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2019 DIGILAW 2768 (ALL)

Renu Mishra v. State Of U. P.

2019-12-12

J.J.MUNIR

body2019
JUDGMENT : 1. This writ petition is directed against an order dated 16.08.2019 passed by respondent no.2, the Commissioner, Basti Division, Basti declining to entertain an appeal against the order dated 09.07.2015 passed by respondent no.3, the District Magistrate, Basti, whereby the petitioner's husband who was employed as a Copyist in Tehsil Bhanpur, District Basti, was dismissed from service. 2. The order dated 09.07.2015 was challenged before this Court by the petitioner's husband, Akhilesh Kumar Mishra, vide Writ – A No.53587 of 2017. The said writ petition was dismissed on the ground that an alternative remedy of appeal under Rule 11 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 was available. The aforesaid order was passed in the writ petition on 16.11.2017. The petitioner's husband passed away on 02.12.2017 as he was suffering from cancer. The petitioner preferred an Appeal under Rule 11 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 on 07.02.2018 raising various grounds of fact and law, and asking the order of dismissal passed against her husband to be set aside in her right of an heir and legal representative of the deceased employee, Akhilesh Kumar Mishra. The said Appeal has been dismissed by means of the impugned order dated 16.08.2019 on ground that the said Appeal is not maintainable under Rule 11(2) of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 as the Appeal has been preferred by the deceased employee's wife. 3. On 15.12.2019, the following order was passed: “Sri Dinesh Singh, learned Standing Counsel appears on behalf of all the respondents and is granted a week's time to seek instructions specifically showing cause as to how the Commissioner, Basti Division Basti, has held an appeal filed by a deceased employee's wife against his dismissal from service as not maintainable. Lay as fresh again on 12.12.2019.” 4. Dr. Amar Nath Singh, learned Standing Counsel along with Sri Sharad Chandra Upadhyay, learned State Law Officer on behalf of the State has produced written instructions that they have received. The instructions are signed by Anil Kumar Sagar, Commissioner, Basti Division, Basti. Lay as fresh again on 12.12.2019.” 4. Dr. Amar Nath Singh, learned Standing Counsel along with Sri Sharad Chandra Upadhyay, learned State Law Officer on behalf of the State has produced written instructions that they have received. The instructions are signed by Anil Kumar Sagar, Commissioner, Basti Division, Basti. He has done little more than to paraphrase the provisions of Rule 11(2) of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999, and on that basis has put forward a case that the said sub-Rule envisages an Appeal under the Rules being available to the Government servant concerned, and not to a member of his family. 5. Rule 11 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 are quoted in extenso: “Appeal- (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority. (2) The appeal shall be addressed and submitted to the appellate authority. A Government servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily.” 6. Sub-Rule (2) of Rule 11 is a provision that regulates the exercise of the right of Appeal by a Government servant aggrieved by an order made by the Disciplinary Authority against him. It prescribes the procedure and the manner of exercise of that right. Sub-Rule (1) of Rule 11 by contrast envisages that every order passed by a Disciplinary Authority shall be appealable by a Government servant, except an order passed by the Governor. The right to Appeal provided from an order of the Disciplinary Authority to a Government servant flows from sub-Rule (1) of Rule 11, whereas sub-Rules (2), (3) and (4) detail the procedure for exercise of that right. The right to Appeal provided from an order of the Disciplinary Authority to a Government servant flows from sub-Rule (1) of Rule 11, whereas sub-Rules (2), (3) and (4) detail the procedure for exercise of that right. Rule 11 envisages a situation where a Government servant, who is alive and about, is aggrieved by an order of the Disciplinary Authority, and it is in that situation that the Government servant alone has been given the right to prefer an Appeal from the order of the Disciplinary Authority. Sub-Rule (2) of Rule 11, where it says that a Government servant preferring an Appeal shall do so in his own name, to borrow the phraseology of the statute, is designed to eschew those situations where on behalf of a Government servant, members of the family come forward, and carry Appeals from orders of the Disciplinary Authority. Rule 11(2), however, does not envisage or intend that the right to Appeal from an order of the Disciplinary Authority should be lost to his heirs and legal representatives, where they would be beneficiaries, in case the order passed by the Disciplinary Authority were to be set aside in Appeal, in an eventuality where the Government servant is no more. An appeal by the heirs of the deceased government servant from an order of the Disciplinary Authority, is an appeal in the same right as that of the government servants that survives to his heirs. It is very different from the exercise of a right to appeal by proxy on behalf of the government servant while he is alive and around. It is in the latter kind of case that sub-rule (2) of Rule 11 debars anyone but the government servant concerned from appealing a decision of the Disciplinary Authority; the prohibition there bears no reference to the former contingency. 7. Though, in the context of a petition under Article 226 vis-a-vis rights of the heirs of a deceased government servant who had challenged his dismissal from service but died pendente lite, to prosecute a writ petition against the order of dismissal from service, albeit for the relief of all monetary benefits that the deceased government servant would be entitled to, except reinstatement, it was held by a Division Bench of the Madras High Court in Marimuthu (K.P.) (deceased) (by legal representatives) and others vs. Superintendent of Police, Dharmapuri and others, (1985) 2 LNN 762: “15. It is undoubtedly true that if a relief of reinstatement is to be asked, such a relief will be personal to the Government servant concerned and if a Government servant dies, the personal action in respect of this personal relief will also abate. The maxim actio personalis moritur cum persona is, however, as pointed by the Supreme Court in Girijanandini v. Bijendra Narain, [A.I.R. 1967 S.C. 1124], of a very limited application. In Para. 14 of the judgment, the Supreme Court observed as follows: “… The maxim actio personalis moritur cum persona a personal action dies with the person, has a limited application. It operates in a limited class of action, ex delicto such as actions for damages, for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory”. The maxim, therefore, applies among other cases to a case where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. A relief of reinstatement undoubtedly cannot be granted after the death of a Government servant because if it is granted, it would be nugatory because the person who is reinstated in service is no more alive. Therefore, while it could be said that the doctrine that a personal action dies with the person is true in the case of relief of reinstatement, in the case of other reliefs such as salary that would have been earned and the benefits which would have accrued if the order of dismissal would not have been made, they cannot be said to abate on the ground that these are personal actions. It would also not be correct to characterise the relief of arrears of salary and the relief which the dependants of the deceased Government servant could claim under the Pension Rules as consequential reliefs. The relief of arrears of salary is a substantive relief in view of the fact that it is not necessary to ask for an order of reinstatement. The relief of arrears of salary is a substantive relief in view of the fact that it is not necessary to ask for an order of reinstatement. We are not, therefore, inclined to take the view that a writ petition filed by a Government servant for setting aside his dismissal cannot be prosecuted by his legal representative in view of the benefits which the legal representatives would be entitled to have as a result of the setting aside of the order of dismissal. We are supported in the view which we have taken by the decisions of the Gujarat, Punjab and Haryana and the Kerala High Court referred to above, on which the learned counsel for the appellants has relied. We will shortly refer to those decisions. Before that, we may refer to the decision of the Supreme Court in State of Uttar Pradesh v. Mohammed Sharif, [1982 II L.L.N. 408](vide supra), relied upon by the appellants. This short decision shows that a dismissed Government servant had filed a suit challenging his dismissal on the ground that the said order was illegal and void. The suit was dismissed. This decree was reversed by the appellate Court. The State appealed against the decree of the first appellate Court, but the appeal was dismissed. The State Government then filled an appeal to the Supreme Court. While upholding the judgment of the first appellate Court and the High Court that the plaintiff was denied reasonable opportunity to defend himself at the disciplinary enquiry, some observations were made to the effect that the plaintiff had died during the pendency of the proceedings. It is not very clear as to at what stage the plaintiff had died. The only observations made and which are relied upon by the learned counsel for the appellants before us are as follows in Para. 3, at page 409 of 1982-II L.L.N.: “…Since the plaintiff has died during the pendency of the proceedings the only relief that would be available to the legal heirs of the deceased is the payment of arrears of salary and other emoluments payable to the deceased”. This decision does not seem to be of much assistance to us. 16. In Ibrahimbhai v. State, [A.I.R. 1968 Guj. This decision does not seem to be of much assistance to us. 16. In Ibrahimbhai v. State, [A.I.R. 1968 Guj. 202], a Division Bench of the Gujarat High Court has taken the view that the legal representatives of a petitioner who had filed a petition under Art. 226 for a declaration that the order of reversion of the petitioner was null and void were entitled to prosecute the petition because if the reversion was held void, the petitioner would have been entitled to a salary on an enhanced scale. The Division Bench took the view that the order of reversion had resulted in pecuniary loss to the original petitioner and after his death, the present petitioners were entitled to the estate of the deceased and hence the right of the present petitioners was also effected and they were, therefore, aggrieved parties. This decision of the Gujarat High Court, was followed by the Punjab and Haryana High Court in Manmohan Anand v. State of Punjab, [1972 S.L.R. 52]. The original petitioner before that Court had filed a petition under Art. 226 of the Constitution challenging an order, dated 6 June, 1970, by which the Governor of Punjab had removed the petitioner from the Office of the Chairman and non-official Member of the Punjab Khadi and Village Industries Board. The petitioner died on 30 October, 1970, leaving behind his widow, married daughters and a son. The question was whether the legal representatives were entitled to continue the proceedings. On behalf of the State Government, reliance was placed on the decision of this Court in Vridhachalam case, [A.I.R. 1966 Mad. 260] (vide supra). The Division Bench dissented from the view taken in Vridhachalam case (vide supra), and observed as follows: “… If the Government passes an unconstitutional or a wrong or a void order, which is sought to be declared null and void by the Court, it is no legal right of the Government to say that the order should not be annulled merely because in the changed circumstances the Government would not be able to pass a fresh order in accordance with law. In case of an annulment of an order of removal or dismissal from service, the fresh order cannot possibly be passed retrospectively but can take effect only from the date on which such on order is passed. In case of an annulment of an order of removal or dismissal from service, the fresh order cannot possibly be passed retrospectively but can take effect only from the date on which such on order is passed. If the delinquent official is dead before the annulment of the previous order, there is nobody in existence against whom a fresh order can be passed. Moreover any difficulty of the defendant or the respondent which is of his own creation cannot in my opinion take away the legal rights of heirs of a deceased to claim emoluments to which the deceased would have been entitled if the order of his removal or dismissal from service were found to be illegal”. It was conceded before the Division Bench that the legal representatives of the original petitioner can institute a suit claiming emoluments to which the original petitioner would have been entitled for the period commencing from 6 June, 1970, the date of his purported removal, to the date of his death. After referring to this concession, the Division Bench further observed as follows: “… Once this is granted it goes without saying that no such claim can be decreed unless it is first held that the purported order of removal of the original petitioner from the membership and the chairmanship was illegal and ineffective. This is the basic relief without obtaining which no claim of the legal representatives for salary or emoluments can succeed. It is that basic relief which is being claimed in the present petition. To that extent, therefore, the right to sue survives to the legal representatives. If the original petitioner had claimed declaration to the effect that he continues in service or had asked for a mandamus for being issued to the respondents, I would have held that right to claim such relief was personal to the deceased and died with him and that the right to sue in respect of those reliefs did not survive to the legal representatives…” The Division Bench of the Punjab and Haryana High Court, therefore, took the view that the legal representatives of a deceased Government servant were entitled to prosecute a petition challenging the validity of the dismissal order.” 8. If a Government servant dies post the order passed by the Disciplinary Authority, it is certainly open to his heirs and legal representatives to whose benefit the consequences of that order being set aside by the Appellate Authority would go, to move an Appeal and question the order passed by the Disciplinary Authority. To place the kind of restricted construction that the Commissioner has done on the provisions of sub-Rule (2) of Rule 11 would work to defeat the very purpose for which a departmental appeal has been provided from orders of the Disciplinary Authority. It also does not appear to be the intendment of Rule 11 that for the same relief the Government servant, if alive would have the remedy of an Appeal to the Departmental Appellate Authority, but his heirs who are entitled in law to question the validity of the order passed by the Disciplinary Authority, would be required to do so by invoking the extraordinary jurisdiction of this Court, or resort to some other judicial remedy. This construction if placed on the provisions of Rule 11(2) of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999, would expose it to the peril of being arbitrary and discriminatory and in violation of Article 14 of the Constitution. It is a well settled cannon of statutory construction that if a statute is capable of being interpreted in two ways, the one that exposes it to the vice of unconstitutionality should be eschewed. The statute (including statutory Rules) ought to construed in a manner that renders it constitutionally valid; unless that construction is impossible on the terms of it. 9. This Court does not find that Rule 11(2) is incapable of that construction where the wife of a deceased Government servant, who is entitled to claim the benefits that would flow in case the order passed against him by the Disciplinary Authority were set aside, is contemplated to be excluded from exercising the right of Appeal. 10. In this view of the matter, this writ petition succeeds and is allowed. The impugned order 16.08.2019 passed by respondent no.2, the Commissioner, Basti Division, Basti is hereby quashed. The Commissioner, Basti Division, Basti is ordered to decide the petitioner's Appeal, dated 07.02.2018 afresh in accordance with law on merits within a period of six weeks from the date of receipt of a certified copy of this judgment. 11. The impugned order 16.08.2019 passed by respondent no.2, the Commissioner, Basti Division, Basti is hereby quashed. The Commissioner, Basti Division, Basti is ordered to decide the petitioner's Appeal, dated 07.02.2018 afresh in accordance with law on merits within a period of six weeks from the date of receipt of a certified copy of this judgment. 11. There shall be no order as to costs.