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2019 DIGILAW 2295 (RAJ)

Sharda Kanwar v. State of Rajasthan

2019-08-27

PUSHPENDRA SINGH BHATI

body2019
ORDER : Dr. Pushpendra Singh Bhati, J. 1. The petitioner has filed this writ petition claiming the following prayers :- "(I) Issue an appropriate, writ, order or direction, the order of dismissal from service of husband of petitioner dated 11.07.2012 issued by respondents No. 3 may kindly be quashed and set aside; (II) Issue an appropriate writ, order or direction, the order in appeal dated 22.04.2016 passed by respondents No. 2 may kindly be quashed and set aside; (III) Issue an appropriate writ, order or direction, while exonerating the husband of the petitioner from the charges, his service monitory benefits as well as pension may be ordered to be granted to the petitioner and she may be given appointment on compassionate ground; (IV) Any other appropriate order or directions which this Hon'ble Court may deem fit just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner; (V) Cost of the writ petition may also be awarded in favour of the petitioner." 2. The only limited submission of Mr. Ripu Daman Singh Naruka, learned counsel appearing for the petitioner, is that the petitioner's husband served the respondent-Department on the post of Patwari for a period of twenty-two years and was terminated from service vide order dated 11.07.2012 against which the petitioner preferred an appeal, which is dismissed on ground that petitioner is not entitled to maintain the appeal. 3. Counsel appearing for the petitioner submits that such appeal preferred under Rule 23 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958 (herein after to be referred as Rules of 1958) has been dismissed only on the ground that the petitioner's husband, who was a member of the service, has already expired way back on 26.09.2012 and the petitioner did not have a right of appeal under Rule 23 of the Rules of 1958. 4. Ms. Archana, advocate appearing for Mr. Anil Mehta, ld. A.A.G. for the respondents, submits that the appellate order is perfectly correct in the light of law, as Rule 23 of the Rules of 1958 envisages that the appeal is to be preferred by the member of the service and not by a member of the family. 5. 4. Ms. Archana, advocate appearing for Mr. Anil Mehta, ld. A.A.G. for the respondents, submits that the appellate order is perfectly correct in the light of law, as Rule 23 of the Rules of 1958 envisages that the appeal is to be preferred by the member of the service and not by a member of the family. 5. Counsel appearing for the petitioner, in rejoinder to the arguments, has relied upon the judgment passed by the Division Bench of this Court in the case of Narain Devi Vs. State of Rajasthan and Others (D.B. Civil Special Appeal (Writ) No. 141/2002), decided on 08.09.2008, whereby a widow of serving member has been entitled to challenge the punitive order against her late husband. 6. The aforesaid order reads as follows: "1. Heard learned counsel for the parties. 2. Appellant is the wife of late Jai Ram, who was Constable in 3rd Battalion RAC Bikaner and died on February 19, 2000 after prolonged sickness. When the appellant approached the office of RAC for grant of family pension, she was informed that she was not entitled to family pension since her husband was dismissed from service vide order dated July 21, 1998. The appellant filed writ petition in the Court of learned Single Judge with the following prayer: (i) to quash and set aside the order dated July 21, 1998 passed by the Commandant 3rd Battalion RAC Bikaner. (ii) To convert the punishment of dismissal into compulsory retirement without consequential benefits including family pension to the petitioner. 3. Contextual facts depict as under: (a) The allegation incorporated in the memo issued to Jai Ram by Commandant, 3rd Battalion were that he absented from his duty for 266 days w.e.f. December 14, 1996 to September 6, 1997. (b) In reply to the memo Jai Ram stated that he was absent because of mental disease. He was sent for treatment by Assistant Commandant on December 8, 996 and his treatment continued upto January 9, 1997. Since the disease was not properly cured, Jai Ram switched over to Desi treatment. Jai Ram was admitted in Mental Hospital on May 10, 1997. (c) Jai Ram was football player and while playing football he suffered head injuries on January 5, 1992 that resulted into his mental sickness. After the treatment in PBM Hospital Bikaner, he stayed at Bikaner for 135 days. Jai Ram was admitted in Mental Hospital on May 10, 1997. (c) Jai Ram was football player and while playing football he suffered head injuries on January 5, 1992 that resulted into his mental sickness. After the treatment in PBM Hospital Bikaner, he stayed at Bikaner for 135 days. (d) Commandant III Battalion sanctioned the leave of Jai Ram w.e.f. December 14, 1996 to September 5, 1997 treated it as extra ordinary leave. (e) After coming to know the dismissal order of Jai Ram, appellant (widow of Jai Ram) filed departmental appeal against the dismissal order on September 7, 2000. After dismissal of appeal the appellant preferred the writ petition which was dismissed by learned Single Judge as indicated herein above. 4. Having considered the submissions canvassed before us and on scanning the material on record, we find that punishment imposed on late Jai Ram is disproportionate to the alleged misconduct. Jai Ram was a Football player and on account of head injury, sustained during practice, he became mentally sick. There is sufficient material available on record, which demonstrates that Jai Ram remained absent from duty on account of his illness. He made attempt to justify his absence from duty but his certificates were not properly considered and he was dismissed from service. The penalty of removal from service was imposed on Jai Ram shocks our judicial conscience. Learned Single Judge did not properly consider the question of proportionality of the punishment. As already noticed, Commandant 3rd Battalion sanctioned the leave of Jai Ram w.e.f December 14, 1996 to September 5, 1997, treated it as extraordinary leave. Therefore, it was extraordinary leave. Therefore, the question of removal from service did not arise. In our opinion, the ends of justice would be met if the penalty of removal from service be substituted to that of penalty of compulsory retirement. 5. It is well settled that Disciplinary and Appellate Authorities, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. However, if the punishment imposed by the Disciplinary and Appellate Authorities shocks the conscience of the High Court, it would appropriately mould the relief either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 6. Division Bench of this Court in Union of India Vs. Ummed Singh [ 2001(3) RLR 316 ] considered the ratio indicated in B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 749 , and reduced the punishment of removal from the service to that of compulsory retirement. 7. For these reasons, we in order to shorten the litigation and to avoid any further legal expenses from both the sides feel just and proper to reduce the punishment of removal of appellant from service to that of compulsory retirement. 8. That takes us to the objection raised on behalf of State of Rajasthan that writ petition on behalf of deceased husband was not maintainable by the wife of the deceased. We find no substance in the submission. Since the matter relates to family pension of the appellant, she has every right to assail the order of punishment passed during the life time of her husband. 9. As a result of above discussion, instant appeal stands allowed as indicated above but without any order as to costs." 7. After hearing the learned counsel appearing for the parties, this Court going on the basic jurisprudence that any person should have a remedy where he has a cause and since the cause of action to the present petitioner, a widow of the late employee, is arising out of the termination of her late husband, as the same is directly affecting the rights of the petitioner to seek compassionate appointment/family pension etc. The petitioner is undoubtedly an affected party. Although, the petitioner is not a member of the service but the impugned order of termination is affecting the rights of the petitioner, thus, permitting her to agitate appeal on merits in the interest of justice is called for. 8. The petitioner is undoubtedly an affected party. Although, the petitioner is not a member of the service but the impugned order of termination is affecting the rights of the petitioner, thus, permitting her to agitate appeal on merits in the interest of justice is called for. 8. Thus, the present writ petition is allowed to the extent that the appellate order dated 22.04.2016 is quashed and set aside and the appellate authority is directed to pass an appropriate order on merits in accordance with law while considering all aspects raised by the petitioner in the appeal within a period of six months from today while treating the appeal to be maintainable.