Yashwant Sen vs The State Of Madhya Pradesh
2023 Latest Caselaw 8452 MP

                                                             1
                           IN      THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                  ON THE 13 th OF JUNE, 2023
                                              WRIT PETITION No. 10720 of 2023

                          BETWEEN:-
                          YASHWANT SEN S/O LATE SHRI BHAGWAT PRASAD
                          SEN, AGED ABOUT 27 YEARS, R/O SADAR MADIYA
                          BEHIND WARE HOUSE SHASTRI WARD TEHSIL AND
                          DISTRICT NARSINGHPUR (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY SHRI SANJAY RAM TAMRAKAR - ADVOCATE)

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

                          2.     DISTRICT   EDUCATION    OFFICER, SCHOOL
                                 EDUCATION          DEPARTMENT DISTRICT
                                 NARSINGHPUR (MADHYA PRADESH)

                          3.     SHRI   SANKUL   PRACHARYA, GOVERNMENT
                                 HIGHER SECONDARY SCHOOL, KOUDIYA TEHSIL
                                 GADARWARA,    DISTRICT    NARSINGHPUR
                                 (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (BY SHRI ROHIT JAIN - GOVERNMENT ADVOCATE)

                                 This petition coming on for admission this day, th e court passed the
                          following:
                                                              ORDER

This petition under Article 226 of the Constitution of India has been filed against the order dated 24/04/2023 passed by District Education Officer Narsinghpur in file No.3019/Establishment 4/2022-23 and order dated Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-Jun-23 7:35:47 PM

20/11/2020 passed by District Education Officer Narsinghpur in file No.5245/complaint/2020.

2. It is the case of the petitioner that the father of the petitioner, namely Shri Bhagwat Prasad Sen was working as a Peon in Government Higher Secondary School Koudiya, Tehsil Gadarwara District Narsinghpur. On 02/02/2013, the father of the petitioner went to school to do his duty but did not return back. The petitioner along with his other family members tried to search out the whereabouts of his father but could not trace him and therefore, a missing person report was lodged and notice was also published in daily newspaper but the same could not fetch any positive relief. Ultimately, the petitioner as well as

his mother and sister filed a suit for declaration that their father/ husband has

died a civil death. The Civil Suit was dismissed by 5th Civil Judge Junior Division, Narsinghpur by judgment dated 16/08/2022.

3. Being aggrieved by such judgment and decree, the petitioner and his mother and sister filed Regular Civil Appeal No.38/2022 which was decreed by the Principal District Judge, Narsinghpur by judgment and decree dated 14/12/2022 and it has been declared that the father of the petitioner has died a civil death.

4. Thereafter, the petitioner filed an application for grant of appointment on compassionate ground. By order dated 24/04/2023 (Annexure-P/3), the application for appointment on compassionate ground has been rejected on the ground that the services of his father were already terminated by order dated 20/11/2020.

5. By this petition, the petitioner has also challenged the termination order dated 20/11/2020 on the ground that since the said order has been passed against a dead person, therefore it is a nullity and to buttress his contention, the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-Jun-23 7:35:47 PM

counsel for the petitioner has relied upon the judgment passed by the Division Bench of this Court in the case of M.P. State Co-operative Marketing Federation Ltd. Vs. Aruna Pyasi reported in (2003) 4 MPLJ 463.

6. Per contra, the counsel for the respondents has vehemently opposed the submissions made by the counsel for the petitioner. By referring to the order dated 20/11/2020, it is submitted by the counsel for the respondents that the father of the petitioner was on unauthorized absence from 03/02/2013, accordingly show cause notice was issued to the father of the petitioner on 27/04/2013 and 07/02/2017 but it was not responded by his father. Even other notices were also issued but it was not responded. Accordingly, a press note was published on 08/03/2017 directing the father of the petitioner to submit his response, failing which, it shall be presumed that he is not interested to perform his duty as well as to show cause as to why a major penalty may not be imposed against him. The father of the petitioner did not file any reply and accordingly, another press note was issued with regard to the missing of the father of the petitioner. Since the father of the petitioner was not responding, therefore a letter/ charge-sheet was issued on 08/03/2017 which was served on the family members of the father of the petitioner and only then the family members of the father of the petitioner informed that Bhagwat Prasad Sen is missing. Accordingly, a departmental enquiry was instituted on 29/08/2020 and

enquiry report was submitted on 04/11/2020 and it was found that the father of the petitioner is on unauthorized absence from 03/02/2013 and thus by order dated 20/11/2020 he was dismissed from services. It is submitted that it is clear from the petition that only after the father of the petitioner was dismissed from service, the petitioner and his mother and sister filed a suit for declaration that

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-Jun-23 7:35:47 PM

their father/ husband has died a civil death. Although the petitioner has not filed a copy of the judgment passed by the Trial Court but it is clear from the judgment and decree of the Appellate Court that the suit was instituted some time in the year 2022 because the registration number of the said Regular Civil Suit is 77-A/2022. Even according to the petitioner, the missing person report was lodged on 20/04/2017, i.e. after show cause notices were being issued by the respondents/ department.

7. In reply, it is submitted by the counsel for the petitioner that in fact before terminating the services of the petitioner, the respondents should have conducted an enquiry as to why the person is on unauthorized absence.

8. Considered the submissions made by the counsel for the parties.

9. It is true that an order of termination cannot be passed against the dead person but declaration to that effect was passed in the year 2022 i.e. much after the services of the father of the petitioner were terminated. Even the suit for declaration that the father of the petitioner has died a civil death was instituted some time in the year 2022 i.e. two years after the termination of the services of the father of the petitioner.

10. It is really surprising that although the petitioner claimed that his father was missing from 03/02/2013 but no missing person report was lodged and it was lodged only on 20/04/2017. No explanation has been given by the petitioner in this regard. It is true that this Court while considering the present petition cannot interfere with the findings recorded by the Appellate Court but by this petition, the petitioner has also challenged the order of termination. Therefore, for the purpose of judging the correctness of the order of termination, this Court can look into the various aspects including the conduct of the petitioner and his mother and sister of keeping silent for four long years and did not file any Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-Jun-23 7:35:47 PM

missing person report.

11. It is not the case of the petitioner that a copy of FIR was ever provided to the respondents. The scope of departmental enquiry is completely different. Furthermore, the order of termination is an appealable order and undisputedly, the petitioner or his mother and sister have not assailed the said order in appeal.

12. Since the petitioner has an efficacious remedy to assail the order of termination in departmental appeal and the Appellate Authority is competent to consider the grounds which will be raised by the petitioner, this Court is of the considered opinion that no case is made out for by-passing the statutory remedy available to the petitioner.

13. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar

Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 14-Jun-23 7:35:47 PM