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2018 DIGILAW 194 (RAJ)

Mangu Kanwar v. State of Rajasthan

2018-01-16

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. Petitioner has preferred this writ petition with the following prayer :- "1. That order dated 15.12.2016 Annexure -7 may kindly be quashed and set aside being without application of mind, illegal, contrary to law, arbitrary without jurisdiction. 2. That the petitioner may kindly be granted all the family pension and retiral benefits of her husband. 3. That it may kindly be declared that on the death of the husband of the petitioner present petitioner being wife is entitled for all the retiral benefits since her husband has already completed the adequate service in the department. 4. Any other appropriate order, which this Hon'ble Court deem it proper and found favourable to the petitioner, may kindly be passed. 5. Cost of the petition may kindly be awarded." 2. The brief facts as noticed by this Court are that the petitioner's husband was working with the respondent as Pump Operator and was posted at 24 Division (P.N. 28 division) Nachna, Jaisalmer. The petitioner's husband had an unblemished track record until FIR was lodged against him. The FIR culminated into a trial conducted by Additional Session Court, Fast Track No. 1, Pali in case No. 52/01. The judgment was rendered against the husband of the petitioner and he was sentenced in the same which resulted into he is remaining in custody for more than 48 hours. The judgment of conviction is on record, on page no. 57 of the petition. By the said judgment, the husband of the petitioner was convicted under Sections 148, 302/149, 325/149, 341, 326/149, 323/149 and 307/149 of IPC. The sentence was suspended by the Hon'ble Rajasthan High Court in an appeal and the petitioner's husband was released from the judicial custody on 20.04.2005. The petitioner thereafter moved an application on 20.03.2006 seeking reinstatement in service after revocation of suspension. However, the respondent did not initiate any departmental inquiry or departmental proceedings against the petitioner's husband whatsoever as a consequence of the conviction dated 23.08.2004. The petitioner's husband was suspended on 23.08.2004 and remained under suspension. While the criminal appeal was pending, the petitioner's husband expired on 05.08.2014 and the criminal appeal accordingly abated qua the petitioner's husband and is still pending qua the other accused persons. The petitioner's husband was suspended on 23.08.2004 and remained under suspension. While the criminal appeal was pending, the petitioner's husband expired on 05.08.2014 and the criminal appeal accordingly abated qua the petitioner's husband and is still pending qua the other accused persons. The petitioner informed the respondents regarding the death of her husband on 03.09.2014 and prayed that all consequential benefits of the services may be given to her. The petitioner's representation remained pending with the respondent until she received a letter on 22.07.2016 issued by Executive Engineer 28th Division, IGNP, Phalodi while informing the petitioner that no proceedings were pending against her late husband and therefore, until the higher authority take the final decision, the representation of the petitioner could not be decided. However, the petitioner came to know that by order dated 15.12.2016 Chief Engineer, Bikaner of the respondent department dismissed the husband of the petitioner from the services on account of him being convicted by the court below under Rule 19(i) of the CCA Rules. 3. Learned counsel for the petitioner has submitted that the respondent could not have invoked Rule 19(1) of the CCA Rules against the petitioner's husband on 15.12.2016 as he had already died on 05.08.2014 and no adverse order could have been passed by the respondents after the death of the husband of the petitioner. 4. Learned counsel for the petitioner has relied upon the judgment of Hirabai Bhikanrao Dehmukh & Anr. v. State of Maharahstra & Ors., 1986 Lab LC 248, the relevant portion of this judgment, reads as under :- "The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Such proceeding are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of the proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contract of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We thin that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Services, Rules." 5. Learned counsel for the petitioner has relied upon the judgment of Smt. Phooli Devi v. State of Rajasthan & Ors. 2001 3 RLR 364 , the relevant portion of this judgment, reads as under :- "7. The action of the respondent cannot be appreciated to terminate the services of Nanag Ram Meena in 2001 when the petitioner had started giving demand notices for employment of her son when he had attained the age of majority. Such termination of a person who is presumed to be dead after 7 years from April 1986 has no meaning what-so-ever. No charge-sheet can be issued to a dead person, nor his services can be terminated. Any order passed of termination of services of said Nanag Ram Meena had no relevancy in the present circumstances as the date to be taken for awarding the retiral benefits is April 1986. 8. No charge-sheet can be issued to a dead person, nor his services can be terminated. Any order passed of termination of services of said Nanag Ram Meena had no relevancy in the present circumstances as the date to be taken for awarding the retiral benefits is April 1986. 8. For the above-said discussion and-reason, I allow the writ petition with the direction to the respondent to grant family pension and all retiral benefits within a period of four months to the widow of Nanag Ram Meena who is presumed to be legally dead under the presumptive clause of section 108 of the evidence act for having not been heard of right from April 1986 along with arrears and interest thereon which interest shall start commencing from 1.1.1994 i.e. after 7 years of the presumption of death @ 10% p.a. and in case the compliance is not made within the stipulated period, the interest rate shall stand enhanced to 12% p.a. The respondent shall be liable for any other action as well for not complying with the order of this Court.." 6. Learned counsel for the petitioner has relied upon the judgment of Basudeo Tiwary v. Sido Kanhu University & Ors., 1998 AIR (SCW) 3186 SCC, the relevant portion of this judgment, reads as under :- "The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of state action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram par tent facet of natural justice is also the requirement of Article 14, for, natural justice the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress. 10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress. 10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power - particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature, (vide Mohinder Singh Gill and Anr. v. The Chief Election Commissioner and Ors., and except in case of direct legislative negation or implied exclusion, (vide S.L. Kapoor v. Jagmohan and Ors.). 11. In the light of these principles of law, we have to examine the scope of provision of Section 35(3) which reads as follows : "35(3) Any appointment or promotion made contrary to the provisions of the Act, Statutes, rules or regulations or in any irregular or unauthorised manner shall be terminated at any time without notice. 12. The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations etc. a finding has to be recorded and unless such a finding is recorded, the termination cannot be made but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to be issued to him. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry the person whose appointment is under enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case. In such an event, we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation eta and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read. 13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained. 14. The appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. Needless to say that the appellant would become entitled to the payment of arrears of salary from the date of termination of his services upto the date of his death on the basis of last pay drawn by him. Let Respondent take action within a period of three months from today to work out the arrears due to the appellant from the date of his termination till his death and pay the same to his legal representatives." 7. Learned counsel for the petitioner has relied upon the judgment of Prema (Smt.) v. State of Rajasthan & Ors. reported in 2010(1) RLW 303 (Raj.), the relevant portion of this judgment, reads as under :- "13. Learned counsel for the petitioner has relied upon the judgment of Prema (Smt.) v. State of Rajasthan & Ors. reported in 2010(1) RLW 303 (Raj.), the relevant portion of this judgment, reads as under :- "13. Division Bench of this Court in Phooli Devi (supra) was dealing with a case wherein also husband of the petitioner Nanagram Meena absented from his duties w.e.f. 03rd April, 1986 and did not report back despite publication of notice in newspaper on 11th October, 1987 and 22nd March, 1988. Finally a charge sheet was issued to him on 28th May, 1993 followed by an order of his removal from service on 23rd April, 2001. The Division Bench held that whatever the pre and/or post inquiry proceedings initiated against Nanagram, were totally against the constitutional mandate so also principles of natural justice. None of the communications issued prior to or after initiation of inquiry upon charge sheet dt. 28.05.1993 were got served upon him as they all returned back duly un-served as is established from the statements of memo of the charge-sheet itself or published notices obviously because Nanagram has been missing; his whereabouts were neither known nor heard of for seven years from 03.04.1986 the date of disappearance of Nanagram. Thus observing, the Division Bench upheld the view taken by the learned Single Judge wherein action of the respondents was condemned as illegal and unconstitutional. 14. In the present case also, the observations made by the Division Bench squarely applies to the facts of the present case. There is however one additional factum that need to be noticed which is that when husband of the petitioner was absent from 06.11.1985 and notice was sent to him and when husband of the petitioner not having been heard about for more than seven years, is presumed dead, entire disciplinary proceedings conducted against him stood vitiated and were rendered illegal. His dismissal from service having been made contrary to provisions of C.C.A. Rules and in utter disregard of principles of natural justice was therefore void, non-est and illegal." 8. Learned counsel for the petitioner has relied upon the judgment of Kumud Bhatt (Smt.) v. State of Rajasthan & Ors. reported in 2011 (1) RLW 547 (Raj.), the relevant portion of this judgment, reads as under :- "13. Observations made by Division Bench squarely applies to facts of present case. Learned counsel for the petitioner has relied upon the judgment of Kumud Bhatt (Smt.) v. State of Rajasthan & Ors. reported in 2011 (1) RLW 547 (Raj.), the relevant portion of this judgment, reads as under :- "13. Observations made by Division Bench squarely applies to facts of present case. There is however one additional factum that need to be noticed that although husband of Petitioner was absent on duty from 03.03.1988, no charge-sheet was issued to him and in ex-parte proceedings under Rule 19 of CCA Rules his services were dismissed vide order dated 13.01.1995. When husband of Petitioner not having been heard about for more than seven years is presumed dead, entire disciplinary proceedings conducted against him stood vitiated and were rendered illegal. His dismissal from service having been made contrary to provisions of C.C.A. Rules and in utter disregard of principles of natural justice was therefore void, non-est and illegal." 9. Learned counsel for the petitioner was asked by this Court as to what effect the conviction would have upon the benefits that are being sought by the petitioner as the petitioner's husband was very well convicted by a competent court before his death. Learned counsel for the petitioner for this query has taken support from the judgment of Asha Devi v. The Bihar State Electricity Board & ors. rendered in CWJC No. 9056 of 2007 reported in 2014 Supreme (Pat) 905, the relevant portion of this judgment, reads as under:- "21. On the following discussions it emerges that the person who has been convicted under Section 302 of the Indian Penal Code is not entitled to the pension as commission of serious offence itself entail moral turpitude but here the question arises, during service period, the husband of the petitioner, though was convicted under section 302 of the Indian Penal Code, except certain period when he was in jail, as stated hereinabove, he was Patna High Court CWJC No. 9056 of 2007 dt.09-12-2014 allowed to work till his death in harness. In such a situation the question would arise whether the Board, after the death of an employee, can impose the punishment of dismissal first retrospectively and later on its modification making it enforceable from the date of conviction in the criminal trial when employee itself is not alive, surely the answer is, after the death of employee, he cannot be punished either for the act of misconduct or having been convicted in criminal trial for offence under Section 302 of the Indian Penal Code or on other reasons. It is also a fact that during life time he was in service the question of initiation of proceeding under Rule 43(b) of the Bihar Pensions Rules does not arise. It is also an admitted fact that during life time he was not dismissed from service on account of conviction under Section 302 of the Indian Penal Code which per se attaches a stigma of moral turpitude against the employee concerned, but can the widow, in absence of order against the employee concerned who continued in service and discharged his duty be deprived of the family pension and gratuity, when action was required to be taken during life time of husband of petitioner. Once he died, the relationship of master and servant is over nor the employer can pass the order of dismissal or order under Rule 43(b) of the Bihar Pension Rule depriving the family from Patna High Court CWJC No. 9056 of 2007 dt.09-12-2014pension and gratuity. Now after the death, order inflicting punishment of dismissal has no legal bearing thereby depriving the family from retiral dues. " 10. Learned counsel for the respondents has drawn the attention of this Court to his reply and has submitted that a valid and lawful conviction order against the husband of the petitioner was in existence as it was passed on 23.08.2004 and the appeal of the petitioner's husband subsequently had abated. Learned counsel for the respondent has submitted that the suspension order dated 23.08.2004 was in vogue and therefore, the petitioner was not discharging his services and thus, in light of the conviction, the petitioner is not entitled for any consequential benefits. Learned counsel for the respondent has submitted that the suspension order dated 23.08.2004 was in vogue and therefore, the petitioner was not discharging his services and thus, in light of the conviction, the petitioner is not entitled for any consequential benefits. However, learned counsel for the respondent was not in a position to explain as to how the Rule 19(i) of the CCA Rules, 1958 would entitle the respondent department to dismiss the services of the petitioner's husband on 15.12.2016 even when he had already expired much before on 05.08.2014. 11. After hearing counsel for the parties and perusing the record of the case as well as precedent law cited, this Court is of the opinion that the petitioner's husband was an employee of the respondents and was under suspension from 23.08.2004 onwards. The conviction order is passed by the competent court against the petitioner's husband on 23.08.2004 which was challenged before the Hon'ble Rajasthan High Court but could not be decided as the petitioner expired during the pendency of the appeal on 05.08.2014. The petitioner has been admittedly taking up her cause of the consequential departmental benefits arising out of service of the petitioner's husband who died while in suspension which came into effect 23.08.2004. The ground of denial is by invoking Rule 19 (1) of the CCA Rules whereby the respondents have terminated the services of the petitioner on 15.12.2016 by giving retrospective effect to the order. The respondents have not been able to show any law as to how an order of termination against a dead person can be passed prejudicial to his interest. The precedent law cited by the counsel for the petitioner is consistent that no retrospective adverse action can be taken against a person after his death. The case law cited also lays down the law that even if the petitioner was convicted then also it was imperative upon the respondent to have taken appropriate action under Rule 19(i) of the CCA Rules while he was alive and any action taken after the death would not hold good in the eye of law. Admittedly, the petitioner was an employee of the respondent and was under suspension since 23.08.2004 and he died on 05.08.2014. It is also not disputed by the respondent that no departmental inquiry or departmental proceedings whatsoever was initiated against the petitioner while he was alive i.e. upto 05.08.2014. Admittedly, the petitioner was an employee of the respondent and was under suspension since 23.08.2004 and he died on 05.08.2014. It is also not disputed by the respondent that no departmental inquiry or departmental proceedings whatsoever was initiated against the petitioner while he was alive i.e. upto 05.08.2014. It is also not disputed by the learned counsel for the respondent that the action taken against the petitioner's husband was only on 22.07.2016 whereby his services have been terminated retrospectively after about two years of his death. Counsel for the respondent has relied upon the conviction but has not been able to show from the record as to what impact such conviction would have upon the petitioner's rights arising out of her husband's service with the respondent. 12. Rule 19 (1) of Rajasthan Civil Services Classification Control And Appeal, 1958 reads as follows :- "Where a penalty is imposed on a Government Servant on the ground of conduct which has led to his conviction on a criminal charge." 13. There is no doubt that the respondent had a power to impose a penalty upon the Government Servant i.e. petitioner's husband on the ground of his conduct which has led to his conviction on a criminal charge. But such invocation of Rule 19 of the Rajasthan Civil Services Classification Control and Appeal Rule, 1958 could have been resorted to only while the petitioner's husband was alive and it is absolutely clear by the precedent law cited as well as the facts in question that the order passed by the respondents on 15.12.2016 under Rule 19 (1) of CCA Rules after the death of the Government employee i.e. petitioner's husband on 05.08.2014 is totally contrary to law and is illegal. 14. In light of the aforesaid observations, the present writ petition is allowed and the order dated 15.12.2016 is quashed and set aside and the respondents are directed to give all consequential benefits including retiral benefits arising out of service of petitioner's husband to the petitioner within a period of three months from today.