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2024 DIGILAW 563 (AP)

Vattipalli Kousalya v. State of AP

2024-05-09

HARINATH NUNEPALLY

body2024
ORDER : Harinath Nunepally, J. 1. Heard both the learned counsel. 2. The grievance of the petitioner is that the service of the petitioner were terminated by the respondent No. 3 by issuance of the proceedings dated 08.08.2023. The petitioner's husband was working as Assistant Cook in the respondent No. 3-Temple. The petitioner's husband died on 18.02.2020 and the petitioner made an application seeking compassionate appointment on 23.02.2020. 3. The respondents have considered the case of the petitioner and provided the job of Record Assistant and an appointment order was issued on 03.11.2020. The petitioner was served with show cause notice, dated 18.01.2021 seeking an explanation as to why she has suppressed the facts that she had obtained divorce by filing H.M.O.P. No.84 of 2018. Wherein, an ex-parte divorce was granted on 10.07.2019. A detailed explanation was submitted by the petitioner. 4. The learned counsel for the petitioner submits that at the time of death of the petitioner's husband, the petitioner and two minor children (son and daughter) were the legal heirs of the deceased employee. 5. The learned counsel also submits that though the petitioner obtained an ex-parte divorce, the petitioner was living with her husband after the indulgence of elders and well wishers of the family and an agreement of reconciliation dated 24.07.2018 was executed in presence of the elders. As such, the petitioner was living together with her husband inspite of the domestic problems. 6. The petitioner was unable to bear the harassment of her husband and was advised to file for divorce to give an opportunity to her husband to mend his ways. However, though the ex-parte divorce was granted the petitioner was staying with her husband till his death under the same roof. 7. The learned counsel for the petitioner submits that no complaint was filed by any of the family members or relatives of the petitioner and that some third parties have complained against the petitioner which was taken into consideration by the respondent authorities and the impugned proceedings were issued. 8. The learned counsel for the petitioner submits that even assuming the petitioner has obtained divorce from her husband that would not disentitle her from claiming compassionate appointment more so, when the petitioner has to support the minor children born out of the wedlock from her husband. 9. 8. The learned counsel for the petitioner submits that even assuming the petitioner has obtained divorce from her husband that would not disentitle her from claiming compassionate appointment more so, when the petitioner has to support the minor children born out of the wedlock from her husband. 9. The learned Standing counsel for the respondent No. 3 submitted that the petitioner has suppressed the fact of having obtained a divorce and the said suppression would not entitle the petitioner for seeking compassionate appointment. It is also stated that the petitioner would not be a family member of the deceased employee. As such, she cannot claim privilege of the compassionate appointment. It is also submitted that compassionate appointment would be extended to the dependent family member of the deceased employee. 10. Perused the record, the Family Member Certificate dated 30.04.2020 issued by the competent authority is placed on record. 11. The petitioner has also filed reply affidavit together with the third party affidavit which would indicate that the petitioner was living with her husband till his death and all the obsequies of the petitioner's husband were performed at petitioner's house. The brother of the deceased employee has filed a third party affidavit affirming that the petitioner was living with the deceased employee till his death. The receipt issued by Kanyaka Paramashwari Devasthanam evidencing the cremation of the deceased is also submitted by the priest who has performed by the last rites of the deceased. 12. The impugned proceedings are issued on the ground that the representation of the petitioner is not satisfactory and that suppression of the ex-parte divorce obtained in H.M.O.P. No.84 of 2018, dated 10.07.2019 on the file of Principal Senior Civil Judge Court, Kurnool, called upon the respondents to issue the impugned proceedings. This Court finds the proceedings illogical, irrational and also against the principles of natural justice. 13. The enquiry report furnished along with the material papers is also silent on whether the detailed enquiry was conducted before issuing the impugned proceedings. As held in the matter of Kulwant Singh Gill v. State of Punjab 1990 Law Suit (SC) 508, the order of removal from service is a major punishment which could not have been imposed on the petitioner without conducting a proper and detailed enquiry and giving a fair opportunity to the petitioner. On this ground also the impugned proceedings deserves to be set aside. 14. On this ground also the impugned proceedings deserves to be set aside. 14. That apart, the reason assigned by the respondents that the petitioner has suppressed the factum of obtaining an ex-parte divorce as the sole reason for removing the petitioner also establishes that the respondents have not conducted any detailed enquiry. 15. In the matter of Neha Tyagi v. Lieutenant Colonel Deepak Tyagi, 2021:INSC:811 : (2022) 3 SCC 86 the Hon'ble Supreme Court held as follows: This court while upholding the decree of divorce granted by the courts below, opined that even after the divorce, the husband is not absolved of his liability and responsibility to maintain child/son till he attains the age of majority. In a dispute between the 16 husband and wife, the child should not be made to suffer. Relevant para 6 thereof is extracted below: "6. However, at the same time, the respondent husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent husband, irrespective of the decree of dissolution of marriage between the appellant wife and the respondent husband. The amount which was being paid pursuant to the order passed by the Army authorities on 15-11-2012 has also been stopped by the respondent husband since December 2019." 16. It is not the case of the respondents that a supernumerary post was created to accommodate the petitioner on humanitarian grounds for issuing the compassionate appointment. It is also not the case of the respondents that there was no sanctioned post for considering the petitioner for compassionate appointment. 17. The deceased employee of the respondent No. 3 would have been legally and morally responsible for maintenance of the petitioner and the two minor children. It is also not the case of the respondents that there was no sanctioned post for considering the petitioner for compassionate appointment. 17. The deceased employee of the respondent No. 3 would have been legally and morally responsible for maintenance of the petitioner and the two minor children. The responsibility of maintenance would not have ended up as soon as the petitioner obtained divorce. The responsibility of the husband to maintain his wife would continue till her life (exception till the wife remarries), the responsibility of father of maintenance of a male child will be till the age of attaining majority. The responsibility of the father of a girl child shall be up to the marriage of the girl child. 18. The respondents ought to have considered the compassionate appointment of the petitioner with empathy in handling the complaints against her. It is the responsibility of a model employer to take into consideration all the circumstances before passing orders of removal of an employee from service. The compassionate appointment is provided as an immediate measure and assistance to the family in distress. 19. The respondents ought to have considered the case of the petitioner with a broader approach keeping in view the fate of the petitioner and her minor children. 20. On these grounds, the writ petition deserves to be allowed, the impugned proceedings are hereby set aside and the respondents are hereby directed to reinstate the petitioner within a period of six (06) weeks from the date of the receipt of this order. 21. Accordingly, this Writ Petition is allowed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.