Bhagwati Devi vs State Of Haryana And Ors
2023 Latest Caselaw 12303 P&H

                                                          Neutral Citation No:=2023:PHHC:102213




CWP-1678-2018                   2023:PHHC:102213                   1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


(208)                           CWP-1678-2018
                                Date of Decision : August 08, 2023


Bhagwati Devi                                              .. Petitioner



                                Versus

State of Haryana and others                                .. Respondents

CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

Present: Mr. Dheeraj Chawla, Advocate, for the petitioner.

Mr. Harish Rathee, Sr. Deputy Advocate General, Haryana.

HARSIMRAN SINGH SETHI J. (ORAL)

1. Present petition has been filed challenging the order dated

26.10.2017 (Annexure P-4) by which, the order imposing recovery has been

passed by the Department against the late husband of the petitioner.

2. The facts which are necessary for the determination of the issue

in hand are as cited below:-

3. The husband of petitioner namely Ramkishan was working as

Forest Guard with the Department of Forest, Haryana. During the service

career, certain disciplinary proceedings were initiated against him, which

were pending consideration with the Department. The said proceedings

started from the year 2009 onwards and total six disciplinary proceedings

were being faced by the late husband of the petitioner.

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4. Before the disciplinary proceedings could reach to its

conclusion, the husband of the petitioner unfortunately died while in service

on 25.09.2015. After the said date, the petitioner became entitled for the

benefits in respect of the service rendered by her late husband but the

benefits were not being released to her on the ground that her late husband

was facing departmental enquiries, which departmental enquiries were still

pending and till the said departmental proceedings reached its logical

conclusion, no benefit in respect of the service rendered by the late husband

of the petitioner, can be extended to the petitioner.

5. Ultimately, vide order dated 26.10.2017 (Annexure P-4), all the

disciplinary proceedings pending against the late husband of the petitioner,

were decided and after holding the husband of the petitioner guilty of the

allegations, punishment of recovery of a sum of Rs.5,84,522/- was imposed

upon the late husband of the petitioner. The leave encashment of the late

husband of the petitioner was adjusted against the recovery order by the

Department and remaining amount of Rs.2,700,62/- was waived off by the

respondents. The said order dated 26.10.2017 (Annexure P-4) is under

challenge in the present writ petition.

6. Learned counsel for the petitioner argues that in the present

case, the moment, an employee against whom the disciplinary proceedings

are pending, dies, the said proceedings cannot continue further and those

proceedings abate hence, after the death of the husband of the petitioner, the

disciplinary proceedings could not have been continued so as to hold him

guilty of the allegations and to pass the impugned order directing the

recovery of an amount of Rs.5,84,522/- from a deceased employee.

7. Learned counsel for the respondents submits that once on the

date when the husband of the petitioner died, there were six disciplinary

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proceedings pending against him, only those proceedings have been taken

to the logical end after his death and the orders have been passed wherein,

the husband of the petitioner was found guilty of the allegations and

recovery of the loss suffered by the Department was ordered to be

recovered.

8. I have heard learned counsel for the parties and have gone

through the record with their able assistance.

9. The first question which arise in the present petition is whether,

the proceedings which are pending against an employee during his service

career, will remain intact after his/her death or the same will abate. The

moment, an employee dies, the disciplinary proceedings cannot be allowed

to continue as a dead person cannot defend himself/herself. Passing an

order after the death of an employee so as to hold the said employee guilty,

is not at all permissible. Furthermore, once after the death of an employee,

there is no master and servant relationship exist, passing an order of

recovery of an amount against a dead person and that too by proving the

allegations, when there is no one to defend the alleged allegations, is totally

arbitrary and illegal.

10. The said question of law already stands settled by this Court

while passing order in CWP No.21917 of 2016 titled as Shiksha Devi vs.

Haryana State Federation of Consumers Co-operative Wholesale Stores

Ltd, decided on 02.08.2022. In the said case also, the impugned order of

recovery was passed after holding him guilty of allegations the death of

employee, which act was held to be bad. The relevant paragraphs 10 and 11

of the said judgment are as under:-

"10. In the present case, no rule has been cited by the respondents to show their jurisdiction to issue a charge-sheet to a retired employee, hence, the charge-sheets which have

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been issued to the late husband of the petitioner after his retirement, which have been taken to the logical end by way of impugned order so as to impose the recovery of Rs.6,44,890/-, is held to be without any jurisdiction and the same is accordingly quashed along with consequential proceeding including the impugned order.

11. Even otherwise, even if it is assumed for the sake of argument that respondent had jurisdiction to issue the charge- sheets to the late husband of the petitioner even after his retirement, then also the impugned order of recovery by way of punishment can not be sustained for the reason that no proceeding can continue against a dead employee. The husband of the petitioner unfortunately died on 16.05.2015. It is the conceded position that till the said date, none of the charge-sheets had attained finality so as to give jurisdiction to the respondent to pass any orders on the charge-sheet. After the death of employee, disciplinary proceedings abate, hence, as the husband of the petitioner had already passed away, proceeding initiated by the respondents in respect of three charge-sheets could not have continued any further. Keeping in view the said factual position, the recovery of Rs.6,44,890/- which has been imposed upon late husband of the petitioner is held to be bad and accordingly quashed."

11. Learned counsel for the respondents has not been able to rebut

that the question of law settled in Shiksha Devi's case (supra), is not

applicable upon the petitioner.

12. Keeping in view the above, the impugned order dated

26.10.2017 (Annexure P-4) which has been passed against a dead employee

by continuing the disciplinary proceedings after his death so as to hold him

guilty of the allegations and to pass an order of punishment so as to recover

money, cannot be sustained and is accordingly set aside.

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13. From the impugned order dated 26.10.2017 (Annexure P-4), it

transpires that the petitioner was entitled for a sum of Rs.3,14,460/- as leave

encashment in respect of the service rendered by her late husband, which

amount was adjusted in view of the impugned order dated 26.10.2017. That

being so, the said adjustment is already held to be illegal and the impugned

order has already been set aside hence, the petitioner will be entitled for the

amount of Rs.3,14,460/- which is admissible to her after the death of her

husband on account of leave encashment.

14. Further, as the order has been passed against a dead employee,

which is a void from the date the same was passed and rather, after the death

of the husband of the petitioner in September 2015, the respondents were

under an obligation to release all the benefits for which the petitioner was

entitled for and as those have been retained by the respondents, the

petitioner also becomes entitled for the interest.

15. A Coordinate Bench of this Court in of J.S. Cheema Vs. State

of Haryana, 2014(13) RCR (Civil) 355, has held that where an amount

belonging to an employee, has been retained and used by the respondents,

upon the release of the said amount, on a later date, the interest has to be

given. The relevant paragraph of J.S. Cheema's case (supra) is as under: -

"The jurisprudential basis for grant of interest is the fact that one person's money has been used by somebody else. It is in that sense rent for the usage of money. If the user is compounded by any negligence on the part of the person with whom the money is lying it may result in higher rate because then it can also include the component of damages (in the form of interest). In the circumstances, even if there is no negligence on the part of the State it cannot be denied that money which rightly belonged to the petitioner was in the custody of the State and was being used by it."

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Keeping in view the above, the prayer of the petitioner is

allowed and the respondents are directed to release the amount of

Rs.3,14,460/- along with interest @ 6% per annum from the date the same

became due till the actual payment of the same. Let the computation of

interest be done by the respondents within a period of two months from the

receipt of certified copy of this order and the amount so calculated shall be

paid to the petitioner within a period of one month thereafter.

The writ petition is allowed in above terms.

August 08, 2023                       (HARSIMRAN SINGH SETHI)
harsha                                       JUDGE


            Whether speaking/reasoned : Yes
            Whether reportable       : Yes




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