cas. 465 P & H and Mullah Ahmed Vs. Acharya N.G. Ranga Agriculture, 2006 (4) ALD 310 . 5. I have considered the respective submissions made by learned Counsel for the parties. Admittedly, the husband of the petitioner expired on 31-8-2010 before conclusion of the departmental proceeding. The Mahakaushal Kshetriya Gramin Bank (Officers and Employees) Service Regulations, 2010 (in short "the 2010 Regulations") came into effect from 1-3-2011. Thus, prior to commencement of the aforesaid regulations, the proceeding against the husband of the petitioner was initiated under the provisions of the Mahakaushal Kshetriya Gramin Bank (Officers and Employees) Service Regulations, 2001 (in short “the 2001 Regulations”) therefore, the same are applicable to the case at hand. Regulation 44 deals with the disciplinary proceeding after the retirement. Explanation to Regulation 44 provides that for the purpose of this regulation, normal retiral benefits such as encashment of privilege leave and gratuity should be withheld till the completion of the disciplinary proceedings and passing of final order by the Competent Authority. The release of benefits would be as per the final order of the said authority. Explanation to Regulation 44 provides that for the purpose of this regulation, normal retiral benefits such as encashment of privilege leave and gratuity should be withheld till the completion of the disciplinary proceedings and passing of final order by the Competent Authority. The release of benefits would be as per the final order of the said authority. Thus, the aforesaid provision only permits continuation of the departmental enquiry against the delinquent employee after his superannuation. I have carefully gone through the 2001 Regulations. The same do not permit either holding of any further enquiry or imposition of punishment after the death of delinquent employee. 6. As soon as an employee dies, the relationship of employer and employee comes to an end. The purpose of departmental enquiry is to impose the penalty if the misconduct is established against the delinquent employee. This can only be done if the delinquent employee is alive. In view of the misconduct committed by the delinquent employee, penalty like dismissal, removal or other penalty prescribed in the regulations has to be imposed on the delinquent employee. Thus, the proceedings in the departmental enquiry are personal in relation to the contract of service and the same would terminate on the death of delinquent employee. On death of the delinquent employee, the departmental proceeding would automatically terminate and abate. Admittedly, after the death of the husband of the petitioner, the impugned order imposing the penalty in the departmental proceeding was passed which cannot be sustained in the eye of law. 7. So far as the decision relied upon by the learned Counsel for the respondent in Shiwalik Transport Company Ltd. (supra), is concerned, it is pertinent to mention here that in the aforesaid case, the issue that arose for consideration was whether the proceeding initiated against the Director of the Company under Sections 542 and 543 of the Companies Act, 1956 can be continued after his death against the legal representatives. Therefore, the aforesaid case has no application to the obtaining factual matrix of the case. Similarly, the decision in Mullah Ahmed (supra), is of no assistance to the respondents. In the aforesaid case, there was no provision in the service rules that the disciplinary proceeding on the death of an employee would not automatically abate. In the instant case, there is no provision for continuation of departmental enquiry after the death of an employee. Similarly, the decision in Mullah Ahmed (supra), is of no assistance to the respondents. In the aforesaid case, there was no provision in the service rules that the disciplinary proceeding on the death of an employee would not automatically abate. In the instant case, there is no provision for continuation of departmental enquiry after the death of an employee. Explanation to Regulation 44 does not permit imposition of any penalty on an employee who expired during pendency of the departmental inquiry. 8. In the absence of any provision with regard to continuation of proceeding in the departmental enquiry after the death of employee, the impugned order dated 31-1-2012 has no sanctity in the eye of law and, therefore, the same is per se without jurisdiction and is ab initio void. It is well-settled in law that doctrine of availability of alternative remedy cannot be invoked in a case where the impugned order is per se without jurisdiction. Therefore, the contention raised by learned Counsel for the respondents that the writ petition is premature and should be dismissed on the ground of alternative remedy, cannot be accepted. [See: Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 ]. 9. In view of the preceding analysis, the impugned order dated 31-1-2012 is hereby quashed. The respondents are directed to release the amount due to the husband of the petitioner on account of group insurance, gratuity, leave encashment, arrears of salary and pension, etc. within a period of two months from today failing which the same shall carry interest at the rate of 6% per annum. 10. In the result, the writ petition is allowed.