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2022 DIGILAW 1384 (KAR)

N. Eshwarachari v. State of Karnataka

2022-10-19

G.NARENDAR, P.N.DESAI

body2022
JUDGMENT P.N DESAI J. - This writ petition is filed by the petitioner praying to set aside the order dtd. 30/3/2022 passed by the Karnataka State Administrative Tribunal (for short hereinafter referred to as 'Tribunal'), Bengaluru in Misc.Application No.473/2021 filed in A.No.3817/2003. 2. In brief, the contentions of the petitioner which have given rise for consideration of this petition is that, the petitioner is the wife of one N.Eshwarachari. The husband of the petitioner was working in Revenue Department. While he was in his service, articles of charges were framed against him and the departmental enquiry was conducted and as the charges alleged against him are proved, the respondents imposed penalty of dismissing him from the service. Aggrieved by the order of dismissal, the said Eshwarachari, preferred an appeal before the Deputy Commissioner, Mysuru and the said appeal came to be dismissed vide order dtd. 4/10/2000. He also filed a review petition, but the same also came to be dismissed vide order dtd. 2/2/2002. Aggrieved by the same, N.Eshwarachari, approached the Tribunal by filing application No.3817/2003. During the pendency of the said application, he was bed ridden for almost five to six years, as he was suffering from cancer. Due to the same, he could not persuade the application No.3817/2003 and on 29/9/2019, the said Eshwarachari died. The wife of said Eshwarachari, the petitioner herein had given representation to release the retirement benefits. But there was no reply from the concerned authority. Therefore, when the wife of N.Eshwarachari was persisting her representation for payment of retirement benefits in the month of March 2021, she was informed that the Tribunal has dismissed Application No.3817/2003 for non-prosecution. Therefore, it was informed by the respondents' authority that the said Eshwarachari is not entitled for any retirement benefits. The wife of the said Eshwarachari has enquired in the office of Tribunal in the month of March, 2021 and came to know that the earlier counsel who is representing the original applicant/deceasedEshwarachari was no more. Hence, the Tribunal issued notice to the applicant. However, the notice was not served or communicated to the family of N.Eshwarachari. Therefore, the Tribunal dismissed his application for non-prosecution. Immediately, the petitioner herein applied for certified copy of the dismissal order dtd. 15/7/2016. After obtaining the copy of the said order, the wife of N.Eshwarachari, filed Misc.A.No.473/2021 seeking to recall the dismissal order dtd. However, the notice was not served or communicated to the family of N.Eshwarachari. Therefore, the Tribunal dismissed his application for non-prosecution. Immediately, the petitioner herein applied for certified copy of the dismissal order dtd. 15/7/2016. After obtaining the copy of the said order, the wife of N.Eshwarachari, filed Misc.A.No.473/2021 seeking to recall the dismissal order dtd. 15/7/2016 and along with the same, she also filed an application for condonation of delay. The Tribunal after hearing the matter, vide order dtd. 30/3/2022, dismissed the application on merits as well as on law of limitation. Hence, this petition is filed. 3. Heard Smt. Saritha A.L. learned counsel for Sri. Srinivasa S.B., learned counsel for the petitioner, Sri. H.R.Showri, learned AGA for respondent Nos.1, 3 and 4 and Sri. B.J.Somayaji, learned counsel for respondent No.2. 4. Learned counsel for the petitioner contended that the petitioner being the wife of deceased - Eshwarachari, she is entitled for the pensionary benefits and she is also entitled to challenge the dismissal order, as the husband of the petitioner was suffering from cancer and he was bedridden almost five to six years from the year 2012. It is argued that the earlier counsel who was representing said Eshwarachari, also died during the pendency of the application. But no communication or no notice was served to the petitioner herein regarding the dismissal order or death of the counsel representing the original applicant. Therefore, learned counsel submits that the Tribunal erred in dismissing the application. The Tribunal also failed to appreciate the fact that the legal representatives of the deceased government employee are entitled to receive pensionary benefits and retiremental benefits. Learned counsel for petitioner further argued that the petitioner has given valid reasons for delay in filing the application. But the Tribunal has failed to appreciate the same. Hence, learned counsel prays to set aside the impugned order. 5. Against this, learned AGA argued that the Tribunal after considering all the aspects and considering the fact that there is enormous delay in filing the application, has rightly dismissed the application. The original applicant/husband of the petitioner was not diligent in discharging his duties, he was dismissed from the service long back. The Tribunal has observed that there is no sufficient grounds urged for condonation of delay and there is no bonafide reasons forthcoming in the application to consider the case of the petitioner. The original applicant/husband of the petitioner was not diligent in discharging his duties, he was dismissed from the service long back. The Tribunal has observed that there is no sufficient grounds urged for condonation of delay and there is no bonafide reasons forthcoming in the application to consider the case of the petitioner. Therefore, the Tribunal rightly dismissed the application. Hence, there is no error in the order passed by the tribunal and prayed to dismiss the petition. 6. We have perused the order of the Tribunal. 7. The Tribunal at paragraph No.9 of its order has stated the reasons for dismissing the petition as under: "9. On perusal of the entire application, though the case is pending for more than 13 years 3 months and 14 days, neither the applicant nor his counsel was present and perused the matter. Even the learned counsel was also not at all represented, remained absent. Ultimately this court issued court notice for the personal appearance of the applicant but the said notice returned to the court with a postman Shara ...[VERNACULAR TEXT OMITTED]... the applicant has given their own village address to file this application. It is pertinent to note that the original application is dismissed on 15/7/2016 but the delinquent Government Official N.Eshwaracharai expired on 29/9/2019, late N. Eshwaracharai was alive for a period of 3 years after dismissal of the original application. It is also pertinent note the alleged Xerox copies of the documents placed by the applicant were all refers to 2012-2013. Only 2 documents i.e., discharge summary and other documents were refers to the year 2014. These things are clearly shown during the life time of N.Eshwaracharai, no steps has been taken for disposal of the application. Even the deceased N. Eshwaracharai was not at all diligent during his life to argue this case, for disposal of the same on merits. After the death of N.Eshwaracharai, got filed this application and seek for setting aside the application which is totally incorrect in the part of the applicant. The deceased N. Eshwaracharai was very well aware that he may not succeed in his application in view of the dismissal of his appeal filed by the Government. We have already noted though the application is pending for more than 13 years the deceased N.Eshwaracharai or their family have totally neglect this case and on their willful act the application is dismissed. We have already noted though the application is pending for more than 13 years the deceased N.Eshwaracharai or their family have totally neglect this case and on their willful act the application is dismissed. Though the deceased N.Eshwaracharai was dismissed from service, in the year 2000 itself it is an unbelievable that the deceased and their family member have no knowledge of their proceedings. We decline to accept the grounds urged in the present Miscellaneous Application as well as IA No. I filed for condonation of delay. Overall we do not find out any bonafides either to condone the delay or accept the grounds urged in the Miscellaneous application. The applicant taking undue advantage of the death of N. Eshwaracharai and filed this application for wrongful gain in order to obtain all statutory retiremental benefits. When the proceedings are attained finality in the year 2016 itself the question of re-opening the case of N. Eshwaracharai and to grant any reliefs to the applicant does not arise. The applicant and their family members are very well aware N.Eshwaracharai was dismissed from the service on 9/5/2020. Hence we reject all the grounds mentioned in the application." On perusing the impugned order, it is evident that the Tribunal is not justified in dismissing the application and not properly appreciated the reasons for condonation of delay. The petitioner herein has filed an interlocutory application seeking condonation of delay and to recall the order dtd. 15/7/2016. The petitioner has filed detailed affidavit along with the main application stating that her husband - Eshwarachari died on 29/9/2019. The petitioner is not aware of pendency of application. The petitioner came to know that the counsel representing her husband is also no more, only when they approached the respondents for settlement of statutory retirement benefits after the death of the original applicant. The respondents did not inform her that the application was dismissed for non-prosecution. Only when she was persisting her representation for payment of retirement benefits of her husband-N.Eshwarachari in the month of March, 2021, she came to know about the dismissal of application filed by her husband before the Tribunal. She also stated that due to dismissal of her husband from the service, he has undergone mental agony, developed Cancer and due to that sufferings, he died. The same is not seriously disputed. She also stated that due to dismissal of her husband from the service, he has undergone mental agony, developed Cancer and due to that sufferings, he died. The same is not seriously disputed. It is also evident that the notice issued by the Court intimating about the death of counsel representing her husband is not served on them as they are not residing in the address, where the notice was sent. They are unaware of the dismissal of the petition for non-prosecution. It is also evident that petitioner being aged women (72 years), was not knowing about filing of the application by her husband challenging his dismissal order. 8. The petitioner being the wife and the legal heir of deceased original applicant/N.Eshwarachari, is entitled to challenge the order of the dismissal as she is also entitled to claim retiremental benefits including pension after the death of her husband. The denial of permission to her to contest the petition and prevent her to make claim for retirement benefits of her husband/original applicant would amount to denial of her right to livelihood. It amounts to violation of right to life and liberty benefit under Article 21 of the Constitution of India. The Hon'ble Supreme Court in catena of decisions held that pension is not a bounty to be given by the Government and it is a right of the parties and such right cannot be denied, only because of some ignorance, infraction and negligence. The Hon'ble Supreme Court in the case of M.L.Patil (Dead) Through Lrs Vs. State of Goa and Another reported in 2022 SCC Online SC 685 held that pension is a continuous cause of action and at paragraph No.3 held as under: "3. The Hon'ble Supreme Court in the case of M.L.Patil (Dead) Through Lrs Vs. State of Goa and Another reported in 2022 SCC Online SC 685 held that pension is a continuous cause of action and at paragraph No.3 held as under: "3. Having heard Shri Rahul Gupta, learned counsel appearing on behalf of the appellant and Shri Ravindra Lokhande, learned counsel appearing on behalf of the respondent - State of Goa and considering the fact that even by the impugned judgment and order, the High Court has held that action of the State Government in requiring the original petitioners to retire at the age of 58 years or not permitting them to continue in their service upto the age of 60 years is illegal and null and void, we are of the view that the High Court has erred in observing that the appellant will not be entitled to any arrears of pension and the pension at the revised rates will become payable only from 1/1/2020. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1/1/2020. Under the circumstances, the impugned judgment and order passed by the High Court is required to be modified to the aforesaid extent." 9. The division Bench of this Court (consisting of Hon'ble GNJ & PNDJ) in W.P.No.1249/2022 in the case of Smt. C.A.Damanyanthi VS. The Principal Secretary to Government of Karnataka and ors. vide order dtd. 27/6/2022 considered the approach of the Tribunal for condonation of delay particularly in cases involving prayer for pension or arrears of pension. In that case the petitioner therein also sought to consider the case for grant of pension before the Tribunal, but the Tribunal dismissed the application filed by the aggrieved party on the ground of delay in filing the application and at paragraph Nos.3 and 4 we have observed as under: 3. In that case the petitioner therein also sought to consider the case for grant of pension before the Tribunal, but the Tribunal dismissed the application filed by the aggrieved party on the ground of delay in filing the application and at paragraph Nos.3 and 4 we have observed as under: 3. We have perused the order impugned, there is no appreciation of the pleading in the affidavit, regarding the inability of the counsel to be present on account of his father's sudden illness. That apart, with regard to the pensionary matters, the Hon'ble Apex Court has held that adjudication of delay and laches would not arise as the cause of action is a continuing one and would arise in every month. 4. In that view of the matter, we are of the considered opinion that the order impugned requires to be set-aside and allow the matter to be reconsidered on merits, for otherwise, it could lead to multiplicity of petitions as denial of pensionary benefits every month would give an independent cause of action in the light of the law laid down by the Hon'ble Apex Court in the case of Shri M.L.Patil (Dead) Through LRs Vs. The State of Goa and Another, reported in 2022 SCC Online SC 685." 10. Therefore, in the light of the principles stated by the Hon'ble Supreme Court and this Court in the decisions referred above, if the present petition and the contention of the petitioner is considered, it is evident that the deceased - N.Eshwarachari had challenged his dismissal during his life time and filed an application in the year 2002. It was pending nearly for 1 1/2 decade before the Tribunal. It is also evident that the husband of the petitioner was suffering from deadly deceased viz., cancer from the year 2012. The records produced at Annexure-A3 and the medical records appending to it clearly shows that the said Eshwarachari died due to cancer in the year 2019. It is also evident that the petitioner herself is now aged about 72 years. 11. In Annexure-A3, the petitioner expressed the hardship faced by her for their livelihood and requests the authority to release the pensionary benefits and retirement benefits of her husband. It shows that the deceased - N.Eshwarachari was not in a condition to move and his counsel also died. 11. In Annexure-A3, the petitioner expressed the hardship faced by her for their livelihood and requests the authority to release the pensionary benefits and retirement benefits of her husband. It shows that the deceased - N.Eshwarachari was not in a condition to move and his counsel also died. The notice issued by the Tribunal was also not served either on petitioner or on any of the family members of the deceased N.Eshwarachari. But the Tribunal dismissed the application for non-prosecution. For treating the cancer, definitely it involves huge expenses. The wife of the original applicant/N.Eshwarachari, immediately after coming to know about the dismissal has filed Misc.No.473/2021 seeking restoration of the application filed by her husband and permitting her to contest the claim, under the hope that if she succeeds, she may get atleast retirement benefits and pensionary benefits for her livelihood. The Tribunal without appreciating all these aspects has rejected the petition, ignoring the principles for condonation of delay, particularly, in a cases of pensionary benefits, where cause of action is a continuous one. Therefore, the order of the Tribunal dismissing the application as time barred, is illegal and liable to be set aside and the delay, if any, in filing the application is to be condoned. Accordingly, we pass the following: ORDER (i) The writ petition is partly allowed. (ii) The order dtd. 30/3/2022 passed in Misc.Application No.473/2021 is set aside and the I.A. filed before the Tribunal seeking condonation of delay is allowed and delay if any, in filing Misc.Application No.473/2021 is condoned. Consequently, the order dtd. 15/7/2016 passed by the Tribunal in original application No.3817/2003 is recalled and the application is restored to its original file. (iii) The Tribunal is directed to dispose of the Application No.3817/2003 on merits in accordance with law, as the petitioner is aged more than 72 years.