Madhya Pradesh High Court

Smt. Veena Dhurvey vs The State Of Madhya Pradesh on 6 July, 2023

Author: Gurpal Singh Ahluwalia

1 W.P.No.13655/2017

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF JULY, 2023
WRIT PETITION No. 13655 of 2017
BETWEEN:-
SMT. VEENA DHURVEY W/O LATE SHRI
DILIP KUMAR DHURVEY, AGED ABOUT 55
YEARS, R/O WARD NO. 33, SAI BUILDERS
COLONY, MOTI NAGAR, DISTRICT
BALAGHAT (MADHYA PRADESH)

.....PETITIONER
(BY SHRI ANIL KUMAR TIWARI - ADVOCATE )

AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY SCHOOL
EDUCATION DEPARTMENT
MANTRALAYA VALLABH BHAWAN
BHOPAL (MADHYA PRADESH)

2. DISTRICT EDUCATION OFFICER
DISTRICT BALAGHAT (MADHYA
PRADESH)

3. DISTRICT TREASURY OFFICER
DISTRICT BALAGHAT (MADHYA
PRADESH)

4. JOINT DIRECTOR, TREASURY AND
ACCOUNTS BALAGHAT, DISTRICT
BALAGHAT (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI RITWIK PARASHAR - GOVERNMENT ADVOCATE )
.........................................................................................................

This petition coming on for admission this day, the court passed the
following:
2 W.P.No.13655/2017

ORDER

This Petition under Article 226 of the Constitution of India has been filed against the order dated 18.05.2017 by which a recovery of Rs.14,89,200/- has been effected against the husband of the petitioner Late Shri Dilip Kumar Dhurvey (Principal), on the ground that in an audit objection, a misappropriation of Rs.14,89,200/- was detected.

2. Some dates are important for disposal of this petition. The husband of the petitioner, namely; Late Shri Dilip Kumar Dhurvey expired on 02.02.2016. An audit inspection was conducted on 22.11.2016 and without fixing the liability of any person, it was opined by the audit team that there is a misappropriation of an amount of Rs.14,89,200/-. Without conducting any enquiry and without fixing liabilities of the persons responsible for the said misappropriation, it appears that the District Education Officer, District Balaghat jumped to a conclusion that only the husband of the petitioner is responsible for the said misappropriation and directed for recovery of Rs.14,89,200/- from the outstanding dues of the husband of the petitioner.

3. Accordingly, the counsel for the respondents was directed to address this Court as to whether any departmental action can be taken against a dead person or not and whether any recovery of loss caused to the Government is a minor penalty or not and whether a minor penalty can be imposed without even issuing a show cause notice to the delinquent officer or not?

4. It is fairly conceded by the counsel for the respondents that no departmental action can be taken against a dead person. It is further submitted that in view of Rule 10 of the M.P. Civil Services

(Classification, Control and Appeal) Rules, 1966, (in short CCA Rules) recovery of loss caused to the State Government is a minor penalty.

5. Thus, it is clear that the recovery of the entire misappropriated amount from the outstanding dues of Late Shri Dilip Kumar Dhurvey by the impugned order dated 18.05.2017 is contrary to law and that cannot be done.

6. From the return, it appears that before fixing the liability on a dead person, no enquiry whatsoever was conducted by District Education Officer, District Balaghat. There is no finding that except the dead person, namely; Late Shri Dilip Kumar Dhurvey, no other person was responsible for the said misappropriation. It appears that by taking advantage of death of Late Shri Dilip Kumar Dhurvey, District Education Officer, District Balaghat has tried to shift the entire responsibility on to the shoulders of a dead person in order to give implied clean chit to the persons, who are either still alive or who are still in service. Thus, this conduct of District Education Officer, District Balaghat cannot be appreciated and it is against the fair play of nature justice. On the contrary, it appears that the District Education Officer, District Balaghat by issuing the impugned order dated 18.05.2017 has tried to save some other persons, who may be involved in misappropriation.

7. It is well established principle of law that no departmental action can be initiated against a dead person for the simple reason that on the death of employee, the employer-employee relationship would come to an end.

8. This Court in the case of Smt. Rekha Tomar Vs. M.P. Warehousing and Logistics Corporation and Others by order dated

30th August, 2022 passed in W.P. No.17214/2017 (Gwalior Bench) has held as under:

"Whether a departmental enquiry can be initiated against a dead employee, if yes, then whether the respondents have followed the said procedure or not ?

8. Counsel for the respondents could not point out any provision of law which empowers the Corporation to initiate a departmental enquiry against a dead employee. Furthermore, after the death of an employee takes place, the relationship of employer and employee also stand broken for the purposes of departmental enquiry. Even if the death takes place during the pendency of departmental enquiry, the departmental proceedings would stand abated. The Allahabad High Court in the case of Durgawati Dubey vs. State of U.P. and others by order dated 08.10.2018 passed in WRIT-A No.40057 of 2013 has held as under:-

"By the perusal of records, this fact is undisputed that departmental proceeding was initiated after the death of husband of petitioner. It appears that only after order of this Court dated 22.02.2013, respondents have initiated the departmental proceeding ignoring this fact that husband of the petitioner died much earlier. It is also very ridiculous that Inquiry Officer has issued notice to petitioner to submit the reply for an allegation against her late husband. In fact this act of Inquiry Officer is absolutely suffers from non application of mind and also ignores settled law of departmental proceeding. How it is possible for the petitioner to submit reply with regard to the alleged allegation of embezzlement by

her late husband. Whaterver letters are referred in the counter affidavit, either filed by respondent No. 4 or by the State-

respondents with regard to the departmental proceeding are undsiputedly after the death of husband of petitioner.

Therefore, in such facts, the complete departmental proceeding is ex facie bad as in any case, no inquiry can be initiated against a dead person. Respondents may have initiate the inquiry proceeding during the service period of husband of petitioner or at least before his death, but after death, complete inquiry proceeding as well as impugned order dated 10.06.2013 is bad in law and not sustainable.

Apart from that I have also seen the judgments of this Court as well as other High Courts occupying the field. In the case of Smt. Rajeshwari Devi Vs. State of U.P. and Ors. 2011(2) ADJ 643 decided on 07.01.2011, the Court has held that as soon so as a person dies, he breaks all his connection with the worldly affairs, therefore, no disciplinary proceeding can be initiated against him. Relevant Paragraph Nos. 6 and 7 of the judgment are being quoted below:-

"6. 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.

......................

7....................

........It is well settled that a punishment not prescribed under the rules, as a result of disciplinary proceedings, cannot be awarded even to the employee what to say of others. The Court feel pity on the officers of Nagar Nigam, Bareilly in continuing with the departmental enquiry against a person who was already died and this information of death was well communicated to the enquiry officer as well as disciplinary authority. They proceeded with enquiry and passed impugned orders against a dead person. This is really height of ignorance of principles of service laws and shows total ignorance on the part of the officers of Nagar Nigam in respect to the disciplinary matters. This Court expresses its displeasure with such state of affairs and such a level of unawareness on the part of the respondents who are responsible in establishment matters. They have to be condemned in strong words for their total lack of knowledge of such administrative matters on account whereof legal heirs of poor deceased employee have suffered."

In the matter of Gulam Gausul Azam and others Vs. State of U.P. and others 2014 (5) ADJ 558 decided on 12.05.2014, the Court has held that before disciplinary authority could pass any order on the inquiry report, petitioner died ending the master and servant relationship, therefore, no punishment order can be passed. Relevant paragraph Nos. 10 to 13 of the judgment are being quoted below:-

"10. There is another aspect of the matter. In the present case Abdul Kareem expired on 15.7.2011, i.e. before the

disciplinary authority could pass any order on the enquiry report dated 3.7.2011. In the circumstances therefore, the master and servant relationship between Late Abdul Kareem and the respondents also came to an end with his death and therefore, the impugned order dated 21.11.2011 could not have been passed after the death of Abdul Kareem.

11. In my opinion therefore the disciplinary authority could not have passed the order dated 21.11.2011 withholding the retiral dues and other benefits of late Abdul Kareem. When Abdul Kareem died on 15.7.2011 he could not have been said to be a government servant thereafter and therefore the order dated 21.11.2011 on the face of it is a wholly illegal and arbitrary order and has no basis in law and cannot survive.

12. So far as the matter of compassionate appointment of the petitioner no. 1 is concerned, for the same reasons that since the disciplinary authority has not taken any decision regarding the finding of guilt against late Abdul Kareem prior to his death, it could not be said that the charge had been established against late Abdul Kareem as disciplinary proceedings are concluded only with the passing of the order of disciplinary authority and not when the enquiry officer submits his report.

13. In this view of the matter, the writ petition is allowed and both the impugned orders dated 21.11.2011 and 1.3.2012 are quashed. The respondents are directed to take steps for payment of all retiral benefits to the legal heirs of late Abdul Kareem. So far as the order dated 1.3.2012 regarding rejection of the claim

of petitioner no.1 for compassionate appointment is concerned, a direction is issued to the District Magistrate, Deoria- respondent no. 3 to take a decision afresh in this regard having regard to the educational qualification of the petitioner no. 1 and availability of vacancy within a period of two months from the date a certified copy of this order is received in his office."

In the aforesaid case, the dispute was that the father of petitioner Abdul Kareem was died on 15.07.2011 before the disciplinary Authority could pass any order on the inquiry report dated 3.7.2011 and the Court has held that after the death, no such order can be passed against the petitioner and further directed the authority to pay full post retiral benefits.

Learned counsel for the petitioner has also placed reliance upon the judgment of this Court in the case of Onkar Singh Verma Vs. State of U.P. and 2 Ors. 2018 (3) ADJ 272, decided on 09.01.2018 and the relevant paragraph of the judgment is quoted below:-

"Finally, the petitioner has died on 14.03.2017, during the pendency of this writ petition and therefore, even if, there had been any power in the rules vested in respondent no.2 to conduct enquiry against the petitioner after superannuation, now it would not have been possible for him to conduct any enquiry. Therefore, the impugned order dated 21.09.2016, passed by respondent no.2, Secretary/General Manager, District Co- operative Bank Ltd., Etah, whereby, recovery of certain amounts have been directed against the petitioner from his gratuity, after his retirement from service

is hereby quashed. The respondent no.2 is directed to release the amount of gratuity of the petitioner, by applying new pay scale, along with 7% simple interest for inordinate delay in making payment of the same to the petitioner from the date of his superannuation on 30.06.2013.

The writ petition is allowed. No order as to costs."

In the aforesaid matter, the petitioner died on 14.03.2017 during the pendency of writ petition, therefore, the Court has held that even there had been any power in the rules vested to respondent No. 2 to conduct the inquiry after superannuation, now it would not have been possible for him to conduct inquiry and quashed the order impugned and directed to release the amount of gratuity of petitioner as paid by the petitioner in that petition.

Similar matter was also for consideration before the Bombay High Court in the case of Hirabhai Bhikanrao Deshmukh Vs. State of Maharashtra and another (1985) ILLJ 469 Bom decided on 10.10.1984, the Court has clearly held that provision 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 his death. Relevant Paragraph No. 6 of the judgment is being quoted below:-

"6. 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 his 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 contract 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 Services Rules."

Similar dispute has also come before the Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors. 2001 (49) BLJR 2179 decided on 01.05.2001, the Court after following the decision of Bombay High Court had taken the same view and directed the respondents to pay all post retiral benefits

and 10 of the judgment are being quoted below:-

"9. In the instant case admittedly the delinquent-employee died on 24.3.1999 and the Enquiry Officer

submitted his report on 30.8.1999. In the enquiry report (Annexure F) the Enquiry Officer took notice of the fact that the delinquent-employee died on 24.3.1999. The Enquiry Officer further took notice of the fact that the delinquent-employee had requested the respondents to keep the departmental proceeding in abeyance till the disposal of the case pending before him. However, the Enquiry Officer after the death of delinquent employee called upon the respondents and on the basis of documents produced by them submitted enquiry report and on the basis of that report a formal order of dismissal was passed. In my opinion therefore the manner in which respondents proceeded with the departmental proceeding against the delinquent-employee, the enquiry report as well as the order of dismissal is vitiated in law and is null and void. I am, further of the view that the widow of the deceased employee cannot be deprived of her legitimate claim of death-cum- retirement benefits on the ground of dismissal of the employee on the basis of departmental proceeding initiated after 6 years of the order of suspension and that to on the basis of enquiry report submitted by the Enquiry Officer after proceeding ex parte against the deceased-employee who died much before the date when the Enquiry Officer proceeded with the matter and submitted his report.

10. For the reasons aforesaid, this writ application is allowed and the respondents are directed to release all the death-cum-retirement dues in favour of the petitioner, who is widow of the deceased employee as expeditiously as possible and preferably within a period of

30 days from the date of receipt/production of copy of this order."

Learned counsel for respondent No. 4 has relied upon a judgment of Jharkhand High Court in the case of Nilam Dubey vs. State of Jharkhand & Ors. decided on 10.05.2013, in which the Court has held that inquiry which was initiated against the husband of petitioner can continue even after the death of husband of petitioner and show cause notice issued to son of petitioner is permissible in law.

I have perused the judgment of Jharkhand High Court, first of all the judgment is not applicable in the case of petitioner for the reason that admittedly the inquiry proceeding was initiated after the death of husband of petitioner and secondly this law is bad as after the death of a person, how a show cause notice can be issued to his son. Further it appears that judgment Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors. 2001 (49) BLJR 2179 decided on 01.05.2001 was not brought into the knowledge of Court in which the Court has taken a view that no departmental proceeding can be continued after the death of employee.

After going through the judgments and facts of the case, this Court is of the view that against a dead person, neither disciplinary proceeding can be initiated nor any punishment order can be passed. In the present case, facts are not disputed that disciplinary proceeding was initiated against husband of petitioner after his death, which suffers from non application of mind as well as contrary to the law laid down by this Court as well as other High

Courts, therefore, the impugned order dated 10.06.2013 is not sustainable and is hereby quashed."

9. Even otherwise, it appears that the Corporation has tried to fix the liability of entire embezzlement on the shoulders of the dead employee by forfeiting an amount of Rs.16,48,000/- against a total embezzlement of Rs.6,43,88,390/-. No fact finding enquiry was conducted by the respondents to find out as to whether husband of the petitioner was solely responsible or embezzlement took place in connivance with other officers. No opportunity of hearing was given to the petitioner against any such proposed recovery.

10. Thus, the order dated 30.05.2017 which provides that against a loss of Rs.6,43,88,390/- the matter is closed by forfeiting an amount of Rs.16,48,000/- payable to the petitioner is hereby quashed.

11. The corporation is directed to conduct a fact finding enquiry and fix the liabilities of the persons who were guilty of shortage of food grains."

9. Patna High Court in the case of Kaushlya Devi Vs. The State of Bihar and Others decided on 11.01.2023 in Civil Writ Jurisdiction Case No.9735/2021 has held as under:

"16. It is well settled proposition of law that judicial enquiry or departmental proceeding against a delinquent totally abates on death of an employee for the simple reason that in order to punish an employer, there must be subsistence of employer and employee relationship. Once an employee died the said relationship ceases. The defence, if any, is a personal defence available to the employee and no person can be substituted in

place of dead employee; and defend the conduct of a dead employee and, as such, no order could have been passed withholding the retirement or any outstanding dues."

10. Furthermore, in the present case, the husband of the petitioner, namely; Late Shri Dilip Kumar Dhurvey died on 02.02.2016 and the audit was conducted on 22.11.2016 i.e. subsequent to the death of Late Shri Dilip Kumar Dhurvey. Thus, it is clear that even on the date of death of Shri Dilip Kumar Dhurvey, no fact of misappropriation was detected and it came to light only after the death of Shri Dilip Kumar Dhurvey. The manner in which the District Education Officer, District Balaghat has tried to put the entire burden/responsibility on the shoulder of a dead person cannot be appreciated. Accordingly, the order dated 18.05.2017 is hereby quashed.

11. The Collector, District Balaghat is directed to conduct an enquiry to find out as to who are the responsible persons for misappropriation of Rs.14,89,200/-. The enquiry shall be conducted by the Collector personally and under no circumstances, he shall assign the said duty to any other officer.

12. Let the enquiry be completed within a period of six months from today.

13. The Collector after ascertaining the liabilities shall proceed further against the delinquent officers, if any departmental action is permissible under the law.

14. Since the recovery has been made on the ground of causing loss to the State Government, which is a minor penalty under Rule 10 of CCA Rules, therefore, after the death of the employee, the same cannot be done. Thus, the authorities are directed to immediately release the

withheld amount.

15. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.07.07 18:41:59 +05'30'