Court No. - 28
Reserved on 30.01.2018 Delivered on 28.02.2018
Case :- WRIT - A No. - 16519 of 2016 Petitioner :- Smt. Laxmi Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjit Saxena Counsel for Respondent :- C.S.C.,Nripendra Mishra
Hon'ble Siddharth,J.
Heard Shri Ranjit Saxena, learned counsel for the petitioner and Shri Nripendra Mishra, learned counsel for the respondents.
The petitioner has filed the above noted writ petition, praying for quashing of the removal order dated 06.05.2010, passed by the respondent no.3, Executive Engineer, Electricity Distribution Division-I, Paschimanchal Vidyut Vitran Nigam Ltd., Bulandshahar, removing her husband from service. Further prayer has been made for direction the respondents to pass order of reinstatement of petitioner’s husband in the light of Government of U.P. decisions and other recommendations and to pay all the dues including E.P.F., Gratuity and other dues to the petitioner and also provide her appointment under Dying-in-Harness Rules.
The brief facts of the petition are that the husband of the petitioner, late Sanjay Ruhella, was appointed as skilled coolie in the year 1993. He suffered from ailment of kidney and was under treatment and absented himself from duties. By the impugned order dated 06.05.2010, the respondent no.3 removed him from service, on the ground that he is unauthorizedly absent from duties since January, 2009 and despite publication of notice in newspaper on 19.02.2010, he did not turn up to join his duties. It has been stated that on 13.06.2010, petitioner’s husband represented to the Energy Minister against his removal from service, who directed the Executive Engineer to reinstate him in service, but in vain. Thereafter, on 09.11.2010, the petitioner again made an application before the Energy Minister, who directed the Competent Authority to pass suitable orders, but nothing was done. On 13.02.2011, the Energy Minister again directed the Chief Engineer, Ghaziabad Zone to reinstate the petitioner in service, but nothing was done. The petitioner approached the Superintending Engineer against his order of removal, who sought legal advice from the Deputy Law Officer of the Corporation on 23.05.2012. On 30.07.2012, the office of the Chief Minister also issued direction to the competent authority to reinstate the petitioner. On 12.09.2012, the Chief Engineer, Distribution, Ghaziabad Zone, directed the Superintending Engineer to look into the grievance of the petitioner, but nothing was done. On 07.08.2013, the Superintending Engineer sought direction from the Chairman and Managing Director of the Corporation for reinstatement of the petitioner. On 08.03.2014, the Superintending Engineer again passed an order that legal advice is awaited in the matter. However, on 02.04.2015, the husband of the petitioner died at All India Institute of Medical Sciences, New Delhi, while under going dialysis and kidney treatment.
The petitioner has claimed that her husband was illegally removed from service and he was not deliberately and willfully absconding from duty but was suffering from serious ailment and has brought on record several leave applications sent to the respondents and the documents relating to treatment of kidney ailment of her husband at different hospitals. She has also stated that her husband did not challenged the removal order dated 06.05.2010, because he was given assurance by all the authorities that his case is under consideration of the legal department and orders in his favour would be passed. The petitioner has claimed that she is entitled to be given compassionate appointment in place of her husband and the E.P.F., gratuity and other dues of her husband, have not been paid to her, when she has 2 sons to be taught and brought up.
The respondents have filed their Counter Affidavit stating that the petitioner did not challenged the removal order dated 06.05.2010, during his life time and therefore, it has attained finality. The order of removal dated 06.5.2010, was passed by the respondent no.3, on account of unauthorized absence of the petitioner’s husband from duty even after information to him to come back and join his duties. He was absent from duty from 591 days and after publication of notice in Newspaper on 15.02.2010, his services were terminated. Earlier also he was absent from duty on various occasions and number of warning letters were issued to him in different years. No appointment can be granted to the petitioner under the Dying-in- Harness Rules, since, her husband was removed from service on 06.05.2010 and died on 02.04.2015 and therefore, the removal order has attained finality. The writ petition is devoid of merits and deserves to be dismissed.
The petitioner has filed Rejoinder Affidavit stating that her husband could not challenge the impugned order because he was assured that the matter is under consideration of legal department and after the receipt of advice from the legal department, necessary orders shall be passed.
The learned Counsel for the petitioner, Sri Ranjit Saxena, has argued that the deceased husband of the petitioner, after termination of his services approached every competent officer of the Corporation and as per the U.P. Electricity Board (Officers and Servants) (Conditions of Service) Regulations,1978, the Appeal against the punishment order lies before the Board. The Superintending Engineer also sought direction from the Chairman and Managing Director of the Corporation by his letter dated 07.08.2013, (Annexure No.11 to the writ petition), during the life time of the husband of the petitioner, but no decision was communicated by the Chairman of the Corporation, therefore, it is not a case where the deceased husband of the petitioner acquiesced to the punishment order. Rather, he, despite his physical ailment tried for getting the punishment order set aside and all the officers of the Corporation gave him positive response as clear from the various annexures on record of the writ petition. Before any final decision could be taken by the legal department of the Corporation, the husband of the petitioner died. He has stated that acquiescence, being the principle of equity, must be made applicable in a case where the order has been passed and complied. He has further stated that the deceased husband of the petitioner never accepted the order of removal, passed by the respondent no.3 as final. His submission is that had the respondents not delayed the decision making process on the representation of the husband of the petitioner against the punishment order dated 06.05.2010, he would have approached this Court during his life time. The respondents in a way, by delaying the decision on the various representations of the petitioner’s husband, against the punishment order dated 06.05.2010, managed to extinguish his right of approaching this court earlier, during his life time. He has argued that on account of the delay caused by the respondents in taking decision on the representations of the petitioner’s husband, the petitioner has suffered irreparable monitory loss, loss of job opportunity, besides suffering mental and physical harassment and untimely death of her husband due to lack of resources to get his treatment done.
The learned Counsel for the respondents has argued that the petitioner’s husband never exercised his right to approach the Court during his life time against the removal order. Once the petitioner died it would be deemed that the order of the punishment passed against him became final and his legal heirs are estopped from challenging the punishment order at this belated stage. The assurance of the officials of the Corporation in favour of the deceased husband of the petitioner will not help the petitioner. The Chapter of punishment against the deceased husband stands legally closed for all times to come. He was habitual absentee from duty and therefore removed from service after proper notice.
After considering the rival contentions and pleadings on record one very striking feature of this case is of bureaucratic insensitivity and lack of law to enforce answerability of public servants to public for violation of their rights guaranteed by the Constitution by Articles-14, 16 & 21, specially the people at the lower strata of the society, who have been wronged for their fault or the fault of the others. In this case it is clear from perusal of the impugned removal order 06.05.2010, passed by the respondent no.3 that it is illegal, being passed in violation of Regulations, without proving the charges against the petitioner in regular disciplinary enquiry, which is required to be done before passing any order of major punishment against delinquent employee. Under the Industrial Law also the impugned order of removal amounted to retrenchment from service. But the fact remains that the petitioner did not availed the remedies available to him under the law and was approaching the senior officials of his own department by way of representations/appeal departmentally, trusting them to do something for him but they betrayed his trust and ultimately he died of incurable illness in his vain bid to secure justice. Now, his widow is before this Court seeking succor for herself and her two dependent children.
The law does not permits re-opening of an order of punishment which has attained finality in the life time of the employee by his legal heirs and therefore, despite the fact that on account of callousness of the departmental authorities of the deceased husband of the petitioner, his right of approaching the Courts of Law got extinguished with his life, no relief regarding quashing of the removal order dated 06.05.2010 passed by the respondent no.3 can be granted. Further the relief of compassionate appointment prayed by the petitioner on account of death of her husband also can not be granted to her on account of the fact that the contract of service of the husband of the petitioner had come to an end on 06.05.2010, during his life time and thereafter, he died on 02.04.2015, when he was not working with the respondents.
However, keeping in view the fact that the rights of the husband of the petitioner to approach the Court of Law, during his critical illness, was defeated by the officers of the respondent’s Corporation by delaying the decision making process on his representations/appeal against the punishment till he died and till date also, the petitioner is required to be compensated for the fault of the respondents of not taking decision on representations/appeals of the husband of the petitioner during his life time. The concept of equality before law and equal protection of law enshrined in Article- 14 of the Constitution of India does not protects the officers of the respondent Corporation too if the right of the deceased husband of the petitioner were extinguished on account of their callous indecision and inaction on their part. If the rights of the petitioner’s husband got defeated then the negative benefit of the same can not be allowed to be enjoyed by the officers of the Corporation, who were instrumental in getting his rights defeated. No one can be permitted to defeat the right of another person by committing wrong against his rights and then claiming benefit of his own mistake.
The facts of this case are very clear that the order of removal dated 06.05.2010 was passed by the Executive Engineer, Electricity Distribution Division-I, Paschimanchal Vidyut Vitran Nigam Ltd., Bulandshahar, when, as per the Counsel for the petitioner in The U.P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulations, 1978, the following provisions for enquiry into charges against Officers and Servants is provided.
1. Short title and commencement–(1) These regulations may be called the U.P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulations, 1978.
1A. Authority competent to remove, dismiss etc.- The Authority who is empowered by or under any of the Boards Regulations for the time being in force to appoint an officer or servant or the Board shall be the competent authority to dismiss, remove, reduce in rank or compulsorily retire such officer or servant.
2. All maters relating to conduct and discipline (including matters relating to punishment) and to termination, reversion and compulsory retirement of persons appointed to the Board shall be regulated mutatis mutandis and subject to any other regulations for the time being in force (including Regulations 1-A above and 3, 4 and 6, below) by rules and orders for the time being in force and applicable to corresponding categories of Government servants under the rule making control of the Governor of Uttar Pradesh with the substitution of references in such rules to the Governor or the State Government by reference to the Board.
3.(1).No such person as aforesaid shall be dismissed, removed or reduced in rank except after inquiry in which he has been informed of the charges against him and given a reasonable opportunity heard in respect of those charges.
6. Constitution of Committee to inquire into causes.-
(1) The Board may from time to time constitute one or more enquiry Committees, as it may consider necessary, for enquiry into allegations, complaints or charges against officers and servants.
(2). Every Inquiry Committee constituted under clause (1) shall consist of the following
(i). A Chief Engineer or Additional Chief Engineer U.P.S.E.B. ( Convenor).
(ii). A Law Officer or Additional Law Officer U.P.
S.E.B. ( Member).
(iii). An officer from the Accounts Branch of U.P.S.E.B. not below the rank of Accounts Officer nominated by the Chairman in that behalf (Member).
Provided that if at any stage of the proceedings, it comes to notice that the convenor or any member of the Inquiry Committee has in his capacity otherwise than as member of the Inquiry Committee already dealth with or expressed opinion in any case which is the subject matter of inquiry under these Regulations the Chairman shall forthwith appoint another person to replace him.
Until such replacement is made the proceedings of the case shall remain suspended and shall after such replacement recommence from the stage at which they were suspended.
(3). The Chairman or Secretary, U.P. State Electricity Board may refer an inquiry against an officer or servant or against a group of officers or servants of the Board to the Inquiry Committee constituted under sub- regulation (1) and it shall be lawful for the Inquiry Committee to hold and conduct the inquiry and take such action, including framing of charge –sheet, as may be necessary under the rules or orders referred to in Regulation 2, and forward its report together with recommendations, if any, regarding action to be taken against the person or persons proceeded against, to the Chairman or Secretary of the Board, as the case may be.
Provided that where at the time of commencement of this regulation any disciplinary proceedings against Board’s officers or servants covered by sub-regulation (1) are already pending under Regulations 2 and 3 of the Chairman or, in the case of servants and officers not above the rank of Superintending Engineer the Secretary, U.P. State Electricity Board, may, in his discretion, in the interest of just and expeditious disposal of the case transfer such proceedings to the Inquiury Committee constituted under sub- regulation (1), on such transfer, it shall be open to the Inquiry Committee to proceed with the inquiry from the stage at which it was at the time of such transfer.
Provided further that no inquiry or proceedings shall be referred or transferred, as the case may be, under this sub-regulation unless at least one of the officers involved in such enquiry or proceedings is of the rank of Assistant Engineer or above.
(4), The Chairman shall in relation to officers and servants up to the rank of Superintending Engineer deal with the report and recommendations of Inquiry Committee in accordance with the relevant regulations and pass final orders. In the case of officers above the rank of Superintending Engineer, the Chairman shall place the report of the Inquiry Committee along with its recommendations, if any, before the Board, who shall pass final orders.
(5). An appeal or representation, as the case may be, from the orders of the Chairman passed under sub- regulation (4) shall lie to the Board.
(6). Any action taken by the Inquiry Committee under sub- regulation (3) and any orders passed by the Chairman or the Board under sub- regulation (4) or sub- regulation (5) shall be valid, notwithstanding anything inconsistent in any other regulation in force at the commencement of this regulation which shall be the extent of such inconsistency be deemed to have been modified.
It is clear from the above Rule that the husband of the petitioner could have only been removed from service, after enquiry, as per Rule-3 through a Committee appointed under Rule-6 and the punishing authority of the husband of the petitioner was the Chairman as per Regulation-6 (4). The appeal or representation of the husband of the petitioner against the punishment order lied to the Board.
The respondent nos.3, the Executive Engineer, had no authority under the Regulation to remove the husband of the petitioner from service without any enquiry whatsoever. Therefore, the order of removal dated 06.05.2010 passed against the husband of the petitioner was absolutely illegal.
The husband of the petitioner rightly approached the senior officers of the respondents, Superintending Engineer and Chief Engineer, who were competent to forward the representation/appeal of the petitioner to the Competent Authority and they corresponded with the Chairman/ Managing Director of the Corporation, who was the appropriate punishing authority, to give his opinion regarding the injustice done to the husband of the petitioner during his life time. No decision was taken after the passing of the punishment order on 10.05.2010 till the death of her husband on 02.04.2015 by any of the officers of the respondent Corporation. With the death of the petitioner’s husband, they caused the death of his rights too to challenge his removal order from service.
Since the order of removal was not in accordance with law, therefore, the appeal provided under Regulation-6 (5) from the orders of Chairman, passed under Regulation 6(4) lied to the Board. Therefore, the husband of the petitioner rightly made representations to his senior officers to set aside the order of removal illegally passed by the respondent no.3, but in vain. His immediate officers were required to forward his representation to the Appellate Authority, which they never did.
Therefore, the question arises for determination in this case that whether only the husband of the petitioner was at fault of not challenging the illegal punishment order before the Court, when his representations were made as per Regulation-6(5) or the respondent authorities were equally liable for depriving him of the right to challenge the removal order before the Court by delaying the decision on his representations till his death and even beyond that, till date.
A perusal of the record shows that against his illegal removal order dated 06.05.2010, passed by the Executive Engineer, respondent no.3, the petitioner represented before the officers of the department, besides making representations to the Energy Minister and the Chief Minister of the State, U.P. Power Corporation Ltd., Shakti Bhawan, Lucknow to make correspondence with the Chief Engineer of the Corporation at Ghaziabad regarding the reinstatement of Sri Sanjay Kumar in service. (Annexure No.7 to the writ petition).
2. 4th Dec., 2012 Letter of Chief Engineer, Paschimanchal Vidyut Vitran Nigam Ltd., Ghaziabad to the Superintending Engineer, Electricity Distribution Division-2, Bulandshahar to inform about the decision taken regarding the reinstatement of Sanjay Kumar in service, as per the letter dated 12.09.2012 of the Deputy Secretary, U.P. Power Corporation Ltd., Lucknow.(Annexure No.9 to the writ petition).
3. 23.05.2013 Letter of Chief Engineer, Paschimanchal Vidyut Vitran Nigam, Ghaziabad to the Superintending Engineer, Electricity Distribution Division-2, Bulandshahar requesting him to take opinion from the Standing Counsel or the Deputy Law Officer of the Corporation at Meerut, regarding reinstatement of Sanjay Kumar in service (Annexure No.10 to the writ petition).
4. 07.08.2013 Letter of Superintending Engineer, Electricity Distribution Division-2, Bulandshahar to the Chairman and Managing Director, U.P. Power Corporation Ltd., Lucknow, enclosing representations dated 10.10.2011 and 07.08.2013 of Sanjay Kumar, Coolie, praying for reinstatement in service and praying for valuable advise for disposal of the representations. (Annexure No.11 to the writ petition).
5. 08.03.2014 A letter of Superintending Engineer, Electricity Distribution Division-2, certifying that Sanjay Kumar was seriously ill and instead of removing him from service, he could have been granted leave and the decision to do away with his service appears to be hasty decision. (Annexure No.12 to the writ petition).
From the above facts and document on record, it is clear that prior to the death of the husband of the petitioner on 02.04.2015, he made all efforts to get reddressal of his grievance departmentally and the officers of the department never turned down any of his representation, rather they recommended setting aside of the punishment order after due legal advice from the Standing Counsel or the Law Officer of the Corporation. However, the fact remains that from the date of punishment order dated 06.05.2010 to the date of death of the husband of the petitioner on 02.04.2015, no final decision was taken by the officers of the respondent Corporation, whether to maintain the punishment order against him or modify/ set aside the same. Even in the Counter Affidavit, the respondents have not stated what decision was ultimately taken by them on the representations of the husband of the petitioner. Their only stand is that the husband of the petitioner died without challenging the order passed by them before any Court of Law and therefore, the same has attained finality and can not be assailed before this Court by the petitioner.
Therefore, for about 5 years, the officers of the respondent Corporation delayed the proceedings and now they have objected before this Court that the right of the husband of the petitioner to challenge the punishment order dated 06.05.2010 has been extinguished with his death since he did not approached any Court of Law against the same.
It is clear from the record, that the husband of the petitioner was not removed from service by way of any order passed in accordance with Regulation-6 (4) and therefore, the remedy of appeal/representation provided to him under Regulation-6(5), was available to him. Against the illegal order of the Executive Engineer, respondent no.3, he approached the Chief Engineer, who wrote to the Superintending Engineer and the Superintending Engineer sought directions from the Chairman and Managing Director of the Corporation, at Lucknow, but no final decision was taken by any of the authorities when all agreed that the order passed by the respondent no.3 was wrong.
Had the respondents taken a decision against the husband of the petitioner during his life time, he would have approached the Competent Court or Forum available to him under the law. The time spent in indecision of the respondent authorities extinguished the rights of the husband of the petitioner to avail remedy in Court against the illegal order of removal from service because of his death. The respondent authorities were fully aware that the husband of the petitioner was suffering from terminal illness of kidney failure and was not likely to survive much and when he was also in dire need of money for treatment and keeping his family alive, but they never bothered about his and his family’s condition and their woes.
Faced with such a situation this Court has no option but to advert to the superior law of the land, the Constitution of India. One of the most outstanding feature of our Constitution is the flexibility and capacity thereof to meet the changing conditions and demands of time and difficult situations, where the common law of land lands the Court in a state of indecision regarding the rights of rival parties.
The preamble of the Constitution of India provides that THE PEOPLE OF INDIA, have solemnly resolved to constitute India into a (SOVEREIGH SOCIALIST SECULAR DEMOCRATIC REPUBLIC) and to secure to all its citizens.
JUSTICE, Social, Economic and Political, LIBERTY …..
EUALITY of status and of opportunity In the present case the economic justice has been denied to the husband of the petitioner and after his death to the petitioner and her children on account of the negligence of the respondents in performing their duties.
Since the Constitution provides equality of status and opportunity, therefore, merely because the husband of the petitioner was an employee and the respondent authorities were employers, different application of Article-14 will not be made to their rights and liabilities. The husband of the petitioner was liable for adequate punishment as per the law for his misconduct, if proved and in case, he was not dealt as per the law, his rights were required to be protected by the respondents. The respondents had every right to punish the husband of the petitioner, who was their employee but they were liable to respond to his prayer, if he pointed out that he has been illegally on disproportionately punished against the provisions of law.
Considered on the above parameters of the Constitutional provisions, the indecision by the respondents had prejudiced the rights of the deceased husband of the petitioner, petitioner and her family. As considered above, the punishment order passed against the petitioner can not be re-opened and its merits can not be considered on account of his death, no relief on his account can be granted to the petitioner.
However, on account of indecision of the respondent authorities, not only the right of the deceased husband of the petitioner, to assail the illegal removal order before the Court of Law, was extinguished, but her right of compassionate appointment and receipt of family pension has come to a naught. Therefore, in view of the fault of the respondent authorities, the petitioner has also suffered prejudice to her rights and has been deprived of her right to livelihood guaranteed under Article – 21 of the Constitution of India. Therefore, she is required to be compensated by the respondents to the extent of the loss of her rights which also got extinguished with the rights of her husband on account of callous indecision on the rights of her husband by the respondent authorities.
Now considering the question of compensating petitioner for the acts of the respondents, it is clear that at the time of death of the petitioner in the year 2015, the age of the petitioner as per the Aadhar Card annexed with the writ petition was about 42 years and she could have received compassionate appointment in the respondent Corporation on Class-IV post. In remaining 16 years she would have earned Rs.20,000/- per month, by most conservative estimate, which comes to Rs.2,40,000/- per year or Rs.38,40,000/- in 16 years of her service upto the age of 58 years.
Keeping in view that the fact that the husband of the petitioner must have been given some minor punishment for his misconduct of unauthorized absence from duty, had he being legally proceeded with, the petitioner is held entitled to a lum sum compensation of half of the amount to which she would have be entitled which comes to Rs. 20,00,000/- from the respondents.
Regarding the other relief claimed by the petitioner, that the Employees Provident Fund, Gratuity and other dues of her deceased husband may be directed to be paid to her deserves consideration.
It is settled law that unless the monitory benefits arising out of Contract of Service are not specifically forfeited by the disciplinary authority, while passing the order of punishment, the entitlement to the same can not be disputed by the employer, either to the delinquent employee or his legal heirs after his death. In the present case the respondent no.3 was legally obliged to make payment of the monitory dues of the petitioner during his life time, after his removal from service on 06.05.2010, since there was no forfeiture of the same. Therefore, the petitioner is entitled to Employees Provident Fund, Gratuity and any other dues of her deceased husband with 12% simple interest from the date of passing of the termination order dated 06.05.2010 within a period of 2 months from the date of this order. Since the respondents are represented through their Counsel, therefore, notice of this order is deemed sufficient on respondents and the date of compliance of this order will start from the date of this order.
The writ petition is partly allowed. No order as to costs.
Order Date :- 28.02.2018 Ruchi Agrahari