1. Civil Misc. Substitution Application No. 382501 of 2016 Heard the learned counsel for the parties.
The application to substitute the legal heir is allowed.
Necessary substitution to be carried out during course of the day.
2. Order on Memo of Petition.
Heard the learned counsel for the parties.
Petitioner is the wife of the deceased/government employee, namely, Baidya Nath Pandey, a Junior Clerk with the U.P. Food and Civil Supplies Department. He was subsequently regularized on the post of Marketing Inspector by the Regional Food Controller Varanasi, Region Varanasi. Service conditions of the deceased/employee is governed by the U.P. Foods and Civil Supplies (Marketing Branch) Subordinate Service Rules, 1980. U.P. Government Servant (Discipline and Appeal) Rules, 1999 and Civil Services Regulation govern the departmental enquiry against the government servant. The deceased/employee retired on attaining the age of superannuation on 31 January 2000, however, two days prior to retirement, he was placed under suspension vide order dated 29 January 2000, by the fourth respondent-Regional Food Controller Allahabad, Region Allahabad. The employee died on 15 February 2001 during pendency of the disciplinary proceeding initiated in terms of Article 351A of the Civil Service Regulations. During pendency of the writ petition, petitioner died on 8 November 2016, thereafter, the legal heir (son) was substituted.
The short question involved in the instant writ petition is as to whether the alleged loss caused to the government which was subject matter of departmental enquiry can be recovered from the heirs of the deceased employee from the post retiral dues.
The facts, inter se, parties are not in dispute. It is admitted by the respondent that the deceased/employee was a government servant and came to be placed under suspension pending enquiry two days prior of his retirement on the allegation of causing loss of Rs.4,60,243/- to the government. It is admitted that as per the provisions of Article 351A, an enquiry in respect of a retired government employee is deemed to have commenced/instituted if the officer is placed under suspension from an earlier date prior to his retirement. The charge sheet levelling four charges was issued to the deceased/employee after retirement. He did not respond and before he could submit his reply, he died, consequently, by the orders of the third respondent-Commissioner, Foods and Civil Supplies, Lucknow, enquiry was dropped.
Petitioner by the instant writ petition seeks the following reliefs:
(i) Issue a writ order or direction in the nature certiorari quashing the impugned order dated 17.6.2016 in respect of deduction of amount to trhe tune of Rs. 1,50,939.00 from pension, Rs. 1,36,068.00 from gratuity and Rs. 1,19,236.00 from the commutation amount. Total amount comes to the tune of Rs. 4,06,243.00 from the post retirement benefit of the late husband of petitioner, on account of proposal/recommendation made by the Regional Food Controller Allahabad Region Allahabad on 18.12.2015 (Annexure no 9 to the writ petition).
(ii) Issue a writ order or direction in the nature of mandamus directing the respondents to release the amount of Rs. 4,06,243.00 which was illegally deducted by the pension, Gratuity and commutation of the post retirement benefit of late husband of petitioner vide letter dated 17.6.2016 along with 12% interest thereof as well as interest @ 12% on the late payment of paying the Family pension vide order dated 13.7.2016 for the period December 2000 to May 2016 a sum of Rs. 8,44,988/ forthwith.
It is not disputed by the respondents that before the enquiry could be concluded the employee died. The departmental enquiry did not proceed beyond the issue of the charge-sheet. This factual position is reflected from the averments of the respondents made in the counter affidavit.
Paragraphs-4, 7 & 8 of the counter affidavit is extracted:
4. That the contents of paragraph 3 of the writ petition are not admitted and in reply thereto, it is most respectfully submitted that the amount of Rs. 4,06,243/- deducted from post retiral dues of husband of the petitioner, namely, Late V.N. Pandey, is perfectly just and in accordance with law. It is submitted that during service tenure of husband of the petitioner under departmental proceedings, government dues of Rs. 4,04,863 against the husband of the petitioner, has been informed by the Regional Food Controller, Allahabad. Similarly government dues of Rs. 1380/- as against the husband of the petitioner were also informed by the Regional Food Controller, Varanasi. Therefore, total government dues of Rs. 4,06,243/- against the petitioner as has been informed by the authorities concerned, was rightly deducted from the post retiral dues of husband of the petitioner pursuant to the order dated 22.1.2015 passed by the Food Commissioner, which is perfectly just and legal and is in the interest of public money.
7. That the contents of paragraph 11 of the writ petition are baseless hence denied and in reply thereto it is submitted that after the retirement of the husband of the petitioner, due to pendency of departmental proceedings, he was granted provisional pension under the order of Regional Food Controller, Allahabad dated 7.12.2000. It is submitted that due to certain irregularities committed by the husband of the petitioner, a departmental proceeding was instituted against him which remained pending due to non-cooperative attitude of husband of the petitioner as in his case, an Enquiry Officer was appointed by the Food Commissioner who proceeded with the enquiry and issued charge sheet against the petitioner which was duly received by husband of the petitioner Shri Pandey on 28.7.2000 but the same was not replied by him only with a view to linger on the matter.
8. That the contents of paragraphs 12 to 15 of the writ petition are not admitted and in reply thereto, it is most respectfully submitted that due to some serious irregularities committee by husband of the petitioner viz. disobedience of the orders of the authorities concerned, mis-appropriation of huge quantity of government foodgrains etc., he was placed under suspension by means of an order dated 29.1.2000 passed by the Regional Food Controller, Allahabad during the contemplation of departmental enquiry and said order of suspension was also communicated to the Food Commissioner. The Food Commissioner by his order dated 4.7.2000 appointed Regional Food Controller, Kanpur Region as Enquiry Officer. The husband of the petitioner was not cooperating in the said enquiry rather he has filed a writ petition No. 20406 of 2000 in this Hon'ble Court in which an order was passed on 2.5.2000 for taking appropriate decision on the representation of the petitioner, in compliance of which the Food Commissioner scrutinized the matter in detail and passed the order dated 7.2.2007 deciding the claim and representation of petitioner's husband dated 15.10.2000 by which Shri Pandey was directed to file reply of the charge sheet within 15 days and the Enquiry Officer was also directed to complete the enquiry and send the enquiry report to the office of Food Commissioner within next 15 days, in pursuance of which, the Regional Food Controller, Kanpur Region, by his letter dated 16.3.2002 has informed that Shri B.N. Pandey, the husband of the petitioner already died on 15.2.2001 and he has not replied the approved charge sheet issued against him. Thereafter, it appears that due to non-payment post retiral dues of late Pandey, the petitioner, the wife of deceased employee filed writ petition No. 43664 of 2007 in this Hon'ble Court in which an order was passed on 13.9.2007 directing therein to complete enquiry within time, in pursuance of which, the Regional Food Controller, Allahabad Region, Allahabad by his letter dated 31.10.2007 followed by another reminder letter dated 23.5.2014, made a request to the Enquiry Officer/Regional Food Controller, Kanpur Region, Kanpur to complete the enquiry an early date and send the enquiry report, in response to which the Regional Food Controller, Kanpur Region by his letter dated 3.6.2014 has informed that the husband of the petitioner Shri pandey already died on 15.2.2001 and the charge sheet related to present matter in dispute, was duly served upon which but the same was not replied by him, therefore, now no action was required to be taken at his level. It is submitted that on the basis of aforesaid report of Regional Food Controller, Kanpur Region, the department proceeding instituted against the husband of the petitioner, was dropped under the order passed by the Food Commissioner by which it was also directed that if any financial loss has been caused by the husband of the petitioner, the said amount be adjusted from his post retiral dues, in pursuance of which government loss of Rs. 4,06,243/- caused by Shri Pandey, has been informed by the Regional Food Controller, Allahabad/Varanasi Region, which has been adjusted/deducted from the post retiral dues of Shri Pandey and rest of amount related to post retiral dues has been paid to the petitioner being wife of late Pandey.
In the backdrop of the averments, it is urged by learned counsel for the petitioner that recovery of the alleged loss of government dues, which was subject matter of the disciplinary enquiry, could not have been recovered from the post retiral dues of the deceased/employee as the departmental inquiry abated on the death of the employee. It is not in dispute that the inquiry was not concluded before his death. Petitioner is, therefore, entitled to the sum recovered along with interest thereon.
Once a person came to an end by reason of death, the provisions for Fundamental Rule 54-B Sub-Rule (2) states that notwithstanding anything contained in Rule 53, where a government servant under suspension dies before the disciplinary proceedings are concluded, the period between the date of suspension and the date of death has to be treated as duty for all purposes and the family of such civil servant is required to be paid full allowances for that period subject to adjustment in respect of subsistence allowance already paid. Fundamental Rule 54-B of Sub-Rule (2) is extracted:
"Notwithstanding anything contained in rule 53, where as Government servant under suspension dies before the disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid."
In similar facts, the Bombay High Court in Hirabai Bhikanrao Deshmukh v. State of Maharashtra and others1, upon considering the rule applicable to government servant in Maharashtra, which is pari materia with Rule 54-B of the Fundamental Rule, held as follows:
"The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after hid death. Such proceedings are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of the proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contact of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We think that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Service Rules."
In a case where after issuance of charge sheet to the delinquent employee, enquiry officer upon enquiry submitted the enquiry report holding the employee guilty of the charges levelled against him but unfortunately he expired before any decision could be taken by the Disciplinary Authority on the enquiry report. In other words, before the enquiry report could be acted upon by the Disciplinary Authority, the employee expired. The Delhi High Court held that it is settled law that disciplinary proceedings culminate with the issuance of final order by the Disciplinary Authority. Since the authority could not pass final order, the enquiry would stand abated and the employer is precluded from making any recovery from the retiral dues of the deceased/employee.
(Ref: Neeraj v. Air India Ltd.2) Learned Single Judge of this Court in Rajeshwari Devi v. State of U.P. and others3, in the similar facts, held as follows:
"Holding of departmental enquiry and imposition of punishment contemplates a pre-requisite condition that the employee concerned, who is to be proceeded against and is to be punished, is continuing an employee, meaning thereby is alive. As soon as a person dies, he breaks all his connection with the worldly affairs. It cannot be said that the chain of employment would still continue to enable employer to pass an order, punitive in nature, against the dead employee...... all the punishments contemplated under the rules are such which can be imposed on a person who is still continuing to be an employee."
It follows that punishment provided under the Disciplinary Rules can be imposed upon the government servant and not on the family member of the government servant. As soon as an incumbent ceases to be a government servant upon death, no penalty under the rules could have been imposed upon him. That being so, the question of passing an order, which may have the effect of punishing legal heirs of the deceased employee would not arise. In the facts of the instant case, disciplinary proceeding was initiated against the employee immediately before his retirement and before the disciplinary enquiry could conclude he died. The disciplinary enquiry, thereafter, could not have been proceeded under Section 351A of the Civil Service Regulations, accordingly, the competent authority dropped the enquiry. By the impugned order, recovery was sought to be made from the post retiral dues from the legal heir for the misdemeanour and misconduct of the delinquent employee, which was not permissible in view of Rule 54-B of the Fundamental Rules.
Learned standing counsel, in rebuttal, does not dispute the fact that the enquiry was dropped as the employee died and the enquiry could not be concluded before death of the employee. In the circumstances, no recovery could have been made from the post retiral dues without a finding being recorded against the deceased/employee under the Rules that he was responsible for having caused loss to the government.
The order dated 17 June 2016 passed by the second respondent-Finance Controller and Chief Accounts Officer, Foods and Civil Supplies, Lucknow, is unsustainable, accordingly, set aside and quashed.
The recovered sum of the post retiral dues shall be released to the petitioner by the second respondent--Finance Controller and Chief Accounts Officer, Foods and Civil Supplies, Lucknow, within two months from the date of filing of certified copy of this order along with interest @ 7% per annum on the sum from the date of recovery.
The writ petition stands allowed.
No Cost.
Order Date :- 30.7.2019 Mukesh Kr.