Madhya Pradesh High Court
Dropati Bai Pandey vs Prabandhak Jila Sahkari Kendariya Bank ... on 22 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.3489/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF FEBRUARY, 2024
MISCELLANEOUS PETITION No. 3489 of 2022
BETWEEN:-
DROPATI BAI PANDEY W/O LATE SHRI
RAMESHWAR PRASAD PANDEY, AGED ABOUT
73 YEARS, OCCUPATION: HOUSEWIFE R/O 197,
WARD NO.3, KOODAN MOHALLAH, MAIN ROAD,
KATANGI, TAHSIL KATANGI (PATAN), DISTRICT
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIJAY KUMAR SHUKLA - ADVOCATE)
AND
1. PRABANDHAK JILA SAHKARI KENDARIYA
BANK MARYADIT, JABALPUR TAHSIL AND
DISTRICT JABALPUR (MADHYA PRADESH)
2. BRANCH MANAGER JILA SAHKARI
KENDARIYA BANK MARYADIT, KATNI,
DISTRICT KATNI (MADHYA PRADESH)
3. SAHAYAK BHAVISY NIDHI AYUKTA,
JABALPUR, TEHSIL AND DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
............................................................................................................................................
This petition coming on for admission this day, the court passed the
following:
ORDER
This petition under Article 227 of Constitution of India has been
filed against order dated 11/04/2022 passed by M.P. State Co-operative
Tribunal, Bhopal in F.A. No.145/2012, by which appeal filed by
respondents has been allowed and matter has been remanded back for
disposal of the case in accordance with law.
2. It is the case of petitioner that she is the wife of late Rameshwar
Prasad Pandey, the then Branch Manager, Jila Sahkari Kendriya Bank
Maryadit, Jabalpur. She filed a dispute case No.55(2)-01/2012 against
the respondents for settlement of retiral dues of her husband. Husband
of petitioner had died on 23/04/1999 in harness. He had already
rendered 27 years of his services. Thus, he was entitled for grant of
Rs.1,00,000/- towards gratuity, Rs.56,000/- towards leave encashment,
Rs.90,000/- towards insurance and Rs.25,000/- towards security, thus
total amount of Rs.2,71,000/-.
3. Respondents No.1 and 2 filed their written statement and denied
the plaint averments and prayed for dismissal of dispute. It was their
contention that the late husband of petitioner was involved in the case of
embezzlement. By letter dated 04/09/2003, his retiral dues (amount of
gratuity of Rs.1,15,104/-, leave encashment amount of Rs.40,192/- total
amount of Rs.1,55,296/-) have been adjusted against the disputed
warehouse receipts of Taran loan accounts. Thereafter by letter dated
25/11/2005, amount of group insurance of Rs.80,817/- and by order
dated 19/12/2005 amount of security of Rs.21,797/- has been adjusted
with interest. An advise with respect to adjustment has also been made
to Katangi Branch. It was the contention of respondents that it was
communicated by letter dated 01/06/1999 that retiral dues shall be
settled after the embezzlement case is over. Thus, before disposal of the
said case, it was not possible for the respondents to settle the retiral
dues. The case was ultimately disposed of by order dated 07/07/2023.
The dispute filed by husband of petitioner was barred by time. By order
dated 05/11/2012, Deputy Registrar allowed the dispute case and
directed for payment of Rs.2,57,910/- with interest prevailing in the
fixed deposit account.
4. Respondent filed an appeal before M.P. State Co-operative
Tribunal at Bhopal which was registered as First Appeal No.145/2012
and was admitted for final hearing on 21/12/2012. As there was delay in
deciding the appeal, petitioner came to the High Court by filing M.P.
No.2925/2020 which was disposed of by order dated 09/11/2020 with
direction to decide the appeal.
5. Now by impugned order, Tribunal has allowed the respondents'
appeal and has remanded the case back to the Deputy Registrar for
disposal of case in accordance with law.
6. Challenging the order passed by the Tribunal, it is submitted by
counsel for petitioner that M.P. State Co-operative Tribunal, Bhopal
instead of considering the appeal with regard to the procedure adopted
by the Deputy Registrar should have considered merits of the case also.
It is submitted that respondents had sent a letter dated 10/01/2005 to the
Registrar, Human Rights Commission which has been filed as
Annexure-R/J-1 pointing out that a departmental enquiry was pending
against the petitioner and accordingly, he was placed under suspension
by order dated 27/01/1998. Departmental enquiry was concluded on
19/02/1999 and no personal liability was proved. Before the final
decision could be taken and while husband of petitioner was under
suspension, husband of petitioner died on 23/04/1999. Thereafter on
02/11/2000, the fact that certain warehouse receipts were missing from
Branch Katangi came to light. The allegations were that husband of
petitioner had mis-appropriated an amount of Rs.4,67,865/- and
accordingly, as per the decision dated 24/07/2002 taken by Staff Sub-
Committee, it was directed that the embezzled amount be recovered
from the gratuity and leave encashment. It was also mentioned in the
said order that group insurance amount and security amount is
outstanding. Taking clue from said order, it is submitted by counsel for
petitioner that it is clear that one departmental enquiry was pending
against husband of the petitioner in which his personal responsibility
was not found proved. However, before any final order could be passed,
husband of petitioner expired, therefore departmental enquiry stood
abated. So far as the allegation that certain warehouse receipts were
found missing from Branch Katangi is concerned, it is submitted by
counsel for petitioner that the said fact came to light on 02/11/2000 i.e.
after the death of husband of petitioner.
7. It is submitted by counsel for petitioner that since departmental
enquiry in which husband of petitioner was not found guilty had stood
abated on account of his death and any departmental enquiry against the
dead employee cannot be initiated, thus, recovery is bad in law.
8. None appears for the respondents though served and represented.
9. Heard the learned counsel for the petitioner.
10. The only question for consideration is as to whether a
departmental enquiry can be initiated against a dead person or not?
11. A Co-ordinate Bench of this Court by order passed in the case of
Smt. Gayatri Devi Sharma Vs. The State of Madhya Pradesh
decided on 04/10/2018 in W.P. No.6850/2014 has held that no
departmental enquiry can be initiated against a dead person. The said
order was affirmed by Division Bench of this Court in Writ Appeal
No.1829/2018 decided on 28/01/2020.
12. This Court in the case of Smt. Rekha Tomar Vs. M.P.
Warehousing & Logistics Corporation and Others decided on
30/08/2022 in Writ Petition No.17214/2017 (Gwalior Bench) has held
as under:-
"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. Whatever 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 undisputedly
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
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."
13. Thus the recovery effected by the respondents in the light of
decision taken by Staff Sub-Committee on 24/07/2002 is bad in law.
Even otherwise, once an employee has expired during the pendency of
departmental enquiry, then that departmental enquiry would also stand
abated. Even otherwise, it is clear from letter dated 10/01/2005 sent by
District Cooperative Central Bank Maryadit, Jabalpur to the Human
Rights Commission that even the Enquiry Officer did not find personal
liability of late husband of the petitioner.
14. Accordingly, this Court is of considered opinion that the Tribunal
should not have remanded the matter in a casual manner and should
have ensured as to whether departmental enquiry or recovery can be
initiated after the death of employee or not.
15. Since the entire action of the respondents against dead person is
bad in law, therefore it is directed that the withheld amount of
Rs.2,57,910/- should be paid with interest at the rate of 9% from the
date of withholding till actual payment is made.
16. Respondents are also directed to conduct a fact finding enquiry to
find out as to whether any other person is also responsible for
misplacement of warehouse receipts of Branch Katangi or not and shall
fix the liability because it appears that the respondents had adopted a
very convenient method of putting the entire blame on shoulders of the
dead person so that the persons who are in service and may be
responsible for misdeeds can be saved.
17. Accordingly, order dated 11/04/2022 passed by M.P. State Co-
operative Tribunal, Bhopal in F.A. No.145/2012 is hereby quashed.
18. Petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
S.M.
