Patna High Court
Gauri Devi vs The Union Of India on 19 September, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3810 of 2024
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Gauri Devi Wife of Late Rajesh Ram Resident of Mehtar Toli, P.O.- G.P.O.,
District- Patna.
... ... Petitioner/s
Versus
1. The Union Of India through the Post Master General, Bihar, G.P.O., Patna.
2. The Chief Engineer (Civil) Postal Civil Circle, 6th Floor, Meghdoot
Bhawan, G.P.O. Compound, Patna- 800001.
3. The Superintending Engineer (Civil), Postal Civil Circle, 6th Floor,
Meghdoot Bhawan, G.P.O. Compound, Patna- 800001
4. The Executive Engineer, Postal Civil Circle, 6th Floor, Meghdoot Bhawan,
G.P.O. Compound, Patna- 800001
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Sushant Praveen,
Mr.Aayush Abhishek &
Ms.Nirmala Singh, Advocates
For the Respondent/s : Mr.Dr. K.N. Singh, ASG
Mr.Alok Kumar, CGC
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 19-09-2024
Petitioner has assailed the order of the Central
Administrative Tribunal, Patna Bench, Patna (in short 'CAT')
dated 12th February, 2016 passed in O.A. No. 050/00804/2014.
Petitioner is wife of Late Rajesh Ram. She has assailed the order
of dismissal of her husband from the post of Sweeper under
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
2/10
Rule 19(ii) of CCS (CCA) Rules, 1965 read with Rule 3(1)(ii) &
(iii) and Rule 22 (b) of the CCS (Conduct) Rules, 1964 dated
24.05.2011
and further sought for compassionate appointment
against one of the Group D post.
2. Rajesh Ram-employee of the respondents
declared to have been died after seven years from the date of
missing. He was missing from 02.04.2007. The respondents
tried to contact deceased employee by all modes including news
item in Dainik Jagran on 17.07.2009, since there was no
response. Resultantly, charge memo was issued on 13.08.2010
and on the same day inquiring officer and presenting officer
were appointed. We have noticed that charge memo was not
notified in the newspaper when the respondents could not serve
a copy of the charge memo on the late employee through some
mode. Employee could have been declared as dead only after
seven years from the date of missing. If the date of missing is
taken from 01.04.2007, it would be only after 01.04.2014 he
could be declared as dead (civil death). Therefore, respondents
should have resorted to publishing charge memo in the
newspaper and notifying the same and it has not been resorted
to. Further, on the date of issuance of charge memo, inquiring
officer and presenting officer were appointed and it is not in
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
accordance with law for the reasons that charge memo can be
issued to an employee and on receipt of his explanation or reply,
if any. If the disciplinary authority is not satisfied, in that event,
he is permitted to hold enquiry by himself or appointing an
inquiring officer and presenting officer. Further, appointment of
the inquiring officer and presenting officer dated 13.08.2010
was withdrawn on 24.05.2011 and on the same day deceased
employee had been dismissed. Respondents should have
resorted to procedure for holding ex parte enquiry as mentioned
in Para (4) under Rule 14 of CCS(CCA) Rules, 1965 and it
reads as under :
"(4) Procedure for holding ex parte
enquiry.-Whenever an official continues to
remain absent from duty or overstays leave
without permission and his movements are
not known, or he fails to reply to official
communications, the Disciplinary Authority
may initiate action under Rule 14 of the
CCS(CCA) Rules, 1965. In all such cases,
the Competent Authority should, by a
Registered A.D. letter addressed to the
official at his last known address, issue a
charge-sheet in the form prescribed for the
purpose and call upon the official to submit
a written statement of defence within a
reasonable period to be specified by that
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
authority. If the letter is received
undelivered or if the letter having been
delivered, the official does not submit a
written statement of defence on or before the
specified date or at a subsequent stage does
not appear in person before the Inquiry
Officer or otherwise, fails or refuses to
comply with the provisions of CCS
(CCA)Rules, the Inquiring Authority may
hold an ex parte inquiry. The notices of all
hearings should be served on the accused or
communicated to him unless the first notice
says that the inquiry will continue from day
to day. In ex parte proceedings, the entire
gamut of the enquiry has to be gone
through. The notices to witnesses should be
sent, the documentary evidences should be
produced and marked, the Presenting
Officer should examine the prosecution
witnesses and the Inquiring Authority may
put such questions to the witnesses as it
thinks to be fit. The Enquiring Authority
should record the reasons why he is
proceeding ex parte and what steps he had
taken to ask the accused official to take part
in the enquiry and avail of all the
opportunities available under the provisions
of Rule 14 of the CCS (CCA) Rules. In such
a case, the details of what has transpired in
his absence, including depositions, should
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
be furnished to the accused officer. During
the course of enquiry, the accused is free to
put in appearance and participate in the
enquiry. If the accused appears in the
enquiry when some business has already
been transacted, it is not necessary to
transact the same business again unless the
accused official is able to give justification
to the satisfaction of the Inquiry Officer for
not participating in the enquiry earlier. The
Competent Authority may, thereafter,
proceed to pass the final orders dismissing
or removing the official from service after
following the prescribed procedure.
2. The procedure outlined above
can be observed in the case of a
Government servant, whether permanent or
temporary remaining absent without
authority, etc. Such a Government servant
should not be placed under suspension but
when an official who is under suspension
disappears and cannot be contacted at his
last known address, the suspension orders
should be lifted and the proceedings in the
manner stated above initiated for his
removal in absentia."
The aforementioned procedure has not been adhered
in the present matter by the respondents, on this ground
petitioner has made out case to interfere with dismissal order
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
and CAT order.
3. Petitioner-Gauri Devi, who is illiterate, have no
other source of income and she had questioned the validity of
dismissal of her husband from service before the CAT in O.A.
No. 050/00804/2014 which was dismissed on 12th February,
2016. The CAT in para 6 and 7 it has held as under :
"6. In view of the above [ and without
interfering with the procedurally correct
order of dismissal passed by the respondents
in regard to the husband of the applicant],
this Tribunal holds that the ends of equity
and justice [in the specific circumstances
herein] will be appropriately served by
directing the respondents to consider
extension of some form of assistance to the
applicant whose husband can now be
presumed to be no longer alive. Prima facie,
although it appears that such assistance
cannot be in the form of an appointment on
compassionate grounds [ In terms of the
rules and the fact that her husband was
dismissed], it is questionable whether the
dismissal per se was on valid grounds of
misconduct, since the respondents undertook
no due diligence to verify the circumstances
of the employee's disappearance even after
the police intimation. As such, respondents
can also treat this as a case of technical
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
dismissal and can extend relief to the
applicant. Alternatively, such assistance can
also be considered within the parameters of
welfare scheme/ measures existing in
Government departments and/ or the
discretionary powers, where available, of the
executive. Given the peculiar circumstances
of this case, perhaps even the extension of ex-
gratia assistance or other forms of
employment can be considered. That having
been said, this Tribunal also acknowledges
that appropriate action would essentially be
up to the good conscience of the respondents
and the facts and circumstances of this case /
situation.
7. In the above context, this Tribunal
finds no legal basis to interfere with the
orders of dismissal issued by the respondents.
However, this Tribunal casts an obligation
upon the respondents to take appropriate
action in the context of directions and
observations made in para 6 above. That
such consideration and action should be
completed within a period of four months
from the date of receipt/ communication of
this order. That, in course of doing so, the
respondents will also have the liberty to
separately inquire into the indigence and
circumstances of the applicant and her family
before taking a final view in regard to the
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
nature of assistance which would be
justifiable in that context."
4. Legal infirmities like not notifying the charge
memo in the manner known to the law, if it is not served on the
employee, it should have been notified in the newspaper.
Appointment of inquiring officer and presenting officer on the
date of issuance of charge memo is yet another lacuna and its
withdrawal further order of dismissal from service, is yet
another lacuna. Ex parte procedure cited has not been adhered
and CAT has not appreciated the aforementioned infirmities.
5. We have noticed that deceased-Rajesh Ram, who
was appointed initially as a daily wager in the year 1988, his
services have been brought on temporary status on 24.06.1998.
Thereafter his services were regularized on 12.06.2003 and he
had worked as a regular employee till 01.04.2007. In this
backdrop, he being illiterate and a sweeper, the official
respondents should have resorted to regularize his services as
and when he completed 10 years of service in the light of
Hon'ble Supreme Court decision in the case of Secretary, State
of Karnatka and Ors. vs. Uma Devi & Ors. reported in
(2006)4 SCC 1. On the other hand, he was denied the benefit of
regularization as and when he completed 10 years of service.
6. Be that as it may, respondents have policy decision
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
insofar as counting 50 % of the ad-hoc service read with regular
service towards grant of pension and retiral benefits. The CAT
has not appreciated the aforementioned infirmities which are
forthcoming from the record. Therefore, petitioner has made out
a prima facie case so as to interfere with the order of CAT dated
12th February, 2016 and it is set aside. Consequently, order of
dismissal dated 24.05.2011 is set aside. The respondents are
hereby directed to examine the service record of deceased
Rajesh Ram. If he fulfills the conditions for the purpose of any
pensionary benefits, in that event, petitioner is entitled to
pensionary benefits along with the family pension. If the
deceased Rajesh Ram fails to fulfill the requisite condition for
the purpose of extending pensionary benefits and family pension
in terms of relevant statutory provision, in that event,
respondents are hereby directed to pay a lump sum
compensation of Rs. 5 lakhs in view of the fact that deceased
employee served the respondents-Department from the year
1988 and he was missing from 01.04.2007. Imposition of major
penalty of dismissal on sweeper on the allegation of missing
would be too harsh and moreover he had served respondents
from the year 1988 to 01.04.2007. That apart, it is not a case of
any misappropriation of Government fund so as to warrant for
Patna High Court CWJC No.3810 of 2024 dt.19-09-2024
imposition of major penalty of dismissal. The above exercise
shall be undertaken by the concerned respondents within a
period of four months from the date of receipt of this order.
7. Writ petition is allowed.
8. At this stage, learned counsel for the respondents
submitted that there is delay of about 7 years in filing the writ
petition. In terms of Hon'ble Supreme Court decision in the case
of L. Chandra Kumar V. Union of India & Ors. reported in
(1997) 3 SCC261, there is no time limit stipulated for the
purpose of filing writ petition before a High Court against the
CAT order. Moreover, petitioner is an illiterate widow woman,
therefore, technical ground raised on behalf of the respondents
is not appreciable in the case in hand.
(P. B. Bajanthri, J)
( Alok Kumar Pandey, J)
mcv/-
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